How the indigenous case of Xukuru before the Inter-American Court of Human Rights can inspire decolonial comparative studies on property rights

Abstract

This paper develops a decolonial comparative analysis of the concept of property rights, taking into consideration the decision of the Inter-American Court of Human Rights, ruling on collective property rights of indigenous people for the first time against Brazil (case Xukuru People versus Brazil, 2018). For this purpose, the innovative method of decolonial comparative law, promoted by Ralf Michaels and Lena Salaymeh at the workshop organized by Max Planck Institute for Comparative and International Law on 2019, was used to comparatively analyse private property rights and the collective property right in the Brazilian legal system from a decolonial perspective. The Xukuru indigenous case clearly shows the diverse problems and conflicts that arise when using the concept of property right based on a strong Eurocentric tradition. The challenges of registering an indigenous property in Brazil were identified in this context as a dysfunctional colonial model of private right that obstruct the exercise of collective property in Brazil. Thus, the decision of the Interamerican Court of Human Rights that introduces the concept of collective property rights in Brazil can inspire a decolonial approach in the domestic legal system and serve as learning process for other legal systems that are confronting similar problems.