CONCURRING VOTE OF JUDGE EDUARDO VIO GROSSI JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS OF AUGUST 24, 2010 CASE OF THE XÁKMOK KÁSEK INDIGENOUS COMMUNITY V. PARAGUAY, (MERITS, REPARATIONS AND COSTS), INTRODUCTION 1. With this opinion, I concur with the said judgment, not only because I agree with its contents, but also because it advances in a direction that I consider adapted to law and justice and in accordance with the progressive development of international law concerning the indigenous peoples, which I believe should be intensified. 2. On previous occasions, the Inter-American Court of Human Rights (hereinafter the ICourtHR) has declared violations of human rights with regard to members of indigenous peoples, interpreting Article 1(2) of the American Convention on Human Rights 1 (hereinafter the Convention) in the perspective that the holder of the rights recognized therein is the “person” and that this means “every human being.” 3. Thus, the ICourtHR has consistently declared violations of human rights to the detriment of the members of the indigenous peoples, without, however, doing so, at least directly and explicitly, with regard to them as such; in other words, as a whole or as different ethnic groups or human collectivities with international legal personality in this area. 2 I. RIGHTS OF THE MEMBERS OF THE INDIGENOUS PEOPLES A. Traditional approach 4. On this occasion, the ICourtHR has consolidated its case law in this regard when referring to the members of the Xákmok Kásek Community 3 as victims in this case, and declaring violations of the human rights established in the Convention 4 to their 1 Article 1: 1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 2. For the purposes of this Convention, "person" means every human being.” 2 Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Preliminary objections. Judgment of February 1, 2000. Series C No. 66; Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations, and costs. Judgment of June 17, 2005. Series C No. 125, and Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, reparations, and costs. Judgment of March 29, 2006. Series C No. 146. 3 E.g.: paragraphs 54, 55, 78, 79, 109, 116, 120, 121, 154, 168, 169, 182, 193, 197, 208, 217, 242, 243, 244, 252, 275, 278, 281, 282, 283, 284, 285, 286, 291, 294, 295, 301, 306, 308, 309, 313, 318, 321, 323, etc. 4 Operative paragraphs 2, 3 and 5. 1