HUMAN RIGHTS STANDARDS APPLICABLE TO EXTRACTIVE INDUSTRIES
| Jurisdiction | Derecho Internacional |
(Apr 2013)
HUMAN RIGHTS STANDARDS APPLICABLE TO EXTRACTIVE INDUSTRIES
Ignacio A. Boulin Victoria
C. Ignacio de Casas
Partners, Southern Lights Group
Mendoza, Argentina
LUCAS GOMEZ, a partner in Southern Lights Group in Mendoza, is a lawyer specializing in Environmental Law, having received his degree from the University of Mendoza, Argentina. He has completed the Environmental Law, International Institutions, and International Trade program from American University's Washington College of Law. He has been a permanent consultant of the United Nations Program for Development, advising the Ministry of Environment and Sustainable Development of Argentina in the development of programs for sustainable production and business competitiveness. Mr. Gomez has extensive experience in international litigation of human rights, taking active part in affairs in Argentina, Chile, Peru, and Guatemala, advising varied parties in the complex problems that arise in relation to high-impact development projects among states, native communities, and civil organizations. In the academic field, he is an Associate Professor of Environmental Policy and the Chair of Environmental Law and Legislation at the Faculty of Law, Congress University, Mendoza, Argentina.
IGNACIO BOULIN VICTORIA is a lawyer, with a master's degree in administrative law. He is co-founder and partner of Southern Lights Group, a litigation and advisory firm that works in the field of human rights at both national and international levels. Ignacio has extensive experience in international human rights litigation, and has taken an active role in cases in Argentina, Mexico, Guatemala and Chile related to human rights and to business issues. He also teaches Public Law at the Universidad Nacional de Cuyo School of Economics, Mendoza, Argentina.
IGNACIO DE CASAS (Co-Chair) is originally from Mendoza, Argentina, and is a graduate of the University of Mendoza Law School. He also holds a diploma in International Human Rights from American University's Washington College of Law in Washington, D.C. and a diploma in Economic, Social and Cultural Rights from the College Universitaire Henry Dunant in Geneva, Switzerland. He is one of the three partners in Southern Lights Group, a litigation and advisory firm specializing in human rights issues, and he is the founder and current vice-president of the Latin American Center on Human Rights (CLADH), a non-governmental organization that promotes human rights through strategic litigation. Mr. de Casas has extensive experience in international litigation of human rights, both at the Inter-American Human Rights System (OAS) and within the protective mechanisms of the United Nations. He was awarded the Outstanding Young Mendocinian prize, in the category "Leadership, Commitment and Achievements in contributing to human rights, childhood, and voluntary and humanitarian services," granted by the Mendocinian Business Council. He also received a prize as a human rights defender, granted by FASTA University, Mar del Plata. Mr. de Casas is Assistant Professor of Constitutional Law at Austral University Law School in Buenos Aires, where he lives now. He still plays rugby.
Requirements in relation to Indigenous Peoples arising from the jurisprudence of the Inter-American Human Rights System
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1. Introduction
2. Current Human Rights Issues Faced by the Extractives Industries
3. The Concept of Indigenous and Tribal Peoples. Self-determination and Violation of Rights due to Non-Recognition.
4. Content of the State Obligation: Respect and Guarantee
5. Content of the Corporate Obligation: Respect.
6. The IAHRS Standards on Extractive Industries and the Right to Indigenous Communal Property
A. Territory Standards
(i) Concept of "land" according to Human Rights International Standards
(ii) Assimilation of the Right to Use and Enjoy the Right to Property. Flexibility of the Requirements of Ownership.
(iii) Protection against Third Parties: Requirements of the IACrtHR for the Restriction of the Right to Property.
