indigenous rights, resistance, and the law: lessons from a guatemalan mine

Indigenous Rights, Resistance,and the Law:

Lessons from a Guatemalan Mine

Amanda M. FulmerAngelina Snodgrass Godoy

Philip Neff

ABSTRACT

Using a case study of a controversial mine in an indigenous area ofGuatemala, this article explores the transnational dynamics ofdevelopment and regulation of large-scale extractive industry proj-ects in the developing world. It examines the roles played in theMarlin mine dispute by national law, international law, internationalfinancial institutions, and corporate social responsibility. It con-cludes that these legal regimes have a role in protecting humanrights but have not addressed the fundamental questions of demo-cratic governance raised by this case.

In January 2005, thousands of Mayan peasants descended on a cross-roads of the Pan-American Highway at Los Encuentros, Guatemala,

to block the passage of a convoy headed for rural San Marcos. Theconvoy carried a milling cylinder for use in the Marlin mine, a $250 mil-lion project of the Canadian company Glamis Gold.1 The project wasbacked by the Guatemalan government and the World Bank, yet con-troversial among the impoverished indigenous communities in which itwas established.

The indigenous farmers and villagers at Los Encuentros insisted thatmining was not welcome in the highlands and threatened to push thecylinder off a cliff. A tense standoff ensued as the equipment waited onthe roadside for days under the eyes of police and protesters alike.National authorities, including President Oscar Berger, insisted on theneed to enforce the rights of investors (Solano 2005), while local lead-ers insisted, “we shall not let them pass” (Solano 2005, 112). Eventually,hundreds of police and soldiers were called in to escort the equipmenton its way. As protesters mobilized to block passage, shots were fired.The cylinder made its way to San Marcos, but in its wake Raúl Castro,a protester, lay dead, and 16 protest leaders, among them the indige-nous mayor, were accused of terrorism (Solano 2005, 112).

This episode occurred in the context of a many-year dispute overthe Marlin mine, which began when the project was in its early plan-

© 2008 University of Miami

ning stages. Although the violent encounter drew particular attention inthe press, the incident was hardly the only conflict to erupt; nor was theMarlin mine the first major project in Guatemala to provoke such heatedcontroversy. The mobilization of indigenous Guatemalans to stave offunwelcome “development” initiatives is nothing new; sadly, neither isthe spilling of blood in the process.2 The clearest illustration of thispropensity for tragedy when development plans are conceived in thecontext of endemic structural violence and state repression is the con-struction of the Chixoy Dam, a World Bank–funded hydroelectric proj-ect carried out in the 1980s despite opposition from Mayan populationswhose lands were flooded in the process. This opposition was decriedas subversion by a virulently anticommunist government, and numerouscommunities were slaughtered in a series of brutal massacres by stateforces and their paramilitary adjuncts (Chen 2007).

Fortunately, the current controversy over mining unfolds in a pro-foundly different context. Guatemala is no longer embroiled in a civilwar, and while most of the socioeconomic problems that fueled the con-flict have yet to be systematically addressed, it would appear thathuman rights advocates today enjoy an unprecedented array of instru-ments and institutions to use to prevent the kinds of abuses that char-acterized past controversies. The Marlin case would appear a textbookexample of multisited global governance regimes, as the “development”in question has been proposed and contested through transnational civilsociety mobilization; national and international human rights litigation;the use of international institutions, such as the International LabourOrganization; voluntary protocols; and other forms of corporate socialresponsibility, along with increased monitoring and involvement byfunding agencies, such as the World Bank.

Yet if this is the textbook example, the lesson is far from encourag-ing. Through an examination of the recent proliferation of laws and reg-ulatory regimes relevant to this case, this article argues that, perhapsironically, this remarkable new confluence of overlapping laws, institu-tions, and initiatives adds up to less than the sum of its parts. In a cli-mate in which national governments exercise less, not more, ability toregulate financial flows and the operations of corporations in their ter-ritory (Stiglitz 2006), this proliferation of laws and lawlike principles cre-ates a set of shifting authority structures and subjective norms. Withoutclear directives as to how and when they are to be implemented, moremechanisms for accountability have only added to the confusion, creat-ing a haphazard collection of lawlike artifices that ultimately amount toa Rorschach “inkblot” test of social responsibility, in which the meaningof laws shifts according to the onlooker’s subjective perception.3

92 LATIN AMERICAN POLITICS AND SOCIETY 50: 4

WHAT IS AT STAKE IN THE MARLIN MINE

The controversies surrounding the Marlin project involve numerousissues and an array of diverse actors. The case has marked a number ofhistoric “firsts.”4 It was the first mining project authorized by theGuatemalan government following the passage of a 1997 mining lawdesigned to attract foreign investment. At the time, it was touted as thelargest mineral deposit of its kind in Central America and held up as anexample of the country’s new development prospects as it entered thepostwar period (Solano 2005, 110). In 2004, two years after theGuatemalan mining ministry awarded the rights to the project to GlamisGold, the International Finance Corporation (IFC), the private sectorlending arm of the World Bank, pledged the project a $45 million loan;it was the first loan undertaken by the agency following a thoroughinternal review of past projects’ failure to produce sustainable develop-ment outcomes. For the Guatemalan government, for Glamis Gold, andapparently for the IFC, the Marlin project promised new hope for ruralGuatemala: not only would the project create jobs in one of the coun-try’s poorest and most excluded areas, but the company had puttogether an unusually generous package of incentives, including pay-ment of some local schoolteachers’ salaries, construction of local roads,and the creation of a corporate-funded foundation to finance commu-nity development initiatives.

Yet the project sparked intense criticism from its initial days, espe-cially in the municipality of Sipacapa, where the first public protestagainst the mine took place in 2004 (Solano 2005, 110–11).5 TheCatholic Church, and particularly the vocal bishop of San Marcos, Msgr.Alvaro Ramazzini, began to raise concerns about the benefits to localcommunities. The number of jobs created by the project has been rela-tively low, their duration largely restricted to the initial constructionphase; and higher-paying jobs for specialists have gone to people fromoutside the area (Castagnino 2006).6 Furthermore, the revenue the localgovernment gets from the mine through taxation, utility payments, andother sources is extraordinarily limited. Critics have pointed to the com-pany’s contract allowing it unlimited use of local water supply withoutmandating any compensation to local communities for the use of thisresource. “We don’t want gold; what we want is to defend our way oflife and our water,” Timoteo Tujil, a Sipacapa resident concerned aboutmining, told a reporter (Daniel 2005).

Critics often weigh these limited benefits against a large set of per-ceived risks, particularly to the environment. An open-pit mine, theMarlin project uses a cyanide leaching process, banned in some U.S.states because of its potential to poison water; and the mine’s proxim-ity to water sources that sustain agricultural production in the region has

FULMER, GODOY, NEFF: GUATEMALAN MINE 93

generated concern (Perlez et al. 2005). These practices have made theMarlin project a lightning rod for criticism from ecological groups suchas MadreSelva, a Guatemalan nongovernmental organization focusingon the environment, and Friends of the Earth, an international NGO.

Criticisms of the Marlin mine project run deeper than policy disputes,however. Many indigenous groups argue that large-scale mining opera-tions of this sort run fundamentally counter to the Mayan “cosmovision,”in which human societies depend on and are inseparable from their rela-tionships with the earth and the broader environment. Open-pit miningusing toxic chemicals, some Mayan leaders argue, is fundamentallyincompatible with such a worldview. Rodolfo Pocop, a leader of theGuatemalan peasants’ rights group CONIC, states, “our spirituality is pre-cisely the harmony between humans, Mother Earth, space, and nature.We feel like this kind of mining represents a destruction of life and cul-ture” (quoted in Oxfam America 2005). A United Nations reportaddressed the issue of indigenous peoples and their relationship to land,concluding, “Indigenous peoples have explained that, because of theprofound relationship that indigenous peoples have to their lands, terri-tories and resources, there is a need for a different conceptual frameworkto understand this relationship and a need for recognition of the culturaldifferences that exist” (cited in Anaya and Williams 2001, 49).

A representative of a Maya rights group in Guatemala said in aninterview that while he had criticisms of Guatemala’s proposed newmining law, the real problem was ultimately more fundamental. Indige-nous people have a different way of seeing the world than others do,and their cosmovision centers on a harmonious relationship withMother Earth. Mining activity is always environmentally destructive,never sustainable, he argued (Maya representative 2005).7 The mine hasalso attracted considerable international attention and has been featuredin reports by humanitarian, watchdog, and advocacy groups includingOxfam America, the Bank Information Center, Rights Action, MiningWatch Canada, and the Halifax Initiative Coalition.

While the controversy has led to some attempts at dialogue, mostnotably the formation of a high-level commission (including represen-tatives from mining companies and civil society) to advise theGuatemalan government on rewriting its mining law, these have largelyfailed to resolve the conflict, partly because of a deep distrust amongmany of the parties involved. In this climate, much of the discussion hascentered on technocratic fixes. Reform proposals have tinkered with theroyalty rates or advocated new provisions for environmental protection,yet have left unaddressed the more fundamental questions, over whichintractable opposition has already claimed lives: who decides whatcounts as “development”? What are the mechanisms for ensuring theparticipation of local communities, and what are their limitations?


What lies at stake in these broader debates is not a technical solu-tion to problems of water pollution or royalty rates but a core problemof neoliberal democracy that extends far beyond mining itself: whoseinterests is economic development designed to serve? Who is empow-ered to speak on their behalf? These questions are not limited to neolib-eral regimes, but their focus on private sector–led initiatives makes theissue of representation particularly acute.

