Juan Ibáñez Montaño
Legal aspects. Part 1. International Law and Human Rights.
“Social tension slows down 54 energy projects. Nonconforming population and environmental impact, factors. Secondary laws and consultation mechanisms are urged. At least 110 infrastructure projects in various sectors – most of them from the energy one, and about 30 from the energy reform – have been affected in their development by social conflicts. The greatest number of problems is located in the states of Oaxaca, Puebla, Veracruz and Quintana ROO.” (El Economista newspaper. Front page. Date of publication: February 20, 2017.)
This dramatic news was published in a national newspaper in Mexico. However, the reality (not only in Mexico but also in several countries in Latin America and North America) is that, at least, major infrastructure development projects are affected in their execution (delays, suspensions in works) or in extreme cases permanently suspended, by the social opposition of various communities (in the case of Mexico: Individual Owners or Landowners, Agrarian –Land- Communities, Indigenous Communities) and Social Representation Groups of various kinds, as they are Non-Governmental Organizations (NGOs). Traditionally, environmental, social, political, urban and other problems are being argued.
The magnitude of this problem, from its legal perspective, can be understood and better addressed from the framework of understanding, respect and application of Human Rights. The complex structure of the International Organizations (United Nations System, Regional Organizations – in this case the Organization of American States – Organization for Economic Cooperation and Development, and others of which Mexico is a part) has produced a vast series of provisions (International Treaties) related to respect for the Human Rights of Communities affected by the development of Infrastructure projects, to take into consideration and that also applies in all countries that have signed and ratified such international agreements. These international provisions are a source of inspiration for domestic legal provisions, in addition to being binding in each host country. Such is the case of Mexico.
Human Rights in Mexico:
On June 10, 2011, the first paragraph of Article 1 of the Mexican Constitution was amended, stating that all persons shall have the rights recognized by the Constitution itself and by the international treaties in which the Mexican State is a party. In other words, as from this reform, international treaties with protective provisions of Human Rights have a constitutional level in Mexico: In other words, a rule with a Human Rights content that is part of an international treaty signed and ratified by the Mexican State has a Constitutional rank, and all The authorities of the Mexican State must prevent, investigate, punish and repair violations of these fundamental rights. Likewise, the above mentioned reform imposed two principles of constitutional interpretation: 1) The Interpretation as it implies that the norms concerning Human Rights must be interpreted in accordance with the Constitution itself and the International Treaties with Human Rights, the latter forming a substantive part of that; 2) The Pro Personae or Pro Hómine Interpretation: Principle of recognized practice in the International Law of Human Rights, which means that, when there are different possible interpretations of a legal norm, one must choose the one that best protects the holder of a Human Right.
Due to the above, special attention should be paid to the international treaties that have been subscribed by Mexico, related to the basic aspects that regulate the attention and protection of the Human Rights of Peoples, Indigenous Communities, Agrarian Communities and Populations in general settled or Related to the places where infrastructure projects will be developed.
Mexican Energy Reform:
The Mexican Constitution was amended in 2013, by virtue of it the energy sector was totally reformed allowing private companies to invest and participate in this sector; among others (2014), the Hydrocarbons Law and the Law of the Electrical Industry were legislated. Both laws provide for a chapter on land use and occupancy, regulating the basic aspects of land acquisition for rights of way in energy projects, as well as social impact evaluation and public consultation to communities. Although the regulation of the ways of acquiring rights of way will be dealt with in the second part of this work (as well as the Social Management of projects), it should be mentioned that both laws order that the Constitution, laws and international treaties signed by Mexico (regarding indigenous communities)must be obeyed, as well as respecting the principles of sustainability and respect for the human rights of the possessing communities of the regions in which the energy projects are intended to be developed. On the other hand, and according to the international practice on the matter, it is also foreseen the obligation of the Mexican State to carry out a Social Impact Study regarding the area in which the infrastructure project will be executed, as well as to carry out a previous, free will and informed consultation with the social communities and indigenous communities where these projects are intended to be carried out, in order to reach agreements with them.
All these obligations have their origin both in the internal Mexican legislation (special treatment that in our Constitution is given to agrarian communities and indigenous peoples), as well as in the international sphere, as we can see in this work.
In this context, it is worth mentioning that at present there are at least 5,000 indigenous groups in the world, composed of some 370 million people living in more than 70 countries. In Mexico there are 68 indigenous peoples speaking 68 indigenous languages and 364 ethnolinguistic variants. The population considered indigenous represents 21.5% of the country’s total population.
