Participatory rights education is based on the experience of people living in areas affected by the mining industry and also the experience of people working in NGOs who work with these communities. Any rights education will use this experience to formulate and clarify poeples’ understandings of human rights. The workshop/session will also include discussion about what the law (international law) says and what happens in reality. The educational techniques draw from people’s experience constantly while also providing a legal context. Rights education thus examines what is supposed to be happening, according to international legal and political norms, and then it shows what is actually happening and explores the ways in which this violates international legal, political, and moral norms. As a result, community members are encouraged to look critically at the situation in which they find themselves. They will often perceive a gap between what is and what ought to be, and come to understand this as a political problem. The new perspective they develop will lead them to take action to challenge their oppression. Even knowing their rights may engender “rights consciousness” which will influence people’s actions even where the rights are not explicitly recognised.1 This change in consciousness enhances participants’ determination and ability to affect change in their communities. Moreover, in learning about the powers they are granted under international law to challenge their governments, community members see themselves even more clearly as political actors and become even more confident in their ability to assert their rights.
Some of the comments of participants in evaluating the workshops we ran were:
When asked whether they would be able to implement any of the ideas, they responded:
Obviously, just the mere act of getting together and discussing shared problems can be empowering. But I would argue that doing this with a human rights framework provides people with a sense of strength and ability to resist grounded in law.
Using human rights law provides individuals and communities with a means for participating in human rights enforceability
Using human rights law is also useful, because the power it gives individuals to hold governments accountable is unrivaled in other forms of international law. International environmental law focuses on environmental problems between countries and does not provide individuals or communities ways of seeking recourse for a country’s internal environmental problems. As Principle 21 of the Stockholm Declaration makes clear, “States have. . .the sovereign rights to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their own jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”2 But within human rights law, state sovereignty over natural resources cannot legitimate environmental abuses that violate people’s human rights. Furthermore, individuals, rather than only states, can turn to international mechanisms to question governmental policies relating to mining.3
So what are some of the problems with human rights law
One of the key problems with human rights law in the area of mining is how TNCs are not directly bound by human rights law.:
“Human rights law can be applied, … to the actions of other actors, but it was designed primarily to place both positive and negative constraints on the actions of states. (
Green)
“International human rights law perpetuates the notions that private actors are, and by implication should be, only accountable to states, not individuals, and that other states are, and should be, only accountable to their own populations.”(jochnick,60) The limitations of international law including human rights law has been critiqued by writers such as Hilary Charlesworth in conceptualizing a feminist analysis of international law, and by Chris Jochnick and others who have written on human rights law. Others have discussed the major challenge that globalisation and the increasing power and strength of TNCs, is for international and human rights law as they displace the decision making control of states. The UN has discussed the importance of TNCs in human rights practice.
The UDHR clearly states in its preamble : “the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall….promote respect for these rights and freedoms.”
The ICESCR in its preamble affirms the duty of individuals stating “the individual, having duties to other individuals and to the community to which he/she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant.”
And the Rio Declaration and Copenhagen Declaration on “Social Development both underscore the responsilbities of TNCs with regard to development and environment. In addition the UN Secretary General has stated that TNCs have a duty to promote the right to development.(page 67, jochnick, quoting report to rapporteur on minorities4
“Amnesty International’s view is that the mining industry’s responsibility to protect human rights is in two main areas. The first is that mining companies must protect human rights within all of their areas of operation.. This includes not only direct employees but also contractors, suppliers, family members, local communities and other parties affected by the company’s activities. The second is that the industry has a responsibility to support human rights protection more genrally through activities such as public statements supporting the protection of human rights, government lobbying, assisting the activities of NGOs and the provision of information (eg on the political situation in specific countries, planned activities or developments that may affect human rights) and the inclusion of human rights considerations in all decision-making processes.” (Sullivan and frankenthal) In a paper written by Rory Sullivan and Peter Frankenthal, they outline the specific responsibilities, mostly civil and political such as property, religion, freedom of opinion, labour standards.
They highlight that human rights makes good business sense and recognize the practice of some of the leading mining companies to incorporate human rights into their daily activity. TNCs do this partly because of the effect on share price of reputation which includes being perceived as abiding by human rights. This has huge potential for human rights activists, within the world of business to shame companies and to push them into observation of human rights.
