Dr Maria Jose Luque Macias
Maria Jose is a Marie Sklodowska-Curie (MSCA) Postdoctoral Fellow at the Programme for Studies on Human Rights in Context (Ghent University, Belgium). With her project NGOsteerIACtHR, she examines here the influence of NGOs’ agenda-setting power on the jurisprudence of the Inter-American Court of Human Rights (IACtHR) relating to environmental matters. She obtained her Dr. Jur. from the FAU Erlangen-Nürnberg and an LLM from Potsdam University and is an Ecuadorian lawyer (UCSG) with research interests in (the intersections of) international human rights law, environmental law, investment law and the business and human rights debate.
Introduction
By the end of December 2023, the Inter-American Court of Human Rights (IACtHR) had received a total of 264 amicus curiae briefs on Colombia and Chile’s request to issue an Advisory Opinion (AO) on the state obligation to respond to the climate emergency. These third-party interveners and member states of the Organization of American States that did not present written interventions elaborated on their views on the six questions posed by this request at two separate public hearings held in Barbados and Brazil, last April and May, respectively.
Given the considerable diversity of actors that participated in this consultative process, this post focuses on the 17 amicus curiae briefs, lodged by or on behalf of local communities of the Americas. It argues that the submission of third-party interventions before the IACtHR enables these local groups to give locally relevant content to international human rights norms so that the latter can be of use on the ground to counteract the increased vulnerability they are directly facing because of a variety of environmental impacts related to climate change. To explore this claim, the following sections outline some of the local human rights experiences and needs shared and expressed by different types of actors, who encouraged the IACtHR to consider these local struggles as a basis for its response to this AO request.
Extractive Industries as One Cause of Environmental Damages that Climate Change is exacerbating
Several intervening grassroots organizations perceived extractive industries as an economic practice that breaches their human rights due to the climate vulnerability that the surrounding ecosystems and they are suffering.
To illustrate, two amicus briefs expressed the views of the Organización Identidad Territorial Malalweche and the Confederación Indigena Neuquina. Both are indigenous community-based organizations representing the interests of the Mapuche people based in the provinces of Mendoza and Neuquen, Argentina. Following a report on the impact on their health, food, culture and territory linked, inter alia, to the exploration and exploitation of hydrocarbons in the Vaca Muerta Formation in the Province of Mendoza and Northern Patagonia, it is noticeable their use of the “rights” language by complaining about the lack of prior state consultation on the issuance of government regulations on the environmental impact assessment of this development project in their traditional territories.
In an urban context, women living in the Bay of Puchuncaví and Quintero, in the Valparaiso region, Chile, complained about the environmental and social effects of decades of industrial activity. By doing so, they expanded this discursive practice by alleging that these activities have turned their home into a sacrifice zone, a term increasingly used by international human rights bodies to describe an area where the intensive use of natural resources has so altered the landscape that life for humans and other living creatures has become almost impossible.
Extraction of (Critical) Minerals: An Obstacle to Local Adaptation and a Problematic Mitigation Effort
The Comunidades de La Gran Parada, El Rocío and Organización Fuerzas de Mujeres Wayuu consist of three indigenous community-based organizations representing the Wayuu people in Colombia. Through their amicus briefs, they intended to explain how extractive industries hinder their adaptation to global warming. Arguably, their joint work allowed for a better articulation of their complaint on how the operation of “El Cerrejon”, an open-pit coal mine, has led to the diversion of water sources and denial of the enjoyment of several human rights in the department of La Guajira.
Furthermore, the extraction of strategic or critical minerals has also attracted criticism as a measure to facilitate the energy transition. APOINME, a grouping of indigenous peoples and organisations representing three regions of Eastern Brazil, jointly intervened with Justiça Global, a Brazilian non-governmental organization (NGO), questioned the extraction of lithium, claiming that it poses the same risks as the traditional mining industry for Brazilian communities in Minas Gerais and southern Bahia. With its expertise, this local NGO may not only have assisted these communities in conveying their struggles with this mitigation measure. In addition, it may have also supported them in finding validation of their claims in the concerns already raised by the UN Rapporteur in Toxics and Human Rights, Marco Orellana, who highlights how this initiative imposes toxic burdens on people and the environment, severely compromising the enjoyment of human rights.
Other Mitigation Actions That Received Local Criticism
Decarbonisation efforts (i.e. measures aimed at switching from the use of fossil fuels such as coal, natural gas or oil to carbon-free and renewable energy sources) also came under considerable scrutiny. For instance, the APIB, APOINME and Terena People’s Council advanced the interests of Brazilian indigenous people (and organizations) at the national level, as well as in the Eastern and Northeastern regions, and the Mato Grosso state, respectively. They strongly questioned the operation of hydroelectric dams as an alternative to fossil fuels since they cause serious territorial conflicts and environmental degradation in Belo Monte in the Volta Grande do Xingu. In addition, they condemned these actions for diverting the natural course and flow of the Xingu River in the Northeast, Minas Gerais and Espírito Santo regions.
