Credit: William Bonilla via Pixabay
By: Patricio Trincado Vera and Julian Suarez
Introduction
In the recent case of Tagaeri and Taromenane v. Ecuador, the Inter-American Court of Human Rights (IACtHR) developed an exceptional rule of representation of ‘Indigenous Peoples Living in Voluntary Isolation’ (IPVLI). Building upon this relaxation of legal standing requirements - i.e the ability of an actor to be a party to a complaint procedure - we will explore the possibility of litigating the rights of future generations before the IACtHR through the analogous application of this rule.
The Case’s Relevant Facts and Issue
In Tagaeri and Taromenane, the rights of two uncontacted Waorani communities in the Yasuní region were threatened by the presence of oil extraction projects within their ancestral lands. The Waorani are one of the last isolated Indigenous communities in Ecuador (para. 98). Despite the attempts of forceful conversion by Christian missionaries in the 1950s, both the Tagaeri and the Taromenane peoples managed to remain in isolation (paras. 100-102).
Since then, they have been living in total seclusion. Therefore, the Court granted them IPLVI status. The IPLVI are defined as ‘peoples or a segment of Indigenous peoples that do not maintain regular contact with the majority of the population, and that usually reject any kind of contact with people that do not belong to their group as well’ (para. 96). The Court also considered those communities who were once contacted but have subsequently decided to return to isolation as having IPLVI status (para. 96).
This IPLVI status of the victims led the Court to interpret its established case law on Indigenous peoples from the perspective of the principle of no contact. A manifestation of the right to self-determination, protected under Article 26 of the American Convention on Human Rights (ACHR), the principle of no contact prescribes that all international human rights obligations must be complied with by taking all the precautionary measures to avoid contact with peoples under IPLVI status, including measures to prevent third parties from contacting these communities (paras. 188-189).
One of the challenges that were raised in this case was the participation of the victims. A singular feature of the Inter-American human rights system is the distinction between the complainant and the victim. Article 44 ACHR provides that any person or NGO legally recognised by a Member State may lodge a petition before the Inter-American Commission of Human Rights regarding the violation of a right recognised by the Convention. Thus, it is not necessary to be a victim to start a complaint procedure before the Commission.
Once the individual complaint proceedings are initiated, the Commission has several tools at its disposal, including the submission of the case to the Court. According to Article 25 of the Rules of Procedure, victims can participate in Court proceedings either directly or through an appointed representative. If there is more than one representative, victims must designate a common intervenor.
The problem in Tagaeri and Taromenane was that the victims were IPLVI. This made it impossible for them to either participate in the proceedings or appoint a representative. Neither the ACHR nor the Rules of Procedure provide for a solution in such a situation.
The Court’s exceptional representation rule for IPLVI
In this case, the proceedings before the Commission began with the petition filed by people who are not members of the Tagaeri and Taromenane peoples. These were three individuals, the CONAIE, and two members of the Yasunidos collective (para. 2). Once the case was submitted to the Court, all the petitioners designated a common intervenor to act as representative to the applicant victims (para. 5).
Against this, the State argued that the representatives did not sufficiently justify their legal standing before the Court. Their arguments were dismissed for mainly two reasons. The first one was grounded on the principle of estoppel: the State did not raise these objections during the Commission proceedings (paras. 66-67).
The second – more interesting – reason was that it was impossible for the victims to designate a representative without breaching the principle of no contact (para. 68). IPLVI have a right to self-determination which allows them to remain in isolation if they wish to. Thus, it was impossible to determine how they would wish to be represented (para. 68).
Having regard to the impossibility to obtain the victim’s explicit consent, the Court therefore held that the exceptional threshold to consider the complainants as representatives had been met. To hold otherwise, by strictly applying the general standing requirements, would create an impact on the right to access to justice of these communities (para. 69). Besides, throughout the proceedings, all of these representatives had acted through a known common intervener, which is designated in cases where there are several alleged victims or representatives (Article 25(2) of Rules of Procedure). Therefore, the State’s due process of law was not negatively affected (para. 69).
The IPLVI representation rule and its application to the rights of future generations
We think that this exceptional rule could become a potential avenue to litigate in favour of the rights of future generations within this regional human rights system.
