2011 INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW MOOT...

Team Number: 2058

2011 INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW

MOOT COURT COMPETITION

INTER-AMERICAN COURT OF HUMAN RIGHTS

Indigenous Population Aricapus and Immigrants of the Republic of Mirokai

Applicants

v.

The Federal Republic of Tucanos

Respondent

MEMORIAL FOR THE STATE

1

TABLE OF CONTENTS

INDEX OF AUTHORITIES .....................................................................................................4 STATEMENT OF FACTS .......................................................................................................7

STATEMENT OF JURISDICTION ...................................................................................... 14

I. THE REPUBLIC OF TUCANOS IS SUBJECT TO THE JURISDICTION OF

THE INTER-AMERICAN SYSTEM UNDER THE ORGANIZATION OF

AMERICAN STATES (OAS). ................................................................................ 14

PRELIMINARY OBJECTIONS ............................................................................................ 15

II. THE REPUBLIC OF TUCANOS OBJECTS TO THE APPLICANTS’

PETITION FOR REDRESS UNDER ARTICLE 11 OF THE SAN SALVADOR

PROTOCOL BECAUSE THE RIGHT TO A HEALTHY ENVIRONMENT IS A

NON-ACTIONABLE RIGHT. ............................................................................... 15

LEGAL ANALYSIS ................................................................................................................ 15

III. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLE 21 IN

RELATION TO THE INDIGENOUS ARICAPU POPULATION OR THE

MIROKAIEN IMMIGRANT POPULATION. ..................................................... 15

A. Tucanos subordinated the right to property to the interest of society upon

just compensation and in accordance with Tucanese law. ............................ 16

1. Constructing a large dam for hydropower generation is a compelling and

justifiable social interest. .......................................................................... 16

a) The project is justified, feasible, and prudent. ................................... 17

b) Tucanos’ development policies are non-discriminatory. .................... 17

2. Tucanos afforded just compensation to evacuees as previously guaranteed

by law. ...................................................................................................... 17

B. Tucanos complied with special safeguards that protect the indigenous

Aricapus population’s property rights. .......................................................... 18

1. Procuring renewable energy sources to meet critical energy deficits is an

imperative interest. ................................................................................... 18

a) Constructing a power plant to prevent large-scale blackouts is

necessary. ......................................................................................... 19

b) Relocating 6,550 individuals to construct critical energy infrastructure

is proportionate to the needs of Tucanos’ 50 million citizens. ........... 20

2

c) Meeting international development obligations is a legitimate

objective in a democratic society....................................................... 20

2. Tucanos did not deny survival of the Aricapus as indigenous peoples. ...... 21

a) The Aricapus effectively participated in the development plans, short

of exercising a nonexistent right under international law to veto the

project. ............................................................................................. 22

b) The Aricapus will share in the benefit of the Cinco Voltas Power

Plant. ................................................................................................ 24

c) Tucanos assessed environmental and social impacts prior to granting a

permanent concession. ...................................................................... 25

C. The Mirokaien immigrants are a non-tribal minority group and thus not

afforded the heigthened protections guaranteed to the indigenous Aricapu

population........................................................................................................ 26

IV. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLES 4, 5, 11, OR

22 IN RELATION TO THE INDIGENOUS ARICAPU POPULATION OR THE

MINORITY MIROKAIEN POPULATION. ......................................................... 27

A. Tucanos guaranteed the right to life and physical integrity of the Aricapus

and the Mirokaiens in accordance with Articles 4 and 5. .............................. 27

1. Tucanos provided legal protection and title of the Aricapus’ land and

guaranteed the Aricapus’ cultural survival. .............................................. 28

2. Tucanos did not deny dignity of life to or cause death of the Mirokaiens. .. 29

B. Tucanos guaranteed privacy and honor for the Aricapus and Mirokaiens in

accordance with Article 11. ............................................................................ 30

1. Tucanos did not arbitrarily deprive the Aricapus or the Mirokaiens of their

property. ................................................................................................... 30

C. Tucanos guaranteed freedom of movement and residence for the Aricapus

and Mirokaiens in accordance with Article 22. ............................................. 30

1. The objective of Tucanos’ environmental legislation is a legitimate public

interest. ..................................................................................................... 31

2. The restrictions on movement were in designated zones and effected without

violence. ................................................................................................... 31

3

V. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLES 8, 24, OR 25

IN ADMINISTRATIVE OR JUDICIAL PROCEEDINGS FOR THE

INDIGENOUS ARICAPU POPULATION OR THE MIROKAIEN

IMMIGRANT POPULATION............................................................................... 32

A. Tucanos complied with the principles of equal protection by regulating

NIRED’s discretionary power with clear, standardized administrative

procedures. ...................................................................................................... 33

B. Tucanos complied with the principles of due process of law in administrative

proceedings by adhering to the established protections. ............................... 34

1. Tucanos ensured the rights to representation, notification, and a reasoned

decision and complied with publicity requirements for administrative

information. .............................................................................................. 34

2. Tucanos respected the reasonable time principle and the right to judicial

review of administrative decisions............................................................. 36

C. Tucanos complied with the principles of due process of law in judicial

proceedings by ensuring equity of arms, an appropriate scope of judicial

review, and a reasoned decision on the merits within a reasonable time. ..... 36

1. The Aricapus and Mirokaiens exercised their rights and defended their

interests effectively and with procedural equality throughout the entire

judicial process. ........................................................................................ 36

2. Tucanos provided basic judicial supervision of the lawfulness and

reasonableness of the administrative decisions. ........................................ 37

3. Tucanos’ Supreme Court provided a reasoned decision on the merits in

accordance with the reasonable time principle.......................................... 38

D. Tucanos ensured judicial proceedings were conducted by a competent,

independent, and impartial tribunal. ............................................................. 40

REQUEST FOR RELIEF ....................................................................................................... 41

4

INDEX OF AUTHORITIES

TREATIES AND OTHER INTERNATIONAL AGREEMENTS

O.A.S. Charter Article 33 .................................................................................................................................. 20

Article 34 .................................................................................................................................. 20

American Convention on Human Rights, (Nov. 22, 1969), O.A.S.T.S. No. 36 Article 1(1) ......................................................................................................................... 32, 40

Article 4 .................................................................................................................................... 27

Article 5 .............................................................................................................................. 27, 28

Article 8 .............................................................................................................................. 32, 40

Article 11 .................................................................................................................................. 30

Article 16 ............................................................................................................................ 22, 23

Article 21 ................................................................................................................ 16, 17, 18, 31

Article 22 .................................................................................................................................. 31

Article 24 .................................................................................................................................. 32

Article 25 ............................................................................................................................ 33, 41

Article 61 .................................................................................................................................. 15

Article 62 .................................................................................................................................. 15

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"), art.

1, Nov. 16, 1999, A-52 Article 11 (Healthy Environment) ............................................................................................. 15

Proposed American Declaration on the Rights of Indigenous Peoples, Feb. 26, 1997,

OEA/Ser/L/V/.II.95 Doc.6. ....................................................................................................... 22

American Declaration on the Rights and Duties of Man, (April 22, 1948), O.A.S.

Res. XXX .................................................................................................................................. 23

United Nations U.N. Office of the High Commissioner for Human Rights and U.N. Environment Programme,

Expert Seminar on Human Rights and the Environment, Jan. 14-16, 2002, Geneva:

Background Paper No. 2, E/CN.4/2002/109 (Jan 16, 2002). .................................................. 21

U.N. Human Rights Council, Human Rights and Climate Change, at 2, U.N. Doc.

A/HRC/10/L.30 (Mar. 20, 2009) ........................................................................................... 25

U.N. Permanent Forum on Indigenous Issues (UNPFII), Who are Indigenous Peoples?

