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Xákmok Kásek Indigenous Community v. Paraguay

Date: 24 August 2010

Court: Inter-American Court of Human Rights 

Citation: IACtHR, Xákmok Kásek Indigenous Community v. Paraguay, 24 August 2010, Series C, No. 214 (IACtHR 2010) 

Short summary  

The Xákmok Kásek Indigenous Community lodged a petition against the State of Paraguay before the Inter-American Court of Human Rights, alleging failure to enforce their right to property, especially because of the creation of a private protected nature reserve on their ancestral lands without consultation. The Inter-American Court on Human Rights found that the lack of access to nature implied not only the breach of those people’s human rights, but also constituted discrimination.

Summary by: Lorenza Contin 

Link to Original Judgement

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Weight of decision

The jurisprudence of the Inter-American Court on Human Rights at the nexus between Indigenous people, environment and right to life was already consolidated at the time, and its rulings are presumptively enforceable on the states which appear before it, including Paraguay.

Key facts

Historically, the economy of Indigenous communities in Paraguay was based on hunting, gathering, and fishing, and thus they used to roam a very extensive area of the Chaco region to follow the seasonal patterns of nature. During the process of colonisation of the Chaco, their ancestral lands were gradually privatised, and they were forced into a process of sedentarisation, settling often around new ranches. The Xákmok Kásek Community is formed by members of different peoples, who traditionally inhabited and roamed the area then occupied by the Salazar Ranch in the mid-twentieth century. However, they gradually faced critical restrictions to their customary activities due to the privatisation of those lands.

On 31 January 2008, Paraguay declared a big portion of the Salazar Ranch a private wildlife reserve for five years. Around 4,175 hectares of the reserve are included in the 10,700 hectares claimed by the Community since 1990. Nevertheless, the Community was not informed nor consulted. Paraguayan Law No. 352/94, regulating protected rural areas, establishes that private nature reserves cannot be expropriated while the declaration is in force. It also enshrines a prohibition to hunt, fish, and gather, enforced through armed park guards able to make arrests. Therefore, because of the creation of the reserve, the Xákmok Kásek Community had to leave and move to a small and remote land, “25 de Febrero.”

Because of this process of displacement, the religion and culture of the Community – male and female initiation rites, burial methods, shamanism, and more – have “been almost entirely lost” (¶ 178). Since their departure from the Ranch, the State has supplied scarce quantities of water during some time periods or no water at all during others, and in 25 de Febrero there is no water source. In addition, food was not delivered regularly and, when it was, the quantity was scarce, and it was critically deficient in nutrients. Access to health-care services was extremely difficult – the nearest clinic, operating “deficiently, (¶ 203) being 75 km from 25 de Febrero. “For years the children did not receive general medical care or vaccinations,” (¶ 205) resulting in a high mortality rate among children, and they had to receive their education in the open air.

Previous instances

On 28 December 1990, the Community’s leaders filed an administrative action before the Paraguayan Rural Welfare Institute to reclaim their traditional lands under the provisions of Law No. 904/81, also known as the “Indigenous Communities Statute.”

As the competent administrative bodies did not respond to the administrative action, the Community’s representatives went to the Congress of the Republic on 23 June 1999 to demand the expropriation of their ancestral lands. On 16 November 2000, the Paraguayan Senate rejected their request.

Thus, on 15 May 2001, the Community lodged the petition at stake against the State of Paraguay before the Inter-American Commission on Human Rights. On 2 July 2009, the Commission, alleging that Paraguay had not ensured the traditional property rights of the Community and that this had compromised the Community’s integrity and living conditions, asked the Court to declare the State responsible for the violation of Articles 3 (Right to Juridical Personality), 4 (Right to Life), 8(1) (Right to Judicial Guarantees), 19 (Rights of the Child), 21 (Right to Property), and 25 (Right to Judicial Protection) of the American Convention on Human Rights. The Commission asked the Court to order the State to take certain steps as reparation.

On 31 July 2008, the Community filed an action of unconstitutionality before the Supreme Court of Justice against the abovementioned nature reserve declaration, enacted by the State in January 2008. The Prosecutor requested the suspension of the time limit for responding to the action, which remained suspended until the Inter-American Court on Human Rights’ judgment.

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Case of the Indigenous Community Yakye Axa v. Paraguay 

Date: 17 June 2005 

Court: Inter-American Court of Human Rights 

Citation(s): IACHR Series C no 125 (Official Case No) IHRL 1509 (IACHR 2005) 

Short summary  

The Yakye Axa Indigenous Community brought a complaint against the state of Paraguay, alleging failure to acknowledge and enforce their right to own and occupy their ancestral lands. In ruling for the Community, the Inter-American Commission on Human Rights recognized that the realization of the right to life is necessarily linked to and dependent on the physical environment. The result was a state obligation to adopt positive measures to fulfill a standard of dignified life.  

Summary by: Sophie Sklar

Link to Original Judgement  

Click here to open the case in PDF format


Weight of decision  

This case holds substantial weight in Paraguay and precedential authority in other Inter-American disputes, insofar as it reaffirms the Inter-American Court’s broad interpretation of right to life, which includes consideration of health, environment, education, and food standards.  

Key facts 

The Yakye Axa Indigenous Community had a land claim under consideration since 1993 without resolution. This made it impossible for the Community and its members to own their territory or have adequate access to food and health care.  

Esteban Lopez, leader of the Yakye Axa Community, testified to the Inter-American Court that: 

“Living conditions of the members of the Yakye Axa Community at the place where they currently live are difficult. The settlement is surrounded by cattle ranchers’ land, which they are not allowed to enter. They cannot hunt freely, they have problems finding food and protecting themselves in the country to avoid conflicts with the white persons. The men of the Community cannot feed their children regularly. The witness has to go elsewhere to obtain water and food for the boys and girls. Most members of the Community are jobless.” (¶ 15) 

Previous instances  

On March 3, 1997, the Yakye Axa Indigenous Community filed a suit against firms which had rented the land claimed by the Community, invoking the Paraguayan Constitution, as well as the provisions of Article 14 of Law 234/93 that ratified the International Labor Organization Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries. On April 17, 1997, the Civil and Commercial Trial Court, tenth rotation, Secretariat No. 19, dismissed this action on time of filing grounds.1 

In a separate but related proceeding, the Inter-American Commission on Human Rights filed before the Inter-American Court an application against the State of Paraguay. The Commission alleged that the State has not ensured the ancestral property rights of the Yakye Axa Indigenous Community and its members. The Commission filed the application based on the American Convention on Human Rights, for the Court to decide whether Paraguay breached Articles 4 (Right to Life); 8 (Right to Fair Trial); 21 (Right to Property) and 25 (Judicial Protection) of the Convention with respect to their treatment of the Yakye Axa. The Commission asked the Court to order the State to take certain steps as reparation and to reimburse costs and expenses. 

Summary of holding 

The Court had to establish whether the State generated conditions that worsened the difficulties of the Yakye Axa and, if so, whether it took appropriate positive measures to fulfill its obligations. 

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