UN Working Group on Business and Human Rights takes Peru to task
19 August 2017
The UN Working Group on Business and Human Rights visited Peru between 10-19 July to monitor implementation of the UN Guidelines on Business and Human Rights.
Delegates met with government ministries, including the prime minister’s office and the ministries of foreign affairs, interior, justice and human rights, environment, energy and mines, and labour. They visited the regional governments of Loreto, Cajamarca, Cuzco and Apurímac, and met with civil society organizations, indigenous leaders, local communities, and with representatives of the private sector (including Confiep), Petroperú, and company representatives from Yanacocha and Las Bambas.
Soon after the visit, the group published its initial assessment in a public statement. The final document, which will include a series of recommendations, is due to be released during the 38th UN Human Rights Council session in June 2018. What follows is a summary of the main findings.
While the Working Group welcomed Peru’s efforts to reduce poverty, it noted that the priority given by successive governments to the promotion of direct investment had yet to generate equitable and sustainable development, and had frequently been at the expense of human rights. It noted Peru’s desire to become part of the OECD; as such, it welcomed efforts to create policy criteria in line with those of the OECD.
It mentioned the persistence of social conflicts (with 70 people killed between 2012 and 2016) arising mainly from private, large-scale investments that endangered the health, livelihoods and environment of surrounding communities. It pointed out that the high incidence of social protest “suggests that the current strategies to prevent and mitigate the adverse effects of direct foreign investment to human rights have failed” and that resort to confrontation had tended to take precedence over pre-emptive strategies.
In the mining sector, the group pointed to communities’ main concerns being centred around water and soil contamination caused by heavy metals and the lack of proper healthcare in dealing with the presence of such metals in people’s bloodstreams. Social conflict had also been associated with problems of land acquisition, since these often involved using coercion or underhand methods. The case of Maxima Acuña and the threats that she and her family had faced was seen as typical. Problems of illegal artisanal mining and dire working conditions in such operations were mentioned, along with those of human trafficking.
In the oil sector, the Working Group focused its attention on the frequent oil spills in the Peruvian jungle and the inadequacy of remedial measures. Blocks 192 and 116 were seen as emblematic. As regards the former, delegates picked up on recent observations by the UN’s Special Rapporteur on the Human Rights of Indigenous Peoples and reasserted the need to suspend any new exploration contract until environmental concerns over remediation are dealt with and proper consultation takes place with affected communities. On Block 116, the group drew attention to the judicial verdict nullifying the operating licence where the right to prior consultation had been ignored.
The report expressed concern at the failure of the current system of Environmental Impact Assessments (EIAs) to prevent and mitigate conflict and human rights abuses. It cited the current public health emergency in Cerro de Pasco as an example (see PSG article). Its authors called for a “strengthening [of] due diligence to protect human rights through the EIA and for strong fiscal evaluation” and the need “to consider the long-term costs caused by substandard environmental safeguards”.
The report welcomed the creation of the SENACE (Servicio Nacional de Certificación Ambiental de Inversiones Sostenibles), the entity charged with overseeing and approving EIAs, and it applauded the guidelines SENACE had set out which placed emphasis on the social aspects of EIAs. The report pointed to the need for SENACE to be given sufficient funding to carry out its work and to its having a clear mandate in ensuring due diligence over human rights in the implementation of development projects.
On company responsibilities for ensuring community participation, the Working Group highlighted the case of Las Bambas where changes were made to the EIA without the involvement (or even the knowledge) of local communities. By law, a company is not obliged to consult on modifications to an EIA when it is deemed that these would not to cause significant environmental changes (though this was arguably far from being the case at Las Bambas, see PSG article). Even when not legally bound to do so, it argued that companies should have a structured consultation plan for indigenous and non-indigenous communities in order to identify and mitigate negative human rights impacts over the lifetime of a project.
The report touches on the situation of human rights defenders, especially the use made of the judicial system to harass them, and was critical of the use of the police to provide private security services to companies. It mentions labour rights, including the right to unionise and the high percentage of informal labour in the country, the lack of equitable access to justice, and the role of the ombudsman’s office (Defensoría del Pueblo) in dealing with complaints about company operations.
Finally, the Working Group welcomed the Peruvian’s government’s efforts to create a Punto Nacional de Contacto (PNC) as part of its commitment to the OECD guidelines for multinational companies, and its promise to produce a national plan of action for business and human rights. PNC is supposed to provide an independent mechanism through which complaints can be filed about the activities of companies. Since it comes under Proinversión, it forms part of the Ministry of Economy and Finance (MEF).