CONCURRING AND DISSENTING OPINION OF JUDGE AUGUSTO FOGEL PEDROZO I have participated in the judgment delivered by the Court in the XÁKMOK KÁSEK case and I have dissented with regard to some operative paragraphs of the judgment on the grounds described in the deliberations, which include the following considerations: I. Concurring Opinion. Rejection of the State’s request to suspend the proceedings 1. In item 1 of Chapter XIII “Operative Paragraphs,” I expressed my agreement with the rejection of the State’s request to suspend these proceedings, on the grounds described in paragraphs 36 to 50, and also because, although the different names of the ethnic group indicated by the representatives of the Xákmok Kásek Community constitute a problem for the transfer of ownership of the property, since the registration laws require due clarification of the change that occurred, this can be overcome by the expert appraisal conducted recently by the State’s expert, who stated that the Xákmok Kásek Indigenous Community are part of the Sanapaná people, who belong to the same linguistic family as the Enxet-Lengua people. In Sanapaná villages, the families often coexist with members of the Maskoy linguistic group 1 (which Kalish refers to as Enlhet-Enenlhet). From a cultural point of view, it is difficult to determine to which people the children of couples from two different peoples belong, and it is necessary to determine to which people they are assigned by carrying out research among the members of the Community. 2. In the 2002 Indigenous Peoples Census, the Xákmok Kásek Community settled in the Salazar Ranch was identified as Sanapaná. Also, in the book “Los Indígenas del Paraguay” by José Zanardini and Walter Biederman, the Salazar Ranch is identified as one of the places where the Sanapaná ethnic group known as Xákmok Kásek lives. Furthermore, in 2003, the representatives of this community took part in meetings of Sanapaná communities in order to establish an Association of Sanapaná Communities. II. Dissenting opinion. Right to Communal Property, Judicial Guarantees and Judicial Protection 3. Regarding the State’s violation of the right to communal property, judicial guarantees and judicial protection, according to paragraph 170 of the judgment also in relation to the alleged violation of Article 21 of the American Convention, it is my understanding that the right to property cannot be interpreted in isolation, but rather taking into consideration the whole legal system in which it operates, as well as domestic and international law. 4. The Paraguayan Constitution guarantees private property – both individual and corporative – and the communal ownership to which the indigenous peoples have a right. Article 63 recognizes and guarantees the right of the indigenous peoples to preserve and develop their ethnic identity in their respective habitat. In addition, Article 64 of the Constitution indicates that: 1 Zanardini, José and Walter Biedermann. Los Indígenas del Paraguay. Asunción. 2006. 1