The Special Rapporteur on the right to food has demanded that the US Government provide information regarding the possible human rights impact, in particular on Mayan indigenous communities, of oil exploration carried out by a US company in Belize.

Summary

In April 2013, the Special Rapporteur on the right to food (the Special Rapporteur) wrote to the United States’ Ambassador to the United Nations in relation to an oil concession granted by the Belize Government to USCapital Energy, a company headquartered in the United States. The letter was made public in September 2013 after the United States failed to respond. The Special Rapporteur raised concerns that the United States Government may have failed to meet its responsibility to support Belize in ensuring that USCapital’s oil explorations in Belize respect human rights. The land affected by USCapital’s project has been traditionally occupied by Mayan indigenous communities.

Observations

As a preliminary point, the Special Rapporteur observed that the State in which oil explorations occur has the principal obligation to respect, protect and fulfil human rights. However, it must also ensure that corporations operating in its territory respect human rights. International human rights standards, including the UN Guiding Principles on Business and Human Rights, also require the ‘home’ States where corporations are domiciled or have their main place of business (here the United States), to set out the expectation that corporations respect human rights throughout their operations. This includes operations in other countries as well as the activities of subsidiaries.

The Special Rapporteur noted that in the October 2004 case of Maya Indigenous Communities of Toledo v Belize, the Inter-American Commission on Human Rights had recommended that Belize demarcate and title the Mayan indigenous communities’ lands and, in the meantime, protect the existence, value, use and enjoyment of these lands.

In October 2007 and June 2010, the Belize Supreme Court also delivered two judgments recognising Mayan customary land tenure in villages in the Toledo region, on the basis of both collective and individual property rights under Belize’s Constitution. The 2010 judgment directed the Belize Government not to register any land interests or concessions for resource exploitation in the area. The Government appealed this ruling, and at the time of the Special Rapporteur’s letter, the Court of Appeals was yet to issue its decision.

The Special Rapporteur raised allegations that Belize had taken little action to implement these judgments. Mayan indigenous lands still face numerous threats, including USCapital’s oil exploration activities, despite various challenges from indigenous communities. In particular, the Special Rapporteur noted that the company had cut over 200 miles of seismic paths into the lands that indigenous communities use for food and livelihood. Its activities were also alleged to be causing negative impacts for many Mayan farmers, as a result of illegal logging and soil and water contamination that could risk the certification of their only cash crop, organic cacao.

The Special Rapporteur also referred to USCapital’s environmental impact assessment in relation to its activities, noting that it had inadequately addressed the potential human rights impact on Mayan communities. In particular, it was unclear how proposed education and occupational incentives would properly compensate for these impacts. Mayan communities had also been given insufficient time to understand and consider the assessment. Only one public consultation was reported to have taken place and a Government offer of dialogue did not include reference to property rights. Accordingly, the Special Rapporteur noted his concerns that USCapital’s activities were continuing without the free, prior and informed consent of local indigenous communities.

The Special Rapporteur emphasised that the United States, as the home State jurisdiction, had a responsibility both to influence the corporation’s conduct and to support Belize in discharging its primary human rights obligations. UN treaty bodies, such as the Committee on the Elimination of Racial Discrimination and the Committee for Civil and Political Rights, have reiterated that States should take steps to prevent human rights violations committed abroad by corporations incorporated under their laws or that have their main place of business in their jurisdiction.

Under the Guiding Principles, all corporations, regardless of their size or structure, also have a responsibility to respect human rights. This is the case even in circumstances where the State in which they operate does not fulfil its human rights obligations. Among other things, corporations should have adequate human rights due diligence policies and processes in place. These processes should include both consultation with those potentially affected and the effective identification and remediation of any human rights impacts.

The Special Rapporteur observed that a corporation would not have met its responsibilities if it failed to prevent, mitigate and remedy adverse impacts on the ability of local populations to access adequate food and water. Such impacts would include, for example, polluting land used for agricultural purposes or not adequately compensating any affected persons.

Request for clarification

Noting his mandate to clarify cases that have been brought to his attention, the Special Rapporteur requested that the United States Government respond within two months regarding whether it:

(a)                possessed further information on the accuracy of the alleged facts;

(b)               directly or indirectly supported USCapital’s alleged activities;

(c)                had taken measures to encourage or require corporations incorporated in the United States to respect human rights in their operations;

(d)               provided guidance to corporations to promote respect for human rights, including in relation to human rights impact assessments; or

(e)                had any mechanism to encourage corporations like USCapital to fulfil their responsibility to respect human rights, including consulting with indigenous communities to obtain their free, prior and informed consent, and avoiding and addressing any adverse human rights impacts.

The Special Rapporteur committed to including the United States Government’s response in his final report on this issue to the Human Rights Council.

Sarah Jones is an international lawyer, based in Paris.