The Right to Sustainable Development. Changing the Paradigm of Gold Mining in Guatemala

7/30/2019 The Right to Sustainable Development. Changing the Paradigm of Gold Mining in Guatemala

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The Right to Sustainable Development:

Changing the paradigm of Gold mining

Priscila Rodriguez Bribiesca1

"Peace, development and environmental protection areinterdependent and indivisible" Principle 25 Rio Declaration.

Abstract

The Marlin mining project implemented in Guatemala by Goldcorp, a

transnational company, is a paradigmatic example of environmental and human rights

violations caused by extractive industries affecting and devaluating social and

environmental conditions in developing countries, under the excuse of the economic

development. This developmental paradigm based in part, on the extraction of gold,

was prevalent since the times of Conquest of America by the Europeans, asserting

acquiring gold was the highest value for the new colony, and no other values, such as

social wellbeing, human rights, or the protection of the environment, could prevail over

it.

This tradition has continued throughout history, until the present, especially in weak

democracies where the imposition of such extractive industries by developed economies

and their arms, transnational corporations, still prevails.

1 Priscila Rodriguez Bribiesca is an international attorney with a decade of experience in environmental

and human rights law. She is Cofounder of SAKBE, Communication and Defense for Change and she

obtained her Masters in International Human Rights Law from the University of Notre Dame in 2012. Sheis currently a visiting attorney at the Environmental Law Institute (ELI). This paper reflects her professional

view as an independent researcher.


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This paper aims to demonstrate that the international principle of Sustainable

Development, can lead to questions concerning developmental discourse and give rise

to concrete obligations that the State act in accordance with its Public Interest. This

principle is pivotal in situations where the State has the obligation to balance different

interests and rights at stake in the decision making process of such projects or activities.

This principle is, in our opinion, the international legal basis to oblige the State consider

the costs and benefits of such development projects, under a more egalitarian

hierarchy of rights to be protected. Setting a more integrated balance as a core goal is

the obligation of the Guatemala State, which already has articles in its Constitution

mandating prior consideration and evaluation of economic, human rights, and

environmental concerns.

In addition to this substantial right, the paper explores another international law

principle, the Precautionary Principle and its different interpretations in international

cases, with the idea to give the Guatemalan case some arguments to be constructed in

favor of shifting the burden of proof to the State and the company, as a possible

reinterpretation of the convention of placing the responsibility on the people to argue

damages, and reevaluate the States duties to implement measures to avoid risks in this

case. This principle is also already implemented in domestic legislation in Guatemala

through the Environmental and Social Impact Assessment. The paper argues that a more

flexible interpretation, has to be made to protect the peoples lives, their wellbeing, and

finally to reevaluate the public interest in the case.


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The conclusions seek to connect the obligations of the State under its national law to

evaluate integrally and with precision all the interests and rights around the project, also

giving opportunity to an international tribunal, such as the Inter-American Court, to

review the States compliance with its obligations, and setting new and relevant criteria

through the interpretation of environmental rights based on property rights and on

international principles of Sustainable Development and the Precautionary Principle.

1. In the name of Gold: 500 years of exploitation of humans and environment.

The first part of this paper starts with a critique of the old paradigm of Gold, under

which there is supposedly an inherent benefit to the world from its extraction, coming

from the times of the conquests, which allowed the people in power to find and keep

their power at great cost to the poor communities, leading the world to an unreasonable

imbalance and inequity, very closely related with the degradation of the environment

and violations of human rights.

2. Marlin Mine in Guatemala.

Secondly, the paper points out some of the human and environmental rights violations

committed in the Marlin Mine in Guatemala, showing discrimination by its patrons, the

costs and benefits of the project and its impact on the environment and in the people's

health, and how the government responded.

3. The Public Interest of Mining, and Integral Assessment.

Thirdly, according to domestic law, the investigation analyzes what are the elements the

State has to consider to grant a concession for mining, and what the idea of Public


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Interest implies. Arguing that the role of the State is to evaluate if the best conditions

have been met to allow the exploitation of minerals in the country, which is the result of

an integral assessment integrating the economic, social and environmental conditions at

stake.

4. International Law: Precautionary Principle Sustainable Development

After that, the paper explores and defined some International Environmental norms and

standards, particularly the Precautionary Principle and Sustainable Development and to

what extent they have been integrated into the corpus juris of Guatemala, and therefore

to what extent more advanced interpretations can contribute in the decision making

process, and whether Sustainable Development can be understood as, or linked to

Public Interest and as the best interest for the country.

5. Conclusions

And lastly the conclusions consider if the world can afford continuing with this endless

exploitation of natural resources with no integral assessment of the costs and benefits.

Reviewing the history, statistics, social and legal considerations, it examines whether it

is time to move on and change our vision of development, in other words, to implement

what is already an international principle of Customary International Law, that of

Sustainable Development, for the wellbeing of the international community and

therefore, for our present and future world.


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gold, the lord whom they love very much3. When the Spaniards finally arrived in

Cuba, they tortured the Indians until they were able to capture Atue. Before

being burned at the stake he was urged to die Christian and be baptized so he could go

to heaven where they eternally see God and rest. He said he did not wish to go there

because the Christians were there. Thereupon they set fire to the wood and burned him.

