5
18. These third parties are not a part of the litigation of the case before the Court and
therefore any possible violations to their rights are not part of the factual framework of
the case submitted to the Court and cannot be resolved by it due to formal considerations
of the design of the Inter-American Human Rights System.
19. Taking into consideration all the above, it is desirable that the Court continue with
its practice of carrying out this type of diligences in cases in which it is useful or
necessary to clarify the factual situation, contribute to the achievement of the purposes
of Judgments issued by the Court, especially in what refers to the determination of
possible violations to human rights and the resolution of the controversies presented.
Likewise, it may be convenient, and on occasions necessary, to consider the possibility
of carrying out these types of judicial diligences during the monitoring of compliance of
Judgments by the Court, precisely to verify the situation in situ after the issuing of the
judgment and to guarantee that its implementation at a domestic level does not result
in activities that may damage third parties.
C. The logic of the collective measure of reparation consisting in the creation
of a Community development fund
20. In the judgment, the Court ordered as a measure of reparation for pecuniary and
non-pecuniary damages a collective compensation through a Community development
fund. In the following paragraphs, I would like to present some aspects regarding the
legal nature of this measure of reparation and, specifically, point out the distinction or
difference between this measure of reparation and the States’ permanent and general
obligations to guarantee its citizens’ human rights.
21. For these purposes, below we will analyze: i) the difference between the collective
reparation and the States’ general obligations in matters of human rights; ii) the Court’s
case law regarding the juridical personality of indigenous or tribal peoples and collective
damage, and iii) aspects regarding the administration of the Community Development
Fund.
(i)
The difference between collective reparation and the States’ general
obligations in matters of human rights
22. In the judgment, the following measure of reparation was ordered:
Given that the State was found responsible of the violation of Articles 2, 21, 8, and 25 of the
Convention, as well as that due to the fact that the variety of measures of reparation requested by
the representatives seek to, as a whole, benefit the Community of Triunfo de la Cruz, the Court
considers it appropriate to analyze those measures in light of the creation of a Community
development fund as compensation for the pecuniary and non-pecuniary damage suffered by the
members of the Community. In this sense, this Fund is additional to any other present or future
benefit that may correspond to the Community of Triunfo de la Cruz in relation to the State’s general
development duties.13
23. Additionally, taking into consideration: “i) dispossession of their territory; ii) the
damages caused to it, and iii) that indigenous people have the right to conservation and
protection of the environment and the productive capacity of their territories and natural
resources,” the Court established that “the Fund must be destined, pursuant to the
agreements reached with the Community of Triunfo de la Cruz, to: i) developing projects
13
Para. 295 of the judgment.