Indigenous community Xákmok Kásek brought an action against the government of Paraguay before the Inter-American Commission on Human Rights for failure to meet its international responsibility of timely granting the community members’ request in 1990 for a guarantee of their right to their ancestral lands. Because the government had failed to process their request, the community was forced to live on land unfit for hunting, fishing, and gathering (the community’s principal means of survival) and in poor living conditions, lacking access to sufficient and adequate food, medicines, and “sanitary needs,” threatening members’ survival. The Community also did not have water distribution services. The health of the Community suffered as a result of limited access to health care, transportation, medication, basic vaccines and primary care. Illnesses such as tuberculosis, diarrhea, Chagas disease, and epidemics were commonplace. Children also frequently suffered from malnutrition.
The Community alleged that because of the vulnerable state in which they were forced to live, the government was responsible for the deaths of 28 members, including children and pregnant women.
The Inter-American Commission found the government of Paraguay in violation of Articles 3 (right to judicial personality), 4 (right to life), 8(1) (right to fair trial), 19 (rights of the child), 21 (right to property), and 25 (right to judicial protection) of the American Convention of Human Rights (American Convention) and issued recommendations. However, upon the government’s failure to comply with the Commission’s recommendations, the Commission brought the case before the Inter-American Court, requesting that the Court find the government of Paraguay responsible for the violations of the rights mentioned above. Members of the community added to the request that the Court find Paraguay in violation of Article 5 (right to humane treatment) of the American Convention.
The Court found that Paraguay had failed in its obligation to guarantee the Community’s right to property under article 21(1), insofar as the alternative land whereon the community had been forcibly relocated was neither of the quality required for sustaining the community, nor was it sufficiently large for a community of Xákmok Kásek’s size. The Court also found that the violation of the community’s right to property created a “permanent state of danger” that threatened the very “physical survival” of its member and that the situation, therefore, constituted a violation of the members’ inalienable right to life under Article 4(1) of the American Convention. In its analysis, the Court also considered that the right to life encompassed the right to conditions that guarantee a dignified existence. Accordingly, the Court assessed whether the Community had access to quality water, food, health, and education and found that the meager provision of services, including, limited access to health care, transportation, medication, basic vaccines and primary care, breached the Community’s right to a dignified existence under Article 4(1).
The Court then assessed the deaths of many Community members who were allegedly prevented from receiving medical care and found that the preventable deaths of two vulnerable populations – children and pregnant women – constituted a further violation of the Community members’ right to life under Article 4 of the Convention. Notably, the Inter-American Court of Human Rights found a violation of the right to life for the preventable maternal death of a 38-year old woman who died following labor complications, during which she received no medical attention. Concluding that Paraguay failed to take positive measures that reasonably could have been expected to prevent or avoid the risk to life, the Court found that “states must design appropriate health-care policies that permit assistance to be provided by personnel who are adequately trained to attend to births, policies to prevent maternal mortality with adequate prenatal and post-partum care, and legal and administrative instruments for healthcare policies that permit cases of maternal mortality to be documented adequately.”
The Court also found violations to the Community members’ right to humane treatment under Article 5(1) (personal integrity) due to the suffering resulting from their having been forcibly separated from their traditional lands, as well as from the failure to recover their lands, from the gradual loss of their culture, and from the long delay they endured during inefficient administrative proceedings.
Separately, the Court also found that Paraguay failed to take special protective measures owed to children enshrined in Article 19 with regard to Article 1(1) of the Convention and under Article 30 of the Convention on the Rights of the Child.
Finally, the Court found that the State did not take measures to ensure non-discrimination of the especially vulnerability Community, in violation of Article 1(1) of the Convention, in relation to the breach of their rights under Articles 21(1), 8(1), 25(1), 4(1), 3, and 19 of the Convention. The Court correspondingly ordered the State return the 10,700 hectors of traditional Xákmok Kásek land to the Community within a given timeframe. It also required Paraguay to immediately provide certain services, including, potable water, necessary medical and psycho-social care, particularly for children, the elderly, and pregnant women, as well as the delivery of adequate food and the installation of an adequate sanitary system. The Court also ordered the establishment of a community development fund and the creation of an effective land claim mechanism for indigenous populations in the future.