Mexico is a country with an intense legal and diplomatic activity in the international field, with a recognized prestige in the same. The international treaties signed on these matters are no exception. The most relevant should be mentioned:
United Nations:
- International Covenant on Economic, Social and Cultural Rights.
- International Covenant on Civil and Political Rights.
- Declaration on Rights of Indigenous Peoples.
- International Convention on the Elimination of All Forms of Racial Discrimination.
- The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.
- The UN Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People, report.
- Indigenous and Tribal Peoples Convention, 1989
- Agreement Establishing The Fund For The development Of The Indigenous Peoples Of Latin America And The Caribbean. Madrid, España, 1992.
- The Convention on Biological Diversity (CBD). 1993. Río de Janeiro, Brasil.
- The Rio Declaration on Environment and Development 1992
- The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity. 2010, Nagoya, Japan.
- Working Group on the issue of human rights and transnational corporations and other business enterprises:
- Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework”.
- Statement at the end of visit to Mexico by the United Nations Working Group on Business and Human Rights Mexico City, 7 September 2016.
Organization of American States:
- Program of action on indigenous peoples in the Americas.
- Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples.
Organization of American States Literature:
- Indigenous Peoples, Democracy and Political Participation.
- Indigenous and tribal peoples’ rights over their ancestral lands and natural resources. Norms and Jurisprudence of the Inter‐American Human Rights System.
- OAS Department of International Law Program of Action on indigenous peoples in the Americas.
- Participation of Indigenous Peoples in the Inter-American System: Mechanisms and New Tools Proposed.
Organization for Economic Co-operation
and Development (OECD):
- OECD Declaration and Decisions on International Investment and Multinational Enterprises.
- Guidelines for Multinational Enterprises.
American Convention on Human Rights:
- American Convention on Human Rights.
- Additional Protocol to the American Convention On Human Rights in the area of Economic, Social an Cultural Rights “Protocol of San Salvador”.
- American Declaration on the Rights of Indigenous Peoples
- Report “Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities.
- Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2003.
World Bank:
- Operational Manual OP 4.10 – Indigenous Peoples
Considerations:
Of the very abundant international conventions we can highlight some of the obligations of Mexico regarding the subjects that occupy us:
Regarding to some of the International Treaties:
Convention No. 169 “On Indigenous and Tribal Peoples in Independent Countries” of the International Labor Organization (ILO):
Its Basic Principles are: – Identification of indigenous and tribal peoples; – Non-discrimination; – Special measures to combat the situation of vulnerability; – Recognition of culture, the right to decide priorities for development, and the right to prior, free and informed consultation. In addition, States are obliged to: – “consult” the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever legislative or administrative measures are envisaged, which may directly affect them; – To establish or maintain procedures with a view to consulting the communities concern in order to determine whether and to what extent the community interests would be prejudiced, before undertaking or authorizing any program for exploring or exploiting the resources on their lands ; – to consult with respect to the principles in good faith and in a manner appropriate to the circumstances, with a view to reaching agreement or obtaining consent on the proposed measures; It obliges Governments to take measures in accordance with the traditions and cultures of the peoples concerned, in order to make them aware of their rights and obligations, especially with regard to work, economic possibilities, education and health issues, social services and the rights arising from such agreement.
United Nations Declaration on the Rights of Indigenous Peoples:
It mainly protects their collective rights by establishing the State’s duty to consult with the communities concerned before adopting and implementing legislative or administrative measures affecting them. They shall cooperate in good faith with such communities through their own representative institutions in order to obtain their free and informed consent before approving any project affecting their lands or territories and other resources, particularly in relation to the development, use or the exploitation of mineral, water or other resources.
World Bank:
It is provided that in order to obtain financing for the elaboration of a project that affects an indigenous community, a consultation process should be carried out.
Cartagena Protocol:
It establishes the obligation of States to make socio-economic considerations resulting from the effects of living modified organisms on the conservation and sustainable use of biological diversity, especially in relation to the value of biological diversity for indigenous and local communities.
Protocol of Nagoya:
Urges States to take into consideration customary laws, protocols and procedures as appropriate for traditional knowledge associated with genetic resources; with the effective participation of relevant indigenous and local communities, to establish mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations.
The Guiding Principles on Business and Human Rights:
United Nations publication prepared by the Special Representative of the Secretary-General whose objective is the protection, respect and satisfaction of human rights by transnational corporations and other enterprises. The Special Representative annexed the Guiding Principles to his final report to the Human Rights Council (A / HRC / 17/31). This publication includes an introduction to these Principles and a summary of the process that led to its elaboration. The UN Human Rights Council also endorsed those principles 17/4, dated 16 June 2011.
