INTER-AMERICAN COURT OF HUMAN RIGHTS

2011 INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW MOOT COURT COMPETITION INTER-AMERICAN COURT OF HUMAN RIGHTS INDIGENOUS ARICAPU POPULATION AND IMMIGRANTS OF THE REPUBLIC OF MIROKAI v. Petitioner FEDERAL REPUBLIC OF TUCANOS Respondent [BRIEF FOR PETITIONER] Additional Copy

TABLE OF CONTENTS TABLE OF AUTHORITIES...3 QUESTION PRESENTED...6 JURISDICTION...6 STATEMENT OF THE CASE...6 ARGUMENT...9 I. THE MIROKAIENS ARE ENTITLED TO THE SAME PROTECTION AND EQUAL TREATMENT UNDER TUCANOS LAW AS CITIZENS AND INDIGENOUS PEOPLES.... 11 A. Respondent Is Required To Protect the Mirokaien Immigrants On The Basis Of Equality And Non-Discrimination With Citizens.... 12 B. Alternatively, the Mirokaiens Should Be Considered A Tribal Community And Their Rights Should Therefore Be Considered Synonymous With Indigenous Peoples Rights Under The Convention.... 13 II. RESPONDENT S PLANNING AND EXECUTION OF THE CINCO VOLTAS PROJECT ENGENDERED AND CONTINUES TO THREATEN EGREGIOUS AND PERMANENT HARM TO THE COMMUNITIES HUMAN RIGHTS, IN VIOLATION OF THE AMERICAN CONVENTION... 14 A. The Cinco Voltas Plant Project Violates The Right To Property Of Both Communities Under Article 21 Of The American Convention By Ignoring And Disrespecting The Particular Protections To The Communities Use And Enjoyment Of The Land.... 14 B. Committing to Destroying Sacred Territory and Relocating the Communities to Uncertain Lands Severs the Aricapu s Symbiotic Relationship With Their Home and Denies the Conditions for a Dignified Existence, in Violation of the Right to Life Under the American Convention.... 23 C. Intense Physical and Emotional Suffering Stemming From the Discriminatory Violation of the Communities Territorial Rights Violates the Right to Human Treatment. 27 D. Respondent s Planning Process For The Dam Violated The Aricapu s And Mirokaiens Right To Equality Under Article 24 Of The Convention By Improperly Discriminating On The Basis Of Their Ethnicity, National Origin, And Economic Status.. 29 1

E. By Evicting the Communities and Neglecting to Appreciate Their Relationship With the Land, Respondent Violates Their Right to Honor and Privacy under Article 11.... 31 F. Tucanos Violated Article 22 of the American Convention By Expelling The Aricapu And The Mirokaiens From Their Homes and Inhibiting Their Freedom of Movement and Residence.... 32 G. Respondent s Formal Judicial Remedies Are Not Effective for Contesting Human Rights Violations in Accordance With Due Process, in Violation of Articles 8 and 25.... 33 III. CONSTRUCTING CINCO VOLTAS THREATENS TO UNDERMINE THE JUNCTION S TERRITORIAL INTEGRITY AND CONTAMINATE THE ECOSYSTEM, VIOLATING THE RIGHT TO A HEALTHY ENVIRONMENT UNDER ARTICLE 11 OF THE PROTOCOL OF SAN SALVADOR AND HINDERING SUSTAINABLE DEVELOPMENT... 35 REQUEST FOR RELIEF... 38 APPENDIX A... 39 2

TABLE OF AUTHORITIES Treaties & Other International Agreements Organization of American States, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Protocol of San Salvador, entered into force Nov. 16, 1999, O.A.S.T.S. No. 69, 28 ILM 156... 35 International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171... 12, 31 International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 72 ILO Official Bull. 59, 1650 U.N.T.S. 383... 15 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123... 6, 10, 11, 12, 14, 23, 27, 29, 31, 32, 33 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (Sept. 13, 2007)... 36 United Nations International Convention on the Protection of the Rights of All Migrant Workers and Their Families, entered into force July 1, 2003, GA Res. 45/158, Annex, 45 U.N. GAOR Supp. (No. 49A) at 262, UN Doc. A/45/49... 12 Universal Declaration of Human Rights, art. 7, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) ( All are equal before the law and are entitled without any discrimination to equal protection of the law. )... 12 Cases Baena-Ricardo v. Panama, Merits, Reparations and Costs, Judgment, (ser. C) No. 72 (Feb. 2, 2001)... 34 C. v. Belgium (No. 12), 1996-III Eur. Ct. H.R. (1996)... 12 Ituango Massacres v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment, (ser. C) No. 148 (July 1, 2006)... 27 Juridical Condition & Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003)... 11, 34 Kichwa People of Sarayaku v. Ecuador, Case 12.465, Inter-Am. Comm n H.R., http://www.cidh.org (April 26, 2010)... 26 Länsman v. Finland, Comm cn. No. 511/1992 of the Human Rights Comm., 52d Sess., U.N. Doc. CCPR/C/52/D/511/1994, (Nov. 8, 1994)... 24 Las Dos Erres Massacre v. The Republic of Guatemala, Inter-Am. Comm n H.R., Case 11.681 (July 30, 2008)... 34 Maya Indigenous Cmtys. of Toledo District v. Belize, Case 12.053, Inter-Am. Comm'n H.R. Report No. 40/04, Oct 12, 2004, O.A.S. Doc. OEA/Ser.L/V/II.122, doc. 5 rev. 1 (2005)...... 20, 30 Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 70 (Aug. 31, 2001)...... 14, 15, 16, 17, 19, 20, 24 Moiwana Cmty. v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124 (June 15, 2005)... 15, 27, 28 Order on Provisional Measures Requested by the Awas Tingni Cmty., Inter-Am. Ct. H.R. (ser. E) (Sept. 6, 2002)... 38 3

Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion OC-4/84, Inter-Am. Ct. H.R. (ser. A) No. 4 (Jan. 19, 1984)... 30 Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140 (Jan. 31, 2006)... 10 Saramaka People v. Suriname, Interpretation, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 185 (Aug. 12, 2008)... 18 Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172 (Nov. 28, 2007)... 13, 17, 20, 21, 24, 36 Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter- Am. Ct. H.R. (ser. C) No. 146 (March 29, 2006)... 22, 24, 25, 34 SERAC v. Nigeria, Afr. Comm n H.P.R., Communication 155/96 (Oct. 13-27, 2001)... 37 Tibi v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Judgment, (ser. C) No. 114 (Sept. 7, 2004)... 27, 33 Tristán-Donoso v. Panama, Merits, Reparations and Costs, Judgment, (ser. C) No. 193 (Jan. 27, 2009)... 31 Velásquez-Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4 (July 29, 1988)... 10 Xákmok Kásek Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter- Am. Ct. H.R. (ser. C) No. 214 (Aug. 24, 2010)... 25, 27, 28 Yakye Axa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005)...15, 23, 25, 34, 36 Yanomami Cmty.. v. Brazil, Case 7615, Inter-Am. Comm n H.R. Rep. No. 12/85 (March 5, 1985)... 10, 32 Zambranzo-Vélez v. Ecuador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 166 (July 4, 2007)... 24 Reports Justification and Recommendation to the General Assembly of the OAS on the Preparation of an Inter-American Instrument on this Matter, Inter-Am. Comm'n H.R. OEA/Ser.L/V/II.76, doc. 10 (Sept. 18, 1989)...9 Organization of American States, Permanent Council, Comm. on Juridical & Political Affairs, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 6 (Jan. 20, 2011)...... 16, 20, 36 Report on the Situation of Human Rights in Ecuador, Inter-Am. Comm n H.R, OEA/Ser.L/V/II.96, doc. 10 rev. 1 (1997)... 19, 26, 36, 37 Report on the Situation of Human Rights Defenders in the Americas, Inter-Am. Comm n H.R., OEA/Ser.L/V/II.124 (March 7, 2006)... 33 Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Human Rights and Indigenous Issues, Comm'n H.R., E/CN.4/2003/90 (Jan. 21, 2003) (by Rodolfo Stavenhagen)... 21, 35 Other Authorities Alexandre Kiss, Sustainable Development and Human Rights, in Human Rights, Sustainable Development and the Environment 29 (Antonio Augusto Cancado Trindade ed., 1992)... 35 4

Comm. on Econ., Soc. & Cultural Rights (CESCR), General Comment 7, The right to adequate housing (Art. 11(1)): forced evictions), 16th Sess. U.N. Doc. E/1998/22, Annex IV (May 20, 1997)... 31, 32 IMBR Network, International Migrants Bill of Rights, 24 Geo. Immigr. L.J. 3-4 (2009)... 12, 13 International Commission of Jurists, Maastricht Guidelines on Violations of Economic, Social and Cultural Rights, Jan. 26, 1997... 26 James Anaya, Indigenous peoples in international law (2004)... 16 James Hopkins, The Inter-American System and the Rights of Indigenous Peoples: Human Rights and the Realist Model, in Indigenous Peoples and the Law : Comparative and Critical Perspectives (Benjamin J. Richardson et al. eds., 2009)... 19 Jo M. Pasqualucci, The Evolution of International Indigenous Rights in the Inter-American Human Rights System, 6 Hum. Rts. L. Rev. 281 (2006)... 33 Jo M. Pasqualucci, The Right to a Dignified Life (Vida Digna): The Integration of Economic and Social Rights with Civil and Political Rights in the Inter-American Human Rights System, 31 Hastings Int l & Comp. L. Rev. 1, 26 (2008)... 25 Kenneth Roth, Defining Economic, Social, and Cultural Rights: Practical Issues Faced by an International Human Rights Organization, 26 Hum. Rts. Q. 63 (2004)... 25 Richard J. Wilson, Environmental, Economic, Social, and Cultural Rights of the Indigenous Peoples of Chiapas, Mexico, in The Human Rights of Indigenous Peoples (Cynthia Price Cohen ed., 1998)... 14 U.N. Human Rights Comm., General Comment No. 15: The Position of Aliens Under the Covenant, 7th Sess., U.N. Doc. A/41/40 (Nov. 4, 1986)... 12 U.N. Office of the High Comm n for Human Rights, Fact Sheet No. 25: Forced Evictions and Human Rights (May 1996)... 31 5

