INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW MOOT...

INTER-AMERICAN SUSTAINABLE DEVELOPMENT LAW

MOOT COURT COMPETITION

INTER-AMERICAN COURT OF HUMAN RIGHTS

SUSTAINABLE PLANET AND THE INSTITUTE FOR THE CONSERVATION OF

THE HERITAGE OF INDIANS ON BEHALF OF THE POPULATION ARICAPUS AND

IMMIGRANTS OF THE REPUBLIC OF MIROKAI

(PETITIONERS)

V.

THE FEDERAL REPUBLIC OF TUCANOS

(STATE)

MEMORIAL FOR THE APPLICANT

Team 4116

TABLE OF CONTENTS

I. .........................................................................................................................TITLE PAGE 5

II. .......................................................................................................TABLE OF CONTENTS 5

III. .................................................................................................TABLE OF AUTHORITIES 6

TREATIES AND OTHER INTERNATIONAL AGREEMENTS

..................................................................................................Inter-American System 6

...........................................................................................................Universal System 7

MUNICIPAL CONSTITUTION AND STATUTES

..........................................................................................................Comparative Law 8

CASES, ADVISORY OPINIONS, AND REPORTS

..........................................................................Inter-American Court of Human Rights 8

...............................................................Inter-American Commission on Human Rights 9

....................................................................................Universal Human Rights System 9

..............................................................................................................African System 9

........................................................................................Legal Documents or Reports 10

IV. ...................................................................................................STATEMENT OF FACTS 11

CASE SUMMARY

..................................................................................................The Aricapu Nation 11

...............................................................................Cultural and Religious Make-up 11

........................................................................The Mirokaien Immigrant Population 11

..........................................................................................The Republic of Tucanos 12

......................................................................................Land Management Activity 13

V. .............................................................................................................LEGAL ANALYSIS 14

JURISDICTION OF THE COURT

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1

3

MERITS

The State of Tucanos violated the RIGHT TO PROPERTY recognized in Article 21

ACHR, in relation to Articles 1.1 and 2 thereof, to the detriment of the members of the

....................Aricapus Indigenous People and Immigrants of the Republic of Mirokai. 15

The State of Tucanos violated the RIGHT TO FREEDOM OF MOVEMENT AND

RESIDENCE recognized in Article 22 ACHR, in relation to Article 1.1 thereof, to the

detriment of the members of the Aricapus Indigenous population and Immigrants of the

................................................................................................Republic of Mirokai. 25

The State of Tucanos violated the RIGHT TO EQUAL PROTECTION UNDER THE

LAW recognized in Article 24 ACHR, as well as the RIGHT TO A FAIR TRIAL and

the RIGHT TO JUDICIAL PROTECTION recognized in Articles 8 and 25 ACHR, in

relation to Articles 1.1 and 2 thereof, to the detriment of the members of the Aricapu In-

...............................digenous population and Immigrants of the Republic of Mirokai. 28

The State of Tucanos violated the RIGHT TO HONOR recognized in Article 11 and the

RIGHT TO PERSONAL INTEGRITY recognized in Article 5 ACHR, in relation to Ar-

ticle 1.1 thereof, to the detriment of the members of the Aricapus Indigenous population

..............................................................and Immigrants of the Republic of Mirokai. 32

The State violated the RIGHT TO A DIGNIFIED LIFE recognized in Article 4 ACHR,

in relation to a violation of the obligation of PROGRESSIVE DEVELOPMENT, recog-

nized in Article 26 ACHR, and the RIGHT TO A HEALTHY ENVIRONMENT, recog-

nized in Article 11.2 of the Protocol of San Salvador and interpreted through Article

29.b, to the detriment of the members of the Aricapus Indigenous population and Immi-

.............................................................................grants of the Republic of Mirokai. 35

VI. ....................................................................................................REQUEST FOR RELIEF 42

CONCLUSIONS

DEMANDS

VII. .............................APPENDIX A - AMERICAN CONVENTION ON HUMAN RIGHTS 44

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VIII. .....................APPENDIX B - STATUTORY TEXT OF ADDITIONAL INSTRUMENTS 55

ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS

IN THE AREA OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS, “PROTOCOL OF

SAN SALVADOR”

PROTOCOL OF AMENDMENT TO THE CHARTER OF THE ORGANIZATION OF

AMERICAN STATES, "PROTOCOL OF BUENOS AIRES", OAS TREATY SERIES NO. 1-

A, ENTERED INTO FORCE MARCH 12, 1970.

UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEOPLES (UN

2007)

C-169, CONVENTION ON INDIGENOUS AND TRIBAL PEOPLE (ILO CONVENTION

1989)

AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN

INTER-AMERICAN DEMOCRATIC CHARTER

DECLARATION ON THE RIGHTS OF PERSONS BELONGING TO NATIONAL OR

ETHNIC RELIGIOUS OR LINGUISTIC MINORITIES (UN 1990)

REPUBLIC OF TUCANOS: NATIONAL INSTITUTE FOR RENEWABLE ENERGY AND

DEFENSE OF THE ENVIRONMENT

IX. ..............................................................................................................ABBREVIATIONS 61X. TITLE PAGE

XI. TABLE OF CONTENTS

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III. TABLE OF AUTHORITIES

A. TREATIES AND OTHER INTERNATIONAL AGREEMENTS

Inter-American System

American Convention on Human Rights

................................................................................................Article 1 15, 18, 23, 29, 32, 35, 42

................................................................................................Article 2 15, 17, 23, 27, 28, 32, 42

............................................................................................................Article 4 35, 36, 38, 41, 42

......................................................................................................Article 5 32, 35, 37, 38, 41, 42

..................................................................................................................Article 8 29, 31, 32, 42

................................................................................................................Article 11 32, 33, 35, 42

............................................................................Article 21 15, 16, 17, 21, 22, 23, 24, 25, 28, 42

......................................................................................................................Article 22 25, 27, 42

..................................................................................................................................Article 23 20

................................................................................................................Article 24 28, 31, 32, 42

................................................................................................................Article 25 29, 31, 32, 42

..........................................................................................................Article 26 27, 38, 39, 41, 42

............................................................................................................................Article 28 26, 38

......................................................................................................................Article 29 27, 35, 38

..................................................................................................................................Article 30 27

......................................................................................................................Article 32 16, 18, 35

Additional Protocol to the American Convention on Human Rights in the Area of Economic,

Social, and Cultural Rights “Protocol of San Salvador"................... 14, 15, 35, 37, 38, 39, 41, 42

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http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention.htm

http://www.cidh.oas.org/Basicos/English/Basic3.American%20Convention.htm

http://www.cidh.oas.org/Basicos/English/basic5.Prot.Sn%20Salv.htm




Inter-American Democratic Charter ........................................................................................ 36, 39

Protocol of Amendment to the Charter of the Organization of American States, "Protocol of

....Buenos Aires", OAS Treaty Series No. 1-A, entered into force March 12, 1970Article VIII 27

Universal System

..........................................................................................................Declaration of Port-of-Spain 40

..........................................................................Declaration on the Rights of Indigenous Peoples 18

Declaration on the Rights of Persons Belonging to National or Ethnic Religious or Linguistic

.......................................................................................Minorities (UN 1990) Art. 3.1, 4.1, 6 30

Declaration of the United Nations Conference on the Human Environment, Stockholm from 5 to

............................................................16 June 1972, Principles 2, 4, 13, 14, 15, 17, 18, 20, 21 40

Indigenous and Tribal Peoples Convention ..........................., International Labour Organization 41

International Covenant on Economic, Social and Cultural Rights ................................................ 29

.................................International Covenant on Civil and Political Rights (UN 1966) , Arts. 2.1 30

International Convention on the Elimination of all Forms of Racial Discrimination (UN 1965)

.........................................................................................................................................Art. 5, 30

Rio Declaration on Environment and Development - the United Nations Conference on

..........Environment and DevelopmentU.N. Doc. A/CONF.151/26 (Vol. I), Annex I (1992) 39, 41

.......................................................................Universal Declaration on Human Rights, Article 7 29

B. MUNICIPAL CONSTITUTION AND STATUTES

.................................................................................Constitution of the Republic of Tucanos 12, 30

.................Tucanese Environmental Policy of 1991 - TEP (NIRED regulations) 12, 13, 24, 30, 40

...................................................................................National Evacuation Policy (NEP) of 1992 27

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http://www.cidh.oas.org/Basicos/English/Basic23.IA%20Domocratic%20Charter.htm

http://www.cidh.oas.org/Basicos/English/Basic23.IA%20Domocratic%20Charter.htm

http://www2.ohchr.org/spanish/law/indigenas.htm

http://www2.ohchr.org/spanish/law/indigenas.htm

http://www2.ohchr.org/spanish/law/cescr.htm

http://www2.ohchr.org/spanish/law/cescr.htm

Comparative Law

U.S. Department of Homeland Security, Federal Emergency Management Agency established by

.........................................Executive Order 12127, 1979; Title VI of P.L. 109-295 (H.R. 5441) 28

..Post-Katrina Emergency Management Reform Act of 2006,109th Congress 6 USCA § 701(4) 28

C. CASES, ADVISORY OPINIONS, AND REPORTS

Inter-American Court of Human Rights

Ituango Massacres v. Colombia ......................., Judgment of July 1, 2006. Series C No. 148 33, 35

Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Preliminary Objections, Judgment of

.............................................................................................February 1, 2000, Series C, No. 66 16

Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Merits, Reparations and Costs,

.......................................................Judgment of August 31, 2001, Series C, No. 79 16, 19, 22, 30

Miguel Castro-Castro Prison v. Peru ........, Judgment of November 25, 2006. Series C No. 160 33

Moiwana Community v. Surinam, Preliminary Objections, Merits, Reparations, and Costs,

.............................................Judgment of June 15, 2005, Series C, No. 124 16, 20, 26, 30, 32, 38

Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Costs,

.........................Judgment of November 28, 2007. Series C No. 172 16, 17, 18, 19, 20, 21, 22, 40

Saramaka People v. Suriname, Interpretation of the Judgement on Preliminary Objections,

....Merits, Reparations, and Costs, Judgment of August 12, 2008. Series C No. 185 16,18, 20, 23

Sawhoyamaxa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment of

...........................................................................March 26, 2006, Series C, No. 146 16, 18, 29, 31

Velásquez-Rodríguez v. Honduras, Reparations and Costs, Judgement of 29 July 1988, Series C

..........................................................................................................................................No. 04 15

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Velásquez-Rodríguez v. Honduras ............................, Judgment of July 21, 1989, Series C No. 7 42

Xákmok Kásek Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgments of

.............................................August 24, 2010. Series C No. 214 16, 17, 21, 22, 26, 29, 30, 31, 32

Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations and Costs, Judgment of June

.................................................................................17, 2005 Series C, No. 125 16, 17, 18, 19, 36

Yakye Axa Indigenous Community v. Paraguay, Interpretation of the Judgment of Merits,

.................................Reparations and Costs, Judgment of February 6, 2006. Series C No. 142 16

Inter-American Commission on Human Rights

Maya Indigenous Communities v. Belize, Case 12.053, Report No. 78/00, OEA/Ser.L/V/II.111

...........................................................................................................Doc. 20 rev. at 129 (2000) 16

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

.....................................................................................................................1997), Chapter VIII 21

Yanomami Community v. Brazil, RESOLUTION Nº 12/85, Case Nº 7615 BRAZIL, March 5,

.............................................................................................................................................1985 26

Universal Human Rights System

Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms

of Indigenous People, Commission resolution 2001/65 (Fifty ninth session), U.N. Doc. E/CN.