Contrarily, indigenous groups from the San Martin region of Peru, supported by the Instituto de Defensa Legal (IDL) as well as the Forest Peoples Programme (FPP) and the Due Process of Law Foundation (DPLF), like the Kichwa indigenous people of Sarayaku, are some of the critics of carbon markets as compensation schemes that facilitate decarbonisation. To exemplify, the former group of interveners challenged offsetting emissions that exceed decarbonisation targets through huge investments in reforestation and carbon sequestration projects on their traditional lands on the grounds that these markets allow companies with significant carbon footprints to continue to pollute without having to reduce their emissions, achieving a so-called climate ‘neutrality’ through the concept of ‘net zero’ carbon emissions. In addition, they regretted that the lack of state regulation of the certification and trading of carbon credits has led to a ‘voluntary market’, in which private certifiers quantify the amount of CO2 emissions that remain captured according to the methodologies they developed themselves.
Other critics of carbon markets are the international NGO, Amazon Watch, which jointly intervened with the following 11 South American actors: 5 signatories are from Brazil (CEDEPIS and Instituto InfoClimatico, comprising researchers and an information centre on climate change mitigation and adaptation policies, respectively; as well as APIB, APOINME and Associação Indígena Munduruku Dace, representing the interests of indigenous peoples in Brazil at national, regional and local levels); 4, from Ecuador (CONFENIAE, a regional indigenous organisation representing the Amazonian nationalities; FOIN, one of the former’s base organisations; Alianza por los Derechos Humanos de Ecuador, a coalition of 14 local organisations and UDAPT, an organization conformed by those directly affected the oil operations under the responsibility of the current Chevron Corporation, formerly Texaco), whereas the last two correspond to OPIAC and AIDESEP, representing the indigenous communities of the Colombian and Peruvian Amazon, respectively. The critique of this group of actors centres on the failure of these compensation schemes to address the underlying causes of forest loss in the Amazon, which include large-scale commodity production, mining, fossil fuel extraction and infrastructure development.
Finally, the so-called REDD+ mechanism, which stands for Reducing Emissions from Deforestation and Forest Degradation, also prompted substantial criticism of the Colombian NGO, Gaia Amazonas, which worked together with the Representatives of the Indigenous Territories that make up the Macro-territory of the Jaguars of Yuruparí, Yaigojé Apaporis, Mirití Paraná, Tiquié and Pirá Paraná stemming from the Macroterritory of the Jaguars of Yurupari, in the Colombian Amazon. In principle, they strongly challenged the market-driven nature of this forest management mechanism, which ignores indigenous lifestyles and knowledge systems that have already proven to be effective in forest management and conservation.
The Local Need for Answers to the AO Request that Upheld the Rights Already Recognised by the IACtHR
Focusing on a specific set of rights or rights-holders, the questions raised in the AO request demand an answer on how states should align certain international human rights obligations with the three pillars of the international legal regime for climate change: mitigation, adaptation and loss and damage. Question A addresses, on one hand, the scope of the general state obligation to ensure human rights in the face of the climate emergency, including the considerations to be taken into account when carrying out the measures to comply with the obligation to prevent as outlined in the AO No. 23 (paras 141-173), while, on the other hand, delves into the principles that should guide state implementation of the three pillars. Questions B and D, instead, tackle the protection of different dimensions of the right to freedom of expression and to have judicial guarantees, respectively, in a context where the climate crisis is intensifying. Besides, question C pertains to the nature and scope of the differentiated obligations of states to adopt timely and effective measures to guarantee various rights to children and future generations, whereas question E relates to their obligations to protect different vulnerable groups who defend the environment. Finally, question F relates to the scope of common but differentiated state obligations and responsibilities in the face of the climate emergency.