After exploring the various forms of legalization at play in thedebate over the Marlin mine, this article returns to this question of dem-ocratic power. First, it discusses in detail the legal regimes that relate tothis controversy. The central point is that while many observers tout therise of new corporate governance models, some linked with the workof non- or intergovernmental organizations (see Hemphill 2004; Euro-pean Corporate Governance Institute 2007), the Marlin case illustratessome of the severe shortcomings of such models.

A Note on Method

The research for this study included primary interviews with key figuresin Washington, DC, Guatemala City, and San Marcos, Guatemala,between April and September 2006. The authors spoke with a repre-sentative of Glamis Gold, top officials in the Guatemalan Mining andEnergy Ministry, a senior specialist in the Ombudsman Section of theCompliance Advisor Ombudsman (CAO) of the IFC, a senior policyadviser at Oxfam America, a former staffer of the Bank InformationCenter, a specialist at the Guatemalan Human Rights Ombudsman’sOffice, legal and program staffers at MadreSelva and the Guatemalanenvironmental law organization CALAS, leaders of a Mayan humanrights organization, community leaders in the immediate vicinity of themine, and Bishop Ramazzini of the San Marcos Diocese. In addition tointerviews, one member of the research team conducted participantobservation over the course of several days in August 2006 at a com-munity consultation on a proposed mining project in Santa Eulalia, Hue-huetenango, Guatemala. Concern for the safety of some of these indi-viduals and university human subjects restrictions preclude mentioningthem by name or other identifiable attributes.

WHY MARLIN MATTERS

Many sources agree on the extent of the misery afflicting highlandGuatemala. According to the World Bank, 56 percent of the Guatemalanpopulation lives in poverty, and 16 percent of these people live inextreme poverty. Poverty is concentrated in rural and indigenous areasof the country, and San Marcos, the department where the Marlin mine


is located, is one of the most economically desperate regions. Theseconditions are manifested in high levels of childhood mortality, illiter-acy, and other social problems (World Bank Group 2003). While sourcesagree that these conditions are deplorable, however, agreement on solu-tions is harder to find.

Commentary on globalization and the mix of promise and perils itoffers these communities tends to fall into two broad camps. Someobservers have trumpeted the spread of liberal democracy, market rela-tions, and other supporting structures that make possible the ever-greater penetration of global capitalism into the world’s poorest corners,suggesting that these tools may make possible the amelioration ofpoverty and exclusion that have plagued places like the Guatemalanhighlands for centuries (Bhagwati 2004; Friedman 2005). A secondgroup of commentators suggests, however, that globalization as weknow it may only exacerbate power differences between global havesand have-nots, and that development projects and rule-of-law reformsmay only further cement the subordinate position of the highland Maya.In recent years, sharp critiques have called attention to the failures of“development,” accusing the multilateral funding agencies like theWorld Bank, and the national governments that embrace shortsighteddevelopment projects, of deepening the exploitation, rather than ame-liorating the poverty, of communities of the global South (Escobar 1995;Ferguson 1994, 2006; Crush 1995). Indeed, such critics argue, global“development” itself is an industry that often manufactures poverty to“solve” it and then fails to do so, justifying further intervention in thelives of local communities.

Of course, reality is more complicated than either of these highlypoliticized positions would permit, and neither the “global” nor the“local” alone can offer an answer to poverty. As Roger Plant argues, thereality of most indigenous peoples’ relationship to the economy sug-gests that while purely local “community development” strategies, inwhich indigenous communities define their own independent develop-ment paths, are inherently appealing, they cannot purport to solve thebroader problems of structural exclusion that plague such communities;nor can they alone represent “the” answer when so many indigenouspeoples now live and work outside their communities of origin (Plant1998). In short, some mix of local and global development strategieswill be necessary to tackle poverty; some measure of accountability andmeaningful oversight is necessary to ensure that policy interventions donot result in needless death and devastation, as they did in the case ofthe Chixoy Dam.

Shalini Randeria (2003) describes the interplay between state law,transnational commercial law, “protolegal” practices at the World Bank,international treaties, and the lawlike demands made by transnational


activist campaigns as “glocalization.” Indeed, as many scholars writingon interlegality have emphasized (Santos 1987; Merry 1988), far frombeing discrete and contrasting blocks of jurisprudence, these fields andforums overlap, and are in many ways mutually constitutive, indetermi-nate, and constantly shifting. It is helpful to understand the Marlin caseas occurring not so much amid a plurality of distinct legal orders, butrather through a kaleidoscope of shifting and combining forms (Santosand García 2001).

In Guatemala in the neoliberal era, Rachel Sieder argues, the com-munities engaged in resistance struggles against mining and other devel-opment schemes are crafting their own bottom-up form of globalization,forming transnational alliances for human rights campaigning and lodg-ing claims in regional courts (Sieder 2006). Randeria makes a similarpoint regarding Indian cases, showing how counterhegemonic groupsare able to articulate their own novel, lawlike claims. Yet just as suchgroups benefit in some ways from the spread of legalities attendant toglobalization, such as the vast expansion of structures and institutionspreoccupied with human rights, they are also challenged by the frame-works that such institutions use for understanding rights, as CharlesHale has argued (Hale 2005). The global discourses of rights are slip-pery, neither inherently liberating nor inherently confining.

It is undoubtedly true that the proliferation of legal forums makesnew tools available to civil society groups that might previously havelacked access to audiences beyond the nation-state. At the same time, itshould be emphasized that this proliferation is not always a boon tocounterhegemonic efforts. Indeed, the very overlaps and focal shifts itfacilitates—the ease with which the viewer can rotate the kaleidoscopeto create, using a given set of elements, an entirely new pattern—enablepowerful actors to evade accountability. In the Marlin case, “cunningstates” (Randeria 2003) pled eroded sovereignty in order more readilyto facilitate alliances with political elites. This behavior, along with thatof transnational corporations, international financial institutions, andothers, reveals that the proliferation of lawlike forms may sometimesoffer more opportunities for obfuscation than emancipation.

Given these factors, this study concludes that there is no escapingthe need for engagement in democratic politics to determine questionsof resource allocation, environmental stewardship, and community par-ticipation. However fragile such processes may be in many states, enact-ing regulatory structures that circumvent the state or evade its ultimateresponsibility in ensuring democratic procedures is a perilous task thatmay ultimately prove counterproductive. The very proliferation of law-like instruments and institutions may in some ways delegitimate theprocess of politics itself, substituting the presence of legal codes for theprocess of democratic engagement. As Randeria argues,


the prescribed goal of “good governance” entails restructuring thestate to ensure the “reliability of its institutional framework” and“the predictability of its rules and policies and the consistency withwhich they are applied” (World Bank 1997, 4–5). The policies andrules themselves, however, are insulated from public deliberationand parliamentary decisionmaking resulting in a democracy withoutchoices (Krastev 2002). (Randeria 2003, 324)

The Marlin mine case demonstrates the risks of relying on thissuperficial appearance of participation without robust and legitimateengagement in decisionmaking procedures.

THE KALEIDOSCOPE OF SOCIALLY RESPONSIBLEDEVELOPMENT

Analysis of the four legal regimes that pertain to the regulation of theMarlin mine explores these issues in detail.

Guatemalan Mining Laws

Guatemala’s laws governing mining are a case study in the oft-men-tioned “race to the bottom” of contemporary globalization. In order toattract foreign investment, they have become weaker, not stronger, overtime. Since 1510, revisions to these laws have oscillated betweenattempts to promote and to restrict mining (PDH 2005, 15; for a detailedhistory, see Solano 2005). The current mining law represents in manyways a historic low. Drafted in 1997, it has been widely criticized forgoing too far in creating incentives for investment without assurancesthat the country itself will reap substantial dividends. For example, thelaw reverses previous prohibitions on 100 percent foreign-ownedmining operations and establishes the lowest royalty rates in the coun-try’s history (PDH 2005, 15).8 It also implements a series of tax exemp-tions for mining companies, which add up to a minimal tax burden formining corporations.9

At the same time, the present law continues a tradition of weak andunenforceable protections for the environment and public health, with-out mechanisms for community participation in decisionmaking.10 Asregards the environment, numerous deficiencies have been criticized inthis law. First, the law requires that mining companies present an envi-ronmental impact study to the National Commission on the Environmentwithout providing specific instruction as to what such a study must con-tain. Environmental authorities are granted 30 days to review andapprove the study; there is no provision for the extension of this timeperiod, and, according to the text of the law, if the case has not beenresolved in the 30-day period, approval is automatically granted: “Such


study . . . will be resolved within thirty days. After this time and notbeing resolved, it will be taken as accepted” (Congreso de la Repúblicade Guatemala 1999). Critics of the law assert that 30 days does not con-stitute a reasonable amount of time for the necessary detailed review,particularly considering that the government offices in charge of carry-ing out environmental oversight lack the capacity and funding to exer-cise a meaningful oversight role in any time period, let alone such atight response time.

Moreover, even in cases in which the Ministry of the Environmenthas ordered the closure of corporate operations, the government hasfailed to enforce these decisions. The most notable case is that of DukeEnergy, which the Guatemalan government ordered to close its electricplant in December 2003 because of high levels of noise pollution. Dukechose to ignore the order and, as of this writing, the plant continues tooperate (Morales 2006; Ramírez 2003). This calls into question thepower of the local authorities to take action against foreign corporationson environmental grounds.

