Yakye Axa v. Paraguay
Name of Case
Yakye Axa v. Paraguay
Keywords, Forum, Remainder of Citation, Context, On what breach of law was the case brought?, Process, How did civil society mobilise around the case?, Result of case, Effect of case, What has this case done to further the right to education?
Adequate Standard of Living, Cultural Rights, Indigenous Peoples’ Rights, Right to Life, Special Treatment of Disadvantaged Groups, Exclusion, lack of access to land, availability, Inter-American Court of Human Rights, protocol of San Salvador, regional courts, availability.
Inter-American Court of Human Rights
17 June 2005
The Yakye Axa and Sawhoyamaxa Indigenous Communities had been displaced from their traditional lands. They are unable to source water and food for themselves and are not provided with adequate health and education services.
They had been living in temporary homes alongside the Pozo Colorado-Concepción highway for over 10 years. In those precarious conditions they had been unable to sustain their traditional activities - such as hunting, fishing and gathering honey - or their cultural and spiritual practices.
Article 4 of the Inter-American Convention on Human Rights which guarantees that “every person has the right to have his life respected.”
The Yakye Axa and Sawhoyamaxa lodged separate claims to the land to which they had the greatest attachment – a fraction of what they considered to be their traditional territory. However, after 10 years of unsuccessfully seeking resolution of their claim through all available national processes, they took their two cases to the Inter-American Commission of Human Rights and then to the Inter-American Court of Human Rights.
*The rule of exhaustion of domestic remedies: A crucial rule governing the admissibility of a complaint is that you must, in general, have exhausted all remedies in the state where the violation occurred before bringing a claim to an international body. This usually includes pursuing your claim through the local court system. There are, however, exceptions to this rule. If the exhaustion of remedies is unreasonably prolonged, or plainly ineffective or otherwise unavailable to you (owing, for example, to denial of legal aid in a criminal case), you may not be required to exhaust domestic remedies. NB. See also the case of D.H. and Others v Czech Republic in the Racial Discrimination cases and Dilcia Yean and Violeta Bosica v Dominican Republic in the discrimination on the basis of nationality cases.cases.
The communities brought their cases to the Inter-American Commission and subsequently the Inter-American Court with the help of NGOs Tierraviva and CEJIL.
In both the case of Yakye Axa Indigenous community v Paraguay (judgement of 17 June 2005) and the case of Sawhoyamaxa Indigenous community v Paraguay (judgement of 29 March 2006), the Court found that the rights of the Yakye Axa and Sawhoyamaxa to judicial protection, to property, and to life had been violated.
The Court held that Paraguay had failed to ensure its domestic law guaranteed the community's effective use and enjoyment of their traditional land, thus threatening the free development and transmission of its culture and traditional practices.
The Court also concluded Paraguay had violated the rights to property and court protection, as well as the right to life, since it had prevented the community from access to its traditional means of livelihood.
Furthermore, the Court understood that the State had failed to adopt necessary positive measures to ensure the community lived under dignified conditions during the period they had to do without their land. While they stayed on the side of a road across from the land they claimed, the community lacked adequate access to food, health services and education.
The Court concluded the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups were at stake, whose protection became a priority.
In each case it ordered the Paraguayan state to return the traditional lands of the Yakye Axa and Sawhoyamaxa within a period of three years and to provide a community development fund to ensure their survival once they return to their traditional land.
In addition, the Court ordered that until the traditional land is reinstated the Paraguayan state must “supply, immediately and on a regular basis… water, regular medical care and appropriate medicine, food in quantities, variety and quality that are sufficient…to have minimum conditions for a decent life, latrines or appropriate toilets, bilingual material for appropriate education” (Inter-American Court judgement, Yakye Axa judgement, 17 June 2005, emphasis added).
The Paraguayan state was also ordered to enact into its domestic legislation, legislative, administrative and other measures necessary to provide an efficient mechanism to enable Indigenous Peoples in Paraguay to claim their traditional land.
The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified.
However, the authorities have failed to comply with the Inter-American Court’s orders – in particular regarding the restitution of their traditional lands. As such, the judgements have made little difference in practice to the lives of the Yakye Axa and Sawhoyamaxa.
The three-year Court deadline passed for the Yakye Axa on 13 July 2008 and for the Sawhoyamaxa on 19 May 2009, yet the return of their traditional lands is still far from a reality.
The Yakye Axa and Sawhoyamaxa, although separate communities within the Enxet ethnic group, have united to exert pressure on the Paraguayan government to resolve their land claims.
In November 2008 President Fernando Lugo signed a bill on the expropriation of the traditional lands of the Yakye Axa. This was due to be discussed by Congress in the session beginning in March 2009. For the Sawhoyamaxa, to date the authorities appear to have no clear plan for making the return of their lands a reality.
The Inter-American Court has reaffirmed its wide interpretation of the right to life to include the right to education, amongst other rights, as set out in the Protocol of San Salvador.
The Court showed that the rights to life and to education can be violated in communities deprived of a means of livelihood. Some courts, even if currently just a few, can be prepared to order a State to adopt positive measures to fulfil a dignified life standard.
As this court did, Courts can also require governments to amend legislation and also to give priority treatment to vulnerable groups(as the Court ordered relating to the Roma population in the case of DH and Others v Czech Republic in the racial discrimination cases).