.......................................................................................................4/2003/90, January 21, 2003 17

African System

African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action

Center and the Center for Economic and Social Rights v. Nigeria, Communication 155/96

..........................................................................................................................................(2001) 34

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Legal Documents or Reports

Books

Craik, Neil, The International Law of Environmental Impact Assessment, Process Substance and

Integration, ....................................................................... (Cambridge University Press, 2008) 40

Hunter, David, Salzman, James, Zaelke, Durwood, International Environmental Law and Policy,

.......................................................................................Third Edition (Foundation Press 2007) 40

Kiss, Alexandre & Shelton, Dinah, International Environmental Law, Third Edition

.....................................................................................(Transnational Publishers 2004) 21, 24, 25

Rodríguez Rescia, Victor, The Right to a Healthy Environment in the Inter-American System for

the Protection of Human Rights: In Search of the implementation of a regional litigation

strategy (2003), http://www.elaw.org/system/files/interamerican.victor.article.2003.eng.doc

.....................................................................................................(Last visited January 3, 2011) 39

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http://www.elaw.org/node/1688


IV. STATEMENT OF FACTS

A. CASE SUMMARY

A.1. The Aricapu Nation

1. The Aricapu Nation settled their homes in the northern region of the Federal Republic of Tucanos

(hereinafter “Tucanos”) and east of the Kingdom of Araras, locating themselves on both sides of the

frontiers. 1The Aricapus are divided in 20 small villages having a total of 3.250 members. At least 15 of

these 20 villages are located in the junction of the rivers Betara and Corvina in the Republic of Tucanos,

close to the border with the Kingdom of Araras.3 During the territorial conflicts between Tucanos and

the Kingdom of Araras, the Aricapus maintained a neutral position but were kept in the center of the

conflict thereby suffering damages to their housing settlements.1 The Republic of Tucanos has since

granted recognition of collective rights as an indigenous people and provided titles of deed for the

territory where they settled.2

A.2. Cultural and Religious Make-up

2. The Aricapus exist today essentially as a group of hunters whilst still cultivating and harvesting their

own food from land they regard as sacred to their beliefs, customs, and way of life.3 Each Aricapu

village has maintained a traditional way of electing a chief as their representative when they need to

discuss with the Tucanos government.3 The people maintain an active democratic system of electing

representative to present the Aricapus interests before the Tucanos government and other nations. 3

A.3. The Mirokaien Immigrant Population

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11 Facts, Arguments, and Pleadings

1 Hypothetical Case, ¶ ¶ 5-6

2 Hypothetical Case, ¶ 7


3. After a devastating Tsunami, 10.000 Mirokaiens migrated to the South-American continent.4 Most

of the immigrants migrated to the Republic of Tucanos, close to the junction of the Betara and Corvina

rivers.4 They live off the exploration of natural resources abundant in the area, and from manufacturing

small objects, which they put up for sale in local markets near-by.4 Upon their arrival to Tucanos the

Mirokaiens registered in accordance to the NAFA regulations and five years later acquired property titles

of the land they were living in. 4

A.4. The Republic of Tucanos

4. The Tucanos constitution guarantees fair and equal treatment for foreign populations.5 Law

101/1924 created the National Agency for Foreigners Aid (NAFA).5 This institution was made

responsible for registering foreigners’ entrance in the country and to provide them with humanitarian

help whenever necessary. 5

5. The Tucanos Bidding Law, clearly lays down the procedures that must be followed for the

construction of these types of projects.6 This law states in its Article 67 that all of the projects financed

by the government must be made through the use of bidding procedures or auctions.6 Furthermore,

Article 77 states that all of their demanded expenses must be approved on the official bill for that year’s

budget.6 In addition to this, the procedures for the construction of power-plants is also regulated by the

law 8090/91 which establishes the environmental legislation of the country (Tucanese Environmental

Policy of 1991 - TEP) and creates the National Institute for Renewable Energy and Defense of the

Environment (NIRED).6 The NIRED became responsible for regulating, analyzing and authorizing

projects of this nature.6

Team Number 4116

Facts, Arguments, and Pleadings 12

4 Hypothetical Case, ¶ ¶ 10-12, 14



A.5. Land Management Activity

6. The Republic of Tucanos proposed to build the Cinco Voltas power plant, with a production capacity

of 11,000 MWe, at the junction of the Betara and Corvina rivers; the most appropriate location thanks to

the high volume of water located at that spot.7 The legally titled land owners of the targeted area are

Miokaien immigrants and Aricapus indigenous people. 7

7. According to studies carried out in 1980 the junction of the Betara and Corvina rivers,` which

crosses both countries, is the most appropriate place for the construction of a powerplant due to the

high volume of water.8 The Cinco Voltas power plant is designed to produce 11.000 megawatts of

energy.8 As previously mentioned the Mirokaien immigrant population and the Aricapus inhabit this

precise spot and have legal land property titles, all acquired in accordance to local law. 8

8. In October 2009 the NIRED approved the previous permit, in accordance to law 101.9 This was then

automatically inserted in the bill project that defined the budget for 2010 so as to ensure the allocation of

the necessary resources for the construction of the power plant as per Article 77 of the Bidding Law. 9

9. In November the bidding documents were issued so that all the interested companies could get a

chance to sign themselves up for the process.10 In December the bidding process was officially started.

Four companies took part and a company called LAX was chosen. 10

10. In January congress approved the budget for 2010 allowing the allocation of all of the resources

needed for construction of the power plant.11 Together the NIRED and the LAX Company composed

their environmental impacts report, re-submitting it to the NIRED and making it available online.11

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11. In this report the LAX indicated that the construction of the power-plant would create a huge lake

with an estimated surface area of 1.450 km2 and that this river would force the re-allocation of the

immigrant population of Mirokaiens who live on the south part of the Corvina River (5.000 inhabitants)

and of the indigenous population Aricapu that inhabit the north side of the Betara River (1.550

inhabitants).11 The government has made it clear that in accordance to its National Evacuation Policy

(NEP) of 1992, all of the evacuees would receive a plot of land equivalent to the size of the plot they

inhabited before and sufficient economic resources to restart their lives and activities in a new area,

designated by the government. 11

V. LEGAL ANALYSIS

12. The NGOs Sustainable Planet and the Institute for the Conservation of the Heritage of Indians

(hereinafter “the alleged victims’ representatives” or “the representatives”), in representation of members

of the Aricapus indigenous people and of the immigrant Mirokaien population (hereinafter “the alleged

victims”), hereby submit the present brief containing pleadings, motions and evidence in accordance

with Articles 25 and 40 of the Court´s Rules of Procedure. The representatives hereby allege that the

Federal Republic of Tucanos (hereinafter, “the State”) violated the rights recognized in Articles 4, 5, 8,

11, 21, 22, 24, 25, and 26 of the American Convention on Human Rights (hereinafter “the American

Convention” or “the Convention”), in connection with Articles 1.1 and 2 thereof, as well as Article 11 of

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

and Cultural Rights (hereinafter “Protocol of San Salvador”), to the detriment of the alleged victims.

A. JURISDICTION OF THE COURT

Team Number 4116



13. The Inter-American Court (hereinafter “the Inter-American Court” or “the Court”) has jurisdiction

over this case in accordance with Article 62(3) of the American Convention on Human Rights

(hereinafter “American Convention” or “the Convention”). The State ratified the American Convention

on August 4th, 1991 and recognized the Court´s contentious jurisdiction on July, 1992.

14. The facts related to this case occurred after said dates, thus satisfying the ratione temporis

requirement to jurisdiction. The alleged victims are all individuals under the jurisdiction of the State,

thus satisfying the ratione personae requirement to jurisdiction. Finally, the case concerns alleged

violations of several rights recognized in the American Convention and the San Salvador Protocol,

which the State has also ratified, thus satisfying the ratione materiae jurisdictional requirement.

15. Pursuant to Article 46 of the American Convention and Article 31 of the Rules of Procedure of the

Commission, the petitioners have exhausted all domestic remedies.

B. MERITS

B.1. The State of Tucanos violated the RIGHT TO PROPERTY recognized in Article

21 ACHR, in relation to Articles 1.1 and 2 thereof, to the detriment of the members

of the Aricapus Indigenous People and Immigrants of the Republic of Mirokai.

16. As the foundation for State accountability for noncompliance with the obligations set forth in the

American Convention, Article 1.1 charges the States Parties with the duty to respect and guarantee the

rights therein. Any infringement of the rights recognized in the Convention that may be attributed, under

the rules of international law, to an action or omission by any public authority, constitutes an act

imputable to the State; which assumes responsibility by the terms established by the Convention.12

Team Number 4116


12 Velásquez-Rodríguez v. Honduras, Reparations and Costs, Judgement of 29 July 1988, Series C No. 04, ¶ 164

17. With regard to the right to property, Article 21 of the American Convention recognizes the right of

every person to own property and expressly protects the use and enjoyment of said property. This right

must be read with consideration to Article 1.1 that ensures the enjoyment of this right by implementing

protective measures and eliminating any undue barriers. According to Article 21, the State is required to

abide by rule of law standards and ensure due process of law when attempting to limit the use and

enjoyment of property, particularly when the State wants to expropriate land.

18. Art. 21 ACHR, when read in conjunction with Article 32.2 ACHR, allows for the balance of

individual rights and the general collective welfare by establishing five tests or safeguards for a State’s

lawful taking of privately held and titled property: the expropriation must (1) be made with payment of

“just compensation,” (2) to serve “public utility or social interest,” (3) as established in a case provided

by law, (4) following the forms established by law, and (5) otherwise complying with the entirety of the

Convention (e.g., by meeting standards for rule of law and due process of law, which include, for

example, independent and impartial courts).

