Introduction

According to El Economista newspaper:

"About 110 infrastructure projects in the country are at risk from social conflicts; Of these, at least 54 are from the energy sector and 31 are the product of energy reform… states in which there have been more social conflicts for the realisation of energy projects are Oaxaca… Puebla… Veracruz and Quintana Roo… The most important reasons for the conflicts have been the lack of consultation with the communities and the possible environmental impacts… The lack of secondary legislation in the energy reform to carry out Social Impact Assessments (Evis) and the lack of an Indigenous Consultation Law have generated a legal vacuum used by various organizations to slow down projects, jeopardizing the effectiveness of the reform."(1)

Evidently, the execution of major energy projects – not only in Mexico, but also in several other Latin American and North American countries – has been affected (eg, delayed, suspended or, in extreme cases, permanently stopped) by social opposition from various communities. In Mexico, these communities include:

  • individual landowners;
  • agrarian land communities;
  • indigenous communities;
  • social representation groups; and
  • non-governmental organisations.

Traditionally, these communities have based their arguments on environmental, social, political, urban and other issues.

The magnitude of this problem, from a legal perspective, can be understood and is best addressed from a human rights perspective. The complex structure of international organisations (eg, the United Nations and the Organisation for Economic Cooperation and Development (OECD)) and regional organisations (eg, the Organisation of American States (OAS)) of which Mexico is a member has resulted in a vast number of international treaties relating to the human rights of communities affected by energy projects. These international treaties have influenced domestic legal provisions, but also bind each ratifying country.

Human rights in Mexico

On June 10 2011 Article 1(1) of the Constitution was amended to provide that all persons are entitled to the rights recognised by the Constitution and the international treaties to which Mexico is a party. In other words, as of June 10 2011, all human rights-related provisions of international treaties signed and ratified by Mexico have constitutional status. Thus, all Mexican authorities must prevent, investigate, punish and remedy violations of these fundamental rights.

In addition, the abovementioned reform imposed two constitutional interpretation principles:

  • human rights must be interpreted in accordance with the Constitution and international treaties; and
  • pro personae (ie, to the person's benefit) applies in the interpretation of international law on human rights. This means that when there are different possible interpretations of a legal norm, the one that best protects the holder of a human right applies.

In light of this, special attention should be paid to the international treaties to which Mexico is a party which regulate the status and protection of the human rights of peoples, indigenous and agrarian communities and populations settled or linked to places where energy projects will be developed.

Energy reform

By virtue of the amendments to the Constitution in 2013, the energy sector was completely reformed, allowing private companies to invest and participate in this sector. Among other changes, the Hydrocarbons Law and the Law of the Electrical Industry were legislated in 2014. Both laws include a chapter on land use and occupancy, which regulates the basic aspects of land acquisition in energy projects and requires social impact evaluations and public consultation with communities to be carried out. Both laws prescribe that:

  • Mexico's Constitution and laws and the international treaties (regarding indigenous communities) to which it is a party must be obeyed; and
  • the principles of sustainability and respect for the human rights of the communities settled where energy projects are intended to be developed must be honoured.

In accordance with international practice, the Mexican energy authorities must also conduct:

  • a social impact study for the areas in which energy projects will be executed; and
  • a prior, voluntary and informed consultation with the affected social and indigenous communities in order to reach agreements with them.

These obligations originate from both national law (ie, the special treatment granted to agrarian communities and indigenous peoples by the Constitution) and international law.

International treaties signed by Mexico

In Mexico, there are 68 indigenous groups which speak 68 indigenous languages and 364 ethnolinguistic variants. The indigenous population represents 21.5% of the country's total population.

Mexico is a country of intense and prestigious legal and diplomatic activity in the international field. The most relevant international agreements and initiatives to which it is a party are as follows:

