El Salvador – When the Seeds of Resistance Bloom

May 31, 2017 | By admin | Filed in: OceanaGoldPacific RimEl SalvadorHuman Rights.

If ever there was an example of how the seeds of a local battle
flowered into a formidable global campaign, it was this one. At
a time when organised dissent is both under attack and more
urgent than ever, we not only need to celebrate the victories
that involve genuine international solidarity, we need to learn
from them.

We sat down with five (of the many) people that have been
deeply involved in this titan effort to reflect on what they
achieved and how, and the lessons that they have learned in the
process.

Our interviewees were Vidalina Morales from the Economic and
Social Development Association of Santa Marta (ADES); Pedro Cabezas from
Association for the Development of El Salvador, (CRIPDES) and Saul Baños from the
Foundation for the Study of the Application of the Law
(FESPAD) – all three are
member organisations of the National Roundtable against
Metallic Mining in El Salvador (Pedro Cabezas was also
communications coordinator for the International Allies);
Manuel Pérez-Rocha from the ;Institute for Policy
Studies
 in Washington DC; and Jen Moore from MiningWatch Canada.

We focus here in particular on what we can learn from the
international campaign against the World Bank case, but also
look at some aspects of the simultaneous effort to support the
anti-mining struggle on the ground in El Salvador. The
international legal case was just one of a range of
intervention strategies used by the corporations involved. The
organising effort that successfully countered all of them holds
valuable lessons for strategic campaigning everywhere.

ISDS – Investor State Dispute Settlement

In 2004, after two years of searching for gold in El Salvador,
the Pacific Rim Mining Corporation requested permits to begin
mining close to the Lempa River. After several years of
negotiations, political manoeuvring and conflicts with the
local communities that tragically cost the lives of four
environmental activists –one of whom, Dora Alicia Recinos
Sorto, was eight months pregnant- the request was declined on
the basis that the company had not met the necessary regulatory
requirements and a nationwide moratorium on all new mining
projects was put in place.

The company cried foul. They maintained that they had been lead
to believe that there was government support for their project
and the change of mining policy was thus unfair and illegal and
they should be compensated to the tune of the market value of
the unexploited gold – $314m later reduced to $250m. They
initiated an investor-state dispute settlement (ISDS) case at
the World Bank’s International Centre for the Settlement of
Investment Disputes (ICSID).

This ISDS system, despite existing for over 50 years, has only
in the last ten years become a weapon of choice for
multinational corporations. Over this time, the number of ISDS
cases has exploded with 2015 setting an all time record of 74
new
cases
in just one year.

Pacific Rim is a Canadian company, also registered in the
Cayman Islands tax haven. In its first attempt to bring the
ISDS case against El Salvador it tried to use investment
protections in the Free Trade Agreement between the US and
Central America and the Dominican Republic (DR-CAFTA). To do so
it set up a post-box address in the US state of Nevada. In
2012, ICSID declined jurisdiction under DR-CAFTA and in the
Tribunal’s decision,
Pacific Rim in the USA was described as ‘more akin to a shell
company’. However, despite this corporate manipulation of the
legal system, the tribunal would later uphold jurisdiction
under El Salvador’s domestic investment law and allow the case
to proceed. (The following year El Salvador amended this law,
no longer giving transnational corporations recourse to
international tribunals.)

By 2013, Pacific Rim was in financial trouble and was bought
out by Oceana Gold from Australia. By late 2016, after a long
international campaign, the ICSID tribunal finally ruled
against the company and ordered it to pay $8 million towards El
Salvador’s more than $12 million in legal fees. The ruling was
hailed as a major victory for the struggles in El Salvador and
internationally.

It came at the end of several years of international
campaigning and would pave the way for the outright ban on
mining in the country that followed a few months later. The
campaign holds a number of lessons – particularly with regard
to how we can connect local and global struggles effectively.

Narratives and Messaging

We should never underestimate a powerful narrative. This
universal truth for campaigners was also one of the major
lessons for our interviewees.

