... the website (Spanish) : www.itescam.edu.mx/principal/sylabus/fpdb/recursos/
r9722. ... 7 Consult web: http://elsoca.org/index.php?option=com_content&view=
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Institution for Human Rights Defense Procuraduría para la Defensa de los Derechos Humanos (PDDH)
Position about Metallic Mining in El Salvador, The “Cerro Blanco” transborder Project in Guatemala and its potential impacts on Human Rights for the residents in the Republic of El Salvador.
San Salvador, October 2012. 1
Report on Metallic Mining and Human Rights in the Republic of El Salvador I. Introduction From the total of available water around the world, only 2.6% is freshwater, while the remaining percentage corresponds to saltwater. The greater part of this 2.6% of freshwater is located in the polar icecaps (Polar Ice packs) and in the underground reserves. Specifically, it’s calculated that frozen water represents 69.7% of freshwater, underground water accounts for 30% and rivers and lakes represents only 0.3%1. The elements that have caused the lack of water are diverse. Among them it can be mentioned the excessive increase of population during recent years, and therefore, an increase in water consumption, climate change, which has caused long periods of drought and progressive worsening of water quality, originated by environmental pollution through the spreading of heavy metals as a consequence of metallic mining, among others. About this last cause, we can concretely highlight that exploration methods in open pit and underground metallic mining has provoked great damages to ecosystems and people’s health, as it has been demonstrated. The harmful effects of metallic mining have been deeply documented in a number of studies and among these are: Decrease of available water (and contamination of it), damage to marine environment and pisciculture and deterioration of farming land (along with its effects on livestock). The damages of environmental pollution caused by mining activities can be expressed in immediate terms in people’s health (either because of the presence of diseases or genetics alterations) as well as in terms to the availability of food (specially for the peasant families of scare income that generally produce vegetables and fruits). Thereof, negative consequences of metallic mining can be observed in the different dimensions of social, economic and environmental life; and its impacts not necessarily occur only in one country, rather it can transcend national borders and therefore affect one or few neighboring countries. In the field of International Law, every since the second half of the twentieth century, it was brought up the need to study the impacts of pollution2 in the water, particularly in international hydrographic basins. Therefore, the International Law Association created in 1956 the Committee on the Uses of International Rivers, currently known as the Water Law Committee (Water right committee). This Committee established, based on
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Consult the website (Spanish) : www.itescam.edu.mx/principal/sylabus/fpdb/recursos/r9722.DOC. Retrieved June 29th 2012. 2 Article IX “ Any harmful effect resulted from human action in the composition, content, or quality of the waters of an international drainage basin ”. Committee on the Uses of the Waters of International Rivers, supra note 8
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the principle of equitable use3 and within the framework of the Helsinki Rules on the Uses of the Waters of International Rivers, that States that share international hydrographical basins must “prevent any new form of water pollution or any increase in the degree of existing water pollution in an international drainage basin which would cause substantial injury in the territory of a co-basin State”4, and failure to comply with this regulation implies the payment of a compensation for the damages and related losses caused by the co-basin State. In this sense, the present report has as objectives: Firstly to reflect the impacts that could be induced to Salvadorian population by the decisions regarding the authorization of metallic mining exploitation projects within the Salvadorian territory. This topic has not been properly addressed, according to the seriousness and emergency of the issue and recently a new governmental proposal to temporary suspend administrative procedures for the exploration and exploitation of precious minerals was presented before the National Parliament of El Salvador, which was elaborated in an unconsulted manner and doesn’t represent a definitive solution to the issue. Secondly, to highlight the potential damage that would be brought to Salvadorian residents if the Cerro Blanco metallic mining project, located in the Republic of Guatemala, actually takes place. The damage will be caused by the harmful effects of metallic mining in the shared drainage basin. Therefore, the present report is elaborated with human rights perspective and with the purpose of visualizing this worrying problem in order to prevent irreversible transgressions and immeasurable costs, especially considering that the Republic of El Salvador already faces a severe water crisis as we have highlighted in previous occasions and as we have reported to the Interamerican Human Rights Commission in the general audience of 2011.5 II. About metallic mining and its impacts The processing of rocks that contain gold and silver implies the use of large quantities of water in each of the places where metallic mining facilities are located. Best case scenario, even recycling a little more than half of used water; it takes 3,700 liters of water for each ounce of mineral extracted6. If it’s considered that “to assure our basic needs, humans need between 20 to 50 litters of potable water a day” 7, then for every ounce of gold obtained from mining activities, between 74 and 185 people would lack potable water every day. 3
European Commission for Europe, Convention on Environmental Impact Assessment in a Transboundary Context United Nations, Finland, Fenruary 25th 1991, 26 4 Committee on the Uses of the Waters of International Rivers, supra note 8, Article X 5 Consult the Report of the Human Rights Institution presented before the Inter American Human Rights Comission , “Situación del Medio ambiente y sus impactos en los Derechos Humanos en El Salvador”, October 2011. 6 Larios de López, Dina – Guzmán, Herbert – Mira Edgardo, “Riesgos y Posibles Impactos de la Minería Metálica en El Salvador”, Revista de Estudios Centroamericanos, Volumen 63, Número 711-712, 80. 7 Consult web: http://elsoca.org/index.php?option=com_content&view=article&id=58:el-salvador-porque-sin-aguanohay- vida-defendamos-el-medio-ambiente&catid=63:el-salvador&Itemid=73. Retrieved July 2nd 2012
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Not to go so far, the environmental impact studied that Pacific Rim8 presented to the Ministry of Environment and Natural Resources of the Republic of El Salvador states that “during the process of leaching, 10.4 liters per second are used, accounting for a total of almost 900,000 liters a day, which is the same quantity needed to supply water to a average family for a 20 year period. This analysis is made based on the fact that the environmental impact study provided by the company reflects true data9”. It is already worrying that the use of water in mining activities can lead to a decrease in the quantity of water available for human consumption. Not less important is the environmental impact produced by mines as a result of water source pollution. Just as the study states “the greatest impact of a mining project is the effect in the quality and availability of water in the area near the project”10. Acid drainage, which flows towards surface and underground areas, is one of the greatest causes of pollution of superficial or underground water. The extinction of these drainages can take centuries to occur. Soil modification damages can also occur, expressed in the loss of chemical properties, acidification by accumulation and oxidation of sulfurs and acid drainages of salts11. For practical effects, the former means that soils will no longer be suitable for farming purposes, livestock pasture and other uses. The fact that sediments get loaded with chemical pollutants, particularly heavy metals, can cause a decrease in the potential of hydrogen potential in soils to the point of causing the loss of habitat and vegetation. From a strictly economic point of view, at this time, it is worth asking how many jobs does mining generates. According to a study, it was determined that “large scale mining is characterized for being one of the economic activities highly intensive in capital. For each million dollars invested, only 0.5 to 2 direct jobs are created”12. Thereafter , “the more capital intensive an activity is, the less jobs it generates and the less participation of the worker’s salary in the total aggregate value of what they produced: The greater part is the capital profit”13. In this way, comparing the damages provoked and the benefits claimed, the final balance is always negative for the countries and the people where the mining projects take place.
