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Habitat as Human Rights: Indigenous Huaorani in the Amazon Rainforest, Oil, and Ome Yasuni

Habitat as Human Rights: Indigenous Huaorani in the Amazon Rainforest, Oil, and Ome Yasuni

Judith Kimerling 

I want to thank Vermont Law School, Vermont Law Review, and the organizers of this Symposium, “Habitat for Human Rights,” for bringing us together to discuss this important topic. It is commonly assumed that environmental protection and human rights go hand in hand. And on the ground, they normally do. But environmental law and human rights law do not always work together, or further their stated aims. In the Amazon Rainforest in Ecuador, the effectiveness of environmental law and human rights law is undermined by the failure to recognize and address historical legal structures and policies that seek to dominate Indigenous peoples and continue to shape the law. I’d like to begin by highlighting three general scenarios where environmental and human rights laws intersect, and then talk about the indigenous Huaorani communities I work with, who have organized themselves to defend their habitat as human rights in the area now known as Yasuni National Park and Biosphere Reserve, in the Amazon Rainforest in Ecuador.

I. HUMAN RIGHTS AND THE ENVIRONMENT

A first scenario where human rights and the environment intersect is when the human rights of environmental defenders are violated. This can include rights violations that take place outside of the law, such as arbitrary detention and excessive use of force against protesters. It can also include use of the law to violate human rights, such as when governments criminalize dissent and repress freedom of expression by using criminal defamation or overly-broad counterterrorism laws to prosecute protestors and influential critics.

A second scenario where environmental and human rights law intersect is when environmental degradation is a source of human rights violations. The question of what types, and extent, of environmental degradation rise to the level of human rights violations is complicated when approached from an environmental law perspective. This is because international law is based on agreement among States, while environmental law is dynamic—it can change and evolve. In addition, not only do the details of many environmental norms differ from place to place, but also, at a more general level, some States maintain that so-called developing nations should not require the same level of environmental protection as wealthier nations.

For example, we hear a lot of talk about international standards for oil extraction operations. But there is no clear body of international environmental rules. At the national level, standards vary. And here, in the United States, even national standards are limited and important environmental norms can differ from state to state. 

As a result, it is difficult to define precise environmental standards that have international consensus, and that is one reason why customary international environmental law is so limited. But human rights law could help address this challenge in some circumstances by providing a shared performance-based standard: basically, that environmental degradation is not acceptable when it violates human rights. And as we heard in this morning’s Keynote Address, human rights law has been able to maintain universality despite some differences.

In 1997, the Inter-American Commission on Human Rights (IACHR, or the Commission) published a report with a groundbreaking analysis linking environmental contamination and human rights. The report examined human rights in Ecuador, and included a chapter on the situation of people affected by oil extraction in the Amazon region that focused on the ability of local residents “to realize their rights to life and physical security in an environment that has been subjected to severe environmental pollution.” 

The Commission began its analysis of relevant Inter-American human rights law by recognizing that “[t]he realization of the right to life, and to physical security and integrity [as protected by the American Declaration on the Rights and Duties of Men and the American Convention on Human Rights] is necessarily related to and in some ways dependent upon one’s physical environment.” “Accordingly,” the Commission reasoned, “where environmental contamination and degradation pose a persistent threat to human life and health, the foregoing rights are implicated.” 

The Commission further noted that Inter-American human rights law recognizes “the interrelationship between the rights to life and health;” that “[t]he right to have one’s life respected is not limited to protection against arbitrary killing;”10 and that “[r]espect for the inherent dignity of the person is the principle which underlies the fundamental protections of the right to life and to preservation of physical well-being.” It concluded that “[c]onditions of severe environmental pollution, which may cause serious physical illness, impairment and suffering on the part of the local populace, are inconsistent with the right to be respected as a human being.”

The Commission also found that, in this context,

protection of the right to life and physical integrity may be best advanced through measures to support and enhance the ability of individuals to safeguard and vindicate those rights. The quest to guard against environmental conditions which threaten human health requires that individuals have access to: information, participation in relevant decision-making processes, and judicial recourse.

The Commission did not define “severe” pollution or “serious” illness, or explain how much increased risk of disease and suffering is too much. But the Commission did find that, in the case of Ecuador’s Amazon region, “‘[d]econtamination is needed to correct mistakes’” that should not have happened, that both the State and the oil companies are responsible for correcting those mistakes, and that the State has a duty to ensure that they are corrected.

The Commission also recognized—in a separate chapter examining “human rights issues of special relevance” to Indigenous peoples—that additional human rights violations occur when Indigenous peoples maintain special ties with their traditional territories and are displaced, or when those lands are degraded.16 This is because “the control and use of territory are essential” to the physical and cultural survival of Indigenous peoples, and to their “individual and collective well-being.”

So when we think about the nexus between human rights and environment, and what that means for Indigenous peoples, the environment is not only a source of life-sustaining services, such as food, water, air, and so on, which are essential for life and the full enjoyment of human rights— or, as the organizers of this Symposium aptly put it, a “habitat for human rights.” I love this title (of the Symposium) because it reinserts human beings and their communities into the landscape, and reminds us that human rights are linked to environmental quality, and that we need to think not only about violations of human rights and litigation after those violations occur, but also about preventing violations and safeguarding human rights.

I would like to take this concept further by passing on something I have learned about human rights from the Huaorani. For Indigenous peoples who live on the land, habitat is human rights. It provides the resources that sustain life—and much more. It is also a space, a territory and living environment through which, and in which, Indigenous peoples can realize their cultural, social, economic, and political rights. In other words, it is a space where Indigenous peoples can exercise genuine self-determination or, as the Huaorani say, “live as Huaorani, in freedom.” And without it, they cannot survive.

A third scenario where environmental and human rights laws intersect is when environmental initiatives affect Indigenous peoples and their traditional lands, territories, and resources. We hear a lot about how environmentally harmful “development” violates the rights of Indigenous peoples. And for good reason: it is a serious and widespread problem.

But a growing number of Indigenous communities are also concerned about environmental initiatives that empower outsiders to make decisions about their territories, lands, and resources, and fail to respect their rights. For example, in some places, people have been displaced from traditional lands for the cause of wildlife conservation. In other areas, conservation bureaucracies and nongovernmental organizations (NGOs) impoverish Indigenous communities and violate or threaten their cultural, subsistence, and other rights when they seek to manage protected areas that were superimposed on Indigenous lands without consent. They are seen as just another colonizer.

So there is a need to include respect for human rights in environmental initiatives. This means more than adding a traditional knowledge annex to a conservation project plan, or using Indigenous plaintiffs in a lawsuit. It means truly understanding, and respecting, the priorities of the affected communities and how they want to work with outsiders. And it means avoiding the pitfalls of taking an overly dominant role and excluding local community members from decisionmaking. This can be especially difficult when litigation is involved, or when the interests of local communities are perceived as being in conflict with conservation interests. But it is necessary.

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