During the time of the colonies, it was unjustifiable but understandable why the local

government permitted the abuses and massacres committed by the conquerors. The

perpetrators of the crimes by dominating in the name of God (Gold) the newly

discovered territory became, by violent imposition, part of its ownership, so they

became the new authorities. But, after the independence of these countries and, even

with the formation of new democracies the abusive patrons remain the same, against

what is always the local people.

As is shown in more recent history, the United States of America after the American

Revolution claimed from the Indians the ownership not just over the lands but of its

resources declaring it had inherited all discovery claims of Britain as well as hegemony

over the Indian nations."4 Despite this, the new nation still committed heinous

massacres against Indians on US soil. Following the discovery of gold in California in

3 Ibidem pag 92, Atues Speech: Do you know why they persecute us[...] because they have a lord whomthey love very much and I will show him to you: (holds up basket full of gold) Here is their lord whomthey serve and adore. To have this lord they make us suffer, for him they persecute us, for him they havekilled our parents, brothers, all our people, and our neighbors and deprive us all our possessions. Forhim they seek and ill-treat us. As you have heard they come here now only to seek this lord. In order to

find him and extract him they will persecute us and annoy us as they have before in our own land.Therefore, let us dance and entertain this lord so when they come he shall order them not to do us anyharm [...]Let us not hide this lord from Christians in any place, for even if we hide it in our intestinesthey would get it out of us. Therefore let us throw it in the river under the water."

4 American Indians/American Presidents: A History. National Museum of the American Indian. CliffordE. Trafzer Chapter 2 . "Native nations in an age of western expansion, 1820-1880" Donna Akers (Author),Pag.


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1848, [...] the State government subsidized vigilante groups of miners and ranchers

who raided and terrorized Indian villages. The militia groups indiscriminately killed

Indian men, women and children, collecting bounties for harvesting scalps. Between

1845 and 1870 California's Indian population declined by 80%, from 150,000 to 30,000

people.5

Same story, a new player: Transnationals

Nowadays, one key stakeholder starts to play a significant role in the business of

the exploitation of gold, the transnationals, which with the local authorities support and

their complicity have been committing crimes against the local population. In recent

years, particularly important are, besides the common violations committed by them,

are the damages inflicted on the communities environments and their health as a

consequence of the dirty activity of mining. The motive of the commission of such

heinous crimes has been, as always, economic interest for the elite people, which seems

to prevail over everything, and be covered under the word development.

In our days, the so called benefit of Gold extraction needs to be questioned, especially

considering the current economic and environmental crisis the world is facing, The

Global Monitoring Report 2008 on progress towards achieving the United Nations

Millennium Development Goals 2008 marks the midpoint toward the 2015 deadline for

achieving the Millennium Development Goals (MDGs). The report finds that urgent

5 Ibidem Pag. XX "The new prospectors ruthlessly exploited Indian labor taking advantage of a state

law that allowed whites to force intoxicated men and orphaned children into indentured servitude Barredfrom testifying in courts against whites, California's natives had no legal recourse when whites assaulted,raped, or murdered their people


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action is needed to combat climate change that threatens the well-being of all countries,

but particularly of poor countries and poor people. It also emphasizes that the goals of

development and environmental sustainability are closely related and the paths to those

goals have important synergies (World Bank 2008).6

If the world continues with this tendency of unreasonable imbalance and inequity,

sustainable development cannot be reached. We are living in a time were many old

paradigms have been reconsidered and gold mining has to be included in this list.

Particularly the methods and the formulas implemented in countries with weak

democracies, like almost all the countries in America Latina. It is time to start the

reevaluation of what is the real contribution of this industry and who are the most

benefited, it is necessary to see the different uses of gold and if it is a legitimate

commodity or not.

Gold Demand

These statistics show that the world gold demand for the third quarter of 2011

(July, August and September of 2011) is as follows: As an investment, $25.6 billion

(44.4%), for Jewelry purposes $25.5 billion (44.25%), to use in Technology $6.6 billion

(11.4%), for Electronics devices $4.8 billion (8.3%), in other Industrial Processes :$1.2

billion (2.1%) and Dentistry, $0.6 billion (1.0%). With the total of Total: $57.7

billion. This is the Equivalent to over $230 billion for the whole year. The Gold price

6

Mary Ellen O Connell, Richard F. Scott & Naomi Roth-Ariaza. The international legal system. Casesand Materials. Foundation Press. 6th Ed. Oxford. 2010. pag. 554.


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has increased 6 fold in a decade7.

These numbers reflect that at least 88% of the total extraction is used as two non-

essential commodities: Investment and Jewelry. The groups who can benefit from the

first use: Investment are the richer elites classes around the world, they are just the one

percent who can afford to invest in Gold, to secure their money. In the case of Jewelry a

very broad population benefit from it, but its spread out and the benefit the average

people have from it is small. Besides, just as with the investment use, jewelry is not an

essential commodity, so, there is no real need for the population to explo it it, at least not

in the current excessive amount.

