William Bewick

Part 1. Introduction

Throughout the world, from the jungles of Colombia to the mountains of West Papua,
marginalized minority populations are suffering from grave human rights abuses
committed by multinational enterprises (MNE’s) involved in resource extraction. Many
developing States depend on the capital and technological expertise of multinational
companies to take advantage of their natural resources. However, weak or corrupt States
often fail to fulfill their duty to protect and ensure the rights of the communities affected
by powerful resource extraction companies. The international human rights law
framework, which relies almost exclusively on States to protect their own citizens, is thus
also failing these communities.

MNE’s are large and powerful international actors, capable of inflicting serious human
rights abuse where they operate. They yield a disproportionate amount of influence on
governments and the international financial institutions that many governments depend
on to maintain stable economies. The current framework for imposing accountability on
MNE’s for human rights abuses is deficient.

This is particularly true in respect to multinational extraction companies. Mining

companies, energy companies, as well as logging and palm oil companies are by their
very nature more likely to be involved in human rights abuses. Business activities that
have a direct impact on land and water resources have a far-reaching sphere of influence.
This means that the potential for human rights abuses is greater and longer lasting, with
consequences that affect the very core of communities’ livelihoods. In the last few
decades, most major extraction projects have been carried out in developing countries by
MNE’s incorporated in the developed world. New discoveries of valuable metals and
energy resources tend to be in remote regions of these countries that are inhabited by
marginalized indigenous populations. High global demand for palm oil, for which large
tracks of equatorial rain forest are cleared, has put further pressure on communities living
in remote areas.

The indigenous populations occupying areas containing valuable resources face a

protection dilemma. Often historically ignored or exploited by their government,
marginalized communities have to rely on the on the natural resources where they live for
survival. Additionally, the land that provides them with the resources to survive often
carries great cultural and religious significance. However, marginalized indigenous
communities face tremendous obstacles if they attempt to protect their land and rights
from the incursions of MNE’s. Without financial capital or established associations with
mainstream society, it is difficult to utilize national judicial mechanisms. It is also very
difficult for marginalized indigenous populations to access information, rendering them
more likely to fall victim to disingenuous extraction companies who use moral and
legally questionable methods to gain rights to territory.

Compounding these disadvantages in confronting multinational extraction companies is

State collaboration or complicity in abuses by MNE’s. Developing States are often eager
to profit from natural resources that can be extracted from remote regions. Lacking the
 William Bewick

technology and capital to carry out the projects on their own, States provide political
cover and security for extractive MNE’s, placing more importance on profitable
extraction of resources than protecting a marginalized minority population. Therefore,
marginalized indigenous communities face the twofold problem of lack of access and
resources to protect their rights as well as State participation and/or complicity in the
abuse of their rights.

My paper will examine the protection gap in international human rights law that
marginalized communities face when their rights are violated by MNE’s. Using the
protect, respect, and remedy framework identified in the report of the Special
Representative of the Secretary-General on the issue of human rights and transnational
corporations and other business enterprises, John Ruggie, I will examine some of the
institutional flaws in the present protection regime. In the second part of the essay I will
apply an ongoing case study to the business and human rights protection dilemma, and
then examine integrated protection strategies. Two marginalized populations that
historically inhabit the Choco region of Northwest Colombia—the indigenous Embera
people and Afro Colombians—are engaged in a struggle to protect their land against two
large multinational extraction companies, Rio Tinto and Muriel Mining Corporation. The
Embera and Afro-Colombian communities in El Choco lack both resources and access to
remedy. They also struggle against State complicity. In fact, the Colombian government
is actively partnering with the MNE’s. Therefore, these communities are without state
protection or resources in their battle against large MNE’s. They have, however,
developed innovative and integrated human rights protection strategies.1

Part 2. Gaps in Protection

I. The State Duty To Protect

The first core principle identified by the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and other businesses is the
State duty to protect against human rights abuses by third parties, including business.2

Traditionally, nation states have obligations to respect, fulfill and protect the human rights
of their citizens. The United Nations Charter states that the United Nations is ‘based on
the principle of sovereign equality of all its members’. 3 This framework is problematic
given the realities of the global economic system and the widespread failure to States to
protect the rights of their own citizens. People who suffer from human rights abuses by
MNE’s are largely at the mercy of their own governments when seeking protection. In
situations where the State is complicit or participating in abuses, victims are left
1
From 19 June through 3 July I traveled through the Jiguamiando and Curbarado valleys in the Bajo
Atrato region of El Choco with the assistance of the legal organization Comision Intereclesial de Justicia y
Paz (Justice and Peace Commission). I interviewed community leaders and members in seven
communities that would be affected by a proposed mine by Rio Tinto and Muriel Mining Corporation. I also
interviewed representatives from Muriel Mining Corporation in Colombia, Justice and Peace lawyers,
government members and NGOs in Bogotá.
2
UNCHR ‘Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie’ (7 Apr 2008) UN Doc A/HRC/8/5
3
United Nations, Charter of the United Nations, 24 October 1945. 1 UNTS XV (UN Charter) art 2
 William Bewick

unprotected.

