A. Facts subsequent to January 26, 2012

B. Determination of the presumed victims

A. Admissibility of the documentary evidence

• 37. The Court received diverse documents presented as evidence by the Commission, the representatives and the State, attached to their main briefs (supra paras. 1, 3, 6 and 7). It also received documents attached to the final written arguments of the representatives and the State (supra para. 11), two documents handed over during the on-site visit, and one document sent later by the criollo settlers (infra paras. 40 and 43, and footnote 27). Videos of the visit were also incorporated into the case file (infra para. 39).

• 38. The Court admits those documents presented at the appropriate moment by the parties and the Commission the admissibility of which was not contested or challenged and whose authenticity was not questioned.Footnote ²⁴ Also, on August 29, 2019, the Court advised the parties and the Commission that it had incorporated evidence, ex officio, and [Page 168] asked the State to provide helpful evidence. The parties and the Commission did not object to the admissibility of this documentation, which has been incorporated into the case file.Footnote ²⁵

• 39. The representatives presented two sets of documents with their final written arguments: (a) a report on flooding at the beginning of 2019, prepared by Luis María de la Cruz, together with his curriculum vitae, and (b) a list of 132 indigenous communities and a series of documents indicating the names of the communities and of the caciques, or in which representatives of indigenous communities state that they are settled in the territory claimed in this case and that they support Lhaka Honhat. On June 5, 2019, the representatives forwarded videos, photographs and audio recordings of the assembly of caciques held on May 17, 2019, during the Court’s visit. On June 18, 2019, the State considered all the preceding documents were time-barred owing to the moment when they were presented and asked the Court to reject them. Also, during the visit and on different days of June 2019, videos on that procedure were presented.Footnote ²⁶

• [Page 169] 40. First, the Court recalls that, on April 26, 2019, the Court’s Secretariat had requested the parties to forward the audiovisual recording of the visit. In addition, the on-site procedure, carried out pursuant to the principle of immediacy, is evidence that will be taken into consideration. The above-mentioned documents cannot, in themselves, be considered as “documentary proof”; rather they play a supporting role, providing an account of what the Court’s two judges witnessed directly. To this extent, the documents are useful. Therefore, the Court admits the videos of the visit forwarded by the representatives and the State. It also considers that the documents received during the visit are useful and admits them pursuant to Article 58 of the Rules of Procedure.Footnote ²⁷ The second set of documents indicated in the preceding paragraph, forwarded by the representatives with their final written arguments are also useful and are admitted.

• 41. The report by Luis María de la Cruz (supra para. 39) was not requested and refers to the 2019 floods, an event that is not part of the factual framework (supra para. 24). Consequently, neither the report nor the author’s curriculum vitae is admissible.

• 42. On June 3, 2019, together with its final written arguments, the State presented Resolution 4811/96 and Resolution 328/2010, which the Court had requested during the public hearing of March 14, 2019. The representatives and the Commission made no observations in this regard. The Court admits these documents because they were requested.

• 43. Lastly, on July 29, 2019, the Court received a document from the following “Associations of Criollo Families”: Organization of Criollo families (OFC), Asociación de Pequeños Productores Real Frontera, Asociación Ganadera 20 de Septiembre, Asociación Vecinos Unidos, Asociación Nuestro Chaco and “some unaffiliated holders of occupancy rights,” with “a comprehensive proposal to resolve the […] land processes in relation to […] Lots […] 55 and 14.”

• 44. The Court has indicated that the criollos are not a formal party to these proceedings (supra para. 36), but notes that the document they forwarded is useful. The Court takes into account the particular [Page 170] circumstances of this case as regards the involvement of the criollo population in the disputed aspects, and also that the testimony of some members of this population has been received both in written statements and during the on-site procedure. Consequently, the Court admits this document based on its authority under Article 58(a) of the Rules of Procedure.Footnote ²⁸

B. Admissibility of the testimonial and expert evidence

• 45. During the public hearing, the Court heard the statement of two caciques of indigenous communities, Francisco Pérez and Rogelio Segundo. It also received the affidavits of Francisco Gómez, Humberto Chenes, Constantino Fortunato, Asencio Pérez and Víctor González, who are members of indigenous communities, and of the witnesses Abraham Ricalde, Zaturnio Ceballos and Oscar Dante Albornoz, criollo settlers. In addition, it received affidavits with the expert opinions of Nancy Adriana Yáñez Fuenzalida, Rodrigo Sebastián Solá, Norma Teresa Naharro and Emiliana Catalina Buliubasich.Footnote ²⁹ All these statements were admitted.

A. Introduction: The indigenous and criollo population on Lots 14 and 55

• 47. Numerous communities of the indigenous peoples Wichí (Mataco), Iyjwaja (Chorote), Komlek (Toba), Niwackle (Chulupí) and Tapy'y (Tapiete) inhabit an area that was previously known as Fiscal Lots 14 and 55 (supra para. 1 and infra para. 80), in the department of Rivadavia, in the Argentine province of Salta, in the Chaco Salteño region. The two lots are adjacent and together cover an area of approximately 643,000 hectares.Footnote ³⁰ The area borders with the Republic of Paraguay and the Plurinational State of Bolivia. None of this is contested.

• [Page 172] 48. Maps showing the location of this territory are included below:

  

  1.

  

  [Page 173] 2.

  

  3.Footnote ³¹

• [Page 174] 49. According to the expert opinions of Ms Naharro and Ms Buliubasich, indigenous people were present in the area prior to 1629 and, therefore, before the establishment of the Argentine State in the nineteenth century. Ms Naharro’s expert opinion indicated that numerous testimonies and documents produced between the eighteenth century and the beginning of the twentieth century “mention the presence of hunter-gatherers in the area of the Pilcomayo [River].” Most of the indigenous people who have continued to live in this place up until today belong to the Wichí ethnic group. Different reports “reveal the importance of their relationship […] with their land and territory, and indicate the threat posed by the development of productive activities that are incompatible with their way of life.” State documentation indicates that the “aboriginal” population of the area belongs to the “so-called Chaco proto-culture” and is composed of “nomadic or semi-nomadic groups with an economy based on hunting, gathering and fishing.”Footnote ³²

• 50. The number of indigenous communities on Lots 14 and 55 is variable owing to the constant dynamic of community fragmentation and fusion that characterizes these peoples (supra para. 33).Footnote ³³ The State and the representatives indicated the existence of more than 2,000 indigenous families. The representatives affirmed that, at May 2018, “the indigenous communities were made up of around 2,031 families and approximately 10,155 persons.” There is no dispute that these are communities of indigenous peoples, or regarding their ancestral ties to the land they inhabit (infra footnote 88).

• 51. The indigenous presence in the area referred to has been constant and, in addition, the land has been occupied from at least the beginning of the twentieth centuryFootnote ³⁴ by individuals identified as “criollos,” in other words non-indigenous settlers or peasant farmers. [Page 175] Colonia Buenaventura was founded in 1902 and the national government transferred 625 hectares to the “criollo” families who settled there; subsequently, more land of the same or a greater area was transferred. However, in 1905, the Salta government advised the national government that lots adjudicated as national fiscal lands might be located within provincial territory and, in fact, later, at least after 1967, it was formally established that the land belonged to the province.Footnote ³⁵

• 52. The parties agree that, currently, the number of criollo families in the area exceeds 465. Argentina indicated that these are “small subsistence farmers who are basically dedicated to cattle raising” on “unfenced land,” “most of them” without hired hands. Several criollo families have installed fencing.Footnote ³⁶

B. Relevant general legislation on indigenous lands

• 53. Before describing the specific facts relating to the territorial claim in this case, the Court will indicate the pertinent State regulations with regard to rights of indigenous peoples. Bearing in mind that Argentina is a federal State and that the facts of this case relate to indigenous communities that inhabit the province of Salta, the Court will, first, refer to the national legislation, and then to that of Salta.

• 54. The Court notes that, at the national level, the following relevant legal provisions exist:

  1. (a) 1985 and 1989. Law 23,302 and Decree 155/1989. National law 23,302 on Indigenous policy and support for the Aboriginal Communities, enacted in 1985, created the National Institute for Indigenous Affairs (INAI).Footnote ³⁷ Its articles 7 to 13 refer to the adjudication of fiscal lands in favor of some of the country’s indigenous communities, establishing that INAI should draw up “plans” for land adjudication.Footnote ³⁸ Law 23,302 was regulated by Decree 155/1989 of [Page 176] the National Executive Branch (PEN),Footnote ³⁹ and, among its provisions, it states that INAI “[s]hall invite the provinces to accede to Law 23,302.” Law 23,302 and Decree 155/89 have remained in force following the 1994 constitutional amendment.

  2. (b) 1992. Law 24,071. Law 24,071 was promulgated on April 7, 1992, adopting Convention 169 of the International Labour Organization (ILO) on Indigenous and Tribal Peoples (hereinafter “Convention 169” or “ILO Convention 169”).Footnote ⁴⁰

  3. (c) 1994. Amendment of the Constitution. On August 22, 1994, the Constitution was amended.Footnote ⁴¹ The pertinent aspect of the reform accorded constitutional rank to international human rights instruments including the American Convention. Article 75.17 established that: “[i]t shall correspond to Congress [… t]o recognize the ethnic and cultural pre-existence of the Argentine indigenous peoples[; … t]o recognize the communal ownership and possession of the lands they traditionally occupy, and to regulate the transfer of other suitable lands that are sufficient for human development, none of which shall be entailed, conveyed or attached.”

  4. (d) 2006. Law 26,160 and subsequent renewals. Law No 26,160 on the Territorial Survey of Indigenous Communities, published on November 29, 2006, was promulgated to respond to the emergency situation with regard to the possession and ownership of lands occupied by indigenous communities in Argentine territory. The justification given by the PEN when submitting the respective bill to Congress indicated that it sought to “contribute to the policies that are already being implemented but that have not yet achieved their objective of recognizing the communal ownership of the lands occupied by the communities.”Footnote ⁴² The text of the law [Page 177] establishes that execution of eviction proceedings and judgments be suspended for four years and that the indigenous territories be surveyed in order to achieve the “legalization of ownership.” The suspension of evictions indicated in the law was extended on several occasions, most recently until the end of 2021.Footnote ⁴³

  5. (e) 2010. Decree 700/2010. PEN Decree 700/2010 of May 20, 2010, set up a committee for the “analysis and legalization of indigenous communal property,” establishing that one of its objectives was to draw up “a bill to officialize a procedure that implements the constitutional guarantee of recognition of indigenous communal land possession and ownership, stipulating its legal nature and characteristics.”

  6. (f) 2010. INAI Resolution 328/2010. INAI Resolution 328/2010, issued on July 19, 2010, created the National Registry of Organizations of Indigenous Peoples (Re.No.Pi.).Footnote ⁴⁴

  7. (g) 2016. National Civil and Commercial Code. On January 1, 2016, Law 26,994, promulgated on October 7, 2014, entered into force, repealing the Civil and Commercial Codes and adopting the National Civil and Commercial Code, applicable at both the national and provincial level. Article 9 of the law indicates that “[t]he rights of the indigenous peoples, in particular to communal property […] shall be subject to a special law,” and article 18 of the new Code establishes that “the recognized indigenous communities have the right to the communal ownership and possession of the lands they traditionally occupy and other suitable lands that are sufficient for human development as established by law pursuant to the provisions of article 75.17 of the Constitution” (italics added).

• [Page 178] 55. In the case of Salta, in 1986, the province adopted Law 6,373 on Promotion of Aboriginal Development, establishing that the “Provincial Institute for Aboriginal People,” set up under this law would carry out a survey of “aboriginal settlements” and then conduct the necessary procedures for the “adjudication” of “ownership” to the land. In 1992, by Law 6,681, Salta acceded to National Law 23,302 on Indigenous policy and support for the Aboriginal Communities. In 1998, the Salta Constitution was amended and the current wording of the relevant part of article 15 recognizes the indigenous peoples’ “communal possession and ownership of the fiscal lands that they traditionally occupy.” In 2000, Salta adopted Law 7,121, concerning the development of the indigenous peoples of Salta. The law created the Provincial Institute of Indigenous Peoples of Salta (IPPIS) and contains a chapter on land adjudication the articles of which include a similar text to the respective articles in Law 6,373. In 2011, Salta issued Decree 3459/11, ratifying a cooperation agreement between the provincial Ministry of Human Development and INAI. In 2014, Decree 3505/14 “to reinforce the legalization process […] to guarantee recognition of the property of the communities.” It ordered the creation of the “Provincial Executing Unit for the Territorial Survey of Indigenous Communities of the province of Salta (U.E.P.Re.Te.C.I.),” “to coordinate” actions between the nation and the province to “survey” “land occupied by the indigenous communities.”

C. Indigenous territorial claims in this case

• 56. The Court will now outline the events following the indigenous land claims. For greater clarity, the incidents that have taken place over almost 35 years (calculated from the initial actions) will be divided into stages. As this Court has been able to note, these respond to changes in State policies regarding indigenous property. Accordingly, the Court will describe: (a) a first stage (prior to 1999), in which the State received the initial claims and took steps towards a unified recognition of ownership; (b) a second stage (1999-2004), during which the State’s policy tended towards a fragmented recognition of ownership; (c) a third stage (2005 and 2006), marked by a referendum on property ownership and the creation of a specific State entity to implement actions concerning land; and (d) a fourth stage (after 2007) during which agreements were signed between criollos and indigenous peoples and steps were taken to implement these.

D. Construction work, activities and projects on the territory claimed

• 86. Information has been presented indicating that illegal logging activities have been carried out in the area of Lots 14 and 55. It has also been indicated that the criollo population raises cattle and has installed fencing. This information is described below (infra paras. 257 to 266).

• 87. The Court will also describe below (infra paras. 177, 178 and 180, and footnotes 165 and 166) facts and indications related to work carried out or planned on the territory in relation to: (a) construction of an international bridge; (b) national highway 86; (c) provincial route 54; and (d) oil and gas exploration.

E. Administrative and judicial actions filed in this case

• 88. Lhaka Honhat filed judicial actions related to the facts of the case: (a) on September 11, 1995, an application for amparo before the Salta Court of Justice (hereinafter also “CJS”) requesting the immediate suspension of the work on the international bridge (supra para. 87 and infra para. 180); (b) on March 8, 2000, an application for amparo against Decree 461/99 and Resolution 423/99 (supra para. 65); and (c) on August 11, 2005, an action before the National Supreme Court of Justice (hereinafter also “CSJN”) requiring a declaratory judgment against the referendum law (supra para. 71). These actions will be dealt with below (infra paras. 297, 300 and 303). Also, in 2017, Lhaka Honhat applied for recognition as an indigenous organization in the administrative jurisdiction (infra footnote 148). There is no record that this application was decided.

A. General considerations on communal property

• 92. The Court will refer to different elements of the right to communal property and finds it useful to establish some general consideration on this right and refer to some aspects regarding which it has developed case law.

• 93. The Court has referred to the content of the right to indigenous communal property and its implications. In 2001, in the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, taking into account different interpretation parameters,Footnote ⁹¹ it established that the [Page 192] right to private property recognized in Article 21 of the Convention included, in the case of indigenous peoples, the communal ownership of their lands.Footnote ⁹² Thus it explained that:

  Among indigenous [people] there is a community tradition that relates to a communal form of collective ownership of the land, in the sense that its possession is not centered on an individual, but rather on the group and its community. Indigenous people, due to their very existence, have the right to live freely on their own territories; the close relationship that indigenous people have with the land should be recognized and understood as the very foundation of their cultures, their spiritual life, their integrity, and their economic survival.Footnote ⁹³

• 94. In 2005, when deciding the case of the Yakye Axa Indigenous Community v. Paraguay, the Court understood that the right to property protects not only the connection of the indigenous communities to their territories, but also “the natural resources these territories contain that are connected to their culture, as well as the intangible elements [Page 193] derived from them.”Footnote ⁹⁴ Then, in the case of the Saramaka People v. Suriname, it indicated that “the right to the use and enjoyment of the territory would have no meaning if it was not connected to the natural resources that are found within that territory.” Consequently, the ownership of the land relates to the “need to ensure the security and permanence of the control and use of the natural resources […], which, in turn, preserves the way of life” of the communities. The resources that are protected by the right to communal property are those that the communities “have used traditionally and that are necessary for the very survival, development and continuity of their way of life.”Footnote ⁹⁵ Therefore, any activities by the State or third parties that could “affect the integrity of the land and natural resources” should respect certain parameters that the State must guarantee: the real participation of the communities concerned; their reasonable benefit; and the prior execution of social and environmental impact assessments.Footnote ⁹⁶

• 95. In addition in the 2001 judgment in the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Court indicated that “the possession of the land should suffice for the indigenous communities […] to obtain official recognition of their communal ownership and its consequent registration.”Footnote ⁹⁷ This action declares the pre-existing right; it does not constitute the right.Footnote ⁹⁸ In its 2005 judgment in the case of the Yakye Axa Indigenous Community v. Paraguay, the Court underscored that the State should not only acknowledge the right to communal property, but should also make this “truly effective in [Page 194] practice.”Footnote ⁹⁹ The Court has indicated that the relationship of the indigenous peoples with the land “is not merely a privilege that is granted to use the land that can be taken away by the State or overshadowed by property rights of third parties, but a right […] to obtain title to their territory in order to guarantee the permanent use and enjoyment of this land.”Footnote ¹⁰⁰ When ruling on the case of the Sawhoyamaxa Indigenous Community v. Paraguay in 2006, the Court stipulated that:

  1. (1) traditional possession of their lands by indigenous people has equivalent effects to those of a state-granted full property title; (2) traditional possession entitles indigenous people to demand official recognition and registration of property title; (3) the members of indigenous peoples who have unwillingly left their traditional lands, or lost possession thereof, maintain property rights thereto,Footnote ¹⁰¹ even though they lack legal title, unless the lands have been lawfully transferred to third parties in good faith; and (4) the members of indigenous peoples who have unwillingly lost possession of their lands, when those lands have been lawfully transferred to innocent third parties, are entitled to restitution thereof or to obtain other lands of equal extension and quality.Footnote ¹⁰²

• [Page 195] 96. The State is obliged to give “geographical certainty” to the communal property as this Court indicated when deciding the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. On that occasion, and in subsequent decisions, the Court referred to the obligation “to delimit” and “to demarcate” the territory, in addition to the obligation to “grant title to it.”Footnote ¹⁰³ For example, in 2014, in the case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama, the Court stated that, “based on the principle of legal certainty, the State obligation to take measures to ensure the right to property of the indigenous peoples necessarily signifies, that the State must demarcate, delimit, and grant title to the territories of the indigenous communities […]. Therefore, failure to comply with these obligations constitutes a violation of the use and enjoyment of the property of the members of the said communities.”Footnote ¹⁰⁴ Demarcation and granting title should result in the peaceful use and enjoyment of the property.Footnote ¹⁰⁵

• [Page 196] 97. In keeping with the foregoing, in 2015, the Court underlined that “based on the principle of legal certainty, the territorial rights of indigenous peoples must be implemented by the adoption of the legislative and administrative measures required to create an effective mechanism for delimitation, demarcation and titling that recognizes those rights in practice” and makes them enforceable before the State authorities or third parties.Footnote ¹⁰⁶ It included similar findings in its 2018 decision in the case of the Xucuru Indigenous People and its members v. Brazil. Footnote ¹⁰⁷

• 98. Based on the above, it is relevant to recall that the State must ensure the effective ownership of the indigenous peoples and, therefore, it must: (a) delimit indigenous lands from others and grant collective title to the lands of the communities;Footnote ¹⁰⁸ (b) “refrain from carrying out actions that may result in agents of the State or third parties acting with its acquiescence or tolerance, adversely affecting the existence, value, use and enjoyment of their territory”;Footnote ¹⁰⁹ and (c) guarantee the right of the indigenous peoples to truly control and use their territory and natural resources,Footnote ¹¹⁰ and to own their territory without any type of external interference from third parties.Footnote ¹¹¹

B. Recognition and determination of communal property

• 99. The Court will now consider the arguments submitted by the Commission and the parties with regard to the recognition and determination of the property. In other words, it will assess the arguments on the alleged absence of appropriate procedure to guarantee the ownership and granting of an adequate property title that would [Page 197] provide legal certainty to the right. It will also examine the obligation to ensure the right to property in relation to the presence of non-indigenous settlers on the claimed territory. These arguments relate to the right to property established in Article 21 of the Convention. The violation of the rights to an effective procedure for the protection of property, to recognition of juridical personality, to freedom of association, and of political rights has also been alleged. These are established, respectively, in Articles 8 and 25, 3, 16 and 23 of the Convention.

