2007- IACHR petition and precautionary measures regarding Marlin Mine authorization and Mayan communities

In December 2007, 13 communities of the Sipakapense Mayan people from Sipacapa, San Marcos filed a petition with the Inter-American Commission on Human Rights (IACHR) against Guatemala regarding the authorization of the Marlin Mine. These communities were later joined by the municipal mayors of Sipacapa and San Miguel Ixtahuacán as representatives of Sipakapense Mayan and Mam Mayan peoples in their respective municipalities. The petitioners alleged that Guatemala authorized the Marlin Mine “without prior, free, and informed consultation with the affected indigenous communities and, further, that the negative outcome of a consultation that the communities themselves called for were not taken into account, which the petitioners claim has had serious consequences for the communities” (IACHR, Report No. 20/14). The petition included a request for precautionary measures, which were granted in May 2010. Through this measure, the IACHR asked Guatemala to suspend the project, and “to implement effective measures to prevent environmental contamination”, until such time as the IACHR had adopted a decision on the merits of the petition. In June 2010, Guatemala released a statement confirming that it would comply with the requirement to suspend mining activities at the Marlin site (CIEL, 2010). The granting of these precautionary measures was based, in part, on the results of two studies, one completed by scientists of the University of Michigan for Physicians without Borders and the other by the Pastoral Commission of Peace and Ecology (COPAE). These studies were commissioned as a result of several complaints received by the Human Rights Office of the Archbishop of Guatemala from residents in the area surrounding the Marlin Mine regarding the negative health impacts of the project, including skin rashes, hair loss, respiratory difficulties and other disorders that people did not have before the mine (MICLA).

However, the precautionary measure was amended in 2011, following a hearing in which representatives of the Sipakapense Mayan people, Mam Mayan people, and the Guatemalan state presented updated information to the IACHR. This amendment lifted the suspension requirement and, instead, asked the state “to take the necessary measures, in order that the 18 beneficiary communities’ water resources are not contaminated by mining activities” (IACHR, Precautionary Measure 260/07) (See also, Business and Human Rights Resource Centre reference below for sources regarding lifted suspension).

This hearing was held during the IACHR’s 140th Regular Period of Sessions, during which the Commission also held hearings on the Situation of Environmentalists in Mesoamerica and the Legal Obstacles for the Recognition and Titling of Indigenous Lands in Guatemala. An audio recording of the precautionary measures hearing is provided in the list of references below. See also Loarca (2016) for a detailed description of the precautionary measures hearing. 

In response to the petition, Guatemala filed three preliminary objections, challenging its admissibility on the basis of, among other things, a failure to exhaust domestic remedies and res judicata (Latin for, “a matter already judged”). The state also challenged the facts as presented by the petitioners (IACHR, Report No. 20/14). In April 2014, the IACHR released an admissibility report, finding the petition to be admissible as to the alleged violations of the following Articles of the American Convention on Human Rights: Article 5 (right to humane treatment), Article 8 (right to a fair trial), Article 9 (freedom from ex post facto laws), Article 13 (freedom of thought and expression), Article 19 (rights of the child), Article 21 (right to property), Article 23 (right to participate in government), Article 24 (right to equal protection), and Article 25 (right to judicial protection). The Commission found the petition inadmissible with respect to the alleged violations of Articles 11 (right to privacy) and 26 (progressive development). Once the admissibility of the petition was confirmed, the Guatemalan government began to take steps to implement elements of the precautionary measures described above, including directing the Minister of Public Health and Social Assistance to begin complying with the requirement to provide potable water to the 18 communities affected by the Marlin Mine (See Loarca, 2016 for more detail regarding the steps being undertaken and affected communities).

According to an interview conducted in 2017 as part of the Legal Cultures of the Subsoil project, the government, company, and community representatives underwent a process of attempting to reach an amicable resolution to this matter.

In February 2020, a Guatemalan congressman asked the Presidential Coordination Commission on the Executive’s Human Rights Policy (COPREDEH) to invite representatives of Montana Exploradora, the Ministry of Environment and Natural Resources (MARN), and the Ministry of Energy and Mines (MEM) to participate in a Technical Commission (Mesa Técnica) to coordinate and oversee the implementation of IACHR 2011 mandated measures. The Technical Commission met in February 2020 involving representatives of the State, Congress, the company and the municipal governments of Sipacapa and San Miguel Ixtahuacán. During the meeting, representatives of Montana Exploradora stated the company was working on 11 drinking water supply projects for the affected communities, as well as two similar additional projects. The Technical Commission agreed to establish a timetable for the completion of the projects and their delivery to the communities. However, the Covid-19 pandemic has contributed to delays in this process. In addition, in 2020 the government dissolved COPREDEH, replacing it with the Presidential Commission for Peace and Human Rights (COPADEH), with new personnel and a reduced budget.