TEAM NO. 6387

____________________________________________________

IN THE INTER-AMERICAN COURT OF HUMAN RIGHTS

SAN JOSE, COSTA RICA

____________________________________________________

INDIGENOUS POPULATION ARICAPUS AND IMMIGRANTS OF THE REPUBLIC OF MIROKAI,

Petitioner

V.

FEDERAL REPUBLIC OF TUCANOS,

Respondent

____________________________________________________

MEMORIAL FOR THE PETITIONERS

____________________________________________________

THE FIRST MOOT COURT COMPETITION

FOR THE INTER-AMERICAN COURT OF HUMAN RIGHTS 2010

TEAM NO. 6387

ii

TABLE OF CONTENTS

Index of Authorities…………………………………………………...…………………………v

Statement of Facts……………………………………………..…………………………………1

Legal Analysis……………………………………………………………………………………5

I. STATEMENT OF JURISDICTION ............................................................................. 5

A. The Petitioners Have Exhausted Domestic Remedies ............................................ 5 B. The Petitioners Have Satisfied the Timeliness Requirement.................................. 5

II. TUCANOS VIOLATED PETITIONERS’ PROPERTY RIGHTS UNDER ARTICLE 21 OF THE CONVENTION BY AUTHORIZING THE PROJECT WHICH UNJUSTIFIABLY RESTRICTED THE USE AND ENJOYMENT OF THEIR LAND AND NATURAL RESOURCES.......................................................... 6

A. This Court Should Afford the Same Legal Protection to Both the Immigrant Population From Mirokai and the Aricapus Because They Share

Similar Distinct Characteristics and Depend on Their Land for Survival .............. 7

B. The Petitioners’ Right to Property Incorporates the Right to Use and Enjoy Land and its Natural Resources.................................................................... 7

C. Tucanos Endangered the Petitioners’ Survival by Placing Impermissible Restriction on the Petitioners’ Property Rights ...................................................... 8

1. Tucanos Failed to Comply with the “Effective Participation” Safeguard by Denying the Petitioners the Right to Effective Consultation and Prior

Informed Consent.............................................................................................. 9 2. Tucanos Failed to Comply with the "Benefit Sharing" Safeguard Because It Did Not Implement Appropriate Procedures to Share Benefits from the

Project’s Operation ........................................................................................ 11

3. Tucanos Failed to Comply the Environmental and Social Impact Assessments Safeguard ................................................................................... 12

III. TUCANOS VIOLATED ARTICLE 1 OF THE CONVENTION AND ARTICLE 3 OF THE SAN SALVADOR PROTOCOL BY DISCRIMINATING AGAINST THE MIROKAIENS BASED ON THEIR IMMIGRANT STATUS.... 13

TEAM NO. 6387

iii

IV. TUCANOS VIOLATED ARTICLE 24 OF THE CONVENTION BY FAILING TO TAKE MEASURES TO ENSURE PETITIONERS’ FULL ENJOYMENT

OF THE RIGHT TO EQUAL PROTECTION, AND BY TAKING ACTION THAT AMOUNTED TO DISCRIMINATION BECAUSE THEY WERE NOT REASONABLE AND LACKED LEGITIMATE OBJECTIVE..................... 14

V. TUCANOS VIOLATED ARTICLE 22 OF THE CONVENTION BY RESTRICTING THE PETITIONERS’ FREEDOM OF MOVEMENT

AND BY FORCING DISPLACEMENT FROM THEIR TERRITORY............... 17

VI. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO HUMANE TREATMENT AND HONOR UNDER ARTICLES 5 AND 11 OF THE CONVENTION BY CAUSING PSYCHOLOGICAL, SPIRITUAL, AND ECONOMIC HARDSHIP .......................................................................................... 17

VII. TUCANOS VIOLATED ARTICLES 8 AND 25 OF THE CONVENTION BY FAILING TO PROVIDE THE PETITIONERS WITH EFFECTIVE

JUDICIAL PROTECTION AND WITH DUE PROCESS GUARANTEE........... 18

VIII. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO LIFE UNDER ARTICLE 4 OF THE CONVENTION BY AUTHORIZING THE PROJECT THAT THREATENED THEIR SURVIVAL ........................................................... 20

IX. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO A HEALTHY ENVIRONMENT UNDER ARTICLE 11 OF SAN SALVADOR PROTOCOL WHEN IT AUTHORIZED A PROJECT THREATENING PERMANENT HARM TO THE PETITIONERS’ NATURAL ENVIRONMENT ........................ 21

A. Tucanos Failed to Guarantee Special Protection of the Petitioners’ Right to a Healthy Environment ..................................................................................... 22 B. Hydroelectric Power Plants Cause Irreparable Harm to the Environment and Endanger Human Survival in Violation of the Right to a Healthy

Environment.......................................................................................................... 23

C. Tucanos’ Hydroelectric Power Plant Project Threatens the Petitioners’ Right to Live in a Healthy Environment............................................................... 24

D. Tucanos Violated the Petitioners’ Right to a Healthy Environment When it Acted Contrary to the Principle of Sustainable Development........................... 25

1. Tucanos Failed to Preserve Petitioners’ Traditional Knowledge Regarding Sustainable Use of Their Natural Resources ................................ 26

TEAM NO. 6387

iv

2. Tucanos Failed to Exploit Natural Resources in a Sustainable Manner Necessary to Preserve Them for the Benefit of Present and Future Generations..................................................................................................... 27

X. THIS COURT SHOULD INTERPRET THE CONVENTION PURSUANT TO ARTICLE 29 OF THE CONVENTION TO INCLUDE THE

PRECAUTIONARY PRINCIPLE, THE DUTY TO CONDUCT AN ENVIRONMENTAL IMPACT ASSESSMENT, AND THE PRINCIPLE

OF SUSTAINABLE DEVELOPMENT, IN ORDER TO EFFECTIVELY PROTECT PETITIONERS’ HUMAN RIGHTS ..................................................... 28

A. Tucanos Violated the Petitioners' Human Rights by Failing to Prevent Environmental Damage Before it Occurred Pursuant to the Precautionary Principle ................................................................................................................ 28

B. Tucanos Violated The Petitioners’ Human Rights by Failing to Conduct an Adequate Environmental Impact Assessment ...................................................... 30

C. Tucanos Failed to Act Pursuant to the Principle Sustainable Development......... 31

XI. THIS COURT SHOULD GRANT PROVISIONAL MEASURES NECESSARY TO AVOID URGENT, GRAVE AND IRREPARABLE HARM TO THE PETITIONERS ............................................................................................................ 32

A. Authority and Requirements for Granting Provisional Measures......................... 32 B. Conditions Substantiating the Grant of Provisional Measures ............................. 32

XII. REQUEST FOR RELIEF ............................................................................................ 34

TEAM NO. 6387

v

INDEX OF AUTHORITIES

INTER-AMERICAN HUMAN RIGHTS’ CASES

Saramaka People v Suriname, 2007, Inter-Am. Ct. H.R. (ser. C)

No. 172 (Nov. 28, 2007) .................................................................................................... passim Yanomani Indians v. Brazil, Inter-Am. C.H.R. 7615,

OEA/Ser.L.V/II/66 doc. 10 rev. 1 (1985). ................................................................................ 20 Maya Indigenous Communities v. Belize, Case 12.053, Inter-Am. C.H.R., No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 (Oct. 12, 2004). ...................................... passim Xákmok Kásek Indigenous Community of the Enxet-Lengua People and their Members v. Paraguay, Case 12.420, Inter-Am. C.H.R., Report No. 78/09, (July 03, 2009). ......................................................................................................................... 18

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

Sawhoyamaxa Indigenous Community v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146, (March 29, 2006)........................................................................................... 20

Moiwana Community v. Suriname, 2006 Inter-Am. Ct. H.R. (ser. C) No. 145, (Feb. 8, 2006);.................................................................................................................... passim

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

Mapiripán Massacre v. Colombia, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134, (Sep. 15, 2005);......................................................................................................................... 17

Tibi v. Ecuador, 2004 Inter-Am. Ct. H.R. (ser. C) No. 114, (Sep. 7, 2004 .............................. 18 Velásquez-Rodrígues v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, (July 29, 1988). .. 5

Four Ngobe Indigenous Communities and Their Members, 2010 Inter-Am. Ct. H.R., considering 4 (May 28, 2010). .................................................................................................. 32

Yatama v. Nicaragua, 2004 Inter-Am. Ct. H.R. (ser. C) No. 127, (June 23, 2005).................. 18

OTHER CASES

Gabikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 42 .................................. passim

North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20). ........ 21 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Order of Sep. 14, 2007), available at http://www.icj-cij.org/docket/files/135/14050.pdf (last visited Feb. 07, 2010). ... 30 Ricardo Canese v. Paraguay, 2004 Inter-Am. Ct. H.R. (ser. C) No. 111, (Aug. 31, 2004)...... 17

TEAM NO. 6387

vi

S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7); ............................................ 21

TREATIES AND OTHER INTERNATIONAL INSTRUMENTS

American Convention on Human Rights........................................................................... passim

Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights [San Salvador Protocol], .................................. passim

American Declaration of the Rights and Duties of Man,................................................... passim U.N. Convention on Biological Diversity [CBD], ............................................................ passim Charter of the Organization of American States [Charter], ................................................. 13,14 Copenhagen Declaration on Social Development in the Report of the UN Summit for Social Development......................................................................................... 26, 32 Declaration of Santa Cruz de la Sierra, [ Santa Cruz Declaration]................................. 25,26,32

International Labour Organization [ILO], Convention Concerning Indigenous and Tribal Peoples in Independent Countries [ILO Convention No. 169] ............................... passim

Inter-American Democratic Charter[Democratic Charter],. ................................................ 21,31 International Covenant on Civil and Political Rights [ICCPR] ......................................... passim International Covenant on Economic, Social and Cultural Rights, [ICESCR]......................... 21 Proposed American Declaration on the Rights of Indigenous Peoples [American Declaration], ........................................................................................................... 22 United Nations Conference on Environment and Development, Rio Declaration on

