71
1. Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
2. No one shall be deprived of his property except upon payment of just compensation,
for reasons of public utility or social interest, and in the cases and according to the
forms established by law.
3.
Usury and any other form of exploitation of man by man shall be prohibited by law.
117. In analyzing the content and scope of Article 21 of the Convention in relation
to the communal property of the members of indigenous communities, the Court has
taken into account Convention No. 169 of the ILO in the light of the general
interpretation rules established under Article 29 of the Convention, in order to
construe the provisions of the aforementioned Article 21 in accordance with the
evolution of the Inter-American system considering the development that has taken
place regarding these matters in international human rights law.184 The State ratified
Convention No. 169 and incorporated its provisions to domestic legistlation by Law
No. 234/93.185
118. Applying the aforementioned criteria, the Court has considered that the close
ties the members of indigenous communities have with their traditional lands and
the natural resources associated with their culture thereof, as well as the incorporeal
elements deriving therefrom, must be secured under Article 21 of the American
Convention.186 The culture of the members of indigenous communities reflects a
particular way of life, of being, seeing and acting in the world, the starting point of
which is their close relation with their traditional lands and natural resources, not
only because they are their main means of survival, but also because the form part
of their worldview, of their religiousness, and consequently, of their cultural
identity.187
119. The foregoing is related to the contents of Article 13 of Convention No. 169 of
the ILO, in that States must respect “the special importance for the cultures and
spiritual values of the peoples concerned of their relationship with the lands or
territories, or both as applicable, which they occupy or otherwise use, and in
particular the collective aspects of this relationship.”
120. Likewise, this Court considers that indigenous communities might have a
collective understanding of the concepts of property and possession, in the sense
that ownership of the land “is not centered on an individual but rather on the group
and its community.”188 This notion of ownership and possession of land does not
necessarily conform to the classic concept of property, but deserves equal protection
under Article 21 of the American Convention. Disregard for specific versions of use
184
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, paras. 124-131, and Case of the
Mayagna (Sumo) Awas Tingni Community. Judgment of August, 31, 2001. Series C No. 79, paras. 148
and 149.
185
Law No. 234/93 whereby ILO Convention (No. 169) concerning Indigenous and Tribal Peoples in
Independent Countries is ratified.
186
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 137, and Case of the
Mayagna (Sumo) Awas Tingni Community, supra note 184, para. 149.
187
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, para. 135.
188
Cf. Case of the Mayagna (Sumo) Awas Tingni Community, supra note 184, para. 149.