Xákmok Kásek Indigenous Community v. Paraguay

Inter-Am. Ct. H.R. (ser. C) No. 214 (Aug. 24, 2010).
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Indigenous community Xákmok Kásek brought an action against the government of Paraguay before the Inter-American Commission on Human Rights for failure to meet its international responsibility of timely granting the community members’ request in 1990 for a guarantee of their right to their ancestral lands. Because the government had failed to process their request, the community was forced to live on land unfit for hunting, fishing, and gathering (the community’s principal means of survival) and in poor living conditions, lacking access to sufficient and adequate food, medicines, and “sanitary needs,” threatening members’ survival. The Community also did not have water distribution services. The health of the Community suffered as a result of limited access to health care, transportation, medication, basic vaccines and primary care. Illnesses such as tuberculosis, diarrhea, Chagas disease, and epidemics were commonplace. Children also frequently suffered from malnutrition.

The Community alleged that because of the vulnerable state in which they were forced to live, the government was responsible for the deaths of 28 members, including children and pregnant women.

The Inter-American Commission found the government of Paraguay in violation of Articles 3 (right to judicial personality), 4 (right to life), 8(1) (right to fair trial), 19 (rights of the child), 21 (right to property), and 25 (right to judicial protection) of the American Convention of Human Rights (American Convention) and issued recommendations. However, upon the government’s failure to comply with the Commission’s recommendations, the Commission brought the case before the Inter-American Court, requesting that the Court find the government of Paraguay responsible for the violations of the rights mentioned above. Members of the community added to the request that the Court find Paraguay in violation of Article 5 (right to humane treatment) of the American Convention.

The Court found that Paraguay had failed in its obligation to guarantee the Community’s right to property under article 21(1), insofar as the alternative land whereon the community had been forcibly relocated was neither of the quality required for sustaining the community, nor was it sufficiently large for a community of Xákmok Kásek’s size. The Court also found that the violation of the community’s right to property created a “permanent state of danger” that threatened the very “physical survival” of its member and that the situation, therefore, constituted a violation of the members’ inalienable right to life under Article 4(1) of the American Convention. In its analysis, the Court also considered that the right to life encompassed the right to conditions that guarantee a dignified existence. Accordingly, the Court assessed whether the Community had access to quality water, food, health, and education and found that the meager provision of services, including, limited access to health care, transportation, medication, basic vaccines and primary care, breached the Community’s right to a dignified existence under Article 4(1). The Court then assessed the deaths of many Community members who were allegedly prevented from receiving medical care and found that the preventable deaths of two vulnerable populations - children and pregnant women - constituted a further violation of the Community members’ right to life under Article 4 of the Convention.

The Court also found violations to the Community members' right to humane treatment under Article 5(1) (personal integrity) due to the suffering resulting from their having been forcibly separated from their traditional lands, as well as from the failure to recover their lands, from the gradual loss of their culture, and from the long delay they endured during inefficient administrative proceedings.
Separately, the Court also found that Paraguay failed to take special protective measures owed to children enshrined in Article 19 with regard to Article 1(1) of the Convention and under Article 30 of the Convention on the Rights of the Child.

Finally, the Court found that the State did not take measures to ensure non-discrimination of the especially vulnerability Community, in violation of Article 1(1) of the Convention, in relation to the breach of their rights under Articles 21(1), 8(1), 25(1), 4(1), 3, and 19 of the Convention.
The Court correspondingly ordered the State return the 10,700 hectors of traditional Xákmok Kásek land to the Community within a given timeframe. It also required Paraguay to immediately provide certain services, including, potable water, necessary medical and psycho-social care, particularly for children, the elderly, and pregnant women, as well as the delivery of adequate food and the installation of an adequate sanitary system. The Court also ordered the establishment of a community development fund and the creation of an effective land claim mechanism for indigenous populations in the future.

"86. Moreover, the Court has taken into account that amongst the indigenous, there exists a communitarian tradition of a communal manner regarding collective property of land, in the sense that ownership does not pertain to an individual, but rather to the group and the community. Indigenous peoples, as a matter of survival, have the right to live freely on their own territory; the close ties of indigenous peoples with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, [their relationship with] the land is not merely a matter of possession and production but a material and spiritual element, which they must fully enjoy to preserve their cultural legacy and transmit it to future generations."

"187. For this reason, States have the obligation to guarantee the creation of the conditions that are required to prevent violations of this inalienable right and, in particular, the duty to prevent its agents from threatening that right. The observance of Article 4 with relation to Article 1(1) of the Convention not only assumes that no person should be arbitrarily deprived of life (a negative obligation), but that in addition, it requires States to take all appropriate measures to protect and preserve the right to life (a positive obligation),in keeping with the duty to guarantee the full and free exercise of the rights of all individuals under their jurisdiction, without discrimination."

"188. The Court has been emphatic in that a State cannot be responsible for every situation that puts the right to life at risk. Taking into account the difficulties presented by the planning and adoption of public policy and the operational choices that must be made based on priorities and resources, the State’s positive obligations must be interpreted in such a way that a disproportionate burden is not placed on the authorities. In order for this positive obligation to be applicable, it must be established that at the moment the facts occurred, the authorities knew or should have known of the existence of a situation of real and immediate risk to the life of an individual or a particular group of individuals and that the authorities did not take the measures necessary within the scope of their duties that, reasonably speaking, one could expect to include preventing or avoiding those risks."

"227. The Court clarifies that the fact that the State is currently providing emergency aid [...] does not exempt it from international responsibility for having failed to take measures in the past to prevent the risk of a violation to the right to life from materializing. The Court therefore must examine which of the deaths are attributable to the State for failing in its duty to prevent them. This examination will be stem from a perspective that allows for the situation of extreme and particular vulnerability, the cause of death, and the corresponding causal link between them to be connected, without placing on the State the undue burden of overcoming an indeterminate or unknown risk."

"231. As far as the other individuals, the Court observes that many died from illnesses that were easily preventable with periodic and constant care from a health program. It is enough to point out that the main causes from which the majority died were tetanus, pneumonia, tuberculosis, anemia, pertussis, serious cases of dehydration, enterocolitis, or from complications during labor. Likewise, it is worth highlighting that the main victims were children in the early stages of their lives, individuals for whom the State has greater duties of protection."

"233. With regard to this case, the Court highlights that extreme poverty and the lack of adequate medical care for pregnant women or women who have recently given birth result in a high maternal mortality rate. Because of this, States must put in place adequate healthcare policies that allow it to offer care through personnel who are adequately trained to handle births, policies to prevent maternal mortality with adequate prenatal and postpartum care, and legal and administrative instruments regarding healthcare policy that allow for the adequate documentation of cases of maternal mortality. All this is because pregnant women need special measures of protection."

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