Team 1684 2012 INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW MOOT COURT COMPETITION

INTER-AMERICAN COURT OF HUMAN RIGHTS _________________________________________________________

THE RUGENDAS POPULATION

Petitioner

v.

THE REPUBLIC OF TAMOIO Respondent

_________________________________________________________

[MEMORIAL FOR PETITIONER]

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TABLE OF CONTENTS Table of Authorities………………………………………………………………………………ii Question Presented………………………………………………………………………………..1 Jurisdiction………………………………………………………………………………………..1 Statement of the Case……………………………………………………………………………..1 Argument………………………………………………………………………………………….5

I. The Tamoion government’s licensing and continued operation of the TVB factory, lack of adherence to the Tamoion Environment Act of 2001 and disregard for Principle 10 of the Rio Declaration violates Article 11 of the Protocol of San Salvador and thus violates human rights under the American Convention. ………………………………………….5

II. The Tamoion government failed to respect the rights of the Rugendianese people under the American Convention by not involving them more fully in the environmental review process and exposing them to environmental hazards, thereby violating international human rights law. ……………………………………………………………………….10

A. The Tamoion government violated the Rugendas population’s right to a dignified life

by deteriorating their living conditions with health-hazardous pollution. ………….10

B. The physical suffering resulting from lead poisoning by the factory violates the Rugendas’ citizens right to humane treatment and damages their physical, mental, and moral integrity. ………………………………………………………………....12

C. The harmful health effects of pollution and each citizen’s knowledge that their health

could be harmed at any time by the factories violate the Rugendianese people’s right to honor, dignity, and freedom from interference with private life under Article 11. ………………………………………………………………………………………14

D. The expedited environmental review process that occurred simultaneously for two

different factories and prevented the Rugendianese people from understanding and fully expressing their concerns violated the Rugendianese people’s Article 13 right to freedom of expression. ……………………………………………………………...15

E. The Tamoion Supreme Court was so concerned with its own policy goals that it

failed to impartially consider the rights of the Rugendas population and did not provide effective remedies in violation of Articles 8 and 25. ……………………....16

Request for Relief………………………………………………………………………………..19

Appendix A………………………………………………………………………………………21

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TABLE OF AUTHORITIES

Treaties and 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…………………………...6

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……………………………….......1, 10, 12, 15, 17, 19

United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1(Vol. I), Annex 1 (Aug. 12, 1992)……………………………………9

Cases Cabrera-García v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment,

Inter-Am. Ct. H.R. (ser. C) No. 220 (Nov. 26, 2010)……………………………………17, 18 Claude-Reyes v. Chile, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No.

151 (Sept. 19, 2006)………………………………………………………………………….15 Guerra v. Italy, 26 Eur. Ct. H.R. 357, (Feb. 19, 1998)…………………………………………..14 Ichver-Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)

No. 74 (Feb. 6, 2001)………………………………………………………………….....17, 19 Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations and Costs,

Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148, (July 1, 2006)………………………….12, 13 Kawas-Fernández v. Honduras, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.

C) No. 196, (April 3, 2009)…………………………………………………………………...5, 10 The Last Temptation of Christ v. Chile, Merits, Reparations and Costs. Judgment, Inter-Am. Ct.

H.R. (ser. C) No. 73 (Feb. 5, 2001)………………………………………………….……....15 Maya Indigenous Cmtys. of Toledo District v. Belize, Case 12.053, Inter-Am. Comm'n H.R., ¶ 150

(Oct. 12, 2004)…………………………………………………………………………………..5 Rios v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am.

Ct. H.R. (ser. C) No. 194, (Jan. 28, 2009)…………………………………………………...15 Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-

Am. Ct. H.R. (ser. C) No. 146, (March 29, 2006). ………………………………………….11 SERAC v. Nigeria, Afr. Comm‘n H.P.R., Communication 155/96, (Oct. 13-27,

2001)…………………………………………………………………………………………13 The "Street Children" v. Guatemala, Merits, Inter-Am. Ct. H.R. (ser. C) No. 63, (Nov. 19,

1999)…………………………………………………………………………………………11 Tristán-Donoso v. Panama, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.

C) No. 193, (Jan. 27, 2009)……………………………………………………………..13, 14 Xákmok Kásek Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-

Am. Ct. H.R. (ser. C) No. 214, (Aug. 24, 2010)……………………………………………..11 Yakye Axa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am.

Ct. H.R. (ser. C) No. 125, (June 17, 2005)…………………………………………………..11 Yanomami Cmty. v. Brazil, Case 7615, Inter-Am. Comm‘n H.R. Rep. No. 12/85, (March 5,

1985)………………………………………………………………………………………….6 Zambrano-Velez v. Ecuador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser.