Local Participation

Guatemalan mining law has never satisfactorily addressed the questionof local communities’ participation in decisions regarding their owndevelopment. Such a right has been internationally recognized forindigenous communities in Convention 169 of the International LaborOrganization. No implementing legislation has been passed inGuatemala to incorporate ILO 169 into national law, however, and whilethe Guatemalan state is legally bound by this convention, national lawat this point has no clear legal mechanism through which violations maybe prosecuted. Recent reforms intended to decentralize decisionmakinghave begun to incorporate the concept of consultations into nationallaw, but in an incoherent manner, creating a climate of confusion andcontradiction and a vacuum of legal authority.11

At present, Guatemalan law contemplates at least five vehicles forcommunity consultation, from national referendums on “political deci-sions of special transcendence” to plebiscites convened by local author-ities in response to expressions of concern by residents. Yet no cleardefinition exists of when each type of consultation should be applied.On the question of mining, this lack of specificity becomes particularlyproblematic: while the constitution itself establishes in article 121 thenational state’s ownership of subsoil resources, and in article 125 itsresponsibility to exploit these in the public interest, laws regardingdecentralization and municipal autonomy permit consultative processeson such matters as local populations deem relevant without specificallylimiting these to matters within municipal government purview. This


leads to legitimate confusion over the limits to local decisionmakingauthority. While opponents of mining assert that populations have com-plied with the terms of laws regarding local consultation, the Ministry ofEnergy and Mines considers the exploitation of subsoil resourcesbeyond the jurisdiction of local communities, and therefore deems theseprocesses legally irrelevant (Gálvez Sinibaldi 2006).

Given the lack of a national law on consultations, both argumentswould appear to have merit. On the one hand, the mining law clearlyestablishes that such resources are to be regulated by national authori-ties in consultation with local development councils. While the consti-tution mandates municipal autonomy, it is not absolute but administra-tive (see art. 253), and subsoil resources are established in article 121 asproperty of the national state, not of each municipality. At the sametime, laws governing consultative processes allow referendums on vir-tually any issue of concern to the citizenry and establish conditionsunder which the results of these processes are considered binding. Itwould appear that in at least some of the mining consultations that haveresulted in overwhelming rejection of mining, such conditions havebeen fulfilled. Absent a national law regulating participation processes,the question of whether such referendums are legally binding ultimatelyrests on which body of law one considers most convenient to cite. TheGuatemalan Constitutional Court recently declared the community-runconsultation in Sipacapa nonbinding (Sieder 2006; Pérez 2007). Thecourt’s ruling, while casting a definitive judgment on the particular con-sultation in question, did little to clarify the broader issue of how con-sultations can legally proceed; it merely stated that clearer rules oughtto be established.

This confusion about rights to participate and the limitations to suchrights becomes all the more complex when the communities in questionare indigenous. While Guatemala’s constitution recognizes the nation as“pluricultural” and calls, in article 70, for the creation of a specific lawto regulate the participation and protection of indigenous peoples, thisvoid has never been filled; prescriptions on indigenous rights in the1996 Peace Accords foundered when, in 1999, the electorate rejected apackage of constitutional reforms that would have implemented keyprovisions governing indigenous decisionmaking.

While the Municipal Code attempts to respect “the particular stan-dards of the customs and traditions” of indigenous groups (which wouldpresumably include consensus-based decisionmaking, including votingby show of hands), it establishes a higher standard of participation forsuch votes to be considered binding (50 percent of registered votersinstead of 20 percent) (Congreso de La República de Guatemala2002b).12 This provision has been denounced by some as racist (MadreSelva 2006). Why, they ask, should indigenous communities be subject


to a more rigorous standard than other communities? Furthermore, thelack of clear national directives on indigenous decisionmaking makes iteasy for mining advocates to dismiss such processes as illegitimate orcompromised because they do not adhere to Western standards, such assecret balloting (Schenk 2006; see also Business Wire 2005). They main-tain this even though indigenous communities have used such deci-sionmaking practices for centuries and their right to do so is protectedunder national and international law. One such consultation wasobserved in the municipality of Santa Eulalia, Hueheutenango in August2006; its integral importance as a traditional mode of indigenous self-governance was notable.

International Law

International law might appear to be a more promising venue for rightsenforcement, for a number of reasons. First, considerably more attentionto indigenous participation has been paid at the international level, mostclearly in International Labour Organization’s Indigenous and TribalPeoples Convention (ILO 169). Second, international courts—in thiscase the Inter-American Court of Human Rights—have sanctioned theGuatemalan state for human rights violations in the recent past.

Although both the provisions of ILO 169 and the forum of theIACHR provide powerful campaigning tools for rights advocates, theMarlin case suggests that just as in national law, the beauty of theseinstitutions lies in the eyes of the beholder. In interviews, both miningadvocates and adversaries invoked these international legal instrumentsto defend their positions. In this sense, the role played by such institu-tions is more ambiguous than some rights defenders maintain.

ILO Convention 169

ILO 169 is the principal source of international law relevant to the miningcontroversy in Guatemala. The ILO adopted this convention in 1989 asan updated version of the 1957 Indigenous and Tribal Peoples Conven-tion, which had fallen out of favor because of its assimilationist attitudetoward indigenous peoples (Schulting 1997). On its face, the conventionoffers many important rights and protective measures to indigenous pop-ulations, many of which are specifically relevant to the effects of extrac-tive industries. Article 4, for example, references the necessity of specialsafeguards for the environment of indigenous peoples, and article 5demands recognition and protection of “the social, cultural, religious andspiritual values” of indigenous peoples (ILO 1989).

In addition to these broad declarations, the convention contains spe-cific provisions relating to indigenous participation and development


projects. One of the most important mandates that governments carry outconsultations with indigenous peoples when national policies or deci-sions will affect them. Article 15 requires the safeguarding of the naturalresources of indigenous peoples’ lands and states that governments must“establish or maintain procedures through which they shall consult thesepeoples . . . before undertaking or permitting any programmes for theexploration or exploitation of . . . resources pertaining to their lands.”Article 7 declares indigenous peoples’ “right to decide their own priori-ties for the process of development” and to “participate in the formula-tion, implementation, and evaluation of plans and programmes fornational and regional development which may affect them directly.”

Taken as a whole, these articles seem to mandate the state’s respon-sibility to create a comprehensive scheme for the protection of indige-nous peoples’ rights through locally appropriate consultations. Indeed,Maya communities in Guatemala have cited ILO 169 in support ofmunicipal-level, community-organized consultations and referendumson the topic of mining (Sieder 2006). Indigenous groups elsewhere inthe Americas have relied on the convention in their legal battles innational courts against extractive industry development projects.13 LeeSwepston articulates the sense of optimism that the convention gener-ated, arguing that “the new convention has taken a major step towardproviding positive protection for [indigenous] groups at the internationallevel, and that it considerably advances international law on this sub-ject” (Swepston 1990, 678).

Still, there are a number of reasons why ILO 169 has failed todeliver on such promises in Guatemala. Although the country ratifiedthe convention in 1996 as part of the peace process, it was never imple-mented into national law. The Guatemalan Constitution declares thepreeminence of ratified international treaties and conventions overnational law in matters of human rights (Republic of Guatemala 1993),which would seem to make clear the government’s responsibility touphold the convention even in the absence of specific implementinglegislation. However, the Constitutional Court has failed to clarify this inGuatemalan jurisprudence. It therefore remains unclear whether ILO169 should be regarded as superior, equal to, or below the level of thenational constitution (Sieder 2007). In addition, it remains unclear whatnational body should be the authority on proper implementation of ILO169 (Sacalxot 2006).

This dynamic is dramatically illustrated by the Marlin case, in whichthe issue of consultation has been central to the controversy surround-ing the mine. Though ILO 169 is binding only on state signatories, aconsultation process was required for Glamis to comply with the regu-lations of the IFC (Montana Exploradora 2004). Dissatisfaction withthese processes led residents of Sipacapa, with the help of MadreSelva,


to file a complaint with the IFC’s Ombudsman, which released its assess-ment of the complaint in September 2005 (CAO 2005). The topic of con-sultation prompted some of the most critical findings in the report,revealing shortcomings on the part of both the Guatemalan governmentand the mining company.

The most serious fault highlighted by the report is the Guatemalangovernment’s failure to implement ILO 169 in its national legal frame-work. According to the findings, “national mining regulations provideno guidance on how project developers should seek approval fromlocal people for either their exploration or exploitation activities” (CAO2005, 32). The report also states that it found no evidence indicating“whether or not the government of Guatemala informed or consultedwith local people or their leaders prior to granting of the explorationlicense for the Marlin area” (CAO 2005, 28). Furthermore, although theGuatemalan Ministry of the Environment and Natural Resources regula-tions require the company to submit an Environmental and SocialImpact Assessment (ESIA) document, the CAO report details significantflaws in this process. For example, the report states, “public disclosuresabout project impacts and potential risks prepared by the company—including the ESIA—were highly technical and did not at the time havesufficient information to allow for an informed view on the likelyadverse impacts of the project” (CAO 2005, 31). The report also foundthat the Guatemalan government “did not hold any public consultationswith local people about the ESIA” (CAO 2005, 30).