QUESTION PRESENTED Whether, by not recognizing the legal, constitutional, and human rights of the indigenous Aricapu Community and the Immigrants from the Republic of Mirokai, and by refusing to enjoin construction of the Cinco Voltas Power Plant, which would flood the communities lands, forcibly displace them from their homes, and place them in a vulnerable state that threatens their survival, the Federal Republic of Tucanos is responsible for violating Articles 4 (Right to Life), 5 (Humane Treatment), 8 (Due Process), 11 (Honor and Privacy), 21 (Property), 22 (Freedom of Movement and Residence), 24 (Equality), and 25 (Judicial Protection), in accordance with Article 1(1) (Obligation to Respect Rights) of the American Convention on Human Rights (the American Convention); the obligation to protect immigrants, in accordance with Article 1(1); and Article 11 (Right to a Healthy Environment) of the Protocol of San Salvador. JURISDICTION The Inter-American Court of Human Rights is competent to hear cases regarding the interpretation and application of provisions of the American Convention, provided that the States Parties recognize such jurisdiction. Organization of American States, American Convention on Human Rights, art. 62(3), Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention]. Respondent ratified the American Convention on August 4, 1991, recognized the Court s concurrent and advisory jurisdiction in July 1992, before the alleged violations and has ratified most United Nations treaties pertaining to human rights. STATEMENT OF THE CASE In late March 2010, LAX, a construction company, commenced work on the Cinco Voltas Hydroelectric Power Plant at the junction of the Betara and Corvina Rivers (the Junction) in the Federal Republic of Tucanos (Respondent). Authorities from the National Institute for 6

Renewable Energy and Defense of the Environment (NIRED) had approved an environmental impact report (EIR) prepared and published by NIRED and LAX in January 2010. The anticipated environmental destruction resulting from the creation of a massive lake with a 1450 km 2 surface area would forcibly displace the region s inhabitants, the indigenous Aricapu and the immigrants from Mirokai, who vehemently protested the EIR s approval. The Aricapu, one of the oldest indigenous groups in Tucanos, live along the Betara in fifteen villages comprising 1550 people. This homeland is considered sacred. They subsist on hunting, local sustainable agriculture and a long-standing relationship with the local government, which provides basic health and education services. The Indigenous Land Recognition Act of 1975 recognized the Aricapu s collective land rights, granted them property title, and guaranteed ownership over the land. The 5000 Mirokaiens living by the Corvina have already suffered the devastation of their native country by tsunamis in 1970, which prompted their move to Tucanos. They derive income from fishing and selling products manufactured from natural resources in local markets. The Tucanese Constitution guarantees immigrants fair and equal treatment and the Mirokaiens registered with Tucanese National Agency for Foreigners Aid (NAFA) and acquired property title to their settled lands around 1980. According to Respondent, in accordance with the National Evacuee Policy (NEP) of 1992, the communities would be relocated to a plot of land equivalent to the size previously inhabited and would receive sufficient economic resources to restart their lives. Specifics regarding the land and compensation were and remain undefined. Respondent s investment in industrial and economic growth in the 1990s shifted the country from an agricultural economy. A predicted dearth of energy sources that would cause electrical blackouts led Respondent to choose to construct a hydroelectric plant. Studies carried out in 1980 thirty years ago determined that the Junction was ideal because its high volume 7

of water would allow the plant to produce 11000 megawatts of energy/hour. Article 67 of the Tucanese Bidding Law, which requires publicly-financed projects to use bidding procedures and governmental approval of expenses, and Law 8090/91 regulate Cinco Voltas s construction. Law 8090/91 established the Tucanese Environmental Policy of 1991 (TEP), created NIRED, and governs the implementation of infrastructure projects. See Appendix A (detailing steps). The EIR was published after LAX was selected and Congress appropriated resources in January 2010. The Aricapu and Mirokaiens immediately complained that they were inadequately and inappropriately consulted. The damming, regardless of compensation, would irreparably sever their intimate ties to their homes. On February 20, Respondent promised to reevaluate the relocation and work together with the affected populations to find a mutually beneficial solution. However, NIRED did not conduct supplemental analyses or attempt to reduce expected impacts, and approved the EIR on March 15 without more extensive discussions with the communities. Despite a belief that courts treated them discriminatorily and did not respect their property rights, the communities sought an injunction in the local courts, alleging property rights violations, discriminatory treatment, impermissible environmental damage, and psychical and psychological harm due to the destruction of sacred territory. On May 14, 2010, the court found the claim lacked merit, but the appeals court enjoined construction on June 30. On appeal to the Supreme Court, which invalidated the injunction on August 2, Respondent argued that the victims offered no evidence of irreversible negative impacts due to the construction or relocation; that the injunction violated its sovereignty over Tucanos natural resources; and that the countrywide economic benefits outweighed negative impacts on the Aricapu and Mirokaiens. On October 20, 2010, Sustainable Planet and the Institute for the Conservation of Indian Heritage ( Petitioners ) filed a petition on behalf of the Aricapu and Mirokaiens before the Inter- 8

