Cabanas, Mining

Canadian Embassy Denies Access to two of its Own in San Salvador

Yesterday morning (June 13), a small group of anti-mining activists held a peaceful protest and press conference on the sidewalk in front of the Canadian Embassy. The protest was the culmination of a two-week effort by anti-mining activists to hand-deliver a letter to the Canadian Embassy asking them to end their support for Pacific Rim’s lawsuit against El Salvador. (For background on the lawsuit and Pacific Rim’s efforts, click here and here).

One highlight from the event was when two Canadian law students (Erica and Leah) who are interning for Voices on the Border and FESPAD this summer, tried to enter the embassy to deliver the letter, and talk to Embassy officials about the case. The Embassy turned them away without explanation. Yesterday afternoon, Erica wrote:

“This is outrageous treatment. Any citizen of any country is allowed to enter their embassy while traveling abroad – that’s what embassies are for. Your political affiliations don’t affect this basic right, nor do your stances on controversial issues. The embassy is Canadian territory. As citizens, we have the right to enter our embassy. They do not have the right to refuse entry to law-abiding Canadians.”

When they pressed the issue with security guards, they received word from Embassy officials that one of them could enter if they had document problems, otherwise they could not enter. That’s true solidarity! Erica and Leah experienced the kind of exclusion that Salvadorans and impoverished people around the world experience every day as they try to defend their environment, protect their economic security, and build a healthy life for their children.

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Yesterday’s events came almost two weeks after the International Center for Settlement of Investor Disputes (ICSID) tribunal announced their decision on preliminary objections in Pacific Rim’s lawsuit against El Salvador. This round of objections focused on jurisdiction – determining whether ICSID had the authority to hear Pacific Rim’s claim against El Salvador. In their lawsuit, Pacific Rim argues that El Salvador violated rights protected under the Central American Free Trade Agreement (CAFTA) and El Salvador’s investment law. The tribunal decided it did not have jurisdiction to hear the CAFTA claims (Pacific Rim is a Canadian firm and Canada is not a CAFTA signatory), but that it would hear the claims under El Salvador’s investment law.

Following the decision, Gus Van Harten, Associate Professor of Law at Osgoode Hall Law School, said,

“The case will now be one of the rare ones that proceeds under the host state’s domestic law on investment, but it is no less threatening than the treaty cases because of this. The arbitrators retain essentially the same wide-ranging powers, including to decide what a regulatory expropriation is, what is fair or unfair regulation, etc…. and to award damages or make affirmative orders against the government. Their award will also be widely enforceable in the manner of any treaty case.”

The Salvadoran Attorney General has tried to spin the decision as a victory, and that CAFTA works, but few agree. Pacific Rim’s lawsuit is still alive and a victory under Salvadoran law is just as enforceable as a victory under CAFTA.

What happens next remains a little unclear. It could be that Pacific Rim and El Salvador proceed to the next phase of the trial. Pacific Rim will present their complaint and EL Salvador will present their defense. Then the tribunal will hand down their decision. Or it could be that Pacific Rim and El Salvador negotiate a settlement; though El Salvador has yet to indicate they’d even consider doing so.

There is another, more extreme option worth mentioning, if for no other reason than highlighting El Salvador’s more serious problem – the fact they give corporations the right to sue them in the first place.

Historically, individuals and corporations did not have the right to sue a country – only a country could sue another country. That began to change when the U.S., Mexico, and Canada signed the North American Free Trade Agreement, which gave corporations the right to seek arbitration if a signatory country appropriated an investment. International law still dictates that a country has to submit to jurisdiction, and unless they have, individuals and corporations cannot sue. By signing CAFTA, the U.S., Mexico, and Canada all agreed that they would give international courts jurisdiction to arbitrate any disputes with investors.

El Salvador first submitted to jurisdiction in 1999 when the Flores Administration and ARENA-controlled Legislative Assembly passed the Foreign Investment Act – the law Pacific Rim is using now. The also agreed to give international tribunals jurisdiction to arbitrate disputes when they signed CAFTA and other trade agreements.

Professor Van Harten suggested after the recent ruling that one way El Salvador could get out of the Pacific Rim suit would be to repeal part or all of the 1999 Investment Law and no longer submit to jurisdiction. The Legislative Assembly would have to explicitly state that the law is retroactive and apply to any current actions. While that would likely be a popular move at home, it probably wouldn’t go over well with the U.S. and other international bodies, and it seems unlikely that the Salvadoran government would put those relationships at risk without careful consideration.

