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Indigenous Peoples' Right to Free, Prior, and Informed Consent in The American University International Law Review Volume 29 | Issue 1 Article 4 2013 Indigenous Peoples' Right to Free, Prior, and Informed Consent in the Context of State- Sponsored Development: The ewN Standard Set by Sarayaku V; Ecuador and its Potential to Delegitimize the Belo Monte Dam Upasana Khatri American University Washington College of Law Follow this and additional works at: http://digitalcommons.wcl.american.edu/auilr Part of the International Law Commons Recommended Citation Khatri, Upasana. "Indigenous Peoples' Right to Free, Prior, and Informed Consent in the Context of State-Sponsored Development: The eN w Standard Set by Sarayaku V; Ecuador and its Potential to Delegitimize the Belo Monte Dam." American University International Law Review 29 no. 1 (2013): 165-207. This Comment or Note is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University International Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. COMMENTS INDIGENOUS PEOPLES’ RIGHT TO FREE, PRIOR, AND INFORMED CONSENT IN THE CONTEXT OF STATE-SPONSORED DEVELOPMENT: THE NEW STANDARD SET BY SARAYAKU V. ECUADOR AND ITS POTENTIAL TO DELEGITIMIZE THE BELO MONTE DAM UPASANA KHATRI* I. INTRODUCTION ........................................................................ 166 II. BACKGROUND ........................................................................ 168 A. THE BELO MONTE HYDROELECTRIC PROJECT ....................... 168 1. The Development of the Controversial Dam ................... 168 2. Projected Impacts of the Belo Monte Dam ..................... 173 B. THE RIGHT TO FREE, PRIOR, AND INFORMED CONSENT AND ITS LEGAL UNDERPINNINGS ................................................. 176 1. The American Convention on Human Rights: Article 21 and Its Interpretive History ....................................... 177 2. Sarayaku v. Ecuador: Setting a Higher Standard for the Right to FPIC ........................................................... 181 3. Brazilian Law: The 1988 Constitution and Brazil’s * Upasana Khatri is 2014 J.D. candidate at the American University Washington College of Law. She has traveled throughout the Amazon regions of Brazil, Peru, and Ecuador, studying the implications of major development projects on the rights and livelihoods of rural and indigenous populations. Upasana would like to thank the staff of the American University International Law Review for all their hard work on this piece. She would also like to thank her editor, Darian Ghorbi, for his insight and guidance, her friends and family for their tireless support, and Professor Matt Samson of Davidson College for nurturing her passion for indigenous rights and ecopolitics. 165 166 AM. U. INT’L L. REV. [29:1 Internalization of ILO Convention 169 ......................... 184 III. ANALYSIS ............................................................................... 187 A. THE BELO MONTE DAM’S DEVELOPMENT VIOLATES THE ACHR .................................................................................. 188 B. THE DEVELOPMENT OF THE BELO MONTE DAM VIOLATES THE FPIC STANDARD SET BY THE SARAYAKU DECISION ....... 192 1. Belo Monte’s Development and Operation Violates Sarayaku’s Proscription Against the Use of Coercion .. 192 2. Belo Monte’s Development and Operation Violates Sarayaku’s Requirement of the Duty to Consult ........... 194 3. Belo Monte’s Development and Operation Violates Sarayaku’s Requirement that Consultations be Informed ........................................................................ 196 C. THE DEVELOPMENT OF THE BELO MONTE DAM VIOLATES THE BRAZILIAN CONSTITUTION ............................................ 197 D. THE DEVELOPMENT OF THE BELO MONTE DAM VIOLATES ILO CONVENTION 169 .......................................................... 201 IV. RECOMMENDATIONS .......................................................... 204 A. BRAZIL SHOULD SUSPEND WORK ON BELO MONTE UNTIL IT RECEIVES THE AFFECTED INDIGENOUS COMMUNITIES’ CONSENT FOLLOWING GOOD-FAITH CONSULTATIONS CONFORMING TO THE SARAYAKU STANDARD ........................ 204 B. THE INTER-AMERICAN SYSTEM SHOULD FURTHER EXTEND THE RIGHTS TO CONSULTATION AND FPIC BY REQUIRING THE PRESENCE OF NEUTRAL THIRD-PARTY MEDIATORS DURING STATE CONSULTATIONS .......................................... 205 C. ILO CONVENTION 169 SHOULD BE REVISED TO ENDORSE THE SARAYAKU STANDARD .................................................... 206 V. CONCLUSION........................................................................... 