C. The right to participate in relation to projects or works on communal property

• 169. It remains for the Court to consider, in relation to the right to property, the projects and works that it is alleged have been implemented without respecting the rights of the indigenous communities.

A. Arguments of the partiesFootnote ¹⁷²

• 186. The representatives alleged that the installation of fencing by third parties involved “illegitimate and unjustified interference” in the exercise of the freedom of movement of the indigenous communities that the authorities failed to respond to. They indicated that this violated Article 22 of the Convention. They also argued that the State had violated “the rights to a [healthy] environment, cultural identity and [adequate] food,” as autonomous rights that they understood were contained in Article 26 of the Convention.Footnote ¹⁷³ They argued that these rights had been violated because the State was aware of and had failed to act appropriately with regard to the presence and the [Page 229] actions of private individuals that had harmed the integrity of the territory by installing fencing and grazing their cattle, and also by illegal logging.

• 187. In particular, regarding the right to a healthy environment, they argued that “the environmental degradation of the territory claimed” had been “a continuous and significant process” that “started at the beginning of the twentieth century with the introduction of cattle by the criollo settlers.” They argued that “as a result of over-grazing by the cattle,” the “illegal logging of the forests” and the “fences put up by the criollo families” the environment had been “degraded”; moreover, “[t]he cattle have destroyed the herbaceous and arboreal vegetation, and this has ruined the irrigation and regeneration capacity of the land,” which “has resulted in desertification and fissures.” They added that “the illegal logging of native forests, using ‘mining’ methods—indiscriminate and unsustainable extraction—significantly affects the resilience and renewal capacity of tracts of forest.” They also indicated that the loss of flora had had an impact on the natural habitat of the wildlife, which also had to compete with the cattle for food and water, adding that the loss of autochthonous flora and fauna was also related to the installation of fencing in the territory, which “constitutes a natural obstacle” to their development.Footnote ¹⁷⁴

• 188. The representatives also argued that “as a result of the environmental degradation” and the “fencing” installed by the criollos, “the communities’ right to food is also violated.” They specified that the livestock of the criollo settlers: (a) “eat the same fruits as the indigenous communities, including carob, mistol [Ziziphus mistol] and chañar [Geoffroea decorticans]”; (b) “browse […] on palatable trees such as the carob and the quebracho [Schinopsis spp.]” and eat “the new growth, preventing regeneration”; (c) “consume the water that the communities themselves need for their subsistence and there have been situations in which the water has been contaminated by animal feces”; (d) lead to the decrease in wildlife, “which has traditionally been hunted and is an important part of the communities’ diet”; and (e) “destroy the fences that the indigenous communities erect to protect their family vegetable plots.” They also indicated that the fencing installed by the criollo families: (a) “affects the transit of wildlife confining it to distant locations”; (b) “restricts the free movement of the communities [Page 230] obstructing their traditional displacement and hunting routes”; and (c) “frequently […] encloses water reservoirs […] and complete stands of carob trees.”

• 189. The representatives added that “the presence of hundreds of criollo families on [the] ancestral territory, the environmental degradation, […] and the alteration of the hunting and gathering lands of the [indigenous] communities has had a profound impact on their cultural identity and traditional practices.” They argued that, for the communities, this had resulted in “significant changes” in “their customs, their social and individual habits, their economic practices and their conception of the world and their own life.” They observed that, given the special relationship of the communities with their land, “the degradation of the environment and the changes in the flora and fauna go beyond the merely economic and subsistence aspects, affecting their [cultural] identity.”

• 190. The representatives also indicated that the State “was fully aware of the details of the environmental degradation” and had failed to take steps to prevent the process or to reverse it, or “to reinforce the peoples’ access to and use of the resources and means that safeguard their way of life,” reproducing a phrase used by the United Nations Committee on Economic, Social and Cultural Rights (hereinafter also “the CESCR”).

• 191. The State argued, with regard to the right to a healthy environment, that a “disproportionate or impossible burden” should not be placed on it, and that the awareness of a situation of risk should be proved in order to result in a positive obligation. It also listed measures it had taken and indicated that “it had provided technical and financial assistance for the implementation and management of projects of the Comprehensive Community Plan, under the Forests and Communities Fund.”Footnote ¹⁷⁵ It also indicated that the Salta Ministry of the Environment “is ensuring compliance with the environmental regulations in force,” including control of illegal logging and deforestation. It asserted that it was “constantly monitoring and supervising the territory using remote sensing with satellite imagery.”

• 192. Regarding the right to food, the State argued that the representatives’ allegations had not been proved and that there was no “technical opinion or report indicating that malnutrition levels or food shortages had increased due to the presence of the criollos’ livestock [Page 231] and activities.” It added that many members of the indigenous communities “practice livestock farming as a result of a historical process of coexistence with the criollos.”Footnote ¹⁷⁶

• 193. Argentina added that “there was no truth” in the allegations of the violation of cultural identity because: (a) “it had used all available means to ensure that, despite the complexity of the matter, […] the communities could truly exercise the right that had already been recognized,” and (b) the communities themselves had “introduced changes into their behavior and ways of life.”Footnote ¹⁷⁷

B. Considerations of the Court

• 194. First, the Court establishes that Article 22 of the Convention, which relates to the right to freedom of movement and residence, refers to the right to choose the place of residence, and to enter, leave and move about in national territory, Footnote ¹⁷⁸ and is not applicable in this case. The ability of a person to move about in lands that belong to him is, in principle, included in the right to property, which has already been examined. Also, the alleged specific or particular impact of the [Page 232] installation of fencing in this case will be examined below in relation to the rights contained in Article 26 of the American Convention.

• 195. The Court has asserted its competence to determine violations of Article 26 of the American Convention Footnote ¹⁷⁹ and has indicated that this protects those economic, social, cultural and environmental rights (ESCER) derived from the Charter of the Organization of American States (hereinafter “the OAS Charter” or “the Charter”), and the norms of interpretation established in Article 29 of the Convention are pertinent for their interpretation.Footnote ¹⁸⁰

• 196. The Court has explained that “to identify those rights that may be derived by interpretation from Article 26, it should be considered that this makes a direct referral to the economic, social, educational, scientific and cultural standards contained in the OAS Charter.”Footnote ¹⁸¹ Consequently, once it has been established that it is understood that a right should be included in Article 26 of the Convention, its scope must be established in light of the corresponding international corpus iuris.Footnote ¹⁸² It is pertinent to underscore that the Court has recalled that:

  The Convention itself makes explicit reference to the norms of international law for its interpretation and application, specifically Article 29, which establishes the pro persona principle. Footnote ¹⁸³ In this way, as has been the consistent [Page 233] practice of the Court, Footnote ¹⁸⁴ when determining the compatibility of the acts and omission of the State, or of its laws, with the Convention or other treaties for which the Court has jurisdiction, the Court is able to interpret the obligations and rights they contain in light of other pertinent norms and treaties.Footnote ¹⁸⁵

• 197. Similarly, the Court has indicated that:

  Human rights treaties are living instruments the interpretation of which must evolve with the times and current conditions. This evolutive interpretation is consistent with the general rules of interpretation established in Article 29 of the American Convention, as well as in the Vienna Convention on the Law of Treaties.Footnote ¹⁸⁶ […] Furthermore, the third paragraph of Article 31 of the Vienna Convention authorizes the use of means of interpretation such as the agreements or practice or relevant rules of international law applicable in the relations between the parties, which are some of the methods related to an evolutive perspective of the treaty.Footnote ¹⁸⁷

• 198. Thus, in order to determine the scope of the respective rights included in Article 26 of the Convention, the Court will refer to the relevant instruments of the international corpus iuris.

• 199. By proceeding in this way, the Court makes an interpretation that allows it to update the meaning of the rights derived from the Charter that are recognized in Article 26 of the Convention.Footnote ¹⁸⁸ This is why what it does is an application of this norm and, as explained previously, “it is not assuming competence over treaties for which it does not have this, and it is not according Convention rank to [Page 234] provisions contained in other national or international instruments concerning the [economic, social, cultural and environmental rights].”Footnote ¹⁸⁹

• 200. The Court will now proceed, based on the preceding considerations, to verify the pertinent content and recognition of the rights included in Article 26 of the Convention involved in this case. The Court notes that the representatives of the indigenous communities have not alleged the violation of the human right to water. However, based on the following considerations, the facts of the case relate to the enjoyment of this right. The Court is able to examine this right because it has competence, based on the iura novit curia principle, to analyze the possible violation of provisions of the Convention that have not been alleged in the understanding that the parties have been able to express their respective positions in relation to the facts that support this.Footnote ¹⁹⁰

• 201. The Court notes that this is the first contentious case in which it must rule on the rights to a healthy environment, to adequate food, to water and to take part in cultural life based on Article 26 of the Convention. Consequently, it finds it useful to include some considerations on these rights, as well as on their impact and particularities in the case of indigenous peoples. To this end: (1) in the following section it will examine: (a) first, the legal recognition and, as relevant for the case, the content of the said rights, and (b) second, the interdependence of the four rights and their relevant particularities in the case of indigenous peoples. Then (2) in the second section, (a) it will describe the relevant facts of the case, and (b) it will analyze whether they reveal State responsibility.

A. Arguments of the parties

• 291. The representatives alleged the violation of judicial guarantees and judicial protection, established in Articles 8 and 25 of the Convention, in light of the inadequacy and lack of effectiveness of the remedies available to safeguard the rights of the indigenous communities when these were threatened or had been violated. They described various situations in which, they argued, there had been “complete […] ineffectiveness,” alluding to the “judicial proceedings” in relation to: (a) the construction of the international bridge by the province of Salta in 1995;Footnote ²⁹² (b) the partial adjudications of lands in [Page 272] December 1999;Footnote ²⁹³ and (c) the attempts to stop the referendum in 1995.Footnote ²⁹⁴ They indicated that “[a]t a time of extreme vulnerability, the courts of justice played a major role in the violation of rights, and increased that vulnerability.”

• 292. The State argued that, as acknowledged by the “petitioners” themselves, they had access to legally established judicial remedies and, in one case, had obtained a judgment in their favor. It also asserted that the referendum had produced no effects and argued that it was not possible to invoke the violation of the articles cited because, over the years, the indigenous communities had been able to have recourse to provincial, national and international justice.

B. Considerations of the Court

• 293. First, the Court will make some general consideration with regard to Articles 8(1) and 25(1) of the Convention and, then, it will examine the specific case and, lastly, set out its conclusions.

A. Injured party

• 309. Pursuant to Article 63(1) of the Convention, the injured party is considered to be anyone who has been declared a victim of the violation of any right recognized therein.Footnote ³¹⁵ Therefore, based on the foregoing, this Court considers as “injured party” the 132 indigenous communities identified in Annex V of this judgment, settled on the territory identified previously as Fiscal Lots 14 and 55 and currently identified with the cadastral registration numbers 175 and 5557 of the department of Rivadavia, in the Argentine province of Salta, in the understanding that this includes the communities that, increasing or decreasing the total number, may derive from the said 132 through the process of “fission-fusion” referred to in this judgment (supra paras. 33, 35, 50 and 156 and footnotes 22 and 23).

B. Measures of restitution

• 310. The Commission indicated, when submitting the case to the Court, that a pertinent measure of reparation would be “to finalize process conducted” on Fiscal Lots 14 and 55. It then specified that it understood that it would be appropriate for the Court to order the delimitation, demarcation and titling, free of all encumbrances, of all the indigenous territory. It also asked the Court to require the State to make the necessary human and financial resources available to relocate the criollo families. It understood that if the Court established a specific timetable, this would facilitate compliance with the judgment.

• 311. The representatives asked the Court to require the State: (a) within no more than six months: (i) to carry out the delimitation, demarcation and titling of the 400,000 ha claimed in Lots 14 and 55 in a single collective title in the name of all the indigenous communities that inhabit those lots; (ii) to ensure the elimination of all the fencing and to take the necessary steps to prevent the erection of new enclosures, including the elaboration and implementation, in consultation with the communities, of a protocol for the actions to be taken by the [Page 279] State in this regard; (iii) to guarantee, the provision to the indigenous communities of an adequate, sufficient, accessible and permanent supply of water apt for human consumption; and (iv) to halt the illegal logging on indigenous territory and, to this end, (b) “create a State agency, with the permanent presence of environmental police, and a model for the control of deforestation in the region,” and (c) within no more than two years, complete the relocation of all the criollo population, as well as all their livestock.Footnote ³¹⁶ The representatives understood that legal measures would have to be taken to “restore” the “possession and ownership” of the indigenous peoples if agreement could not be reached with the criollo settlers.

• 312. It also considered that it was necessary to “prohibit” the State from undertaking “any project in the [indigenous] territory” without, first, “fully complying with the standards of the inter-American system.”

• 313. The representatives also asked the Court to “require the State to provide reports every two months on the progress made in the measures of restitution, including by presenting them on an indicator matrix.”

• 314. Furthermore, they requested the creation of a community development fund for the indigenous communities that inhabit former Fiscal Lots 14 and 55. They argued that this was pertinent in light of the deterioration of the natural resources owing to the presence of fences and livestock on the territory as well as the illegal logging, which, they alleged, had caused significant environmental damage and harmed the communities’ food sources and cultural identity. They considered that the fund “would provide a great opportunity for implementing programs in the area of education, health care, food security, crop-growing techniques, the history of community traditions, land management workshops, and publications on the land claim process, among many other possible uses.” The representatives expressed their [Page 280] “commitment” to present “specific information” on the possible allocation of the funds “within two months of delivery of the judgment.” They asked the Court to determine the amount of the fund and that a committee be created to administer it, with representatives of the State, academe and Lhaka Honhat.

• 315. The State argued that “the time frame of [six] months” for the delimitation, demarcation and titling was very short, because it was the agreements between the criollo families and the communities that required most time, and this did not depend merely on the willingness of the State. It considered that up to a year would be required to demarcate the territory, up to 18 months to conduct the surveys,Footnote ³¹⁷ and up to two years to “hand over the final title.” Despite this, Argentina also indicated that a pre-requisite for the “demarcation, delimitation and titling” was the relocation of the criollo families and their livestock, and this would require approximately eight years, given the different actions and infrastructure work that had to be carried out.Footnote ³¹⁸ Argentina understood that the request to establish six-month and two-year time frames, respectively for the delimitation, demarcation and titling of the territory and for the relocation of the criollo families were “incongruous.” In this regard, it stressed the importance of “insisting upon the process of agreements between the parties (indigenous population and criollos).” It asked that the Court “take into account the time frames proposed in the comprehensive plan” submitted to the Commission (supra para. 85), which are the same as those indicated at this stage.

• 316. In addition, the State indicated that the fences of the criollo families would be removed “as the families are effectively relocated.”Footnote ³¹⁹ Argentina also indicated that the construction of wells and the installation of water tanks had been confirmed. Regarding illegal logging, it argued that it now had the relevant agencies to prevent this.

• [Page 281] 317. In relation to future projects in the territory, Argentina recalled that the communities still have to give their opinion on a consultation protocol that the State had sent them.

• 318. With regard to the request for a community development fund, the State argued that it had been shown that the province of Salta and the national State had consistently allocated economic and human resources to improve the access to education, health care, security and infrastructure of the communities that inhabit the region. It indicated that the representatives had not determined the purpose of this fund.

• 319. The Court has declared that Argentina violated the right to property of the indigenous communities that inhabit Lots 14 and 55. The State has failed to take the appropriate measures to guarantee the right to property and, also, has carried out activities on the territory without the corresponding prior consultation process. Consequently, it is pertinent for the Court to order measures to restore the right to property, and other rights that have been infringed.

• 320. The Court finds it necessary to note that, when establishing the appropriate measures of reparation, it has taken into consideration the particular characteristics of the case. This is due to the vast territory that it covers, as well as the large number of persons, both indigenous and criollo, that inhabit this area. In this context, the Court takes into account the complexity of the case as regards the actions that the State must undertake to redress the violations related to property, as well as their impact on the different human groups that inhabit the region.

• 321. The Court: (a) will indicate, first, the time frame for compliance with the measures of restitution; (b) then, it will refer to these measures in relation to the right to property and to the rights to a healthy environment, food, water and cultural identity; and (c) lastly, it will include some considerations on the State obligation to report on compliance with the measures of restitution, and on actions to monitor them.

C. Measures of satisfaction

• 346. The representatives considered that it was extremely important that the international responsibility of the State should be made public by different means. Therefore, they asked the Court to order the State to comply with the following measures within one year of notification of the judgment: translation into the languages of the indigenous communities and distribution of the official summary of the judgment; publication of the whole official summary of the judgment, in Spanish, in the following media: the Salta newspaper “El Tribuno” and in a national newspaper, as well as in the official gazette of the Argentine Republic and in that of the province of Salta; publication of the whole judgment, in Spanish, in State institutions, and the broadcast of the official summary of the judgment, in Spanish and in the languages of the indigenous communities, by a radio station.Footnote ³²⁸

• 347. The State considered that the measures of satisfaction requested by the representatives were unnecessary. It indicated that, on numerous occasions by decrees and resolutions, it had acknowledged that the indigenous communities victims in this case had the right to their ancestral territory.

• 348. The Court finds it pertinent to order, as it has in other cases, Footnote ³²⁹ that, within six months of notification of this judgment, the State: (a) publish this judgment, in its entirety, in a legible font size, so that it is available for at least one year on the INAI official website and on the website of the government of Salta, so that it is accessible to the public from the respective homepage; (b) publish, once, the official summary of the judgment prepared in Spanish by the Court in a legible and appropriate font, in: (i) the official gazette of the Argentine Republic; (ii) the official gazette of the province of Salta; (iii) a newspaper distributed in the province of Salta; and (iv) a newspaper with widespread national coverage; (c) disseminate the official summary of this [Page 291] judgment prepared by the Court, in indigenous languages and in Spanish, among the population that currently inhabits Lots 14 and 55, including each of the communities victims. To comply with this measures, the State shall be responsible for translating the official summary of this judgment, but must reach agreement with the representatives with regard to the indigenous languages into which the summary will be translated and enable them to verify that the translations are correct before they are disseminated. In addition, the State must give the representatives one week’s notice of the realization of the publications ordered in points (a) and (b) above, and of the actions ordered in point (c).

