Team Number: 9914 . . . . . . . . . . . . .

INDIGENOUS POPULATION ARICAPUS AND IMMIGRANTS OF THE REPUBLIC OF MIROKAI (PETITIONERS)

v .

FEDERAL REPUBLIC OF TUCANOS (RESPONDENT)

MEMORIAL FOR THE STATE

. . . . . . . . . . . . .

   

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TABLE OF CONTENTS

 

I. STATEMENT OF FACTS ................................................................................................... 1

II. Jurisdiction of the Court ....................................................................................................... 4

A. Domestic Remedies Have Been Exhausted ......................................................................... 4

B. The Timeliness Requirement Has Been Satisfied ................................................................ 5

III. The Republic of Tucanos is fully compliant with Articles 4, 5, 8, 11, 21, 22, 24, and 25 in accordance with Article 1.1 of the American Convention on Human Rights (Pact of San José, Costa Rica). ................................................................................................... 5

A. The Republic of Tucanos did not violate the Aricapu and Mirokaien populations’ right to life under Article 4 of the American Convention. ............................................................... 5

B. The Republic of Tucanos did not violate the Aricapu and Mirokaien populations’ right to physical integrity and honor under Articles 5 and 11 of the American Convention. .......... 7

C. The Republic of Tucanos complied with the right to property under Article 21 of the American Convention. ......................................................................................................... 8

1. The Republic of Tucanos complied with the requirements for restrictions of property set forth by the Inter-American Court of Human Rights. ......................................................... 9

2. The interest of society in new energy sources is greater than the Aricapu and Mirokaien populations’ use and enjoyment of their property, and the Republic of Tucanos provided just compensation in order to facilitate this public utility................................................. 10

D. The Republic of Tucanos complied with Articles 8 and 25 of the American Convention with respect to fair trial (due process) and judicial protection. .......................................... 12

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E. The Aricapus and Mariokaiens received equally protection under the law pursuant to Article 24 of the American Convention. ............................................................................ 14

F. The Tucanese government did not violate the Aricapu and Mirokaien populations’ right to freedom of movement and residence under Article 22 of the American Convention. ...... 16

IV. Tucanos Has Moved Resolutely Forward to Grant All Immigrants Every Requisite Right and Freedom Enshrined Within All International Treaties to Which it is a Party, in Keeping with Article 1(1) of the Convention. ................................................ 17

A. The Mirokaien Population Who Migrated Recently to Tucano, and Have no Spiritual Ties to their Property, nor Strong Cultural Ties and cannot be Granted the Jurisprudence of Indigenous Peoples. ........................................................................................................... 17

B. The Mirokaien Population does not Qualify for Special Protection Under International Law as Refugees or Environmental Refugees. .................................................................. 21

C. Even if the Mirokaien Population is Deemed to Warrant the Jurisprudence of Indigenous Peoples or Special Protection as Environmental Refugees, the Tucanos Government has Taken Affirmative Steps in Adopting Measures to Ensure Equality ................................. 22

V. Federal Republic of Tucanos did not violate Article 11 of the Protocol of San Salvador ............................................................................................................................................... 24

A. This court cannot enforce Article 11 of the Protocol of San Salvador because Article 19 of the Protocol creates a strong negative inference against the justicibility of all rights not specified therein. ................................................................................................................ 26

B. The Republic of Tucanos complied with the requirements of the TEP established in compliance of Article 11 of the Protocol of San Salvador. ............................................... 30

C. Petitioners’ claims should be denied because Tucanese societal needs and public policy weigh against an injunction against the Cinco Voltas Dam project. ................................. 32

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D. Conclusion ......................................................................................................................... 34

VI. CONCLUSION ................................................................................................................ 35

VII. REQUEST FOR RELIEF ............................................................................................... 35

 

   

iv

TABLE OF AUTHORITIES

Treaties and Other International Instruments

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural Rights “Protocol of San Salvador,” Inter-Am. C.H.R. 67, OEA/ser. L./V./II.82, doc. 6 rev.1 (1992), Art.11 ..................................................................................... 26

American Convention art. 46 .......................................................................................................... 4 American Convention on Human Rights, art. 26 .......................................................................... 27 American Convention, art, 25 ....................................................................................................... 13 American Convention, art, 8(1) .................................................................................................... 12 American Convention, art. 1(1) ................................................................................................ 5, 17 American Convention, art. 11(1) .................................................................................................... 7 American Convention, art. 21(1) .................................................................................................... 8 American Convention, art. 21(2) .................................................................................................... 8 American Convention, art. 24 ....................................................................................................... 15 American Convention, art. 4 ........................................................................................................... 5 American Convention, art. 5(2) ...................................................................................................... 7 American Convention, art.19 ........................................................................................................ 27 Article 1(b), Indigenous and Tribal Peoples Convention. Article 1(1), Draft American

Declaration on the Rights of Indigenous Peoples ..................................................................... 17 Convention relating to the Status of Refugees art. 1(2), 189 U.N.T.S. 150, (1954) ..................... 22

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Cases and Reports

Constitutional Court v. Peru, 2001 Inter-Am. Ct. H.R. (Ser. C) (2001) ....................................... 12 Coulter v. Brazil (Yanomami), Case 7615, Inter-Am. C.H.R., Report No. 12/85,

OEA/Ser.L/V/II.66, doc. 10 rev. 1 (1985) .......................................................................... 28, 29 Five Pensioners” v. Peru, 2003 Inter-Am. Ct. H.R. (ser. C) No. 98, (2003) ................................ 26 Godínez-Cruz v. Honduras, 1989 Inter-Am. Ct. H.R. (ser. C) No. 5, (1989) ............................... 23 IACHR, Report on the Situation of Human Rights in Ecuador - OEA/Ser.L/V/II.96, doc. 10, rev.

1, (1997) .............................................................................................................................. 28, 30 Jorge Odir Miranda Cortez v. El Salvador, Case 12.249, Inter-Am. C.H.R., Report No. 29/01

para. 35-36, OEA/ser. L./V./II.111, doc. 20 rev. (2000) ........................................................... 27 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C)

(2001) .................................................................................................................................. 14, 29 Mayan Indigenous Communities of the Toledo District v. Belize, Case 12.053, Inter-Am.

C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5, rev. 1 (2004) .................................... 32 Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) (2005) ................... 8, 19, 20 Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) (2007) .............................. passim United Nations Special Rapporteur Mrs. Fatma Zohra Ksentini, Human Rights and the

Environment, Final Report submitted to the Sub-commission on Prevention of Discrimination and Protection of Minorities, U.N. Doc. E/CN.4/Sub.2/1994/9, (1994) ................................... 21

Velasquez Rodriguez v. Honduras, 4 Inter-Am. Ct. H.R. (ser. C) (1988) ...................................... 4 Velásquez-Rodríguez v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, (1998) ................... 23 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) (2005) . passim

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Other Publications

Environmental Defense Guide: Building Strategies for Litigating Cases Before the Inter-American System of Human Rights (AIDA 2010) ............................................................. 13, 14

Essam El-Hinnawi, Environmental Refugees 4 (1985) ................................................................ 21 UNCESCR, General comment No. 3: The nature of States Parties’ obligations (art. 2, para. 1, of

the Covenant), E/1991/23 (1990) .............................................................................................. 23 United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), General

comment No. 2: International technical assistance measures (art. 22 of the Covenant), E/1990/23 (1990)....................................................................................................................... 23

