REPORT Nº 12/03
INDIGENOUS COMMUNITY OF THE ENXET PEOPLE
On May 15, 2001, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a
petition submitted by the non-governmental organization Tierraviva
para los Pueblos Indígenas de Chaco, TIERRAVIVA (hereinafter “the
petitioners”) in representation of the Sawhoyamaxa Indigenous
Community of the Enxet People and its members (hereinafter the
“Sawhoyamaxa Indigenous Community” or the “Indigenous
Community”) against the Republic of Paraguay (hereinafter “the
Paraguayan State” or “the State”).
In the petition, it is alleged that the Paraguayan State has
violated Articles 1 (obligation to respect the rights), 2 (duty to adopt
provisions of domestic law), 8(1) (right to a fair trial), 21 (right to
private property), and 25 (judicial protection), all of the American
Convention on Human Rights (hereinafter “the Convention” or “the
American Convention”) to the detriment of the Indigenous Community and
The petitioners argue that more than 11 years have gone by since
the procedures were first set in motion to recover part of the ancestral
lands of the Sawhoyamaxa Indigenous Community, yet to date that
initiative has not been favorably resolved, even though Paraguayan
legislation recognizes the right of the indigenous peoples to develop
their ways of life in their own habitat, and that the State has not
protected the lands claimed. In
addition, they argue that the members of the Community are living in
sub-human conditions; as a result, several people, including minors,
have died due to lack of adequate food and lack of medical care.
As regards the admissibility requirements, the petitioners allege
that their petition is admissible by virtue of the exceptions to the
requirement of prior exhaustion of domestic remedies set out at Article
46(2) of the Convention.
The State, for its part, in its first communication, stated that
in keeping with the Ministry of Foreign Affairs policy of participating
with the international human rights bodies, it is considered that cases
that have been presented that meet the requirements for being addressed
internationally have priority for the Government of Paraguay, and as the
complaint lodged on behalf of the Sawhoyamaxa has such characteristics,
it expressed its interest in reaching a friendly settlement.
The Commission, after analyzing the parties’ positions and
compliance with the requirements provided for in Articles 46 and 47 of
the Convention, concluded that it is competent to take cognizance of the
claim, and declared the petition admissible with respect to Articles 2,
8(1), 21, and 25 of the Convention, in conjunction with Article 1(1).
PROCESSING BY THE COMMISSION
On May 15, 2001, the Commission received the petition against the
Paraguayan State, and on June 6 it received additional information from
the petitioners. On June 7,
2001, the Commission transmitted the pertinent parts to the State, and
requested that it submit a response to the petition within two months.
On August 1, 2001, the State expressed its interest in pursuing a
friendly settlement, and on August 2, the Commission requested the
petitioners to submit their observations within 15 days.
On August 27, 2001, the Commission called the parties to a
working meeting on October 1, to discuss issues related to the petition;
that meeting was postponed to November 13.
On October 22, 2001, the State forwarded additional information
to the Commission, which was transmitted to the petitioners on October
On November 13, 2001, during the 113th regular session of the
Commission, in the framework of a working meeting, the parties signed an
“Agreement to Seek Common Ground” (“Acuerdo de Acercamiento de
On June 18, 2002, the petitioners submitted additional
information, which was transmitted to the State for its observations. In
addition, on June 28, 2002, the State submitted additional information,
which was forwarded to the petitioners for their observations.
On December 24, 2002, the petitioners informed the Commission of
its decision to withdraw from the friendly settlement process; that note
was transmitted to the State on December 27, requesting that it submit
its arguments on admissibility within 30 days.
On December 8, 2002, the Commission, through the Executive
Secretariat, visited the Sawhoyamaxa Community.
On January 27, 2003, the State informed the IACHR that it would
submit its observations in response to the Commission’s note of
December 27 as soon as possible. On January 29, it requested 10 more
days to submit them. On February 10, 2003, the State submitted its
Friendly settlement process
In its first answer brief the State asked the IACHR to mediate an
effort to reach a friendly settlement.
On November 13, 2001, during the 113th regular session of the
IACHR, the parties signed an “Agreement to Seek Common Ground” in
which they undertook to begin negotiations in an effort to reach a
friendly settlement. In the
framework of this process, the parties held meetings in Asunción,
On December 24, 2002, the petitioners informed the Commission of
the decision by the Sawhoyamaxa Community to withdraw from the process
of direct negotiations with the Government, and to consider terminated
the agreement to seek common ground that had been signed November 13,
2001 by the parties, in view of the lack of results obtained in the
framework of the friendly settlement effort offered by the Paraguayan
State, the time elapsed, and the absence of concrete measures of
reparation for the violations alleged.