C) No. 166, (July 4, 2007)…………………………………………………………………...11

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Reports Organization of American States, Inter-American Council for Integral Development, Second

Meeting of Ministers and High Authorities on Sustainable Development in the CIDI Framework, Declaration of Santo Domingo for the Sustainable Development of the Americas, OEA/Ser.K/XVIII.2 (Nov. 19, 2010)…………………………………………...7, 8

Organization of American States, Unit for Sustainable Development and Environment, Inter-American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable Development, OEA/Ser.D/XXIII.1 (2010)………………………………………9

Report on the Situation of Human Rights in Cuba, Inter-Am. Comm’n H.R., 1983, OEA/ Ser.L./V/II.61, doc. 29 rev.1, (1983)………………………………………………………….7

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)……………………………………………………17, 19

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)………………………………………………...7, 11

Other Authorities Jennifer Cassel, Enforcing Environmental Human Rights: Selected Strategies of US NGOs, 6

Nw. U. J. Int’l Hum. Rts. 104 (2007)…………………………………………………………5 Paula Spieler, The La Oroya Case: the Relationship Between Environmental Degradation and

Human Rights Violations, 18 Hum. Rts. Brief. 19 (2010)…………………………………….6

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QUESTION PRESENTED

Under established and evolving principles of international and domestic law, did the

Tamoion government fail to comply with international and domestic legal requirements and to

respect the rights of the Rugendianese people under the American Convention by not involving

them more fully in the environmental review process conducted simultaneously for two different

factories and by exposing them to harmful pollution?

JURISDICTION

The Inter-American Court of Human Rights has jurisdiction over “cases concerning the

interpretation and application of the provisions of [the American Convention on Human Rights]”

where the State Party to the case has recognized that jurisdiction. Organization of American

States, American Convention on Human Rights, art. 62, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144

U.N.T.S. 123 [hereinafter American Convention]. The Republic of Tamoio, respondent in this

case, ratified the American Convention in 1990 and recognized the jurisdiction of this court in

1991.

Pursuant to Article 44 of the American Convention, the Rugendianese non-governmental

organizations filed a petition with the Inter-American Commission on Human Rights (IACHR)

alleging violations of the American Convention. The IACHR found the request admissible, was

unable to broker a settlement, and ultimately submitted the case to the Inter-American Court, in

compliance with Article 61. Therefore, this Court has jurisdiction over the claims arising under

the American Convention against Tamoio.

STATEMENT OF THE CASE

In May 2007, the Tamoion Environment Institute (TEA) in the Republic of Tamoio

issued an environmental license to the joint venture Tamoio-Volta Batterias (TVB) allowing for

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the construction of lithium and lead-acid battery factories. Both factories, 200 meters from the

Kaigang River bank in the high mountains of Carajá Valley, were completed by December 2008.

Thirteen months later in January 2010, public hospitals in Rugendas began to report cases of

children with nerve damage caused by lead poisoning. Initial tests confirmed that 250 children

and 100 adults had elevated lead concentration in their blood. Rugendianese authorities believe

the lead pollution could be coming from the Kaigang River or from the smoke produced by TVB

factories.

The Republic of Tamoio is a South American country with approximately 35 million

inhabitants. Although Tamoio is considered to be a democratic country, its history has been

afflicted by an unstable political system, several military coups d’états, and a ten-year history of

poor economic management. Located in the Coroado Mountains, several of Tamoio’s cities run

alongside the 1,000 kilometer Kaigang River including the town of Rugendas which relies on the

river for fresh water and electricity. Despite Rugendas’ strategic location inside the Carajá

Valley, home of Tamoio’s most promising site for lithium, copper, and lead deposits, the

majority of the 95,000 Rugendas inhabitants continue to live below the World Bank defined

poverty line. Furthermore, Tamoio is on the verge of requesting an International Monetary Fund

(IMF) bailout.

Consequently, in 2004, Tamoio began offering tax breaks, exportation incentives, cheap

land procurements, and easy access to its unexplored mineral resources in order to attract foreign

investments. Before this time, the lead and lithium in the Carajá Valley had gone untouched.

Then, in 2005, European company Volta Batterias chose the Carajá Valley to install its first

South American lithium and lead-acid battery plants. In compliance with the Tamoion Energy

Policy Act of 1999, Volta Batterias formed a joint venture with the government leading to the

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existence of Tamoio-Volta Batterias apportioning 51% of the stocks to the government. In order

to move forward with construction of the factories, TVB was required to comply with The

Tamoian Environment Act of 2001 (hereinafter referred to as the Environment Act), the law

governing the environmental licensing for new industries. See Appendix A (detailing

procedures). One procedure required TVB to perform an environmental impact statement

assessing GHG emissions, heavy metal emissions, and deforestation. The assessment also

required incorporating demands from local populations to be affected by the factories and

responses to those demands. TVB finished their assessment in February 2007. Although the

assessment did not study GHG emissions, the TEA issued an environmental license (Lic.201)

approving construction of both factories three months later.

