2012 inter-american human rights moot court competition american University Washington College of Law



Download 232.71 Kb.
Page1/4
Date25.04.2016
Size232.71 Kb.
  1   2   3   4

Team #218

______________________________________________________________________________

2012 INTER-AMERICAN HUMAN RIGHTS MOOT COURT COMPETITION

American University Washington College of Law | May 2012
In the INTER-AMERICAN COURT OF HUMAN RIGHTS

Case of the Chupanky Community et al.

Petitioners

v.

The State of Atlantis



Respondent

MEMORIAL FOR THE STATE

TABLE OF CONTENTS

TABLE OF CONTENTS i

INDEX OF AUTHORITIES iv

STATEMENT OF FACTS 1

LEGAL ANALYSIS 6

  1. PRELIMINARY OBJECTIONS 6

A. Petitioners Have Not Exhausted All Available Domestic Remedies 6

B. The Chupanky Women Cannot Invoke This Court’s Jurisdiction Pertaining To Their Issues Because Neither Atlantis Nor The Commission Brought This Issue Before This Court 8

C. The Commission Cannot Invoke This Court’s Jurisdiction Because It Violated the Fourth Instance Formula 9

D. The Court May Review All Issues To Ensure That The Commission Followed Proper Procedures 9



II. STATE OF ATLANTIS PROPERLY INITIATED EXPROPRIATION PROCEEDINGS AGAINST THE LA LOMA AND CHUPANKY PEOPLES FOR REASONS OF PUBLIC UTILITY AND SOCIAL INTEREST 10

A. Atlantis Complied With Established International Law Pertaining To The Subordination Of The Chupanky’s Property 10

1. Atlantis Ensured Effective Participation According To Chupanky Customs 11

2. Atlantis Guaranteed A Reasonable Benefit 12

3. Atlantis Obtained A Prior And Independent ESIA 13

4. Atlantis Obtained The Chupanky’s Free, Prior, And Informed Consent 15

B. The La Loma Is Not An Indigenous Community Under International Law 17

III. ATLANTIS DID NOT VIOLATE THE PETITIONERS PHYSICAL, MENTAL, OR MORAL INTEGRITY 19


  1. Atlantis Did Not Violate the Chupanky Community’s Right To Self-Determination 18




  1. Atlantis Did Not Violate The Chupanky Women’s Physical, Mental, Or Moral Integrity Because Atlantis Followed the Community’s Customs And Traditions 21




  1. Atlantis Did Not Interfere With The La Loma Community’s Physical, Mental, Or Moral Integrity 22


IV. ATLANTIS DID NOT VIOLATE THE CHUPANKY MEMBERS’ RIGHT TO FREEDOM FROM SLAVERY OR COMPULSORY LABOR 23

V. ATLANTIS PROVIDED THE RIGHT TO JUDICIAL PROTECTION 25

A. Atlantis Afforded The Chupanky Community A Competent Authority 25

1. The Administrative Proceedings Satisfied Due Diligence 25

2. Each Proceeding Was Determined In A Reasonable Time 27

3. Effectiveness of the Administrative Remedy 26

B. Atlantis’ Administrative Proceedings Provided the La Loma Community A Competent Authority 27



VI. ATLANTIS RESPECTED THE CHUPANKY’S RIGHT TO LIFE 28

VII. ATLANTIS DID NOT DISCRIMINATE AGAINST THE CHUPANKY 29

REQUEST FOR RELIEF 30

INDEX OF AUTHORITIES
BOOKS & SCHOLARLY ARTICLES

Black’s Law Dictionary 1216 (9th ed. 2009) 20
James Anaya, International Human Rights and Indigenous Peoples. (Aspen 2009) 16, 17
Lee Swepston, The ILO Indigenous And Tribal Peoples Convention (No. 169): Eight Years After Adoption, The Human Rights of Indigenous Peoples, (Cynthia Price Cohen ed., 1998) 17
TREATIES AND OTHER INTERNATIONAL AGREEMENTS
American Convention on Human Rights

Article 1 passim

Article 4 28

Article 5 passim

Article 6 passim

Article 21 passim

Article 25 passim

Article 46 6, 7

Article 49 8

Article 61 8


Convention on the Elimination of all Forms of Discrimination Against Women

Preamble 21


Forced Labour Convention

Article 2 24


Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women

Article 4 19, 21

Article 6 21
International Covenant on Civil and Political Rights

Article 27 19


ILO-Convention 169 (Indigenous and Tribal Peoples Convention, 1989)