• 349. Furthermore, the Court finds it pertinent, as it has in other cases, Footnote ³³⁰ that the State broadcast, via a radio station with widespread coverage that reaches every corner of Fiscal Lots 14 and 55 of the department of Rivadavia, in the province of Salta, the official summary of the judgment in Spanish and, with the prior approval of the representatives, in languages of the indigenous communities victims. The radio broadcast must be made on the first Sunday of the month for at least four months after 8 a.m. and before 10 p.m. Two weeks before the State orders the first broadcast, it must advise the Court and the representatives in writing of the date, hour and radio station on which this will take place. The State must comply with this measure within six months of notification of this judgment. Argentina must advise the Court immediately when it has made each broadcast ordered in this paragraph and the publications ordered in the preceding paragraph.

D. Measures of non-repetition

• 350. The Commission asked the Court to require the State to take any necessary legislative, administrative or other measures to establish an effective mechanism for the indigenous peoples to claim their ancestral lands.

• 351. The representatives asked the Court to require the State to establish provincial and national laws on the free, prior and informed consultation of indigenous communities in relation to projects to be executed on their territories. They also asked the Court to require the State to enact and implement provincial and national laws that permit the appropriate registration of the Lhaka Honhat Association and other [Page 292] similar indigenous organizations and association. They added that the State should be required to enact and implement provincial and national laws that guarantee the right to communal property.

• 352. The State considered that its domestic laws were pertinent and adapted to international standards. It also argued that the provincial state had proposed protocols for prior consultations and that the representatives had not responded or commented on them.

• 353. The Court determined that the existing legal regulations are insufficient to provide legal certainty to the right to indigenous communal property since they failed to establish specific procedures that are appropriate for this purpose. The considerations included in this judgment reveal that the Argentine authorities themselves have noted the insufficiency of their domestic laws and the need to take measures in relation to indigenous property (supra paras. 54 and 165). Moreover, expert witness Solá indicated that “there are no adequate provincial or national procedures for receiving the land claims of indigenous peoples in keeping with the standards of the inter-American system.”Footnote ³³¹

• 354. Consequently, as it has on other occasions, Footnote ³³² the Court orders the State, within a reasonable time, to adopt the legislative and/or other measures necessary, pursuant to the guidelines indicated in this judgment (supra paras. 93 to 98, 115 and 116), to provide legal certainty to the human right to indigenous communal property, establishing specific procedures that are adapted to this end.

• 355. This Court notes that Article XXIII of the American Declaration on the Rights of Indigenous Peoples stipulates that: “[i]ndigenous peoples have the right to full and effective participation [Page 293] in decision-making, through representatives chosen by themselves in accordance with their own institutions, in matters which affect their rights, and which are related to the development and execution of laws, public policies, programs, plans, and actions related to indigenous matters.” In this regard, the Argentine National Executive has noted the appropriateness and importance of the participation of the indigenous peoples in matters that affect them, as revealed by Decree 672/2016.Footnote ³³³ The Court orders the State, prior to adopting the legislative and/or any other measures ordered (supra para. 354), to establish actions that permit the participation of the country’s indigenous peoples and/or communities (not only the victims in this case) in consultation processes in relation to such measures.Footnote ³³⁴

• 356. The Court recalls that, pursuant to Article 28 of the American Convention, a State cannot validly argue that it has a [Page 294] federal system to fail to comply with the provisions of the Convention. Added to this, the Court notes that the highest judicial authorities of Argentina and Salta have indicated, based on constitutional texts, that, in matters relating to the rights of indigenous peoples, the provincial and national powers are “concurrent,” and that national laws operate as a “minimum level” (supra para. 161). Thus, the Court understands that in order to guarantee the non-repetition of the violations declared in this case effectively, it is pertinent that the legislative and/or other types of regulations whose adoption has been ordered are applicable throughout national territory, by both the national State and by all the federative state entities that comprise the Argentine federation; in other words, all the provinces and the autonomous City of Buenos Aires.Footnote ³³⁵

• 357. Consequently, the State, within the framework of the competencies and functions inherent in its federal organization system, must adopt the pertinent measures to ensure that: (a) the legislative and/or other types of measures ordered (supra para. 354) are enforceable both with regard to the national State and to all the federative entities, and (b) regarding the actions to acknowledge, implement or guarantee the rights of indigenous peoples or communities to recognition of communal property, there is coordination between the federal sphere and the federative entities so that the actions taken in either of those sectors is valid in the other and duplication, overlapping and contradiction in the legal acts or procedures is avoided.

E. Other measures requested

• 358. The representatives asked the Court to require that the State “reimburse, immediately, the expenses relating to providing support” to the Lhaka Honhat Association of Aboriginal Communities, so that “the on-site support to Lhaka Honhat can continue.” It also requested that the State be ordered to carry out a public act acknowledging its responsibility.

• 359. The State argued that the “expenses relating to providing support” to Lhaka Honhat “are included,” although not explicitly, in an agreement between INAI and Salta. Also, as already indicated, it contested the measures of satisfaction requested (supra para. 347).

• [Page 295] 360. The Court rejects the representatives’ request that it order the State to pay “the expenses relating to providing support” to Lhaka Honhat. The Lhaka Honhat Association is not, in itself, a victim in this case (supra paras. 35 and 309, and Annex V to this judgment), and it has not been explained how this payment to Lhaka Honhat by the State would be connected to the violation of the rights of the communities victims or necessary to redress them. Also, the Court understands that the measures of satisfaction it has ordered are sufficient and does not find it pertinent in this case to require a public act to acknowledge responsibility.

F. Costs and expenses

• 361. The representatives recalled that the case originated in the 1980s, and indicated that due to its “complexity and magnitude,” CELS had formed a team of several people, who “have had to undertake numerous tasks.” They indicated that although they have documentary support for expenditure incurred, they “do not find it prudent to request a set amount” and asked the Court to determine this.

• 362. The State, when referring to the costs and expenses claimed, recalled that both the national State and the provincial State are executing a land regularization plan and allocating funds to this end.

• 363. The Court reiterates that:

  Pursuant to its case law, costs and expenses form part of the concept of reparation, because the activity deployed by the victims in order to obtain justice, at both the national and the international level, entails disbursements that must be compensated when the international responsibility of the State has been declared in a judgment. Regarding the reimbursement of costs and expenses, it is for the Court to assess their scope prudently, and this includes the expenses generated before the authorities of the domestic jurisdiction and also those incurred during the proceedings before the inter-American system, taking into account the circumstances of the specific case and the nature of the international jurisdiction for the protection of human rights. This assessment may be made based on the equity principle and taking into account the expenses indicated by the parties, provided the quantum is reasonable. Footnote ³³⁶

• 364. This Court notes that the representatives have not requested a specific sum for reimbursement of costs and expenses, or duly provided justifying evidence for all the disbursements made. However, the State’s argument is unrelated to this matter.

• [Page 296] 365. The Court decides, understanding that this is reasonable, to establish the payment of US$50,000.00 (fifty thousand United States dollars) for costs and expenses. This amount shall be delivered, within six months of notification of this judgment, to the Centro de Estudios Legales y Sociales (CELS).Footnote ³³⁷ During the proceedings on monitoring compliance with this judgment, the Court may order the State to reimburse any reasonable and duly authenticated expenses incurred at that procedural stage to the victims or their representatives.Footnote ³³⁸

G. Method of compliance

• 366. The State shall comply with its monetary obligations by payment in United States dollars or, if this is not possible, in the equivalent in Argentine currency, using the rate in force at the time of payment that is highest and most beneficial to the beneficiaries permitted by domestic law to make the calculation. At the stage of monitoring compliance with judgment, the Court may make a prudent adjustment of the amounts in Argentine currency in order to avoid variations in currency exchange substantially affecting their purchasing power.

• 367. If, for causes that can be attributed to the beneficiaries, it is not possible to pay the amount established within the indicated time, the State shall deposit this amount in their favor in a deposit certificate or account in a solvent Argentine financial institution, in United States dollars and in the most favorable financial conditions allowed by banking law and practice. If the corresponding amount is not claimed within ten years, the amounts shall be returned to the State with the interest accrued.

• 368. The amounts allocated in this judgment as measures of reparation for the harm caused and to reimburse costs and expenses shall be delivered integrally, without any deductions resulting from possible taxes or charges.

• 369. If the State should incur in arrears, it shall pay interest on the amount owed corresponding to bank interest on arrears in the Argentine Republic.

Additional hermeneutics

• 7. Notwithstanding the normative elements that I have indicated in the preceding section, I find it important to underline that a superior international hierarchy has gradually been established of principles and values that constitute an ontological basis for the previous arguments on the interpretation and application of the provisions of international human rights law.

• 8. The corpus juris is supported by founding principles, systematizing values and, evidently, written rules and regulations, which I understand from a literal perspective, provided their meaning and [Page 312] comprehension are clear and sufficient. However, when this is not possible, or it is insufficient, I am aided by a teleological appraisal that seeks support in the origin and spirit of the texts, trying to discover what the drafters were trying to transmit, in the context of a systemic reflection of the norm, in its living evolutive version, but always interrelated with the hierarchic order of the normative to which it belongs and, lastly, I seek support in the generally accepted rules of interpretation.

• 9. I point out that this idea is similar to the development of international human rights law in general, and inter-American law in particular. The interpretation standards used in relation to human rights is based on the Vienna Convention on the Law of Treaties, with its rules that outline literal, systematic and teleological interpretation. However, regarding human rights, great importance has also been given to other principles such as the practical effects (effet utile), the pro personae principle, and evolutive interpretation. These standards are based on Convention provisions (for example, Article 29 of the Convention) and on international practice (the European Court of Human Rights has also developed the concept of evolutive interpretation), allowing international human rights instruments to become a more effective mechanism for safeguarding human dignity and that of the peoples of the Americas, over and above the excessive protection of the principle of sovereignty. And, to this extent, they also allow the object and purpose of the American Convention to be met, which is the effective protection of human rights.

• 10. One of the important consequences of this reflection forces me to consider that, to read this opinion favorably and to agree with it, we must first agree that the work of the Court, in its hermeneutic task, is directly related to and soundly based on the principles, purposes and values that constitute the regional and global superior hierarchical order described above. From this perspective, by mandate of the Charter of the United Nations, the signatory States of the OAS Charter have accepted and submitted themselves to the said superior hierarchical order in their instruments of ratification.

• 11. Therefore, the Court, when exercising its functions and applying its interpretive approach, has generally acted based on solid and sufficient legal grounds, in keeping with its extremely important responsibility to ensure and protect the human rights of every person in the States that have signed, first, the OAS Charter and, then, the American Convention on Human Rights. Thus, in certain circumstances, and on this basis, at times, it is necessary to make a more [Page 313] expansive interpretation of the provisions to ensure a greater protection for the human being.

• 12. In this way, the majority of the Court’s judges, when interpreting the ESCER in general and, in particular in this case the rights of indigenous peoples to take part in cultural life in relation to their cultural identity, to a healthy environment, to adequate food and to water, by declaring, directly, that these are autonomous rights pursuant to Article 26 of the American Convention, have merely developed the said postulates and principles in this specific case.

• 13. However, it is important to recognize that, owing to the newness and innovative content of the Court’s decisions, and the measures of reparation and non-repetition, as well as the interpretation made, a necessary expansion and more detailed examination remains pending to contribute to and consolidate more precisely the application of the decisions, and the monitoring and verification of compliance with them and, in this way, to contribute adequately to materializing the effective and useful effects and results of the Court’s decisions in relation to the ESCER.

• 14. In its analysis of Article 26, it is not the first time that the Inter-American Court has assumed a position of “guarantor” and protector of human rights, making an expansive, non-restrictive, interpretation of the specific text of the American Convention: the cases of Lagos del Campo, Poblete Vilches, Cuscul Pivaral and others attest to this.

• 15. Examining further what the Inter-American Court has indicated previously, it would appear that an interpretation contrary to the direct and autonomous justiciability of Article 26 of the American Convention would be contrary to the rules of interpretation established in Article 29 of this instrument; especially the pro personae principle. This article establishes that:

  No provision of this Convention shall be interpreted as:

  • (a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the rights and freedoms recognized in this Convention or to restrict them to a greater extent than is provided for herein;

  • (b) 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;

  • (c) precluding other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government; or

  • (d) excluding or limiting the effect that the American Declaration of the Rights and Duties of Man and other international acts of the same nature may have.

• [Page 314] 16. Preventing the Inter-American Court from addressing an economic, social, cultural or environmental right fully and comprehensively when this has possibly been violated, and obliging it to make an indirect analysis, subordinated to the prior violation of a civil and political right, would represent a possible exclusion or limitation of the effects of the American Declaration (if the right was included in it) and/or a limitation of the enjoyment and exercise of the right if it was recognized by the State either by a domestic law or by another convention. It is easy to understand, even in the abstract, how much greater a protection is if it is addressed directly, for example, based on the right to health, than if it is addressed from the perspective of the right to life, in which case the interpretation restrictions imposed by Article 29(b) and (d) would be implicated.

• 17. As already mentioned, the judgment indicated, for example, that the rights to adequate food and to cultural identity are reflected in the American Convention. It also indicated that the rights to a healthy environment,Footnote ⁷ adequate food,Footnote ⁸ water,Footnote ⁹ and cultural identityFootnote ¹⁰ are recognized in constitutional provisions and the provisions of conventions with constitutional rank in the Argentine State.

• 18. The Court has recalled and affirmed the interdependence and indivisibility of civil and political rights and economic, social, cultural and environmental rights in different judgments. And this allows us to assume that they should be understood integrally as rights without any specific hierarchy that are enforceable in all cases before the competent authorities.Footnote ¹¹ This reiterated precedent of the Court has established that the discriminatory hierarchy between the rights has been overcome. Thus, the Court has placed then all on an equal footing, overcoming the restrictive narrative that excluded them from being the sole subject of allegations and claims before the courts of justice of the region.

• 19. Arguing in favor of indirect justiciability, subordinated to the violation of the right to life or to personal integrity, would be a restrictive interpretation of the Convention that would again exclude the ESCER from the sphere of autonomous rights that can be [Page 315] judicialized directly, representing a retrogressive understanding contrary to the explicit text of Article 29(c) of the American Convention and its literal interpretation.

• 20. With this opinion, my intention is to join and support the majority position adopted by the Inter-American Court, which is to prosecute violations of the ESCER directly. The Inter-American Court has been systematically implementing important expansive and evolutive exercises in hermeneutics that have made it possible to develop this case law. Evidently, it must be stressed, this assertion does not mean assuming that this approach and legal development have been fully achieved. To the contrary, the achievements made cannot obscure the need for an effort to be made to strengthen the arguments and assumptions that support this judicial thought in the jurisprudential debate.

I. Introduction

• 1. This partially dissenting opinion is issuedFootnote ¹ with regard to the above judgmentFootnote ² in order to explain the reasons why the author disagrees with operative paragraphs 3,Footnote ³ 11,Footnote ⁴ [Page 316] 12Footnote ⁵ and 13Footnote ⁶ of the judgment, which, based on the provisions of Article 26 of the American Convention on Human Rights,Footnote ⁷ declare, in the first, the violation of the rights to cultural identity, a healthy environment, adequate food, and water, and establish in the following paragraphs measures of reparation in relation to these violations, thereby making them justiciable before the Inter-American Court of Human Rights.Footnote ⁸ Evidently, my basic disagreement relates to the content of the said third operative paragraph, because the contents of the eleventh, twelfth and thirteenth operative paragraphs are merely its consequences.

• 2. First, it is necessary to indicate that the author is repeating what he has already stated in previous separate opinionsFootnote ⁹ regarding the use of that article of the Convention in the corresponding judgments, including the general and preliminary considerations included in some of these opinions.

• 3. However, it should also be indicated that since the adoption of the third operative paragraph—where the tie was broken by the casting vote of the President—constitutes an innovation in the Court’s case law, this opinion clarifies or expands and even modifies certain aspects of the said partially dissenting opinions.

• 4. Moreover, it is extremely relevant to indicate at once that this opinion does not refer to the existence of the rights to cultural identity, a healthy environment, adequate food, and water, or to the other economic, social and cultural rights. The existence of those rights is not the purpose of this brief. Rather, the author is merely asserting that the Court, contrary to what is indicated in the judgment, lacks [Page 317] competence to examine the violation of such rights under the provisions of Article 26 of the Convention;Footnote ¹⁰ in other words, that the presumed violation of these rights is not justiciable before the Court.

• 5. This does not mean, however, that the violations of the said rights cannot be justiciable before the corresponding domestic jurisdictions. This will depend on the provisions of the respective domestic law, a matter that falls outside the purpose of this opinion and that is part of the internal, domestic or exclusive jurisdiction of the States Parties to the Convention.Footnote ¹¹

• 6. This opinion contends that it is necessary to distinguish between human rights in general, which, in all circumstances, must be respected pursuant to international law, and those that, in addition, are justiciable before an international jurisdiction. In this regard, it is worth noting that there are only three international human rights courts; the Inter-American Court of Human Rights, the European Court of Human Rights, and the African Court on Human and Peoples’ Rights. Also, not all the States of the respective regions have accepted the jurisdiction of the corresponding court. Moreover, not all the regions of the world have an international human rights jurisdiction, and no universal human rights court has been created.

• 7. Thus, the fact that a State has not agreed to be subject to an international jurisdictional human rights body does not mean that human rights do not exist and that they may eventually be violated. The State must always respect them, even if there is no international court to which recourse may be had if they are violated and, especially, if they are established in a treaty to which the State is party. In that case, international society may use diplomatic or political measures to achieve the restoration of respect for the rights involved. Thus, the international recognition of human rights is one matter and the international instrument used to achieve the restoration of their realization in situations in which they are violated is another.

• [Page 318] 8. Bearing in mind the foregoing, this text will be divided into the interpretation of Article 26, the provisions of the Charter of the Organization of American States,Footnote ¹² the provisions of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) and the Conclusions.

II. Interpretation of Article 26

• 9. In view of the fact that the Convention is an inter-State treaty and, consequently, governed by public international law,Footnote ¹³ the reasons that substantiate this dissent relate, above all, to how Article 26 should be interpreted based on the rules for the interpretation of treaties established in the Vienna Convention on the Law of Treaties.Footnote ¹⁴ These rules relate to good faith, the ordinary meaning to be given to the terms of the treaty, in their context and in the light of its object and purpose. Footnote ¹⁵

• 10. Accordingly, the matter in hand is to interpret Article 26 using these rules. This article establishes:

  [Page 319] Progressive Development. The States Parties undertake to adopt measures, both internally and through international cooperation, especially those of an economic and technical nature, with a view to achieving progressively, subject to available resources, by legislation or other appropriate means, the full realization of the rights derived from the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires.

III. The OAS Charter

• 62. That said, based on the fact that Article 26 refers to the “the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires,” it is essential, in order to discover its scope, to refer to the content of the said standards and, in particular, to those cited in the judgment.

