The "fifth power": Transnational mining

In this opinion piece in the Mexican daily La Jornada, Magdalena Gómez, a lawyer and expert on indigenous rights, takes a critical look at the power of transnational mining companies in Mexico, in the wake of the murders of two anti-mine community leaders in Oaxaca.

La Jornada  In our country we have a formal system based on the division of three powers that coexists with, supports and/or is complicit with powers outside the constitution like the power duopoly of the mass media--identified as the “fourth power”--and an extremely powerful “fifth power”: transnational capital, found mainly in mining companies that have in recent years been granted concessions covering nearly a quarter of national territory.

All this is cloaked in the logic of the free market, which apparently embodies the free exercise of liberties and in which potentially, and very abstractly, we all have rights. Luigi Ferrajoli has shown in his most recent book, Poderes salvajes (Savage Powers), how these real powers have dominated the model of democratic constitutionalism that formally governs in our countries.

Today it is clear that the neoliberal model has strengthened these powers and has seriously distorted so-called nation states that, rather than protecting and guaranteeing fundamental freedoms, have become subsidiaries of big capital. But we’re not talking about mere speculative tendencies; throughout the country we see the negative impact of extreme extractivism, to the detriment of the territory of indigenous peoples, who from long ago have historically resisted the plunder but who now face the greatest threat to their continued existence.

One of the most recent examples is the Zapotec community of San José del Progreso, Ocotlán. The community lives in an environment of tension and divisiveness caused by the activities of the  Minera Cuzcatlan beginning in 2008. Minera Cuzcatlan is a subsidiary of Fortuna Silver Mines (part of a group of Canadian mining companies known as The Gold Group). So far this year, the Ocotlán Valley United Peoples Coalition (CPUVO) has reported two crimes and accuses the mining company, in conjunction with the San José del Progreso local government, of using armed groups against opponents of the mine.

Bernardo Mendez Vasquez was killed and Abigail Sanchez Vasquez was seriously injured in an ambush on Jan. 18, 2012. Last March 15, Bernardo Vasquez Sanchez, leader of the CPUVO, an organization that has challenged the granting of mining concessions without consultation in indigenous territories in the Ocotlán Valley, was shot dead. Rosalinda Dionisio Sanchez and Andres Vasquez Sanchez were seriously injured in that attack. So far there has been no justice for these crimes: in the first case, the arrest of one of the perpetrators was announced just five days after the second crime took place. We have already heard the usual arguments that attribute the attacks to rifts in the community—and they do exist--but no one stops to analyze that these divisions are promoted by the alliances forged by the mining companies.

The truth is that, beyond the investigations required to arrest and prosecute the masterminds and perpetrators of these crimes, it’s urgent that we look into the devastating effects of the policy of granting mining concessions without regard to the territorial rights of the peoples.

The outlook is very grave and peaceful, rights-based principles are being attacked over and over again. Until the fallacy that transnational corporations are simply private actors is rejected and what has been called “the architecture of impunity” is deconstructed, peoples’ rights will be impossible to guarantee in the face of the reality of governments subjugated to transnational capital.

The United Nations has spent more than two decades debating, holding meetings, and issuing governing principles to examine the relationship between indigenous peoples and extractive industries from a human rights perspective, focusing on three main issues: a) processes for consultation between all parties; b) the ways in which the benefits from economic activities are shared with indigenous peoples; and c) the means to resolve disputes. This approach fails to focus on binding rules that encourage the application of international human rights standards. Instead, they follow the logic of so-called “soft law” or non-rights. In the most recent report of the ad hoc rapporteur John Ruggie, this spirit is reflected in the quote by Amartya Sen that “we shouldn’t hold on to illusions and it is better to deal with the injustices that can be remedied.” The idea that global markets can be made compatible with human rights continues to prevail. That’s how the fifth power works. Yet its very existence is never discussed at election time.

Would that be too much to ask? Read more

(Translation by Michael Kane, Americas Program)