State parties who have ratified the UDHR and subsequent human rights treaties are
required to report on their own progress of implementing the provisions to treaty
monitoring bodies. The treaty bodies can choose whether or not to make comments. The
comments are non-binding, and there is no substantive recourse to states that do not
comply.4 Individuals who live in states that are parties to the additional protocols of the
International Covenant of Civil and Political Rights (CCPR), The Convention on the
Elimination of All Forms of Racial Discrimination (CERD), the Convention Against
Torture (CAT), and the Convention on the Elimination of All Forms of Discrimination
Against Women (CEDAW) may, under certain circumstances, submit complaints to the
treaty bodies. Individuals must first attempt domestic remedy and decisions are non-
enforceable.5 Nothing that the Human Rights Committee has said after examining state
reports has gone beyond asserting that the CCPR must prevail if in conflicts with existing
law.6 The European human rights system and the Inter-American human rights system
have developed more effective and more enforceable mechanisms for individual
complaints,7but they only apply to individuals living within their jurisdiction and still rely
on the State for enforcement.

Instruments relevant to the behavior of MNE’s that have international legal force, such as
ILO labour standards, the Convention on the Elimination of All Forms of Discrimination
Against Women, and the OECD Anti-Bribery Convention and United Nations
Convention Against Corruption, also impose those obligations on States, not on the
companies, including any obligations that States prevent private actors from violating
human rights.

The problem with this State-based system of international human rights enforcement,
developed largely prior to the era of globalization, is that is does not account for the
power and influence of MNE’s, particularly on weak or corrupt States. In today’s world, a
variety of actors for which the territorial State is not the organizing principle have come
to play significant public roles. This is particularly true in the realm of trade and
economics. At least 70,000 transnational firms, together with roughly 700,000
subsidiaries and millions of suppliers span every corner of the globe. 8 Many of these
MNE’s wield an enormous amount of influence in areas of employment, resource
management and security. According to the UN’s World Investment Report 2003, the
largest 100 companies own about US 1.7 trillion in foreign assets—one fifth of the
estimated global total.

Developing States are dependent on foreign capital and technology to develop their own
4
Z. Kedzia, ‘United Nations Mechanisms to Promote and Protect Human Rights’ in J Symonides (ed),Human Rights: International
Protection, Monitoring, Enforcement (UNESCO 2003) pp. 29-33
5
Ibid. pp. 69-74
6
Christian Tomuschat, Human Rights: Between Idealism and Realism (OUP 2003) p. 100
7
D Shelton Mechanisms in International Human Rights Law (2nd edn OUP 2005) pp 189 – 219..
8
See http://www.unctad.org/Templates/webflyer.asp?docid=6087&intItemID=3489&
lang=1&mode=toc.
 William Bewick

resources. Trade deficits that accrued throughout the 70s, 80s, and 90s have made it
difficult for developing countries to control and manage the exploitation of their own
resources. Desperate to attract investment, poor countries often relax standards to make it
more profitable for MNE’s to operate in their territory. Concessions awarded to extraction
companies commonly bypass environmental standards award long contracts with
stabilization clauses9 that prevent new legislation that might serve to protect human or
environmental rights from applying to MNE’s.10

Conversely, more than 2,500 bilateral investment treaties provide legitimate protection to
foreign investors, going so far as to allow investors to take host States to binding
international arbitration, including for damages allegedly resulting from legislation
drafted to improve domestic standards.11These agreements serve to further augment
corporate power.12 A European mining company operating in South Africa recently
challenged that country’s black economic empowerment laws on these grounds.13

The State is therefore in a critical position, serving as the nexus between facilitating
economic development and protecting the human rights of it citizens. However, in
today’s global economy, States depend on international investment for jobs and
infrastructure. This means that the State has the added responsibility of protecting its
citizens against abuse by 3rd parties, notably MNE’s. However, as the hundreds of
accusations of corporate abuse of human rights attest, States are not living up to this
responsibility.

In his 2006 report, the Special Representative surveyed allegations of the worst cases of
corporate-related human rights harm. They occurred, predictably, where governance
challenges were more prevalent such as low-income countries, countries that often had
just emerged from or still were in conflict, and in countries where the rule of law was
weak and levels of corruption high. A significant fraction of the allegations companies
being complicit in the acts of governments or armed factions. 14 The Special
Representative of the Secretary-General surveyed 65 instances recently reported by
NGOs in 27 countries.15 They mainly occurred in low-income countries or on the low
side of the middle-income category. Moreover, nearly two thirds of them either recently
emerged from conflict or still are in it. Lastly, weak governance characterizes these
countries. On a “rule of law” index developed by the World Bank, all but 2 of the 27 fall
below the average score for all countries. 16 The underlying problem was often related to
9
See “Stabilization clauses and human rights”, available at http://www.reports-and-
materials.org/Stabilization-Clauses-and-Human-Rights-11-Mar-2008.pdf.
10
Oxfam, Rigged Rules; J. Dunning (ed.), Making Globalization Work (OUP, 2003)
11
See Supra Report of the Special Representative 2008, para 18
12
Sarah Joseph, Corporations and Transnational Human Rights Litigation, (Hart Publishing, 2004) p. 164
13
Piero Foresti, Laura De Carli and others v. Republic of South Africa (International Centre for
Settlement of Investment Disputes, case No. ARB (AF)/07/1).
14
UNCHR ‘Report of the Special Representative of the Secretary-General on the issue of human rights and
transnational corporations and other business enterprises, John Ruggie’ (22 Feb 2006) UN Doc
E/CN.4/2006/97 para 10-20
15
See www.business-an-humanrights.org for documentation of human rights violations by corporations
16
See Supra para 20-30
 William Bewick

weak State capacity, particularly in remote regions of developing countries. In many of

these instances, the local communities contest the legitimacy of state institutions in
poorly governed areas.17

