CIEL - San Mateo case (Peru): Impacts of mining on human rights

In 2004, the IACHR accepted CIEL's request for precautionary measures to protect the life and health of the members of the San Mateo community affected by toxic waste from mining operations, which led to the removal of the toxic waste that had been dumped in the community. This is a landmark ruling that recognizes the linkages between environment and human rights. In summer 2006, CIEL presented its brief on the merits of the case, which documented the violation of, inter alia, the civil and political rights to personal integrity, life, and the rights of the child. We also intervened when mine workers threatened to harm and kill Margarita Pérez Anchiraico, President of the Comité de Afectados por la Minería en Máyoc (Committee of People Affected by Mining in Máyoc), who had participated in a Commission hearing that year. Since the death threats began, CIEL has denounced the threats and requested that the Commission call on the Peruvian government to take the necessary measures to protect the life and safety of Margarita and other human rights defenders. In response, Peru has provided police protection to Margarita. CIEL and our partners will continue to do everything we can to support community members of San Mateo de Huanchor; we also continue to monitor the implementation of the ruling.

Additional information

Towards the end of 2003, CIEL received a formal request from CONACAMI (National Coordinator of Peruvian Communities Affected by Mining) for legal assistance. In particular, CONACAMI sought support in its complaint against the Peruvian government for violation of fundamental human rights, including right to life, right to health, right to property, and right to organize, before the Inter-American Commission on Human Rights (IACHR). In response to CONACAMI's request, CIEL has assumed representation of mining affected communities in Peru before the IACHR.

The original complaint submitted by CONACAMI documents 15 cases involving, inter alia, intoxication of children; illegal expulsion from lands; contamination of water, air and land; and other problems experienced by thousands of persons from indigenous and other local communities located near foreign and domestic mining projects. In light of the sheer number of cases involved in the original petition, the IACHR decided to separate them and treat them as 15 petitions. The IACHR then identified three cases for initial discussion: San Mateo de Huanchor, Callao, and Choropampa.

Precautionary Measures

After an initial assessment of the cases, CIEL began working on a request for precautionary measures in the San Mateo de Huanchor case. This case involves toxic mining tailings containing dangerous heavy metals including arsenic, lead, mercury, and cadmium, which have contaminated the members of the indigenous community of San Mateo and the environment. Such contamination has been widely documented in studies conducted by government agencies and by independent scientific research centers, including the prestigious University of San Marcos in Lima.

CIEL submitted a brief to the IACHR on 21 July 2004, laying out the precautionary measures that should be taken to prevent irreparable harm to the life and physical integrity of the members of the Community of San Mateo, in light of the urgent and imminent threat posed by the contamination with toxic metals. More specifically, the brief requested the immediate removal of the toxic waste. To substantiate this request, the brief examined available information showing the contamination suffered by the community, as well as scientific information on the dangers associated with contamination by the four heavy metals in the toxic mining tailings. The brief also argued that contamination was affecting children and indigenous peoples, and thus called for special measures of protection under international human rights law, as recognized in jurisprudence in the Inter-American system. Finally, the brief was careful to avoid engaging the merits of the dispute, emphasizing that precautionary measures were necessary in light of the health and environmental threats posed by contamination with toxic waste.

The IACHR assessed the case and on 17 August 2004 and later on 4 November 2005 requested Peru to take measures to ensure the life and personal integrity of the members of the San Mateo community. Specifically, the IACHR requested Peru to initiate a public health assistance program in San Mateo, with a view to providing medical assistance to those persons who may have been contaminated. The IACHR also requested that Peru prepare, without delay, the environmental impact study required for the removal of the toxic waste, and upon completion of the EIA, initiate the removal of the tailings dump. Other measures requested included the preparation of a schedule of operations to facilitate monitoring of compliance. Significantly, the IACHR requested Peru to take into account the information provided by the affected community.

Initial Analysis

The IACHR's request to the Peruvian government to take precautionary measures strengthens the fundamental rights to life and personal integrity of many Peruvian communities that have suffered the contamination produced by mining. Also, the IACHR's ruling recognizes the 'human rights and environment' linkage in pollution-related impacts on human, and specially children's, health. The recognition of such linkages has been resisted by governments on the ground that pollution is a matter of environmental management, and that every State is sovereign to determine its levels of protection. Furthermore, the IACHR's decision sets an important precedent on the State's residual responsibility with respect to toxic waste dumps that affect surrounding communities.

