Complaint alleging the State's failure to acknowledge indigenous communities property rights over ancestral land. Protecting territory through a collective right to private property. Violation of right to life by depriving communities of traditional means of livelihood. State obligation to adopt positive measures to fulfill dignified life standard. Priority treatment of vulnerable groups.
The Sawhoyamaxa Community has historically lived in the Paraguayan Chaco. In 1991, the Community started a domestic claim to regain its lands after being forced to leave them. On May 15th, 2001, ESCR-Net Member, Tierraviva, submitted a petition to the Inter-American Commission of Human Rights. The Commission referred the case to the Inter-American Court of Human Rights on February 3rd, 2005. While the Community was waiting for a decision, the community had no access to basic essential services like water, food, school or health services, and the Community’s members and their traditional means of livelihood were in imminent danger. In March 2006, the Court found various violations of the American Convention on Human Rights, specifically art 8 and 25, (right to a fair trial and judicial protection), art 21 (right to property), art 4(1) (right to life) and art 3 (right to recognition as a Person before the Law), all of them in relation to art 1(1) (the obligation to respect rights).
The Court ordered the Paraguayan government to adopt all necessary measures to return their ancestral lands to the Community within three years, to create a development fund for the Community in the amount of one million US dollars administered by a committee, and to pay compensation for non-pecuniary damages, costs and expenses within one year. In addition, an amount of 20,000 US dollars was to be paid to the families of the 19 persons who died as the result of the forced displacement of the Community. The Court also ordered the government to deliver basic goods and services and implement an emergency communication system as long as the Community remained landless. The Government was also required to publicize the judgment in its national gazette and through a radiobroadcast. (Case of the Sawhoyamaxa Indigenous Community v. Paraguay)
Keywords: Sawhoyamaxa, indigenous rights, land.
The Court warned the Paraguayan authorities that the case would only be closed once the ruling was fully implemented. In the meantime, the Court would regularly monitor the government’s compliance with the judgment. In 2008, after hearing both parties, the Court concluded that few orders had so far been implemented. While living in a hostile environment, the basic goods and services supposed to be delivered by the State were insufficient and not delivered regularly. The Court urged the government to act as fast as possible to guarantee basic services to the Community and to restitute the land. As of January 2013, no agreement between the authorities and the Community had yet been reached, however, negotiations had started. The Paraguayan authorities paid compensation for the non-pecuniary damages, but the payments were made behind schedule. The government put in place a radio system for emergency communication. It also held the radio broadcast but did not publish the judgment in its gazette.
In February 2013, Dejusticia and a number of other Latin American organizations decided that ESCR-Net should focus its implementation efforts in Latin American on the Sawhoyamaxa case. In June 2013, the Sawhoyamaxa decided to reoccupy their lands (http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=10336), politically strengthening their position. A visit to the Sawhoyamaxa lands was conducted by Tierraviva, Dejusticia (Colombia), the Sarayaku (Ecuador) and ESCR-Net in September 2013, bringing international solidarity to the existing movement of indigenous peoples in the Chaco region. In January 2014, ESCR-Net launched an urgent action in support to the expropriation process on behalf of the Sawhoyamaxa (http://www.escr-net.org/node/365346). In April and May 2014, Congress approved the expropriation bill, which was signed by the President in June 2014.
Since the decision, Tierraviva (Paraguay) has closely monitored implementation, conducting periodic meetings with the Sawhoyamaxa and the Paraguayan Congress. Amnesty international (Paraguay) has initiated various campaigns.
This case is very similar to the Yakye Axa case decided by the Inter-American Court of Human Rights in 2005. In both judgments, the Court ordered the restitution of ancestral lands for an indigenous community and required the State to provide the community with basic goods and services in the interim. Sawhoyamaxa thus reaffirms the Inter-American Court’s bold approach to indigenous land rights claims. In 2010 another Indigenous community settled in the Paraguayan Chaco, Xákmok Kásek, also obtained a favorable ruling, reaffirming the jurisprudence of the Court.
The case is also of key importance due to its achievement regarding implementation, especially with respect to the 2014 law on expropriation.
Tierraviva, AI-Paraguay, Dejusticia and ESCR-Net, among others.