The extractive sector - oil, gas and mining - dominates this sample of reported abuses
with two thirds of the total. The food and beverages industry is a distant second,
followed by apparel and footwear and the information and communication technology
sector. The extractive industries also account for most allegations of the worst abuses, up
to and including complicity in crimes against humanity. These are typically for acts
committed by public and private security forces protecting company assets and property;
large-scale corruption; violations of labour rights; and a broad array of abuses in relation
to local communities, especially indigenous people.1819

In many instances, the State is not holding up its duty to protect human rights. As
documented cases illustrate, this is particularly true in low income States or States
experiencing internal conflict. Extraction companies are responsible for the majority of
the gravest abuses. In many of these cases, the State itself is complicit in the abuses,
leaving victims without any conventional channels to pursue remedy. As mentioned
above, most extraction abuses take place in remote, poorly governed regions where
marginalized populations are likely to live. If States are unwilling or unable to fulfill their
role as protector, perhaps MNE’s themselves should be held responsible.

II. The Corporate Responsibility to Respect Human Rights

The second core principle identified by the Special Representative of the Secretary-
General on the issue of human rights and transnational corporations and other businesses
is the corporate responsibility to respect human rights.

This principle essentially means that corporations must refrain from violating human
rights, a ‘do no harm’ principle.20 According to Peter Mucklinski, ”The precise content of
the human rights obligations of MNEs is open to considerable speculation.” However, “it
is clear that corporate actors will not carry the same responsibilities as states.” 21Robert
Clapham examines several emerging treaties that link international obligations to private
actors including the Council of Europe Corruption Convention, the UN Convention on
the Suppression of the Financing of Terrorism, and the UN Convention against
Transnational Organized Crime.22These treaties do not directly hold corporations liable

17
the International Council on Mining and Metals conducted a study of 38 cases of allegations of human
rights or related abuses involving mining companies in order to uncover patterns of human rights impacts.
Second submission to the Special Representative, October 2006, available at
http://www.icmm.com/newsdetail.php?rcd=119. pp. 16-20

18
Ibid.
19
See ‘Time for Transparency: Coming Clean on Oil, Mining and Gas Revenues’ (www.globalwitness.org)
24 March 2004
20
Report of the Special Representative 2008, Supra para 36
21
Peter Muchlinski, Multinational Enterprises and the Law (2nd ed), (OUP, 2007). P 518
22
Robert Clapham, Human Rights Obligations of Non-State Actors, (OUP, 2006) p248-252
 William Bewick

for offense, yet Clapham argues that that “should not necessarily lead to the conclusion
that there is no liability in international law for corporations engaging in behavior which
violates international norms contained in treaties that specifically target legal persons.” 23
The fact remains, however, that there is scant jurisprudence holding MNEs responsible
internationally for serious human rights violations.

As discussed above, MNEs are often more powerful than the States in which they operate
and their economic muscle may allow them to resist attempts at domestic
sanctions.24Given the problems entailed in regulation of MNEs in developing States,
more effective regulation should come from the home state. 25The landmark Barcelona
Traction Case established that and MNE’s home state is the state of incorporation. 26
Determining criminal or even civil liability for crimes committed in host states is
complicated.

MNEs do not exist as an entity defined or recognized by law. They are made up of
complex structures of individual companies with interrelationships. Liability of
shareholders, the owners of companies, is limited to the amount paid for the ownership of
their share. This limits risks to investors, while at the same time enabling MNEs to raise
enormous sums of money to fund large projects, such as huge extraction enterprises in
areas difficult to access.27 This takes the kind of money poor governments do not have
access to. The number of investors means that it is impossible for each of them to be
involved in decision-making processes. Therefore, they cannot be held liable for crimes
committed by the corporation. The legal systems of most countries regard one company
with investments in another company the same way. Even if a company with a large
interest in another is involved in decision-making and therefore responsible for human
rights abuses, they are not legally liable.28

Companies can spread themselves out by forming subsidiaries in States that are desperate
for foreign investment. These States, as discussed earlier, will be more likely to ease
regulations and otherwise seek to entice powerful MNEs to invest. 29 In the business of
resource extraction, which demands a large amount of initial capital and often proves
risky due to the contentiousness of its impact on land and natural resources, States will
often go so far as to collaborate with the MNE to ensure the investment. 30 The problem is
that in the host state of the subsidiary the parent company will probably be viewed as a
separate entity from the subsidiary and have no legal presence in the host state, therefore
occurring no liability. For these reasons, it is very difficult to hold corporations
23
Ibid. p.251
24
See Supra Sarah Joseph p. 78
25
Ibid. p. 79
26
Case Concerning the Barcelona Traction Light and Power Co. Ltd. (Belgium v. Spain) ICJ Rep. [1970] p.
3 para. 70.
27
Janet Dine, Companies, International Trade and Human Rights, (CUO, 2005). p 48.
28
Ibid.
29
Ibid. p 49
30
See for example Global Witness ‘Digging in Corruption: Fraud, Abuse and Exploitation in Katanga’s
Copper and Cobalt Mines’ June 2006 available at
http://www.globalwitness.org/media_library_detail.php/154/en/digging_in_corruption
 William Bewick

responsible for human rights violations if the poor host state is complicit or collaborating
in crimes or just unwilling to enforce its own laws to protect those affected by the crimes.

