Glencore hits Colombia with ISDS claim to limit indigenous people’s rights despite Constitutional Court decision
September 19, 2022: In 2017, the Colombian Constitutional Court decided in favour of local communities and to protect the Bruno River from an expansion of the huge Correjón open-pit thermal coal mine. In May 2021, Glencore, the giant Swiss transnational conglomerate, launched an Investor-State Dispute Settlement (ISDS) claim with the International Centre for the Settlement of Investment Disputes (ICSID), alleging that the Court’s decision was discriminatory, unreasonable and arbitrary, denying them “fair and equitable treatment”.
This claim was based on a Switzerland-Colombia Agreement for the Reciprocal Protection of Investments. Glencore has not yet specified an amount for damages.
Over four decades, the mining project had dispossessed and displaced 35 Wayúu Indigenous and Afro-descendant communities from their ancestral territories, contaminated water, soil and air, including diverting, interfering with or drying up 44 local streams, including the Bruno River, a major tributary of the Rancheria River.
So in 2015 the affected Wayúu communities, supported by Colombian civil society organisations, complained to the Constitutional Court at the action of Glencore and the state institutions who authorised the diversion of the Bruno River.
In 2017 the Constitutional Court suspended the mine expansion, stating that the company and the state institutions had violated the Wayúu’s rights to water, health and food sovereignty by authorising the diversion of the Bruno River to allow the mine to expand. The Constitutional Court is now reviewing the implementation of this decision.
In April 2022, the Interinstitutional Technical Working Group that had been set up by the Colombian government to address these issues came out in support of the expansion of the mine and denigrated the Wayúu concerns. This Working Group is chaired by the Ministry of the Environment. Thus the 2021 ISDS claim had its desired impact on the Colombian government.
To support the Wayúu communities, TerraJusta, the Washington-based Institute for Policy Studies – Global Program, War on Want, Global Justice Now and the London Mining Network have jointly presented an amicus brief to the Constitutional Court. It urges the Court not to bend to corporate pressure, but instead to enforce its decision in favour of the Wayúu and protection of the Bruno River.
The Glencore case is one of ten ISDS cases by international mining companies against Colombia since 2016, claiming a total of US$2.5 billion. Most of these claims are against measures to protect human rights and the environment, and six of them are against Constitutional Court decisions.
Clearly ISDS is enabling the undermining of “judicial independence, state sovereignty to regulate in the public interest, as well as the self-determination of affected people and steps needed to protect people and the planet”, says the summary of the amicus brief.