Advisory Opinions

Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, Inter-Am. Ct. H.R. ........................................................................ 15

European Court of Human Rights

Lopez Ostra v. Spain, 20 Eur. H.R. Rep. 277 (1995) ................................................................... 33 Powell & Rayner v. U.K., 172 Eur. Ct. H.R. (Ser. A) (1990) ...................................................... 33

Procedural Rules

Organization of American States, Rules of Procedure of the Inter-American Commission on Human Rights Article 31 (2003) ................................................................................................. 4

Federal Republic of Tucanos Legislation

National Evacuation Policy (NEP) of 1992 ........................................................................... passim Tucanese Environmental Policy of 1991 (TEP) ..................................................................... 14, 25 Tucanos Constitution, law 101/1924 ............................................................................................ 23    

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I. STATEMENT OF FACTS

The Federal Republic of Tucanos is a democratic republic with about 50 million

inhabitants. (R. ¶ 1). Beginning in the 1990’s, the country has experienced phenomenal

economic growth due to the government’s heavy investment in industrial infrastructure. (R. ¶ 3).

To sustain this growth, the Republic of Tucanos must increase its capacity to generate electricity.

(R. ¶ 3). Without a sizeable new energy source, Tucanos will likely suffer electrical shortages

and black-outs. (R. ¶ 3).

After extensive study, the most ideal location for a new power generation dam is at the

intersection of the Betara and Corvina rivers due to the powerful flow of water generated at that

location. (R. ¶ 15). The dam, known as the Cinco Voltas power plant, is expected to produce

11,000 megawatts of energy. (R. ¶ 15). The construction of the power plant will create a lake,

necessitating the relocation of approximately 6,550 inhabitants in the vicinity of the project. (R.

¶ 20). Roughly 1,550 of those requiring relocation are members of the indigenous Aricapu

people, while the other 5,000 are members of the immigrant population from the Mirokai

Republic. (R. ¶ 20).

The indigenous Aricapu population lives in 20 small villages, 15 of which are located

within the boundaries of the reservoir lake created by the dam project. (R. ¶ 8). The total

Aricapu population is about 3,250. (R. ¶ 8). They elect their own representatives to interact with

the Tucanos government. (R. ¶ 9). The Tucanos government provides the Aricapu with health

and education services and, under the Indigenous Land Recognition Act of 1975, issued legal

land title to the Aricapu for their lands. (R. ¶ 7). The Tucanos government will provide those

Aricapu who must re-locate with economic resources and new property equal to those lands they

2

will lose as a result of the dam project. (R. ¶ 20). This is in accordance with the Tucanese

National Evacuation Policy (NEP). (R. ¶ 20).

Some 10,000 Mirokaiens emigrated from the Mirokai Republic to Tucanos in the 1970s.

(R. ¶ 11). The Tucanos government guarantees the fair and equal treatment for immigrant

groups like the Mirokai under law 101/1924 which created the National Agency for Foreigner’s

Aid (NAFA) (R. ¶ 13). NAFA has issued the Mirokai immigrant population property title to

their land. (R. ¶ 13). The Tucanese Government has offered the Mirokai equal land and

economic resources under the NEP to compensate for their losses due to the dam project. (R. ¶

20).

Tucanese Bidding Law requires that government financed projects follow a strict bidding

procedure and the expenses for such projects must appear in the official budget for approval. (R.

¶ 16). Also, power plant construction projects like the Cinco Voltas dam must adhere to the

Tucanese Environmental Policy of 1991 (TEP). (R. ¶ 16). This law created the National Institute

for Renewable Energy and Defense of the Environment (NIRED), which is the agency

responsible for power plant projects approvals. (R. ¶ 16).

Projects such as these must follow a seven step procedure including permitting

requirements, bid document preparation, environmental impact reports (EIR) for NIRED

approval, EIR publication, public input following two months of the EIR review, final NIRED

EIR approval, and, finally, project initiation with trimester reporting to NIRED to ensure permit

compliance. (R. ¶ 16A-G).

In October of 2009, NIRED approved the construction permit, and the project was

included in the 2010 Tucanese budget, which was ultimately approved by congress. (R. ¶ 17).

3

 

After a competitive bid process, LAX was awarded the contract to build the dam. (R. ¶ 18). LAX

and NIRED created the EIR for the Cinco Voltas dam project and published it online in January

of 2010, as required by law (R. ¶ 19).

After some concern in the Mirokai and Aricapu communities, the Tucanese government

met with the Aricapu Secretary General and with San Yano, the elected representative for the

Mirokaiens, in February of 2010. (R. ¶ 22). The meeting ended with an understanding that the

Tucanese government would re-evaluate the terms of the relocation project and continue to work

with those affected by the Cinco Voltas dam to find an agreeable solution. (R. ¶ 22). On March

15th, NIRED approved the final construction plan by LAX and work began on March 29th,

2010. (R. ¶ 23).

Despite the understanding between the Tucanese government and their representatives,

the Aricapu and Mirokai people filed suit seeking an injunction to cease construction of the dam.

(R. ¶ 24). The lower court dismissed this suit on May 14, 2010. (R. ¶ 25). On June 30, 2010, the

court of appeals issued the injunction to hear the merits of the case. (R. ¶ 26). The Tucanese

government appealed to the Supreme Court, and, on August 2, 2010, the court lifted the

injunction in favor of the Tucanese government. (R. ¶ 28).

Claiming the Tucanese government violated Articles 1.1, 4, 5, 8, 11, 21, 22, 24, and 25 of

the American Convention on Human Rights and Article 11 of the Protocol of San Salvador, the

Aricapu and Mirokai joined with two NGOs, Sustainable Planet and Institute for the

Conservation of the Heritage of Indians (ICHO) and appealed to the Inter-American Commission

for Human Rights. (R. ¶ 30). After finding violations of articles 1.1, 4, 5, 8, 21, 22, and 25, the

4

parties failed to reach a friendly settlement, and the Commission submitted the case to the Inter-

American Court, where it stands today (R. ¶¶ 33-34).

II. JURISDICTION OF THE COURT

This Honorable Court has jurisdiction to hear this case. The Republic of Tucanos is a

member of the Organization of the American States and has ratified all of the Inter-American

treaties on human rights, including the American Convention on Human Rights on August 4,

1991.1 Additionally, the Republic of Tucanos acknowledged the Inter-Americans Commission

on Human Rights competence to judge cases in July 1992.2

A. Domestic Remedies Have Been Exhausted

Pursuant to Article 46(1)(a) of the American Convention on Human Rights,3 Article 31 of

the Rules of Procedure of the Inter-American Commission on Human Rights4 and the decision

by the Inter-American Court of Human Rights in the Velasquez Rodriguez case,5 the Petitioner

has exhausted all domestic remedies.  

                                                            1 Record, ¶ 1.

2 Id.

3 Organization of American States, American Convention on Human Rights Article 46(a)(1) (1969).

4 Organization of American States, Rules of Procedure of the Inter-American Commission on Human Rights Article

31 (2003).

5 Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, 4 Inter-Am. Ct. H.R. (ser. C) (1988).

The Court affirmed Article 46 of the Convention, stating that all domestic remedies must be exhausted unless there

was a violation of due process, denial of access to domestic remedies or unwarranted delay. None of these

exceptions apply here.

