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11 Erasmus L. Rev. 43 (2018)
Adjudication and Its Aftereffects in Three Inter-American Court Cases Brought against Paraguay: Indigenous Land Rights

handle is hein.journals/erasmus11 and id is 44 raw text is: Adjudication and Its Aftereffects in Three Inter-American Court Cases Brought against Paraguay: Indigenous Land Rights Joel E. Correia* Abstract This paper examines three Inter-American Court (IACtHR) cases on behalf of the Enxet-Sur and Sanapana claims for communal territory in Paraguay. I argue that while the adju- dication of the cases was successful, the aftereffects of adju- dication have produced new legal geographies that threaten to undermine the advances made by adjudication. Struc- tured in five parts, the paper begins with an overview of the opportunities and challenges to Indigenous rights in Para- guay followed by a detailed discussion of the adjudication of the Yakye Axa, Sawhoyamaxa, and XAkmok Kdsek cases. Next, I draw from extensive ethnographic research investi- gating these cases in Paraguay to consider how implemen- tation actually takes place and with what effects on the three claimant communities. The paper encourages a discus- sion between geographers and legal scholars, suggesting that adjudication only leads to greater social justice if it is coupled with effective and meaningful implementation. 1 Introduction Developments in international law have created impor- tant legal protections for Indigenous peoples' rights to land and territory since the 1980s.' Discord between international and domestic law2 and the actions of state governments to implement the law,3 however, compro- mise the de facto territorial rights of many Indigenous peoples across the Americas.4 The Inter-American Court of Human Rights (hereafter IACtHR) has been a Postdoctoral Research Associate in the Center for Latin American Stud- ies at the University of Arizona. 1. J. Gilbert, Indigenous Peoples' Land Rights under International Law: From Victims to Actors (2016). 2. Problems implementing the International Labor Organization Conven- tion 169 on Indigenous and Tribal Peoples after ratification illustrate this. See, e.g. A. Yupsanis, 'ILO Convention No. 169 Concerning Indig- enous and Tribal Peoples in Independent Countries 1989-2009: An Overview', 79 Nordic Journal of International Law 433 (2010). See also R. Provost and C. Sheppard, Dialogues on Human Rights and Legal Plu- ralism (2013). 3. J. Schneider, 'Should Supervision be Unlinked from the General Assem- bly of the Organization of American States?', 5(1/2) Inter-American and European Human Rights Journal (2012). 4. R. Sieder, 'Indigenous Peoples' Rights and the Law in Latin America', in C. Lennox and D. Short (eds.), Handbook of Indigenous Peoples' Rights 414 (2016). primary vehicle to advance jurisprudence in support of Indigenous land rights.s Nevertheless, examining the adjudication of cases before the IACtHR and implemen- tation of its judgments underscores the challenges of ensuring de facto Indigenous rights. Implementing the IACtHR and Inter-American Commission on Human Rights (hereafter IACHR) recommendations have pro- ven challenging across jurisdictions and cases.6 This article discusses the adjudication of three IACtHR cases in Paraguay and offers a brief reflection on the aftereffects of adjudication from the perspective of legal geography. The cases at the heart of this article concern Enxet-Sur and Sanapana Indigenous peoples and their land claims in Paraguay's Chaco region: Yakye Axa Indigenous Community v. Paraguay 2005, Sawhoyamaxa Indigenous Community v. Paraguay 2006, and Xdkmok Kdsek Indigenous Community v. Paraguay 2010. The Yakye Axa, Sawhoyamaxa and Xikmok Kisek 43 communities were each dispossessed of their respective territories by the expansion of the cattle ranching indus- try between 1890 and 1950. Each community petitioned the Paraguayan state for land within its ancestral territo- ries pursuant to legal instruments adopted by the Para- guayan state in the 1980s-1990s. Despite legal entitle- ment to communal property guaranteed in Paraguayan law, state officials failed to adjudicate the three claims in a timely or adequate manner, subsequently violating human rights in each community.' With legal counsel from the nongovernmental organisation Tierraviva a Los Pueblos Indigenas del Chaco (hereafter Tierraviva), each community eventually petitioned the Inter-American 5. A. Fuentes, 'Protection of Indigenous Peoples' Traditional Lands and Exploitation of Natural Resources: The Inter-American Court of Human Rights' Safeguards', 24 International Journal on Minority and Group Rights (2017). 6. F.G. Isa, 'The Decision by the Inter-American Court of Human Rights on the Awas Tingni vs. Nicaragua Case (2001): The Implementation Gap', 8 The Age of Human Rights Journal (2017); A. Meijknecht, B. Rom- bouts & J. Asarfi, 'The implementation of IACtHR judgments concerning land rights in Suriname: Saramaka People V. Suriname and Subsequent Cases', available at: <https://pure.uvt.nl/portal/en/publications/the- implementation-of-iacthr-judgments-concerning-land-rights-in- suriname--saramaka-people-v-suriname-and-subsequent- cases(cfbl d14d-de42-4bbb-a7d5-4a6e9al d095f).html> (last visited 15 January 2018). 7. The judgments can be read in their entirety by a simple search on Inter- American Court website 'jurisprudence finder', available at: <www. corteidh.or.cr/cf/Jurisprudencia2/index.cfm?lang-en> (last visited 30 September 2017). doi: 10.5553/ELR.000102 - ELR April 2018 I No. 1 Joel E. Correia

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