Michael Livermore 0:11
Hi, this is Mike Livermore, and with me today is Camilo Sanchez, who’s the director of the International Human Rights Clinic here at UVA Law. Today, we’re going to discuss some of his work protecting human rights and how that relates to sustainable development and environmental issues more generally. Hi, Camilo. Thanks for joining me today.
Camilo Sanchez 0:34
Hi, Mike. Thanks for having me.
Michael Livermore 0:37
So maybe one place we could get started is just I’d be curious to hear more about what drew you to the area of human rights law, how you kind of got your start in the area? And and, yeah, what what kind of brought you to that to this area of work?
Camilo Sanchez 0:55
Sure, sure. I am originally from Colombia. And I’ve witnessed both the toll of the human the human rights violations happened during the conflict, but also the stark economic inequalities in the country. So when I finished high school, and I started my degree, I started my career in law, I was drawn to social change, I wanted to do something about that and to confront what was happening in the country. And then I had a class on on constitutional law, that was tremendously important in my life, because then I saw that rights could play a very important role in what was happening, the this idea of entitlements that you can request from the state that you could go to court and claim that certain things should happen because of, or that the state should refrain from doing certain things, was very powerful. So that’s how I got into into rights, in general. And then as many of the local channels use channels to claim for those rights were either ineffective or closed in the country, I got interested in international law, and how to claim for these rights internationally, and how to play with those international courts, and try to bring all of those standards and to promote change within the system, the domestic system. So that’s how I got interested in in this.
Michael Livermore 2:35
Yeah, that’s great. I mean, you know, there’s so much interesting stuff there. I mean, one question that just kind of immediately comes to mind is the relationship between international courts and, and domestic courts and domestic politics in a country like Colombia, you know, where there are serious human rights challenges. And obviously, Colombia, and similar places are in a different position. visa vie international law, international courts, then folks in the United States In the United States is folks that I think are more some folks anyway, are more familiar with the with the US context, where international law in as much as it relates to domestic law or domestic politics, it’s a very light relationship. And, you know, I think part of what makes international law more compelling as a practice area, as or as a tool as a lever for change is that there is a different relationship between international international law and international courts and domestic law and politics in a place like Colombia. So I was just curious what your what your thoughts were, you know, as someone who’s kind of been in the trenches at that intersection of domestic politics and international law, how does international law and what happens in international courts ultimately kind of filter into real domestic change?
Camilo Sanchez 3:56
Sure, yes, I understand the question. And I’d say that Latin America has had a long tradition of resorting to international law, and I think is historically a step that some of the the the elite in these countries took at the beginning. Because I think after they just repeals pain, and they became the independent states that were broke, they were weak. So they were afraid that any other country would take over. So they collectively resorted to international law as a way to protect themselves from you know, more colonial powers. And I think that grew in interest there legal systems. And I think those are the origins of why we pay so much attention to international law. I think as a region, you will hear that Brazil, Argentina, Costa Rica, Ecuador, you know, all of those countries and their constitutions integrate international law a lot. And I think it comes from, you know, from from from those times, and and with that what I think has happened, and that I’m a witness to this is that in the mid 80s, early 90s, there was a constitutional shift in the region, many old constitutions were either replaced, or they were amended in order to be more up into international law, more open to international institutions. This was a time in which globalization was starting its way in the world, in which you had to be up into the international, both in terms of the markets, the institutions, and in terms of, of the legal market, as well. So with that word, the legal world in which I grew up in was completely connected, interconnected between international institutions and domestic institutions. And I think that that’s something that some of these countries have tried to manage and understand and integrate with, you know, different ways to do that. But the very idea is that you are connected to a system. And if you are playing the rules of that system, you have to pay attention to those who have the power to interpret law. And if you have, for example, the Inter American Court of Human Rights, which is the which is ultimately that institution that is going to interpret the American Convention, human rights are the rules that you have, then you have to follow what they say, even if you don’t like it domestically. So for example, there are instances in which domestic courts have different interpretations of the same statute, in this case, the international norm. And the idea is that the word of the International Court would prevail, because that’s the unifying institution, the apex court that will have the last word. So in terms of legal interpretation, that makes a lot of sense. Yeah, right. But then what you have is, you need both interpretation and a ruling. But also you need implementation of the ruling, right, you need to have a cow or a court that is powerful enough, either because of legitimacy of other powers, that will make those rulings a reality. And that’s when it becomes that really becomes more difficult to do to analyze how the system works. Because there is a huge implementation gap. What do you have, for example, in this case of the Inter American Court of Human Rights, is a very ill staffed court in Costa Rica. That depends a lot on domestic powers to implement the rulings, right. So you would need states to play as they are members and understand their commitments, but if they do not pay attention to what you say, you have very little powers, and you have your you have very little teeth to do that. So it is more like you need to engage with them. You need to persuade them to create some sort of a legal community, a community of practice that understands the importance of this, and there are, you know, playing in, in both fields planed in the international field, but also in the domestic field and try to integrate all of those decisions into what is the daily lives of this core chain of people. So I would say that’s one of the challenges of how to look at one system that it’s great at integrating legal standards, but also very weak in terms of implementation of those standards.