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B. The Timeliness Requirement Has Been Satisfied

In accordance with Article 32(1) of the Rules of Procedure of the Inter-American

Commission, the Petitioner has satisfied the six-month timeliness requirement.

III. THE REPUBLIC OF TUCANOS IS FULLY COMPLIANT WITH ARTICLES 4, 5, 8, 11, 21, 22, 24, AND 25 IN ACCORDANCE WITH ARTICLE 1.1 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS (PACT OF SAN JOSÉ, COSTA RICA).

As a State Party to the American Convention on Human rights, the Republic of Tucanos

is fully compliant and continues to respect “the rights and freedoms recognized [by the

Convention] to ensure to all persons subject to [its] jurisdiction the free and full exercise of those

rights and freedoms, without any discrimination . . . .”6 As a result, the Tucanese government

has not violated any rights of the Aricapu and Mirokaien populations.

A. The Republic of Tucanos did not violate the Aricapu and Mirokaien populations’ right to life under Article 4 of the American Convention.

The Republic of Tucanos did not violate the Aricapu and Mirokaien populations’ right to

life7 through its efforts to build the Cinco Voltas power plant. The State’s obligation of

guaranteeing the right to life is accomplished by “generat[ing] minimum living conditions that

are minimally compatible with human dignity” through the adoption of “positive, concrete

measures aimed at fulfilling the right to a dignified life . . . .”8

                                                            6 American Convention, art. 1(1).

7 American Convention, art. 4. (“Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.”)

8 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 162 (June 17, 2005);

see also, e.g., Inter-Am. Comm'n on Human Rights, Report on the Situation of Human Rights in Ecuador,

6

In Yakye Axa, the Inter-American Court held that Paraguay, by delaying the proceedings

for the restitution of their ancestral lands, violated the rights of the Yakye Axa community

members to live a dignified existence by worsening their living conditions.9 The community

members had lived for more than eight years at the side of the road that led to the entrance to

their ancestral lands, awaiting the domestic resolution of their petition for the restitution of their

lands.10 The Court found that the people had lived in “conditions of extreme misery” because of

the instability of their temporary settlement and the related difficulties of obtaining food, clean

water, adequate housing and healthcare.11 As a result, the Court held Paraguay liable for the

violation of the right to life of the Yakye Axa people for “not adopting measures in the face of

the conditions that affected their possibility of having a dignified life.”12

Tucanos generated living conditions that are minimally compatible with human dignity.

In particular, the State adopted positive, concrete measure aimed at fulfilling the Aricapu and

Mirokaien populations’ right to a dignified life through its adoption of the National Evacuation

Policy (NEP) of 1992.13 The NEP guarantees that all evacuees will receive a plot of land

                                                                                                                                                                                                OEA/Ser.L/V/II.96, doc. 10 rev. 1, 92 (1997) (governments must enact appropriate laws and regulations and then

fully enforce them).

9 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 168, 176 (June 17,

2005).

10 Id. at 50.8, 164.

11 Id. at 164-68.

12 Id. at 161.

13 Record, ¶ 20.

7

 

equivalent to the size of the plot they inhabited before and sufficient economic resources to

restart their lives and activities in a new area, designated by the State.14 Furthermore, Tucanos

has made it clear that it will comply with the NEP and provide the Aricapu and Mirokai with

sufficient land and economic resources.15 Thus, unlike the Yakye Axa who were displaced in a

temporary settlement that lacked land and natural resources, the Aricapus and Mirokaiens will

gain equivalent plots of land and sufficient economic resources to continue their lives as hunters,

harvesters, and manufacturers. Therefore, Tucanos adopted and fulfilled proactive measures to

generate, at the very least, minimum living conditions that are minimally compatible with human

dignity.

B. The Republic of Tucanos did not violate the Aricapu and Mirokaien populations’ right to physical integrity and honor under Articles 5 and 11 of the American Convention.

Article 5 of the American Convention establishes that no one should be subjected to

“torture or to cruel, inhuman, or degrading punishment.”16 Additionally, a person’s dignity and

honor shall be respected in accordance to Articles 5 and 11.17 Accordingly, the Tucanese

government did not violate the Aricapu and Mirokaien populations’ right to physical integrity or

honor through its efforts to build the Cinco Voltas power plant. Unlike the indigenous people in                                                             14 Id.

15 Id.

16 American Convention, art. 5(2).

17 See American Convention, art. 5(2) (“All persons deprived of their liberty shall be treated with respect for the

inherent dignity of the human person.”); American Convention, art. 11(1) (“Everyone has the right to have his honor

respected and his dignity recognized.”).

8

Moiwana Community v. Suriname who were victimized during a ruthless massacre and never

received an adequate investigation from the government,18 the Tucanos government treated the

Aricapus and Mirokaiens with the upmost dignity. The Tucanese government respected both

populations’ right to property and included them in the project implementation process.19

Furthermore, once the government determined that relocation was necessary, it made every effort

to respect the Aricapus and Mirokaiens’ rights through the allocation of new land and sufficient

economic resources. Therefore, the Aricapus and Mirokaiens dignity and honor were properly

protected.

C. The Republic of Tucanos complied with the right to property under Article 21 of the American Convention.

The Republic of Tucanos’ economic development efforts did not violate the Aricapu and

Mirokaien populations’ right to property under Article 21 of the American Convention. The

Convention recognizes that a state “may subordinate [a person’s use and enjoyment of his

property] to the interest of society.”20 When such public utility or social interest is established,

the government must simply provide just compensation for the needed property in accordance

with its established laws.21

                                                            18 Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124, at 3(June 15, 2005).

19 Record, ¶ 22.

20 American Convention, art. 21(1) (emphasis added).

21 See American Convention, art. 21(2).

9

 

1. The Republic of Tucanos complied with the requirements for restrictions of property set forth by the Inter-American Court of Human Rights.

The right to property under Article 21 is not absolute and therefore is subject to certain

limitations and restrictions.22 The Inter-American Court of Human Rights (IACHR) has

previously held that “a State may restrict the use and enjoyment of the right to property where

the restrictions are: a) previously established by law; b) necessary; c) proportional; and d) with

the aim of achieving a legitimate objective in a democratic society.”23

Tucanos complied with the aforementioned requirements when it determined the need to

relocate the Aricapu and Mirokaien populations, and thus, restrict access to their property. First,

by previous adoption of the National Evacuation Policy (NEP) of 1992, Tucanos had measures in

place that addressed the issue of the government’s restriction of property rights.24 Second, the

relocation of the Aricapu and Mirokaien populations is necessary for the facilitation of not only a

prosperous economy, but more importantly, the country’s growing demands for energy.25

Further, the critical scenario of possible power black-outs makes the need for these new energy

                                                            22 See Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, at 127 (Nov. 28, 2007).

23 Id. at127 (citing Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at

144 (June 17, 2005)).

24 Record, ¶ 20.

25 Record, ¶ 3; see Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 145

(June 17, 2005) (“The necessity of legally established restrictions will depend on whether they are geared toward

satisfying an imperative public interest.”)