Environment and Development, [Rio Declaration] ........................................................... passim Universal Declaration of Human Rights, [UDHR]............................................................ passim United Nations Conference on Environment and Development, Agenda 21: Programme of Action for Sustainable Development, [Agenda 21]................................... passim United Nations Declaration on the Rights of Indigenous Peoples, [U.N. Declaration]. ............................................................................................................ passim

Declaration of the United Nations Conference on the Human Environment, [Stockholm Declaration], .......................................................................................................... 21

World Summit on Sustainable Development, [Johannesburg Plan]............................. 26, 27, 31

TEAM NO. 6387

vii

ARTICLES AND BOOKS

Abby Rubinson, Regional Projects Requires Regional Planning: Human Rights Impacts Arising from Infrastructure Projects, 28 Mich. J. Int’l L. 175, 175-204 (2006)....................... 23 Agne Sirinskiene, The Status of the Precautionary Principle: Moving Towards a Rule of Customary Law (2009)................................................................. 28 Armstrong Wiggins, Moderator, Free Prior Informed Consent For Indigenous Peoples and Local Communities: A Briefing for World Bank Executive Directors (June 14, 2004) .......... 10 Duncan Graham-Rowe, Hydroelectric Power’s Dirty Secret Revealed, NewScientist, Feb. 24, 2005 . ................................................................................................... 23 Goa Guidelines on Intergenerational Equity adopted by the Advisory Committee to the U.N. Univ. Project on "International Law, Common Patrimony and Intergenerational Equity", Goa (1988).................................................................................................................. 27

Joe Bryan, Dilemmas of Indigenous Land in Awas Tingni v Nicaragua, Anthropology News (Sept. 2006)..................................................................................................................... 15

Matthew F. Jackson, Putting the “Sustainable” Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global

Environmental Sustainability, 21 J. Envtl. L. & Litig. 157 (2006)........................................... 25 Patrick McCully, Silenced Rivers: The Ecology and Politics of Large Dams (London: Zed Books, 2001) (1996) [McCully]. .................................................................. 23,24 Peter Gorrie, The James Bay Power Project, CANADIAN GEOGRAPHIC, Feb.-Mar. 1990,......................................................................................................................... 24 Philippe Sands, Principles of International Environmental Law 253 (The Press Syndicate of the University of Cambridge, 2003) (1995).................................. 28,31

RULES AND OTHER AUTHORITIES

Inter-American Commission of Human Rights Rules of Procedure .......................................... 5

Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Inter-Am. Ct. H.R. (ser. A) No. 9, Advisory Op. OC-9/87, ¶ 23 (Oct. 6, 1987)................................................................... 18 OAS, General Assembly, Resolution: Human Rights and Environment, AG/RES. 1819 (XXXI-O/01) (2001)........................................................................................ 21 Juridical Condition and Human Rights of the Child, Inter-Am. Ct. H.R. (ser A) No. 17, Advisory Op. OC-17/02, (Aug. 28, 2002). ...................................................... 15 Juridical Condition and Rights of the Undocumented Migrants, Inter-Am. Ct. H.R. (ser. A) No. 18, Advisory Op. OC-18/03........................................................................ 13,14,15 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Inter-Am. Ct. H.R. (ser. A) No. 2, Advisory Op. OC-2/82, (Sept. 24, 1982). 13

TEAM NO. 6387

viii

U.S. Geological Survey, http://ga.water.usgs.gov/edu/hybiggest.html .................................... 11 Protection of Migrants, United Nations General Assembly, Resolution A/RES/54/166 (Feb. 24, 2000).......................................................................................................................... 13 Report on the Situation of Human Rights in Ecuador, OEA/Ser. L/V/11.96, Doc.10 rev 1, Apr. 24, 1997, Ch. VIII................................................... 21 United Nations Human Rights Committee, General Comment 15, The Situation of Aliens in Accordance with the Covenant, 11/04/86, CCPR/C/27........................................................ 13 U.N. Special Rapporteur, Erica-Irene A. Daes, Indigenous Peoples' Permanent Sovereignty over Natural Resources, P 40, E/CN.4/Sub.2/2004/30 (July 13, 2004). ............... 8

TEAM NO. 6387

1

STATEMENT OF FACTS

The Federal Republic of Tucanos

The Federal Republic of Tucanos (“Tucanos”) is a democratic republic, which

participated in the OAS Charter negotiation process, ratified all of the Inter-American treaties on

human rights, including the American Convention on Human Rights (“Convention”), as well as

most of the UN treaties. (R ¶ 1) Tucanos accepted the Inter-American Court on Human Rights’

(“Court”) binding jurisdiction. (Clarification Question (“CQ”) 12) Tucanos, whose economy has

been mainly agricultural, decided to invest in industry stimulating growth of local economy,

which created a high demand for energy. (R ¶ 3) Tucanos decided to construct a hydroelectric

power plant Cinco Voltas (“Plant”) in response to this demand. (Id.)

Aricapus, the Indigenous Population in Tucanos

Aricapus are one the oldest indigenous people with 3,250 members, who settled close to

dense forests of Tucanos. (R ¶ 2) At least 15 of 20 Aricapu villages are located in the junction of

the rivers Betara and Corvina, close to the border with the Kingdom of Araras, where the plant is

being built. (R ¶ 8) They continue to exist today as a group of hunters, cultivating and harvesting

their own food. (R ¶ 5) Village chiefs meet monthly in the General Assembly (“Assembly”) to

discuss pressing issues. Secretary General, who presides over the Assembly, is the point-man

representing Aricapus’ interests in the Assembly, elected every two years. (Id.) The Indigenous

Land Recognition Act of 1975 recognized the Aricapus’ collective rights to land, and afforded

them with property titles guaranteeing their ownership. (R ¶ 7)

Mirokaiens, the Immigrant Population in Tucanos

The Mirokai Republic, located in Asia, was hit by tsunami in 1970, which forced 10,000

Mirokaiens to migrate to Tucanos. (R ¶¶ 10, 11) Upon their arrival to Tucanos, the Mirokaiens

TEAM NO. 6387

2

registered in accordance with the local law, and subsequently acquired property title. (R ¶ 14)

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

small objects, which they sell in local markets nearby. (R ¶ 11) The Tucanos’ Constitution

guarantees fair and equal treatment for foreign populations. (R ¶ 13)

Cinco Voltas Project Implementation Process:

According to the 1980’s studies, the junction of the Betara and Corvina rivers, where the

Mirokaiens and Aricapus (“Petitioners”) reside, is the most appropriate place for the plant’s

construction due to the high volume of water. (R ¶ 15) The plant is designed to produce 11.000

megawatts of energy. (Id.) The construction procedure is regulated by local law 8090/91, which

establishes the country’s environmental legislation, Tucanese Environmental Policy of 1991

(“TEP”), and creates the National Institute for Renewable Energy and Defense of the

Environment (“NIRED”). (R ¶ 16) The steps for project implementation are as follows:

1. A previous permit allowing construction must be emitted by the NIRED after an evaluation of the expected environmental impacts in the area. Bidding documents are published (Id.)

2. Interested Construction Companies can submit their bids for the project. (Id.)

3. The selected company and the NIRED create an Environmental Impacts Report (“EIR”). The EIR must specify all the affected areas, including expected losses in biodiversity, pollution levels and impacts over the population’s life, and must have an approval stamp from NIRED. (Id.)

4. The EIR must be published and available on a website during two months. (Id.) 5. Afterwards, the NIRED imposes a three month deadline to review the

populations’ criticism and to make a second analysis of it. NIRED and the hired company must then work together to better their report and diminish all the expected impacts to the lowest level possible. (Id.)

6. Once altered, the EIR must then be approved by the NIRED president. (Id.)

7. After report ratification, the company may start construction. In October 2009, NIRED approved the previous permit pursuant to law 8090/91.(CQ 13)

In December, LAX won the bidding process, and in January, the NIRED and LAX posted the

TEAM NO. 6387

3

EIR online. (R ¶ 19) The EIR specified that the construction would create a huge lake with a

surface area of about 1.450 km2, and force the re-allocation of 5,000 Mirokaiens and 1,550

Aricapus. (R ¶ 20) National Evacuation Policy of 1992 indicated that all the evacuees would

receive an equivalent plot of land in a new area designated by the government, and sufficient

economic resources to restart their lives and activities. (Id.)

Following the publication of the report, there was some serious political manifestation by

the Petitioners. (R ¶ 21) They had not been appropriately consulted in the reports formulation

process and received discriminatory treatment from the local courts (Id.) They do not wish to be

relocated even if they were to receive new land and economic resources, because of their strong

ties to their homeland. (Id.) On February 20th, Tucanos finally met with the Petitioners’

representatives, and promised to re-evaluate the relocation project, and to cooperate with the

affected people to find a compromise. (R ¶ 22) On March 15th, the NIRED approved the LAX’s

report and authorized the construction. (R ¶ 23) Two weeks later, work on the plant commenced.

Proceedings Before the Domestic Judicial System

This authorization caused great revolt among the Petitioners. (R ¶ 24) They filed a

lawsuit requesting to cancel the NIRED’s report approval and to enjoin the construction. (Id.)

They asserted violation of their property right and discriminatory treatment. (Id.) The plant

would destroy their ancestral territory, sacred in the Aricapu culture, and would seriously affect

the entire population, both physically and psychologically. (Id.) The Petitioners indicated that the

lake creation would also have an environmental impact higher than the permitted limits of the

TEP. (Id.) At the lower court hearing, Tucanos denied all allegations, the judge ruled for the

government, and the Petitioners appealed. (R ¶¶ 25, 26) The Appellate court issued an injunction

order to stop the construction work. (R ¶ 26) Tucanos appealed to the country’s Supreme Court,

TEAM NO. 6387

4

alleging that the Petitioners had not presented any concrete evidence of irreversible negative

impacts for the territory or evacuees. (R ¶ 27) Tucanos alleged that stopping the work goes

against the State sovereignty as owner of all of the country’s natural resources, and the negative

impact over the lives of such a small part of the population was justified by the benefits created

to the rest of the people as a whole. (Id.) The Supreme Court ruled for Tucanos, and allowed the

construction work to continue finding that none of the indigenous or immigrants rights had been

disrespected, and that all of the environmental impacts were in accordance with TEP. (R ¶ 28)

Proceedings Before the Inter-American System

On October 6, 2010, NGOs representing the Petitioners filed a petition before the Inter-

American Commission on Human Rights (“IACHR”). (R ¶ 30) They asserted violations of

Articles 4, 5, 8, 11, 21, 22, 24, 25 of the Convention, the protection of immigrants, all in

accordance with Article 1.1 of the Convention, and Article 11 of San Salvador Protocol. (Id.)

