75
the human beings within their respective jurisdictions. This Court, therefore, must
adopt the proper approach to consider this question in the context of the evolution of
the fundamental rights of the human person in contemporary international law.195
129. It is also necessary to take into account that, in view of Article 29(b) of the
Convention, none of its provisions can be interpreted as “restricting the enjoyment or
exercise of any right or freedom recognized by virtue of the laws of any State Party
or by virtue of another convention to which one of the said states is a party.”
130. ILO Convention No. 169 contains numerous provisions pertaining to the right
of indigenous communities to communal property, which is addressed in this case,
and said provisions can shed light on the content and scope of Article 21 of the
American Convention. The State ratified and included said Convention 169 in its
domestic legislation by means of Law No. 234/93.
131. Applying said criteria, this Court has underlined that the close relationship of
indigenous peoples with the land must be acknowledged and understood as the
fundamental basis for their culture, spiritual life, wholeness, economic survival, and
preservation and transmission to future generations.196
132. In this regard, witness Albino Fernández, a teacher and member of the Yakye
Axa Community, explained in his affidavit statement that
[w]e conduct our celebrations in the Community, but not in our lands, we cannot fully
follow the tradition, we cannot make the celebrations complete.
[…]
Our ancestors’ cemetery, where the Community buried the elderly who lived and died
there, is in our lands, in the Yakye Axa lands, east of the core area of Loma Verde
estate. If we recover our lands, we will continue burying our dead there. To change and
improve this situation as a whole, we need our lands. Without our lands the teacher
suffers, the boys and girls suffer, and their parents suffer.
[…]
In our lands we could also preserve our language and our traditional culture and teach
them at school.
133.
Tomás Galeano, leader of the Community, in turn stated that:
we think of going to Yakye Axa because there we have everything, […] according to our
culture, the forest, the animals, there we can conduct our cultural festivity within the
territory of Yakye Axa for this cultural practice.
134.
In this regard, Tomás Galeano explained that
the festivity consists, our culture consists [of] harmony, tranquility. Also […] this can
include people who cure those who are sick, who cure their community, who protect
their people, for that reason our children were very well before, and our grandchildren
195
Juridical Condition and Rights of the Undocumented Migrants. Juridical Condition and Rights of
the Undocumented Migrants Advisory, Opinion OC-18/03 of September 17, 2003. Series A No. 18, para.
120, and see The Right to Information on Consular Assistance in the Framework of the Guarantees of the
Due Process of Law, supra note 191, para. 115.
196
See Case of the Plan de Sánchez Massacre. Reparations (Art. 63(1) American Convention on
Human Rights). Judgment of November 19, 2004. Series C No. 116, para. 85, and Case of the Mayagna
(Sumo) Awas Tingni Community, supra note 176, para. 149.
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