Gold vs. Water

A fundamental issue to consider in this reevaluation is that of water, which is

compromised by the mining process and now there is enough supporting evidence to

conclude that its availability for future generations is under risk. The targets for water

supply, and especially for sanitation, will be nearly impossible to reach.8

The process of mining requires a great amount of water, to the extent that some

assessments of this issue suggests that there might be a competition for water between

the communities supply and the mining company. Robert Moran a leading expert in this

issue expressed his concern about: the viability of sharing water resources between the

Marlin project and small farmers and residents of the area. Moran predicted competition

7 Article Gold Fever. Smithsonian Magazine . February 2012. Pag. 50

8 UNDP, 2008, UNFCCC 1992, WorldBank 2008.


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between the company and the local population, which will become worse during the dry

season. Part of the population has already complained about insufficient water since the

Montana Company began operations.9

Just the possibility of compromising to some extent the capacity of the well or the

hydrological basin to supply the communities demand is strong enough to severely

question the benefits for the country from these activities, especially with the

consideration that water is a limited resource and, according to recent studies, water

itself is at severe risk. The UN World Water Developmental Report of 2003 stated: Of

all the social and natural resource crises we humans face, the water crisis is the one lies

at the heart of our survival and that of our planet earth. 10

Violations of human rights and the Environment

In terms of social costs from the mining process, the human rights violations

have a core position. The level of complaints from the people living near by the mine is

among the highest around the world11. The most common damages caused by mining

activities are certain kinds of cancer, leukemia, miscarriages, genetic malformations and

other severe and destructive diseases (supported with enough scientific evidence) from

people exposed to water or the environment polluted by mercury and other heavy

metals. These extreme levels of risk necessitate very high measures to mitigate them.

9 Caracol Producciones, 2005, Sipakapa no se vende (Sipakapa is not forsale), Caracol Producciones, Guatemala (video documentary). Quoted in IPB. Peace BrigadesInternational. Metal Mining and Human Rights in Guatemala. Pag. 17.

10 World Water Developmental Report of 2003. Pag 282.

11http://www.minesandcommunities.org/ (Last view April 30, 2012)
http://www.minesandcommunities.org/http://www.minesandcommunities.org/


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Unfortunately the States and companies do not really comply with the standards and

regulations to handle this risk appropriately.

The test made by the experts in the Marling case shows the negligence of both the State

and the company to implement and monitor the associated risk of mercury and other

heavy metal leaks into water: Water in the tailings impoundment does not meet IFC

effluent guidelines. The EISA predicted that tailings water would meet IFC guidelines

during operation. However, water stored in the tailings impoundment exceeds IFC

effluent guidelines for pH, cyanide, copper, and mercury. Maximum concentrations

of cyanide, copper, and mercury measured in 2006 were over three, ten, and 20 times

IFC guidelines, respectively. Treatment is planned for tailings water discharged to the

environment, but treatment will not address leakage of contaminants to

groundwater.12

The consequences on vulnerable populations of the environmental effects, has been

documented Increased globalization of the worlds economy has placed special on

ecosystems, particularly those inhabited poor communities, and those continued in poor

nations that are populated largely by people of color and indigenous peoples. This is

especially true in the case of industries extracting resources such oil, timber, and

minerals.13

In nowadays, added to the acts of repression used by the governments to imposed the

12 E-Tech Releases Study on Water Quality at Goldcorps Marlin Mine. Available at http://

www.etechinternational.org/082010guatemala/prbaseeng_asm.pdf(Last view April 30, 2012)

13 The Quest for Environmental Justice by Robert D. Bullard c. 2005
http://www.etechinternational.org/082010guatemala/prbaseeng_asm.pdfhttp://www.etechinternational.org/082010guatemala/prbaseeng_asm.pdfhttp://www.etechinternational.org/082010guatemala/prbaseeng_asm.pdfhttp://www.etechinternational.org/082010guatemala/prbaseeng_asm.pdf


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projects, there are enough proofs about the damage to the environment and human

health caused by this projects, which effects constitute human rights violations,

Particularly relevant is the violation of procedural rights14 (Information and

consultation) to the affected people in the decision making process. In addition to the

right to information, the public is also given broad rights of participation in decision-

making and access to remedies for environmental harm15

There are hundreds of cases around the region. In 2005 a report to the Peruvian

Defensora del Pueblo (Ombudsman's Office) recorded thirty-three separate conflicts

related to mining (Ormachea, 2005).16 Meanwhile in Honduras, in 2008, in San

Martin, the mine left dozens of people (adults and children) with higher levels of lead

in the blood and serious illness, the land and water polluted and no remedy neither for

medical treatment nor for the environment, being condemn there, and the next

generation, to die for the pollution caused by Goldcorp in their territory 17.

14 Its relevant to mention that both Environmental Conventions and Human Rights Treaties oblige theState to inform and consult the people in the decission making process. See Stockholm Convention, RioDeclaration, American Convention on Human Rights, Convention ILO 169.

15 Dina Shelton. Human Rights, Health & Environmental Protection in Yearbook of Human Rights &Environment. Vol. 6-2006, P. 235.

16 Anthony Bebbington and others. Mining and Social Movements: Struggles over livelihood and rural

territorial development in the Andes. University of Manchester, 2008. pag. 4.

17http://rightsaction.org/articles/Honduras_gold_cost_050911.html


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2. Marlin Mine in Guatemala.