Water and Sovereignty – Connecting local issues to systemic
ones

The story of a small Central American nation’s struggle to put
the health of its population above the profits from gold mining
was always going to grab some international attention. But when
combined with the ways in which international governance
institutions were being manipulated in favour of corporate
interests, it became not just a powerful unifying narrative,
but a story everybody wanted to tell.

According to Manuel Pérez-Rocha, “we were able to weave
together the strands of this narrative, connecting water,
health and the local defence of resources and territory to the
imposition of corporate power by means of instruments such as
ICSID…we all worked based on this narrative”. For Pedro
Cabezas, this coherent narrative reflected “the shared vision
of all of the actors involved in the struggle”. And so provided
an important point of unity for the campaigners.

If we divide it in two, the first part of this narrative was
about water, with the salient points being: El Salvador is a
water stressed country; conditions are not right for mining in
El Salvador; pollution from mining jeopardizes our water and
therefore our health; mining puts the Lempa River – the primary
source of water for more than half the population- at risk.

While Pacific Rim-Oceana Gold and mining proponents predictably
attempted to framethe issue as an
economic one
– “it’s a no-brainer for such a
resource-strapped government to cash-in on its underground
mineral wealth” – the campaign managed to constantly bring
the focus of debate back to the local defence of water and
health – both in
local
and
international
coverage.

For Cabezas “focusing on the defence of water was always going
to resonate at all levels – political, social, academic and
economic….because of the grave water crisis that the country is
going through….a crisis widely documented not only by
government and local academic institutions, but also by
international bodies such as the UN”.

For Jen Moore, connecting the idea of “water being more
precious than gold”…..and “the unjust means that corporations
have to bully countries around in the globalized economy today”
provided a real coherency between the local, the national and
the international. And having a narrative that combined local
concerns with global ones meant that a real diversity of groups
could engage with the issues from a diversity of entry points
or perspectives.

The second strand of the messaging strategy was to focus on the
issue of sovereignty and self-determination. Privatised justice
for big business/unaccountable corporate-dominated tribunals/a
weapon for Northern corporations to pressure governments: all
of these ways of characterizing the free trade and investment
rules system would resonate strongly in any context. But in
post-colonial Latin America, in a country well used to Northern
aggression, they were particularly powerful.

Working with international civil society experts, such as the
Center for International Environmental Law, the Institute
for Policy Studies
, MiningWatch, and Oxfam, as well as
academics from the University of Central America in El
Salvador, the American University and others, the campaign was
able to base its analysis of the trade and investment system
on solid
research
.

This complex system was then translated into terms
understandable to non-experts by making the connection very
clear between the trade and investment regime and the issues
that directly affect people’s lives – such as water and public
health.

When Salvadoran attorney Yanira Cortez visited Canada in 2015,
for example, she repeatedly stated
that the amount being demanded in compensation by Pacific Rim
in the ISDS case was equivalent to three years of the
Salvadoran national health, education and public safety budgets
combined.

Delivering the message – Making it emblematic

A clear, evidence-based narrative is only as powerful as the
ways in which its delivered and amplified.

If you do a Google search with the terms ‘Pacific Rim’ and ‘El
Salvador’, you get over 359,000 results (and over 159,000 if
you search ‘Oceana Gold’ and ‘El Salvador’). The figures speak
for themselves.

The case has been covered by publications as diverse as:
the Nation
(several

times
), the
Guardian
(several

times
), the
Huffington Post
, the
Financial Times
, the
Washington Post
CBC,

Reuters
, the
New York Times
,
the BBC
, the
London Review of Books
,
CounterPunch
and
Upside Down World
– not forgetting
Xinhuanet
in China and
Kalikasan
in the Philippines,
Le Monde
in France, Al
Jazeera
, and
TeleSur
.

Even a folk song has
been written about the case.

The extent of the coverage the case achieved was a result of
working with a multitude of diverse allies on the one hand, and
on the other, by connecting the case to on-going international
campaigns on related issues. These included debates around new
free trade deals like the TPP and TTIP; how mining and water
relate to climate change and broader sustainability debates; as
well as issues related to corporate accountability and human
rights. Positioning the case in the international public
imagination as a symbol of some of these broader struggles
helped turn a localised struggle in to a powerful global
symbol.