(2006) ................................................................................................................................... 26

U.N. Declaration on the Rights of Indigenous Peoples, G.A. Res 61/295, art. 32, U.N. Doc

A/C.3/61/L.18/REV.1 (Oct. 2, 2007). .................................................................................... 22

5

U.N. Guiding Principles on Internal Displacement, Principle 6-2(c), (Feb. 11, 1998),

E/CN.4/1998/53/Add.2. ......................................................................................................... 16

U.N. High Commissioner for Human Rights, Pamphlet No. 5 of the UN Guide for Minorities,

Protection of Minority Rights in the Inter-American Human Rights System. ......................... 27

International Labor Organization Convention on Indigenous and Tribal Peoples in

Independent Countries 1989(No 169), Article 6 .................................................................................................................................... 23

CASES, ADVISORY OPINIONS, AND REPORTS

Inter-American Court of Human Rights Case of Aguado - Alfaro et al. v. Peru, 2006 Inter-Am. Ct. H.R. (ser. C) No. 158, (Nov. 24,

2006). .................................................................................................................................... 38

Case of Baena-Ricardo et al. v. Panama, 2001 Inter-Am. Ct. H.R. (ser. C.) No. 72 at (Feb. 2,

2001); ....................................................................................................................... 32, 33, 38

Case of Herrera-Ulloa v. Costa Rica, 2004 Inter-Am. Ct. H.R., (ser. C) No. 107,

(Jul. 2, 2004). ........................................................................................................................ 38

Case of Ivcher-Bronstein v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No. 74,

(Feb. 6, 2001). ....................................................................................................................... 35

Case of the "Juvenile Reeducation Institute" v. Paraguay, 2004 Inter-Am. Ct. H.R. (ser. C) No.

112 (Sept. 2, 2004). ......................................................................................................... 27, 28

Case of the Indigenous Community Sawhoyamaxa v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C)

No. 146 (Mar. 29, 2006). ....................................................................................................... 29

Case of Yean and Bosico Girls v. Dominican Republic, 2005 Inter-Am. Ct. H.R. (ser. C) No. 130

(Sept. 8, 2005). ...................................................................................................................... 33

Claude-Reyes et al. v. Chile, 2006 Inter-Am. Ct. H.R. (ser. C.) No. 151,

(Sep. 19, 2006); ......................................................................................................... 32, 35, 38

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 of the American Convention

on Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No. 9,

(Oct. 6, 1987). ................................................................................................................. 32, 40

Moiwana v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124 (Jun. 15, 2005). ............... 28, 29

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

(Nov. 28, 2007). ............................................................................................................. passim

See Awas Tingni v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79

(Aug. 31, 2001) ......................................................................................................... 19, 29, 38

The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due

Process of Law, Advisory Opinion OC-16/99 Inter-Am Ct. H.R. (ser. A) No 16,

(Oct. 1, 1999) ........................................................................................................................ 37

Yakye Axa Indigenous Cmty. v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125

(Jun. 17, 2005). ......................................................................................................... 18, 20, 28

6

Inter-American Commission Amilcar Ménendez et al v. Argentina, Case 11.670, Inter-Am. C.H.R., Report No. 3/01,

OEA/Ser.L/V/II.111 Doc. 20 rev. (2000). .............................................................................. 39

Florencio Chitay Nech et al. v. Guatemala, Case 208-05, Inter-Am. C.H.R., Report No. 7/07,

OEA/Ser.L./V/II.130, doc. 22, rev. 1 (2007). ......................................................................... 31

Inter-American Commission on Human Rights (IACHR), Access to Justice as a Guarantee of

Economic, Social and Cultural Rights. A Review of the Standards Adopted by the Inter-

American System of Human Rights, OEA/Ser.L/V/II.129 (Sep. 7, 2007). ............. 32, 33, 34, 36

Maya 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 at 727 (2004). ..................................... 39

Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 rev. 1, (Apr.

24, 1997). .............................................................................................................................. 28

Tomás E. Carvallo Quintana v. Argentina, Case 11.859, Inter-Am. C.H.R., Report No. 67/01,

OEA/Ser./L/V/II.114 Doc. 5 rev. (2001). ............................................................................... 39

SECONDARY SOURCES

Articles A. Gurbuz, The Role of Hydropower in Sustainable Development, European Water 13/14: 63-70,

66 (2006),.............................................................................................................................. 24

Adem Kassie Abebe, The Power of Indigenous Peoples to Veto Development Activities: The

Right to Free, Prior and Informed Consent (FPIC) with Specific Reference to Ethiopia 5

(2009) ................................................................................................................................... 23

Jo M. Pasqualucci, International Indigenous Land Rights: A Critique of the Jurisprudence of the

Inter-American Court of Human Rights in Light of the United Nations Declaration on the

Rights of Indigenous Peoples, 27 Wis. Int’l L.J. 51 (2009). ................................................... 23

Michael Parker, Two Sides of the Same Coin: Considering Human Rights when Designing

Environmental Policy, 25 J. Land Use & Envtl. L. 109 (2009)............................................... 31

R.L.Barsh, Indigenous Peoples and the UN Human Rights Commission: A Case of the

Immoveable Object and the Irresistible Force, 18 Human Rights Quarterly 782 (1996)......... 23

Randall S. Abate, Climate Change, The United States, and the Impacts of Arctic Melting: A Case

Study in the Need for Enforceable International Environmental Human Rights, 43A Stan. J.

Int’l L. 3 (2007). .................................................................................................................... 25

Sarah C. Aird, China’s Three Gorges: The Impact of Dam Construction on Emerging Human

Rights, 8 Hum. Rts. Br. 24 (2001). ............................................................................ 16, 17, 31

Travis Thompson, Getting Over the Hump: Establishing A Right to Environmental Protection for

Indigenous Peoples in the Inter-American Human Rights System, 19 J. Transnat’l L. & Pol’y

179 (2009). ............................................................................................................................ 25

7

STATEMENT OF FACTS

The Federal Republic of Tucanos is an independent nation dating back to the nineteenth

Century.1 Tucanos’ fifty million inhabitants enjoy a stable democracy, with elected

representatives from the legislative and executive branches alternating every four years.2

Tucanos has long supported human rights, having ratified all of the Inter-American Human

Rights treaties, including the American Convention on Human Rights in 1991, as well as most

United Nations human rights treaties.3 Tucanos recognized concurrent and advisory jurisdiction

of the Inter-American Court on Human Rights in 1992.4

At the end of the 1990s, Tucanos’ economy began a drastic shift from agricultural to

industrial, which stimulated economic growth.5 The rapid growth has created an urgent demand

for energy, resulting in a critical situation for Tucanos' future if new energy sources are not

found or established soon.6 To alleviate the risk of suffering numerous blackouts in years to

come, the government plans to invest in hydroelectric power.7 If left unsolved, the energy crisis

poses a danger for all those residing in Tucanos, thus preventing the developing nation from

fulfilling its economic potential.8

1 Hypothetical, ¶ 1.


3 Id.

4 Clarifications, ¶ 2.


6 Id.

7 Id.


8

Approximately five million indigenous persons live in Tucanos near the northern frontier.9

The Aricapu population consists of 3,250 individuals and extends from the northern region of

Tucanos into the neighboring Kingdom of Araras.10

The Aricapus maintained a neutral position

during the border dispute between the two countries, and since the resolution of the conflict, they

have established a good relationship with the local Tucanese government that now supplies them

with basic health and education services.11

The Aricapus are self-sufficient hunters, cultivators, and harvesters who live among twenty

small villages, fifteen of which are located in the junction of the Corvina and Betara Rivers.12

Each village maintains a traditional manner of electing a chief representative to represent the

village in a monthly General Assembly, and every two years there is a meeting to elect a

Secretary General who is the point of contact responsible for representing the Aricapus’ interests

before the Tucanese government and other nations.13

In 1975, Tucanos passed the Indigenous

Land Recognition Act, thereby recognizing the Aricapus’ collective land rights and giving them

property titles guaranteeing ownership of the land.14

Approximately 10,000 Mirokaiens migrated to South America in the 1970s after a series of

natural disasters plagued their home country, the Mirokai Republic, which is small country in

Asia with around twenty million inhabitants.15

Many Mirokaiens immigrated to Tucanos and



11 Hypothetical, ¶ 6 and 8.





9

settled near the junction of the Betara and Corvina Rivers.16

They immediately approached the

Aricapu Secretary General and established a relationship that has remained peaceful and

cooperative.17

The Mirokaiens live off the exploration of natural resources in the area and

manufacture small objects to sell in local markets.18

The Mirokiens are protected under the Tucanese constitution, which guarantees fair and

equal treatment for foreign populations. They are also offered humanitarian aid by the National

Agency for Foreigners Aid (NAFA), which was established by Law 101/1924 and registers

foreigners’ entrance into the country. Upon arrival to Tucanos, the Mirokaiens registered in

accordance to NAFA regulations, and five years later acquired property title to their land.

