73
resolved under domestic venue, without this constituting an obstruction or
denial of rights;
h) it has offered the Yakye Axa Community temporary location alternatives,
while they negotiate a solution to the substantive issue, but this was not
possible to the intransigence of the representatives and the insistence of the
members of the Community in remaining alongside the public road. The INDI
has also offered the Community, as an alternative solution to this conflictive
case, a 25,000 hectare property in an area where a major group of EnxetLengua People have settled. However, this offer, initially accepted by the
indigenous leaders, was turned down the following day at a meeting with the
representatives of the Community;
i) with the aim of ending the litigation, the leaders of the Yakye Axa
Indigenous Community have expressed their willingness to reach an
agreement regarding several offers made by the State for their definitive
settlement. However, the representatives have continued demanding 18,000
hectares on the Loma Verde estate, for which reason they have substituted
the will of the Community, which is willing to consider an alternative solution
in accordance with its claims under the law;
j) it did not intervene in the migration of the Yakye Axa Community toward
the “Anglican zone”, as it is called, or specifically to “El Estribo” estate;
k) the right to communal land embodied in the Paraguayan National
Constitution protects collectivities constituted by individuals sharing the same
culture, in the understanding that the latter will continue on the basis of
socio-cultural exchange among its members.
Paraguayan legislation
regulates the amount of land for an organized community with legal status,
which in the case of the western Chaco region is a minimum of 100 hectares
per family;
l) domestic administrative institutions have found it difficult to effectively
respond to the claim by the Yakye Axa Community, due to the complex
situation of conflicting rights, between the institution of private property
rights and the right to communal property of indigenous lands, both protected
by the Constitution and by international human rights law, and
m) it is willing to find a solution to the problem of access to communal land
for the Community in the framework of the Constitution, of the American
Convention, of ILO Convention No. 169, exhausting all domestic means
available, such as negotiation with the owners, a possible expropriation
request, or location on land with the necessary area and quality for them to
carry out their traditional activities, all the more so bearing in mind that said
Community is not rooted in any specific area, but rather considers a vast part
of the Paraguayan Chaco to be its territory.
Considerations of the Court
123.
Article 21 of the American Convention provides that:
1. Everyone has the right to the use and enjoyment of his property. The law may
subordinate such use and enjoyment to the interest of society.
Seleccionar párrafo de destino3
Conectar a un párrafo
Connect to an entity
Disable highlights
Añadir a la tabla de contenidos