9
24.
In the instant case of the Sawhoyamaxa Indigenous Community, the facts are
most clear, and no additional evidence is required (which would amount to an
inadmissible probatio diabolica, supra) in respect to the breach of the fundamental
right to life. Such right was violated by the infra-human living conditions to which the
members of such Community were subjected, forcibly displaced from their ancestral
lands. The demise of several members of the Sawhoyamaxa Community is, in my
opinion, a special circumstance making the breach more serious, because spiritual
death was followed by physical or biological death, in breach of Articles 4(1) and
1(1) of the Inter-American Convention.
25.
In my view, the causal connection —that regrettably seems to keep
disorienting the majority of this Court— is clearly established as well, on account of
the lack of due diligence by the State as regards the living conditions of all the
members of the Sawhoyamaxa Community. The international responsibility of the
State arising therefrom is, then, objective on the grounds I already found in my
Separate Opinion, to which I will here take leave to refer (paras. 1-40) —in the case
of the case of “The Last Temptation of Christ” (Olmedo-Bustos et al). v. Chile.
Judgment of February 5, 2001.
26.
In the cas d'espèce —as it was correctly pointed out in a Joint Dissenting
Opinion in the Case of the Indigenous Community Yakye Axa (2005)— 34 the causal
connection is clearly established, in order to determine the international
responsibility of the State and to fix the amount of non-pecuniary damages, by the
serious and infra-human living —or surviving— conditions to which the members of
the Sawhoyamaxa Community have been subjected for many years now, on account
of the lack of due diligence by the State, which conditions have led to the —entirely
feasible— demise of several of them.
27.
In present-day melancholic “postmodernity”, the purposes of the State,
basically identified, in the long run, with achieving the common good. The common
good is the good of all (including those left out at present) and not the good of just
some. This takes us back to the historical origins, both of the national State, that
exists for the human being —and not the other way round— and of International Law
itself, that was not originally a strictly interstate law, but rather the law of nations.35
Achieving the common good implies that all States guarantee all the individuals
under their respective jurisdictions conditions allowing them to live with dignity.
VI.
Right to life and Cultural Identity.
28.
The right to life is, in the instant case of the Sawhoyamaxa Community,
viewed in its close and unavoidable connection with cultural identity. Such identity is
formed over time, along the historical development of community life. Cultural
identity is a component of, or an addition to, the fundamental right to life in its wider
sense. As regards members of indigenous communities, cultural identity is closely
linked to their ancestral lands. If they are deprived of them, by means of forced
displacement, it seriously affects their cultural identity, and finally, their very right to
34
.
Joint Dissident Opinion of Judges A.A. Cançado Trindade and M.E. Ventura-Robles, paras. 11-13.
35
.
A.A. Cançado Trindade, "General Course on Public International Law - International Law for
Humankind: Towards a New Jus Gentium", in Recueil des Cours de l'Académie de Droit International
(2005), capítulos I-XXVII, 997 pages (in print).