American Commission for Human Rights (the Commission), alleging violations of the American Convention. Respondent disavowed human rights violations and asserted that legal requirements and judicial and administrative procedures were strictly followed. The Commission failed to broker an amicable settlement and found that Respondent violated Articles 4, 5, 8, 21, 22, and 25, in accordance with Article 1(1) of the American Convention. However, it referred the case to this Court in accordance with Article 45(2) of its Rules of Procedure considering the situation s gravity. Petitioners endorse the Commission s submission and restate our initial contention regarding Respondent s violations of its obligations under the American Convention. ARGUMENT The Inter-American region s indigenous and tribal populations are vulnerable as regards the physical, psychological, spiritual, economic, legal, and institutional aspects of life, and the preservation and development of indigenous cultures and rights is not merely an ethical obligation of States in reparation for[] the abuses and deprivations that were forced upon them for centuries. Justification and Recommendation to the General Assembly of the OAS on the Preparation of an Inter-American Instrument on this Matter, Inter-Am. Comm n H.R., OEA/Ser.L/V/II.76, doc. 10 (Sept. 18, 1989). Rather, it is a socio-economic necessity for States to draw upon these peoples as a source of wisdom, customs, and values for the building of modern societies through the exploitation of available natural resources. Id. However, threatening development projects are often built without their consult, even when these projects could be much more effective if they were adequately synchronized with the knowledge and customs of the indigenous peoples and respectful of their rights. Id. Thus, particularly in light of social, economic, and political abuse and marginalization, and because of moral and humanitarian principles, special protection for indigenous populations constitutes a sacred 9

commitment of the states. See Yanomami Cmty. v. Brazil, Case 7615, Inter-Am. Comm n H.R. Rep. No. 12/85, 8 (March 5, 1985). Article 1(1) of the American Convention requires States to undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, language, religion, national or social origin, economic status, birth, or any other social condition. American Convention, art. 1(1). This imposes the fundamental obligation to respect and guarantee rights, so that any violation of the human rights that can be attributed to the act or omission of any public authority is attributable to the State, which involves its international responsibility in the terms established in the Convention and according to general international law. Pueblo Bello Massacre v. Colombia, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 140, 111 (Jan. 31, 2006). Further, in Velásquez- Rodríguez v. Honduras, Merits, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 4, 176 (July 29, 1988), this Court held that when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention, it fails to comply with its duty to ensure the free and full exercise of those rights by those within its jurisdiction. Respondent s failure to respond effectively and justly to the concerns of the Aricapu and Mirokaiens regarding the Cinco Voltas construction, contrary to its positive and negative duties under the American Convention, reflects a typical systemic failure in the Americas that is becoming increasingly problematic as States desires for resource exploitation clash with rights the American Convention and this Court have guaranteed and which the States have promised to indigenous and subsistence communities. The Mirokaiens immigrant status is of no moment to the realization of their rights. The disregard of the property rights of both communities; the 10

severance of the Aricapu from their ancestral lands, the anticipated exposure to subhuman conditions that deny access to conditions supporting a dignified existence, the intense physical and emotional suffering stemming from the discriminatory violation of the communities territorial rights, the eviction of the communities and the disrespect of their relationship with their land, the nonexistence of effective judicial remedies with guarantees of due process, and the contamination and undermining of the ecosystem are all interrelated. Thus, by virtue of its actions surrounding the construction of the Cinco Voltas dam, the Respondent violated 1) its obligation to protect immigrants, in accordance with Article 1(1); 2) the rights to life, human treatment, fair trial, honor, property, freedom of movement and residence, equality, and judicial protection of the American Convention, in conjunction with Article 1(1); and 3) the right to a healthy environment of the Protocol of San Salvador, warranting this Court finding Tucanos liable for human rights violations under the American Convention and meriting the imposition of punitive and protective measures. I. THE MIROKAIENS ARE ENTITLED TO THE SAME PROTECTION AND EQUAL TREATMENT UNDER TUCANOS LAW AS CITIZENS AND INDIGENOUS PEOPLES. The Mirokaiens have equal rights under Tucanese law, just like the Aricapu and Tucanese citizens. Therefore, all application of rights in the American Convention should be applied to them equally. Indeed, this Court has proclaimed the right to equal treatment as a preemptory norm. See Juridical Condition & Rights of the Undocumented Migrants, Advisory Opinion OC-18/03, Inter-Am. Ct. H.R. (ser. A) No. 18 (Sept. 17, 2003) ( [T]he principle of equality before the law, equal protection before the law and non-discrimination belongs to jus cogens, because the whole legal structure of national and international public order rests on it 11

and it is a fundamental principle that permeates all laws. ); see also C. v. Belgium (No. 12), 1996-III Eur. Ct. H.R., 38 (1996). A. Respondent Is Required To Protect the Mirokaien Immigrants On The Basis Of Equality And Non-Discrimination With Citizens. The Tucanese Constitution guarantees fair and equal treatment for the immigrant population. A fundamental tenet of human rights law is that all persons are entitled to equality before and protection of the law. See American Convention, art. 24 (Right to Equal Protection); Universal Declaration of Human Rights, art. 7, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948) ( All are equal before the law and are entitled without any discrimination to equal protection of the law. ); International Covenant on Civil and Political Rights, art. 26, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinafter ICCPR]. This right extends to migrant workers, their families, and other non-citizens. See, e.g., United Nations International Convention on the Protection of the Rights of All Migrant Workers and Their Families, art. 18, entered into force July 1, 2003, GA Res. 45/158, Annex, 45 U.N. GAOR Supp. (No. 49A) at 262, UN Doc. A/45/49 ( Migrant workers and members of their families shall have the right to equality with nationals of the State concerned before the courts and tribunals. ). International precedent requires Respondent to equally apply national legislation to the Mirokaien immigrants and Tucanese citizens, and the legislation must not be discriminatory. The prohibition against discriminatory treatment of migrants is a fundamental and complementary principle of the international human rights regime. IMBR Network, International Migrants Bill of Rights, 24 Geo. Immigr. L.J. 3-4, at 421 (2009); see ICCPR, arts. 2(1), 26. U.N. Human Rights Comm. [UNHRC], General Comment No. 15: The Position of Aliens Under the Covenant, 1-2, 7th Sess., U.N. Doc. A/41/40 (Nov. 4, 1986) ( In general, the rights set forth in the [ICCPR] apply to everyone, irrespective of reciprocity, and irrespective of 12

