A Rainforest and the Guahibo Are Threatened in Amazonia and Caribia
Problem 10-3
Brief for Amazonia
Keith Bauerle
21 October 1997
I. STATEMENT OF FACTS
A number of years ago, Amazonia collaborated with the World Bank to open up the Matorral province to settlement. The resulting development project, named Eco-Habitación (ECOHAB), built a road system and encouraged ranching and sustainable timber harvests. Amazonia looked to reap substantial economic benefits from developing the region. In addition, the development was intended to provide a means for the urban poor, crowded into the slums of the eastern cities, to build a new life in the Matorral province.
As Amazonia's government was implementing ECOHAB, it was concerned that the region's indigenous peoples should be protected from any collateral adverse effects that might result from the planned development. Amazonia therefore established tribal reservations to protect these indigenous peoples, including the Guahibo. Amazonia established these reservations entirely on its own, with no prodding or assistance from international NGOs or governments. The protection afforded the Guahibo through the reserve system has been adequate in the past to shelter them from the effects of ECOHAB.
Unfortunately, the situation in the Matorral has changed. The tree farms and ranches have not proved economically viable. In conjunction with the economic difficulties, lawlessness has increased in the Matorral. Recently, some individuals have gone so far as to prospect and mine for gold and tin in the Guahibo reserve, deplorable actions which Amazonia condemns. These illegal mining operations have caused some of the Amazonian Guahibo to resettle across the border in Caribia.
In response to the troubles in the Matorral, Amazonia has designed a second phase of ECOHAB that seeks to promote economic uses more attuned to the natural resources of the region. Caribia, however, has objected to this plan, as well as other unspecified conduct of Amazonia, on the grounds that it violates the 1992 Convention on Biological Diversity ("Biodiversity Convention"). Amazonia disagrees. Both countries have agreed to arbitration under Article 27(3)(a) of the Convention to resolve this dispute. Caribia has also filed a "complaint of non-observance" with the International Labor Organization alleging violations of the 1989 ILO Convention (No. 169) Concerning Indigenous and Tribal Peoples In Independent Countries ("ILO No. 169"). This complaint will be treated by an independent Commission of Inquiry.
II. QUESTIONS PRESENTED
A. Has Amazonia violated international obligations within the jurisdiction of the Biodiversity Convention's Arbitral Tribunal?
B. Has Amazonia violated international obligations within the jurisdiction of the ILO's Commission of Inquiry?
III. DISCUSSION
A. Amazonia has not violated international obligations within the jurisdiction of the Biodiversity Convention's Arbitral Tribunal.
1. Amazonia has not caused damage to Caribia within the meaning of Article 3.
Caribia has alleged that Amazonia's actions violate Article 3 of the Convention on Biological Diversity.
Article 3 begins, however, with the proposition that states have the "sovereign right to exploit their own
resources pursuant to their own environmental policies . . . ."(1) This fundamental right is also articulated
in Principle 2 of the Rio Declaration, reflecting its acceptance as a customary norm of international law.(2)
The sole duty in Article 3 is that states have a "responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of other States or of areas beyond the
limits of national jurisdiction.(3)
First, Caribia has not proven damage to the environment within its Equatorial Reserve. Caribia's
objection to Amazonia's actions are premised on the threat of such damage due to an influx of
Amazonian Guahibo. Without environmental damage, Caribia has no grounds for asserting a violation
of Article 3. The Trail Smelter Arbitration, which gave rise to the norm of international law that one
state is liable for injuries to another, was based on clear evidence that injuries had occurred and would
occur in the future if no preventative actions were taken.(4) In terms borrowed from United States judicial
doctrine, the controversy between Caribia and Amazonia has not resulted in an injury in fact sufficient to
confer standing to Caribia under the Convention for Biological Diversity. Alternatively, the case is not
yet ripe for decision because no injury has been shown.
Even if a mere threat of environmental damage is held sufficient to constitute a violation of the
Biodiversity Convention, Caribia has failed to prove a significant threat in this case. Caribia postulates a
threat to its environment on the basis of a continuing influx of Guahibo from Amazonia. Amazonia
plans to halt the recent migration with increased law enforcement in the second stage of ECOHAB.