The IACHR admitted the Petitioners’ request. (R ¶ 31) Tucanos responded by denying

violations of human rights, judicial rights or administrative procedures, and by claiming that

property restrictions conformed to specifications set out in Article 21 of the Convention, in the

name of a more important “social interest.”(Id.) The IACHR recognized the violation of Articles

4, 5, 8, 21, 22 and 25 in conjunction with Article 1.1 of the Convention. Unable to reach a

friendly settlement, and considering the severity of the situation, the IACHR submitted the case

to the Court. (R ¶¶ 32, 33) In support, the victims’ representatives submitted several documents

where they restated Tucanos’ responsibility in the case, emphasizing the need for State’s

accountability for all the originally stated violations. (R ¶ 34)

TEAM NO. 6387

5

LEGAL ANALYSIS

I. STATEMENT OF JURISDICTION

This Honorable Court has jurisdiction to hear this case. Tucanos is a State-Party to the

OAS. It has ratified all the Inter-American treaties on Human Rights and most of the UN treaties

on the subject.1 Specifically, it ratified the American Convention2 in August 1991.3 It accepted

the binding jurisdiction of the Inter-American Court of Human Rights in July 1992.4 This Court

is competent to adjudicate matters regarding application and interpretation of the Convention

pursuant to Articles 61 and 62 of the Convention.

A. The Petitioners Have Exhausted Domestic Remedies

In accordance with Article 46 of the Convention and Article 31 of the Rules of Procedure

of the Commission, the petitioners have exhausted all domestic remedies. Domestic remedies are

considered exhausted when the petitioners have appealed their case at each level in the hierarchy

of domestic courts and have been unable to obtain an effective result.5

The Petitioners’ case went through the entire local judicial process, from the lowest court

to the intermediary court of appeals, and finally to the Supreme Court, the country’s last stance,

which ruled against them.6 Therefore, all domestic legal remedies have been exhausted.

B. The Petitioners Have Satisfied the Timeliness Requirement

In accordance with Article 32(1) of the Rules of Procedure of the IACHR, the Petitioners

have satisfied the timeliness requirement. Pursuant to Article 32(1), the petitions must be lodged

1 Hypo ¶ 1; Tucanos has also ratified the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, Nov. 17, 1988, O.A.S.T.S. No. 69, 28 I.L.M. 156, (1989) [hereinafter San Salvador Protocol]. 2 Organization of American States, American Convention on Human Rights, Nov. 22, 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 [hereinafter Convention]. 3 Hypo ¶ 1. 4 Hypo ¶ 1. 5 Velásquez-Rodrígues v. Honduras, 1988 Inter-Am. Ct. H.R. (ser. C) No. 4, at ¶ 64 (July 29, 1988). 6 Hypo at ¶ 28.

TEAM NO. 6387

6

within a six month period, following the date on which the victim has been notified of the

decision that exhausted all the domestic remedies. In the instant case, the Supreme Court made

its final decision on August 2, 2010,7 and the Petitioners filed their claim with the IACHR on

October 6, 2010,8 which is within two months of the six months required under Article 32.

Accordingly, the petition was lodged within the established time period.

II. TUCANOS VIOLATED PETITIONERS’ PROPERTY RIGHTS UNDER ARTICLE 21 OF THE CONVENTION BY AUTHORIZING THE PROJECT WHICH UNJUSTIFIABLY RESTRICTED THE USE AND ENJOYMENT OF THEIR LAND AND NATURAL RESOURCES

Pursuant to Article 21 of the Convention, “[e]veryone has the right to the use and

enjoyment of his property." Indigenous peoples’ right to property involves special considerations

and protections, as acknowledged by this Court and international human rights instruments.9

First, this Court recognizes the communal nature of indigenous peoples’ property rights

protected under Article 21 of the Convention, including the right to self-determination.10

Consequently, this recognition supports their right to “freely determine and enjoy their own

cultural and economic development” and to “effectively control their territory.”11 The State must

also recognize their juridical personality to ensure that they are able to enjoy their land according

to their traditions.12 Second, this right incorporates the right to control natural resources

7 Hypo ¶ 28. 8 Hypo ¶ 30. 9 Saramaka People v Suriname, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, at ¶¶ 85-86 (Nov. 28, 2007); United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, Annex, U.N. Doc. A/RES/61/295 (Sept. 13, 2007), art. 26; International Labour Organization [hereinafter ILO], Convention Concerning Indigenous and Tribal Peoples in Independent Countries [hereinafter ILO Convention No. 169], arts. 4(1) and 13, June 27, 1989, 72 ILO Official Bulletin 59, 1650 U.N.T.S. 383. 10 Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 148 (Aug 31, 2001). 11 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 95, 115.12 Id. ¶ 171.

TEAM NO. 6387

7

traditionally used and necessary for the survival, development and lifestyle.13

This special

protection stems from the close cultural and spiritual relationship of indigenous people with their

territory. It is critical because indigenous peoples’ life, as well as human rights’ realization

depends on their access and use of these resources.14

C. This Court Should Afford the Same Legal Protection to Both the Immigrant Population From Mirokai and the Aricapus Because They Share Similar Distinct Characteristics and Depend on Their Land for Survival

This Court should apply the same legal standards to both the immigrant population from

Mirokai and the Aricapus. In Saramaka v Suriname, this Court considered the non-indigenous

Saramakas to be similar to the indigenous community in social, cultural identity, and economic

status, and afforded them same legal protection because of their distinct identity associated with

the land.15 Similarly, although Mirokaiens are not indigenous to the area, they share distinct

social, cultural and economic characteristics with the Aricapus, and regulate themselves by their

own customs and norms. They acquired the property title to their land, live off the exploitation of

natural resources, and their physical and cultural survival is contingent on the use of their

territory. Therefore, Mirokaiens qualify for legal protection under “indigenous jurisprudence.”

For the purposes of this Memorial, the term “Petitioners” is to include the immigrant

population from Mirokai and the Aricapu population residing in Tucanos.

D. The Petitioners’ Right to Property Incorporates the Right to Use and Enjoy Land and its Natural Resources

Protection of the Petitioners’ property rights is necessary to guarantee their physical and

cultural survival as distinct peoples. Since property title has already been vested in the

13 Mayagna (Sumo) Awas Tingni Community, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149; Yakye Axa Indigenous Community v. Paraguay, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 137 (June 17, 2005); Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 122. 14 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 122; Yakye Axa Indigenous Community, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 137.15 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶¶ 85-86.

TEAM NO. 6387

8

Petitioners, Tucanos had to guarantee their right to enjoy property in accordance with their

communal traditions. Far from providing special protections in this regard, Tucanos has, in fact,

authorized the project on their territory without taking into account the importance of

conservation of cultural and religious values connected with their land and resources.

Tucanos asserted that since it is the owner of all the natural resources as a sovereign

State, it has the right to exploit them.16 This argument is unsustainable. Indigenous peoples have

“permanent sovereignty” over their resources, and any resource deprivation will result in denial

of the right to self-determination.17 The Petitioners have the right to control their natural

resources of forest and rivers because they have traditionally used them, and are dependent on

them for their continued survival as a people.18 Since these resources form part of the Petitioners’

communal property rights, they fall under the protection of the American Convention, and, thus,

Tucanos has an obligation to respect and protect them.

E. Tucanos Endangered the Petitioners’ Survival by Placing Impermissible Restriction on the Petitioners’ Property Rights

Property rights afforded by Article 21 are not absolute, and may be subordinated to the

interest of a society. Consequently, the Court must balance the societal benefit with the

indigenous peoples’ right to special protection from unreasonable restrictions on their rights. In

accordance with Articles 21 and 1(1) of the Convention, States’ restrictions are permissible when

they are defined by law, necessary, and proportionate to the achievement of a legitimate

objective.19 Further, States must guarantee that such restrictions do not amount to a denial of

16 Hypo ¶ 27.17U.N. Special Rapporteur, Erica-Irene A. Daes, Indigenous Peoples' Permanent Sovereignty over Natural Resources, P 40, E/CN.4/Sub.2/2004/30 (July 13, 2004).18 Pursuant to Hypo ¶¶ 5, 11, the Petitioners live off exploration of natural resources, cultivate their own food, and maintain their life as hunters.19 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 117.

TEAM NO. 6387

9

indigenous peoples’ survival.20 To ensure States’ compliance with this guarantee, the Court has

established three safeguards, which require: 1) effective participation of the people in any

development on their territory, 2) benefit-sharing, and 3) prior environmental and societal impact

studies.21 These safeguards are intended to preserve the indigenous population’s special

relationship with their land, which ensures their survival as a distinct people.

Tucanos restricted the Petitioners’ property rights by authorizing the development, which

requires exploitation of the forest and rivers on their land. This restriction is not necessary or

proportionate to the interest served as any economic benefit derived from it will be greatly offset

by devastating impact on the Petitioners’ territory, potentially causing their extinction as a

people. Considering the project’s detrimental impact on fundamental human rights, and its

cumulative impact of endangering their survival, the restriction does not aim to attain a

legitimate objective.

Furthermore, to guarantee that property right restrictions did not amount to a denial of the

Petitioners’ survival, Tucanos had to abide by the three safeguards: 1) effective participation, 2)

reasonable benefit sharing and 3) environmental impact assessment.

