International Climate Justice Tribunal Preliminary Hearing, Cochabamba, Bolivia 13th and 14th of October 2009

In the city of Cochabamba in the Plurinational State of Bolivia, on the 13th and 14th of October 2009, the International Climate Justice Tribunal held a Preliminary Hearing, receiving with great respect the initiative of the Bolivian social organisations and the international networks. The condemnation of seven cases regarding the impact of climate change and the violation of communities', peoples' and Mother Earth's rights was heard.

Preamble

The Earth's climate is changing at an accelerated speed due to (in)human action. The effects of the global temperature increase can be seen throughout the planet, and they are even higher than the scientists' forecasts. Climate change is the greatest problem mankind will face, not only due to its direct impacts but also because other existing problems will become more serious, such as poverty, famine, violence, gender inequality, land and food control, access to water and sanitation, amongst others. Therefore, climate change represents a serious threat against the basic elements of human life in different parts of the world: access to a water supply, food production, health, use of land and environment.

The current economic and political system, as well as the international set-up of trade, finance and investments which support exaggerated levels of consumption, are the main causes of the increase in the concentration of greenhouse gases, generated mainly by the burning of fossil fuels (coal, oil, gas and others). These are used to produce energy and for transport which maintains the current development model, as well as deforestation, industrial agriculture and the mining industry.

Climate Justice is based on the understanding that, whilst climate change requires global actions, the Northern Industrial Countries are historically responsible for having produced the greatest part (80%) of greenhouse gases over the last 250 years. Low cost energy -oil, coal and gas- has been the power behind their quick industrial and economic growth, without recognising the ecologic, social, financial and historical debt to the southern communities and nature, for which they are responsible. Southern communities and low income communities of the Northern Industrial areas have taken the toxic "burden" of mining and fossil fuels, their transport and production. Now these communities are facing the worst impacts of climate change.

Foundation and background of this Tribunal

Although this duty has not been entrusted to us by any formally constituted legal authority, we have become responsible for it in the name of mankind and in defence of civilisation and Mother Earth.

The initiative of this Tribunal reacts to the needs of responding to a lack of mechanisms and institutions which sanction climate crimes that have taken place so far. It does not have any binding state character, because its constitution and functioning do not originate from judicial power but from organised civil society. Its decisions seek ethical, moral and political meanings and wish to become the necessary force which requests that governments and multilateral bodies assume their responsibilities within the framework of equality and climate justice.

We are inspired by the initiatives of the people to establish Ethical Opinion Tribunals, such as the Russell Tribunal (1967), established to judge and condemn war crimes committed by the United Estates in Vietnam and which later on (1974-1976) prosecuted the crimes and human rights violations committed by the dictatorships in American countries. Also the Permanent People's Tribunal, founded in 1979 which, throughout the more than 30 years it has been functioning, has followed, anticipated and supported the communities' struggles against the wide range of violations of their basic rights, including the refusal of their self-determination, foreign invasions, new dictatorships and slavery of the economy and the destruction of the environment. We are also inspired by the work of other independent tribunals such as the International People's Tribunal on Debt and the Water Tribunal. They are all trying to highlight and qualify those situations in which the massive abuse of basic rights does not have recognition or an institutional answer and are legitimised by the tremendous will of the population, in contrast to the power of governments and companies.

Cases submitted at the First Hearing

Throughout this preliminary Hearing, the International Climate Justice Tribunal has seen the following cases:

CASE 1 "Accusation of violations of human rights resulting from global warming due to actions or omission of the countries included in Annexe I of the United Nations Framework Convention on Climate Change". The proceedings are submitted by the Khapi community, La Paz, Bolivia.

CASE 2 "Victims of climate change and the negligence of El Salvador, in impoverished northern communities in the municipality of Jiquilisco". The proceedings are submitted by the Association of United Communities of Bajo Lempa". El Salvador.

CASE 3 "FACE PROFAFOR" proceedings against the Dutch foundation Forest Absorbing Carbon Emissions and others. Submitted by Ecologist Action of Ecuador.

