Il diritto alla terra dei popoli indigeni in prospettiva comparata. Il caso dell’America Latina. The right to traditional land of indigenous peoples in a comparative perspective. The Latin American case.

The dissertation aims to investigate the problematic question of the return of indigenous peoples in their historical lands and the deep connection between their culture and their political institutions with environment, nature and tradition, as it is actually introduced by international law and public law in the different countries where the indigenous presence is relevant. The definition of "indigenous people" and its development in the international scenario in the last decades has characterized a new consideration about the rights of indigenous peoples, whose self-determination is otherwise connected to a specific land, occupied and translated from generations and synonymous of an unique identity (the so-called anthropological concept of "ancestral land"). It caused a re-interpretation of the relationship between lands and indigenous peoples, either providing the reintegration of indigenous in their ancestral lands (once expropriated by State authorities), either considering a unified point-of-view on land/earth as a common, in which natural resources should be managed by communities (referring to the concept of "Mother Earth"). The thesis investigates the international protection of the rights of indigenous peoples and its development in history, considering the protection extended by the ILO Conventions (1957/n.105 and 1989/n.169) and the UN Declaration on the Rights of Indigenous Peoples 2007 and the influence of the Cobo Report in international and national law. It also deals with some "virtuous" cases involving a special relation between national institutions and indigenous communities, in order to create a legal paradigm of protection to indigenous peoples and their historical rights (i.e., the cases of North-American natives, Australian aborigines, New Zealand maoris and Scandinavian saamis). The protection of indigenous peoples and their traditional lands becomes a particularly relevant fact in the Latin-American contest for the peculiar complexity (historically based) of the relationship with natives and the important phase of political and democratic transition in '80s-'90s. New Constitutions (or constitutional reviews), elaborated in this period in the Latin-American region, have been affected by the theory of Nuevo Constitucionalismo, that totally disagrees with the western constitutionalism and with the theory of legal positivism. According to this new constitutional theory, indigenous customary law is considered among the basics of national law, granted and protected by the Constitution. It provides that the natives are seen as an entity per se, recognized by the State (and not forcedly integrated into the European inspired reality, as in the past years), entitled to possess their ancestral lands and to claim their own rights (even the cultural ones). In order to this renewal, the indigenous costumbre becomes law of the State. So on, the common managing on lands and natural resources are to be in accordance with the indigenous harmonic relationship with nature. Earth, or Mother Earth (Tierra Madre or, using a quechua term, Pacha Mama), becomes effectively a common. The thesis deals with the political passage of transition to democracy in Latin-American region and with the construction of a new constitutionalism, affected by the consideration of collective rights and the protection of social and cultural minorities. It also provides to do a general framework of the recent Latin-American constitutions and their protection of indigenous rights and indigenous property of lands (with a specific consideration about the Andean constitutionalism in Bolivia and Ecuador and the revolutionary entrance of customary laws). Then, the analysis focuses on the case of Paraguay and Argentina, whereas the new constitutional laws (Constitution of Paraguay in 1992 and constitutional review in Argentina in 1994) have expressively contemplated the recognition and the protection of the indigenous right to historical lands, also considering the development of the protection in the political and legal history of the States. Finally, the research aims to focus on the role of the Inter-American Court of Human Rights in creating a constitutional and international parameter of protection of indigenous land right and providing the return of indigenous communities in their traditional lands. The decisions of the Inter- American Court are actually a bridge for the incorporation of indigenous rights in national legislations, providing a constitutional-oriented jurisprudence and giving an important signal for the international debate.