On May 15, 2001, TIERRAVIVA, an NGO representing the indigenous
peoples of Chaco (hereinafter the “petitioners”), lodged a petition
with the Inter-American Commission on Human Rights (hereinafter the
“Commission” or the “IACHR”) on behalf of the Comunidad Indígena
Xakmok Kásek del Pueblo Enxet and its members, (hereinafter the
“Xakmok Kásek Indigenous Community” or the “Indigenous
Community”), against the Republic of Paraguay (hereinafter the
“State” or “State of Paraguay”).
The petition alleged that the State of Paraguay had violated the
obligation to respect rights (Article 1), the obligation to adopt
domestic legal effects (Article 2), the right to legal guarantees
(Article 8(1)), the right to property (Article 21), and the right to
judicial protection (Article 25) of the American Convention on Human
Rights (hereinafter the “Convention” or the “American
Convention”) to the detriment of the Indigenous Community and its
The petitioners argue that more than 12 years have passed since
the requisite proceedings were undertaken to recover part of the
ancestral lands of the Xakmok Kásek Indigenous Community, and that to
date the situation has not been favorably resolved, despite the fact
that the Constitution of Paraguay acknowledges the right of indigenous
peoples to develop their lifestyles in their own habitat. With respect
to the admissibility requirements, the petitioners contend that their
petition is admissible through application of the exceptions to the
requirements that remedies under domestic law be exhausted, as
stipulated in Article 46(2) of the Convention.
In its initial communication, the State declares that given the
Foreign Ministry’s policy of cooperating with international human
rights organizations, given that the Government of Paraguay places
priority on cases that meet the requirements for being handled by an
international institution, and given that the petition presented on
behalf of the Xakmok Kásek Indigenous Community fulfilled such
requirements, the State wishes to reach a friendly settlement.
Having analyzed the positions of the parties and the fulfillment
of the requirements provided for in Articles
46 and 47 of the Convention, the Commission concludes that it is
competent to hear the complaint and declares the petition admissible
under Articles 2, 8(1), 21, and 25 of the Convention, and in accordance
with Article 1(1) of the same instrument.
BY THE COMMISSION
The Commission received the complaint against the State of
Paraguay on May 15, 2001 and received additional information from the
petitioners on May 25, 2001. On
June 6, 2001, the Commission forwarded the pertinent sections of the
petition to the State and gave the State two months to respond.
On August 1, 2001, the State expressed its desire to reach a
friendly settlement and on August 2 the Commission gave the petitioners
15 days to present their observations.
On August 27, 2001, the Commission convened the parties to a
working group meeting to be held on October 1 during the 113th
Regular Session to deal with issues linked to the petition.
Said meeting was subsequently postponed until November 13.
On September 17, 2001, the Commission received a brief from Mr.
Roberto C. Eaton K. in response to the petition.
On September 20, the Commission informed Mr. Eaton that the
parties to the proceeding under the inter-American system of human
rights were the presumed victims, on the one hand, and the respective
State, on the other. For
this reason, the Commission could not consider Mr. Eaton’s
brief of September 17 as a response to the petition.
On October 31, 2001, Mr. Eaton requested that the Commission
receive his previous presentation on an amicus
On November 13, 2001, at a working meeting during the 113th
Regular Session of the Commission, the parties signed a “Friendly
On November 21, 2002, the petitioners informed the Commission of
their decision to withdraw from the friendly settlement process.
On December 10, notice of their decision was forwarded to the
State, which was requested to present its admissibility arguments within
On December 8, 2002 the Commission, through the Executive
Secretariat, visited the Community Xakmok Kásek.
On January 15 and 16, 2003, the State sent additional information
to the Commission.
In its first written response, the State requested the IACHR to
mediate in order to help the parties reach a friendly settlement. On November 13, 2001, during the 113th Regular
Session of the Commission, the parties signed a “Friendly Settlement
Agreement” in which they agreed to initiate negotiations as part of
the friendly settlement process. The
parties held meetings in Asunción, Paraguay within the framework of
On November 21, 2002, the petitioners informed the Commission of
the decision of the Xakmok Kásek Community to withdraw from the process
of direct negotiations with the government and to consider the friendly
settlement agreement subscribed by the two parties on November 13, 2001
to be null and void. They
based their decision on the lack of results obtained within the
framework of the friendly settlement solution offered by the State of
Paraguay, the time elapsed and the lack of concrete measures undertaken
to remedy the stated violations.