Article 16 15


United Nations Declaration on the Rights of Indigenous Peoples

Article 3 19

Article 32 11
United Nations Universal Declaration of Human Rights

Article 2 19


FREE TRADE AGREEMENTS
North American Free Trade Agreement

1805 7, 8


Dominican Republic-Central American Free Trade Agreement

Article 16 7, 8



INTER-AMERICAN CASES, ADVISORY OPINIONS, REPORT
Inter-American Court of Human Rights

Contentious Cases

Aloeboetoe et al. Case

Inter-Am. Ct. H.R., Ser. C, No. 11 (4 Dec., 1991) 21


Case of Las Palmeras v. Colombia, (Judgment)

Inter-Am. Ct. H.R., Ser. C, No. 90, (6 Dec., 2001) 9


Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Judgment)

Inter-Am. Ct. H.R., Ser. C, No. 79, (31 Aug., 2001) 30


Case of the Moiwana Community v. Suriname (Preliminary Objections)

Inter-Am. Ct. H.R., ser.C, No. 124, (15 June, 2005) 20, 25


Case of the Sawhoyamaxa Indigenous Community v. Paraguay

Inter-Am. Ct.H.R., Ser. C, No. 146 (29 Mar., 2006) 10, 28


Case of the Saramaka People v. Suriname (Preliminary Objections)

Inter-Am. Ct. H.R., ser. C, No. 172, (28 Nov., 2007) passim


Case of the Saramaka People v. Suriname, (Interpretation of Preliminary Objections)

Inter-Am. Ct. H.R., ser. C, No. 185, (12 Aug., 2008) passim


Case of the Xákmok Kásek Indigenous Community v. Paraguay (Judgment)

Inter-Am. Ct. H.R., ser.C, No. 239, (24 Aug., 2010) passim


Case of the Yakye Axa Indigenous Community v. Paraguay (Judgment)

Inter-Am. Ct. H.R., ser. C, No. 79, (17 June, 2005) 20, 28


Case of Yatama v. Nicaragua (Preliminary Objections)

Inter-Am. Ct. H.R., Ser. C., No. 127, (23 June, 2005) 21


Castillo Paez v. Peru (Preliminary Objections)

Inter-Am. Ct. H.R., Ser. C, No. 25, (30 Jan., 1996) 9



Cesti Hurtado v. Peru (Prelminary Objections)

Inter-Am. Ct. H.R., Ser. C, No. 49, (26 Jan, 1999) 9


Juan Humberto Sanchez v. Honduras (Judgment)

Inter-Am. Ct. H.R., ser. C, No. 99 (7 June, 2003) 7


Velásquez Rodríguez v. Honduras (Preliminary Objections)

Inter-Am. Ct. H.R., Ser. C, No. 1, (June, 1987) 10


Inter-American Court of Human Rights

Advisory Opinions

Exceptions to the Exhaustion of Domestic Remedies

(Arts. 46(1), 46(2)(a) and 46(2)(b) of the American Convention on Human Rights)

Advisory Opinion OC-11/90, Inter-Am. Ct. H.R., Ser. A, No. 11 (10 Aug., 1990) 7


Inter-American Commission of Human Rights

Contentious Cases

Emiliano Castro Tortrino v. Argentina

Case 11.597, Report No. 7/98

Inter-Am. Comm’n HR 54, OEA/Ser.L/V/II.98, doc. 7 rev., (2 Mar., 1998) 9
Mary and Carrie Dann v. United States

Case 11.140, Report No. 75/02

Inter-Am. Comm’n HR, Report No. 75/02, (27 Dec., 2002) 15, 21
Santiago Marzioni v. Argentina

Case 11.673, Report No. 39/96

Inter-Am. Comm’n HR 86, OEA/Ser.L/V/II.95, doc. 7 rev. (15 Oct., 1996) 9
Inter-American Commission of Human Rights

Reports

Access to Justice and Social Inclusion: The Road Towards Strengthening Democracy in Bolivia, Inter-Am. Comm’n H.R.

OEA/Ser.L/V/II, doc. 34, ¶ 251 (28 June, 2007) 29


Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin

Inter-Am. Comm’n H.R.

OEA/Ser.L./V.II.62, doc. 10 rev. 3 Part Two, B (29 Nov., 1983) 19
Report on the Situation of Human Rights in Ecuador

Inter-Am. Comm’n H.R.

OEA/Ser.L/V/II.96, doc. 10 rev.1 (24 Apr., 1997) 29


Third Report on the Situation of Human Rights in Paraguay

Inter-Am. Comm’n H.R.

