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Institute for Policy Studies | 13 September 2022
Colombian courts must not be undermined by shadowy international tribunals, say campaigners
by Jen Moore
A group of international organizations are appealing to the highest court in Colombia over ongoing concerns of human rights violations at one of the largest open pit coal mines in the world. The organisations call on the court to uphold its earlier decision supporting the rights of Indigenous communities resisting the expansion of the Cerrejón mine.
The organizations, Terra Justa, the Institute for Policy Studies (IPS) – Global Economy Program, War on Want, Global Justice Now and the London Mining Network, filed their concerns with the court after mining giants, Glencore and Anglo American, brought arbitration claims against Colombia. The companies are using a system of secretive tribunals outside of the national legal system, known as investor state dispute settlement or ISDS, to avoid implementation of the Constitutional Court’s decision suspending expansion of the Cerrejón coal mine in favor of Wayúu rights and protection of the Bruno river.
This comes as local communities have blockaded the mine over the company’s unmet commitments, including access to water. Campaigners are concerned about protesters’ safety and are urging Glencore to resolve the issues in collaboration with the communities.
Misael Socarras from the Wayúu community Gran Parada, a complainant in the Constitutional Court case and part of the organization Wayúu Women’s Force said:
“As Wayúu and Afro-Colombian communities, we demand respect for our territory along with our rights to life, water, and food security and sovereignty. These multinational companies are not from here and should not be able to override our decisions and those of the court.”
Aldo Orellana López of TerraJusta said:
“Extractive companies pursue supranational arbitration not only to gamble on millions or billions of dollars in compensation, but to pressure decision makers and assert corporate control over nature and people, especially in the Global South. We urge the Constitutional Court to not be swayed by these arbitration suits, but to fulfill its role and ensure respect for the rights of the Wayúu people to water, health and food sovereignty and protect the Bruno river.”
Jen Moore from the Global Economy Program at the Institute for Policy Studies said:
“The investor-state dispute settlement system that is now incorporated in almost three thousand International Investment Agreements around the world, is exclusive to foreign companies and highly unjust. Glencore should drop its claim and respect the decision of the Constitutional Court to protect the Bruno river and the Wayúu people’s rights.”
The Committee for Defense of Water and the Santurbán Páramo said:
“Foreign mining companies have brought six supranational arbitration cases against Colombia over Constitutional Court decisions of vital importance for the protection of water and essential ecosystems in this country, and for the reparation of social and environmental damages that communities have faced. It is urgent that the government denounce the International Investment Agreements to which Colombia is signatory and refuse to negotiate any others that allow foreign companies to resort to ISDS, evading the Colombian justice system.”
The Cerrejón open-pit coal mine has operated for almost four decades in La Guajira, in the north of Colombia. The company that operates the mine is now owned by the Swiss transnational Glencore. However until early 2022, Glencore, Anglo American and BHP had equal shareholdings.
For years, local communities in La Guajira have suffered human rights violations and environmental impacts from the mine. These have included the dispossession and displacement of up to 35 Wayúu Indigenous and Afro-descendant communities from their ancestral territories, with irreparable socio-cultural consequences. Coal extraction has also contaminated air, water and soil, including diverting, interfering with, or drying up about 44 local streams.
In 2017, the Constitutional Court decided to suspend a project to further expand the Cerrejón mine, called La Puente, following concerns raised by the Wayúu communities. The project would destroy part of the Bruno River ecosystem, which has irreplaceable spiritual and cultural importance for local people, as well as being an essential water source.
Glencore and Anglo American filed their claims in mid 2021 under the terms of the Swiss and UK Bilateral Investment Treaties respectively with Colombia. The companies are making use of investor-state dispute settlement (ISDS), the provisions for which are found in these treaties. In early 2022, after the suits were filed, the Inter-Institutional Technical Working Group that was established to address issues at the Cerrejón mine and is chaired by the Ministry of the Environment issued a report favoring the mine expansion, indicating that the lawsuits could be having a ‘chilling effect’.
On July 1, 2022, Anglo American discontinued its suit against Colombia after it sold its shareholdings in Cerrejón to Glencore at the start of the year, and possibly as the ISDS claim had already had its desired effect – to push the Colombian government into acquiescence.
Glencore’s continued claim for an undisclosed amount could still be putting undue pressure on the government and court system.
The suits against Colombia are emblematic of a broader trend in which extractive industry companies are resorting to ISDS to undermine judicial independence and other state bodies in favor of Indigenous peoples and other affected communities. Transnational mining companies have brought or threatened a total of ten arbitration cases against Colombia with active cases totalling almost US$2.5 billion dollars claimed. In the majority of these claims, investors are suing the country over the Constitutional Courts decisions.
Key highlights from the Amicus Curiae brief are available in English here. A more detailed summary of the Amicus Curiae brief is available in English here. The full document is available in Spanish here.
For more information on this story and to reach out for interviews:
Aldo Orellana, TerraJusta (Bolivia/Ireland/UK), firstname.lastname@example.org
Jen Moore, Associate Fellow, Institute for Policy Studies (IPS) – Global Economy Program (US), email@example.com
Javiera Martínez, Latin America Coordinator (UK), London Mining Network (LMN), firstname.lastname@example.org