3
4)
Isabel García de Ramírez (64 years old): died on August 22, 1998 due to
cachexia, without receiving medical care before her death;
5)
Justina Chávez (1 year old): died on August 10, 1999 due to bronchitis, without
receiving medical care before her death;
6)
Ramón Chávez (1 year and 11 months old): died on September 6, 1999 due to
bronchitis, without receiving medical care before his death;
7)
N/N Morel Chávez (1 day old): died on January 1, 2000 for reasons unknown,
without receiving medical care before his death;
8)
N/N Morel Chávez (2 days old): died on January 2, 2000 for reasons unknown,
without receiving medical care before his death;
9)
María Adela Flores Gómez (12 days old): died in January 2003 due to
bronchitis; and
10)
Silvino Martínez Gómez (2 months old): died in February 2003 due to
bronchitis.
9.
Under the American Convention, the right to life is not limited to protection
against arbitrary deprivation of life, but also requires positive measures by the State
to ensure its full enjoyment. It is a basic right, whose importance has been duly
emphasized by the Court in all its jurisprudence on this subject (paras. 21-22, infra).
Likewise, the thesis of the positive obligations of the State is today universally
reflected in doctrine.
10.
Said obligations, regarding the right to life, are clearly shown by jointly
reading Articles 4(1) and 1(1) of the American Convention. Thus, the deaths of the
ten aforementioned individuals (para. 8, supra), instead of requiring that the Court
have additional evidence, in our opinion constitute an aggravating circumstance of
the violation, previously established by the Court, of Articles 4(1) and 1(1) by the
State.
11.
In our opinion, the “causal link” sought by the majority of the Court is clearly
established by lack of due diligence by the State regarding the living conditions of all
members of the Yakye Axa Community (objective international responsibility of the
State). The Court has, in fact, acknowledged this explicitly in the instant case, when
it pointed out that
This Court notes that lack of effective exercise of the right to communal
property of the members of the Yakye Axa Community, as well as the grave living
conditions to which they were subjected as a consequence of the delay by the State in
making their territorial rights effective, must be taken into account by the Court when it
sets non-pecuniary damages.
12.
The Court has acknowledged, in the instant Judgment, that it must assess
both the lack of effective exercise of the right to communal property and the grave
living conditions of the members of the Yakye Axa Community (para. 202); this
established the causal link to set non-pecuniary damages. The Court should have
explicitly stated that the extremely destitute situation that was established led
directly to the death of several members of the Community.
13.
The Court also established, in the instant Judgment, that the respondent
State must “provide regular medical care and appropriate medicine to protect the
health of all individuals, especially children, the elderly and pregnant women,
including medicine and adequate treatment to deworm all the members of the