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Team 4202
2011 INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW MOOT COURT COMPETITION
INTER-AMERICAN COURT OF HUMAN RIGHTS
INDIGENOUS ARICAPU POPULATION AND IMMIGRANTS OF THE REPUBLIC
OF MIROKAI
Petitioner
v.
FEDERAL REPUBLIC OF TUCANOS
Respondent
[BRIEF FOR PETITIONER] Additional Copy
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ...............................................................................................................3
QUESTION PRESENTED .................................................................................................................6
JURISDICTION...............................................................................................................................6
STATEMENT OF THE CASE.............................................................................................................6
ARGUMENT ..................................................................................................................................9
I. THE MIROKAIENS ARE ENTITLED TO THE SAME PROTECTION AND EQUAL
TREATMENT UNDER TUCANOS LAW AS CITIZENS AND INDIGENOUS PEOPLES.
....................................................................................................................................... 11
A. Respondent Is Required To Protect the Mirokaien Immigrants On The Basis Of
Equality And Non-Discrimination With Citizens. .............................................................. 12
B. Alternatively, the Mirokaiens Should Be Considered A Tribal Community And Their
Rights Should Therefore Be Considered Synonymous With Indigenous Peoples‘ Rights
Under The Convention. ..................................................................................................... 13
II. RESPONDENT‘S PLANNING AND EXECUTION OF THE CINCO VOLTAS
PROJECT ENGENDERED AND CONTINUES TO THREATEN EGREGIOUS AND
PERMANENT HARM TO THE COMMUNITIES‘ HUMAN RIGHTS, IN VIOLATION OF
THE AMERICAN CONVENTION....................................................................................... 14
A. The Cinco Voltas Plant Project Violates The Right To Property Of Both
Communities Under Article 21 Of The American Convention By Ignoring And
Disrespecting The Particular Protections To The Communities‘ Use And Enjoyment Of The
Land. ................................................................................................................................ 14
B. Committing to Destroying Sacred Territory and Relocating the Communities to
Uncertain Lands Severs the Aricapu‘s Symbiotic Relationship With Their Home and Denies
the Conditions for a Dignified Existence, in Violation of the Right to Life Under the
American Convention. ....................................................................................................... 23
C. Intense Physical and Emotional Suffering Stemming From the Discriminatory
Violation of the Communities‘ Territorial Rights Violates the Right to Human Treatment. 27
D. Respondent‘s Planning Process For The Dam Violated The Aricapu‘s And
Mirokaiens‘ Right To Equality Under Article 24 Of The Convention By Improperly
Discriminating On The Basis Of Their Ethnicity, National Origin, And Economic Status. . 29
2
E. By Evicting the Communities and Neglecting to Appreciate Their Relationship With
the Land, Respondent Violates Their Right to Honor and Privacy under Article 11. .......... 31
F. Tucanos Violated Article 22 of the American Convention By Expelling The Aricapu
And The Mirokaiens From Their Homes and Inhibiting Their Freedom of Movement and
Residence. ......................................................................................................................... 32
G. Respondent‘s Formal Judicial Remedies Are Not Effective for Contesting Human
Rights Violations in Accordance With Due Process, in Violation of Articles 8 and 25. ...... 33
III. CONSTRUCTING CINCO VOLTAS THREATENS TO UNDERMINE THE
JUNCTION‘S TERRITORIAL INTEGRITY AND CONTAMINATE THE ECOSYSTEM,
VIOLATING THE RIGHT TO A HEALTHY ENVIRONMENT UNDER ARTICLE 11 OF
THE PROTOCOL OF SAN SALVADOR AND HINDERING SUSTAINABLE
DEVELOPMENT ................................................................................................................. 35
REQUEST FOR RELIEF ................................................................................................................. 38
APPENDIX A .............................................................................................................................. 39
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TABLE OF AUTHORITIES
Treaties & Other International Agreements Organization of American States, Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador, entered
into force Nov. 16, 1999, O.A.S.T.S. No. 69, 28 ILM 156 ..................................................... 35
International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6
I.L.M. 368 (1967), 999 U.N.T.S. 171 .............................................................................. 12, 31
International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, June 27, 1989, 72 ILO Official Bull. 59, 1650 U.N.T.S. 383 ............. 15
Organization of American States, American Convention on Human Rights, Nov. 22, 1969,
O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 .......................... 6, 10, 11, 12, 14, 23, 27, 29, 31, 32, 33
United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc.
A/RES/61/295 (Sept. 13, 2007) ............................................................................................. 36
United Nations International Convention on the Protection of the Rights of All Migrant Workers
and Their Families, entered into force July 1, 2003, GA Res. 45/158, Annex, 45 U.N. GAOR
Supp. (No. 49A) at 262, UN Doc. A/45/49 ............................................................................ 12
Universal Declaration of Human Rights, art. 7, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III)
(Dec. 10, 1948) (―All are equal before the law and are entitled without any discrimination to
equal protection of the law.‖) ................................................................................................ 12
Cases Baena-Ricardo v. Panama, Merits, Reparations and Costs, Judgment, (ser. C) No. 72 (Feb. 2,
2001) ..................................................................................................................................... 34
C. v. Belgium (No. 12), 1996-III Eur. Ct. H.R. (1996) ............................................................... 12
Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations and Costs,
Judgment, (ser. C) No. 148 (July 1, 2006) ............................................................................. 27
Juridical Condition & Rights of the Undocumented Migrants, Advisory Opinion OC-18/03,
Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003) ......................................................... 11, 34
Kichwa People of Sarayaku v. Ecuador, Case 12.465, Inter-Am. Comm‘n H.R.,
http://www.cidh.org (April 26, 2010) .................................................................................... 26
Länsman v. Finland, Comm‘cn. No. 511/1992 of the Human Rights Comm., 52d Sess., U.N.
Doc. CCPR/C/52/D/511/1994, (Nov. 8, 1994) ....................................................................... 24
Las Dos Erres Massacre v. The Republic of Guatemala, Inter-Am. Comm‘n H.R., Case 11.681
(July 30, 2008) ...................................................................................................................... 34
Maya Indigenous Cmtys. of Toledo District v. Belize, Case 12.053, Inter-Am. Comm'n H.R.
Report No. 40/04, Oct 12, 2004, O.A.S. Doc. OEA/Ser.L/V/II.122, doc. 5 rev. 1 (2005) ..........
........................................................................................................................................ 20, 30
Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Preliminary Objections, Merits, Reparations
and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 70 (Aug. 31, 2001) ................................
........................................................................................................... 14, 15, 16, 17, 19, 20, 24
Moiwana Cmty. v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment,
Inter-Am. Ct. H.R. (ser. C) No. 124 (June 15, 2005) .................................................. 15, 27, 28
Order on Provisional Measures Requested by the Awas Tingni Cmty., Inter-Am. Ct. H.R. (ser. E)
(Sept. 6, 2002) ....................................................................................................................... 38
4
Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4 (Jan. 19, 1984) ...................... 30
Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Judgment, Inter-Am. Ct.
H.R. (ser. C) No. 140 (Jan. 31, 2006) .................................................................................... 10
Saramaka People v. Suriname, Interpretation, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 185
(Aug. 12, 2008) ..................................................................................................................... 18
Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007) ............... 13, 17, 20, 21, 24, 36
Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-
Am. Ct. H.R. (ser. C) No. 146 (March 29, 2006) ................................................. 22, 24, 25, 34
SERAC v. Nigeria, Afr. Comm‘n H.P.R., Communication 155/96 (Oct. 13-27, 2001) ............... 37
Tibi v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Judgment, (ser. C) No.
114 (Sept. 7, 2004) .......................................................................................................... 27, 33
Tristán-Donoso v. Panama, Merits, Reparations and Costs, Judgment, (ser. C) No. 193 (Jan. 27,
2009) ..................................................................................................................................... 31
Velásquez-Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29,
1988) ..................................................................................................................................... 10
Xákmok Kásek Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-
Am. Ct. H.R. (ser. C) No. 214 (Aug. 24, 2010) .......................................................... 25, 27, 28
Yakye Axa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am.
Ct. H.R. (ser. C) No. 125 (June 17, 2005) .......................................................15, 23, 25, 34, 36
Yanomami Cmty.. v. Brazil, Case 7615, Inter-Am. Comm‘n H.R. Rep. No. 12/85 (March 5,
1985) ............................................................................................................................... 10, 32
Zambranzo-Vélez v. Ecuador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 166 (July 4, 2007) ...................................................................................................... 24
Reports
Justification and Recommendation to the General Assembly of the OAS on the Preparation of an
Inter-American Instrument on this Matter, Inter-Am. Comm'n H.R. OEA/Ser.L/V/II.76, doc.
10 (Sept. 18, 1989) ..................................................................................................................9
Organization of American States, Permanent Council, Comm. on Juridical & Political Affairs,
Working Group to Prepare the Draft American Declaration on the Rights of Indigenous
Peoples, Record of the Current Status of the Draft American Declaration on the Rights of
Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 6 (Jan. 20, 2011) ..............