One very concrete result of the extensive international
coverage was that it obliged local actors in El Salvador,
including politicians, to take a position on the issue.

According to Saul Baños “a lot of local media outlets are
co-opted in the service of local elites…the case was getting
more attention outside the country than inside”. For him, the
persistence of international allies in raising the profile of
the issue “not only helped to explain the risks of the ISDS
system but also meant that local politicians cannot avoid the
issue.”

Another result was indirect pressure on the ICSID tribunal
itself. Given the profile of the case and the coverage it was
receiving, it is not surprising that one of the three tribunal
members commented afterwards, off the record, that “civil
society pressure in this case has been essential.” In the end
they were passing judgement not just on a single case based on
a local issue, but on all that the case came to represent after
several years of ‘globalising the struggle’.

Alliances and Solidarity

“While the communities played a leading role in their
territories, it didn’t end there – [the struggle] went
national, and then it went global”. Pedro Cabezas.

Given the nature of the El Salvador case, with one front being
fought on the ground in Central America, and the other
internationally, it was inevitable that a diverse set of actors
would be involved. What was less clear though was just how
broad and diverse it would become, and how those alliances
would function.

Strength in diversity

From anti-mining activists in Canada to the Catholic Church
hierarchy of El Salvador, and from the Maritime Union of
Australia to the Central American University, for our
interviewees, one of the major lessons from the campaign came
from working alongside an extremely diverse group of allies.

For Vidalina Morales: “it’s not very common that communities
are in agreement with the State. In terms of the [ISDS]
lawsuit…the communities and their organizations were able to
find common cause together with the State and its defence
lawyers; we were all in close coordination.”

At the closing stage of the ISDS case, for example, while the
company was doing everything in its power to postpone the
result so that it could hold out for a negotiated
settlement1 with the
government (i.e. some policy concessions or to allow the gold
mine to go ahead),
simultaneous protests
were coordinated by civil society
groups outside the World Bank offices in Washington DC and in
San Salvador demanding that the tribunal delay no further and
give its final result, while the government and its lawyers
continued demanding the same thing inside the tribunal. A week
later it did, in El Salvador’s favour.

Working hand in hand like this with the international
investment law firm, Foley Hog, was another revelation for our
interviewees. According to Perez Rocha in the run up to the
ICSID tribunal’s decision, Foley Hog was “very open to civil
society collaboration and figuring out the best ways to
collectively apply pressure on the tribunal”. A team of
investment lawyers rolling up their sleeves together with civil
society groups was surprising to campaigners very much
accustomed to seeing them as part of the problem.

Perez Rocha was also surprised by some other collaboration
opportunities. Perhaps the most unexpected of these was with
the US State Department. In the early stages of the ISDS case,
after some pressure from the law firm representing El Salvador
and civil society groups, the State Department agreed to submit
an informed
opinion
to the ICSID tribunal to the effect that Pacific
Rim in the USA was indeed just a shell company and shouldn’t be
protected by CAFTA – an opinion the tribunal would later agree
with.

For Perez Rocha, this was further evidence that “[the campaign]
was a confluence of actors of very different kinds – this
wasn’t just a civil society fight – we worked methodically with
government officials, with the law firm, with the media and
with the church”.

The Role of Coordination

While the Roundtable against Metal Mining in El Salvador has
its own coordination mechanism – a committee made up of
representatives of five of the eleven core organizations takes
on the role- coordination with such a diversity of
international allies was bound to present other challenges.

For two years, between 2013 and 2015 Pedro Cabezas was
responsible for coordination between the international allies
and the Roundtable in El Salvador. For him, having this
dedicated coordination role allowed them to improve
communication between the two networks.

