On the “International Day of Mother Earth” in April, the so-called Escazú Agreement will be officially celebrated; it has already entered into force in February. Mexico made the breakthrough possible with the ratification of the agreement last November. Amnesty International praised the treaty as an almost “historic environmental and human rights agreement” when it was negotiated three years ago.
The agreement for environmental democracy
The treaty represents a turning point in the economically and politically highly controversial area of the exploitation of natural resources. It promises more citizen participation in environmental matters - or, as the agreement officially states, “access to justice, information and public participation in environmental matters in Latin America and the Caribbean”. It is about transparency, about participation and legal rights and protection mechanisms for mining projects, deforestation, large dams in remote yet populated areas. Private and public companies should prepare sustainability reports and disclose their social and environmental balance sheets. It is “the first document in the world to establish procedural guarantees for the protection of activists committed to the preservation of natural resources,” the Stiftung Wissenschaft und Politik in Berlin recently praised the agreement.
Protection is urgently needed. Latin America has the highest number of environmental conflicts worldwide. In more than 40 percent of cases, they are associated with the mining of minerals. They often ignite large dam projects or the destruction of rainforests that have to make way for huge plantations or grazing areas. Habitats and biodiversity are lost, local communities are displaced or resettled. The affected populations are not adequately compensated, they cannot assert their claims. Those who defend themselves often put themselves in mortal danger. Nowhere in the world were so many environmentalists murdered in 2019 as in Latin America. The most victims were to be lamented in Colombia. After the Philippines with Brazil, Mexico and Honduras, other Latin American countries followed in the inglorious ranking of murders of environmental activists.
In November last year, Mexico became the eleventh state to ratify the treaty concluded in March 2018, thus making its entry into force possible. Argentina, Antigua and Barbuda, Bolivia, Ecuador, Guyana, Nicaragua, Panama, San Vincente and the Grenadines, Saint Kitts and Nevis as well as Uruguay have done this before. Recently, Saint Lucia joined.
The great absent ones
But with Brazil, Chile, Colombia, Peru and Venezuela, particularly important commodity exporters are excluded from the agreement. This is no coincidence. The agreement is a thorn in the side of powerful economic lobbies. Brazil had signed the treaty, but under President Bolsonaro it wants to know nothing more about it. Colombia also participated in 2018, but is now hesitant. A heated debate for and against is underway. A broad alliance of indigenous people, environmental organizations and universities is mobilizing for accession to the agreement, while business circles oppose it. In Paraguay and Peru, the parliaments have suspended the ratification debate. After the change of government from centre-left to right-conservative in 2017, Chile has changed from a champion to one of the most vehement opponents of the agreement.
According to the arguments, the agreement impedes economic development, limits the competitiveness of countries and endangers the sovereignty of countries. And last but not least, the opponents dislike the fact that the non-governmental organizations would be strengthened. The objections evoke memories of the Swiss debate on the corporate responsibility initiative.
The Escazú Treaty is still an obligation under international law. What it does has yet to be shown. For the time being, the contract must be implemented nationally in laws and then in practice. But the pressure is great that the contract does not just remain a promise. This is also the reason why powerful lobbies fear for their benefits.
Impact beyond Latin America
The treaty should also have an international impact, if Germany and the EU itself have recently begun to impose due diligence obligations on companies to comply with human rights and environmental standards in their supply chains. The implementation of the Escazú Agreement in Latin America and the Caribbean and the new supply chain regulations in Europe would complement each other: European companies would have to ensure that their suppliers comply with the requirements of the Escazú agreement when importing from Latin America and the Caribbean.
The question arises as to what the agreement can mean for Switzerland. Through Glencore and other resource companies, it is closely linked to Latin American mining interests. Colombia and Peru are also key countries in Switzerland’s economic development cooperation.
But the counterproposal to the corporate responsibility initiative, which will soon come into force, does not require a comprehensive duty of care for supply chains. Switzerland is therefore not legitimised to urge Latin American countries to adhere to the Escazú principles. In addition, in Switzerland’s priority country strategies, conditions in the raw material mines have at best played a secondary role so far. In Peru, the pilot project of the “Better Gold Initiative” has been running for a few years to improve the working conditions of the small gold miners. In addition, however, there is no indication in the strategy papers on the two countries that the serious problems of the raw materials sector in the two countries that are not party to the agreement would be relevant. But the pressure that Switzerland is also moving is there. A broad international alliance of non-governmental organizations, together with several UN special rapporteurs, is making serious allegations against the Cerrejón coal mine in northern Colombia, which is controlled by Glencore along with BHP and AngloAmerican. Lawsuits have been filed against the three companies and additionally the Irish state electricity company ESB at the National Contact Points in Australia, Great Britain, Ireland and Switzerland. They had violated the OECD guidelines on human rights and the environment and the obligation to disclose information.
“Large mining companies are facing a new front for the fight for human rights in Colombia,” the Financial Times headlined on 19 January. The US television station ABC News reported on the same day about the violations of environmental regulations and human rights of the three big players in the industry BHP, AngloAmerican and just Glencore. As if one had long since become accustomed to the scandals surrounding one of the world’s largest open-pit coal mines in northern Colombia, the latest accusations did not cause a stir in this country.
The allegations against Glencore are actually not new. But they have reached a new dimension. Because the case is spreading through Colombia and Switzerland to Australia, Great Britain and Ireland, where the lawsuits have been filed at the National Contact Points. The reasoning is that the Cerrejón coal mine violated the OECD guidelines on human rights, the environment and disclosure of information.
The lawsuits were filed by the Irish Global Legal Action Network GLAN, in alliance with Colombian NGOs and several European NGOs, including the Switzerland – Colombia working Group. The lawsuits are also based on a call by the UN Special Rapporteur on Human Rights and the Environment, David R. Boyd, at the end of September 2020, who had called for a partial halt to mining. Six other UN Special Rapporteurs on Human Rights joined the call, as did four members of the UN Working Group on the development of an agreement on Human Rights and Transnational Corporations.
Violation of several fundamental rights
The accusations are not new in themselves. Coal mining leads to fine dust pollution as well as water pollution and affects various water sources. He also had serious consequences for the health and livelihoods of the local population, violated several fundamental rights – the right to health, to a clean environment, to food, to dignified housing. Forced evictions and forced relocations would uproot people, deprive them of their livelihoods and often expose them to massive violence. The company is also accused of not following the rulings and requests of the highest Colombian courts.
Especially in the new lawsuits is the reference to Ireland, where the lead plaintiff GLAN comes from. There, the lawsuit is directed against the state-owned Irish electricity company ESB, because it has bought millions of tons of coal from the Cerrejón mine for years and is thus jointly responsible for the damage caused in Colombia.
Cerrejón responded in a statement that it would closely examine the allegations. The company also stressed that it has been adhering to environmental, human rights and social standards for 30 years. It is all the more surprising, however, that the accusations are being raised again and court rulings have repeatedly found abuses – again in 2020, as the UN Special Rapporteur Boyd stresses in his appeal for decommissioning. The court found that the company was harming the health of the residents by polluting air, water and vegetation.
So the conflict over the largest Latin American coal mine and the role of Glencore goes into a next round.