10
before the Commission, it could impair the functioning of the inter-American system and the
principle of equality of arms in the proceedings before the Court, because the opposing party
and the Commission cannot change their positions or their offer of evidence. Thus, both the
representatives and the Inter-American Commission acted in the proceedings before the latter
based on that position adopted by the State in which it did not contest the nature of indigenous
people of the Community and, under those terms, the Commission prepared the Merits Report
and, subsequently, submitted the case to the Court. In this sense, the Court recalls that
pursuant to international practice, a State that has adopted a specific position, which has legal
effects, cannot later, by virtue of the estoppel principle, assume another behavior that
contradicts the first one and that changes the state of things on which the other party based
its actions.19
23.
Therefore, in accordance with the principles of estoppel, good faith, procedural
equality, and legal certainty, in this case the Court considers that the State cannot
substantially change its position regarding that stated in the domestic proceedings, before
the Inter-American Commission, and before the Court in its answering brief, upon presenting
at the public hearing before the Court a hypothesis related to the disregard of the Garífuna
Community of Triunfo de la Cruz as indigenous or tribal people. Thus, the Court rejects this
new argument presented by the State, without detriment to that stated in the chapter on
Facts of this judgment.
B. Regarding the facts related to the “Indura Beach and Golf Resort” project
24.
In its Merits Report, the Commission stated that as of August 2005 a tourism
megaproject called “[t]he Micos Beach & Golf Resort” or “Tela Bay” would be executed at the
Tela Bay. The representatives stated that the current name for this project is “Indura Beach
and Golf Resort” and that it was “carried out without consulting the Community” and that “the
execution of the project was rejected by the members of the Community.”
25.
On the other hand, the Court verified that on August 6, 2014 the representatives asked
the Court to order provisional measures in favor of the Garífuna Community of Barra Vieja,
given that said Community was “about to be evicted by elements assigned to the Ministry of
Security of Honduras” and they stated that “this situation w[ould be] related to the case of
[the Garífuna Community of] Triunfo de la Cruz and other [G]arífuna [C]ommunities in the
Tela Bay.” As indicated in said request, the Community of Barra Vieja was located “at the
entrance” of the Tela Bay tourism project, allegedly “one of the main reasons for the eviction
of the Garífuna communities.”20
26.
On October 14, 2014, the Court dismissed the request for provisional measures filed
in favor of the Garífuna Community of Barra Vieja since it was inadmissible, given the fact
that it cannot be concluded that there is a “relationship with the object of the” contentious
“case” of the Garífuna Community of Triunfo de la Cruz, since that case “does not refer to the
Garífuna Community of Barra Vieja or the lands inhabited by that Community.”21 This Court
specifically verified with regard to the relationship between the facts that serve as basis for
the request for provisional measures and the contentious case, which the representatives
provided, in response to a request for additional information from the Court, a map that shows
the location of the Garífuna Communities of Barra Vieja and Triunfo de la Cruz, as well as the
Cfr. Case of Neira Alegría et al. v. Peru. Preliminary Objections. Judgment of December 11, 1991. Series C
No. 13, para. 29, and Case of the Massacre of Santo Domingo v. Colombia. Preliminary Objections, Merits, and
Reparations. Judgment of November 30, 2012. Series C No. 259, paras. 146 and 148.
19
20
Brief of the representatives of August 6, 2014.
Matter of the Garífuna Community of Barra Vieja. Provisional Measures regarding Honduras. Order of the
Inter-American Court of Human Rights of October 14, 2014, whereas clause number ten.
21