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Pacific Rim is an exploitation company focusing exclusively in the environmental gold deposits according to Central American Law, maintaining environmental and social responsibility. Pacific Rim’s main resource, through its subsidiaries is the gold Project in El Dorado, El Salvador”. Consult web: http://www.pacificrimelsalvador.com/s/Home.asp. Retrieved July 2nd 2012. 9 Observatorio de Conflictos Mineros de América Latina, Cuando tiemblan los derechos: Extractivismo y criminalización en América Latina, Observatorio de Conflictos Mineros de América Latina, Acción Ecológica, Quito, 2011, 62. 10 Miller, Glenn (Coord.), Guía para Evaluar Estudios de Impacto Ambiental, Environmental Law Alliance Worldwide, 2010, 9. 11 11. Consult Miller, Glenn (Coord.), supra nota 11, 11. 12 Machado, Horacio y otros, 15 Mitos y Realidades de la Minería Transnacional en la Argentina: Guía para Desmontar el Imaginario Prominero, Colección Cascotazos, Editorial El Colectivo y Ediciones Herramienta, Argentina, 2011, 30. 13 Ídem.
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Regarding the direct impacts mining activities produce over human health, Doctor Raúl Vega Matos states that among the diseases that affect people working in mines, caused by environmental pollution, job location and others, are: Pneumoconiosis (dust accumulation in the lungs and reactions of tissue in the presence of dust), silicosis (Pneumoconiosis produced by silica or accumulation of silica), lung cancer (due to exposition to silica)14. The negative impacts of mining to human health are not restricted to the people working in the mine. In fact, studies conducted at the surroundings of the San Martin Mine, which is a mining project operated by GoldCorp Incorporation in the municipalities of San Ignacio, El Porvenir y Cedros in Honduras, revealed issues in its inhabitant’s health. In concrete, according to the Center of Research on Investment and Trade, the “communities in the Siria Valley have also complained about health problems, like respiratory, skin and gastrointestinal diseases; caused, according to them, by consuming mining-polluted water15. According to the same institution, a study conducted by the Republic of Honduras in 2008, “high levels of metal concentration, like arsenic, lead and mercury; were found in the blood samples taken from the residents living in the surrounding area of the mine”16. Nonetheless, GoldCorp Incorporation firmly denied that such health problems were caused by their operations. Finally, the mercury can equally cause another neurodegenerative illness called hidrargirism, which is produced when people are chronically exposed to such mineral in closed and polluted areas. Hidrargirism manifests with shakes, mouth aphthaes, hypertension and irritability. Mercury, in the form of methylmercury, is a highly soluble metal that goes from shores to rivers and lakes, being able to reach the sea, moving to the food chain and reaching the fish consumed by people. This affectatuib is known as minamata disease and its effects are patent in the immunologic system and in the genetic systems where it produces teratogenesis, which means abnormal embryo development, damages in the nervous system with its effects in coordination, vision, taste and touch. The mercury can be ingested directly from polluted water or through the ingestion of metal polluted food, including milk and its derivatives, even in a smaller proportion17. III.About the governmental proposal of the Special Law for the suspension of administrative procedures related to metallic mining exploration and exploitation projects. Despite the fact the huge social environmental movement opposes the introduction of metallic mining industry in El Salvador, and that they have advocacy for a permanent 14
Consult Vega Matos, Raúl, Los Impactos sobre la Salud Humana de los Polvos de Minerales y el Desarrollo Sustentable de la Minería como Alternativa para Mitigar sus Efectos, Revista Futuros, Número 18, Volumen 5, México, 2007 15 Nolasco, Silvia, Ficha de Registro Impactos Negativos de la Minería en Centroamérica: San Martín, Centro de Investigación sobre Inversión y Comercio, 2011. 16 Ídem. 17 Ídem.