The approval inflamed the Rugendas population and Rugendianese NGOs immediately

issued a formal objection claiming the expedited licensing process did not allow for proper

consultation from the Rugendianese and that TVB’s reforestation proposal was insufficient. In

June 2007, the NGOs filed a suit asking for an injunction to stop construction and revocation of

TVB’s license. In December 2007, the trial court denied the request ruling that TVB had fulfilled

its obligations. In April 2008 an appeals court issued an injunction and assessed a T$ 2 million

fine to TVB. But, on further appeal in August 2008, the Supreme Court reversed the appeals

court holding that TVB had fulfilled its obligations and that construction would improve

economic growth. The factories were completed four months later.

After information regarding the lead poisoning and elevated levels of lead concentration

in the initial 350 children and adults was made public in January 2010, Tamoio’s Secretary of

Mining and Natural Resources (TSMR) released TEA reports claiming the Kaigang River waters

were free of heavy metal concentration and that all measures were taken to prevent

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contamination during construction of the TVB factories. However, local Rugendas authorities

have not yet been able to confirm the exact source of the pollution. They claimed the government

failed to disclose all of the possible health risks surrounding construction such as the possibility

that the mountains would shield wind that would allow for dissipation of the pollution.

The local NGOs immediately filed a suit asking for an injunction and reparations for the

people affected by the pollution. But, the government allowed the factories to continue operating

at a reduced level until the court ordered cessation of all operations in March 2010 in order to

“avoid further health detriment to the population.” An April 2010 appeal upheld the lower court

but the Supreme Court reversed in January 2011 requiring the government to take necessary

measures to permanently stop the pollution and poisoning, but once again holding that the local

communities could not impede economic development and allowing the factories to operate at

full capacity.

Amid this unfavorable decision and a TSMR report indicating factory smoke could be

causing the lead poisoning, the NGOs filed suit with the Inter-American Commission on Human

Rights (IACHR). They alleged the government was in violation of Articles 4, 5, 8, 11, 13, and 25

in consonance with Article 1.1 of the American Convention as well as in violation of Article 11

of the Protocol of San Salvador. The Tamoion government refuted claims of human rights

violations and asserted their compliance with judicial and administrative procedures and legal

requirements. Unable to reach an amicable settlement as proscribed by Articles 40 and 48 of the

Commission’s Rules of Procedure, the Commission submitted the case to this court finding the

Government in violation of Articles 4, 5, 8, 13, and 25 in consonance with Article 1.1 of the

American Convention. The Petitioners concur with the Commission’s findings of violations of

the American Convention and restate a violation of Article 11 of the Protocol of San Salvador.

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ARGUMENT

This Court has stated that “there is an undeniable link between the protection of the

environment and the enjoyment of other human rights.” Kawas-Fernández v. Honduras, Merits,

Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 196, ¶ 148 (April 3, 2009).

Though economic development is important , “development activities must be accompanied by

appropriate and effective measures to ensure that they do not proceed at the expense of the

fundamental rights of person who may be particularly and negatively affected . . . .” Maya

Indigenous Cmtys. of Toledo District v. Belize, Case 12.053, Inter-Am. Comm'n H.R., ¶ 150 (Oct.

12, 2004).

The Republic of Tamoio has conducted its development activities with complete disregard of

the rights of the local population of Rugendas. The government’s licensing and operation of two

factories violated domestic law, evolving international environmental standards, and several rights

under the American Convention, including the rights to a dignified life, humane treatment, honor,

privacy, and freedom of expression. Furthermore, the Supreme Court of Tamoio has refused to

protect the human rights of the Rugendianese people, violating their rights to a fair trial and judicial

protection. Therefore, Tamoio has violated its obligations under the American Convention.

I. The Tamoion government’s licensing and continued operation of the TVB factory, lack of adherence to the Tamoion Environment Act of 2001 and disregard for Principle 10 of the Rio Declaration violates Article 11 of the Protocol of San Salvador and thus violates human rights under the American Convention.

There is a manifest connection between environmental harm and human rights. “When

air is polluted by toxic fumes, people who breathe those fumes are injured, perhaps even killed.