.................................................................................................................................. 16, 20, 36
Report on the Situation of Human Rights in Ecuador, Inter-Am. Comm‘n H.R,
OEA/Ser.L/V/II.96, doc. 10 rev. 1 (1997) ............................................................ 19, 26, 36, 37
Report on the Situation of Human Rights Defenders in the Americas, Inter-Am. Comm‘n H.R.,
OEA/Ser.L/V/II.124 (March 7, 2006) .................................................................................... 33
Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous
Peoples, Human Rights and Indigenous Issues, Comm'n H.R., E/CN.4/2003/90 (Jan. 21, 2003)
(by Rodolfo Stavenhagen) ............................................................................................... 21, 35
Other Authorities Alexandre Kiss, Sustainable Development and Human Rights, in Human Rights, Sustainable
Development and the Environment 29 (Antonio Augusto Cancado Trindade ed., 1992) ......... 35
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Comm. on Econ., Soc. & Cultural Rights (CESCR), General Comment 7, The right to adequate
housing (Art. 11(1)): forced evictions), 16th Sess. U.N. Doc. E/1998/22, Annex IV (May 20,
1997) ............................................................................................................................... 31, 32
IMBR Network, International Migrants Bill of Rights, 24 Geo. Immigr. L.J. 3-4 (2009) ..... 12, 13
International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social
and Cultural Rights, Jan. 26, 1997 ......................................................................................... 26
James Anaya, Indigenous peoples in international law (2004) ................................................... 16
James Hopkins, The Inter-American System and the Rights of Indigenous Peoples: Human
Rights and the Realist Model, in Indigenous Peoples and the Law : Comparative and Critical
Perspectives (Benjamin J. Richardson et al. eds., 2009) ......................................................... 19
Jo M. Pasqualucci, ―The Evolution of International Indigenous Rights in the Inter-American
Human Rights System,‖ 6 Hum. Rts. L. Rev. 281 (2006) ...................................................... 33
Jo M. Pasqualucci, The Right to a Dignified Life (Vida Digna): The Integration of Economic and
Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31
Hastings Int‘l & Comp. L. Rev. 1, 26 (2008) ......................................................................... 25
Kenneth Roth, Defining Economic, Social, and Cultural Rights: Practical Issues Faced by an
International Human Rights Organization, 26 Hum. Rts. Q. 63 (2004) .................................. 25
Richard J. Wilson, Environmental, Economic, Social, and Cultural Rights of the Indigenous
Peoples of Chiapas, Mexico, in The Human Rights of Indigenous Peoples (Cynthia Price
Cohen ed., 1998) ................................................................................................................... 14
U.N. Human Rights Comm., General Comment No. 15: The Position of Aliens Under the
Covenant, 7th Sess., U.N. Doc. A/41/40 (Nov. 4, 1986) ........................................................ 12
U.N. Office of the High Comm‘n for Human Rights, Fact Sheet No. 25: Forced Evictions and
Human Rights (May 1996) .................................................................................................... 31
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QUESTION PRESENTED
Whether, by not recognizing the legal, constitutional, and human rights of the indigenous
Aricapu Community and the Immigrants from the Republic of Mirokai, and by refusing to enjoin
construction of the Cinco Voltas Power Plant, which would flood the communities‘ lands,
forcibly displace them from their homes, and place them in a vulnerable state that threatens their
survival, the Federal Republic of Tucanos is responsible for violating Articles 4 (Right to Life), 5
(Humane Treatment), 8 (Due Process), 11 (Honor and Privacy), 21 (Property), 22 (Freedom of
Movement and Residence), 24 (Equality), and 25 (Judicial Protection), in accordance with
Article 1(1) (Obligation to Respect Rights) of the American Convention on Human Rights (the
American Convention); the obligation to protect immigrants, in accordance with Article 1(1);
and Article 11 (Right to a Healthy Environment) of the Protocol of San Salvador.
JURISDICTION
The Inter-American Court of Human Rights is competent to hear cases regarding the
interpretation and application of provisions of the American Convention, provided that the States
Parties recognize such jurisdiction. Organization of American States, American Convention on
Human Rights, art. 62(3), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter
American Convention]. Respondent ratified the American Convention on August 4, 1991,
recognized the Court‘s concurrent and advisory jurisdiction in July 1992, before the alleged
violations and has ratified most United Nations treaties pertaining to human rights.
STATEMENT OF THE CASE
In late March 2010, LAX, a construction company, commenced work on the Cinco
Voltas Hydroelectric Power Plant at the junction of the Betara and Corvina Rivers (the Junction)
in the Federal Republic of Tucanos (Respondent). Authorities from the National Institute for
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Renewable Energy and Defense of the Environment (NIRED) had approved an environmental
impact report (EIR) prepared and published by NIRED and LAX in January 2010. The
anticipated environmental destruction resulting from the creation of a massive lake with a 1450
km2 surface area would forcibly displace the region‘s inhabitants, the indigenous Aricapu and the
immigrants from Mirokai, who vehemently protested the EIR‘s approval.
The Aricapu, one of the oldest indigenous groups in Tucanos, live along the Betara in
fifteen villages comprising 1550 people. This homeland is considered sacred. They subsist on
hunting, local sustainable agriculture and a long-standing relationship with the local government,
which provides basic health and education services. The Indigenous Land Recognition Act of
1975 recognized the Aricapu‘s collective land rights, granted them property title, and guaranteed
ownership over the land. The 5000 Mirokaiens living by the Corvina have already suffered the
devastation of their native country by tsunamis in 1970, which prompted their move to Tucanos.
They derive income from fishing and selling products manufactured from natural resources in
local markets. The Tucanese Constitution guarantees immigrants fair and equal treatment and the
Mirokaiens registered with Tucanese National Agency for Foreigners Aid (NAFA) and acquired
property title to their settled lands around 1980. According to Respondent, in accordance with
the National Evacuee Policy (NEP) of 1992, the communities would be relocated to a plot of
land equivalent to the size previously inhabited and would receive sufficient economic resources
to restart their lives. Specifics regarding the land and compensation were and remain undefined.
Respondent‘s investment in industrial and economic growth in the 1990s shifted the
country from an agricultural economy. A predicted dearth of energy sources that would cause
electrical blackouts led Respondent to choose to construct a hydroelectric plant. Studies carried
out in 1980 – thirty years ago – determined that the Junction was ideal because its high volume
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of water would allow the plant to produce 11000 megawatts of energy/hour. Article 67 of the
Tucanese Bidding Law, which requires publicly-financed projects to use bidding procedures and
governmental approval of expenses, and Law 8090/91 regulate Cinco Voltas‘s construction. Law
8090/91 established the Tucanese Environmental Policy of 1991 (TEP), created NIRED, and
governs the implementation of infrastructure projects. See Appendix A (detailing steps). The EIR
was published after LAX was selected and Congress appropriated resources in January 2010.
The Aricapu and Mirokaiens immediately complained that they were inadequately and
inappropriately consulted. The damming, regardless of compensation, would irreparably sever
their intimate ties to their homes. On February 20, Respondent promised to reevaluate the
relocation and work together with the affected populations to find a mutually beneficial solution.
However, NIRED did not conduct supplemental analyses or attempt to reduce expected impacts,
and approved the EIR on March 15 without more extensive discussions with the communities.
Despite a belief that courts treated them discriminatorily and did not respect their
property rights, the communities sought an injunction in the local courts, alleging property rights
violations, discriminatory treatment, impermissible environmental damage, and psychical and
psychological harm due to the destruction of sacred territory. On May 14, 2010, the court found
the claim lacked merit, but the appeals court enjoined construction on June 30. On appeal to the
Supreme Court, which invalidated the injunction on August 2, Respondent argued that the
victims offered no evidence of irreversible negative impacts due to the construction or
relocation; that the injunction violated its sovereignty over Tucanos‘ natural resources; and that
the countrywide economic benefits outweighed negative impacts on the Aricapu and Mirokaiens.
On October 20, 2010, Sustainable Planet and the Institute for the Conservation of Indian
Heritage (―Petitioners‖) filed a petition on behalf of the Aricapu and Mirokaiens before the Inter-
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American Commission for Human Rights (the Commission), alleging violations of the American
Convention. Respondent disavowed human rights violations and asserted that legal requirements
and judicial and administrative procedures were strictly followed. The Commission failed to
broker an amicable settlement and found that Respondent violated Articles 4, 5, 8, 21, 22, and
25, in accordance with Article 1(1) of the American Convention. However, it referred the case to
this Court in accordance with Article 45(2) of its Rules of Procedure considering the situation‘s
gravity. Petitioners endorse the Commission‘s submission and restate our initial contention
regarding Respondent‘s violations of its obligations under the American Convention.