The concept of present and future generations was introduced and developed into the IACtHR’s jurisprudence in relation to the right to a healthy environment (RHE) (Advisory Opinion OC-23/17 on the Environment and Human Rights, La Oroya v. Peru, Advisory Opinion OC-32/25 on the Climate Emergency and Human Rights). The Court held that, in its ‘collective dimension, the [RHE] represents a universal value that is owed to present and future generations’ (OC-23/17, para. 59). The RHE also includes the right to a healthy climate, which is particularly relevant for future generations. The Court has remarked that the obligations that derive from this right are aimed at protecting the global climate system for the benefit of present and future generations (OC-32/25, para. 311). In other words, present and future generations are entitled to the collective dimension of this right (para. 302).
The Court also has asserted the principle of intergenerational equity as part of the RHE. The principle establishes the obligation of states to preserve the environment in order to allow similar development opportunities and human life viability for future generations (para. 307). It was also noted that the rights of future generations entail the State’s obligation to ‘respect and to guarantee the enjoyment of children’s human rights, and to abstain from any conduct that could endanger their rights in the future’ (La Oroya v Peru, para. 141).
In our view, the IPLVI exceptional representation rule could be applied to future generations where their rights are affected by climate change on the basis of two main arguments. First, this rule would be consistent with the idea, reflected in relevant soft law instruments - such as the Maastricht Principles - that specific groups of people who will be alive in the future would also be owed human rights duties. The Court recently clarified that future generations are compounded within humanity ‘as a moral and jural community that remains over time’ (OC-32/25, para. 311). This concept includes young people that must live with an increasingly adverse environment and older people which must endure age-related vulnerabilities within that context (paras. 311-312). Like IPLVI, future generations cannot be contacted in order to determine how they wish to be represented. Second, by permitting present generations to represent future generations, given the latter’s impossibility to designate a representative, the rule can help the material realisation of the rights of future generations.
But from a doctrinal legal perspective, the feasibility of an analogous application of such an exceptional rule to future generations is unclear. The recent IACtHR advisory opinion on climate emergency and human rights, unfortunately, did not address the issue. As we mentioned earlier, the reason for the application of this rule in Tagaeri and Taromenane was the impossibility of obtaining the victims’ consent to be represented due to the principle of no contact, which is protected by the right to self-determination under Article 26. Against this background, there are two possible interpretations of what is the basis for the application of this exceptional rule.
One interpretation would consider that the rule is dependent on self-determination. Within Inter-American case law, the right to self-determination has been addressed in regards to Indigenous and Tribal peoples (recently in Rama, Kriol & Bluefields v Nicaragua, para. 124). Since such peoples are united by their particular livelihoods, self-government and identity, and are recognised such right, they are “determinable and defineable as a community” for the purposes of bringing a claim before the IACtHR (see Provisional measures in favour of the Peace Community of San José de Apartado, para. 8). Future generations, on the other hand, would not meet this criterion, and therefore, the IPLVI exceptional rule would not be applicable. It could be advanced that future generations might still meet some of the criteria of a community holding the right to self-determination. Yet it would remain highly speculative to consider future generations identifying themselves as a community or having an internal organisation that reflects a common interest of all of its members (ILO Convention 169, Preamble and Article 1(1)).
An alternative interpretation of the rule would require that the circumstances that render it impossible to obtain victim consent are protected by the ACHR - which justify IPLVI status. Consequently, it could be argued that not allowing future generations to be represented within Inter-American proceedings would render the collective dimension of the RHE ineffective, and that to do so would constitute a denial of access to justice. However, it is unclear whether future generations could be covered under those circumstances, since the impossibility to obtain consent in those cases is not a legal impossibility but a factual/practical one.
Conclusion
In sum, the rule set out by the IACtHR in Tagaeri and Taromenane reflects an interesting trend in Inter-American case law. The Court appears to be heading towards the relaxation of standing requirements within collective human rights cases where the rules regarding the representation of communities thwart access to justice. This lays the building blocks for the possibility of a contentious case on the rights of future generations against the deleterious effects of climate change. It would be desirable for the Court to set the foundations of a liberal interpretation of legal standing, permitting claims based on the rights of future generations to be made on the basis of the teachings of this judgement. Such a task, however, requires from the IACtHR careful balancing of access to justice to uphold rights of future generations and due process of law of respondent States, so that reasonable and therefore legitimate interpretations of the Inter-American regional instruments can be achieved.
Bio:
Patricio Trincado Vera
PhD Researcher, University of Groningen. Email: p.a.trincado.vera@rug.nl
Julian Suarez
PhD Researcher, University College Cork. Email: julian.suarez@umail.ucc.ie
Both authors are PhD students in Law and founding members of the Climate Change and Global South Sub-Group within the Human Rights and the Climate Crisis Working Group of the Netherlands Network for Human Rights Research (NNHRR)