Michael Livermore 9:22
Yeah, that’s really interesting. And that kind of historical perspective, I think really helps inform, you know, at least how I’m kind of thinking about this, that it’s a deal in a way a long term deal that elites in some of these countries have kind of had where, on the one hand, they use international law and they rely on norms in the international community and have relied on these norms to kind of protect their power and their sovereignty and their status. And with that comes some reciprocal duties and obligations to the international system which are Some time, it’s respected more than others. But there’s a general background norm that these are. These are real obligations that are generated at the international level and that countries, at least ought to follow them. And then, you know, we can fight about what what these norms actually mean. And they may, you know, rulings may or may not be implemented in particular cases. But but there’s a there’s a general sense that in general level of agreement that these are, these are legitimately binding norms that are being generated by these institutions. That’s correct. Yes. Yeah. So maybe just to make this a little bit more concrete. So we could talk a bit about some of the work of the clinic. Right now that is at the intersection of human rights and, and environmental issues. One, my understanding is that one of the major important uses of human rights for for environmental purposes, is simply protecting the individuals who engage in environmental advocacy and activism in jurisdictions where they can be threatened, they can be jailed, they can be, you know, all kinds of terrible things sometimes happens to these environmental advocates. And so, so you’re working on right now, I think what I take to be a pretty major case in this area in Honduras, dealing with a group of eight individuals who have been stuck in pretrial, that pretrial detention, maybe even for a couple of years, due to their their activism in that country. So maybe you could tell us a little bit about about that situation. And we can explore this question of domestic versus international law in that context?
Camilo Sanchez 11:41
Oh, sure. Sure, yes, I’m happy to talk about that that case. So one of the big projects and cases that I really like to work with my students here at the clinic is, as you said, protecting those who protect others, those who protect the environment, those who protect human rights, because in the end, someone has to protect those people, right. They’re like the first line of defense, but they’re very vulnerable. So we’ve joined a group of organizations, international organizations that for the past two years and a half, have been working on this case, supporting this group of environmental defenders, that they, they were not activists before this happened, they were just a community they live in, they lived in a rural area in Honduras, near a natural National Natural Park. And that one day, they just saw that the rivers that were their source of water, were polluted, two rivers. So they, they tried to find the source of that. And what they learned at the time, was that there was a company that was exploring or doing some work in order to start a mining exploration. And there was news to them, you know, they knew nothing about that they had not been notified. So they just saw when they started seeing the trucks of the company, and they started to affect the area, that’s when they learned that something was happening. They assume that something was approved, but sometimes in this country’s operations start without any sorts of official approval. So they were concerned with that. So what they decided was to block the road, this do deal with road that was built by the company, and they install a camp, and they said, We’re not gonna let any drug or any of this machinery to enter the park because it’s a national park, unless we have some answers. First, that someone comes in and see what is happening to the water. And second, we want to just you know, what’s going to happen and how this is going to affect us. They stay there for a couple of weeks or actually months, and at some point the company hire some security, private security guards, but also some members of the police in in the country came and tried to evict these people. And within that violence happened. A member of the community was shot dead. And when that happened, the community members detained they did kind of a citizen’s arrest. The person in charge of this and some of the companies dumpsters were caught fire and and then more police came they handed down this person to the police and they said we want this person to be investing gated for what happened. And in response to that, there was no investigation launch, in order to find out what happened with the person that was dead. But 30 members of the community were under investigation for a number of crimes. One of them was illegal detention because of the citizens arrest. The second was arson. The third was damage to property, something that is a damage to property, trespassing, and conspiracy. And this charge of conspiracy was one of the most concerning uses of the criminal system in order to harass human rights defenders. And it’s been documented in Honduras in other cases, because with with by charging them with this crime, they sent the case not to the regular judge that would, that would hear these sort of cases, but to a specialized jurisdiction that was put in place, and that is meant to investigate and go after organized crime. This is jurisdiction that is meant to deal with drug dealers with all of these mafias. So and the rules are more stringent. So that happened two and a half years ago. And that’s how the cases started. When, when a group of these members of the community learned about this, they went to the courthouse, and they say, we hear that we are wanted, and we just want to set the record straight, we want to be heard. And when when they show up for show up for that, for that, sorry. They were detained. And they’ve been detained ever since. And in all of these years, the Ministerio Público which is, the prosecutor’s office in Honduras has presented zero evidence on why they consider for example, that they are the were the ones that committed those crimes that they have been now charged under facing trial in two