19. The issue here is whether the alleged victims were deprived of their property right in violation of the

requirements set forth in Articles 21 and 32.2 ACHR and in violation of the additional layer of protective

safeguards imposed jurisprudentially by the Court where the property belongs to indigenous peoples or

other minorities.13

Team Number 4116


13 Cf. Case of the I/A Court H.R., Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. Merits, Repara-

tions and Costs. Judgment of August 31, 2001. Series C No. 79; I/A Court H.R., Case of the Mayagna (Sumo) Awas

Tingni Community v. Nicaragua. Preliminary Objections. Judgment of February 1, 2000. Series C No. 66; I/A Court H.R.,

Case of the Moiwana Community v. Suriname. Preliminary Objections, Merits, Reparations and Costs. Judgment of June

15, 2005. Series C No. 124; I/A Court H.R., Case of the Xákmok Kásek Indigenous Community. v. Paraguay.Merits,

Reparations and Costs. Judgment of August 24, 2010. Series C No. 214; I/A Court H.R., Case of the Saramaka People. v.

Suriname. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 28, 2007 Series C No. 172; /A

(a) The taking of property without implementing adequate safeguards for the protection of

especially vulnerable communities is contrary to the obligations stated in Article 21 as

supplemented by Article 2. *

The Aricapus people

20. The Court has recognized that Article 21 encompasses the meriting of special measures to guarantee

indigenous populations with the full exercise of collective land rights because of the intimate and

essential connection between indigenous communities and their land. 14 This additional layer of

protection safeguards “their physical and cultural survival.” 15 Furthermore, the Court expands the

interpretation of “special measures” by establishing the obligation of the State to safeguard “effective

participation […] when dealing with major development or investment plans that may have a profound

impact on the property rights of the members [by additionally requiring] the free, prior, and informed

consent,”16 of the indigenous community affected, as reiterated in Article 32 of the United Nations

Team Number 4116


13*cont. Court H.R., Case of the Saramaka People v. Suriname. Interpretation of the Judgment of Preliminary Objections,

Merits, Reparations and Costs. Judgment of August 12, 2008. Series C No. 185; I/A Court H.R., Case of the Yakye Axa

Indigenous Community v. Paraguay.Merits, Reparations and Costs. Judgment of June 17, 2005. Series C No. 125; I/A

Court H.R., Case of the Yakye Axa Indigenous Community v. Paraguay. Interpretation of the Judgment of Merits, Repara-

tions and Costs. Judgment of February 6, 2006. Series C No. 142; I/A Court H.R., Case of the Sawhoyamaxa Indigenous

Community v. Paraguay.Merits, Reparations and Costs. Judgment of March 29, 2006. Series C No. 146; Maya Indigenous

Communities v. Belize, Case 12.053, Report No. 78/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 129 (2000).

14 Cf. Case of the Xákmok Kásek Indigenous Community v. Paraguay. supra note 13, ¶ 216; Case of the Yakye Axa In-

digenous Community v. Paraguay, supra note 13, ¶ 172; Case of the Saramaka People. v. Suriname. No. 172, supra note 13

15 Cf. Case of the Saramaka People. v. Suriname. No. 172, supra note 13, citing the U.N., Report of the Special Rapporteur

on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, submitted in ac-

cordance with Commission resolution 2001/65 (Fifty ninth session), U.N. Doc. E/CN.4/2003/90, January 21, 2003, ¶ 21

16 Cf. Case of the Saramaka People v. Suriname. No. 185 supra note 13, ¶ 17

Declaration on the Rights of Indigenous Peoples. Thus, “the State may restrict the […] right to use and

enjoy […] traditionally owned lands and natural resources only when such restriction complies with the

aforementioned requirements.” 17

21. In this case, the Aricapus question the States adherence to the special protocols, established and

enhanced through the Court, regarding a large-scale development project that will flood the territory

where the Aricapus have built their settlements and carry out their traditional way of life as an

indigenous people.18 Thus, in accordance with Article 1.1 of the Convention;

[I]n order to guarantee that restrictions to the property rights of the members of the [indigenous]

people by the [construction of the hydroelectric dam, a large-scale, environmental development

project,] within their territory does not amount to a denial of their survival as a tribal people, the

State must abide by the following three safeguards: First, the State must ensure the effective

participation of the members of the [Aricapus] people, in conformity with their customs and

traditions, regarding any development, […] within [Aricapus] territory. Second, the State must

guarantee that the [Aricapu People] will receive a reasonable benefit from any such plan

within their territory. Thirdly, the State must ensure that no concession will be issued within

[Aricapus] territory unless and until independent and technically capable entities, with the

State’s supervision, perform a prior environmental and social impact assessment. These

safeguards are intended to preserve, protect and guarantee the special relationship that the

Team Number 4116


17 Cf. Case of the Yakye Axa Indigenous Community v. Paraguay, supra note 13, ¶ 135; Case of Sawhoyamaxa Indigenous

Community v. Paraguay, supra note 13, ¶ 118; and Case of the Saramaka People. v. Suriname. No. 172, supra note 13, ¶

120.


members of the [Aricapus] community have with their territory19, which in turn ensures their

survival as a tribal people.”20

22. The Aricapu people have lived in the territory in question pursuant to their traditional way of life

since before the lands were incorporated into the Republic of Tucanos. Accordingly, the State has

already recognized the collective right of the Aricapu People, as an indigenous people, to the land21 they

have “traditionally used and occupied, derived from their longstanding use and occupation of the land

and resources necessary for their physical and cultural survival.”22 This recognition implies additional

protective obligations, on the part of the State, to create and implement the appropriate framework that

will give legal effect to the safeguards mentioned above, as repeatedly recognized by the Court.23

23. The first of these safeguards is the State´s obligation to ensure “effective participation of members of

the [indigenous] people in development or investment plans within their territory”. This obligation stems

from the necessity to protect indigenous people against acts which violate their fundamental rights, “[as]

one of the basic mainstays, not only of the American Convention, but also of the Rule of Law in a

democratic society, in the sense set forth in the Convention”.24

24. One way to ensure that indigenous people effectively participate in decisions that will affect their

enjoyment and use of traditionally owned lands is by ensuring that proper consultation mechanisms exist

between the State and the indigenous people. The duty to consult in territorial development plans

Team Number 4116


19 Cf. Hypothetical Case, ¶ B.4-8, & 24


21 Hypothetical Case, ¶ B.7


23 Cf. Case of the Saramaka People v. Suriname. No. 172 supra note 13, ¶ 214.1; Cf. Case of the Yakye Axa Indigenous

Community v. Paraguay, supra note 13, ¶ 63

24 Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. No. 79, supra note 13, ¶ 112

required the State to actively consult with the indigenous community according to their customs and

traditional methods of decision-making; the consultation is required to begin at the earliest stages of the

development plan (before the need for public hearings and “not only when the need arises to obtain

approval from the community”25), be made in good faith, and encourage the sharing of information

between both parties.

25. In the present case, the State failed to properly consult with the Aricapu taking into account its

traditional methods of decision-making. Rather than consult with the Aricapu Secretary General about

the development project, the State merely published on a website its Environmental Impacts Report and

waited for the general public to give its opinion on the matter. The State’s publication on a website failed

to constitute and effective method of consultation with an indigenous population.

26. Furthermore, with regards to the issue of consultation, the level of impact that the power plant would

have on their territory requires that the Aricapu people provide not only their opinion on the matter, but

that they give their consent26 to the development project. The State failed to obtained the consent of the

Aricapu.

27. The Court has duly recognized that the participatory rights contained in the Convention extend to

include involvement in decision-making on environmental matters.27 In its report on the human rights

situation of indigenous peoples in Ecuador affected by rapid development, the Commission observed

that Article 23 of the ACHR, which provides that all persons enjoy a right ‘to take part in the conduct of

public affairs’, implied a right ‘to participate actively, individually and jointly, in the formulation of

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26 Cf. Case of the Moiwana Community v. Suriname, supra note 13, ¶ 199.2.f; Case of the Saramaka People v. Suriname.

No. 172 supra note 13, ¶ 133-137; Case of the Saramaka People v. Suriname. Series C No. 185, supra note 13, ¶ 17

27 Cf. Case of the Saramaka People v. Suriname. Series C No. 185, supra note 13, ¶ 38-43; Case of the Saramaka People v.

Suriname. Series C No. 185, supra note 13, ¶ 129

decisions which directly concern their environment”28 Insofar as the State failed to properly consult and

obtain the consent of the Aricapu for the proposed development project, it denied them the right to

participate in the process, thus effectively violating their right under Art. 21 ACHR to the use and

enjoyment of their property.

28. The next safeguard required to ensure the rights of the Aricapus community to the full use and

enjoyment of their traditional lands is the guarantee of a just compensation. As interpreted by the Court,

the receipt of “just compensation” “extends not only to the total deprivation of property title by way of

expropriation by the State, for example, but also to the deprivation of the regular use and enjoyment of

such property.”29 The “just compensation” requirement established under Article 21.2 of the Convention

reflects the principle of reciprocity in providing the affected Community with a “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 and of those natural resources necessary for their survival.” 30

29. The compensation offered by the State consisted in the forced relocation of the community to a State

designated area. The State’s offer to provide the Aricapu with another plot of land fails to “indicate the

characteristics or qualities of the land that could meet the quality required for the sustainability”31 of the

Aricapu and their survival as a people. In this sense, the Court has previously held that “in order to grant

lands alternative to the ones being claimed, they must at the least have certain ‘agro-ecological

aptitudes’ and be submitted to a study to determine their potential for being developed by the

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28 Kiss, Alexandre & Shelton, Dinah, International Environmental Law, Third Edition (Transnational Publishers 2004); p.

313; Citing IAComHR Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96 Doc. 10 Rev. ` (1997) ¶

93



31 Cf. Case of the Xákmok Kásek ¶ 117.

community”.32 Because the new lands would be selected by the government, without consulting the

indigenous group and without taking into consideration their particular needs for survival, the State’s

relocation offer fails to meet the required safeguard and cannot be considered just compensation under

Article 21 ACHR.

30. Finally, the State must ensure that “no concession will be issued within [Aricapu] territory unless

and until independent and technically capable entities, with the State’s supervision, perform a prior

environmental and social impact assessment.”33 In the case at hand, the State failed to comply with this

obligation by 1) not consulting or cooperating in good faith with the indigenous peoples concerned,

through their own culturally specific, representative institutions, in order to obtain their free and

informed consent prior to the approval of any project affecting their lands or territories,34 2) not

including the Aricapu people in the population impact assessment by restricting the meeting with the

community to their relocation concerns, and by 3) relying on outdated data from 198035 on which to

issue the development concession to LAX.36

31. From all of the above considerations, we can conclude that both domestic and international law

stipulate that the members of the Aricapus people have a right to use and enjoy their traditionally owned

and legally titled territory that is necessary for their survival; second, that the State may restrict said right

through expropriation regulations that conform to the rights and obligations set forth in the Convention

for the interference with indigenous property rights “only if the State ensures the effective participation

and benefit” of the Aricapus people, that is, that it ensures that the Aricapus people are adequately

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32 Cf. Case of the Xákmok Kásek ¶ 118.

