97
redress non-pecuniary damage, and will also order measures that are public in their
scope or repercussions. Said measures are especially relevant in the instant case
due to the collective nature of the damage caused.219
a)
Handing over of traditional territory to the Yakye Axa Indigenous Community
211. The common basis of the human rights violations against the members of the
Yakye Axa Community found in the instant Judgment is primarily the lack of
materialization of the ancestral territorial rights of the members of the Community,
whose existence has not been challenged by the State. Furthermore, the State has
expressed throughout this proceeding before the Court its willingness to grant lands
to the members of the Community. Thus, in the brief with its reply to the application
it stated that
[b]earing in mind the general interest sought by the substantive matter, even though
the State of Paraguay does not agree with the grounds for the application, it acquiesces
to the request for reparations and therefore, through the appropriate authorities, it will
order the granting of lands to the applicant [C]ommunity, within the [C]ommunity´s
traditional territory, with the area authorized by the legislation in force, that is, 100
hectares per family, for which purpose it will allocate financial resources that it has
already requested from the Legislative […].
The property that will be granted to the [C]ommunity will be purchased by the State in
the manner and under the conditions authorized by the legislation in force, without
affecting the rights of third parties who are likewise protected by that legislation and the
American Convention, for which reason it undertakes no commitment to conduct an
unlawful expropriation or confiscation […].
212.
The State added that
it ratifies its willingness to grant a title deed, free of cost, to the Yakye Axa Community,
in accordance with the Constitution and the legislation in force, to 7,901 hectares in
favor of said [C]ommunity, within the delimited territory in the Paraguayan Chaco,
subject to what national legislation allows and without affecting the rights of third
parties who justify property rights and rational use, whether by means of a negotiated
purchase from the owners of said lands or by expropriation in accordance with domestic
legislation;
213. In its oral pleadings at the public hearing of the instant case, the State
pointed out that
what the State [...] plans to give the members of this [C]ommunity is not just any land.
It is the land they decide at the appropriate time within their ancestral territory and
within what this Chanawatsan community hast stated is part of their territory, which I
insist is much broader than the eighteen thousand hectares that they claim today as
irreplaceable territory […].
214.
In its final written pleadings the State
reiterate[d] its sustained willingness to reach a definitive solution to this case by means
of direct negotiations with the Community […] to grant the Yakye Axa Community an
area of land in accordance with its communal needs, pursuant to the Constitution, to ILO
Agreement [No.] 169 and to the respective special legislation, within the
CHANAWATSAN territory.
219
See Case of Caesar, supra note 2, para. 129; Case of Huilca Tecse, supra note 209, para. 102,
and Case of the Serrano Cruz Sisters, supra note 2, para. 165.
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