weeks for those crimes. So we’ve been helping with how to make this international standards find a way to be arguments in this domestic case. So that’s what we’ve been trying to do. So with that, for example, what we have managed to do is that they dropped the charge, this conspiracy charge was dropped, the trespassing charge was dropped as well. And using international standards, which showed that this was not the case that they were, even if they had any legitimate case against them. These were not the crimes that they were that they should be looking at. So that has been a big part of what we’ve been doing. So what we do is, we play on both fields, the International and the domestic field, we follow what is happening in the in the domestic system, we file amicus briefs, in which we try to bring all of these arguments and the jurisprudence of international courts in order to help them better understand the legal obligations that they have. But also we have taken some of these arguments to international instances in order for them to consider also the case and to provide specific recommendations to the Honduran state. So So for example, at the beginning, at the beginning of this year 2021, the United Nations Working Group on enforced on arbitrary detentions rule that according to their knowledge and the rules that they apply, this was an arbitrary detention that disqualifies as an N amounts to an arbitrary detention. So which means that that’s kind of our recognition of what of the work that the clinic and other organizations have been doing during the past two years, because they said, you know, if you look at your commitment, your international commitments, what you see here is that you have no case. So what is happening and they’ve been in prison for over 26 months. Now. That is just arbitrary. You have no legitimate reason to have these people. You have no legitimate reason to put it him in jail in the first place, and there is no reason to keep them there. So they requested Honduras for the immediate release. And that was in February, this year, sadly, Honduras has not complied with, with this recommendation and have made no effort to implement the recommendation. So that’s why we’re going to trial.
Michael Livermore 20:23
this is the this is the tricky thing. So just to kind of unpack this is incredibly, you know, it’s obviously such an important case for the individuals involved and more generally, for the cause of, you know, just protecting the ability of people to engage in activism about issues important to them, in Honduras, and elsewhere. So, so you have the domestic trial, that’s, that’s, that’s kind of proceeding after, you know, to your long detention, which is an incredibly long period of time, of course. And then, and you have, and your clinic and other, you know, human rights lawyers who are involved in this case, part of what they’re doing is making arguments to the court in Honduras. So just the local jurisdiction, the domestic court there, but there are international norms that Honduras has as a country, either that are incorporated directly into his constitution or, you know, via via a treaty that the that Honduras has signed on to, and you’re making arguments to the court saying, Look, this is the right way to understand your own constitution, which incorporates the international law, this is the best way to interpret your treaty. And under these interpretations, essentially, you should let these people go that they’re not legitimately help. And so that’s kind of what’s going on at the domestic level. And then internationally, we have this UN process. It’s kind of operating in parallel. That also kind of reviews the facts of this case. Now, did Honduras defend itself before this UN entity? Or how did how did that work? Because it sounds like that wasn’t a trial or an appeal in a formal sense, it sounded somewhat more of a soft norms kind of body.
Camilo Sanchez 22:03
It is it is. So how this precedence works is someone complaints. So the complainant sent all the document to Geneva for the for the working group to assess the situation. So they would say and they’ll the legal proceedings that they have been undertaken, they would send, you know, a copy of the file all the contact information that they would have, they send it to the committee, and the committee would study that, and then would to meet all the information available to the state for the state to have a word for the state to say this is happening, this is not happening, I denied the facts, or whatever it is that their position is, and they will grant them some time for for that. And after that the committee will make an independent decision on this just looking at they have different criteria, and they say, look, under international law, we will consider this detentions to be arbitrary or illegitimate. So one, if you have no due process at all. Second, it is clearly you are persecuting someone because of their belief because of their activity. So for example, in this case, because of their human rights, or environmental rights activities. So we’ll consider that we’ll consider an arbitrary detention. If you work simply that person is a migrant, and you don’t have the proper proceedings in place in order for, for your government to assess that situation and to consider if that person is rightfully an asylum seeker or not. So there are certain criteria. So what you have to send the committee is that information and to say, I do believe that this is an arbitrary limitation, and that what happened, they sent this case to Honduras and Honduras replied, but they didn’t reply within the term limit they had. But still they even though they did it after the deadline, the committee consider took into consideration their response and included that in in the in their final decision. But ultimately, what they decided is that they have five different criteria. And they found that four out of four of those criteria had been violated in this case. The only one that was not violated here does not relate to the minor because it relates to in immigrants and people trying to seek asylum. So just to show that it was a very clear violation. If you look at at the argument, you’ll see that there’s a lot here that is not happening as in the way that, you know, the domestic legal proceedings should be happening. So that’s what the committee said.
