Yasmin Salama, PhD Candidate at Peter A. Allard School of Law, University of British Columbia.

Introduction

On 2 March 2022, the Canadian Federal Court ruled that the Canadian government is not legally required to disclose details about its diplomatic interventions on behalf of a Canadian mining firm accused of a series of human rights abuses related to the Marlin Mine in Guatemala. Built in 2002, the Marlin mine was acquired by the Canadian company, Goldcorp, in 2006 in a $8.6 billion deal[1]. Several blatant violations of human rights and environmental contamination were reported, documented and proven by rigorous investigations conducted by NGOs, international bodies, as well as by Goldcorp in a pseudo Human Rights Impact Assessment (HRIA) authorized by its shareholders and for which it received “16 industry awards for outstanding performances” in exhibiting its responsibility towards local communities. The HRIA was heavily castigated as the affected communities had no role whatsoever in the conduct of the assessment, to the extent that Goldcorp had to shift the assessment’s objective from “identifying the negative impacts of the mine” to “determining whether Goldcorp was in compliance with the [nebulous] human rights standards at the Marlin site”[2].

Local communities’ resistance and relevant proceedings

The increasing trend of violence against the community members who protested the mine exhorted thirteen Indigenous communities in 2007 to file a petition with the Inter-American Commission on Human Rights (IACHR) against the State of Guatemala to protect their rights.   The lack of prior consultation and the unsafe handling of water resources with the increased risk of water contamination were two major issues highlighted in their petition to call for the closure of the mine. The use of threats and intimidation continued until Guatemalan environmental organizations filed a complaint in 2009 with Canada’s National Contact Point (NCP), a body of the government that promotes the OECD Guidelines for Multinational Enterprises in Canada. The complaint was quietly shelved by the NCP by inviting the parties to engage in discussions rather than conduct a full on-site investigation.     

In May 2010, the IACHR requested the Guatemalan government to suspend the mining activities due to alleged human rights abuses, environmental damages and health impacts. Shortly after the IACHR decision, the Canadian government escalated its far-reaching lobbying campaign that lasted for months and involved a series of phone calls, meetings, and letters to the Guatemalan government as well as the IACHR and worked relentlessly with Goldcorp and Guatemala to ensure that the outcome of IACHR’s on-site investigation was skewed towards commercial interests and to afford Goldcorp more leverage in IACHR’s proceedings[3]. Following contradictory announcements by Guatemala and its own petition to the IACHR to lift the precautionary measures, the IACHR lifted the suspension request and retained the requirement that Guatemala provide access to potable water and prevent environmental contamination.

Territorial v extraterritorial obligations under IHRL

States’ obligations, including Canada, under international human rights treaties have been interpreted to entail two categories of obligations that are understood to be confined to their territories, a positive obligation to protect against human rights abuses and a negative obligation to respect the human rights of private actors. The power of the state to exercise these two categories of obligations pivots on the degree of control it wields; while the negative obligation to respect merely requires the state to hold “control over its agents”, positive obligations to prevent and protect cannot be undertaken unless the state exercises full and effective control over the territory where the putative violation has taken place[4]. Hence, a human rights violation that takes place within a territory legitimately controlled by a state satisfies both conditions of control over ‘individuals’ and the ‘geographical space of a government’s jurisdiction’. However, territoriality as a jurisdictional basis raises seemingly insurmountable issues in cases of human rights violations committed outside the state’s territory by private corporations domiciled in its territory, namely lack of territorial control and interference with sovereign rights of other relevant states.

One of the dominant views in the literature favors the position that the scope of extraterritorial liability under IHRL is envisioned to only include a negative obligation to respect (that is, to refrain from violating) the human rights of individuals outside their borders[5]. In keeping with this contention, Connolly and Kamphuis argue that Canada had a duty to protect against human rights abuses by Goldcorp in accordance with its obligations under several hard law instruments including the American Declaration[6]  that reiterates Canada’s negative obligation by requiring OAS member states to “refrain from supporting, tolerating, or participating in acts or omissions that contravene their commitments in the area of human rights. Nevertheless, positive extraterritorial state obligations to protect have not enjoyed equal recognition in international law and is often sidelined by international bodies because of the risk of interfering with the sovereign rights of other states if the home-state attempts to exercise the bundle of legal powers embedded in the duty to protect.  That said, jurisprudence developed by human rights courts over the last two decades illustrates an important departure from the traditional territorial-based approach toward a subject-based approach, as coined by Augenstein and Kinley in their article, that could engage Canada’s responsibility in Goldcorp’s case.