OEA/Ser./ L/VII.110, doc. 52, ch. IX, (9 Mar., 2001) 24
Captive Communities: Situation of the Guarani Indigenous People

and Contemporary Forms of Slavery in the Bolivian Chaco

Inter-Am. Comm’n H.R.

OEA/Ser.L/V/II, doc. 58, (24 Dec., 2009) 24

EUROPEAN COURT OF HUMAN RIGHTS CASES, ADVISORY OPINIONS, REPORT
European Court of Human Rights

Contentious Cases

Case of Van der Mussele v. Belgium

App. No. 8919/80, Judgment (23 Nov., 1983) 24


James et al v. The United Kingdom,

App. No. 8793/79, (21 Feb. 1986) 22



OTHER COURTS
Questech Inc. v. Iran, 9 IRAN-U.S. C.T.R. 9, at 107 et seq. p. 122-123 20
Sapphire International Petroleums LTD. V. National Iranian Oil Company. Arbitral Award. March 15, 1963. ILR (1967) pp. 136 et seq. at p. 181 20
Apirana Mahuika et al. v. New Zealand, UNHRC, Seventh Session, U.N. Doc. CCPR/ C/70/D/547/1993 (15 Nov., 2000) 29

OTHER REPORTS
Akwe:Kon Voluntary Guidelines, ¶ 6(d) 14
Observations of the United States with Respect to the Declaration on the Rights of Indigenous Peoples (13 Sept., 2007) 11
Report of the African Commission’s Working Group on Indigenous Populations/Communities, Adopted by the African Commission on Human and People’s Rights at its 34th Ordinary Session, (6-20 Nov., 2003), 86-93 (2005 ed. ACHPR & IWGIA) 17
Report of the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People, supra note 97, United Nations 13
The World Bank, Operational Policy on Indigenous Peoples (OP 4.10) (2005) 17, 29
UNCERD, Consideration of Reports submitted by States Parties under Article 9 of the Convention, Concluding Observations on Ecuador 12
United Nations Committee on Economic, Social, and Cultural Rights, Comment 14 28
Yomba Shoshone Tribe and Ely Shoshone Tribe of the Western Shoshone People, Amended Request for Urgent Action Under Early Warning Procedure to the Committee on the Elimination of Racial Discrimination of the United Nations (July 1, 2000) 28

STATEMENT OF FACTS
The State of Atlantis, an island nation in the Americas, ratified all universal and regional conventions on human rights, including the American Convention on Human Rights (Convention), and relevant free trade agreements (FTA) through its Constitution of 1994.1 Although an emerging nation, Atlantis currently depends on expensive foreign energy to supply power to its nine million inhabitants.2 In the Chupancué region, indigenous people and peasant farmers live in extreme poverty.3 Both the lack of sustainable domestic energy and its poverty remain real concerns in Atlantis’ struggle toward social and economic progress.4

To address its lack of domestic energy and poverty, Atlantis adopted the 2003 National Development Plan (NDP).5 Under the NDP, the Energy and Development Commission (EDC), a parastatal entity, solicited bids to build a national hydroelectric power plant.6 The plant will create a sustainable domestic source of energy and generate industrial benefits that include promoting construction, creating jobs, and providing energy to Atlantis’ remote regions.7

Atlantis conducted a feasibility study in November 2003, which showed that the Motompalmo River, located in the Chupancué region and one of Atlantis’ main rivers, was an ideal location for the project.8 In January 2005, the EDC granted the bid for the power plant to the Turbo Water Company (TW).9 The project was divided into three phases: entering into agreements with the land owners; draining and constructing reservoirs; and irrigating, testing, and operating the plant.10 The location impacts the La Loma and Chupanky communities.11

The Chupanky

The Chupanky pre-dates European colonization and is part of the Rapstan nation.12 The Rapstan’s language, customs, practices, traditions, and religion characterize the Chupanky.13 The Chupanky are a patriarchal community led by the Council Elders, whose culture is tied to the Motompalmo River.14 The Chupanky fish, plant seeds and hunt.15 Atlantis has taken measures to legally recognize, delimit, and demarcate title for the Chupanky ancestral territories.16

In November 2007, Atlantis created the Intersectoral Committee (IC) to negotiate with the Chupanky.17 The IC conducted four meetings with the Council of Elders and male heads of households with Rapstan interpreters present.18 To provide just compensation, IC offered the Chupanky alternative agricultural land.19 The land is located just 35 kilometers from the river’s eastern banks and exceeds the size of their current land. 20 Additionally, IC offered to provide electrical power, computers, jobs, a direct highway to the river, and eight water wells 21 A majority of the Chupanky approved the project’s first and second phases in December 2007.22