III. THE PARTIES’
A. The petitioners
The petitioners allege that the State of Paraguay has violated
Articles 1(1), 2, 8(1), 21, and 25 of the Convention, to the detriment
of the Xakmok Kásek del Pueblo Enxet Indigenous Community and its
members, by failing to return to the Community part of its ancestral
lands, whose ownership and property rights were disentitled without
compensation of any sort through continuous acts of dispossession in the
form of the confiscation and sale of its lands to third parties by the
Government of Paraguay. The
petitioners add that although the Constitution of Paraguay recognizes
the right of indigenous peoples to develop their lifestyles in their own
to date the State has failed to return said ancestral lands to the
The petitioners maintain that in 1990, the Indigenous Community,
through its leaders, initiated administrative proceedings with the
competent agencies, namely the Rural Welfare Institute (IBR) and the
Paraguayan Institute of Indigenous Affairs (INDI), with the objective of
obtaining restitution of part of its ancestral lands.
These proceedings were undertaken within the framework of the
procedure established in Law N° 904/81 on the Status of Indigenous
Communities, which led to the opening of IBR administrative inquiry N°
The petitioners add that after various years of procedural
arguments and the lack of
resolution through administrative channels, on June 25, 1999 the leaders
of the Indigenous Community requested the Senate to vote a law to
expropriate approximately 10,700 hectares corresponding to part of its
traditional habitat. The draft law was sponsored by Senator Nidia Ofelia
Flores. On November 16, 2000, the Senate rejected the request for
expropriation through Resolution N° 693.
With respect to the exhaustion of domestic remedies, namely the
administrative and legislative procedures contemplated in Paraguayan
domestic legislation, the petitioners contend that the Xakmok Kásek
Community has tried in every possible way, in conformity with the
principles of international law, to exercise its property rights to its
The petitioners add that although the Community had access to the
domestic remedies provided for under Paraguayan legislation and had
pursued these remedies in a
timely and substantive fashion, these efforts had not resulted in the
effective restitution of the rights of the Community to its lands.
They further state that more than 12 years have passed since the
Indigenous Community initiated the necessary proceedings to reclaim part
of its traditional habitat from the State of Paraguay and that to date
the Community has been unable to achieve a definitive solution to its
The State has expressed the following in its initial written
brought forward that fulfill the requirements for being handled by an
international organization are a matter of priority for the Government
of Paraguay and must therefore be dealt with in order to ensure progress
in improving the human rights situation in the country.
this case fulfills these requirements, the Government of Paraguay wishes
to reach a friendly settlement with the petitioners and therefore
requests the Inter-American
Commission on Human Rights to mediate in order to help achieve such an
In its observations sent on January 15 and 16, 2002, the State
deplored the decision of the petitioners to withdraw from the friendly
settlement process and reiterated its commitment to deal with the claims
concerning the rights of the indigenous peoples of Paraguay, through
measures being instituted by government bodies to ensure the effective
enjoyment of the right to community ownership of the lands of the Xakmok
Kásek Community, as well as in connection with other rights enshrined
in the National Constitution, the American Convention and Agreement N°
169 of the International Labour Organization.
With respect to this point, the State added that the President of
the Paraguayan Institute of
Indigenous Affairs (INDI), Colonel Oscar Centurión, was currently
taking steps to acquire a 4,000 hectare property which is a segment of
ranch N° 1418 and which, when combined with a parcel of land adjacent
to the above property and currently owned by INDI, could be offered to
the Xakmok Kásek Community.
Without prejudice to the above, the State contends that the
petition is unlikely to be declared admissible because the petitioners
have failed to exhaust domestic remedies, pointing out that the Republic
of Paraguay possesses an adequate legal framework to protect the right
or rights alleged by the petition in question to have been violated,
specifically the right to community property.
In respect of the first argument, the State says that the
petitioners did not exhaust domestic remedies and identifies three
pending remedies: first,
administrative measures to purchase a fraction of the 4,000 hectares of
the property called “Potrerito,” so that it may be definitively
transferred and its title assigned to the indigenous community are still
pending in the administrative body–INDI.
Second, should the owners refuse to offer the claimed part of the
property for sale, the National Congress will be asked to pass an
expropriation bill; and, third, the recourse established under
International Labour Organization Convention 169 on Indigenous and
Tribal Peoples, in accordance with Article 14 and 15 of Act 904/81 on
the Statute of Indigenous Communities, has yet to be exhausted. Its purpose is to request the prior, free, and express
consent of the community for a possible transfer to other lands of equal
size and quality.