Even if the Guahibo continue to cross the border, environmental devastation is unlikely to result in
Caribia. As with most indigenous peoples, the Guahibo tread lightly upon the land, and it is in their best
interests to preserve the biodiversity that provides them with food and all the other necessities of life.
Thus the threat to Caribia's biodiversity is unproved.
Amazonia also argues that even if an injury or threat of injury to Caribia's environment is proven, this
injury still does not constitute a violation of Article 3. The activities of the renegade gold and tin miners
that prompted the emigration of some Guahibo are certainly not approved of by Amazonia's
government. In fact, Amazonia has strict laws forbidding encroachment into the Guahibo reserve, and
all means within the government's power will be brought to bear on stopping these outlaw miners.
Unfortunately, the Matorral province has degenerated in past years to a situation akin to that in
California circa 1849. Amazonia is doing its best, with limited resources, to maintain order in the
province, but the situation is such that the illegal mining is for all practical purposes outside of
Amazonia's "jurisdiction and control." Accordingly, Amazonia should not be held responsible for these
actions under a rational reading of Article 3 of the Biodiversity Convention.(5)
2. ECOHAB is a program internal to Amazonia that does not require cooperation under Article 5.
Cooperation is required of parties to the Convention "in respect of areas beyond national jurisdiction and
on other matters of mutual interest, for the conservation and sustainable use of biological diversity."(6)
Law enforcement is generally an internal matter with which other states may not interfere. Cooperation
might be required of Amazonia if its law enforcement policies were creating an adverse impact on
Caribia. For reasons outlined above, however, the law enforcement-biodiversity nexus has not been
adequately established. Thus, the application of Article 5 to the matter of law enforcement in the
Matorral is unnecessary.
Even if the law enforcement-biodiversity nexus is established, ECOHAB's second stage will not
adversely affect Caribia. No linkage has been made between the proposed second stage of ECOHAB
and the mining incursions, which have occurred under the first stage. Indeed, the second stage could
prove to offer more protection to the Guahibo Reserve by providing more infrastructure and access to
law enforcement. As such, it is a gross meddling in the internal affairs of Amazonia when Caribia
objects to the second stage of ECOHAB without showing a clear relation between its implementation
and damage to biodiversity within Caribia.
3. Amazonia has fulfilled its obligations under Article 8(j).
By establishing reserves for indigenous peoples, Amazonia has fulfilled its obligation to "respect,
preserve and maintain" indigenous communities and lifestyles.(7) Laws are in place to deter intrusions
into the reserves. Unfortunately, the economic situation is such that Amazonia cannot police the reserve
so as to prevent all intrusions. In response to Caribia's likely allegation that legislation is insufficient to
fully satisfy obligations under Article 8, we point to the first sentence of the article, which states that
contracting parties shall implement its provisions "as far as possible."(8) Given its economic troubles, and
for lack of aid from NGOs as Caribia has enjoyed, Amazonia has provided for the Guahibo "as far as
possible" while attempting to dig itself out of debt and deal with millions of urban poor. Moreover, for
reasons that follow, it would be inequitable for more to be demanded of Amazonia.
4. Amazonia has no present obligations under the Convention because Developed Nations have not
fulfilled their obligations under Article 20.
Assuming arguendo that Amazonia's actions constitute violations of the Convention under Article 4,
Amazonia is nonetheless absolved of responsibility because its obligations under the Biodiversity
Convention have not yet matured. Developed country parties have not yet provided "new and additional
financial resources to enable developing country Parties to meet the agreed full incremental costs to
them of implementing measures which fulfil (sic) the obligations of this Convention . . . ."(9) In fact, the
developed countries mentioned in the 1992 Biodiversity Convention have yet to be named.(10) Until the
developed countries offer funds to meet their obligations under the Convention, it is inequitable to
expect a developing country such as Amazonia to hold up its end of the bargain. Indeed, Article 20(4)
states explicitly that the extent to which developing countries will be expected to implement policies
protecting biodiversity is dependent upon the extent of aid contributed by developed contracting
parties.(11) If developed nations truly value biodiversity, it is up to them to assist in its protection
according to the agreements they have signed and ratified.