ARGUMENT
The Inter-American region‘s indigenous and tribal populations are ―vulnerable as regards
the physical, psychological, spiritual, economic, legal, and institutional aspects of life,‖ and the
preservation and development of indigenous cultures and rights is not merely an ethical
obligation of States ―in reparation for[] the abuses and deprivations that were forced upon them
for centuries.‖ Justification and Recommendation to the General Assembly of the OAS on the
Preparation of an Inter-American Instrument on this Matter, Inter-Am. Comm‘n H.R.,
OEA/Ser.L/V/II.76, doc. 10 (Sept. 18, 1989). Rather, it is a ―socio-economic necessity for States
to draw upon these peoples as a source of wisdom, customs, and values for the building of
modern societies‖ through the exploitation of available natural resources. Id. However,
threatening development projects are often built without their consult, ―even when these projects
could be much more effective if they were adequately synchronized with the knowledge and
customs of the indigenous peoples and respectful of their rights.‖ Id. Thus, particularly in light of
social, economic, and political abuse and marginalization, and ―because of moral and
humanitarian principles, special protection for indigenous populations constitutes a sacred
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commitment of the states.‖ See Yanomami Cmty. v. Brazil, Case 7615, Inter-Am. Comm‘n H.R.
Rep. No. 12/85, ¶ 8 (March 5, 1985).
Article 1(1) of the American Convention requires States to ―undertake to respect the
rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the
free and full exercise of those rights and freedoms, without any discrimination for reasons of
race,‖ language, religion, national or social origin, economic status, birth, or any other social
condition. American Convention, art. 1(1). This imposes ―the fundamental obligation to respect
and guarantee rights, so that any violation of the human rights … that can be attributed … to the
act or omission of any public authority‖ is attributable to the State, ―which involves its
international responsibility in the terms established in the Convention and according to general
international law.‖ Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140, ¶ 111 (Jan. 31, 2006). Further, in Velásquez-
Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, ¶ 176 (July 29,
1988), this Court held that ―when the State allows private persons or groups to act freely and
with impunity to the detriment of the rights recognized by the Convention,‖ it fails ―to comply
with its duty to ensure the free and full exercise of those rights‖ by those within its jurisdiction.
Respondent‘s failure to respond effectively and justly to the concerns of the Aricapu and
Mirokaiens regarding the Cinco Voltas construction, contrary to its positive and negative duties
under the American Convention, reflects a typical systemic failure in the Americas that is
becoming increasingly problematic as States‘ desires for resource exploitation clash with rights
the American Convention and this Court have guaranteed – and which the States have promised
to – indigenous and subsistence communities. The Mirokaiens‘ immigrant status is of no moment
to the realization of their rights. The disregard of the property rights of both communities; the
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severance of the Aricapu from their ancestral lands, the anticipated exposure to subhuman
conditions that deny access to conditions supporting a dignified existence, the intense physical
and emotional suffering stemming from the discriminatory violation of the communities‘
territorial rights, the eviction of the communities and the disrespect of their relationship with
their land, the nonexistence of effective judicial remedies with guarantees of due process, and the
contamination and undermining of the ecosystem are all interrelated.
Thus, by virtue of its actions surrounding the construction of the Cinco Voltas dam, the
Respondent violated 1) its obligation to protect immigrants, in accordance with Article 1(1); 2)
the rights to life, human treatment, fair trial, honor, property, freedom of movement and
residence, equality, and judicial protection of the American Convention, in conjunction with
Article 1(1); and 3) the right to a healthy environment of the Protocol of San Salvador,
warranting this Court finding Tucanos liable for human rights violations under the American
Convention and meriting the imposition of punitive and protective measures.
I. THE MIROKAIENS ARE ENTITLED TO THE SAME PROTECTION AND
EQUAL TREATMENT UNDER TUCANOS LAW AS CITIZENS AND
INDIGENOUS PEOPLES.
The Mirokaiens have equal rights under Tucanese law, just like the Aricapu and
Tucanese citizens. Therefore, all application of rights in the American Convention should be
applied to them equally. Indeed, this Court has proclaimed the right to equal treatment as a
preemptory norm. See Juridical Condition & Rights of the Undocumented Migrants, Advisory
Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003) (―[T]he principle of
equality before the law, equal protection before the law and non-discrimination belongs to jus
cogens, because the whole legal structure of national and international public order rests on it
12
and it is a fundamental principle that permeates all laws.‖); see also C. v. Belgium (No. 12),
1996-III Eur. Ct. H.R., ¶ 38 (1996).
A. Respondent Is Required To Protect the Mirokaien Immigrants On The Basis Of
Equality And Non-Discrimination With Citizens.
The Tucanese Constitution guarantees fair and equal treatment for the immigrant
population. A fundamental tenet of human rights law is that all persons are entitled to equality
before and protection of the law. See American Convention, art. 24 (Right to Equal Protection);
Universal Declaration of Human Rights, art. 7, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III)
(Dec. 10, 1948) (―All are equal before the law and are entitled without any discrimination to
equal protection of the law.‖); International Covenant on Civil and Political Rights, art. 26, Dec.
16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinafter ICCPR].
This right extends to migrant workers, their families, and other non-citizens. See, e.g., United
Nations International Convention on the Protection of the Rights of All Migrant Workers and
Their Families, art. 18, entered into force July 1, 2003, GA Res. 45/158, Annex, 45 U.N. GAOR
Supp. (No. 49A) at 262, UN Doc. A/45/49 (―Migrant workers and members of their families
shall have the right to equality with nationals of the State concerned before the courts and
tribunals.‖). International precedent requires Respondent to equally apply national legislation to
the Mirokaien immigrants and Tucanese citizens, and the legislation must not be discriminatory.
The prohibition against discriminatory treatment of migrants is a ―fundamental—and
complementary—principle of the international human rights regime.‖ IMBR Network,
International Migrants Bill of Rights, 24 Geo. Immigr. L.J. 3-4, at 421 (2009); see ICCPR, arts.
2(1), 26. U.N. Human Rights Comm. [UNHRC], General Comment No. 15: The Position of
Aliens Under the Covenant, ¶¶ 1-2, 7th Sess., U.N. Doc. A/41/40 (Nov. 4, 1986) (―In general, the
rights set forth in the [ICCPR] apply to everyone, irrespective of reciprocity, and irrespective of
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his or her nationality or statelessness. Thus the general rule is that aliens receive the benefit of
the general requirement of non-discrimination in respect of the rights guaranteed in the
Covenant.‖). This does not mean that migrants bear all the same rights as nationals, but instead
stresses that the Mirokaiens and other migrants enjoy the same protection as Tucanese nationals
for all coextensive rights. IMBR Network, supra, at 422. In addition, the right to equality, and
specifically equality before the law, is the right to be treated equally and in a non-arbitrary
manner, even when the direct legal consequence of a law or action does not implicate an
independent human right. Id. at 422 (citing Manfred Nowak, U.N. Covenant on Civil and
Political Rights: CCPR Commentary 465 (2d ed. 1993)). Thus, as a general rule, equal factual
situations involving migrants must be treated consistently with those involving citizens, as well
as other migrants. Id. (citing U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm‘n on Human
Rights, Sub-Comm‘n on the Protection of Human Rights, Prevention of Discrimination: The
Rights of Non-Citizens, ¶¶ 21–23, U.N. Doc. E/CN.4/Sub.2/2003/23 (May 26, 2003)). Therefore,
Respondent must treat the Mirokaiens as it would its own citizens and not arbitrarily designate
their group to bear a disproportionate burden of Tucanese development.
B. Alternatively, the Mirokaiens Should Be Considered A Tribal Community And
Their Rights Should Therefore Be Considered Synonymous With Indigenous
Peoples’ Rights Under The Convention.
The Mirokaiens are a tribal community that subsists on its land and relies on fishing and
small handicraft. The Court has held that tribal communities merit the same rights as indigenous
peoples and have the same special attachment to their lands. See Saramaka People v. Suriname,
Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)
No. 172, ¶ 96 (Nov. 28, 2007) (justifying application of jurisprudence on indigenous peoples to
tribal communities because of their ―longstanding use and occupation of the land and resources
necessary for their physical and cultural survival‖ and recognizing the state‘s ―obligation to
14
adopt special measures to recognize, respect, protect and guarantee the communal property right
of members of the tribal community to said territory‖). Thus, the Mirokaiens merit similar
protections from this Court as the Aricapu.
II. RESPONDENT’S PLANNING AND EXECUTION OF THE CINCO VOLTAS
PROJECT ENGENDERED AND CONTINUES TO THREATEN EGREGIOUS
AND PERMANENT HARM TO THE COMMUNITIES’ HUMAN RIGHTS, IN
VIOLATION OF THE AMERICAN CONVENTION.
A. The Cinco Voltas Plant Project Violates The Right To Property Of Both
Communities Under Article 21 Of The American Convention By Ignoring And
Disrespecting The Particular Protections To The Communities’ Use And
Enjoyment Of The Land.
Respondent granted the Aricapu and the Mirokaiens property title to the lands they live
on in 1975 and 1980, respectively. Article 21 of the American Convention provides that
―[e]veryone has the right to the use and enjoyment of his property‖ though ―[n]o one shall be
deprived of his property, except upon payment of just compensation, for reasons of public utility
or social interest, and in the cases and according to the forms established by law.‖ American
Convention, art. 21. The potential subordination of this right to the ‗interest of society‘ must be
read in conjunction with the right in Article 11(2), which prohibits arbitrary or abusive
interference with one‘s private life or home. See Richard J. Wilson, Environmental, Economic,
Social, and Cultural Rights of the Indigenous Peoples of Chiapas, Mexico, in The Human Rights
of Indigenous Peoples 226 (Cynthia Price Cohen ed., 1998). The right to property encompasses
collective and individual property rights. See, e.g., Mayagna (Sumo) Awas Tingni Cmty. v.