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prohibition, in July 17th 2012, the Ministry of Economy along with the Ministry of Environment and Natural Resources of the Republic of El Salvador presented to the National Parliament the law proposal for the so called Special Law for the suspension of administrative procedures related to metallic mining exploration and exploitation projects, which represents a temporal solution while certain requirements listed on the same law proposal are overcome. Based on this law proposal and based on the constitutional mandate, in 15th October 2012, El Procurador for Human Rights Defense of El Salvador presented to the National Parliament the opinion about the Special Law for the suspension of administrative procedures related to metallic mining exploration and exploitation projects, presented by the Ministries of Economy along with the Ministry of Environment and Natural Resources. In that opinion it was stated that the National Human Rights Institution (NHRI) had interest to address all issues related to the law proposal because decisions taken by the Salvadorian State in the topic of the mining industry and its regulation may have impacts to human rights, that is, because of the implications of sustainable development and implications regarding the respect of human rights such as: life, health, proper feeding, environment, water and the rest of concurrent human rights; stipulated both in our internal law system as well as in international instruments that El Salvador has subscribed in the topic of human rights. Likewise, it was highlighted that the law proposal was presented by the ministerial authorities before the National Parliament, with the absolute unawareness of the population, environmental organizations and this human rights institution, despite of constant statements this human rights institution has made in the topic, which has in many pointed the repercussions of mining exploitation to human rights. Thereof the sudden and unconsulted presentation of the law proposal, besides the fact that goes against international law principles18, has generated funded distrust among civil population and environmental organizations agglutinated in the National Table against Metallic Mining19, which as previously mentioned, insists in the definitive prohibition of extractive activities of precious metals in El Salvador, and that now perceive a risk and not a benefit for the country if just a temporary suspension is approved. These are the reasons this National Table have demanded to the National Parliament to urgently 18
Principle 10 of Rio declaration states that “Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”; and the principle 11 of the same declaration mentions that “States shall enact effective environmental legislation. Environmental standards, management objectives and priorities should reflect the environmental and development context to which they apply. Standards applied by some countries may be inappropriate and of unwarranted economic and social cost to other countries, in particular developing countries.” 19 Consult Foro del Agua, Pronunciamiento “sobre Ley de Suspensión de Minería presentada por el Gobierno”, 22 de agosto de 2012, consulado en enlace electrónico http://esnomineria.blogspot.com/, September 14th 2012.
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retake the transparent discussion and analysis as well as approval of the Mining Law Proposal which they presented in 2006, contemplating the total prohibition of such extracting industry. 1. About the temporal suspension of administrative procedures for the exploration and exploitation of metallic mining. The Procuraduria for Human Rights Defense highlighted the need to value if the legal alternative to address the issue is a temporary suspension of procedures as the Law Proposal stipulates, since according to this Office, there are some elements that determine that institutional, territorial, social and environmental conditions in El Salvador don’t make it viable metallic mining activities in the country. In any case, if vulnerabilities and risks could be overcome, it should be until that point to analyze if it’s pertinent to authorize mining activities. In the hypothetical case that institutional weakness is overcome and that urgent, permanent and effective measures are adopted, overcoming detected vulnerability conditions can take decades, or even a longer undetermined period. Therefore, it was highlighted that regulating a temporal suspension of metallic mining authorizations regarding exploration and exploitation, when there are specific circumstances that won’t improve in the short term, can be irresponsible and lead to a lack of diligence from public servants who are already aware of the complexity that involves environmental, technical, institutional and social matters to address. In this matter, the adequate thing to do would be to dictate a definitive answer in favor of population’s and the environment’s human rights. It was also highlighted that the law proposal only discusses the possibility to stop the suspension, but it doesn’t open the alternative of the definitive prohibition of the metallic mining industry in El Salvador, neither allows the alternative to use studies and opinions from experts, organizations outside public institutions and other representatives all of which are mentioned in the Monitoring Committee of the law proposal, which could enrich the analysis about the viability of the metallic mining projects in the country. Nonetheless, this option is not considered. It was highlighted that the Ministry of Environment and Natural Resources itself has recognized that the current availability and quality of water critically limit any metallic mining exploitation option. The Ministry has also recognized that the reduced number of protected areas would be in many cases surrounded or overlapped with metallic mining concessions20, coming to the conclusion that the conditions of vulnerability in Salvadorian soil imply an “important barrier to the possibility of guarantying metallic mining that efficiently controls its risks and environmental and social impacts”21.
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MARN, El Salvador no tiene condiciones adecuadas para desarrollar minería metálica, agosto 26th 2012, in the website www.marn.gob.sv, retrieved agosto 30th de 2012. 21 Ídem.
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2. About the role of the General Procurador for Human Rights Defense within the mentioned law proposal In the opinion it was also mentioned that the law project also proposes, without any type of previous consultation of this human right national institution, the creation of a Monitoring Committee for the application of the same law, integrating, among other members, the General Procurador for Human Rights Defense, with the responsibility to periodically verify the progress related to the requirements stated in the law project. The Procurador would also (according to the law proposal) recommend to the executive body, who would translate that recommendation to the Parliament, to stop the prohibition for mining activities once the requirements stipulated in the law proposal are met. As it is known, it already exists a clear position of the Human Rights Institution stating that the conditions in the country are not proper for allowing metallic mining exploitation in El Salvador. In this sense, it results contradictory that the General Procurador could agree to recommend the cessation of the suspension of administrative procedures related to the exploration and exploitation of metallic mining projects, being also a decision that is competence of other state entities. For these reasons, it was highlighted that active participation of the Chairman of this Office in the Monitoring Committee would result incompatible with the nature and the idea of supervising human rights that guides a big part of this office’s work. Nonetheless, is unfortunate the fact that the ministers presented the law proposal without consulting, informing and warning about the consequences of the participation for the General Procurador, as previously described. It was considered important to make the previous observations so that the honorable Legislative Power, in the framework of their duty which is to legislate, would take them into consideration previous to making a decision that could go against the spirit of the Constitution of the Republic and the functions awarded to the General Procurador for Human Rights Defense. 3. Conclusions regarding the Special Law for the suspension of administrative procedures related to metallic mining exploration and exploitation projects. Based on the considerations expressed in the Opinion of the Law Project and with the objective that the honorable Legislative Assembly has more elements that would allow them to choose the best option to respond to the needs of Salvadorian population, and legislate in relation to the metallic mining extraction industry in El Salvador, the following conclusions were issued: a) That the project Special Law for the suspension of administrative procedures related to metallic mining exploration and exploitation was elaborated and proposed in a unconsultive way, without taking into consideration the interests and demands of organized civil society, concretely the environmental social movement, that since more than six years ago decants for the prohibition of metallic mining exploitation in the country. The Strategic Environmental 8