5. ECOHAB, as a measure to eradicate poverty, overrides concerns of biological diversity.
Article 20(4) also states that the implementation of commitments embodied in the Biodiversity
Convention by developing countries such as Amazonia "will take fully into account the fact that
economic and social development and eradication of poverty are the first and overriding priorities of the
developing country Parties."(12) The whole of ECOHAB concerns these "overriding priorities." Its dual
purposes are the economic and social development of the Matorral province and the eradication of
poverty amongst the urban poor. Thus, even if ECOHAB does adversely affect biological diversity, it is
justified within the Convention. The Rio Declaration on the Environment and Development reiterates
the need for all states to cooperate "in the essential task of eradicating poverty as an indispensable
requirement for sustainable development."(13) ECOHAB is ultimately a measure to eradicate poverty, and
thus is expressly allowed by the Convention to override concerns of biological diversity.
B. Amazonia's actions do not constitute a violation of ILO Convention No. 169.
1. Creation of the Guahibo Reserve satisfies ILO No. 169.
"Convention No. 169 carries the basic theme of the right of indigenous peoples to live and develop by
their own designs as distinct communities."(14) Labeled the "cultural integrity norm" by S.J. Anaya, this
idea is also expressed in Article 27 of the International Covenant on Civil and Political Rights.(15)
Interpretation of this Covenant has led to decisions in favor of indigenous peoples that prove that
Amazonia has adequately provided for the Guahibo. For example, the Organization of American States
recommended that a reserve be set aside by Brazil for the protection of the Yanomami Tribe.(16)
Amazonia has done no less in protecting the Guahibo, taking the initiative to do so rather than waiting
for an OAS recommendation. Similarly, Amazonia has not granted leases for oil and gas exploration on
the lands of indigenous peoples as did Canada in Ominayak and the Lubicon Lake Band v. Canada.(17)
Amazonia realizes that the survival of the Guahibo is tied to their land, and accordingly has not
attempted to develop the reserve.
In setting aside a reserve for the Guahibo, Amazonia has guaranteed the rights of the tribe to the lands it
inhabits in congruence with Articles 13 and 14 of ILO No. 169. Provision of the reserve demonstrates
Amazonia's respect for cultural and spiritual significance of the land for the Guahibo.(18) The reserve also
recognizes the rights of the Guahibo to lands which they have traditionally occupied.(19)
2. Amazonia's inability to prevent incursions into the Guahibo Reserve does not constitute a
violation of ILO No. 169.
Caribia will no doubt point to the decision of the Commission of Inquiry appointed by the ILO in 1962
to examine the complaint submitted by Ghana against Portugal, which held that "the mere enactment of
legislation which conforms with the provisions of the Convention does not, ipso facto, constitute a
discharge of the obligations which arise under the provisions of the Constitution for Members which
ratify a convention."(20) Amazonia concedes that penalties for encroachment into the Guahibo reserve
have been enforced erratically at best. The situation in the Matorral, however, prevents Amazonia from
full realization of the Guahibo's protection. Until the implementation of the ECOHAB's second stage
can remedy the situation, Amazonia points to Article 34 of ILO No. 169 to excuse its temporary inability
to fully protect the reserve.(21) The scope of the measures taken by Amazonia to protect the Guahibo is
commensurate with the difficult economic and social conditions it faces in attempting the develop the
Matorral. The requisite "flexible" reading of the Convention thus realizes that Amazonia is fulfilling its
obligations in accordance with its "characteristic conditions."
3. ECOHAB will affirmatively provide for rights mandated by ILO No. 169.
The second stage of ECOHAB, by providing more road access to and better infrastructure for law
enforcement within the Matorral, will provide a means by which Amazonia can better "guarantee
effective protection of [the Guahibo's] rights of ownership and possession" of the reserve.(22) As such,
objections to ECOHAB as constituting a violation of ILO No. 169 are erroneous.