1. Tucanos Failed to Comply with the “Effective Participation” Safeguard by Denying the Petitioners the Right to Effective Consultation and Prior Informed Consent

States must ensure effective participation by indigenous peoples engaging in consultation

and obtaining free, prior, informed consent (“FPIC”) if the project involves a large-scale

development with a major impact on indigenous population.22

States are mandated to effectively consult with an indigenous community about activities

directly impacting their territory, pursuant to their customs and traditions.23 To be effective, the

20 Id. ¶ 128.21 Id. ¶ 129. 22 Id. ¶ 134.

TEAM NO. 6387

10

communication must be constant, in good faith, and start at the early stages of a development,

with an objective of reaching an agreement.24

Tucanos denied the Petitioners’ right to effective consultation regarding the nature and

impact of the project despite its critical importance on the affected territory. First, it failed to

provide them with sufficiently adequate information about the development. It neglected to

properly consult the Petitioners in the report formulation process, and issued the previous permit

without providing them the right to access information. Second, there was no constant

communication from Tucanos. Only one discussion meeting was held, which occurred right after

serious political manifestation by the Petitioners.25 Finally, Tucanos demonstrated lack of good

faith in the negotiation process. Tucanos claimed that the project approval was done strictly in

accordance with the law, however, the evidence proved otherwise. Specifically, Tucanos failed

to follow the TEP procedures, as promised. The requisite procedures had to include the review of

the project criticism, second analysis and impact re-evaluation.26 Finally, Tucanos proceeded

with the project knowing that the impact was higher than allowed by TEP.

Under this Court’s jurisprudence, the consent requirement is also particularly critical

because it is the indigenous peoples’ prerogative to prohibit, control, or authorize projects on

their territory that will substantially affect their land, resources, and human rights.27 Tucanos had

an obligation to obtain FPIC prior to project authorization because it was a “large-scale

23 Maya Indigenous Communities v. Belize, Case 12.053, Inter-Am. C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1 ¶ 142 (Oct. 12, 2004).24 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 133.25 Hypo ¶ 21. 26 Hypo ¶ 16. 27 Armstrong Wiggins, Moderator, Free Prior Informed Consent For Indigenous Peoples and Local Communities: A Briefing for World Bank Executive Directors (June 14, 2004) available at http://www.bicusa.org/Legacy/FPIC_briefing_documents.pdf.

TEAM NO. 6387

11

development” with a “major impact” on the Petitioners’ territory.28 One of the world’s largest

hydro-electrical power plants has the production capacity of 14,000 megawatts.29 The production

capacity of Tucanos’ plant is 11,000 megawatts of energy,30 which confirms its large scale

dimension. In addition, the project will require a creation of a huge 1,450 km2 lake forcing about

6,550 people out of their traditional habitat.31 Thus, considering its devastating environmental

and societal side effects threatening the entire population, the plant will have a “profound

impact” on the Petitioners’ territory. Finally, despite major political upheaval and opposition by

the Petitioners, Tucanos authorized the project and forced relocation.

Therefore, Tucanos denied the Petitioners’ right to effective participation in the decision-

making process by denying their right to consultation and consent in violation of Article 21.

2. Tucanos Failed to Comply with the "Benefit Sharing" Safeguard Because It Did Not Implement Appropriate Procedures to Share Benefits from the Project’s Operation

Benefit sharing safeguard is inherent in the right of compensation under Article 21(2) of

the Convention.32 The notion of equitable sharing is also recognized in other international

instruments.33 This safeguard mandates States to share reasonable benefits from the

developments restricting indigenous property rights.34 Tucanos did not comply with this

safeguard because it failed to implement appropriate procedures to share reasonable economic

benefits that it will derive from the future plant operations. Instead, Tucanos merely offered the

Petitioners a plot of land in a new area designated by the government and economic resources to

28 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 134. 29 U.S. Geological Survey, http://ga.water.usgs.gov/edu/hybiggest.html. 30 Hypo ¶ 15. 31 Hypo ¶ 20. 32 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 138. 33 ILO Convention No. 169, supra note 9, art 15(2); U.N. Convention on Biological Diversity, Rio de Janeiro (1992), 31 I.L.M. 818, [hereinafter CBD] arts. 8, 10. 34 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 138.

TEAM NO. 6387

12

restart their lives.35 This offer constitutes an unfair attempt to force their relocation, which could

potentially result in the destruction of their culture, distinct personality and even their extinction.

3. Tucanos Failed to Comply the Environmental and Social Impact Assessments Safeguard

This Court mandates States to conduct environmental and social impact assessments

before starting development projects on the indigenous territory.36 These assessments must be

undertaken by independent and technically capable entities, and must conform to international

standards prior to concession grant.37 They must also address the cumulative impact of existing

and proposed projects, which will guarantee more precise assessment of potential threat to the

survival of indigenous peoples.38

Tucanos failed to conduct adequate environmental and social impact assessments. Both

entities in charge of completing them, the NIRED and the LAX,39 were not independent or

competent. The technical competence of LAX with respect to environmental evaluation is also

doubtful because a construction company normally lacks the requisite expertise in analyzing

environmental impacts. It is the prerogative of a specialized environmental agency to conduct

such evaluations. Since the NIRED is a State created agency,40 its independence from the

government is highly questionable.

Therefore, Tucanos unjustifiably restricted the internationally recognized right of the

Petitioners to "use and enjoy" their resources by proceeding with the plant construction without

ensuring effective participation, despite lack of appropriate benefit sharing procedures, and

without adequate environmental and social impact assessment. This restriction is impermissible 35 Hypo ¶ 20.36 Saramaka People, 2007 Inter-Am. Ct. H.R. (ser. C) No. 172, ¶ 129. 37 Saramaka People v. Suriname, 2008 Inter-Am. Ct. H.R. (ser. C) No. 185, ¶ 41 (Aug. 12, 2008).38Id.39 Hypo ¶ 19. 40 Hypo ¶ 16.

TEAM NO. 6387

13

because it amounts to a denial of their traditions and customs in a way that endangers their

survival as a group, thereby violating Article 21 of the Convention.

III. TUCANOS VIOLATED ARTICLE 1 OF THE CONVENTION AND ARTICLE 3 OF THE SAN SALVADOR PROTOCOL BY DISCRIMINATING AGAINST THE MIROKAIENS BASED ON THEIR IMMIGRANT STATUS

The object of the Convention is to protect human rights of all persons irrespective of their

nationality.41 Article 3 of the San Salvador Protocol requires States to guarantee the exercise of

human rights without discrimination regardless of national or social origin. Numerous

international law instruments also confirm that migratory status may not be used as grounds for

discrimination.42 Immigrants are an especially vulnerable sector of population due to the

difficulties they encounter because of differences of language, custom and culture, as well as the

economic and social hardships.43 Thus, aliens are entitled to equal protection by the law without

discriminating between aliens and citizens.44 The fundamental principle of equality and non-

discrimination is an essential element of due process. This principle is of jus cogens nature

because the whole public order structure rests on it.45 Consequently, acts allowing discriminatory

treatment give rise to international responsibility, and States must take affirmative measures to

eliminate practices infringing on immigrants’ fundamental rights.46

41 The Effect of Reservations on the Entry into Force of the American Convention on Human Rights, Inter-Am. Ct. H.R. (ser. A) No. 2, Advisory Op. OC-2/82, ¶ 29 (Sept. 24, 1982).42 Charter of the Organization of American States [hereinafter Charter], arts. 3(1) and 17, Apr. 30, 1948, 2 U.S.T. 2394, 119 U.N.T.S. 3; American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, art. II, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OAS/Ser.L/V/I.4 Rev. 9 (2003); 43 AJIL Supp. 133 (1949); International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), at 52, U.N. GAOR, 1496th plen. mtg., art. 26, U.N. Doc. A/6316 (Dec. 16, 1966) [hereinafter ICCPR]; Universal Declaration of Human Rights, G.A. Res. 217, U.N. GAOR, 3d Sess., art. (2)1, U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter UDHR]. 43 Protection of Migrants, United Nations General Assembly, Resolution A/RES/54/166 (Feb. 24, 2000). 44 United Nations Human Rights Committee, General Comment 15, The Situation of Aliens in Accordance with the Covenant, 11/04/86, CCPR/C/27, ¶¶ 1, 2, 4, 7, 8 and 9.45 Juridical Condition and Rights of Undocumented Migrants, Inter-Am. Ct. H.R. (ser. A) No. 18, Advisory Op. OC-18/03, ¶ 101 (Sept. 27, 1982).46 Id. at 10.

TEAM NO. 6387

14

The Mirokaiens are in a vulnerable position because of their immigrant status. As a

result, Tucanos has a duty to protect the Mirokaiens’ human rights, and to avoid practices

restricting their fundamental rights. Although the Tucanos Constitution explicitly guarantees fair

and equal treatment for foreign populations,47 and its laws are facially non-discriminatory,

Tucanos’ actions had a discriminatory impact on the Mirokaiens, in direct contravention of its

Constitution. Tucanos violated their fundamental human rights, including the right to property.

Therefore, Tucanos’ non-compliance with the general obligation to respect Mirokaiens’ human

rights, owing to discriminatory treatment, gives rise to international responsibility under Article

1.1 of the Convention, and Article 3 of San Salvador Protocol.

IV. TUCANOS VIOLATED ARTICLE 24 OF THE CONVENTION BY FAILING TO TAKE MEASURES TO ENSURE PETITIONERS’ FULL ENJOYMENT OF THE RIGHT TO EQUAL PROTECTION, AND BY TAKING ACTIONS THAT AMOUNTED TO DISCRIMINATION BECAUSE THEY WERE NOT REASONABLE AND LACKED LEGITIMATE OBJECTIVE

Article 24 of the Convention provides that all persons are equal before the law, and are

entitled, without discrimination, to equal protection of the law. Non-discrimination and equality

are elements of a jus cogens principle related to the protection of human rights.48 Thus, States

must respect and guarantee human rights without discrimination pursuant to Article 24 in

conjunction with Articles 1(1) and 2 of the Convention.49 As further reaffirmed by many

international instruments, acts contrary to this fundamental principle are not permissible.50

While this Court acknowledged that not all differences in treatment are “offensive to human

47 Hypo ¶ 13.48 Juridical Condition and Rights of the Undocumented Migrants, Inter-Am. Ct. H.R. (ser. A) No. 18, Advisory Op. OC-18/03, ¶¶ 78-81, 101. 49 Id.50 Charter, supra note 42, art. 3(1); American Declaration on the Rights and Duties of Man, supra note 42, art. 2; San Salvador Protocol, supra note 1, art. 3; UDHR, supra note 42, arts. 2, 7; ICCPR, supra note 42, arts. 2 ,26.