his or her nationality or statelessness. Thus the general rule is that aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant. ). This does not mean that migrants bear all the same rights as nationals, but instead stresses that the Mirokaiens and other migrants enjoy the same protection as Tucanese nationals for all coextensive rights. IMBR Network, supra, at 422. In addition, the right to equality, and specifically equality before the law, is the right to be treated equally and in a non-arbitrary manner, even when the direct legal consequence of a law or action does not implicate an independent human right. Id. at 422 (citing Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 465 (2d ed. 1993)). Thus, as a general rule, equal factual situations involving migrants must be treated consistently with those involving citizens, as well as other migrants. Id. (citing U.N. Econ. & Soc. Council [ECOSOC], Sub-Comm n on Human Rights, Sub-Comm n on the Protection of Human Rights, Prevention of Discrimination: The Rights of Non-Citizens, 21 23, U.N. Doc. E/CN.4/Sub.2/2003/23 (May 26, 2003)). Therefore, Respondent must treat the Mirokaiens as it would its own citizens and not arbitrarily designate their group to bear a disproportionate burden of Tucanese development. B. Alternatively, the Mirokaiens Should Be Considered A Tribal Community And Their Rights Should Therefore Be Considered Synonymous With Indigenous Peoples Rights Under The Convention. The Mirokaiens are a tribal community that subsists on its land and relies on fishing and small handicraft. The Court has held that tribal communities merit the same rights as indigenous peoples and have the same special attachment to their lands. See Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 172, 96 (Nov. 28, 2007) (justifying application of jurisprudence on indigenous peoples to tribal communities because of their longstanding use and occupation of the land and resources necessary for their physical and cultural survival and recognizing the state s obligation to 13

adopt special measures to recognize, respect, protect and guarantee the communal property right of members of the tribal community to said territory ). Thus, the Mirokaiens merit similar protections from this Court as the Aricapu. II. RESPONDENT S PLANNING AND EXECUTION OF THE CINCO VOLTAS PROJECT ENGENDERED AND CONTINUES TO THREATEN EGREGIOUS AND PERMANENT HARM TO THE COMMUNITIES HUMAN RIGHTS, IN VIOLATION OF THE AMERICAN CONVENTION. A. The Cinco Voltas Plant Project Violates The Right To Property Of Both Communities Under Article 21 Of The American Convention By Ignoring And Disrespecting The Particular Protections To The Communities Use And Enjoyment Of The Land. Respondent granted the Aricapu and the Mirokaiens property title to the lands they live on in 1975 and 1980, respectively. Article 21 of the American Convention provides that [e]veryone has the right to the use and enjoyment of his property though [n]o one shall be deprived of his property, except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law. American Convention, art. 21. The potential subordination of this right to the interest of society must be read in conjunction with the right in Article 11(2), which prohibits arbitrary or abusive interference with one s private life or home. See Richard J. Wilson, Environmental, Economic, Social, and Cultural Rights of the Indigenous Peoples of Chiapas, Mexico, in The Human Rights of Indigenous Peoples 226 (Cynthia Price Cohen ed., 1998). The right to property encompasses collective and individual property rights. See, e.g., Mayagna (Sumo) Awas Tingni Cmty. v. Nicaragua, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 70, 148-49 (Aug. 31, 2001) (requiring recognition of the communal form of property tenure characteristic of indigenous peoples). The Aricapu and Mirokaiens deserve to have their property rights respected, rather than summarily overridden. 14

i. Indigenous and tribal or subsistence peoples have special property rights because of their spiritual connection to their land. As indigenous and tribal peoples, the Aricapu and the Mirokaiens right to property raises special considerations stemming from their particularities and dependence on a healthy environment. See id. ( [T]he close ties of indigenous people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival ); see also Yakye Axa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 125 (June 17, 2005); International Labour Organisation, Convention Concerning Indigenous and Tribal Peoples in Independent Countries, arts. 7, 15, 19, June 27, 1989, 72 ILO Official Bull. 59, 1650 U.N.T.S. 383 [hereinafter ILO No. 169]. Their spiritual, special and longstanding connection to their lands accords indigenous people a right of return to their lands if they have been forcibly removed from them. See, e.g., Yakye Axa, (ser. C) No. 125, at 154-56 (holding that Paraguay had violated the right to property of Article 21 by not effectively securing the Yakye Axa s rights to their traditional lands and ordering Paraguay to return the land). In this case, the planned Cinco Voltas dam will change the territory so substantially that the Aricapu and the Mirokaiens will never be able to return to the lands they have traditionally occupied. This permanence should elevate the special protections accorded to them in the development planning process. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which they must fully enjoy, even to preserve their cultural legacy and transmit it to future generations. Awas Tingni, (ser. C) No. 70, at 149. See also Moiwana Cmty. v. Suriname, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 124, 132-33 (June 15, 2005) (applying Article 21 jurisprudence to the Moiwana tribal community because they had a profound and all 15