Mining is not appropriate for the country-Guatemalas Cardinal, 2008

An issue of discrimination

The case of the Marlin Mine in Guatemala is one of the worst experienced in

recent times, its area of influence put at risk the physical lives, integrity and cultural

traditions of thousands of indigenous Maya people. Goldcorp behaved consistent with

the tradition of discrimination, establishing these dirty projects in less developed

countries affecting poor communities and their environments 18. Just as Lawreence

Summers in 1991 stated in a confidential memo: Dirty industries, just between you

and me, shouldnt the World Bank be encouraging the migration of MORE of the dirty

industries to the LDCs (Less Developed Countries)19. If there is a doubt, please

consider how often we hear about problems with mines in developed nations?

Costs and Benefits

The Marlin mine perfectly reflects the imbalance and disproportion between its

costs and benefits. The Global Development and Environmental Institute of Tufts

University analyzed this relationship between the long-term environmental impacts and

the economic benefits, concluding The environmental risk the Marlin mine poses to

local communities is exceptionally high and likely to increase over the remaining life of

18 Increased globalization of the worlds economy has placed specially on ecosystems, particularly thoseinhabited poor communities, and those continued in poor nations that are populated largely by people ofcolor and indigenous peoples. This is especially true in the case of industries extracting resources such

oil, timber, and minerals. FromThe Quest for Environmental Justice by Robert D. Bullard. c. 2005.

pag. 280.

19 Ibidem pag. 285


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the mine and in the post-closure phase. [...] The Marlin mine is contributing little to

long-term sustainable development in Guatemala. Little of the royalty and tax revenue

generated from the mine has been invested in public goods such as health, education

and infrastructure, which could contribute to economic activities beyond the mine and

after the mine has closed.20.

Environmental and Health related impacts and the role of the State.

Guatemalas communities have experienced various human rights violations -

from the beginning of its activities of exploration by Montana Exploradora, a

subsidiary of Goldcorp. Since 2005, community members started to denounce the

violations of their rights. For instance the project was done with nor prior information

nor consultation, their houses were damaged and ruined by the explosions of the mine

and more delicate are the health damages manifesting in skin and respiratory problems.

Probably the most serious issue is about the toxicity found in members of the

community, as the report of experts stated: individuals residing closest to the mine had

significantly higher levels of certain metals (urinary mercury, copper, arsenic, and zinc)

when compared to those living further away. [...] In the ecological study, several metals

(aluminum, manganese, and cobalt) were found significantly elevated in the river water

and sediment sites directly below the mine when compared to sites elsewhere. When the

human and ecological results are combined, they suggest that exposures to certain

20 Searching for Gold in the Highlands of Guatemala: Economic Benefits and Environmental Risks ofthe Marlin Mine Report Fact Sheet. Pag. 3


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metals may be elevated in sites near the mine but it is not clear if the current magnitude

of these elevations poses a significant threat to health. The authors conclude that

more robust studies are needed while parallel efforts to minimize the ecological

and human impacts of mining proceed. This is criticalparticularly as the impact of

the exposures found could be greatly magnified by expected increases in mining

activity over time, synergistic toxicity between metals, and susceptibility for the

young and those with pre-existing disease21

In response to the multiple complaints from the people, especially related with health

issues, the Ministry of Energy and Mining, within a criminal investigation22 concluded

that there is no evidence of contamination23 of the water samples from the results of

the laboratory studies. To the contrary, the international organization Physicians for

Human Rights and scientists of the University of Michigan tested a sample of the

population in the area of influence, finding higher levels of mercury, copper, arsenic and

zinc in their urine, and of lead in their blood24. It is remarkable that the inhabitants

tested in Guatemala resulted with higher levels than normal just like the inhabitants of

Honduras, affected by the mine San Martin operated by the same company: Goldcorp.

21 A combined ecological and epidemiologic investigation of metal exposures amongst Indigenouspeoples near the Marlin Mine in Western Guatemala. http://www.sciencedirect.com/science/article/pii/S0048969710010442 (Last search April28, 2012)

22Case #1227-2007: Mara Eugenia Solis de Garcia vs. Montana Exploradora de Guatemala. FiledDecember 19, 2006.

23 Overview of Legal Cases involving the Marlin Case in Human Rights Assessment of GoldcorpsMarlin Mine | On Common Ground Consultants. Pag. 1.

24 Press Release from Mining Watch Canada of May 24, 2010. http://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala. (Last view April27, 2012)
http://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.sciencedirect.com/science/article/pii/S0048969710010442http://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.miningwatch.ca/oas-human-rights-commission-urges-suspension-mining-activity-goldcorps-marlin-mine-guatemala.(Lasthttp://www.sciencedirect.com/science/article/pii/S0048969710010442http://www.sciencedirect.com/science/article/pii/S0048969710010442http://www.sciencedirect.com/science/article/pii/S0048969710010442http://www.sciencedirect.com/science/article/pii/S0048969710010442


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Another response from official authorities, was from the Ministry of Public Health

and Social Assistance through the investigation process handled by the Human Rights

Ombudsman presented by Colectivo Sierra Madre in 200625, simply criticizing the

Flavio Bianchinin Report, supportive document of the action, rather than investigating

and monitoring whether the environmental norms were being respected by the mine and

its actions were well implemented26. As the protection of health of the Guatemalan

people is among the explicit responsibilities of this Health Ministry27, it is very unusual

and its lack of participation in the decision making process prior to the State granting

the mine concession could be illegal, considering that highly toxic chemical pollutants

like mercury are involved in the process, and they are considered among the greatest

risks for human beings around the world28.