Many companies have developed Codes of Conduct. “while such codes have an important role to play in defining minimum standards of corporate behaviour, they are non-binding and can all too easily be flouted by less scrupulous organizations.” Sullivan and frankenthal The problem with them is that they are non-enforceable. My view is that TNCs are quite cynical about using human rights and are selective in their applicability. They are loath to be legally, mandatorily bound by and code of conduct which includes human rights. “In the absence of legislative requirements, many companies do not even meet the minimum standard specified in international human rights law. There has also been a marked reluctance on the part of the industry to open their operations and activities up to independent monitoring or verification.” (Sullivan and Frankenthal section 5)
A clear example of mining companies feeling compelled to respond to criticism, including human rights based critique is the Global Mining Initiative and the Mining, Mineral and Sustainable Development report. The MMSD project of the Global Mining Initiative aims to “identify how mining and the mineral industry can best contribute to the global transition to sustainable development” (International Institute for Environment and Development (1999) What is MMSD) They have produced a 600 page tome detailing their views, which they call a multi stakeholder process on mining and sustainable development. Many NGOs have boycotted the process because it was seen as flawed and lacked any commitment to stop worst practices such as riverine tailings disposal, ceasing mining and exploration in national parks and other protected areas. AS Geoff Evans of the Mineral Policy Institute states “Ethical practice requires active promotion of universal principles of human rights and ecological sustainability. Ethical practice also means being consistent. It does not mean speaking of environmental and social accountability on one hand while, at the same time, working behind the scenes and government committees and through industry associations to weaken environmental legislation, oppose indigenous rights, and advocate socializing environmental and social costs. Ethical accounting would acknowledge that an ethical mining project would not pass social costs on to local communities, the general public or future generations.” (evans, 1999 sustainability and corporate ethics, Mining Monitor, vol 4, no 1.p9)
The very fact that the mining industry has felt a need to launch such a mammoth study is indicative of the success in using human rights analysis to critique mining companies. This critique needs to continue.
A human rights, and specifically an economic, social and cultural rights perspective is useful in understanding and advocating around mining issues.
It provides another means of communities holding their governments accountable for their actions and the actions of corporations within states. Treaties such as the International Convention on Economic, Social and Cultural Rights and the Committee which monitors it, provides a means for NGOs and communities to hold governments accountable as seen in the example of Honduras and gold mining. There are also regional human rights mechanisms which can be utilized to further human rights concerns in mining. As well as holding governments accountable to objective standards, human rights law provides individuals and communities with a means for participating in human rights enforceability. Through participatory rights education using human rights law, people living and working in mining areas become active subjects who understand the law, where it fails and use a rights framework to understand problems with mining activities. This encourages a critical approach to law and mining issues. I would not argue that it is the only strategy to be pursued, but rather should be one of many.
At a time when transnational corporations exert huge power within the global scene, any mechanism which can provide a means for people’s empowerment and participation in the mining issues which affect their lives is essential.
1 Minow 1987:1867
2 Declaration of the U.N. Conference on the Human Environment, U.N. GAOR, U.N. Doc. A/CONF.48/14/Rev.1 (1972), reprinted in 11 I.L.M. 1416 (1972).
3 See generally Caroline Dommen, Claiming Environmental Rights: Some Possibilities Offered by the United Nation’s Human Rights Mechanisms, 11 Geo. Int’l. Envt’l L. Rev. 1; Richard L. Herz, Litigating Environmental Abuses under the Alien Tort Claims Act: A Practical Assessment, 40 Virg. J. Int’l. Law 545 (Winter 2000).
4 Regional human rights mechanisms
Aside from being able to appeal to international mechanisms, communities affected by mining operations can also access regional human rights systems. In the Americas, any person, group of persons, or nongovernmental entity has access to the Inter-American Commission on Human Rights (IACHR). Parties can submit petitions to the IACHR that contain allegations of the violations of rights protected in the major regional human rights treaties- The American Declaration, The American Convention, and the Protocol of San Salvador. If the IACHR rules that the state has violated specific rights, it issues recommendations to the state, which then has the obligation to engage in serious efforts to carry out the recommendations. States are further held responsible by the Protocol of San Salvador, which established a reporting system requiring state parties to submit periodic reports on the progressive steps they have taken to achieve the realization of the rights set forth in the text. The IACHR can also produce and request reports on human rights conditions within the member states of the OAS. If necessary, the IACHR will then make recommendations to the states. Finally, the IACHR and the interested state have standing to submit cases to the Inter-American Court, whose final decisions are binding on states.
In Europe and in Africa there are equivalent regional mechanisms available for raising human rights violations in the area of mining.