23
76.
In the jurisprudence of the Inter-American Court, the interpretative norm of Article
29 of the American Convention has been utilized in order to integrate the rights provided for
in both the Convention, as well as in the constitutions and domestic laws.
77.
The Inter-American Court has recognized that, in conformance with Article 29(b) of
the American Convention – which precludes a restrictive interpretation of rights – an
evolutionary interpretation of the American Convention, in relation to the international
instruments on the protection of human rights, is evident,116 which, in turn, leads to the
affirmation that human rights treaties are living instruments, whose interpretation must go
hand in hand with evolving times and current living conditions 117 The Inter-American Court
has found that such an evolutionary interpretation is consistent with the general rules of
interpretation set forth in Article 29 of the American Convention, as well those set forth in
the Vienna Convention on the Law of Treatises.118 In this regard, when interpreting the
American Convention, the alternative that is most favorable to protection of the rights
enshrined in said treaty must always be chosen, based on the principle of the rule most
favorable to the human being.119
78.
Although the Inter-American Court, in its usual exercise, only has authority to apply
the treaties of the Inter-American System over which it has jurisdiction, it is also common
to find an integrative exercise of the rights when international standards are taken into
account – at a strictly interpretative level – from the European or African systems, or the
Universal Human Rights Systems.
79.
For instance, in analyzing the content and scope of Article 21 of the American
Convention in relation to the communal property of the members of indigenous
communities, the Inter-American Court has taken into account Convention No. 169 of the
ILO in the light of the general interpretation of rules established under Article 29 of the
Convention, in order to construe the provisions of the aforementioned Article 21 in
accordance with the evolution of the Inter-American system considering the development
that has taken place regarding these matters in international human rights law.120 In
Convention, [La interpretación conforme. El modelo constitucional ante los tratados internacionales sobre derechos
humanos and el control de convencionalidad], México, Porrúa-IMDPC, 2013, p. 184 and ss.
116
Cf. Case of the Mayagna (Sumo) Awas Tingni Community V. Nicaragua. Merits, Reparations and Costs.
Judgment of August 31, 2001. Series C No. 79, para. 148.
117
Cf. Case of the Mapiripan Massacre V. Colombia. Merits, Reparations and Costs. Judgment of September
15, 2005. Series C No. 134, para. 106.
118
Cf. Case of the Mapiripán Massacre V. Colombia, Merits, Reparations and Costs. Judgment of September,
15, 2005. Series C No. 134, para. 106.
119
Cf. Case of Ricardo Canese V. Paraguay. Merits, Reparations and Costs. Judgment of August 31, 2004.
Series C No. 111, para. 181; Case of Herrera Ulloa V. Costa Rica. Preliminary Objections, Merits, Reparations and
Costs. Judgment of July 2, 2004. Series C No. 107, para. 184; and Case of Baena Ricardo et al. V. Panamá. Merits,
Reparations and Costs. Judgment of February 2, 2001. Series C No. 72, para. 189.
120
Costs.
Tingni
paras.
Costs.
See, for example: Case of the Yakye Axa Indigenous Community V. Paraguay. Merits, Reparations and
Judgment of June 17, 2005. Series C No. 125.paras. 124 to 131, and Case of the Mayagna (Sumo) Awas
Community V. Nicaragua. Merits, Reparations and Costs. Judgment of August 31, 2001. Series C No. 79,
148 and 149; and Case of Sawhoyamaxa Indigenous Community V. Paraguay. Merits, Reparations and
Judgment of March 29, 2006. Series C No. 146, para. 117.
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