10

sources an “imperative public interest.”26 Third, the relocation of the Aricapu and Mirokaien

populations is a necessary and proportional measure. Relocation is necessary because the

population cannot continue to live on flooded lands.27 The measure is proportional because 50

million Tucanese will experience power shortages without the Cinco Voltas dam which requires

relocation of only 6,550 inhabitants.28 Furthermore, by granting equivalent size plots of land, as

well as sufficient economic resources, Tucanos is demonstrating a good faith effort of reducing

its interference with the populations’ property rights as much as possible.29 Finally, the

relocation of the two populations is aimed at achieving the legitimate objective of producing an

energy source that will benefit the entire population of the Republic of Tucanos.30 Therefore,

Tucanos complied with the IACHR’s requirements for restriction of property rights.

2. The interest of society in new energy sources is greater than the Aricapu and Mirokaien populations’ use and enjoyment of their property, and the Republic of Tucanos provided just compensation in order to facilitate this public utility.

                                                            26 See Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 145 (June 17,

2005).

27 See, e.g., Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007) (where the

government issued various logging and mining concessions within the indigenous population’s territory).

28 Record, ¶ ¶ 20.

29 See Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 145 (June 17,

2005) (“Proportionality is based on the restriction being closely adjusted to the attainment of a legitimate objective,

interfering as little as possible with the effective exercise of the restricted right.”).

30 Record, ¶ 3.

11

 

The IACHR recognizes that the private property rights may be subordinated to the

interest of society where “[t]he necessity of legally contemplated restrictions . . . are oriented to

satisfy a compelling public interest.”31 Here, the public interest of new energy sources is

compelling because without such energy, there will be a significant threat to overall population’s

health, safety, and general welfare due to the inevitable black-outs.32

Furthermore, the IACHR has noted that a restriction on private ownership of property can

be necessary to preserve ‘the cultural identity of a democratic and pluralistic society’ and that

such a restriction is proportional if just compensation is made to those who must give up their

private property.33 Therefore, through Tucanos’ efforts of providing equivalent sized plots of

land, as well sufficient economic resources, the Aricapus and Mirokaiens are receiving just

compensation under Article 21(2) of the American Convention. Moreover, as a result of this just

compensation, the relocation of the Aricapus and Mirokaiens will allow for the groups’ survival.

In fact, by providing equivalent land and economic resources, the Aricapus and Mirokaiens will

be able to continue their means of subsistence. Therefore, through just compensation, Tucanos is

“not fully extinguish[ing] the [Aricapus and Mairokaiens] way of life as indigenous and tribal

populations.34

                                                            31 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 145 (June 17,

2005).

32 Record, ¶ 3.

33 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 148 (June 17,

2005).

34 See Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, at 128 (Nov. 28, 2007) (citing, e.g.,

12

D. The Republic of Tucanos complied with Articles 8 and 25 of the American Convention with respect to fair trial (due process) and judicial protection.

Articles 8 and 25 of the ACHR protected every person’s right to a fair hearing and right

to legal recourse before a court or tribunal when any fundamental right recognized by the state is

allegedly violated. This protection is applicable to both judicial and administrative legal

proceedings.35

Article 8(1) of the American Convention states that: “[e]very person has the right to a

hearing, with due guarantees and within a reasonable time, by a competent, independent and

impartial tribunal, previously established by law . . . for the determination of his rights and

obligations of a civil, labor, fiscal, or any other nature.”36 This protection provides procedural

requirements that should be observed by a government in order for a person or group to receive

appropriate judicial guarantees.37

Here, the Aricapus and Mariokaiens received sufficient due process protection. Both

groups’ elected leadership is recognized by the Tuscanese government, those leaders had an

opportunity to meet with the Tuscanese government during the extensive and transparent review

                                                                                                                                                                                                UNHRC, Länsman et al. v. Finland (Fifty-second session, 1994), Communication No. 511/1992, U.N. Doc.

CCPR/C/52/D/511/1994, November 8, 1994, para. 9.4 (allowing States to pursue development activities that limit

the rights of a minority culture as long as the activity does not fully extinguish the indigenous people’s way of life).

35 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 62 (June 17, 2005).

36 American Convention, art, 8(1).

37 See Constitutional Court v. Peru, 2001 Inter-Am. Ct. H.R. (Ser. C) No 71, at 69 (Jan. 31, 2001) (citing Advisory

Opinion OC-9/87, Judicial Guarantees in States of Emergency, 1987 Inter-Am. Ct. H.R. (ser. A) No. 9 (Oct. 6,

1987)).

13

 

process for the economic development project, and both groups were given timely access to

competent judicial courts within month of their initial claims.38 These facts are distinguishable

from those in the Yakye Axa case where it took the indigenous group three years to receive

recognized legal status and nearly twelve years of administrative delays before the group was

able to bring their claim before the IACHR.39

In conjunction with due process, Articles 25 of the American Convention ensures the

right of all people to effective and prompt judicial remedies for alleged violations of their human

rights.40 The IACHR cannot find a violation of the right to judicial protection unless “a claim

[alleges] a violation of a fundamental right recognized in the State’s Constitution or law.”41

Furthermore, “the burden of proof for such a violation falls on the party alleging the violation,

who must prove that domestic law . . . establishes the fundamental right to a healthy environment

and that this fundamental right has not received effective judicial protection.”42

                                                            38 Record, ¶¶ 9, 12, 22, 25-28.

39 Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125; at 69, 85 (June 17,

2005).

40 American Convention, art, 25 (“Everyone has the right to simple and prompt recourse, or any effective recourse,

to a competent court or tribunal for protection against acts that violate fundamental rights recognized by the

constitution or laws of the state concerned or by this Convention . . . .”).

41 Environmental Defense Guide: Building Strategies for Litigating Cases Before the Inter-American System of

Human Rights, page 74 (AIDA 2010).

42 Id.

14

In this case, the Aricapus and Mariokaiens argue that the economic development project

will have an environmental impact higher than the limits permitted by the Tucanese

Environmental Policy of 1991 (TEP).43 However, the populations have no basis to argue that

they did not receive adequate judicial protection in alleging this claim. Unlike Awas Tingni

Community v. Nicaragua, where the indigenous tribe’s claim was deemed inadmissible in court,

the Aricapus and Mariokaiens were able to argue their case on the merits in front of Tucanos’

lower courts, court of appeals, and Supreme Court.44 Furthermore, the two populations even

received their requested remedy of an injunction by the court of appeals. However, on review

the Supreme Court overturned this decision holding that Tucanos did not violate any human

rights and that all “judicial and administrative procedures had been followed strictly in

accordance to the legal requirements.”45 Therefore, the due process and judicial remedies

provided by the government were adequate.

E. The Aricapus and Mariokaiens received equally protection under the law pursuant to Article 24 of the American Convention.

Article 24 of the American Convention affirms that “[a]ll persons are equal before the

law. Consequently, they are entitled, without discrimination, to equal protection of the law.”46

However, the IACHR recognizes that “not all differences in legal treatment are discriminatory . .

                                                            43 Record, ¶ 24.

44 See Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, at 129

(Aug. 31, 2001).

45 Record, ¶ 31.

46 American Convention, art. 24.

15

 

. .”47 Rather, “a difference in treatment is only discriminatory when it has no objective and

reasonable justification.”48 Nonetheless, the Tucanese government was not involved in any

discriminatory conduct during its pursuit of economic development for the interest of society.