Michael Livermore 25:17
And when this committee, you know, so when it issues its findings, you know, I don’t know the legal status of those findings, but it sounds like what happened is that Honduras essentially ignored them. That does that create a domestic political problem for Honduras, when when you have an international body like this finding that they’re acting in an arbitrary and unlawful manner? Does that create international problems for them? Are there other other actors in the world who, you know, can take a report like this and use it to, you know, that care essentially about this the contents of these reports and act in some way? On the basis of them?
Camilo Sanchez 25:57
Yeah so, so what we’re claiming is that first, the first concern party here is Honduras itself. So let’s say that the executive power, does not agree with the decision or is not happy with it, and doesn’t want to comply with the recommendations, or we call them implement the recommendations. So so what we’re claiming is that court domestic court should step in and say this is against our Constitution, because we commit it as a country to comply with these standards. And if we have an authority that is not doing so we need to, to, to provide some relief here, we need to redress the situation. So what we’re trying to, to work with is to convince to persuade the Supreme Court, that it is the right not only the right thing to do, but also in the best interest of the state as a whole, for the court to use these international standards, and to signal the executive, this is the way to go, this is what we have to do. And we have a domestic remedy here to do. So. If that doesn’t happen. Yes, the international community should be worried about this should be concerned about this. Honduras is one of the is being named name and one of the most dangerous places to defend the environment and human rights. During the past five years, dozens of human rights defenders have been either kill or receive death threats, or have been judicially harassed by different actors, including official forces and law enforcement forces in the country. So this is just part of a bigger context. And that’s our claim. Sadly, for example, some years ago, but the case of Berta Ceceras made the news international news this very prominent environmental defender that was killed, not not not far from from what this community is. So it is a concern about Honduras, the UN special rapporteur on human both the UN special rapporteur on human rights defenders, and the UN Special Rapporteur on environment, and the right to environment, have expressed their concern, and their preoccupation for what is happening in Honduras. So this is something that the international communities as a whole should tackle, and if they would decide to act, these recommendations, you know, can play a very important role for them to understand what could be done in cases like this one.
Michael Livermore 28:59
Yeah, it’s, it’s such an important area. And I think it’s easy in the in the US and in Europe and other places, to kind of take for granted the ability to engage in civic life and activism of different kinds, and not kind of face severe harassment and up to the point of death. So it’s, it’s, it’s, you know, it’s kind of just a baseline of having a functioning civil society, obviously, is, is the ability to engage in these kinds of activities. So this is, as you’re mentioning, one way that human rights relate to environmental protection and environmental policy is is just ensuring the baseline or providing some backstop or check on the ability of the state to harass people who are engaged in environmental activism. So that’s so that’s one important intersection. Others have argued for kind of an even more robust relationship between right It’s generally in human rights specifically in the environment. So obviously, there are folks who many constitutions around the world include provisions stipulating that that there are environmental rights rights to a clean environment and the like. And generally, I think there’s some push or some discourse to understand the concept of human rights as including things like a right to access to clean water, or a right to healthy environment or a right to a stable climate. There have even been, there’s been litigation in the US, which has argued that the, that the US Constitution kind of silently, but nonetheless, significantly provides some kind of right to a stable client climate. So so what do I mean, you know, what, what are your thoughts on on these efforts to include environmental, you know, kind of a right to the environment within the broad umbrella of human rights? So assume, you know, I think, at first glance, many people might be attracted to the idea that there might be some pros and cons as well. So I’d be curious, you know, what are what are some of the positions out there? And the arguments that are made about including or understanding the human rights to include right to a clean environment? Or, you know, in general, or in certain particulars?
