The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua

The Awas Tingni Community was an indigenous community located in the Atlantic Coast of Nicaragua. The members of the Community subsisted on the basis of communal agriculture, fruit gathering, hunting and fishing. The Community had no real property title deed to the lands it claimed. In 1996 the State granted a concession to a corporation to carry out road construction work and logging exploitation in the forest in an area of roughly 62,000 hectares located in the region the community was located in. The Community thereafter submitted a letter to the Minister with a request that no further steps be taken to grant the concession to the corporation without an agreement with the Community. Alleging that the State did not ensure an effective remedy in response to the community’s protests regarding its property rights, they later filed an application to the Inter-American Commission on Human Rights claiming that the State of Nicaragua had not complied with its obligations under the American Convention on Human Rights. Nicaragua had not demarcated the communal lands of the Awas Tingni Community, nor had the State adopted effective measures to ensure the property rights of the Community to its ancestral lands and natural resources, and also because it granted the concession on community lands without the consent of the Community. The court examined whether there was a violation of article 25 of the Convention, which provided the right to judicial protection. It concluded that Nicaragua had not adopted the adequate domestic legal measures to allow delimitation, demarcation, and titling of indigenous community lands, nor did it process the remedy filed by members of the community within a reasonable time. Pursuant to the Convention, the State had to adopt in its domestic law the necessary measures to create an effective mechanism for delimitation and titling of the property of the members of the community, in accordance with the customary law, values, customs and mores of that community. The State had violated article 25 of the Convention. Furthermore there was a violation of article 21, giving the right to private property. Article 21 of the Convention protected the right to property in a sense which included the rights of members of the indigenous communities within the framework of communal property. The Court noted that the limits of the territory on which that property right existed had not been effectively delimited and demarcated by the State. This situation had created a climate of constant uncertainty among the members of the community, insofar as they did not know for certain how far their communal property extended geographically. Finally, the court decided that the immaterial damage caused to the community also had to be repaired, by way of substitution, through a monetary compensation according to Article 63(1) of the Convention.