85
provisions ILO Convention No. 169.
164. In the chapter on proven facts (supra paras. 50.92 to 50.105) the Court
found that the members of the Yakye Axa Community live in extremely destitute
conditions as a consequence of lack of land and access to natural resources, caused
by the facts that are the subject matter of this proceeding, as well as the
precariousness of the temporary settlement where they have had to remain, waiting
for a solution to their land claim. This Court notes that, according to the statements
of Esteban López, Tomás Galeano and Inocencia Gómez during the public hearing
held in the instant case (supra para. 39.a, 39.b and 39.c), the members of the Yakye
Axa Community could have been able to obtain part of the means necessary for their
subsistence if they had been in possession of their traditional lands. Displacement of
the members of the Community from those lands has caused special and grave
difficulties to obtain food, primarily because the area where their temporary
settlement is located does not have appropriate conditions for cultivation or to
practice their traditional subsistence activities, such as hunting, fishing, and
gathering.
Furthermore, in this settlement the members of the Yakye Axa
Community do not have access to appropriate housing with the basic minimum
services, such as clean water and toilets.
165. These conditions have a negative impact on the nutrition required by the
members of the Community who are at this settlement (supra para. 50.97).
Furthermore, as has been proven in the instant case (supra paras. 50.98 and 50.99),
there are special deficiencies in the education received by the children and lack of
access to health care for the members of the Community for physical and economic
reasons.
166. In this regard, the United Nations Committee on Economic, Social, and
Cultural Rights, in General Comment 14 on the right to enjoy the highest attainable
standard of health, pointed out that
[i]ndigenous peoples have the right to specific measures to improve their access to
health services and care. These health services should be culturally appropriate, taking
into account traditional preventive care, healing practices and medicines […].
[I]n indigenous communities, the health of the individual is often linked to the health of
the society as a whole and has a collective dimension. In this regard, the Committee
considers that [...] denying them their sources of nutrition and breaking their symbiotic
relationship with their lands, has a deleterious effect on their health.205
167. Special detriment to the right to health, and closely tied to this, detriment to
the right to food and access to clean water, have a major impact on the right to a
decent existence and basic conditions to exercise other human rights, such as the
right to education or the right to cultural identity. In the case of indigenous peoples,
access to their ancestral lands and to the use and enjoyment of the natural resources
found on them is closely linked to obtaining food and access to clean water. In this
regard, said Committee on Economic, Social and Cultural Rights has highlighted the
special vulnerability of many groups of indigenous peoples whose access to ancestral
lands has been threatened and, therefore, their possibility of access to means of
205
UN. Doc. E/C.12/2000/4. The right to the highest attainable standard of health (Article 12 of the
International Covenant on Economic, Social and Cultural Rights), (22d session, 2000), para. 27.
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