REPORT Nº 2/02
YAKYE AXA INDIGENOUS COMMUNITY OF THE
On January 10, 2000, the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) received a
petition submitted by Tomás Galeano and Esteban López, leaders of the
Yakye Axa indigenous community of the Enxet-Lengua people, represented
by the Tierraviva Organization for the Indigenous Peoples of the Chaco
(hereinafter “Tierraviva”) and the Center for Justice and
International Law (hereinafter “CEJIL”), (collectively hereinafter
“the petitioners”), on behalf of the Yakye Axa indigenous community
of the Enxet-Lengua people and its members (hereinafter “the Yakye Axa
indigenous community” or “the indigenous community”), filed
against the Republic of Paraguay (hereinafter “the Paraguayan
State,” “Paraguay,” or “the State”). The petition claims that
the Paraguayan State violated Articles 4 (right to life) and 25
(judicial protection), in conjunction with Article 1(1) (obligation to
respect rights), of the American Convention on Human Rights (hereinafter
“the Convention” or “the American Convention”) and, in addition,
that the State ignored Article 27 of the International Covenant on Civil
and Political Rights (hereinafter “the ICCPR”) and Articles 1(2),
2(1), 4(1), and 5(a) of the International Labor Organization’s
Convention 169 concerning tribal and indigenous peoples (hereinafter
“Convention 169”), to the detriment of the indigenous community, by
failing to provide it with comprehensive assistance during the
processing of its claim over traditional territories, failing to
conclude the administrative processing of its bid to recover those
lands, and by preventing it from conducting its traditional subsistence
economic activities — hunting, fishing, and gathering.
With respect to admissibility, the petitioners claim that their
petition is admissible, applying the exceptions to the requirement of
exhausting domestic remedies and to the timely lodging of petitions set
forth in Article 46(2)(a) and (b) of the Convention. For its part, the
State has submitted no arguments with respect to the admissibility of
The Commission, after analyzing the positions of the parties and
the requirements set forth in Articles 46 and 47 of the Convention.
For its part, the State has since the beginning of the proceeding
offered a friendly solution and participated fully in the proceeding.
PROCESSING BY THE COMMISSION
On January 10, 2000, the Commission received the petition lodged
against the Paraguayan State. On July 27, 2000, the Commission forwarded
the relevant parts to the State and asked it to submit all appropriate
information within a period of 90 days.
On October 16, 2000 the State expressed its interest in
initiating friendly settlement proceedings. The Commission asked the
petitioners for their comments.
On March 1, 2001, during the 110th session of the Commission, a
hearing was held, with representatives of both sides in attendance. The
petitioners submitted their guidelines for the negotiation process. On
April 10, the State presented additional information.
On September 10, 2001, the petitioners sent notes to the
Commission, informing it of their decision to withdraw from the friendly
settlement proceedings and seeking the adoption of precautionary
measures on the indigenous community’s behalf. On September 11, 2001,
the Commission asked the State for information on the request for
precautionary measures and, on September 14, on the withdrawal from the
friendly settlement process. That same September 14, the State sent the
IACHR information on the request for precautionary measures, which was
forwarded to the petitioners. The petitioners submitted their comments
on September 20 and 25, 2001.
On September 26, 2001, the Commission asked the State to adopt
precautionary measures on behalf of the Yakye Axa indigenous community.
On October 1, 2001, the petitioners sent the Commission additional
information. On October 12, 2001, the State reported on the adoption of
precautionary measures and the Commission forwarded the relevant parts
to the petitioners. On November 2 and 7, 2001, the parties submitted
On November 12, 2001, during the Commission’s 113th session,
the parties signed an Agreement of Willingness.
On December 19, 2001, the State and the petitioners both
submitted additional information, which was forwarded to the other party
for comments. On January 2, 2002, the State presented additional
information, which was duly passed on to the petitioners for their
comments. On January 19, 2002, the petitioners gave notice of their
decision to withdraw from the friendly settlement process; the
corresponding note was forwarded to the State on January 22, 2002.