It is another obstacle altogether to find specific criminal responsibility of a natural person

within a corporate entity. Article 9 of the Council of the Europe Convention on the
Protection of the Environment Through Criminal Law (1998) provides that liability can
flow for the corporation as a result of a finding of liability for a natural person or organ of
the entity involved (Article 9). The report states:

Article 9 deals with the liability of legal persons. It is a fact that a major
part of environmental crime is committed within the framework of legal
persons, while practice reveals serious difficulties in prosecuting natural
persons acting on behalf of legal persons. For example, in view of the
largeness of corporations and the complexity of structures of the
organization, it becomes more and more difficult to identify a natural
person who may be held responsible (in a criminal law sense) for the
offense. Furthermore, if an agent of management is sentenced, the sanction
can easily be compensated by the legal person.31

The most relevant jurisprudence to date that does in fact hold corporations liable has
come from United States of America’s Alien Tort Claims Act cases, which in turn has
drawn on evolving international standards of individual criminal liability for such
offences. Most of the ATCA cases to date have been dismissed or settled out of court. In
its only ATCA decision the United States Supreme Court, while reaffirming the standing
of customary international law norms in principle, required demanding tests for proving
their existence: they must be “specific”, “obligatory”, and “universal”. Moreover, the
majority opinion advised lower courts to exercise restraint in “applying internationally
generated norms” and leave the decision to create novel forms of liability “to legislative
judgment in the great majority of cases”. 32 This means that private non-state actors will
only be liable for human rights abuses that are well established by customary
international law.33 According to the Special Representative to the Secretary General John
Ruggie, “the ATCA’s influence has been mainly existential: the mere fact of providing the
possibility of a remedy has made a difference. But it remains a limited tool, even more so
after the Supreme Court ruling; it is difficult and expensive to use, especially for
plaintiffs; and it is unique.” 34

Over the previous decade, CSOs, international legal bodies and business leaders have
developed a series of voluntary norms and principles. Muchlinski points out that
“corporate self-regulation on human rights is far from developed,” and that “human rights
activism by MNEs might be said to undermine their position as providers of beneficial
foreign investment to less developed countries that may object to such interference in
31
Philip Alston ‘Catching the Conscience of the King: Corporate Players of the International Stage’ in Non-
State Actors and Human Rights (Oxford: Oxford University Press, 2005) 141-175, at 155.
32
Sosa v. Alvarez-Machain, 542 US 692, 732 (2004).

33
See Supra Muchlinki p. 529
34
See Supra ‘Report of the Special Representative 2006’ para 62
 William Bewick

their internal political affairs.”35

United Nations Global Compact is by far the world’s largest corporate social
responsibility initiative, with more than 2,300 participating companies. Established in
2000, it engages firms in implementing 10 universal principles drawn from United
Nations sources in the areas of human rights, labor standards, environmental and anti-
corruption practices.36 Its human rights principles integrated the concepts of “complicity”
and “spheres of influence” into corporate social responsibility language, where they have
taken on a life of their own in ongoing debate. 37The UN Norms on the Responsibilities
of Transnational Corporations and Other Business Enterprises with Regard to Human
Rights comprise 23 articles, drafted in treaty language, which set out human rights
principles for companies in areas ranging from international criminal and humanitarian
law; civil, political, economic, social and cultural rights; to consumer protection and
environmental practices.38 Specific to the extractive industries, The Extractive Industries
Transparency Initiative (EITI) is a voluntary initiative for governments, but only a small
number of countries implement them. The Kimberley Process Certification Scheme
(KPCS) was launched in 2002 to stem the flow of conflict diamonds, the trade in which
has fuelled devastating conflicts and human suffering in Africa. Many NGOs view the
Kimberly Process as a success, an outcome facilitated by the industry’s concentrated
market structure and the fact that its chief product is a high-end luxury good, rather than a
widely used commodity.39

The problem with these voluntary principles is that they are just that, voluntary. MNEs
are responsible for maximizing profits for shareholders, not performing governmental
functions. The Special Representative points out that the “Norms exercise became
engulfed by its own doctrinal excesses. Even leaving aside the highly contentious though
largely symbolic proposal to monitor firms and provide for reparation payments to
victims, its exaggerated legal claims and conceptual ambiguities created confusion and
doubt even among many mainstream international lawyers and other impartial
observers.”40

As long as some companies sign on while others do not, it may be viewed as a

competitive disadvantage, particularly in extractive contexts where cutting environmental
and labor costs could be the difference between a venture being profitable or not.

35
See Supra Muchlinski p. 525.
36
See also International Organisation of Employers, International Chamber of Commerce, Business and
Industry Advisory Committee to the Organisation for Economic Co-operation and Development
(OECD), “Business and Human Rights: The Role of Government in Weak Governance Zones”,
December 2006, paragraph 15, http://www.reports-and-materials.org/Role-of-Business-in-Weak
Governance-Zones-Dec-2006.pdf.

37
See further www.unglobalcompact.org; and see Supra Muchlinski p. 103
38
U.N. Doc. E/CN.4/Sub.2/2003/12/Rev.2 (2003). www1.umn.edu/humanrts/links/norms-Aug2003.html
39
Forest Peoples Programme and the Tebtebba Foundation, ‘Indigenous Peoples’ Rights, Extractive
Industries and Transnational and Other Business Enterprises’ (29 Dec 2006)
http://www.business- humanrights.org/Documents/Forest-Peoples- Tebtebba-submission-to-SRSG-re-
indigenous-rights-29-Dec-2006.pdf
40
See Supra ‘Report of the Special Representative 2008’ para 26.
 William Bewick

Voluntary initiatives offer much more than the very weak and fragmented binding legal
framework in imposing any liability for human rights violations, but they still offer no
access for remedy to victims and only operate vertically down from corporate decision-
makers. Therefore, the corporate duty to respect human rights is still grounded in the
problematic state-centered international legal framework discussed above. In this context,
the third core principle of the Special Representative on human rights and MNEs is the
furthest from being realized.

