Convention and interpreted the Article as extending
beyond the right to participation in formal electoral
processes to cover participation in other public policy
discussions and mechanisms of control or oversight
over the government. The Court maintained that the
Nicaraguan electoral system should be modified to
allow indigenous groups and communities electoral
participation. This would require the state to recognize organizational systems based on cultural norms
within the indigenous communities.
To guarantee the effective political participation
and sufficient representation of indigenous groups
in the Nicaraguan Congress, this recognition was
the hemisphere an obligation to remove social or economic barriers that limit access to their national justice system. Just as significantly, they oblige states to
establish free public legal assistance as well as other
mechanisms aimed at alleviating the expenses of
accessing the justice system for the poorest and most
marginal sectors of the population.
Economic inequality, according to the Court, affects
the efficient defense of the interest of the poor and marginalized and, for that reason, requires state judiciaries
to take into account a government’s social policies,
including its provision of legal services. The system has
set the existence of a government obligation to establish
Landmark decisions oblige states to
estabish free public legal assistance as well
as other mechanisms aimed at alleviating
expenses of accessing the justice system.
essential. This ruling imposed a “positive obligation”
on the state of Nicaragua, based on the characteristics of the affected group by obligating the state to
remove cultural obstacles that prevent or limit the
political participation of a group traditionally suffering discrimination.
The Inter-American system has also set strong positive obligations regarding the right to access to justice.
This has included, in a series of cases, establishing precise standards regarding the right of plaintiffs to legal
and other appropriate, effective judicial assistance in
order to file claims for violation of fundamental rights. 4
In one of these cases, Velázquez Rodríguez vs Honduras,
in 1988, the court concluded that according to the generally recognized principles of international law, judicial recourses have to be effective and adequate.
These landmark decisions impose upon states in
these services as a positive policy to compensate real situations of inequality and to guarantee equality of tools
and options in a judicial process, but it has not defined
the nature and characteristics in detail.
This base of positive obligations, linked to the
reality of inequality in the Americas, can serve as a
framework to examine public policy and define an
obligation for states. It requires them to act in favor of
protecting subordinate groups or collectives, restore
balance and, sometimes, to take sides. In doing so, it
goes beyond the traditional notion of passive rights.
In this new scenario, the challenge of the Inter-American system is to intervene in a more effective
way in conflicts stemming from social exclusion
and inequality. These conflicts are indicative of the
looming human rights agenda in years to come in the
region’s young democracies.
ENDNOTES
1 Report 4/01, Case 11.625, María Eugenia Morales de Sierra vs. Guatemala (January 19, 2001). 2 Inter-American Human Rights Court,
Comunidad Mayagna (Sumo) Awas Tingni vs. Nicaragua (August 31, 2001), Comunidad Yakye Axa vs. Paraguay (June 17, 2005), and Saramaka Clans v.
Suriname (June 23, 2006). 3 Yatama vs. Nicaragua (June 23, 2005). See also the concurring vote of Judge Diego García Sayan. 4 The jurisprudence regarding effective judicial recourse is clear in the Inter-American System of Human Rights protection in Genie Lacayo vs Perú (1995)
and in Velázquez Rodríguez vs. Honduras (July 29, 1988).