According to studies carried out in the 1980s, the junction of the Betara and Corvina Rivers

is the most effective place to construct a hydroelectric power plant, due to the high volume of

water.19

The proposed Cinco Voltas Power Plant is designed to produce 11,000 megawatts of

energy per hour.20

Tucanos' legislature established procedures for the construction process of power plants via

the Bidding Law, which requires that all government-financed projects utilize bidding

procedures and that expenses related to the project be approved on the official budget for that

year.21

Additionally, Law 8090/91 established the Tucanese Environmental Policy of 1991 (TEP)





20 Id.


10

and created the National Institute for Renewable Energy and Defense of the Environment

(NIRED), which is responsible for analyzing and authorizing the construction of power plants in

accordance with seven clearly-designed implementation steps that were observed as follows:22

First, following an evaluation of the expected environmental impacts in the area, NIRED

issued a preliminary permit in October 2009 for the construction of the hydroelectric plant, in

accordance with Law 8090/91.23

NIRED then prepared and published official bidding

documents.24

Second, the bidding documents were issued in November 2009 and four potential

contractors participated in the bidding process in December 2009.25

Third, the company LAX

was selected as the contractor in January 2010 and collaborated with NIRED in creating the

requisite Environmental Impact Report (EIR) that specified all areas that will be affected by the

project, including expected losses in biodiversity, population levels, and impacts on the

population.26

Fourth, NIRED published the EIR and made it available online for two months, which is the

time period allotted for NGOs, government agencies, and the general public to provide opinions

on the proposed project.27

Fifth, following the commentary period, NIRED had a maximum of

three months to review the project feedback and work with LAX to ensure all expected impacts

of the project are at the lowest possible levels.28

Sixth, after review, the EIR was to be approved

22 Id.

23 Hypothetical, ¶ 16 and 17, Clarifications ¶ 14.

24 Id.



27 Id.


11

and ratified by the NIRED president on March 15, 2010.29

Seventh, LAX began construction on

the power plant two weeks after approval of the EIR and is required to submit trimester

construction reports to NIRED for evaluation.30

Additionally, upon approval of the preliminary

permit in October 2009, an allocation proposal was automatically submitted to Congress, who

approved the budget for the project in January 2010.31

The EIR indicated the construction of the power plant would create a large lake, necessitating

the relocation of the 1,550 Aricapus situated north of the Betara River and 5,000 Mirokaiens

situated south of the Corvina River.32

The government clearly established that, in accordance

with the National Evacuation Policy (NEP), all evacuees would receive an equitable plot of land

and necessary economic resources to restart their activities in a new, designated area.33

Upon publication of the EIR in January 2010, the Aricapus and Mirokaiens engaged in

serious political manifestations over their desire not to be relocated.34

They complained that they

were not consulted in the EIR formulation and alleging discriminatory treatment from the local

courts and that the courts did not respect their property rights.35

In response to the political

manifestations and in an attempt to smooth tensions, the Tucanese government invited the

elected representatives of the Aricapus and Mirokaiens to discuss the situation.36

The met on


30 Id..



33 Id..


35 Id..

36 Id..

12

February 20, 2010, and the government promised to re-evaluate the relocation and collaborate

with all affected people to come to a solution that would be beneficial to all.37

After LAX began construction on the project, the Aricapus and Mirokaiens jointly filed a

lawsuit requesting the cancellation of the NIRED-approved EIR and an injunction to stop

construction on the grounds that their property rights were violated and that they had been

treated in a discriminatory manner.38

They also claimed that the project would destroy sacred

Aricapu territory, resulting in physical and psychological effects and further alleged that the

environmental impact of the lake would be higher than the permissible limits in the TEP.39

The government responded to these claims by asserting that the Aricapu had never been

persecuted and that the Mirokaiens’ property rights were guaranteed by the NEP, and they

further assured the court that the power plant construction followed all limits and demands

imposed by the TEP.40

On May 14, 2010, the court of first instance granted the suit in favor of

the government.41

The plaintiffs appealed to the court of second instance, and on June 30, 2010,

the appeals court judged the request precedent, finding in favor of the Aricapus and Mirokaiens

and issuing an injunction to immediately stop construction on the plant.42

The government then appealed on the last stance to the Tucanos Supreme Court, on the basis

that no concrete evidence had been presented to indicate the land or the evacuees would suffer



39 Id.

40 Id..



13

irreversible negative impacts from the project.43

The government also argued that halting the

project with an injunction order undermined the nation's sovereignty as owner of the country’s

natural resources and that the benefits created by the plant are imperative to Tucanos’ population

as a whole because the plant was indispensable for the growth of local industries and for the

power needs of the urban populations.44

The government also claimed that the benefits of the

power plant on the Tucanese population as a whole outweighed the impact it would have on the

0.02% of the population would be relocated.45

On August 2, 2010, the Supreme Court ruled in

favor of the government, based on the finding in the court of first instance that none of the

Aricapus’ or Mirokaiens’ rights had been disrespected and that all of the environmental impacts

complied with the TEP standards.46

On October 6, 2010, the NGO’s Sustainable Planet and Institute for the Conservation of the

Heritage of Indians filed a petition suit before the Inter-American Commission for Human Rights

on behalf of the Aricapus and Mirokaiens, alleging the Tucnaese government was in violation of:

I. Articles 4 (right to life), 5 (physical integrity), 8 (fair trial), 11 (honor), 21 (property),

22 (freedom of movement and residence), 24 (equality), and 25 (judicial protection) ,

all in consonance with Article 1.1 of the American Convention on Human Rights.

II. The protection of immigrants, also in accordance with Article 1.1 stated above

III. Article 11 (healthy environment) of the Protocol of San Salvador.47


44 Id.

45 Id.



14

On October 15, 2010, the Commission admitted the petitioners’ suit, and the Tucanese

government responded on November 20, 2010, denying the allegations of these human rights

violations and stating that all judicial and administrative procedures were in strict compliance

with legal requirements.48

The government asserted that the plans for the power plant were in

accordance with the EIR, which was in compliance with the TEP, and that all restrictions on

private properties were done in accordance with Article 21 of the Convention in the name of an

important social interest.49

Unable to reach a friendly settlement between the parties, the Commission submitted the case

to the Inter-American Court after recognized the violation of all the articles above, except for

Article 11 (honor), the protection of immigrants, and Article 11 (healthy environment).50

The

Aricapus’ and Mirokaiens’ representatives have submitted several documents to the Court,

including their requests, evidence, and arguments restating their position and requesting Tucanos

be held accountable on all violations originally stated.51

STATEMENT OF JURISDICTION

I. THE REPUBLIC OF TUCANOS IS SUBJECT TO THE JURISDICTION OF THE

INTER-AMERICAN SYSTEM UNDER THE ORGANIZATION OF AMERICAN

STATES (OAS).

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

State-Party to the Organization of American States. The State ratified the American Convention

on Human Rights on August 4, 1991, and recognized the concurrent and advisory jurisdiction of


49 Id.



15

the Inter-American Court in July 1992. This Court is authorized to adjudicate matters concerning

application and interpretation of the American Convention pursuant to Articles 61 and 62 of the

Convention.52

PRELIMINARY OBJECTIONS

II. THE REPUBLIC OF TUCANOS OBJECTS TO THE APPLICANTS’ PETITION

FOR REDRESS UNDER ARTICLE 11 OF THE SAN SALVADOR PROTOCOL

BECAUSE THE RIGHT TO A HEALTHY ENVIRONMENT IS A NON-

ACTIONABLE RIGHT.

