PARTLY CONCURRING AND PARTLY DISSENTING OPINION OF JUDGE RAMON FOGEL I participated in issuing the judgment of the Court in the Yakye Axa case, and I have dissented with regard to some of its operative paragraphs, based on the reasons stated during the deliberations, including the following: 1. The Yakye Axa Indigenous Community is part of the Chanawatsan group and of the Enxet-Lengua people. The Enxet are a nomad people with a hunting, gathering, horticultural and pastoral way of life; the Yakye Axa Community is constituted by a variable number of families, 28 at the time of the 2002 Indigenous Peoples Census, and 57 in 1993 1. The facts described by the Commission and by the Representatives of the alleged victims state that the community includes 57 families, some of whom live in the settlement called El Estribo or in places neighboring the farms that they claim. El Estribo settlement covers 27,741 ha and includes 266 families, according to the 2002 Indigenous Peoples Census. 2. The Chanawatsan, an Enxet-Lengua group, traditionally inhabited the territory whose limits are the Verde river to the North, the Montelindo river toward the South, the Paraguay river toward the East, and a band parallel to this river some 70 kilometers inland in the Chaco. The Chanawatsan, like other Enxet groups, are hunters, gatherers, horticulturalists, and herdsmen. 3. With more intense economic occupation of the lower Chaco since the early 20th century, livestock ranches were established in the Chanawatsan’s traditional territory. The 1978 Anglican Mission census found 47 indigenous people in one of those ‘estancias’, Loma Verde, and today they are part of the Yakye Axa community. 2 4. Due to the very difficult living conditions at Loma Verde, the Community moved to another cattle ranching area, El Estribo, in 1986. 3 They were not forced to move, and the State was not involved in this process. In their new settlement at El Estribo, the community was unable to overcome the problems associated with extreme poverty, and in 1996 they decided to return to the vicinity of the Loma Verde ranch, part of their ancestral territory, where they settled along the road between Pozo Colorado and Concepción, around kilometer 80. 5. At the community’s makeshift settlement, between the public road and the barbed wire fence of the Estancia, it is not feasible to build basic sanitary infrastructure, and the possibility of providing basic social services is severely hampered by the very The 2002 Indigenous Census records 28 dwellings with 147 individuals, and it defines a dwelling as the lodging for individual homes; the Census defines a home as all persons living together under the same roof and sharing food expenses (common pot). 1 2 Autonomous submission by the representatives of the victims before the Inter-American Court of Human Rights. Historical Background of the Yakye Axa Community. The colony at El Estribo encompasses 27.741 hectares and in 2002 it included 266 homes or dwellings. 2002 National Indigenous Census. 3