12.
Similarly, and in the same regard, it is appropriate to add, in relation to the
case in question, that the State had ratified, and by means of Law No. 234/93 19 had
incorporated into its domestic law, Convention No. 169 of the International Labour
Organization concerning Indigenous and Tribal Peoples in Independent Countries
(1989), which, in its Article 3(1) states that:
“Indigenous and tribal peoples shall enjoy full human rights and fundamental freedoms without
hindrance or discrimination. The provisions of this Convention shall apply without
discrimination to male and female members of these peoples.”
13.
On the other hand, and in keeping with the above observations, it should also
be noted that the Constitution of Paraguay establishes rights in favor of the indigenous
communities as collectives, 20 and that this State has an Indigenous Communities
Statute that recognizes the juridical personality of the communities. 21
14.
On this basis, the ICourtHR indicated in the Yakye Axa case 22 that:
“Under Paraguayan legislation, the indigenous community has ceased to be a factual reality
and become a full subject of rights, which are not restricted to the rights of its members as
individuals, but rather are rooted in the community itself, endowed with its own singularity.”
15.
It would seem clear then that, at least in the case of Paraguay, both
international law and its domestic law recognize rights to the indigenous peoples as
such, and not merely to their members.
C. Progressive development of international law.
16.
Thus, this situation is located in the same process of change that general
international law is experiencing in this sphere and that coincides with the new
perspective that the ICourtHR could apply in the future when examining this issue; 23
This is revealed, particularly, from the provisions of the said Convention No. 169 of the
International Labour Organization concerning Indigenous and Tribal Peoples in
Independent Countries (1989).
a. Decisions of international organizations
17.
This process of change is expressed, for example, in the 2007 United Nations
Declaration on the Rights of Indigenous Peoples, Article 1 of which establishes that:
“Indigenous peoples have the right to the full enjoyment, as a collective or as individuals, of
all human rights and fundamental freedoms as recognized in the Charter of the United
Nations, the Universal Declaration of Human Rights and international human rights law.”
19
Law No. 234/93 ratifying ILO Convention No. 169.
20
Constitution, articles 62 and 63.
21
Law No. 904/81, Statute of the Indigenous Communities (f376 p1, merits; f378 p2); Law No.
1.372/88 (f376 p2 merits).
22
Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, reparations and costs. Judgment
of June 17, 2005. Series C No. 125, para. 83.
23
Article 31 of the Vienna Convention on the Law of Treatises. “General Rule of Interpretation.
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose. […]
3. There shall be taken into account, together with the context: […]
c) any relevant rules of international law applicable in the relations between the parties.“
4