The export of raw materials, hydrocarbons, and minerals occupy a prominent place in Latin America’s economic model. However, due to the extraction characteristics of some of these resources, environmental conflicts appear in several places around the continent (see details here). According to the UNDP, migration and displacement appear as a result of conflicts due to the activity of extractive industries. In the words of said organization:
"For many developing countries, mineral extraction continues to be an important economic engine with the potential to improve the results of human development, in line with the Sustainable Development Goals (SDGs). When properly managed, mining can create jobs, foster innovation and bring investment and infrastructure to a scale that changes the game in the long term. However, if handled badly, mining can also lead to environmental degradation, displaced populations and an increase in inequality. " (Read more here)
In 1998, the United Nations established the guiding principles of internal displacement to address the protection needs of internally displaced persons. These principles include, among others, the prohibition of arbitrary displacement "in cases of large-scale development projects, which are not justified by a superior or primordial public interest". Although the IACHR has gathered information on the relationship between extractive interests and the displacement of persons, by 2016, in Latin America, only Mexico, Colombia and Peru had adopted laws on internal displacement, and only Guatemala had adopted policies on internal displacement. (see map).
In October 2018, however, a new tool relevant to the discussion appeared, with the release of the first draft of the legally binding international instrument on transnational corporations and other companies with respect to human rights, developed by a working group of the High Commissioner for Human Rights (OHCHR), and described in resolution 26/9.
This tool is important because it refers specifically to internally displaced persons and migrants - without excluding their involvement in other parts of the text - as groups that must be given special attention in consultations (Article 9, point g.) and on the impact of the projects (article 15, point 5 of the implementation). This is significant given that one of the great consequences of the extractive transnationals is the displacement of people due to the repercussions on their economic, social and cultural rights (ESCR), established in the Universal Declaration of Human Rights.
Due to their political, social and environmental characteristics, Mexico and Central America have historically represented geostrategic value for the extraction of multiple natural resources. Mining for obtaining different materials, hydroelectric production and extensive agricultural crops (pineapple and palm, for example, the latter representing an important agrofuel) are some of the main industries related to environmental conflicts, causing potential displacement phenomena in the region.
In this context, it’s important to ask what the displaced people of these territories can do to defend their rights. From the OHCHR draft, four relevant elements can be emphasized for the protection of people’s rights in displacement situations due to the involvement of transnational corporations in their environment:
· Address the legal process without economic cost, since there is a consensus on the need to address the lack of resources of affected communities that request the protection of their rights. Civil society campaigns recommend that once there are sufficient indications that a person is a victim of a human rights violation, the costs of the process to that person are exempted and he or she is not obliged to indemnify the corporate counterpart in case of acquittal. The economic support by the States towards the victims when carrying out legal proceedings of this nature is contemplated in the draft of the OHCHR (Article 8, point 6).
· Creating group processes is necessary, since the legal processes of protection of rights benefit from a collective approach when dealing with the issue of displacement, due to the characteristics of the impact of extractive industries in the communities. This way, it is possible to avoid opening several cases that can become discordant, reduce costs for the State and pool the victims’ resources. The draft accepts and includes the rights of victims both individually and in groups (article 6, point 1, article 8, points 1 and 2, article 12).
· Procure due diligence in the processes, allowing the displaced victims access to the necessary documentation with the cooperation of all parties. At the end of a process, if a displaced person victim of transnationals wins the case, it’s important that the reparation (economic, moral or otherwise) is given within a reasonable time. The impact of both the dispossession of land and the legal process affects several aspects of the victim’s daily life (food, family and community relations, economic activity, physical and mental health) so restoring their original conditions must be a priority for effective justice. OHCHR’s draft refers to cooperation as a function of the national implementation mechanisms of the binding instrument; for example, when responding to inquiries from victims, companies and the general public, or when sending recommendations to improve the implementation of the binding instrument itself (article 3, point 2, detail a. and b.)
· Find an integral solution to the problem, because even when processes are carried out collaboratively (previous point), these are usually long, which may cause the victim to consider agreements that are not integral solutions to their problem in order to resolve it in less time. This type of outcome can also be seen by the company as a simpler way to access land while improving their public reputation, which constitutes a serious antecedent when evaluating the impact of extractive companies, which is minimized. According to OHCHR’s draft, the victims have the right to "a) Restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition for victims; b) Environmental remediation and ecological restoration when appropriate, including coverage of expenses for relocation of victims, and replacement of community facilities."