  • UN agreements and initiatives, including:
    • the International Covenant on Economic, Social and Cultural Rights;
    • the International Covenant on Civil and Political Rights;
    • the Declaration on Rights of Indigenous Peoples;
    • the International Convention on the Elimination of All Forms of Racial Discrimination;
    • the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities;
    • the UN Special Rapporteur on the Human Rights and Fundamental Freedoms of Indigenous People;
    • the Indigenous and Tribal Peoples Convention 1989;
    • the Agreement Establishing the Fund for the Development of the Indigenous Peoples of Latin America and the Caribbean (Madrid, 1992);
    • the Convention on Biological Diversity (Rio de Janeiro, 1993);
    • the Rio Declaration on Environment and Development 1992;
    • the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity (Nagoya, 2010);
    • the Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises;
    • the Guiding Principles on Business and Human Rights: Implementing the UN 'Protect, Respect and Remedy' Framework; and
    • the UN Working Group on Business and Human Rights' statement following its visit to Mexico (Mexico City, September 7 2016);
  • OAS initiatives and literature, including:
    • the Programme of Action on Indigenous Peoples in the Americas;
    • the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples;
    • the Indigenous Peoples, Democracy and Political Participation;
    • Indigenous and Tribal Peoples' Rights over their Ancestral Lands and Natural Resources. Norms and Jurisprudence of the Inter-American Human Rights System;
    • the OAS Department of International Law Programme of Action on Indigenous Peoples in the Americas; and
    • Participation of Indigenous Peoples in the Inter-American System: Mechanisms and New Tools Proposed;
  • OECD agreements, including:
  • American Convention on Human Rights agreements, including:
    • the American Convention on Human Rights;
    • the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights;
    • the American Declaration on the Rights of Indigenous Peoples;
    • the Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities (report); and
    • the Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2003; and
  • World Bank initiatives, including:
    • the Operational Manual OP 4.10 - Indigenous Peoples.

Considerations

Some of Mexico's key obligations deriving from these international treaties with regard to energy law reform and infrastructure development are as follows.

International Labour Organisation Convention 169 on Indigenous and Tribal Peoples in Independent Countries

The basic principles of Convention 169 are:

  • the identification of indigenous and tribal peoples;
  • non-discrimination;
  • the introduction of special measures to combat vulnerability;
  • the recognition of culture;
  • indigenous and tribal people's right to decide development priorities; and
  • indigenous and tribal people's right to prior, free and informed consultation.

In addition, Mexico must:

  • consult the peoples concerned – through appropriate procedures and, most importantly, through their representative institutions – whenever legislative or administrative measures which may directly affect them are envisaged;
  • establish or maintain procedures with a view to consulting the communities concerned in order to determine whether and to what extent their interests would be prejudiced before undertaking or authorising any programme for exploring or exploiting the resources on community lands; and
  • consult with respect to the convention's principles in good faith and in a manner appropriate to the circumstances, with a view to reaching an agreement or obtaining consent on the proposed measures.

The convention also obliges the government to take measures, in accordance with the traditions and cultures of the peoples concerned, to ensure that they are aware of their rights and obligations.

UN Declaration on the Rights of Indigenous Peoples

This declaration primarily protects indigenous peoples' collective rights by establishing the authorities' duty to consult with affected communities before adopting and implementing legislative or administrative measures that will affect them. They must cooperate in good faith with such communities through their own representative institutions in order to obtain the communities' free and informed consent before approving any project that will affect their lands or territories and other resources, particularly in relation to the development, use or exploitation of mineral, water or other resources.

World Bank Operational Manual OP 4.10 – Indigenous Peoples

The operation manual provides that in order for an energy project that will affect an indigenous community to obtain financing, a consultation process must be carried out.

American Convention on Human Rights Cartagena Protocol on Biosafety to the Convention on Biological Diversity 2003

The Cartagena protocol obliges Mexico to make socio-economic considerations regarding the effects of living modified organisms on the conservation and sustainable use of biological diversity, especially in relation to the value of biological diversity for indigenous and local communities.

UN Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation to the Convention on Biological Diversity The Nagoya protocol urges Mexico to consider customary laws, protocols and procedures in cooperation with relevant indigenous and local communities, in order to establish mechanisms to inform potential users of traditional knowledge associated with genetic resources about their obligations.

UN Guiding Principles on Business and Human Rights: Implementing the UN 'Protect, Respect and Remedy' Framework

This UN publication was prepared by the special representative of the secretary-general, whose objective is the protection, respect and satisfaction of human rights by transnational corporations and other enterprises. The special representative annexed the guiding principles to his final report to the UN Human Rights Council (A/HRC/17/31). This publication includes an introduction to these principles and a summary of the process that led to its elaboration. The UN Human Rights Council also endorsed these principles (17/4) on June 16 2011.