The State also contends that the legal framework of the Republic
of Paraguay is such that it can protect the right or rights allegedly
violated in the present petition, to wit, the right to community
property of the Xakmok Kásek community and bases its assertion on the
fact that the institution charged with handling matters concerning the
land requested by the community–INDI–is currently continuing to make
arrangements for acquisition of the property claimed by the indigenous
community and, with respect to the delay in the final resolution of the
community’s petition, says that it has been justified for the reasons
At the same time, the State maintains that the delay in
successfully completing proceedings with the administrative authorities
is due to the fact that purchasing the lands to be turned over to the
indigenous communities requires negotiations with the current owners to
convince them to sell. In
the event that they refuse to sell, it will be necessary to bring draft
legislation before the legislative authorities with a view to requesting
expropriation of the land. In
such cases, the National Congress has the power to approve or reject the
respective draft legislation.
Regarding the allegation of new facts that, in the view of the
State, have legal consequences that warrant consideration by the
Commission, the State explains that the former owner of the area claimed
by the Xakmok Kásek community transferred its title to a Mennonite
cooperative, which means that negotiations must be reinitiated with the
new owners to convince them to sell the claimed portion to INDI, thus
enabling its subsequent transfer to the indigenous community.
It adds in this regard that, according to Paraguayan law, the
“new facts” argument is recognized in positive law and, in the
present case, could be applied supplementally in this quasi-judicial
proceeding to afford INDI more time to purchase the claimed property in
The State, in its written arguments, places on record that it has
not obstructed or hampered the administrative proceeding in violation of
the legitimate rights of the Xakmok Káseks, through any government
institution or its agents.
competence ratione personae,
ratione loci, ratione temporis and ratione materiae
The petitioners are entitled to lodge complaints with the IACHR
under Article 44 of the American Convention
and, as concerns the presumed victims, i.e. the Xakmok Kásek Community
and its members, the State of Paraguay has undertaken to respect and
ensure the rights enshrined in the
respect to the State, the Commission observes that Paraguay is a State
Party to the American Convention, having ratified it on August 24, 1989.
Therefore, the Commission has competence ratione
personae to examine the complaint.
The Commission has competence ratione
loci to hear the petition inasmuch as the alleged violations of the
rights protected under the American Convention have occurred within the
territory of a State Party to the Convention.
The Commission has competence ratione
temporis to address the facts alleged in the petition since they
took place when the State of Paraguay was bound to respect and ensure
the rights established in the Convention.
Finally, the Commission has competence ratione
materiae because the
petition alleges violation of rights protected under the American
1. Exhaustion of
remedies under domestic law
Article 46(1)(a) of the Convention, concerning admission of a
petition, requires that remedies under domestic law have been pursued
and exhausted in accordance with generally recognized principles of
international law. Article
46(2)(a) provides that the rule requiring exhaustion of domestic
remedies will not be applicable when: a) the domestic legislation of the
State concerned does not afford due process of law for the protection of
the right or rights that have allegedly been violated; b) the party
alleging violation of its rights has been denied access to the remedies
under domestic law or has been prevented from exhausting them, and c)
there has been unwarranted delay in rendering a final judgment under
the aforementioned remedies.
With respect to the recovery of the ancestral lands of the
Indigenous Community--the main grounds for the petition--it is the
Commission’s understanding that two avenues of recourse exist in
Paraguay, one through the INDI-IBR and the other via the National
Congress. The petitioners
have pursued both avenues.
Indeed, the record shows that in 1990 the procedures outlined in
the domestic legislation were undertaken with the respective
administrative body, i.e., INDI-IBR, with a view to reclaiming the
traditional habitat of the Community.
To date, no definitive solution has been reached concerning the
petition. Similarly, the petitioners’ attempt to resolve the matter
through the Senate of Paraguay was also unsuccessful because successive
pieces of draft legislation to expropriate the property were rejected by
the Senate, most recently through a resolution adopted on November 16,
2000. Consequently, 12
years after having initiated the relevant procedures, the Xakmok Kásek
Indigenous Community has yet to reclaim its lands.
In its arguments on admissibility, the State said that the
petitioners had not exhausted those two domestic remedies and that the
present petition was therefore inadmissible.
The Commission notes in this connection that the State, alleging
failure to exhaust remedies, is compelled to demonstrate the
effectiveness of the remedies that, in its view, have not been
exhausted. In its
arguments, the State has not provided evidence to demonstrate that
affirmation. Indeed, the
remedies mentioned by the State have to do with powers of the Executive,
i.e. both arrangements for the acquisition of the area claimed by the
community and the possibility of filing a new bill for expropriation in
the National Congress. The two remedies mentioned by the State have already been
pursued unsuccessfully in the domestic proceeding and the State has not
indicated that they might be effective.