Nicaragua, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct.
H.R. (ser. C) No. 70, ¶¶ 148-49 (Aug. 31, 2001) (requiring recognition of the communal form of
property tenure characteristic of indigenous peoples). The Aricapu and Mirokaiens deserve to
have their property rights respected, rather than summarily overridden.
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i. Indigenous and tribal or subsistence peoples have special property
rights because of their spiritual connection to their land.
As indigenous and tribal peoples, the Aricapu and the Mirokaiens right to property raises
special considerations stemming from their particularities and dependence on a healthy
environment. See id. (―[T]he close ties of indigenous people with the land must be recognized
and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and
their economic survival‖); see also Yakye Axa Indigenous Cmty. v. Paraguay, Merits,
Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005);
International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in
Independent Countries, arts. 7, 15, 19, June 27, 1989, 72 ILO Official Bull. 59, 1650 U.N.T.S.
383 [hereinafter ILO No. 169]. Their spiritual, special and longstanding connection to their lands
accords indigenous people a right of return to their lands if they have been forcibly removed
from them. See, e.g., Yakye Axa, (ser. C) No. 125, at ¶¶ 154-56 (holding that Paraguay had
violated the right to property of Article 21 by not effectively securing the Yakye Axa‘s rights to
their traditional lands and ordering Paraguay to return the land). In this case, the planned Cinco
Voltas dam will change the territory so substantially that the Aricapu and the Mirokaiens will
never be able to return to the lands they have traditionally occupied. This permanence should
elevate the special protections accorded to them in the development planning process.
―For indigenous communities, relations to the land are not merely a matter of possession
and production but a material and spiritual element which they must fully enjoy, even to preserve
their cultural legacy and transmit it to future generations.‖ Awas Tingni, (ser. C) No. 70, at ¶ 149.
See also Moiwana Cmty. v. Suriname, Preliminary Objections, Merits, Reparations and Costs,
Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, ¶ 132-33 (June 15, 2005) (applying Article 21
jurisprudence to the Moiwana tribal community because they had a ―profound and all
16
encompassing relationship to their ancestral lands that was centered on the community as a
whole‖). In Awas Tingni, the Court found that Nicaragua had not met its obligations under its
Constitution and Article 21 of the Convention by failing to recognize and safeguard the Awas
Tingni‘s rights to the lands they traditionally occupied and used by allowing logging concessions
to be distributed without consultation with and consent from the indigenous people. Awas Tingni,
(ser. C) No. 70, at ¶¶ 153-55; see also Organization of American States, Permanent Council,
Comm. on Juridical & Political Affairs, Working Group to Prepare the Draft American
Declaration on the Rights of Indigenous Peoples, Record of the Current Status of the Draft
American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI,
GT/DADIN/doc.334/08 rev. 6, art. 18(3)(i) (Jan. 20, 2011) [hereinafter Draft American
Declaration] (declaring that, where property rights pre-date the State‘s creation, the State shall
recognize the titles as ―permanent, exclusive, inalienable, imprescriptible and indefeasible‖ and
only changeable through mutual consent in full knowledge).1
Like in Awas Tingni, the Aricapu have resided in their lands at the Junction since before
Tucanos was a state, and stayed in those lands even through a violent dispute between Tucanos
and its neighboring state, Araras. The Aricapu consider this land sacred, and these vital lands
1
Though the Declaration is only a draft, in Dann v. United States, the Inter-American Commission affirmed that the
―basic principles reflected in many of the provisions‖ of the proposed declaration, ―including aspects of [its] article
XVIII, reflect general international legal principles developing out of and applicable inside and outside of the Inter-
American system and to this extend are properly considered in interpreting and applying the provisions of the
American Declaration in the context of indigenous peoples.‖ James Anaya, Indigenous Peoples in International Law
284 (2004) (quoting Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, OEA/Ser.L/V/II.117,
doc. 1 rev.1, ¶ 129). Therefore, this Court should consider the broad rights spelled out in the Draft American
Declaration when adjudicating intrusions onto indigenous property, even for ‗development‘ purposes.
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will be submerged and destroyed if the planned dam materializes, in violation of their special
right to the land they are spiritually connected to. The Mirokaiens have remained in the same
subsistence settlement since their migration in the early 1970s. Thus, the Aricapu and the
Mirokaien have, ―by the fact of their very existence, [ ] the right to live freely in their own
territory [because] the close ties of [indigenous and subsistence] people with the land must be
recognized and understood as the fundamental basis of their cultures, their spiritual life, their
integrity, and their economic survival.‖ Awas Tingni, (ser. C) No. 70, at ¶ 149. Even where
society has an interest in indigenous lands, this interest is not an absolute override of the
indigenous and subsistence peoples‘ rights to their property.
ii. Respondent’s subordination of the communities’ property rights to
development was unjustified, and Respondent did not abide by the
requisite safeguards established for the right to property.
Although the protection of the right to property under Article 21 is not absolute, see
Saramaka, (ser. C) No. 172, at ¶ 127, the primacy of society‘s interests is not absolute either. In
determining whether and to what extent the State may grant concessions for the exploration and
extraction of natural resources found on and within indigenous or tribal territory, the Court has
said that ―the right to use and enjoy their territory would be meaningless in the context of
indigenous and tribal communities if it were not connected to the natural resources that lie on
and within the land.‖ Id. at ¶ 122. Thus, the natural resources protected under Article 21 are
those traditionally used and necessary for the survival, development, and continuation of such
people‘s way of life. Id. In order to subordinate the right to property to resource development
projects, must meet four criteria: (1) restrictions are previously established by law; (2) the project
must be necessary; (3) it must be proportional to the suffering that will come to the people‘s
property rights; and (4) it must have aim of achieving a legitimate objective in a democratic
18
society. Id. at ¶ 127. Tellingly, the Saramaka Court stressed that restrictions on indigenous
property rights must not amount ―to a denial of their traditions and customs in a way that
endangers the very survival of the group and its members.‖ Id. at ¶ 128. survival in this context
―signifies much more than physical survival,‖ but also survival as tribal people with a distinct
cultural identity, social structure, economic systems, customs, and way of life. Saramaka People
v. Suriname, Interpretation, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 185, ¶ 37 (Aug. 12, 2008).
First, the Indigenous Land Recognition Act of 1975 guaranteed the Aricapu‘s ownership
of their land and granted them property titles. Thus, restrictions on this right as against the
Aricapu are unclear. Even if the Mirokaiens‘ property rights were more limited, the all-
encompassing effects of allowing construction of the dam on that ground would abrogate the
Aricapu‘s rights regardless. Second, while fulfilling energy needs of a growing country is a
legitimate objective and predicted blackouts certainly make some additional power plants
necessary, it is not clear, given the outdated suitability study, that the Cinco Voltas power plant
necessarily needs to be constructed on Aricapu and Mirokaien property. Third, the Aricapu and
the Mirokaien use the land for hunting, gathering, and the maintenance of ancestral customs.
Their ability to use and enjoy their land would be rendered meaningless by its submersion under
the lake envisioned for the Cinco Voltas Dam. The Aricapu have never lived elsewhere, and it is
unclear whether they would be able to adapt. While the compensatory land plots are still
undetermined, it is unlikely that the geographic and agricultural features of their fertile land at
the Junction could be replicated elsewhere. Their survival as a group, which depends on a
distinct social structure, culture and way of life depend on hunting, cultivation and harvest, will
be threatened by uprooting them for resettlement in land that is likely to have different terrain,
soil, animal life, water access, and no ties to their traditions. Similarly, the Mirokaiens are a
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coastal people who have been able to adapt successfully to Tucanos largely because they could
maintain their relationship with water and could continue fishing for a living. Revoking their
property rights and promising to resettle them on ―equivalent‖ land which may not provide
similar access to water and the resources necessary to maintain their economic vitality and
lifestyle renders the rights they were granted illusory and is not proportional. Thus, Respondent
has not demonstrated that its needs and plans justify subordinating the groups‘ right to property.
Other human rights obligations also limit the ability of the Tucanese interests to encroach
upon Aricapu and Mirokaien property rights. In holding that Nicaragua violated the right to
property, the Court considered but dismissed the argument that the country‘s interest in
development through logging nullified the indigenous people‘s right to their property. See Awas
Tingni (ser. C) No. 70, at ¶¶ 153-54. The Court examined Article 21‘s societal interest prong in
conjunction with Article 29(b), which provides that no provision of the Convention shall be
interpreted as ‗restricting the enjoyment or exercise of any right or freedom recognized by virtue
of the laws of any State Party or by virtue of another convention to which one of the said states is
a party.‖ Id. at ¶ 147 (quoting American Convention, art. 29(b)). The Court carefully crafted a
broad definition of property to encompass indigenous communal land tenure as being consistent
with the aims and objects of Article 29, rather than unequivocally subject to the societal interests
exception. James Hopkins, The Inter-American System and the Rights of Indigenous Peoples:
Human Rights and the Realist Model, in Indigenous Peoples and the Law : Comparative and
Critical Perspectives 156 (Benjamin J. Richardson et al. eds., 2009); see also Report on the
Situation of Human Rights in Ecuador, Inter-Am. Comm‘n H.R, OEA/Ser.L/V/II.96, doc. 10 rev.