III. The Need For More Effective Access to Remedy

The third core principle identified by the Special Representative of the Secretary-General
on the issue of human rights and transnational corporations and other businesses is the
need for more effective access to remedy.

This is the key core principle form the perspective of a marginalized indigenous
community. Even in an OECD country with relatively sound judicial mechanisms,
indigenous people are likely to lack access to remedy due to location, education, and
suffer from discrimination. This issue is compounded in developing countries with weak
judicial mechanisms or a legacy of impunity. Governments that desperately seek foreign
investment and whose elites profit from the exploitation of resources and have the
capacity to mount overwhelming obstacles in front of marginalized communities seeking
protection and remedy.

Research suggests that while indigenous peoples’ circumstances are improving in some
countries, the great majority still live with ‘discrimination, oppression, and
exploitation’.41 This is based on both historical and present day economic and political
systems, driven in some cases by the concern of some national governments that ceding
territorial autonomy may threaten the integrity of the State, or by the greed of local elites
eager to exploit what they consider to be underused national territory. It is often
experienced in, for example, lack of access to formal political processes and decision-
making structures, justice, economic systems (e.g. access to capital) and basic social
services, including health and education. Indigenous peoples are also often subject to
high levels of discrimination and prejudice from mainstream society. Land is often
another contentious issue and there have been and conflicts over use of land between
indigenous peoples, government and commercial interests (including those of mining
companies).42 This is especially the case in connection with extractive industries and
agro-industry such as palm oil, which disproportionately affects indigenous peoples. 43The
41
José Martínez Cobo, UN Special Rapporteur to the Sub-Commission on Prevention of Discrimination and
Protection of Minorities and Indigenous Communities, quoted in ICMM’s Mining and Indigenous Peoples
Review (2005)

42
Office of the High Commissioner for Human Rights (UNHCHR). Factsheet (No. 9, Rev 1) The
rights of indigenous people. http://www.unhchr.ch/indigenous/main.html

43
On palm oil, see, M. Colchester et al, Promised Land. Palm Oil and Land Acquisition in Indonesia:
Implications for Indigenous Peoples and Local Communities, Forest Peoples Programme,
Perkumpulan Sawit Watch,HuMA and the World Agroforestry Centre (2006). Available at:
http://www.forestpeoples.org/documents/prv_sector/oil_palm/promised_land_eng.pdf
44 See D. Fagin, Achieving Restitution: the Potential Unjust Enrichment Claims of Indigenous
 William Bewick

vast magnitude of human rights abuses perpetrated on indigenous populations by MNEs

is well documented.44

While indigenous people suffer disproportionately form MNE human rights abuse and
general discrimination in society, they also confront a litany of judicial obstacles if they
attempt to seek remedy against a MNE. The Special Representative clearly explains these
obstacles in his 2008 report:

Judicial mechanisms are often under-equipped to provide effective

remedies for victims of corporate abuse. Victims face particular challenges
when seeking personal compensation or reparation as opposed to more
general sanction of the corporation through a fine or administrative
remedies. They may lack a basis in domestic law on which to found a
claim. Even if they can bring a case, political, economic or legal
considerations may hamper enforcement. Some complainants have sought
remedy outside the State where the harm occurred, particularly through
home State courts, but have faced extensive obstacles. Costs may be
prohibitive, especially without legal aid; non-citizens may lack legal
standing; and claims may be barred by statutes of limitations. Matters are
further complicated if the claimant is seeking redress from a parent
corporation for actions by a foreign subsidiary. In common law countries,
the court may dismiss the case based on forum non conveniens grounds -
essentially, that there is a more appropriate forum for it. 45

Part 3. Case Study: Muriel Mining Corporation and the “Careperro” mine in El
Choco, Colombia

I. Context

As explained above, marginalized indigenous populations face overwhelming obstacles

to protecting their human rights against powerful multinational extraction companies.
Indigenous populations in Colombia have suffered from centuries of discrimination and
human right abuses. This has been exacerbated by the fact that they often traditionally
inhabit remote regions of the country that have been engulfed in conflict between the
government, leftist armed groups, right-wing paramilitary groups and drug traffickers.
Often, however, the issue comes down to one of land. Indigenous and Afro Colombians

Peoples against Multinational Corporations, 76 New York Univ. L.R. 626 (2001); M. McFarland
Sanchez-Moreno & T. Higgins, No Recourse: Transnational Corporations and Economic, Social and
Cultural Rights in Bolivia, 27 Fordham Int’l L.J. 1663 (2004); M. Geer, Foreigners in their Own Land:
Cultural Land and Transnational Corporations – Emergent Rights and Wrongs, 38 Virgina J. Int’l L.
331 (1998); Patrick Macklem, Indigenous Rights and Multinational Corporations at International Law, 24
Hastings Int’l. and Comp. Law Rev. 475 (2001)
.

44
45
See Supra ‘Report of the Special Representative’ 2008 para 88.
 William Bewick

inhabit land that contains valuable minerals or energy resources or is desirable for the
cultivation of monoculture such as bananas and recently, palm oil.

