UN Treaty Could Force Mining Companies to Behave Responsibly

The Volcan Co. strip mine in the city of Cerro de Pasco, Peru more than 300 kilometres east from Lima and 4,380 meters above sea level. (Photo: MARCO GARRO/AFP/Getty Images)

UN Treaty Could Force Mining Companies to Behave Responsibly

As business continues during a global pandemic, the need to protect the environment, health and human rights are ever-more urgent.

In June 2020, a statement signed by more than 200 organizations around the world publicly denounced transnational mining companies for ignoring the threat of the pandemic and continuing to operate as normal.

The statement, which was based on a report jointly produced by non-profit and activist groups from Europe, the US, Canada and Latin America, criticised the extraordinary measures being taken by some governments to suppress protests against mining activity, as well as attempts to push through regulatory changes in favour of the mining sector.

Transnational mining hasn't gone into quarantine, and neither have the conflicts over how and where it operates. As in the past, activists have focused their attention on Glencore, the giant Anglo-Swiss commodities trading and mining company. The issues raised are familiar.

There is the Cerrejon thermal coal mine in Colombia--jointly owned by Glencore and two other transnational companies, BHP and Anglo American--whose expansion over the past 40 years is alleged to have caused environmental degradation and health problems for the local community.

Glencore has also been blamed for contaminating the area around Peru's Cerro de Pasco mine, run by a local company, Volcan, in which the mining giant has a majority stake. The dangerously high levels of lead, arsenic, aluminium and manganese found in local water caused the Peruvian government to declare a health emergency in 2018 after several children fell ill with lead poisoning. In Glencore's Porco mine in Bolivia, there are allegations of child labour and other abuses.

In November 2020, Glencore said it "works in line with international standards" and has "zero tolerance for child labour". It added that it was "proud to be a member of the Voluntary Principles on Security and Human Rights and the International Council on Mining and Metals", as well as "an active participant in the Extractive Industries Transparency Initiative".

So, how does all of this stack up?

Glencore is one of the world's biggest transnational companies dedicated to the production and marketing of raw materials. It has mining operations in more than 50 countries and its revenues in 2019 exceeded $215bn, five times more than Bolivia's GDP, 95% of Peru's GDP and two-thirds of Colombia's GDP in that year.

Peru declared a health emergency in 2018 over dangerously high levels of lead, arsenic, aluminium and manganese in local water.

The company is seeking to jump on the low carbon and renewable energy bandwagon. In December 2020, it promised to cap its coal extraction and to support low-carbon technologies and the more efficient use of resources. While it made headlines as the first mining company to claim full alignment with the goals of the Paris climate change agreement, there is little evidence that Glencore has changed its actual practices on the ground.

This is why it's necessary to push for mechanisms that can force transnationals such as Glencore to be accountable for their actions. Switzerland's Responsible Business Initiative, according to activist Stephan Suhner, a member of ask!, a Swiss-Colombia working group, would have contained "due diligence" measures. These would have made Swiss companies liable for human rights or environmental violations they caused around the world, forcing them to identify, prevent and be held accountable for any negative impacts of their activities.

Unfortunately, when it was put to the vote in Switzerland in November 2020, a narrow majority of voters backed it overall, but the initiative failed because it was rejected by 17 out of 26 Swiss cantons. The second measure that would hold transnational companies to account is the UN Binding Treaty on Transnational Business and Human Rights, which would force companies to take responsibility for the negative impact they cause in the territories.

Colombia: indigenous communities speak out

In Colombia's La Guajira peninsula, Glencore owns an equal share with Anglo American and BHP in Cerrejon. The impact of Latin America's largest open-pit coal mine is contested, but what's not in doubt is the anger it has caused among the Indigenous Wayuu and other local communities.

In 2017, the Wayuu filed a lawsuit against Cerrejon for threatening their fundamental rights to water, food, and health by diverting a 3km section of the Arroyo Bruno stream in order to expand coal-mining operations in the arid region. Several communities depend upon the Arroyo Bruno to survive. Mining explosions cause pollution that affects the health of local communities. The Wayuu also believe that sacred territory has been desecrated, so much so that their spiritual healers are no longer able to commune with the earth and guide their communities.