1 (1997) [hereinafter Ecuador Report] (recognizing that Article 29 implies considering Ecuador‘s
competing commitments to respect the right of indigenous peoples to collectively or individually
20
own land they have traditionally occupied under the ILO Indigenous and Tribal Populations
Convention No. 107, Article 11); Maya Indigenous Cmtys. of Toledo District v. Belize, Case
12.053, Inter-Am. Comm'n H.R. Report No. 40/04, Oct 12, 2004, O.A.S. Doc.
OEA/Ser.L/V/II.122, doc. 5 rev. 1 at 727 (2005) (finding that Belize violated the right to
property of Article 23 of the American Declaration by not recognizing and protecting Maya
customary land tenure and by granting, without Maya consent, logging and oil development
concessions covering Maya traditional lands). Therefore, societal interest cannot be used as a
blanket exception to the right to property when that would interfere with rights granted
elsewhere, such as in other articles of the Convention or in international instruments ratified by
the State, such as the ILO Convention 169.
Respondent has a duty to take special measures to defend, protect and advance property
rights for the Aricapu and the Mirokaiens by seeking their consult and consent for development.
Even where societal interest outweighs the right to indigenous property, the State does not have
free reign in the process of engaging in the development project. Rather, it must: abide by
safeguards; ensure effective participation; guarantee the group will receive a reasonable benefit;
and ensure that the project does not move forward ―unless and until independent and technically
capable entities, with the State‘s supervision, perform a prior environmental and social impact
assessment. Saramaka, (ser. C) No. 172, at ¶ 129; Awas Tingni, (ser. C) No. 70, at ¶ 153 (holding
that, in spite of far reaching land rights under Nicaraguan law, it was a violation of indigenous
peoples‘ rights in fact to not be consulted regarding the development plans in their main settling
area); see also Draft American Declaration, art. 24(7) (asserting that where the State has rights
over other resources on the lands or the subsoil, it must establish or maintain procedures for the
participation of the peoples concerned in determining whether the interests of these people would
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be adversely affected and to what extent, before undertaking or authorizing any program for
planning, prospecting or exploiting existing resources on their lands).
Beyond a duty to consult, Tucanos had a duty to obtain consent for construction because
the dam would destroy all of Aricapu and Mirokaien property. ―Regarding large-scale
development or investment projects that would have a major impact within [indigenous]
territory, the State has a duty, not only to consult with the [indigenous people], but also to obtain
their free, prior, and informed consent, according to their customs and traditions.‖ Saramaka,
(ser. C) No. 172, ¶ 134 (citing Special Rapporteur on the Situation of Human Rights and
Fundamental Freedoms of Indigenous Peoples, Human Rights and Indigenous Issues, 2, Comm'n
H.R., E/CN.4/2003/90 (Jan. 21, 2003) (by Rodolfo Stavenhagen) [hereinafter Stavenhagen
Report]). According to Stavenhagen,
[w]herever [large-scale projects] occur in areas occupied by indigenous peoples … [t]he principal
human rights effects of these projects for indigenous peoples relate to loss of traditional territories
and land, eviction, migration and eventual resettlement, depletion of resources necessary for
physical and cultural survival, [and] destruction and pollution of the traditional environment….
Id. Thus, ―[f]ree, prior, and informed consent is essential for the [protection of] human rights of
indigenous peoples in relation to major development projects.‖ Id. at ¶ 66. The Saramaka Court
determined that the ―level of consultation that is required is obviously a function of the nature
and content of the rights of the Tribe [or People] in question,‖ in addition to the required
consultation and free, prior and informed consent when planning development or investment
projects that may profoundly impact their property rights of indigenous communities. Saramaka,
(ser. C) 172, at ¶ 137. Suriname violated Article 21 because it took lands for resource
development, which had a severe negative impact on the Saramaka, without conducting or
supervising the environmental and social impact analysis, instituting adequate safeguards, or
22
seeking consent or allowing for the effective participation of the Saramaka in the decision-
making process. Id. at ¶ 154.
Tucanos did not ensure the participation of the Aricapu or the Mirokaiens until after
construction plans for their land had been completed and published. Moreover, it should have
known that the groups would not have access to this information online absent being made
explicitly aware of it, given their relative isolation from much of the development part of the
country. Neither group was consulted during the preparation of the EIR by LAX or NIRED.
Respondent was made aware of this shortcoming immediately upon the EIR‘s publication, yet
did nearly nothing. The promise to re-evaluate the EIR and relocation in consultation with the
groups was largely symbolic. NIRED approved the EIR less than one month after first meeting
with the communities‘ representatives and made no modifications to the document to address
concerns regarding Cinco Voltas‘ construction, which began shortly thereafter.
Tucanos also violated the communities‘ rights by not ensuring they benefit from the
project. Indigenous and subsistence peoples whose land is taken by for any legitimate societal
interest must benefit from any development or investment project equivalently with the loss they
suffer and have an ―inherent right to compensation‖ for total deprivation of property or from
deprivation of regular use and enjoyment. See id. at ¶¶ 138-40, 153 (noting that, according to the
Committee on the Elimination of Racial Discrimination and the Special Rapporteur, States must
ensure the equitable ―sharing of benefits to be derived from such exploitation‖ occurs) (internal
citations omitted). Benefit sharing is a form of reasonable equitable compensation necessitated
by the exploitation of traditionally owned lands and of natural resources necessary for survival.
Id. at ¶ 140; accord Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and
Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146, ¶ 128 (March 29, 2006) (―[M]embers of
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indigenous peoples who involuntarily lost possession of their lands, which have been
legitimately transferred to innocent third parties, have the right to recover them or to obtain other
lands of equal size and quality) (emphasis added); Yakye Axa (ser. C) No. 125, at ¶ 217
(mandating that if ―for objective and well founded reasons, the claim to ancestral territory . . . is
not possible, the State must grant them alternative land, chosen by means of a consensus with the
community, in accordance with its own manner of consultation and decision-making, practices
and customs‖). Because Respondent has only vaguely promised to guarantee ‗equivalent‘ land to
the Aricapu and Mirokaien, Respondent has not made any provisions for ensuring these lands are
remotely comparable to their current property or have access to equivalent and sufficient
resources in the long term. Further, it has not made any provision to provide either community
any of the cost savings or benefits that might result from producing power domestically through
the dam, rather than importing it.
Therefore, for the aforementioned reasons, Respondent has clearly violated the right to
property under Article 21 of the American Convention, in accordance with Article 1(1).
B. Committing to Destroying Sacred Territory and Relocating the Communities to
Uncertain Lands Severs the Aricapu’s Symbiotic Relationship With Their Home
and Denies the Conditions for a Dignified Existence, in Violation of the Right to
Life Under the American Convention.
Respondent‘s commitment to damming the Junction comes at the expense of the right to
life of the Aricapu and Mirokaiens, who would witness their homes‘ destruction and suffer
relocation to unknown regions. A prerequisite for the enjoyment of other rights, Article 4(1), in
accordance with Article 1(1), states, ―Every person has the right to have [her] life respected‖ and
protected by law from the moment of conception, and ―[n]o one shall arbitrarily be deprived of
her life. American Convention, art. 4(1). According to the Court, States have a positive duty to
―adopt all necessary measures to create a legal framework that deters any possible threat to the
24
right to life… and guarantee the right to unimpeded access to conditions for a dignified life‖ by
adopting measures to protect and preserve the right to life of individuals and groups. E.g.,
Zambranzo-Vélez v. Ecuador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.
C) No. 166, ¶¶ 80-81 (July 4, 2007). The approval of the EIR and Respondent‘s opposition to the
communities‘ legal efforts will lead to the destruction of the territory that encompasses the
Aricapu‘s sacred ancestral lands and maintains their cultural identity and the communities‘
dignified existence, impermissibly extinguishing the foundations of the right to life.
An indigenous community‘s relation to its ancestral lands is ―not merely a matter of
possession‖ but is the basis of its culture, spiritual life, integrity, and survival. Awas Tingni, (ser.
C) No. 70, at ¶ 149; see Saramaka, (ser. C) No. 172, at ¶ 128 (permissibility of restrictions on
indigenous property rights depends on whether they deny ―traditions and customs in a way that
endangers the very survival of the group‖); accord Länsman v. Finland, Comm‘cn. No.