In this case study, I will describe the historical and current obstacles that the indigenous
Embera people and their Afro Colombian neighbors face in protecting their land from a
proposed copper, gold and molybdenum mine that would potentially contaminate three
rivers that they depend on and permanently displace these communities. The mining
companies and the Colombian government are employing several tactics to gain
permanent access to the land. Meanwhile, the marginalized indigenous communities
have undertaken their own human rights protection strategies that these communities in
order to protect their land, lives, and consequently, their rights.

The North-Western Uraba region of Colombia bordering Panama covers parts of the
Choco and Antioquia. Government institutions have traditionally had little presence in the
region, which explains the high percentage of Afro-Colombians. Many freed slaves found
land and refuge in these jungle areas following the abolition of slavery in the nineteenth
century.46 Banana producers, guerilla and paramilitary groups, as well as drug dealers and
internal settlers have exploited the near absence of the State. These communities, as well
as the native indigenous communities continue to face hardships. Afro-Colombian and
indigenous communities are more than twice as likely to live below the poverty line than
other Colombians.47

The region is of great potential economic and political importance. It is covered by some
of the worlds most biodiverse jungle and contains precious metal resources. It also
stretches from the Pacific to Caribbean coasts along the Panamanian border, making the
area critical for the development of new roadways linking the coasts and the Pan-
American Highway.

In 1996, supposedly to quell guerrilla insurgency, the army and paramilitary groups
launched a major offensive called “Operation Genesis”, using aerial bombardments,
economic blockades, looting and burning of houses and crops, massacres, torture, and
arbitrary detention of civilians. Operation Genesis successfully drove away the guerillas
from the lower Atrato River, but it also displaced between 15,000 and 17,000 people,
mainly Afro-Colombian smallholders and indigenous people.48

The violence continued after the end of major armed clashes in 2000. From 2001 to 2005,
paramilitary groups colluded with the 15th and 17th Brigades of the armed forces to
directly attack the Afro Colombia and indigenous communities of the Jiguamiando and
Curvarado valleys. The human rights violations included killings, torture, looting,
burning of crops and houses, forced displacement, death threats, and arbitrary
detentions.49According to Internally Displaced (IDP) leaders and organizations
46
Ombudman’s Office, “Resolucion Defensorial No 39”, 2 June 2005, p. 3
47
European Commission Colombia: Strategy Paper 2007-2013 (28 March 2007)
48
UNCHR, Fourty-Fourth Session 9 March 1998 ‘Report of the UN High Commissioner for Human Rights on
the Human Rights Situation in Colombia’ UN Doc E/CN.4/1998/16
49
Comision Intereclesial de Justicia y Paz (Justice and Peace Comission) “La Tramoya, Derechos Humanos
y Palma Aceitera Curvardo y Jiguamiando”, 31 October 2005, p. 9
 William Bewick

monitoring the human rights situation, the army has since 1996 directly or indirectly
causes at least 12 major displacements in the two valleys. Paramilitary groups are
responsible for several additional displacements.5051

At the height of the displacement, more than 4,000 hectares of Africa Palm were planted
in the Jiguamiando and Curvarado valleys. The National Rural Development Institute
(INCODER) confirmed that 93 per cent of the land that companies planted with Africa
palm belonged to Afro-Colombian communities. The land purchases were characterized
by gross irregularities including falsified documents and forced sales.52 In some instances,
paramilitaries issued death threats to owners, promising, “your widow will sell if you
don’t.”53 The mandate of INCODER includes monitoring Law 70 of 1993, which grants
collective land concessions to Afro-Colombian communities. These rights are rarely
respected by armed actors or by commercial enterprises despite the fact that Article 7 of
Law 70 states that all land is “inalienable, cannot be seized nor expire”.54

The indigenous and Afro-Colombian communities have still not recovered their land
since being displaced. It is still covered in palm oil. Paramilitary bands control access to
the region, only accessible by boat, and roving military battalions constantly patrol the
area, often side-by-side with the paramilitaries.55It is well documented that paramilitaries
collaborate with the military and palm oil companies in this region. 56It is also
documented that paramilitary groups have colluded with large business interests to
displace rural small-holders from hundreds of thousands of acres in the last decade. 57 The
Chiquita Bananas case has recently come to symbolize the confirmation of a long-
suspected relationship between multinational firms and illegal armies fighting in the
nation's four-decade-old war. Chiquita Brands International admitted in US court last
month that it paid $1.7 million to Colombia's right-wing militias in the Urada Region
over the course of eight years. The company said it did so to protect its employees and
agreed to pay a $25 million fine.58

For the marginalized populations of the Jiguamiando and Curbarado River Valleys, the
Colombian government and military have come to symbolize brutal repression and

50
Interviews with IDP leaders in Jiguamiando and Curvarado, 20 June through 3 July 2009.
51
See Inter-American Commission on Human Rights (IACHR) PRELIMINARY OBSERVATIONS OF THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AFTER THE VISIT OF THE RAPPORTEURSHIP ON THE
RIGHTS OF AFRO-DESCENDANTS AND AGAINST RACIAL DISCRIMINATION TO THE REPUBLIC OF
COLOMBIA (March 2003) paras 46-72.
52
See Informe ICODER 14 March 2005 available at http://www.internal-
displacement.org/8025708F004CE90B/httpCountry_Documents?
ReadForm&country=Colombia&count=10000
53
Interview with Curbarado IDP community member 22 June 2009
54
See www.incoder.gov.co/noticias/verNoticia.asp?Id=826
55
Interviews and observations in Jiguamiando and Curbarado valleys 20 June through 3 July 2009
56
See International Crisis Group ‘The Virtuous Twins: Protecting Human Rights and Improving Security in
Colombia’ Latin America Briefing N21 (25 May 2009)
57
Alejandro Reyes Posada, Guerreros y Campesinos: El despojo de la tierra en Colombia (Bogotá: Groupo
Editorial Norma, 2009) pp. 111-293.; and Ana Maria Ibanez Londono, El Desplazamiento Forzoso en
Colombia (Universidad de Los Andes, 2008)
58
Sibylla Brodzinsky, ‘Chiquita Case Puts Big Firms on Notice’ Christian Science Monitor (11 April 2007)
 William Bewick