The subject-based approach in ECtHR jurisprudence

In Isaak and Others v. Turkey, a demonstration against the Turkish occupation took place in the neutral UN buffer zone that divides the northern and southern regions of Cyprus in the course of which one of the Greek Cypriots, Mr. Isaak, was beaten to death “by a group of counter-demonstrators and that some members of the Turkish Republic of Northern Cyprus (TRNC) police had either watched the scene passively or had participated in the beating” with the help of “a Turkish … military/police officer in camouflage uniform”[7].The ECtHR reasoned that although jurisdiction is based on territoriality the “Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory” and hence the court relied on the principle of “authority and control over persons”. The court indicated that Turkey took no positive action ‘to prevent or stop the attack’ by other non-state actors despite its presence and influence in the area and this demonstrated connivance on the part of Turkey[8] that justified the ruling that Turkey had extraterritorial positive obligations although it had no control over that UN neutral zone. Elaborating on its influence, the court attributed the acts of the TRNC to Turkey since the Turkish support was a primary reason behind its survival[9].

The question arises as to whether the extraterritorial acts of a state-backed company bring the victims in Guatemala within the jurisdiction of Canada for the purpose of the state’s positive extraterritorial obligations under IHRL. Contrasting Isaak with Goldcorp’s case, there was no actual presence of Canadian state agents on the ground when violations occurred nor did Goldcorp belong to the state apparatus, however, Canada’s NCP was called into action at the early stages of the dispute and Canada had knowingly chosen to provide extensive support to the company until it ensured a favorable outcome. The reversal of the Guatemalan government’s announcements and the IACHR decisions and the non-closure of the mine speak to the degree of influence that Canada had but misused. Canada did not attempt to stop the violations by virtue of this influence, nor did it abstain from interfering on the presumption that states are under no obligation to control the activities of their corporations.  In lieu, Canada took concrete and solid steps of heavily engaged intervention and coordination that render Canada’s behavior analogous to the participation of the Turkish military in the beating of the victim. With the enormous amount of support provided to Goldcorp, one could argue that Canada ‘connived’ in the human rights violations committed by Goldcorp and such connivance could arguably engage its responsibility for “its organs’  omissions that result[ed] in an insufficient protection of private persons whose rights or freedoms are violated by the acts of other non-State actors” as posited by de Schutter[10] in the context of positive extraterritorial obligations under IHRL.

Conclusion

As argued above, the positive extraterritorial obligations are likely to put the home state on a collision course with the sovereign rights of other states. One thing that may have prompted the court to reach its conclusion in Isaak is that the violation took place on a territory that was not under the control of another state and so the danger of state interference was impertinent, unlike the case at hand where Canada’s actions glaringly constituted undue interference in the internal affairs of the Guatemalan state and IACHR processes. It may be plausible, given the human rights impacts of the unfettered Canadian economic diplomacy and the asymmetric power relations that underlie resource extraction in this region, to consider whether powerful home states ought to hold positive extraterritorial obligations premised on the degree of influence it wields over its subjects in other states. The rationale for this suggestion lies in the fact that Canada went beyond the mere ‘acquiescence or connivance’ with which Turkey was charged to take actual steps to preclude human rights protection that had been afforded by IACHR.

[1] C. Kamphuis and C. Connolly, “The Two Faces of Canadian Diplomacy: Undermining International Institutions to Support Canadian Mining”, Justice & Corporate Accountability Project,  available at SSRN: https://ssrn.com/abstract=4025474, p. 12.

[2] H. Veltmeyer, “Investment, Governance and Resistance in the New Extractive Economies of Latin America” in K. Deonandan and M. Dougherty, eds, Mining in Latin America: Critical Approaches to the New Extraction (New York: Routledge, 2016), pp.172-174.

[3] Kamphuis and Connolly, supra note 1, pp. 49 – 53.

[4] see M. Milanović, Extraterritorial Application of Human Rights Treaties (OUP 2011), p. 210.

[5] D. Augenstein and D. Kinley, “Beyond the 100 Acre Wood: In Which International Human Rights Law Finds New Ways to Tame Global Corporate Power” (2015) 19:6 Int’l J HR p. 834.

[6]Kamphuis and Connolly, supra note 1, pp. 27 – 28.

[7] Isaak v Turkey, application No 44587/98, final judgment of 24 September 2008, paras. 111, 56.

[8] Isaak v. Turkey, admissibility decision of 28 September 2006, paras. 12, 21.

[9] K. da Costa, The Extraterritorial Application of Selected Human Rights Treaties (Martinus Nijhoff 2013), p. 206.

[10] O. de Schutter, “Globalization and Jurisdiction: Lessons from the European Convention on Human Rights” (2006) 6 Baltic Yearbook of International Law p. 215.