In addition, article 7(2) of No. 169 states that improved levels of health and education are to be a priority
in development of lands inhabited by indigenous peoples.(23) Article 25(1) of the same document requires
governments to "ensure that adequate health services are made available to the peoples concerned. . . ."(24)
Article 26 calls upon governments to undertake measures to place indigenous peoples on an equal
footing with other nationals with respect to educational opportunities.(25)
Taken together, these provisions of the ILO Convention call upon governments to improve the quality of
life for indigenous peoples. In order to provide health and educational services, the government must
first be able to reach the tribes. Roads constructed and planned for by ECOHAB serve these purposes.
Secondly, some measure of physical infrastructure and economic support is required for the provision of
health and educational services. Schools must be built and nurses must be provided with adequate food,
clothing, and shelter. Amazonia fails to see how such services, required by the ILO, can be provided
without development of the Matorral. As such, the second stage of ECOHAB promises to allow
Amazonia to better fulfill its obligations under ILO No. 169, and any objection to ECOHAB's
implementation based on that Convention must surely fail.
IV. CONCLUSION
Caribia has failed to show an injury to its biological diversity from Amazonia's actions. Amazonia has
fulfilled its obligations under the Biodiversity Convention through the establishment of the Guahibo
Reserve, even though it is not yet required to fulfill these obligations due to the failure of the developed
parties to fulfill theirs. Even if the yet-to-be named developed countries come through with funding,
ECOHAB's purpose of eradicating poverty clearly, by the very language of the Biodiversity Convention,
trumps concerns of biological diversity within Amazonia.
ILO No. 169 puts the onus of preserving indigenous cultures directly on the states that house them. In
accordance with its general principle of maintaining cultural integrity, Amazonia has provided for the
preservation of the Guahibo culture through the establishment of a reserve. Under ILO No. 169
Amazonia is not responsible for the actions of lawless elements in the neighboring province due to its
economic difficulties. Even if it were, the second stage of ECOHAB looks to provide a means for better
protecting the reserve as well as for providing other opportunities for the Guahibo mandated by ILO No.
169. In sum, even if Amazonia has violated ILO No. 169 on the grounds of lack of protection of the
reserve, ECOHAB promises to remedy the situation and cannot be objected to on ILO grounds.
1. 1 Convention on Biological Diversity, Basic Document 6.10 at 1099-1100.
2. 2 Rio Declaration on Environment and Development, Basic Document 1.30 at 177.
3. 3 Convention on Biological Diversity, Basic Document 6.10 at 1100.
4. 4 Trail Smelter Arbitration (U.S. v. Can.) (1941), Basic Document 8.4 at 1234.
5. 5 Convention on Biological Diversity, Basic Document 6.10 at 1099-1100.
6. 6 Id. at 1100.
7. 7 Id. at 1101.
8. 8 Id.
9. 9 Id. at 1107.
10. 10 Guruswamy at 856.
11. 11 Convention on Biological Diversity, Basic Document 6.10 at 1101.
12. 12 Id.
13. 13 Rio Declaration on Environment and Development, Basic Document 1.30 at 177.
14. 14 S.J. Anaya, "Indigenous Rights Norms in Contemporary International Law", 8 Ariz. J. Int'l Comp. L.
1, reprinted in Guruswamy at 830-836.
15. 15 International Covenant on Civil and Political Rights, Basic Document 7.8 at 1145.
16. 16 Id. at 833.
17. 17 Id.
18. 18 Article 13 of the International Labour Organization Convention (No. 169) Concerning Indigenous and
Tribal Peoples in Independent Countries, Basic Document 7.15 at 1169, 1173.
19. 19 Id. at 1173.
20. 20 Guruswamy, p. 840.
21. 21 Article 34 of ILO No. 169 at 1178.
22. 22 Article 14 of ILO No. 169 at 1173.
23. 23 ILO No. 169 at 1171.
24. 24 Id. at 1176.
25. 25 Id.