Although, the Aricapu and Mirokaien populations argued that they received

discriminatory treatment from the local courts regarding their property rights, there are no facts

in the record that indicate any such treatment took place. In fact, through the Indigenous Land

Recognition Act of 1975, the Aricapus had their collective rights to land recognized and were

given property titles by the Tucanese government.49 Further, through the National Agency for

Foreigners Aid (NAFA), the Mirokaiens were also able to acquire property titles from the

Tucanese government for the land they were living on.50 As a result of these government

recognized rights to property, the Aricapus and Mirokaiens received just compensation in

accordance with the National evacuation Policy (NEP) of 1992 once Tucanos determined that

relocation was necessary.51 Thus, the Aricapus and Mirokaiens received equal protection under

the law.

                                                            47 Advisory Opinion OC-4/84, Proposed Amendments to the Naturalization Provision of the Constitution of Costa

Rica, Inter-Am. Ct. H.R., ¶ 56.

48 Id.

49 Record, ¶ 7.

50 Record, ¶ 14.

51 Record, ¶ 20.

16

F. TheTucanese government did not violate the Aricapu and Mirokaien populations’ right to freedom of movement and residence under Article 22 of the American Convention.

Article 22 of the American Convention establishes that a person’s right to move around

and establish residence within a territory of a State “may be restricted by law in designated zones

for reasons of public interest.”52 Therefore, Tucanos did not violate Article 22 when the

government determined that the junction of the Betara and Corvina rivers were needed for the

public interest of energy demands.

Furthermore, the facts of this case are distinguishable from those in Moiwana

Community v. Suriname where the IACHR ruled that a violation of Article 22 had occurred. In

Moiwana, the Court held that the State’s failure to provide the conditions and means for an

indigenous community to return voluntarily to their lands after suffering displacement on the

heels of a massacre, constituted a violation of Article 22.53 However, unlike the horrific

massacre of a victimized indigenous community in Moiwana, the Tucanese government is

merely relocating the Aricapus and Mirokaiens for reasons of public interest, which is a

legitimate objective in accordance with paragraph 4 of Article 22. Therefore, the Aricapu and

Mirokaien populations’ right to freedom of movement and residence was not violated.

                                                            52 American Convention, art. 22(4).

53 Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124, at 107-121 (June 15, 2005).

17

 

IV. TUCANOS HAS MOVED RESOLUTELY FORWARD TO GRANT ALL IMMIGRANTS EVERY REQUISITE RIGHT AND FREEDOM ENSHRINED WITHIN ALL INTERNATIONAL TREATIES TO WHICH IT IS A PARTY, IN KEEPING WITH ARTICLE 1(1) OF THE CONVENTION.

Petitioners argue that Tucanos is in violation of Article 1 of the American Convention on

Human Rights.54 However, the Republic of Tucanos has not discriminated the Mirokaien

immigrant population in any respect. The Mirokaien immigrant population is not subject to the

jurisprudence of the indigenous peoples or as refugees under international law. Even so, the

Tucanos government has protected the rights of the immigrant population.

A. The Mirokaien Population Who Migrated Recently to Tucano, and Have no Spiritual Ties to their Property, nor Strong Cultural Ties and cannot be Granted the Jurisprudence of Indigenous Peoples.

The Mirokaien population is not an indigenous tribe. Therefore, they are not entitled to a

heightened level of scrutiny. In international law, self-identification as ‘indigenous' is a

fundamental criterion in determining who is considered indigenous.55

The Inter-American Court dealt with the classification of indigenous peoples in the 2007

case of the Saramaka People v. Suriname.56 This case concerned land and resource claims

stemming from concessions granted by the state for the exploration and extraction of natural

resources.57 A central issue in that case was whether the Saramaka were a tribal community

                                                            54 American Convention, art. 1(1).

55 Article 1(b), Indigenous and Tribal Peoples Convention. Article 1(1), Draft American Declaration on the Rights of

Indigenous Peoples.

56 Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007)

57 Id.

18

entitled to the same special measures afforded indigenous peoples.58 The Saramaka are not

indigenous peoples, but instead are descendants of African slaves brought to Suriname during the

seventeenth century.59 Their ancestors escaped to the interior regions of the country where they

established autonomous communities organized by matrilineal clans.60

The Court found that, like other tribal peoples, the Saramaka maintain “a strong spiritual

relationship” with their traditional lands, which constitute a source of life and cultural identity

for the people.61 Based on this finding and its prior case law,62 the Court declared that the

members of the Saramaka people are a tribal community subject to the jurisprudence regarding

indigenous land and resource rights and are entitled to special measures under international

human rights law.63 Thus, the Court had to determine which natural resources found on the

traditional territory were essential for the survival of the Saramaka way of life and thereby

protected under Article 21 of the Convention.64

                                                            58 Id. at 78.

59 Id. at 80.

60 Id.

61 Id. at 82.

62 Id. at 85 (In particular, the Court cited Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No

124, at 132-33(June 15, 2005).

63 Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, at 86(Nov. 28, 2007).

64 Id. at 123.

19

 

The Court has held that special protection is given to tribal and other groups who exercise

an ‘omni-comprehensive relationship’ with their ancestral lands.65 When peoples hold their

ancestral land communally and have a close spiritual and cultural relationship with that land, the

Inter-American Court will apply its jurisprudence on indigenous land rights and related rights.66

In the Moiwana v. Suriname case, the Court applied the case law developed in indigenous

rights cases to the peoples of the N'djuka Maroon community who had been driven from their

traditional land by a massacre perpetrated by the Surinamese military in 1986.67 The ancestors of

the inhabitants of this community had been brought to the territory, now Suriname, in the 17th

century as African slaves.68 Over time, many of them escaped to the rainforest, where they

established autonomous communities and came to be known as Maroons.69 The N'djuka People,

whose village was massacred, are one of the six Maroon communities having their own

language, history, cultural traditions and religion.70 The villagers have not been able to return to

their traditional lands since the 1986 massacre and are living as internally displaced people in

Suriname or as refugees in French Guiana.71 Although they are not technically indigenous to the                                                             65 Moiwana Community v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No 124, at 133(June 15, 2005).

66 Id. at 131-34.

67 Id.

68 Id. at 86.1 (The N'djuka Community now numbers approximately 49,000 people).

69 Id.

70 Id. at 86.1 and 86.4.

71 Id. at 86.19, 86.27 and 86.43.

20

area, the Court applied its jurisprudence on indigenous land rights to the N'djuka ‘tribal people’

in accordance with international law.72 The court held that their tradition of communal land use,

relationship to the land, and common religious practices were sufficiently similar to the practices

of indigenous peoples to merit similar protection.

The Mirokaien immigrant population does not meet the threshold to qualify for the same

jurisprudence of indigenous tribes. The Mirokai have inhabited Tucanos for less than 40 years,

unlike the populations in the Saramaka and Moiwana who inhabited their lands for hundreds of

years73. Additionally, nothing in the record suggests the Mirokaien population established

“strong spiritual connection”, unlike the Saramaka and Moiwana whose ties to the land were

spiritual in nature. Both the Saramaka and Moiwana, lands were shared communally, but there is

no evidence suggesting the Mirokaien population shares their land communally. The Saramaka

and Moiwana people had cultural ties to their land established over centuries, but the Mirokaien

population merely used their land to generate income.74 The Mirokaien population manufactures

and sells small objects in local markets nearby75, thus relying on other communities in

commerce, whereas the Saramaka and Moiwana were self-sustaining through hunting, gathering,

and cultivating their own food. Thus, the Mirokaien population is not subject to the same

jurisprudence as the indigenous tribes.

