160. Based on all the above, one of the fundamental guarantees to ensure the participation of
indigenous peoples and communities in decisions regarding measures that affect their rights and, in
particular, their right to communal property, is precisely the recognition of their right to
consultation, which is established in ILO Convention No. 169, and other complementary international
instruments.178
161.
On other occasions,179 this Court has indicated that human rights treaties are living
instruments, the interpretation of which must evolve over time and reflect current living conditions.
This evolutionary interpretation is consistent with the general rules of interpretation established in
Article 29 of the American Convention, as well as in the Vienna Convention on the Law of Treaties.
Thus, the Court has stated that, when interpreting a treaty, it is necessary to take into account not
only the agreements and instruments formally related to it (Article 31(2) of the Vienna Convention),
but also the system of which it forms part (Article 31(3) of this instrument).180 This Court has also
considered that it could “address the interpretation of a treaty provided it is directly related to the
protection of human rights in a Member State of the inter-American system,”181 even if that
instrument does not belong to the same regional system of protection.182 Thus, the Court has
interpreted Article 21 of the Convention in the light of domestic law concerning the rights of
members of the indigenous and tribal peoples in cases involving Nicaragua,183 Paraguay184 and
Suriname,185 for example, also taking into account ILO Convention No 169.186
Constitution is related to a progressive effort of historical construction, during which it is essential that the public domain, and
with this the political system, are open to constant recognition of new social actors. Consequently, it is only possible to speak
of a true, representative and participative democracy when the formal and substantive composition of the system maintains
an adequate correlation to the diverse forces of which society is composed, and allows all of them to participate in the
adoption of decisions that concern them. This is particularly important in a social rule of law, which presupposes the existence
of a profound interrelationship between the traditionally separate concepts of “State” and “Civil Society,” and which seeks to
overcome the traditional notion of democracy, seen simply as formal government of the majority, in order to better adapt it
to the reality and include within the public debate, as active subjects, different social groups, minorities or those in the
process of consolidation, thereby fostering their participation in decision-making processes at all levels.
178
Cf. Case of the Saramaka People v. Suriname. Preliminary objections, merits, reparations and costs, para. 134. Also
see ILO Convention No. 169, articles 6 and 17, and the United Nations Declaration on the Rights of Indigenous Peoples,
Articles 19, 30(2), 32(2) and 38.
179
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law.
Advisory Opinion OC-16/97 of November 14, 1997. Series A No. 15, para. 114, Case of the “Street Children” (Villagrán
Morales et al.), Merits, para. 193, and Case of the G me Pa uiyauri rothers. Merits, reparations and costs, Judgment of
July 8, 2004. Series C No 110, para. 165.
180
Cf. The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law,
para. 113; Case of the “Street Children” (Villagrán Morales et al.) v. Guatemala, Merits, paras 192 and 193, and Case of
Bueno Alves v. Argentina. Merits, reparations and costs. Judgment of May 11, 2007. Series C No. 164, para. 78.
181
“Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention on Human
Rights), Advisory Opinion OC-1/82 of September 24, 1982. Series A No. 1, para. 21; Interpretation of the American
Declaration on Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights.
Advisory Opinion OC-10/89 of July 14, 1989. Series A No. 10, para. 44, and Juridical Status and Human Rights of the Child.
Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 22.
182
Cf. Juridical Status and Human Rights of the Child, para. 22. See also The Right to Information on Consular
Assistance in the Framework of the Guarantees of the Due Process of Law, para. 109, and “Other Treaties” Subject to the
Consultative Jurisdiction of the Court (Art. 64 American Convention on Human Rights), paras. 14, 32 and 38. Furthermore,
“no good reason exists to hold, in advance and in the abstract, that the Court lacks the power to receive a request for, or to
issue, an advisory opinion about a human rights treaty applicable to an American State merely because non-American States
are also parties to the treaty or because the treaty has not been adopted within the framework or under the auspices of the
inter-American system.” “Other Treaties” Subject to the Consultative Jurisdiction of the Court (Art. 64 American Convention
on Human Rights), para. 48, and Juridical Status and Human Rights of the Child, para. 22.
183
Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, paras. 148 to 153.
184
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, reparations and costs, paras. 138 and 139,
and Case of the Sawhoyamaxa Indigenous Community v. Paraguay, paras. 122 and 123, and Case of the Xákmok Kásek
Indigenous Community v. Paraguay, para. 143.
185
Cf. Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and costs, paras. 106 and
117, and Case of the Moiwana Community v. Suriname, Preliminary objections, merits, reparations and costs, para. 86.39 to
86.41.
40
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