The San Salvador Protocol calls for the adoption of necessary measures and domestic

legislation to ensure the rights contained therein.53

Article 11 calls on States to promote,

preserve, and improve the environment as a requisite for complete enjoyment of all human

rights.54

However, a concrete duty which is actionable against a State is required before a legal

claim can be raised. The Protocol does not contain actionable rights to be presented before the

Inter-American Court of Human Rights. It does not give rise to an independent cause of action

which may be pursued under the American Convention. As such, the applicants are precluded

from seeking redress under Article 11 of the San Salvador Protocol.

LEGAL ANALYSIS

III. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLE 21 IN

RELATION TO THE INDIGENOUS ARICAPU POPULATION OR THE

MIROKAIEN IMMIGRANT POPULATION.

52 Organization of American States, American Convention on Human Rights, art. 61 and art. 62Error! Bookmark

not defined., (Nov. 22, 1969), O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter American Convention].

53 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"), art. 1, Nov. 16, 1999, A-52 [hereinafter

Protocol of San Salvador].

54 Protocol of San Salvador, supra note 53, art. 11.

16

A. Tucanos subordinated the right to property to the interest of society upon just

compensation and in accordance with Tucanese law.

The right to property contained in Article 21 of the American Convention is not absolute.

Article 21(1) of the Convention explicitly provides that the “use and enjoyment” of land may be

restricted or limited by the State under specific circumstances as needed by society at large.55

While the interest of society may limit the right to use and enjoy one’s property, Article 21(2)

states that no person 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.”56

1. Constructing a large dam for hydropower generation is a compelling and justifiable

social interest.

While Article 21 allows States to limit the right to property for reasons of public utility and

social interest, the United Nations Guiding Principles on Internal Displacement Principle 6-2(c)

specifically states that relocation is permissible in cases of large-scale development projects that

are justified by compelling and overriding public interests.57

This threshold is met when states

weigh the feasibility and risks and account for all segments of society without discrimination.58

55 American Convention, supra note 52.

56 Id.

57United Nations Guiding Principles on Internal Displacement, Principle 6-2(c), (Feb. 11, 1998),

E/CN.4/1998/53/Add.2.

58 Sarah C. Aird, China’s Three Gorges: The Impact of Dam Construction on Emerging Human Rights, 8 Hum. Rts.

Br. 24, 25 (2001).

17

a) The project is justified, feasible, and prudent.

Construction of a large dam for hydropower generation is a justifiable rationale that meets

compelling and overriding public interests.59

The State intends to use the Cinco Voltas Power

Plant for hydroelectric power to meet the developing country’s critical energy needs, and no

evidence has been presented that would support any assertion that the project is inherently

incapable of accomplishing this goal. Further, there is a difference between the risks of

constructing a dam and its impacts on the environment.60

While issues concerning environmental

impact have been raised, no evidence has been presented that the State has failed to take into

account risks such as rupture or collapse in its decision to build the dam at the junction of the

Betara and Corvina Rivers. In fact, the State has conducted studies dating back to 1980 that

indicate this is an appropriate place for the construction of a dam.

b) Tucanos’ development policies are non-discriminatory.

To assess compelling and overriding public interests, authorities must take into account all

segments of society and ensure that policies regarding large-scale developments comport with

the customary law principle of non-discrimination as codified in numerous international

instruments.61

The applicants have not substantiated any allegations of discrimination. The

Commission found Tucanos in compliance with Article 24 of the Convention, which entitles all

persons, without discrimination, to equal protection of the law.62

2. Tucanos afforded just compensation to evacuees as previously guaranteed by law.

59 Id.

60 Id.

61 Id.

62 American Convention, supra note 52, art. 24.

18

The requirement of just compensation for land evacuees has been guaranteed by law in the

Republic of Tucanos since the 1992 enactment of the National Evacuation Policy. The State has

met its obligations to follow this law by granting the relocated Aricapus and Mirokaiens a plot of

land equivalent in size to their current plot as well as generous resources so as to minimize the

impact of the relocation.

B. Tucanos complied with special safeguards that protect the indigenous Aricapus

population’s property rights.

The Court has recognized that the right to property is not absolute, even for indigenous

populations.63

However, permissible restrictions on indigenous peoples’ right to property must

satisfy an “imperative interest,” and cannot “deny their survival as a tribal people.”

64

1. Procuring renewable energy sources to meet critical energy deficits is an imperative

interest.

In the context of indigenous populations, the Court has specified that “imperative interests”

may be satisfied at the expense of limitations on Article 2165

As established above, constructing

a large dam to generate hydropower is a compelling public interest. The gravity of the energy

crisis in Tucanos, viewed in light of Tucanos’ development obligations, elevate the interest from

compelling to imperative. The State will have exercised a permissible restriction to satisfy an

imperative need when the limitations are necessary, proportionate, and aim to achieve a

legitimate objective in a democratic society.66

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

64 Id., ¶ 128.

65 Yakye Axa Indigenous Cmty. v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125 (Jun. 17, 2005).

66 See American Convention, supra note 52, art. 21, Saramaka People, supra note 63, ¶ 34; Yakye Axa, supra note

65, ¶ 144.

19

a) Constructing a power plant to prevent large-scale blackouts is necessary.

The present level of energy production in Tucanos is insufficient to sustain the continued

development on the country’s horizon, and the government faces an imminent threat of

widespread blackouts that will affect the entire country. This critical scenario predicted by

experts may lead to losses in productivity as schools, factories, and transportation systems are

affected, as well as significant health risks as hospitals and emergency responders grapple with

blackouts. There will likely be an increase in criminal activity during blackouts. These setbacks

jeopardize the development of the people and create an urgent need for a solution to the energy

crisis. The construction of a hydroelectric power plant is necessary to mitigate these risks, as it

will provide sufficient energy to meet the country’s demands for the next century.

Further, the purpose of Tucanos’ actions is not commercial, as has been the case in several

prominent cases involving violations on the restriction of indigenous lands.67

In contrast to cases

like Awas Tingni and Saramaka, where the effect of limiting State actions merely resulted in lost

profits for the governments who were denied logging, mining, and oil exploration concessions,

the case at hand involves government action in response to an energy crisis. Tucanos is not

restricting land rights to turn a profit, but rather to provide adequate power supply to sustain the

country’s development. The Cinco Voltas Power Plant is not an opportune luxury; it is a

necessary element to the progressive development of Tucanos.

67 See Awas Tingni v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79 (Aug. 31, 2001) and Saramaka People,

supra note 63.

20

b) Relocating 6,550 individuals to construct critical energy infrastructure is

proportionate to the needs of Tucanos’ 50 million citizens.

The Court has stated that limitations imposed on rights guaranteed by the Convention “must

be proportionate to the interest that justifies it” and that actions are proportionate when narrowly

tailored to meet a legitimate objective.68

Tucanos has reacted proportionately to the threat of

blackouts that will thwart the country’s development by narrowly tailoring its actions to ensure

continued growth that will benefit its entire citizenry. The Cinco Voltas Power Plant is designed

to meet the collective objectives of the entire country because the energy crisis will affect all

Tucanese citizens. However, only those individuals directly affected by the construction of the

power plant are subject to relocation, and that figure represents just 0.02% of the Tucanese

population.

c) Meeting international development obligations is a legitimate objective in a

democratic society.

Democracy requires that the rights of all be taken into consideration, and Tucanos must look

to protect and ensure the well-being of all its citizens. Article 33 of the Charter of the

Organization of American States establishes development as a “primary responsibility” of each

country, and Article 34 requires States to “devote their utmost efforts” to accomplishing certain

basic goals, such as accelerating and diversifying industrialization and establishing “[u]rban

conditions that offer the opportunity for a healthful, productive, and full life.” 69

Further, the

right to development implies that States may exploit natural resources, provided there is

68 Yakye Axa, supra note 65, ¶ 145.

69 O.A.S. Charter art. 33 and art. 34(e).

21

appropriate regulation and supervision in the application of procedures to avoid environmental

problems that translate into violations of human rights protected by the American Convention.70

The increased demand for energy is a direct result of the modernization and industrialization

of Tucanos across the last several decades, and there is an increased energy need for urban

populations. Thus, developing the country’s infrastructure will enable Tucanos to meet its

primary responsibility to develop by supporting the increase energy needs for the industrialized

economy and by ensuring sufficient energy to maintain proper urban living conditions. The TEP

provides regulation and supervision in the application of procedures required to implement and

monitor construction of the project.