Evaluation of Metallic Mining Sector was not appropriately made public to the population, neither to this Office, despite it was officially requested. b) That according to information stated by experts and to official technical reports, the social, environmental, climatic, institutional and economic conditions in Salvadorian territory don’t make it viable metallic mining industry to perform their extractive activities without risks to health and life itself (in adequate conditions for the Salvadorian residents and its natural resources). From a human rights respective then, the alternative that best addresses the current reality is the total prohibition of this extractive activity, as it has been stated many years ago, and not only a palliative solution like a temporal suspension of procedures for the exploration and exploration of metallic mining. c) When analyzing the content of the Strategic Environmental Evaluation of the Metallic Mining Sector, it is highlighted that it concludes there is no certainty about the potential social and economic benefit that the mining industry would generate, but it does state that there are “solid signs” concerning the existence vulnerability of the country, residual importance of metallic-mining resources and existence of risks inherent to the activity, advising therefore highest caution and attention to the precaution principle. d) That in order to decide how to legislate in such a delicate aspect as the one related to mineral exploitation in the country, is fundamental to create a broad discussion and listen to different actors of the population –especially the one that would be most impacted- and institutions that work about the topic, without letting out of sight that public institutions should make prevail human rights. It is also important to keep in mind in this sense that the true development pursues the continuous improvement of life conditions of the population, and not only economic profit. Therefore projects that foster integral development in El Salvador should be promoted and fostered, without putting the population’s life and security at risk. e) That since there already exists a law proposal about mining presented by the civil society, through the National Table against Metallic Mining, it should be seriously considered and it should be valued if this proposal complies with the spirit and precepts of the Constitution of El Salvador that defends common good and sustainable development, and if it also complies with the content of international law instruments that the Salvadorian State has signed in the field of human rights. f) That by including the General Procurador for Human Rights Defense or any delegate of this institution in legal dispositions that awards specific functions to them, these should respond to the constitutional mandate and to the nature of the human rights office as a guarantor of human rights in El Salvador. 9
g) It is considered of vital importance (regarding mining industry regulation), that members of parliament address this issue which has already been brought up by this Human Rights Office and take into consideration this summon, which has been constant since the beginning of the General Procurador’s Term. It is also vital that before adopting a decision regarding the convenience of the Law proposal commented, it should exist a greater discussion with all sectors of the population and specially with the social environmental movement, and it should also be valued the contributions and participation of experts in the topic22. IV. About the Cerro Blanco mining project and its antecedents The “Cerro Blanco” mining project is an initiative developed for the Entre Mares of Guatemala LLC, which is a subsidiary society of the Canadian GoldCorp Incorporation. GoldCorp Incorporation, a Canadian enterprise with its central headquarters in Vancouver, British Colombia, work in the acquisition, development and operation of auriferous properties in Central America and other countries in the American continent, such as The Republics of Argentina, Chile and Dominicana. The Corporation mainly extracts gold, silver, copper, lead and zinc23. GoldCorp Incorporation owns San Martin Mine in Honduras, Cerro Blanco Mine in Guatemala24 and Marlin Project also in Guatemala25. It is convenient to mention that San Martin Mine was denounced by the Valle Siria Environmental Committee before the Special Environmental General Attorney’s Office in the Republic Honduras supposedly for incurring in forestall felonies, environmental damage and water pollution. And based in the observations from a inter institutional research team, the same year the this General Attorney’s office requested a formal research against the Company Entre Mares Mineral Honduras Company LLC (GoldCorp subsidiary) which ended up with the imposition of a fine and the subsequent closure of the company’s exploitation activities by the Honduran Natural Resources and Environment Ministry26. Such denounces were motivated by the cyanide usage that provoked among others soil inutilization, water sources pollution, damages to human health, cattle death and serious violations to human rights of the residents in Valle de Siria, who were organized against mining activities. Likewise, it is important to mention the impacts of the mining project Marlin (also acquired by GoldCorp Incorporation), which is a silver mine located in San José Nueva
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Procuraduría para la Defensa de los Derechos Humanos, “Opinión sobre el Proyecto de Ley Especial de Suspensión de los Procedimientos Administrativos relacionados a Proyectos de Exploración y Explotación de Minería Metálica presentado ante la Asamblea Legislativa por los Ministerios de Economía y Medio Ambiente y Recursos Naturales”, San Salvador, October 15th 2012. 23. 23 Consult web: http://www.goldcorp.com/ Retrieved July 4th 2012 24 Consult website: http://www.fundinguniverse.com/company-histories/glamis-gold-ltd-history/ Retrieved July 4th 2012. 25 Consult website: http://goldcorpguatemala.com/institucional/historia/ Retrieved July 4th 2012 26 Consult website: http://www.conflictosmineros.net/contenidos/17-honduras/4738 Retrieved July 4th 2012.
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Esperanza, San Miguel de Ixtahuacán, San Marcos, Guatemala that works since 200327. After the beginning of its operations, constant water quality monitoring was conducted by a number of institutions. As product of this, it was found that in the first decade of 2000, the water had high concentrations of ammoniac, nitrate, nitrite, arsenic, sulfur, aluminum, beryllium, cobalt, copper, chrome, iron, magnesium, mercury, molybdenum, nickel, silver, lead, selenium, vadanium and zinc that exceeded the relevant standards for potable water and that the levels of those metals tended to increase over time. “These standards are relevant because underground water in the underground mine could flow to the superficial water or to the fountainhead which is the one meant for drinking”28. To the end of the decade, the total concentrations of cyanide exceeded more than twelve times (12) the value criteria of the US Clean Water and aquatic life Act, situation that could without a doubt negatively affect superficial water located down the hill29. Marlin Mine was denounced before the Inter American Commission of Human Rights by the mayan communities Sipakepense y Mam, located in the municipalities of Sipacapa and San Miguel Ixtahuacán, Department of San Marcos in Guatemala. As a result, the Commission granted precautionary measures in 201030 in favor of the communities: Tres Cruces, Escupijá, Pueblo Viejo, La Estancia, Poj, Sipacapa, Pie de la Cuesta, Cancil, Chual, Quecá, Quequesiguán, San Isidro, Canoj, Ángel, San José Ixcaniché, San José Nueva Esperanza, San Antonio de los Altos y Siete Platos. In other hand, Cerro Blanco Mine has as goal the “construction and operation of a modern underground gold and silver mine, planned for a 16 year period that includes the stages of exploration, construction, operation and technical closure”31. On 26th July 2007, Entre Mares society of Guatemala presented before the Ministry of Environment, Natural Resources, Energy and Mines of the Republic of Guatemala a study of environmental impact for the Cerro Blanco project32, obtaining the license of exploration from the Guatemalan authorities that same year. The Cerro Blanco mining project is located approximately 153 kilometers east the city of Guatemala, in the jurisdiction of the Asunción Mita municipality in the Department of Jutiapa and has a 174 hectare extension33. Likewise, it’s located approximately 18 kilometers away of Metapán, Department of Santa Ana, Republic of El Salvador34, being in this department where the Salvadorian Guija Lake is located35.