511/1992 of the Human Rights Comm., 52d Sess., U.N. Doc. CCPR/C/52/D/511/1994, ¶ 9(4)
(Nov. 8, 1994) (allowing development activities that limit rights of minority cultures if they do
not fully extinguish their way of life). Given this right‘s ―close and unavoidable relationship with
cultural identity,‖ depriving indigenous peoples of their symbiotic relationship with their lands
denies their ―very right to life.‖ Sawhoyamaxa, (ser. C) No. 146, at ¶ 28 (Trindade, J.,
concurring). Cinco Voltas‘ construction will displace the Aricapu, irreparably sever a symbiotic
relationship with their homeland, and prevent the survival of traditional practices in favor of a
discriminatory prioritization of economic development. The absence of legal protections for
indigenous rights in the TEP and the inadequate evacuation policy demonstrate Respondent‘s
failure to fulfill the duty to prevent arbitrary deprival of life, in violation of Article 4.
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Vulnerable subsistence groups have the right to not be hindered from access to conditions
guaranteeing a vida digna (dignified existence) in accordance with their traditions. See Yakye
Axa, (ser. C) No. 125, at ¶¶ 162-64 (requiring States to take positive measures to generate
―minimum living conditions‖ compatible with human dignity). Access is hindered when
communities lack basic necessities of life (potable water, adequate food, education, and health
care) and governmental actions, negligence, or omissions create or compound the victims‘
deplorable living conditions although the State knows or has reason to know this vulnerable
situation poses an immediate, certain risk to life. See Xákmok Kásek Indigenous Cmty. v.
Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, ¶ 194-
217 (Aug. 24, 2010); Sawhoyamaxa, (ser. C) No. 146, at ¶ 155; accord Jo M. Pasqualucci, The
Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil
and Political Rights in the Inter-American Human Rights System, 31 Hastings Int‘l & Comp. L.
Rev. 1, 26, 29-30 (2008) (detailing vida digna violation criteria). However, providing health and
educational services alone cannot absolve a government of further responsibility. See
Sawhoyamaxa, (ser. C) No. 146, at ¶¶ 167-70 (holding that Paraguay violated indigenous
peoples‘ right to life despite domestic legislation promising delivery of basic necessities because
for six years people lived in misery on roadsides awaiting long-delayed restitution of ancestral
lands and only received food ten times and medicine and educational materials).
Even if Respondent is an underdeveloped country with scarce resources, it is not a
―disproportionate burden‖ to require it to provide resources and enact a more sophisticated
regulatory scheme, especially if poverty results from officially tolerated policies. See id. at ¶
155; Kenneth Roth, Defining Economic, Social, and Cultural Rights: Practical Issues Faced by
an International Human Rights Organization, 26 Hum. Rts. Q. 63, 72-73 (2004); International
26
Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights, Jan. 26, 1997, available at http://www.unhcr.org/refworld/docid/48abd5730.html
(―[R]esource scarcity does not relieve States of minimum obligations‖ for ―the implementation
of economic, social and cultural rights.‖). Rather than carefully structuring its development
policy, Respondent rapidly approved projects and willfully ignored anticipated harms to the
environment and its inhabitants. The willful disregard of the communities‘ rights and the
uncertainty surrounding their relocation – with the only guarantees being an equal-sized plot and
resources to restart, but not maintain, their lives – compel a finding that Respondent‘s actions
will inevitably create conditions hindering access to conditions guaranteeing a vida digna, in
violation of Article 4.
Further, constructing a dam, like logging and mining concessions, necessarily involves
the use of explosives to clear trails and will create an ever-present danger to community safety,
contaminate water and harm animals relied on by the peoples, and undermine the integrity of the
territories. See Kichwa People of Sarayaku v. Ecuador, Case 12.465, Inter-Am. Comm‘n H.R.,
http://www.cidh.org, ¶¶ 170-72 (April 26, 2010) (Detonating explosives for oil production
―destroyed forests, sources of water…, and holy places,‖ caused animal migration, and prevented
searches for food, diminishing the ―capacity for survival.‖); Ecuador Report, at ch. VIII (relating
environmental destruction to threats to the right to life).
Thus, the promise of compensatory resources notwithstanding, exposing the Aricapu and
Mirokaiens to the possibility of abject poverty and misery in unknown lands where they would
lack a longstanding, beneficial relationship with the local government will deprive them of the
conditions for a vida digna and is an impending risk to their lives. By commencing construction,
LAX and Respondent have begun creating subhuman conditions. Therefore, Respondent‘s clear
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violation of the right to life under Article 4 is directly linked to the anticipated lack of
opportunities for self-sufficiency and self-sustainability, dependence on the State, and certainly
limited access to health services, clean water, and proper nutrition. See Xákmok, (ser. C) No. 214,
at ¶ 215 (La situación ―está estrechamente vinculada a la falta de sus tierras,‖ porque ―la
ausencia de posibilidades de autoabastecimiento y auto-sostenibilidad…, de acuerdo a sus
tradiciones ancestrales, los lleva a depender… de las acciones estatales y verse obligados a vivir
de una forma no solamente distinta a sus pautas culturales, sino en la miseria.‖).
C. Intense Physical and Emotional Suffering Stemming From the Discriminatory
Violation of the Communities’ Territorial Rights Violates the Right to Human
Treatment.
The intense physical and emotional suffering stemming from the anticipated destruction
of the communities‘ territory and their eviction from their homes will violate the right to human
treatment under the American Convention. Article 5 provides that ―[e]very person has the right
to have [her] physical, mental, and moral integrity respected,‖ and no one shall be subject to
inhuman or degrading treatment. American Convention, art. 5. ―When it is sufficiently real and
imminent, the mere threat of [such prohibited] conduct‖ may violate Article 5. Ituango
Massacres v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment, (ser.
C) No. 148, ¶ 255 (July 1, 2006); see Tibi v. Ecuador, Preliminary Objections, Merits,
Reparations and Costs, Judgment, (ser. C) No. 114, ¶ 147 (Sept. 7, 2004) (stating that the threat
or risk of physical mistreatment may cause moral anguish amounting to psychological torture).
The Court appears willing to expand this right to the victims‘ entire community. See Moiwana,
(ser. C) No. 124, at ¶¶ 101-03 (considering the N‘djuka community‘s separation from their lands
following a massacre and rights under Article 5).
28
Preventing communities from living and acting in accordance with cultural traditions,
forcibly separating them from traditional lands of ―vital spiritual, cultural, and material
importance,‖ or undermining their personal integrity due to the failure to duly investigate and
address the underlying offenses or the absence of effective remedies violates Article 5. See
Moiwana, (ser. C) No. 124, at ¶¶ 93-94, 101. In Moiwana, the military destroyed the Moiwana
village, forcing people to flee without burying loved ones according to N‘djuka culture, and
Suriname‘s failure to investigate led the people to believe they were discriminated against. Id. at
¶¶ 93-94. Inability to ―maintain a fluid and multidimensional relationship with their ancestral
lands‖ destroyed the Moiwana‘s cultural identity, and many desired to return ―to restore [their]
lives.‖ Id. at ¶¶ 101-02. The Court held that Suriname violated Article 5(1) because of the
―significant emotional, psychological, spiritual, and economic hardship.‖ Id. at ¶ 103. In
Xákmok, (ser. C) No. 214, at ¶¶ 235-44, the Court held that Paraguay violated Article 5 because
the delay in returning ancestral lands caused and augmented the community‘s pain and suffering
over the absence of their traditional lands, gradual loss of culture, and squalid living conditions.
Similarly, Respondent‘s actions will forcibly displace the Aricapu and Mirokaiens, create
conditions inhibiting the preservation of their cultures, and exacerbate their vulnerability. Given
NIRED‘s failure to address the communities‘ concerns with the EIR and Respondent‘s cavalier
attitude regarding negative impacts, no effective administrative recourse will be applied to
prevent or address the disrespect of personal integrity. Thus, the Aricapu‘s anguish from seeing
sacred lands flooded, the likelihood that some people will refuse to leave and either drown or be
subject to violence, and the Mirokaiens re-experiencing the same destruction that destroyed their
country, will undoubtedly engender the very State-sanctioned suffering Article 5 prohibits.
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D. Respondent’s Planning Process For The Dam Violated The Aricapu’s And
Mirokaiens’ Right To Equality Under Article 24 Of The Convention By
Improperly Discriminating On The Basis Of Their Ethnicity, National Origin,
And Economic Status.
Both the Aricapu and the Mirokaiens have the right to be treated equally alongside other
Tucanese people. All persons ―are born free and equal, in dignity and in rights, and, being
endowed by nature with reason and conscience, they should conduct themselves as brothers one
to another.‖ American Convention, Preamble; accord American Convention, art. 1(1) (obligation
to respect rights without discrimination). As previously established, the Aricapu, an indigenous
community distinct from the majority of Tucanese citizens, and the foreign-born Mirokaiens, are
entitled to the protection of this non-discrimination clause. Thus, they cannot be singled out to
bear the burden of societal development. The Tucanese government may not have consciously
chosen to destroy sacred lands or structures that belonged to a majority population, yet it
summarily decided that none of the rights of the Aricapu had been violated, even though sacred
sites would be destroyed permanently and both groups would be precluded from realizing their
territorial claims and other rights. Given the hasty and outdated study about the appropriate site,
the inadequate environmental and social impact assessment, and its subsequent refusal to
negotiate in good faith, Respondent violated the Aricapu and the Mirokaiens right to equality of
religion, race, and national origin.
