Judicial Interpretation and Indigenous Peoples’ Rights to Lands, Participation and Consultation. The Inter-American Court of Human Rights’ Approach

 According to the Court, “the efficacy of the mechanism of international protection, must be interpreted and applied in such a way that the guarantee that it establishes is truly practical and effective, given the special nature of human rights treaties”. Cf. Case of the Constitutional Court v. Peru. Competence, 24 September 1999, I-ACtHR, Judgment, Series C No. 55, para. 36. See also Yatama v. Nicaragua, supra note 49, para. 204.

 According to the Court, “the efficacy of the mechanism of international protection, must be interpreted and applied in such a way that the guarantee that it establishes is truly practical and effective, given the special nature of human rights treaties”. Cf. Case of the Constitutional Court v. Peru. Competence, 24 September 1999, I-ACtHR, Judgment, Series C No. 55, para. 36. See also Yatama v. Nicaragua, supra note 49, para. 204.)| false
• Search Google Scholar
• Export Citation

 For the Court, “[t]he corpus juris of international human rights law comprises a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations). Its dynamic evolution has had a positive impact on international law”. Cf. Juridical Condition and Rights of the Undocumented Migrants, 17 September 2003, I-ACtHR, Advisory Opinion oc-18, Series A No. 18, para. 120. See also The Right to Information on Consular Assistance, supra note 52, para. 115.

 For the Court, “[t]he corpus juris of international human rights law comprises a set of international instruments of varied content and juridical effects (treaties, conventions, resolutions and declarations). Its dynamic evolution has had a positive impact on international law”. Cf. Juridical Condition and Rights of the Undocumented Migrants, 17 September 2003, I-ACtHR, Advisory Opinion oc-18, Series A No. 18, para. 120. See also The Right to Information on Consular Assistance, supra note 52, para. 115.)| false
• Search Google Scholar
• Export Citation

 As the Court stated, “[w]hen there are several options […] the one that is less restrictive of the protected right and more proportionate to the purpose sought should be chosen”. Cf. Yatama v. Nicaragua, supra note 49, para. 206. See also Case of Ricardo Canese v. Paragua, 31 August 2004, I-ACtHR, Merits, Reparations and Costs, Series C No. 111, para. 133; Case of Herrera-Ulloa v. Costa Rica, 2 July 2004, I-ACtHR, Preliminary Objections, Merits, Reparations and Costs, Series C No. 107, paras. 121 and 123; Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), 13 November 1985,, I-ACtHR, Advisory Opinion oc-5/85, Series A No. 5, para. 46.

 As the Court stated, “[w]hen there are several options […] the one that is less restrictive of the protected right and more proportionate to the purpose sought should be chosen”. Cf. Yatama v. Nicaragua, supra note 49, para. 206. See also Case of Ricardo Canese v. Paragua, 31 August 2004, I-ACtHR, Merits, Reparations and Costs, Series C No. 111, para. 133; Case of Herrera-Ulloa v. Costa Rica, 2 July 2004, I-ACtHR, Preliminary Objections, Merits, Reparations and Costs, Series C No. 107, paras. 121 and 123; Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human Rights), 13 November 1985,, I-ACtHR, Advisory Opinion oc-5/85, Series A No. 5, para. 46.)| false
• Search Google Scholar
• Export Citation

 As the I-ACtHR said, “[i]t is a well-established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. Legislation that recognizes said differences is therefore not necessarily discriminatory”. Cf. Saramaka People v. Suriname, supra note 11, para. 103. See also Yatama v. Nicaragua, supra note 49, para. 225. In the same line of thought, see Case of Thlimmenos v. Greece, 6 April 2000, ECtHR, Reports of Judgments and Decisions, No. 34369/97, p. 11, para. 44.

 As the I-ACtHR said, “[i]t is a well-established principle of international law that unequal treatment towards persons in unequal situations does not necessarily amount to impermissible discrimination. Legislation that recognizes said differences is therefore not necessarily discriminatory”. Cf. Saramaka People v. Suriname, supra note 11, para. 103. See also Yatama v. Nicaragua, supra note 49, para. 225. In the same line of thought, see Case of Thlimmenos v. Greece, 6 April 2000, ECtHR, Reports of Judgments and Decisions, No. 34369/97, p. 11, para. 44.)| false
• Search Google Scholar
• Export Citation

 For the I-ACtHR, “the close relationship of indigenous peoples with the land must be acknowledged and understood as the fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 131.

 For the I-ACtHR, “the close relationship of indigenous peoples with the land must be acknowledged and understood as the fundamental basis for their culture, spiritual life, wholeness, economic survival, and preservation and transmission to future generations”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 131.)| false
• Search Google Scholar
• Export Citation

 In the views of the Court, “[t]he culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 135.

 In the views of the Court, “[t]he culture of the members of the indigenous communities directly relates to a specific way of being, seeing, and acting in the world, developed on the basis of their close relationship with their traditional territories and the resources therein, not only because they are their main means of subsistence, but also because they are part of their worldview, their religiosity, and therefore, of their cultural identity”. Cf. Yakye Axa v. Paraguay, supra note 11, para. 135.)| false
• Search Google Scholar
• Export Citation

 Anaya, supra note 37, p. 16, para. 46.

 As Judge Fogel Pedrozo stated, “the interpretation of the right to life, so as to include positive precautionary measures for the indigenous to enjoy their right to a dignified existence, is based in international doctrine and jurisprudence and makes new advances in International Law of Human Rights”. Xákmok Kásek v. Paraguay, supra note 11, Concurring and dissenting opinion of Judge A. Fogel Pedrozo, para. 19.

 As Judge Fogel Pedrozo stated, “the interpretation of the right to life, so as to include positive precautionary measures for the indigenous to enjoy their right to a dignified existence, is based in international doctrine and jurisprudence and makes new advances in International Law of Human Rights”. Xákmok Kásek v. Paraguay, supra note 11, Concurring and dissenting opinion of Judge A. Fogel Pedrozo, para. 19.)| false
• Search Google Scholar
• Export Citation