On 28 February, 2008, Atlantis’ Ministry of the Environment and Natural Resources (MENR) designated Green Energy Resources (GER), an independent organization, to conduct an environmental impact study.23 MENR supervised, certified and sent a true and accurate copy of GER’s report to the Chupanky in Spanish.24 The report detailed possible geological damage and alteration to the ecosystem that would not harm human beings.25 The report also anticipated social and cultural risks and provided ways to remedy them, including securing direct access to the Motompalmo River so that the Chupanky may maintain their spiritual custom.26

The Chupanky began work on 20 June, 2008.27 TW hired seven divers and 215 masons and paid them US $4.50 per day.28 The women prepared food and cleaned and washed clothes for US $2.00 per day.29 TW also hired eighty-nine qualified individuals through employment contracts.30 In the first two months, each person worked nine-hour days.31 As project demands increased, the men’s workday increased to fifteen hours per day.32

Before work began, Mina Chak Luna, a Chupanky woman, formed the Rainbow Warrior Women (RWW) to protest the agreement.33 Mina sent a communiqué to IC, which it agreed to review.34 On 16 November, 2008, RWW sent to El Oscurín Pegri medical results of four divers who suffered partial disability due to faulty equipment.35 RWW also documented 50 masons who complained of work conditions.36 Shortly after publication of the report, Atlantis offered the four divers medical vouchers and a year’s supply of food, which they accepted.37 On 10 December, 2008, RWW and La Loma members met with EDC and MENR representatives in Tripol.38

On 20 December, 2008, the Council of Elders held a community meeting to veto the remaining stages of the project, notifying TW and IC on 25 December, 2008.39 TW refused to halt construction, threatening to fire the indigenous employees and sue for breach of contract.40 TW immediately conducted proceedings to remove the Chupanky to alternative lands.41

Morpho Azul an NGO representing the Council of Elders, filed an administrative claim before the EDC on 9 January 2009 requesting cancellation of the project.42 EDC denied the claim on 12 April, 2009, holding that the Chupanky were fully informed and approved of the project.43 Morpho Azul appealed to the Court for the Judicial Review of Administrative Acts (CJRAA).44 On 10 August, 2009, CJRAA held that negotiations complied with international standards.45 On 26 September, 2009, the Chupanky filed a petition for a constitutional remedy to the Supreme Court of Justice.46 The Supreme Court rejected the petition on 15 December 2009, holding that Atlantis complied with national and international standards and that cultural integrity asserted in the claim is not recognized as an autonomous right in the case law of the Inter-American Court.47



The La Loma

Women who entered into mixed-race marriages were exiled from Rapstan communities and formed the La Loma community in the 1980s.48 Although the La Loma retains certain Rapstan cultural practices, they do not preserve the traditional Rapstan dialect, clothing, crafts or social hierarchy.49 In 1985, Atlantis officially recognized La Loma as a peasant farming community and provided them with government subsidies.50

Atlantis declared the power plant a public utility in April 2005 and made a judicial deposit of half of the assessed value of the affected lots as compensation.51 Additionally, Atlantis offered the La Loma alternative agricultural land located only 25 km west of the Motompalmo River.52 25% of the La Loma accepted the initial offer without asserting cultural ties.53

Atlantis then initiated expropriation proceedings before the Seventh Civil Court of Chupancué (Civil Court) to determine just compensation for the lands.54 In February 2006, the Civil Court confirmed Atlantis’ declaration that the land was of public interest, which allowed the project to move forward.55 Members who refused to leave the land were reassigned to temporary locations.56 In May 2006, the Civil Court found the La Loma were not entitled to indigenous protection because they are not an indigenous group.57 On 19 October, 2006, an expert appraiser rendered his opinion on the value of the La Loma land.58 The La Loma continue to refuse any form of compensation for their land and contested the opinion on 30 October, 2006.59 The proceeding is pending decision to determine an amount for just compensation.60



Proceedings before the Commission

Community representatives, the Petitioners, submitted a petition to the Inter-American Commission on Human Rights (Commission) on 26 May, 2010.61 Atlantis did not file preliminary objections in its submission of observations on 1 September, 2010.62 The Commission issued its report finding that Atlantis violated Articles 1(1), 4(1), 5(1), 6(2), 21 and 25 of the Convention against the Chupanky and violated Articles 5(1), 21 and 25 against the La Loma.63 It recommended that Atlantis implement various comprehensive reparation measures for both communities, taking into account their cultural characteristics.64 The compliance period lapsed, and the Commission brought this case before this Court on 4 October, 2011.65



LEGAL ANALYSIS

  1. PRELIMINARY OBJECTIONS

This Honorable Court has jurisdiction to hear this case. Atlantis has ratified all regional and universal human rights instruments, including the American Convention.66 Atlantis accepted this Court’s jurisdiction on January 1, 1995.67 Nonetheless, Atlantis asserts that the Commission has prematurely and improperly invoked the Court’s authority.