ILO 169 states clearly that the responsibility for its fulfillment restswith the state. In the legal vacuum created by the government’s failureto establish a process for consultation with indigenous communities,however, Glamis Gold was left unilaterally to decide whom to consultand how to consult with them.14 The example of Glamis Gold in SanMiguel Ixtahuacán and Sipacapa illustrates the pitfalls of corporate-directed consultation processes: even if the company had consultedevery resident of the region, the knowledge that such consultationswere carried out by Glamis itself led many observers to question theirlegitimacy.15

In addition to the failures to implement ILO 169 in Guatemala, how-ever, the text of the convention itself is vague, leaving wide swaths ofits content open to interpretation. The convention does not containinstructions for how consultations should be implemented or a specificdefinition of what consultation entails, but simply states that “consulta-tions carried out in application of this Convention shall be undertaken,in good faith and in a form appropriate to the circumstances, with theobjective of achieving agreement or consent to the proposed measures”(ILO 1989, Art. 6.2). While this vague wording allows states to imple-ment consultations differently according to varying circumstances, it


provides no way of measuring whether consultation procedures areadequate. Moreover, the stated objective of “agreement or consent”raises the question of what should happen if indigenous peoples do notconsent to a policy or project.

Indeed, a manual on ILO 169 created by the ILO itself unequivocallystates that “indigenous and tribal peoples do not have the right under theconvention to veto exploitation” of natural resources on their lands.Rather, “they can give reasons why there should be no extraction orexploration” and “use their rights as bargaining tools in negotiations withthe company.” Quite optimistically, the manual suggests that “throughthese negotiations, indigenous and tribal peoples can persuade compa-nies to adapt their techniques to minimize environmental damage, andto restore the environment afterwards” (Project to Promote ILO Policy onIndigenous and Tribal Peoples 2003, 40). Under this interpretation of theconvention, indigenous peoples have a right to provide input that wouldideally influence the development of a project, but ultimately have nodecisionmaking authority. The convention gives indigenous peoples few,if any, substantial rights in cases of intractable disagreement. Further-more, the convention’s conception of consultation does not address theenormous power differential between indigenous peoples and the gov-ernments, multinational corporations (MNCs), and international financialinstitutions with whom they are to engage in “negotiations.”

Despite its weaknesses, ILO 169 has become a rallying point forGuatemalan indigenous communities and others involved in campaignsagainst mining projects, and has been cited as a legal basis for commu-nity-led consultations on the topic of mining. The most prominent ofthese popular consultations took place in June 2005 in 13 communitiesin Sipacapa, resulting in an overwhelming rejection of mining. Of anestimated 44 percent of registered voters in the municipality, 98 percentvoted against mining (Castagnino 2006, 20).

Although their legal validity is a matter of interpretation and it isuncertain whether they would be upheld in a court of law, similar con-sultations have been held throughout Guatemala. An example tookplace in the municipality of Santa Eulalia, Hueheutenango, on August29, 2006, which involved 79 separate communities and presented a finalvote tally of 18,089 opposed to metal mining, 5 in favor, and 62 absten-tions (Castillo 2006). According to the Guatemalan newspaper PrensaLibre, during the summer of 2006, similar consultations took place inSan Juan Atitlán, Colotenango, Santiago Chimaltenango, ConcepciónHuista, and Todos Santos Cuchumatán, with “massive” rejection ofmining at all of the listed consultations (Castillo and Castellanos 2006).

Government reactions to these popular consultations have beenmixed. Martín Sacalxot of the Human Rights Procurator’s office statedthat the consultations are legitimate within the Guatemalan legal frame-


work (Sacalxot 2006). The Ministry of Energy and Mines, as notedabove, considers the popular consultations irrelevant. Representatives ofGlamis also questioned the legitimacy of voting by a show of hands,stating that the lopsided vote totals suggested manipulation of or pres-sure on the electorate by antimining groups (Schenk 2006). Moreover,as the Guatemalan Ministry of Energy and Mines asserted, ILO 169 evencontemplates the forcible removal of communities (ILO 1989, Art. 16).Speaking on this point, the ministry’s general director, Alfredo GálvezSinibaldi, mentioned the infamous case of the Chixoy Dam. Rather thaninterpreting ILO 169 as unequivocally defending indigenous peoples’rights to participate in their own development, Gálvez invoked it as sup-porting the state’s right to resort to such measures as forcible relocationwhen deemed necessary (Gálvez Sinibaldi 2006).

Glamis Gold has also invoked ILO 169 to legitimate its actions. Thecompany’s sustainable development manager, James Schenk, has statedthat the company believes that its consultation procedures fulfilled therequirements of the convention (Schenk 2006).

The Inter-American Human Rights System

Mining opponents in Sipacapa have taken their case to the Inter-Amer-ican Commission on Human Rights in Washington, and hope it willeventually be heard by the Inter-American Court of Human Rights in SanJosé, Costa Rica. The court serves as a meaningful source of support forvictims of human rights abuses in the Americas and has successfullysanctioned the Guatemalan state for acts of repression, including casesrelated to the disastrous Chixoy Dam project. For these reasons, lawyersinvolved in the Marlin mine case saw it as a more hopeful and realisticmeans of defending the rights of communities than national law. Forcommunities involved in these struggles, having recourse to these inter-national institutions has important symbolic and political value.

At the same time, however, the Inter-American system has numer-ous limitations. The commission and court can hear cases only afternational legal remedies are deemed to have been exhausted. Further-more, the court is empowered only to hear cases against national states,not multinational corporations, and it can only issue judgments in thecontext of individual human rights violations, as opposed to orderingthe kinds of broad-based reforms that plaintiffs may actually wish to see.While a negative judgment might prompt a state voluntarily to reformits mining policies or practices, the very “race to the bottom” logic iden-tified above serves as a powerful disincentive for structural reformsstemming from a court case of this sort.

Although the court has recently ruled in favor of other indigenousgroups threatened by government concessions to multinationals, it has


so far shied away from ruling on the question of consultations. Thecommission has reaffirmed the right to consultation (Anaya 2005), butjurisprudence is still far from settling the nature of this required consul-tation. The case touted as a landmark for indigenous rights is that of theMayagna (Sumo) Awas Tingni Community vs. Nicaragua of 2001, com-monly known as the Awas Tingni case. The court ruled in favor of theindigenous group, whose lawyers argued that the state of Nicaraguashould have respected their collective right to property when it granteda concession to a multinational logging company.16 The court’s rulingrecognized the indigenous peoples’ right to collective property based ontraditional occupancy of the land rather than land titles. Yet as Haleargues (2005, 2006), the case has in some ways been a Pyrrhic victory,for it has led to ever greater state intervention in the community’s terri-tory. “Whatever the community gains in the final analysis—and it islikely to be substantial,” Hale writes, “the cost will be an unprecedentedinvolvement of the state and of neoliberal development institutions inthe community’s internal affairs: regulating the details of the claim,shaping political subjectivities, and reconfiguring internal relations”(Hale 2005, 16).

This court ruling, while undoubtedly historic, does not necessarilystrengthen indigenous rights to participate in development decisions. Itsrelevance to the Marlin case is therefore limited, as the legality ofGlamis’s purchase of project lands is not in dispute. Instead, projectopponents have argued that although land was obtained through legaltransactions, its use for metal mining violates the community’s right toparticipate in development decisions, not the rights to private or collec-tive property. If the Marlin case were to succeed in the Inter-Americansystem, international legitimation of the community’s claims might yieldeconomic and strategic gains for people in Sipacapa. At this point, how-ever, this institution has not played a key role in settling the larger ques-tion of who speaks for whom in development processes.

International Financial Institutions

The International Finance Corporation played a major role in the historyand governance of the Marlin mine.17 Of the project’s total funding, $45million comes from the IFC loan, out of a total cost of $254 million; butthe institution’s actual influence in the mine is disproportionate. In addi-tion to providing crucial capital, the IFC plays a critical symbolic role inthe process. The World Bank Group, by definition, supports projectsonly when they are deemed to be in the public interest, and bank fund-ing connotes prestige and commands attention in a way that privatefunding cannot. According to the Bank Information Center, internationalfinancial institutions (IFIs)


are the largest source of development finance in the world, typicallylending between US$30 to $40 billion to low- and middle-incomecountries each year. The IFIs, and in particular the World Bank, area primary source of development knowledge, publishing researchthat frames the debate on development issues. Other donor institu-tions often take their lead from the World Bank and the IMF, thusamplifying the impact of those institutions’ lending approaches anddecisions. (Bank Information Center 2007)

The IFC, therefore, is a highly influential voice in decisions aboutwhich development projects gain approval and how they are imple-mented. Companies operating with IFC funds are under contractualobligation to follow any rules that the IFC creates for individual projects.In this sense, if problems in the crafting and implementation of nationallaw are difficult to address because of perceived challenges to national“competitiveness,” the ability of actors like the IFC to write their ownrules for social responsibility would appear to offer a hopeful counter-point to this “race to the bottom” dynamic.

Furthermore, because IFIs hold the purse strings for large develop-ment projects, enforcement of their rules would circumvent weaknessesat the national level; funding, at least in theory, could be revoked incases where the rules were breached. Though this step is rarely taken,the World Bank does occasionally demonstrate its willingness to do so,as it did in the wake of the Awas Tingni case, in which Nicaragua wascharged “with failure to take steps necessary to secure the land rights ofthe … indigenous community of Awas Tingni and of other Mayagna andMiskito indigenous communities” (Anaya and Williams 2001, 37). “Sig-nificantly, the World Bank has conditioned a financial aid package setfor Nicaragua on the development by the government of a specific planto demarcate the traditional lands of the Miskito and Mayagna commu-nities,” Anaya and Williams note. “This was the first time that the WorldBank had placed such a condition on an aid package” (2001, 38).