The State, in its observations of February 10, 2003, lamented the
petitioners’ decision to end the process of pursuing a friendly
settlement, and expressed its decision to continue making the necessary
efforts to reach such a settlement.
It added that ending the friendly settlement effort and taking
indigenous cases to an adversarial stage could be to the detriment,
rather than the benefit, of the general interest, in this case the
rights of the indigenous peoples.
THE PARTIES’ POSITIONS
The petitioners allege that the Paraguayan State has violated Articles
1(1), 2, 8(1), 21, and 25 of the Convention, to the detriment of the
Sawhoyamaxa Indigenous Community of the Enxet People and its members by
failing to restore to the Community part of its ancestral lands.
They add that the Paraguayan Constitution recognizes the right of
indigenous peoples to develop their ways of life in their own habitat,without
the State, to this day, having resolved to provide their ancestral lands
to the Indigenous Community.
The petitioners indicate that in 1991, the Indigenous Community,
through is leaders, began to take administrative steps vis-a-vis
the competent agencies, i.e. the Institute of Rural Well-being (IBR: Instituto
de Bienestar Rural) and the Paraguayan Institute on Indigenous
Affairs (INDI: Instituto Paraguayo del Indígena), in order to
secure restitution of part of their ancestral lands.
The steps were taken in the context of the procedure established
in Law No. 904/81, “Status of Indigenous Communities,” opening up
administrative record No. 7,597/91 of the IBR.
The petitioners add that after several years of efforts, in 1997
established that the steps taken in file No. 7,597/91 and the
anthropological study performed by the Centro de Estudios Antropológicos
(CEADUC) of the Universidad Católica Nuestra Señora de Asunción
fully demonstrated that the area claimed by the Sawhoyamaxa Indigenous
Community was within the traditional habitat of the Enxet, adding that
“each additional period of time that passes represents a serious
attack on the integrity of the indigenous habitat claimed due to the
pressure and acts of economic groups interested in the resources of the
Western region” and resolved “to support fully the claim of the
Sawhoyamaxa Indigenous Communities and suggest to the IBR that it
consider terminated its administrative role within its limits and
request where appropriate the expropriation of the real properties
claimed by the Indigenous Community.”
By virtue of that resolution of the INDI, on May 13, 1997, the
leaders of the Indigenous Community, with the sponsorship of deputies
Andrés Avelino Díaz and Juan Carlos Ramírez Montalbetti, went before
the Chamber of Deputies of the Congress calling on it to adopt a law for
the expropriation of approximately 14,404 hectares
corresponding to part of its traditional habitat. In June 1998, the sponsoring deputies decided to withdraw the
proposed law, after the negative report of the Committee on Human Rights
and Indigenous Affairs of the Chamber, and they decided to submit it in
a subsequent legislative session. In
June 1999, the indigenous leaders from the community present a new
request for expropriation to the Senate, with the sponsorship of Senator
Juan Carlos Ramírez Montalbetti. On November 16, 2000, the Senate
dismissed the request for expropriation by Resolution No. 692.
In relation to the exhaustion of domestic remedies, i.e., the
administrative and legislative remedies provided for in Paraguay’s
domestic law, the petitioners allege that the Sawhoyamaxa Community has
made all possible efforts, in keeping with the principles of
international law, to uphold its property right over its traditional
20. They add that while the community had access to the remedies
provided for in Paraguay’s domestic jurisdiction, and that they
pursued such remedies in a timely and procedurally correct fashion, they
have not been effective in restoring the Community’s right to its
lands. The petitioners
state that more than 10 years have elapsed since the Indigenous
Community began the procedures provided for by the Paraguayan State
necessary for claiming part of its traditional habitat without, to date,
any definitive resolution.
In the context of the proceeding for claiming their ancestral
habitat, and in keeping with Paraguay’s domestic law, in December 1993
the Community sought a preliminary injunction from the courts to prevent
changes from being made on the lands, and another judicial measure
noting litigation pending over the community’s
ancestral property, for the purpose of safeguarding its expectant rights
over the property claimed. In
July 1994, the court awarded the measures sought and ordered its entry
in the corresponding public registry. Nonetheless, despite the issuance
of those protective measures, there was indiscriminate cutting of
approximately 1,250 hectares of undeveloped brush and forest on the
property, and there was a transfer of title by one who figured as the
owner of the area claimed.