encompassing relationship to their ancestral lands that was centered on the community as a whole ). In Awas Tingni, the Court found that Nicaragua had not met its obligations under its Constitution and Article 21 of the Convention by failing to recognize and safeguard the Awas Tingni s rights to the lands they traditionally occupied and used by allowing logging concessions to be distributed without consultation with and consent from the indigenous people. Awas Tingni, (ser. C) No. 70, at 153-55; see also Organization of American States, Permanent Council, Comm. on Juridical & Political Affairs, Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples, Record of the Current Status of the Draft American Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 6, art. 18(3)(i) (Jan. 20, 2011) [hereinafter Draft American Declaration] (declaring that, where property rights pre-date the State s creation, the State shall recognize the titles as permanent, exclusive, inalienable, imprescriptible and indefeasible and only changeable through mutual consent in full knowledge). 1 Like in Awas Tingni, the Aricapu have resided in their lands at the Junction since before Tucanos was a state, and stayed in those lands even through a violent dispute between Tucanos and its neighboring state, Araras. The Aricapu consider this land sacred, and these vital lands 1 Though the Declaration is only a draft, in Dann v. United States, the Inter-American Commission affirmed that the basic principles reflected in many of the provisions of the proposed declaration, including aspects of [its] article XVIII, reflect general international legal principles developing out of and applicable inside and outside of the Inter- American system and to this extend are properly considered in interpreting and applying the provisions of the American Declaration in the context of indigenous peoples. James Anaya, Indigenous Peoples in International Law 284 (2004) (quoting Dann v. United States, Case 11.140, Inter-Am. C.H.R., Report No. 75/02, OEA/Ser.L/V/II.117, doc. 1 rev.1, 129). Therefore, this Court should consider the broad rights spelled out in the Draft American Declaration when adjudicating intrusions onto indigenous property, even for development purposes. 16

will be submerged and destroyed if the planned dam materializes, in violation of their special right to the land they are spiritually connected to. The Mirokaiens have remained in the same subsistence settlement since their migration in the early 1970s. Thus, the Aricapu and the Mirokaien have, by the fact of their very existence, [ ] the right to live freely in their own territory [because] the close ties of [indigenous and subsistence] people with the land must be recognized and understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. Awas Tingni, (ser. C) No. 70, at 149. Even where society has an interest in indigenous lands, this interest is not an absolute override of the indigenous and subsistence peoples rights to their property. ii. Respondent s subordination of the communities property rights to development was unjustified, and Respondent did not abide by the requisite safeguards established for the right to property. Although the protection of the right to property under Article 21 is not absolute, see Saramaka, (ser. C) No. 172, at 127, the primacy of society s interests is not absolute either. In determining whether and to what extent the State may grant concessions for the exploration and extraction of natural resources found on and within indigenous or tribal territory, the Court has said that the right to use and enjoy their territory would be meaningless in the context of indigenous and tribal communities if it were not connected to the natural resources that lie on and within the land. Id. at 122. Thus, the natural resources protected under Article 21 are those traditionally used and necessary for the survival, development, and continuation of such people s way of life. Id. In order to subordinate the right to property to resource development projects, must meet four criteria: (1) restrictions are previously established by law; (2) the project must be necessary; (3) it must be proportional to the suffering that will come to the people s property rights; and (4) it must have aim of achieving a legitimate objective in a democratic 17

society. Id. at 127. Tellingly, the Saramaka Court stressed that restrictions on indigenous property rights must not amount to a denial of their traditions and customs in a way that endangers the very survival of the group and its members. Id. at 128. survival in this context signifies much more than physical survival, but also survival as tribal people with a distinct cultural identity, social structure, economic systems, customs, and way of life. Saramaka People v. Suriname, Interpretation, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 185, 37 (Aug. 12, 2008). First, the Indigenous Land Recognition Act of 1975 guaranteed the Aricapu s ownership of their land and granted them property titles. Thus, restrictions on this right as against the Aricapu are unclear. Even if the Mirokaiens property rights were more limited, the allencompassing effects of allowing construction of the dam on that ground would abrogate the Aricapu s rights regardless. Second, while fulfilling energy needs of a growing country is a legitimate objective and predicted blackouts certainly make some additional power plants necessary, it is not clear, given the outdated suitability study, that the Cinco Voltas power plant necessarily needs to be constructed on Aricapu and Mirokaien property. Third, the Aricapu and the Mirokaien use the land for hunting, gathering, and the maintenance of ancestral customs. Their ability to use and enjoy their land would be rendered meaningless by its submersion under the lake envisioned for the Cinco Voltas Dam. The Aricapu have never lived elsewhere, and it is unclear whether they would be able to adapt. While the compensatory land plots are still undetermined, it is unlikely that the geographic and agricultural features of their fertile land at the Junction could be replicated elsewhere. Their survival as a group, which depends on a distinct social structure, culture and way of life depend on hunting, cultivation and harvest, will be threatened by uprooting them for resettlement in land that is likely to have different terrain, soil, animal life, water access, and no ties to their traditions. Similarly, the Mirokaiens are a 18

