By JIGGSLAW®. Five international organizations have filed an Amicus Curiae brief with the Colombian Constitutional Court in response to Glencore and Anglo American’s arbitration claims against Colombia. They demand that the rights of the Wayuu indigenous communities who peacefully oppose the expansion of El Cerrejón, Latin America’s largest coal mine, located in the La Guarija region, be respected.

Terra Justa, The Institute of Political Studies (IPS)-Global Economy Program, War on Want, Global Justice Now, and The London Mining Network (LMN) were among the organisations that filed a brief during the supervision stage of the judgment that protects Arroyo Bruno before the Constitutional Court.

“We, the Wayuu and Afro-Colombian communities, demand that our territories, as well as our rights to life, water, security, and food sovereignty, be respected; multinational corporations are not local and thus cannot pretend to go above our decisions and those of the Court,” says Misael Socarras, a member of the Community Wayuu Gran Parada, which is acting as claimant before the Constitutional Court, and the Forces of Wayuu Women, in the statement.

The dispute 

Cerrajón’s proposed Tajo La Puente mining expansion project in 2017 was halted by the Court because it threatened to destroy part of the Arroyo Bruno ecosystem, which is surrounded by critically endangered dry tropical forest. The document states that “the creek is an important source of water supply for local communities in a highly climate-vulnerable region where only 4% of the rural population has access to drinking water. Similarly, the creek holds immensurable spiritual and cultural significance for the indigenous people of Wayuu. The project has been halted while a technical report is completed to determine the extent of the environmental and social impact”.

In mid-2021, Glencore and Anglo American filed their investment arbitration claims under the Colombian Bilateral Investment Treaty with Switzerland and the United Kingdom, respectively. According to organizations “the Colombian government issued a favourable report on the coal mine expansion, which was condemned by Colombian organizations, and which may imply that claims may be having the desired deterrent effect”  in early 2022, following the filing of claims,(See Cajar News, Lawyers Group José Alverar Restrepo, “Urgent Warning: Government Approves the Bruno Creek Devastation,” 07.04.2022).

Companies file arbitration claims to “lobby governmental bodies and exercise commercial control over nature and people, particularly in all Latin America.” according to the organizations. They also request the Constitutional Court to “ensure that arbitration claims have no deterrent effect when it makes its decision, and its duty to safeguard Wayuu’s rights over water, health, and food sovereignty, as well as to protect Bruno Creek, is fulfilled.”

Even if Anglo America discontinued its claim against Colombia after selling its shares in El Cerrejón to Glencore on July 1, 2022, groups are reticent about the fact that “the continuation of Glencore’s claim for an unknown amount may be exerting undue pressure over the government and its Colombian judicial system.”

They consider investment arbitration “exclusively for foreign companies and highly unfair,” and they demand that the government denounce the signed investment agreement and abolish investor-state arbitration. In their amicus brief sent to the Court, they cite examples of other arbitrations initiated in countries such as Guatemala, Costa Rica, Ecuador, and Peru, as well as ten cases of claims or threats of claims under Colombia’s Investor-State alternative dispute resolution mechanism for mining.

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