Direito em Movimento - Volume 16 - Número 2 - 2º semestre/2018

85 Direito em Movimento, Rio de Janeiro, v. 16 - n. 2, p. 72-105, 2º sem. 2018 ARTIGOS This equity as a juridical rule became examined in the sentence under study in its two types of content: one negative, prohibiting discrimination, the other having the positive character which demands of the legislator, and the one who applies the norm, the promotion of a regime of equalities. For this reason, the Court indicated the existence of an antagonism in Nicaragua’s juridical ordering, since as long as its Constitution recognizes the indigenous right to culture, land included, these rights are only formal or abstract (juridical equality), meaning: they are not materialized (real equality). Under these circumstances, the Tribunal concluded that “the State [of Nicaragua] violated the right to use and enjoy property by the members of the Awas Tingni Mayagna, since neither did it delimit nor demarcate communal property, and conceded permission to third parties to utilize property and resources located in an area which could correspond, totally or partially, to lands which must be delimited, demarcated and bearing titles.” In this way, committed to the imperative of equality ex vi of Nicara- gua’s Fundamental Law, the Court recognized for the indigenous peoples the public right to the demarcation of their lands and the recognition of their rights.This means that, having positive or negative constitutional im- positions, the State by its organs and agents is linked to the application of, and commitment to, the valid norm. The main innovation of this sentence, and the reason for which it constitutes a leading case , is that in the American Convention on Human Rights 25 there is no apparatus for indigenous rights to land ownership.The Court of San José defined indigenous rights based on Article 21 of the aforementioned Carta, according to which: “Every person has a right to the use and enjoyment of their assets”. Strictly individual and liberal in cha- racter, this apparatus served as a base to construct a theory of indigenous rights to land. 25 Signed at the Specialized Inter-American Conference on Human Rights, San José, Costa Rica, on the 22nd of November, 1969.