• 63. With regard to the right to a healthy environment, the judgment refers to Articles 30,Footnote ⁹⁰ 31,Footnote ⁹¹ 32,Footnote ⁹² 33Footnote ⁹³ and 34Footnote ⁹⁴ of the OAS [Page 338] Charter. In the case of the right to food, it cites Article 34(j)Footnote ⁹⁵ of the Charter. Regarding the right to water, it indicates that this is revealed by rights that, in turn, derive from others, mentioning the rights to a healthy environment and to adequate food and adding that this right also stems from the provisions of Articles 34(i),Footnote ⁹⁶ 34(l)Footnote ⁹⁷ and 45(h)Footnote ⁹⁸ of the Charter. Finally, with regard to the right to cultural identity, it mentions Articles 30,Footnote ⁹⁹ 45(f),Footnote ¹⁰⁰ 47Footnote ¹⁰¹ and 48Footnote ¹⁰² of the Charter.

• 64. However, a simple reading of the said provisions is sufficient to verify, clearly and without any doubt, that they establish “principles,” “goals” or “mechanisms” that, through a united effort of the States [Page 339] Parties to the OAS Charter, “ensure international social justice in their relations and integral development for their peoples, as conditions essential to peace and security.” It should not be forgotten that all the provisions cited are in Chapter VII of the Charter entitled “Integral Development.” Thus, these provisions establish obligations of action, consisting in cooperation and the adoption of public policies addressed at achieving the development of the peoples of the Americas.

• 65. Accordingly, the corresponding human rights would be derived from the objectives of these provisions relating to “international social justice,” “integral development,” a “just social order,” “economic development and true peace,” the “full integration of the national community,” its “development and progress” and to be a developed country, according to the interpretation proposed in the judgment. And the same would be true of the corresponding “basic goals”; for example, the “substantial and self-sustained increase of per capita national product” or the “equitable distribution of national income” or the “modernization of rural life” or the “accelerated and diversified industrialization” or the “stability of domestic price levels” or “urban conditions” or “private initiative and investment” or the “expansion and diversification of exports.” In other words, the range of possibilities from which the interpreter could “derive” or “update” human rights that were not expressly established in any international provisions would be enormous, even unlimited.

• 66. And this is what is actually happening. Previously, the Court decided cases under Article 26, but related to other articles of the Convention; cases concerning the rights to health, social security, work, and job stability. Now it is deciding cases concerning the rights to cultural identity, a healthy environment, adequate food and water, but based only on this provision. If this tendency continues and is taken to its extremes, all the States Parties to the Convention that have accepted the Court’s jurisdiction could eventually be brought before it because they are under-developed or developing countries; in other words, because they have not fully achieved integral development or some of its aspects—namely, “principles,” “goals” or “mechanisms” established in the OAS Charter from which the judgment derives rights.

• 67. In this regard, it should be stressed that the judgment has advanced in this direction. Indeed, it affirms that it is “the obligation of the States to ensure ‘integral development for their peoples,’ as revealed by Articles 30, 31, 33 and 34 of the Charter.”Footnote ¹⁰³ [Page 340] Consequently, according to the judgment, it can logically be supposed that, in view of this obligation, there is a corresponding right to development and that non-compliance with this could result in litigation before the Court owing to violation of the correlative human right. If this were to occur, it would appear to be very far from what the States Parties intended when they signed the Convention or, at least, from the logic implicit therein; especially, owing to the way in which the said Chapter VII was drafted.

• 68. It is therefore evident that it is not possible to infer from “the economic, social, educational, scientific, and cultural standards set forth in the Charter of the Organization of American States as amended by the Protocol of Buenos Aires” referred to in Article 26, that the Court has competence to examine and decide eventual violations derived from them.

IV. Protocol of San Salvador

• 69. Reference must also be made to the “Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights—Protocol of San Salvador,”Footnote ¹⁰⁴ which is also cited in the judgment to support its interpretation of Article 26. However, the undersigned considers that, to the contrary, its signature and application support what is maintained in this opinion.

• 70. This instrument was adopted pursuant to Articles 31, 76 and 77Footnote ¹⁰⁵ of the Convention. This is indicated in its Preamble, which states that:

  Bearing in mind that, although fundamental economic, social and cultural rights have been recognized in earlier international instruments of both world and regional scope it is essential that those rights be reaffirmed, developed, perfected and protected in order to consolidate in America, on the basis of full respect for the rights of the individual, the democratic representative form of government as well as the right of its peoples to development, self-determination, and the free disposal of their wealth and natural resources; and [c]onsidering that the American Convention on Human Rights provides that draft additional protocols to that Convention may be submitted for consideration to the States Parties, meeting together on the occasion of the General Assembly of the Organization of American States, for the purpose of gradually incorporating other rights and freedoms into the protective system thereof.

• [Page 341] 71. The foregoing reveals that this is an agreement “additional to the Convention” with the specific purpose of reaffirming, developing, perfecting and protecting the economic, social and cultural rights and including them progressively in the Convention’s protection system and achieving their full realization.

• 72. In other words, the Protocol is adopted because, at the date of its signature, the economic, social and cultural rights had not been reaffirmed, developed, perfected and protected or included in the protection system of the Convention, which means that they were not fully realized under Article 26. Otherwise, neither the purpose of, nor the need for, this Protocol could be understood.

• 73. That said, the Protocol of San Salvador recognizes,Footnote ¹⁰⁶ establishes,Footnote ¹⁰⁷ sets forth [enuncia]Footnote ¹⁰⁸ or sets forth [consagra]Footnote ¹⁰⁹ the following rights: Right to Work (Art. 6), Just, Equitable, and Satisfactory Conditions of Work (Art. 7), Trade Union Rights (Art. 8), Right to Social Security (Art. 9), Right to Health (Art. 10), Right to a Healthy Environment (Art. 11), Right to Food (Art. 12), Right to Education (Art. 13), Right to the Benefits of Culture (Art. 14), Right to the Formation and Protection of Families (Art. 15), Rights of Children (Art. 16), Protection of the Elderly (Art. 17) and Protection of the Handicapped (Art. 18). It should be recalled that, to the contrary, Article 26 does not establish or set forth any right, it merely refers to those that are “derived” from the OAS Charter.

• [Page 342] 74. In the case of the rights recognized by the Protocol of San Salvador, the States Parties undertake to adopt, progressively, the necessary measure to ensure their full realization (Arts. 6(2), 10(2), 11(2) and 12(2)). This is in keeping with the provisions of Article 26; in other words, both the Protocol of San Salvador and Article 26 refer to rights that have not yet been realized or, at least, not fully.

• 75. The Protocol of San Salvador also includes a provision, Article 19, concerning the means of protecting the above rights. This consists in the reports that the States Parties must submit to the OAS General Assembly “on the progressive measures they have taken to ensure due respect for the rights set forth in this Protocol”; in the treatment accorded by the Inter-American Economic and Social Council and the Inter-American Council for Education, Science and Culture to those reports, and in the opinion that could eventually be provided by the Commission in this regard.Footnote ¹¹⁰ It should be noted that this [Page 343] provision is similar to the draft article 27 of the Convention, which was rejected in the corresponding Conference.

• 76. All the above signifies, first, that, for the States Parties to the Protocol, realization of the economic, social and cultural rights is of a “progressive nature”; in other words, a contrario sensu, they have not been realized or, at least, not fully realized, a similar situation to that established in Article 26 with regard to the rights derived from the OAS Charter.

• 77. Second, and consequently, this signifies that, for the said States, the provisions of Article 26 do not mean that the said rights are included among those incorporated into the protection system established in the Convention or those that are enforceable.

• 78. It should also be recalled that the OAS has created the Working Group to Examine the National Reports envisioned in the Protocol of San Salvador,Footnote ¹¹¹ as a mechanism to follow up on compliance with the corresponding undertakings made in this instrument. This confirms that the intention of the said States was, undoubtedly, to create a non-jurisdictional mechanism for the international supervision of compliance with the Protocol of San Salvador.

• 79. The only exception to this procedure is established in Article 19(6); namely, that:

  Any instance in which the rights established in paragraph (a) of Article 8Footnote ¹¹² and in Article 13Footnote ¹¹³ are violated by action directly attributable to a State Party to this Protocol may give rise, through participation of the Inter-American [Page 344] Commission on Human Rights and, when applicable, of the Inter-American Court of Human Rights, to application of the system of individual petitions governed by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights.

• 80. Third, this means that it is only if the said rights relating to education and trade unions are violated that the respective cases are justiciable before the Court. To the contrary, in the case of violations of the other rights, including the rights to a healthy environment and to adequate food, it is only the system of reports established in Article 19 of the Protocol of San Salvador that is in effect.

• 81. Consequently, the indication in another judgmentFootnote ¹¹⁴—which this judgment citesFootnote ¹¹⁵—that “there are no indications that, with the adoption of the Protocol of San Salvador, the States sought to limit the Court’s competence to examine violations of Article 26 of the American Convention” is erroneous. According to that judgment, “there are no indications” because “if the American Convention is not expressly amended by a subsequent act of the States, the corresponding interpretation should not be less restrictive as regards its scope in relation to the protection of human rights,” adding that “Article 76 of the American Convention establishes a specific procedure for amendments, which require the ratification of two-thirds of the States Parties to the Convention” and concluding that “it would be contradictory to consider that the adoption of the Additional Protocol, which did not require such a high number of ratifications as an amendment to the American Convention, could modify the content and scope of the latter’s effects.” Moreover, the said judgment confuses an amendment to the Convention [Page 345] with an additional protocol to it. According to the Vienna Convention, an amendment is a change to the respective treaty that may be adopted by agreement between all its States Parties and, therefore, may be binding for all of them.Footnote ¹¹⁶ A modification is a change in the treaty agreed to by two or more States Parties and is only binding for them.Footnote ¹¹⁷

• 82. That said, the Protocol of San Salvador is an amendment. This is revealed by the text itself which contains all the elements of an amendment. Footnote ¹¹⁸ However, in addition, it expressly establishes [Page 346] that the Protocol itself may be amended.Footnote ¹¹⁹ At the same time and as a type of amendment, it is a protocol, a mechanism established in the Convention.Footnote ¹²⁰ It should be stressed that, in its Preamble, the Protocol of San Salvador indicates that it is adopted considering that the Convention provides for this possibility.Footnote ¹²¹ Thus, it is an “additional protocol” signed “for the purpose of gradually incorporating other rights and freedoms into the protective system” of the Convention that, therefore, were not previously included in it.

• 83. Consequently, when establishing the Court’s competence to examine eventual violations of the right to education and trade union rights in its Article 19, this instrument is not limiting the Court’s competence; to the contrary, it is expanding it. If the Protocol of San Salvador did not exist, the Court could not even examine the possible violation of those rights.

• 84. Additionally, the aforementioned judgment erred when affirming that “there are no indications that, with the adoption of the Protocol of San Salvador, the States sought to limit the Court’s competence to examine violations of Article 26 of the American Convention,”Footnote ¹²² because, to the contrary, what Article 19(6) of this instrument establishes is that, of the possible violations of all the rights that the Protocol recognizes, establishes, or sets forth, the Court can only examine those relating to the “right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests” and the right to education.Footnote ¹²³ All the presumed violations of the other rights that the Protocol of San Salvador recognizes, establishes, or sets forth including, consequently, those relating to the right to cultural identity (Art. 14), to a healthy environment (Art. 11), to adequate food (Art. 12) and to water, are [Page 347] therefore subject to the mechanism established in Article 19Footnote ¹²⁴ and, thus, fall outside the Court’s sphere of competence.

• 85. Interpreting the Protocol of San Salvador as the said judgment did, would mean that this instrument had not been signed “for the purpose of gradually incorporating other rights and freedoms into the protection system” of the Convention, but rather, to limit the Court’s competence with regard to them, which, pursuant to Article 32 of the Vienna Convention would be manifestly absurd or unreasonable; that is, irrational or meaningless.

• 86. Consequently, all the above is clear evidence that, for the States Parties to this Protocol, the provisions of Article 26 of the Convention cannot be interpreted to establish or recognize economic, social and cultural rights or that it authorizes cases involving a violation of such rights to be submitted to the consideration of the Court. If it had established this or legitimized the intervention of the Court in this regard, the Protocol would not have been signed. This is why it was necessary to adopt it. Its signature cannot be explained in any other way.

• 87. All this leads to the conclusion that the Protocol of San Salvador is the clear demonstration that the provisions of Article 26 do not establish any human right or give the Court legal standing in the case of violations of the economic, social and cultural rights to which it refers.

V. Conclusions

• 88. As can be concluded from the foregoing, I dissent from the judgment because the failure to use the means of interpretation established in the Vienna Convention appropriately leads to a result that is contrary to logic and never intended or established in the Convention, which is that the violations of the economic, social and cultural rights including the rights to cultural identity, a healthy environment, adequate food and water, are justiciable before the Court.

• 89. Indeed, although the judgment refers briefly and in very general terms to previous judgments,Footnote ¹²⁵ it really favors some means of interpretation of treaties—especially the context of the terms of the treaty and its object and purpose—over others.Footnote ¹²⁶ Thus it modifies the simultaneous and harmonious nature of all the means of interpretation that the Vienna Convention establishes by mentioning them together [Page 348] in the same paragraph. And even the means of interpretation that the judgment applies are not applied properly.Footnote ¹²⁷

• 90. Above all, I do not agree with the judgment because all its arguments are addressed exclusively at demonstrating the existence of the rights to cultural identity, a healthy environment, adequate food and water, and to this end it cites different international and even national instruments, most of which are non-binding, but without being able to substantiate its opinion that violations of those rights are justiciable before the Court.

• 91. I also disagree with the judgment because the interdependence, indivisibility, and interrelationship or close or indissoluble ties between the political and civil rights and the economic, social and cultural rights, is not a valid argument to justify that the latter are justiciable before the Court. Human rights exist before they are established in treaties, irrespective of whether their eventual violation may be examined and decided by an international court. This is revealed by the Convention itself, when it indicates that “they are based upon attributes of the human personality” and that they have been “set forth in the Charter of the Organization of American States, in the American Declaration of the Rights and Duties of Man, and in the Universal Declaration of Human Rights.”Footnote ¹²⁸

• 92. But, also, I dissent from judgment because the Convention itself makes a clear distinction between the political and civil rights and the economic, social and cultural rights and also because, for the latter, including the rights to cultural identity, a healthy environment, adequate food and water, to be justiciable before the Court, the signature of a supplementary protocol would be required, as in the case of the Protocol of San Salvador with regard to the right to organize and to join trade unions and the right to education.

• 93. I must also insist, once again, that this opinion does not question the existence of the rights to cultural identity, a healthy environment, adequate food and water. That is not its purpose. It merely maintains that their possible violation cannot be submitted to the consideration of the Court to be examined and ruled on.

• 94. In addition, it should not be understood that this opinion is opposed to violations of the economic, social and cultural rights eventually being submitted to the Court. I consider that, in that case, it should be by those responsible for the international normative function.Footnote ¹²⁹ [Page 349] It does not appear desirable that the organ responsible for the inter-American judicial function assume the international normative function, especially when the States are democratic and their respect for human rights is governed by the Inter-American Democratic Charter, which establishes the separation of powers and civic participation in public affairs,Footnote ¹³⁰ a separation that should also be reflected with regard to the international normative function, particularly of those norms that concern the citizen most directly.

• 95. From this perspective, it is worth insisting that interpretation does not consist in determining that the meaning and scope of a norm establish what the interpreter would like, but rather what it objectively establishes. In the case of the Convention, this means defining how what was agreed by the States Parties can be applied at the time and in the circumstances in which the respective dispute is filed; in other words, how to make the “pacta sunt servanda” principle applicable to the time and circumstances in which the dispute occurs. The issue is how to ensure that human rights treaties are, per se, truly living instruments; in other words, able to encompass or be applicable to the new realities encountered and not that it is their interpretation—as if it was a separate entity—that evolves with the time and circumstances, altering what such treaties establish.

• 96. Lastly, it is essential to repeat that, if the Court insists in following the line adopted by this judgment,Footnote ¹³¹ the inter-American human rights system, as a whole, could be severely restricted. This is because very probably, on the one hand, it would not motivate, but rather deter, the accession to the Convention of other States, and the acceptance of the Court’s contentious jurisdiction by those States that have not yet done so and, on the other hand, it could renew or increase the tendency among the States Parties to the Convention not to comply fully and promptly with its judgments. In sum, it would weaken the principle of legal certainty or security, which, in the case of human rights, also benefits the victims of their violation by ensuring [Page 350] compliance with the Court’s judgments because the said system is solidly based on the sovereign commitments made by the States.

• 97. In this regard, it should not be forgotten that, in practice and over and above any theoretical consideration, the function of the Court is to deliver judgments that re-establish respect for the human rights that have been violated as promptly as possible.Footnote ¹³² It is not certain that this can be achieved in relation to violations of human rights that were not considered justiciable before the Court in the Convention.

A. General consideration on the justiciability of Article 26 of the American Convention and the ESCER

• 3. In this opinion, I do not intend to elaborate on my position concerning the complex judicial dynamics in relation to Article 26 initiated by the case of Lagos del Campo v. Peru and regarding which I have had occasion to express my views in partially dissenting opinions in the cases of Lagos del Campo v. Peru,Footnote ⁴ Dismissed Employees of PetroPeru et al. v. Peru,Footnote ⁵ San Miguel Sosa et al. v. Venezuela,Footnote ⁶ Cuscul Pivaral et al. v. Guatemala,Footnote ⁷ Muelle Flores v. Peru,Footnote ⁸ National Association of Discharged and Retired Employees of the National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru,Footnote ⁹ and Hernández v. Argentina,Footnote ¹⁰ and also in my concurring opinions in the cases of [Page 352] Gonzales Lluy et al. v. Ecuador,Footnote ¹¹ Poblete Vilches et al. v. Chile,Footnote ¹² and Rodríguez Revolorio et al. v. Guatemala,Footnote ¹³ as well as in my concurring opinion in Advisory Opinion OC-23/17 on the Environment and Human Rights. Footnote ¹⁴

• 4. My purpose in referring to Article 26 in this specific case is to show how, three years after the first judgment that initiated the new interpretation, what was predicted at the time, has become a reality. Thus, in my concurring opinion in the case of Lagos del Campo v. Peru I stated:

  I hope that this opinion makes a contribution to understanding the magnitude of the decision that the majority of the Inter-American Court adopted in this case, and reveals the main problems arising from the judgment. Only sincere criticism and open and public debate can help mitigate, up to a certain point, the risks to legitimacy and legal certainty that may arise from this judgment.

• 5. The judgment delivered by the Inter-American Court in this case reveals that the misgivings that I felt at that time have materialized and, what is worse, would appear to have no limits. In this regard, I find it necessary to reiterate four specific aspects before making a thorough analysis of the problems arising from the change in case law undertaken by the Court in its approach to the rights of indigenous and tribal peoples.

• 6. First, in keeping with my position in relation to the ESCER, the lack of legal support for the fact that violations of these rights are being determined autonomously using the mechanism of individual petitions cannot be ignored. I repeat that the Court does not have this competence explicitly under either the American Convention or Article 19(6) of the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (hereinafter “Protocol of San Salvador”), interpreted in light of Articles 30 and 31 of the Vienna Convention on the Law of Treaties.