collaboration with businesses intent on removing them from their land to exploit the
resources. Despite national and international laws that supported their human rights and
rights to their land, they have experienced only injustice. The remoteness of the region
and their lack of connections to mainstream civil society had rendered them without any
access to remedy for the grave abuses they had suffered. Companies, rather than
respecting human rights norms, were actively involved or complicit in their violation.

II. The Mining Concession

It is in this context that the Muriel Mining Corporation, based in Denver, Colorado,
entered the Careperro Mountain in the northern Jiguamiando valley in January 2009.
Flanked by the 15th and 17th brigades of the Colombia’s armed forces, engineers and
laborers began drilling holes in the top of the mountain. Three hectares of forest were
immediately cleared and plans were announced to proceed with three deep perforations in
the mountain.

Muriel Mining Corporation was attempting to exploit one of the nine concessions
awarded by the governor of Antioquia in 2005.59The concessions cover an area of about
160 km squared. According to Colombian and International Labor Convention No. 169,
indigenous communities potentially affected by a mine must give “free, prior, and
informed consent.”60However, rather than consulting with the indigenous and Afro-
Colombian communities in the Jiguamiando and Curvarado Valley, Muriel and
government officials invited indigenous people living in the distant city of Carmen del
Darien to the hearing. They individuals quickly agreed to the consultation, while
communities in the remote Jiguamiando Valley were alarmed to see the presence of
military helicopters landing on the mountain.

Careperro is critical to the communities in the Jiguamiando because the three main rivers
that they depend on for travel, food, and sustenance all have their sources in the
mountain. For the indigenous Embera, the mountain is a sacred, spiritual place, not to be
harmed under any circumstances.61Community leaders had heard from rural inhabitants in
other areas of the Colombia the destruction that mining tailings can cause. They had also
just experienced 12 years of violent displacement by military brigades and paramilitary
groups working on behalf of agribusiness.

When the army brigades and geologists arrived, members of several communities in
Jiguamiando immediately trekked hours and even days to set up camp and protest the
presence of the miners. Accompanied by the legal organization Justice and Peace and the
international human rights organization Peace Brigades International, the community
camped several days, constantly confronting the military and mining officials until they
pulled out. Muriel has already invested millions of dollars into the concession and
exploration, and plans to return, claiming they have followed through on their legal
59
Muriel Mining Corporation has one of the mining concessions in the region awarded by Ingeominas, the
Insitute of Investigation and Geological Information, No. 6197.
60
Convention (No. 169) concerning Indigenous and Tribal Peoplesin Independent Countries (Adopted 27
June 1989, entered into force 5 September 1991) 328 UNTS 247
61
Interviews with community members in Jiguamiando 20 June through 3 July 2009
 William Bewick

obligations.62

III. Methods of Resistance and Protection

The communities of the Jiguamiando and Curbarado Valleys are undertaking a multi-
level, integrated approach to protecting their human rights. It involves local organizing
and activism, accessing national legal channels, and international pressure on the mine.
Each will be discussed in turn.

A. Local organization and activism

In each of the communities where I conducted interviews, community members stressed

the importance of a unified front, both within communities and among communities.
“They will try to say we are divided in Bogotá,” stressed one IDP leader. “We need to be
sure that everything coming out of our community is against the mine.” The Jiguamiando
Valley is shared between Afro-Colombian and indigenous Embera communities.
Opposition to the mine has brought them closer and united them. One Afro-Colombian
remarked, “Our customs are totally different. The way we run our business, the way we
make decisions, and the way we talk. But we both refuse the mine.”

Decision-making within Embera communities is generally undertaken by consensus in

councils. This is a long process, sometimes taking months. The Embera have their own
internal justice and education systems and are generally closed off to the outside world.
Few Embera speak Spanish and those still living in the Jiguamiando Valley show little
interest in integration with the outside world. Afro-Colombian communities, on the other
hand, have distinct leaders, are literate in Spanish, and much more accustomed to modern
Colombian culture. However, since the incursion of the mine, the communities are
constantly meeting and collaborating on resistance strategies. In each of the communities,
the local response to another incursion will be a uniform physical manifestation at the
Careperro site. An Embera member noted, referring to the raised political cost they were
forcing upon the company, “they know we will all go up together, black indigenous and
metizo. This makes it harder for them to come in. They will have a fight if they do.”

B. Accessing National Legal Mechanisms

The Jiguamiando and Curvardo Valleys are extremely remote and isolated. Access is only
by boat and foot, apart from a few palm oil roads. There are virtually no schools and very
little trade with the outside. Almost everyone survives on sustenance farming. Therefore,
it is very difficult to denounce and seek remedy in the face of State violence or State
complicity in human rights violations by companies. In 2001, several community
members traveled to Bogotá to seek assistance. The Jesuit human rights organization
Justice and Peace Commission agreed to support their efforts to protect their land, seek
justice for grave human rights violations, and offer protective accompaniment in their
communities.

