109. The Court recalls its case law regarding the communal ownership of indigenous
lands,125 according to which: (1) the traditional possession by the indigenous peoples
of their lands has the same effects as a title of full ownership granted by the State;126
(2) traditional ownership grants the indigenous peoples the right to demand official
recognition of their ownership and its registration;127 (3) the State must delimit,
demarcate and grant collective title to the lands to the members of the indigenous
communities;128 (4) the members of the indigenous peoples who, for reasons beyond
their control, have left their lands or lost possession of them, retain ownership rights,
even without legal title, except when the land has been legitimately transferred to third
parties in good faith,129 and (5) the members of the indigenous peoples who have
involuntarily lost possession of their lands, which have been legitimately transferred to
innocent third parties, have the right to recover them or to obtain other lands of the
same size and quality.130
110. In addition, as established in the cases of the Yakye Axa and Sawhoyamaxa
indigenous communities, Paraguay recognizes the right of the indigenous peoples to
request the return of the traditional lands they have lost,131 even when they are under
private ownership and the indigenous peoples do not have full possession of them.132
Indeed, the Paraguayan Indigenous Communities Statute establishes the procedure to
be followed to claim lands under private ownership,133 which is precisely the issue in
the instant case.
111. In this case, although the members of the Community do not own the lands
claimed, in keeping with this Court’s case law and the laws of Paraguay, they have the
right to recover them.
2.1.3. Duration of the right to claim traditional lands
112. Regarding the possibility of recovering the traditional lands, on previous
occasions,134 the Court has established that the spiritual and physical foundations of
125
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 5, paras. 131; Case of
the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 128, and Case of the Saramaka
People v. Suriname, supra note 16, para. 89.
126
Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 101, para. 151,
and Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 128
127
Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 101, para. 151,
and Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 128..
128
Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, supra note 101, para. 164;
Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 45, para. 215, and Case of the
Saramaka People v. Suriname, supra note 16, para. 194.
129
Cf. Case of the Moiwana Community v. Suriname. Preliminary objections, merits, reparations and
costs. Judgment of June 15, 2005. Series C No. 124, para. 133, and Case of the Sawhoyamaxa Indigenous
Community v. Paraguay, supra note 20, para. 128.
130
Cf. Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, paras. 128 to
130.
131
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 5, paras. 138 to 139,
and Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 129.
132
Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 5, paras. 135 to 149,
and Case of the Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, paras. 127 and 130.
133
Cf. Articles 24, 25, 26, and 27 of Law 904/81 Statute of the Indigenous Communities, supra note
64, folios 2399 to 2425.
134
Cf. Case of the Moiwana Community v. Suriname, supra note 129, para. 133; Case of the Yakye
Axa Indigenous Community v. Paraguay, supra note 5, paras. 131, 135 and 137, and Case of the
Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, paras. 127 and 131.
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