The land rights of indigenous peoples under international law

Land rights of indigenous peoples correspond to a sui generis, collective form of ‘right to property’, based on an inherent spiritual relationship, rather than a material one. Most indigenous peoples consider their traditional lands as their ‘Mother Earth’, which cannot be the object of ‘ownership’ in the sense typical of the Western world. For indigenous peoples, ancestral lands represent an essential element of their cultural identity. As emphasized by the Inter-American Court of Human Rights, ‘the close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations.’ This spiritual connection between indigenous peoples and their traditional territories determines that – as noted by ILA Resolution No. 5/2012 – pursuant to international law indigenous peoples’ land rights ‘include the right to restitution of the ancestral lands, territories and resources of which they have been deprived in the past’. In the last decades, international human rights bodies and domestic courts have developed a remarkable and nearly homogeneous practice recognizing, adjudicating and enforcing land rights of indigenous peoples, as a human right of collective nature. Through an evolutionary interpretation of the concept of the ‘right to property’, they have recognized the special relationship between indigenous peoples and their traditional lands, in the context of which ‘property’ is not to be seen as dominion by a person over a thing, but rather as a harmonious symbiosis leading the community and the land to belong to each other by means of spiritual ties incessantly transmitted from generation to generation.