64
request, the above mentioned Judge of First Instance ordered a new injunction in
relation to the pieces of real estate claimed.
91.
On the other hand, according to Martin Sanneman’s statement (supra para.
34. f), during a visit he made to the claimed area on April 8, 1994, he was able to
ascertain that “around 4,000 meters” measured “from east to west” had been cut
and that “it seem[ed] that between 500 and 1,000 meters” measured “from north to
south” “had been cleared.” Also, expert witness Andrew Leake pointed out that
“deforested areas cover an area of some 2,000 hectares, mostly within the Michi
estate;” however, this was “not an exact measurement,” and that “an in situ
inspection of the lands is needed.”
92.
In view of the foregoing, the Court is unable to determine the exact date on
which forest cutting activities were carried out, and therefore, if such activities took
place while the injunctions were in force. As a consequence, the Court lacks
conclusive elements to determine whether the State ensured enforcement of the
judgment entered by the Judge of First Instance through its competent authorities
under Article 25(c) of the American Convention.
iv)
Land claim proceedings
93.
In the instant case, there is a discrepancy with respect to the date of
commencement of the land claim proceedings. On the one hand, the Inter-American
Commission and the representatives state that the proceedings were instituted on
August 6, 1991, by means of a notice served by the leaders of the Sawhoyamaxa
Community on the IBR, claiming surrender of 8,000 hectares. On the other hand, the
State contends that time should be computed from the date the Community obtained
its legal personality, i.e. July 21, 1998, and the only actions aimed at enforcing the
right to communal property that should be deemed valid are those taken thereafter.
94.
To that respect, in the Case of the Indigenous Community Yakye Axa v.
Paraguay, where the State used the same arguments cast in the instant case, the
Court stated that:
recognition of legal personality allows indigenous communities to enforce their
previously existing rights; the same rights they have enjoyed historically and not since
their establishment as legal entities. Their political, social, economic, cultural, and
religious organization systems, and the rights stemming therefrom, such as the
appointment of their own leaders and the right to lay claim to their traditional lands,
are recognized, not to the legal entity which has to be registered to fulfill a legal
formality, but to the community itself which the very Constitution of Paraguay
recognizes as existing prior to the State.
Indigenous communities, under Paraguayan laws, are no longer just a factual reality to
become legal entities with the capacity to fully enjoy legal rights vested not only in its
individual memebers, but in the community itself, that is endowed with its own singular
existence. Legal personality is the legal mechanism granting them the necessary status
to enjoy certain fundamental rights, such as the right to hold title to communal
property and to demand protection against any breach thereof.177
95.
The Court finds no grounds to contradict the above mentioned position,
therefore, it considers that land claim administrative proceedings were instituted on
August 6, 1991. However, taking into account that Paraguay ratified the contentious
177
Cf. Case of the Indigenous Community Yakye Axa, supra note 1, paras. 82 y 83.