3
as can be seen in the joint separate opinion issued by Judge Alirio Abreu Burelli and
I, five years’ ago, adopting a criterion on which I have insisted in other separate
opinions relating to provisional measures that have followed the precedent
established in that case.
B)
Indigenous communities
11.
During its sixty-seventh regular session (June 13 to 30, 2005), the InterAmerican Court deliberated and delivered judgment on several cases in which the
considerations that I am setting out in this opinion attached to the judgment in
YATAMA v. Nicaragua are applicable. Evidently, I refer to the latter, and the final
rulings in the Moiwana Community v. Suriname and in the Indigenous Community
Yakye Axa v. Paraguay; also, to some extent, the order for provisional measures in
the Matter of the Pueblo Indigena de Sarayaku, concerning Ecuador.
12.
These three contentious cases, which have culminated in judgments on
merits and reparations, examine points related to issues that involve the members of
indigenous and ethnic communities, as such – not for strictly personal or individual
motives – and which have their origin or development in the relationship that these
communities have historically kept and still maintain with other sectors of society
and, evidently, with the State itself, a relationship that affects the members of these
groups and has an impact on their human rights. Obviously, this does not refer to
isolated issues or issues exclusive to the States or national societies within which the
conflicts examined in these cases have arisen, although the judgments refer – as is
natural – exclusively to these conflicts and do not attempt – nor could they attempt
– to affect other current or potential cases.
13.
For anyone who studies these issues – and, in any case, for the author of this
opinion – it is interesting to observe that, in other parts of the American continent,
problems such as those examined herein have also arisen, and they have been
brought to the attention of the Court with increasing frequency and have produced
certain developments in its case law. These developments, which are binding in the
sphere of each judgment, could be of interest in a broader sphere – as I have
mentioned above – bearing in mind the great similarity and even sameness of the
juridical, social and cultural conditions – historical and actual – that are found at the
origin of the disputes observed in very diverse national territories.
14.
Some significant precedents should be recalled, as a useful reference for the
identification of certain categories of cases and the definition of the general profile of
our case law. The list begins, probably, with the Case of Aloeboetoe, one of the
oldest in the case history of the Inter-American Court, in which issues associated
with the victims’ membership in a specific minority group were presented. Likewise,
the case of the Mayagna (Sumo) Awas Tingni Community of Nicaragua should be
stressed; this has special relevance since it engendered a wide-reaching examination
of the rights of the members of indigenous communities in an American country. I
also attached a separate opinion to that judgment in which I referred extensively to
these issues.
15.
Evidently, there have been other cases in which issues of membership in
indigenous communities and cultures has been relevant; they reveal the right to
identity and the different implication that this can and does have under the American
Convention. All this invites us to consider that we are not looking at occasional,
isolated cases, circumscribed to a single area, or to ordinary disputes that must be
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