The predicted negative impacts of the blackouts will likely set back the entire citizenry as

well as future generations to come, and not acting in the face of an energy emergency would

constitute failure on Tucanos’ part to meet its domestic and international obligations to its

citizenry. As such, by building the Cinco Voltas Power Plant, Tucanos aims to achieve a

legitimate objective that benefits all.

2. Tucanos did not deny survival of the Aricapus as indigenous peoples.

To guarantee the right to survival of indigenous populations, States must abide by three

safeguards: (1) ensure effective participation of indigenous peoples regarding development plans

in their territories; (2) guarantee that indigenous peoples will receive a reasonable benefit from

development plans in their territories; and (3) assess environmental and social impacts prior to

70 U.N. Office of the High Commissioner for Human Rights and U.N. Environment Programme, Expert Seminar on

Human Rights and the Environment, Jan. 14-16, 2002, Geneva: Background Paper No. 2, E/CN.4/2002/109 (Jan 16,

2002).

22

issuing concessions within the territories.71

Tucanos has complied with all of these safeguards to

ensure the survival of the Aricapus.

a) The Aricapus effectively participated in the development plans, short of exercising a

nonexistent right under international law to veto the project.

Indigenous people have the right to participate and offer input to development plans that

affect them.72

Other international sources that have been considered by the Court, such as ILO

Convention 169, have enunciated a similar standard.73

Effective participation involves

consultations during early stages of a development project that take into account traditional

methods of decision-making, and in the case of large-scale development projects, the Court has

required free, prior, and informed consent (FPIC).74

However, there are conflicting standards in international law regarding the interpretation of

consent. While the UN Declaration on the Rights of Indigenous Peoples requires “consent”75

, the

ILO 169 requires “consultation in good faith” and obliges States to be willing to negotiate

geared toward obtaining consent.76

It stipulates that “[w]here their consent cannot be obtained,

such relocation shall take place only following appropriate procedures established by national

laws and regulations, including public inquiries where appropriate, which provide the

71 Saramaka People, supra note 63, ¶ 129.

72 Id.

73 See International Labor Organization Convention on Indigenous and Tribal Peoples in Independent Countries

1989(No 169), art. 16(2) [hereinafter ILO 169] and Proposed American Declaration on the Rights of Indigenous

Peoples, Feb. 26, 1997, OEA/Ser/L/V/.II.95 Doc.6.


75 United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res 61/295, art. 32, U.N. Doc

A/C.3/61/L.18/REV.1 (Oct. 2, 2007).

23

opportunity for effective representation of the peoples concerned.”77

Only defective procedures

undermine this guarantee.78

In drafting the U.N. Declaration on the Rights of Indigenous Peoples, nearly all States

opposed the recognition of indigenous peoples’ right to veto any legislative or administrative

measure.79

Further, indigenous peoples’ right to veto State actions is not identified in any of the

binding documents of the Inter-American Human Rights system.80

Additionally, international

institutions like the World Bank have specified that its consent requirement “does not constitute

a veto right for individuals or groups.”81

Tucanos should not be required to go as far as to allow the Aricapus to veto its final decision.

Tucanos has met its international obligation by consulting in good faith with the Aricapu

community. Tucanos engaged them in the early stages of project planning by publishing the EIR,

and sought to address their concerns by proactively calling a special meeting with their elected

76 ILO 169, supra note 73, art. 6.

77 ILO 169, supra note 73, art. 16(2).

78 Adem Kassie Abebe, The Power of Indigenous Peoples to Veto Development Activities: The Right to Free, Prior

and Informed Consent (FPIC) with Specific Reference to Ethiopia 5 (2009),

http://www.up.ac.za/dspace/bitstream/2263/12643/1/abebe.pdf.

79 R.L.Barsh, Indigenous Peoples and the UN Human Rights Commission: A Case of the Immoveable Object and the

Irresistible Force, 18 Human Rights Quarterly 782, 788 (1996).

80 See O.A.S. Charter, supra note 69; American Convention, supra note 52; American Declaration on the Rights and

Duties of Man, (April 22, 1948), O.A.S. Res. XXX; and Proposed American Declaration on the Rights of

Indigenous Peoples, supra note 73.

81 Jo M. Pasqualucci, International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American

Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous Peoples, 27 Wis.

Int’l L.J. 51, 54 (2009).

24

representatives. Tucanos respected the Aricapus’ traditional methods of decision-making as well

as theirs participation rights, but effective participation does not include the right to veto. As

such, Tucanos is in compliance with its human rights obligations.

b) The Aricapus will share in the benefit of the Cinco Voltas Power Plant.

The Court has reasoned that the right of compensation recognized under Article 21(2)

“extends not only to the total deprivation of property title by way of expropriation by the

State…but also to the deprivation of the regular use and enjoyment of such property.”82

In this

sense, the right to obtain just compensation translates into a right “to reasonably share in the

benefits made as a result of a restriction or deprivation of their right to the use and enjoyment of

their traditional lands.”83

Tucanos’ decision to use hydroelectric power in lieu of traditional nonrenewable energy

sources will provide a vital benefit to all five million indigenous peoples in Tucanese territory,

including the Aricapus. Hydropower is a clean, renewable energy source that, in contrast to most

other forms of power generation, can supply a significant portion of the world’s electricity

needs.84

It is “the only renewable energy technology presently commercially viable on a large

scale,” and eases the effects on climate change by displacing other forms of power generation.85


83 Id.

84 A. Gurbuz, The Role of Hydropower in Sustainable Development, European Water 13/14: 63-70, 66 (2006),

http://www.ewra.net/ew/pdf/EW_2006_13-14_08.pdf.

85 Id. at 66.

25

Climate change is significantly impairing indigenous peoples’ ability to maintain and

develop their cultures.86

According to the Intergovernmental Panel on Climate Change, adverse

effects from continued climate change will lead to increased flooding and the depletion of

resource-rich ecosystems, which will result in the displacements of millions of people.87

The

United Nations has acknowledged that the effects of climate change “will be felt most acutely by

those segments of the population who are already in vulnerable situations owing to factors such

as…indigenous or minority status.”88

As such, the Aricapus stand to have their lives transformed

dramatically because of climate change, and Tucanos’ adoption of hydroelectric power

generation benefits the Aricapus just as much, if not more, than it will benefit the rest of the

population. This, in addition to full and fair compensation for their lands and continued

government assistance, effectively satisfies Tucnaos’ international obligations under this

requirement.

c) Tucanos assessed environmental and social impacts prior to granting a permanent

concession.

States must complete prior assessments of the environmental and social impact of

development projects prior to issuing concessions, and the studies must be conducted by

“independent and technically capable entities, with the State’s supervision.”89

86 Travis Thompson, Getting Over the Hump: Establishing A Right to Environmental Protection for Indigenous

Peoples in the Inter-American Human Rights System, 19 J. Transnat’l L. & Pol’y 179, 187 (2009).

87 Randall S. Abate, Climate Change, The United States, and the Impacts of Arctic Melting: A Case Study in the

Need for Enforceable International Environmental Human Rights, 43A Stan. J. Int’l L. 3, 4 (2007).

88 U.N. Human Rights Council, Human Rights and Climate Change, at 2, U.N. Doc. A/HRC/10/L.30 (Mar. 20,

2009), available at http://ap.ohchr.org/documents/E/HRC/d_res_dec/A_HRC_10_L_30.pdf.


26

NIRED approved the preliminary permit in accordance with the law, which requires an

evaluation of the expected environmental impacts in the area. The facts provided in this case do

not indicate who performed the study or how it was done. However, prior to granting the

permanent concession authorizing construction of the project, NIRED collaborated closely with

LAX, the independent company chosen through the bidding process, to produce a formal

Environmental Impact Report.

C. The Mirokaien immigrants are a non-tribal minority group and thus not afforded

the heigthened protections guaranteed to the indigenous Aricapu population.