Camilo Sanchez 31:20
Sure, sure. What I’ve found in my practice, is that there are at least three different levels at which these issues or this relationship is being discussed. And that produces a lot of questions and arguments, and I would say interesting debates. The first is the more philosophical, the second is the legal and the third is the more practical, so when it comes to the philosophical question should be, or should be this threats to humanity. So for example, environmental degradation, climate crisis crisis, dealt with a human rights based approach or not, is human rights, the right tool to do this or because human rights refers to humans, and this is beyond humans, larger than humans part of it related, sometimes not related, and so on, and so forth. So outside, that’s the first and they’re interesting positions there. So for example, some people that consider that they are two different fields, are not related at even human rights are philosophically detrimental to environmental protection, because human rights are based on the idea of individual entitlements. And the idea of individual entitlements will not get us far in the protection, something that is collective in nature. That’s something that is not not, it’s, it’s hard to assess, if we are just thinking of what is my right, do I have an individual right to the environment, or maybe I shouldn’t be talking about entitlement, maybe what I have is obligations, and it is not my right, it is my obligation, because I’m more of a consumer than than then actually the one that will benefit from from from this. So, there are dispositions. So, for example, that they say that these individual entitlements have promoted a culture of consumerism, and you know, a capitalistic view of society and of my place and the eagle place of humans saying that I have a right to wherever I want and and with that, we have seen an era of tremendous environmental degradation. So what they say is just, there are not only two different things, but looking at the world, with with this idea of individual entitlements is just bad for nature. And there are some others that say that No, on the contrary, they relate very well. And because the idea of the unit, when you talk about nature and environment, environment is just not only nature, but you know, how different species and how different both human beings and other parts of nature can and should be together and be in interrelated. And for that, the most humane way to deal with this is with principles that try to protect what is very basic to society, which is this idea of dignity and with dignity. We’re going to find that most of the for example, the environmental degradation or or, or other problems associated with the environment are usually the both of them are whereby vulnerable segments in society. And with that we’re going to open up ideas on how to deal with this problem. So there that’s, I would say, one level of the discussion. The second is legal, it’s legal and strategic, I would say, because it’s the idea of we lawyers like to compartmentalize. And so we have international environmental law, and we have international human rights law is a good thing to have two different fields, or should we work towards one more integrated field to lead, for example, advocate for new treaties that take international human rights law into the environment or the environment into international human rights law, should we have a need is more effective, or conducive to better protection to have a right. So for example, the UN have been advocated date has been they have been advocating for a right to clean environment for a decade now. And they just managed to pass a resolution that they call historic resolution a couple of months ago, declaring this, and someone will say that they’re just two different things, and that maybe it’s best to have them in different camps. And there are not necessarily addressing the same issues. And so for that, different regulations must be considered that sometimes they might be intention. So it is just not the same thing. And so we need to understand how we can use one or the other and maybe read both of them at the same time, but but just keeping them apart. And so molars are more integration analyst. I would say that’s a second type of discussion. And the third is more practical discussion on let’s say that we take either road, but how are you going to craft a specific remedies, good remedies, that we can assess compliance with that remedies that we can monitor remedies that we can make things happen with them? So that I would say that, for example, some people that would say, great, so your idea of the right, rights of nature is great, it’s philosophically okay. It is legally outstanding, but then, in practical terms, will did, will this to theory, get me? You know, something specifically in real terms will be my rivers will be my my communities of the communities that live in these certain areas be more protected? Can I? I don’t know, go to my authorities, and I will have better protection for for these rights or not. That’s what in the end I’m interested in, and what is more conducive to that? So I would say those are the three different levels of arguments that I’ve heard, and I’ve come across during these past years. And I think they all have very interesting arguments, and I’m very challenging proposals. And, and I don’t think we have, you know, one definite answer on what is best.
Michael Livermore 38:43
it’s really, it’s really extreme. Yeah, the three levels, you know, they’re, they’re kind of they overlap with each other, but they’re very distinct. And just thinking about, you know, from the practical side, you know, as you say, just imagine that, you know, we can make sense of this philosophically, and legally, it fits as a kind of appropriate extension of human rights, law, and, you know, and practice over the years, just thinking about the practicality. So, so as you know, lawyers think a lot about remedies, right? Like, it’s, it’s not really all that useful to have a right. Unless you can go to court and see that right, vindicated in some meaningful way. And, you know, just to contrast it with the case of the of the environmental defenders in Honduras, like, we know exactly, everyone knows what the remedy is in that case. You know, like, if, if the human right is going to be vindicated human rights regime is going to be vindicated, then that people are let go, that they won’t be detained anymore. You know, that’s, that’s the remedy that’s called for. And, you know, that’s obviously a much it’s very straightforward and much less complicated than a question like, you know, an example that I sometimes uses the question of whether to well, even in the even to take condors and the specific instance there, where you have a mind that is being contemplated now, from a human rights perspective, you know, putting aside that question of harassment of the the individuals who are involved, so like setting that aside and assume that you have a jurisdiction that’s protecting basic civil rights and basic political rights, so people can protest, they can make arguments, they can do that kind of thing. But, you know, substantively, there’s the question of whether the mind should go forward or not, right. And, you know, we don’t know what the domestic legal regime looks like, here. In the United States, we let mines move forward all the time. And there is law that governs when, when a mind can open under what circumstances after a particular kind of review and analysis, etc, etc. But imagine there’s a right to a clean water and, and the, the, you know, the, the folks who oppose the mind raise that claim. On the other side, the the mining company, or the government says, Look, this mind is going to produce, you know, it’s going to produce jobs is going to produce economic wealth. And so that’s going to vindicate people’s human rights to you know, their economic rights, or, you know, we’re going to use some of this money to build schools, and people have a right to an education, and we’re going to put in a water filter, filtration system, so people will still have clean water, they just, you know, they won’t be able to get it out of the river. And, you know, and we, we have rights, you know, as property holders to not have our land expropriated or whatever else. And so you can imagine lots of different potential claims being brought, and again, assume that this isn’t a philosophical problem, but just as a practical problem, how does the how is a court supposed to kind of navigate such a complex landscape to craft a remedy that would actually vindicate these rights in a meaningful way?
