Case of the Indigenous Community Xákmok Kásek v. Paraguay
Petition by an indigenous community involving their traditional territory, which had been sold by the State to private persons. Violation of the right to communal property, due legal process, court protection, right to life, personal integrity, legal standing, children’s rights, right to non-discrimination.
The Xákmok Kásek indigenous community, who has originally lived in the Paraguayan Chaco area, filed a petition before the Inter-American Court of Human Rights requesting acknowledgement of their traditional territory. Paraguay sold and split up the land without taking into consideration the indigenous population. The Salazar ranch was founded in the land that had been the home of the Xákmok Kásek community for years. The community’s ability to survive and to develop its way of life was restricted, and the State failed to fulfill its duty to guarantee the community’s territorial rights.
In 1990, the community’s leaders unsuccessfully sought to recover part of their traditional land through an administrative action. In 1999, the community requested Congress to have 10,700 hectares expropriated. However, regardless of the request by the Xákmok Kásek community, in 2002 part of the land was bought by a Mennonite cooperative. In 2008, part of the territory claimed by the indigenous community was declared Protected Wild Area by Paraguay’s President, which made it impossible for the community to buy the land. In addition, the declaration was made without consulting the Xákmok Kásek. An action challenging the constitutionality, filed in 2008, remained unresolved by 2010.
The Inter-American Court recognized as traditional land the area claimed by the Xákmok Kásek community as well as the community’s right to claim the land. The Court also found that the rights to property, to effective remedy and to non-discrimination had been violated, and that the State had failed to ensure the Community’s involvement in “any plan or decision affecting their traditional lands and which may cause restrictions in the use, enjoyment and right to the lands.” Furthermore, the Court acknowledged the relationship between the traditional land and the cultural identity of the indigenous community. The Court declared that lack of access to their land and the impossibility to achieve self-sufficiency and autonomous sustainability, together with the State’s failure to provide adequate access to water, education, health services and food, violated the community’s right to a life with dignity. The situation of poverty and loss of culture, as well as the fact of having to wait until the situation is solved, was seen by the Court as a violation of personal integrity. Finally, the Court also concluded that children’s rights had been violated through the situation, to which they had been exposed, including, among others, a situation of vulnerability, malnutrition and loss of culture.
The Court ordered, among other actions, that 10,700 hectares identified in consultation with community leaders be restituted and titled, that the Court’s decision be published, as well as a public act of acknowledgement of responsibility be held by the State. Furthermore, the Court ordered Paraguay to adopt provisional measures, while the land is not restituted, to protect the community’s economic and social rights, including water, health services and food, as well as the creation of a community development fund.
The decision has not yet been complied with by Paraguay. In May 2014, at a hearing before the Inter-American Court, Xákmok Kásek leaders denounced the lack of follow-up measures by the State to restitute the land. It was stated that Paraguay had until September 2014 to comply with the decision. In June 2014, Paraguay issued a Land Expropriation Law to take land away from an American cattle breeder and give it back to the Sawhoyamaxa community (the Sawhoyamaxa had also been favored by a decision by the Inter-American Court). In spite of this progress, according to Tierraviva, Paraguay has continued to throw indigenous communities out of their land.
This case confirmed the claim of an indigenous community which has been fighting for its land rights for over two decades, joining the claims of other indigenous communities in Paraguay, who have also been expelled from their territory. The decision issued by a regional court provides legal tools for communities and human rights defenders fighting for respect for the human rights of indigenous communities in Paraguay. This case strengthens the Inter-American Court’s position regarding the existence of a right to property, under certain circumstances, regardless of whether there is an official title. Following the lines of its own case law, the Court established a relationship between land and survival of a community when the land is used with economic, cultural, social and religious purposes. The Court also recognized a relationship between the right to life and the rights to water, education, and food, among others.