When water becomes contaminated, people who drink that water may become sick… In sum,

anytime the natural environment is seriously harmed, people that depend on that harmed

environment are inevitably harmed as well.” Jennifer Cassel, Enforcing Environmental Human

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Rights: Selected Strategies of US NGOs, 6 Nw. U. J. Int’l Hum. Rts.104, 104 (2007). Failure to

preserve a healthy environment has a clear and ever-increasing effect on the enjoyment of human

rights. States have a minimal obligation to ensure that the right of its citizens to live in a healthy

environment is not violated. Those states that do not ensure this right stand in direct violation of

international law. 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 states that 1) “[e]veryone shall have the right to live in a healthy environment and have

access to basic public services,” and 2) “[t]he States Parties shall promote the protection,

preservation, and improvement of the environment.” Although Article 19.6 of the Protocol of

San Salvador provides a limited competence clause in allowing organs of the inter-American

system to render judgments on individual petitions, Article 29 of the American Convention

allows provisions such as Article 11 to be taken into account in interpreting the scope and intent

of the American Convention. See American Convention, art. 29(b). Moreover, the IACHR has a

precedent of recognizing the relationship between environmental degradation and human rights

violations. Paula Spieler, The La Oroya Case: the Relationship Between Environmental

Degradation and Human Rights Violations, 18 Hum. Rts. Brief. 19, 21 (2010).

In Yanomami v. Brazil, the Inter-American Court of Human Rights determined that the

State of Brazil had violated the rights to life, liberty and personal integrity under the American

Convention when they allowed construction of a highway through Yanomami territory and

authorized the private exploitation of the territory’s resources. This in turn caused an inflow of

non-indigenous people into the community who spread untreated contagious diseases. See

Yanomami Cmty. v. Brazil, Case 7615, Inter-Am. Comm‘n H.R. Rep. No. 12/85, ¶ 2 (March 5,

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1985). Yanomami established that a State can be held accountable for violating human rights

under the American Convention for failing to take measures to prevent environmental

degradation. In a 1997 report, the Inter-American Commission of Human Rights declared that oil

development and exploitation in the Orient damaged the environment and directly affected

Ecuador’s Amazonian indigenous peoples’ “right to physically and culturally survive as people.”

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 Report on Ecuador] . In 1983, the

Commission noted that water supply and sanitation can have a strong impact on the population’s

health and recommended that Cuba take specific environmental measures to protect the right to

health. Id. In a similar fashion, the government of Tamoio violates the human rights of the

Rugendianese under the American Convention in its licensing procedures, continued operation of

the factory, and failure to take measures to prevent environmental degradation and promote the

environment.

The state stands in violation of Article 11(1) in violating the right to live in a healthy

environment and have access to basic public services. The Respondent’s argument that the

population has not presented any concrete evidence of irreversible negative impacts created by

the factories’ construction and operation is fragile. Although the source of the lead poisoning has

not yet been absolutely confirmed, the likelihood that water contamination or air pollution from

the TVB factory is the cause of the health problems warrants state intervention in order to protect

its citizens and prevent further environmental degradation rather than solely economic

development. The Organization of American States (OAS) has acknowledged that a

government’s concern with economic development must not trump its concern for the health of

its citizens. But, they must work in harmony. Organization of American States, Inter-American

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Council for Integral Development, Second Meeting of Ministers and High Authorities on

Sustainable Development in the CIDI Framework, Declaration of Santo Domingo for the

Sustainable Development of the Americas, OEA/Ser.K/XVIII.2 (Nov. 19, 2010). Therefore,

immediate cessation of the factory’s operations until the causes of the health problems can be

properly determined by national authorities is necessary to prevent further harm. The

government’s licensing and continued operation of the factory directly impedes on the

Rugendianese’s right to live in a healthy environment and therefore stands in violation of Article

11(1) and the American Convention.

The State stands in violation of Article 11(2) in failing to promote the protection,

preservation, and improvement of the environment as provided for by Tamoion domestic law and

Principle 10 of the Rio Declaration. Respondent’s argument that all administrative and judicial

procedures and legal requirements were fulfilled is disproved by careful review of the Tamoion

Environment Act of 2001 and the government’s actions. As noted, the act requires an

environmental impact assessment to be performed prior to beginning factory construction. This

assessment must account for GHG emissions, water and air heavy metal emissions, and

deforestation. TVB’s 2007 assessment included studies of heavy metal emissions and

deforestation but did not include GHG emissions. Yet, the government issued the environmental

license approving TVB construction in violation of the Environment Act, and thus in violation of

domestic legal requirements. This action failed to promote the protection of the environment.