Notably, because 14 out of the 17 written interventions under analysis corresponded to groups that self-identify as indigenous (of which five also acted on behalf of women, environmental defenders, peasants and/or Afro-descendant groups), they framed their answers to Colombia and Chile’s queries in line with this identity paradigm by vindicating the rights already recognized to them in IACtHR’s jurisprudence. For example, the Brazilian indigenous groups mentioned above considered the recognition and demarcation of their ancestral territories as one differentiated measure that States should take to minimize the impact of climate change on groups in situations of vulnerability (Question A.1). In contrast, the international NGO, EarthRights International, together with indigenous, peasant and Afro-descendant communities and organizations from Brazil, Colombia, Ecuador, Guatemala, Honduras, Peru and the United States of America, attributed the same role to the right to free, prior and informed consultation and consent. Other groups, instead, differ on which question of the AO request the IACtHR should devote particular attention to this procedural right. Communities Rio Blanco, Montana Verde and San Franciso Opalaca, from Honduras, advocated that state consultation to indigenous people should guide the implementation of mitigation and adaptation actions (question A.2), whereas the Confederación de Nacionalidades Indígenas del Ecuador (CONAIE) and others, as well as the formerly mentioned Amazon Watch, considered it vital to guarantee the right to defend a healthy environment and territory (Question E).
Other groups like the Brazilian citizens who reported on the increase in water problems in the semi-arid region of Caatinga, a region historically marginalised in Brazil due to its low economic importance compared to the Amazon, submitted written observations underscoring the vulnerability of children and adolescents of this region. Similarly, members of the Comunidad El Bosque, accompanied by Nuestro Futuro, Conexiones Climáticas and Greenpeace México, intervened on behalf of children and future generations, although their submission focused primarily on their negative experiences as fishermen displaced by climate change in the State of Tabasco, Mexico. They stated that taking all necessary measures to prevent children from being forcibly displaced from their homes due to climate change should be understood as part of the differentiated obligations of States to adopt timely and effective measures to guarantee their rights (Question C). In this way, the latter group sought to place on IACtHR’s agenda the specific situation of vulnerability of fishermen within the broader issue of climate change-forced displacement.
On the shared obligations and responsibilities of states in the context of the climate emergency (Question F), indigenous women from Bolivia living on the shores of Lake Titicaca, emphasised the need for state cooperation in controlling the decrease in water flow and increase in the pollution of the lake, whereas the Justiça Global and APOINME raised the issue of corporate accountability. Having shown how extractive industries and other corporate activities exacerbate climate change, they called for the implementation of national instruments by states and the promotion of the global process of negotiating a legally Binding Treaty on Transnational Corporations to hold business entities accountable. Hence, addressing the negative impacts of corporate activities should be the responsibility of all states, regardless of their degree of responsibility for causing the climate emergency.
A Wake-Up Call (for Action) to their Home Countries
Underlying the local groups’ accounts of the negative environmental and social impacts of extractive industries and the efforts to mitigate them in various parts of the Americas, is a widespread criticism of their own states for failing to exercise their duty to regulate corporate activities. Therefore, their submission of amicus briefs also served to rebuke their home states and express concrete demands for action. For instance, the Organización Identidad Territorial Malalweche seemed to be calling on Argentina to share the benefits that oil concessions have obtained from their traditional lands, a request that is in line with one of the well-established safeguards that this country shall fulfil for the survival of indigenous peoples (para 174). In contrast, the above-mentioned communities from the department of La Guajira, and the Pueblos Wiwa and Kanuamo de la Sierra Nevada de Santa Marta, from Colombia, took a more radical tone, demanding the closure of coal mines and put mega-projects affecting their territories on hold, respectively.
Interestingly, communities reporting adverse environmental and social impacts in the Colombian Amazon appear to have initially requested the IACtHR to exercise an anticipatory adjudication over issues that have not fallen within its contentious jurisdiction, but whose advice may assist other actors in solving a (legal) dispute. ‘Disputes’ in this sense seem to be related to the acción de tutela (protective action) successfully brought by the interveners in 2014 for the creation of a natural park, which resulted in the suspension of the open-pit exploration of a gold mine, as well as a 2015 administrative process that nullified and suspended obligations arising from the mining concessions contract (ultimately leading to the initiation of investor-state arbitration proceedings against Colombia), as well as their pending acción de tutela against MasBosques and others concerning a REDD+ Project that benefitted Delta Airlines. Given these precedents, they urged for further refinement of the extraterritorial test for state jurisdiction already developed in AO No. 23, based on the legal control that home states exercise over their multinational corporations, which may indicate an expectation of an authoritative pronouncement by the IACtHR on the extraterritorial obligations of countries beyond the Americas.
Outlook
Whilst not exhaustive, this blog post sought to preliminarily delineate some of the points in which local groups coincide when intervening as amicus curiae before the IACtHR. Whether, and if so to what extent, this Court integrates their experiences and needs into the forthcoming AO remains to be seen. What is clear is that, despite differences in assessing the environmental impacts of corporate activities on their territories, they all face similar challenges regarding the limited enjoyment of human rights.
The author acknowledges financial support from the European Union’s Horizon 2020 research and innovation programme under the Marie Sklodowska-Curie grant agreement No.101111487.
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