The Guiding Principles are based on the recognition of the obligations of States to respect, protect and fulfill human rights and fundamental liberties; the role of companies as specialized bodies of society that perform specialized functions and that must comply with all applicable laws and respect human rights; the need for rights and obligations to be accompanied by adequate and effective remedies in case of non-compliance.
These apply to all States and to all enterprises, whether transnational or otherwise, regardless of their size, sector, location, owners and structure.
It is important to emphasize that the principles do not establish new obligations of international law, nor restrict the obligations of a State in international law nor in the matter of human rights.
Of the 31 principles, the “Principle of Due Diligence” should be emphasized: Companies must proceed with due diligence in the field of human rights to identify, prevent, mitigate and respond to the negative consequences of their activities on those rights.
This process should include an assessment of the actual and potential impact of human rights activities, the integration of findings, and actions in this regard; the monitoring of the responses and the communication of the way in which the negative consequences are dealt with.
In connection with the Guiding Principles, a United Nations Working Group on Business and Human Rights was formed. Said Group made a ten-day visit to Mexico. The objective was to identify initiatives, opportunities and challenges to implement the principles in Mexico.
From the visit a Declaration was issued whose main aspects are:
It reiterates the criterion that the Principle of Due Diligence: is the “Core of the Guiding Principles”, expressly referring that:
“… all enterprises (including those owned by the State) have a responsibility to respect human rights, regardless of the State’s ability to fulfill its human rights obligations. However, as we saw during our visit, companies must do much more to uphold human rights standards and prevent them from seeking to benefit from impunity, corruption and lack of transparency and accountability.
“From the information obtained during our visit, it became clear that the main concerns about human rights violations related to the company are related to an inadequate exercise of due diligence by the government and companies in the design and implementation of large-scale projects scale. These are mainly projects in the mining, energy, construction and tourism sectors that often affect indigenous communities.”.
“As the Guiding Principles emphasize, the exercise of human rights due diligence should help to avoid such situations. Appropriate consultation with communities affected by business activities is a central aspect of the human rights due diligence exercise, as it is of great importance to promptly identify concerns and grievances.”.
“Several of the companies, with which we spoke, emphasized that consultation with indigenous communities is a responsibility of the federal authorities and therefore not their responsibility. In this regard, we would like to emphasize that companies have a responsibility to avoid causing or provoking adverse human rights impacts through their activities, regardless of the ability or willingness of the State to fulfill its human rights obligations. In our view, companies could and should, in all cases, take an active interest in ensuring the exercise of due diligence in human rights, including in their value chains, to achieve solutions where all parties win or less acceptable. “
“We would also like to emphasize that the exercise of due diligence in human rights, as set out in the Guiding Principles on Business and Human Rights, requires consultation not only with indigenous peoples, for whom human rights standards are applied, but also with all other affected communities.”.
Inter-American System for the Protection of Human Rights:
The Inter-American System of Human Rights is the structure adopted for the promotion and protection of human rights in America, in the face of the violation of human rights by the State.
To this end, it will be necessary to take into account the principles established in the American Convention on Human Rights and the relevant regional treaties; (Inter-American Court of Human Rights) and the recommendations of the quasi-jurisdictional organs (Inter-American Commission on Human Rights and mechanisms derived from it).
In order to protect and promote human rights, the OAS has established various instruments (Charter of Organization of American States, 9 Conventions, Inter-American Charter on Human Rights, Rules of Procedure of the Inter-American Commission on Human Rights, Statute of the Court Inter-American Court of Human Rights, and the Rules of Procedure of the Inter-American Court of Human Rights) to protect specific Human Rights:
In this sense, it is important to consider the reform to Article 1 of the Constitution in Mexico: the Human Rights contained in International Treaties signed by Mexico are Constitution. They are rules of the highest hierarchical level in our country, and the authorities in Mexico, attentive to their obligation to prevent, investigate, sanction and repair violations of human rights, are obliged to refrain from applying any rule of domestic law that Is contrary to the aforementioned norms of international law, through a consistent interpretation and for the benefit of the person (Principle Pro Hómine).
In this way, the binding force for Mexico and the other States parties to the Organization of American States and the American Convention on Human Rights must also be binding on the judgments issued by the Inter-American Court of Human Rights, as well as the pronouncements made by The Inter-American Commission on Human Rights.