(iv) A Special Aspect in the Case of Indigenous Land and Territories: the Issue of the Alternative Lands
B. Standards Related to the Prevention against Environmental Harm: Adequate Social and Environmental Assessments
(i) Independence of the party conducting the Assessment
a. Conducting the assessments by public or private individuals
b. The alleged prohibition to contractors of the concessionaire to conduct the assessment
(ii) Second Requirement: the Technical Competence of the maker of the Assessment
(iii) Third Requirement: the State's Supervision
C. Non Approval of any Project that may Threaten the Physical or Cultural Survival of the Group
D. The Right to prior Consultation. Convention No. 169 and the way it has been upheld by the IAHRS
(i) Does the Right of Consultation Grant the Right of Veto? The Limited Duty to Obtain Prior Informed Consent.
(ii) The duty of accommodation.
E. The Right of Participation in the Benefits.
7. Conclusions
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1. Introduction
Extractive activities -especially oil & gas and mining-related activities- may cause a great impact on the exercise of some peoples and communities' basic rights. The extent of their operations, their high investments, the wide range of stakeholders and the cultural differences evidenced between multinational companies and indigenous communities contribute to the generation of conflicts. Therefore, the Americas are currently facing serious conflicts involving companies, States and indigenous peoples due to this kind of activities.
Such conflicts have been analyzed within the Inter-American Human Rights System (IAHRS), through the Inter-American Commission of Human Rights (IACHR) and the Inter-American Court of Human Rights (IACrtHR) with case findings and reports. The criteria developed by them sets forth certain human rights standards that should be observed by extractive companies. This paper is aimed at assessing such standards and making recommendations on how they can be enforced by national governments in their domestic regulations and complied with by private companies.
This paper has been divided into four sections. Firstly, we discuss some of the features of the conflicts arising between extractive companies and indigenous peoples.
Secondly, we develop the concepts of indigenous and tribal peoples and the significance of recognizing their existence as a necessary requirement to understand the following sections.
Thirdly, we examine the reasons behind governments and companies' obligations to respect human rights standards, since before reviewing such standards in depth we must understand why it is mandatory to comply with them.
Finally, we develop the five major standards set forth by the Inter-American Human Rights System on the indigenous peoples' rights.
This paper, from introduction through conclusion, provides some guidelines to help governments, companies and communities to better comply with these standards.
2. Current Human Rights Issues Faced by the Extractives Industries
Latin America's natural wealth is enormous. From immemorial time --remember the Spaniards' golden dreams of colonial times1 --this wealth has been regarded as a precious treasure by those who made a great effort and sacrifice to extract it from the land for their own and their peoples' benefit.
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Along this vein, the conflicts between those who wanted to exploit the resources of the land and those who owned them are also long standing. Such conflicts still exist nowadays and, according to current legal terms, they result from the difficulty of establishing a limit between indigenous peoples' rights to enjoy their ancestral lands and natural resources, and to keep their culture and ways of life, on the one hand; and the rights of the companies that have been granted concessions for mineral or hydrocarbon exploration and exploitation, on the other hand. In addition, there are also the rights of contemporary States, most of which have some kind of entitlement over the natural resources which allows them to use them for common welfare and population development purposes.
The well-known conflicts arising among these stakeholders stem from different causes which fall beyond the scope of this paper. However, all of them are marked by a distinctive feature: they result from a clash of cultures.
There is a clash between the indigenous people who often lack the Western concept of legal order and rely on their own legal systems, uses and traditions (and who have a special connection with the land and the elements of nature) and the companies or national, provincial or municipal States who have another sense of legal system and adopt a different behavior in relation to natural resources.
The collision between these different views can only result in deeply rooted, longstanding problems which are hard to settle and that must be fully understood by anyone willing to invest in the Americas.
As it cannot be otherwise, this kind of issues results in harsh social conflicts which cause negative economic impacts on all stakeholders. Just to mention a few problems, contracts are subject to early termination; works in progress are interrupted and the reputation of companies and States is tarnished before the international community, the public opinion and shareholders because they are regarded as violators of human rights.
However, it is worth noting that, in spite of being serious, these problems are not unsolvable. On the opposite, they can be settled and actually seized as good opportunities, but there must be a real concern by the stronger actors --i.e., the State and the private companies--to improve everyone's situation.
3. The Concept of Indigenous and Tribal Peoples. Self-determination and...
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