TEAM NO. 6387

15

dignity,”51 it narrowly defined discrimination as “any exclusion, restriction or privilege that is

not objective and reasonable, and which adversely affects human rights.” 52 A State can avoid

equal protection argument if the discrimination has a legitimate purpose.53 With respect to

indigenous populations, the right to equality requires States to undertake special measures to

accommodate cultural characteristics that differentiate them from the general population.54 To

this end, the court must protect close ties of indigenous people with the land, which are the

fundamental basis of their survival.55 In the Case of the Maya Communities of the Toledo District

v Belize, Belize violated the right to equal protection by failing to provide Mayans with special

protections necessary to exercise their property rights fully and equally with the general

population, and by failing to grant Mayans property title to the land. 56

Similarly, Tucanos failed to take special measures to ensure that the Petitioners exercise

their property rights on an equal basis with the rest of Tucanos’ population. Although Tucanos,

unlike Belize, granted the Petitioners legal property title, it, nevertheless, failed to guarantee

special protection necessary to ensure their right to equality by virtue of granting a concession on

their land and forcing the relocation. Therefore, Tucanos’ failure to respect the Petitioners’

particular relationship with the land, as an integral component of their survival, was a denial of

their human rights’ realization, which resulted in the perpetuation of a discriminatory treatment.

In addition, Tucanos failed to ensure that the Petitioners had equal access to the procedural

51 Juridical Condition and Human Rights of the Child, Inter-Am. Ct. H.R. (ser A) No. 17, Advisory Op. OC-17/02, ¶ 46 (Aug. 28, 2002).52 Juridical Condition and Rights of the Undocumented Migrants, Inter-Am. Ct. H.R. (ser. A) No. 18, Advisory Op. OC-18/03, ¶¶ 38, 84. 53 Juridical Condition and Human Rights of the Child, Inter-Am. Ct. H.R. (ser. A) No. 17, Advisory Op. OC-17/02, ¶ 47. 54 Yakye Axa Indigenous Community, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 51. 55 Joe Bryan, Dilemmas of Indigenous Land in Awas Tingni v Nicaragua, Anthropology News (Sept. 2006), available at http:// www.aaanet.org/press/an/0606/global_prod.html#bryan. 56 Maya Indigenous Communities v. Belize, Case 12.053, Inter-Am. C.H.R., Report No. 40/04, OEA/Ser.L/V/II.122, doc. 5 rev. 1, ¶ 171 (Oct. 12, 2004).

TEAM NO. 6387

16

guarantees afforded to the general population, and neglected to follow the requisite procedural

safeguards set forth by its own domestic legislation, which led to disparate treatment. Tucanos

failed to adhere to its own TEP demands by neglecting the statutorily set deadlines, by accepting

the inadequate EIR, and breaching the promise to re-evaluate the project to find a compromise.57

Tucanos has no objective or reasonable justification for this disparate treatment. Tucanos

cannot avoid equal protection argument because it did not have any legitimate purpose in failing

to follow procedural steps. This blatant disregard for procedural guarantees resulted in excluding

the Petitioners from the meaningful participation in the decision-making process, deprived them

of the right to control their property, and silenced their concern regarding their displacement.

Extensive exploitation of natural resources to promote national growth at the expense of

vulnerable population amounts to a denial of indigenous traditions in a way that endangers their

survival. It substantially outweighs any economic benefit asserted by Tucanos, and cannot be

deemed to have a legitimate justification.

A human right is a universal right that must be applied equally to all people.58 Tucanos’

distinct preference of quick economic growth at the expense of the powerless indigenous

population is an effective denial of human rights’ guarantee afforded to the general population.

Consequently, the Petitioners’ inability to enjoy full protection of their human rights constitutes

discrimination, and Tucanos has not taken effective measures to ensure equal treatment. Thus,

Tucanos’ actions were not reasonable and objective, and violated equal protection guarantee

under Article 24 of the Convention.

57 Hypo ¶ 16. 58 UDHR, supra note 42, art. 1 ("All human beings are born free and equal in dignity and rights...."); Convention, supra note 2, Preamble (“Recognizing that the essential rights of man are not derived from one's being a national of a certain state, but are based upon attributes of the human personality, and that they therefore justify international protection....").

TEAM NO. 6387

17

V. TUCANOS VIOLATED ARTICLE 22 OF THE CONVENTION BY RESTRICTING THE PETITIONERS’ FREEDOM OF MOVEMENT AND BY FORCING DISPLACEMENT FROM THEIR TERRITORY

Article 22(1) of the Convention recognizes the right to freedom of movement and

residence. It is essential for free development of a person,59 which allows State’s legal residents

to move freely, and choose their place residence within the State.60 Specifically, this Court has

established this Article also protects the right to not be forcibly displaced within a State.61

First, Tucanos is forcing displacement by requiring some of the Petitioners to move to a

new area designated by the government without obtaining their consent. Second, the project,

requiring a creation of a massive lake and deforestation of their territory, would severely restrict

the remaining population’s freedom of movement on the land and river. It would deprive them of

the traditional areas suitable for maintaining their means of subsistence, hunting and fishing, by

narrowing those areas, all necessary for their survival. This denies the Petitioners the right to

move freely and choose their place of residence, in violation of Article 22 of the Convention.

VI. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO HUMANE TREATMENT AND HONOR UNDER ARTICLES 5 AND 11 OF THE CONVENTION BY CAUSING PSYCHOLOGICAL, SPIRITUAL, AND ECONOMIC HARDSHIP

Under Articles 5(1) and 11 of the Convention, “every person has the right to have his

physical, mental, and moral integrity” and “honor respected.” Special relationship binding

indigenous peoples with their ancestral land is not only the basis for their main means of

subsistence, but also their worldview, religion, and cultural identity.62 In Moiwana Community v.

Suriname, the indigenes were forced to abandon their land, which led to disruption of their 59 Mapiripán Massacre v. Colombia, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134, at ¶ 168 (Sep. 15, 2005); Moiwana Community v. Suriname, 2006 Inter-Am. Ct. H.R. (ser. C) No. 145, ¶ 110 (Feb. 8, 2006); Ricardo Canese v. Paraguay, 2004 Inter-Am. Ct. H.R. (ser. C) No. 111, ¶ 115 (Aug. 31, 2004).60 Mapiripán Massacre, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 168; Moiwana Community, 2006 Inter-Am. Ct. H.R. (ser. C) No. 145, ¶ 110; Ricardo Canese, 2004 Inter-Am. H.R. (ser. C) No. 111, ¶ 115. 61 Mapiripán Massacre, 2005 Inter-Am. Ct. H.R. (ser. C) No. 134, ¶ 188. 62 Yakye Axa Indigenous Comminity., 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 135.

TEAM NO. 6387

18

livelihood, physical and moral integrity.63 This imposed a significant psychological, spiritual,

and economic hardship to the population in violation of Article 5(1) of the Convention.64

Similarly, Tucanos’ action will deprive the Petitioners of traditional means of

subsistence, livelihood and spiritual integrity by infringing on their special relationship with their

sacred land. It will result in severe psychological, spiritual, and economic hardship to the

Petitioners, in violation of Article 5(1) of the Convention.

VII. TUCANOS VIOLATED ARTICLES 8 AND 25 OF THE CONVENTION BY FAILING TO PROVIDE THE PETITIONERS WITH EFFECTIVE JUDICIAL PROTECTION AND WITH DUE PROCESS GUARANTEE

The Court interprets Articles 8 and 25(1) of the Convention to afford effective judicial

recourse and due process guarantees against acts violating fundamental human rights.65 Hence,

the right to judicial protection is of vital importance, as it is essential for the defense of all the

violated rights, which are protected by bringing actions to the judicial authority.66 In light of the

general obligations established in Articles 1(1) and 2 of the Convention, the States are obliged to

take all measures to ensure that no one is deprived of judicial protection and of the right to a

simple and effective recourse, in the terms of Articles 8 and 25 of the Convention.67 In order to

provide indigenous populations with effective legal protection, States must take into account

"their specificities, economic and social characteristics” and their vulnerability.68 Specifically,

63 Moiwana Community, 2006 Inter-Am. Ct. H.R. (ser. C) No. 145, ¶¶ 101 and 102. 64 Id. ¶ 103. 65 Tibi v. Ecuador, 2004 Inter-Am. Ct. H.R. (ser. C) No. 114, ¶ 130 (Sep. 7, 2004); Mayagna (Sumo) Awas Tingni Community v. Nicaragua, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, at ¶ 111 (Aug 31. 2001); Judicial Guarantees in States of Emergency (Arts. 27(2), 25 and 8 American Convention on Human Rights), Inter-Am. Ct. H.R. (ser. A) No. 9, Advisory Op. OC-9/87, ¶ 23 (Oct. 6, 1987); Yatama v. Nicaragua, 2004 Inter-Am. Ct. H.R. (ser. C) No. 127, ¶¶ 164, 167 (June 23, 2005). 66 Xákmok Kásek Indigenous Community of the Enxet-Lengua People and their Members v. Paraguay, Case 12.420, Inter-Am. C.H.R., Report No. 78/09, ¶ 229 (July 03, 2009). 67 Id. ¶ 230. 68 Yakye Axa Indigenous Community, 2005 Inter-Am. Ct. H.R. (ser. C) No. 125, ¶ 63.