Camilo Sanchez 42:01
Yeah, that’s, that’s, um, that’s a very important point. Because litigation of these cases, it’s very difficult, because there are so many interrelated things here, you know, and a lot of tensions, you know, the tension that you mentioned, for example, in terms of the development, economic development, and the use of natural resources, the issue of who owns what, and how that can affect others. I think those are really important questions that judges need to take seriously. So that’s why I think the more effective human rights litigation or rights based litigation when it comes to environment are that one that protects people to know what is going on, for example, so I’ll litigation regarding access to information. And I’ve worked on cases in the past and under right now, specific treaties on that, that that are environmental treaties, but has a lot of that have a lot of language, human rights language they are whose convention in Europe or the is Castle convention in Latin America, for example, that is all about we need to know more. We need to know, what are the risks here, we need to know what is what we are going to do, we need to know what are the protection factors affecting this or that RRB. So you know, access to information that’s critical, critical for judges to make decisions, critical for governments to license projects or governance critical for day to understand what their policies are going to be critical for communities and for societies to understand what their position should be, what the impacts are the horrible impacts of certain things are going to be. So that’s one thing that I favor very much and I think that’s something in which we can have a remedy, right, that access to information provide information. That that’s one thing. The second is how to protect spaces for public discussion, and for public participation. So a lot of this, what you have is contested interests. And you have people that want to use these resources in one way or another people that want to use it in a different way. But they need to have a space in order to voice those concerns, to ask those questions to participate. And I think human rights litigation have provided a good platform for doing that with at least two kinds of mechanisms. One F does the consultations for indigenous peoples you know, the right what what we today consider as the right to prior and informed consultation for indigenous tuples that is in the ILO Convention and in other pieces of international treaties, I think that’s, that’s a very important a protective measure in which again, you can have a remedy there, you know, because it’s the idea that you are not veto, it is not that you cannot intervene in sector, certain areas is not that you cannot have development projects or it is that you have to consult first that you have to let know the community, and to make sure that they understand what is happening. And the same with popular consultations in Latin America, they’ve been very popular in in the past years, in Peru, Colombia and other places, they have, you know, communities saying that, we want to have a say, you know, we understand that it will be critical for economic development for country white, but still, the burden of this is going to be this is going to be in our backyard, right. So we just want to be part of these discussions, we want to be part of these decisions. And so you have to let us participate here, and how to promote those spaces in which democracy can take place in every way. So that this projects, and I think it’s in the best interest of the project, because if there are actually in the benefit of the community or the country, then they will have more backing, they’re going to have support, and the communities are going to be a force behind those projects instead of a force against them. So that sort of litigation, I think it’s it’s something that human rights defenders have promoted. And in a weird way, I think they have opened up the spaces for addressing more critically these issues and but also for a low in participation. And a final way in which I would say, rights based litigation, have been very important is in, in promoting compliance with legislation, or with political commitment, previous political commitments, that litigation that is not set to say you should have this or that policy, that’s litigation that says you committed to this specific policy. So we just want you to apply that, right. So for example, litigation, in which you said, you have environmental regulations already, and they say that you cannot, you know, surprise distressful or that you are required to do this, and you’re doing nothing, or you are not doing enough, right. So, or you made this commitment on reductions, or whatever it is, or you are not doing, you’re not honoring that commitment. So that’s what we want you to do. And, again, it is not that the necessary remedy is just to say that this is the number or this is the Tres hole or whatever, but to promote using the court, and the process of compliance with this an opportunity to have this discussion and what the policy should be.
Michael Livermore 48:21
And I think so there’s a couple of things there. So one is, you know, the kind of the last category of cases, human rights, kind of itself as a concept, or as a legal construct isn’t, isn’t the driving force, there you have a, say legislation, right, or some other act, some other legal act that creates a its own binding obligation to, you know, to do whatever right to maintain some level of air quality or to not allow development in some area or something like that. And it’s just a matter of using the courts to ensure the government’s compliance with its own with its own law and human rights there. Again, you tell me, but it sounds like there, the concept, the important part of the concept, there is mostly just that the right to have access to the courts and to have recourse to the courts to be able to make to make these legal arguments, kind of what we might call in the US like standing right, so that you can get into court and and have effective access to justice.
Camilo Sanchez 49:27
That’s correct. Yes, that’s what we would call from a human rights international perspective, access to remedy or access to courts.
Michael Livermore 49:34
Right. Right. And so that’s, that’s the important thing there. You know, it, you know, along the similar lines mean, one of the ways that I’ve interpreted or the push to extend the Constitution and rights to include things like right to clean water or to a clean environment, is actually exactly this is to try to get decisions out of context like the legislature or the executive, where maybe there’s a fear that those institutions are ineffective, or that they’ve been captured by powerful special interests, or they’re not representing kind of the true, you know, population interests. And instead to move decision making to courts, which are kind of understood to be more independent, a powerful interest or more effective or something else. And so I was curious, you know, given that you’ve spent your career before courts in lots of different countries, but primarily in Latin America, as just as a strategic matter, you know, do you think that there’s some value in trying to move decisions away from institutions, like legislatures or the executive and into courts? Or do you think that strategy in general, has limitations that should be recognized?
Camilo Sanchez 50:52
I would say, I understand why is so persuasive. And it’s an interesting concept, especially when you come from from countries in which you have complete inaction, or, or, or not even inaction, in which you have legislative and an executive, executive powers that are just operating against this rights against the will of people again, you know, community, so I understand why courts can be, you know, a very attractive resource for communities. But what I would say is that, in order to have the correct implementation of a right, you need the interplay, or all of those branches of the state, you need to have a powerful judiciary that is willing to set processes in motion that is willing to say, here’s a violation that is willing to say, this is what I know, this is, as far as I would go, this is what I don’t know. And this is what I cannot do. So for that, what I need is to let the executive do or you know what I mean? So you need a quarter understand what is the best role that it can play in making these rights real, you need legislative power, that is going to support this, you need a democratic process, in which, you know, people would find that this is the right way to go in wish that they would say we need certain regulations in which they need, we are going to raise our voices. And we’re going to try to set this as part of our political process. And you also need the executive the executives is very important. So I would say that courts should be looked at as as a force that can help and look at spaces that that have been, you know, clogged by inaction, or are these sort of practices, but it’s not the is they’re not the game changer. They’re just a tool that will help you to awake, these other powers. But in a way, if you use the core, the core to just shortcut, the old powers, you are fooling yourself, because what you can have is a very beautiful decision, you know, a ruling that says, This is what environmental policy like this, you know, this is what a beautifully written decision that is not going to be implemented. So it is just all of them are pieces. And you need all of that. All of them working together in order to make some change.
Michael Livermore 53:58
Yeah, so maybe as an example of this, we could return briefly to the, to the consultation process that you’ve described a little bit. So, you know, again, what I’m most familiar with is US Environmental Law. And, you know, we have very roughly speaking, you know, the National Environmental Policy Act that requires major projects of the the federal government or major projects that are require approvals by the federal government to go through a process of collecting information and publicizing that information, create opportunities for the public to offer its views on the project and the like. And that’s, you know, it’s been around for, you know, several, many decades at this point. And other countries have adopted versions of of these types of processes. One critique that’s level against NEPA, as it’s called in the US is that it doesn’t have any substantive requirements to it just there’s just the requirement to collect information, publish it, offer opportunities for public comment, that kind of thing. It’s purely procedural So when I teach environmental law, my my students sometimes get frustrated that that NEPA lacks any kind of substantive component to it. But it sounds as though you’re the view that these types of processes, or at least the versions that you’re familiar with, that you described, and that involve indigenous communities, and these, these rights to consultation, can be meaningful, meaningful. And I’m curious if it’s meaningful in the sense of creating a creating a more inclusive environment, or helping to create a more democratic conversation that is useful, and it’s in its own right. But then there’s also the question of, does it ultimately affect outcomes and lead to different kinds of projects being undertaken? Or that kind of thing? So, so yeah, so how do you see these types of consult consultative processes, and these information processes, which can be protected, as you know, in an effective manner by courts? How do you see those ultimately affecting environmental outcomes?
