About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline

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

What Is HeinOnline?

HeinOnline is a subscription-based resource containing nearly 3,000 academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Contact us for annual subscription options:

Already a HeinOnline Subscriber?

profiles profiles most