TEAM NO. 6387

19

States must provide them with due process guarantees to ensure effective protection of their

ancestral land.69

Tucanos failed to guarantee the Petitioners effective judicial recourse according to the

rules of due process within both the domestic legal and administrative systems. The Petitioners

sought justice for gross violations of their human rights by proceeding all the way up to the last

stance of the Tucanos judicial system. In addition, their community has suffered physical and

psychological damage from the intrusion on their territory, sacred in their culture.70 The

Supreme Court, however, found no violations and rejected all their claims.71 Admittedly,

Tucanos did allow Petitioners to formally access the courts and administrative proceedings,

however, it failed to provide effective judicial recourse. Mere existence of formal procedures of

access to courts is not sufficient to prove judicial recourse.72 Tucanos failed not only to grant

them special protection of human rights, but also denied their full and free exercise, disregarding

their unique connection with the land and their vulnerability.

In the administrative context, TEP provides specific implementation procedures for

projects similar to Cinco Voltas. Specifically, TEP requires criticism review and re-evaluation of

the EIR, followed by NIRED’s obligation to improve the EIR and diminish the expected

impacts.73 Tucanos authorized the project without mandating compliance with these

administrative pre-requisites set by its own law.74 Therefore, Tucanos’ actions amount to

violation of Articles 8 and 25, in conjunction with Article 1(1) and 2 of the Convention.

69 Id. ¶ 96.70 Hypo ¶ 24. 71 Hypo ¶ 28. 72 Hypo ¶ 28. 73 Hypo ¶ 28. 74 Hypo ¶ 16.

TEAM NO. 6387

20

VIII. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO LIFE UNDER ARTICLE 4 OF THE CONVENTION BY AUTHORIZING THE PROJECT THAT THREATENED THEIR SURVIVAL

Article 4 of the Convention provides that “every person has the right to have his life

respected.” The Inter-American System and human rights instruments emphasize the

fundamental role of this inalienable right, making it a pre-requisite for the enjoyment of all other

human rights.75 Considering its critical role, and pursuant to Article 27 (2), the Court disallows

any restrictions or suspensions of this right.76 Accordingly, States must prevent violations of the

right to life, and adopt affirmative measures to secure full enjoyment of human rights in

conjunction with Article 1(1).77 In the context of indigenous people, defense of the right to life

focuses on the need to protect their traditional territories. Considering the special relationship of

indigenous people with the land and its natural resources, their displacement and damage to their

habitat invariably harms their physical and cultural well-being, putting their survival in peril.78

Tucanos failed to take adequate measures to respect the right to life, as required under the

Convention. The Petitioners' means of subsistence is based entirely on communal agriculture,

hunting, and fishing within their territory. Their cultural and religious life is also firmly tied to

the land. This unique relationship with the land makes it indispensable for their survival. Forced

displacement will completely deprive 6,550 people of their territory. The rest of the population

will also be severely affected because the project will introduce new roadways, intruders, and

diseases to the traditionally undisturbed forest area, thus, disrupting their secluded lifestyle and

peaceful environment. Consequently, Tucanos’ actions threaten the Petitioners’ physical and

75 American Declaration of the Rights and Duties of Man, supra note 42, art. 1; UDHR, supra note 42, art. 3; ICCPR, supra note 42, art. 6(1).76 Sawhoyamaxa Indigenous Community v. Paraguay, 2006 Inter-Am. Ct. H.R. (ser. C) No. 146, ¶¶ 150, 151 (March 29, 2006). 77 Id.78 Yanomani Indians v. Brazil, Inter-Am. C.H.R. 7615, OEA/Ser.L.V/II/66 doc. 10 rev. 1 (1985).

TEAM NO. 6387

21

cultural survival, effectively denying their right to life, protected under Article 4 of the

Convention.

IX. TUCANOS VIOLATED THE PETITIONERS’ RIGHT TO A HEALTHY ENVIRONMENT UNDER ARTICLE 11 OF SAN SALVADOR PROTOCOL WHEN IT AUTHORIZED A PROJECT THREATENING PERMANENT HARM TO THE PETITIONERS’ NATURAL ENVIRONMENT

Environmental protection is essential for full exercise and enjoyment of fundamental

human rights, such as the rights to food, health, life, property, and culture. It is also critical for

effective functioning of a democratic society.79 The link between human rights and the

environment has been explicitly recognized by the OAS,80 and by many international legal

instruments.81 Furthermore, the right to a healthy environment rises to the level of customary

international law, which results from a consistent State practice, motivated by a sense of legal

obligation, or opinio juris.82 It has been incorporated in numerous international instruments,

adopted by many Central and South American constitutions, and recognized in many scholarly

writings, 83 which evidence general State practice and opinion juris.

Article 11 of the San Salvador Protocol expressly protects the right to “live in a healthy

environment” as a human right, and requires States to promote “protection, preservation, and

improvement of the environment.” Thus, Tucanos, as a State Party to San Salvador Protocol, has

an obligation to guarantee the Petitioners’ right to a healthy environment. To ensure compliance 79 Inter-American Democratic Charter, 28th Spec. Sess. of the OAS General Assembly, OAS Doc. OEA/Ser.P/AG/RES.1 (XXVIII-E/01), Sept. 11, 2001 [hereinafter Democratic Charter], art. 15. 80 OAS, General Assembly, Resolution: Human Rights and Environment, AG/RES. 1819 (XXXI-O/01) (2001).81Declaration of the United Nations Conference on the Human Environment, adopted June 16, 1972, U.N. Doc. A/CONF.48/14, reprinted in 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration], Principle 1; United Nations Conference on Environment and Development, June 14, 1992, Rio Declaration on Environment and Development, U.N. Doc. A/ CONF.151/26/Rev.1 (1992) [hereinafter Rio Declaration], Principle 10; Report on the Situation of Human Rights in Ecuador, OEA/Ser. L/V/11.96, Doc.10 rev 1, Apr. 24, 1997, Ch. VIII. 82 S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7); North Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v. Neth.), 1969 I.C.J. 3 (Feb. 20).83 Rio Declaration, supra note 82; International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200a(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 49, U.N. Doc. A/6316 (1966) [hereinafter ICESCR]; CBD, supra note 33; United Nations Declaration on the Rights of Indigenous Peoples, H.R.C. Res. 2006/2, U.N. Doc. E/CN.4/2006/79 (June 29, 2006) [hereinafter U.N. Declaration].

TEAM NO. 6387

22

with this obligation, Tucanos must refrain from activities that harm the environment and take

affirmative measures to safeguard their healthy ecosystem as they are indigenous people in need

of special protection.

A. Tucanos Failed to Guarantee Special Protection of the Petitioners’ Right to a Healthy Environment

A healthy environment is integral for full enjoyment of indigenous people’s human

rights. While damage to the environment ultimately affects all mankind, it is particularly

devastating for indigenous peoples whose cultures are closely interwoven with the natural

resources and dependent on healthy ecosystem. Damage to their traditional territory threatens

their survival as distinct peoples with a collective identity. Recognizing the unique connection

with the land, this Court, along with the international human rights jurisprudence has

acknowledged the need for special protection of their right to maintain the natural

environment.84 When the environmental harm to their lands is threatened, the detriment to their

rights is intensified and the need for special protection becomes especially critical.

In Awas Tingni v. Nicaragua, the Court granted the indigenous population a special

protection recognizing the devastating impact on their territory and the environment from the

logging concessions, which undermined their physical and cultural values.85 Similarly to the

Awas Tingni community, the Petitioners are indigenous people in need of special protection of

their right to healthy environment, given their inextricable connection with their territory.

84 Mayagna (Sumo) Awas Tingni Community, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149; Proposed American Declaration on the Rights of Indigenous Peoples (Approved by the Inter-American Commission on Human Rights on February 26, 1997, at its 1333rd Session, 95th Regular Session), OEA/Ser/L/V/.II.95 Doc. 6 (1997) [hereinafter Proposed American Declaration], arts. XII, XIII, XXI; ILO Convention No. 169, supra note 9; U.N. Declaration, supra note 84, arts. 21, 24, 25, 28, 29; CBD, supra note 33, art. 8(j); Rio Declaration, supra note 82, Principle 22. 85 Mayagna (Sumo) Awas Tingni Community, 2001 Inter-Am. Ct. H.R. (ser. C) No. 79, ¶ 149.

TEAM NO. 6387

23

B. Hydroelectric Power Plants Cause Irreparable Harm to the Environment and Endanger Human Survival in Violation of the Right to a Healthy Environment

Hydropower plants present numerous environmental concerns despite the benefits

asserted by Tucanos. Their construction requires the creation of a large reservoir, which is

fraught with environmental dangers. Specifically, large dams have led to the destruction of

biodiversity and the ecosystem, natural habitat extinction, river flow alterations and loss of

biologically rich land and forest. Contrary to the dam industry’s claims that dams are a “green

source” of energy, most reservoirs emit high amounts of greenhouse gases leading to climate

change.86 These gases result from the decomposing plants submerged under the flooded

reservoirs.87 In areas with large dams, the emissions are so high that the dams' contribution to

climate change is even greater than that of equivalent fossil fuel power plants.88

In addition to serious environmental impacts, the human effect is one of the most

significant harms of hydroelectric dams. Dams are notorious for forcibly uprooting and

displacing entire indigenous communities around the world.89 They also negatively impact those

who are not physically displaced, but continue to live in the surrounding areas. The construction

process disrupts their food supply, and has a detrimental impact on their habitat. Moreover, past

dam construction near indigenous communities has led to infant mortality, death, prostitution,

crime, and violence against cultural heritage.90

The James Bay hydroelectric project in Quebec is one of the numerous examples

evidencing harm from such projects. In addition to substantial environmental harms, the project

86 Patrick McCully, Silenced Rivers: The Ecology and Politics of Large Dams 115-17 (London: Zed Books, 2001) (1996) [hereinafter McCully]. 87 Duncan Graham-Rowe, Hydroelectric Power’s Dirty Secret Revealed, NewScientist, Feb. 24, 2005, available at http://www.newscientist.com/article/dn7046. 88 Id. 89 McCully, supra note 87, 115-17. 90 Abby Rubinson, Regional Projects Requires Regional Planning: Human Rights Impacts Arising from Infrastructure Projects, 28 Mich. J. Int’l L. 175, 175-204 (2006).