The petitioners also argue that the 87 families
that constitute the Indigenous Community are living in sub-human
conditions alongside the highway running from Pozo Colorado to Concepción,
in the department of Presidente Hayes, Chaco. The petitioners state that
the deplorable situation in which the members of the Indigenous
Community are living was verified by the IACHR during the on-site visit
to Paraguay in 1999, and during the December 2002 visit.
They add that the Paraguayan State recognized the Community’s grave
health and food situation through Decree No. 3789/99 of June 23, 1999,
which declared the community to be in a state of emergency, and ordered
that it be given health and food assistance for the duration of the
process of claiming its traditional habitat.
23. Despite the emergency situation declared by the Executive, the
petitioners emphasize that the Community’s living conditions in recent
years have deteriorated quickly, to the point that its very existence as
a human group is endangered. They note that the epidemics and malnutrition are recurrent
and fatal in Sawhoyamaxa, with more than 10 deaths due to curable
diseases among children and the elderly since 1995.
In early 2001, three minors died due to gastrointestinal problems
that result from the living conditions, among which they mention the
food scarcity and the lack of drinking water.
Minors do not receive medical care.
The petitioners indicate that another 10 years have elapsed since
the claim was submitted to the Paraguayan State, and the authorities
have done nothing to guarantee at least a minimal part of land for the
Indigenous Community, or to make reparation for the dispossession and
clearing of their ancestral lands, including the grave consequences for
the well-being and integrity of the Community.
The State, in its first brief setting forth its observations,
this case has such characteristics, the Government of Paraguay would
like to reach a friendly settlement with the petitioners; accordingly,
it requests that the Inter-American Commission on Human Rights mediate
for this purpose.
In addition, the State provided the Commission information on the
administrative procedures for acquiring lands through the Institute for
Rural Well-being (IBR) as well as the steps taken by the government to
assist the indigenous community in view of the presidential decree that
declared them to be in a state of emergency.
The State also provided information to the Commission on
Presidential Decree No. 3789/99 of June 23, 1999, which declared the
Sawhoyamaxa Community to be in a state of emergency and ordered that it
be provided health and food assistance. The Decree establishes, in part, as follows:
the Sawhoyamaxa community of the Enxet people, made up of 63 families,
currently makes a claim of 15,000 hectares of its traditional territory,
and, as they await the solution to their claim by the state agencies,
several families of the community are settled alongside the route that
runs from Pozo Colorado to Concepción, along the border of the lands claimed,
at kilometer 100 of that section.
these communities are deprived of access to the traditional means of
subsistence linked to their cultural identity, by the owners’ refusal
to allow them to enter the habitat they claim as part of their ancestral
this circumstance, currently before administrative and judicial fora,
hinders the normal development of the life of these native communities,
due to the lack of minimal and essential food and medical care is a
matter of concern to the Government that demands an urgent response.
it being in the public interest to protect the preservation of the
indigenous peoples of the nation in keeping with clear provisions
contained in chapter V of the National Constitution, laws 904/84
“Status of the indigenous communities,” and 234/93, “Approving ILO
Convention 169,” and it being an obligation of the State to provide
public assistance and relief to prevent and treat cases of peremptory
needs, in keeping with the above-noted law, to the Yakye Axa and
Sawhoyamaxa Indigenous Communities.
THE PRESIDENT OF THE REPUBLIC OF PARAGUAY DECREES:
1. It is hereby declared
that the Yaxye Axa and Sawhoyamaxa indigenous communities of the
Enxet-Speaking People of the District of Pozo Colorado of the Department
of Presidente Hayes, Paraguayan Chaco, are in a state of emergency.
2. It is ordered that the Instituto
Paraguayo del Indígena in conjunction with the Ministries of
Interior and Public Health and Social Well-being carry out the
corresponding actions immediately to provide medical care and food
assistance to the families that make up the communities indicated, for
the duration of the judicial proceedings regarding the legislation on
the lands claimed as part of their traditional habitat.