Social Protest Incrimination

Finally and consistently, supporting the activities of the mine, even against the

best interests of its people, the State of Guatemalas General Prosecutor, initiated by a

petition of the Exploradora Montana, started a criminal investigation against some of

the protestors started, resulting with at least two people in prison. The mine is still in

operation.

25Criminal action submitted to the Human Rights Ombudsman (Procuradora de Derechos Humanos) byColectivo Ecologista Madre Tierra. Case #ORD.GUA 1453-2006/DESC: Filed on December 6th, 2006.Overview of Legal Cases involving the Marlin Case in Human Rights Assessment of Goldcorps

Marlin Mine | On Common Ground Consultants. Pag. 2.

26 Art. 39, paragraphe c of the Guatemalan Excutive Entity Law (Ley del Organismo Ejecutivo)

27Art. 39 a Guatemalan Executive Entity Law

28 An estimated 40% 9of deaths around the world can be attributed to various environmental factors,especially organic and chemical pollutants. In The Quest for Environmental Justice by Robert D.Bullard. c. 2005. pag. 286.


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Preliminary Conclusions

In sum, there is no evidence of concrete steps taken by the State to avoid the harm on its

population, in such a high risk activity such as mining, complying with its duty to

protect the rights of the population. It is extremely important to highlight that even

though the results from external experts showed higher concentrations of heavy metals,

sources of extreme pollution and negative effects on health, the official response

completely dismissed these results, with no consideration of the risk involve and no

consideration of the precautionary principle which obliges the State to shift the burden

of proof from the public to the company, because their action was responsible for risk.

Instead, the States lack of action against the alleged harm on health did not consider

that the precautionary principle means precisely: Where an activity raises threats of

harm to the environment or human health, precautionary measures should be taken even

if some cause and effect relationships are not fully established scientifically. In this

context the proponent of an activity, rather than the public bears the burden of the

proof29.

3. The Public Interest of Mining and Integral Assessment

The domestic law of Guatemala already obliges the State to do a social and

environmental impact assessment to consider the costs and benefits of these kind of

29Mary Ellen O Connell, Richard F. Scott & Naomi Roth-Ariaza. The international legal system. Casesand Materials. Foundation Press. 6th Ed. 2010. pag. 575


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projects, looking for the best interest of the country, considering the social, economic

and environmental factors, which is what Sustainable Development is about.

Article 125 of the Guatemalan Constitution establishes the standard of public utility

and need for the exploitation of natural Non-renewable Resources such as minerals: If

the technical and rational exploitation of hydrocarbons, minerals, and other non-

renewable natural resources is declared to be of public utility and need, the State

establishes and facilitates its own conditions for their exploration, exploitation, and

commercialization. In accordance with this fundamental principle, if Guatemala wants

to exploit minerals like gold, it has to meet that standard.

In consideration of the interrelation and interdependence of the different human and

environmental rights at stake, which protect fundamental values like peoples health and

life, development, culture and territory as well as ecological balance, preservation of

forest and biodiversity, protection and public use for water, determining the public

necessity has to be the result of an integral assessment considering the economic

(royalties, taxes and employment), social (human rights) and environment protection.

This interpretation is also based upon article 121 of the Guatemalan Constitution

establishing the ownership of soil and subsoil by the State, therefore, this ownership is

given to the people of Guatemala, represented by the State, so the minerals and its

benefits belong to the public"/>, and this is why the State has to analyze all those factors

"/>


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prior to granting the permission of such activities, if the public interest conditions are to

be met.

Accordingly, the State shall evaluate the costs and benefits coming from the exploitation

of its minerals, based upon what its laws establish in terms of mining, environmental

protection, human rights, indigenous populations and foreign investment.

The mining law (Decree 48-97)

The motive expounded by the Law Decree 48-97 (Mining law) accepts that mining is

declared to be for public interest and need, stating: The Political Constitution of the

Republic of Guatemala, Article 125 declares that the technical and rational exploitation

of hydrocarbons, minerals and other non-renewable natural resources is in the

public interest, entrusting to the State to sponsor the necessary conditions for their

exploration and exploitation.30, its Article 7 unusually establishes that the exploitation

of minerals is itself a Public Need and Utility. It is apparent that the State has an

obligation to assess and weigh whether the public interest is met. Anyway, in its second

part it alludes to the rational exploitation.

The mining decree has other norms which run against the goal of the public interest and

prioritize the interest of the mining investors, over the interest and obligation of the

State. For instance in Article 20 related to the Environmental Impact Study, establishes

thatt if after 30 days from the submission of the EIA, the government has not responded

30 Mining Law, Motives Exposition available at http://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdf( Last View May 1st, 2012).
http://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdfhttp://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdfhttp://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdfhttp://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdfhttp://www.mem.gob.gt/Portal/MEMDocuments/DGM/Ley/mining%20law%20and%20its%20regulation.pdf


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it will be taken as accepted.