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Consult website: http://goldcorpguatemala.com/institucional/historia/ Retrieved July 4th 2012 Kamp, Dick – Maest, Ann, Evaluación de las Condiciones Previstas y Reales de la Calidad del Agua en la Mina Marlin, Borrador Final, E-Tech International, Ciudad de Guatemala, 2010, 54-55 29 Véase Kamp, Dick – Maest, Ann, supra nota 45, 65 30 Consult website: http://www.oas.org/es/cidh/decisiones/cautelares.asp Retrieved July 4th 2012 31 Consult website: http://goldcorpguatemala.com/entre-mares/ Retrieved July 1st 2012 32 Consult website: http://www.elperiodico.com.gt/es/20070705/actualidad/41349/ Retrieved July 1st 2012 33 Consult website: http://goldcorpguatemala.com/entre-mares/ Retrieved July 1st 2012 34 Consult website: http://www.alcaldiademetapan.org/alcaldia/index.php?option=com_content&task=view&id=4 Retrieved July 1st 2012 35 Consult website: http://www.sica.int/trifinio/areas/guija.aspx 28
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The Guija Lake is located within a international hydrographical (drainage) basin, of which two thirds correspond to the Republic of El Salvador and the last third to the Republic of Guatemala, having a total extension of 44.2 square kilometers36. The limit in the lake (basin) between both countries is set by the Ostua River, whose waters flow down river and get to the Guija Lake 37. At the same time, Cerro Blanco project is located within the Trifinio Region, which is called so because in that point three borders concur: Guatemala’s, El Salvador’s and Honduran’s. The Trifinio Region includes 7541 square kilometers38 and hosts a great diversity of endemic flora and fauna, much of which are under danger extinction39. This region is habituated by around 600,000 people, who are distributed in 45 municipalities, of which 15 belong to Guatemala, 22 to Honduras and 8 to El Salvador40. Among these municipalities is Asunción Mita (Department of Jutiapa) and Metapán (Department of Santa Ana)41. The interest in the protection of the Trifinio Region comes from the fact that this area is where the principal shared drainage basins originates for the three countries, namely: Trinational Lempa basin, Binational Motagua River basin and Binational Ulua River basin. These basins have great importance from an environmental, human and productive point of view, remarkably Lempa River, which is the source of potable water for 37% of the metropolitan area of San Salvador in El Salvador42. In 1997 the treaty for the execution of Plan Trifinio was subscribed by the Republic of El Salvador, Republic of Guatemala and the Republic of Honduras, which recognizes the Trifinio Region as an “area of special interest for the three countries, that represents the indivisible ecologic unity, where just a coordinated and joint action from the three countries would solve the problems of the affected populations regarding the sustainable management of natural resources”43. Likewise, this instrument establishes that “is of 36
Consult website: http://www.deguate.com/artman/publish/geo_lagosrios/Lago_de_G_ija_413.shtml Retrieved July 1st 2012 37 Artículo 1. “… hasta llegar al punto de unión de las dos quebradas que forman la que se llama Quebrada Precipitada; de este punto siguiendo aguas abajo el curso de dicha Quebrada Precipitada hasta su desembocadura en el río Ostúa, y siempre por su línea media; de aquí se sigue el curso del río Ostúa por su línea media y aguas abajo hasta su desembocadura actual en el lago de Güija; desde allí, siguiendo hacia el Sur, por la orilla occidental de la península que de Norte a Sur se interna en el Lago de Güija, hasta llegar al extremo de esta península, o sea a su punto más austral, de aquí atravesando el Lago de Güija, en línea recta, hasta el punto más septentrional de la península llamada Tipa Afuera, que de Sur a Norte se interna en el mismo lago, de aquí, siguiendo por el contorno oriental de esta península y orilla del lago, hasta llegar a la desembocadura actual del río Cuxmapa...”, Mixed Border Commission, Treaty of Territorial Borders between El Salvador y Guatemala, subscribed April 19th 1938 by Executive Agreement and ratified April 27th 1938, Published in the Official Diary Vol. 124, May 12th 1938, San Salvador, 1334. 38 Consult Goverments of the Republics of El Salvador, Guatemala y Honduras, Treaty between the Republics of El Salvador, Guatemala y Honduras for the execution of Trifinio Plan, Guatemala City, October 31 st 1997 , Article 4. 39 Consult Programa de Conservación de Energía y Protección Ambiental, Región del Plan Trifinio El Salvador – Guatemala – Honduras, Organización de los Estados Americanos, Washington, Distrito de Columbia, 1994, foreword 40 Consult Goverments of the Republics of El Salvador, Guatemala y Honduras, supra nota 29, article 4. 41 Ídem. 42 Consult Rhi-Sausi, José Luis – Conato, Dario, Cooperación Transfronteriza e Integración en América Latina: La Experiencia del Proyecto Fronteras Abiertas, Proyecto ILLA – Cespi, Fronteras Abiertas, 2010. 43 Goverments of the Republics of El Salvador, Guatemala y Honduras, supra nota 64, article 3.