Additionally, the level of participation by the Rugendan population during the license approval

process was inadequate and thus violates Principle 10 of the Rio Declaration. In 1992, the Rio

Declaration characterized the right to a healthy environment as an entitlement. It states,

“[e]nvironmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have

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appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”

United Nations Conference on Environment and Development, Rio de Janiero, Braz., June 3-14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/26/Rev.1(Vol. I), Annex 1 (Aug. 12, 1992) [hereinafter Rio Declaration]. “Individuals have the right to access information in relation to the environment that is held by

public authorities and should have the opportunity to participate in decision-making processes.”

Organization of American States, Unit for Sustainable Development and Environment, Inter-

American Strategy for the Promotion of Public Participation in Decision-Making for Sustainable

Development, OEA/Ser.D/XXIII.1 (2010). The Tamoion Environment Act requires that

environmental impact statements incorporate the demands from local populations affected by the

factories. However, the process employed by the TEA and TVB did not adequately fulfill the

standard set forth by Principle 10 of the Rio Declaration. Citizens were given an initial

opportunity to voice their concerns during the environmental impact assessment. However, the

Rugendans were not given an opportunity to view the assessment or the response to their

concerns before a license was granted. This would have been Principle 10’s “relevant time” for

the community to offer their input. Additionally, the authorities claim they were not made aware

of all the potential risks the factory could hold. As a result, each individual did not have

appropriate access to the information concerning the environment that was held by public

authorities and the Rugendans did not have an opportunity to participate in the decision making

process. Failure to adhere to this principle prohibited the protection, preservation, and

improvement of the environment and thus violates Article 11(2) and the American Convention.

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Therefore, because the American Convention does not preclude consideration of other

instruments in determining the scope of human rights violations, Tamoio’s continued operation

of the factory, lack of adherence to domestic legal requirements and disregard for international

environmental standards lead to violations of Article 11 of the Protocol of San Salvador which in

turn lead to human rights violations of the American Convention.

II. The Tamoion government failed to respect the rights of the Rugendianese people under the American Convention by not involving them more fully in the environmental review process and exposing them to environmental hazards, thereby violating international human rights law.

Under Article 1(1) of the American Convention, states “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.” American Convention, art. 1(1).

It “entails the duty of the States Parties to the Convention to organize the governmental

apparatus and, in general, all the structures through which public authority is exercised in a

manner such that they may ensure, in legal terms, the free and full exercise of human rights.”

Kawas-Fernández v. Honduras, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R.

(ser. C) No. 196, ¶ 190 (April 3, 2009). The Republic of Tamoio did not fulfill this obligation

and violated Article 1(1), in relation to Articles 4, 5, 8, 11, 13, and 25 of the American

Convention by licensing the factories after an inaccurate and expedited review process and by

allowing the continued pollution that affected the Rugendianese people.

A. The Tamoion government violated the Rugendas population’s right to a dignified life by deteriorating their living conditions with health-hazardous pollution.

Under Article 4(1), “[e]very person has the right to have his life respected” and

“protected by law,” and “[n]o one shall be arbitrarily deprived of his life.” American

Convention, art. 4(1). Protection of the right to life is a prerequisite to the exercise of all other

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human rights, and “[i]f it is not respected, all rights lack meaning.” The "Street Children"

(Villagran-Morales et al.) v. Guatemala, Merits, Inter-Am. Ct. H.R. (ser. C) No. 63, ¶ 144 (Nov.

19, 1999). States have a positive duty to “adopt all necessary measures to create a legal

framework that deters any possible threat to the right to life . . . and guarantee the right to

unimpeded access to conditions for a dignified life.” Zambrano-Velez v. Ecuador, Merits,

Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 166, ¶¶ 80-81 (July 4, 2007).

States must ensure “minimum living conditions that are compatible with the dignity of the

human person” as part of ensuring the right to life. Yakye Axa Indigenous Cmty. v. Paraguay,

Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 162 (June 17,

2005). Minimum living conditions that are required for the right to a dignified existence include

the right to health. See Xákmok Kásek Indigenous Cmty. v. Paraguay, Merits, Reparations and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 214, ¶¶ 203-208 (Aug. 24, 2010). States violate

their obligation to uphold these minimum living conditions when

at the moment of the occurrence of the events, the authorities knew or should have known about the existence of a situation posing an immediate and certain risk to the life of an individual or of a group of individuals, and that the necessary measures were not adopted within the scope of their authority which could be reasonably expected to prevent or avoid such risk.

Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146, ¶ 155 (March 29, 2006). Environmental contamination “pose[s] a persistent threat to human life,” implicating the right to

life. Report on Ecuador, at ch. VIII.

