In this presentation I will talk about how a human rights analysis and specifically an economic, social and cultural rights analysis can benefit the issue of mining and campaigns around mining. I will describe the work that the Center for Economic and Social Rights (CESR) has been doing in Central America and internationally and give some thoughts on challenges and the possibilities for further work. Finally I will talk about whether a rights analysis benefits community members.
To tell you briefly about where I work. The Center for Economic and Social Rights was founded in 1993 to promote social justice through human rights. CESR documents violations of economic and social rights, collaborates with local partners in affected communities, and advocates for changing policies that impoverish and exploit people. CESR currently has programs in Health and Environmental Justice, the USA and the Middle East and Central Asia.
In early 2001 we were contacted by a human rights activist in Honduras who was concerned by the proliferation of gold mines in Honduras and the lack of environmental controls of these mines. He contacted the Center and also a Harvard environmental scientist about possible assistance. We began working with him and with another non-governmental organisation based in Honduras to document some of what was happening and to analyse the situation to determine if there were human rights violations. From our initial contact it appeared there were definite issues relating to the right to health, the right to self determination and the right to an adequate standard of living.
In February 2001 CESR committed to writing a report for the United Nations International Committee on Economic, Social and Cultural Rights documenting the human rights violations in the gold mining industry in two particular mines in Honduras. As you know, this Committee meets 3 times a year and reviews countries who have ratified the Convention on Economic, Social and Cultural Rights to see how they are complying with their obligations. Every 5 years each country which has ratified the Convention must submit a report detailing how it ensures the rights of its citizens. Non governmental organizations can also submit reports with a different version of the facts from the Government’s. The Committee was scheduled to review Honduras in April 2001. While the Committee has relatively recently developed a General Comment on the right to health, article 12, the issue of environmental protection and human rights violations is a relatively new one for the Committee.
In preparation for the report I visited Honduras and met with community members, government officials, environmental agencies, mining officials, the department for the promotion of mining and the Environmental Ombudsman. I visited one of the mines extracting gold.
The fact finding mission revealed substantial human rights violations in the areas of:
Self determination, right to favorable work conditions, right to an adequate standard of living and the right to health and a healthy environment.
The Gold mining industry is dominated by mostly Canadian, USA and Australian mining companies. Since the 1970s a new technique has been developed using cyanide for gold mining. This new technique means that mines which were previously not considered profitable are being opened. The technique used in gold mining involves creating a large open pit, taking out rock, crushing it, and then sprinkling cyanide solution on the crushed rock. The cyanide bonds with the gold in the crushed rock and is channeled into collection pools. The gold is then removed. It takes several hundred tonnes of ore to produce small quantities of gold.
Cyanide is highly toxic. A teaspoon of 2% cyanide solution can kill a person. The cyanide solution in the mines is recycled but ultimately loses its value. The question then remains of what to do with the cyanide-laden water. In Honduras, cyanide contaminated waters have been released into river systems. The process also releases heavy metals into the atmosphere, river systems and the soil.
Two of the key problems of mines across the world are:- they use a lot of ater and water is scarce and precious, and secondly, they frequently occupy agricultural land depriving people of a means of subsistence. Both these problems are seen in Honduras.
Some of the problems with the mine at San Andres include:
In order to build a mine in that area, the community was forced to relocate. The community states that it felt pressured to relocate. The people waited for years for the legal title to their houses. They were not consulted about the type of housing or design of the new community. This means that the houses do not have a plot of land around them for small food crops and raising animals which is the traditional style. (story about how the last family with the boy on the top of the water tank)
Another community, San Miguel which is located close to the mine, has a house within 42 metres of the cyanide heap leaching pad. This is the area where cyanide is sprinkled onto the rock. People in that town complain of increased skin and respiratory diseases. They also complain of high levels of dust generated by the rock crushing machine. They are worried about the long term effects on their health of living so close to cyanide. A later development in this community is that now the mining company wants to extend the heap leaching pad and is paying individual sums of money to households for them to abandon their houses. They are moving, their community is being destroyed and they accept this in the hope that they can find work in the cities. This is highly unlikely as they are unskilled country people and it is more likely that they will become poorer and will join the queues of people seeking jobs and housing in the city.