62
See Muriel Mining Company Response to Colombia Solidarity Campaign Report available at
www.business-humanrights.org
 William Bewick

Overwhelmingly, community leaders and members stressed the importance of this NGO
to their safety and progress towards reclaiming their land. “Without Justice and Peace,
none of us would be here. We would all be dead or in the slums,” said a women
community organizer. Justice and Peace is based in Bogotá and maintains teams of
accompaniers trained in communication and organization in the field. Frequently, leading
lawyers from the Bogotá office visit the communities to update them on national events
(there is no electricity, phone, or radio service in the area) and warn of potential dangers
by sharing news of paramilitary and military activity in the region. Once news and
strategies reach a few of the communities, it is shared by community leaders who travel
by foot or boat to neighboring areas.

The Justice and Peace accompaniers and lawyers also play the critical role of collecting
evidence in order to denounce human rights violations, which are frequent. Additionally,
the accompaniers are beginning to train community members in basic evidence gathering
and reporting techniques to make denunciations more effective. On occasion, community
members are brought to Medellin or Bogotá to meet directly with government officials or
attend NGO forums.

Justice and Peace has also played a key role in the legal battle against the Muriel Mine. In
response to Muriel’s claim to have fulfilled their obligation under law 169 to hold a free
and informed consultation with affected community members, Justice and Peace helped
facilitate another consultation. This consultation, carried out in February 2009, included
all of the adults from several communities in the region. This consultation was witnessed
by international observers and dutifully documented. All members rejected the mine.
Lawyers from Justice and Peace then had this consultation verified by the Constitutional
Court in Bogotá, striking a blow to the mining company.

Without this access, these marginalized communities would be all but forgotten. Justice
and Peace plays another critical role that comprises the third level of human rights
protection: the international level.

C. Engaging International Protection

Justice and Peace very actively engages the international community in opposition to the
mine on three fronts: denouncing the MNE, submitting cases to international legal bodies,
and increasing the security of active community members in El Choco.

Muriel Mining Corporation is in a joint venture with Rio Tinto. The term ‘joint venture’
has no precise legal meaning. The nature of control between the companies, the
respective participation in profits and losses, and decision-making depends on the nature
of each individual agreement.63Justice and Peace has proceeded to go after both parent
companies. They have facilitated the publishing of criticisms on the business and human
rights website, provided extensive documentation to NGOs in Washington and London,
and vigorously documented the irregularities in the previous consultations. This has
63
See Supra Muchlinski p 66-67
 William Bewick

caused a spirited reaction from the MNEs, who have proceeded to accuse Justice and
Peace of collaborating with leftist armed organizations and engage in a new legal efforts.
Rio Tinto is reportedly sending a representative to Bogotá this month to facilitate new
negotiations.64 It has also caused international condemnation of Rio Tinto by major
INGOs and even members of British Parliament.

On another front, international protection, Justice and Peace frequently petitions the
accompaniment of Peace Brigades International’s monitoring team based in Turbo, near
the Jiguamiando and Curvarado Valley. Peace Brigades International has over 25 years’
experience protecting threatened human rights defenders using deterrence methods
outline in the book Proactive Presence.65Justice and Peace also facilitates foreign
researchers to visit the region, provides for community members to meet with foreign
officials, and is in the process of hosting a delegation from the Washington-based
advocacy organizations Witness for Peace in the region.

Justice and Peace has also brought the human rights violations of the Jiguamiando and
Curvarado Valleys to the attention of the Inter-American Commission of Human Rights.
The IACHR has mandated the Colombian government to respect ‘Humanitarian Zones,”
of which there are now eight in the two valleys. Humanitarian Zones are fenced off areas
with signs posted that prohibit the entrance of any armed actors. Community members
unanimously believe that they offer protection. I was witness to the Humanitarian Zone
of Urada’s creation on 27 June 2009. In 2008, Justice and Peace petitioned a visit from
the IACHR to the region where investigators interviewed community members, military
personnel and government officials. 66 Justice and Peace is now in the process of
petitioning the Special Representative on the Human Rights and Fundamental Freedoms
of the Indigenous.

IV. Conclusion

The fact that marginalized communities in areas like the Choco en Colombia suffer
prolonged human rights violations at the hands of extraction companies attests to the fact
that the current international protection system is insufficient. Governments such as
Colombia place more importance on resource exploitation and profit than on protecting
their own citizens, especially the most vulnerable. It is only through self-initiated,
constant and innovative means of human rights protection that these communities are
able to survive. In order to provide the protection intended by the international human
rights instruments to marginalized populations, the international community will need to
be more proactive in supporting the communities themselves and the local NGOs such as
Justice and Peace, who are constantly under threat. In order to persuade multinational
extraction companies whose primary aim is profit maximization to respect human rights,
the human rights community will have to raise the cost of their failure to exercise due
64
Interview with Justice and Peace lawyer 18 July 2009
65
Liam Mahony, Proactive Presence: Field Strategies for Civilian Protection (Henry Dunant Centre for
Humanitarian Dialouge, 2006)
66
IACHR ‘PRELIMINARY OBSERVATIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
AFTER THE VISIT OF THE RAPPORTEURSHIP ON THE RIGHTS OF AFRO-DESCENDANTS AND AGAINST
RACIAL DISCRIMINATION TO THE REPUBLIC OF COLOMBIA’ OEA/Ser.L/V/II.134
 William Bewick

diligence. This, in turn, will put pressure on States to ensure the protection of human
rights in order to continue to attract responsible foreign investment.