Desconocimiento de la propiedad colectiva en Colombia: a la luz del Sistema Interamericano de Derechos Humanos

Abstract

The jurisprudence of the Inter-American Court of Human Rights in recent years, has established a set of criteria and measures that would form a catalog of measures to be undertaken by States to ensure the effective protection of property rights of indigenous and tribal peoples. These measures should be implemented in the processes of formalization and titling of ancestral lands occupied in the delimitation and demarcation of the land, the return of portions of land loss in the stipulation of criteria for granting alternative land and in the studies that tend to establish public policies for meeting the needs of the communities on the production and possession of the land as a suitable mechanism to maintain decent living conditions. Colombian regulation for the lands of indigenous and Afro-Colombian communities presents divergent aspects: the former have a regulation for the expansion, restructuring and reorganization of the Indian reservations, and the latter are governed under a general statute and common property award of public lands. In both systems, the procedures are complex, late, confusing prerequisites require sophisticated, and above all its structure is based on criteria of a non-indigenous and tribal. Additionally, the policy compendium regarding titling, land delimitation and demarcation of Afro-Colombian communities as set out above, has several regulatory gaps that are accentuated by the lack of such regulation update to current conditions when taking into account that there has been no change to it in the past 19 years, and they do need to apply by analogy the provisions of the Civil Code relating to individual property for the purposes of responding to the factual circumstances not contemplated.