History of the conflict 

In Peru, the third producer of zinc and copper in the world [3], Glencore controls or participates in six mining mega-projects. In 2011, the Frente Único de Defensa de los Intereses de Espinar (FUDIE), together with the province’s major, filed a lawsuit against the company. They were based on two independent reports about the water in the area and the health of the population that confirmed, respectively, the contamination of the water with heavy metals and in harmful quantities for the body, as well as the presence of a highly dangerous concentration of arsenic, lead, chromium and mercury in the blood and urine of the inhabitants around the mining activities. The company denied the results of both reports as the conflict intensified in 2012, when the police repression to the protesting communities resulted in three deaths and dozens of injured. The land owned by the company was adapted as a camp for the detainees, who denounced abuses and torture [4]. The policemen were not investigated but over 40 peasant leaders were sued, whose investigations still continue today. A year later, the Peruvian government published a new report that confirmed the contamination but that did not ultimately linked it to the presence of the mine [5]. Glencore continued to defend that their activities did not harm the environment of the area. At the end of 2014, a doctor, co-researcher at the National Health Institute, revealed that a key piece of information had not been released to the public: the samples had shown the presence of eleven additional metals, among which was uranium [6]. Although the company has not given a public statement in regard to this last evidence, it did spread a response to the report Conquistadores corporativos [2] in January, 2015, about the Espinar case. It continues to deny the contamination and blames it on the “mineralization of the area”, admits to having hired the police services for surveillance duties and highlights that their voluntary corporate social responsibility policies as exemplary. In conclusion, it considers the protests and critiques to their activities as unjustified [8]. In the case, it was also denounced that Glencore has also signed an agreement with the Peruvian National Police (PNP) that included the lending of security and intelligence services to the company, as well as the existence of a police station inside the mining camp.

The role of the Architecture of Impunity [9]

 In addition to having signed free trade agreements with the United States and the European Union, Peru participates in the negotiations of two of the most aggressive commercial agreements from the points of view of liberalization: the Trans-Pacific Partnership (TPP) [10] and the Trade in Services Agreement (TISA) [11]. In essence, these accords already secure rather firmly the interests of foreign companies, without obligations for complying with human and environmental rights. Additionally, as most South American countries during the 1990s, in the middle of the neoliberal heyday and the privatization of strategic state companies, Peru signed up to 29 bilateral investment protection treaties (BITs) [12]. Among these BITs were those with Glencore’s countries of origin: Switzerland and United Kingdom. As the great majority of the treaties of this kind, they only include the rights of the investors and not their responsibilities. The treaty signed with Switzerland states that in case a conflict arises between a company of one country and the government of another, first a dialogue should be opened between both governments. If there are no results, the case will go to a tribunal in the country were the investment is taking place. If the tribunal does not solve it within 18 months or if the company does not comply with the decision, it can directly proceed to an ad hoc arbitration tribunal as the International Centre for Settlement of Investment Disputes (ICSID) [13]. In the case of the BIT with United Kingdom, the time limit is three months and it is possible to proceed directly to the arbitration method that the company prefers. The ICSID is not directly mentioned as it is possible to use other tribunals [14]. Currently, the Peruvian government is already facing three important cases with mining companies at the CIADI: Bear Creek Mining Corporation (Canada), The Renco Group, Inc. (United States) y Compagnie Minière Internationale Or S.A. (France) [15]. With a company such as Glencore, Peru is not only hampered by the BIT and the ISDS mechanisms, but also by their own commercial relationships. Being mainly an exporting country, the EU is their third main export market and represents the 16,4 % of the exports, and Switzerland their fourth, with a 7,2 % [16].

Attempts of access to justice 

The company Glencore – Xstrata has been sued at a national and international level in the following bodies: At the environmental Attorney’s Office in Cuzco, for their crimes to the environment. However, according to the Peruvian Penal Code, in order to accredit responsibilities in terms of contamination, a previous permit from the pertinent state authority is necessary. In the case of Espinar, the State did not establish the cause for pollution. Thus, the Attorney will most likely file the case. Investigations of the death of the three local inhabitants during the conflict in May 2012 have been initiated, but the State has noted that it is not possible to identify the penal responsibility, and thus the case was provisionally filed.