On September 11, 2001, the petitioners asked the Commission to
adopt precautionary measures on behalf of the Yakye Axa indigenous
community in consideration of “major incidents occurring in the past
hours that seriously threaten the security of the community’s families
and its integrity.” They reported that a criminal judge in Concepción,
in proceedings “Investigation of invasion of property, serious
coercion, and robbery at Estancia Loma Verde,” ordered the indigenous
community’s houses to be removed. The place where the community
members’ homes currently stand is a strip of common land under the
jurisdiction of the Traffic Office; the State, in the friendly
settlement proceedings, had agreed to guarantee their continued,
peaceful occupation of this land.
However, on August 29, the National Indigenous Institute (hereinafter
“the INDI”) was informed by the court of the decision instructing
it, together with the Ministry of Public Works and the Ministry of the
Interior, to remove the community’s houses. The petitioners claim that
in these proceedings filed against the community, they had not been
allowed to appoint an attorney. Therefore, they note, the community was
totally defenseless and could be evicted within a matter of hours. The
request for precautionary measures was forwarded to the State on
September 11, 2001, with a period of four days in which to report back
to the Commission.
On September 26, 2001, the Commission, after due consideration of
the information submitted by the State and the petitioners, asked that
precautionary measures be adopted with respect to the Yakye Axa
To suspend the enforcement of any court or administrative order
involving the eviction and/or removal of the homes of the Yakye Axa
indigenous community and of its members until such time as the organs of
the inter-American human rights system have examined the petition in
hand and adopted a final decision on the merits of the case.
To refrain from all other actions and undertakings affecting the
right to property, free transit, and residence of the Yakye Axa
indigenous community and its members.
To take all steps necessary to ensure the life and physical,
mental, and moral integrity of the members of the Yakye Axa indigenous
community, bearing in mind the grounds and provisions of Presidential
Decree Nº 3789 of June 23, 1999.
On October 12, 2001, the State informed the IACHR that
precautionary measures had been adopted: the president of the Supreme
Court of Justice and minister in charge of human rights matters, Dr. Raúl
Sapena Brugada, had asked the judge responsible for ordering the removal
of the indigenous community’s homes to remit the case file to him and
had requested the public works and interior ministries to suspend all
eviction proceedings affecting the Yakye Axa community.
On November 2, 2001, the petitioners told the Commission that
they appreciated the measures adopted by the president of the Supreme
Court, which had been appropriate and were adopted speedily in
accordance with the seriousness of the situation they were facing. In
their note they added, however, that the State’s adoption of the
precautionary measures requested by the IACHR had only been partial, in
that the judicial resolution ordering the removal of the community’s
homes had not been revoked, that they had not been guaranteed peaceful
occupation of the land where the community was living, and that the
measures needed to ensure the lives and physical, mental, and moral
integrity of the community’s members had not been adopted.
In its first comments filing, the State asked the IACHR to make
itself available to the parties in order to reach a friendly settlement.
As a part of this process, the parties held meetings in Asunción,
Paraguay. At the meeting held on March 27, 2001, it was agreed to
recognize the lands claimed by the indigenous community as part of their
traditional habitat, based on the anthropological report drawn up by Mr.
Chase Sardi, a professional anthropologist, at the INDI’s request.
On September 10, 2001, the petitioners informed the IACHR of
their decision to withdraw from the negotiations after analyzing the
results achieved to date and the possibility of the matter being
resolved through that channel. They based their decision on the fact that although the State
had recognized the community’s ancestral right to the claimed lands,
no steps had been taken toward repairing, or even beginning to
effectively repair, the community’s infringed human rights. In
contrast to the promises the State had made, there was a court order for
the removal of the community’s houses, issued by a judge in Concepción
At the working meeting held with the IACHR on November 12, 2001,
the parties signed an Agreement of Willingness and agreed to keep the
Commission informed regarding compliance with those commitments.
On December 19, 2001, the parties sent the Commission information
regarding the steps they had taken in compliance with the agreement.
