68
109. In relation to the alleged violations of Articles 1(1) and 2 of the Convention,
the Court recalls that the State is obliged to provide for appropriate procedures in its
national legal system to process the land claim proceedings of the indigenous
peoples with an interest thereon. For such purpose, the generic obligation to respect
rights established in Article 1(1) of said treaty imposes on the States the duty to
ensure an accessible and simple procedure and to provide competent authorities with
the technical and material conditions necessary to respond timely to the requests
filed in the framework of said procedure.
110. Article 2 of the Convention imposes on the States Parties the generic
obligation to adapt their domestic laws to the rules of the Convention itself to give
effect to those rights provided for therein. Domestic legal provisions passed for such
purpose must be effective (effet utile principle), that is to say that the State must
adopt all the measures necessary to actually comply with the provisions of the
Convention.183
111. In the instant case, Paraguay has failed to adopt the appropriate domestic law
measures necessary to ensure an effective procedure providing a final solution to the
claim laid by the members of the Sawhoyamaxa Community, in the terms of the
preceding paragraphs.
112. On the basis of all the foregoing, the Court considers that the land claim legal
proceedings instituted by the members of the Sawhoyamaxa Community did not
observe the reasonable time principle and proved to be completely ineffective, all of
which is in violation of Articles 8 and 25 of the American Convention, in the light of
Articles 1(1) and 2 thereof.
IX.
VIOLATION OF ARTICLE 21 OF THE AMERICAN CONVENTION
(RIGHT TO PROPERTY)
IN RELATION TO ARTICLES 1(1) AND 2 THEREOF
Argument by the Commission:
113. In relation to Article 21 of the American Convention, in conjunction with
Articles 1(1) and 2 thereof, the Commission alleged that:
a)
Paraguay has not guaranteed the right to property over their ancestral
lands of the members of the Sawhoyamaxa Community, consequently
depriving said Indigenous Community not only of the material possession of
their lands but also from the fundamental basis to develop their culture, their
spiritual live, their integrity and their economic survival;
b)
Paraguayan laws in force make up a favorable legal framework for
indigenous peoples; however, they cannot by themselves guarantee the
rights of such peoples. In the instant case, even though there are
constitutional and legal rules that recognize the rights of the members of the
Sawhoyamaxa Community to their ancestral territory and even though the
State has expressly recognized said rights, restitution proceedings brought by
the Community in 1993 are still pending, and
183
Cf. Case of Gómez-Palomino, supra note 12, para. 91; Case of Yatama, supra note 8, para. 170;
Case of Lori Berenson. Judgment of November 25, 2004. para. 220.