Such hopes are bolstered by recent increases in the IFC’s publiccommitments to use its power in a socially and environmentallyresponsible manner. Stung by harsh criticisms that they were fundingdisasters rather than development, the World Bank and other majorlending institutions have created and updated successive generations of“safeguard policies,” extensive documents detailing the circumstancesunder which a bank should underwrite projects and the standards thatshould apply over the course of a project. The IFC’s loan for the Marlinmine project was bound by its 1998 policies; the latest set was pub-lished in 2006.

The trend in World Bank internal reform was not limited to theadoption of safeguard policies. In 1999 the IFC created the CAO,intended “to provide an accessible and effective mechanism for han-


dling complaints from persons who are affected (or are likely to beaffected) by the social and environmental impacts of IFC- or MIGA-sponsored projects” (CAO 2006). The following year, the World BankGroup commissioned an external, independent review of its engage-ment with the extractive industries sector. The final report, known as theExtractive Industries Review (EIR) (Salim 2003), was issued in Decem-ber 2003, capping an unusual, large-scale process of research and analy-sis. Led by a widely respected figure, Emil Salim, former environmentminister of Indonesia, the EIR relied on input from a broad range of civilsociety organizations, academics, bank officials, and other stakeholders.

The Extractive Industries Review set out to answer a fundamentalquestion: “Can extractive industries be a vehicle for poverty alleviationthrough sustainable development and, if so, is there a role for the WorldBank Group to play to achieve this aim?” (Salim 2003, 27). Ultimately,the authors answered both questions in the affirmative, but arguedstrongly that several major conditions had to be met for the bank to jus-tify investing in extractive industries. Governance, human rights, andsocial and environmental sustainability all must be respected before thebank could hope to support extractive projects that made a positivecontribution to development. Under the status quo, the report assertedfrankly, the bank’s support for extractive industries had failed to reducepoverty.

The Marlin project was the first mine to receive IFC financing sincethe publication of the EIR and the first mining project in Guatemalasince the passage of the 1997 law aiming to attract investment. TheGuatemalan government and the IFC both envisioned the project as ashowcase of profitable and responsible development. In the end, how-ever, the IFC drew criticism in connection with its involvement with theproject as fierce as any in its controversial history. The decision to investin the project alone drew criticism from some quarters. As two observersfrom the Bank Information Center put it, “One wonders just how theIFC and Glamis could have walked into a postconflict country with pro-found ethnic, economic, and political divisions in which state and paras-tate violence is still a very real threat in daily life, without consideringthe possibility of conflict” (Holt-Giménez and Spang, 2005). The WorldBank eventually considered imposing a moratorium on exploratoryactivity (Inamdar 2006).

The case became notorious in the IFC, and important enough tomerit personal attention from the World Bank’s president, Paul Wolfo-witz. The bank judged the Marlin case sufficiently difficult and visible tojustify a special meeting with NGO representatives from organizationslike Oxfam America (Slack 2006). The CAO received a formal complaintin January 2005 from an NGO representing Sipacapa residents, and con-ducted an investigation and review process. It released an initial report


in September 2005 and returned twice more to the site before closingthe complaint on the basis that neither the company nor the communitysaw a continuing role for the IFC in facilitating talks between the twosides (Inamdar 2006). The CAO issued a number of formal recommen-dations that centered on creating the conditions for dialogue and com-munity acceptance of the mine, some of which were implemented, to adegree. Though the overall level of tension remained high, World Bankultimately disbursed its entire $45 million loan to Glamis as originallyplanned, without interruption.

The Marlin mine was indeed a showcase for the IFC and theGuatemalan government, but the realities showcased by the projectwere undoubtedly different from the ones intended. In the end, after allthe World Bank’s self-scrutiny and commitments to change, the IFCfinanced a project that would prove not only to be highly controversialbut to replicate exactly the kind of social and environmental concernscriticized in the EIR. The CAO report suggests that no meaningful IFCoversight was ever exercised on the topic of consultation and disclosureor the adequacy of the mandated Environmental and Social ImpactAssessment.18 The safeguard policies, if well intentioned, proved to bevague and subject to interpretation. The legal and financial strength ofthe IFC is indisputable, but to be meaningful in the context of any givendevelopment project, it must be coupled with the political will to insiston changes if standards go unmet.

This political will appears to have been lacking in the Marlin case.When the IFC decided to examine the case, it was not with the primaryaim of forcing Glamis, or the communities affected by the mine, toadhere to specific standards. Instead, the emphasis was on fostering“dialogue” between parties already entrenched in positions of mutualdistrust. Both sides seemed to expect a definitive judgment from theprocess. Glamis, of course, was hoping to be exculpated of any allegedmisdeeds, and the complainants were hoping that Glamis would be offi-cially sanctioned and forced to alter fundamentally its operations oreven withdraw altogether from the project. According to Amar Inamdar,a CAO senior specialist, the CAO’s first report set off a “feeding frenzy”by both sides: all parties seized on the document and scoured it for evi-dence and arguments that would bolster their respective positions(Inamdar 2006).

Like all other forms of “law” discussed in this study, the reportbecame something of a Rorschach test for people determined to projecttheir own foregone conclusions onto what was tendered as a neutraldocument. When each side realized that the CAO would not issue thehoped-for definitive judgment and orders, the CAO was eventuallyforced to withdraw, as both parties made it clear that its participationwas no longer welcome.


According to both Inamdar and James Schenk, Glamis did institutesome new policies in response to the report in an attempt to addressboth environmental and social concerns. After the report, Glamisadopted the Voluntary Principles on Security and Human Rights. On theenvironmental front, Glamis instituted a new water-monitoring policythat Inamdar characterizes as more “proactive” and “inclusive.” Thesechanges, however, have yet to address the long-term mistrust betweenthe company and the communities. Inamdar hopes that a new Glamis-funded initiative, whereby community members are invited to engage inenvironmental monitoring activities, will be a “wedge” that will allowthe company to engage with the public and build trust, but these out-comes are not yet in evidence.

The Marlin complaint prompted “deep reflection” in the CAO overhow the office conducts its operations, Inamdar says.19 The ombudsmanwas drawn too deeply into technical aspects of the controversy, hemaintains, and the CAO should design a credible way to resolve thosecomplaints. Beyond the inner workings of the CAO, however, lie fun-damental questions about how the IFC operates in countries where therule of law is weak. The IFC is, to a large extent, dependent on thenational host government to provide leadership on crucial governanceissues. The IFC depends on the corporation to draw the boundariesaround communities that are “project-affected,” and any communitiesthat fall outside those lines depend on their government to offer thema voice in the decisionmaking process.

The IFC, with all its safeguard policies and procedures, can only doso much to determine questions of authenticity and representation. Whoshould have a voice in the decision? Who speaks for a community?These questions are, to an extent, amenable to technocratic solutions,but basically represent a fundamental question for democracy that is faroutside the IFC’s purview. The framework in which local communitiesparticipate in the initial decision to proceed with a project is an issuethe IFC is only beginning to consider, suggests Inamdar. The WorldBank has heretofore depended on national law to settle that question;but as the Marlin case suggests, this may simply reinforce rather thanredress the “race to the bottom” dynamic. As this case study reveals,structures that promise accountability yet are not moored to a solid andenforceable framework in national law may actually exacerbate ratherthan alleviate existing tensions.

Corporate Social Responsibility

Corporate Social Responsibility (CSR) represents another form of regula-tion that might seem to constrain the behavior of multinational corpora-tions and offer another layer of protection to vulnerable communities


facing large-scale development projects that threaten to encroach on tra-ditional communal lands. Yet the research for this study suggests that thisquasi-legal form of regulation ultimately falls far short of its promise asa sensible, flexible, and modern way to produce “win-win” develop-mental outcomes. Touted by its proponents as a way to achieve regula-tion while avoiding the disadvantages of a punitive, top-down model oflaw enforcement, CSR is decried by its critics as a farcical form of “green-washing,” nothing but old wine in new bottles, as ineffective, irrelevant,or even actively harmful to the communities it purports to serve.

In the past 15 years, CSR has become a major part of the linguisticlandscape of MNCs and their actions around the globe. The umbrellaterm comprises a wide variety of initiatives, agreements, and organiza-tions, but in its broadest sense refers to voluntary self-regulation, under-taken unilaterally by a single company, in concert with government orNGOs, or sectorwide. Charitable or other activities not directly relatedto corporate profits are nothing new, of course, but the modern CSRmovement is notable both for its scope and for its role in changingglobal perceptions of appropriate or acceptable behavior for MNCs. Nomore the capitalist robber barons of old, the argument goes, corpora-tions use CSR as part of a newer, kinder, more responsible capitalismthat allows brisk efficiency and profits to blossom without runningroughshod over the rights and interests of the world’s most vulnerablepeople.

Many mining firms participate in the the United Nations GlobalCompact, and half take part in the Global Reporting Initiative, a multi-stakeholder organization that lets companies report on their environ-mental and social bottom lines in addition to traditional financial report-ing. Glamis takes part in neither initiative, but it does have its own formsof engagement with CSR principles. In 2004 it created the FundaciónSierra Madre, with the help of the international group Citizens Devel-opment Corps. The foundation provides, among other things, somehealth and education services to citizens of the local communitiesaffected by the Marlin project. Glamis’s sustainable development man-ager, Schenk, maintains that Glamis’s vision of CSR is a way of achiev-ing true long-term development: “We want the project to be a means,not an end.” CSR does not mean charitable “donations,” he argues, butinstead “being part of a community” (Schenk 2006).