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permanent interest for the Parties the sustainable development of the Trifinio Region, in the framework of the central American integration, so that the life conditions of its residents are improved and the biological richness preserved”44. Currently, the results reached by the Trinational Trifinio Comission regarding the management of shared water sources are at stake and exists the possibility of a water conflict to emerge because of the repercussions of Cerro Blanco Mine in Guatemala. As it is publicly known, Cerro Blanco is located in an area that contains thermal water, which has provoked some complications. According to an expert in geochemistry and hydrogeology: “the introduction of hot water in Ostua River, along with the possible geochemical pollution, could affect the river by decreasing deluded oxygen, affecting the diversity and migration of species, since it would create a pollution area that would isolate the water from the higher and lower basin. Furthermore, it would affect river users”45. On the other hand “if acid drainage occurs, this drainage would increase the Ph (hydrogen potential) by mixing with the river water, but it would also liberate iron and aluminum hydroxides as well as other compounds (depending of the final composition of the drainage) that would affect the river’s environment, especially in the sediment area where the micro vertebrate and other fish. These polluted sediments would also be in the surface, especially during strong winter rains, and would flow with the current towards Guija Lake”46. Finally, when “the Mine closes, either with acid drainage or not, the arsenic produced by the oxidation of rocks could be in the solution, since this is soluble in a wide range of Ph. When that occurs, there won’t be any arsenic treatment plant (this processes can even last hundreds of years). Therefore, the arsenic would end up in the river, either in the way of the solution or absorbed in the iron hydroxide suspended of located in sediments. Thereof they would be transported to the Guija Lake”47. In consequence it is possible to deduce that since the approval of its operations, the Cerro Blanco Mining Project has become a slow and certain threat to human life, vegetation, fauna, water resources not only in the Republic of Guatemala, but rather in the Republic of El Salvador as well. And as previously stated, residual water of this mine will be thrown into Ostua River and will eventually flow to Guija Lake, which, besides being a shared water body for both countries, is united to the Lempa River, the most important drainage basin in the Republic of El Salvador. 1. National Human Rights Institution (PDD) actions regarding Cerro Blanco Mining Project In July 18th 2010, the General Attorney and delegates from the Procuraduria for Human Rights Defense of El Salvador, along with its partner organization in Guatemala, visited 44
Goverments of the Republics of El Salvador, Guatemala y Honduras, supra nota 64, considering López, Dina, Análisis del Estudio de Impacto Ambiental para el Proyecto Minero Cerro Blanco, Asunción Mita, Jutiapa, Guatemala, Centro de Investigación sobre Inversión y Comercio, San Salvador, 2010, 10 46 Ídem. 47 Ídem. 45
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the Cerro Blanco Mining Project, where important information was collected regarding the functioning of the mine, approved studies and social responsibility projects currently executed by Entre Mares. That same day, the group got to know the view of the resident and nongovernmental organizations working in the area, which expressed their concern of the effects this extractive activity would carry in the people and environment’s life. In July 30th 2010, we came to a session of Guatemalan Ombudsman to know the progress in the research conducted by them, as well as to define a common monitoring strategy from both human rights institutions. Nonetheless up until now it has been difficult to establish a position to implement coordinated actions. Currently actions are being conducted to create a closer relation with the new General Attorney for Human rights in Guatemala to look for common solutions for this problem. In October 29th 2010, delegates from this Office participated as observers in the fiscalization meeting that the URG-MAIZ parliamentary group of Guatemalan congress organized along with the Minister of Environment and Natural Resources, Minister of Energy and Mines and the Vice Minister of Foreign Affairs and the Governor of Jutiapa. The objective of this meeting was to get to know the position of these authorities regarding the start of operations of Cerro Blanco mine. In this meeting the minister of Environment and Natural Resources from Guatemala, Dr. Luis Alberto Ferraté, presented the report “Performance of the Environmental Commitments acquired by Entre Mares Enterprise LLC, corresponding to the Environmental Impact Study No. 329-07 and resolution No. 2613-2007/ECM/LP of the Cerro Blanco Mining Project”. In November 23rd 2010, the General Procurador for Humans Rights Defense of El Salvador attended a meeting organized by the Environment and Climate Change Commission of the National Parliament, with the purpose to expose the PDDH position regarding the topic of metallic mining in the country. In this occasion the General Procurador took advantage of the opportunity and presented a written report that discussed the Cerro Blanco Mining Project in Asunción Mita Guatemala and it also discussed the concern on human rights and environmental integrity that the Cerro Blanco Mine could generate. It was stated that this issue demands specific direct actions by the Salvadorian State and the need to start an investigation to determine the consequences of Cerro Blanco in the water flows and possible damage for shared water sources in Guatemala and El Salvador. It was expressed that such duty would require the will and common action between the two States, that along with Honduras, share the Basin of Lempa River48. It was equally stated that the Salvadorian State, as potential and main affected, should take the initiative for the construction of a dialogue process with Guatemala, where the interests of coastal population should prime.
48
According to the document from The National Service of Territorial Studies (SNET) called “Nacimiento y Desarrollo del rio Lempa”, May 2005, The basin of River Lempa extends to the Guatemalan and Honduran territory, besides Salvadorian.