Admissibility

In November 2004, the IACHR decided that the petition in the San Mateo case was admissible and invited the Parties to explore a "friendly settlement". The IACHR reached its decision on admissibility in spite of the objections of the Peruvian government. Indeed, Peru had argued that the petition was inadmissible because petitioners had not exhausted domestic remedies. The IACHR noted that the petitioners had sought administrative and judicial remedies, but that such remedies had not been effective, had not afforded legal protection, and had been subjected to undue delay.

Removal of Tailings

As part of the compliance with the precautionary measures, the Peruvian government took steps to contain and/or remove the toxic mining tailings. In 2004, the Peruvian Ministry of Energy and Mines (MEM) considered three alternatives, including: 1) not removing the toxic waste, but containing it with plastic; 2) removing the waste wet through tubes; and 3) removing the waste dry in trucks. They decided on the third option, removing the toxic waste using trucks. In September 2005, efforts began to move the toxic waste to a different and safer place. The efforts to remove the toxic waste away concluded in January 2006.

Discussion of the Merits

In June 2006, CIEL submitted a brief on the merits to the IACHR, which detailed why the Peruvian State should be held responsible for the violation of the human rights of community members of San Mateo both due to its own actions and its omissions. First, the State permitted the company to deposit the toxic mine tailings in the community, although it was foreseeable that this would result in dangerous contamination. This harm was predictable particularly given that not even basic safety measures were enforced, such as covering the mine tailings reserve - rather, the mine tailings were left to the open air, even though it was known that with the climate conditions and the strong winds in the zone that the toxic dust would be dispersed easily. Second, even after scientific findings were presented on the high levels of heavy metal contamination in the air, water and soil that exceeded permissible limits, and health studies were carried out that showed high levels of heavy metals in the blood and urine of San Mateo residents, the State permitted the company to continue depositing the toxic mine tailings, with impunity. Furthermore, the State can also be held responsible for not having established an effective regulatory regime or legal system that could have prevented the rights violations, since instruments to assure the protection of rights of the community were either non-existent or ineffective. Finally, the State compliance with the IACHR precautionary measures requests was late and only partial, which further evidences the State's avoidance of its duty to respect and guarantee the human rights of community members.

Police Protection of Margarita Perez

In July 2006, mine workers in San Mateo, Peru threatened to harm and kill community leaders that have supported the IACHR case, including Margarita Perez Anchiraico, the president of the Comité de Afectados por la Minería en Máyoc, and Ruperto Caceda, the president of the Comité de Defensa del Medio Ambiente y Desarrollo Sostenible - San Mateo de Huanchor, and since then they have continued to received threats. These San Mateo community leaders are being targeted because of the belief of the mine workers that the San Mateo case has impeded the reopening of the mine. In response, CIEL informed the IACHR of the threats and requested that measures be taken to protect the life and safety of Margarita Perez and Ruperto Caceda. The IACHR in turn requested that the Peruvian government adopt necessary measures to guarantee the life and physical integrity of Ms. Perez. As a result, Peru has provided police protection for Margarita.

Key Issues of Merits

There are several key issues of the merits that need be resolved, without which the State should be held responsible for not carrying out its duty to respect and guarantee the human rights of the community members of San Mateo. First of all, the State did not comply with several of the precautionary measure requested by the IACHR - they did not fully implement a program for specialized medical care for the San Mateo residents affected by the toxic mine tailings, and they did not carry out remediation of the environment, soil, subsoil, water, or community members' homes that had been contaminated by the toxic mine tailings. These measures should be carried out, as requested by the IACHR. Also, special attention should be given to the children that were affected by the contamination since heavy metal contamination has been shown to have long and sometimes irreversible impacts on health, including to childrens' intellectual development. Finally, the State has not compensated the victims in San Mateo for the physical harms and material losses, which include lost crops, animals, and time at work, and this compensation should be paid to the victims.


For more information, please contact Marcos Orellana.