Withdrawing from jurisdiction may be something El Salvador wants to do anyway. Pacific Rim is only one of many mining companies that have applied for but not received exploitation permits from the Salvadoran government. If Pacific Rim is successful in their lawsuit, many others will likely follow. If El Salvador is unsuccessful in defending itself, it may end up granting more than 30 mining permits or face defending itself against an equal number of very large lawsuits.

Another reason to withdraw jurisdiction from international arbitration panels like ICSID is because future trade agreements may grant investors even more protection and rights than NAFTA and CAFTA.

Just yesterday, Public Citizen published a report on the investor protection provisions in the Trans Pacific Partnership (TPP) – a trade agreement being negotiated by Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the U.S. According Public Citizen’s analysis, some of the most outrageous provisions would:

  • Limit how countries can regulate foreign firms operating within their jurisdiction, with requirements to provide them with greater rights than domestic firms;
  • Establish a two-track legal system that gives foreign corporations to avoid domestic courts and laws, and sue States in foreign tribunals; and
  • Grant foreign corporations the right to demand compensation for financial, health, environmental and land use regulations they claim undermine their TPP privileges, and demand compensation for costs of complying with financial or environmental regulations that apply equally to domestic and foreign firms.

El Salvador is not a signatory to the TPP, and the agreement has not even been signed or ratified, but the pendulum seems to be swinging very far in favor of these kinds of pro-investor rights. Once that is the standard, any efforts to protect local environments and resources are subject to the desires of international corporations… until countries organize and push the pendulum back to protect their interests.

Corporations and the U.S. have worked hard to keep concerned citizens and civil society groups from influencing negotiations of these trade agreements. Public Citizen’s account of how hard the U.S. has worked to keep the TPP negotiations sounds a lot like the CAFTA negotiations eight and nine years ago. While Corporations and business interests have a say in the process, concerned citizens and civil society organizations are left on the sidewalk to protest.

In that context, it’s not really surprising that the Canadian Embassy denied Erica and Leah (the Canadian law students interning in El Salvador) entry to the Embassy – they were hanging out with the wrong crowd. Perhaps if they were interning for Pacific Rim or any other international corporation they  would have had a different experience.

Cabanas, Mining, U.S. Relations

Oxfam Petition on El Salvador and Mining

Word on the street is that the ICSID (International Center for Settlement of Investment Disputes) tribunal hearing Pacific Rim Mining Company’s lawsuit against El Salvador will hand down a decision on the second round of preliminary objections before the end of the month. (Here is an article and a webpage with good information on the case).  Pacific Rim, a Canadian firm based out of Vancouver, filed suit against El Salvador over three years ago for not granting them the permits necessary to extract gold from their Cabañas properties. Between 2002 and 2008, Pacific Rim allegedly invested $77 million in exploring properties in Cabañas and other parts of El Salvador. When the government and people of El Salvador said the mining company could not mine, Pacific Rim sued to recover their investment, lost profits, and damages. If Pacific Rim wins, they could receive a judgment worth more than $100 million.

El Salvador responded to the lawsuit by filing two rounds of preliminary objections, asking the court to dismiss Pacific Rim’s claim on procedural grounds. The first round of objections was unsuccessful, and we should hear about the second round in the next week or so. If the Tribunal finds in favor of El Salvador, they could dismiss part or all of Pacific Rim’s case. If they find for Pacific Rim, the mining company’s suit lives to see another day.

Oxfam is currently organizing a petition asking U.S. citizens to demand that the U.S. end their support for Pacific Rim and their claim against El Salvador. The petition reads:

Act Now: Speak up for El Salvador’s Right to Decide

In El Salvador, communities are fighting for their right to decide how companies can use their lands. Many of them have made a decision: they don’t want the metal mining industry to continue to destroy the environment they live and farm in. And they’re paying the price – each day, community leaders and activists face threats of violence and death because they’re standing up to metal mining companies.

What’s making this fight even harder? Right now, Canadian mining company Pacific Rim is trying to force El Salvador to keep metal mines in business by suing El Salvador for $77 million under the US-Central America Free Trade Agreement (CAFTA). This case could not only cost El Salvador a significant portion of its GDP, but it could prevent citizens from deciding which industries develop in their country.

A win for El Salvador in this case means that El Salvador could choose to stop metal mining – for good. The US government’s support for El Salvador over Pacific Rim in this case has been crucial. That’s where you come in. Will you help us make sure the US supports El Salvador in this case?