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In December 9th 2010, a meeting was conducted in the office of the Minister of Exterior Relations, Ing. Hugo Martínez, with the purpose to discuss possible implications on human rights and natural resources carried by Cerro Blanco Mine. In this meeting a document explaining the PDDH position was also presented highlighting the need to start an investigation about the consequences this extractive project could bring in the water flows and consequently to the Salvadorian population. It was also highlighted the importance of the will from both Salvadorian and Guatemalan states to start joint actions and a dialogue process that bases itself in international law principles, like the principle of causing no visible harm, equitative use of water and the obligation to communicate other States the projects or hydraulic work that may have trans-border repercussions. It is highlighted also that Cerro Blanco Mine is located within an area of special interest which is part of the Trifinio Region, according to the Treaty between the Republics of El Salvador, Guatemala and Honduras for the Execution of Trifinio Plan, which contravenes The Convention on Wetlands of International Importance, especially as Waterfowl Habitat – Rasmar Convention-. In June 22nd 2012, according to the participation request made to this Office by the Minister of External Relations, we attended a meeting of the Interinstitutional Legal Group about Cerro Blanco Mining Project (that works in parallel to the technical, political and diplomatic groups) formed by delegates of that ministry, members of the vice presidency, ministry of environment and natural resources, ministry of agriculture and livestock, ministry of economy, ministry of health, national water administration, and the Executive Hidroelectric Comission from Lempa River (CEL). This meeting aimed to present to the PDDH and members of the General Attorney’s Office the background and a legal report elaborated by the Interinstitutional Legal Group. This report included identified scenarios to address this issue, internal and international legal framework, legal recommendations, a proposal of critical root to discuss and the methodology of work to follow. In this occasion, this Office highlighted that there was already an investigation being conducted about Cerro Blanco, specifically in terms of this mine and human rights. A document was being prepared in order to make present a public statement about it. Likewise, it was informed that the Human’s Right Office could attend meetings of this group as an observer, and that it would be an advisor in human rights related topics. In July 6th 2012, the Interinstitutional Legal Group requested the presence of the PDDH to discuss the issue of Cerro Blanco. In this meeting the progress registered up to this date in the topic of Cerro Blanco was discussed. In July 26th 2012, the personal of this Office attended a meeting of the Interinstitutional Legal Group regarding the Cerro Blanco Project. This meeting was organized by the Ministry of External Relations and the Interinstitutional Legal Group presented the “Technical report of the field visit to the Cerro Blanco Mining Project”, whose conclusions and recommendations are cited as follows: 15
“V CONCLUSIONS: 1. The Cerro Blanco mine has not yet started the exploitation of metals (silver and gold). According to information provided by representatives of the company, it is scheduled to start extraction in 2014. 2. Thermal water is currently being pumped out, and are being physically treated to decrease the temperature and to chemically remove arsenic. These already treated waters are being poured down in the Ostua River, flowing to Guija Lake. Nonetheless, the water is only being treated for arsenic and there’s no treatment for the removal of boron which in these type of waters is found in high concentrations, fact that also limits later usage of these waters. 3. Even though Cerro Blanco Mine is currently in the exploration phase, it already poses a risk to water resources (superficial and underground), to public health, and to the economic development of Guatemalan and Salvadorian population; due to the content of toxic elements of poured thermal waters. 4. The future use of cyanide in the process of metal extraction, as well as the disposal of waste generated in that process also represents a risk. 5. It was not proved the existence of contingency plans against extreme climatic events for the water treatment systems which are open and exposed to such events. V. RECOMMENDATIONS. 1. Be supported by existing regional projects for the execution of field visits to locate poured water and monitoring spots, as well as common El SalvadorGuatemala monitoring activities, to make sure about the water quality both superficial and underwater. 2. Maintain by the Salvadorian party a permanent monitoring of the water quality both superficial and underground at the influence basin. 3. Request greater technical information to Guatemala about: -
Physic- chemical profile of thermal waters and poured water.
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Treatment of the mine’s waste water
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Treatment of rainflow water.
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Treatment of sterile rocks (tip)and dried tail
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Disposition of dried tails in tunnels 16
-
Processing of the mineral
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Closure plan.
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Emergency Response Plan
-
Impact in superficial and underground waters.
4. Propose to Guatemala the establishment of a technical binational group to discuss this issue, in which authorities from Environment, Mines and Hydro resources ministries can participate. 5. Manage other technical monitoring visits to the mine. 6. Request to the authorities of the mine to technically evaluate other alternatives for the management and disposal of thermal waters”. In this last meeting, the progress made by the Interinstitutional Legal Group about the actions to adopt was presented and they also notified that the proposal elaborated would be known by the Ministers Council+ of the Republic of El Salvador. Furthermore, it was also informed about the existence a forum about Cerro Blanco organized by the Central American Parliament in the city of Metapán. In August 22nd 2012, delegates from the PDDH verifies the development of the panel forum “Mining exploitation in Cerro Blanco Asunción Mita, Guatemala, and its consequences for El Salvador” organized by the sub Office in El Salvador of the Central American Parliament along with El Salvador’s National Parliament. This forum ended with the subscription of the so called “Metapán Declaration” by the participant parties. 2. Conclusions about Cerro Blanco Mining Project. In the analysis of the current situation it has been possible to clearly establish the impact that the exploitation of Cerro Blanco Mine, located in Guatemala, can have in human rights of Salvadorian residents. Even though the mining exploitation will take place in the Guatemalan side of the border, based in the technical analysis performed by independent experts, the report elaborated by Salvadorian authorities and after visiting the mine, it can be stated that the extractive activity described will cause great damage to natural resources in El Salvador which will generate impacts in the exercise of rights of its residents, mainly related to the following human rights: life, health, water, feeding and environment. The Cerro Blanco case is a very particular case in the Central American region that shows the transborder effects of metallic mining. The negative effects in fauna, soil, atmosphere, water, climate and interaction with environmental elements will not only affect Guatemala, where this issue originated, but in El Salvador too and consequently in the Plan Trifinio Region, which is an area of special interest for the three States that form that region. This area should be mining projects free, mainly because of 17