And finally article 6 establishes, again running against the public interest, the lowest

royalty payment which can be imagine, 1% from the total of the extraction.

Human rights and Indigenous Populations

The Constitution recognizes the States obligation to protect and respect the

human rights recognized in it. The first relevant and violated right in the case of Marlin

Mine, is the information and consultation right, under the Constitution of Guatemala the

State is obliged to make a referendum for the most significant projects.31

Section III of the Constitution recognizes the States obligation regarding the

Indigenous Populations, basically set out in just three sections, related to the protection

of indigenous cultures and traditions, their lands, and communal lives.32

Specifically, important to this case, is the right of health recognized in article 93 and

considered by article 95 as a Public Asset. This is the legal basis, in connection with the

31 Article 172, paragraph 1. All political decisions of transcendental importance must be subjected to themechanism of a popular referendum

32 Article 66. Protection of Ethnic Groups. Guatemala is made up of various ethnic groups among whichare native groups of Mayan descent. The State recognizes, respects, and promotes their form of life,customs, traditions, forms of social organization, the wearing of Indian dress by men and women, theirlanguages, and dialects.Article 67. Protection of Indigenous Agricultural Lands and Cooperatives. The lands of the cooperatives,native communities, or any other forms of communal possession or collective of agrarian ownership, aswell as the family heritage and popular housing will enjoy the special protection of the State, preferentialcredit and technical assistance, which may guarantee their ownership and development in order to insure

an improved quality of life to all inhabitants.


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previous constitutional mandates, for the States obligation to do the impact assessment,

considering the risk to the health of the surrounding populations.

Investment

Guatemala State has not met the test of investment. There was no economic

assessment prior to granting the permission. Moreover, with no shame the State has

declared that the authorization of the mining is for the development of Guatemala

without offering any economic development assessment on which to base this assertion.

Besides, the State did not require the company to consider, in its impact assessment, the

local economies and sources of that economy, particularly water, land and soil, of the

populations that can be harm by the mining33 .

Environment Sustainable Development

With regard to environmental protection, the Guatemalan Constitution

practically inserts in its text the main elements of Sustainable Development,

expressing, Environment and Ecological Balance [:] The State and the inhabitants are

obliged to favor social, economic and technological development [] that prevents

contamination of the environment and maintains the ecological balance.34

33 Montanas Environmental and Social Impact Assessment, or ESIA (MEG 2003), has largely ignoredsome of the most important and until now by far the most pervasive (wide-ranging) effects of the Marlinmine, namely the projects social, economic and cultural impacts in the indigenous municipalities of San

Miguel. International Peace Brigades. Mining Conflicts and Indigenous Peoples in Guatemala. Pag 31

34 Constitution of Guetamala. Article 97.


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The afore mentioned features must be considered, reflecting the Guatemalan duties to

exploit the minerals if there is a public interest or need, protecting the environment, and

respecting the rights of the people. The three elements have to be balanced, considering

also Article 97 of the Constitution, which establishes the obligation of the State to

pursue Development in harmony with the environment, The State, municipalities and

the inhabitants are obliged to favor Social, Economic and Technological Development

that prevents contamination of the environment and maintains Ecological Balance.

After this analysis, it becomes clear the States obligation to pursue, not just

Development for the country, but Sustainable Development, which means its obligation

is to balance and assess the costs and benefits of its activities, considering the respect

for human rights, the respect for the environmental norms and standards and the

economic needs of the country.

This idea of balancing the integration of the different rights and needs of the actors in

the environmental situation or conflict, through the decision making process, has been

the main reasoning of the European Court of Human Rights, in the majority of the

judgments related with environmental issues, specifically when the case is against an

infraestructure or public service.35

Finally, even if the State of Guatemala has the sovereignty to decide whether to exploit

or to grant licenses to third parties to exploit the minerals, the State is also

internationally obliged to comply with international environmental norms, if its acts can

35 See Fritzmaurice and Marshall. Nordic Journal of International Law 76 (2007).


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cause harm in the ecological balance, as this is an interest shared by the international

community 36.

4. The International Law: The Precautionary Principle Sustainable Development.

The Precautionary Principle:Shifting the burden of proof for damages to the Company.

The legal basis of this Principle was set out for the international community in

1992 as a soft law norm: As a way to protect the environment, the environmental

approach shall be widely applied by States according to their capabilities. Where there

are threats of serious or irreversible damage, lack of scientific certainty shall not be used

as a reason for postponing cost-effective measures to prevent environmental

degradation.37

Internationally, the principle has been invoked by states supporting arguments within

their disputes before the World Trade Organization (WTO), the International Tribunal

for the Law of the Sea (ITLS) and the International Court of Justice (ICJ). Some

scholars considered that While the WTO and ITLOS have increasingly accepted the

precautionary principle in matters of international environmental law, the ICJ has

36 The international concept of common concern does not connote specific rules and obligations, butestablishes the general basis for the concerned community to act. Designating a matter as one of commonconcerned removes the topic from states exclusive domestic jurisdiction and makes it a legitimate matterfor international regulation. The conventions cited above thus imply a global responsibility to conservedisappearing ordiminishing wild fauna and flora, ecosystems, and natural resources in danger in Guideto International Environmental Law. Alexandre Kiss and Dina Shelton. Martinus Nijhoff Publishers.

2007. Pag. 14.

37Principle 15 Rio Declaration on Environment and Development (1992)


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contemporary international law (I.C.J. Reports 1995, p. 290, para. 5)40.

While in 1997 Hungary argued before the I.C.J41, as an excuse to breach the agreement

with Slovakia, the doctrine of necessity, concerning of potential damage for the

Danube River as a result of building a dam on it. The Court did not consider it, because

it wanted to see an imminent danger, and no evidence of risk were submitted by

Hungary. Even though in its consideration it accepted the importance to protect the

environment and the fundamental role of the principle of Sustainable Development,

expressed in this terms: Th roughout the ages, mankind has, for economic and other

reasons, constantly interfered with nature. In the past, this was oft en done without

consideration of the effects upon the environment. Owing to new scientifi c insights and

to a growing awareness of the risks for mankindfor present and future generationsof

pursuit of such interventions at an unconsidered and unabated pace, new norms and

standards have been developed, set forth in a great number of instruments during the

last two decades. Such new norms have to be taken into consideration, and such new

standards given proper weight, not only when States contemplate new activities but also

when continuing with activities begun in the past. This need to reconcile economic

development with protection of the environment is aptly expressed in the concept

of sustainable development.42

40 Separate Opinion. Uruguay v. Argentina. Pulp Mills Case. Pp 19 and 20. http://www.icj-cij.org/docket/files/135/15885.pdf(Last view April 29, 2012).

41Gabckovo-Nagymaros Projectcase (Hungary v. Slovakia, Judgment of

25 September 1997).

42ICJ.Hungary v. Slovakia, Judgment of September 25, 1997. pag. 78.
http://www.icj-cij.org/docket/files/135/15885.pdfhttp://www.icj-cij.org/docket/files/135/15885.pdfhttp://www.icj-cij.org/docket/files/135/15885.pdfhttp://www.icj-cij.org/docket/files/135/15885.pdfhttp://www.icj-cij.org/docket/files/135/15885.pdf


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And finally in the Pulp Mills case, the I.C.J. decided that there was not enough evidence

provided by Uruguay proving the alleged damage to the people and the environment.

Concerning the overall interpretation of the ICJ about the principle, it is worth quoting

again former Judge Cancado Trinidade to the fact that the Court has not expressly

acknowledged the existence of this general principle of International Environmental

Law does not mean that it does not exist43.

While the interpretation is not uniform about the principles enforcement, scholars

conclude that it is fundamental to implement it [w]here an activity raises threats of

harm to the environment or human health, precautionary measures should be taken

even if some cause and effect relationship are not fully established scientifically. In

this context the proponent of an activity, rather than the public bears the burden of

proof44.

Despite the fact that It is cited in over 50 treaties of other instruments, including those

involving ozone depletion, climate change, biosafety, biodiversity, and persistent

organic pollutants as well as many regional instruments45, there is no international

consensus whether it can be considered a Customary International Law, but undoubtely

it is an international legal principle, and states face the obligation to implement it46

43 Separate Opinion,Pulp Mills Case. pag. 20.

44Mary Ellen O Connell and others. Op. Cit. pag. 575

45 Mary OConnell. Pag. 578

46 David Freestone. The precautionary Principle and International Law. pag. 73


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Nationally, the States have implemented the Precautionary Principle through the

domestic codification of its main procedure: the Environmental Impact Assessment

(EIA) in federal and state laws47.

Unfortunately, the Guatemalan State refused an interpretation in favor of more

protection to the environment and the people, shifting the burden of proof to Montana

Exploradora, in response to the complaints of the members of the communities. Instead,

the authorities decided to maintain the burden of proof on the affected people,

manifesting that there is a lack of evidence. This standard is truly illegal because it is

not considering its obligation to the people, as State to protect the populations and their

wellbeing in harmony with the Constitutions obligation to evaluate the public interest,

balancing the rights and needs of the State and the affected population and environmnt

in light of other international duties, like the duty to protect and guarantee the rights.

When Guatemala refused to take any action against the mining company, it did not use

the best interpretation made by some States in the international community. Worse,

Guatemala completely ignored its responsibility to protect the population and the

environment and therefore the right of Sustainable Development.

47 The principle of precautionary action may be regarded as requiring that states, incorporate, amongothers, environmental impact assessment (EIA), procedures in national planning and legislation in DavidFreestone and Hellen Hey. Pag 71.


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Sustainable Development

Since international environmental law started to be codified, even with its first attempts

through soft law, with the Stockholm Protocol in 1972, there was a movement against it,

holding the development flag, States and Non-States actors were opposed to this new

common concern for humanity. Since then, the opposition has not diminished but

increased, especially within the investment sector. It has been obvious that protecting

the environment is a big threat for many business activities.

The international community, throughout its history has developed common principles

to protect its main concerns as organized States, among these is the Principle of the

Common Concern of Humanity. The right to development as thus refined is clearly

part of modern international law. It is compendiously referred to as sustainable

development.48

The duty to protect the environment, is a well-established principle in every country,

reflected by laws, cases, and institutions to enforce it, as well as concrete actions.

[W]hen a duty such as the duty to protect the environment is so well accepted that all

citizens act upon it, that duty is part of the legal system in question. Moreover, when the

Statute of the [International Court of Justice] describe the sources of international law as

including the general principles of law recognized by civilized nations it expressly

opened a door to the entry of such principles of modern international law49

48 Mary Ellen O Connell and others. Op cit. pag. 566

49 Ibidem. Pag 569.


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Sustainable Development is a core principle and gives content to the States duty to

protect the environment in harmony with the sovereignty rights of the State to exploit

their natural resources and pursue its economic development. Sustainable Development

is a principle based on fairness and equality of rights, because it is concerned not just

with the needs of the present generation, but the third generations rights and needs as

well50. Besides its substantive elements just mentioned, Principles 10 to 17 of Rio

Declaration developed its two basic procedural elements: public participation in the

decision making process, and environmental impact assessment51.

Sustainable Development is an international principle which, in our opinion constitutes

Customary International Law, because its vision to protect the resources to be able to

fulfill the needs for present and future generations, and its two procedural elements have

been integrated into national law, almost in every country around the world.

The UN Conference of the Environment and Development created two documents, the

Rio Declaration, which formally founded the global vision of Sustainable Development,

and Agenda 21, an action plan. Agenda 21 pays particular attention to national

legislation. It makes frequent reference to national laws, measures, plans, programs, and

standards. Chapter 8, Integrating Environment and Development in Decision Making,

advocates the use of legal and economic instruments for planning and management,

with incorporation of efficiency criteria in decisions [...]

50 The equitable allocation of resources both within the present generation and between present andfuture generations (Intra and Inter Generation Equity) at International Law and Environment by Patricia

Birnie, Alan Boyle and Catherine Redgwell. 3rd Ed. Pag. 116.

51Ibidem.


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Sustainable Development is a policy principle already integrated in Guatemala

legislation the and is the only way to fairly integrate the cost and benefits and all the

rights and needs involved in such questionable activities and projects like mining,

through the decision making process with the consult of the affected people and shifting

the burden of proof to the companies.

With the shift of the burden of proof, ideally the State will continue allowing mines and

activities which potential damage to the environment has been dismissed. Otherwise, if

they are some damages which can destroy the capacity of the natural resources for

future generations to enjoy for themselves, for instance the pollution of a basin, or the

pollution by heavy metals leaching into a basin or a river, there would be no possibility

of authorizing such projects, knowing the irreversible destruction that damages will

have in the environment and in the peoples health, life and quality of life.

The balance current balance made in the present equation results in environmental

destruction for Guatemala and peoples harms and violations of rights, for an economic

benefit for some already multimillionaire stakeholders, a wealthy elite who can invest in

gold to get even richer, without any social demonstrable benefit.

5. Conclusions

1. The Guatemalan State did not comply with a fair internal process to balance the

rights: environmental, social and civil rights of the community, and the rights of

the community as a whole, for pursuing economic wellbeing. Moreover, the


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State even neglected to do a serious and complete economic assessment to probe

the economic benefit for the State of Guatemala by the exploitation of the mine

by Goldcorp. As a consequence of that, the State of Guatemala violated Article

97, 125 about the obligations of the State to pursue the Public Interest when

extracting and exploiting minerals and protecting the ecological balance.

2. In balancing the interest, needs and rights at stake, Guatemalan has to rely on the

best and most favorable international interpretation of the substantive

environmental rights to the community and its precautionary approach, as well

as the civil and political rights of the potentially affected communities in the

decision making process through prior and informed participation.

3. Customary International Law establishes the right of affected communities to be

informed and consulted in the decision making process. Hence, as this did not

happen, the communities can file a constitutional action before the Supreme

Court to reconsider this violation. In case of an unfavorable decision, the

communities have legal standing to file the case before the International

Commission on Human Rights.

4. The right to Sustainable Development is a substantial right under Customary

International Law, which obliges the State to study the economic, social and

environmental impacts of the project and, decide in accordance with the public

interest of the country, which follows what the Guatemalan Constitution has

established.


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5. The precautionary principle shifts the burden of proof to the State and to the

company responsible for the risks and damages. Therefore, the affected

communities can filed a Constitutional action before the Supreme Court to

challenge the concession granted by the Minister of Mines and Energy, as well

as the decisions which dismissed the communities prior complaints for lack of

evidence or lack of contamination. In which case, the State has the duty to

respond to the Court, providing enough evidence of the studies already made

and its analysis of risk, based upon the studies provided by Golcorp, proving to

the court that the evidence they have clearly demonstrates the measures they

have taken have eliminated risk.

6. In the future, the State have to exercise its obligation with regard to risk and

precaution properly, effectively shifting the burden of proof to the TNCs. This

means that they have to prove, prior to the authorization of the project, that there

is no risk or harm caused by its activities, or if there is any, that they are ready to

act and mitigate it.

7. Considering the history and the outcomes of the exploitation of Gold and the

real risks in resources and peoples represents, the international community has

the obligation to work together and make a global assessment about the

necessity of its exploitation in the actual terms, established a coherent cap and

social and enforceable obligations concerning the civil and social rights. The

technology of globalization can serve to these ends, sharing information about


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the past damages in countries, companys name, location, and at least the type of

technology they use in their processes, with a sanction for the company and a

remedy for the communities and the environment.