TEAM NO. 6387

24

contributed to the release of toxic metals into the food chain, and made the main source of food

for the community unsafe to eat, thus threatening their survival.91 This project drastically

affected lives and cultural heritage of the native population.

Finally, dams are vulnerable to natural forces, design and maintenance flaws, as well as

human errors, which may lead to fatal consequences. Dam failures are one of the worst man-

made disasters in history, which have destroyed thousands of lives when they have

malfunctioned or collapsed. In the world's worst dam catastrophe, a typhoon destroyed China's

Banqiao Dam in 1975.92 As a result, 85,000 people died in the flood, and an additional 145,000

people died from epidemics and famine resulting from the dam failures, with millions left

homeless.93

C. Tucanos’ Hydroelectric Power Plant Project Threatens the Petitioners’ Right to Live in a Healthy Environment

In light of history of devastating effects on the environment and human life from the

hydroelectric construction process, similar harms are inevitable if the construction of the Cinco

Voltas plant is not enjoined.

The Petitioners seek to prevent an imminent harm to the environment that is about to

occur. This project will require a creation of a huge 1.450 km2 reservoir. The reservoir will flood

the forests and lead to greenhouse emissions, resulting in climate change. It will also cause the

loss of biodiversity, ecosystem damage, and the alteration of the Betara and Corvina river flow,

affecting natural flooding. The foregoing threats, coupled with the Tucanos’ actions, show a high

probability of harm to their environment. The indigenous nature of this case urges this Honorable

Court to implement special protection. Without it, the essential preconditions for the enjoyment

91 Peter Gorrie, The James Bay Power Project, CANADIAN GEOGRAPHIC, Feb.-Mar. 1990, at 21, 27. 92 McCully, supra note 87, 115-17.93 Id.

TEAM NO. 6387

25

of other rights do not exist, and the purpose of the Convention will not be served. Given the

severity and inevitability of the harm from the project, this Court should find that Tucanos

violated the Petitioners’ right to a healthy environment under Article 11 of San Salvador

Protocol.

D. Tucanos Violated the Petitioners’ Right to a Healthy Environment When it Acted Contrary to the Principle of Sustainable Development

Modern civilization has substantially evolved since the hunter-gatherer times; however, it

still shares one common denominator - its total dependence on the natural resources to sustain its

existence.94 Global human consumption of these resources is occurring at a rate that is beyond

the Earth's capacity to support. Deforestation, climate change, eroding soils, and disappearance

of species are just a few examples of how unrestrained development irreparably harms and

destroys the ecosystem affecting the availability of resources.95 Accordingly, the States have

recognized the need to manage the development so that future generations are able to benefit

from it.96 This need has led to the establishment of the principle of “sustainable development,”

which is reflected in various international instruments.97 To promote Sustainable Development,

States should maintain traditional knowledge of indigenous communities,98 and protect

customary use of resources in accordance with traditional cultural practices.99

This Court should consider sustainable development as part of the right to healthy

environment under Article 11 of San Salvador Protocol. This Protocol mandates Tucanos to

94 Matthew F. Jackson, Putting the “Sustainable” Back in Sustainable Development: Recognizing and Enforcing Indigenous Property Rights as a Pathway to Global Environmental Sustainability, 21 J. Envtl. L. & Litig. 157 (2006). 95 Lester R. Brown et al., Foreword to State of the World 2000, at xvii, xvii-xviii (Linda Starke ed., 2000). 96 Rio Declaration, supra note 82, Principle 3. 97 Id. at Principle 4.; CBD, supra note 33; Declaration of Santa Cruz de la Sierra, Dec. 7, 1996, [hereinafter Santa Cruz Declaration]; United Nations Conference on Environment and Development, Agenda 21: Programme of Action for Sustainable Development, U.N. Doc. A/CONF.151/26 (1992) [hereinafter Agenda 21] 98 CBD, supra note 33, Article 8. 99 Id. at art. 10.

TEAM NO. 6387

26

protect the Petitioners’ right to healthy environment. A link between sustainable development

and a healthy environment has been substantiated by a number of international legal

instruments.100 A project that violates human rights is incompatible with the principle of

sustainable development. Respect for human rights and fundamental freedoms is essential for

achieving sustainable development.101 Consequently, Tucanos had to act according to the

principle of sustainable development drawn from its linkage to the right to a healthy

environment.

Tucanos authorized the hydroelectric project with adverse impacts on the environment

and human life. Sustainable development requires Tucanos to implement alternative

development models using solar or wind energy instead of production based on dams in the river

basin. By using the hydroelectric production to solve its energy demands, Tucanos has put

market values before human values, contrary to the principle of sustainable development and the

Convention. Tucanos opted for an easy solution disregarding the pivotal importance of the need

to use the resources in a sustainable manner for the benefit of future generations. Finally, it failed

to utilize the indigenous peoples’ knowledge by neglecting to obtain their consent and

consultation, all critical to ensure that the development is conducted in a sustainable manner.

1. Tucanos Failed to Preserve Petitioners’ Traditional Knowledge Regarding Sustainable Use of Their Natural Resources

Indigenous peoples’ long-term guardianship and knowledge of their land and resources

contributes to the international community's efforts to practice sustainable development.102 The

100 Agenda 21, supra note 99; Copenhagen Declaration on Social Development, in Report of the U.N. World Summit for Social Development, U.N. Doc. A/ CONF.166/9 (1995) [hereinafter Copenhagen Declaration]; Santa Cruz Declaration, supra note 99, art. 2. 101 World Summit on Sustainable Development, Aug. 26-Sept. 4, 2002, Plan of Implementation of the World Summit on Sustainable Development, U.N. Doc A/ CONF.199/20 (Sept. 4, 2002), available at http://www.un-documents.net/jburgpln.htm [hereinafter Johannesburg Plan].102 U.N. Declaration, supra note 84, art. 29(1).

TEAM NO. 6387

27

role of indigenous peoples in promoting sustainable development is recognized by a number of

international instruments.103 Their traditional skills and techniques are a valuable model for

implementing sustainable development. Thus, States are encouraged to “accommodate and

strengthen the role of indigenous peoples” to facilitate sustainable development.104

The Petitioners play a key role, through their traditions and knowledge, in maintaining

their habitat in its natural state. They have managed their resources in a sustainable way for

years. In complete disregard of the Petitioners’ knowledge and culture, so crucial for the practice

for sustainable development, Tucanos failed to include them in the decision making process.

Therefore, Tucanos violated the principle of sustainable development, a vital component of the

right to a healthy environment.

2. Tucanos Failed to Exploit Natural Resources in a Sustainable Manner Necessary to Preserve Them for the Benefit of Present and Future Generations

The Principle of Sustainable Development requires each generation to develop its

heritage so that it can be passed on to future generations in the substantially similar condition.105

Sustainable development reflects three goals — environmental protection, economic

development, and respect for human rights. States must take into account these goals and ensure

that they are reflected in the domestic laws.106 Tucanos’ actions do not conform to the principle

of sustainable development since they do not abide by these goals, and disregard the needs of

present or future generations. Tucanos failed to conduct proper EIA, to minimize the

103 Rio Declaration, supra note 82, Principle 22; Agenda 21, supra note 99; U.N. Declaration, supra note 84. 104 Agenda 21, supra note 99. 105 Goa Guidelines on Intergenerational Equity adopted by the Advisory Committee to the U.N. Univ. Project on "International Law, Common Patrimony and Intergenerational Equity", Goa (1988), 18 E.P.L. 190, available at <http://www.i-c-e-l.org/english/EPLP31EN_rev2.pdf. 106 Johannesburg Plan, supra note 103; Rio Declaration, supra note 82, Principle 16.

TEAM NO. 6387

28

environmental harms, and proceeded with the project despite Petitioners’ opposition.107 Further,

Tucanos authorized the project to exploit the biologically rich indigenous territory without regard

to the preservation of forest and rivers for future generations. The project will cause irreversible

harm to the ecosystem, which took centuries to develop. As a result, the Petitioners will face

severe degradation to their natural resources, livelihood and well being. Therefore, Tucanos’

actions have endangered the delicate environmental balance within the Petitioners’ territory, and

imperiled it for future generations.

X. THIS COURT SHOULD INTERPRET THE CONVENTION PURSUANT TO ARTICLE 29 OF THE CONVENTION TO INCLUDE THE PRECAUTIONARY PRINCIPLE, THE DUTY TO CONDUCT AN ENVIRONMENTAL IMPACT ASSESSMENT, AND THE PRINCIPLE OF SUSTAINABLE DEVELOPMENT, IN ORDER TO EFFECTIVELY PROTECT PETITIONERS’ HUMAN RIGHTS

The Inter-American System emphasizes the vital importance of the protection of human

rights. This protection cannot be accomplished effectively without taking into account

contemporary trends in international law. Article 29 of the Convention is a mechanism that

allows the Inter American-System to achieve this objective. This Article precludes

interpretations restricting rights protected in the Convention, other international treaties, or rights

‘inherent in the human personality.108

A. Tucanos Violated the Petitioners' Human Rights by Failing to Prevent Environmental Damage Before it Occurred Pursuant to the Precautionary Principle

The Precautionary Principle is a well-established customary international law principle,

aimed at avoiding harm to human rights.109 It has been incorporated into Rio Declaration110, the

107 Philippe Sands, Principles of International Environmental Law 253 (The Press Syndicate of the University of Cambridge, 2003) (1995). 108 Convention, supra note 2, art. 29. 109 Agne Sirinskiene, The Status of the Precautionary Principle: Moving Towards a Rule of Customary Law 350-364, (2009). 110 Rio Declaration, supra note 82, Principle 15.

