70
possible to enjoy such right to date, that is due to factual situations it has not
been possible to solve in the domestic venue, but that does not amount to an
obstruction or denial of rights;
b)
the lands claimed by the Community were declared part of its
traditional habitat by the INDI; nonetheless, the refusal by the land owner to
sell the lands to the INDI so that said area might, in turn, be transferred to
the Sawhoyamaxa Community has proven to be a stumbling block. Moreover,
the owner is protected under a treaty between Paraguay and Germany on the
promotion and reciprocal protection of capital investments from both
countries;
c)
the State offered temporary location solutions to the members of the
Community while negotiations on a final solution were carried out. Said
solutions became unfeasible as a result of the inflexibility of the legal
representatives of the Indigenous Community and the refusal by Community
members to be relocated in undisputed areas;
d)
the geographical location of the Enxet-Lengua covers an ancestral
territory much larger than the one specifically pointed out as their traditional
abode and which is the subject-matter of this claim they lay against the
State;
e)
the State has not denied its obligations to restore rights to these
peoples, but said rights must be in proportion with those of the general
population that also abide by the other statutory obligations in order to come
into landed property;
f)
it is remarkable that while both Yakye Axa and Sawhoyamaxa
indigenous communities belong to the same ethnic group, the Enxet-Lengua,
they each claim territories in locations so very distant from each other. When
each group separated from the other to form a different community, they
“chose” particular land spaces as belonging to “their ancestors”, based on
little more requirements than their own whim. Historically, the areas they
moved about cover a much larger area within the Chaco territory, for which
reason their stubborness in claiming estates which have been declared
rationally exploited and held under lawful property title, is a token of
intolerance and shows their willingness to hinder the endeavors of Paraguay,
and
g)
the State has not violated the rights of the members of the
Sawhoyamaxa Community or any other indigenous group with respect to the
obligation to adopt domestic legal provisions that ensure the rights of the
indigenous peoples of Paraguay. On the contrary, never as in this stage of the
history of Paraguay have so many aspects of the life of the citizens in general
and of the indigenous communities in particular been recognized and
protected.
Considerations of the Court
116.
Article 21 of the American Convention declares that: