Community of La Oroya v. Peru

Report No. 76/09, Petition 1473-06, August 5, 2009; OEA/Ser.L/V/II., Doc. 51, corr. 1, 30 December 2009
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Petitioners alleged that environmental pollution from a metallurgical complex in La Oroya, Peru caused a series of violations of the rights of community members. They alleged Peru was guilty by act and omission for its failure to control the metallurgical complex; its lack of supervision of the facility’s operation; and its failure to adopt measures to mitigate the ill effects of the pollution. They emphasized that Peru had been aware of this situation since at least 1999 through various sources, including reports from state authorities and judicial decisions. Petitioners claimed Peru was responsible for violations of articles 4 (right to life), 5 (right to humane treatment), 13 (freedom of thought and expression), 19 (rights of the child), 8 (right to a fair trial), 25 (right to judicial protection) and article 11 (right to privacy) of the American Convention on Human Rights (the Convention) with reference to articles 10 (right to health) and 11 (right to a healthy environment) in the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights.

Petitioners claimed the population of La Oroya was exposed to and exhibited high blood levels of lead, arsenic, sulfur dioxide, and cadmium, in amounts exceeding the parameters recommended both within Peru and by the World Health Organization. Children and expectant mothers were particularly vulnerable to these contaminants. Exposure increased the risk of illness and aggravated existing diseases within the population. The most common ailments suffered by inhabitants of La Oroya included gastritis, vomiting, diarrhea, abdominal pain, weakness and bone pain, calcium deficiency, dental problems, low stature, irreversible respiratory system damage, skin problems, cancer, reproductive system damage, anemia, cardiovascular disease, hearing loss and deafness, and neurological problems involving behavior, development, and learning in children under 10.

Petitioners claimed reasonable measures could have been adopted to improve the situation and mitigate the ill effects without closing down the complex.  Examples included: ongoing emissions control; education campaigns; relocating the most exposed population; requiring the corporation operating the complex to fulfill its regulatory obligations; fulfillment of Peru’s duties under the state Environmental Management and Adaptation Program; and the required use of technologies that would have protected the life and health of the affected population without requiring excessive expenditures.

La Oroya had only two limited-access health centers with no special facilities or equipment for the diagnosis and treatment of lead and other sorts of poisoning.

Petitioners first argued that the right to life included the right to health. They stated it was Peru’s duty to take measures to avert risks to the life and health of its population, and that this obligation is heightened in the case of children. For example, they claimed a lack of effective preventive measures was responsible for the death of a 14 years old girl, Maria, who died from skin cancer. Maria suffered from poor health from birth as a result of her mother’s exposure to high levels of lead in the environment.

Petitioners alleged that in addition to the physical harm suffered by the community of La Oroya, their psychological and emotional well-being was also damaged. Petitioners claimed the community experienced continual anxiety and fear because of the environmental contamination. They argued that this constituted a violation of the right to humane treatment. For example, one family in LA Oroya lost two of three children prematurely to the effects of contamination.

Petitioners claimed that Peru did not provide the population of La Oroya with clear, adequate information on the degree of contamination; the substances that caused it; the possible impact on humans; and measures that could have been taken to alleviate or reverse the damage. They stated that Peru manipulated information, promoting the false belief that the situation was not serious and that nothing could be done to address the problem. Those who attempted to disseminate information were harassed by local officials, by persons connected with the metallurgical complex, and by community members who did not understand their concerns.

Petitioners argued that the environmental contamination represented an intrusion into the personal and family life of individuals in violation of the right to privacy. They claimed it affected every aspect of daily life because it was present in the air, in the soil, and in the home. Petitioners argued that Peru failed to fulfill its obligation to take special measures for the protection of children affected by lead poisoning, even though high blood levels and the risk they posed to health and development were well known.

The Commission deemed the petition admissible as to the alleged violations of articles 4 (right to Life), 5 (right to humane treatment), 13 (freedom of thought and expression), 19 (rights of the child), 8 (right to a fair trial), and 25 (right to judicial protection) of the Convention. The petition was inadmissible as to article 11 (right to privacy) of the Convention.

The Commission then stated that the alleged deaths and health problems of La Oroya’s residents, if proven to be a result of environmental pollution generated by the metallurgical complex, could represent violations of articles 4 (right to life) and 5 (right to humane treatment) of the Convention. These facts could also constitute violations of article 19 (rights of the child) of the Convention.

Finally, the Commission indicated that the alleged lack of information and the manipulation of publicly available information on environmental pollution in La Oroya, along with the alleged acts of harassment toward persons who attempted to disseminate accurate information, could represent violations of article 13 (freedom of thought and expression) of the Convention.

“For purposes of admissibility, the Commission must decide whether the petition describes events that could represent a violation, as provided in Article 47.b of the American Convention; and whether the petition is ‘manifestly groundless or obviously out of order,’ according to subparagraph (c) of that same article. The standard for deciding these points differs from the standard for a decision on the merits of a complaint. The Commission must make a prima facie assessment to determine whether the complaint shows valid evidence of an apparent or potential violation of a right guaranteed by the Convention--not to establish whether a violation exists. This is a summary analysis that does not constitute prejudgment of, or an opinion on, the merits.” Para. 73.

“The Commission finds that the alleged deaths and/or health problems of alleged victims resulting from actions and omissions by the State in the face of environmental pollution generated by the metallurgical complex operating at La Oroya, if proven, could represent violations of the rights enshrined in Articles 4 and 5 of the American Convention, with reference to the obligations established in Articles 1.1 and 2 of that instrument. In the case of children, the Commission finds that these events could also constitute violations of Article 19 of the American Convention.” Para. 74.

“The Commission finds that the alleged delay of over three years in the decision on the constitutional motion, as well as the alleged failure to comply with the final decision in that proceeding, could represent violations of the rights enshrined in Articles 8 and 25 of the Convention, with reference to the obligations established in Articles 1.1 and 2 of that instrument. The Commission also finds that the alleged lack and/or manipulation of information on the environmental pollution pervasive in La Oroya, and on its effects on the health of its residents, along with the alleged acts of harassment toward persons who attempt to disseminate information in that regard, could represent violations of the right enshrined in Article 13 of the American Convention, with reference to the obligations established in Article 1.1 of that instrument.” Para. 75.

“Lastly, the Commission finds that the events described would not represent a violation of Article 11 of the American Convention.” Para. 76.

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