• [Page 353] 7. Hence, I should point out that, in the sections of the judgment on the right to a healthy environment and the right to adequate food, Articles 11 and 12 of the Protocol of San Salvador are expressly cited to affirm that the Argentine State has recognized the existence of these rights. However, the Court continues to totally disregard that, both Argentina and also the other States that have ratified the Protocol decided, in its Article 19, to admit the lodging of individual petitions only with regard to the rights contained in Articles 8(a) and 13 of that instrument. On this point, I am no longer sure which line of argument I consider most problematic; whether the one under which the existence of the Protocol of San Salvador within the legal framework of the inter-American system of human rights is entirely disregarded, or the one under which international instruments of soft law are referred to as convenience dictates. In any case, in this judgment, as in others in which the responsibility of a State has been determined for the direct violation of Article 26, there has been no extensive analysis of the grounds for the justiciability of the ESCER and the limits—clearly defined in the treaties establishing the contentious jurisdiction of this Court—have been contravened.

• 8. Second, following in the steps of its recent practice in relation to the ESCER, once again the majority makes an improper use of the iura novit curiae principle to analyze the possible violation of provisions of the Convention that have not been alleged, particularly with regard to the right to water supposedly contained in Article 26 of the Convention. We had understood that the misuse of this principle in judgments on the ESCER had been overcome, with the decision in the case of Hernández v. Argentina. In that case, which related to the violation of the personal integrity of a prisoner who contracted tubercular meningitis and failed to receive adequate medical care, the Court did not apply the iura novit curiae principle. In that case, in which the judgment was handed down on November 29, 2019, the Court did not analyze the violations that had occurred from the perspective of the right to health and the right to food, supposedly contained in Article 26, but, to the contrary, it analyzed them, as it had been doing before the change in its case law in 2017, from the perspective of the right to personal integrity. Thus, it appeared that the Court had returned to the sensible path of analyzing the ESCER in connectivity with other articles of the Convention. However, this judgment returns to the logic of the autonomous violation of the ESCER and also reiterates the use of the iura novit curiae principle in relation to the right to water without including criteria of reasonableness and pertinence.

• [Page 354] 9. Added to the improper use of the iura novit curiae principle, there are significant problems in the substantiation of the right to water in this judgment. In some of the judgments in which the Court has declared the violation of the ESCER, it has based itself on an erroneous interpretation of the referral made by Article 26 of the American Convention to the OAS Charter. According to this interpretation, the establishment of the list of rights on which the analysis of State responsibility is founded is left to the discretion of the judges of the Court, based on the aspirations expressed by the States in the OAS Charter. I have already mentioned on several occasions that the Charter does not contain a list of rights and, in practice, this means that the agent of justice ends up justifying the direct justiciability of the right based on a vague mention made of it in that text. Thus, for example, the word “health” is sought within a list of goals established in the OAS Charter; a large number of references to instruments that form part of the international “corpus iuris” are added and, based on this simple mention, it is declared that the subjective right is part of Article 26 of the Convention and, therefore, enforceable before the Inter-American Court.

• 10. However, in this judgment, the Court goes much further. The OAS Charter does not contain any reference to the right to water, which does not permit the line of argument that I have been describing. Consequently, the Court has decided that it is no longer necessary to look for even a mention of the right that it claims is justiciable in the OAS Charter, if its existence can be extracted from other rights that are mentioned in the latter. Thus, paragraph 222 states: “The right to water is protected by Article 26 of the American Convention and this is revealed by the provisions of the OAS Charter that permit deriving rights from which, in turn, the right to water can be understood.” Based on this interpretation, it could be argued that Article 26 of the Convention contains all the rights that the Court would like to make justiciable in a specific case and that it is not necessary for them to be alleged by the parties or that there is brief mention of them in the OAS Charter. It will be sufficient to include numerous citations of other declarations, treaties or soft law documents, in addition to referring to “a vast corpus iuris” to create an international obligation for the States. This is precisely what I was referring to in my opinion in the case of Lagos del Campo v. Peru when I spoke of the lack of legal certainty that arises from this type of interpretation. At the present time, the States have no way in which to be aware of, anticipate or even defend themselves from possible violations of Article 26 of the Convention for which they could be sentenced by the Inter-American Court.

• [Page 355] 11. Fourth, and irrespective of the problems that I will describe in relation to the scope of Article 21 of the Convention, I would like to point out the problems that arise from the definition and analysis of the interdependence of the rights made in this judgment. A whole section is dedicated to showing how the “new” rights contained in Article 26 are so interrelated that it is not necessary to make a specific analysis of the State’s responsibility for each one. Therefore, mention is made of the proven facts of the case and it is considered that the rights to a healthy environment, to food, to water and “to participate in cultural life” have been violated collectively. In this regard, I would just like to stress that the fact that human rights are interrelated, and even considered indivisible, does not mean that there are no differences between them and that, consequently, each one has its own scope. By making a collective analysis of the rights, without distinguishing between them, it is unclear what are the obligations that each one entails and the specific actions that a State can undertake to avoid violating them. Moreover, such an unfettered perspective of the interdependence of the rights could give rise to the paradox of understanding that, since they are all related in some way, any type of violation would entail the violation of all the rights contained in the Convention. Providing content to and establishing the scope of the rights is extremely important so that everyone can understand them and the States can respect them, but it is even more relevant in these cases in which, as I have already mentioned, new rights are being generated under Article 26 of the American Convention.

B. Need to weigh and balance the rights of indigenous and tribal peoples against the rights of third parties

• 12. In this case, there is no discussion on the right of the indigenous peoples to the territory claimed. The dispute centers on the actions taken by the State to ensure this right and, in particular, implementation of the agreement reached between the State, the settlers and the indigenous communities. Hence, this is a sentence sui generis because the dispute does not lie in the territory claimed, but rather in the measures taken by the State to implement the claim: a series of public policies and State actions that were supposed to create the conditions for the settlers to be able to move to lots on which they would be granted property rights.

• 13. In addition to the State’s failure to comply with what had been agreed previously with those involved, the judgment determined a series of violations of the human rights of the indigenous communities. [Page 356] However, I consider it important not to lose sight of the fact that, in this case, the non-compliance by the Argentine State also affected the rights of the peasant farmers who live in this territory in similar conditions of poverty and precarity. During the on-site procedure conducted when processing this case, I was able to witness these conditions firsthand. However, owing to the limitations to the Court’s jurisdiction in contentious cases, this group of individuals were unable to participate in the case because they were not alleged as victims in the proceedings.

• 14. Even though the Court has received and assessed all the evidence submitted during the proceedings and has been very aware of the situation of vulnerability of these settlers, it is necessary to rethink the dynamics of proceedings relating to the rights of indigenous and tribal peoples. In particular, when deciding situations derived from Article 21 of the Convention that affect or involve groups of non-indigenous settlers or peasant farmers who, as third parties, do not have a direct participation in the proceedings; especially, taking into account that these problems are usually accompanied by acts of violence, harassment, deaths or displacement. Such decisions should always be weighed, and seek a balance with the rights of third parties, in a context of dialogue, conciliation and the exclusion of factors that may contribute to causing or increasing situations of violence.

C. Problems of construing the meaning and scope of the right to communal property (Article 21 of the American Convention) in order to protect the rights of indigenous and tribal peoples

• 15. Possibly one of the Court’s most significant and most innovative jurisprudential developments has been its case law on indigenous and tribal peoples. With rulings that have no precedent by an international court, the Inter-American Court has delimited the State’s obligations in relation to the rights to communal property, prior consultation, political rights, and the principle of non-discrimination, among others; rights that are essential for the members of these communities. This is why, with much surprise and disappointment, I note how the intention of extending the case law on the justiciability of the ESCER has had an unfavorable result for the rights of indigenous and tribal peoples. Up until this judgment, the Court’s constant and reiterated position was to protect these rights in connectivity with Article 21 of the Convention. On this occasion, the majority of the Court has chosen to increase the trend of its case law on the ESCER so that the rights to participate in cultural life in relation to their cultural [Page 357] identity, to a healthy environment, to adequate food and to water are established autonomously in Article 26. This new interpretation of Article 26 of the Convention as a source of autonomous and justiciable rights involves a transcendental change in the substantiation of the rights of indigenous and tribal peoples.

• 16. In no way should my position be understood as contrary to the recognition of the rights to cultural life, a healthy environment, adequate food and water of the indigenous peoples. On the contrary, I consider that, in this case in particular their violation occurred in connectivity with the right to communal property recognized in Article 21 of the Convention, and not independently, as a violation of Article 26. In my opinion this unfortunate change in case law not only has an impact, indirectly, on a greater lack of protection for the rights of indigenous peoples, but also supposes an elevated level of unawareness of the essential characteristics of the rights of indigenous peoples for the following reasons.

• 17. First, using the excuse of a supposed direct protection of these rights from the perspective of Article 26 of the American Convention, the undisputable development and protection that this Court has been giving to the rights of indigenous and tribal peoples in the course of its case law is being overlooked. As I have pointed out, in this case the dispute does not lie in the right of the indigenous communities to the territories claimed, but rather in the State’s actions to implement what has been agreed. Perhaps this is why it appears that the importance given by the Court in its case law to communal property, its content and scope, has not been taken into account. This right, contained in Article 21 of the Convention, as the Court had understood up until this judgment, not only included “geographical certainty,” in addition to the demarcation, delimitation, titlingFootnote ¹⁵ and recognition of a territory in practice,Footnote ¹⁶ but also a larger series of other rights, such as the right to cultural identity, the right to prior consultation and the right to a healthy environment.

• 18. Starting with its first judgment in relation to the right to communal property in the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, the Court, in an evolutive interpretation, understood that the right to private property included the relationship between indigenous property and cultural identity. Specifically, it determined that “the close relationship that indigenous peoples maintain with the land must be recognized and understood as the [Page 358] fundamental basis of their cultures, their spiritual life, their integrity and their economic survival.”Footnote ¹⁷ Since then, the Court has been developing the meaning and scope of this right to cultural identity and a healthy environment always tied to the right to communal property, insofar as this notion of property includes “the natural resources linked to their culture […], as well as the incorporeal elements that are derived from such resources.” Footnote ¹⁸ The right to cultural identity and environmental rights have always been considered as inherent and inseparable elements of the right to communal property; they constitute two sides of the same coin. The axiom land, culture and resources to ensure the survival, both material and spiritual, of indigenous and tribal peoples, had become an essential element of the case law of the Inter-American Court.Footnote ¹⁹ Thus, an approach that does not take Article 21 of the Convention into account, such as the one that this judgment proposes, is not only legally incorrect, but also diverges from essential anthropological and sociological principles that describe and substantiate the particularity of indigenous and tribal peoples. These were revealed, even in this specific case, by the expert opinions and evidence. For example, expert witness Yáñez Fuenzalida concluded that “if indigenous communal property is not recognized, other connected rights could be violated such as the right to cultural identity, to survival as a people, and to food.”Footnote ²⁰

• [Page 359] 19. Second, by removing the rights to cultural identity and a healthy environment from the support of Article 21 of the Convention, there is a risk of weakening the singularity of the rights of indigenous and tribal peoples. Using the excuse of a direct and autonomous protection of the ESCER under Article 26 of the Convention subjects such peoples to the same conditions as the general population, disregarding their unique, inherent and differentiated characteristics. In this regard, the Court’s case law has been clear in indicating that the right of indigenous peoples to their territory is not a privilege to use the land, but rather a right that must be respected to ensure their very existence.Footnote ²¹ Without doubt, what was needed in this case, if the intention was to provide them with multi-level protection, was not to disassociate the possession of the land so comprehensively from the environmental and cultural rights, but rather to determine the violation of Article 21 in relation to Article 26 of the Convention.

• 20. Third, this change in the legal framework from Article 21 to Article 26 of the Convention not only constitutes an erroneous understanding of the particularities of the rights of indigenous and tribal peoples, but also opens up a hazardous pathway towards an incorrect approach as regards the effectiveness of the State obligations towards them. There is no doubt that, if a violation had been declared of Article 21 of the Convention in connectivity with the rights to cultural life, as regards their cultural identity, to a healthy environment, to adequate food, and to water, there would have been an immediate and effective obligation for the State to comply with this. However, the literal wording of Article 26 of the Convention establishes specifically that the obligations it contains are of a “progressive” nature. In other words, they are enforceable based on the adequacy of public policies and of the State’s capacity to implement them. The ESCER, by their nature, are rights that depend for their realization on the existence of the material conditions. Also, they are not “homogeneous” rights, because they have a varied scope according to the economic capabilities and the characteristics of the State and its bureaucratic apparatus. Consequently, there is no uniform standard for compliance with these obligations; rather their content may depend on the specific actions that each State is able to implement. The error of disconnecting the justification for indigenous rights from Article 21 of the Convention is that it lessens their peremptory nature. We understand, as did the Court up until this [Page 360] time, that the human rights of members of indigenous and tribal peoples cannot be subject to conditions that relate to the progressivity of their rights; rather they are rights that must be complied with immediately and effectively.

21. Fourth, another factor to stress is the fragility of the majority that took the decision, ratified by the qualifying vote of the President. Despite the validity and the sufficiency of the majority to take the decision based on the Court’s statutory and regulatory provisions, this particular way of achieving a majority reveals that the issue merited consensus and greater consistency in its development, to the extent that its purpose is the effective protection of rights rather than an apparently innovative advance in case law that, in any case, is far from being consolidated.

• 22. Fifth, as I have maintained in my concurring and dissenting opinions on the issue of the ESCER, the analysis of the violations by connectivity may have the same practical result as the “autonomous” analysis proposed by the majority in recent judgments. Evidently, the advantage of the analysis by connectivity is that it protects rights without generating institutional attrition and the argumentative and evidentiary weakness that gives rise to an analysis that draws different conclusions.

D. The rights of indigenous and tribal peoples have direct legal effectiveness and do not “require” domestic laws that develop them to give them effect

• 23. The rights of indigenous and tribal peoples to property demarcation, delimitation and titling—as the other rights of the indigenous population in general—are rights with direct and immediate legal effect. In other words, they do not require laws to give them effect. Thus, international responsibility arises when these rights are violated; consequently, the international judgment cannot be subordinated to the enactment of laws. In this regard, the majority decision may lead to numerous difficulties. The judgment establishes, in paragraphs 54 and 160 that, “there can be no doubt that the State recognizes the right to indigenous communal property” and that this “should be understood to be operative inasmuch as the State has the immediate and unconditional obligation to respect this.” It even adds the logical consequence of this premise which is that “[t]he possible absence of domestic laws does not excuse the State.” However, in contradiction to this it establishes that “the existing legal regulations are insufficient to provide legal certainty to the right to indigenous [Page 361] communal property since they fail to establish specific procedures that are appropriate for this purpose.”Footnote ²²

• 24. The Court has indicated that Article 2 of the Convention “obliges the States Parties to adopt, in accordance with their constitutional processes and the provisions of the Convention, such legislative or other measures as may be necessary to give effect to the rights and freedoms protected by the Convention.” Footnote ²³ However, in this case, as mentioned above, the dispute lay in the actions taken by the State in the domestic sphere—that is, it referred to the lack of due diligence of the authorities that resulted in their ineffectiveness—and not necessarily in the difficulties resulting from the design of the legislative measures.

• 25. In this regard, the criteria adopted by the Court in similar circumstances is illustrative. In the case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama, the victims’ representatives and the Inter-American Commission also alleged the absence of an adequate and effective procedure for the protection of indigenous territories vis-à-vis third parties.Footnote ²⁴ The Court verified that, indeed, in Panama there was no specific procedure for removing third parties who occupied the collective territories of the indigenous communities. However, it considered that it was neither essential nor necessary based on Article 2 of the Convention to create specific legal instances or actions or laws to ensure the rights of the indigenous population. The previous criteria should have been followed in this case because considering that the legal certainty of indigenous communal property is contingent upon the existence of legislative regulation ends up by generating an effect of lack of protection and lack of the direct legal effect of this right.

• 26. I should point out with concern that, from the perspective of case law precedent, it would appear that an exception has been introduced, or at least a reason for delaying the State’s obligations in relation to the indigenous and tribal communities of our countries. Evidently, the appropriateness of enacting laws to protect them is a completely different issue. Without doubt it is desirable and opportune that legal protection mechanisms are developed, but we cannot wait for the [Page 362] existence of a legal structure or architecture for human rights to be effective at the domestic level.

E. Problems of monitoring compliance with the measures of reparation on the restitution of the lands as regards timing and details

• 27. Lastly, but no less important, I wish to refer to the problems arising from the seventeenth operative paragraph, which imposes on the State the obligation to present bi-annual reports on compliance with the State obligation to “adopt and conclude the necessary actions, whether these be legislative, administrative, judicial, registration, notarial or of any other type, in order to delimit, demarcate and grant a collective title that recognizes the ownership of their territory to all the indigenous communities identified as victims.”Footnote ²⁵

• 28. First, I should point out that I do not disagree with the adoption of this measure of reparation, because I consider that, in this case, there was a violation of Article 21 of the Convention. Nevertheless, I consider that the criteria based on which it is sought to monitor this measure are disproportionate. In general terms, my disagreement is based on the way in which, recently, the Court is monitoring compliance with its judgments by activities that are not appropriate due to the principle of complementarity. In this case, the Court determined that “it will monitor” in detail and very frequently—every six months—compliance with this measure of reparation. I consider that, if it does this, the Court will lose sight of the goal, in between action plans, concrete activities and short-, medium- and long-term objectives. All the foregoing are absolutely necessary actions to ensure the effectiveness of the rights, but they do not require the direct oversight of a court, especially an international court. Ultimately, this measure introduces just one more element that could render the excellent objectives sought by the judgment inoperable.

• 29. In addition, I should point out that the level of specificity or responsibility of the Court when monitoring this measure is unclear. In other words, is it the Court that will approve the specific plans? Will the Court issue a new order on monitoring compliance every six months giving the green light to or rejecting specific actions? Over and above the theoretical and legal limitations that arise from the text of the Convention establishing the Court’s competences and their complementary nature, are the practical restrictions: that this complex interaction between the State and the Court, converts the Court into a [Page 363] sort of comptrollership of the State’s activities. Similarly, in the case of Carvajal et al. v. Colombia relating to the international responsibility of the State for the violation of the rights to life and to freedom of expression of a journalist, the Court ordered the State to forward the periodic reports that it sends to the specialized bodies of the OAS and the United Nations concerning the measures implemented for the protection of journalists in Colombia, without establishing a temporal limit.

• 30. One may wonder whether these measures are being ordered in a quest for institutional protagonism that will disproportionately increase the activities of monitoring compliance. Moreover, this could directly conflict with the functions of other institutions such as the Inter-American Commission, whose work of monitoring, prevention and advocacy are fundamental within the framework of the respective competences of the organs of the inter-American system of human rights. I am obliged to note that this tendency to seek structural approaches, without specific violations of rights, in both monitoring compliance and in provisional measures, does not correspond to the functions of this Court and may end up undermining the effectiveness of its decisions.

Introduction

• 1. Almost 20 years have passed since the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”) decided the first case in which it addressed indigenous communal property and referred to the special relationship that the indigenous peoples and communities have with their lands, territories and natural resources.Footnote ¹

• 2. Since then, and in subsequent cases, Footnote ² the Inter-American Court has adopted a broad vision of what “land” and “territory” signify for the [Page 364] original communities that inhabit the States that compose the inter-American system. And, even though the Inter-American Court was not the first international organ to address territoriality as part of the life of the indigenous and tribal peoples,Footnote ³ in each of the cases in which it has had occasion to rule on the issue, it has made a consistent and considerable effort to conceptualize comprehensively the obligations that States must comply with to respect and ensure the rights of these peoples and communities.

