221. The Court recalls that Article 2 of the Convention requires the States Parties to adopt, in
accordance with their constitutional processes and the provisions of the Convention, such legislative
or other measures as may be necessary to give effect to those rights and freedoms protected by the
Convention.293 In other words, the States not only have the positive obligation to adopt the
legislative measures necessary to guarantee the exercise of the rights established in the Convention,
but must also avoid enacting laws that prevent the free exercise of those rights, and ensure that
laws that protect these rights are not annulled or amended.294 In sum, “the State has the obligation
to adopt the necessary measures to make the exercise of the rights and freedoms recognized by the
Convention effective.”295
222. Despite the fact that, under the above-mentioned provisions, the State was obliged to
consult the Sarayaku People, the Court has no information that, before December 9, 2002, the State
had detailed regulations on prior consultation that established, inter alia, the moment at which the
consultation should take place, its purpose, those who should be consulted, the phases of the
implementation of activities for which prior consultation was required, the formalization of decisions
taken during the consultation or the compensation for the socio-environmental damage caused by
the exploitation of natural resources, particularly hydrocarbons. In any case, the 2002 Regulations
for Consultations on Hydrocarbon Activities, which had no impact in this case either, were
subsequently replaced in April 2008 by the Regulations on the Application of Mechanisms for Social
Participation, established in the Environmental Management Act,296 Decree No. 1040, which, as
alleged, does not specifically establish consultation mechanisms, and this was not contested by the
State.
223. Furthermore, the Court notes that the State indicated that it was “in the process of adopting
legislative measures for constitutional harmonization” and that during “the transition period
established in the 2008 Constitution […] itself, the legislative packages to be approved were
indicated as a priority.” In other words, the State acknowledges that, up until its brief in answer to
this case, it did not have any regulatory provisions for constitutional harmonization that ensured the
effective application of the domestic norms on prior consultation.297
224. Therefore, the Court concludes that, even though neither the Commission nor the
representatives explained why the lack of regulations prior to December 2002 constituted a real
obstacle to the effectiveness of the right to prior consultation of the Sarayaku People, the State itself
recognized that it was currently undergoing a period of transition to adapt its regulatory and
legislative provisions in order to make the right to prior consultation effective for the indigenous
peoples of Ecuador.
293
Cf. Case of Genie Lacayo v. Nicaragua. Merits, reparations and costs. Judgment of January 29, 1997. Series C No.
12, para. 50, and Case of Chocrón Chocrón v. Venezuela, Preliminary objection, merits, reparations and costs. Judgment of
July 1, 2011. Series C No. 227, para 140.
294
Cf. Case of Chocrón Chocrón v. Venezuela, para. 140, and Case of Castillo Petruzzi et al. v. Peru. Merits, reparations
and costs. Judgment of May 30, 1999. Series C No. 52, para. 207
295
Cf. Case of the Massacre of Las Dos Erres v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of November 24, 2009. Series C No. 211, para. 240.
296
Cf. Regulations for application of the social participation mechanisms established in the Environmental Management
Act, Decree No. 1040, in the petitioners’ communication of June 10, 2008 (evidence file, tome 8, folio 4154 and ff.).
297
Similarly, the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples
in his November 2010 observations on the progress made and challenges faced in the implementation of the constitutional
guarantees of the rights of indigenous peoples in Ecuador, indicated that the State should “take into account the proposals
made by CONAIE during the discussions held, as well as any new proposals for reform, including in relation to the Mining Act,
the Law on Water Resources, the Law on Intercultural Bilingual Education, the Organic Code on Territorial Organization,
Autonomy and Decentralization, and the Environmental Code, with a view to reaching agreements with indigenous peoples on
these and other laws, and to reform and implement the laws in accordance with the rights of indigenous peoples guaranteed
in the 2008 Constitution and in international human rights instruments.” United Nations, Report of the Special Rapporteur on
the situation of human rights and fundamental freedoms of indigenous peoples, James Anaya, Observations on the progress
made and challenges faced in the implementation of the constitutional guarantees of the rights of indigenous peoples I
Ecuador, A/HRC/15/37/Add.7, 13 September 2010, para. 56.
64
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