Camilo Sanchez 56:04
In my experience, every time that these processes happened, they really change the way in which certain topical project was treated, both publicly and by the community by the press by population at large in the country. So I think they can be very consequential, you know, even if you don’t have a specific substantive classes, that would alter the, the substance of it, I think participation will find a way to, you know, bring to the table, certain concerns that if, if, you know, if you if you have people that you know, how to mobilize the community ability to have access to international resources that no, you know, this kind of standards can later, you know, level these kinds of arguments and made the process more substantive than, than, than the opposite, or, or the alternative that would be just to have a rubber stamp decisions. So, I’d say that I have some faith in democracy. Or I would say, a lot of faith in democracy, because I’ve seen that this can be very, very effective to in order to change the conversation. Of course, there is a lot of, you know, cases in which nothing happened, in the end, you can have the best arguments, cases in which you can have the law on your side, and, you know, did driving forces of these are very powerful, and they wouldn’t move an inch. And that happens a lot, you know, and I can see the frustration of many people saying that this is just not enough. But I would say that if we would invest in more democracy and more, you know, local discussion of this would be, would be, you know, moving in the right direction, we don’t even have that, right. So if we have more of a culture of discussing these issues, or paying attention to different arguments, or opening ways for people to participate, I would say that, for me, that would change a lot. And the way that we handle this sort of, of conflicts, definitely,
Michael Livermore 58:29
maybe just to, you know, again, return a little bit to the conversation that we’re having about Honduras, and the environmental defenders there and almost engage in a little reimagining of, you know, so what actually happened, right mining company goes in, essentially, secretly or without public notice, starts to engage in these preliminary mining activities, you have a community that’s water is threatened that, you know, doesn’t feel like they have a lot of recourse other than to, you know, essentially take matters into their own hands and, and, you know, engage in direct action that leads to a violent confrontation where someone’s killed, and then the authorities are involved, and now people are detained, and have been detained for two years. I mean, this clearly is a completely dysfunctional process for trying to figure out how to manage environmental conflict. So, you know, what would a process, you know, that you think makes sense in a place like Honduras look like? You know, I think some people might say, of course, that mine shouldn’t exist, but you know, assuming that there’s going to be a conversation, you know, where you have a consultation process and people’s human rights are vindicated. You know, what would what would that alternative reality have look like in a in a place like Honduras in the in the conflict that we’re talking about?
Camilo Sanchez 59:44
Yeah, that’s a good question. I would say, an alternative reality should play on on a national wide level and a more domestic more kind of the local specific case. Case Law. Well, so nationally, I would say Honduras should have this conversation of what is development to us? And what, what is what we want to take out of our natural resources? And in which way? And and who should we ask about what are the best ways for us to use those resources, and to engage in a national nationwide conversation with different stakeholders, and just try to figure that out? I’d say doubt that this definitely needed not to place all of the burden of the discussion to the webinar community, right. So it’s not day taking, you know, these decisions for Honduras. It is the Honduras society, just trying to say that we are a country with these challenges, economic challenges, right? We have these resources, how are we going to use them? And for what reason among how, and how those priorities that we have align or not with our international commitments? And we what is what are those the stakeholders on the ad that we need to consult, if we want to do something different or not? I think that’s very important. Because what we usually see is that those conversations are missing, you know, at this level, so when these very vulnerable community needs to stand up to this project is that oh, but you’re not, you know, including the views and the needs of those in Tegucigalpa, which is the capital, or those, you know, occurs the country that would benefit from this, if we, you know, have this mind, and it operates, and it produces revenue, and all that stuff, you know, what I mean? So, so, that’s shifting the conversation to these communities that they shouldn’t have to be, you know, the openness of this discussion is in the first place. So I think that’s one. And the second is that, it should be a process of consultation, a process of before they start exploration, or before they start the planning of this, they should just go and consult the community, explain what is happening, why this is happening, how they’re envisioning this project, what are going to be the risks, and the impacts of this, how this are more likely to affect them, and what alternatives there are, and you start with that, or a more local level. And I think that’s, that’s how they could, you know, as a community try to respond to this. And, and, and what in at least in my experience, what I’ve seen is that most of these communities are very receptive, receptive to, you know, an open to possibilities and to understand how this could be something that benefits them instead of of damaging. But you need to start with that. And there might be some projects that we should just say, no, no, at the local national global level. And you know, that say that, what we understand is that, you know, it makes sense for us, for example, to have this kind of, I don’t know, projects that may be putting a lot of stress in the environment, but we need them. I don’t know, like farming, you know, extensive farming, of course, there’s boarded up some stress in the in on the air, but we need them because we need to feed people, but there might be others in bushes. You say like, I don’t need to wear gold. Right. So maybe gold is not someone that we you know, like mining for gold, maybe we should forget. And that makes sense. Because, you know, we get to that understanding, but I don’t think just to say not to mining all across the board is going to get us somewhere.
Michael Livermore 1:04:30
Right. Right. Great. Well, yeah, I mean, that is a is a very attractive alternative reality. And, you know, I think that, you know, We’re all grateful for the work that you to you do to try to bring that about step by step. So, and thanks again for chatting today. This has been a really interesting conversation, Camilo.
Camilo Sanchez 1:04:50
No my pleasure and thank you very much for having me and for these very challenging questions. And and, and yeah, And then for providing an opportunity for us to challenge our own self proclaimed truths. I think there is a lot in the Human Rights feel that we believe that we are the honors of the ultimate on the truth. So I really welcome you know, all divisions are trying to challenge us to think differently and to just to see if we are on to something good or not.
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