CONCURRING OPINION OF JUDGE SERGIO GARCIA-RAMIREZ TO THE
JUDGMENT IN YATAMA v. NICARAGUA OF JUNE 23, 2005
A)
Categories of violations. Individuals and members of groups or communities
1.
The Inter-American Court has heard cases concerning isolated violations
committed against individuals, which may be reduced to one specific case or reveal a
pattern of behavior and suggest measures designed to avoid renewed violations of a
similar kind against many people. The Court has also heard cases of violations that
affect numerous members of a human group and reflect attitudes or situations with a
general scope and even deep historical roots.
2.
This second category of issues leads to reflections, based on a specific case
and certain individualized victims, on the situation of the members of this group and
even the group itself, without in any way exceeding the jurisdictional attributes of
the Inter-American Court, since each decision refers to a concrete presumption and
decides on it, even though it may lead to reflections and criteria that could be useful
for examining other similar situations. If these are posed before the same
jurisdiction, they would be examined individually, but case law elaborated on other
occasions would contribute to this examination.
3.
Furthermore, the idea that case law, which is rationally developed, pondered
and reiterated – until it constitutes “consistent case law” – can be extended to
situations with the same conditions de facto and de jure that have determined it, is
entirely consequent with the work of an international treaty-based tribunal, such as
the Inter-American Court of Human Rights, which is called on to apply the American
Convention on Human Rights and other multilateral instruments that grant it
material jurisdiction.
4.
The regional human rights tribunal is not another instance for the review of
resolutions of judicial bodies, but a unique international instance, created to define
the scope of the human rights contained in the American Convention, by applying
and interpreting it. The Convention itself has established this, and the Court has
understood it likewise, and this is recognized with increasing uniformity and
emphasis, by the highest courts of the countries of the Americas, whose acceptance
of the Inter-American Court’s case law is one of the most recent, valuable and
encouraging characteristics of the development of the jurisdictional protection of
human rights throughout the continent.
5.
The Court’s deliberations are described in all the cases submitted to its
consideration, and also in the advisory opinions it issues. They have acquired their
greatest importance in cases concerning members of minority groups – generally,
indigenous and ethnic communities – present in different national societies, when
examining factors relating to elimination, exclusion, marginalization or
“containment.” These are expressions or elements of the violation of rights exercised
with different levels of intensity. They follow the same line of conduct and reveal
different moments of the historical processes of which they form part. They possess
specific characteristics and imply a violation or an imminent risk of violation of the
principles of equality and non-discrimination, in different areas of social life. They
translate into the violation of numerous rights.
6.
When examining these cases, the Court has always recalled the objective
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