5
described in a revealing paragraph of the proven facts in the respective judgment:
“At the end of the nineteenth century, vast areas of the Paraguayan El Chaco were
sold on the stock market in London.” This second process of colonization, if one can
refer to it thus, determined a long process during which, for different motives, there
were several displacements of the indigenous communities whose ancestors had
once been lords and masters of those lands.
20.
In its judgment in that case, the Inter-American Court discusses two very
relevant issues, among others (which include the issue of due process applied to
territorial claims). They are: (a) the community’s ownership of its ancestral lands, or
more important still: the relationship – which is much more than a traditional right to
property, as I will indicate below – that the community has to the land it has
occupied; a relationship that, evidently, extends to the members of the community
and makes a specific contribution to all their rights, and (b) the right to life of the
members of the community, in the terms of Article 4(1) of the Convention, in
relation also to the meaning of the right to ownership of the land and all that derives
from the ways this is exercised.
21.
Once again, the Court establishes the scope of ownership in the case of
members of indigenous communities, or rather: once again it determines its scope
(which the State must respect), under the auspices of an ancestral culture in which
this right is deeply rooted and from which its takes its principle characteristics. In
these cases, ownership has different characteristics from those that it has (also
validly) in other spheres. It implies a singular relationship between the possessor of
the right and the property this relates to. It is more than a real right, according to
the meaning currently attributed to that expression. It incorporates other
components that are also of interest – or of great interest – in order to redefine
ownership in light of the indigenous culture in which ownership is exercised. In my
opinion, by doing this, the Court affirmed another interpretation of Article 21 of the
Convention, so that it protects both the right to property in its classic sense – which
the liberal principles that prevailed in the twenty-first century transferred to our
continent – and also the underlying right to property that finally reappeared. This
other interpretation is the appropriate one.
22.
Both the constitutional and other laws of Paraguay have recognized the
existence of the indigenous peoples “as cultural groups that existed prior to the
establishment and organization of the Paraguayan State.” This emphatic recognition
not only of a demographic fact, by also of a cultural reality, that entails juridical
consequences, must translate into respect for the traditional forms of land ownership
– prior to the establishment and organization of the state – and into the assurance
that all the rights derived from this ownership will be effective and effectively
guaranteed by the public authorities in their legislative, executive and jurisdictional
functions.
23.
The Court has previously examined the right to life. This examination has
revealed both the prohibitions that this right embodies with regard to the arbitrary
action of the State, and the actions, initiatives, entitlements and promotions that the
State itself must assume and develop to establish or foster conditions for a decent
life. The first absolutely essential element of these obligations was supplied by a
previous stage in the development of law and the provision of rights. The second
element, which is also necessary – so that the right to ‘life,’ a concept with a moral
tone, is not resumed in a simple ‘possibility of existence or subsistence,’ a biological
fact – is characteristic of the current stage. This concept has entered into force in the
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