Yakye Axa Indigenous Community v. Paraguay

Yakye Axa Indigenous Cmty. v. Para., Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005).
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The indigenous community of Yakye Axa, a traditional society of hunter-gatherers, was resettled as part of a development program in Paraguay started in 1979. They were displaced to lands with a natural environment and resources that were different from the Yakye Axa’s traditional territory and incompatible with their traditional means of subsistence.  They also faced poor living conditions. The lack of water and food in the settlement land caused the deaths of many children, youths, and elderly people in the community.  In 1996, as part of their efforts to reclaim their ancestral lands, the Yakye Axa left their settlement to reclaim their traditional lands, but were denied access to them.  They resettled alongside a national road, facing the lands they attempted to resettle. They requested that the State legalize the ancestral lands for their community.  At the temporary settlement, the Yakye Axa community also experienced “extremely destitute” living conditions.  The health of children and the elderly was particularly affected.  They had no toilets or sanitary facilities, which created “very deficient” hygienic conditions.  The closest hospital for the community was about 70 kilometers away.  Lack of adequate public transportation forced the Yakye Axa to travel 200 kilometers to reach the regional hospital.  The community had no health center or post and “health promoters” did not visit the community on a regular basis. Upon the failure of the State to grant the rights of the Yakye Axa to these ancestral lands, the Yakye Axa filed petition before the Inter-American Commission on Human Rights.  In turn, following the response of the State to the Report on the Merits issued by the Commission, the Commission submitted the case to the Inter-American Court of Human Rights.

The Court found the State of Paraguay in violation of Art. 4 of the American Convention on Human Rights to the detriment of the Yakye Axa Community for failing to take the necessary measures to ensure them the "possibility" of having a decent life.  The Court recognized the right to life as "crucial in the American Convention" on which other rights depend and that restrictions on the right to life are inadmissible.  The right to life guarantees every person not to be arbitrarily deprived of his/her life or subjected to conditions that "impeded or obstruct access to a decent existence."  The State bears the duty as guarantor to create the "minimum living conditions" that ensure human dignity and uphold the right to life. The State is expected to take "positive, concrete measures" to fulfill the right to life, especially of those who are vulnerable and at risk and "whose care becomes a high priority.

161: "[T]he right to life is crucial in the American Convention, for which reason realization of the other rights depends on protection of this one. When the right to life is not respected, all the other rights disappear, because the person entitled to them ceases to exist. Due to the basic nature of this right, approaches that restrict the right to life are not admissible. Essentially, this right includes not only the right of every human being not to be arbitrarily deprived of his life, but also the right that conditions that impede or obstruct access to a decent existence should not be generated."

162: "One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person and of not creating conditions that hinder or impede it. In this regard, the State has the duty to take positive, concrete measures geared toward fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority."

163: "[T]he Court must establish whether the State generated conditions that worsened the difficulties of access to a decent life for the members of the Yakye Axa Community and whether, in that context, it took appropriate positive measures to fulfill that obligation, taking into account the especially vulnerable situation in which they were placed, given their different manner of life (different worldview systems than those of Western culture, including their close relationship with the land) and their life aspirations, both individual and collective, in light of the existing international corpus juris regarding the special protection required by the members of the indigenous communities, in view of the provisions set forth in Article 4 of the [American] Convention [of Human Rights], in combination with the general duty to respect rights, embodied in Article 1(1) and with the duty of progressive development set forth in Article 26 of that same Convention, and with Articles 10 (Right to Health); 11 (Right to a Healthy Environment); 12 (Right to Food); 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention, regarding economic, social, and cultural rights, and the pertinent provisions ILO Convention No. 169."

166: "[T]he United Nations Committee on Economic, Social, and Cultural Rights, in General Comment 14 on the right to enjoy the highest attainable standard of health, pointed out that: "[i]ndigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines […]. [I]n indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension. In this regard, the Committee considers that [...] denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health."

167: "Special detriment to the right to health, and closely tied to this, detriment to the right to food and access to clean water, have a major impact on the right to a decent existence and basic conditions to exercise other human rights, such as the right to education or the right to cultural identity. In the case of indigenous peoples, access to their ancestral lands and to the use and enjoyment of the natural resources found on them is closely linked to obtaining food and access to clean water. In this regard, said Committee on Economic, Social and Cultural Rights has highlighted the special vulnerability of many groups of indigenous peoples whose access to ancestral lands has been threatened and, therefore, their possibility of access to means of obtaining food and clean water."

221: "[T]he Court orders that, as long as the Community remains landless, given its special state of vulnerability and the impossibility of resorting to its traditional subsistence mechanisms, the State must supply, immediately and on a regular basis, sufficient drinking water for consumption and personal hygiene of the members of the Community; it must provide regular medical care and appropriate medicine to protect the health of all persons, especially children, the elderly and pregnant women, including medicine and adequate treatment for worming of all members of the Community; it must supply food in quantities, variety and quality that are sufficient for the members of the Community to have the minimum conditions for a decent life; it must provide latrines or any other type of appropriate toilets for effective and healthy management of the biological waste of the Community [. . .]."

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