coastal people who have been able to adapt successfully to Tucanos largely because they could maintain their relationship with water and could continue fishing for a living. Revoking their property rights and promising to resettle them on equivalent land which may not provide similar access to water and the resources necessary to maintain their economic vitality and lifestyle renders the rights they were granted illusory and is not proportional. Thus, Respondent has not demonstrated that its needs and plans justify subordinating the groups right to property. Other human rights obligations also limit the ability of the Tucanese interests to encroach upon Aricapu and Mirokaien property rights. In holding that Nicaragua violated the right to property, the Court considered but dismissed the argument that the country s interest in development through logging nullified the indigenous people s right to their property. See Awas Tingni (ser. C) No. 70, at 153-54. The Court examined Article 21 s societal interest prong in conjunction with Article 29(b), which provides that no provision of the Convention shall be interpreted as restricting the enjoyment or exercise of any right or freedom recognized by virtue of the laws of any State Party or by virtue of another convention to which one of the said states is a party. Id. at 147 (quoting American Convention, art. 29(b)). The Court carefully crafted a broad definition of property to encompass indigenous communal land tenure as being consistent with the aims and objects of Article 29, rather than unequivocally subject to the societal interests exception. James Hopkins, The Inter-American System and the Rights of Indigenous Peoples: Human Rights and the Realist Model, in Indigenous Peoples and the Law : Comparative and Critical Perspectives 156 (Benjamin J. Richardson et al. eds., 2009); see also Report on the Situation of Human Rights in Ecuador, Inter-Am. Comm n H.R, OEA/Ser.L/V/II.96, doc. 10 rev. 1 (1997) [hereinafter Ecuador Report] (recognizing that Article 29 implies considering Ecuador s competing commitments to respect the right of indigenous peoples to collectively or individually 19

own land they have traditionally occupied under the ILO Indigenous and Tribal Populations Convention No. 107, Article 11); Maya Indigenous Cmtys. of Toledo District v. Belize, Case 12.053, Inter-Am. Comm'n H.R. Report No. 40/04, Oct 12, 2004, O.A.S. Doc. OEA/Ser.L/V/II.122, doc. 5 rev. 1 at 727 (2005) (finding that Belize violated the right to property of Article 23 of the American Declaration by not recognizing and protecting Maya customary land tenure and by granting, without Maya consent, logging and oil development concessions covering Maya traditional lands). Therefore, societal interest cannot be used as a blanket exception to the right to property when that would interfere with rights granted elsewhere, such as in other articles of the Convention or in international instruments ratified by the State, such as the ILO Convention 169. Respondent has a duty to take special measures to defend, protect and advance property rights for the Aricapu and the Mirokaiens by seeking their consult and consent for development. Even where societal interest outweighs the right to indigenous property, the State does not have free reign in the process of engaging in the development project. Rather, it must: abide by safeguards; ensure effective participation; guarantee the group will receive a reasonable benefit; and ensure that the project does not move forward unless and until independent and technically capable entities, with the State s supervision, perform a prior environmental and social impact assessment. Saramaka, (ser. C) No. 172, at 129; Awas Tingni, (ser. C) No. 70, at 153 (holding that, in spite of far reaching land rights under Nicaraguan law, it was a violation of indigenous peoples rights in fact to not be consulted regarding the development plans in their main settling area); see also Draft American Declaration, art. 24(7) (asserting that where the State has rights over other resources on the lands or the subsoil, it must establish or maintain procedures for the participation of the peoples concerned in determining whether the interests of these people would 20

be adversely affected and to what extent, before undertaking or authorizing any program for planning, prospecting or exploiting existing resources on their lands). Beyond a duty to consult, Tucanos had a duty to obtain consent for construction because the dam would destroy all of Aricapu and Mirokaien property. Regarding large-scale development or investment projects that would have a major impact within [indigenous] territory, the State has a duty, not only to consult with the [indigenous people], but also to obtain their free, prior, and informed consent, according to their customs and traditions. Saramaka, (ser. C) No. 172, 134 (citing Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples, Human Rights and Indigenous Issues, 2, Comm'n H.R., E/CN.4/2003/90 (Jan. 21, 2003) (by Rodolfo Stavenhagen) [hereinafter Stavenhagen Report]). According to Stavenhagen, [w]herever [large-scale projects] occur in areas occupied by indigenous peoples [t]he principal human rights effects of these projects for indigenous peoples relate to loss of traditional territories and land, eviction, migration and eventual resettlement, depletion of resources necessary for physical and cultural survival, [and] destruction and pollution of the traditional environment. Id. Thus, [f]ree, prior, and informed consent is essential for the [protection of] human rights of indigenous peoples in relation to major development projects. Id. at 66. The Saramaka Court determined that the level of consultation that is required is obviously a function of the nature and content of the rights of the Tribe [or People] in question, in addition to the required consultation and free, prior and informed consent when planning development or investment projects that may profoundly impact their property rights of indigenous communities. Saramaka, (ser. C) 172, at 137. Suriname violated Article 21 because it took lands for resource development, which had a severe negative impact on the Saramaka, without conducting or supervising the environmental and social impact analysis, instituting adequate safeguards, or 21