A. Petitioners Have Not Exhausted All Available Domestic Remedies

The Commission improperly invoked this Court’s jurisdiction because the Chupanky and the La Loma have not exhausted all available domestic remedies. Under the Convention, the Commission may admit a petition only if domestic remedies have been pursued and exhausted.68 A principle of international law requires that domestic remedies be adequate and effective.69 The domestic remedies must address an infringement of a legal right and produce the result it was designed for.70 Domestic remedies need not be exhausted when there is an inadequate remedy.71 Moreover, an ineffective remedy, which includes unjustified delay in providing domestic remedies, also exempts exhaustion.72 If the Petitioner cannot show exhaustion of local remedies, then the Commission cannot assert its authority.73

The Chupanky workers have not exhausted all domestic remedies. In addition to employment authority provided to them under state law, workers can bring their case before a judicial entity under relevant free trade agreements (FTA). Under both the North American Free Trade Agreement (NAFTA) and the Dominican Republic-Central American Free Trade Agreement (DR-CAFTA), a party has a right to appear before a judicial tribunal to petition their case and gain procedural protections under domestic law.74

Accordingly, the Chupanky workers have access to adequate and effective local remedies. The workers can contact the proper employment authority regarding work conditions under state law or seek judicial remedies under NAFTA and DR-CAFTA. Atlantis showed its willingness to provide an adequate and effective remedy when Atlantis provided the affected divers with healthcare and food.75 Thus, unhappy workers can file a petition before local authority for remedies but have not yet done so.76 Additionally, under NAFTA and DR-CAFTA, workers can also seek judicial remedies but have not yet done so.77

The La Loma community has also failed to exhaust all domestic remedies. The expropriation proceeding is pending in a court that would offer affected owners just compensation for their lands.78 The Civil Court has not reached a settlement with the La Loma because dissenters continue to refuse Atlantis’ offer for compensation and because Atlantis attempted to reach a friendly settlement before the Commission.79 However, the Civil Court continues to be willing to settle.80 Furthermore, the La Loma can also bring their claim before the Court for the Judicial Review of Administrative Acts (CJRAA) to determine whether Atlantis’ actions comply with its Constitution.

B. The Chupanky Women Cannot Invoke This Court’s Jurisdiction Pertaining to Their Issues Because Neither Atlantis Nor The Commission Brought This Issue Before This Court
The Chupanky women cannot invoke this Court’s jurisdiction because the Commission did not bring this issue before this Court. Under the Convention, only a state party and the Commission may submit a case to the Court and can only do so if proper procedures are followed.81 The Commission, based on relevant facts, may draw up a report and state its conclusion and it may then file that report with the Court if it chooses.82

In its admissibility reports, the Commission did not find that Atlantis violated its obligation to the Chupanky women under the Convention of Belem do Pará nor were there reparations ordered through a gender perspective.83 Therefore, because neither Atlantis nor the Commission brought the issue before the Court, the Court is unable hear this case.



B. The Commission Cannot Invoke This Court’s Jurisdiction Because It Violated The Fourth Instance Formula
This Court is further unable to invoke this Court’s jurisdiction because it violates the fourth instance formula. Under the fourth instance formula, Inter-American organs can only determine whether the State violated its international human rights obligations.84 However, neither the Court nor the Commission can serve an appellate function to determine whether the State correctly applied its own domestic law.85 Thus, when a legal issue is settled domestically, the Court may not question the domestic courts’ competence.86

The Commission improperly inserted its authority here and, as a result, violated the fourth instance formula. The Atlantis Supreme Court held that the Chupanky did not have a constitutional remedy because Atlantis properly applied national and international standards in its negotiations.87 Atlantis did not find a human rights violation in this case. As a result, neither the Commission nor the Court can interfere in this case.




Share with your friends:
  1   2   3   4




The database is protected by copyright ©essaydocs.org 2020
send message

    Main page