Glamis is committed to funding the foundation while the mine isstill in operation, according to Schenk, and would ultimately like tomake it self-sufficient. Schenk agrees with Guatemalan activist groupsthat the state is not playing its needed role, and argues that Glamis iscapable of providing some of the things the state is not able or willingto provide. A representative of a Mayan rights organization, however,sharply criticizes the foundation’s efforts. It has financed small, insignif-


icant projects with the aim of pacifying the population and putting thepeople “to sleep,” he charges, but stood by and did nothing to helppeople who were dying slowly from the poisonous chemicals themining activity releases (Maya representative 2005).

As this case reveals, CSR may benefit some communities some ofthe time, but such help is by definition voluntary, and thus many com-panies do not self-regulate, either fully or at all. The World Bank itselfhas voiced criticism of CSR, charging that “despite widespread rhetoric,impact is still patchy; in practice, many companies’ implementation [ofCSR strategies] is shallow and fragmented” (cited in Christian Aid 2004,8). When companies do participate in CSR activities, there is often nomechanism for accountability, leaving companies vulnerable to chargesthat their voluntary initiatives are mere propaganda (Shamir 2004). Evenwhen companies undertake voluntary initiatives that may seem laudablein the abstract, these may be compromised because of the way they areviewed by the communities and intended beneficiaries. Communitiesmay view all corporate overtures with extreme mistrust, suspecting thattheir effects will be negligible or that the company may be using CSR asa way to divert attention from the real and serious problems that theiractivities generate.

Peter Newell notes that CSR does nothing to alter the fundamentalrelationship between companies and communities: “Clearly . . . powerinequalities have important implication for the type of accountabilitymechanism that can realistically be constructed between companies andcommunities” (Newell 2005, 543). “CSR is founded on a notion ofantipolitics” (2005, 556). Insistence on self-regulation overlooks the real-ity that corporations are generally much more powerful than the com-munities they affect. The decision to allow companies to self-regulate isa fundamentally political one, but CSR permits companies to project atleast the illusion that they are behaving according to the dictates ofcommon sense, generosity, and “good citizenship.”

Ultimately, CSR does not promote fundamental changes in societiesthat favor increased political participation and stronger democracy;indeed, it may actively work against such changes, cloaking the worsteffects of corporate exploitation and distracting beneficiaries from theneed to push for deeper changes. The critical question is whether vol-untary self-regulation functions as a complement or a competitor tomandatory regulation by the state, if indeed self-regulation can be saidto play any meaningful role beyond that of window dressing.

CONCLUSIONS

The Marlin mine typifies both the social and economic structures thathave been in place since the Conquest and the newly emerging kinds of


encounters between global corporations and local communities that willdefine the twenty-first century. The iconic image of the poor Latin Amer-ican peasant sitting atop a mountain of gold, ironically unable to benefitfrom the wealth of natural resources at hand, unfortunately still seemsapt. Yet the legal terrain on which both indigenous peasants and corpo-rate moguls are attempting to find their footing has also undeniablyshifted. Globalization has provided poor communities and the rightsadvocates who defend them with myriad legal options for protectingthemselves from the threat of exploitation by multinational corporations.This article has used the Marlin mine as a case study to argue that theselegal tools, although seemingly progressive in some cases, are in the endan ambiguous response to the needs of indigenous communities facingencroachment on their traditional territories by MNCs seeking profit.

This ambiguity has at least two dimensions. The first dimensionconcerns the clarity and effectiveness of the legal instruments in ques-tion. Of the four legal orders this study has examined, none has thecombination of coherence, political will, and ability to ensure compli-ance that would make for a dependable source of rights protection.Guatemalan national law provides some opportunities for environmen-tal regulation and local input, but ultimately the law cedes true deci-sionmaking authority on all relevant points to a government agency thatis concerned above all with facilitating mining and economic activity.International law opens spaces for aggrieved parties to state their casein a court of law, where important and tangible benefits have beensecured for indigenous peoples in a few cases. This approach to legalregulation, however, is cumbersome and sometimes effectively impossi-ble for communities to pursue; and it offers, in most cases, only a posthoc remedy, as opposed to forward-looking governance.

Perhaps more important, international law has not yet resolved thecrucial question of consultation, featured so prominently in the Marlincase. International financial institutions like the IFC clearly have vastpower to shape development outcomes, recently have demonstrated asignificant awareness of the social and ethical implications of the proj-ects they support, and in some quarters have expressed commitmentsto wielding their authority conscientiously. To date, however, this self-awareness and these good intentions have not translated into demon-strably wiser development decisions on the ground.

Corporate social responsibility, a hallmark of the new global gover-nance regime, has led to tangible benefits for communities where nonemight otherwise exist. CSR’s voluntary nature, however, means thatthese initiatives will be undertaken only when corporations choose, andwill not be systematically provided. Furthermore, communities mayview corporate-led efforts with suspicion, thwarting the objective ofimproved corporate-community relations.


The second dimension of ambiguity in the new global legal terrainis more fundamental. Those practitioners taking a technocratic approachto development practice argue that we can learn from bad developmentoutcomes, apply their lessons, and get it right the next time. Nationaland international laws can be strengthened, refined, and clarified. IFIscan fine-tune their policies and adjust their approach incrementally. CSRis a quickly growing and changing field; corporations can learn fromothers’ successes and emulate their best practices. We see in the Marlinmine, however, reason to be skeptical of this technocratic mindset. Lawsundoubtedly can be improved, but it is doubtful that this sort of revi-sion will resolve the more fundamental questions at stake. Especially inthe climate of mutual suspicion that currently exists between indigenouscommunities worldwide and MNCs and extractive development proj-ects, core community concerns are unlikely to be allayed by a policystatement by the IFC or a CSR initiative from a corporation like GlamisGold. The questions of who decides what development projects pro-ceed, how they proceed, and who benefits will not be answered solelyin a court of law ruling on isolated cases. They can be resolved onlythrough the political give and take of the democratic process, in whichthe role of the state cannot be played by private actors.

The issues raised by the Marlin case continue to play out inGuatemala. Community mobilization has spread to other areas of thecountry, such as the municipality of Concepción Tutuapa in San Marcos.This community held its own popular consultation on February 13,2007, resulting in a unanimous statement rejecting future mining proj-ects (Municipalidad de Concepción Tutuapa 2007). A nickel-miningproject conducted by the Canadian mining conglomerate SkyeResources/INCO in the municipality of El Estor, near Lake Izabal, hasled to more dramatic conflict between indigenous communities and cor-porate and state authorities due to disputes over land rights. In Sep-tember 2006, local Maya-Q’eqchi’ communities occupied land granted tothe mining company, which they claim as their ancestral heritage. Theoccupation led to a series of forced evictions in November. Acts ofpolice violence during the evictions were answered by the arson ofbuildings owned by the mining company (Defensoria Q’eqchi’ 2006).

The dynamics identified in the Marlin mine case are sadly in evi-dence in these cases and others like them around the world. Meanwhile,as the Guatemalan government debates how to revise its mining codeand as the IFC ponders how to apply the “lessons learned” from theMarlin case, extraction continues at the mine in San Marcos.


NOTES

Unless otherwise noted, all translations are by the authors.1. Glamis Gold was subsequently acquired by the Canadian company

Goldcorp. Given that the bulk of this research and the events in question tookplace before the merger, for consistency and clarity, we refer to the company asGlamis.

2. For studies of violence and development in Guatemala, see, for exam-ple, Grandin 2004; Robinson 2003; Manz 2004.

3. The Rorschach test is a diagnostic tool used in psychology, in which theperson being tested is asked to interpret a series of meaningless inkblots. Manycritics of the test consider the interpretation of the subject’s responses to behighly subjective and the test therefore of dubious value.

4. Related cases of conflict over resource exploitation exist elsewhere inthe world. For example, conflicts have arisen between corporations and com-munities involving oil in Nigeria (Frynas 2001) or Sudan (Gagnon and Ryle2001). The contested Chad-Cameroon pipeline project led to the developmentof elaborate but ultimately unsuccessful accountability mechanisms (Gould andWinters 2007).

5. The mine overlaps the municipalities of Sipacapa and San MiguelIxtahuacán. Primary ore deposits and most of the project’s land area fall in SanMiguel Ixtahuacán, while processing facilities are located in Sipacapa. Glamisengaged San Miguel Ixtahuacán more closely in corporate-driven consultationand development projects, while the population of Sipacapa was comparativelymarginalized and expressed its disillusionment earlier.

6. Eight hundred seventy-three jobs were created for local residents of SanMiguel Ixtahuacán and Sipacapa during construction, benefiting 12 percent oflocal families; when the extraction phase started, at the end of 2005, this numberfell to 230 (Castagnino 2006).

7. The subject’s name and the identity of the organization have been omit-ted, as some opponents have received death threats in connection with speak-ing out on this case.

8. As a 2001 ECLAC study of mining in the region noted, “In Guatemala,specific taxes on mining are deductible from corporate income tax, while sec-toral imports are exempt from taxes and tariff duties on inputs, capital goods,equipment, spare parts and accessories, unless there is also local production”(Sánchez Albavera et al. 2001, 25). Imports are also duty-free (Doan 1998, 1).

