The Marlin mining in Guatemala, changing the developmental paradigm. The use of international environmental law to protect human rights. (original) (raw)

The Marlin mining project implemented in Guatemala by Goldcorp, a transnational company, is a paradigmatic example of environmental and human rights violations caused by extractive industries affecting and devaluating social and environmental conditions in developing countries, under the excuse of the economic development. This “developmental paradigm” based in part, on the extraction of gold, was prevalent since the times of Conquest of America by the Europeans, asserting “acquiring gold” was the highest value for the new colony, and no other values, such as social wellbeing, human rights, or the protection of the environment, could prevail over it. This tradition has continued throughout history, until the present, especially in weak democracies where the imposition of such extractive industries by developed economies and their arms, transnational corporations, still prevails. This paper aims to demonstrate that the international principle of Sustainable Development, can lead to questions concerning “developmental discourse” and give rise to concrete obligations that the State act in accordance with its Public Interest. This principle is pivotal in situations where the State has the obligation to balance different interests and rights at stake in the decision making process of such projects or activities. This principle is, in our opinion, the international legal basis to oblige the State consider the costs and benefits of such “development projects”, under a more egalitarian hierarchy of rights to be protected. Setting a more integrated balance as a core goal is the obligation of the Guatemala State, which already has articles in its Constitution mandating prior consideration and evaluation of economic, human rights, and environmental concerns. In addition to this substantial right, the paper explores another international law principle, the Precautionary Principle and its different interpretations in international cases, with the idea to give the Guatemalan case some arguments to be constructed in favor of shifting the burden of proof to the State and the company, as a possible reinterpretation of the convention of placing the responsibility on the people to argue damages, and reevaluate the State’s duties to implement measures to avoid risks in this case. This principle is also already implemented in domestic legislation in Guatemala through the Environmental and Social Impact Assessment. The paper argues that a more flexible interpretation, has to be made to protect the peoples’ lives, their wellbeing, and finally to reevaluate the public interest in the case. The conclusions seek to connect the obligations of the State under its national law to evaluate integrally and with precision all the interests and rights around the project, also giving opportunity to an international tribunal, such as the Inter-American Court, to review the State’s compliance with its obligations, and setting new and relevant criteria through the interpretation of environmental rights based on property rights and on international principles of Sustainable Development and the Precautionary Principle.