13
(iii)
Aspects regarding the administration of the Community development fund
56. In previous cases, for the first time in the Case of the Yakye Axa Indigenous
Community v. Paraguay, the Court ordered, along with the creation of a Community
development fund, the establishment of an “implementation committee” which would
determine “[t]he specific components of said projects [educational, housing, agricultural,
and health in benefit of the members of the Community].” The mentioned committee
would have a representative appointed by the victims, another by the State, and a “third
member appointed by agreement between the victims and the State.”46
57. In this case, the Court ordered that the State shall “appoint an authority with
competence in the matter, in charge of the administration” of the Community
development fund. On its part, the Community of Triunfo de la Cruz “must appoint a
representative as liaison with the State.”47 Even though the importance of collective
reparation in cases of indigenous or tribal peoples has been pointed out, the usefulness
of this measure of reparation depends on its effective implementation. The latter requires
a continuous and transparent communication between the State and the Community’s
representatives, and both parties must provide sufficient information regarding the
activities carried out for the implementation of the Fund and the investment and
development plans executed within its framework.
58. This implementation requires an effective use of infrastructure, knowledge, and the
means at the State’s disposal. This makes the acceleration and coordination necessary
for the creation of the Fund and the implementation of the projects easier. In this sense,
the Community development fund is a figure that takes advantage of the state’s
structure and its efficacy, efficiency, and economy.
59. Having said this, it is important to point out that it is the Community who must
decide on its own development. The judgment states that the Fund is primarily for: “i)
developing projects oriented towards increasing agricultural or any other productivity in
the Community; ii) improve the Community’s infrastructure according to its present and
future needs; iii) restore the deforested areas, and iv) others considered appropriate in
benefit of the Community of Triunfo de la Cruz.”48
60. In this regard, it is important to mention that Convention 169 of the ILO recognizes
the aspirations of Indigenous Peoples to “exercise control over their own institutions,
ways of life, and economic development and to maintain and develop their identities,
languages and religions, within the framework of the States in which they live”49 and
that the International Covenant on Civil and Political Rights, the International Covenant
on Economic, Social, and Cultural Rights, and well as the United Nations Declaration on
Case of the Yakye Axa Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment
of June 17, 2005. Series C No. 125, paras. 205 to 206. See also: Case of the Sawhoyamaxa Indigenous
Community v. Paraguay. Merits, Reparations, and Costs. Judgment of March 29, 2006. Series C No. 146,
paras. 224 to 225; Case of the Saramaka People v. Suriname. Preliminary Objections, Merits, Reparations,
and Costs. Judgment of November 28, 2007. Series C No. 172, para. 202; Case of the Xákmok Kásek
Indigenous Community v. Paraguay. Merits, Reparations, and Costs. Judgment of August 24, 2010. Series C
No. 214, paras. 323 to 324.
46
47
Para. 297 of the judgment.
48
Para. 296 of the judgment.
49
Convention Nº 169 of the ILO, whereas paragraph number five.