9. These specific provisions regarding mining must also be understood asoperating in an investment climate in which many foreign corporations arealready assessed minimal taxation, if any. In 2005, media reports focused on thefact that Glamis Gold had yet to pay any income tax whatsoever (Sic 2006). Farfrom an exception, such practices constitute the rule, and are actually legalunder the terms of Decreto No. 29-89, Ley de Fomento y Desarrollo de la Activi-dad Exportadora y de Maquila (Congreso de la República de Guatemala 1998).In 2006, Glamis Gold voluntarily agreed to begin paying taxes before its periodof exemption had expired, after consultations with the Guatemalan government,the World Bank, and the IFC (Glamis Gold 2006). Though this may certainly becited as an example of positive voluntary action by a corporation in contradic-


tion to the “race to the bottom” trend, it also fits in with the “depolitization”favored by neoliberalism. Regressive legal structures go unchallenged as statepower is subordinated to the goodwill of the private sector.

10. As of this writing, the law governing mining is Decreto No. 48-97, Leyde Minería (Congreso de la República de Guatemala 1999). In June 2008,Guatemala’s Constitutional Court ruled that some elements of this law violatedthe constitution, yet so far the law has yet to be amended or replaced.

11. Article 26 of the Ley de Consejos de Desarrollo Urbano y Rural estab-lishes that “consultations of Maya, Xinca and Garifuna communities can be car-ried out through their development council representatives concerning devel-opment initiatives undertaken by executive authority, when they directly affectindigenous peoples” (Congreso de la República de Guatemala 2002a). Consul-tation of indigenous communities is also discussed in Article 65 of the Munici-pal Code: “When matters arise that particularly affect the rights and interests ofindigenous communities, of the municipality or of their own authorities, theMunicipal Council will carry out consultations at the request of these communi-ties or indigenous authorities, according to the criteria set by the customs andtraditions of the indigenous communities” (Congreso de la República deGuatemala 2002b).

12. Though practices vary by community, many Maya communities tradi-tionally make collective decisions through public meetings, where participantsvisibly and vocally indicate their support for specific initiatives (UniversidadRafael Landívar 1998). Voting by a show of hands is common.

13. For example, in 1997 the Colombian Constitutional Court ruled in favorof the U’wa people on the basis of the constitution and ILO 169 (Rodríguez-Gar-avito and Arenas 2005, 252).

14. According to the CAO report, “early in the development process, Mon-tana [Exploradora]’s assessment was that, despite the proximity of the projectto communities in Sipacapa, the people of Sipacapa were unlikely to be sig-nificantly adversely impacted. Accordingly, proportionately less effort wasinvested in (a) communicating the impacts; (b) engaging proactively withcommunities in Sipacapa.” Glamis’s consultation process included the creationof a Community Relations Group (CRG), made up of local residents employedby the mine, to explain its benefits and host informational presentations aboutthe project. Community lists of development priorities were drawn up at themeetings, and the company incorporated some of them into its communityrelations and development projects. These disclosure and philanthropic proj-ects focused primarily on the area of San Miguel Ixtahuacán, not Sipacapa. TheCRG’s ability to address technical concerns relating to the mine was reportedlyinadequate, and detailed records of early meetings with community memberswere not kept (CAO 2005, 31).

15. Other corporations have conducted their own consultation processes.For instance, Barrick Gold highlights the “community consultation” it has carriedout in the controversial Pascua Lama gold mine project on the Chile-Argentinaborder (Barrick Gold Corporation 2008).

16. Another case, involving the Kichwa people of Sarayaku and theEcuadorian state over the state’s grant of a concession to an Argentine oil com-pany, is pending.


17. For an analysis of the World Bank’s involvement in community strug-gles over mining, see Szablowski 2007.

18. The CAO report states, “the basis on which the IFC determined thatthe disclosure and consultation practice of the company [Glamis] was ade-quate—with respect to being both meaningful and culturally appropriate, isnot clear. CAO found no record of analysis of company capacity nor of gov-ernment regulations or capacity to implement regulations. . . . There is no doc-umentation that reflects that any detailed consideration was given to the qual-ity of consultation nor to the rationale in differentiating an approach betweenSan Miguel [Ixtahuacán] and Sipacapa” (CAO 2005, section 2.4.2, emphasis inoriginal). In section 2.2.2.1 the report states, “the basis on which the IFCdetermined that the ESIA was adequate is not clear . . . no documentation wasmade available that reflects that any detailed and specific consideration hadbeen given to how the IFC has and will ensure that the project complies witheach of the applicable IFC policies and other basic procedural requirements”(CAO 2005).

19. For a summary of “lessons learned” from the Marlin case from the IFC’spoint of view, see IFC 2007, 10.

REFERENCES

Anaya, James. 2005. Indigenous Peoples’ Participatory Rights in Relation toDecisions About Natural Resource Extraction: The More Fundamental Issueof What Rights Indigenous Peoples Have in Lands and Resources. ArizonaJournal of International and Comparative Law 22: 7–17.

Anaya, James, and Robert A. Williams, Jr. 2001. The Protection of IndigenousPeoples’ Rights over Lands and Natural Resources Under the Inter-Ameri-can Human Rights System. Harvard Human Rights Journal 14: 33–86.

Bank Information Center. 2007. About BIC. <http://bicusa.org/en/Page.About.aspx#> Accessed January 11, 2007.

Barrick Gold Corporation. 2008. Barrick Responds to Pascua-Lama Chain Email.<www.barrick.com/CorporateResponsibility/KeyTopics/PascuaLama/BarrickRespondsbrtoChainEmail/default.aspx> Accessed February 13, 2008.

Bhagwati, Jagdish. 2004. In Defense of Globalization. Oxford: Oxford UniversityPress.

Business Wire. 2005. Glamis Gold Comments on Proposed Referendum inGuatemala. June 8. <www.findarticles.com/p/articles/mi_m0EIN/is_2005_June_8/ai_n13804652> Accessed August 29.

Castagnino, Vincent. 2006. Minería de metales y derechos humanos enGuatemala: la Mina Marlin en San Marcos. Report. Guatemala City: Brigadasde Paz Internacionales. May. <www.peacebrigades.org/2068.html?&?&L=1>Accessed October 22, 2008.

Castillo, Mike. 2006. Consulta popular en Santa Eulalia. Prensa Libre, August 31.<www.prensalibre.com/pl/2006/agosto/31/150541.html> Accessed August28, 2007.

Castillo, Mike, and Amafredo Castellanos. 2006. Votan contra minería. PrensaLibre (Guatemala City), August 30. <www.prensalibre.com/pl/2006/agosto/30/150443.html> Accessed August 28, 2007.


Chen, Carlos. 2007. The Chixoy Dam Case. World Commission on Dams.<www.dams.org/kbase/submissions/showsub.php?rec=soc073> AccessedJanuary 31, 2007.

Christian Aid. 2004. Behind the Mask: The Real Face of Corporate Social Respon-sibility. Report. London: Christian Aid.

Congreso de la República de Guatemala. 1998. Decreto No. 29–89. Ley defomento y desarrollo de la actividad exportadora y de maquila. GuatemalaCity, May 23. <www.mineco.gob.gt/Presentacion/LeyesNormas.aspx>Accessed September 25, 2007.

–––––. 1999. Decreto No. 48-97, Ley de minería. Guatemala City, June 11.<www.ccad.ws/documentos/legislacion/GT/DL-48-97.pdf> Accessed Sep-tember 25, 2007.

–––––. 2002a. Ley de consejos de desarrollo urbano y rural. Guatemala City,March 12. <www.mintrabajo.gob.gt/varios/compendio_leyes/varios/compendio_leyes/consejos_html/document_view> Accessed September 25,2007.

–––––. 2002b. Codigo municipal. Article 65. Guatemala City, April 2.<www.mintrabajo.gob.gt/varios/compendio_leyes/mtps/sistemas_informacion/operaciones/intranet/portal_extranet/ciudadania/codigo_html>Accessed October 22, 2008.

Crush, Jonathan. 1995. Power of Development. London: Routledge.Daniel, Frank Jack. 2005. All’s Not Gold for Guatemala’s Mayans. Reuters, Feb-

ruary 28. Defensoria Q’eqchi’. 2006. Land Conflicts in El Estor, Izabal, Guatemala and

Rights of the Maya Q’eqchi’ People. Report. November 19.<www.nisgua.org/themes_campaigns/index.asp?id=2790> Accessed August29, 2007.

Doan, David B. 1998. The Mineral Industry of Guatemala. Reston, VA: UnitedStates Geological Survey.

Escobar, Arturo. 1995. Encountering Development: The Making and Unmakingof the Third World. Princeton: Princeton University Press.

European Corporate Governance Institute. 2007. About the Institute.<www.ecgi.org/organisation/about_ecgi.htm> Accessed February 5, 2007.

Ferguson, James. 1994. The Anti-Politics Machine. Minneapolis: University ofMinnesota Press.

–––––. 2006. Global Shadows: Africa in the Neoliberal World Order. Durham:Duke University Press.

Friedman, Thomas. 2005. The World is Flat: A Brief History of the Twenty-firstCentury. New York: Farrar, Straus and Giroux.

Frynas, Jedrzej George. 2001. Corporate and State Responses to Anti-Oil Protestsin the Niger Delta. African Affairs 100, 398: 27–54.

