The Inter-American Court of Human Rights (Court) decided its third Paraguayan indigenous peoples’ land rights case on August 24, 2010, holding that a portion of the ancestral lands of the Xákmok Kásek Indigenous Community should be returned. Notably, the Court recognized not only that Article 21 of the American Convention on Human Rights (American Convention) protects the indigenous group’s communal land claim, but also that the community has a right to reclaim specific ancestral lands because of their historical, cultural, and spiritual significance to the indigenous group.
The Xákmok Kásek people are a multi-ethnic community of fewer than 300 individuals from Enxet, Sanapaná, and other ethnic groups who seek to regain 10,700 hectares of land within the Paraguayan Chaco. The claimed land, part of which has been declared a protected area, is currently occupied by a privately owned farm in the northwestern department of Presidente Hayes. The Xákmok Kásek community has attempted to reclaim its rights to these ancestral lands since 1986 and first filed a complaint with the Inter-American Commission on Human Rights (Commission) in 2001 with the help of the non-governmental organization Tierraviva a los Pueblos Indígenas del Chaco (Tierraviva). The Commission found that the Paraguayan government was not meeting its international obligations under the American Convention, in particular with respect to the rights to property and life. After the Paraguayan government failed to comply with the Commission’s recommendations, the Commission submitted the case to the Inter-American Court for adjudication in July 2009.
The Xákmok Kásek community, whose livelihood is historically based on hunting, fishing, and gathering, is extremely vulnerable due to the private ownership and the subsequent dispossession of their ancestral lands. The Paraguayan government’s creation of a protected area further curtailed the nomadic and traditionally self-sufficient way of life of the Xákmok Kásek and forced many members of the community to seek employment on private farms. According to the Commission, the Xákmok Kásek farm laborers do not receive the benefits that are required by the Paraguayan Labor Code and are often paid below the minimum wage. The community also faces critical problems with respect to subsistence, health care, and sanitation. For instance, from 1991 to 2007, approximately 30 community members, most of them children, died due to preventable illnesses.
The Commission argued that Paraguay was obligated to recognize the Xákmok Kásek’s ancestral land claim even if the State did not have possession of the land because it was privately owned. Tierraviva, representing the victims, alleged that the Xákmok Kásek’s lack of land ownership severely limits the community’s traditional means of subsistence, which is based on its nomadic lifestyle. In response, Paraguay claimed that it had diligently attempted to enable the Xákmok Kásek people to exercise their right to land, pointing to legislation granting indigenous communities access to land and to successful land reclamation achieved by other indigenous groups. Although Paraguay also maintained that the community’s claim could be satisfied by granting alternate traditional lands, the Court found that Paraguay had not actually identified suitable and available land. Furthermore, Paraguay posited that there was no evidence suggesting that the community’s lack of access to ancestral land had impeded its right to life. Noting that it had provided medical and sanitation services as well as food assistance, Paraguay also rejected the notion that it could be found liable for the deaths of the Xákmok Kásek community members.
In its recent ruling, the Court found that Paraguay violated the Xákmok Kásek indigenous community’s rights under the American Convention, such as the right to life (Article 4), property (Article 21), humane treatment (Article 5), legal access and protection (Articles 8 and 25), and juridical personality (Article 3), in particular with respect to documentation of identity. Additionally, the Court found that the rights of the child (Article 19) and the right to non-discrimination (Article 1) had been violated. In its judgment, the Court ordered Paraguay to return, by August 2013, the 10,700 hectares claimed by the Xákmok Kásek or to identify another suitable site within the group’s traditional lands if the government is unable to grant them the specific land claimed. The judgment also requested the State to hold a public ceremony internationally recognizing the harm suffered by the Xákmok Kásek community. The ruling identified the failings of Paraguayan legislation in resolving indigenous land claims, particularly when indigenous rights to traditional land conflict with private property ownership rights. The ruling advised the Paraguayan government to revise its legislation or administrative system so it can address indigenous land claims successfully and efficiently in the future. Additionally, the Court urged the Paraguayan government to immediately provide medical, psychosocial, and sanitation services to the community, as well as adequate food, clean water, and educational resources. Lastly, the Court asked the Paraguayan government to designate specialists to conduct a needs assessment with respect to the community’s basic necessities by February 2011.
The Court’s ruling is an achievement not only for the Xákmok Kásek but also for the country’s indigenous population as a whole. The ruling publicly recognizes both the right to communal property for the country’s indigenous groups and the immense need for improved services and resources for a population historically underserved and marginalized. The Court’s recommendations, if fulfilled, will signify Paraguay’s recognition of the harm to its indigenous populations and will lead to enhanced protection of their basic human rights.