Negative impacts on Human Rights by mining companies and the implementation of the United Nations Guiding Principles on Business and Human Rights in Argentina, Brazil, Colombia and Peru.
The community of El Hatillo (lower left) is surrounded by a huge mine and endless palm plantations that have contaminated its enviroment and harmed its population. Despite this, the companies continue to carry on their operations.
This text presents an executive summary of an analysis carried out by 4 NGOs in Brazil, Colombia, Peru and Argentina; as part of the project “Transnational Companies and Guiding Principles: towards effective mechanisms for the protection of Human Rights in Latin America”, which is supported by the European Union. The research focuses on the public policy that implements the UN´s Guiding Principles in each of these countries. It was conducted in four mining corridors, one in each country. The research studied transnational lithium mining in the high Andean lagoons of Catamarca, Argentina; coal mining in the northern region (La Guajira – Cesar) of Colombia, steel mining and transport in Brazil; and gold mining in Peru.
After a year of investigations, the study concludes that human rights impacts and violations persist in the communities that surround the mining operations. These impacts are greater in matters regarding health and the environment, especially in women, who, due to social inequality, end up being affected on a greater scale.
In the new international division of labor, countries such as Argentina, Brazil, Colombia and Peru are suppliers of raw materials to the global north. Hence, mining and energy activities have been one of the main sectors promoted by governments and international financial institutions, despite the social and environmental impacts that they have generated. The intensive use of large areas of land and water, coupled with human rights violations, criminalization of social movements and the deepening of ecologically unequal trade, characterize the economic model of these countries. The formulation of policies that seek to attract foreign investments or promote exports, usually revolve around deregulation and easing of labor rights, environmental protection regulations and / or tax systems, making matters even worse for the communities.
The international regulation of companies is a topic that interests various social, legal, environmental and Human Rights organizations around the world. Discussions about the duties and responsibilities of multinationals regarding the development of their activities, have shown the multiplicity of damages and human rights violations that they commit. This led to the adoption of the Guiding Principles on Business and Human Rights (GP) by the UN Human Rights Council in 2011, as a response to the deep criticisms and mobilizations that were made by the organized social movement and affected communities from all over the world. These principles seek to be a kind of ‘guide’ that - it is assumed - should be used by states and the private sector, to regulate their actions, under three pillars: protect, respect and remedy.
The review of the implementation of the Guiding Principles, found that, given their voluntary nature, companies have managed to “escape” from the obligation to comply with Human Rights, International Law and other internal legal systems. Therefore, it is essential to understand that the actions of the private sector entail legal obligations that can´t depend on a voluntary mechanism.
Another relevant finding is that in the four countries where the research was carried out, institutional instability, corruption, and high socio-economic and political inequity, result in weak legislation that favors the multinational companies and their operations. Within that framework, the Guiding Principles, as well as the National Action Plans (which are an instrument of government policy to apply them) and in general, the public policy of companies and Human Rights, are implemented with a limited influence, due to their voluntary nature, as noted above. In that sense, voluntary mechanisms such as remediation do not contribute to the protection of the rights of people and social groups - especially those most vulnerable - against the damages caused by the extractive business activity. On the contrary, as evidenced by several cases - mainly in Brazil and Colombia - the remedy proposed has revictimized them, as seen in the resettlements that the companies have carried out.
Regarding the state level, there are findings that are evident in all four countries. The need to establish regulations for environmental, social, labor and human rights protection is a priority in these countries. Also, as established by international conventions, governments and companies must execute prior, free and informed consent when operations involve ethnic communities. On the other hand, peasants must be recognized as rightd holders. The principle of precaution must be the priority when handing authorizations for high risk mining operations. Due to the inability to tackle these needs, the Guiding Principles result precarious, and fail to guarantee the standards of protection of Human Rights, this has motivated communities to require binding standards for private sector activities. However, it is observed that the trend in the world is towards a voluntary right created by companies, which has allowed the dismantling of everything that links them or forces them to respond for human rights violations. Hence, in the end, one could argue that the Guiding Principles have contributed to the architecture of impunity that covers corporate power.
• It is urgent that the UN adopts a binding treaty that includes investigation and sanction mechanisms for transnational corporations and States for violations of Human Rights. Progress in the adoption of other international instruments for the protection of these rights must also be a priority.
• Although the States within the framework of the Guiding Principles must respect and protect Human Rights, the reality of the four countries provides sufficient evidence about noncompliance, and in terms of public policy the enormous gaps in adoption of adequate measures to prevent business abuses in the field of human rights. Therefore, there is no effective response from the State to these abuses, investigating, for example, the facts establishing responsibilities and giving an effective remedy to the affected communities against the damage caused.
• There is no recognition by companies about violations of fundamental rights of people, communities and the environment, as a result of their extractive operations.
• The Guiding Principles are a voluntary standard and therefore have not generated improvements in relation to human rights violations due to business activities. National laws are required to clearly define responsibilities, standards, and other legal consequences in the case of human rights violations by the business sector.
• States must adopt measures that ensure the protection of human rights against business activities. For this, they must prevent, investigate and punish any violation and seek the restoration of the violated right. Such violations must be treated as an illegal act, so that appropriate regulation with obligations and controls must be established.
• Parent companies have a legal obligation to respond to states and communities about their human rights violations as a result of their extractive activity, establishing the degrees of responsibility.
• The actions of the private sector must necessarily entail legal obligations that must be binding.