Tell Secretary of State Clinton: Support the people of El Salvador.

Please visit the Oxfam site and sign the petition!

The petition is important because some within the US State Department associate anti-mining with being anti-development. They argue that if El Salvador passes a law that bans mining, it means the country is hostile to foreign investment. In 2009, Former Chargé d’Affairs Robert Blau wrote a cable to the U.S. Secretary of State with the Subject line: “New Environment Ministry Moves to Ban Mining, Sends “Anti-Development” Signals.” A ban on mining is not anti-development, it is respecting the wishes of the people who would be most affected by its disastrous environmental impacts.

The cable is worth a read. We recognize that Robert Blau has a pretty extreme view of U.S. foreign policy and that his view may not represent everyone within the Embassy (Blau is no longer at the Salvadoran Embassy). His view, however, exemplifies how neoliberalism affects policies in countries like El Salvador. The same people who want to gut the EPA and remove the environmental regulations that protect air, soil, and water in the U.S., also want to remove any barriers that might prevent them from pillaging resources around the world. Any efforts to protect the environment and the communities where people live are called anti-development.

The petition is important because we have to make sure the State Department understands that Salvadoran communities said no to mining because they want to protect their very limited natural resources. They are not anti-development, rather they don’t want their vision of development trumped by an international corporation that is only interested in profit. The U.S. should not support Pacific Rim and other corporations, but ought to respect the wishes of the affected communities.

Oxfam’s petition is not the only anti-mining news to report. Yesterday the MESA (Roundtable Against Metallic Mining in El Salvador) released a statement expressing their frustrations with the Salvadoran government’s inaction on mining. , the government commissioned a Strategic Evaluation of the Mining Sector to determine whether mining was feasible in El Salvador. The report was supposed to inform the Legislative Assembly and government ministries on how to manage mining, and whether they ought to pass an all out ban on mining, which is what the MESA has been advocating.

The MESA is frustrated with the lack of transparency in completing the study and the release of its findings. They recently filed a request for information about the report under El Salvador’s relatively new Law on Access to Public Information. They also requested information about what mining companies have applied for or hold mining permits. Lina Pohl, the Vice-Minister of the Environment and Natural Resources recently said the only possible scenarios are the suspension of mining permits (so far for just exploration, no mining company currently has an exploitation permit), and not granting new ones. The MESA believes this to be insufficient and that the study fails to take on the most important issues concerning the impact that mining would have on the country. They call on the government to be more proactive in defending Salvadorans and banning mining altogether. The MESA has posted several interviews on Youtube detailing these issues. If you speak Spanish, they are worth watching.

Please sign the petition today!

Cabanas, Mining

A new attack against Cabañas Anti Mining Activists

The secretary of the Cabañas Environmental Committee, Neftali Ruíz, was the latest victim of violence and theft this past Friday.  Several young men tied him up in his home and proceeded to search his home, computer files, and cell phones for information and supposed weapons.  This morning Father Neftali, David Pereira, and Bishop Sol held a press conference at the CRIPDES office in San Salvador.  Please read here for a translation of the press release and links to video of the press conference.

Advocacy, Cabanas, Corruption

“Extermination” group threatens Radio Victoria Reporters Again

Yesterday six Radio Victoria reporters, including a North American, received a death threat in their e-mail boxes.  The threat comes after a rally in Victoria City where community members from Santa Marta demanded transparency from their Mayor Juan Antonio Ramos; and 2 months before mayoral and congressional elections.

The text came from the e-mail address “exterminiottrr@hotmail.com” and says, “Warning f*@! at Radio Victoria you keep screwing around as you like filling your mouths with the sh@* you talk, like the day that those mother f*#@rs leaders of Santa Marta tricked those people to talk sh#@ in Victoria.”

The reporters have been denouncing the threat on local radio stations and are adament that the authorities investigate these threats, especially now that they are clearer than ever in their motives and possible authors.

Cabanas, Mauricio Funes, violence

President Funes Condemns the Murder of Activist Juan Francisco

Salvadoran President Mauricio Funes condemned the murder of environmental activist Juan Francisco Durán Ayala, according to a press release issued yesterday.  He went on to express sympathy for Durán’s family and acknowledge the loss that this murder and others that have occurred in Cabañas represent for the environmental movement.  The president offered to provide “more security to the environmental movement, because its struggles and demands are just,” before reiterating his opposition to the Cabañas mining project.  “I will not put the public health of the population at risk in exchange for some additional income that we could receive,” he said.