33 Cf. Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua. No. 79, supra note 13, ¶ 129

34 Cf. Case of the Saramaka People v. Suriname. No. 172, supra note 13, ¶ 131

35 Cf. Hypothetical Case, ¶ 15


represented and consulted throughout the entire development phase, up to and including consent to

relinquish their rights when faced with a large-scale development project; third, that the State ensures

that the Aricapus people are justly compensated for the loss of their traditional territory, and fourth, that it

“performs or supervises prior environmental and social impact assessments” before carrying out the

development project.

32. Thus the State did not comply in any manner with its obligation to adopt special measures to respect,

protect and guarantee the communal property right of the members of the37 Aricapu villages. This denial

of the property rights of the Aricapu people is of even greater concern considering that at least 15 of their

20 villages would be destroyed, thus gravely affecting their capability to survive as an indigenous

people.

33. For the reasons stated above, the concession already issued by the State to LAX Company for the

construction of the Cinco Voltas power plant in the traditional territory of the Aricapus did not comply

with the requirements necessary to properly restrict the Aricapus´right to property recognized under

Article 21 of the Convention. Thus, the Court should declare that the State has violated Article 21, in

conjunction with Article 1.1 of the American Convention, to the detriment of the members of the

Aricapus people.

34. Insofar as the State’s lack of sufficient, proper and effective consultation mechanisms with the

Aricapu people was due to deficiencies in its domestic laws designed to implement development

projects, the State also failed to comply with its obligations under Article 2 of the American Convention.

Mirokaiens

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35. Although the Mirokaiens are not indigenous to the territory in question, nor do they have a special

relationship with their territory akin to those of indigenous peoples, they have acquired property rights

over their lands by being given titles to them38. As property owners, they too have a due process right to

be given sufficient and reasonable means to participate in the decision-making process of the

development project.

36. Art. 21.2 ACHR requires the State to follow rule of law standards in implementing expropriation

procedures against privately held property, such as that held by the Mirokaiens. The State failed to

adhere to NIRED regulations regarding reporting findings for public participation. The omission

violated the right to property for the Mirokaiens by denying them due process in the statutory

participation procedures. “The major role played by the public in environmental protection is

participation in decision-making, especially in environmental impact or other permitting procedures.

Public participation is based on the right of those who may be affected, including foreign citizens and

residents, to have a say in the determination of their environmental future.”39

37. The Tucanos legislation provides for this participation through the publication of the initial

Environmental Impacts Reports to a website for a period of two months. Following the domestic

regulation, the State did not publish the reports in daily newspapers or by other reasonable means, but

merely on a website, which denied the same level of accessibility to the immigrant community.

38. In additional to recognition of the importance of public hearings in Tucanos’ municipal legislations,

the international community has established that the right to this information “imposes on states an

obligation not only to disclose to the public available information on the environment, but also the

positive duty to collect, collate, and disseminate information which would otherwise not be directly

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39 Kiss & Shelton, International Environmental Law 3rd. p. 673

accessible.[This is because,] public information represents one of the essential instruments for protecting

the well-being and health of the populace in situations of environmental danger.” 40

39. On the basis of all of the above, the Court should find that the Mirokai residents held legal property

rights under municipal law, which can only be restricted by the cases and in the manner established by

law. By failing to effectively keep the affected communities informed about the impacts the

development project would have on their land and by failing to provide an effective method of

participation in the decision-making process, the State failed to protect their right to property recognized

under Article 21 of the American Convention, in conjunction with Article 1.1 thereof.

B.2. The State of Tucanos violated the RIGHT TO FREEDOM OF MOVEMENT

AND RESIDENCE recognized in Article 22 ACHR, in relation to Article 1.1

thereof, to the detriment of the members of the Aricapus Indigenous population

and Immigrants of the Republic of Mirokai.

(a) The forced relocation of the displaced communities violates Article 22.1 ACHR freedoms

of the Aricapus and Mirokaien population.

40. A review of Article 22 rights and obligations establishes a simple test: 1) the person being relocated

must be in the territory lawfully; 2.a.) the limitation being applied must be an established law as well as

2.b.) applicable to the facts of the situation; 3) the restriction must be necessary; and 4) it must comply

with “the values and principles of liberty, equality, and social justice that are intrinsic to democracy.”41

These limits are permitted on some rights under particular circumstances and to a certain extent;

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40 Kiss & Shelton, International Environmental Law 3rd. p. 701

41 Inter-American Democratic Charter, Adopted by the General Assembly at its special session held in Lima, Peru, on Sep-

tember 11, 2001, Preamble ¶ 6

however this power is circumscribed by Article 28 ACHR protections of “rights or guarantees that are

inherent in the human personality or derived from representative democracy as a form of government”.

41. The Commission has previously established that, “the result of a forced transfer of an indigenous

community without it’s consultation, consent, or participation in the decision-making process can result

in “the loss of their lands and their compulsory transfer to […] communities that do not correspond to

their customs and traditions.”42

42. Thus, in applying the Court’s standards set forth in Yanomami Community v. Brasil, the forced

relocation to a site, designated solely by the State, with no consultation from the affected communities,

and specifically the indigenous Aricapus community, regarding the qualities of the new location,43 a

liability of the Republic of Tucanos “arises for having failed to take timely and effective measures to

protect the human rights of the” 44 relocated population. The Commission resolved that “by reason of the

failure of the [State] to take timely and effective measures in behalf of the [indigenous community], a

situation has been produced that has resulted in the violation, injury to them, of […] the right to

residence and movement”45 as set forth in Article VIII the American Declaration and interpreted through

various cases regarding special protections to indigenous communities.46 The State thus violated the

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42 Cf. Case of the Yanomami Community v. Brazil, RESOLUTION Nº 12/85, Case Nº 7615 BRAZIL, March 5, 1985

43 Hypothetical Case, ¶ ¶ 20, 3.f.

44 Cf. Case of the Xákmok Káse, supra. ¶ 128, “Likewise, faced with the Community’s complaint that the land offered as

an alternative to its traditional land was not suitable for settlement, neither the IBR nor the INDI requested that technical

studies be done to prove or disprove the Community’s claims, even though those State institutions are under a legal obliga-

tion to provide “land that is suitable and at least of equal quality” to the land that the Community occupies”; Yanomami

Community, supra. par.

45 Id, ¶ 11

46 Cf. Case of the Case of the Saramaka People v. Suriname, supra; Case of the Moiwana Community v. Suriname. Pre-

liminary Objections, Merits, Reparations and Costs. Judgment of June 15, 2005. Series C No. 124

right to freedom of movement recognized under Article 22 of the Convention, in relation to Article 1.1

thereof, by not providing adequate consultation safeguards and imposing an unstudied and inadequately

qualified relocation site against the express wishes of the affected population.

(b) The application of an evacuation policy is an improper use of law and would contradict

the protections in Article 22 and Article 2 obligations to provide for effective legal reme-

dies.

43. Art. 2 ACHR requires the State to comply with its obligations to the Convention by “adopt[ing], in

accordance with their constitutional processes and the provisions of this Convention [i.e. Article 28

ACHR federal clause provisions], such legislative or other measures as may be necessary to give effect

to those rights or freedoms.” Article VIII of the American Declaration, and interpreted through Article 26

ACHR and in conjunction with Article 22 ACHR, supplements the protections when it establishes the

freedom to reside “within the territory of the State of which [one] is a national, to move about freely

within such territory, and not to leave it except by [one’s] own will.”

44. The government proceeded to violate these obligations and Article 30 ACHR restrictions when they

utilized the NEP to forcibly expel the residents of the Betara and Corvina Rivers junction thereby

depriving property owners of the use and enjoyment of their land without due process for expropriation

measures. Under Article 29.b authority to expand its interpretation to other obligations binding to the

States Parties, and the Article 26 obligation on the States Parties to continuously evaluate and implement

the progressive development standards that best protect the rights protected in the American Convention,

the Court is authorized to implement the Protocol of Buenos Aires47 standards of protection for social

justice and economic development in order to compare similar international and foreign statutes and

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47 Protocol of Amendment to the Charter of the Organization of American States, "Protocol of Buenos Aires", OAS Treaty

Series No. 1-A, entered into force March 12, 1970. Article VIII

evacuation policy guidelines. Under these expanded standards, the Court should declare that Tucanos

evacuation regulations are not coherent with any of the United Nations, International Committee of the

Red Cross,48 or United States Department of Homeland Security49 regulations; these bodies establish

evacuations as a disaster management mechanism used to protect individuals or communities from a

“catastrophic incident”50 and not as mechanisms for expropriation of private property for any purpose.

45. A common-use or understanding of the term “disaster” provides a useful definition: “a sudden

calamitous event bringing great damage, loss, or destruction.”51 In the case at hand, the planned project

is neither sudden nor does it have the purpose of causing a calamity, since that would contradict the

pubic utility or social interest requirements in Art. 21.2. Therefore, since the situation does not pass the

“Disaster Test” necessary to invoke the use of an evacuation policy, the application of such in State

expropriations of property is a violation of the protections for private and collective property rights as

well as against arbitrary applications of law when appropriate and binding legislation and regulation

exist at the municipal or international level.52

B.3. The State of Tucanos violated the RIGHT TO EQUAL PROTECTION UNDER

THE LAW recognized in Article 24 ACHR, as well as the RIGHT TO A FAIR

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48 The four Geneva Conventions and Additional Protocol I confer on the ICRC a specific mandate to act in the event of

international armed conflict, and confers a right of humanitarian initiative recognized by the international community and

enshrined in Article 3 of all the Geneva Conventions.

49 U.S. Department of Homeland Security, Federal Emergency Management Agency established by Executive Order

12127, 1979; Title VI of P.L. 109-295 (H.R. 5441), the Post-Katrina Emergency Management Reform Act of 2006,109th

Congress,

50 Cf. 6 USCA § 701(4)

51 Merriam Webster dictionary: “disaster: 2: a sudden calamitous event bringing great damage, loss, or destruction;

broadly : a sudden or great misfortune or failure”

52 ACHR, Art. 2, 21, 26, 30

TRIAL and the RIGHT TO JUDICIAL PROTECTION recognized in Articles 8

and 25 ACHR, in relation to Articles 1.1 and 2 thereof, to the detriment of the

members of the Aricapu Indigenous population and Immigrants of the Republic of

Mirokai.

