65
finds that this procedure was clearly ineffective to address the claims by the
members of the Yakye Axa Indigenous Community to the land they consider their
traditional, ancestral habitat.
*
*
*
99.
The Court has said that Article 25 of the Convention is closely linked to the
general obligation set forth in Article 1(1) of that same Convention, which give the
States Party the obligation to respect rights under domestic law, entailing the States’
responsibility to design and legally establish an effective recourse, as well as to
ensure due application of said recourse by its judicial authorities.182
100. Article 2 of the American Convention places the States Party under the
obligation to establish, in accordance with their Constitutional procedures and the
provisions of this Convention, such legislative or other measures as may be
necessary for effective exercise of the rights and freedoms protected by this same
Convention. Therefore, it is necessary to reaffirm that the obligation to adapt
domestic legislation is, by its very nature, one that must be reflected in actual
results.183
101. The Court has stated before that this provision places the States Party under
the general obligation to adjust their domestic legislation to the standards of the
Convention itself, to thus ensure the rights embodied in the Convention. Domestic
legal provisions for this purpose must be effective (principle of the effet utile), and
this means that the State must take such measures as may be necessary to actually
comply with the provisions of the Convention.
102. Pursuant to Article 2 of the Convention it is necessary to establish appropriate
procedures in the framework of the domestic legal system to process the land claims
of the indigenous peoples involved. The States must establish said procedures to
resolve those claims in such a manner that these peoples have a real opportunity to
recover their lands. For this, the general obligation to respect rights set forth in
Article 1(1) of said treaty places the States under the obligation to ensure that said
procedures are accessible and simple and that the bodies in charge of them have the
necessary technical and material conditions to provide a timely response to the
requests made in the framework of said procedures.
103. In the instant case, Paraguay has not taken appropriate domestic legal steps
necessary to ensure an effective procedure to offer a definitive solution to the claim
made by the members of the Yakye Axa Community, under the terms set forth in the
previous paragraph.
104. Based on all the above, the Court deems that the legal procedure for the land
claim made by the members of the Yakye Axa Community disregarded the principle
182
See Case of the Mayagna (Sumo) Awas Tingni Community, supra note 176, para. 135; Case of
Ivcher Bronstein, supra note 176, para. 135, and Case of the “Street Children” (Villagrán Morales et al.).
Judgment of November 19, 1999. Series C No. 63, para. 237.
183
See Case of Caesar, supra note 2, para. 93.
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