As for the process in respect of the claim, the State reported
that the lands requested by the Indigenous Community were declared to be
part of their traditional habitat by the INDI; nonetheless, it stated in
its brief of February 10, 2003, that the owner of the area requested by
the Indigenous Community is a German investor who has repeatedly
communicated to the government authorities his refusal to sell his
property to the INDI, for it to be subsequently transferred to the
Community. It adds that the owner of the property is protected by a
treaty between the Republic of Paraguay and the Federal German Republic
on fostering and providing mutual protection for capital investments,
which was approved by the Legislative branch, and promulgated by
the Executive, which provides that “the capital investments of
nationals or corporations of one of the Contracting Parties may not, in
the territory of the other Contracting Party, be expropriated,
nationalized, or subjected to other measures which, in their
repercussions, are equivalent to expropriation or nationalization, other
than for public use or interest, and in such case compensation must be
The State indicates that there is no lack of will or commitment
on the part of the State to find a solution to the problems posed;
“rather, in the case in question, the fact that the lands are
privately owned and not government lands, in addition to the State’s
difficult financial situation, are obstacles in the process, with the
caveat that they are not insurmountable.” It adds, in this respect,
that the State is under an obligation to indicate expressly “that it
has not obstructed or interfered negatively in the administrative
procedure, to the detriment of the legitimate rights of the Sawhoyamaxa
Community, through any government institution or the agents thereof.”
The Executive, through the INDI, made every effort on behalf of
the expropriation of the area claimed by the Indigenous Community, with
unfavorable results because the Legislative branch did not approve the
The State indicates that the decision to pull out of the friendly
settlement procedure that the members of the Sawhoyamaxa Community came
to, advised by the non-governmental organization TIERRAVIVA “places at
risk a definitive solution to the land problem, on failing to
acknowledge the major efforts made by the State to vindicate the rights
of the Sawhoyamaxa, in keeping with the mandate of the Constitution, the
Convention, and other international and domestic legal instruments.”
In relation to the admissibility requirements, the State argues
that the petition is not admissible for failure to exhaust domestic
remedies and because some parts of the complaint do not set forth facts
which, if true, would tend to establish a violation of rights, as per Article
34 of the Rules of Procedure.
With respect to the first argument, the State says that the
petitioners did not exhaust domestic remedies and it identifies three
remedies still pending: First, the institution in charge of processing
the request for the land, i.e. the INDI, intends to present a new
request to the new National Congress, which will be installed in July
2003, for the expropriation of the lands claimed by the Community.
Second, the direct purchase of the property could eventually be
negotiated with the owner, based on a reformulation of the claims
regarding the extent of the land, safeguarding the interest of the
Community. And third, the
mechanism established in Convention 169 of the International Labor
Organization, on Indigenous and Tribal Peoples, in conjunction with Articles
14 and 15 of Law 904/81, on the Status of the Indigenous Communities,
remains to be exhausted. This latter mechanism would be invoked to
request the prior, free, and express consent of the Community to a
possible transfer to other lands of equal extent and quality.
In addition, it states that the Republic of Paraguay has an
adequate legal framework for protecting the right or rights alleged to
have been violated in this petition, specifically, the right to
community property of the Sawhoyamaxa Community, and it bases its
assertion on the fact that the institution in charge of processing the
request for the lands sought by the Community, i.e. the INDI, at present
continues to make efforts to purchase the property claimed by the
Indigenous Community, and it argues that the delay in arriving at a
final solution of the Community’s petition has been warranted for the
With respect to the failure to set forth facts which, if true,
would tend to a establish a violation of rights, and with respect to Article
2 of the Convention, the State indicates that all necessary measures of
domestic law have been adopted to comply with the obligations derived
from international human rights law, in particular with respect to
rights of indigenous peoples, and in the case of the Sawhoyamaxa
Community, the State adopted an adequate legal framework such that
today, that community is in a position to claim its ancestral lands.
As for the alleged violation of Articles 8 and 25 of the
Convention, the State does not accept the petitioners attributing
responsibility to the State, because in the administrative realm, all
necessary steps for the Indigenous Community to be able to make the
claim of possession and ownership of its ancestral lands have been taken
effectively, nonetheless it has not been possible to render the claim
effective due to budgetary problems and the refusal of the Legislative
branch, in this case, to accept the request for expropriation on behalf
of the Community. In addition, as regards the alleged violation of Article 21
of the Convention, it states that it does not repudiate or reject the
right to community ownership of the land of the Sawhoyamaxa Community.
The State indicates in its arguments that both the National
Government and the organizations who represent the Sawhoyamaxa seek to
satisfy the claim to their ancestral lands, which is why recourse was
had to the friendly settlement procedure before the Commission, adding
that the current state of the processing of the petition by the
Indigenous Community before the Paraguayan authorities does not imply
the denial of rights by the State, but the impossibility of realizing
them and thereby satisfying the basic needs of the Sawhoyamaxa community
so that they can develop their traditional activities.