The guiding principles are as follows:

  • The ratifying parties must respect, protect and fulfil human rights and fundamental liberties.
  • Companies are specialised bodies of society that perform specialised functions and must comply with all applicable laws and respect human rights.
  • Rights and obligations must be accompanied by adequate and effective remedies in case of non-compliance.

These principles apply to all states and enterprises, whether transnational or otherwise, regardless of their size, sector, location, ownership and structure.

The principles do not establish new international law obligations, nor do they restrict Mexico's obligations with regard to international law or human rights.

Of the 31 principles, the principle of due diligence should be emphasised in the context of energy projects. Under this principle, companies must proceed with due diligence in the human rights field to identify, prevent, mitigate and respond to the negative consequences of their activities on those rights. This process should include:

  • an assessment of the actual and potential impact of the activities on human rights;
  • the integration of findings and actions in this regard; and
  • the monitoring of responses and the way in which negative consequences are addressed.

In connection with the guiding principles, the UN Working Group on Business and Human Rights was formed, which made a 10-day visit to Mexico. The objective was to identify initiatives, opportunities and challenges to implement the principles in Mexico.

Following the visit, a declaration was issued, which reiterated the criterion that the principle of due diligence is the "core of the guiding principles" and expressly stated that:

"All enterprises (including those owned by the State) have a responsibility to respect human rights, regardless of the State's ability to fulfill its human rights obligations. However, as we saw during our visit, companies must do much more to uphold human rights standards and prevent them from seeking to benefit from impunity, corruption and lack of transparency and accountability.

From the information obtained during our visit, it became clear that the main concerns about human rights violations related to the company are related to an inadequate exercise of due diligence by the government and companies in the design and implementation of large-scale projects scale. These are mainly projects in the mining, energy, construction and tourism sectors that often affect indigenous communities.

As the Guiding Principles emphasize, the exercise of human rights due diligence should help to avoid such situations. Appropriate consultation with communities affected by business activities is a central aspect of the human rights due diligence exercise, as it is of great importance to promptly identify concerns and grievances.

Several of the companies, with which we spoke, emphasized that consultation with indigenous communities is a responsibility of the federal authorities and therefore not their responsibility. In this regard, we would like to emphasize that companies have a responsibility to avoid causing or provoking adverse human rights impacts through their activities, regardless of the ability or willingness of the State to fulfill its human rights obligations. In our view, companies could and should, in all cases, take an active interest in ensuring the exercise of due diligence in human rights, including in their value chains, to achieve solutions where all parties win or less acceptable.

We would also like to emphasize that the exercise of due diligence in human rights, as set out in the Guiding Principles on Business and Human Rights, requires consultation not only with indigenous peoples, for whom human rights standards are applied, but also with all other affected communities."

Inter-American System for Protection of Human Rights

The Inter-American System for the Protection of Human Rights is the structure adopted to promote and protect human rights in America in the face of the state's violation of such rights.

To this end, the Mexican authorities must consider the principles established in the American Convention on Human Rights and the relevant regional treaties and by the Inter-American Court of Human Rights, as well as the recommendations of the quasi-jurisdictional organs (ie, the Inter-American Commission on Human Rights and the mechanisms derived from it).

In order to protect and promote human rights, the OAS has established various instruments, including:

  • the Charter of Organisation of American States;
  • nine conventions;
  • the Inter-American Charter on Human Rights;
  • the Rules of Procedure of the Inter-American Commission on Human Rights;
  • the Statute of the Inter-American Court of Human Rights; and
  • the Rules of Procedure of the Inter-American Court of Human Rights.

As the reform of Article 1 of the Constitution gave constitutional status to the human rights provided for in the international treaties signed by Mexico, these human rights have the highest hierarchical legislative status in the country. The Mexican authorities are thus obliged to prevent, investigate, punish and remedy violations of such rights. In addition, they cannot apply any rule of domestic law that is contrary to the aforementioned norms of international law in view of the principles of consistent interpretation and pro personae (to the person's benefit).

Inter-American Court of Human Rights judgments and Inter-American Commission on Human Rights pronouncements are also binding on Mexico.

For further information on this topic please contact Juan Fernando Ibáñez Montano at Ibáñez Parkman y Asociados SC by telephone (+52 55 5250 5912) or email (jfibanez@iparkman.com.mx). The Ibáñez Parkman y Asociados SC website can be accessed at www.i-parkman.com.

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Endnotes

(1) February 20 2017, p1.