In consideration of the terms set forth in the State’s note of
January 2, 2002, the petitioners informed the Commission of their
decision to withdraw from the friendly settlement proceedings, a
decision that had been made by the Assembly of the Yakye Axa indigenous
POSITIONS OF THE PARTIES
The petitioners claim that the State of Paraguay has violated
Articles 4 and 25 of the Convention, in conjunction with Article 1(1)
thereof, and that in addition, the State has also ignored Article 27 of
the ICCPR and Articles 1(2), 2(1), 4(1), and 5(a) of Convention 169, to
the detriment of the Yakye Axa indigenous community of the Enxet-Lengua
people, by failing to provide the community with comprehensive
assistance during the processing of their traditional territory claim,
by failing to conclude the administrative processing of their bid to
recover those lands, and by preventing them from conducting their
traditional subsistence economic activities — hunting, fishing, and
The petitioners claim that the Yakye Axa indigenous community
belongs to the Enxet-Lengua people, that they are hunter-gathers, and
that they have historically pursued those activities in their
traditional habitat. They add that the community comprises 47 families
and that, since 1996, they have been living at Km 80 along the road from
Pozo Colorado to Concepción, opposite Estancia Loma Verde, in
Presidente Hayes department, where the territory they claim as ancestral
lands or traditional territory is located.
With respect to the bid to recover their ancestral territory,
they say they began the relevant administrative and judicial procedures
in 1993, but that the proceedings are nevertheless still pending, even
though the Paraguayan Constitution recognizes the existence of
indigenous peoples, which are defined as cultural groups predating the
creation and organization of the Paraguayan State, and stipulates that
it is the duty of the State to provide indigenous peoples with free
community property “of an amount and quality adequate for the
conservation and pursuit of their particular ways of life.”
In their complaint they maintain that the place where the
indigenous community is currently located is inadequate for its
component families to live in. They say that automobile exhaust fumes
and the dust stirred up by the permanent flow of traffic has had a
serious impact on the community’s most vulnerable members: its
children and old folk. Most of the community’s children suffer from
respiratory ailments, which are not attended to because of the lack of
medical assistance and health care. This situation is made worse by the
food shortage—the courts have ordered the community’s members to
refrain from hunting and fishing on the ancestral lands they claim,
which prevents them from supplying their families with basic foodstuffs.
Four members of the community have died from bronchial and respiratory
The community’s serious nutritional and health situation was
recognized by the State of Paraguay on June 23, 1999, in Decree Nº
3789/99, which declared the community to be in a state of emergency and
ordered its members to be provided with medical and nutritional
assistance for as long as their land claim was being processed.
The petitioners point out that the deplorable conditions in which
the indigenous community’s members live were noted by the IACHR during
its on-site visit to Paraguay in 1999.
Despite the State’s express recognition, in the aforementioned
decree, of the indigenous community’s emergency situation, the
“provision of medical and nutritional assistance” ordered by the
President of the Republic for the community’s families has been scant
With respect to the friendly settlement proceedings begun under
the aegis of the IACHR, the petitioners gave notice, on January 19,
2002, that they were withdrawing from the negotiations; this was a
decision taken by the community’s members, in light of the fact that
continuing with the process would only delay any resolution of the
In its first filing of comments on the complaint, the State noted
its interest in beginning friendly settlement proceedings; it also
stated its willingness to establish a negotiating panel with the
petitioners, in order to better understand this petition in light of the
experience it had gained during the processing of Case 11.173,
Enxet-Lamenxay and Kayleyphapopyet (Riachito) Indigenous Communities.
The State also informed the Commission about Presidential Decree
No. 3789/99 of June 23, 1999, which declared a state of emergency in the
Yakye Axa community and ordered that they be provided with medical and
nutritional assistance. The relevant paragraphs of this decree read as
in turn, the Yakye Axa community of the Enxet Lengua people, numbering
fifty-seven families, are claiming 15,000 hectares of their traditional
territory, awaiting the resolution of that claim, and dwelling opposite
the lands claimed, alongside the same Colorado to Concepción road, at
these communities are denied access to the traditional means of
subsistence associated with their cultural identity, through the
owners’ ban on their entry into the habitat they claim as a part of
their ancestral territories.
this circumstance, currently under administrative and judicial
examination, hinders the normal pursuit of these native communities’
lives because of the lack of the minimum necessary nutritional means and
medical assistance, and it is a source of concern for the Government
that requires an urgent response.
since overseeing the preservation of the nation’s indigenous peoples
is a matter of public interest in accordance with provisions clearly set
down in Chapter V of the National Constitution, in Law 904/84 “Statute
of Indigenous Communities,” and in Law 234/93 “Adoption of ILO
Convention 169,” and since it is an obligation of the State to provide
public assistance and help to prevent or address urgent needs, as
provided by the aforesaid laws, such assistance should be rendered to
the Yakye Axa and Sawhoyamaxa indigenous communities.