ANALYSIS OF COMPETENCE AND ADMISSIBILITY
Competence of the
Commission ratione loci, ratione
personae, ratione temporis, and ratione
The petitioners are authorized by Article 44 of the American
Convention to present complaints to the Commission, and, with respect to
the alleged victims, i.e. the Sawhoyamaxa Community and its members, the Paraguayan State
undertook to respect and ensure the rights enshrined in the Convention.
As for the State, the Commission observes that Paraguay is a
state party to the American Convention, having ratified it on August 24,
1989. Accordingly, the
Commission is competent ratione personae to examine the complaint.
The Commission is competent ratione
loci to take cognizance of this petition insofar as it alleges
violations of rights protected in the American Convention in the
territory of a state party.
The Commission is competent ratione
temporis insofar as the facts alleged in the petition took place
when the obligation to respect and ensure the rights established in the
Convention had already entered into force for the Paraguayan State.
Finally, the Commission is competent ratione
materiae, because the petition alleges violations of human rights
contained in the American Convention.
Exhaustion of domestic remedies
Article 46(1)(a) of the Convention establishes as a requirement
for a petition to be admitted that domestic remedies first be pursued
and exhausted, in keeping with generally recognized principles of
international law. Article
46(2)(a) provides that this requirement shall not be applied 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; or (c) there has been unwarranted delay
in rendering a final judgment under the aforementioned remedies. The
case-law of the inter-American system is clear in indicating that only
those remedies that are adequate and effective need be exhausted.
In relation to the recovery of the ancestral territory of the
Indigenous Community, the main motive of the petition, the Commission
understands that in Paraguay there are two procedures, one
administrative before the INDI-IBR, and the other legislative, before
the National Congress. The
petitioners have gone before both.
In effect, it appears from the record that in 1991, the
procedures provided for in the domestic legislation for claiming the
Community’s traditional habitat were initiated before the respective
administrative body, i.e. the INDI and the IBR, without, to date, any
definitive solution to the petition.
In addition, an effort was made to resolve the matter in the
Senate, which also went nowhere. This
is because the expropriation bills were voted down in the Senate, the
only report having been November 16, 2000.
In view of the foregoing, 11 years after the pertinent steps were
taken by the Sawhoyamaxa indigenous community, it has not secured any
decision to have its lands turned over to it.
In its arguments on admissibility, the State indicated that the
petitioners had not exhausted these two domestic remedies, and that the
petition is therefore not admissible.
The Commission observes in this respect that when a state argues
failure to exhaust domestic remedies, it has the obligation to show the
effectiveness of the remedies which, in its view, have not been
exhausted. In its
arguments, the State has not provided information to make such a
showing. In effect, the remedies mentioned by the State have to do
with powers of the Executive, whether to submit a new expropriation bill
to the National Congress, or to make a new offer to buy the area claimed
by the Indigenous Community to the owner.
Both remedies cited by the State have already been used in the
domestic proceeding with no results, and the State has not shown any
prospects for effectiveness.
With respect to the alleged failure to exhaust the mechanism
established in ILO Convention 169 in conjunction with the Paraguayan law
on the Status of the Indigenous Communities, indicating that one must
request of the Indigenous Community its consent in order to make it
possible for it to be transferred to lands other than those claimed, the
Commission finds that it is not a domestic remedy, and therefore it need
not be exhausted by petitioners.
Therefore, given the characteristics of this case, the Commission
considers that as regards a possible legislative remedy, domestic
remedies have been exhausted, and, with respect to a possible
administrative remedy, there has been unwarranted delay in the decision,
triggering the exception provided for at Article 46(2)(c).
Time period for lodging a petition
Under Article 46(1)(b) of the American Convention, petitions, to
be admissible, must be lodged within six months of notification to the
allegedly injured party of the judgment exhausting domestic remedies.
Article 32 of the Commission’s Rules of Procedure establishes:
“In those cases in which the exceptions to the requirement of prior
exhaustion of domestic remedies are applicable, the petition shall be
presented within a reasonable period of time, as determined by the
Commission. For this
purpose, the Commission shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case.”
In the instant case, the Commission stated supra
its finding that the exception to the prior exhaustion requirement
applies. In this respect,
the Commission considers that the petition submitted to the IACHR by the
petitioners on May 15, 2001 was filed within a reasonable time, taking
into account the specific circumstances of the case, particularly the
fact that the Senate rejected the request for expropriation on November
Duplication of procedures
Articles 46(1)(c) and 47(d) of the Convention establish as
admissibility requirements that the subject matter of the petition or
communication not be pending before another international proceeding for
settlement, and that it not be substantially the same as a petition
already examined by the Commission or any other international body.