The right to equality under the American Convention asserts that ―[a]ll persons are equal
before the law. Consequently, they are entitled, without discrimination, to equal protection of the
law.‖ American Convention, art. 24. It is safe to assume that neither group, given that they
subsist on small-scale farming and hunting-gathering in an underdeveloped region, has regular
internet access. Yet, when the Tucanese government planned this massive development project
that will traumatize these groups, it discriminated against their economic status by only
30
publishing notice of the project plans on the internet. See Proposed Amendments to the
Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-
Am. Ct. H.R. (ser. A) No. 4, ¶¶ 55-57 (Jan. 19, 1984) (asserting that no group has the right to
superior treatment over another but also holding that no discrimination exists ―if the difference in
treatment has a legitimate purpose and it does not lead to situations which are contrary to justice,
to reason or the nature of things‖). Given the distinct disadvantage these groups have with
respect to electronic notice, discriminating publication of notice for projects that directly affect
them would not be permissible under the Costa Rica opinion. There is no legitimate purpose for
depriving these communities of notice. On the contrary, notice is a key safeguard in the
development process. Not properly notifying these groups of the plans improperly discriminates
against them based on economic status, fails to provide the same protections to indigenous lands
as to other Tucanese land, and ensures the groups would not be able to assert their right to
comment on the EIR during the evaluation period. See Toledo District, Case 12.053, at ¶ 727
(finding a violation of right to equal protection of Article II of the American Declaration because
Belize failed to accord Mayan property the same protections provided other forms of property).
For instance, one criticism they might have raised during the comment period, had they known
about it, was that the study indicating their land was the most appropriate site for construction of
a power plant was carried out in 1980 and, as such, preceded most of the jurisprudence that has
evolved since then protecting indigenous lands and requiring extensive consultations with
indigenous peoples before development projects begin. As such, those who conducted the study
could easily have made this determination based on discriminatory reasons, such as the two
groups‘ ethnicity, size, and lack of political and economic power. Therefore, because the Aricapu
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and the Mirokaiens received discriminatory treatment under the TEP on the basis of their
economic status, Respondent violated their right to equality under Article 24.
E. By Evicting the Communities and Neglecting to Appreciate Their Relationship
With the Land, Respondent Violates Their Right to Honor and Privacy under
Article 11.
Article 11 provides that ―[e]veryone has the right to have [her] honor respected and [her]
dignity recognized,‖ and States must protect against the ―arbitrary or abusive interference‖ with
one‘s private life and family or against unlawful attacks on honor or reputation by public
officials. American Convention, art. 11; see also ICCPR, art. 17 (identical provision). In Tristán-
Donoso v. Panama, Merits, Reparations and Costs, Judgment, (ser. C) No. 193, ¶ 57 (Jan. 27,
2009), the Court said the right to honor involves ―relates to self-esteem and self-worth.‖
ICCPR Article 17 ―complements the right [under Article 11(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR)] not to be forcefully evicted [by
the State or authorized third parties] without adequate protection.‖ Comm. on Econ., Soc. &
Cultural Rights (CESCR), General Comment 7, The right to adequate housing (Art. 11(1)):
forced evictions), ¶¶ 3, 8, 16th Sess. U.N. Doc. E/1998/22, Annex IV (May 20, 1997)
[hereinafter General Comment 7] (defining forced eviction as ―the permanent or temporary
removal against their will of individuals, families and/or communities from the homes and/or
land which they occupy, without the provision of, and access to, appropriate forms of legal or
other protection‖). ―Far from offering solutions‖ to developmental crises, evictions directly tied
to State policies ―dismantle what people have built over months, years and sometimes decades,
destroying [people‘s] livelihood, culture, community, families and homes.‖ U.N. Office of the
High Comm‘n for Human Rights, Fact Sheet No. 25: Forced Evictions and Human Rights (May
1996), 2-3, http://www.ohchr.org/Documents/Publications/FactSheet25en.pdf. Thus, an eviction
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that ignores property rights and disrespects subsistence groups‘ specificities, particularly if it
follows statements belittling the worthiness of the groups, arbitrarily discriminates against them
in favor of resource exploitation and violates Article 11 of the American Convention. Cf. General
Comment 7, at ¶ 10 (governments must ensure no form of discrimination is involved in eviction).
Respondent asserted a right to railroad over property rights and evict the communities
while claiming there is no ―concrete evidence of irreversible negative impacts‖ stemming from
the construction. Thus, the government‘s and the courts‘ publicly dismissive view of the
communities concerns and particularities during the evaluation of the EIR and legal claims
indicate there was an arbitrary interference with honor and privacy that at least violates
Respondent‘s obligations under the ICCPR and ICESCR , a fact this Court should consider in
finding a violation of Article 11 of the American Convention.
F. Tucanos Violated Article 22 of the American Convention By Expelling The
Aricapu And The Mirokaiens From Their Homes and Inhibiting Their Freedom
of Movement and Residence.
Respondent‘s plan to displace the Aricapu and the Mirokaiens violates their right to
freedom of movement and residence under Article 22 of the American Convention because it
removes their ability to choose to remain settled in their traditional lands. Article 22 states that
―[e]very person lawfully in the territory of a State Party has the right to move about in it, and to
reside in it subject to the provisions of the law.‖ American Convention, art. 22(1). While these
rights may ―be restricted by law in designated zones for reasons of public interest,‖ id. at 22(4),
―[n]o one can be expelled from the territory of the state of which he is a national… [and] [t]he
collective expulsion of aliens is prohibited.‖ Id. at 22(5), 22(9). Although Respondent is not
expelling the aliens from its territory altogether, it is effectively expelling them en masse from
residences they have freely chosen. See Yanomami, Case 7615 (finding violations of indigenous
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peoples‘ right to freedom of residence and movement under the Article VIII of the American
Declaration because the influx of gold prospectors, encouraged by Brazil‘s development policy,
brought diseases and environmental damage that infringed on the right of the Yanomami to
freely remain settled in their lands, as the conditions, if left unabated, would force them out).
G. Respondent’s Formal Judicial Remedies Are Not Effective for Contesting
Human Rights Violations in Accordance With Due Process, in Violation of
Articles 8 and 25.
Although both communities appealed to the Tucanese judiciary, a lack of political will,
bias, or discrimination meant that this mere existence of remedies, without more, placed the
groups ―in a state of defenseless‖ against the arbitrary exercise of public authority. See Tibi, (ser.
C) No. 114, at ¶ 130; Jo M. Pasqualucci, ―The Evolution of International Indigenous Rights in
the Inter-American Human Rights System,‖ 6 Hum. Rts. L. Rev. 281, 313 (2006) (politics and
discrimination affect remedy efficiency). In accordance with Article 1(1), Article 25 requires
States to provide prompt and effective judicial remedies for violations of legal, constitutional, or
human rights. See American Convention, art. 25. Remedies must be substantiated by due
process; Article 8(1) provides every person ―the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial tribunal … for the
determination of his rights and obligations.‖ American Convention, art. 8(1). Respondent‘s
judicial procedures provide no effective remedy to pursue redress and do not offer procedural or
due process guarantees to the communities, in violation of Articles 8 and 25.
Tucanos‘ procedural measures did not ensure the precautionary or preventive protection
of the communities‘ imminently threatened rights. See Report on the Situation of Human Rights
Defenders in the Americas, Inter-Am. Comm‘n H.R., OEA/Ser.L/V/II.124, ¶¶ 118-19 (March 7,
2006) (―[P]recautionary measures should be available for urgent cases in which the imminence
34
or immediacy of the potential human rights violations has been demonstrated.‖). Because ―due
process of law must be respected in any act or omission on the part of the State bodies in [any
administrative or judicial] proceedings‖ that may affect rights, see Baena-Ricardo v. Panama,
Merits, Reparations and Costs, Judgment, (ser. C) No. 72, ¶¶ 124-25 (Feb. 2, 2001), precluding
effective review by a governmental organ without an interest in the matter at issue violates
Articles 8 and 25. See Las Dos Erres Massacre v. The Republic of Guatemala, Inter-Am.
Comm‘n H.R., Case 11.681, ¶ 308 (July 30, 2008). Worse, the Supreme Court‘s finding that no
community rights would be violated demonstrates a failure to empower legal rights or recognize
indigenous and subsistence groups‘ specificities. ―Announcing rights without providing
guarantees to enforce them is useless‖ and access to justice requires the possibility of ―re-
establishing‖ violated rights and claiming them when they are disregarded. Juridical Condition
and Rights of the Undocumented Migrants, (ser. A) No. 18, at ¶¶ 36-37 (García-Ramírez, J.,
concurring). Due process also prohibits effective remedies that ignore subsistence groups‘
socioeconomic characteristics, values, customs, and special vulnerability. See Yakye Axa, (ser. C)
No. 125, at ¶¶ 63, 96; Sawhoyamaxa, (ser. C) No. 146, at ¶¶ 104-12 (holding that Paraguay‘s
administrative and legal procedures violated Articles 8 and 25 because they only allowed
negotiations with private owners for ancestral lands and did not consider indigenous specificities
in determining if rational exploitation occurred); accord Yakye Axa, (ser. C) No. 125, at ¶¶ 97-98
(holding Articles 8 and 25 violated under similar operative facts).
