225. Likewise, the Court observes that the State argued that “Article 2 of the American
Convention […] refers not only to regulatory provisions, but also to measures of another nature […],
combining those of an institutional, financial or other similar nature that can be taken together; in
other words and as the Inter-American Court has stated on various occasions, […] in a
comprehensive manner”; also that, “when determining these other measures, the Inter-American
Court’s case law has established that they refer not only to merely administrative or judicial matters,
which are included among the obligations of respect and guarantee referred to in Article 1(1) of the
American Convention, and not under Article 2 [of the Convention]. This characteristic can also be
noted in States that have a common law system, because, under that system, general law is created
not by a jurisdictional decision, but rather by the normative powers of the courts.”
226. In this regard, although the State’s arguments could be accepted in general terms, the Court
observes that the State did not refer to any other mechanism or “other measures” in particular that
might suggest that the absence of regulations on the right to prior consultation in the domestic and
international law applicable to Ecuador did not constitute an obstacle to its effectiveness in this case.
227. Based on all the above, this Court finds that the State is responsible for failing to comply with
its obligation to adopt domestic legal measures established in Article 2 of the American Convention,
in relation to the violations of the rights to consultation, cultural identity and property that have
been declared.
B.8 Right to freedom of Movement and Residence
228. A number of situations are alleged to have occurred in which third parties or even State
agents obstructed or impeded the transit of Sarayaku members along the Bobonaza river.298 It is
clear that the State was aware of situations that affected the free movement of members of the
Sarayaku People along the river. However, insufficient evidence was provided to examine these facts
under Article 22 of the Convention.
229. Nevertheless, the fact that pentolite explosives were buried on the Sarayaku People’s
territory has certainly entailed an unlawful restriction on their movement, and on their hunting and
other traditional activities in certain sectors of their property, owing to the obvious risks to their life
and integrity. However the effects of this situation have been, and will be, examined under their
right to communal property and to prior consultation, as well as under the rights to life and to
personal integrity (infra paras. 244 to 249).
B.9 Freedom of Thought and Expression, Political Rights, and Economic Social and
Cultural Rights
230. As to the arguments made by the Inter-American Commission and the representatives
regarding the alleged violation of Articles 13, 23 and 26 of the Convention, the Court agrees with
the Commission that, in cases such as this one, access to information is vital for effective democratic
monitoring of the State’s management of the activities of exploration and exploitation of natural
resources on the territory of indigenous communities, a matter of evident public interest.299
Nevertheless, the Court considers that, in this case, the facts have been sufficiently analyzed and
the violations conceptualized under the rights to communal property, consultation and cultural
identity of the Sarayaku People, in the terms of Article 21 of the Convention, in relation to Articles
1(1) and 2 thereof; accordingly, it will not rule on the alleged violation of those provisions.
298
In fact, there is evidence that, on November 27, 2002, in response to certain facts alleged by the Sarayaku People,
the Ombudsman ordered, as a precautionary measure, that “no person or authority or official may prevent the free
movement, circulation, navigation or inter-communication of members of the Sarayaku” (supra para. 86).
299
Article 9 of the Inter-American Democractic Charter, approved at the first plenary session, held on September 11,
2001, states that “the promotion and protection of human rights of indigenous peoples […], contribute to strengthening
democracy and citizen participation.”
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