Multiculturalism and indigenous peoples: Analysis of the standards of the Inter American Court of Human Rights related indigenous territories

Abstract

For three decades now, both the Inter-American Commission on Human Rights (hereinafter CIDH) and the Inter-American Court of Human Rights (Inter-American Court) have heard of reports and complaints about the violations of rights that fall systematically on indigenous persons and their communities. However, being the indigenous territory the element that has encountered the most difficulties on the part of western society for its recognition, international standards in this regard have been developed gradually and fractionally. At the same time, these standards have been accompanied by the elaboration of fragmented conceptualizations, which make it even more difficult to build a coherent and comprehensive normative and jurisprudential framework of the situations of violence and impairment that fall on indigenous peoples and the territories which they belong.
However, in most of the Latin American States the impulse of multiculturalist policies regarding the existence of these collective subjects is observed, accepting in a limited way the rights already recognized and established at the international level. These policies fail to fully encompass the true need of indigenous peoples, which relies on the full exercise of their rights through free self-determination. In this way, it is expressed that the need for a pluralist and intercultural State whose objective is to generate the necessary conditions for the development of the various life systems of indigenous peoples, includes as a basis the protection, ownership and care of the territory, as well as both the understanding, recognition and dialogue between western culture and the cultures of indigenous peoples.
The objective of this work is to investigate the standards of the Inter-American Court of Human Rights in the matter of indigenous territory, analyzing their scope and limitations. In this sense, we will focus on the jurisprudence of the Inter-American Court, since, being the regional jurisdictional body and last instance of the Inter-American Human Rights System, it has been in charge of setting the content and scope of the obligations of the States, determining international responsibility and subsequent reparation arising from the breach of said obligations. Likewise, the judgments emanating from the Court acquire the character of mandatory compliance, in such a way that the precepts established by the Court in its contentious function guide the actions of the States, which must cease the violations of rights, adapt their internal legislation and repair to indigenous communities. For the above, the recognition of the rights of indigenous peoples under the paradigm of multiculturalism will be analyzed. Subsequently, the common attributes that indigenous peoples in Latin America have given to the notion of territory will be reviewed, to finally analyze the jurisprudence of the Inter-American Court in this regard.
Finally, it is concluded that the recognition of the collective property of indigenous peoples by inter-American jurisprudence constitutes a significant advance for their protection and defense. However, the results show that the lack of study and understanding based on the complexity of the meaning, both physical and symbolic, of the indigenous territory, and the exercise of national multicultural policies, produce that indispensable elements of the constitution of the indigenous communities continue to be omitted, such as autonomy or self-government.

Summary:
I. INTRODUCTION. II. MULTICULTURALISM AND LEGAL RECOGNITION OF INDIGENOUS PEOPLES. III. THE TERRITORY FROM / FOR INDIGENOUS PEOPLES. IV. STANDARDS OF THE JURISPRUDENCE OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS ON INDIGENOUS TERRITORIES. V. ANALYSIS: SCOPE AND LIMITATIONS. VI. CONCLUSIONS.