CASE 4 "Climate impacts caused by the Initiative for the Regional Integration of South America (IIRSA)", proceedings submitted against the three members of Technical Coordination of IIRSA (Inter-American Bank for Development, the Andean Development Corporation, and the Financial Fund for the Development of Cuenca de Plata), as well as financial entities such as National Development Bank of Brazil, the European Union, Banco Santander (Santander Bank). Submitted by the Bridge Between Cultures Foundation, Bolivia.

CASE 5 "Violation of Human, Environmental, Culture and Labour Rights due to the application of the false solution to climate change, Agrofuel-Ethanol manufactured from sugar cane in Valle del Río Cauca". Proceedings submitted against the government of Colombia by the Sugar Cane workers of Cauca, Colombia.

CASE 6 "Boys and girls with a high level of lead in their blood in Cerro del Pasco (Peru) due to polluting gases and particles", proceedings against the Mining Company Volcan S.A. and the State of Peru. Submitted by the Civil Association of Centre of Popular Labour Culture, Cerro de Pasco, Peru.[1]

CASE 7 "DOE RUN PERU" proceedings against the Peruvian government and the company Doe Run Perú, due to the pollution caused in the Junin area. The case is submitted by CooperAcción, Peru.

General Comments:

The capitalist economic system has generated the climate change that we are currently suffering and prevents a quick and effective answer to its impacts. The international agreements about trade, finance and investments promote the increase of industrial fields of the intense use of fossil fuel and other natural resources, as well as the growth of industrial agriculture and livestock (including monoculture). All these activities produce large quantities of carbon and contribute to the destruction of forests which regulate the climate.

Considering the undeniable fact that Climate Change affects and will affect billions of people, systematically infringing all Human, Civil, Cultural, Economic, and Political Rights, we can define Climate Change as a Crime Against Nature. Likewise, due to its seriousness and systematicness, we consider that crimes against the rights of nature can be called "Crimes Against Nature".

There is first hand proof that the following Human Rights, which constitute the foundations for a dignified life for populations, of the most vulnerable groups have been violated by Climate Change:

- The right to life and safety: "Every citizen has the right to life, to freedom and personal safety". (Universal Declaration of Human Rights, Act 3).

- The right to health "The Partner States in this current Agreement recognise the right of each person to enjoy the highest level of physical and mental health" (International Agreement of Economic, Social and Cultural Rights, Act 12).

- The Right to Water: "The human right to a water supply provides everyone with the right to enough water, at a reasonable price, physically accessible, safe and of an acceptable quality for personal and domestic use" (Committee for Economic, Social and Cultural Rights, General Comment 15).

- The right to food: "The Partner States in the current agreement recognise the fundamental right of each person to be protected against famine..." (International Agreement of Economic, Social and Cultural Rights, Article 11)

- The right to a suitable quality of life: "Each person has the right to a suitable quality of live which ensures, as well as for his family, health and well-being, and in particular food, clothing, housing ..." (Universal Declaration of Human Rights, Act 25).

- The right to subsistence: "In no case should a community be prevented of its own means of subsistence." (International Agreement of Civil and Political Rights, Article 1.2 and International Agreement of Economic, Social and Cultural Rights, Article 1.2).

- The right to the freedom of choice: "Every community should have free access to its natural resources... " (International Agreement of Civil and Political Rights, Act 1); "Every community has the right to freedom of choice..." (International Agreement of Civil and Political Rights, Act 1)

- The right to culture: "Each person has the right to participate in the cultural life of its community..." (American Declaration of the Rights and Duties of Mankind, Act 13); "People who belong to minorities (ethnic, religious or linguistic) will not be denied their corresponding right, which is the same as for those other members in their group, to have their own cultural life." (International Agreement of Civil and Political Rights, Act 27) and the Universal Declaration of UNESCO on Cultural Diversity.