 

PRESS RELEASE

 

PRESIDENT FUNES CONDEMS THE MURDER OF AN ENVIORNMENTALIST FROM CABAÑAS AND REAFIRMS HIS OPPOSITION TO MINING

 

28/06/2011

Today, the President of the Republic, Mauricio Funes, emphatically condemned the murder of Juan Francisco Durán Ayala, a volunteer with the Environmental Committee of Cabañas, which was carried out by unknown subjects June 3rd.

“As President of the Republic I lament any murder that happens in the country, regardless of motives, of course I feel the pain of the family and the environmental movement in loss of these four leading environmental defenders” expressed President Funes upon condemning the murder of Durán Ayala and the three other environmentalists who have been killed in recent years in the department of Cabañas.

Durán Ayala, 30 years old, was disappeared last June 3rd, one day after he was hanging signs about the campaign against mining in the city of Ilobasco as part of his environmental activism.

President Funes said he would ensure the will and the investigative capacity of the Civilian National Police Force, to be able to identify those responsible for the murder and moreover he offered to give “more security to the environmental movement, because its struggles and demands are just.”

“I will not allow any mineral exploitation project in the country, I have said that and it is my official position”, affirmed the Chief of State and he reiterated that the Ministry of the Economy has clear instructions not to authorize any mineral exploitation projects in the country.

President Funes pointed out that he is convinced that even when a mining project can bring some jobs and income for the government through taxes, the cost of the environmental impact and the damage to public health is much greater.

“I will not put the public health of the population at risk in exchange for some  additional income that we could receive,” the President emphasized.

 

San Salvador, June 28th, 2011

**Translated by U.S.-El Salvador Sister Cities

Cabanas, Mining, violence

Body of Young Anti-Mining Activist Exhumed from Common Grave

Investigation into latest assassination begins

SAN SALVADOR, EL SALVADOR

Danielle Mackey

The body of murdered fourth-year university student and active member of the environmental movement in the area of Ilobasco, Cabanas, Juan Francisco Duran Ayala, has finally been returned to his family in San Salvador. On June 24, 2011, the family gathered together with members of civil society and representatives from government agencies to exhume his body from a common grave in the Bermeja Cemetery, where he had been buried by the National Civilian Police. Juan Francisco, who lived in Ilobasco, left his home at 9 a.m. on June 3 to attend his classes in San Salvador and never arrived. His body was found on the same day by the police, next to a basketball court in the community of Amatepec in metropolitan San Salvador, with two gunshot wounds to the head.

Juan Francisco’s cousin and a designated family representative, Norberto Hernandez Ayala, claims that because the cadaver had several tattoos, the coroner’s office labeled it as an unidentified person and probable gang member, and buried it in a common grave. Juan Francisco had a tattoo of Che Guevara on his abdomen, and another two of the Barcelona soccer team and a favorite U.S. basketball team on his side and back, respectively.

His body was identified on June 14 by his father, Jose Benjamin Ayala, in photographs provided by the coroner’s office. Logistical negotiations between the attorney general’s office and the family slowed the process of exhumation ten days. Juan Francisco was laid to rest in a funeral on Saturday June 25, 2011.

Though there exist various theories about the motive for Juan Francisco’s assassination, in a press conference today, Hernandez Ayala confirmed that the primary hypothesis is the young man’s involvement as an environmental activist. The victim’s mother, Marta Duran, added, “What is clear here is that they’re killing innocent people. My son was only a student, dedicated to his studies. I just want justice for my son.”

Father Neftali and Juan Francisco's Mother (in mask)

The afternoon before he disappeared, June 2, Juan Francisco had been seen putting up fliers around the Ilobasco area where he lived, as an active volunteer for the Environmental Committee of Cabanas (CAC.) The messages on the fliers included an open invitation to a public forum on mining, phrases promoting respect for the environment, and a demand for the controversial Canadian mining company, Pacific Rim, to retire its operation from El Salvador. (Pacific Rim is one of two mining companies that have sued the Salvadoran government for a total of almost $200 million, for refusing to grant them permits to conduct metallic mineral mining in several regions of the country.)

