Kansol S.A. y Roswell Company S.A. c/ La Ley No. 5194

Kansol S.A. y Roswell Company S.A. c/ La Ley No. 5194 Que Declara de Interest Social y Expropria a Favor del Institute Paraguayo del Indigena (INDI), Año 2014 No, 797
Paraguay Supreme Court 

Law 5194/14 (promulgated June 11, 2014) expropriated land from two ranching companies and restored ownership to an indigenous community (Comunidad Indigena Sawhoyamaxa del Pueblo Enxet). The ranching companies (Kansol S.A. and Roswell Company S.A.) brought legal action to challenge the constitutionality of Law 5194/14.

Paraguay’s Constitution (since 1992) and various international agreements obligate Paraguay to protect indigenous peoples and their rights to traditional lands.  Paraguay is a party to the American Convention on Human Rights since 1989, and thus has accepted the jurisdiction of the Inter-American Court of Human Rights (IACtHR) and the binding force of its judgments.  In 2006, the IACtHR ordered Paraguay to return land to the Sawhoyamaxa del Pueblo Enxet within three years.  According to the Paraguayan Supreme Court, the IACtHR determined in its 2006 judgment in the Case of the Sawhoyamaxa that “productivity of the land is not a valid reason for denying the indigenous [peoples] their traditional lands.”  Para. 8.1.

Because the Paraguayan Congress has the constitutional authority to expropriate land (for the purpose of public utility or social interest, and with just compensation), congressional acts to expropriate may only be challenged when such acts are evidently arbitrary.  The Supreme Court decided that Law 5194/14 complies with domestic and international law and is not evidently arbitrary.  The court concluded that “from reading the articles of the expropriation law being questioned, and emphasizing that the present case deals with longstanding demands of indigenous communities, whose rights have persistently remained relegated, and acknowledging the extreme injustice of another delay that would be caused by accepting the plaintiffs’ demands, in a matter broadly debated, even in international fora, … the controversy can no longer continue without a definitive resolution.  The law being questioned is consistent with the achievement of this end.”  Para. 9.1.  

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Tuesday, November 11, 2014
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