Another community closely situated to the mine is perched on top of the mountain which is being excavated for gold. The houses in the community shake every time there is an explosion and there are cracks in their houses. These community members are also required to walk through the mine to get to their community. The road is used constantly by huge trucks which have killed domestic animals.
The mine in the Valle de Siria consumes large quantities of water and sand. The water is taken from the ground water reserves. Sand has been removed from nearby rivers. The communities have remarked on the lower levels of water in the river. There are no limits on the amount of water which the mine can use and the use of sand was initially uncontrolled. Currently the mine has sunk 5 additional wells and the communities surrounding the mine are literally running out of water. The mine, disingenuously claims no responsibility for the depletion of water resources as it is using sub-contractors to extract the water. This means that anyone who has the capital to get a water truck has invested in a water truck and is sinking a well in their back garden to extract water. The mine has completely distorted the traditional way of life, agriculture and creates division in the community as some get rich quick, others get badly paying security jobs in the mine, and others get poorer.
The General Mining Law came into force in 1999. The stated aim of the law is to create favourable conditions for foreign investment in the process of reconstruction following Hurricane Mitch.
It gives wide sweeping powers to mining companies with ineffective environmental protections or provision for people to participate in decisions which affect their health.
Mining companies are required to conduct an Environmental Impact Study when seeking a mining license. However it is the mining company who chooses who will conduct the study and pays for the study. The government reviews the study but does not conduct its own study. This Environmental Impact Study, then provides the basis for the environmental controls on the mine. Neither the community at San Andres or near the Valle de Siria mine had any participation in this process. When asked whether the people should be consulted, a government official replied “Why consult peasants, they are illiterate and there would be anarchy”. The community is supposed to be given 15 days to object to a mining license being granted. But most don’t even know when a company has applied for a license as it is only advertised once in a newspaper which doesn’t even get delivered to some of these communities.
As a result of this visit we wrote a report about human rights violations and presented it to the UN Committee on Economic, Social and Cultural Rights in Geneva. A water engineer from Honduras also presented the report and his concerns about mining. We found that there are breaches of the right to health and a healthy environment. This includes the right of people to participate in decisions affecting them. We also found that there were breaches of the right to self determination, right to an adequate standard of living and the right to just and favourable conditions of work.
We recommended that the General Law on Mining needs to be reformed. The environmental controls are currently ineffective. Water studies reveal high levels of heavy metals, lead, mercury, arsenic and iron in the river systems in the mining areas.
The people living in the mining areas should be consulted about decisions which will effect their lives so profoundly, and the EIS should be conducted by the Government with input from the people and not paid for by the mining companies.
We recommended that communities be legally represented when they are being petitioned to relocate so that they can negotiate fairly with mining companies. The granting of mining licenses should be subject to review by the Public Prosecutor’s Office for the Protection of the Environment as currently there is no review process.
While we recognize the right of Honduras to exploit its natural resources, the rights of the Honduran people to self determination, an adequate standard of living and to health should not be violated in this process. Effective environmental protections must be enshrined in the General Mining Law to ensure that people’s lives are not endangered by gold mining.
After presenting the report and hearing from the Government of Honduras, the Committee made its report on Honduras including recommendations. A lot of the issues which we had raised in the report were included in the recommendations to the Government. This was a substantial achievement as it meant that the Government had to take some of the concerns we raised more seriously. The downside is that there is no sanction for the Government not complying with the recommendations.