46. The American Convention provides every person the right to a hearing with guarantees of due

process, due diligence, equal standards, and a remedy within a reasonable time by a competent,

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

obligations of a civil, labor, fiscal, or any other nature.53 In the Inter-American System, which

consequently reflects the universal standards54, all persons are equal before the law. As a result, they are

entitled, without discrimination, to equal protection of the law.55 The due process of the law guarantee

must be observed in the administrative process and in any other procedure whose decisions may

substantially affect the rights of persons.56 The State is thus required to grant effective protection

providing for the particular conditions of the indigenous peoples, their economic and social situation, as

well as their special vulnerability, customary law, values, and customs.57

47. The Court has noted that the Convention establishes, in broad terms, the effective legal remedy

against acts that violate their fundamental rights that applies not only to rights included in the

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53 Cf. Xákmok Káse, supra ¶ 133

54 Universal Declaration on Human Rights (UN 1948) art. 7; UN Office of the High Commissioner for Human Rights -

11/10/1989. CCPR General Comment No. 18: Non-discrimination; International Covenant on Economic, Social and Cul-

tural Rights - Preamble; European Convention on Human Rights, Articles 6, 13, & 14;

55 International Convention on the Elimination of all Forms of Racial Discrimination (UN 1966) , Arts. 2.1

56 Cf. Sawhoyamaxa Indigenous Community, supra ¶ 82

57 Id. ¶ 83.

Convention, but also to those recognized by the Constitution or the law of the State.58 The Court’s test of

compliance with these norms and standards includes an evaluation of a) the appropriate legal remedy

under the circumstances of the present case; b) the effectiveness of said remedy; and c) the

reasonableness of the length of proceedings. 59

48. Each State undertakes to respect and ensure all individuals, within its territory and jurisdiction, the

rights recognized by the Covenant without distinction of any kind.60 Along with the State’s obligation to

prohibit and eliminate discrimination, the guarantee of rights includes equal access and treatment

before the law in order to protect and provide redress of infringements on any other freedom or right

provided under municipal or international law61 that grant just and adequate reparations of any damage

suffered.62

49. Tucanos municipal law provides a statutory procedure for environmental development projects and

from the facts of the case, it is evident that the State omitted various stages (B.5. infra) of the process

established by NIRED regulations. While providing access to petition the courts, the State failed to abide

by rule of law standards and equal application of the municipal and international laws and regulations

regarding the project development process63, thereby failing to secure equal treatment before the law as

broadly interpreted for especially vulnerable communities like the indigenous Aricapu and immigrant

Mirokaien people. The Court has stated that “in the interests of the principle of effectiveness and of the

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58 Cf. Awas Tingni, supra note 13, ¶ 111

59 Cf. Moiwana, supra, ¶ 143; Xákmok Káse, supra ¶ 133

60 International Covenant on Civil and Political Rights (UN 1966) , Arts. 2.1

61 International Convention on the Elimination of all Forms of Racial Discrimination (UN 1965) Art. 5, Declaration on the

Rights of Persons Belonging to National or Ethnic Religious or Linguistic Minorities (UN 1990) Art. 3.1 & 4.1

62 Id. Art. 6

63 Cf. Saramaka People. v. Suriname, No. 172, supra note 16 ¶ 140; Arguments B.5. infra

need for protection in cases of vulnerable individuals and groups, this Court has observed the broadest

legal interpretation of this right, as it finds that the State is especially ‘bound to guarantee to those

persons in situations of vulnerability, exclusion and discrimination, the legal and administrative

conditions that may secure for them the exercise of such right, pursuant to the principle of equality under

the law’.”64

50. By obtaining official property titles to the claimed lands, the State is required to give equal

consideration and due process to the effect of those titles. When the Petitioner’s attempted to exercise

their right to equal protection and fair legal recourse to claim infringement on their property titles, in

order to exhaust every domestic provision to vindicate their rights as required by the Articles 46 and 47

of the Convention, the municipal court failed to comply with its obligation to ensure adequate access to

judicial protection and give effect to the claims of rights violations when they failed to review the

evidence of a controversy of fact claim, basing its decision on the State’s argumentum ad verecundiam

affirming compliance with statutory obligations, subsequently dismissing the case in favor of the State

for lack of cause;65 The State failed to recognize the Petitioner’s rights to equal access to legal recourse

and judicial equality by not granting adequate and equal weight to their claims, thereby making their

judicial protection insufficient.66

51. Finally, the criteria of reasonableness in the length of proceedings67 was ignored when the state court

dismissed the claims and invalidated the provisional measures the appellate court had granted two

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64 Cf. Xákmok Káse, supra ¶ 250 citing the Case of Sawhoyamaxa Indigenous Community v. Paraguay, supra note 130, ¶

189, and Case of the Saramaka People. v. Suriname, No. 172, supra note 16, ¶ 166.

65 Cf. Hypothetical Case ¶ ¶ 25-28

66 Cf. Hypothetical Case ¶ 28

67 Cf. Xákmok Káse, supra ¶ 133 “i) complexity of the matter, ii) conduct of the authorities, iii) the affected party’s in-

volvement in the procedure and iv) the legal situation’s effect on the person involved in the procedure.”

months after the start of the construction without due diligence in entering into deliberation of the case

on its merits. The situation involves a complex matter of large-scale development projects affecting

communities with special protections and considerations that, the Court has stated,68 require a broader

interpretation of judicial protections. Therefore, in abstaining from a ruling of dismissal for two months,

without proper review of the facts, the municipal court stripped the Petitioner’s of any timely remedy.

52. The judicial system did not protect the communities from the violations of their rights. The

procedures exercised under Tucanos laws were inadequate to enable the Petitioners to assert their right

of property. The ineffectiveness of the recourse to judicial protection, in practice, has meant that these

actions, on the part of the State, represent a violation of the right to equal protection under the law a fair

trial and to judicial protection, recognized respectively in Articles 24(1), 8(1), and 25(1) of the

Convention, in relation to Articles 1.1 and 2 of the Convention, to the detriment of the Aricapus and

Mirokaien communities.69

53. When applying the standards recognized by the Court and set forth above, the failure to comply with

obligations was made under all three standards of evaluation recognized and used by the Court:

B.4. The State of Tucanos violated the RIGHT TO HONOR recognized in Article 11

and the RIGHT TO PERSONAL INTEGRITY recognized in Article 5 ACHR, in

relation to Article 1.1 thereof, to the detriment of the members of the Aricapus

Indigenous population and Immigrants of the Republic of Mirokai.

54. The protection of privacy guaranteed by Article 11 ACHR declares that “[n]o one may be the object

of arbitrary or abusive interference with his private life, his family, his home” and the State has the

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68 Cf. Xákmok Káse, supra ¶ 250

69 Cf. Xákmok Káse, supra ¶ 170; Moiwana, supra, ¶ 143

obligation to provide “the protection of the law against such interference or attacks.”70 As with most

rights, the State, through its mandate for public welfare, can exercise its right to subordinate individual

rights, such as “the right to privacy [because] it is not an absolute right and can be restricted by the

States, provided interference is not abusive or arbitrary[. T]o this end, it must be established by law, [that

it be in pursuit of] a legitimate purpose and be necessary in a democratic society.”71

55. One of the protections that the right to privacy guarantees is the protection of the home from

arbitrary or abusive intrusion. This scope of privacy “is characterized by being free and immune to

invasions or abusive or arbitrary attacks by others or the public authority. In this regard, home and

privacy are intrinsically linked, as the home becomes a space in which to develop a free and private

life.”72 The Court has established that “[a]rticle 11.2 of the Convention protects private life and home

from arbitrary or unfair interference. This Article recognizes that there is a personal level that must be

protected from intrusion by outsiders and the personal honor and family and home, must be protected

from such intrusion.”73

56. The protection of intimacy takes special importance when applied to indigenous people and their

environment. The relationship between the environment and their homes has been well developed by the

court as one with a direct relationship of dependence. The court has declared “that the cultural and

economic survival of indigenous and tribal peoples, and their members, depend on their access and use

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70 Articles 11.2 and 11.3 American Convention

71 Cf. Case of Miguel Castro-Castro Prison v. Peru, Judgment of November 25, 2006. Series C No. 160 ¶ 116

72 Cf. Case of the Ituango Massacres v Colombia, Judgment of July 1, 2006. Series C No. 148 ¶ 194

73 Id. ¶ 193

of the natural resources in their territory ‘that are related to their culture and are found therein.”74 The

goal of these “special measures required on behalf of the members of indigenous and tribal

communities, is to guarantee that they may continue living their traditional way of life, and that their

distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected,

guaranteed and protected by States.”75 Their goal is to protect their collective and individual privacy.

“[M]embers of indigenous and tribal communities require special measures that guarantee the full

exercise of their rights, particularly with regards to their enjoyment of property rights, in order to

safeguard their physical and cultural survival.”76

57. In the present case the state of Tucanos is developing and building a dam that will prohibit the title,

use, and enjoyment of the homes and lands of the Aricapus indigenous community.77 The State,

obviating any consultation, cultural demands, or consent from the affected parties, ordered the relocation

of the Aricapus community, separating the indigenous community from their homes and native lands.

The threat that has been created by the state of Tucanos against the homes of the Aricapus is a clear

example of a violation against the right to privacy established by the Convention. The construction and

development project is an arbitrary and abusive interference with their right to privacy. The State has

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74 Cf. Case of the Saramaka People v. Suriname. No. 172, supra note 13, ¶ 120 “The Court also takes notice that the Afri-

can Commission, as well as the Canadian Supreme Court and the South African Constitutional Court, have ruled that in-

digenous communities’ land rights are to be understood as including the natural resources therein. Nevertheless, according

to the African Commission and the Canadian Supreme Court, these rights are not absolute, and may be restricted under

certain conditions. Cf. African Commission on Human and Peoples’ Rights, The Social and Economic Rights Action Cen-

ter and the Center for Economic and Social Rights v. Nigeria, Communication 155/96 (2001), ¶ ¶ 42, 54 and 55, and Del-

gamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (December 11, 1997), ¶ ¶ 194, 199 and 201.”

75 Cf. Case of the Saramaka People v. Suriname Judgment of November 28, 2007 Series C No. 172 ¶ 121

76 Cf. Case of the Saramaka People v. Suriname Judgment of November 28, 2007 Series C No. 172 ¶ 85

77 Hypothetical case ¶ 15

made no effort to guarantee the safety and protection of the right to privacy of the community as

indigenous entity and of the individuals who face the danger of the destruction of their homes. In light of

the Court’s declaration, in the case of the Ituango Massacres v. Colombia, that the burning of homes by

the state constitutes a grave violation of the right to privacy,78 the Republic of Tucanos has also violated

the Petitioners’ right to privacy when the State proceeded to expel the residents of the designated area

and begin construction of a dam that would create a lake with an estimated surface area of 1.450 km2

that would destroy their homes.