The State of Tamoio rapidly approved the construction of lead and lithium factories,

willfully ignoring risks to and violating the right to a dignified existence of the Rugendas

population. The State failed to respect the right to life of the Rugendianese people before and

after the licensing of the factories. Such factories always carry potential health risks through the

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pollution they emit. The State knew that these factories posed potential risks evidenced by the

implementation of legislation required for the environmental impacts of heavy metal emissions

in the water and air. Despite these risks, the State expedited the licensing process leading to a

defective environmental review process that did not properly account for the concerns of the

Rugendianese people and overlooked risks of lead poisoning that caused nerve damage. Even

after hundreds of people suffered nerve damage caused by lead poisoning and the TSMR

released reports demonstrating that the smoke from the factories could have caused the lead

poisoning, the state continued to violate the right to life of the Rugendianese people. The State,

through its Supreme Court, allowed the factories to restart at full capacity and ignored the

Court’s order to stop the poisoning by investing in more environmentally friendly equipment.

Furthermore, the Supreme Court did not enforce its own order to stop the poisoning, further

violating the Rugendianese people’s right to a dignified existence by putting them at risk for

serious health problems. Throughout the process of approving the factories and the subsequent

litigation, the state has continuously violated the right to life of every person living in Rugendas

by poisoning them with state-owned factories.

B. The physical suffering resulting from lead poisoning by the factory violates the Rugendas’ citizens right to humane treatment and damages their physical, mental, and moral integrity.

Article 5 guarantees every person “the right to have his physical, mental, and moral

integrity respected.” American Convention, art. 5(1). This right is implicated by environmental

contamination because “the right . . . to physical security and integrity is necessarily related to

and in some ways dependent upon one’s physical environment.” Report on Ecuador, at ch. VIII.

Additionally, the threat of a violation of that right, “when it is sufficiently real and imminent,”

violates Article 5. Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations

13

and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 148, ¶ 255 (July 1, 2006). The African

Commission on Human and People’s Rights has recognized that “the breakdown of the

fundamental ecologic equilibria is harmful to physical and moral health,” and that the right to the

best attainable state of physical and mental health in Article 16(1) of the African Charter

obligates governments to not threaten the health and environment of their citizens. SERAC v.

Nigeria, Afr. Comm‘n H.P.R., Communication 155/96, ¶¶ 51-52 (Oct. 13-27, 2001).

The state violated the physical integrity of the hundreds of Rugendas citizens who have

elevated lead concentration in their blood by operating and licensing a factories that emitted

toxic substances. These toxic substances have literally invaded their physical bodies, causing

serious nerve damage to several children. Additionally, the pollution from the factories has

degraded the moral and mental integrity of these citizens, who must now live with the fact that

they harbor toxic substances in their blood at elevated levels that might lead to nerve damage as

it did with many children. Even those citizens who have not yet been poisoned by the led have

had their integrity violated because they suffer from the imminent threat of physical injury from

lead poisoning, imposing a mental and emotional burden on these citizens who will have to

constantly worry about the state of their health. This mental and moral burden is magnified given

that illnesses resulting from toxic substances can manifest significantly later than exposure. The

Court should expand the right to physical, moral, and mental integrity to the entire Rugendas

community that suffers from the knowledge of imminent threat of environmental hazards that

can deteriorate their physical health.

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C. The harmful health effects of pollution and each citizen’s knowledge that their health could be harmed at any time by the factories violate the Rugendianese people’s right to honor, dignity, and freedom from interference with private life under Article 11.

The state has violated the right to honor, to dignity, and to be free from interference with

private life protected by Article 11 of the American Convention. The right to respect for one’s

honor relates to self-esteem and self-worth. Tristán-Donoso v. Panama, Merits, Reparations and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 193, ¶ 57 (Jan. 27, 2009). Tamoio licensed

heavy metal factories at the expense of the Rugendas population. The state disregarded their

dependence on the Kaigang River for water and electricity and their lower economic status when

it licensed factories without appropriate input from the population and without providing the full

range of information regarding environmental degradation. This sends the message to the

Rugendianese people that the state does not value their well-being, damaging their self-esteem

and self-worth and violating their right to honor.

The European Court of Human Rights found a violation of the right to respect for private

life in a similar case of pollution. In Guerra v. Italy, a fertilizer factory had released toxic

chemicals that were channeled to a nearby town. 26 Eur. Ct. H.R. 357, ¶¶ 12-16 (Feb. 19, 1998).