President of the Republic of Paraguay decrees that:
A state of emergency is declared among the Yakye Axa and Sawhoyamaxa
indigenous communities of the Enxet Lengua people in Pozo Colorado
district, Presidente Hayes department, of the Paraguayan Chaco.
The Paraguayan Indigenous Institute, the Ministry of the Interior, and
the Ministry of Public Health and Social Welfare shall take appropriate
steps for the immediate provision of medical and nutritional assistance
to the families that make up these communities for as long as the
judicial proceedings relating to the legal status of the land they claim
as their traditional habitat remain ongoing.
With respect to the land claim proceedings, the State reports
that the lands claimed by the indigenous community were declared part of
their traditional habitat.
The State actively participated in the meetings between the
parties held in Asunción and Washington, D.C.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
The Commission’s Competence Ratione
Loci, Ratione Personae, Ratione Temporis, and Ratione
The petitioners are entitled, under Article 44 of the American
Convention, to lodge complaints with the Commission. As its alleged
victims, the petition identifies individual persons with respect to whom the
State of Paraguay has assumed the commitment of respecting and ensuring
the rights enshrined in the American Convention. As regards the State,
the Commission notes that Paraguay has been a state party to the
American Convention since ratifying it on August 24, 1989. The
Commission therefore has competence ratione
personae to examine the complaint.
The Commission has competence ratione
loci to hear this petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a
state party thereto.
The Commission has competence ratione
temporis, since the incidents alleged in the petition took place at
a time when the obligation of respecting and guaranteeing the rights
enshrined in the Convention was already in force for the State of
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights
that are protected by the American Convention.
With respect to the section of the petitioners’ complaint
alleging that the State of Paraguay ignored Article 27 of the ICCPR and
Articles 1(2), 2(1), 4(1), and 5(a) of ILO Convention 169, the
Commission does not have competence in this regard; it may and must,
however, use them as guidelines for interpreting the conventional
obligations, as described in Article 29 of the Convention.
Exhaustion of Domestic Remedies
Article 46(1)(a) of the Convention stipulates that one
requirement for a petition to be admitted is that “the remedies under
domestic law have been pursued and exhausted in accordance with
generally recognized principles of international law.” Article 46(2)
of the American Convention provides that the terms of Article 46(1)(a)
do not apply when: (a) the domestic legislation of the state concerned
does not afford due process of law for the protection of the right or
rights that have allegedly been violated; (b) the party alleging
violation of his rights has been denied access to the remedies under
domestic law or has been prevented from exhausting them; and (c) there
has been unwarranted delay in rendering a final judgment under the
With respect to the key aspect of the petition—the recovery of
the indigenous community’s ancestral territory—the petitioners claim
that they began the proceedings provided for that purpose by Paraguayan
domestic law in 1993. File No. 7261/93, also involving the INDI, was
lodged with the Rural Welfare Institute (IBR). They note that more than
eight years have gone by since the proceedings started and that the
community has not yet been given its land. That means that the
proceedings have still not been settled after more than eight years.
Consequently, given the characteristics of this case, the
Commission believes that the exception set forth in Article 46(2)(c) of
the American Convention is applicable and that therefore the
requirements of the American Convention regarding the exhaustion of
domestic remedies do not apply.
Timeliness of the Petition
According to Article 46(1)(b) of the American Convention, the
general rule is that a petition must be lodged within a period of six
months “from the date on which the party alleging violation of his
rights was notified of the final judgment.” Under Article 32(2) of the
Commission’s Rules of Procedure, this deadline shall not apply when
exceptions to the prior exhaustion requirement are applicable. In such a
situation, the Rules of Procedure stipulate that the petition must be
lodged within a reasonable period of time, considering the date on which
the alleged violation of rights occurred and the specific circumstances
of the case.
The Commission notes that more than eight years have gone by
since the representatives of the Yakye Axa indigenous community began
proceedings to recover their ancestral lands and that, to date, the
authorities have not resolved the matter; and that, with the application
of the unwarranted delay exception,
there has been no final decision under domestic law since exhaustion has
been waived; consequently, the IACHR maintains that the petition was
lodged within the “reasonable period of time” described by the
Duplication of Proceedings and Res
Articles 46(1)(c) and 47(d) of the Convention set forth
admissibility requirements whereby the subject of the petition or
communication must not be pending in another international proceeding
for settlement and must not be substantially the same as one previously
studied by the Commission or by another international organization.
