Litigation that tests the division between corporate and state human rights obligations, and the synergies between environmental and human rights law, is currently underway in Peru. The Tintaya-Antapaccay mine in Espinar, Peru, owned by Glencore PLC, has produced copper for several decades and the contamination of the local environment which results is notorious: residents drink poisoned water every day; their contaminated crops do not sell in the local markets; and heavy metals in blood and urine samples threaten their health. Meanwhile, both Glencore and state authorities remain inactive when it comes to environmental monitoring and health protection.
Local residents mobilized in protest and asked the European Centre for Constitutional and Human Rights if an action lay against Glencore. Leaving aside here soft-law mechanisms such as the OECD Guidelines for Multinational Enterprises, both action in tort and a criminal complaint were considered, but for either option, proof of causation presented a huge hurdle. Several studies identified contaminating substances linked to copper mining in local water sources, and residents’ blood and urine samples. These studies could not, however, prove which particular mining activity was responsible. Glencore argued that natural deposits of these contaminants in the rocks made proving causation impossible. Proving causation is made even harder in cases where there are multiple tortfeasors, and where the full extent of harm to health is only revealed after many years. These challenges made actions in criminal or tort law very difficult.
The challenges of suing the company lead to consideration of whether the state could be sued instead. According to the UN Guiding Principles of Business and Human Rights (UNGP), companies have a responsibility to respect human rights, but the State has an obligation to protect human rights from corporate violations. The Peruvian organisation Instituto de Defensa Legal sued the State, relying on international human rights law (which has the status of domestic constitutional law in Peru), demanding the state develop health plans, provide urgent medical attention and clean drinking water for the residents, and effectively regulate mining activities.
Peru must guarantee the rights to health, water, and a healthy environment under the International Covenant on Economic, Social and Cultural Rights (ICESCR). This includes positive action, such as maintaining a health system and the decontamination of soil and water sources. Where a state lacks the necessary resources, the Covenant obliges states to employ the maximum of their available resources (Art. 2.1), and to respect the minimum core of each right. The State “must demonstrate that every effort has been made to use all resources that are at its disposition in an effort to satisfy, as a matter of priority, those minimum obligations.”
The investment of public money is not the only way for a state to meet its obligation to protect human rights from corporate abuses. International environmental law provides more options. According to the polluter pays principle, set out in principle 16 of the Río Declaration on Environment and Development (1992), in principle the polluting company should assume the cost of decontamination.
If the state cannot identify the polluter, it needs to explore alternatives. And again, the Río principles will help here: the principle of international cooperation (principles 7 and 9) seeks to make science accessible to states with limited resources through the cooperation of all states, given that environmental protection is a universal concern. In fact, Switzerland, where Glencore is incorporated, has offered its support for a scientific study into causation in this case. This was in response to a complaint made by ECCHR and others to the UN Special Rapporteur for the right to water. It was argued that Switzerland has an extraterritorial obligation – under the UNGPs – to ensure that Swiss corporations are not involved in human rights violations abroad. Peru to our knowledge never responded to the Swiss offer, in clear violation of its obligation to make “every effort (…) to use all resources that are at its disposition.”
A concern is that, even if this study went ahead, its results could be inconclusive. Science has its limits, as this mining project illustrates. In such a case, principles drawn from environmental law could again be of assistance. The precautionary principle states that where there is a risk of serious or irreparable damage, lack of full scientific certainty cannot serve as argument to refrain from adopting effective measures to prevent or mitigate that damage. That means, in case of serious contamination, the state must take action – with or without proof of causation.
A joint reading of environmental and human rights law leads to a straightforward result: Peru must protect the right to health, by protecting the environment. It must make sure that the polluter is held accountable for the contamination. To identify the polluter, Peru must seek evidence, if necessary, through international cooperation. If science remains inconclusive, the precautionary principle nonetheless obliges the state to act, and that may include measures against the company, if these prove effective to prevent or mitigate the damage.
This argument was presented in an amicus curiae brief to the Peruvian court in the above mentioned action, and also to the Inter-American Court of Human Rights, in preparation for a Consultative Opinion.