People’s settlement in the Amazonian jungle is extremely inaccessible. Finally, they argued that the
State failed to investigate or to punish the attacks on freedom of movement by third parties.
136. The State argued that the Commission and the representatives had not provided conclusive
evidence to establish reliably that there had been any violation; on the contrary, it had been proved
that the State had guaranteed this and other rights of the People. Moreover, it indicated that the
land grant made by the IERAC in 1992 clearly establishes that this did not affect freedom of
movement. It also argued that, during the seven years that the provisional measures had been in
force, “no unfortunate events have been reported.”
A.3 Economic, Social and Cultural Rights154
137. The representatives argued that Ecuador had violated the right to culture of the members of
the Sarayaku People, contained in Article 26 of the Convention, in relation to Article 1(1) thereof.
They argued that, by granting the concession in the territory of the Sarayaku People without
consulting them, the State had violated their right to culture, given their special relationship with
their territory. They also mentioned that this violation occurred due to the State’s lack of action
when the company entered the area to protect and preserve sacred places of cultural importance as
well as traditional practices, the celebration of rites and other daily activities that form part of their
cultural identity, which caused serious damage to fundamental aspects of the Sarayaku worldview
and culture. The representatives indicated that the suspension of the People’s daily activities and the
dedication of the adults to the defense of the territory had a profound impact on the teaching of
cultural traditions and rituals to the children and young people, as well as on the transmission and
perpetuation of the elders’ spiritual knowledge.
138. The Commission did not allege a violation of Article 26 of the Convention and did not refer to
the arguments of the representatives
139. The State argued that Article 26 of the Convention had not been violated. It asserted that the
right to culture is a central concern of the State and that some of the most important indicators of
this concern are reflected in the institutional framework that Ecuador has developed in accordance
with the constitutional principles. The State also argued that the representatives define culture
“based on a fixed ethnic notion” and therefore “do not grasp the integration and polysemy of the
cultural dimension of the indigenous peoples or, in general, any components of urban or rural
human socialization.”
A.4 Domestic Legal Effects155
140. The Commission argued that the State had not adopted domestic legal provisions to
guarantee the right of access to information and the right to prior consultation, and was therefore
responsible for violating Article 2 of the Convention. In particular, the Commission observed that
Decree No. 1040 of April 2008 makes no mention of the right of access to information or the right to
prior consultation of the indigenous peoples under the applicable international standards, and does
not require that information provided by so-called “social participation mechanisms” be accessible,
sufficient and timely, in the terms of the application. Furthermore, although both the 1998 and the
2008 Constitutions recognize the right to prior consultation, to date Ecuador does not have a specific
154
Article 26 of the American Convention states: “The States Parties undertake to adopt measures, both internally and
through international cooperation, especially those of an economic and technical nature, with a view to achieving
progressively, by legislation or other appropriate means, the full realization of the rights implicit in the economic, social,
educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by
the Protocol of Buenos Aires, by legislative or other appropriate means.”
155
Article 2 of the American Convention stipulates: “Where the exercise of any of the rights or freedoms referred to in
Article 1 is not already ensured by legislative or other provisions, the States Parties undertake to adopt, in accordance with
their constitutional processes and the provisions of this Convention, such legislative or other measures as may be necessary
to give effect to those rights or freedoms.”
35
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents