El "derecho transconstitucional de la diversidad": La “especialidad indígena” en el desarrollo interamericano del derecho de propiedad

In a context characterized by a “multidimensional transconstitutionalism of human rights”, the topic of “diversity”, its recognition and realization, acquires a relevant interest. Legal orders, in different manners, are increasingly intertwined in solving cases concerning the protection of fundamental goods characterized by a “minimum common core”. However, they are not exempt from the need to strike a balance between the recognition of this “common minimum” and the right to diversity, by relying on tools aimed at guaranteeing pluralism. With particular reference to the Latin American legal framework, indigenous law and the peculiar protection granted by the Inter-American Court to the “territory” (thanks to Art. 21 devoted to the right to property) is used as analytical perspective. This allows us to verify whether legal categories used to deal with this phenomenon may risk deleting the “differential acquis” existing in the indigenous context. In the case law of the Inter-American Court of Human Rights, the right to property seems to move away from its individual (liberal) dimension to take a collective sense in order to transformer itself into basis of the cultural diversity of indigenous communities. The right to territory becomes the ground of cultural identity, with a certain impact on the content of the other rights protected by the ACHR