2
component of the reparations system is a result of this inevitable difference between
what was and what may be.
2.
Consideration of cultural specificity
The Judgment on reparations referred to in this opinion takes into account how the
fact that the victim and his closest relatives belonged to an indigenous group may
influence the Court’s decision and determine the grounds on which reparations are
ordered, and even their characteristics. In other cases – for example, Aloeboetoe et
al. and the Mayagna (Sumo) Awas Tingni Community – the Court made progress in
evaluating the rights linked to this ethnic factor, with its corresponding cultural
heritage, from which specific rights or particular forms of rights which are generally
observed, derive or could derive.
The evaluation of such rights or the characteristics of the general rights, does not
necessarily qualify the concept of human rights, establishing limitations and
compartments that weaken individual protection. To the contrary, it judiciously
expands the sphere of human rights, recognizes their inherent characteristics –
which are above the common, non-derogable, radical traits of humankind – and
extracts from all this the legal consequences which help to establish and guarantee
the defense of the dignity of the human being, not only in abstract – within the
species – but concretely – within a group, an indigenous ethnic group, a family, a
people; in brief, it recognizes the individuality of the subject with his wide range of
particularities and nuances. Thus, the transfer is made from the generic individual to
the specific individual, who incarnates reality. In making this transfer, law is
enhanced and rights are perfected.
When referring to the obligation of the State and the right of individuals concerning
the discovery, exhumation and delivery of the remains of Efraín Bámaca Velásquez,
the judgment has taken into consideration, on the one hand, the right of the next of
kin of a person who has died to received his mortal remains, independently of any
ethnic, religious, cultural consideration of a particular case. This is a universal,
constant right. On the other hand, this same judgment of the Inter-American Court
has considered the specific relevance that receiving, honoring and adequately
burying these remains has for the Mayan culture, the Mam group, to which the
victim and his next of kin belonged. There is no conflict between these rights, which
are concentric circles or manifestations of one and the same legally protected right.
This essential relationship between the rights does not lead to one being ignored –
that linked to belonging to an indigenous ethnic group – because another is
recognized – the universal right to receive the remains of a relative and bury them
honorably.
3.
Reparations to honor
In my opinion, the decision to publish the chapter on proven facts and the operative
paragraphs of the judgment in the official gazette and another newspaper with
nationwide circulation is pertinent. The former relates to the formal character of the
jurisdictional decision and the latter to the advisability that public opinion should
learn about the conclusions and the meaning of the jurisdictional decision in this
case, as it did – or could have – of the facts that constituted the violation. Thus, the