7
rules, and legal system of the indigenous peoples concerned.”16 In this same
sense, Articles 15 and 16 of Convention 169 of the ILO refer to compensations of
which the peoples or communities are the beneficiaries.
28. The legal concept of collective reparation corresponds to the understanding that:
i) indigenous communities are entitled to human rights; ii) these rights are
different to the rights of each member of the Community and to the addition of
these, and iii) these rights are not assimilable to the collective rights of other
social groups.17 Additionally, we must recall that the damage suffered by an
indigenous or tribal community is collective, but this does not mean it is less
concrete. The difference with the damage suffered by an individual is that
collective damage is caused to a group as a whole and it is not comparable to the
sum of individual damages.
29. After having pointed out some of the elements of a collective reparation, it is
especially important to emphasize the difference between this reparation and the
States’ general duties in human rights’ issues. The beneficiaries of these State
obligations are generally citizens and other people under the State’s jurisdiction.
Similarly, the State can implement public policies addressed to favoring certain
groups in dealing with social and economic inequalities.
30. For example, Article 2 of Convention 169 of the ILO establishes the States’ duty
to adopt measures that, inter alia, promote “full realization of the social,
economic, and cultural rights of these peoples with respect for their social and
cultural identity, their customs and traditions and their institutions; and […] that
assist the members of the people concerned to eliminate socio-economic gaps
that may exist between indigenous and other members of the national
community, in a manner compatible with their aspirations and ways of life.” These
types of measures are directed to improving the quality of life and general
wellbeing of the members of indigenous and tribal peoples and, therefore, can
have a compensating effect. However, they cannot be confused with collective
reparation.
31. In this case, the measure of reparation ordered consisting in the creation of a
Community development fund is not addressed to the State implementing
measures to improve the life situation of the Garífuna Community of Triunfo de
la Cruz and the other residents of the area. The aforementioned is, in the end, a
permanent obligation of the State regarding all its citizens and Garífuna citizens
in particular.
32. The main difference between a collective reparation and a public policy addressed
to economic and social development lies in the fact that the objective of the first
one is to repair a specific damage caused by a violation perpetrated by the State
of a right included in the American Convention, in detriment of the Community
and its members, while the second one is addressed to implementing a general
obligation of the State in human rights matters (specifically economic, social, and
cultural rights).
16
See also Articles 20(2) and 32(3) of the United Nations Declaration on the Rights of Indigenous
Peoples.
17
Constitutional Court of Colombia, judgment T-514 of 2009.