• 3. The case of the Indigenous Communities Members of the Lhaka Honhat (Our Land) Association v. Argentina (hereinafter “the judgment” or “the Lhaka Honhat case”)Footnote ⁴ adds to the precedents that have addressed the direct justiciability of the economic, social, cultural and environmental rights (hereinafter “the ESCER” or “the social rights”) Footnote ⁵ [Page 365] and reaffirms that, in relation to the civil and political rights, the former have their own content and scope that may be protected autonomously, but interdependently and indivisibly, a position that I have maintained since the case of Suarez Peralta et al. Footnote ⁶

• 4. The Lhaka Honhat case represents a milestone in inter-American case law for three reasons fundamentally. First, it is the first occasion on which the Inter-American Court rules autonomously on ESCER related to indigenous peoples and communities. Second, contrary to the precedents that the Court has had the occasion to examine, the judgment declares the violation of four ESCER that may be derived from and protected by Article 26 of the Pact of San José: the right to cultural identity, regarding participation in cultural life; the right to a healthy environment; the right to food; and the right to water.Footnote ⁷ Third, the reparations ordered have a differentiated focus, attempting to redress the violation of each of the social, cultural and environmental rights that the judgment declared had been violated.

• 5. It should not be overlooked that, in their “brief with pleadings, motions and evidence,” the victims’ representatives emphasized that they were asking the Court to “declare the violation of Article 26 of the American Convention owing to the violation of the rights to a healthy environment, to cultural identity, and to food, as autonomous rights,” all rights that—they asserted—were derived from the economic, social, educational, scientific and cultural norms contained in the Charter of the Organization of American States (hereinafter “the OAS Charter”).Footnote ⁸

• [Page 366] 6. Following this claim, the State, in its answering brief, did not file a preliminary objection on the Inter-American Court’s competence to examine alleged violations of the ESCER contained in Article 26 of the Pact of San José. To the contrary, it set out the reasons why they were not violated in this specific case, which reveals that there was no dispute with regard to the justiciability of these rights under this article of the American Convention. It is also worth emphasizing that, in its brief with “final observations,” the Inter-American Commission indicated that:Footnote ⁹

  Although the Commission did not determine a violation of Article 26 of the Convention in its Merits Report 2/12, in view of recent developments in the Court’s case law, it considers it important that the Court develop, for the first time, the violation of Article 26, with regard to the territorial rights of indigenous peoples, in particular as regards the right to food and other pertinent rights.

• 7. It should be stressed that this is not the first time that the Inter-American Court has been asked—either by the Inter-American Commission or by the victims’ representatives—to rule on the content of Article 26 in relation to the rights of indigenous communities, over and above the protection that Article 21 of the American Convention may grant in relation to their lands. In the Yakye Axa (2005)Footnote ¹⁰ and Sarayaku (2012) Footnote ¹¹ cases, the Inter-American Court had already examined the alleged violation of Article 26 of the Pact of San José, without considering that this article has been violated. Thus, the relevance of this case for inter-American and international case law [is] by settling a pending debt with the indigenous and tribal peoples and communities of our region.

• 8. Furthermore, it is important to underline the special interest that the Lhaka Honhat case has aroused in civil society, as revealed by the numerous and appreciated amicus curiae briefs submitted by associations, institutions and individuals,Footnote ¹² which were extremely [Page 367] useful and cited throughout the judgment as noted below.Footnote ¹³ Several of them referred to the competence to examine the autonomous violation of the ESCER protected by Article 26 of the American Convention, in light of the methodology adopted by the Inter-American Court in its precedents on the issue since the changes made in its case law in 2017.

• 9. Based on the above, and on my opinions in other cases on this matter,Footnote ¹⁴ I am issuing this separate opinion in order to reflect on some relevant aspects for inter-American public order that arise from this judgment. To this end, I have divided this opinion as follows: I. The land and the territory: their differentiated protection based on the American Convention on Human Rights and the ESCER (paras. 10 to 41); II. Autonomy and interdependence of human rights (paras. 42 to 59); III. Reparations focused on economic, social, cultural and environmental rights (paras. 60 to 69); IV. The amici curiae as a means of dialogue between civil society and the Inter-American Court (paras. 70 to 82); and V. Conclusions (paras. 83 to 87).

I. The land and the territory: Their differentiated protection based on the American Convention on Human Rights and the ESCER

• 10. The Inter-American Court, in the evolution of its case law, has substantiated rights of indigenous and tribal peoples and communities related to their land and territory through the right to property contained in Article 21 of the American Convention. This should not suggest that the territorial rights of indigenous peoples are circumscribed by or assimilate an aspect that is merely economic or patrimonial.

• 11. The Inter-American Court indicated this in the first judgment in which it addressed this matter as the central issue in dispute. Thus, in 2001, when deciding the case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, it stated that “among indigenous peoples there is a communal tradition regarding a form of communal ownership of the land, in the sense that ownership of the land is not centered on an individual but rather on the group and its community.” It also clarified that “[f]or indigenous communities, their relationship to the land is not merely a matter of possession and production, but a physical and spiritual element that they must enjoy fully, even to preserve their cultural legacy and transmit this to future generations.”Footnote ¹⁵ On the same occasion, the Inter-American Court indicated the right of the indigenous peoples “to live freely in their own territories”;Footnote ¹⁶ Subsequently, it emphasized the “unique and lasting ties that unite the indigenous communities to their ancestral territory.”Footnote ¹⁷

• 12. In my opinion, this important—and transcendental—precedent has different components that may be protected in a differentiated manner depending on the content of the right that has been violated. In this understanding, “the land” may include some aspects that are protected by Article 21 from the perspective of communal property. On the other hand, there is the more general concept of “the territory” (that although it includes the land as one of its elements, does not [Page 369] consist merely of this). Thus, the territory includes other more specific elements that can be protected—as occurred in the Lhaka Honhat case—by the rights protected by Article 26 of the American Convention in relation to the social, cultural and environmental rights. These elements include water, environmental protection, the resources on which the diet of indigenous peoples is based, and also their relationship with the territory as an expression of their cultural identity.

• 13. In this regard, the content of Article 13 of Convention No 169 of the International Labour Organization is particularly important;Footnote ¹⁸ and this is a convention that has been signed and ratified by Argentina:Footnote ¹⁹

  Part II. Land

  Article 13

  • (1) In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship.

  • (2) The use of the term lands in Articles 15 and 16 shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use. (bold added)

• 14. As noted from the above article transcribed from ILO Convention No 169, the first paragraph refers to “lands or territories” and then adds “or both”, while the second paragraph clarifies that the term “lands” in Articles 15 and 16 of this instrument—referring to rights over natural resources and standards for moving indigenous peoples from the lands they occupy—“shall include the concept of territories, which covers the total environment of the areas which the peoples concerned occupy or otherwise use.” The ILO has indicated, when explaining Article 13 cited above that “[t]he territory is the basis [Page 370] for most indigenous peoples’ economies and livelihood strategies, traditional institutions, spiritual well-being and distinct cultural identity.”Footnote ²⁰

• 15. The United Nations Declaration on the Rights of Indigenous Peoples adopted in 2007 very clearly established the protection provided both to the land as part of the territory, in a differentiated manner, and without subsuming “the territory” to the concept of “land.” Article 25 indicates:

  Article 25

  Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

  (Bold added)

• 16. In addition, Article 26 of this Declaration clarifies:

  Article 26

  • (1) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

  • (2) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

  • (3) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

  (Bold added)

• 17. The concepts indicated by the United Nations Declaration were reaffirmed—with certain nuances—in the 2016 American Declaration on the Rights of Indigenous Peoples. In particular, the Declaration added as a differentiated element of the land and the territory, the environment. Thus, Article XIX stipulates:

  Article XIX. Right to protection of a healthy environment

  • (1) Indigenous peoples have the right to live in harmony with nature and to a healthy, safe, and sustainable environment, essential conditions for the [Page 371] full enjoyment of the rights to life and to their spirituality, cosmovision, and collective well-being.

  • (2) Indigenous peoples have the right to conserve, restore, and protect the environment and to manage their lands, territories and resources in a sustainable way.

  • (3) Indigenous peoples have the right to be protected against the introduction, abandonment, dispersion, transit, indiscriminate use, or deposit of any harmful substance that could adversely affect indigenous communities, lands, territories and resources.

  • (4) Indigenous peoples have the right to the conservation and protection of the environment and the productive capacity of their lands or territories and resources. States shall establish and implement assistance programs for indigenous peoples for such conservation and protection, without discrimination.

  (Bold added)

• 18. In addition, and revealing the territory and the resources as aspects with a different content from the land, as well as their relationship to the ESCER, the American Declaration stipulates the “social, economic and property rights” in its fifth section, in which Article XXV indicates that:

  Article XXV. Traditional forms of property and cultural survival. Right to land, territory, and resources

  • (1) Indigenous peoples have the right to maintain and strengthen their distinctive spiritual, cultural, and material relationship with their lands, territories, and resources and to uphold their responsibilities to preserve them for themselves and for future generations.

  • (2) Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

  • (3) Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

  • (4) States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

  • (5) Indigenous peoples have the right to legal recognition of the various and particular modalities and forms of property, possession and ownership of their lands, territories, and resources, in accordance with the legal system of each State and the relevant international instruments. States shall establish special regimes appropriate for such recognition and for their effective demarcation or titling.

  (Bold added)

• [Page 372] 19. As we can see, international normative development reveals that the land and the territory are two aspects that concern indigenous peoples and that may be protected in a differentiated although interrelated way in many cases. This is especially clear in the recent American Declaration on the Rights of Indigenous Peoples because it distinguishes “the land” and “the territory” in different paragraphs, but also adds the protection of the “environment” (Art. XIX).

• 20. The foregoing reveals that the two concepts (“land” and “territory”) are strongly interrelated, but not strictly the same. Indeed, when the international instruments cited refer to “land” and “territory” together (and also to “resources”), they adopt a mechanism that permits a protection that encompasses more completely the connection between the indigenous peoples and their environment. At the same time, it can be inferred from the same normative that the terms have nuances, and the concept of “territory” which denotes the exercise of autonomy or jurisdiction is more encompassing while that of “land” is related more to the notion of a material possession that may be occupied, possessed or owned. The territory encompasses a cultural dimension and a spiritual connection. The right of the indigenous and tribal peoples to determine freely their own social, cultural and economic development includes the right to “enjoy the particular spiritual relationship with the territory they have traditionally used and occupied.”Footnote ²¹

• 21. The considerations of the Inter-American Court when ruling on the case of the Saramaka People v. Suriname in 2007 would appear to fall within this understanding. The Inter-American Court noted that the members of this people “had a strong spiritual relationship with the territory,” and clarified that “[w]hen using the term ‘territory,’ the Court refers to the totality of the land and resources that the Saramaka have traditionally used. Thus, the Saramaka territory belongs collectively to the members of the Saramaka people, while the lands within that territory are divided between the twelve Saramaka clans.”Footnote ²²

• [Page 373] 22. In another judgment, in 2012, the Inter-American Court referred to “incorporeal elements” linked to the territory, understanding that it was “pertinent to underline the deep cultural, intangible and spiritual ties that the community maintains with its territory, to understand more fully the harm caused in the […] case.”Footnote ²³

• 23. Likewise, in 2014, in the case of the Kuna Indigenous People of Madungandí and the Emberá Indigenous People of Bayano and their members v. Panama, the Inter-American Court noted how the “connection” between “territory” and “natural resources” used traditionally had implications for “physical and cultural survival, as well as for the continuity and development of their world view, […] their traditional way of life, their cultural identity, social structure, economic system, customs, beliefs and traditions.”Footnote ²⁴ Similarly, recalling its own precedents, Footnote ²⁵ in 2018, the Inter-American Court stated that “[w]hen the ancestral right of the members of the indigenous communities over their territories [is] ignored, other basic rights may be harmed, such as the right to cultural identity and the very survival of the indigenous communities and their members.”Footnote ²⁶

• 24. It is possible, therefore, based on the said examples, supported by international law, to differentiate the notions of “territory” and “land.” The latter concept would imply physical space, while “territory” should be understood as cultural life, in a broad sense related to that physical space. Thus, there is a connection between “territory” and indigenous “cultural identity.” In the words of the Inter-American Court:

  The culture of the members of the indigenous communities corresponds to a particular way of life and to be, to see and to act in the world, constituted based on a close relationship with their traditional territories and the resources found on them, not only because such resources are their principal means of subsistence, but also because they constitute an element that is part of their world vision, spirituality and, consequently, their cultural identity.Footnote ²⁷

• [Page 374] 25. That said, when deciding the case of Yakye Axa v. Paraguay in 2005, the Inter-American Court indicated that “the close relationship of the indigenous peoples with their traditional territories and the natural resources connected to their culture found therein, as well as the incorporeal elements derived from them, should be safeguarded by Article 21 of the American Convention” on the right to property.Footnote ²⁸ This has subsequently been repeated with nuances.Footnote ²⁹

• 26. The safeguard of territorial elements founded on the right to property is based on the aforementioned relationship between “territory” and “land,” so that the right to property in relation to the land permitted the protection of the territory, by a broad understanding of collective property. This finds justification and has been effective in rulings of the Inter-American Court to protect rights of indigenous and tribal peoples, especially at the jurisprudential stage of the indirect protection, or protection by connectivity, of the ESCER.

• 27. However, this does not prevent noting that there are different aspects that may be related to the “territory” and that there are numerous rights that, in different cases, may be affected. Although the Inter-American Court had generally examined violations related to the “territory” based on Article 21 of the American Convention, there is no reason to exclude a priori the possibility of analyzing other rights. Depending on the case, this may even be more appropriate, considering the breadth of the notion of “territory” and the different rights that it encompasses. This has had special relevance since the case of Lagos del Campo v. Peru,Footnote ³⁰ when the Inter-American Court has been analyzing [Page 375] the ESCER autonomously under Article 26 of the American Convention, and these rights may reflect territorial problems, as in the Lhaka Honhat case.

• 28. In my opinion, in the Lhaka Honhat case the Inter-American Court has clarified that, on the one hand, “the land” as indigenous ancestral collective property has a content that may be protected by Article 21 of the Pact of San José. On the other, when analyzing the ESCER in a separate chapter of the judgment, resources such as water, the products that form part of the traditional diet, and the natural environment are differentiated as a form of cultural expression and of identity; as elements that although they are connected to the “land” are, in reality, part of the concept of “territory,” an element that is much broader and more comprehensive from the point of view of the world view of the indigenous communities owing to their close relationship to their territory.

• 29. I therefore consider it appropriate that the judgment addresses, in a separate chapter, the violations related to the rights to a healthy environment, water and food and their particular impact on the right to cultural identity as a specific offshoot of the right to take part in cultural life.Footnote ³¹ Specifically, Chapter VII.2 of the judgmentFootnote ³² includes an autonomous analysis of each of the rights that is of vital importance in this case because the indigenous peoples have a special relationship with their territories, and especially with the elements that these territories contain.

• 30. Regarding this way of addressing the issue in the judgment, the Inter-American Court’s decision to determine a violation of the right to water, which was not directly alleged by the parties or the Inter-American Commission, should be emphasized. It is true that this right—as the judgment stresses—is closely related to the others, such as the rights to a healthy environment and to food. However, it has its own specificity and has particular importance for the indigenous peoples and communities because access to, and the use of, water and the way in which this is implemented, is central not only because of its obvious implications for the physical survival of the peoples, but also owing to its relevance for the development of their cultural life, and the distinctive indigenous way of life.Footnote ³³

• [Page 376] 31. The judgment underlines how the presence on the territory of non-indigenous settlers and activities alien to the traditional practices of the communities, such as livestock farming, affect access to water—leading to desertification and contamination—as well as the possibilities of “survival of the aboriginal cultures that […] depend on the [Pilcomayo] river,” as one of the expert witnesses indicated. And this is despite the fact that the State itself had considered that the area should be preserved and the environment protected. In this context, evidence submitted in the case indicated that most of the indigenous communities were unable to obtain potable water and sufficient food, and that their indigenous way of life had also been altered. Thus, in a case with the characteristics of the Lhaka Honhat case, the appropriate nature of an analysis such as the one made by the Court, which considered the interrelationship between water, the environment and food and cultural life [sic]. This analysis, by interrelating the different rights and considering the particular characteristics of the indigenous peoples, avoided a restrictive or biased vision that could have led to a misunderstanding of the full dimension of the problem in this case and the human rights violations committed.Footnote ³⁴

• 32. In addition, I consider that the way in which this case was decided (that is, by analyzing the issues relating to indigenous communal property in a separate chapter from the analysis of the issues relating to the ESCER) was correct because, to the contrary, the Court would have run the risk of considering that it was only to the extent that indigenous communal property protected by Article 21 was declared [Page 377] violated that possible violations of ESCER related to the indigenous territory could be analyzed.

• 33. I should emphasize that the separate analysis of Articles 21 and 26 of the American Convention does not ignore the Court’s previous case law in relation to the territory, which includes the land and the natural resources. To the contrary, it reinforces the thesis that, in the case of indigenous peoples who have a special relationship with their ancestral territories, it is necessary to make a detailed analysis of each and every element that forms part of their rights; in other words, both “their right to indigenous collective property” and their “right to the territory.”

• 34. Consequently, when taking a decision on some of the elements included in the concept of “territory” by means of Article 26 of the American Convention—in other words, on the rights to a healthy environment, to water, to food and to take part in cultural life—the Inter-American Court is not disregarding the extensive case law on this matter. To the contrary, the Court is optimizing the way in which this concept should be understood, which goes beyond the traditional understanding of the property protected by Article 21 of the American Convention.

• 35. Similarly, when deciding the case of the African Commission on Human and Peoples’ Rights (on behalf of the Ogiek indigenous community) v. Kenya in 2017, the African Court on Human and Peoples’ Rights separated its analysis of the land (property) from the content of other rights, such as the right to culture and the right to dispose of natural resources. Regarding the former, it indicated that “in its classical conception, the right to property usually refers to three elements: namely the right to use the thing that is the subject of the right (usus), the right to enjoy the fruit thereof (fructus) and the right to dispose of the thing, that is the right to transfer it (abusus)”;Footnote ³⁵ therefore “it follows in particular from Article 26(2) of the Declaration [of the United Nations on the Rights of Indigenous Peoples] that the rights that can be recognized for indigenous peoples/communities on their ancestral lands are variable and do not necessarily entail the right of ownership in its classical meaning, including the right to dispose thereof (abusus). Without excluding the right to property in the traditional sense, this provision places greater emphasis on the rights of possession, occupation, use/utilization of land.”Footnote ³⁶

• [Page 378] 36. On the other hand, regarding the right of the peoples to enjoy their wealth and natural resources that are recognized autonomously in Article 21 of the African Charter on Human and Peoples’ Rights, the African Court indicated that “[i]nsofar as [the right to property] has been violated by the [State], the Court holds that the latter has also violated Article 21 of the Charter, since the Ogieks have been deprived of the right to enjoy and freely dispose of the abundance of food produced by their ancestral lands.” In this understanding, the African Court, instead of subsuming the content of the right “to enjoy the natural resources” within the content of the right to property, analyzed each of the rights in its judgment, understanding that they each had their own content. As the judgment indicates, this does not deny the link that exists between the violations.