                                                            72 Id. at 133-35.

73 Record, ¶ 12.

74 Record, ¶ 11.

75 Id.

21

 

B. The Mirokaien Population does not Qualify for Special Protection Under International Law as Refugees or Environmental Refugees.

Special protection should not be given to the Mirokaien population because they are not

refugees under the international law definition and environmental refugees resulting from natural

disasters are not currently protected under international law. Environmental refugees are “those

people who have been forced to leave their traditional habitat, temporarily or permanently,

because of a marked environmental disruption (natural and/or triggered by people) that

jeopardized their existence and/or seriously affected the quality of their life.”76

However, the 1951 United Nations Convention on the Status of Refugees and the

Protocol on the Status of Refugees of 1967 defines a refugee as any person who:

... owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, to owing to such fear, is unwilling to avail himself of the protection of that country; or who, owing to such fear, is unwilling to return to it.77

This definition does not include internally displaced people or those forcefully displaced

for environmental reasons. The Refugee Convention of 1951 and its 1967 Protocol do not

provide a literal, concrete or explicit protection for the environmental refugees. Even when

viewing the broader goals of the Refugee Convention, it does not contemplate protection for                                                             76 Essam El-Hinnawi, Environmental Refugees 4 (1985), cited in: Diane Bates, Environmental Refugees?

Classifying Human Migrations Caused by Environmental Change, 23 Population And Environment 465, at 466.

(2002); see also, United Nations Special Rapporteur Mrs. Fatma Zohra Ksentini, Human Rights and the

Environment, Final Report submitted to the Sub-commission on Prevention of Discrimination and Protection of

Minorities, U.N. Doc. E/CN.4/Sub.2/1994/9, ¶¶ 154-160 (July 6, 1994).

77 Convention relating to the Status of Refugees art. 1(2), 189 U.N.T.S. 150, entered into force April 22, 1954.

22

those displaced by natural disaster. The Preamble of the Refugee Convention 1951 states:

“human beings shall enjoy fundamental rights and freedoms without discrimination”. Thus, the

objective of the Refugee Convention is to protect the fundamental human rights and freedoms of

people that must flee from their countries, due to violation of those rights.78 Because the

Refugee Convention and its Protocol do not contemplate their protection, environmental disaster

refugees are not protected.

The Mirokaien population migrated to the Tucanos Republic as a result of a tsunami

natural disaster in 1970.79 While this qualifies the Mirokaiens as environmental refugees, it does

not entitle them to escalated legal protection under international law as refugees. The

Mirokaiens neither fled their native country for fear of persecution80 nor are unwilling to return

to their native homeland. Thus, the Mirokaiens are not refugees as provided in the Refugee

Convention of 1951 and its 1967 Protocol. Therefore, because the Mirokaiens migrated to

Tucanos in “pursuit of a better life and new opportunities,” they do not qualify for heightened

protection as refugees under international law81.

C. Even if the Mirokaien Population is Deemed to Warrant the Jurisprudence of Indigenous Peoples or Special Protection as Environmental Refugees, the Tucanos Government has Taken Affirmative Steps in Adopting Measures to Ensure Equality

In consonance with Article 1(1), 2, and 24 of the American Convention, the Tucanos

government has taken positive steps to guarantee the equality of the Mirokaien population.

Article 2 and 24 of the American Convention impose on the State the obligation to adopt positive

                                                            78 Emphasis added.

79 Record, ¶ 11.

80 Id.

81 Id.

23

 

measures required to reduce inequalities.82 The adoption of such measures stems from the

doctrine of the UN Committee on ESCR, which in comments have placed an obligation on the

State to protect vulnerable groups during the time of economic adjustment.83 And if a

community is held to be like indigenous peoples, the State has an obligation to ensure the right to

collective property, prior consultation, and prior environmental impact studies.84

The Tucanos government took affirmative steps to ensure equality, and the Mirokaien

population has adjusted economically. The Tucanos constitution guarantees fair and equal

treatment for foreign populations.85 Furthermore, the law 101/1924 created the National Agency                                                             82 Cf Velásquez-Rodríguez v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, at 166 (July 29, 1998) (“The

second obligation of the States Parties is to ‘ensure’ the free and full exercise of the rights recognized by the

Convention to every person subject to its jurisdiction, in light of a positive obligation, under Article 1.1. This

obligation implies the duty of the States Parties to organize the governmental apparatus and, in general, all the

structures through which public power is exercised, so that they are legally capable of ensuring the free and full

enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any

violation of the rights recognized by the Convention and moreover, if possible attempt to restore the right violated

and provide compensation as warranted for damages resulting from the violation.”); see also, Godínez-Cruz v.

Honduras, 1989 Inter-Am. Ct. H.R. (ser. C) No. 5, at 175 (Jan. 20, 1989).

83 United Nations Committee on Economic, Social and Cultural Rights (UNCESCR), General comment No. 2:

International technical assistance measures (art. 22 of the Covenant), E/1990/23 (1990), reprinted in Compilation of

General Comments and General Recommendations Adopted by Human Rights Treaty Bodies 12, U.N. Doc

HRI/GEN/1/Rev.8 (2006); UNCESCR, General comment No. 3: The nature of States Parties’ obligations (art. 2,

para. 1, of the Covenant), E/1991/23 (1990).

84 See Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).

85 Record, ¶ 13

24

for Foreigner's Aid (“NAFA”) which is an institution dedicated to registering foreigners'

entrance into Tucanos and to provide them humanitarian help “whenever necessary.”86 In fact,

the Mirokaiens registered in accordance to NAFA regulations and presumably may invoke

humanitarian assistance as needed from this institution. And even if the Mirokaiens fall within

the same jurisprudence as the indigenous people, the Tucanos government guaranteed not only

an equal plot of land, but also sufficient economic resources to restart their lives under the

Tucanos National Evacuation Policy (NEP) of 1992.87 Furthermore, the Tucanos government

consulted the Mirokaiens elected representative, San Yano, before the consummation of the

construction, and NIRED prepared an EIS, as proscribed in the Saramaka decision.88

Finally, the Mirokaiens have lived in Tucanos for over forty years.89 They participate in

the local economies by manufacturing goods, and should not be considered in a state of

economic adjustment.90 Therefore, the Tucanos government has taken appropriate affirmative

measures to guarantee equal protection to the Mirokaiens even under the stricter scrutiny within

the jurisprudence of indigenous peoples.

V. FEDERAL REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLE 11 OF THE PROTOCOL OF SAN SALVADOR

The Republic of Tucanos could not have violated the petitioner’s “right to a healthy

environment” under Article 11 of the Protocol of San Salvador and the American Convention on                                                             86 Id.

87 Record, ¶20.

88 Record, ¶19.

89 Record, ¶11.

90 Id.

25

 

Human Rights because this right is a non-enforceable economic, social, and cultural right. Even

if this court could enforce this right, the Federal Republic of Tucanos did not violate the

petitioner’s environmental rights because Tucanese government implemented and followed the

rigorous requirements of the Tucanese Environmental Policy of 1991 (TEP). Furthermore,

public policy weighs in favor of construction of the Cinco Voltas dam because the social and

economic utility of the project substantially outweighs its potentially negative environmental

impact.