Indigenous peoples are groups “who inhabited a country or geographical region at the time

when people of different cultures or ethnic origins arrived.”90

Their relevant characteristics

extend beyond being in a certain place at a certain time to include unique traditions, as well as

“social, cultural, economic, and political characteristics that are distinct from those of the

dominant society in which they live.”91

However, distinctiveness alone is not sufficient to

classify a group as indigenous; the group must also “maintain a strong spiritual relationship with

the ancestral territory that they have traditionally used and occupied.”92

The Court has found that

tribal communities share similar characteristics to indigenous communities and thus are entitled

to the same special measures that guarantee the full exercise of their rights.93

Other minority

90 U.N. Permanent Forum on Indigenous Issues (UNPFII), Who are Indigenous Peoples?, 2006, available at:

http://www.un.org/esa/socdev/unpfii/documents/5session_factsheet1.pdf.

91 Id.


93 Id. at ¶ 82.

27

groups receive equal protection of their property rights as all other persons in a given country,

but not heightened rights. 94

The Mirokaien immigrants do not share similar characteristics with indigenous and tribal

communities. Having arrived in Tucanos just 35 years ago, they have no deep, spiritual, or

ancestral connection to the land that extends through a hundreds of generations. While the land is

a source of subsistence for the Mirokaiens, it is not a “necessary source for the continuation of

the life and cultural identity.”95

Thus, the Mirokaien immigrant group is a minority group, and

the special property considerations for indigenous and tribal communities do not apply.

IV. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLES 4, 5, 11, OR 22

IN RELATION TO THE INDIGENOUS ARICAPU POPULATION OR THE

MINORITY MIROKAIEN POPULATION.

A. Tucanos guaranteed the right to life and physical integrity of the Aricapus and the

Mirokaiens in accordance with Articles 4 and 5.

Article 4 of the Convention provides that States have the duty to respect and ensure the right

to life of all persons.96

The Inter-American Court has asserted that the realization of all rights is

dependent upon a person’s ability to exist, and thus any approach that restricts the right to live is

not admissible.97

The right to life includes not only the protection from arbitrary deprivation

thereof, but also the right to be free from conditions which impede or obstruct the ability to live

94 United Nations High Commissioner for Human Rights, Pamphlet No. 5 of the UN Guide for Minorities,

Protection of Minority Rights in the Inter-American Human Rights System,

http://www.ohchr.org/Documents/Publications/GuideMinorities5en.pdf.


96 American Convention, supra note 52, art. 4 and art. 5.

97 See Case of the "Juvenile Reeducation Institute" v. Paraguay, 2004 Inter-Am. Ct. H.R. (ser. C) No. 112 at ¶ 156

(Sept. 2, 2004).

28

in dignity.98

States are under the obligation to generate minimum living conditions and to take

concrete measures geared toward the fulfillment of a decent life.99

Article 5(1) of the Convention provides that a person’s right to physical integrity must be

protected by the State.100

The Court has interpreted this duty to involve both positive and

negative implications including the obligation to actively investigate possible inhumane

treatment and the responsibility to refrain from causing physical hardship.101

1. Tucanos provided legal protection and title of the Aricapus’ land and guaranteed the

Aricapus’ cultural survival.

The Commission has identified two necessary measures that guarantee the right to life and

physical integrity for indigenous populations: (1) legal protection and title of the lands inhabited;

(2) adequate protective measures to guarantee cultural survival in connection with resource

development.102

The Aricapu Peoples have been afforded legal protection of their lands. They were provided

legal title and had their collective rights to land recognized by means of the Indigenous Land

Recognition Act of 1975. The State has since guaranteed property ownership of its indigenous

populations without encroachment or intrusion. In implementing the project in question, Tucanos

observed its Bidding Law and followed the legally established procedural steps. The government

utilized auction procedures as required under Article 67 of the Bidding Law and formulated a

98 Id.

99 Yakye Axa, supra note 65.

100 American Convention, supra note 52, art. 5(1).

101 Moiwana v. Suriname, 2005 Inter-Am. Ct. H.R. (ser. C) No. 124 (Jun. 15, 2005).

102 Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 rev. 1, (Apr. 24, 1997).

29

budget in accordance to Article 77 of such law. The State worked in conjunction with NIRED to

produce and analyze the environmental impact reports as established under the TEP.

Regarding the right to cultural survival, it was established above that Tucanos has taken the

appropriate steps to guarantee survival of the Aricapus in connection with the development of the

Cinco Voltas Power Plant. Further, the project does not affect the entire Aricapu population.

Only portions of those Aricapus living in Tucanese territory are being relocated, and the project

leaves at least half of the Tucanese population of Aricapus undisturbed.

2. Tucanos did not deny dignity of life to or cause death of the Mirokaiens.

The Court has not found violations of the right to life in the absence of State action which has

resulted in death or denial of dignity of life.103

The Court has held that the right to physical

integrity has been contravened by failure to provide justice where the State has caused the death

of members of the community. 104

The facts of this case do not lead to the finding of a breach of international duties has taken

place. Tucanos has never threatened or endangered the Mirokaines’ lives or physical integrity.

There is no evidence the State has ever denied them basic services or taken any action that has

caused the death of its citizens. On the contrary, the Tucanese government’s approach respects

and ensures the well-being of the Mirokaiens. The constitution guarantees fair and equal

treatment for foreign populations, and Law 101/1924 establishing NAFA assists the Mirokaiens

with humanitarian aid whenever necessary. NAFA also assisted in registering the Mirokaiens

upon their arrival into Tucanos and established regulations enabling them to acquire property

103 See Awas Tingni, supra note 63, Saramaka People, supra note 63, ¶ 82, and Case of the Indigenous Community

Sawhoyamaxa v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146 (Mar. 29, 2006).

104 Moiwana, supra note 101.

30

title to their land. Additionally, the government is providing adequate assistance in the process of

relocation, in accordance to the NEP, to avoid hardship. The government has proactively

protected the Mirokaiens’ right to life by giving them similarly-situated plots of land and

economic resources that will ensure their survival. The lives of the Mirokaiens are not in

jeopardy and there is no indication of inhumane treatment by the State.

B. Tucanos guaranteed privacy and honor for the Aricapus and Mirokaiens in

accordance with Article 11.

Article 11 provides the right to have honor respected and dignity recognized, as well as

the freedom from arbitrary or abusive interference with one’s private life and from unlawful

attacks on honor or reputation.105

1. Tucanos did not arbitrarily deprive the Aricapus or the Mirokaiens of their property.

The Commission correctly found Tucanos in compliance with its obligations in regards to

their treatment of the Aricapus and Mirokaiens. Tucanos respected the honor of the Aricapus and

Mirokaiens and is not attempting to deprive them arbitrarily of their property. The country is in

dire need of the resources that Cinco Voltas will provide, and the restriction is on property in the

area of the project, not on targeted groups. No one is being displaced because of unfavorable

sentiment, but rather because of the needs of the State whose future livelihood is uncertain if the

power plant is not built.

C. Tucanos guaranteed freedom of movement and residence for the Aricapus and

Mirokaiens in accordance with Article 22.

Article 22 states that “[e]very person lawfully in the territory of a State Party has the right to

move about in it, and to reside in it subject to the provisions of the law.”106

However, this right is


31

not absolute and may be limited by sections 3 and 4 of Article 22, which state the rights may be

restricted “pursuant to a law to the extent necessary in a democratic society to prevent crime or

to protect national security, public safety, public order, public morals, public health, or the rights

or freedoms of others,” and “by law in designated zones for reasons of public interest.”107

Section 9 of Article 22 further notes that “[t]he collective expulsion of aliens is prohibited.”108

Further, the Court has held recently that displacement through violent means or threats violates

of the freedom of movement and residence.109

1. The objective of Tucanos’ environmental legislation is a legitimate public interest.

The authorization of the Cinco Voltas Power Plant was done according to the laws

established by the TEP. A major objective of environmental law is human health,110

which has

been established as a legitimate public interest.111

Thus, the TEP represents law enacted for

reasons of public interest.

2. The restrictions on movement were in designated zones and effected without violence.

The restrictions on movement were specific to the zone designated for flooding because of

the project, and there is no evidence that any violent treatment has been threatened or taken

against the Aricapus or Mirokaiens. Additionally, Tucanos is not expelling anyone from the


107 American Convention, supra note 52, art. 22(3), 21(4).


109 Florencio Chitay Nech et al. v. Guatemala, Case 208-05, Inter-Am. C.H.R., Report No. 7/07,

OEA/Ser.L./V/II.130, doc. 22, rev. 1 (2007).