Organizations in La Guajira say they have received threats from paramilitaries for their robust defense of their territory. There is no evidence or suggestion that the mining companies are responsible for these threats. Colombia is one of the world's most dangerous countries for defenders of land rights. In its 2019 report, Global Witness, the international NGO that reports on resource exploitation, poverty, corruption and human rights abuses, said 64 community and social leaders had been killed in Colombia that year.

In January 2021, international and Colombian organizations filed several formal complaints about Cerrejon mine with the Organization for Economic Cooperation and Development (OECD). The OECD first issued voluntary guidelines for responsible business conduct by multinational enterprises nearly half a century ago.

The complainants listed Ireland's state-owned Electricity Supply Board, which has in the past bought Cerrejon coal; the Dublin-based Coal Marketing Company, which sells it; and the mine's owners, Glencore, BHP and Anglo American. The aim was to force the Irish companies to suspend their relationship with Cerrejon, and for the three owners to recognise their liability and provide redress.

The complainants also noted the mine-owning companies' announcement that they would sell their shares. "There needs to be an assessment of business conduct," the complainants wrote, "as well as the environmental and social liabilities left by these companies prior to their departure from the country, to avoid compounding corporate impunity."

In response, Cerrejon published a statement where it said it was "committed to operating in adherence to Colombian legislation and judicial rulings as well as the appropriate international guidelines governing human and environmental rights."

In January, Ireland's Electricity Supply Board told the Financial Times that it was unaware of any complaint being filed under OECD guidelines.

"ESB confirms that it purchased coal from the Cerrejon mine in the past. In the period 2015-2018 ESB purchased just over two per cent of the coal mine's output. ESB purchased no coal from Cerrejon in 2019 or 2020," read the statement.

Peru: protest and police crackdowns

One of Glencore's most important projects in Peru is the Antapaccay mine in Espinar province, in the southern highlands region of Cusco. In 2018, Antapaccay produced over 200,000 tonnes of copper, nearly 45,000 kilograms of silver and more than 4.1 million grams of fine gold.

Mining activity in Espinar began more than three decades ago and over time, there has been increasing conflict over alleged water, air and soil contamination. In December 2019, a court in Espinar ruled on the heavy metal contamination of the area and the effect it was having on the local population. It was recognition, albeit delayed, of years of struggle by rural communities and campaign groups to focus attention on their demands. But the state's apathy and the mining companies' indifference has led to several tense stand-offs, with notable conflicts in 2012 and 2020.

In 2012, police and protesters clashed over Peru's Las Bambas copper mine, leaving four people dead, several injured and many others under arrest. An investigation by the National Human Rights Coalition of Peru found that the country's police was secretly collaborating with mining companies to protect their economic interests and prosecute those who led protests against the status quo.

Conflict has continued in Espinar, most recently in July 2020, at the height of the pandemic. Over a two-month period, people demanded financial help, in addition to the usual requests pertaining to their health and the environment. A single one-off payment of 1,000 Soles (roughly $265) should be given to every adult in the area, they said, from the 3% of the company's profits that are meant to go to the province, under the terms of the so-called "framework agreement". But Glencore refused, leading to protests that were eventually suppressed by the police. Peru's police violated human rights and engaged in ill-treatment and torture of the protestors, according to a report by the National Human Rights Coaltion of Peru.

Glencore has plans for expansion in Espinar through its new Coroccohuayco project, for which the communities have been demanding consultation in accordance with international standards. It could, on past form, be the trigger for another 25 years of conflict.

And then there is Cerro de Pasco, several hundred kilometers to the north-west of Espinar and sometimes known as Peru's mining capital. The Peruvian media outlet Ojo Publico has written about high levels of lead in the blood of local children and health problems such as anemia, learning difficulties, headaches, nosebleeds, or even leukaemia.