The American Convention on Human Rights, the founding document of this court,

enumerates the various civil and political rights that member states must enforce.91

Environmental rights are not addressed in this document.92 The Convention does address, in

general terms, all economic, social, and cultural rights in a single article.93 However, this court

has interpreted article 26 as a non-enforceable article which does not impose any specific duties

on member states.94

                                                            91 American Convention on Human Rights (“Pact of San José, Costa Rica”), Nov. 22, 1969. Such political and civil

rights include Art. 4 “Right to Life,” Art. 6 “Freedom From Slavery, and Art. 12 “Freedom of Conscience and

Religion,” amongst others.

92 Id.

93 Id at art 26.

94 “Five Pensioners” v. Peru, 2003 Inter-Am. Ct. H.R. (ser. C) No. 98, at 145-48 (Feb. 28, 2003), available at

http://www.corteidh.or.cr/docs/casos/articulos/seriec_98_ing.pdf.

26

The Additional Protocol in the Area of Economic, Social and Cultural Rights (herein, the

“San Salvador Protocol”) expands Article 26 of the Convention. The Article XI of the Protocol

of San Salvador recognizes a right to a healthy environment:

Article 11

Right to a Healthy Environment

1. Everyone shall have the right to live in a healthy environment and to have access to basic public services.

2. The States Parties shall promote the protection, preservation, and improvement of the environment.95

 

A. This court cannot enforce Article 11 of the Protocol of San Salvador because Article 19 of the Protocol creates a strong negative inference against the justicibility of all rights not specified therein.

Although The Protocol of San Salvador expands upon the non-specific language of

Article 26 of the Convention on Human Rights through the addition of new economic, social,

and cultural rights, it does not empower the Inter-American Court of Human Rights unlimited

jurisdiction over every perceived violation of those rights. In fact, the Protocol of San Salvador

only explicitly empowers this court to enforce the rights to unionization and education:

Any instance in which the rights established in paragraph a) of Article 8 and in Article 13 are violated by action directly attributable to a State Party to this Protocol may give rise, through participation of the Inter-American Commission on Human Rights and, when applicable, of the Inter-American Court of Human Rights, to application of the system of individual petitions

                                                            95 Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social, and Cultural

Rights “Protocol of San Salvador,” Inter-Am. C.H.R. 67, OEA/ser. L./V./II.82, doc. 6 rev.1 (1992), Art.11.

27

 

governed by Article 44 through 51 and 61 through 69 of the American Convention on Human Rights.96

The court has historically interpreted this language as creating a negative inference against

justiciability for claims surrounding all other articles not specifically listed.97

Instead, Article 11 merely creates an aspiration goal for member states to strive towards.

The “right to a healthy environment” is one of many economic, social and cultural rights that

member states are expected to uphold.98 Yet, because the article is the vague and broadly

worded, Article 11 could not create an enforceable right. For example, Article 11 does not define

what a “healthy environment” is. Nor does it instruct member state how to stay in compliance.

Without proper guidance from this court, member states like The Republic of Tucanos cannot

know when or if they have complied with the “right to a healthy environment.” The court has not

directly addressed these questions in any adversarial opinions to date.

In fact, this court has not addressed any Article 11 violation in any decision in the history

of this court. Instead, the Inter-American Commission on Human Rights has issued reports on

                                                            96 American Convention, art.19.

97 See Jorge Odir Miranda Cortez v. El Salvador, Case 12.249, Inter-Am. C.H.R., Report No. 29/01 para. 35-36,

OEA/ser. L./V./II.111, doc. 20 rev. (2000) (“The IACHR is not competent ratione materiae to determine

independently, violations of Article 10 of the Protocol of San Salvador through the system of individual petition.”).

98 See American Convention on Human Rights, art. 26, Nov. 22, 1969, O.A.S. T.S. No. 36.

28

the importance of human rights as they relate to a healthy environment.99 While this court has

issued decisions involving a state’s exploitation of indigenous peoples’ natural resources, those

decisions are rooted in violations of other, non-environmental, human rights violations.

For example, in Yanomami Community v. Brazil, the court considered claims that the

Brazilian government violated the basic human rights of the Yanomami Indians, an indigenous

tribe living in the Amazon, when the government constructed a highway through, and allowed

mining companies to drill on, Yanomami land.100 The commission wrote that these actions

“resulted in the violation, injury to them, of the following rights recognized in the American

Declaration of the Rights and Duties of Man: the right to life, liberty, and personal security

(Article I); the right to residence and movement (Article VIII); and the right to the preservation

of health and to well-being (Article XI).”101 In that case, the Brazilian government failed to

recognize the property rights of the Yanomami people and violated a Brazilian law requiring the

establishment of a “Yanomami park,” which was intended to create a land area owned and

controlled by the Yanomami.102

                                                            99 “Conditions of severe environmental pollution, which may cause serious physical illness, impairment and

suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”

IACHR, Report on the Situation of Human Rights in Ecuador - OEA/Ser.L/V/II.96, doc. 10, rev. 1, 1997.

100 Coulter v. Brazil (Yanomami), Case 7615, Inter-Am. C.H.R., Report No. 12/85, OEA/Ser.L/V/II.66, doc. 10 rev.

1 (1985).

101 Id.

102 Id.

29

 

In Mayagna (Sumo) Awas Tingni Community v. Nicaragua, another landmark case

involving the exploitation of natural resources found on indigenous people’s lands, the court,

again, based its decision on other human rights violations- not Article 11 of the Protocol of San

Salvador.103 In that case, the court held that Nicaragua violated the rights of the indigenous

Awas Tingni people when they issued illegal commercial logging permits allowing corporation

to exploit tiber resources on the tribe’s land.104 Although this decision involved environmental

rights insofar as the Awas Tingni Community was deprived of their natural resources, this court

only found violations of Article 25 (right to judicial protection) and Article 21 (right to

property).105

The court has declined other invitations to find violations of “the right to a healthy

environment,” even when the facts of the case indicate state action harmed the health of the

environment.106 This court’s systematic refusal to rule on Article 11 claims point to only one

conclusion: even if a member state violated an individual’s right to a healthy environment, as

enumerated in Article 11, this court cannot enforce those environmental rights.

Therefore, this court cannot sustain the indigenous population Aricapus and immigrants

of the Republic of Mirokai claim that the Republic of Tucanos violated Article 11 of the Protocol

                                                            103 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31,

2001).

104 Id.

105 Id.

106 See Saramaka People v. Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007).

30

of San Salvador. Although this court has the power to recognize other human rights violations, it

simply cannot enforce the right to a healthy environment.

Furthermore, the facts of this case do not invite this court to ignore precedent and enforce

Article 11 claims for the first time. The Republic of Tucanos took every feasible measure to

ensure that the Cinco Voltas dam project would not interfere with the human rights of either the

Mirokai or Aricapus populations.

B. The Republic of Tucanos complied with the requirements of the TEP established in compliance of Article 11 of the Protocol of San Salvador.

The Republic of Tucanos did not violate Article 11 of the Protocol of San Salvador

because the Tucanos government implemented extensive environment protection laws that

respect the human rights of affected people and it followed those laws throughout the approval

process for the Cinco Voltas dam.

