7
29. After having pointed out some of the elements of a collective reparation, it is
especially important to emphasize the difference between this reparation and the States’
general duties in human rights’ issues. The beneficiaries of these State obligations are
generally citizens and other people under the State’s jurisdiction. Similarly, the State
can implement public policies addressed to favoring certain groups in dealing with social
and economic inequalities.
30. For example, Article 2 of Convention 169 of the ILO establishes the States’ duty to
adopt measures that, inter alia, promote “full realization of the social, economic, and
cultural rights of these peoples with respect for their social and cultural identity, their
customs and traditions and their institutions; and […] that assist the members of the
people concerned to eliminate socio-economic gaps that may exist between indigenous
and other members of the national community, in a manner compatible with their
aspirations and ways of life.” These types of measures are directed to improving the
quality of life and general wellbeing of the members of indigenous and tribal peoples
and, therefore, can have a compensating effect. However, they cannot be confused with
collective reparation.
31. In this case, the measure of reparation ordered consisting in the creation of a
Community development fund is not addressed to the State implementing measures to
improve the life situation of the Garífuna Community of Triunfo de la Cruz and the other
residents of the area. The aforementioned is, in the end, a permanent obligation of the
State regarding all its citizens and Garífuna citizens in particular.
32. The main difference between a collective reparation and a public policy addressed
to economic and social development lies in the fact that the objective of the first one is
to repair a specific damage caused by a violation perpetrated by the State of a right
included in the American Convention, in detriment of the Community and its members,
while the second one is addressed to implementing a general obligation of the State in
human rights matters (specifically economic, social, and cultural rights).
33. The judgment stated that the measure of reparation of the creation of a Community
development fund is the result of a violation by the State of several rights enshrined in
the Convention (namely the rights included in Articles 2, 21, 8, and 25 of the same).
Therefore, the implementation of this Fund cannot substitute or replace the public policy
measures taken, or to be taken, by the State to improve the situation of the Garífuna
Community of Triunfo de la Cruz and the other Hondurans who live in the area in question
in the judgment. Said public policy measures are the State’s responsibility and are
necessary to improve the quality of life of the residents of the region, as well as to avoid
conflicts between them. Therefore, these public policies can promote a peaceful
coexistence between the different ethnic groups that live in the country (see my
comments infra on the delimitation of lands as a social issue).
34. This means that the creation of the Fund is a pecuniary measure of reparation
additional to the mentioned general obligations of the State. This was expressed in the
judgment when the Court stated that the Fund must be used to carry out works and
services of a collective interest “independently of the public works put aside in the
national budget for that region.”18 Similarly, it was considered that the Community
development fund is “additional to any other present or future benefit that may
Case of Escué Zapata v. Colombia. Merits, Reparations, and Costs. Judgment of July 4, 2007. Series
C No. 165, para. 168.
18