- The right to ownership: "Each person has the right to private ownership corresponding to the essential needs of a respectable life, and which helps to maintain the dignity of the person and home" (American Declaration of the Rights and Duties of Mankind, Act 23); "Each person has the right to individual and collective ownership." (Universal Declaration of Human Rights, Act 17).

- Right to freedom of movement and residence: "Each person has the right to establish their residence in their home country, to freely move around said country and to not have to leave unless it is their own choice". (American Declaration of the Rights and Duties of Mankind, Act 8).

- Women's Right: "The Partner States should take into account the particular problems that rural women face and the important role that they represent for the economic survival of their families." (CEDAW, Act 14).

- Children's Right: "Every child has the right to life ...the Partner States will guarantee as much as possible the survival and development of children." (Convention on the Rights of the Child, Act 6).

- Right to a healthy environment: "Human beings: have the right to a healthy and productive life in harmony with nature." (Declaration of Rio, Act 1).

- Right to prior consultation: (act 6, 13 and 14, International Labour Organization Convention no. 169).

- Rights of Indigenous Communities (Established in the Declaration of the United Nations on the Rights of Indigenous Communities)

- Right to public demonstration and freedom of association (International Agreement of Civil and Political Rights).

- Rights against racism and discrimination (Established in the CERD of the United Nations Declaration and in the International Convention on the Eradication of all kinds of Racial Discrimination).

- American Convention on Human Rights

- Additional Protocol to the American Convention on Economic, Social and Cultural Matters, "San Salvador Protocol".

- Right to work and Right to Strike.

- Various National constitutions.

It has been proved that Climate Change increases and deepens the existing injustices, including in particular, discrimination against indigenous communities and nations and women.

The application of the extractive and exporter development model - approved by governments and transnational corporations - is generating permanent and systematic conflicts against collective rights, misuse of land and the violation of nature's rights. Likewise with the Traditional Higher Right or Personal Right of indigenous ancestral knowledge for the handling of everything material and spiritual, whose fulfilment guarantees the balance of the Pachamama and the permanence of life.

There is a great need to provide an answer to problems caused by climate change, because the life of many communities and towns depend on this, as well as the welfare of Mother Earth. We can therefore see the need to provide an answer to the absence of regulations, mechanisms and institutions which sanction the breaches of the Kyoto Protocol and other compulsory commitments of the United Nations Framework Convention on Climate Change, as well as those responsible for climate crimes we are now facing.

Human rights are relevant to tackle matters regarding the effects of climate change, therefore the research should be on the foreign environmental damage carried out from this perspective; how responsibility should be shared, as well as the rights and duties of the perpetrators and victims of disasters, both in the public and private fields; this problem also poses the challenge of how to create effective mechanisms to ensure responsibilities are fulfilled.

We would also like to state that the criminalisation and prosecution of the social struggle and for climatic justice has become a systematic and permanent fact.

Specific Comments

The responsibility of governments, international financial institutions - including the World Bank, the Inter-American Development Bank, The Andean Development Corporation, the Financial Development Fund for Cuenca del Plata, the International Monetary Fund, other banks, transnational corporations and other actors has been highlighted with regards to the promotion of the plundering of Mother Earth and climate change through the granting of credits, technical consultation, conditions and other policies which contribute to the configuration, imposition and maintenance of a production and consumption model, called a development model, which generates financial, ecological and social debt and is unsustainable.

The responsibility was condemned above all, regarding the design and implementation of the Initiative for Integration of Regional Infrastructure in South America, which includes more than 500 projects, including, in particular, the construction of the bi-oceanic Santa Cruz-Puerto Suárez road, the construction of a huge hydroelectric dam on the River Madera, the expansion of the mining industry in Peru, as well as in the case of Cerro de Pasco and La Oroya, and the exporting agro-industry in El Salvador. These projects not only contribute to the expansion of the model generating climate change, but they also significantly increase the vulnerability of the communities affected by the climate change impacts, violating both all the above-mentioned human rights including the most basic right of the use and control of the land by the people, which affects their survival.

