the Inter-American Court evaluated the provision of each of these services in a separate
section, in light of the main relevant international standards and the measures adopted by
the State, using the General Comments of the United Nations Committee on Economic,
Social and Cultural Rights. 88
51.
Furthermore, in the Case of the Kichwa Indigenous People of Sarayaku v. Ecuador,
the Court interpreted the right to prior, free and informed consultation of the indigenous
and tribal peoples and communities within the rights to their own culture and cultural
identity recognized in ILO Convention No. 169. Thus, the absence of consultation in this
specific case gave rise to the violation “of the right to the communal property of the
Sarayaku People, recognized in Article 21 of the Convention, in relation to the right to
cultural identity, in the terms of Articles 1(1) and 2 of this instrument.” 89
52.
In the Case of Chitay Nech v. Guatemala, the Inter-American Court established that
the general obligation of States to promote and protect the cultural diversity of the
indigenous peoples gives rise to the special obligation to guarantee the right to cultural life
of indigenous children and, to this end, it interpreted Article 30 of the Convention on the
Rights of the Child and comments of its Committee, which provide content to Article 19 of
the American Convention, and determined that, to ensure the full and harmonious
development of their personality in keeping with their world view, indigenous children
preferably need to develop and grow up in their own natural and cultural surroundings,
because they possess a distinctive identity that connects them to their land, culture, religion
and language. 90
53.
In the Case of the Las Dos Erres Massacre v. Guatemala, in order to analyze State
responsibility in relation to the rights to a name (Article 18), of the family (Article 17) and of
the child (Article 19) of the American Convention, the Court considered that the right of
everyone to receive protection against arbitrary and illegal interference in their family is an
implicit part of the rights to the protection of the family and of the child. This is based on
the express recognition in Articles 12(1) of the Universal Declaration of Human Rights, V of
the American Declaration of the Rights and Duties of Man, 17 of the International Covenant
on Civil and Political Rights, 11(2) of the American Convention on Human Rights, 8 of the
European Convention on Human Rights, 4(3) of Protocol (II) Additional to the Geneva
Conventions of 12 August 1949 (hereinafter “Protocol II”) and the Convention on the Rights
of the Child. 91
88
Cf. Case of the Xákmok Kásek Indigenous Community, supra, paras. 215 and 216, paras. 194 to 217.
Citing the following: U.N. Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 15.
The right to water (arts. 11 and 12 of the Covenant), (twenty-ninth session, 2002), U.N. Doc. HRI/GEN/1/Rev.7 at
117 (2002); CESCR, General Comment No. 12, 12 May 1999, E/C.12/1999/5, paras. 6 to 8; CESCR, General
Comment No. 13, 8 December 1999, E/C.12/1999/10, para. 50; CESCR, General Comment No. 21, 21 December
2009, E/C.12/GC/21, para. 38; ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent
Countries, Article 27.1; Paul Hunt. Report of the Special Rapporteur on the right of everyone to the enjoyment of
the highest attainable standard of health, A/HRC/14/20/Add.2, 15 April 2010.
89
Case of the Kichwa Indigenous People of Sarayaku, supra, para. 232.
90
Cf. Case of Chitay Nech et al. v. Guatemala. Preliminary objections, merits, reparations and costs.
Judgment of May 25, 2010. Series C No. 212, paras. 164 to 170. See also, UN. Committee on the Rights of the
Child. General Comment No. 11 (2009). Indigenous children and their rights under the Convention, 12 February
2009, para. 82.
91
Cf. Case of the Las Dos Erres Massacre v. Guatemala. Preliminary objection, merits, reparations and costs.
Judgment of November 24, 2009. Series C No. 211, paras. 188, 190 and 191.
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