Edited by Ugo Mattei and John D. Haskell
Chapter 26: Indigenous peoples’ claims and challenges over control of property
This chapter examines, using the concept of political recognition, how the case law of the Inter-American and African human rights systems addresses indigenous communities’ claims over their ancestral lands. This topic is worthy of attention for several reasons. In recent years, there has been a proliferation of human rights cases on this question. The Inter-American Court of Human Rights [hereinafter IACtHR] and the Inter-American Commission on Human Rights [hereinafter IAComHR] have decided many cases related to this issue, and the African Commission on Human and Peoples’ Rights [hereinafter ACHPR] handed down two landmark communications, Ogoni v Nigeria and Endorois Community v Kenya, addressing this topic. In addition, the Commission recently published several reports that analyze the situation of indigenous communities in Africa. What is noticeable is that human rights bodies recognized indigenous communities’ land rights although the treaties do not explicitly refer to their property rights. Cross-referencing here is key to understanding the similarities that run through the case law. Indeed, the African Commission often relies on and builds upon previous IACtHR case law to interpret the African Charter. This case law is further supported by evolutions within other legal regimes, such as the International Labour Organization (ILO) or the UN, to which human rights bodies make explicit reference. As a result of this, a relatively coherent body of human rights norms that determine indigenous communities’ property regimes emerge out of the judicial practice.
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