Medidas cautelares y restitución de tierras. un análisis entre la legitimidad, la normatividad y la práctica. Caso Nükak.

Abstract

Taking into account that precautionary measures have been key legal tools for the immediate protection of those rights that are being violated, or in their absence, for the preventive protection of those who are at risk, this research seeks to identify what has been the effectiveness of the precautionary measures that have been requested and decreed in the framework of the processes of restitution of ethnic territorial rights, especially of the ethnic territorial rights of the indigenous peoples; This research seeks to identify the effectiveness of the precautionary measures that have been requested and decreed in the framework of the processes of restitution of ethnic territorial rights, especially of the Nükak indigenous people, belonging to the Nükak Indigenous Resguardo, located in the municipalities of San José del Guaviare and El Retorno, in the department of Guaviare (Colombia).

The above, considering the fact that the international community is currently aware that this indigenous people is going through difficult circumstances, including some related to the armed conflict in Colombia, which are violating human rights, and have put at risk their physical and cultural survival as an indigenous people; being then apparently, the precautionary measure, the ideal tool to address such cases, in which it seeks to safeguard and protect the rights immediately.

Now, it is important to mention that the precautionary measure object of this investigation will be studied within the framework of the land restitution process, derived from the creation of Law 1448 of 2011 “By which measures of attention, assistance and integral reparation to the victims of the internal armed conflict are dictated and other provisions are issued. "This in turn gave rise to Decree Law 4633 of 2011 ‘Whereby measures of assistance, care, comprehensive reparation and restitution of territorial rights to victims belonging to indigenous peoples and communities are dictated’; since, for indigenous peoples and communities, the guarantee of their right to territory is of great importance for their survival and development of their own lifestyles.