In July 2012, the President of Peru asserted that no more agreements within the Peruvian National Police (PNP) and the mining companies would be permitted, however this does not seem to be a reality just yet.

Members of the Committee for the Defense of Health and the Environment in Espinar, as well as different organizations and affected communities by the Glencore project in the region presented in May, 2015, at the Juzgado Mixto de Espinar, an action suit (“Demanda de Acción de Cumplimiento”) for the government to establish public policies in favor of health and environment for the people affected by toxic heavy metals in the Tintaya-Antapaccay area. The European Center for Constitutional and Human Rights (ECCHR), the Swiss organization Multiwatch, Human Rights Without Frontiers and CooperAcción from Peru presented a legal report to the UN. These organization requested Léo Heller, the Special Rapporteur for the Human Right to Water and Sanitation, and to the Working Group on the issue of human rights and transnational corporations and other business enterprises, to determine whether the governments of Switzerland and Peru, as well as Glencore, complied with their duty to secure the human rights of the inhabitants of Espinar, especially those affected for the heavy metal pollution.

At the international level, the families of the three dead peasants and those injured and arrested at the 2012 conflict have sued Glencore at their financial and administrative office at London (UK) for the crimes committed against them. The case is still being processed.

What Justice could do: a say from the PPT 

In a hearing that was held in Geneva in June 2014, the Permanent People’s Tribunal (PPT) listened to the testimony of Jaime Cesar Borda Pari, from Coordinación de Muqui Sur. Considering the evidence brought before the judges by this witness, the Tribunal recognized the actions of the transnational corporation as another example of violations of human and people rights. In line with its full judgement of Madrid, in May 2010, and just a few months before the session that was held in Mexico in December 2014, the PPT underlined once again how transnational corporations, including Glencore, systematically violate human and peoples’ rights to their own profit. In the same line, the PPT recognized in this widespread practice the current shortcoming of international law, namely the impossibility of accessing justice and obtaining a remedy that is increasingly becoming an unbearable burden for affected communities, as well as for the laws that are supposed to give them shelter. In the same spirit, the PPT acknowledged the necessity to improve international legislation, including through a binding treaty on transnational corporations, and a Peoples’ treaty, in order to hold transnational corporations accountable for their actions.

Update (October 2021)

After the 2012 strike, the former mayor of Espinar, Oscar Mollohuanca was violently arrested and removed from the municipality's offices and was held in preventive prison together with Sergio Huamaní and Herbert Huamán, former leaders of the Defense Front. Alleging a lack of security, the judiciary transferred them to the Ica prison, on the coast, 500 km from Espinar. They were acquitted and released after many protests in 2017 but the case went to second instance in 2018 [16a] and continues to this day [16b]

Since then, roundtables have been set up, all unsuccessful, and the community members have not stopped protesting, with strikes and road blocks [17]. The community members have suffered constant repression with many injured [17a].

In July 2020, in the midst of a pandemic, the government and the company left the dialogue table after a month of strike. There was repression, community members were injured and the doctor who treated them received threats from the police [18]. They also protested because the solidarity bonds distributed by the government to alleviate the effects of the pandemic did not arrive [19]. The community members of Chumbivilcas, not seeing their demands satisfied, in January 2021, the community members decided to restart an indefinite strike [20].

 In March 2021, the Arequipa judiciary that was following the case against the doctor Fernando Osores and the lawyer Juan Carlos Ruiz Molleda of IDL for having revealed reports from 2011 that demonstrated the death of a community member from cancer, were definitively acquitted. The Prosecutor's Office accused them of having damaged the image of the Peruvian State [21]. An overwhelming report by Amnesty International carried out between 2018 and 2020, on 11 communities surrounding the project, together with Human Rights without Borders and the environmental health expert Fernando Serrano from Saint Louis University in Missouri revealed contamination in the blood by toxic metals [22]. In July 2021, the communities of Pacopata and Huini Coroccohuayco located in the area of ​​influence of the Coroccohuayco expansion project, demanded through a written press release to former President Sagasti a just reparation, this a few days after the completion of the Commission Multisectoral that must assess the damage to the communities [2] [3]. The conflict continues with the current government, with the community members even asking for the resignation of the new Prime Minister Bellido for his breaches [24] [25].