International Institutions Present Amicus Curiae to the Constitutional Court of Guatemala in Case Relating to the Rights of the Xinka People
February 20, 2018; Bogota, Guatemala City, Lima, New York, Ottawa, Washington, D.C. – On February 19, DPLF, Dejusticia, the Human Rights Clinic of the University of Ottawa, the International Platform Against Impunity, EarthRights International, the Institute for Democracy and Human Rights of the Pontifical Catholic University of Peru, Robert F. Kennedy Human Rights, and the Human Rights Clinic of the University of Columbia submitted an amicus curiae to the Constitutional Court of Guatemala. This brief was presented as part of a constitutional proceeding alleging the repeated violation of the rights of the Xinka people.
In 2012 and 2013, the Guatemalan Ministry of Energy and Mining granted licenses for the Escobal mining operation and for mining exploration in Juan Bosco, projects that directly impact the Xinka territory. These licenses were challenged by the Xinka people and resulted in a constitutional ruling, which found, among other violations, the absence of Free, Prior, and Informed Consultation and Consent (FPIC) of the affected indigenous communities.
The licenses granted by the Ministry of Energy and Mining and the presence of the San Rafael S.A. company in the Xinka territory represent a long history of human rights violations by mining companies in Guatemala, including environmental contamination, destruction of subsistence agriculture, and the death of community leaders and members, as the result of violent actions by the mine’s security forces. According to official data, in 2017, there were 307 exploration and mining operation licenses active in Guatemala, with an additional 599 requests processing. More than 20 ethnic Mayan, Xinka, and Garífuna groups make up the majority of the population in Guatemala, with a large presence in rural areas where mining projects tend to be located.
The amicus curiae brief seeks to contribute to the decision of the Constitutional Court of Guatemala in adjusting the applicable international standards, particularly those in reference to the self-recognition of the indigenous communities as a determining criterion and a condition of their collective rights; the guarantees derived from the right to FPIC; and the specific safeguards regarding the right to a healthy environment. Along these lines, the amicus brief summarizes the standards derived from the International Labor Organization Convention 169, the United Nations Declaration on the Rights of Indigenous Peoples, and the Inter-American human rights system’s case-law. Among other measures, the brief recommends that the Constitutional Court suspend the operating license for the Escobal and Juan Bosco projects until a consultation process takes place and the consent is obtained from the Xinka people, as well as other indigenous populations within the territories impacted by the mining operations.
In the opinion of the organizations that signed the amicus brief, a decision contrary to the rights of the Xinka people concerning their territory would indicate a troubling step backward in Guatemala’s compliance with its international human rights obligations.
Read the amicus curiae here.