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scope of its jurisdiction in light of Article 1(2) of the American Convention on Human
Rights, which clarifies the connotation that this international instrument gives to the
concept of “person”: the human being, the individual, as the possessor of rights and
freedoms. The Court cannot go beyond the frontier established by the Convention
that defines its jurisdiction. But, neither can it abstain from the thorough
examination of the issues submitted to it, to define their real characteristics, origins
implications, consequences, etc., in order to understand the nature of the violations
committed, when applicable, and come to an appropriate decision on possible
reparations.
7.
Consequently, in several decisions – particularly in relation to members of
indigenous or ethnic groups – the Court has considered the rights of the individuals,
who are members of the communities or groups, within their necessary,
characteristic, physical framework: the collective rights of the communities to which
they belong: their culture, which endows them with a “cultural identity,” to which
they have a right and which influences their individuality and personal and social
development, and their customs and practices, which coalesce to integrate a point of
reference required by the Court in order to understand and decide the cases
submitted to it. It would be useless and lead to erroneous conclusions to extract the
individual cases from the context in which they occur. Examining them in their own
circumstances – in the broadest meaning of the expression: actual and historical –
not only contributes factual information to understand the events, but also legal
information through the cultural references – to establish their juridical nature and
the corresponding implications.
8.
The Court has also had to examine certain issues relating to other large
human groups, also exposed to violations or victims of violations, even when the
elements of their social identification are different from those that exist in the
contentious cases that I referred to in the previous paragraphs. It has done this,
especially in recent years, in various advisory opinions that have helped clarify the
scope of the human rights of people exposed to rejection, abuse or marginalization;
for example, foreign detainees, in the terms of Advisory Opinion OC-16; children who
commit offences or are subject to measures of public protection, Advisory Opinion
OC-17, and migrant workers, especially if they are undocumented, in Advisory
Opinion OC-18. I have added separate opinions to these three opinions. I refer to
what I said in them.
9.
The Inter-American Court has also examined pending issues relating to
groups of people with professional or occupational connections or the same interests.
In these cases, it has been necessary to order provisional measures in the terms of
Article 63(2) of the Convention, in order to preserve rights and maintain unharmed
the juridical prerogatives they protect. In these cases, the Court has gone further, an
advance explained and justified taking into account the inherent characteristics of
the cases submitted and the very nature of provisional measures. Indeed, the Court
has ruled on immediate precautionary protection in relation to many unidentified
persons, whose rights were in grave danger. These are not measures for a group, a
corporation, an association, a people, but rather for each member: physical persons,
possessors of the endangered rights.
10.
This new scope of international protection, produced by the evolution of interAmerican case law – which could advance even further to the extent allowed by the
reasonable interpretation of the Convention – occurred following the order on
provisional measures in the Case of the Peace Community of San José de Apartadó,
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