110 Michael Parker, Two Sides of the Same Coin: Considering Human Rights when Designing Environmental Policy,

25 J. Land Use & Envtl. L. 109, 115 (2009).

111 Aird, supra note 58, at 25.

32

country. As such, Tucanos is not in violation of the freedom of movement and residence

requirements in Article 22.

V. THE REPUBLIC OF TUCANOS DID NOT VIOLATE ARTICLES 8, 24, OR 25 IN

ADMINISTRATIVE OR JUDICIAL PROCEEDINGS FOR THE INDIGENOUS

ARICAPU POPULATION OR THE MIROKAIEN IMMIGRANT POPULATION

Article 8 is the right and obligation, within Article 1(1), to due process of law.112

Although

Article 8(2) establishes the procedural guarantees of a criminal proceeding, the Court has

expanded the scope to require due process of law in administrative or judicial proceedings that

determine the rights and obligations of a person.113

Article 24 preserves the right to equal protection for all persons before the law and prohibits

discrimination.114

In that regard, a fundamental requirement of due process of law is that States

must establish clear rules governing the behavior of their agents, in order to prevent

inappropriate discretion leading to arbitrary or discriminatory practices.115

112 American Convention, supra note 52, art. 1(1), 8; Judicial Guarantees in States of Emergency (Arts. 27(2), 25

and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87, Inter-Am. Ct. H.R. (ser. A) No.

9, ¶ 28, (Oct. 6, 1987) [hereinafter Judicial Guarantees in States of Emergency].

113 Case of Baena-Ricardo et al. v. Panama, 2001 Inter-Am. Ct. H.R. (ser. C.) No. 72 at ¶ 124 (Feb. 2, 2001);

Claude-Reyes et al. v. Chile, 2006 Inter-Am. Ct. H.R. (ser. C.) No. 151, ¶ 116, 118-119 (Sep. 19, 2006); Inter-

American Commission on Human Rights (IACHR), Access to Justice as a Guarantee of Economic, Social and

Cultural Rights. A Review of the Standards Adopted by the Inter-American System of Human Rights, ¶ 97,

OEA/Ser.L/V/II.129 (Sep. 7, 2007), available at:

http://www.cidh.oas.org/countryrep/AccesoDESC07eng/Accesodescindice.eng.htm [hereinafter IACHR Access to

Justice].


115 IACHR Access to Justice, supra note 113, ¶ 97.

33

Finally, Article 25(1) provides everyone the right to “prompt recourse…to a competent court

or tribunal for protection against acts that violate his fundamental rights recognized by the

constitution or laws of the state concerned or by this Convention, even though such violation

may have been committed by persons acting in the course of their official duties.”116

Article

25(2) requires states to ensure that rights are determined by a competent judicial authority of the

state and that the possibility of judicial remedy exists.117

A. Tucanos complied with the principles of equal protection by regulating NIRED’s

discretionary power with clear, standardized administrative procedures.

The Court has held that there is a need to regulate and restrict State discretionary power so

that administrative discretion does not violate human rights.118

Further, the Court has linked the

scope of administrative due process to effective observance Article 24 of the Convention,

especially in situations involving discrimination of vulnerable groups.119

In this regard, the Court

has held that requirements of administrative procedures “should be specified clearly and be

standardized, and their application should not be left to the discretion of State officials, in order

to guarantee the legal certainty of those who use this procedure and to ensure an effective

guarantee of the rights embodied in the American Convention.”120

The Commission correctly found no violation of right to equal protection in this case. The

associated laws and judicial processes are neutral, and Tucanos has not imposed procedural



118 Baena Ricardo et al. Case, supra note 113, ¶ 126.


120 Case of Yean and Bosico Girls v. Dominican Republic, 2005 Inter-Am. Ct. H.R. (ser. C) No. 130, ¶ 240, 242

(Sept. 8, 2005).

34

limitations on the applicants to make their recourse in the law any different than it would be for

another person or group. The procedures for the construction of power plants are regulated by the

TEP, which is established under Law 8090/91. This same law creates NIRED, and NIRED has

established clear processes to analyze and authorize the constriction of power plants. These

requirements are standardized, and there is no indication that they were applied discretionarily in

the case of the Cinco Voltas Power Plant. Thus, Tucanos extended the application of the law

equally to all people, meeting the requirements of the processes without favoring or

discriminating any persons or groups.

B. Tucanos complied with the principles of due process of law in administrative

proceedings by adhering to the established protections.

The Court has developed six clear elements that comprise due process of law in

administrative proceedings: (1) the right to a hearing and representation, (2)the right to

notification, (3) the right to a reasoned decision, (4) publicity of administrative proceedings, (5)

the principle of reasonable time, and (6) the right to judicial review of administrative

decisions.121

1. Tucanos ensured the rights to representation, notification, and a reasoned decision and

complied with publicity requirements for administrative information.

The right to a hearing includes not only the right to legal assistance during the administrative

proceeding, but also the right to sufficient time to prepare and formalize arguments and

evidence.122

In the case at hand, the State granted a meeting with the applicants for the purpose

of hearing their concerns regarding the project and the relocation. The applicants were

represented at these meetings by their elected representatives, and there are no facts to support an



35

assertion that they were denied the opportunity for legal assistance throughout any portion of the

administrative process. Further, no evidence has been provided to indicate that the applicants

lacked sufficient time to adequately prepare for this meeting. It was announced in January and

took place on February 20. There is no indication of a request for delay.

The right to notification encompasses the applicants’ right to receive prior detailed

communication on the matter being examined and the right to exercise the right of defense.123

In

the case at hand, the applicants were notified of the matter via the publication of the EIR, which

was the contractor’s opportunity to establish the specific details regarding the impact of the

proposed construction project. Upon publication of the report, the applicants were provided a

two-month timeframe in which to provide feedback on the report. Through this prior notice of

plans, Tucanos provided effective safeguards for due process guarantees.

Regarding the right to a reasoned decision and the publicity of administrative proceedings,

the Court has held that agencies must cite the reasons for their decisions and make them

available.124

Further, they must protect the right of access to State-held information.125

NIRED’s

reasons for its decision to construct the power plant were established in the EIR, which was

made available to the applicants and general public. The report included the factors that were

taken into account in reaching its decision, such as the areas to be affected by the project, all

expected loses in biodiversity, pollution levels, and impacts on the lives of the population. There

is no indication that the State was in possession of additional information that was withheld from

access by the applicants.

123 Case of Ivcher-Bronstein v. Peru, 2001 Inter-Am. Ct. H.R. (ser. C) No. 74, ¶ 98 (Feb. 6, 2001).

124 Case of Claude Reyes et al., supra note 113, ¶ 122, 123.

125 Id. at ¶ 163.

36

2. Tucanos respected the reasonable time principle and the right to judicial review of

administrative decisions.

The principle of reasonable time involves not just concerns regarding unwarranted delays of

procedures, but also unreasonable brevity of procedures that precludes individuals having the

opportunity to prepare their defense, formulate their claims, and submit evidence.126

As stated

above, the EIR was posted online for a period of two months, the applicants had over a month to

prepare for the government meeting, and there is no indication that the applicants required a

postponement in the proceedings. Tucanos abided by the principle of reasonable time by not

prolonging the proceedings any longer than necessary.

Finally, Tucanos complied with the right to judicial review of administrative decisions. There

is no law or measure in place that obstructed the applicants’ access to the courts, as evidenced

by their subsequent judicial proceedings.

C. Tucanos complied with the principles of due process of law in judicial proceedings by

ensuring equity of arms, an appropriate scope of judicial review, and a reasoned

decision on the merits within a reasonable time.

The court has established clear principles on due process of law in judicial proceedings and

specifically pointed to four elements that comprise due process of law in judicial proceedings:

(1) the principle of equality of arms, (2) the scope of judicial review of administrative decisions,

(3) the right to a reasoned decision on the merits, and (4) the right to a trial within a reasonable

time.127

1. The Aricapus and Mirokaiens exercised their rights and defended their interests

effectively and with procedural equality throughout the entire judicial process.

