Cerrejón Coal in Colombia: Access to justice and reparation become a chimera
For 20 years, there have been numerous reports of serious human rights abuses associated with the Cerrejón Coal mine, the largest open-pit coal mine in South America. Violations of the rights to housing, access to water, and a safe and healthy environment, amongst others, have been raised repeatedly, directly impacting women, the Indigenous Wayúu, the Afro-Colombian community of Tabaco, and peasant communities that live in the department of La Guajira, in Colombia. No less than six UN Special Rapporteurs and four members of the Working Group on Business and Human Rights issued a statement in 2020 which called on the Colombian State to suspend some of the mine’s operations, "because it is seriously damaging the environment and the health of the country’s largest indigenous community ".
This blog discusses the journey of these communities in their search for remedy for all they have lost. Their quest highlights not only the challenges marginalised communities face in overcoming the power and information imbalances that exist between them and transnational companies, in this case including Glencore, Anglo American and BHP, but also spotlights the need for further regulation of cross border corporate practice. Mandatory human rights due diligence legislation and the proposed binding treaty may offer some answer in cases like these.
Over time, Colombian courts have recognised in numerous rulings the violations associated with the Carbones del Cerrejón operation, but have repeatedly failed to sanction the three transnational shareholder companies directly. In each instance, they evaded responsibility by arguing they were only "minority shareholders" to the operation and thus had no operational control of the mine. However, one of Carbones del Cerrejón’ s sustainability reports stated that "we have no minority shareholders". In 2022, BHP and Anglo American sold their shares to fellow shareholder Glencore, allegedly without fully redressing and accounting for their human rights abuses.
The only relevant proceeding in which BHP, Anglo American and Glencore have been mentioned is a Constitutional Court ruling (T-614 of 2019) that ordered Carbones del Cerrejón to translate into English the ruling regarding the negative health impacts on the Provincial community and send it to these companies. Additionally, the ruling said that, the companies, as third parties, are free to consider whether or not to adopt additional measures to those stated in the ruling. However, even after receiving the judgement, communities and their representatives report that the companies did not adopt any additional measures. Instead, Cerrejón filed an appeal before the Colombian Constitutional Court requesting the annulment of the order.
The subsequent ruling on the appeal by the Constitutional Court (T-704 of 2016) is the closest to justice that the communities have thus far obtained. It ordered that the Puerto Bolívar operation could not be further developed and expanded without guaranteeing communities the minimum rights to consultation and free, prior and informed consent for the impacts that the mine would bring in a territory where nearly half of the population is comprised of ethnic communities. As of 2023, not all of the communities of La Guajira have been consulted and there are complaints of delays, inequalities, and lack of procedural guarantees to protect the rights at issue.
Beyond the issue of parent company liability, it is worth noting that even rulings against Cerrejón itself have either not been complied with or have been poorly implemented – meaning access to remedy has remained out of reach for impacted communities. The judicial measures in these cases have been disproportionate to the harm inflicted because they fail to address the irreparable or perpetual cumulative damages caused by mining activities. Judicial action has also failed to provide full reparations or spur preventative action by companies. Consequently, the abuses proceed unabated, and corporate impunity persists.
In addition to legal actions against the company, there has been a failure of existing voluntary or extrajudicial mechanisms to address the abuses of these companies. On two occasions, victims have turned to the OECD's National Contact Points, with disappointing results.
However, in 2021, Glencore did not hesitate to sue Colombia before the International Centre for Settlement of Investment Disputes (ICSID) to following a 2017 Constitutional Court ruling (SU 698-17, recognising the threat to and violation of the fundamental rights to water, health and food sovereignty due to the diversion of a water source, the Bruno stream, and successive orders, Auto 523-19 and Auto 100-22) in favour of the Wayúu people. Plans to divert the Bruno stream, which supplied the communities with water during times of serious water shortage into an artificial channel for Glencore’s La Puente mining project were at the heart of the case. Anglo American and BHP also petitioned ICSID but withdrew after their sale of shares to Glencore. Glencore has another case pending before the ICSID regarding its Prodeco branch in Cesar.
The victims' representative has also used the Inter-American Commission on Human Rights (IACHR)'s precautionary measures mechanism for the Bruno Stream case, but these claims were denied, and they hope to reapply for them. Despite this, the IACHR's Special Rapporteur on Economic, Social, Cultural and Environmental Rights (REDESCA) warned of the critical situation to ensure the guarantee of environmental and ESCR in this territory on her recent visit to La Guajira, highlighting the lack of corporate accountability that has contributed to the situation. If it moves forward within the Inter-American Human Rights System, such a case could become a beacon of hope for communities seeking access to justice where domestic courts and extra-judicial procedures have failed them – and particularly if a judgement were to recognise the responsibility of the transnational companies involved.
The long struggle for justice experienced by the affected communities of La Guajira reflect the challenges faced by many, similarly-placed communities across the globe. This case calls attention to the need for mandatory due diligence laws in both the home and host countries of transnational corporations. Such laws would also benefit from the complementarity of a binding treaty on business and human rights to bolster corporate accountability. Such an instrument should be victim-centred, reverse the burden of proof to defendants in legal proceedings and prioritise the principles of non-discrimination and equality. Such legal frameworks are critical for Indigenous, Afro-Colombian and other rural victims of corporate impunity like them to achieve long overdue justice.