it can be seen that classes take place under a roof, with no walls, in the open air.254 In
addition, the State does not provide any type of program to prevent students from
abandoning their studies.
*
*
*
214. In short, this Court emphasizes that the assistance provided by the State under
Decree No. 1830 of April 17, 2009, has been insufficient to overcome the conditions of
special vulnerability of the Xákmok Kásek Community verified in the decree.
215. The situation of the members of the Community is closely tied to its lack of its
lands. Indeed, the absence of possibilities for the members to provide for and support
themselves, according to their ancestral traditions, has led them to depend almost
exclusively on State actions and be forced to live not only in a way that is different
from their cultural patterns, but in squalor. This was noted by Marcelino López,
Community leader, who said, “[i]f we have our land, then everything else will improve
and, above all, we will be able to live openly as indigenous people; otherwise, it will be
very difficult to survive.”255
216. On this point, it should be noted that, as the United Nations Committee on
Economic, Social and Cultural Rights has said, “in practice, poverty seriously restricts
the ability of a person or a group of persons to exercise the right to take part in, gain
access and contribute to, on equal terms, all spheres of cultural life, and more
importantly, seriously affects their hopes for the future and their ability to effectively
enjoy their own culture.”256
217. Consequently, the Court declares that the State has not provided the basic
services to protect the right to a decent life of a specific group of individuals in these
conditions of special, real and immediate risk, and this constitutes a violation of Article
4(1) of the Convention, in relation to Article 1(1) thereof, to the detriment of all the
members of the Xákmok Kásek Community.
2.
The deaths that have occurred in the Community
218. The representatives asked that the State be declared internationally responsible
for the death of several members of the Community. In contrast, the Commission
indicated that it “lacked evidence to determine if each death described by the
representatives [was] indirectly related to the Xákmok Kásek Community’s possibility
of acceding to its ancestral territory.” The State objected that its international
responsibility could not be declared and contested the representatives’ allegation.
219. In its application, the Commission presented three lists with the names of
various members of the Community who had died. In addition, the representatives
presented a list with the names of 44 individuals, 38 of whom were also on the list
submitted by the Commission,257 while noting that “more people could have died than
254
Cf. Photographs of Elementary School No. 11531 (file of attachments to the State’s final arguments,
tome X, folio 4415).
255
Testimony of Marcelino López, supra note 63, folio 585.
256
United Nations, Committee on Economic, Social and Cultural Rights. General Comment No. 21,
December 21, 2009, E/C.12/GC/21, para. 38.
257
Benigno Corrientes Domínguez, who was said to have died in 1991 at the age of one, does not
appear in the list presented by the representatives in the pleadings and motions brief, but does appear in the
application and in the 2007 census (appendices to the application, folio 2394).
50
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