Nothing in the case file indicates that the substance of this
petition is pending in any other international settlement proceeding or
that it is substantially the same as any other petition already examined
by the Commission or other international body.
The Commission therefore concludes that the requirements set
forth in Articles 46(1)(c) and 47(d) of the Convention have been met.
Characterization of the Alleged Facts
Article 47(b) of the Convention provides that any petition that
“does not state facts that tend to establish a violation of the rights
guaranteed by this Convention” shall be inadmissible.
The Commission believes that the petitioners’ allegations, if
true, could tend to establish a violation of the rights enshrined in
Articles 4 and 25 of the Convention, in conjunction with Article 1(1)
thereof. In addition, the Commission notes that the petitioners have not
argued that Articles 21 and 8 were violated. The IACHR believes that it
is not necessary for petitions to indicate each and every allegedly
violated right. With particular regard to this, and in light of the
Court’s recent case law
on indigenous property rights, the Commission concludes that the
allegations could tend to establish a violation of Articles 21 and 8 of
Based on the foregoing, the Commission believes that the
requirements set forth in Article 47(b) and (c) of the American
Convention have been met.
The Commission concludes that it is competent to hear the
complaint submitted by the petitioners and that the petition is
admissible under Articles 46 and 47 of the Convention.
Based on the foregoing considerations of fact and law, and
without prejudging the substance of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare that the petitioners’ complaint regarding the
alleged violation of Articles 4, 21, 25, 8, and 1(1), to the detriment
of the Yakye Axa indigenous community of the Enxet-Lengua people, is
To notify this decision to the State of Paraguay and to the
To continue with its analysis of the merits of this case; and,
To publish this decision and to include it in its Annual Report
to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the 27th day of February,
2002. (Signed): Juan Méndez, President; Marta Altolaguirre, First
Vice-President; Jose Zalaquett, Second Vice-President; Commissioners
Robert K. Goldman, Julio Prado Vallejo and Clare K. Roberts.
Resolution Nº 4, minutes of the meeting held by the parties in
Asunción, Paraguay, on July 24, 2001.
“Anthropological Report on the Yakye Axa (Loma Verde) Community of
the Enxet-Lengua People,” by Chase Sardi; included in the case
Presidential Decree Nº 3789/99, of June 23, 1999 which declared a
state of emergency for the Yakye Axa Community, indicates that the
community is composed of 57 families.
Article 64 of the Constitution of Paraguay.
During its 1999 on-site visit to Paraguay, “the IACHR visited Pozo
Colorado district [...] in order to speak with the Yakye Axa and
Sawhoyamaxa indigenous communities of the Enxet people. The
Commission was able to see the deplorable situation of these
peoples, who live alongside the national highway, without services
of any kind, waiting for the authorities to allocate them the land
they need. The Commission appreciates the importance of Presidential
Decree Nº 3789 of June 23, 1999, which declared these indigenous
communities to be in a ‘state of emergency’ on account of the
extreme conditions they face. In spite of this, the Commission was
told that the effective measures ordered by the executive decree for
the immediate provision of medical and nutritional assistance to the
families that make up that community have not yet been adopted.
Similarly, the Commission will closely follow the results of the
efforts that have begun to provide the indigenous communities with
the land they need.” IACHR Press Release 23/99.
Decree Nº 3789/99, President of the Republic of Paraguay.
The petitioners provided a register of the indigenous community,
individually listing each one of its members.
“Among indigenous peoples there is a communitarian tradition
regarding a communal form of collective property of the land, in the
sense that ownership of the land is not centered on an individual
but rather on the group and its community. Indigenous groups, by the
fact of their very existence, have the right to live freely in their
own territory; the close ties of indigenous people with the land
must be recognized and understood as the fundamental basis of their
cultures, their spiritual life, their integrity, and their economic
survival. For indigenous communities, relations to the land are not
merely a matter of possession and production but a material and
spiritual element which they must fully enjoy, even to preserve
their cultural legacy and transmit it to future generations.”
Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni
Community vs. Nicaragua, Judgment of August 31, 2001.