• 37. In the judgment in the Ogiek case, in keeping with this position of understanding the content of each right autonomously, the African Court made a distinction between “the right to religion” and the “right to culture.” In this regard, the African Court indicated that “[t]he right to freedom of worship [or, in other words, the right to religion] offers protection to all forms of beliefs regardless of denominations: theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief.” However, it clarified that “[t]he Court notes that, in the context of traditional societies, where formal religious institutions often do not exist, the practice and profession of religion are usually inextricably linked with land and the environment.” It also indicated that “[i]n indigenous societies, in particular, the freedom to worship and to engage in religious ceremonies depends on access to land and the natural environment. Any impediment to, or interference with accessing the natural environment, including land, severely constrains their ability to conduct or engage in religious rituals with considerable repercussion on the enjoyment of their freedom of worship.” On this basis, the African Court concluded that Article 8 of the African Charter on the right to freedom of worship had been violated.Footnote ³⁷

• 38. The African Court also distinguished between the violation of Article 8 and the content of the violation of the cultural rights established in Article 17(2) and 17(3) of the Banjul Charter.Footnote ³⁸ In this regard, that Court indicated that “[t]he right to culture enshrined in […] the [African] Charter is to be considered in a dual dimension, in both its [Page 379] individual and collective nature. It ensures protection, on the one hand, of individuals’ participation in the cultural life of their community and, on the other, obliges the State to promote and protect traditional values of the community.”Footnote ³⁹ In this judgment, it also added that:

  The protection of the right to culture goes beyond the duty not to destroy or deliberately weaken minority groups, but requires respect for, and protection of, their cultural heritage essential to the group’s identity. In this respect, culture should be construed in its widest sense encompassing the total way of life of a particular group, including the group’s languages, symbols such as dressing codes and the manner the group constructs shelters; engages in certain economic activities, produces items for survival; rituals such as the group’s particular way of dealing with problems and practicing spiritual ceremonies; identification and veneration of its own heroes or models and shared values of its members which reflect its distinctive character and personality.Footnote ⁴⁰

  In the instant case, the Court notes from the records available before it that the Ogiek population has a distinct way of life centered and dependent on the Mau Forest Complex. As a hunter-gatherer community, they get their means of survival through hunting animals and gathering honey and fruits; they have their own traditional clothes, their own language, distinct way of entombing the dead, practicing rituals and traditional medicine, and their own spiritual and traditional values, which distinguish them from other communities living around and outside the May Forest Complex, thereby demonstrating that the Ogieks have their own distinct culture.Footnote ⁴¹

• 39. These precedents of the African Court in the Ogiek case and, now, the Inter-American Court in the Lhaka Honhat case position themselves as two precedents that show that each of the rights that can be analyzed in a case (in these judgments on indigenous and tribal issues) have specific connotations that should be observed and assessed autonomously to be able to understand and comprehend integrally the way in which the indigenous peoples relate to their environment. And, it is precisely the possibility of the autonomous justiciability of the ESCER by means of Article 26 of the Pact of San José, that allows the Inter-American Court to make this analysis without negating its previous case law.

• [Page 380] 40. Evidently, the difference between “land” and “territory” cannot be understood categorically in relation to indigenous and tribal peoples, as revealed by the Court’s case law. However, the use of the two concepts permits, among other matters, distinguishing and comprehending diverse characteristics that may harm the rights of indigenous peoples. Thus, many violations of their cultural life and associated rights may be linked to the free enjoyment of the territory, but not in all cases necessarily be related to the right to property. At times, violations of the rights of indigenous or tribal peoples, while related to the territory, may best be analyzed based on rights other than the right to property.

• 41. The evolution of inter-American case law, which has resulted in an autonomous understanding of the ESCER, helps to underscore the said differences and nuances and to make a more precise analysis: it will not always be necessary or pertinent to turn to the right to property in order to examine violations of rights associated with the territory. The judgment in the Lhaka Honhat case is an example of this. By examining rights under Article 26, the Court has not tried to deny the relationship between the rights to a healthy environment, adequate food, water and cultural identity and the territory. To the contrary, in the instant case, this relationship is undeniable, as well as the interdependence between them. But this has had a separate and differentiated impact on the said rights that allows them to be examined autonomously, in relation to the violation of the right to property.

II. Autonomy and interdependence of human rights

• 42. The autonomy of rights (both ESCER and civil and political) in no way opposes their interdependence. Indeed, the concept of interdependence can only be understood based on autonomy. Interdependence is predicated with regard to autonomous entities; to the contrary, it would be meaningless. The meaning of these concepts, thus, should eliminate an understanding that, by emphasizing the connectivity between the rights, results in the enforceability of one of them being a necessary condition for the enforceability of others.

• 43. “Autonomy” refers to the fact that each right has its own legal content, that differs from that of others. The different rights refer to different entitlements (health, liberty, education, life, etc.), and a series of obligations must be complied with in order to protect them. Each right contains particularities that give meaning to its differentiated legal recognition.

• 44. Thus, merely as an example, based on considerations of the United Nations Committee on Economic, Social and Cultural Rights [Page 381] (hereinafter “the CESCR”), the right to social security, as it is established in the International Covenant on Economic, Social and Cultural Rights, entails, among other matters, the establishment by the States of “social security schemes that provide benefits to older persons starting at a specific age, to be prescribed by national law”; and that provide “benefits” to older persons who reach the prescribed age even if they “have not completed the qualifying period of contributions, or are not otherwise entitled to an old-age insurance-based pension or other social security benefit or assistance, and have no other source of income.”

• 45. It would appear that this State obligation to provide old-age benefits, not necessarily related to employment, exceeds the obligations that might be derived from other rights, because it does not derive from them a priori. And this is despite the fact that, in different circumstances, the possible violation of the right to social security could have an impact on the enjoyment of other rights. The Committee itself has clarified that the content of the right to social security is different from that of other rights: “The right to social security plays an important role in supporting the realization of many of the rights in the Covenant, […h]owever, the adoption of measures to realize other rights in the Covenant will not in itself act as a substitute for the creation of social security schemes.”Footnote ⁴²

• 46. This latter concept, that a right can “play an important role in supporting the realization” of others is related to the interdependence of the rights. In 1993, the Vienna Declaration and Programme of Action, which established the international human rights agenda at the global level, stipulated that “[a]ll human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally.” In 2012, this was reaffirmed in the American sphere by the Social Charter of the Americas which indicates: “the universality, indivisibility, and interdependence of all human rights and their essential role in the promotion of social development and the realization of human potential.”Footnote ⁴³ No right can be enjoyed in isolation, its enjoyment depends on the enjoyment of all the other rights.

• 47. The concept of “interdependence” refers to the connection between the rights that means that the realization or satisfaction of some of them depends on that of the others. Thus, for example, it [Page 382] cannot be considered that freedom of conscience and religion can truly be realized if freedom of thought and expressions is not guaranteed.

• 48. The autonomy of the ESCER based on Article 26 does not deny (cannot deny) their interdependent nature, with each other and with other civil and political rights. When examining cases that involve rights protected by this article, the Court has frequently taken decisions based on this nature. Some examples of this may be mentioned.

• 49. In the case of Poblete Vilches v. Chile, the Inter-American Court noted that the failure to obtain informed consent for a medical act violated not only the exercise of the right to health, but also the right of access to information and to freely take decisions about one’s own body, which had an impact on personal autonomy, and on private and family life. Furthermore, since it was concluded that there had been a relationship between failures in the provision of health care and the suffering and death of the victim, the Court declared that the right to life and to personal integrity had been violated “in relation” to the right to health.Footnote ⁴⁴

• 50. In its decision in the case of San Miguel Sosa et al. v. Venezuela, the Court verified that the facts of the case revealed that the arbitrary termination of an employment relationship had been used as a form of reprisal and “political discrimination” owing to the exercise of the rights to political participation and to freedom of expression and that, in this regard, the victims were not guaranteed access to justice. The Court therefore determined that there had been a violation of the right to work (Article 26) “in relation” to “the right to political participation, freedom of expression, and access to justice, as well as the principle of non-discrimination.”Footnote ⁴⁵

• 51. In the case of the National Association of Discharged and Retired Employees of the National Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru, the Court also indicated that one “of the fundamental elements of social security is its relationship to the guarantee of other rights,” and that the said right was “interrelated” with the right to a decent life, that was infringed in that case. In addition, it concluded that the failure to receive the sums to which the victims had a right, given their right to a pension, also violated the right to property. In that case, this was linked to delays and non-compliance with judgments on pensions. The Court determined that the right to [Page 383] social security, a decent life and property had been violated “in relation” to the rights to judicial guarantees and judicial protection.Footnote ⁴⁶

• 52. In the case of Cuscul Pivaral et al. v. Guatemala, the Court determined that there had been a violation of the right to health and, in relation to this right, non-compliance with the prohibition of discrimination and the principle of progressivity; but, also, that the lack of adequate medical care had a causal nexus with the suffering and death of certain persons, and it therefore declared that the rights to personal integrity and to life had been violated “in relation” to Article 26, which protects the right to health.Footnote ⁴⁷

• 53. In the case of Hernández v. Argentina, the Court noted that medical care had not been provided to an individual deprived of liberty and that “the suffering and deterioration of personal integrity caused by the lack of adequate medical care—and the consequent harm to health—of a person deprived of liberty may constitute, in themselves, cruel, inhuman and degrading treatment.” It understood that there had been a violation of both personal integrity (which constituted degrading treatment) and the right to health.Footnote ⁴⁸

• 54. That said, the examples cited (to which others could be added), differ from an understanding that, based on noting a connectivity between the rights, flatly denies their autonomy.

• 55. In the specific context of the application of Article 26 of the American Convention, if it is inferred, as the Court has, that this article protects the ESCER, and that the Court has competence to decide on presumed violations of such rights, there is no reason to then make their examination dependent on their connection to any of the other rights established in the American Convention or, eventually, in other treaties for which the Inter-American Court has competence.

• 56. An interpretation such as the one indicated would lead to an unjustified ranking of the rights established in Articles 3 to 25 of the American Convention, above those included in its Article 26. This would be contrary to the equal rank that, a priori, the two groups of rights possess, and that can be inferred from the Preamble to the American Convention itself, which indicates that “the ideal of free [Page 384] men enjoying freedom from fear and want can be achieved only if conditions are created whereby everyone may enjoy his economic, social, and cultural rights, as well as his civil and political rights.”

• 57. On this basis, in the case of Lagos del Campo v. Peru in which direct violations of the ESCER were declared for the first time based on Article 26 of the Pact of San José, the Court “reiterated the interdependence and indivisibility that exists between the civil and political rights, and the economic, social and cultural rights because they should be understood integrally and comprehensively as human rights, without any ranking among them and enforceable in all cases before the competent authorities.”Footnote ⁴⁹

• 58. In addition, a form of analysis, even one that takes Article 26 of the Pact of San José into consideration, but that makes the application of this norm depend on the connectivity of a right recognized in this instrument with another that is not, would result in a partial and limited understanding of the ESCER. This is because the content of the rights included in Article 26 that would be justiciable before the Inter-American Court, would be limited to a right which could be related to the content of another civil or political right incorporated into other articles of the American Convention.

• 59. The result of this type of interpretation, which I consider cannot be justified, would, in practical terms, return matters to the situation before the change in case law resulting from the case of Lagos del Campo in 2017. Accordingly, it would result in the eventual determination of a violation of Article 26 of the Pact of San José only being found if some aspect of an ESCER included in that article could be inferred from other rights that had previously been declared to have been violated. In other words, the mention of Article 26 would be merely accessory and without substance, ranking and establishing categories among human rights.

III. Reparations focused on economic, social, cultural and environmental rights

• 60. From the perspective of the ESCER, a key aspect is the section of the chapter on reparations entitled “Measures for the restitution of the rights to a healthy environment, to food, to water and to cultural identity.” This is unique in inter-American case law on indigenous issues because it does not focus the reparations on the “land” as an element of [Page 385] communal possession, but rather on the comprehensive restitution of differentiated elements of the “territory” which the Court declared had been violated autonomously in the judgment.

• 61. Indeed, the autonomous determination of the rights to a healthy environment, to adequate food, to water and to participation in cultural life had concrete consequences on the measures of reparation ordered in the judgment. Having proved the violation of those rights, it was appropriate to determine reparations aimed specifically at redressing these violations. A possible understanding to the contrary, that might have subsumed the violations within the right to property, could have led to more limited reparations aimed only at restoring that right.

• 62. Consequently, added to the measures requiring the delimitation, demarcation and titling of the property, as well as the removal of the non-indigenous population, the Court ordered other measures of restitution specifically addressed at the rights to a healthy environment, to adequate food, to water and to cultural identity: (a) elaboration by the State of a report identifying critical situations of lack of access to drinking water or to food and the preparation and implementation of an action plan in this regard; (b) preparation and presentation of another report establishing the actions required to achieve the permanent conservation of water resources on indigenous territory, and access to potable water and food, and to avoid the continued loss of the forest and achieve its gradual recovery; and (c) creation of a community development fund to finance actions to recover indigenous culture.Footnote ⁵⁰

• 63. It should be emphasized that in view of the complexity of the case and the actions ordered, the Inter-American Court has sought to ensure that the precise definition of the specific actions to be taken is decided subsequently, with the intervention of State authorities and the indigenous communities declared victims and their representatives. The judgment establishes an active intervention of the Inter-American Court in this process based on the assessment of the said reports.

• 64. Regarding the community development fund, the specific definition of its use—notwithstanding the basic standards established by the Inter-American Court—will also be determined with the intervention of both the State and the indigenous communities. Thus, the judgment established that: (a) the objectives for which the fund is used [Page 386] should be defined by the indigenous communities; (b) on this basis, program design and execution should be defined based on the “active participation” of the indigenous communities and their representatives; and (c) in order to comply with the foregoing, the fund would be administered by a committee on which the indigenous communities and the State would be represented.

• 65. This way of establishing measures of reparation that relate to the violations of the ESCER seeks to achieve different objectives. On the one hand, it ensures the due participation of the indigenous communities declared victims themselves, as well as through the intervention of their representatives, in the determination of actions that have an impact on the way in which they recover the enjoyment of their rights. On the other, it ensures that the measures are more effective, since the actions can be defined more precisely based on participatory interaction, technical reports and detailed workplans, as ordered in the judgment. Furthermore, this greater precision and effectiveness is sought in order to exercise what could be called a “dynamic control” of compliance with the measures because some of the details could be decided during the process of monitoring compliance with the intervention of the different parties to the proceedings, including the Inter-American Commission. In this regard, the judgment indicates that the Court, following the observations of the victims’ representatives and the Inter-American Commission, will assess the action plans presented by the State, and may request that they be expanded or completed, as appropriate.

• 66. The judgment also establishes an active role for the Inter-American Commission, encouraging it—always “within the framework of its functions and possibilities”—“to assume the role of facilitator” between the parties, “to contribute” to compliance with the measures. Lastly, the Court has endeavored to respect the State’s functions and obligations in the determination of the actions. Here, it should be stressed that, not only is it the State that should, pursuant to the said standards, prepare the reports and plan the actions to be taken, but also the measures adopted should be adequate, and “in keeping with State public policies, government plans, and the pertinent provincial or national laws.”Footnote ⁵¹

• 67. The intervention of courts in litigations involving the ESCER is frequently disputed, considering that these rights involve social benefits—which are not unrelated to the civil and political rights—based on [Page 387] reasons that, in different ways, refer to the lack of legitimacy or capacity of jurisdictional organs to define public policies. For example, it is said that the courts lack technical or budgetary information; that they are unable to evaluate such information adequately, and that they do not have legitimacy in this regard (which is usually attributed to executive or legislative organs). Aspects such as these pose—on a case-by-case basis—important challenges to the jurisdictional activity. However, they cannot negate or impair the justiciability or effectiveness of rights that are full in force and autonomous. In this regard, the judgment has attempted to take up this challenge, seeking a way of implementing the measures of reparation that truly restitutes the rights that have been violated and addresses the difficulties and complexity of the activities required to do this.

• 68. Thus, the Inter-American Court has tried to make an autonomous examination of the ESCER, to establish measures of reparation in keeping with the violation of these rights, and to ensure that these measures are truly appropriate. But also, enabling a subsequent more precise definition of these measures to facilitate their implementation, always under the supervision of the Inter-American Court and within a time frame considered sufficient for their execution.

• 69. Accordingly, as indicated in the respective chapter, the reparations are founded on social rights and seek to restore the enjoyment of the content of each of these rights that the judgment declared had been violated. I consider that the specificity of these measures of reparation constitutes an example of the Inter-American Court’s ability to establish reparations that are in keeping with the violations of the ESCER and in conformity with the particularities of each case.

IV. The amici curiae as a means of dialogue between civil society and the Inter-American Court

• 70. The Court’s first five Rules of Procedure did not include the mechanism of the amicus curiae. However, this did not prevent various non-governmental organizations submitting amici curiae to the Court the first time it ruled on the merits of a contentious case,Footnote ⁵² and this paved the procedural way for this to continue to be the usual practice before the Inter-American Court. It was only in 2009 when, in an [Page 388] amendment to the Rules of Procedure at that time, the definition of this mechanism was included, together with the first specific regulation concerning its presentation.Footnote ⁵³

• 71. Accordingly, the expression amicus curiae refers to “the person or institution, who is unrelated to the case and to the proceeding and submits to the Court reasoned arguments on the facts contained in the presentation of the case or legal considerations on the subject-matter of the proceeding by means of a document or an argument presented at a hearing.”Footnote ⁵⁴

• 72. The Court’s current Rules of Procedure, in force since January 2010, establish the possibility of submitting an amicus curiae brief in contentious cases before the Inter-American Court, and also during the proceedings on monitoring compliance with judgment and on provisional measures.Footnote ⁵⁵ In the case of the Court’s advisory function, the Rules of Procedure establish that “any interested party” may submit “a written opinion on the issues included in the request.”Footnote ⁵⁶

• 73. This mechanism has played a significant role in the case law of the Inter-American Court. This is reflected by the fact that amicus curiae briefs have been submitted in 143 contentious cases and written opinions have been presented in 23 advisory opinions. Amicus curiae briefs have also been submitted in proceedings on provisional measures and on monitoring compliance with judgment, although to a lesser extent.Footnote ⁵⁷ In the words of the Inter-American Court on their utility:Footnote ⁵⁸

  1. [Page 389] 60. The Court accords special importance to the submission of amicus curiae, recognizing their significant contribution to the inter-American system through the presentation of reasonings related to particular cases, legal considerations on the subject-matter of the proceedings, and other specific issues. Thus, as indicated by the Court on repeated occasions, they contribute arguments and opinions that may serve as input on aspects of the law that are aired before it.