58. On the basis of all of the above, the Court should find that the Aricapus and Mirokaiens both had

their private lives invaded and altered by the forced removal and relocation when the State authorized

the commencement of work on the dam in the territory where both had established their villages. The

Court should declare the state liable for failing to protect their right to honor recognized under Article 11

of the American Convention, in conjunction with Article 1.1 thereof.

B.5. The State violated the RIGHT TO A DIGNIFIED LIFE recognized in Article 4

ACHR, in relation to a violation of the obligation of PROGRESSIVE

DEVELOPMENT, recognized in Article 26 ACHR, and the RIGHT TO A

HEALTHY ENVIRONMENT, recognized in Article 11.2 of the Protocol of San

Salvador and interpreted through Article 29.b, to the detriment of the members of

the Aricapus Indigenous population and Immigrants of the Republic of Mirokai.

59. The issue here is whether the alleged victims were deprived of their right to a dignified life and

healthy environment in violation of the requirements set forth in Articles 4 and 5 ACHR and in violation

of the additional environmental protections imposed by Article 11.2 of the Protocol of San Salvador,

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78 Cf. Case of the Ituango Massacres v Colombia, Judgment of July 1, 2006. Series C No. 148 ¶ 192

through the application of the Court’s Article 29.b interpretive authority where the international

standards requires a higher standard of regulation and broader application of social and cultural

protections.

60. Article 4.1 ACHR establishes that every person has the right to have his life respected. The Court

has asserted that this right includes not only the right of every human being not to be arbitrarily deprived

of his life, but also the right that conditions that impede or obstruct access to a decent existence should

not be generated.79

61. One of the obligations that Tucanos must inescapably undertake is that of generating minimum

living conditions that are compatible with the dignity of the human person and of not creating conditions

that hinder or impede it.80 It has the duty to take positive, concrete measures geared towards fulfillment

of the right to a decent life, especially in the case of persons, like the Aricapus and Mirokaiens, who are

vulnerable and at risk and whose care becomes a high priority.81 The promotion and protection of

human rights of indigenous people and migrants is an essential contribution to the democracy of the

State of Tucanos.82

62. The Petitioner’s request the Court declare that the State of Tucanos generated conditions that

worsened the difficulties of access to a decent life for the members of the Aricapus and Mirokaiens in

violation of their right to honor protected under Article 5 by not taking appropriate affirmative measures

to mitigate the especially vulnerable situation in which it placed the indigenous and immigrant

communities it displaced. The Court should further declare that the State has violated the right to life

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79 Cf. Yakye Axa Indigenous Community v. Paraguay, supra ¶ 161.

80 Id. ¶ 162.

81 Id.

82 Article 9 of the Inter-American Democratic Charter, Lima, Peru, on September 11, 2001.

enshrined in Article 4 of the Convention, by forcing the evacuation of the Aricapus to the detrimental

and demoralizing negative effect on their cultural lives; as the evacuation will deprive their access to

their traditional means of subsistence and sacred grounds.83

63. Furthermore, the State has also violated Article 5.1 of the ACHR with regard to Article 4, by not

respecting the physical, mental and moral integrity of both the Aricapus and Mirokaiens.

64. The Court has recognized that indigenous people’s access to the use and enjoyment of ancestral

lands, and the natural resources found among and within, is a source of sustenance and nutrition on

which they have relied as an ancient people;84 and on which they have developed their own traditions,

beliefs, and customs. In this regard, the Committee on Economic, Social and Cultural Rights has

highlighted the special vulnerability of many groups of indigenous peoples whose access to ancestral

lands has been threatened and, therefore, their access to means of life and dignity.85

65. As part of the States Parties’ obligations to respect and protect a dignified life for all, with particular

attention to especially vulnerable communities such as indigenous and immigrant minorities, the State is

required to care for the particular conditions on which these communities are able to live self-

sustainably.86 In the instant case, the Indigenous population relies directly on the resources obtained

from a direct connection with the land they inhabit, and the Mirokaiens have established a their

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83 Id. ¶ 168; Hypothetical Case ¶ 24

84 Cf. Supra Note 6, ¶ 167.

85 Cf. U.N. Doc. E/C.12/1999/5. The right to adequate food (Art. 11), (20th session, 1999), ¶ 13, and U.N. Doc.

HRI/GEN/1/Rev.7 at 117. The right to water (Articles 11 and 12 of the International Covenant on Economic, Social and

Cultural Rights), (29th session 2002), ¶ 16. Id.

86 Id. ¶ 168

economic sustainability on the close relationship with this same community by establishing “peaceful

and cooperative relationships.”87

66. The Petitioners thus request the Court declare that the State violated the rights enshrined in Article 5

of ACHR through the forced separation of the Aricapus from their traditional lands and its means of

subsistence.88 The separation from their traditional lands, on which the indigenous population establish

their way of life and culture, has caused a continuous distress of vital spiritual, cultural and material

importance that threatens the fluid and multidimensional relationship with their ancestral lands89

essential for the culture to preserve its very identity and integrity.

67. The Court’s Article 29.b ACHR authority to interpret obligations on States Parties, stemming from

other instruments ratified by the State, also permits it to declare a failure to comply with the standards in

Article 11 of the Protocol of San Salvador, which states that the right to live in a healthy environment

with access to basic public services is a universal right that bestows a duty on the States Parties to

promote, protect, and preserve the environment.

68. The Representatives are aware that the right recognized under Article 11 of the Protocol is not one

of the justiciable rights mentioned in Article 19.6 of said instrument; however, the State is required, by

Article 26 ACHR, to adopt progressive measures to protect economic, social and cultural rights in the

American Convention, which the Court can thus supplement with the specific obligations under the

Protocol of San Salvador.

69. The Protocol of San Salvador was conceived to fill the gaps in the American Convention by

establishing a list of economic, social and cultural rights. Article 26 of ACHR imposes on the State of

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88 Cf. Moiwana Community v. Surinam, No. 124, supra note 13, ¶ 93.

89 Id. ¶ 101

Tucanos the obligation to adopt measures that promote the full realization of the rights of the Aricapu

and Mirokaien communities. Through this obligation, the State Parties are required to protect the right to

a healthy environment; this implies the sustainable, moderate use of all the elements, while focusing on

protection and conservation; including the flora and fauna and the collateral conditions for its creation.90

Some of the primary ways of violating the right to a healthy environment are related to the charge for

economic development through industrialization that promotes acts of indiscriminate devastation of

forests and biodiversity,91 such as the flooding of an entire region in order subject the water to the effects

of hydroelectric processing.

70. In the case at hand, Article 11 of the Protocol requires Tucanos to protect, preserve, and improve of

the environment.92 International law and its instruments have repeatedly and, in more recent years,

fervently recognized and sought to protect the environment requiring that States implement policies and

strategies to protect the environment; including the adoption of various treaties and conventions, to

achieve sustainable development for the benefit of future generations.93

71. Although the Court cannot declare a violation of Principle 1 of the Rio Declaration that proposes

that human beings are entitled to a healthy and productive life in harmony with nature,94 the Court is

competent to declare a violation of Article 26 ACHR obligations to comply with the progressive

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90 Rodríguez Rescia, Victor, The Right to a Healthy Environment in the Inter-American System for the Protection of Hu-

man Rights: In Search of the implementation of a regional litigation strategy (2003),

http://www.elaw.org/system/files/interamerican.victor.article.2003.eng.doc (Last visited January 3, 2011)

91 Id.

92 Protocol of San Salvador, Article 11

93 Article 15 of the Inter-American Democratic Charter, Lima, Peru, on September 11, 2001

94 Rio Declaration on Environment and Development, Principle 1, U.N. Doc. A/CONF.151/26 (Vol. I), Annex I (1992).



development measures stipulated in the Protocol Article 11.95 The Court can further apply Article 26

ACHR standards, its goals of a more coherent universal understanding and application of protective

measures, to review the elements of planning and consultation found in the Principles of Stockholm that

safeguard human rights in development projects.96 The Court has already established that in order to

grant “concessions for the exploration and extraction of natural resources,” the State must perform a

“prior environmental and social impact assessment.”97

72. As evidenced from the establishment of TEP legislation and NIRED regulations, planning is a

pivotal factor in environmental development projects within The Republic of Tucanos.98 The

Environmental Impact Assessment (EIA) performed by LAX, under NIRED supervision, lacked the

basic procedural and substantive elements required in the evaluation of projects with a significant

environmental effect.99 The EIA process, on principle, should ensure that, before granting approval,

authorities have fully identified and considered environmental and social effects of proposed activities,

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95 Principle 17 Rio Declaration, Environmental impact assessment, “shall be undertaken for proposed activities that are

likely to have a significant adverse impact on the environment and are subject to a decision of a competent national

authority”. ¶ 61 Declaration of Port of Spain “encourages the strengthening of domestic planning and zoning measures.” ¶

50, Declaration of Santa Cruz “promote environmental impact assessments in accordance with national law.”

96 Declaration of the United Nations Conference on the Human Environment, Stockholm from 5 to 16 June 1972, Princi-

ples 2, 4, 13, 14, 15, 17, 18, 20, 21

97 Cf. Saramaka People v. Suriname, No. 172 supra note 13 ¶ 129

98 Hypothetical Case ¶ 16. Tucanese Environmental Policy of 1991 (TEP) creates the National Institute for Renewable

Energy and Defense of the Environment (NIRED).

99 Craik, Neil, The International Law of Environmental Impact Assessment, Process Substance and Integration, (Cam-

bridge University Press, 2008). P. 133; Rio Declaration Principle 17.

and affected citizens have an opportunity to understand the proposed project and express their views to

decision makers.100

73. The evaluation of alternatives and their impacts is a requirement essential in any EIA process.101 The

EIA procedure adopted by the TEP and NIRED in this case does not comply with participatory

measures for vulnerable indigenous consultation regarding social, spiritual, cultural and environmental

impact, alternatives and risk assessments essential for an effective evaluation process102 in large-scale

development projects that affect vulnerable populations, 103 thus ignoring the Article 26 obligation to

adopt such measures.

74. The studies, carried out in 1980, to determine the most appropriate place for the construction of the

proposed power plant, have not been updated in 20 years.104 Therefore the Tucanos government is

supporting its evaluations and decisions on outdated data, which has a high propensity for error and

insufficiency in evaluation standards105 contrary to requirements for technical standards and the Article

26 ACHR scientific and technical standards of progressive development.

75. By the actions, procedures and negligence committed during the development and implementation

of the Cinco Voltas Project stated above, the Court should declare the State the State of Tucanos violated

the right to a dignified life recognized in Articles 4 and 5 of the Convention, and the obligation to

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100 Hunter, David, Salzman, James, Zaelke, Durwood, International Environmental Law and Policy, Third Edition (Foun-

dation Press 2007) p. 531

101 Craik, supra, p. 30

102 In addition to the principles of duty to assess environmental impacts, there are the following instruments; UNEP Prin-

ciples on Conservation and Harmonious Utilization of Natural Resources Shared by Two or More States, World Charter

for Nature, UNEP Goals and Principles of Environmental Impact Assessment, Principle 17 of Rio Declaration

103 ILO C169 Art. 6.3

104 Hypothetical Case ¶ 15

105 Id.

implement the progressive development standards of Article 26 of the Convention, by failing to ensure a

healthy environment for the Aricapus and the Mirokaiens, by not complying with the scientific and

technical standards set forth in Protocol Article 11 requiring that a project of this magnitude be

implemented with scientifically actualized and technically efficient data.

