Rights as Usual

It is a pleasure to welcome Danielle Anne Pamplona (@DaniAPamplona) to Rights as Usual. She is a Professor of Law and Head of the Human Rights Clinic at Pontifícia Universidade Católica do Paraná (PUCPR) in Brazil. She is also the Vice President of the Global Business and Human Rights Scholars Association, and Vice Director of the Latin American Academy for Human Rights and Business. This post is hers.

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Introduction

In a case regarding mining licenses laws in the northern state of Roraima, the Federal Supreme Court (STF) of Brazil has the opportunity to address – for the first time – the duty of the state to protect human rights and the environment in the context of business and human rights (BHR). The case (ADI 6672) shall determine if gold mining permits granted without Environmental Impact Assessments (EIA) are in accordance with the Brazilian Federal Constitution and the American Convention on Human Rights.

Since 8 February 2021, the state of Roraima has loosened its environmental regulations to foster mining projects. Among the different measures adopted, the law has removed the prohibition of using mercury in mining operations, contravening the Minamata Convention, which is an international treaty designed to protect the health and environment from the adverse effects of mercury. Brazil has been a party to this treaty since 2017. Although there is no date for the STF to release a merits judgement, in February 2021 the Court adopted a precautionary measure, indefinitely suspending the application of the new law.

The case has been litigated as a breach of the rights to a healthy environment, to health, physical integrity and life. However, interveners could have stressed the serious implications this case has for the field of BHR in Brazil. The Human Rights Clinic at Pontifícia Universidade Católica do Paraná (PUCPR), which I lead, has partnered with the Human Rights and Environmental Law Clinic of the State University of Amazonas (UEA), led by Profa. Silvia Loureiro; the Laboratory of Molecular Pharmacology of the Federal University of Pará (UFPA), led by Prof. Maria Elena Crespo López and the Centre for Comparative Legal Cultures, Internationalisation of Law and Justice Systems (CCULTIS), led by Prof. Jânia Saldanha, to prepare an amicus curiae brief.

We were challenged to articulate the BHR implications of this case and to use the UN Guiding Principles on Business and Human Rights (UNGPs) to shed light on the content of the State duty to protect human rights. This post summarizes the importance of understanding this legal discussion from the perspective of BHR, presents and analyzes our contribution to the amicus curiae brief and reflects on the State’s responsibility to protect human and environmental rights.

Gold mining and the use of mercury

Gold exports are a fundamental activity for the Brazilian economy. In 2020 Brazilian gold exports grew 36% compared to 2019: from US$3.6 billion to almost US$5 billion, with a volume growth of almost 8%, from 92 tonnes to 99 tonnes in 2020. Gold export, to Canada alone, grew 148% with respect to 2019. Gold mining, especially on a small scale, uses mercury. Liquid at room temperature, mercury does not decompose. Instead, it is transformed to adapt to the environment: air, water or land. When heated, its gaseous form remains in the atmosphere until it falls with the rain and then contaminates the land and water outside gold mining areas. Because of the nature of this element, 81% of fish collected, among the most consumed by the local population in northern states, are contaminated by mercury. The Amazonian population presents very high levels of mercury in the body, and even people living far from the mining centres are contaminated. Although mercury has been banned in several countries, the February 2021 statute adopted by the state of Roraima authorizes the use of mercury for gold extraction against scientific evidence.

One of the main problems is that this statute miscategorizes beneficiaries. In principle, the law is meant to help prospectors (garimpeiros). Historically, prospectors are small-scale, traditional miners who extract gold located in the riverbanks. Mining laws are lenient towards them as they work in harsh conditions to provide a subsistence to them and their families. However, this artisan view of gold mining in the Amazon forest is no longer accurate.

Gold mining involves a variety of highly mechanized extraction techniques, where production is structured in such a way that it configures the entrepreneurial activity itself. Rafts, suction dredges, loaders, crawler tractors and hydraulic excavators are examples of the machinery used for gold extraction. These are complex procedures that require specialized machinery and techniques that have severe human and environmental impacts.

Yet, the aforementioned statute extends protections intended for small-scale miners to the large businesses who use these techniques. This is a clear distortion of federal laws to the benefit of corporations. The statute facilitates the exploitation of gold at low cost at the expense of socio-environmental rights.

The duty to protect, taking all measures possible and fostering coherence

As readers of this blog know, the UNGPs clarify that States have a duty to protect rights vis-à-vis business activities. In addition to the UNGPs, the Special Rapporteur for Economic, Social, Cultural and Environmental Rights of the Inter-American Commission states that the right to sustainable development is centred on the well-being and rights of people and communities and not on economic statistics.

The State has a duty of diligence and must ensure that its measures do not allow human rights violations. In the Kalinã and Lokono People vs. Suriname, the Inter-American Court of Human Rights (IACtHR) used the UNGPs to reinstate that States have the responsibility to protect human rights against violations committed in their territory and/or jurisdiction by businesses. The Inter-American Commission on Human Rights takes the same view. In the Inter-American Human Rights System, to determine the responsibility of the State, it is sufficient to show the lack of due diligence to avoid such breach or by failing to punish those responsible. This has been the understanding of the IACtHR since its first case.

The UNGPs establish that the State has the duty to indicate to companies what conduct it expects of them. This responsibility lies within the Brazilian State as a whole, and at this moment, it is in the STF’s hands. Can the STF guarantee that Brazil complies with its international commitments and constitutional duties? In our view, the statute breaches the right to health of people immediately around the mines and those far away but who suffer the effects of mercury contamination, all in the name of economic development. The Brazilian Constitution expressly states that economic development should not happen at the expense of human dignity and the protection of the environment.

The UNGPs also establish the need for political coherence between the organs of government and between the different levels of administrative and political organization – especially in a federal State. In this case, Brazil assumed an international commitment to the protection of human rights and cannot allow the executive or legislative branch of a member state to take a decision to the contrary, following Article 28 of the American Convention Federal Clause. In this sense, the Special Rapporteur for Economic, Social, Cultural and Environmental Rights of the Inter-American Commission has stated that the State’s duty of prevention “requires the corresponding authorities to adopt appropriate measures to prevent the real risks against human rights arising from the activities of companies”. Among these authorities are the National Congress and the Judiciary.

Final comments

This case enables the judiciary to comply with the State duty to protect human rights by ensuring that the local legislature indicates to companies the conduct they should adopt, which is to not use mercury for gold extraction. It is, without a doubt, a great opportunity for the judiciary to frame mining regulation as a BHR issue, opening up the possibility of defining the content of the Brazilian State’s duty to protect health and environmental rights from corporate abuses.