• 74. Regarding indigenous and tribal issues, in the course of its contentious function, the Court has received amicus curiae briefs in ten cases that were essentially related to the land and the territory,Footnote ⁵⁹ forced displacement,Footnote ⁶⁰ political participation,Footnote ⁶¹ and massacres.Footnote ⁶² The case of Lhaka Honhat adds to these. Their utility in this judgment is evident, because the helpful content of the amici curiae submitted by organizations, institutions and individuals has been incorporated into several sections.Footnote ⁶³

• 75. A total of eight briefs of this type were presented to the Court in the Lhaka Honhat case by 20 different organizations, institutions and [Page 390] private individuals, who submitted different observations and set out substantive arguments on certain issues. Most of the briefs addressed the right of the indigenous peoples to their ancestral territory with special emphasis on the right to be consulted,Footnote ⁶⁴ as well as on aspects relating to the partial occupation by settlers and the need for the territories of indigenous and tribal peoples to be sufficiently extensive and of good quality.Footnote ⁶⁵

• 76. Another aspect of these briefs related to the direct justiciability and autonomous protection of the economic, social, cultural and environmental rights. In this regard, arguments were submitted to declare that the human rights to food, to cultural identity, to a healthy environment and even to water—the latter, which was not alleged by either the victims’ representatives or by the Inter-American Commission, but was incorporated in the judgment under the iura novit curia principle—were rights protected by Article 26 of the American Convention based on the methodology previously used in the Inter-American Court’s case law, which, according to these briefs, were violated by the Argentine State in this case.Footnote ⁶⁶

• 77. Furthermore, they proposed criteria that, based on its methodology since the 2017 case of Lagos del Campo, the Inter-American Court should use to interpret both the content of the said rights and the series of related obligations. In this way, these briefs reinforced the jurisprudential line initiated by the Court, but with a vision and a focus [Page 391] on the relationship that exists between the ESCER and the indigenous ancestral territories, which reveals the need and importance of continuing to address such problems autonomously, directly and integrally.

• 78. The amici curiae that were submitted also contributed important elements that were reflected in the judgment concerning the “fission-fusion” processes,Footnote ⁶⁷ problems of the domestic legal system in relation to indigenous communal property,Footnote ⁶⁸ the importance of environmental impact assessments made by independent and technically capable entities or on the rights to a healthy environment,Footnote ⁶⁹ to food, to water, and to cultural identity of the indigenous peoples,Footnote ⁷⁰ or on the importance of the right to a healthy environment as an essential component of development policies and in order to combat climate change, as well as its connection to the indigenous peoples in the 2030 Agenda of the United Nations.Footnote ⁷¹

• 79. Based on the above, it can be said that one of the fundamental pillars of the Inter-American Court’s work is the permanent communication with organizations, institutions and society in general, which takes places in both directions—in other words, the Court, by establishing regional standards for human rights, and the organizations, institutions and individuals, by their active participation in procedures and proceedings using the mechanisms of the amicus curiae—and which strengthens the multidimensional dialogue in favor of inter-American public order in the region.

• 80. The amicus curiae mechanism has become an important tool of the Inter-American Court that enhances its jurisprudential work and the effective protection of human rights, and is increasingly being used by non-governmental organizations, academic institutions and members of civil society who have a legitimate interest in the issues discussed before the organs of the inter-American system. Even though such briefs are not binding and lack evidentiary value,Footnote ⁷² they allow the [Page 392] Court to benefit from greater insight regarding domestic and international law and, by drawing on valuable contributions from civil society, it can gain a panoramic view of the implications of its decisions.

• 81. The inter-American system not only encourages the use of the standards issued by the Inter-American Court, but also the Court’s openness to receiving observations and opinions in the exercise of its contentious and advisory jurisdiction, and this ensures that there is a bi-directional, rather than an unidirectional, sharing of ideas.

• 82. The constructive and exemplary dialogue generated by the participation of organizations, institutions and individuals using the mechanism of amicus curiae submitted to the Court must continue to be encouraged, thereby creating an inclusive environment for ideas that promotes more and better protection for human rights in the region, and results in the permanent evolution of American law.

V. Conclusions

• 83. The case of Lhaka Honhat constitutes the first contentious case in which the Inter-American Court has ruled directly and autonomously on the rights to a healthy environment, to food, to water and to cultural identity, the latter as an offshoot of the right to enjoy cultural life.Footnote ⁷³

• 84. In this regard, for each of the rights analyzed, the Court identified the provisions of both international law,Footnote ⁷⁴ and comparative constitutional law;Footnote ⁷⁵ but, in particular, the way in which these rights have been recognized and incorporated by Argentine constitutional law.Footnote ⁷⁶ It is also relevant to emphasize that Argentina did not file a preliminary objection on the Court’s competence to examine the autonomous violation of these rights; to the contrary, the State merely submitted arguments on why it considered that the rights had not been violated in this case, which reveals that there was no dispute about their justiciability.

• [Page 393] 85. It is also the first occasion on which the Court has declared the violation of Article 26 of the American Convention in a case relating to indigenous and tribal peoples and communities, based on the methodology used in the precedents on the direct justiciability of the ESCER. This case has underscored the close ties between the rights to take part in cultural life (as this relates to their cultural identity), to a healthy environment, to adequate food, and to water, which are analyzed from a perspective of guaranteeing the rights of the communities that were declared victims. In particular, the judgment focuses on the content of these rights based on the subject-matter involved: namely, indigenous peoples and communities. The judgment understands that they have, and express, a particular way of seeing and understanding their environment based on their specific world view, which called for a comprehensive assessment of the possible violations of the Pact of San José.

• 86. This judgment is a response to one of the major debts owed by the inter-American case law to indigenous issues, especially because it develops and places the “territory” as its central element, considering it a concept that includes not only the “land” but also other elements that were protected autonomously on this occasion, using Article 26 of the American Convention. This reasoning allows the indigenous and tribal peoples of the region to find greater access to justice and provides a holistic vision of the protection of their rights in this precedent, which should also be seen as harmonizing with the UN 2030 AgendaFootnote ⁷⁷ and its Sustainable Development Goals (SDGs).Footnote ⁷⁸

• [Page 394] 87. In sum, the case of Lhaka Honhat is one more element in the consolidation of the jurisprudential line on ESCER in the inter-American system and, in general, contributes to provide greater clarity to the content of these rights and to the State obligations in relation to the protection of social rights in our region. It reflects an approach taken by the Inter-American Court to ensure that all rights—civil, political, economic, social, cultural and environmental—are seen as such, in light of their interdependence and indivisibility, without any hierarchy among them, so that the States comply with and implement their obligations to respect and to ensure human rights. This is especially important for certain vulnerable groups in the region, such as the indigenous and tribal communities and peoples (who continue to be “the poorest among the poor”Footnote ⁷⁹), suffering “historic injustices,”Footnote ⁸⁰ and who not only depend physically on the resources in their territory, but also have a spiritual symbiosis with them.

I. Introduction

• 1. In my concurring opinions in the cases of the National Association of Discharged and Retired Members of the Tax Administration Superintendence (ANCEJUB-SUNAT) v. Peru and Hernández v. Argentina, I included two initial reflections on the way in which I consider that the Inter-American Court of Human Rights [Page 395] (hereinafter, “the Court”) should address cases that involve violations of the economic, social, cultural and environmental rights (hereinafter “the ESCER”). My work as a national judge for almost 30 years reveals a commitment to the ESCER that is particularly relevant in the most unequal continent on the planet. The ideas I expressed in those opinions were the result of reflections I have had on this issue as a judge of the Court, a situation that has allowed me to examine more thoroughly the discussions that are taking place on the different ways in which the issue of violations of the ESCER can be addressed. The thesis set out in the said opinions is an idea in development that seeks to make a contribution to a better understanding of the issue and to reinforce future analyses of these rights. Consequently, in this opinion, I will repeat some of the ideas expressed in the opinion in the cases of ANCEJUB and Hernández, making the pertinent clarifications in relation to the case of Lhaka Honhat.

II. The discussion within the Inter-American Court

• 2. As I see it, a discussion has been going on within the Court concerning what we might refer to as two viewpoints on the justiciability of the ESCER: the first is that the analysis of individual violations of these rights should be made exclusively in relation to the rights recognized by Articles 3 to 25 of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”), or based on what is expressly permitted by the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador” (hereinafter “Protocol of San Salvador”). I consider that this perspective was reflected in cases such as the Case of the “Juvenile Re-education Institute” v. Paraguay (2004) or the Case of the Yakye Axa Indigenous Community v. Paraguay (2005), just to mention two examples, and also in the Case of González Lluy v. Ecuador (2015).

• 3. The second is that the Court has competence to examine autonomous violations of the ESCER based on Article 26 of the Convention. Those rights—that, according to this point of view, are justiciable before the Court on an individual basis—are implicitly or explicitly derived from the Charter of the Organization of American States (hereinafter “the OAS Charter”), as well as from numerous national and international instruments such as the American Declaration on the Rights and Duties of Man, the Protocol of San Salvador, the Universal Declaration on Human Rights, the International Covenant on Economic, Social and Cultural Rights, and even the Constitutions of [Page 396] the States Parties to the Convention, among others. This is the thesis that has prevailed in most of the cases related to the ESCER since Lagos del Campo v. Peru on the issue of job stability, as well as in cases involving the rights to health and to social security. In such cases the Court has determined that the State is internationally responsible for the violation of social rights based on Article 26 of the Convention. This change in its case law has occurred since 2017.

III. A third viewpoint: Interdependence-simultaneity

• 4. Article 26 of the Convention is what could be called a framework article that refers to the ESCER in general without specifying which rights they are and what they consist of. The article includes a referral to the OAS Charter for their analysis and content. Meanwhile, the Protocol of San Salvador, an instrument subsequent to the American Convention, individualizes and provides content to the ESCER. The Protocol is explicit in indicating that individual cases relating to the ESCER may be submitted to the consideration of the Court only with regard to trade union rights and the right to education. Other instruments of the inter-American corpus juris also mention the ESCER.

• 5. In my opinion in the ANCEJUB-SUNAT case, I set out my point of view on the indivisibility and interdependence of the human rights. This leads me to state that I consider that the Inter-American Court does have competence to examine and rule on the ESCER in relation to both their individual and collective aspects. These same principles allow me to make a systematic analysis of the Convention, the Protocol of San Salvador, the OAS Charter, and other instruments of the inter-American corpus juris. I will now try to explain my views concerning the grounds on which the Inter-American Court is competent to examine and rule on the ESCER.

• 6. Part II of the American Convention refers to the means of protection and its Article 44 indicates that “Any person or group of persons […] may lodge petitions with the Commission containing denunciations or complaints of violation of this Convention by a State Party.” Meanwhile, Article 48 indicates that “When the Commission receives a petition or communication alleging violation of any of the rights protected by this Convention, it shall proceed as follows ….” Also, Article 62(3) of the Convention indicates that: “The jurisdiction of the Court shall comprise all cases concerning the interpretation and application of the provisions of this Convention that are submitted to it …” [underlining added].

• [Page 397] 7. These articles of the Convention clearly indicate that any of the rights mentioned in the Convention, without any type of distinction (civil, political, economic, social, cultural and environmental) may be submitted to the consideration of both organs of protection and that these organs have competence to examine them. The said articles do not make any distinction between civil, political, economic, social, cultural and environmental rights as regards their protection. To claim that the inter-American organs of protection are only able to examine civil and political rights and not the ESCER would be contrary to the indivisibility and interdependence of the rights and would also result in a fragmentation of the international protection of the individual and of his or her entitlements as a subject of international law.

• 8. In this regard, it is interesting to emphasize the provisions of Article 4 of the Protocol of San Salvador which indicate that there can be no restrictions to the ESCER. On this point, this article indicates that: “A right which is recognized or in effect in a State by virtue of its internal legislation or international conventions may not be restricted or curtailed on the pretext that this Protocol does not recognize the right or recognizes it to a lesser degree” [underlining added]. In my opinion, this article, read together with the American Convention, leads to the conclusions that access to inter-American justice cannot be restricted in relation to alleged violations of the ESCER invoking the American Convention. To do so, would be acting in violation of the Protocol that does not allow restrictions and, as I mentioned previously, affecting the individual as a subject of rights. It would be violating the principle of the pro persona interpretation of human rights (Art. 29 of the American Convention).

• 9. However, it cannot be ignored that the adoption of the Protocol of San Salvador, while making advances in the content of the rights, also expressly delimited the use of the system of individual petitions to “trade union rights” and “the right to education.” In my opinion, it is only in relation to these two rights (to freedom of association and to education) that the Court may consider an autonomous violation of the ESCER in light of the provisions of Article 19(6) of the Protocol of San Salvador. On this point, it is important to recall that Article 31 of the Vienna Convention on the Law of Treaties stipulates that the interpretation of treaties should include, in addition to the text, “any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty.” The Protocol of San Salvador is precisely a treaty adopted by the contracting parties to the American Convention “for the purpose of gradually incorporating [Page 398] other rights and freedoms into the protective system thereof” (Preamble to the “Protocol of San Salvador”).

• 10. Nevertheless, in order to make a harmonious interpretation of the American instruments, nothing prevents the Court—by taking into consideration the interdependence and indivisibility of the civil and political rights on the one hand, and the economic, social and cultural rights on the other—from ruling on the ESCER and declaring the violation of both a right recognized in Articles 3 to 25 of the American Convention and Article 26. Because, owing to act or omission, one and the same action may signify simultaneously the violation of both a civil and political right and an ESCER, which can be examined owing to its significance. A possible formula to effect this type of analysis is to establish in the operative paragraphs of a judgment the violation of a right over which the Court has competence, in relation to Article 26 and the general obligations to respect and to ensure the rights. The formula—based on the principles of indivisibility and interdependence—would be simple but compelling: “the Court declares the violation of Article 21 of the Convention in relation to Articles 26 and 1(1) of this instrument”; and this is what has happened in the instant case as I will now explain.

• 11. It should be pointed out that, based on the position described, Article 26 and the rights it contains are justiciable before the Court; thus, eliminating definitively the thesis of their justiciability being restricted or limited exclusively to the provision of the Protocol of San Salvador. It allows the Court to analyze specific aspects that distinguish these rights, both individually and collectively, from their violation.

IV. The Lhaka Honhat case

• 12. In the instant case, the Court was also able to make an analysis such as the one I proposed for the cases of ANCEJUB-SUNAT and Hernández. The judgment reveals that the violations of the rights to a healthy environment, adequate food, access to water, and cultural identity were mainly the result of the activities that the criollo population (non-indigenous settlers) carried out on the territory, with the complicity of the State of the Argentine Republic at both the federal level and that of the Province of Salta and, as a result of which, the indigenous communities were unable to enjoy this territory free of interference. Those activities included the presence of non-indigenous persons and actions such as unfenced livestock farming and the presence of wire fencing. Illegal logging was also verified. The impact was [Page 399] proved: on the flora and fauna (that contributed protein to the communities’ diet); on the supply and quality of the water required for their subsistence; on biological and socio-economic degradation as a result of the logging activities and the presence of fences that eliminated access to rivers and forests. This demonstrated the existence of a causal nexus between the activities of the criollo settlers on the territories of the communities and the violation of the rights of the indigenous peoples to participate in cultural life, and to a healthy environment, adequate food, and water. Consequently, the Court declared the international responsibility of the State for the violation of Articles 26 and 1(1) of the Convention.

• 13. In essence, I agree with how the substantive content of the said rights was developed; nevertheless, I voted against the declaration of the autonomous violation of those rights in the judgment. This is because, as in the cases of ANCEJUB-SUNAT and Hernández, I considered that the most appropriate way to analyze the case would have been by the thesis of simultaneity. In this regard, it is not appropriate or necessary to declare an autonomous and separate violation of the rights to cultural life, a healthy environment, adequate food and water based on Article 26 of the Convention.Footnote ¹ As mentioned previously, the appropriate course would have been to declare a violation of Article 21 in relation to Articles 26 and 1(1) of the Convention, with a restricted—and brief—analysis of the violation of the said social rights as a result of the State’s failure to ensure effective protection of the right to property, which permitted the presence of third parties and the harm to other rights. Footnote ² This type of analysis could also have avoided separating the analysis of communal property and other rights and, to the contrary, would have underscored the interdependence and indivisibility [Page 400] that exists between property and the guarantee of the ESCER of indigenous communities.

• 14. The analysis of simultaneity in this case would have resulted in the point of departure being the right to collective property recognized in Article 21 of the Convention. Specifically, the Court should have addressed the relationship that exists between the failure to ensure the indigenous communities’ property rights and their participation in cultural life and the guarantee of other rights (such as to water, food and the environment). It is from this perspective that the judgment should have addressed the premise of the indissoluble relationship that exists between the land and the enjoyment of other rights, which is particularly relevant in the case of victims such as those of this case. The indissoluble relationship to which I refer is revealed from the numerous sources that the judgment cites when it refers to the interdependence between the rights “to a healthy environment, to adequate food, to water and to cultural identity in relation to the indigenous peoples”Footnote ³ (paras. 243 to 254). The judgment chose to declare an autonomous violation of Article 26 without taking into account that it is the right to land that is indissolubly linked to the violations of the ESCER.

• 15. An analysis founded on simultaneity such as I propose would have been based on the indissoluble relationship between the rights to the land, a healthy environment, water and cultural identity. In this way, the State’s obligations as guarantor of the rights of the indigenous communities would have an impact not only on the aspects related to communal property in the terms of Article 21 but also, in consequence, on the ESCER that are derived from Article 26. The simultaneous analysis of the rights would have allowed the Court to provide greater scope and content to the obligations in this case, emphasizing their interdependence and indivisibility.

V. Conclusion

• 16. The Court should not lose sight of the fact that its main function is to examine cases submitted to it that require the interpretation and application of the provisions of the Convention in order to [Page 401] decide whether there has been a violation of a protected right or freedom, and to determine that the injured party must be guaranteed the enjoyment of the right or freedom that was violated. Thus, the Court has the Convention-based obligation to provide justice in specific cases within the limits established by treaty law. However, it also has a function of contributing to achieve the objectives of the Convention, and this involves addressing the problems that affect our societies. It is important to consider that the Court’s legitimacy is based on the solidity of its reasoning, its adherence to the law, and the prudence of its rulings. It is also based on the consensus of its members. The thesis of simultaneity—proposed in this opinion—would have been a way to achieve sounder arguments and consensus among the Court’s judges in this case. From this perspective, it was a lost opportunity to achieve agreement on how to address cases related to the justiciability of the ESCER.

• 17. In this case, the interventions of numerous amicus curiae and expert witnesses, and the different citations of both the Committee on Economic, Social and Cultural Rights (CESCR) and the Special Rapporteurs of the universal system reveal that the indigenous peoples share a world vision centered on the relationship between human beings and the land they inhabit, which can be observed in the cultural, social and religious elements that define a way of life in which one cannot be realized without the other. Perhaps this is the case in which it is possible to observe most clearly the inadmissibility and needlessness of invoking the autonomy of the ESCER in the Court’s reasoning. Therefore, my position in no way differs from the position supported by the majority as regards the consequences of the violation of an ESCER. My position reinforces the justiciability of the ESCER. Therefore, it is possible to establish measures of reparation such as those determined in this judgment that I have voted in favor of, without the application and guarantee of those rights being affected in any way. As mentioned above, the issue is how to develop an argumentative theory of reasoning that allows the ESCER to be applied to their full extent without leaving the Inter-American Court open to questions regarding its competence to decide these cases, and that rallies the greatest support among the members of the Court.