The TEP and other laws do not clearly mandate addressing the impact of infrastructure
projects on legal rights or affected communities; rather, TEP only requires studying pollution,
losses in biodiversity, and ―other impacts.‖ Although NIRED is not required to conduct
supplemental analysis after the EIR‘s publication, the government did not attempt to address the
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communities‘ complaints following the February 20 meeting. NIRED approved the original EIR
in March without indicating about how the groups‘ concerns would be addressed. This, coupled
with the courts‘ refusal to comprehensively review the reasonableness of the EIR completed by
LAX and NIRED, the two entities invested in the dam‘s construction; the refusal to recognize the
irreversible negative impacts stemming from the communities‘ specificities (e.g. destruction of
cultural identity or sacred lands) rather than economic benefits; and the Supreme Court‘s refusal
to hold that property rights were violated demonstrates the illusory nature of Tucanese legal
rights, the judiciary‘s inability to prevent imminent harms, the disregard for due process, and the
impermissibly limited efficacy of Tucanese administrative and judicial procedures to contest the
taking of land and human rights abuses, in violation of Articles 8 and 25.
III. CONSTRUCTING CINCO VOLTAS THREATENS TO UNDERMINE THE
JUNCTION’S TERRITORIAL INTEGRITY AND CONTAMINATE THE
ECOSYSTEM, VIOLATING THE RIGHT TO A HEALTHY ENVIRONMENT
UNDER ARTICLE 11 OF THE PROTOCOL OF SAN SALVADOR AND
HINDERING SUSTAINABLE DEVELOPMENT
There must be ―compatibility [between] the development process [and] the imperatives of
conservation,‖ preservation, and community protection when undertaking large infrastructure
projects. Alexandre Kiss, Sustainable Development and Human Rights, in Human Rights,
Sustainable Development and the Environment 29, 30 (Antonio Augusto Cancado Trindade ed.,
1992); cf. Stavenhagen Report, supra, at 2 (―Indigenous peoples… bear disproportionately the
costs of… large dams and infrastructure projects…‖). Article 11 of the Protocol of San Salvador,
Organization of American States, Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights, art. 11, entered into force Nov. 16,
1999, O.A.S.T.S. No. 69, 28 ILM 156, provides that 1) ―[e]veryone shall have the right to live in
a healthy environment and to have access to basic public services,‖ and 2) ―States Parties shall
36
promote the protection, preservation, and improvement of the environment.‖ Absent this right,
other rights become moot because there is no location to realize them. Ecuador Report, at ch.
VIII (―The realization of the right to life … and integrity is necessarily related to and in some
ways dependent upon one's physical environment.‖). The threatened environmental pollution and
destruction obligate Respondent to take reasonable measures to prevent risks.
Respondent‘s assertion that construction will cause no irreversible impacts ignores
environmental and health risks to the communities that stem from their dependence on the land
for survival. Numerous international instruments establish a duty to preserve the environment for
the benefit of indigenous cultures and other subsistence groups because their survival depends on
a healthy environment. See, e.g., Draft American Declaration, at Preamble ¶¶ 2, 3, 5, arts. XII,
XIII; United Nations Declaration on the Rights of Indigenous Peoples, arts. 24, 25, 29, G.A. Res.
61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007) [hereinafter U.N. Declaration]. Respecting the
Aricapu and Mirokaiens‘ guardianship of the land, ―knowledge, cultures, and traditional
practices [would contribute] to sustainable and equitable development and proper management
of the environment.‖ See U.N. Declaration, Annex (also requiring States, in Article 32, to
cooperate in good faith with indigenous peoples regarding projects affecting lands). Thus,
ignoring subsistence groups‘ concerns and destroying lands through infrastructure projects and
damming causes environmental deterioration, harms the ―conditions for cultivation or to practice
their traditional subsistence activities,‖ hinders sustainable development, and violates Article 11.
Cf. Yakye Axa, (ser. C) No. 125, at ¶ 164 (discussing land quality and right to life violation).
In Saramaka, (ser. C) No. 172, at ¶ 153, the Court found that logging concessions left the
people ―a legacy of environmental destruction, despoiled subsistence resources, and spiritual and
social problems.‖ During the Inter-American Commission‘s investigation of the harms to the
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indigenous communities in Ecuador following the government‘s petroleum concessions, it found
that the communities‘ lives were affected by substantial environmental deterioration from
surface water pollution, waste byproducts, and air pollution. Ecuador Report, supra, at ch. VIII.
The Commission observed that oil extraction, which requires cutting trails, seismic blasting,
deforestation to construct roads and land facilities to bring in workers and equipment, and the
generation of toxic wastes, produced deleterious alterations in the physical environment that the
government could not adequately regulate or mitigate due to the frontier status of the region. Id.
Similarly, in SERAC v. Nigeria, Afr. Comm‘n H.P.R., Comm‘cn 155/96, ¶ 52 (Oct. 13-27,
2001), available at http://www.serac.org (last visited Feb. 5, 2011), the African Commission held
that the right to a healthy environment ―requires the State to take reasonable … measures to
prevent pollution and ecological degradation, to promote conservation, and to secure an
ecologically sustainable development and use of natural resources.‖ Although Nigeria had a right
to produce oil, the Commission held that Nigeria violated the Ogoni‘s right to a healthy
environment because it ignored the community‘s concerns and did not adequately regulate the
drilling, and pollution and environmental degradation from the production destroyed land and
made ―living in the Ogoni land a nightmare.‖ Id. at ¶ 67.
Although currently prospective, the anticipated harm is arguably inevitable given the
inherent nature of the process of constructing a hydroelectric dam, the proven history of
devastating effects to the environment and indigenous and subsistence communities. Thus,
preemptive protections against this imminent threat are necessary, because the intrusions will
only worsen, and even good faith promises to mitigate the effects of the construction will be
futile. Damming a 1450km2
lake requires deforestation, seismic blasting, deforestation, and the
fundamental restructuring of the region‘s ecosystem. Although indigenous and tribal rights
38
cannot always prohibit infrastructure projects, Respondent, like Nigeria in SERAC, has in bad
faith refused to address the reality that that Cinco Voltas‘ construction will contaminate the
ecosystem, kill untold numbers of animals and plants, and prevent the communities‘ physical and
cultural survival. Thus, its refusal to promote environment preservation and balance conservation
and development renders it liable for violating Article 11 of the Protocol of San Salvador.
REQUEST FOR RELIEF
For the aforementioned reasons, Petitioners Sustainable Planet and the Institute for the
Conservation of Indian Heritage respectfully request this Court find that Respondent violated
Articles 4, 5, 8, 11, 21, 22, 24, 25 of the American Convention and the obligation to protect
immigrants, in accordance with Article 1(1), and Article 11 of the Protocol of San Salvador.
In addition, this Court recognizes that provisional measures ―effectively protect
fundamental rights, inasmuch as they seek to avoid irreparable damage to persons.‖ Order on
Provisional Measures Requested by the Awas Tingni Cmty., Inter-Am. Ct. H.R. (ser. E), ¶ 9
(Sept. 6, 2002). Thus, given the threatened effects on Aricapu and Mirokaien territory from the
hydroelectric plant‘s construction and the communities‘ dependence on the environment, we
further request this Court impose a moratorium on the construction of Cinco Voltas pending the
State‘s satisfaction of this Court‘s judgment and order the State to commence consultation and
negotiation proceedings with the affected groups in full compliance with the above principles.
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APPENDIX A
Steps for Implementing Power Plant Projects, Pursuant to Law 8090/91 and the National Institute
for Renewable Energy and Defense of the Environment
A. 1st Step: A preliminary permit allowing the construction of the power plant must be issued
by NIRED after an evaluation of the expected environmental impacts in the area. Only after
this permit is issued can the official documents initiating the bidding process be published.
B. 2nd Step: Documents outlining the project are issued and interested companies may begin
submitting bids.
C. 3rd Step: A company is selected and shall work together with the NIRED to create an
Environmental Impacts Report (EIR). In this report, all of the areas affected by the project
must be specified, including all expected losses in biodiversity, estimated pollution levels,
and other impacts. The EIR must have an approval stamp issued by the NIRED, which will
also take an active role in its composition and formulation.
D. 4th Step: The EIR is published and made available for two months on a website so that
NGOs, government agencies, and the general public can comment on the project.
E. 5th Step: Once the two month period has passed, the NIRED shall have three additional
months to review any comments and conduct supplemental analysis. After any necessary
supplemental analysis is complete, the NIRED shall work with the company to improve the
EIR report and to reduce expected impacts to the lowest level possible.
F. 6th Step: If the EIR has been modified from its initial published form, the new version must
be approved and ratified by the NIRED president.
G. 7th Step: After the report is ratified, the company shall be allowed to start construction on the
power plant. Construction shall be supervised by the NIRED, and the company shall submit
progress reports for NIRED evaluation each trimester.