CHAPTER 8 PROTECTION FOR COMPANIES BY USE OF FORCE AND HUMAN RIGHTS

• Jurisdiction: Derecho Internacional

International Mining and Oil & Gas Law, Development and Investment
(Apr 2009)
CHAPTER 8
PROTECTION FOR COMPANIES BY USE OF FORCE AND HUMAN RIGHTS
Paolo Abad ^*
Minera Barrick Misquichilca S.A., a Peruvian subsidiary of Barrick Gold Corporation
Lima, Peru

Paolo Abad is in-house legal advisor for Minera Barrick Misquichilca S.A., a Peruvian subsidiary of Barrick Gold Corporation. His experience includes structuring of mining agreements, permitting and acquisition of interests on surface rights for mining projects, coordination with public security forces for protection support and corporate issues in Peru, Colombia and Brazil. He was directly in charge of the legal support for the acquisition of mining interests (including privatization of mining concessions by the Peruvian government) and of private surface interests for the "Alto Chicama - Las Lagunas Norte" mine in Peru. Paolo graduated from the Faculty of Law of the University of Lima. He is a member of the Rocky Mountain Mineral Law Foundation.

I. INTRODUCTION

Companies devoted to extractive industries need to ensure protection for their personnel, assets and operations. This is particularly challenging in countries which experience a high degree of violence due to social, economic and/or political factors (e.g: armed conflicts in host countries, terrorism, common delinquency, actions by sectors of the population exacerbated by rioters with certain agendas and actions by some sectors of informal miners). Under some circumstances, effective protection of life and property may require the reasonable use of force.

In mining and extractive industry context, companies generally attend such need of protection with the support provided by their host countries' security organizations in compliance with their legal duties (e.g.: the army and the police) and/or by private security services companies. In some cases; however, the host countries' security organizations may not have the economic capability and/or credibility to ensure timely, sufficient and/or sound protection. Similarly, private security companies may not have an adequate level of professional proficiency with regard of the use of force or sufficient knowledge of humanitarian law. Consequently, companies may be exposed when the protection provided by the public or private sector is not consistent with the international humanitarian law.

In recent years, the media and non governmental organizations have reported increasing numbers of cases in which mining companies, host countries' security forces and private security organizations have been accused, in local and international courts, of human rights violations arising out of the use of force to protect personnel and property. This paper argues that the most efficient and sustainable way for companies to protect personnel and property at their remote operations is through a security approach consistent with International Humanitarian law and with human rights and anticorruption principles and norms articulated by credible international organizations. In addition, this paper provides the reader with some practical suggestions with respect to the issues companies ought to consider in order to: (i) incorporate their reasonable use of force security approach into their Corporate Social Responsibility commitments (which, as well as community relations, environmental, labor and health, should include human rights respect with regards to their security efforts); and (ii) reduce their legal risks with respect to possible allegations of human rights violations and/or corruption related accusations. Since the purpose of this paper is to provide a practical perspective on the reasonable use of force to protect personnel and property at remote mining locations, reference to other scholarly works will be necessary for a thorough analysis of the issues involved in business security and its relationship to international human rights principles and norms that may be applicable.

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II. ANALYSIS

A. THE VOLUNTARY PRINCIPLES ON SECURITY AND HUMAN RIGHTS OF THE UNITED NATIONS GLOBAL COMPACT

The most internationally well-known principles that address security for companies and human rights are the ones found in the instrument named "Voluntary Principles on Security and Human Rights" (the "Principles"¹ ) of the United Nations Global Compact (the "UNGC").²

The UNGC is a public-private voluntary policy initiative for businesses committed to aligning their strategies and operations with ten principles in the areas of human rights, labor, environment and anticorruption, as well as to performing actions in support of broader United Nations goals. It was officially launched in 2000 and has over 6,200 participants including more than 5,100 corporate participants and stakeholders from over 130 countries including governments, labor and civil society organizations and the United Nations.

Any company properly incorporated under applicable law can participate in the UNGC, regardless of the industry sector to which it belongs. However, companies involved in the manufacture or sale of anti-personnel landmines, or subject of a United Nations sanction or that have been blacklisted by United Nations Procurement for ethical reasons cannot participate in the UNGC. Pursuant to the "leadership principle" if a parent company adheres to the UNGC it is assumed that all of its subsidiaries participate.

The two first principles supported by the UNGC are as follows:

Principle 1	:	Businesses should support and respect the protection of
internationally proclaimed human rights.
Principle 2	:	Make sure that they are not complicit in human rights
abuses.

These commitments by a company party to the UNGC are limited to the company's sphere of influence. The concept "sphere of influence" considers the human rights issues in question, the size of the company, the proximity between

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the company and the (potential) victims and (potential) perpetrators of human rights abuses and the degree of control of the company over relevant stakeholders such as joint venture partners and host governments.

Particularly, the Principles were developed in 2000 as guidelines for extractive and energy companies in their efforts to safeguard the integrity of their personnel and property ensuring respect for human rights. Today, the Principles involve the governments of the United States, the United Kingdom, Norway, the Netherlands and, recently, Canada, extractive and energy companies and human rights Non Governmental Organizations ("NGOs").

Compliance with the Principles is not mandatory for participant companies and, therefore, lack of compliance by a participant company may not be used to support a claim in any legal or administrative proceeding against it. However, the Principles have established guidelines to be followed by businesses respecting human rights within company security efforts. The Principles are increasingly being considered and/or followed by companies throughout the world and, in some cases, in coordination with home and host governments and NGOs, notwithstanding the lack of a grievance mechanism in the Principles.³

There are four kinds of participants ("Participants") to the Principles: governments, companies, NGOs and observers. Following, the list of Participants as of April 13, 2009:⁴

Governments

Canada

Netherlands

Norway

United Kingdom

United States

Companies

Anglo American

AngloGold Ashanti

BG Group

BHP Billiton

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BP

Chevron

ConocoPhillips

ExxonMobil

Freeport McMoRan Copper and Gold

Hess Corporation

Marathon Oil

Newmont Mining Corporation

Norsk Hydro

Occidental Petroleum Corporation

Rio Tinto

Shell

StatoilHydro

Talisman Energy

NGO's

Amnesty International

The Fund for Peace

Human Rights Watch

Human Rights First

International Alert

Pax Christi Netherlands

Oxfam

Pact, Inc.

Observers

International Committee of the Red Cross

International Council on Mining & Metals

International Petroleum Industry Environmental Conservation Association

The Principles address three main issues: risk assessment, interaction between companies and public security (e.g.: police and army) and interaction between companies and private security (security contractors). A thorough risk assessment that identifies and evaluates the numerous risks associated with a company's activities, including the potential for violence, is an essential first step in order for a participant company to design and implement an effective security management plan in cooperation and coordination with public and private security providers. Using the risk assessment as a guide and source of information, interaction with public and private security providers is important to insure adequate coordination of appropriate and measured responses when necessary, including deployment of equipment and personnel, consistent with reasonable use of force and respect for human rights.

Coordination and cooperation between Participants for the implementation of the Principles is encouraged. However, such coordination and cooperation may be difficult to achieve, due to the Participants' sometimes different interests and

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priorities. For example, as noted by the "Principles Information Working Group":⁵

— Companies may be hesitant to increase transparency and reporting efforts due to local NGOs hostility;

— In many instances there is a lack of involvement by

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