188. The Court has emphasized that a State cannot be held responsible for every
situation that jeopardizes the right to life. Taking into account the difficulties involved
in the planning and adoption of public policies and the operational choices that must be
made based on priorities and resources, the positive obligations of the State must be
interpreted in such a way that an impossible or disproportionate burden is not placed
on the authorities.196 To give rise to this positive obligation, it must be established
that, at the time of the facts, the authorities knew or should have known of the
existence of a situation of real and immediate risk to the life of an individual or group
of specific individuals, and that they did not take the necessary measures within their
powers that could reasonably be expected to prevent or avoid that risk.197
189. In the instant case, on June 11, 1991,198 and on September 22, 1992,199 INDI
officials verified the situation of special vulnerability of the members of the Community
because they did not have title to their land. On November 11, 1993, the indigenous
leaders repeated to the IBR that their land claim was a priority because “they [were]
living in extremely difficult and precarious conditions and [did] not know how long they
[could] hold out.”200
190. The Prosecutor for labor matters inspected the Salazar, Cora-í, and Maroma
Ranches. He recorded “the precarious situation in which [the members of the
Community live] […] without minimum conditions of hygiene, clothing, and space
sufficient for the number of inhabitants; and also [the] houses […] do not have
impermeable walls or tile roofs and were built in such a way that they endangered the
safety and health of the indigenous people; the floors [were] of earth.”201 In addition,
the said report indicated “that they received very limited rations.”202 During the visit,
irregularities were also verified with regard to the labor exploitation suffered by the
members of the Community.
191. On April 17, 2009, the President of the Republic and the Ministry of Education
and Culture, issued Decree No. 1830,203 declaring a state of emergency in two
indigenous communities,204 one of them the Xákmok Kásek Community. The pertinent
part of Decree No. 1830 indicates that:
Due to situations beyond their control, these Communities are deprived of access to the traditional
means of subsistence related to their pre-colonial identity, within the territories claimed as part of
their ancestral territories, […] [and this] hampers the normal way of life of the said communities
196
Cf. Case of the Pueblo Bello Massacre, supra note 195, para. 124, and Case of the Sawhoyamaxa
Indigenous Community v. Paraguay, supra note 20, para. 155.
197
Cf. Case of the Pueblo Bello Massacre, supra note 195, paras. 123 and 124, and Case of the
Sawhoyamaxa Indigenous Community v. Paraguay, supra note 20, para. 155.
198
Cf. Handwritten record of an on-site inspection of the Xákmok Kásek Community made on June 11,
1991, in relation to the land claimed (file of appendices to the application, appendix 3, tome II, folio 790),
and report of on-site visit made by Pastor Cabanellas, supra note 62, folios 791 to 794).
199
Cf. Report on the expanded on-site visit on September 22, 1992, supra note 62, folios 883 and
884).
200
Communication of the Community addressed to the IBR President of November 11, 1993, supra
note 65 (file of appendices to the application, attachment 5, folio 2351).
201
Cf. Report prepared by the Prosecutor for labor matters, undated (file of appendices to the
application, appendix 3, tome IV, folio 1808).
202
Cf. Report prepared by the Prosecutor for labor matters, undated, supra note 201, folio 1810.
203
Cf. Decree No. 1830 of April 17, 2009 (file of attachments to the answer to the application,
attachment 7, folios 3643 to 3646).
204
The said Decree No. 1830 of April 17, 2009, supra note 203, also refers to the Kelyenmagategma
Community of the Enxet and Y´ara Marantu People.
43
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