Since that time, the Center for Economic and Social Rights and the local NGOs in Honduras jointly organized 2 separate workshops based on the report, the Covenant and the final recommendations. The first workshop in July 2001 was for about 35 key NGOs and community members in Honduras. Human Rights provide another tool for communities, with which to negotiate with the Government and mining companies. There is a fledgling national movement which is taking action against the gold mining companies and the Center for Economic and Social Rights is supporting this movement. I gave a further workshop to another grouping of communities at one of the mine sites about human rights in February 2002. In this workshop it became apparent how human rights as concepts can articulate in a formal way, people’s sense of wrong and injustice.
We are currently working on easy to read materials about mining and human rights for Honduras. We’re also finalizing some fact sheets for use in Honduras.
ON a regional level, in February of this year we co-organised a 3 day regional meeting between mining activists and community members from Costa Rica, Honduras, Panama, Nicaragua and El Salvador. This was a great success as it enabled links to be made between countries and activists and community members heard about strategies which had worked in other countries. Some of these include:
On an international level, in December 2001 a meeting was held to launch a Global Mining Campaign. CESR has been an active member in devising strategy and participating in this coalition with a human rights perspective.
Some of these activities have been around the WSSD process, others have been about putting together case studies from the various regions which document problems with mining, including human rights, creating a demand set for what the campaign (NGOs and communities) want and responding to the Mining, Mineral and Sustainable Development Report which the mining industry has sponsored. The conference launching the industry’s recent report is what I have just come from in Toronto Canada.
Achievements:
Documenting human rights violations
Educating NGOs in Honduras about economic, social and cultural rights and giving them some tools to pressure government with
Raising environmental (food, health, water, standard of living, housing) issues at the Committee
Raising mining as a threat to ESCR at Committee level
Getting concluding observations which reflected our concerns
Facilitating links between countries around mining issues
Calling mining companies to account on a human rights basis
Inserting a human rights framework into NGO coalition key critique documents
Due to resource difficulties in Honduras, it is hard to get a national resistance movement formed. Although Honduras is not a huge country, traveling between mines sites is very time consuming. The telecommunications infrastructure is not highly developed.
Additionally the mining companies have huge wealth with which to ensure that the law remains in its very lax and permissive form. The NGOs who are working on this issue are not environmental specific, but rather are doing a broad range of work, of which mining is just one of the activities.
Despite these challenges, the awareness of environmental concerns and how human rights are affected by gold mining, has increased substantially in the last year. There has been extensive media coverage of these issues with public debates and the Catholic church taking a position on the issue. These are exciting and encouraging steps in the struggle to ensure that economic, social and cultural rights are respected in the practice of gold mining.
Another challenge which is a spin off effect of wealth of mining companies, is the creation of disunity within communities. For example in San Andres, the community where I gave the workshop in February, some of the people like the mine, rely on it for work. They are not looking long term to how they will earn a living once the mine closes. But the company plays people off against each other. How to deal with this?
The role of the state is effectively nullified because it has been become captured by the mining companies.
Let’s look more deeply,
The fundamental advantage of human rights law is that it enables community members and those directly affected by mining to conceive of themselves as actors. As Phillip Alston in discussing whether ESCR make any difference states :
“The reality, of course, is that it makes a world of difference. Needs can be deferred until those in power think it might be timely to address them. Needs can be defined and formulated by experts; they are usually seen to be eminently flexible and relative…Rights, on the other hand, belong to individuals, who can and will assert them, and strive to give them meaning and substance. They can be neither expropriated, nor defined, nor arbitrarily put on the back burner, by officials.” (Foreword by Phillip Alston in Philrights report on economic, social and cultural rights quoted in green, p 1095)
“The real potential of human rights lies in its ability to change the way people perceive themselves in relation to the government and other actors. Rights rhetoric provides a mechanism for reanalyzing and renaming “problems” as “violations” and, as such something that need not and should not be tolerated….
Rights make it clear that violations are neither inevitable nor natural, but arise from deliberate decisions and policies.”(60 jochnick)
An extension of this is participatory rights education.
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.