126 Access to Justice, supra note 113, ¶ 163.

127 Access to Justice, supra note 113, ¶ 184.

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The principle of equity of arms requires that “a defendant must be able to exercise his rights

and defend his interests effectively and in full procedural equality with other defendants,” and

that “the judicial process is a means to ensure… equitable resolution of a difference.”128

Specifically, the Court stated that the judicial process must recognize and correct any real

disadvantages that those brought before the bar might have, thus observing the principle of

equality before the law and the courts and the corollary principle prohibiting discrimination.” 129

In the case at hand, the applicants exercised their rights and defended their interests effectively

and with procedural equality throughout the entire judicial process. Although the ultimate

outcome was not favorable for the applicants, there is nothing to indicate they faced obstacles or

deficiencies that impaired an effective defense of their interests. In fact, they were able to win an

appeal during the process. Further, the Commission found no evidence of discriminatory

treatment. While the plaintiffs ultimately did not obtain relief, the unfavorable result is not a

violation of due process. The local tribunal and the Supreme Court had the capability of finding

for the plaintiffs but the facts did not support the recourse. This is not an indication that the

plaintiffs suffered any disadvantage in the judicial process or were unequal before the law.

2. Tucanos provided basic judicial supervision of the lawfulness and reasonableness of

the administrative decisions.

The Court’s standard regarding the scope of judicial review includes at least a basic

judicial supervision of the lawfulness and reasonableness of administrative decisions, in order to

128 The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of

Law, Advisory Opinion OC-16/99 Inter-Am Ct. H.R. (ser. A) No 16, (Oct. 1, 1999) ¶ 117 and 119.

129 Id.

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ascertain that they are compatible with the guarantees enshrined in the Convention.130

The Court

emphasized that the appeal must ensure a “full review of the decision being challenged.”131

However, if the remedy is decided against the petitioner, this is not a per se violation of “judicial

protection.”132

In the case at hand, there has been no evidence presented that the applicants did

not have broad possibilities to be heard. The Supreme Court’s reasoning is indicative of basic

judicial supervision of the lawfulness and reasonableness of NIRED’s decision to approve

construction of the power plant. It did not bind itself to the fact that the laws were constitutional;

rather, it analyzed the circumstances of the case and reasoned that NIRED’s actions were lawful

because they had not violated any of the indigenous or immigrant populations’ rights and

because all of the environmental impacts were in accordance with the TEP. There is no evidence

that the Supreme Court failed to take into consideration the reports on which NIRED based its

decision that the impacts of the project were within the limits established by the TEP.

3. Tucanos’ Supreme Court provided a reasoned decision on the merits in accordance

with the reasonable time principle.

The Court has held that courts should adopt decisions that address the merits of suits

brought before them.133

However, the Court has clarified that although the judgment must be

“duly justified” and the petitioner is entitled to the tribunal’s “reasoning,” a thorough explanation

is not required.134

There is no evidence in the case at hand to support any allegations that the

courts failed to provide a reasoned decision on the merits. Specifically, the Supreme Court

130 Baena Ricardo et al. Case, supra note 113.

131 Case of Herrera-Ulloa v. Costa Rica, 2004 Inter-Am. Ct. H.R., (ser. C) No. 107, (Jul. 2, 2004) ¶ 165.

132 Case of Aguado - Alfaro et al. v. Peru, 2006 Inter-Am. Ct. H.R. (ser. C) No. 158, (Nov. 24, 2006) ¶ 125.

133 See Awas Tingni, supra note 67.

134 Case of Claude Reyes et al., supra note 113, ¶ 119, 122.

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provided a reasoned basis for its decision in determining that the legal claims on which the

complaint was founded were inadmissible. This was done after the stages in which the evidence

and arguments were presented, and the court based its decision on the discernment that none of

the applicants’ rights had been disrespected and that all of the environmental impacts were

within accordance with the TEP. The court in no way hindered the applicants’ exercise of the

right to legal remedy by avoiding a decision on the rights of the applicants.

The Court evaluates the reasonable time principle in light of the complexity of the matter, the

judicial activity of the interested party, and the behavior of the judicial authorities.135

The

Commission has established two further considerations regarding standards for determining a

reasonable time in proceedings. First, that the length of a trial should be counted from the start of

the administrative proceedings, not when the case reaches the judicial stage.136

Second, the

efficacy of actions is more important than the quantity of actions.137

In the case at hand, the

judicial activity was prompt and diligent in all instances. It is evident that all three courts swiftly

admitted the case upon filing because the lower tribunal rendered a decision less than eight

weeks from the event giving rise to the lawsuit, and the appeals court and Supreme Court had

similar timeframes of six weeks and eight weeks, respectively. The entire proceeding, from the

start of administrative proceedings in January 2010 to the final decision of the Supreme Court in

135 Maya 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 at 727, ¶ 176 (2004).

136 Amilcar Ménendez et al v. Argentina, Case 11.670, Inter-Am. C.H.R., Report No. 3/01, OEA/Ser.L/V/II.111 Doc.

20 rev. ¶ 95 (2000).

137 Tomás E. Carvallo Quintana v. Argentina, Case 11.859, Inter-Am. C.H.R., Report No. 67/01,

OEA/Ser./L/V/II.114 Doc. 5 rev. ¶ 75 (2001).

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August 2010, occurred within seven months. This is a reasonable time based on the

circumstances and on the urgency of the matter to be resolved, particularly given the complexity

of evaluating the rights of the immigrant and indigenous populations, as well as of the

environmental impacts of the project. Further, the State did not prolong the proceedings by

taking a number of actions. Rather, its actions were effective and thus reduced the length of time

necessary to conclude the judicial proceedings. Accordingly, the State unquestionably has met its

obligation to conduct judicial proceedings quickly and promptly.

D. Tucanos ensured judicial proceedings were conducted by a competent, independent,

and impartial tribunal.

Article 8 is the right and obligation, within Article 1(1), to due process of law.138

Specifically, Article 8(1) 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,” and this applies when a person is establishing “his rights and

obligations of a civil, labor, fiscal, or any other nature.”139

This is in line with the requirement of

Article 25 “to ensure that any person claiming such remedy shall have his rights determined by

the competent authority provided for by the legal system of the state.”140

The right to a competent, independent, and impartial tribunal, previously established by law

was recognized throughout the judicial proceedings. The local tribunal, the court of appeals, and

the Supreme Court all have jurisdiction over the disputes of citizens and the state and were

established competent in the particular matter. There is nothing in the record that indicates

138 American Convention, supra note 52, art. 1(1), 8; Judicial Guarantees in States of Emergency, supra note 112, ¶

28.


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control or connection of the Tucanos judiciary to the government. The historically stable

democracy of Tucanos includes elected representatives from both the executive and legislative

branches, and the courts were not subordinate to any executive branch of the government, nor is

there any evidence that judicial decisions were based on political considerations. Additionally,

no threats to the security of tenure of the judiciary that would affect their independence, is

indicated. The judicial procedures in Tucanos independently provide an opportunity for

individuals to file lawsuits, even against the State itself, when they allege their rights have not

been respected. The claims submitted were scrutinized at multiple levels within the judiciary,

and there is nothing in the facts to support allegations of impartiality of the courts. Although the

Aricapus and Mirokaiens received an unfavorable verdict in the lower courts, the court of second

instance found in their favor – and against the State – upon appeal. Impartiality cannot be

implied simply because the parties received an unfavorable outcome, particularly in this instance

where the parties did in fact receive a verdict in their favor during the judicial process.

REQUEST FOR RELIEF

The Republic of Tucanos respectfully requests the Court to preserve intact the findings of the

national court in respect of the applicants, as due process was guaranteed at all stages of judicial

and administrative proceedings and no Convention rights were breached. Tucanos maintains it

was acting within its sphere of competence and with due judicial guarantees and thus should be

allowed to provide redress within the framework of its domestic legal system. Tucanos lastly

requests that the Court preclude the applicants from seeking redress under Article 11 of the

Salvador Protocol because it is a non-actionable right.


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