TEAM NO. 6387

29

Convention on Biological Diversity (“CBD”),111 domestic policies of many nations, and has been

recognized by ICJ.112 It is critical for the Court to integrate this principle pursuant to Article 29

into the interpretation of the Convention in order to ensure that the Petitioners’ human rights’

violations are effectively remedied. This Principle requires States to prevent environmental

damage before it occurs.113 It further emphasizes that “where there is a threat of significant

reduction or loss of biological diversity, lack of full scientific certainty should not be used as a

reason for postponing measures to avoid or minimize such a threat”114 Even in cases where there

is no conclusive evidence that the activity will cause significant harm, a State must, nevertheless,

halt it.115 The burden of proof is on a State to demonstrate that its actions are not environmentally

harmful.116

Tucanos’ failure to take preventive measures, in complete disregard of environmental

threat resulting from the project, violated the Precautionary Principle. Tucanos claimed that the

Petitioners did not present concrete evidence of irreversible impacts for the territory.117 This

argument is without merit for two reasons. First, the Petitioners did not have the burden of proof,

and thus, were under no obligation to provide evidence of the harm. Tucanos had the burden to

provide evidence to substantiate project’s safety, but failed to satisfy it. Although Tucanos was

aware that the estimated environmental impact was higher than allowed by TEP, it still

proceeded with the project.118 Second, lack of concrete scientific evidence is not a defense under

this Principle because its most important facet is to ensure protective measures before harm

111 CBD, supra note 33, Preamble. 112 Gabikovo-Nagymaros Project (Hung. v. Slovk.), 1997 I.C.J. 7, 42 (Sept. 25). 113 Id. 114 CBD, supra note 33, Preamble. 115 Id. 116 Id. 117 Hypo ¶ 27. 118 Hypo ¶ 24.

TEAM NO. 6387

30

occurs. Thus, even if Tucanos lacked conclusive evidence of the harm, it had an obligation to

halt the project given its potentially irreversible consequences for human life and the

environment, as required by this Principle.

B. Tucanos Violated The Petitioners’ Human Rights by Failing to Conduct an Adequate Environmental Impact Assessment

The Environmental Impact Assessment (EIA) requirement is incorporated in many

international environmental law treaties and agreements, and is mandatory by more than sixty

nations.119 The ICJ has also recognized the importance of the EIA duty.120 States must undertake

EIA for activities likely to have a significant adverse impact on the environment.121 In practice,

EIA is applied primarily to prevent or minimize the adverse effects of major development

proposals. An EIA process is also used as a planning tool to promote sustainable development by

integrating environmental considerations into proposed actions. This Court should include the

EIA requirement under Article 29 of the Convention to ensure adequate remedy for violations of

the Petitioners’ human rights, and to deter future violations.

Tucanos is developing a major project, and its national law requires an EIR, which

constitutes a domestic equivalent of an EIA. According to TEP, the EIR must specify pollution

levels, biodiversity losses and impacts on the population.122 Tucanos completed the EIR

inadequately because it only addressed the population’s re-allocation needs, and failed to list any

of the requisite environmental impacts.

In addition, the EIA imposes a procedural duty on States to demonstrate good faith in

119 CBD, supra note 33, art. 14(1)(a); Rio Declaration, supra note 82, Principle 17. 120 Pulp Mills on the River Uruguay (Argentina v. Uruguay) (Order of Sep. 14, 2007), available at http://www.icj-cij.org/docket/files/135/14050.pdf (last visited Feb. 07, 2010). 121 Rio Declaration, supra note 82, Principle 17. 122 Hypo ¶ 16.

TEAM NO. 6387

31

upholding international law obligations.123 Tucanos failed to act in good faith when it did not

adequately prepare the EIR, and did not comply with the procedural guarantees imposed by its

domestic laws. In addition, Tucanos did not thoroughly analyze the project’s potential effects

prior to project commencement, despite its knowledge of high-risk involved in the hydroelectric

plants. It also failed to evaluate Petitioners’ criticisms and re-analyze the project as required by

national law.124 Further, the lake creation will have higher environmental impacts than the limits

permitted by TEP.125 Consequently, Tucanos should have identified the alternatives either for the

project location or for the sources of energy. Therefore, in order to effectively redress these

violations of human rights, it is indispensable for the Court to incorporate the EIA requirement

into its interpretation of the Convention.

C. Tucanos Failed to Act Pursuant to the Principle Sustainable Development

The Petitioners have already requested this Court to find violations of sustainable

development principle by Tucanos under the right to healthy environment. Alternatively, the

Petitioners urge this Court to expand its jurisdiction pursuant to Article 29 of the Convention to

incorporate this principle because it is one of most important trends in international law today.

The Inter-American Democratic Charter has recognized the importance to protect the

environment to achieve sustainable development in its exercise of democracy.126 This principle

has become part of international customary law,127 and its universal value has been

internationally recognized.128

123 Andre Nollkaemper, The Legal Regime for Transboundary Water Pollution 151 (Boston: Graham & Trotman) (1993). 124 Hypo ¶ 16. 125 Hypo ¶ 24. 126 Democratic Charter, supra note 80, art. 15. 127 Philippe Sands, Principles of International Environmental Law 254 (The Press Syndicate of the University of Cambridge, 2003) (1995). 128 Rio Declaration, supra note 82; Johannesburg Plan, supra note 103.

TEAM NO. 6387

32

A link between the environment and sustainable development is widely accepted by

several international law instruments.129 The protection of environment is a vital part of the

contemporary human rights doctrine because harm to the environment can undermine all human

rights.130 Thus, in order to avoid human rights’ violations, States must recognize that adequate

protection of environment cannot be achieved without consideration for sustainable

development, integral part of human rights.

Given the Petitioners’ need for special protection, coupled with imminent and irreparable

harm to their environment, this Court should adopt the principle of sustainable development in

order to provide adequate remedy for violations of the Petitioners’ human rights. Failure to

incorporate this principle will unduly limit the effect of other international instruments that

recognize this right.

XI. THIS COURT SHOULD GRANT PROVISIONAL MEASURES NECESSARY TO AVOID URGENT, GRAVE AND IRREPARABLE HARM TO THE PETITIONERS

A. Authority and Requirements for Granting Provisional Measures

Article 63(2) of the Convention enables this Court to adopt provisional measures to avoid

irreversible harm to persons in cases of extreme gravity and urgency.131 Pursuant to Article 26

of the Convention, three requirements must be satisfied for the provisional measures to be

granted: 1) "extreme gravity"; 2) "urgency"; and 3) "irreparable damage to persons."132

B. Conditions Substantiating the Grant of Provisional Measures

The effects documented in the case histories of hydroelectric development within the

indigenous peoples’ territory are permanent and all encompassing, as evidenced in Argument IX.

129 Agenda 21, supra note 99; Copenhagen Declaration, supra note 99; Santa Cruz Declaration, supra note 99. 130 Cabcikovo-Nagymaros Project, 1997 I.C.J. 7, 60. 131 Convention, supra note 2, art. 63(2).132 Four Ngobe Indigenous Communities and Their Members, 2010 Inter-Am. Ct. H.R., considering 4 (May 28, 2010).

TEAM NO. 6387

33

Like other indigenous peoples, the Petitioners depend on their local environment and

territory preserved in the natural state for their subsistence and survival. The project threatens to

drastically reduce their biodiversity, emit greenhouse gases, flood biologically rich land, and

result in the ecosystem loss. Loss of ecosystem not only leads to habitat destruction forcing

wildlife migration and outright extinction of species, but also threatens the Petitioners’ means of

subsistence, thus, causing extreme gravity. Further, many of the Petitioners’ fundamental rights

depend on the maintenance of environmental integrity, including the right to practice religion,

which is affected by the project on their sacred sites, as well as the most inalienable right, the

right to life. In addition, the Project will open the territory to further development by the non-

indigenous people, and introduce different culture incompatible with the Petitioners’ traditional

lifestyle, thus gravely impacting the remaining indigenous population.

The grant of provisional measures also requires proof of urgency, which is established by

existence of imminent risk.133 Tucanos has already commenced the construction process and

made no attempt to halt the project. Environmental impacts, discussed in Argument IX, are

imminent if Tucanos is not enjoined. Forced relocation of the Petitioners also poses imminent

threat to their physical and psychological well-being, as it will disrupt their unique ties with their

territory.

The Court held that establishment of the "irreparable damage to person" prong requires

“reasonable probability” that the irreversible harm will occur.134 Hydroelectric plants have been

documented to cause irreversible environmental harm and to endanger human survival. (See

Argument IX supra.) It is reasonably probable that the construction of the plant will lead to the

133 Id. considering 9. 134 Id. considering 10.

TEAM NO. 6387

34

same consequences in Tucanos. Therefore, the harm from the destruction of land and ecosystem

will cause irreparable harm to the Petitioners.

In this case, the protection of fundamental human rights of the Petitioners significantly

outweighs Tucanos’ interest in the project. Tucanos’ search for new energy sources can be

accomplished through alternative means that do not require infringement on the Petitioners’

human rights. The project that has been in the planning stages for more than thirty years does not

have the same sense of urgency as the respect for the Petitioners’ human rights, on which their

very survival is dependent. Failure to prevent environmental degradation of the Petitioners’

territory would result in irreparable damage to persons, extreme gravity and urgency. Therefore,

the Court should grant the provisional measures to halt the project construction and stop the

process of the Petitioners’ relocation.

XII. REQUEST FOR RELIEF

The Petitioners respectfully request this Honorable Court to declare Tucanos liable for

violation of all the above-mentioned Articles of the Convention and Article 11 of the San

Salvador Protocol. In light of the foregoing violations, the Petitioners request this Court to adopt

provisional measures to avoid irreparable harm to the Petitioners. In this regard, the Petitioners

request that the Court order Tucanos to:

1. Enjoin the construction of the plant and order immediate cessation of further project implementation pending the satisfaction of the judgment of this Court;

2. Order Tucanos to restore the natural resources and the affected land to its pre-construction state;

3. Order Tucanos to initiate effective consultation proceedings with the Petitioners in full compliance with the Inter-American jurisprudence;

4. Refrain from taking measures that derogate from its obligations under the Convention and San Salvador Protocol;

TEAM NO. 6387

35

5. Take any and all measures this Court deems necessary to guarantee the Petitioners “free and full exercise” of their human rights under the Convention and San Salvador Protocol.

6. Make reparations proportionate to the gravity of violations to compensate the Petitioners and to deter future violations.

7. Grant any other relief as it shall deem appropriate