Juan is the fourth person active in the anti-mining movement in the department of Cabanas to be murdered in the past two years, and the third victim from the CAC specifically. In a press release published by the CAC, the committee declares, “This assassination comes only two years since the kidnapping and assassination of the anti-mining activist Marcelo Rivera and the assassinations of two of our members, Ramiro Rivera and Dora Alicia Sorto. We believe that if these cases are not cleared up with an investigation that leads to the intellectual authors, impunity will continue reigning in Cabanas, and the intimidation, violence and assassinations will continue.”

A secondary hypothesis of Juan Francisco’s murder is that he was yet one more victim of the constant daily violence that plagues this nation of only 6 million people. According to data from the National Civilian Police, the current daily murder average is 11, and on the date of Juan’s killing, four other unidentified partial-or-complete corpses were found. That number does not include the identified victims of that day. In fact, if the violence continues at this pace, the homicide total for 2011 would be more than 4,000. The local organization Voices on the Border points out that this is an astoundingly high number when compared to New York City, whose population size is higher than El Salvador’s and reports only 412 homicides for the entirety of 2009. The environmental movement discards this theory, stating that Juan Francisco’s involvement with the movement was too public and too recent to his sudden murder for these things to be unconnected. They also cite the continuing string of assassinations involving anti-mining activists.

Local environmental activists call on the National Civilian Police and the Attorney General of the Republic to conduct exhaustive investigations of the string of violent crimes in the department of Cabanas. They cite corruption and illicit trades within three local mayoral offices—facts they claim to be well-known among the local population, and which they list in today’s press release—as well as ties between the aforementioned authorities and the mining company Pacific Rim, as possible motives for the violence. As Francisco Pineda, President of the CAC and recent recipient of the internationally recognized Goldman Environmental Prize, asserts, “We can make a good guess about who are the intellectual authors of this crime given our lived experiences here, but that’s not our responsibility. The attorney general and the police have the obligation to investigate and determine the guilty parties.”

On June 24, the attorney general’s office informed Juan Francisco’s family that they had appointed them a lawyer. On the same day, the police also assured them that the investigation had begun. Hernandez Ayala says that the family trusts that what they’ve been told is true, and that justice will take its course. However, a lingering concern is the Salvadoran court system’s lack of precedent in completing exhaustive investigations. A United Nations Development Program report from 2007 found that only 14% of cases enter the judicial system, and only 3.8% are ever fully prosecuted, with the guilty party brought to justice. Speaking specifically of the anti-mining struggle, in all four previous assassination cases, material authors were quickly rounded up and prosecuted, but there exists significant evidence to suggest that they were hired assassins. In none of these cases — of which Juan Francisco is simply the most recent, and the movement fears will not be the last — have intellectual authors been identified by the authorities.

Juan Francisco’s family remembers him as humble, respectful and optimistic. His university professors say that he stood out for his willingness to work together with his peers and his dedication to his studies. He was thirty years old at the time of death, and would have graduated next year with a degree in Linguistics from the Technological University of San Salvador.

The casket for Juan Francisco

 

Advocacy, Cabanas, violence

International Organizations Condemn Activist’s Murder and Call for Investigation

On Friday, June 24, 2011, the Inter-American Commission on Human Rights (IACHR) issued a press release condemning the murder of CAC (Environmental Committee of Cabañas) activist and human rights defender Juan Francisco Durán Ayala.  The release goes on to urge the state of El Salvador to “investigate and legally clarify this crime,” and to “immediately and urgently adopt all necessary measures to guarantee the right to life, integrity, and security of environmentalists in the country.”

The release reviews the recent history of anti-environmentalist violence in Cabañas and stresses that the increasing intimidation faced by human rights activists represents a serious threat to their work.  The IACHR reaffirms the importance of the “leading role” done by human rights activists “in the process to fully implement the rule of law and to strengthen democracy.”

Front Line, the International Foundation for the Protection of Human Rights Defenders, has also issued a call for a response to Ayala’s murder.  They request a thorough investigation into Ayala’s death and security measures for other members of civil society in Cabañas.  The Front Line website features a letter addressed to President Funes and ask that supporters print it and mail it to the President’s address (also listed on the website).

CISPES, the Committee in Solidarity with El Salvador, condemned the murder as well and lists phone numbers and email addresses for the Attorney General, Romeo Barahona, asking that people call or email to request an investigation. Officials have done little in response to Juan Francisco’s murder, and the international community’s calls for an investigation are an important step in international acknowledgement of both the dangerous reality for many activists in Cabañas and the culture of impunity that surrounds the violence.