Mineral violence and the struggles of a fragmented international law. A case study of the limits of human rights protection
- Autores: Mariona Cardona Vallès
- Directores de la Tesis: Santiago Ripol Carulla (dir. tes.)
- Lectura: En la Universitat Pompeu Fabra ( España ) en 2020
- Idioma: español
- Tribunal Calificador de la Tesis: Carlos R. Fernández Liesa (presid.), Yolanda Gamarra Chopo (secret.), Iain Scobbie (voc.)
- Programa de doctorado: Programa de Doctorado en Derecho por la Universidad Pompeu Fabra
- Materias:
- Enlaces
- Tesis en acceso abierto en: TDX
- Resumen
This work argues that in mineral exploitation we encounter recurring forms of violence, referred to as “mineral violence”. This mineral violence is perpetrated by industries, armed groups, criminal organizations and States, and constitutes a violation of a multiplicity of human rights from workers and communities settled around the mining areas.
In this context, this work sets out to determine whether international law is capable of dealing with the phenomenon of mineral violence and, hence, of protecting human rights. This process sheds light on the fact that International Human Rights Law is not currently capable of providing sufficient protection to the individuals affected by mineral violence. What is more, it shows that current interpretations of International Investment Law and the law of the World Trade Organization constitute serious impediments for the States to adopt measures for the protection of human rights in the context of mineral exploitation.
This work is divided into three parts. Part one serves as a context to establish the fundamental premises of the thesis; Part II studies the two main sources of obligations that regulate mineral violence: Human rights Law and the different mineral traceability and supply chain mechanisms developed by the States; finally, Part III studies the interactions between Human Rights Law and International Trade and Investment Law both from a normative perspective and from the perspective of the conflict of norms.
The main conclusion of this thesis is that to confront mineral violence, traceability and due diligence mechanisms would become unnecessary if there was a respect, protection and enforcement of Human Rights in origin, i.e., in the State of extraction. In the light of the complexity of mineral supply chains, it is unfeasible to expect a real due diligence on these supply chains that has a real impact on the prevention of human rights violations beyond a greenwashing effect. Hence, it is necessary to reinforce human rights compliance in origin by way of establishing a serious threat of sanction or enforcement at the international sphere should the state not respect or protect human rights of its own population affected by mineral violence, and reinforce the regional approach to human rights.
However, international law must also secure that when the State of origin responds and raises human rights standards in order to comply with its human rights obligations to protect human rights, it will not face investor claims under investment law. Hence, it is of outmost importance that either States through their investment agreements, or arbitral tribunals through a consistent interpretation, clarify and define the margins of the right to regulate, excluding human rights- oriented regulations from compensation. In the same vein, it must secure that when a State adopts a measure that is truly designed to force and secure human rights compliance in mineral supply chains, it will not face claims of violation of WTO law.
However, international investment law and WTO law will continue to hamper the possibility of combating mineral violence as long as fragmentation persists. In this scenario, it is of paramount importance that investment and WTO bodies clarify their position regarding wording interpretation by reference to international human rights (or any other) instruments, and accept their obligation to interpret international law in accordance with the principle of systemic integration, which entails taking into account –at least– those human rights that have achieved the status of CIL. Should interpretation fail to harmonize the two subsystems, a problem remains of inadequacy of the current rules on lex superior, lex posterior and lex specialis to tackle conflicts between special regimes.
This research is fundamentally of a legal nature, and as such has resorted to legal sources. Nevertheless, other interdisciplinary sources have been consulted. These sources pertained to the fields of legal philosophy, political sciences, sociology and economics. As to the type of legal sources used, this study has resorted to the traditional primary sources of international law, i.e., Treaty Law, Customary International Law, Principles of International Law, as well as Soft Law. Additionally, as a secondary source this study has relied what has been called “informal law”, i.e., standards of behaviour developed by non-state actors. This research has also relied on the interpretations of the primary sources contained in decisions of International Courts, Arbitral awards, as well as in opinions and authoritative interpretations of international organs. Additionally, resort has been made to reports of UN organs as means to substantiate particular interpretations of primary sources.