irregularities pointed by experts in their studies. Therefore, superficial and underground waters, biodiversity and ecosystems that inhabit that area, as well as the residents of the area are under a latent threat with irreversible negative consequences. For this National Human Rights Institution, it results highly concerning that Cerro Blanco mining project could irremediably impact one of the main water sources for El Salvador, with negative consequences not only in terms of access to clean water for the population (even Guatemalan population) but also it will affect the agriculture and biodiversity of the country. About this last point, it is worth saying that the food system of El Salvador is already in a position of total fragility especially because of frequent food shortage. As a consequence, the negative impacts in the country’s agriculture will affect all the country and will worsen the already delicate food security situation of El Salvador. The chapter related to the Cerro Blanco Mine project, started with an analysis of the background and of the context in which this project emerged, including the behavior pattern that this multinational enterprise GoldCorp. The company’s behavior has included the execution of extractive operations in Honduras and Guatemala, which have put on risk the life of the residents near the area of exploitation of both countries. This should raise an alert for Salvadorian and Guatemalan authorities to take action to protect its citizens. In this sense, the actions this Human Rights Office has made have been directed to activate national Salvadorian institutions and to demand all adequate measures to be taken to prevent damage to the environment and Salvadorian population, in concordance with national and international human rights obligations. This should have as base the analysis of independent experts and the interinstitutional technical report elaborated by Salvadorian authorities,. Based on the affirmation made, it is possible to say that there are human rights that will potentially be affected by the Cerro Blanco Mine, among them the right to life, which is the key stone of all other human rights. It cannot be left aside that the exercise of this right not only means that the Salvadorian state should refrain to perform any action that diminish this right, but it also means that the Salvadorian state should take positive actions towards preventing affectation to rights and towards guarantying the access to the conditions for decent life. Thereof, if the negative consequences of Cerro Blanco Mine occur, the Salvadorian state will be held responsible for the effects that jeopardize life of its residents, which is guaranteed in the constitution and in other international law treaties on human rights. The Salvadorian state can be held accountable even if it was not this State the one who authorized Cerro Blanco Mine, since it’s the State obligation to prevent and protect its residents of situations that could jeopardize their life and their right to a decent life. Likewise, the operations of the Cerro Blanco Mine could pose a risk on the right to health of Salvadorian population, which implicates the prerogative every person has to 18
enjoy good health derived from the effective and early State intervention. It results imperative that the State puts to the disposition of Salvadorian population all their resources to assure quality health, integrity and dignity that every human being deserves. At the same time, the possible harm to the right to environment is also discussed in the present report. The human right to a healthy environment has been incorporated in national and international law, as well as developed by Salvadorian and interamerican jurisprudence. Therefore, this is a right that can be demanded by Salvadorian residents, considering also that the right to a healthy environment is an extension of the right to life. As a consequence, States have the obligation to prevent environmental risks and to create alert systems of such risks. It results then clear that the Salvadorian state has the obligation to assure the right to healthy environment to its residents and it’s within its obligations to work and procure that no internal or external actions diminishes the enjoyment of this right. From the discussed analysis, it is important to highlight the potential transgressions to the information right, from which is derived the state obligation to consult the population that might be affected. It can’t be left aside, that for the consultation right to be effective, the population must be able to participate in decision making and should obtain adequate information about concerning matters. In environmental issues, the right to adequate information has been recognized as an important element for the promotion of a well formed public opinion and for the free exchange of information, aiming to facilitate the solution of environmental problems. Besides these potentially unrespected rights, there is another one to mention: The right to water. As we have previously established, it is evident the impact the mine will have in one of the main water sources of El Salvador, which will prevent people to have access to clean water which will clash with the proper quality of life and dignity of Salvadorian population. This reason makes it imperative that the Salvadorian State takes appropriate measures to avoid water contamination, not mattering where the source of contamination may come from. Regarding the roll of the Salvadorian state in the possible effects of the Cerro Blanco Mine in El Salvador, this Office recognizes efforts made to this date, but so far these efforts have not been enough, since the topic has presented little progress until now, despite the urgency the case deserves and the rapid attention needed due to its collateral harms. Everysince 2009 when the development of Cerro Blanco Mine was made public, civil society, both Guatemalan and Salvadorian, has requested their respective governments to analyze the viability of the project and to take decisions in favor of life, based on the potential impacts that this project would generate in the countries and shared waters from both nations. 19
This effort took the governments to propose the creation of a Binational Comission to study the impacts of metal extraction that could pollute the water of Guija Lake and Ostua and Lempa Rivers. Nonetheless, it was not until September 12th 2012 that this commission made a Joint Declaration that discusses environmental and water topics as well as the creation of a High Level Monitoring Group on Mining and other projects in the border area. Even this represent an important progress, the PDDH considers this is a late reaction, since the Cerro Blanco Mining Project already has the approval of the Guatemalan State and therefore the threat to suffer contamination could be grave and irreversible. There aren’t concrete commitments in relation to mining projects either, and this office considers that such projects already threaten life and health of residents from both countries, which is a priority point. If we start by highlighting that there are already evident observations from experts that state that Cerro Blanco suffers from great irregularities and threatens human rights of Salvadorian and Guatemalan population, we consider that starting a dialogue process about the convenience of executing such project is a responsible attitude of both countries that goes in concordance to their national and international obligations. Subsequently, this dialogue shall later address the general problem that threatens natural resources in both countries. In this sense, this reports pretends to be a valuable tool so that decision makers and population in general get the know possible human rights affectations in Salvadorian territory that will be generated due to negative impacts originated by Cerro Blanco Mine. It also pretends to highlight the actions that both countries take to prevent these damages that affect the fulfillment of national and international commitments that oblige the two States to protect human person from any risks that prevents full development. List of Demands For all previously said, I proceed to develop the following list of demands to the distinguished Commission: 1) That the Commissioner in charge of El Salvador’s rapporteurships visits the Salvadorian state, with the purpose to verify consummated and potential human rights violations infringed to Salvadorian population and to verify the actions the Salvadorian State has done in relation to metallic mining projects, its impacts and environmental conflicts already generated. 2) That based on the mentioned visit; a country report should be elaborated that includes a) the analyses of environmental conditions, with special attention to the introduction of metallic mining projects and its effects and b) the assessment of legislative measures to make sure they are complying with international human right standards. 20
3) That based on the scientific evidence of the effects of metallic mining industry and the social consequences it carries, request the Salvadorian state the implementation of measures that seek to prevent impacts of mining projects taking place inside and outside Salvadorian territory. And clearly, sufficiently and appropriately inform about the actions taken to the Salvadorian population and to this National Institution for Human Rights. 4) That the Commission makes a summon to Salvadorian authorities so that their decisions regarding the introduction of great importance projects, especially the ones related to metallic mining industry, take as base the experience in other countries, scientific knowledge in the matter and the environmental damages already generated in the country and consequently the violation of human rights.
San Salvador, October 16th, 2012. Bsc. Oscar Humberto Luna General Procurador for Human Rights Defense.
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