The residents of the town argued that the chemicals violated, inter alia, their rights under Article

8 of the European Convention, which states “[e]veryone has the right to respect for his private

and family life, his home and his correspondence.” Id. at ¶ 66. The court stated “severe

environmental pollution may affect individuals’ well-being and prevent them from enjoying their

homes in such a way as to affect their private and family life adversely.” Id. at ¶ 60. The court

found that the invasion of chemicals had a direct effect on the residents, thereby violating their

right to private and family life, and the State had not fulfilled its obligation to secure these rights

of the residents. Id. at ¶¶ 57-60. This Court should also apply the similar right enumerated in the

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American Convention to protect against invasion of toxic chemicals, such as lead, that has

occurred in Rugendas and find a violation of Article 8’s right to private and family life.

D. The expedited environmental review process that occurred simultaneously for two different factories and prevented the Rugendianese people from understanding and fully expressing their concerns violated the Rugendianese people’s Article 13 right to freedom of expression.

Article 13 protects the right to “seek, receive, and impart information and ideas of all

kinds.” American Convention, art. 3(2). This aspect of the right to freedom of expression is as

important to the ordinary citizen as is the right to express freely one’s own opinion. The Last

Temptation of Christ v. Chile, Merits, Reparations and Costs. Judgment, Inter-Am. Ct. H.R. (ser.

C) No. 73, ¶ 66 (Feb. 5, 2001). The right includes the “right to know opinions, reports and

news,” id., and is essential to transparency of the acts of government. See Rios v. Venezuela,

Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C)

No. 194, ¶ 342 (Jan. 28, 2009). The Inter-American Democratic Charter states that it is every

citizen’s right to participate in decisions relating to their own development, and states should

enable diverse forms of citizen participation. Claude-Reyes v. Chile, Merits, Reparations and

Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 151, ¶ 79 (Sept. 19, 2006). The Rio Declaration

on Environment and Declaration emphasizes that citizens are entitled to information concerning

environmental issues, especially issues of hazardous activities, and states should make

environmental information widely available. Rio Declaration, principle 10. Though non-binding,

the Rio Declaration represents evolving international norms concerning human rights in the

context of environmental issues and should be used when interpreting the scope of the rights in

the American Convention so as not to restrict the rights to a healthy environment and to receive

information about environmental hazards. See American Convention, art. 29(b).

The Tamoion government violated the rights of the Rugendianese people to both receive

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and impart information under Article 13 when it enacted a deficient environmental review

process that overlooked substantial health risks, expedited the license for the factories in a short

amount of time, and did not fully address the concerns of the Rugendianese population. The

environmental assessment made by a government-approved consulting company clearly

miscalculated the environmental risks the factories posed evidenced by the fact that several

hundred people have elevated lead concentration in their blood. The assessments failed to

account for the mountainous environment and its effect on air population. Even after there was

evidence of lead poisoning, the government continued to prevent the population from being

informed about the environmental risks of the factories by issuing reports focused on the river

and avoiding other pollution dangers. The government, through these deficient reports and the

issuing of the environmental license, misinformed the Rugendianese citizens about the harmful

impacts of these factories, thereby violating their right to receive information.

By expediting the licensing process for two factories dealing with two different chemicals

that could potentially have vastly different effects on the environment, the government prevented

the Rugendianese people from receiving information about the two types of factories,

formulating demands appropriate to the concerns surrounding the factories, and imparting their

opinions and concerns. Because the licensing process for both factories occurred simultaneously,

the local population only had approximately four months to learn and express concerns about

two separate factories, both with potentially negative effects on the environment.

E. The Tamoion Supreme Court was so concerned with its own policy goals that it failed to impartially consider the rights of the Rugendas population and did not provide effective remedies in violation of Articles 8 and 25.

The Tamoion judiciary did not provide effective remedies for the Rugendianese people to

exercise their human rights, thereby violating the state’s obligations under Articles 8 and 25 in

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accordance with Article 1(1). Article 25 requires states to provide “prompt” and “effective

recourse . . . for protection against acts that violate . . . fundamental rights” in the Convention.

American Convention, art. 25(1). Remedies must be in accordance with due process, embodied

by Article 8 which protects the right of every person “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). Recourses are

merely illusory and are not effective in accordance with Article 25 when “they are ineffective in

practice, when the Judiciary lacks the necessary independence to take an impartial decision, . . .

in the absence of ways of executing the respective decisions that are delivered, . . . when justice

is denied.” Ichver-Bronstein v. Peru, Merits, Reparations, and Costs, Judgment, Inter-Am. Ct.

H.R. (ser. C) No. 74, ¶ 137 (Feb. 6, 2001). Remedies “must be suitable to combat the violation”

and the application of remedies “must be made effective by competent authorities.” Cabrera-

García v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment (ser. C) No.