VI. REQUEST FOR RELIEF

A. CONCLUSIONS

76. The Court has established, several times, that any violation of an international obligation that has

caused damage entails the duty to provide appropriate reparations. The obligation to provide reparations,

which is regulated in all aspects (scope, nature, modes, and establishment of the beneficiaries) by

International Law, cannot be modified by the State that is under this obligation, nor can it avoid

complying with it, by invoking domestic legal provisions.

77. On the basis of the proven facts and as a matter of law and principles of redress, restitution, and

rehabilitation, the Petitioners request the Court to declare that the he Republic of Tucanos is responsible

for violations of articles 1, 2, 4, 5, 8, 21, 22, 24, 25 and 26 of the American Convention and Article 11 of

the San José Protocol.

B. DEMANDS

78. Pursuant to Article 63.1 of the Convention, which states that “every violation of an international

obligation which results in harm creates a duty to make adequate reparation,”106 the State is required to

provide restitution in integrum to make the effects of the violations committed disappear. The obligation

furthermore requires the State adopt measures that will safeguard said rights against repetition.”107

79. As a result of the above-mentioned, the Petitioners request that the Court order the State to:

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106 Cf. Case of the Velásquez Rodríguez Case, No. 7 (1989), supra note 11 ¶ 25

107 Cf. Case of the Case of Caesar, ¶ 121; Case of Huilca Tecse, ¶ 87, and Case of the Serrano Cruz Sisters, ¶ 134

B.1. respect and restore land claims by the Petitioners, with special regard to the Aricapus’ pro-

tected status as an indigenous people and their subsequent connection to their traditional and

ancestral lands,

B.2. refrain from acts that might give rise to agents of the State itself or third parties, acting with

the State’s acquiescence or tolerance, affecting the right to property or integrity of the terri-

tory of the Aricapus people and the Mirokaien residents,

B.3. repair the environmental damage caused by the development project concessions awarded

by the State in the territory occupied and used by the Aricapus people and Mirokaiens, and

make reparation and due compensation to the titled owners, both collective and individual,

for the damage done by the violations established;

B.4. take the necessary steps to approve, in accordance with the Republic of Tucanos’ constitu-

tional procedures and the provisions of the American Convention, such legislation and other

measures as may be needed to provide judicial protection and give effect to modern and in-

ternational standards for environmental development regulation; and

B.5. take the necessary steps to approve, in accordance with the Republic of Tucanos’ constitu-

tional procedures and the provisions of the American Convention, such legislative and other

measures as may be needed to provide judicial protection and give effect to the collective

and individual rights of the Petitioners in relation to statutory due process and special provi-

sions regarding large scale development projects on territory traditionally occupied by in-

digenous peoples.

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VII. APPENDIX A - AMERICAN CONVENTION ON HUMAN RIGHTS

Article 1.

The States Parties to this Convention 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, color, sex, language, religion, political or

other opinion, national or social origin, economic status, birth, or any other social condition.

Article 2. Domestic Legal Effects

Where the exercise of any of the rights or freedoms referred to in Article 1 is not already ensured by

legislative or other provisions, the States Parties undertake to adopt, in accordance with their consti-

tutional processes and the provisions of this Convention, such legislative or other measures as may

be necessary to give effect to those rights or freedoms.

Article 4. Right to Life

1. Every person has the right to have his life respected. This right shall be protected by law and, in

general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most seri-

ous crimes and pursuant to a final judgment rendered by a competent court and in accordance with a

law establishing such punishment, enacted prior to the commission of the crime. The application of

such punishment shall not be extended to crimes to which it does not presently apply.

3. The death penalty shall not be reestablished in states that have abolished it.

4. In no case shall capital punishment be inflicted for political offenses or related common crimes.

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5. Capital punishment shall not be imposed upon persons who, at the time the crime was commit-

ted, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women.

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commu-

tation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while

such a petition is pending decision by the competent authority.

Article 8. Right to a Fair Trial

1. Every 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, in the substantiation

of any accusation of a criminal nature made against him or for the determination of his rights and

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

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his

guilt has not been proven according to law. During the proceedings, every person is entitled, with

full equality, to the following minimum guarantees:

a) the right of the accused to be assisted without charge by a translator or interpreter, if he does

not understand or does not speak the language of the tribunal or court;

b) prior notification in detail to the accused of the charges against him;

c) adequate time and means for the preparation of his defense;

d) the right of the accused to defend himself personally or to be assisted by legal counsel of his

own choosing, and to communicate freely and privately with his counsel;

e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domes-

tic law provides, if the accused does not defend himself personally or engage his own counsel

within the time period established by law;

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f) the right of the defense to examine witnesses present in the court and to obtain the appear-

ance, as witnesses, of experts or other persons who may throw light on the facts;

g) the right not to be compelled to be a witness against himself or to plead guilty; and

h) the right to appeal the judgment to a higher court.

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any

kind.

4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial

for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests

of justice.

Article 9. Freedom from Ex Post Facto Laws

No one shall be convicted of any act or omission that did not constitute a criminal offense, under the

applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that

was applicable at the time the criminal offense was committed. If subsequent to the commission of

the offense the law provides for the imposition of a lighter punishment, the guilty person shall bene-

fit therefrom.

Article 10. Right to Compensation

Every person has the right to be compensated in accordance with the law in the event he has been

sentenced by a final judgment through a miscarriage of justice.

Article 11. Right to Privacy

1. Everyone has the right to have his honor respected and his dignity recognized.

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2. No one may be the object of arbitrary or abusive interference with his private life, his family, his

home, or his correspondence, or of unlawful attacks on his honor or reputation.

3. Everyone has the right to the protection of the law against such interference or attacks.

Article 21. Right to Property

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such

use and enjoyment to the interest of society.

2. No 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.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.

Article 22. Freedom of Movement and Residence

1. Every 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.

3. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent neces-

sary in a democratic society to prevent crime or to protect national security, public safety, public or-

der, public morals, public health, or the rights or freedoms of others.

4. The exercise of the rights recognized in paragraph 1 may also be restricted by law in designated

zones for reasons of public interest.

Article 23. Right to Participate in Government

1. Every citizen shall enjoy the following rights and opportunities:

a) to take part in the conduct of public affairs, directly or through freely chosen representatives;

b) to vote and to be elected in genuine periodic elections, which shall be by universal and equal

suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

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c) have access, under general conditions of equality, to the public service of his country.

2. The law may regulate the exercise of the rights and opportunities referred to in the preceding

paragraph only on the basis of age, nationality, residence, language, education, civil and mental ca-

pacity, or sentencing by a competent court in criminal proceedings.

Article 24. Right to Equal Protection

All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal

protection of the law.

Article 25. Right to Judicial Protection

1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a com-

petent 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.

2. The States Parties undertake:

a) 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;

b) to develop the possibilities of judicial remedy; and

c) to ensure that the competent authorities shall enforce such remedies when granted.

Article 26. Progressive Development

The States Parties undertake to adopt measures, both internally and through international coopera-

tion, especially those of an economic and technical nature, with a view to achieving progressively,

by legislation or other appropriate means, the full realization of the rights implicit in the economic,

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social, educational, scientific, and cultural standards set forth in the Charter of the Organization of

American States as amended by the Protocol of Buenos Aires.

Article 27. Suspension of Guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of

a State Party, it may take measures derogating from its obligations under the present Convention to

the extent and for the period of time strictly required by the exigencies of the situation, provided that

such measures are not inconsistent with its other obligations under international law and do not in-

volve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3

(Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Ar-

ticle 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post FactoLaws), Article 12 (Freedom

of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article

19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in

Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other

States Parties, through the Secretary General of the Organization of American States, of the provi-

sions the application of which it has suspended, the reasons that gave rise to the suspension, and the

date set for the termination of such suspension.

Article 28. Federal Clause

1. Where a State Party is constituted as a federal state, the national government of such State Party

shall implement all the provisions of the Convention over whose subject matter it exercises legisla-

tive and judicial jurisdiction.

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2. With respect to the provisions over whose subject matter the constituent units of the federal State

have jurisdiction, the national government shall immediately take suitable measures, in accordance

with its constitution and its laws, to the end that the competent authorities of the constituent units

may adopt appropriate provisions for the fulfillment of this Convention.

3. Whenever two or more States Parties agree to form a federation or other type of association, they

shall take care that the resulting federal or other compact contains the provisions necessary for con-

tinuing and rendering effective the standards of this Convention in the new State that is organized.

Article 29. Restrictions Regarding Interpretation

No provision of this Convention shall be interpreted as:

a) permitting any State Party, group, or person to suppress the enjoyment or exercise of the

rights and freedoms recognized in this Convention or to restrict them to a greater extent than is

provided for herein;

b) 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;

c) precluding other rights or guarantees that are inherent in the human personality or derived

from representative democracy as a form of government; or

d) excluding or limiting the effect that the American Declaration of the Rights and Duties of

Man and other international acts of the same nature may have.

Article 30. Scope of Restrictions

The restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the

rights or freedoms recognized herein may not be applied except in accordance with laws enacted for

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reasons of general interest and in accordance with the purpose for which such restrictions have been

established.

Article 31. Recognition of Other Rights

Other rights and freedoms recognized in accordance with the procedures established in Articles 76

and 77 may be included in the system of protection of this Convention.

Article 32. Relationship between Duties and Rights

1. Every person has responsibilities to his family, his community, and mankind.

2. The rights of each person are limited by the rights of others, by the security of all, and by the just

demands of the general welfare, in a democratic society.

Article 44

Any person or group of persons, or any nongovernmental entity legally recognized in one or more

member states of the Organization, may lodge petitions with the Commission containing denuncia-

tions or complaints of violation of this Convention by a State Party.

Article 45

1. Any State Party may, when it deposits its instrument of ratification of or adherence to this Con-

vention, or at any later time, declare that it recognizes the competence of the Commission to receive

and examine communications in which a State Party alleges that another State Party has committed a

violation of a human right set forth in this Convention.

2. Communications presented by virtue of this Article may be admitted and examined only if they

are presented by a State Party that has made a declaration recognizing the aforementioned compe-

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tence of the Commission. The Commission shall not admit any communication against a State Party

that has not made such a declaration.