207 I. INTRODUCTION In July 2012, the Inter-American Court of Human Rights issued a landmark decision in Kichwa Indigenous People of Sarayaku v. Ecuador,1 an indigenous rights case that had been on the Inter- 1. Kichwa Indigenous People of Sarayaku v. Ecuador, Merits and Reparations, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 245 (June 27, 2002), available at http://corteidh.or.cr/docs/casos/articulos/seriec_245_ing.pdf 2013] INDIGENOUS PEOPLES’ RIGHT TO FPIC 167 American system’s docket for over eight years.2 The Inter-American Court held that the state of Ecuador had violated both international and domestic law by allowing an Argentine oil company to drill on indigenous land without first consulting the resident Kichwa community.3 Citing various sources of law, including the American Convention on Human Rights (“ACHR”),4 the Indigenous and Tribal Peoples Convention (“ILO Convention 169”),5 and the Ecuadorian Constitution, the Court found Ecuador in breach of the Kichwa’s right to give or withhold their free, prior, and informed consent (“FPIC”) on all decisions potentially affecting their property or rights. Sarayaku represents a major victory for indigenous peoples throughout the Americas and perhaps the world. The decision sets a stricter standard than any preceding Inter-American decision or legal instrument on the rights to consultation and FPIC in the context of state-sponsored development. Brazil embodies a prime example of a state under the Court’s jurisdiction that likely is affected by the Sarayaku decision.6 In violation of its indigenous peoples’ rights, Brazil approved the development of Belo Monte, a major hydroelectric complex whose construction currently is underway.7 [hereinafter Sarayaku]. 2. See id. ¶ 1 (noting that the Association of the Kichwa People of Sarayaku and others filed the petition before the Commission on Dec. 19, 2003). 3. See id. ¶ 341, § 1–4 (finding that Ecuador’s acts and omissions surrounding the Sarayaku Kichwa amounted to a violation of the indigenous people’s rights to consultation, communal property, and cultural identity). 4. 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 ACHR]. 5. International Labour Organisation, Indigenous and Tribal Peoples Convention (No. 169) art. 16, June 27, 1989, 72 ILO Official Bull. 55 [hereinafter ILO Convention 169]. 6. Although the Inter-American system does not possess a formal rule of stare decisis, the Commission and the Court regularly refer to past holdings to inform their applications of the ACHR and determine whether an OAS state has violated substantive provisions. See, e.g., Saramaka People v. Suriname, Preliminary Objections, Merits, Reparations, and Cost, Inter-Am. Ct. H.R. (ser. C) No. 174, ¶ 63 (Nov. 28, 2007) [hereinafter Saramaka] (relying on the Court’s evidentiary analyses in Awas Tingni and five other cases to assess the documentary evidence in the case at hand and thereby assess Suriname’s liability). 7. Elzio Barreto & Carolina Marcondes, Brazil OKs Building of $17 bln Amazon Power Dam, REUTERS, Jan. 26, 2011, available at http://www.reuters.com/article/2011/01/26/brazil-energy-amazon- idAFN2613167320110126. 168 AM. U. INT’L L. REV. [29:1 This comment argues that the new FPIC standard set by Sarayaku has the potential to delegitimize Belo Monte’s development, which Brazil authorized without first properly consulting the indigenous groups whose lands and livelihoods it will adversely affect. Part II provides a history of the dam and describes its projected impacts on local indigenous peoples. It then presents the legal underpinnings of Brazil’s consultation and FPIC obligations, as provided by the ACHR, Brazilian law, and ILO Convention 169. Part II concludes by discussing how Sarayaku further expands the consultation and FPIC protections established by prior Inter-American case law. Part III draws parallels between Sarayaku and the Belo Monte dispute to demonstrate the applicability of the Sarayaku standard to the latter. To achieve this, Part III analyzes Brazil’s acts and omissions surrounding Belo Monte to illustrate that the state is in breach of the same legal instruments and FPIC standards that the Court found Ecuador had violated in Sarayaku. Part IV offers recommendations on how Brazil should proceed with Belo Monte’s development in light of Sarayaku. Part IV concludes by attempting to fill the gap in the existing international indigenous rights law by suggesting that ILO Convention 169 revise its text to reflect the Sarayaku standard. II. BACKGROUND A. THE BELO MONTE HYDROELECTRIC PROJECT 1. The Development of the Controversial Dam For over thirty years, the Xingu Basin of the Brazilian Amazon has been the site of an
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