13
52. In subsequent cases, as well as in this judgment, the Court has repeated that the
injured party is the indigenous or tribal Peoples and their members. 43
53. Taking this into consideration, it can be verified that in the Court’s case law there
is now an agreement between the right to collective property and those entitled
to this right, namely the Community and its members, who are also beneficiaries
of the measures of reparation. It is also acknowledged that the impact of the
violations on the Community have a specific nature that must be recognized. It
is necessary to add this to the collective compensation.
54. Collective compensation is maybe the only way in which the specific damage
suffered by the Community as a whole, which is different to the damage suffered
by its members as individuals, can be adequately redressed, even when they are
both intimately related.44 As established by the Court in the Case of the Yakye
Axa Indigenous Community v. Paraguay: “reparations take on a special collective
significance”45 when they refer to an indigenous or tribal group.
55. In fact, only granting individual reparations in cases of indigenous or tribal
peoples, besides being inconsistent with their world view and collective way of
life, may affect the communities’ social and cultural fabric and cause division
between its members because it is contrary to their customs and traditions.
Therefore, the collective compensation measure, ordered in this case through a
Community development fund, and not the payment of individual reparations to
its members, must be the general rule in cases dealing with indigenous and tribal
peoples,. The most obvious exception to this general rule would be the cases
dealing with specific damages caused in detriment of certain individuals,
members of a Community.
(iii)
Aspects regarding the administration of the Community development fund
56. In previous cases, for the first time in the Case of the Yakye Axa Indigenous
Community v. Paraguay, the Court ordered, along with the creation of a
Community development fund, the establishment of an “implementation
committee” which would determine “[t]he specific components of said projects
[educational, housing, agricultural, and health in benefit of the members of the
Community].” The mentioned committee would have a representative appointed
43
Case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano
and their Members v. Panama. Preliminary Objections, Merits, Reparations, and Costs. Judgment of October
14, 2014. Series C No. 284, para. 209; Case of the Afro-descendant Communities displaced from the Cacarica
River Basin (Operation Genesis) v. Colombia. Preliminary Objections, Merits, Reparations, and Costs.
Judgment of November 20, 2013. Series C No. 270, fourth operative paragraph and para. 257.
44
Cfr. United Nations, Human Rights Committee, General Comment No. 23, U.N. Doc.
CCPR/C/21/Rev.l/Add.S, of April 26, 1994, para. 6(2): “[a]lthough the rights protected under Article 27 [of
the Covenant on Civil and Political Rights] are individual rights, they depend in turn on the ability of the
minority group to maintain its culture, language, or religion.”
45
Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations, and Costs.
Judgment of June 17, 2005. Series C No. 125, para. 188.