Guatemala, one of the countries of the Northern Triangle of Central America, has been struggling with economic and political troubles in recent years. Still recovering from an internal armed conflict from the 1980s, and undergoing a broad impunity investigation carried out by the International Commission Against Impunity in Guatemala (CICIG), Guatemala is also dealing with developing its economy. Like other similarly developing countries, Guatemala has turned to the mining industry as a way to create jobs and attract foreign capital. However, the permitted operation of the Escobal mine by Mineria San Rafael, Tahoe Resources’ Guatemalan subsidiary, in majoritarian indigenous rural areas is a violation to the indigenous community’s right to consultation and right to life as established by the American Convention on Human Rights.
In July, Guatemala’s Supreme Court of Justice issued a preliminary suspension of Tahoe Resources’ mining license, including production of the Escobal mine. On appeal Guatemala’s highest court, the Constitutional Court, decided to uphold the preliminary suspension until the affected indigenous communities are consulted as required by international law. In early September, the Guatemalan Supreme Court of Justice allowed Mineria San Rafael to resume production while simultaneously conducting the required consultations with the affected indigenous communities. Local activists have constructed a roadblock in the nearby town, protesting the continued operation of the mine. Tahoe, on the other hand, claims that as one of the largest sources of silver in the world, the Escobal Mine is a benefit to the overall Guatemalan economy because ninety-five percent of the jobs at the mine are held by Guatemalans.
Under international law, Guatemala has a duty to respect the life of indigenous people and to protect their right to dignified life. Article 29, the interpretation provision, of the American Convention on Human Rights (American Convention) states that the substantive provisions of the Convention are to be interpreted to the most protective standard under applicable international treaties to which the State is a party. Thus, in Sawhoyamaxa Indigenous Community v. Paraguay, the Inter-American Court of Human Rights established that in matters of development of their traditional lands, the indigenous communities’ protections under Article 4, the right to life provision, are those established by Convention No. 169 of the International Labour Organization (ILO). Having ratified the Convention No. 169 in 1996 as part of peace negotiations to end the armed conflict, Guatemala is a party to the treaty. Under Convention No. 169, Guatemala had a duty to consult the indigenous communities when deciding whether to grant Tahoe Resources a license to mine and a duty to protect their environment.
The Court further stated that under Article 4 of the American Convention, states have the duty to perform due diligence in the implementation of public policies or operations that could create a risk to life. The American Convention, through Article 1, further establishes that states have a duty to protect the rights of individuals within their jurisdiction. Therefore, Guatemala is responsible not just for its actions as the State, but also for ensuring that other actors do not violate the rights of those within Guatemala’s jurisdiction. In this case, the other actor is Tahoe Resources.
On the surface, the Constitutional Court’s decision to require the consultation of the indigenous communities surrounding the mine seem to fulfill Guatemala’s obligations. According to Convention No. 169, Article 6, consultations must be made in “good faith and in a form appropriate to the circumstances.” The Supreme Court of Justice’s recent approval for resumption of production at the Escobal mine before completion of the required consultation process is not in good faith. Continuing production at the mine creates foreseeable risk to life in the form of destruction of their traditional lands and the environment. Recent testimony about the destruction to the surrounding land shows that by allowing the mine to continue production and to use large quantities of water, Guatemala is permitting irreparable harm to the land and the community of San Rafael. Because destruction of the lands and violence to the surrounding communities continues during the so-called consultations, these consultations are not being conducted in good faith. By allowing production to continue while the consultations are conducted, Guatemala is failing to provide sufficient protections to the indigenous communities.
The continued operation of the mine is not appropriate under the circumstances because the harm is irreversible and further fuels the violence against the protectors of human rights in Guatemala. Tahoe Resources received approval to continue production from the courts, but not as a result of the required consultations to the indigenous communities. Rather than giving in to the large corporations, Guatemala should follow El Salvador’s example of banning mining as a matter of cultural and environmental protection. By doing so, Guatemala would be fulfilling its duties to ensure the right to life and the right to dignified life under the American Convention on Human Rights.