The role of some governments, International Financial Institutions, businesses and corporate interests is highlighted in promoting and financing "false solutions" for climate change, including implementing in Ecuador single crop farming of trees by the Dutch company FACE, in order to generate carbon credits to compensate the non-reduction of emissions in the North, and the expansion of sugar cane farming in Valle de Cauca, Colombia, for the production of agro-fuel. These "false solutions" not only lead to serious social and ecological impacts, including the indiscriminate use of water, the effect on strategic ecosystems, the movement of communities, famine, diseases associated with the burning and use of agro-chemicals and the criminalisation of those persons and organisations who attempt to defend their rights and those of nature, but also increase the climate crisis by not offering real solutions to the energy problem and increasing emissions which affect the greenhouse effect.

In these cases, the lack of effectiveness of the so-called "market solutions" to solve the problems derived from climate change has been highlighted.

In the case of the Khapi community in Bolivia, the consequences of global warming underlined imply the violation of the right to land, life, culture, self-determination and health, as well as the imminence of the forced medium-term displacement of the community due to the melting of the Illimani glacier; this situation warns us of the extent and perversity of the impacts of climate change.

Likewise, it was highlighted in the ACUDESBAL cooperative case in El Salvador, how the demand for payment of the external debts accumulated illegally and the imposition of the Structural Adjustment Programme, have had a negative impact on the government's ability to prevent, protect and repair the damage caused by climate change.

Recommendations

Follow up the cases and formal complaints submitted to this Preliminary Hearing, analysing in-depth and coordinating the action of indigenous people and nations, social movements, popular networks and organisations in Latin America and the Caribbean and at a global level towards the constitution of the International Tribunal of Climate Justice and Ecological Debt, an initiative of the people which contributes to the efforts of some governments to make a real effort to stop climate change.

Incorporate in this Tribunal's action an in-depth examination of the different aspects of the problem whose proceedings have been submitted to this Preliminary Tribunal, including:

* The causes, impacts and consequences of Climate Change;

* The criminal absence of adequate and appropriate answers from the governments in developed countries, transnational corporations, International Financial Institutions and other interests unrelated to the Good Life to ensure the necessary reductions of gas emissions causing the greenhouse effect in the North, the transformation of the production and consumption model and the Southern countries' payment of the climate debt;

* The "false solutions" that these same actors offer with the consequential aggravation of climate change and violations of Human Rights and the Rights of Populations and Nature.

We also recommend the defenders of all the cases which investigate the possible infringement of the ILO Convention no.169 to submit the cases to the Defenders of the People, the Inter-American system of Human Rights, the Attorney General's Office of the Nation and the UN Commission on Human Rights.

The Tribunal also recommends:

1. Demanding that the governments in the industrialised countries in the North repair the climate and environmental debt which they have accumulated throughout history, based on the complaints and proposals raised in this document and based on the complaints generated by the people affected by climate change.

2. Urgently demanding the promotion and adoption of cautionary measures from governments which may avoid the repetition of crimes reported in this document, including:

· Not commodifying life and nature and the application of the principle of precaution in relation to "false solutions" to climate change;

· Suspending the participation of the International Financial Institutions in the United Nations Framework Convention on Climate Change as well as other financial mechanisms which have aggravated climate change and increased the Environmental Debt

· Not generating new debt as a response to the financial and economic crisis raised.

3. That all governments take on the proposal set out in the United Nations Framework Convention on Climate Change negotiations by the Bolivian Government together with other countries regarding the recognition and payment of the Climate Debt through a large, fast reduction of emissions in the industrialised countries in the North, as well as fulfilling their obligation to cover the costs of adaptation and mitigation in the countries in the South with resources and technology; that the resources should be channelled through an International Climate Justice Fund under the democratic, transparent control of the United Nations.

4. Progress on the in-depth analysis and development of a Declaration of the Rights of Mother Earth, incorporating the contributions of the indigenous people and nations as well as social movements, popular organisations and organised civil society throughout the world.