3. A declaration concerning recognition of competence may be made to be valid for an indefinite

time, for a specified period, or for a specific case.

4. Declarations shall be deposited with the General Secretariat of the Organization of American

States, which shall transmit copies thereof to the member states of that Organization.

Article 46

1. Admission by the Commission of a petition or communication lodged in accordance with Arti-

cles 44 or 45 shall be subject to the following requirements:

a) that the remedies under domestic law have been pursued and exhausted in accordance with

generally recognized principles of international law;

b) that the petition or communication is lodged within a period of six months from the date on

which the party alleging violation of his rights was notified of the final judgment;

c) that the subject of the petition or communication is not pending in another international pro-

ceeding for settlement; and

d) that, in the case of Article 44, the petition contains the name, nationality, profession, domi-

cile, and signature of the person or persons or of the legal representative of the entity lodging the

petition.

2. The provisions of paragraphs 1.a and 1.b of this Article shall not be applicable when:

a) the domestic legislation of the State concerned does not afford due process of law for the

protection of the right or rights that have allegedly been violated;

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b) the party alleging violation of his rights has been denied access to the remedies under do-

mestic law or has been prevented from exhausting them; or

c) there has been unwarranted delay in rendering a final judgment under the aforementioned

remedies.

Article 62

1. A State Party may, upon depositing its instrument of ratification or adherence to this Convention,

or at any subsequent time, declare that it recognizes as binding, ipso facto,and not requiring special

agreement, the jurisdiction of the Court on all matters relating to the interpretation or application of

this Convention.

2. Such declaration may be made unconditionally, on the condition of reciprocity, for a specified

period, or for specific cases. It shall be presented to the Secretary General of the Organization, who

shall transmit copies thereof to the other member states of the Organization and to the Secretary of

the Court.

3. The jurisdiction of the Court shall comprise all cases concerning the interpretation and applica-

tion of the provisions of this Convention that are submitted to it, provided that the States Parties to

the case recognize or have recognized such jurisdiction, whether by special declaration pursuant to

the preceding paragraphs, or by a special agreement.

Article 63

1. If the Court finds that there has been a violation of a right or freedom protected by this Conven-

tion, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that

was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that

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constituted the breach of such right or freedom be remedied and that fair compensation be paid to the

injured party.

2. In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to per-

sons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under

consideration. With respect to a case not yet submitted to the Court, it may act at the request of the

Commission.

Article 64

1. The member states of the Organization may consult the Court regarding the interpretation of this

Convention or of other treaties concerning the protection of human rights in the American states.

Within their spheres of competence, the organs listed in Chapter X of the Charter of the Organization

of American States, as amended by the Protocol of Buenos Aires, may in like manner consult the

Court.

2. The Court, at the request of a member State of the Organization, may provide that State with

opinions regarding the compatibility of any of its domestic laws with the aforesaid international in-

struments.

Article 68

1. The States Parties to the Convention undertake to comply with the judgment of the Court in any

case to which they are parties.

2. That part of a judgment that stipulates compensatory damages may be executed in the country

concerned in accordance with domestic procedure governing the execution of judgments against the

state.

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VIII. APPENDIX B - STATUTORY TEXT OF ADDITIONAL INSTRUMENTS

A. ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN

RIGHTS IN THE AREA OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS,

“PROTOCOL OF SAN SALVADOR”

Article 11 - Right to a Healthy Environment

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

services.

2. The States Parties shall promote the protection, preservation, and improvement of the environ-

ment.

B. PROTOCOL OF AMENDMENT TO THE CHARTER OF THE ORGANIZATION OF

AMERICAN STATES, "PROTOCOL OF BUENOS AIRES", OAS TREATY SERIES

NO. 1-A, ENTERED INTO FORCE MARCH 12, 1970.

Article VIII

Chapter VI entitled "Economic Standards" shall be replaced by a Chapter VII having the same title

and consisting of Articles 29 to 42, inclusive, which shall read as follows:

Article 29

The Member States, inspired by the principles of Inter--American solidarity and cooperation,

pledge themselves to a united effort to ensure social justice in the Hemisphere and dynamic

and balanced economic development for their peoples, as conditions essential to peace and

security.

Article IX

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Chapter VII entitled "Social Standards" shall be replaced by a Chapter VIII having the same title and

consisting of Articles 43 and 44, which shall read as follows:

Article 43

The Member States, convinced that man can only achieve the full realization of his aspira-

tions within a just social order, along with economic development and true peace, agree to

dedicate every effort to the application of the following principles and mechanisms:

a) All human beings, without distinction as to race, sex, nationality, creed, or social condi-

tion, have a right to material well-being and to their spiritual development, under cir-

cumstances of liberty, dignity, equality of opportunity, and economic security;

[…]

d) Fair and efficient systems and procedures for consultation and collaboration among the

sectors of production, with due regard for safeguarding the interests of the entire society;

[…]

f) The incorporation and increasing participation of marginal sectors of the population, in

both rural and urban areas, in the economic, social, civic, cultural, and political life of the

nation, in order to achieve the full integration of the national community, acceleration of

the process of social mobility, and the consolidation of the democratic system. The en-

couragement of all efforts of popular promotion and cooperation that have as their pur-

pose the development and progress of the community;

[…]

i) Adequate provision for all persons to have due legal aid in order to secure their rights.

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C. UNITED NATIONS DECLARATION ON THE RIGHTS OF INDIGENOUS PEO-

PLES (UN 2007)

Article 21:

Indigenous peoples have the right to maintain and develop their political, economic and social sys-

tems, to be secure in the enjoyment of their own means of subsistence and development, and to en-

gage freely in all their traditional and other economic activities. Indigenous peoples who have been

deprived of their means of subsistence and development are entitled to just and fair compensation.

Article 22:

Indigenous peoples have the right to special measures for the immediate, effective and continuing

improvement of their economic and social conditions, including in the areas of employment, voca-

tional training and retraining, housing, sanitation, health and social security. Particular attention shall

be paid to the rights and special needs of indigenous elders, women, youth, children and disabled

persons.

Article 23:

Indigenous peoples have the right to determine and develop priorities and strategies for exercising

their right to development. In particular, indigenous peoples have the right to determine and develop

all health, housing and other economic and social programmes affecting them and, as far as possible,

to administer such programmes through their own institutions.

D. C-169, CONVENTION ON INDIGENOUS AND TRIBAL PEOPLE (ILO CONVEN-

TION 1989)

Article 7

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3. The peoples concerned shall have the right to decide their own priorities for the process of de-

velopment as it affects their lives, beliefs, institutions and spiritual well-being and the lands they oc-

cupy or otherwise use, and to exercise control, to the extent possible, over their own economic, so-

cial and cultural development. In addition, they shall participate in the formulation implementation

and evaluation of plans and programmes for national and regional development which may affect

them directly.

4. The improvement of the conditions of life and work and levels of health and education of the

peoples concerned, with their participation and cooperation, shall be a matter of priority in plans for

the overall economic development of areas they inhabit. Special projects for development of the ar-

eas in question shall also be so designed as to promote such improvement

E. AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN

Article VIII. Right to residence and movement.

Every person has the right to fix his residence within the territory of the State of which he is a na-

tional, to move about freely within such territory, and not to leave it except by his own will.

Article XXIII. Right to property.

Every person has a right to own such private property as meets the essential needs of decent living

and helps to maintain the dignity of the individual and of the home.

Article XXVIII. Scope of the rights of man.

The rights of man are limited by the rights of others, by the security of all, and by the just demands

of the general welfare and the advancement of democracy.

F. INTER-AMERICAN DEMOCRATIC CHARTER

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G. DECLARATION ON THE RIGHTS OF PERSONS BELONGING TO NATIONAL OR

ETHNIC RELIGIOUS OR LINGUISTIC MINORITIES (UN 1990)

Article 4.5

States should consider appropriate measures so that persons belonging to minorities may participate

fully in the economic progress and development in their country.”

H. REPUBLIC OF TUCANOS: NATIONAL INSTITUTE FOR RENEWABLE ENERGY

AND DEFENSE OF THE ENVIRONMENT

Environmental development project implementation regulation:

1st Step: A previous permit allowing the construction of the power-plant must be emitted by the

NIRED after an evaluation of the expected environmental impacts in the area. Only

after this permit is issued can the official documents initiating the bidding procedures

be published.

2nd Step: The bidding documents are issued and companies interested in carrying out the con-

structions can present their projects.

3rd Step: The Company chosen is hired and shall work together with the NIRED to create an

Environmental Impacts Report (EIR). In this report all the areas that will be affected

by the project must be specified, including all expected losses in biodiversity, pollution

levels and impacts over the population’s life. The EIR must have an approval stamp

issued by the NIRED, which will also take an active role in its composition and for-

mulation.

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4th Step: The EIR must be published and made available during two months on a website so

that all NGOs, government agencies and the general public can give their opinions on

the projects.

5th Step: Once these two months have passed, the NIRED will then have a three month dead-

line to review the populations’ criticism of the report and make a second analysis of it.

Once these have been analyzed the NIRED must work together with the hired com-

pany to better their report and try and diminish all the expected impacts to the lowest

level possible.

6th Step: Once it has been altered, the EIR must then be approved and ratified by the NIRED

president.

7th Step: After the report is ratified the chosen company will then be allowed to start construc-

tion work on the power-plant. These must be accompanied and supervised by the NI-

RED. During this process the chosen company shall submit trimester reports of the

construction work for NIRED evaluation.

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IX. ABBREVIATIONS

Additional Protocol to the American Convention on Human Rights in the Area of Economic,

Social, and Cultural Rights................................................................. Protocol of San Salvador, Protocol

American Convention on Human Rights ................................................... American Convention, ACHR

American Declaration of the Rights and Duties of Man............... American Declaration, AmDRDM

Charter of the Organization of American States.................................................................................. Charter

Environmental Impact Report ......................................................................................................................... EIR

Federal Republic of Tucanos ............................................................................................... Republic, Tucanos

Inter-American Commission on Human Rights ........................................ The Commission, IAComHR

Inter-American Court on Human Rights........................................................................ The Court, IACtHR

Indigenous Land Recognition Act of 1975............................................................................................... ILRA

International Covenant on Civil and Political Rights......................................................................... ICCPR

International Covenant on Economic, Social, and Cultural Rights............................................. ICESCR

Kingdom of Araras......................................................................................................................................... Araras

National Evacuation Policy ............................................................................................................................ NEP

National Institute for Renewable Energy and Defense of the Environment .............................. NIRED

Organization of American States .................................................................................................................. OAS

Tucanos Environmental Policy of 1991....................................................................................................... TEP

United Nations....................................................................................................................................................... UN

United Nations Economic and Social Council ................................................................................ ECOSOC

Universal Declaration of Human Rights ................................................................................................ UDHR

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