seeking consent or allowing for the effective participation of the Saramaka in the decisionmaking process. Id. at 154. Tucanos did not ensure the participation of the Aricapu or the Mirokaiens until after construction plans for their land had been completed and published. Moreover, it should have known that the groups would not have access to this information online absent being made explicitly aware of it, given their relative isolation from much of the development part of the country. Neither group was consulted during the preparation of the EIR by LAX or NIRED. Respondent was made aware of this shortcoming immediately upon the EIR s publication, yet did nearly nothing. The promise to re-evaluate the EIR and relocation in consultation with the groups was largely symbolic. NIRED approved the EIR less than one month after first meeting with the communities representatives and made no modifications to the document to address concerns regarding Cinco Voltas construction, which began shortly thereafter. Tucanos also violated the communities rights by not ensuring they benefit from the project. Indigenous and subsistence peoples whose land is taken by for any legitimate societal interest must benefit from any development or investment project equivalently with the loss they suffer and have an inherent right to compensation for total deprivation of property or from deprivation of regular use and enjoyment. See id. at 138-40, 153 (noting that, according to the Committee on the Elimination of Racial Discrimination and the Special Rapporteur, States must ensure the equitable sharing of benefits to be derived from such exploitation occurs) (internal citations omitted). Benefit sharing is a form of reasonable equitable compensation necessitated by the exploitation of traditionally owned lands and of natural resources necessary for survival. Id. at 140; accord Sawhoyamaxa Indigenous Cmty. v. Paraguay, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 146, 128 (March 29, 2006) ( [M]embers of 22

indigenous peoples who involuntarily lost possession of their lands, which have been legitimately transferred to innocent third parties, have the right to recover them or to obtain other lands of equal size and quality) (emphasis added); Yakye Axa (ser. C) No. 125, at 217 (mandating that if for objective and well founded reasons, the claim to ancestral territory... is not possible, the State must grant them alternative land, chosen by means of a consensus with the community, in accordance with its own manner of consultation and decision-making, practices and customs ). Because Respondent has only vaguely promised to guarantee equivalent land to the Aricapu and Mirokaien, Respondent has not made any provisions for ensuring these lands are remotely comparable to their current property or have access to equivalent and sufficient resources in the long term. Further, it has not made any provision to provide either community any of the cost savings or benefits that might result from producing power domestically through the dam, rather than importing it. Therefore, for the aforementioned reasons, Respondent has clearly violated the right to property under Article 21 of the American Convention, in accordance with Article 1(1). B. Committing to Destroying Sacred Territory and Relocating the Communities to Uncertain Lands Severs the Aricapu s Symbiotic Relationship With Their Home and Denies the Conditions for a Dignified Existence, in Violation of the Right to Life Under the American Convention. Respondent s commitment to damming the Junction comes at the expense of the right to life of the Aricapu and Mirokaiens, who would witness their homes destruction and suffer relocation to unknown regions. A prerequisite for the enjoyment of other rights, Article 4(1), in accordance with Article 1(1), states, Every person has the right to have [her] life respected and protected by law from the moment of conception, and [n]o one shall arbitrarily be deprived of her life. American Convention, art. 4(1). According to the Court, States have a positive duty to adopt all necessary measures to create a legal framework that deters any possible threat to the 23

right to life and guarantee the right to unimpeded access to conditions for a dignified life by adopting measures to protect and preserve the right to life of individuals and groups. E.g., Zambranzo-Vélez v. Ecuador, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 166, 80-81 (July 4, 2007). The approval of the EIR and Respondent s opposition to the communities legal efforts will lead to the destruction of the territory that encompasses the Aricapu s sacred ancestral lands and maintains their cultural identity and the communities dignified existence, impermissibly extinguishing the foundations of the right to life. An indigenous community s relation to its ancestral lands is not merely a matter of possession but is the basis of its culture, spiritual life, integrity, and survival. Awas Tingni, (ser. C) No. 70, at 149; see Saramaka, (ser. C) No. 172, at 128 (permissibility of restrictions on indigenous property rights depends on whether they deny traditions and customs in a way that endangers the very survival of the group ); accord Länsman v. Finland, Comm cn. No. 511/1992 of the Human Rights Comm., 52d Sess., U.N. Doc. CCPR/C/52/D/511/1994, 9(4) (Nov. 8, 1994) (allowing development activities that limit rights of minority cultures if they do not fully extinguish their way of life). Given this right s close and unavoidable relationship with cultural identity, depriving indigenous peoples of their symbiotic relationship with their lands denies their very right to life. Sawhoyamaxa, (ser. C) No. 146, at 28 (Trindade, J., concurring). Cinco Voltas construction will displace the Aricapu, irreparably sever a symbiotic relationship with their homeland, and prevent the survival of traditional practices in favor of a discriminatory prioritization of economic development. The absence of legal protections for indigenous rights in the TEP and the inadequate evacuation policy demonstrate Respondent s failure to fulfill the duty to prevent arbitrary deprival of life, in violation of Article 4. 24