Article XI of the San Salvador Protocol does not prevent member countries from

exploiting their own national resources. The Inter-American Commission on Human Rights has

stated, “[t]he norms of the Inter-American System of Human Rights neither prevent nor

discourage development; rather, they require that development take place under conditions that

respect and ensure the human rights of the individuals affected.”107

The Tucanese government has followed this recommendation because it has a

functioning legal framework to ensure the protection of the environment and compensates people

affected by environmental change. The Republic of Tucanos enacted the Tucanese

Environmental Policy of 1991 (TEP) and created the National Institute for Renewable Energy

                                                            107 IACHR, Report on the Situation of Human Rights in Ecuador - OEA/Ser.L/V/II.96, doc. 10, rev. 1, 1997.

31

 

and Defense of the Environment (NIRED).108 NIRED is responsible for reviewing plans for

large national projects to ensure they are executed in an environmentally responsible manner.109

Furthermore, the Republic of Tucanos created the National Evacuation Policy (NEP) of 1992,

which compensates those affected by environmental change with new land and economic

opportunity.110

The Tucanese government followed each and every one of the seven steps required by

NIRED for the authorization of the Cinco Voltas project.111 Although the environmental impact

report indicates the hydroelectric dam would alter the environment along the Corvina and Betara

river basins, the dam will produce 11,000 megawatts of power for the Tucanese people.112

Additionally, the Tucanese government intends to compensate the Mirokai and Aricapu people

affected by the dam project with new land and jobs as authorized under the NEP.113

This court has stated previously that member nations must also consult indigenous people

before initiating a project that would substantially affect their environment. The Inter-American

Court established this requirement in the case of Mayan Indigenous Communities of the Toledo

                                                            108 Record, ¶ 16.

109 Id.

110 Record, ¶ 20.

111 Record, ¶¶ 17-23.

112 Record, ¶¶ 15, 20.

113 Record, ¶ 20.

32

District v. Belize, stating, “the Commission notes . . . the failure of the State to engage in

meaningful consultation with the Maya people in connection with the logging and oil

concessions in the Toledo District, and the negative environmental effects arising from those

concessions, constitute violations of several other rights under international human rights law.”114

Unlike the Belize government’s failure to consult the Mayan people before they

authorized logging and oil permits on Mayan land, the Tucanese government engaged the

Mirokai and Aricapu people during the permitting and notice phase of the dam project. The

Tucanese government met with popularly elected Mirokai and Aricapu representatives and

negotiated a solution that would benefit all parties on February 20th, 2010. 115

Therefore, even if this court determines petitioner’s claims are justiciable under Article

XI of the Protocol of San Salvador, this court should not find the Republic of Tucanos violated

the petitioner’s right to a healthy environment under Article 11 of the Protocol of San Salvador

because The Tucanese government has taken every reasonable step to ensure that the Mirokai

and Aricapu people are informed about the Cinco Voltas Dam and compensated for their loss of

land and livelihood.

C. Petitioners’ claims should be denied because Tucanese societal needs and public policy weigh against an injunction against the Cinco Voltas Dam project.

This court should not contravene its well-established precedent against adjudication of

social, economic, and cultural rights especially when doing so would exacerbate the Tucanese

                                                            114 Mayan Indigenous Communities of the Toledo District v. Belize, Case 12.053, Inter-Am. C.H.R., Report No.

40/04, OEA/Ser.L/V/II.122, doc. 5, rev. 1 ¶ 154 (2004).

115 Record, ¶ 22.

33

 

people’s need for reliable energy resources. If this court decides to establish new law and

enforce Article 11 of the Protocol of San Salvador, it should implement a balancing test that

weighs the environmental harm against the societal interest served by creating that harm.

Legal balancing tests are common in the field of environmental law. For example, The

European Commission on Human Rights has employed a balancing test where the need for a

healthy environment is weighed against the need for human progress.116 If this court decides to

analyze the merits of petitioner’s claim under Article 11 of the Protocol of San Salvador, that

analysis should weigh the benefits of the Cinco Voltas dam project against any possible

environmental harm that may occur.

When that analysis is done, it is clear that the benefits the project provides

overwhelmingly outweigh any environmental damage that may result. For the past 20 years, the

Republic of Tucanos has grown and evolved from an agrarian to an industrial based economy.117

If the country does not find new energy sources, specialists believe the Tucanese people will

experience extensive blackouts due to power shortages.118 In turn, the economy will suffer when

businesses inevitably move to other nations with infrastructure better equipped to support their

power demands. With a capacity to generate over 11,000 megawatts, the Cinco Voltas dam is

                                                            116 See Powell & Rayner v. U.K., 172 Eur. Ct. H.R. (Ser. A) (1990) (balancing the need for airports against the noise

pollution generated), and Lopez Ostra v. Spain, 20 Eur. H.R. Rep. 277 (1995) (balancing the need for water

treatment plant against property right to be free from noxious fumes generated by the plant).

117 Record, ¶ 3.

118 Id.

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capable of meeting the growing energy needs of the Tucanos economy.119 Furthermore, while the

project would require relocation of 6,550 Mirokai and Aricapu people living along the Betara

and Corvina river basins, these residents account for less than .015% (one-and-one-half one

hundrenth of one percent) of the 50 million inhabitants of the Republic of Tucanos.120

Before this court determines whether the Republic of Tucanos violated the petitioners’

right to a healthy environment under Article 11 of the Protocol of San Salvador, it should

consider the harm an injunction stopping construction on the Cinco Voltas dam will have on the

50 million other inhabitants and the economic health of the Tucanese people.

D. Conclusion

This court should refrain from exercising its powers over the petitioner’s claim that the

Republic of Tucanos violated Article 11 of the Protocol of San Salvador because the “right to a

healthy environment” is one of many social, economic, and cultural rights that are not within the

purview of this court’s enforcement powers. However, if this court decides to evaluate the merits

of the petitioner’s claim, it should find no violation of the petitioner’s “right to a healthy

environment” because the Republic of Tucanos followed the requirements of Article 11 when it

enacted and followed the requirements of its comprehensive environmental laws and consulted

with the petitioner’s before initiating the Cinco Voltas project. Furthermore, any environmental

benefit created by enjoining the construction of the dam will be greatly outweighed by the

economic harm to the Tucanese people by creating an avoidable energy crisis. Therefore, for the

                                                            119 Id.

120 Record, ¶ 1, ¶ 20. 

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forgoing reasons, this court should find that the Republic of Tucanos did not violate Article 11 of

the Protocol of San Salvador.

VI. CONCLUSION

The Republic of Tucanos did not violate any of the human rights of the indigenous

Aricapus or Immigrant population of the Republic of Mirokai in the construction of the Cinco

Voltas dam. The Tucanese government took measured and careful steps to ensure compliance

with Articles 1.1, 4, 5, 8, 11, 21, 22, 24, and 25 of the American Convention on Human Rights

(Pact of San José, Costa Rica) and Article 11 of the Protocol of San Salvador.

 

VII. REQUEST FOR RELIEF

Wherefore Respondent requests this Court:

(1) Find the Republic of Tucanos in compliance with the American Convention on

Human Rights Articles 4, 5, 8, 11, 21, 22, 24, and 25 in accordance with Article 1.1;

(2) Find the Republic of Tucanos in compliance with the American Convention on

Human Rights protection of immigrants in accordance with Article 1.1;

(3) Find the Republic of Tucanos in compliance with the Additional Protocol to the

American Convention on Human Rights, the “Protocol of San Salvador,” Article 11.