5
convenient that the bodies of the Inter-American System act with as much care
as possible and verify with even greater attention the parties’ arguments and the
evidence referent to the areas in dispute. Visits in situ by the Court that allow it
to get to know, analyze, and broaden its understanding of the situations of third
parties residing in the lands claimed by the Community may be helpful in this
sense. This is necessary to try to avoid, within the Court’s duties or procedural
competences, that the decision offered by it result ineffective or unfair regarding
those third parties that are not part of the litigation before the Court.
18. These third parties are not a part of the litigation of the case before the Court
and therefore any possible violations to their rights are not part of the factual
framework of the case submitted to the Court and cannot be resolved by it due
to formal considerations of the design of the Inter-American Human Rights
System.
19. Taking into consideration all the above, it is desirable that the Court continue with
its practice of carrying out this type of diligences in cases in which it is useful or
necessary to clarify the factual situation, contribute to the achievement of the
purposes of Judgments issued by the Court, especially in what refers to the
determination of possible violations to human rights and the resolution of the
controversies presented. Likewise, it may be convenient, and on occasions
necessary, to consider the possibility of carrying out these types of judicial
diligences during the monitoring of compliance of Judgments by the Court,
precisely to verify the situation in situ after the issuing of the judgment and to
guarantee that its implementation at a domestic level does not result in activities
that may damage third parties.
C. The logic of the collective measure of reparation consisting in the creation
of a Community development fund
20. In the judgment, the Court ordered as a measure of reparation for pecuniary and
non-pecuniary damages a collective compensation through a Community
development fund. In the following paragraphs, I would like to present some
aspects regarding the legal nature of this measure of reparation and, specifically,
point out the distinction or difference between this measure of reparation and the
States’ permanent and general obligations to guarantee its citizens’ human
rights.
21. For these purposes, below we will analyze: i) the difference between the collective
reparation and the States’ general obligations in matters of human rights; ii) the
Court’s case law regarding the juridical personality of indigenous or tribal peoples
and collective damage, and iii) aspects regarding the administration of the
Community Development Fund.
(i)
The difference between collective reparation and the States’ general
obligations in matters of human rights
22. In the judgment, the following measure of reparation was ordered:
Given that the State was found responsible of the violation of Articles 2, 21, 8, and 25 of the
Convention, as well as that due to the fact that the variety of measures of reparation requested by
the representatives seek to, as a whole, benefit the Community of Triunfo de la Cruz, the Court
considers it appropriate to analyze those measures in light of the creation of a Community