5. Support the proposal of the Bolivian President, Evo Morales, to found a Climate Justice Tribunal in the UN multilateral system to control and sanction the crimes against Mother Earth.

Suggestions for the following institutions:

1. The Organisation of American States should be more pro-active in its research, pursuit and, when appropriate, prevention with precautionary measures, or by bringing, if appropriate, trials before the Inter-American Court of Human Rights, due to cases of ecological crimes and victims of Climate Change.

1. The Inter-American Commission on Human Rights should promote research in the regions with communities worst affected by Climate Change, in order to compile the report and evidence, as well as progressing on the sanctioning of those responsible and the need to implement adaptation, mitigation and repair policies and measures.

2. The Inter-American Commission Human Rights should promote research in the regions with communities worst affected by climate change, in order to compile the proceedings and evidence, as well as progressing on sanctioning those responsible and the need to implement adaptation, mitigation and repair policies.

3. The UN, as well as the States accused in this tribunal, should start as soon as possible their exhaustive research to clarify the impacts of the extractive industry on Climate Change and how it affects the vulnerability of the populations affected by it.

4. The UN should take the need to research and work on a Declaration of the Rights of Mother Nature seriously and its consequential binding entities to construct an ideal and collective regulations to respect our planet.

5. The Governments, associations of lawyers and judges, the State Attorney General's Offices, the Inter-American Systems and the UN's requests to study the legal basis to judge the cases of violations of Human Rights due to the effects of Climate Change, as Crimes Against Humanity.

6. Finally, the governments responsible where the rights of the defenders of the people's and nature's rights are being violated, as for example Columbia, subject to proceedings in this court, or Peru, Honduras, El Salvador and other countries should end the systematic violation of rights and the criminalisation of those who campaign for human and environmental rights.


The Jury acknowledges the communities, the organisations and the social movements which have submitted these cases, and the social mobilisation and participation over the two days of the preliminary hearing of the International Climate Justice Tribunal in Cochabamba. We would also to like to express our deep respect, admiration and solidarity for the courage in which they face these extreme and dramatic situations caused by Climate Change. Thus we commit to continue the joint search for truth, justice and amends, and to continue fighting for climate and environmental justice and the development of an International Tribunal on Climate Justice and Ecological Debt.

Presented in the city of Cochabamba on 14th of October 2009.

Members of the Jury:

Brid Brennan, Coordinator of the Alternative Regionalisms Programme of the Transnational Institute (TNI), (Holland)

Nora Cortiñas, member of the "Madres de Plaza de Mayo-Línea Fundadora" (Argentina)

Beverly Keene, Coordinator of the "Jubileo Sur" Tri-Continental Network (Argentina)

Tom Kucharz, member of the Confederate Department of "Ecologistas en Acción" (Ecologists in Action) and of the Campaign "¿Quién debe a quién?" ("Who owes who?") (Spain)

Alicia Muñoz, President of the "Asociación Nacional de Mujeres Rurales e Indígenas" (National Association of Rural and Indigenous Women) and of the "Vía Campesina" (Rural Way) (Chile)

Ricardo Arnoldo Navarro Pineda, Co-founder of the "Centro Salvadoreño de Tecnología Apropiada" (El Salvador Centre of Suitable Technology) and "Amigos de la Tierra Internacional" (International Friends of the Earth) (El Salvador)

Miguel Palacin Quispe, Andean Coordinator of Indigenous Organisations (Peru)

Joseph Henry Vogel, Professor of Economics at the University of Puerto Rico-Río Piedras and of the Latin American Department of Social Sciences-Ecuador (Puerto Rico)


Notes

[1] In the case "Violation of Human, Environmental, Cultural and Labour Rights by the implementation of a false solution to climate change, Agrofuel-Ethanol manufactured from sugar cane in Valle del Río Cauca" Mr. José Oney Valencia Llanos, director of the Association of Sugar Cane Cultivators, was absent due to his arrest by the Colombian Administrative Department of Security when about to board the plane to Bolivia to present the case to this hearing.