220, ¶ 142 (Nov. 26, 2010). Article 25 together with Article 1(1) also obligates states to provide

precautionary measures “urgent cases in which the imminence or immediacy of the potential

human rights violation has been demonstrated.” Report on the Situation of Human Rights

Defenders in the Americas, Inter-Am. Comm‘n H.R., OEA/Ser.L/V/II.124, ¶ 118 (March 7,

2006).

The judicial procedures in Tamoio did not provide the requisite precautionary measures

to protect the Rugendianese people’s rights to life, humane treatment, honor, and privacy. In the

case filed in June 2007, the Supreme Court ultimately invalidated an injunction and allowed the

construction of the factory to continue. The Supreme Court did not even impose as part of its

ruling any conditions that the factories operate in a way that does not harm the environment. Due

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to the concerns of Rugendas and the potential human rights violations, the injunction was

required as a precautionary measure to protect the human rights of the Rugendianese people. The

Supreme Court explicitly stated that it valued the economic growth of Tamoio, and its actions

protected economic growth over the human rights of its people. This explicit acknowledgement

of the Supreme Court’s desire to further Tamoio’s economic development demonstrates that the

Supreme Court has its own policy agenda and is not impartial in this matter, in violation of

Article 8.

With respect to the second case, in January 2011, the Supreme Court allowed the

factories to restart at full capacity, even though the government had earlier suggested the

factories could continue to operate at their lowest levels until the causes of the lead poisoning

could be determined. With its ruling, the Supreme Court ignored the multiple technical reports

from the Tamoio Secretary of Mining and Natural Resources indicating that the smoke from the

factories could be causing the lead poisoning and the need for more studies on the issue. Again,

the Supreme Court exercised its policy preferences by deciding that “the joint venture was very

important to national development and that the local communities could not impede the creation

of jobs and tax revenue,” essentially saying that the human rights of the community to a

dignified life and health are merely illusory and not respected in the judicial system.

Its order requiring the Tamoion government to stop the pollution and poisoning and

invest in environmentally-friendly equipment that would prevent the pollution from happening

again is insufficient to protect the people of Rugendas and not suitable to combat the violations.

See Cabrera-García, (ser. C) No. 220 at ¶ 142. The order provides no compensation to the

people whose health has already been damaged and it does not account for the pollution that has

already occurred and will likely cause more health problems to manifest later. Within about one

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year of construction of the factories, hundreds of Rugendas citizens were found to have elevated

lead concentration in their blood, demonstrating the imminence of a human rights violation.

Therefore, the Supreme Court should have upheld the lower rulings to cease all operations as a

precautionary measure. See Report on the Situation of Human Rights Defenders in the Americas,

OEA/Ser.L/V/II.124 at ¶ 118.

Lastly, the Supreme Court has not even enforced its order requiring the Tamoion

government to stop the pollution and poisoning and invest in environmentally-friendly

equipment that would prevent the pollution from happening again; the state has not invested in

environmentally-friendly equipment to stop the pollution though the factories continue to operate

at full-capacity. The Supreme Court’s remedy is “ineffective in practice” and consequently

illusory; therefore, the judicial procedures violate Article 25. See Ichver-Bronstein, (ser. C) No.

74, at ¶ 137.

REQUEST FOR RELIEF

For the aforementioned reasons, Petitioners respectfully request that this Court find that

Respondent the Republic of Tamoio violated Articles 4, 5, 8, 11, 13, and 25 of the American

Convention in connection with its obligations under Article 1(1) of the American Convention

and Article 11 of the Protocol of San Salvador.

Given the demonstrated imminent threat to the health of the Rugendianese people and

their environment, Petitioners further request that this Court order provisional measures

imposing a moratorium on the operation of the Tamoio-Voltas Batterias factories to “avoid

irreparable damages to persons.” See American Convention, art. 63(2). In accordance with

Article 63(1), Petitioners also request that the Court order Tamoio to ensure the enjoyment of the

rights violated by adopting measures that will prevent further pollution and to pay fair

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compensation to the injured citizens of Rugendas, those who have manifested illnesses and those

whose illnesses may manifest later.

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APPENDIX A

Procedures for Obtaining an Environmental License for the Construction of Facilities as outlined

in The Tamoion Environment Act of 2001.

1. Prepare an environmental impact statement assessing GHG emission, heavy metal

emissions (water and air), and deforestation.

2. Environmental impact statement must incorporate demands from local populations

affected by the factories and responses to those demands.

3. Studies must be carried out by a private independent consulting company. Acceptable

companies may be found in TEA ordinance Or.101.

4. TEA must analyze the assessment within six months of receipt, and approve it or provide

comments for improvement.

5. If approved, the company will have approximately six months from the date of approval

to start building the new facility.

6. Plans for the facility must be outlined and published in the license, in accordance with the

TEA requirements.