2
6.
These criteria, ratified in the Whereas section of the judgment in the case of the
“Yake Axa indigenous community,” in the course of an analysis of Article 4(1) of the
Convention, are part of the Court’s contribution to an evolutionary interpretation of
international human rights law. Said criteria also include acknowledgment of the right
to life aspirations, broadening of the concept of the victim, inclusion of the victim in the
contentious proceeding through amendments to the rules of procedure, the right to
consular assistance of persons detained by the police or the judiciary, as part of the
right to due process, and acknowledgment of the labor rights of undocumented
migrants.
7.
Therefore, my dissenting opinion is not because I believe that the Court, in
operative paragraph 4 of the judgment, has distanced itself from the broad
interpretation of the right to life, in this case to the detriment of sixteen members of the
Yakye Axa indigenous community, but rather my dissent is because the evidence was
not assessed in a manner consistent with the criteria that this Court has asserted on
that issue.
8.
When it examined the evidence submitted at the respective hearing, the Court
included the statement or report of expert witness Pablo Balmaceda Rodríguez as
follows:
Blood and fecal tests were conducted on samples taken from the members of
the Community. These studies demonstrated that the members of the Yakye
Axa Community suffer significant parasitism and anemia. Samples were also
taken from the water used by the Community. The study corroborated that the
Community has a single source of non-drinkable water, which is a water
deposit... which is a pool, roughly sixty by forty meters, to store rainwater.
This pool is behind the barbed wire fence of the land they claim, so the
members of the Community have to enter furtively to fetch water for personal
hygiene and use. The water is subject to contact with wild animals and with
livestock raised on the farm.
The huts in which the inhabitants of this community live are very precarious.
They are built with a material that is abundant in the area, a palm from which
they make walls and roofing. When it rains, everything is flooded, including
the rooms in which they live in overcrowded conditions.
Given the
characteristics of the lands of the Chaco, the water is not easily absorbed by
the soil, so all that water remains there without draining. To this we should
add that there are no toilets in the community, for its members to use, for
which reason they use the existing plants. Thus, the rainwater floods the area
and carries the fecal remains with it toward the dwellings and the little
school. Miserable conditions of this abandoned Community make its situation
disastrous.
There is no need to be an expert to corroborate these
circumstances.
9.
The expert witness then referred to the difficulty of obtaining information from
the indigenous people on their next of kin allegedly deceased due to diseases; since
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