Gagnon, Georgette, and John Ryle. 2001. Report of an Investigation into OilDevelopment, Conflict and Displacement in Western Upper Nile, Sudan.Ottawa: Canadian Auto Workers Union, Steelworkers Humanity Fund, TheSimons Foundation, United Church of Canada, Division of World Outreach,and World Vision Canada.

Gálvez Sinibaldi, Alfredo. 2006. General Director of Mining, Ministry of Energyand Mines. Author interview. Guatemala City, August, 28.


Glamis Gold. 2006. Press Release. July 18. <biz.yahoo.com/iw/060718/0145408.html> Accessed February 16, 2007.

Gould, John A., and Matthew S. Winters. 2007. An Obsolescing Bargain in Chad:Shifts in Leverage Between the Government and the World Bank. Businessand Politics 9, 2: 1–34.

Grandin, Greg. 2004. The Last Colonial Massacre. Chicago: University of ChicagoPress.

Hale, Charles R. 2005. Neoliberal Multiculturalism: The Remaking of CulturalRights and Racial Dominance in Central America. Political and LegalAnthropology Review 28, 1: 10–28.

–––––. 2006. Activist Research v. Cultural Critique: Indigenous Land Rights andthe Contradictions of Politically Engaged Anthropology. Cultural Anthro-pology 21, 1: 96–120.

Hemphill, Thomas A. 2004. Corporate Citizenship: The Case for a New Corpo-rate Governance Model. Business and Society Review 109 (September):339–61.

Holt-Giménez, Eric, and Lyra Spang. 2005. Beyond the Leaks and Behind theSpins: A Review of the CAO Report on the Marlin Mine. September 13.<www.bicusa.org/en/Article.2333.aspx> Accessed August 29, 2007.

Inamdar, Amar. 2006. Senior Specialist, Compliance Advisory Ombudsman,International Finance Corporation. Author interview. Washington, DC,August 16.

International Finance Corporation (IFC). 2007. ILO Convention 169 and the Pri-vate Sector: Questions and Answers for IFC Clients. Washington, DC: IFC.March. <www.ifc.org/ifcext/enviro.nsf/AttachmentsByTitle/p_ILO169/$FILE/ILO_169.pdf> Accessed October 24, 2008.

International Finance Corporation. Compliance Adviser/Ombudsman (CAO).2005. Assessment of a Complaint Submitted to CAO in Relation to theMarlin Mining Project in Guatemala. September 7. <www.cao-ombudsman.org/html-english/complaint_marlin.htm> Accessed August 28, 2007.

International Labour Organization (ILO). 1989. C169 Indigenous and Tribal Peo-ples Convention, 1989. ILOLEX Database of International Labour Standards.Geneva, June 27. <www.ilo.org/ilolex/english/convdisp1.htm> AccessedOctober 28, 2006.

Krastev, Ivan. 2002. The Balkans: Democracy Without Choices. Journal ofDemocracy 13, 3: 39–53. Quoted in Randeria 2003.

MadreSelva. 2006. Staff members, legal and program departments. Author inter-views. Guatemala City, August 28.

Manz, Beatriz. 2004. Paradise in Ashes: A Guatemalan Journey of Courage,Terror, and Hope. Berkeley: University of California Press.

Mayan rights organization. 2005. Representative. Author interview. San Marcos,Guatemala, September 10.

Merry, Sally Engle. 1988. Legal Pluralism. Law and Society Review 22, 5:869–96.

Montana Exploradora. 2004. Marlin Mining Project: Public Consultation and Dis-closure Plan. February 24.

Morales, Alfredo. 2006. Se quejan de daños. Prensa Libre, June 7. <www.prensalibre.com/pl/2006/junio/07/143555.html> Accessed August 28, 2007.


Municipalidad de Concepción Tutuapa. 2007. Comunicado. Februrary 13.<www.resistencia-mineria.org/espanol/comunicados/comunicado_con-sulta_concepcion_tutuapa.pdf> Accessed August 29, 2007.

Newell, Peter. 2005. Citizenship, Accountability and Community: The Limits ofthe CSR Agenda. International Affairs 81, 3: 543–57.

Oxfam America. 2005. Rodolfo Pocop: An Indigenous Perspective on Miningin Guatemala. September 15. <www.oxfamamerica.org/whatwedo/where_we_work/camexca/news_publications/feature_story.2005-09-15.1253640764> Accessed August 28, 2007.

Pérez, Sonia. 2007. Minería: consulta en Sipacapa no es vinculante. Prensa Libre,May 9. <www.prensalibre.com.gt/pl/2007/mayo/09/170357.html> AccessedMay 26, 2007.

Perlez, Jane, Kirk Johnson, and Somini Sengupta. 2005. Behind Gold’s Glitter:Torn Lands and Pointed Questions. New York Times, October 24.

Plant, Roger. 1998. Issues in Indigenous Poverty and Development. Washington,DC: Inter-American Development Bank.

Procurador de los Derechos Humanos de Guatemala (PDH). 2005. La actividadminera y los derechos humanos en Guatemala. Guatemala City: PDH.

Project to Promote ILO Policy on Indigenous and Tribal Peoples. 2003. ILO Con-vention on Indigenous and Tribal Peoples, 1989 (No. 169): A Manual.Geneva: ILO.

Ramírez, Alberto. 2003. Cierran planta de Duke Energy. Prensa Libre, December11. <www.prensalibre.com/pl/2003/diciembre/11/75703.html> AccessedAugust 28, 2007.

Randeria, Shalini. 2003. Glocalization of Law: Environmental Justice, World Bank,NGOs and the Cunning State in India. Current Sociology 5, 3–4: 305–28.

Republic of Guatemala. 1993. 1985 Constitution with 1993 Reforms.<pdba.georgetown.edu/Constitutions/Guate/guate93.html> Accessed Octo-ber 28, 2006.

Robinson, William. 2003. Transnational Conflicts: Central America, SocialChange, and Globalization. London: Verso.

Rodríguez-Garavito, César A., and Luis Carlos Arenas. 2005. Indigenous Rights,Transnational Activism, and Legal Mobilization: The Struggle of the U’waPeople in Colombia. In Law and Globalization from Below: Towards a Cos-mopolitan Legality, ed. Boaventura de Sousa Santos and Rodríguez-Gar-avito. Cambridge: Cambridge University Press. 241–66.

Sacalxot, Martín. 2006. Defensor de Pueblos Indígenas, Procurador de los Dere-chos Humanos. Author interview. Guatemala City, September 4.

Salim, Emil. 2003. Final Report of the Extractive Industries Review. Independentreport prepared for the World Bank Group. Jakarta. December.

Sánchez Albavera, Fernando, Georgina Ortiz, and Nicole Moussa. 2001. Miningin Latin America in the Late 1990s. Santiago, Chile: ECLAC. August.

Santos, Boaventura de Sousa. 1987. Law, A Map of Misreading: Toward a Post-modern Conception of Law. Journal of Law and Society 14, 3: 279–302.

Santos, Boaventura de Sousa, and Mauricio García. 2001. El caleidoscopio de lasjusticias en Colombia: análisis socio-jurídico. Bogotá: Siglo del HombreEditores/Ediciones Uniandes/Facultad de Derecho, Centro de Investiga-ciones Sociojurídicas (CIJUS).


Schenk, James. 2006. Sustainable Development Manager for Glamis Gold.Author interview. Antigua, Guatemala, September 5.

Schulting, Gerard. 1997. ILO Convention 169: Can It Help? Abya Yala News: TheJournal of the South and Meso American Indian Rights Center 10, 4.<saiic.nativeweb.org/ayn/schulting.html> Accessed October 22, 2008.

Shamir, Ronen. 2004. Between Self-Regulation and the Alien Tort Claims Act: Onthe Contested Concept of Corporate Social Responsibility. Law and SocietyReview 38, 4 (December): 635–64.

Sic, Vinicio. 2006. Energía pide revocar privilegios a Montana. Siglo Veintiuno,April 4. <old.sigloxxi.com> Accessed February 28, 2007.

Sieder, Rachel. 2006. El derecho indígena y la globalización legal enla Guatemala de posguerra. Alternidades 16, 31: 23–27.

–––––. 2007. The Judiciary and Indigenous Rights in Guatemala. InternationalJournal of Constitutional Law 5, 2: 211–41.

Slack, Keith. 2006. Senior Policy Adviser, Oxfam America. Author interview.Washington, DC, August 15.

Solano, Luis. 2005. Guatemala petróleo y minería en las entrañas del poder.Guatemala City: Infopress Centroamericano.

Stiglitz, Joseph E. 2006. Making Globalization Work. New York: W. W. Norton.Swepston, Lee. 1990. A New Step in the International Law on Indigenous and

Tribal Peoples: ILO Convention No. 169 of 1989. Oklahoma City UniversityLaw Review 15, 3: 677–714.

Szablowski, David. 2007. Transnational Law and Local Struggles: Mining, Com-munities and the World Bank. Portland, OR: Hart.

Universidad Rafael Landívar. Instituto de Investigaciones Económicas y Sociales.1998. El sistema jurídico maya: una aproximación. Guatemala City: IDIES.

World Bank. 1997. World Development Report 1997: The State in a ChangingWorld. New York: Oxford University Press. Quoted in Randeria 2003.

World Bank Group. 2003. Guatemala Poverty Assessment. <www.worldbank.org/guatemalapoverty> Accessed April 23, 2007.


indigenous rights, resistance, and the law: lessons from a guatemalan mine

Documents