As for the alleged non-exhaustion of the mechanism established in
ILO Convention 169, in accordance with the Paraguayan law on the Statute
of Indigenous Communities, under which the consent of the indigenous
community will have to be sought for a possible transfer to lands other
than those claimed, the Commission finds that this is not a domestic
remedy and that consequently it need not be exhausted by the
Given the characteristics of the case, the Commission therefore
considers that the remedies under domestic law have been pursued and
that there has been unwarranted delay in reaching a final judgment as
to these remedies; accordingly, the petitioners are exempt from the rule
requiring exhaustion of domestic remedies, as provided for in Article
2. Time period for
presenting a petition
Under Article 46(1)(b), the Convention requires that a petition
be lodged within a period of six months from the date on which the party
alleging violation of its rights was notified of the final judgment.
Article 32 of the Rules of Procedure of the Commission states that “in
those cases in which the exceptions to the requirement of prior
exhaustion of domestic remedies are applicable, the petition shall be
presented within a reasonable period of time, as determined by the
Commission. For this
purpose, the Commission shall consider the date on which the alleged
violation of rights occurred and the circumstances of each case”.
In the present case, the Commission concluded supra
on the applicability of the exception to the requirement concerning the
exhaustion of domestic remedies. In
this respect, the Commission considers that the petition presented to
the IACHR by the petitioners on May 15, 2001 was lodged within a
reasonable period of time, taking into account the specific
circumstances of the case, particularly the fact that on November 16,
2000, the Senate rejected the request for expropriation.
3. Duplication of
Articles 46(1)(c) and 47(d) of the Convention stipulate as
admissibility requirements that the subject matter of the petition or
communication must not be pending in another international proceeding
for settlement and not be substantially the same as another previously
studied by the Commission or by some other international organization.
The Commission’s inquiry has not revealed that the petition is
pending in another international proceeding for settlement or that the
petition is substantially the same as another previously studied by the
Commission or by some other international organization.
The Commission therefore concludes that the requirements
contained in Articles 46(1)(c) and 47(d) of the Convention have been
of the facts alleged
Article 47(b) of the Convention provides that the Commission
shall consider inadmissible any petition that “does not state facts
that tend to establish a violation of the rights the Convention
In connection with the allegation of new facts raised by the
State to the effect that the owner of the property claimed by the
community transferred it and that more time is therefore needed to
negotiate with the new owners and thus secure the sale to INDI for
subsequent transfer to the community, the Commission considers that said
allegation does not affect the facts that could represent a violation of
the rights ensured by the Convention, considering that the facts alleged
in the petition persist and that the change of owner of the area claimed
by the indigenous community does not affect the facts on which the
petition is based.
The Commission considers that prima
facie the facts alleged by the petitioners tend to establish a
violation of Articles 2, 8(1), 21, 25 and 1(1) of the Convention,
including the obligation to adopt domestic legal effects, the right to
legal guarantees, the right to judicial protection, and the right to
private property, to the detriment of the victims in this case.
The Commission therefore concludes that the petition satisfies
the requirements stipulated in Articles 47(b) and (c) of the American
The Commission concludes that it has competence to take
cognizance of the complaint presented by the petitioners and that the
petition is admissible in conformity with Articles 46 and 47 of the
49. Based on the foregoing arguments of fact and of law, and without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present petition admissible as regards the alleged
violations of Articles 2, 8(1), 21, 25 and 1(1) of the American
Convention, to the detriment of the Xakmok Kásek del Pueblo Enxet
Indigenous Community and its members.
To notify the State of Paraguay and the petitioners of its
To proceed with the analysis of the merits of the case.
To publish this decision and include it in the Commission’s
Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the
Inter-American Commission on Human Rights on the 20th day of February of
2003. (Signed): Juan Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; Robert K.
Goldman, Julio Prado Vallejo and Clare K. Roberts, Commissioners.
Article 63 About Ethnic Identity
right of Indian peoples to preserve and to develop their ethnic
identity in their respective habitat is hereby recognized and
guaranteed. They also have the right to freely apply their systems
of political, socioeconomic, cultural, and religious organization,
and to voluntarily observe customary practices in their domestic
coexistence as long as they do not violate the fundamental rights
established by this Constitution. Indian customary rights will be
taken into account when deciding conflicts of jurisdiction.
64 About Property Owned by the Community
peoples have the right, as communities, to a shared ownership of a
piece of land, which will be sufficient both in terms of size and
quality for them to preserve and to develop their own lifestyles.
The State will provide them with the respective land, free of
charge. This land, which will be exempt from attachments, cannot be
divided, transferred, or affected by the statute of limitations, nor
can it be used as collateral for contractual obligations or to be
leased. It will also be exempt from taxes.
removal or transfer of Indian groups from their habitat, without
their express consent, is hereby prohibited.
The petitioners provided censuses
of the Xakmok Kásek Community for the years 1995 and 1998.