77
140. Lastly, with regard to the third argument put forth by the State, the Court has
not been furnished with the aforementioned treaty between Germany and Paraguay,
but, according to the State, said convention allows for capital investments made by a
contracting party to be condemned or nationalized for a “public purpose or interest”,
which could justifiy land restitution to indigenous people. Moreover, the Court
considers that the enforcement of bilateral commercial treaties negates vindication of
non-compliance with state obligations under the American Convention; on the
contrary, their enforcement should always be compatible with the American
Convention, which is a multilateral treaty on human rights that stands in a class of
its own and that generates rights for individual human beings and does not depend
entirely on reciprocity among States.201
141. Based on the foregoing, the Court dismisses the three arguments of the State
described above and finds them insufficient to justify non-enforcement of the right to
property of the Sawhoyamaxa Community.
*
142. Finally, it is worth recalling that, under Article 1(1) of the Convention, the
State is under the obligation to respect the rights recognized therein and to organize
public authority in such a way as to ensure to all persons under its jurisdiction the
free and full exercise of human rights.202
143. Even though the right to communal property of the lands and of the natural
resources of indigenous people is recognized in Paraguayan laws, such merely
abstract or legal recognition becomes meaningless in practice if the lands have not
been physically delimited and surrendered because the adequate domestic measures
necessary to secure effective use and enjoyment of said right by the members of the
Sawhoyamaxa Community are lacking. The free development and transmission of
their culture and traditional rites have thus been threatened.
144. For the aforementioned reasons, the Court concludes that the State violated
Article 21 of the American Convention, to the detriment of the members of the
Sawhoyamaxa Community, in relation to Articles 1(1) and 2 therein.
X.
VIOLATION OF ARTICLE 4 OF THE AMERICAN CONVENTION
(RIGHT TO LIFE)
AS REGARDS TO ARTICLES 19 AND 1(1) THEROF
Arguments by the Commission
145. As regards to Article 4 of the Convention, in connection with Article 1(1)
thereof, the Commission alleged the following:
201
Cf. The Effect of Reservations on the Entry into Force of the American Convention on Human Rights
(Arts. 74 and 75). Advisory Opinion OC-2/82 of September 24, 1982. Series A No. 2, para. 29.
202
Cf. Case of the Yakye Axa Comunidad Indigenous Community, supra note 1, para. 153; Case of
Juan Humberto Sánchez. Judgment of June 7, 2003. Series C No. 99, para. 142, y Case of Ivcher
Bronstein, supra note 189, para. 168.