Towards Intersectional Properties: A Legal Materialist Take of Indigenous Peoples’ Land Rights in the Inter-American Court on Human Rights

Abstract

The scope of indigenous people’s land rights under Article 21 of the Inter-American Court on Human Rights (IACHR) has evolved over a series of fifteen cases since the groundbreaking Awas Tingni case of 2001, through the decision of Lhaka Honhat in 2020. At first glance, the way the IACHR has shaped the right to collective property seems progressive and even appears to contest the liberal ideal of property. There are, however, ontopolitical limitations that derive from the notion of property that the Court construed. This article assesses the IACHR jurisprudence on property from a legal materialist perspective, to argue that the Court’s bifurcation of property into private property and collective or other property, is a result of its own limited western conception of property. This article shows that this simplification is due to western notions of property’s limitations that, when adopted in the Court’s jurisprudence, limits the possibility of an intersectional approach that would be capable of grasping the complex power relations involved in land conflicts. This article raises doubts about the ability of this framework to challenge the ongoing processes of dispossession in Latin America, proposes revisions to the predominantly abstract juridical concept of property, and moves to focus attention on the practices, forces, actors, and spaces that channel how property is materialised.