6
displaced persons do not lose their inherent rights, as a result of displacement, and
can invoke the pertinent international norms of protection to safeguard their rights
determine that displacement cannot be effected in violation of the right to life —
including therein the right to an adequate standard of living, the right to live— of the
right to personal dignity, to liberty and to security of the affected persons; of the
right to respect for family life; of the right to education; of the right of being equal
under the law.21
15.
The fact of its being a human rights problem does not mean that the
protective rules in International Human Rights Law be enough to solve it in each and
every circumstance. As a matter of fact, in circumstances different from those in the
instant case, Humanitarian International Law and Refugee International Law may
have —and have had— direct incidence and have converged in the search for a
solution to safeguard the rights of the human person. The matter of return22 (home,
to the ancestral lands), for example, common both to internally displaced people
victims of the violations of human rights (such as those in the cases of the Yakye
Axa and Sawhoyamaxa Indigenous Communities, 2005-2006, regarding Paraguay)
and to refugees (such as those in te recent case of the Moiwana Community v.
Surinam, 2005-2006); here the question of the ownership of ancestral land becomes
one of the very essence, including the preservation of the right to life in a broad
sense, which encompasses the conditions of a life with dignity and the necessary
preservation of cultural identity.
16.
In the instant case, the sufferings of the members of the Sawhoyamaxa
Indigenous Community have been for long known for a public, true and notorious
fact. Half a decade ago, for example, an IACHR Report on the general situation
warned about the pressing need and the urgency “of solving the land claims is the
inhuman situation suffered by the community of Sawhoyamaxa.23” In the case of
which the Court has just disposed by handing down the instant Judgment, the
representatives of the victims (of the non-governmental organization Tierraviva), in
their final arguments brief of February 16, 2006, argued that the failure to adopt
positive measures by State created the conditions contributing to the death of
several members of the Sawhoyamaxa Community (page 45), and pointed out that
"Most of the boys and girls who died (...) died of diseases all of which may be prevented
(dysentery, tetanus, enterocolitis, pneumonia, dehydration, measles) or medically
treated (...). (...) In spite of the State being acquainted with the special vulnerability
condition of the members of the Sawhoyamaxa Community settling alongside the road,
the State has not adopted the measures necessary to avoid the existence of objective
conditions preventing the full enjoyment of the right to life of its members24."
17.
For its part, the Commission, in its final arguments brief, warned that “the
Sawhoyamaxa Community is totally destitute", and reaffirmed what it had pointed
out in its application in the sense that
21
.
Principles 8 and the following, 17-18, 20 and
E/CNO.4/1998/53/Add.2, of February 11, 1998, pages 6-10.
23,
respectively;
cf.
UN
document
22
.
C. Phuong, The International Protection of Internally Displaced Persons, Cambridge, University
Press, 2004, pages 27 and 47-48, and cf. pages 57, 62, 117, 191 and 212.
23
.
OAS/Inter-American Commission on Human Rights, Third Report on the Situation of Human
Rights in Paraguay, doc. OAS/Ser.L/V/II.110/doc.52, of March 9, 2001, page 134, para. 48.
24
.
Pages 46-47 of the abovementioned final arguments brief, and cf. pág. 45.