to consider the applicability of the said regime, as this certainly represents a crucial issue in the context of potential litigation. As noted above, the IACtHR can only decide on alleged violations of Article 21 with regard to those member states of the OAS which have ratified the ACHR and accepted the compulsory jurisdiction of the IACtHR. Under these circumstances, when a state is brought before it for the alleged violation of Article 21, the IACtHR will first consider the national and international obligations of the concerned state with regard to indigenous peoples’ land rights. This is so because Article 29 of the ACHR requires that no provision thereof may be interpreted as ‘restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party’. Accordingly, those states which have passed national legislation recognizing indigenous land rights, or have ratified international treaties that specifically protect such rights,309 will certainly be bound by a progressive interpretation of Article 21. This said, the IACtHR has taken a rather dynamic approach to the issue with a view to extending the potential applicability of the indigenous land rights regime. Thus, a state which has not passed national legislation recognizing indigenous land rights, and has not ratified international treaties that specifically protect such rights, might still be bound by a progressive interpretation of Article 21, provided that one or more international human rights treaties to which it is a party can be interpreted as protecting indigenous land rights. For example, a state party to the ICCPR will be required by the IACtHR to respect the land rights of its indigenous communities in the light of the practice of the HRC, which, through its Concluding Observations, General Comments and Individual Communications, has constantly upheld the recognition of these rights. The right to restitution in combination with the right to property The fact that indigenous land rights are protected by Article 21 of the ACHR must be read in combination with the right to restitution contextually established by the IACtHR. In particular, the IACtHR observed that ‘the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto, even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith’.310 Under the latter circumstance, however, indigenous peoples are not left without protection altogether. Indeed the IACtHR established that, despite lacking property rights, indigenous peoples have a right to restitution with regard to those lands. Furthermore, if the claimed lands cannot be returned, indigenous peoples will enjoy the right to obtain other lands of equal extension and quality.311 The next subsection will further analyse these issues. For now, instead, it is important to stress that the IACtHR introduced a time-restriction on the exercise of the right. More specifically, it found that the right is enforceable as long as the special relationship between an indigenous community and its land continues to exist.312 According to the IACtHR: ‘[this] relationship may be expressed in different ways, depending on the particular indigenous people involved and the specific circumstances surrounding it, and it may include the traditional use or presence, be it through spiritual or ceremonial ties; settlements or sporadic cultivation; seasonal or nomadic gathering, hunting and fishing; the use of natural resources associated with their customs and any other element characterizing their culture.’ 313 Thus, if any of these circumstances can be proved, the IACtHR will decide in favour of the right to restitution. Land rights and competing claims As noted above, when indigenous ancestral lands have been lawfully transferred to third parties in good faith, the problem of restitution, and competing claims, arise. Importantly, the IACtHR did not shy away from the difficult task of providing guidelines on how to resolve such crucial problems. As a necessary premise, the IACtHR aptly noted that Article 21 of the ACHR protects communal properties of indigenous communities as much as private properties of individuals.314 It follows that competing claims of indigenous peoples and individuals need to be balanced and assessed on an ad hoc basis. This said, the IACtHR has made it clear that the most preferable solution should be, inasmuch as possible, the recognition of indigenous rights. The general rule upheld by the IACtHR is that restrictions to the right to property, whether they affect indigenous peoples or individuals, must meet a number of specific requirements: first, they must be established by law; second, they must be necessary and proportional; and third, they must be aimed to attain a legitimate goal in a democratic society.315 Hence, not every restriction to the enjoyment and exercise of the right to property is permissible.316 This said, in case of clashes between private property and claims for ancestral property, the IACtHR emphasized that: ‘states must take into account that indigenous territorial rights encompass a broader and different MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE 31