It does not appear from the record that the subject matter of the
petition is pending any other international proceeding for settlement
nor that it reproduces a petition already examined by the Commission or
any other international body.
Accordingly, the Commission finds that the requirements
established in Articles 46(1)(c) and 47(d) of the Convention have been
Characterization of the facts alleged
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 State argues that the complaint does not state facts that
tend to establish human rights violations, and that therefore it has not
violated, as petitioners state, the rights enshrined in Articles 2,
1(1), 8, 25, and 21 of the American Convention.
The Commission considers that it is not appropriate, at this
stage of the procedure, to determine whether there has been a violation
of the American Convention. For purposes of admissibility, the IACHR
must decide whether facts are stated which, if true, would tend to
establish a violation, as stipulated by Article 47(b) of the American
Convention, and whether the petition is “manifestly groundless” or
“obviously out of order,” as per Article 47(c).
The standard of appreciation of these rules is different from
that required for deciding on the merits of the complaint. The IACHR
must undertake a prima facie
evaluation to examine whether the facts alleged in the complaint lay a
foundation for the apparent or potential violation of a right guaranteed
by the Convention, and not to establish the existence of a violation.
This examination is a summary analysis that does not imply
pre-judging the merits in any way. The Commission’s Rules of Procedure, on establishing two
clear stages, admissibility and merits, reflects this distinction
between the evaluation that must be undertaken by the Commission for the
purpose of declaring a petition admissible, and for establishing a
With respect to this petition, the Commission considers that the
arguments submitted by the State require an analysis on the merits, in
order to reach a resolution. The IACHR does not find, accordingly, that
the petition is “manifestly groundless” or “obviously out of
order.” Furthermore, the
IACHR considers that, prima facie,
the petitioners have complied with the rules set forth at Article 47(b)
The Commission concludes that it is competent to take cognizance
of the complaint submitted by the petitioners, and that the petition is
admissible in keeping with Articles 46 and 47 of the Convention.
Based on the foregoing arguments of fact and law, and without
pre-judging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare admissible the complaint lodged by the petitioners
alleging violations of Articles 2, 8(1), 21, 25, and 1(1) of the
American Convention to the detriment of the Sawhoyamaxa Indigenous
Community of the Enxet People and its members.
To notify the Paraguayan State and the petitioners of this
To continue analyzing the merits of the case.
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, February 20, 2003.
(Signed): Juan Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; Commissioners:
Robert K. Goldman, Clare K. Roberts, Julio Prado Vallejo, and Susana
Article 63. On ethnic
identity. The right of
the indigenous peoples to preserve and develop their ethnic identity
in the respective habitat is recognized and guaranteed.
They also have the right to apply freely their systems of
political, social, economic, cultural, and religious organization,
as well as the voluntary subjection to their customary rules of
internal community life so long as these do not violate the
fundamental rights established in this Constitution.
Indigenous customary law shall be taken into account in
64. On community
indigenous peoples have the right to community property rights in
the land, in sufficient extent and quality to preserve and develop
their particular ways of life.
The State shall provide them these lands freely; they shall
be unattachable, indivisible, imprescribable, not susceptible to be
used to secure contractual obligations, nor to be leased; in
addition, they shall be tax-exempt.
Resolution P.C. Nº 138/97 Article 1, of the Paraguayan Institute on
Indigenous Affairs, May 7, 1997.
Presidential Decree Nº 3789 of June 23, 1999, which declared the
Sawhoyamaxa Community to be in a state of emergency indicated that
the community was claiming 15,000 hectares of its ancestral
Article 1 of Law 43/89 provides: “No innovation of fact or law
shall be admitted to the detriment of the settlements of indigenous
communities during the processing of administrative and judicial
cases that arise from the definitive titling of the lands.”
President Decree Nº 3789 states that the community is made up of 63
On occasion of the on-site visit to Paraguay in 1999, the “IACHR
visited Pozo Colorado district in Presidente Hayes department (El
Chaco) 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.” Press
Release 23/99 of the IACHR.
The petitioners submitted a census of the Sawhoyamaxa community from
IACHR, Report Nº 45/02, Admissibility, Petition 12.219, Cristián Daniel Salí Vera et al. (Chile), October 9, 2002, para.