Bolivia: a million-dollar lawsuit

Glencore's operations in Bolivia are managed by two mining companies, Sinchi Wayra and Illapa. Together they control tin, zinc, silver and lead mining in the Oruro and Potosi departments.

In November 2020, Public Eye released a report describing the dangerous way in which zinc, lead and silver is extracted from the Porco mine in Potosi. Some of this is sold to Sociedad Minera Illapa, a Glencore subsidiary. There have been allegations that children and teenagers are employed in Porco, though Glencore has denied it.

The setup has also been criticised for freeing Glencore of its labour and environmental responsibilities, which are outsourced to local subsidiaries. Accidents are very common, and according to a local doctor, over the past four years, an average of 20 mineworkers were killed each year, including some minors.

The mine may also be polluting rivers in the area and affecting agricultural activities and the health of the local population, according to studies by the municipality of Porco. Laboratory samples from the river confirm excessive amounts of zinc, iron and manganese in the water, which can cause damage to vital organs as well as cognitive problems for those who drink it.

Accidents are very common at the Porco mine, with reports of 20 fatalities each year, including some minors.

In March this year, Glencore seemed to want to sell or explore partnerships for several assets in South America, including Sinchi Wayra and Illapa.

Glencore is also embroiled in a legal dispute in Bolivia over the government's nationalisation of three of its four assets in the country. In 2007, the Bolivian government of president Evo Morales nationalized Glencore's Vinto tin smelter.

In 2012, it revoked Glencore's license and handed the Colquiri zinc and lead mine to state mining company Comibol. In the same year it also seized Glencore's antimony operation.

Glencore is demanding $675m in compensation and some reports suggest the figure could have risen to nearly $800m, or roughly a quarter of Bolivia's 2021 health budget.

The pandemic has delayed the case, something that more than 650 organizations around the world have said is right and proper, especially while fighting the "COVID-19 crisis", in order that states could focus their capacity on pandemic response.

Climate change: a just transition?

Glencore has already said it wants to limit coal extraction and reduce its carbon emissions in response to the climate crisis.

What's more, its outgoing CEO, Ivan Glasenberg, has said the demand for copper will multiply by 2050, as will that for zinc, nickel and cobalt - metals that are all needed for the transition to cleaner and renewable energy sources.

Glencore already produces these metals in significant quantities. A responsible transition would mean respecting the environment and the rights of local communities. It would also mean questioning the economic model of hyper-production and over-consumption, and how it links into the ecological crisis. Anything less would mean that the proposed transition is nothing more than a good business deal.

For years activists have documented Glencore's impact on the ground, but it has not been enough. One way to force companies like Glencore to behave responsibly is to introduce nationally and internationally legally binding instruments such as the Swiss Responsible Business Initiative, and the UN Binding Treaty on Transnational Business and Human Rights.

The UN: waiting for agreement

This is the seventh year of negotiations for the UN Binding Treaty on Transnational Business and Human Rights. Raffaele Morgantini, an activist with CETIM and the UN's Global Campaign to Dismantle Corporate Power, says in an interview that the main challenge lies in enabling the treaty to do what it is meant to.

He adds that what is currently on the negotiating table is "a draft treaty whose content fits the proposals and interests of the lobbies of transnationals and their political allies". Consequently, it risks becoming "toothless".

One of the fundamental issues, says Morgantini, is that "the current draft treaty does not provide for direct obligations on transnationals, but only obligations on states". This is a problem because companies can often be richer and more powerful than states themselves. If there is a lack of political will or sufficient technical capacity to regulate transnationals, they can escape the jurisdiction of states or simply evade all accountability by commercial blackmail and so on.

"We have to establish direct obligations on transnationals to respect human rights," says Morgantini. "And if they do not, it is necessary to have binding legal mechanisms to bring them to trial and sanction them."

The Global Campaign proposes the creation of an international court where states and civil society organizations can file complaints against transnationals about human rights violations. "We need to strike a balance between the need to go fast, because affected communities need that treaty," says Morgantini, while making sure that its content "can really help communities."

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