Meanwhile, a group called International Allies against Mining
in El Salvador, coordinated primarily by Mining Watch Canada
and the Institute for Policy Studies (IPS) was established and
to this day maintains regular communication with the Roundtable
in El Salvador. The International Allies have monthly meeting
calls and major decisions are sent to the Roundtable for
feedback. A website, social media and
mailing list are used to communicate campaign updates

Despite these coordination mechanisms, for Jen Moore, among the
biggest challenges were “maintaining good, fluid communication
between international allies and national and local
organizations….It requires a lot of intentionality and effort”.
These challenges were overcome thanks to “the visits between
the countries, persisting with the regular meetings and making
a real effort to maintain permanent communication”. This
allowed them to continuously refine strategy and allowed
international allies to be prepared at crucial moments in the
campaign.

Jen Moore was also aware that this coordination is made a lot
easier when there are NGOs with paid staff involved. This
allowed her, for example, to dedicate the necessary time to
coordinate with other Canadian groups and to maintain a
permanent link with the international coalition and the
Roundtable. “These processes are not pretty. Differences always
arise, but we showed that with really intentional coordination,
a lot can be achieved”.

“Two types of solidarity”

According to Cabezas, given that many of the groups working on
the campaign internationally had a history of working in El
Salvador dating back to the country’s civil war (1980-92) they
had established personal and working relationships with members
of the Roundtable. Groups such as Sister Cities, the Share
Foundation, CISPES and Oxfam from the US; SalvAide from Canada;
and the Romero Christian Initiative from Germany had a history
of human rights work during the war, including supporting
refugees (many of whom would later return to form the
communities now resisting mining projects). According to
Cabezas “their role had evolved over the years and when mining
came along, they saw the abuse being carried out
internationally by the corporation – and they got involved”.

According to Perez Rocha “there was a lot of room to manoeuvre
and a lot of flexibility because of the trust that existed
between the organizations and the Roundtable”.

Perez Rocha’s organisation, the Institute for Policy Studies
(IPS), had given their prestigious Letelier-Moffitt Human Rights
Award
to the El Salvador Roundtable against Metallic Mining
in 2009. In accepting the award, Vidalina Morales said that it
was an important international act of recognition that showed
“the just, worthy and legitimate nature of our struggle”. Not
only this, the prize was also an important step in
consolidating the relationship between the Roundtable and IPS
that would be crucial in the international campaign against the
ISDS case.

For Vidalina Morales the “active support of the international
community is fundamental for the struggles of our people. For
us there is no doubt that this is the only way that we will be
able to advance in the emancipatory process of our people.
Solidarity is more necessary and urgent than ever”. For Morales
solidarity is “something that allows us to stand alongside the
other person both in the good times and during the difficult
times…..solidarity is mutual support.”

Perez Rocha described “two different types of solidarity”. For
him, one of these is more common among development agencies
where there is a vertical relationship between funders and the
communities being funded. And the other, that he espouses, is
when “money is not at the centre of the relationship; [in these
relationships] there is one overarching struggle with shared
objectives.”

Cabezas agreed, “when donors and development agencies are
involved, they often want to determine strategy, and this
sometimes causes conflicts”. When asked about how this was
overcome in the campaign he continued “through constant careful
negotiation and a lot of patience”. For Cabezas international
groups “should engage with the case in their own spaces e.g.
the company being Canadian meant there was a role for
Canadians….but priority should be given to being a conduit for
the voices of frontline communities”.

For Jen Moore, the role of international solidarity
organisations was quite clear: “remaining in communication,
staying informed, visiting El Salvador when possible and then
keeping our own social base and the media informed…in order to
counter the lies and falsehoods of the companies”. Making
connections internationally was another. “Given that we work in
different parts of the world, we were able to facilitate
contacts so that the delegation of affected communities in the
Philippines could share their experiences with the same
company.”

Complementary objectives

For Perez Rocha, another important factor in terms of
solidifying the alliances with local groups, was to communicate
early on that the focus of IPS’ work was on corporate power and
the trade and investment system, and to explain how
strengthening and lifting up a campaign like this one against
the ISDS system in the global South contributed to both the
Roundtable’s objectives in El Salvador and IPS’ broader
international campaign goals. This common understanding of how
these different goals complemented each other was crucial in
order to globalise the struggle in ways that supported
everyone’s overall objectives.

According to Jen Moore having clarity on long term objectives
made it a lot easer to deal with differences in opinion
regarding short-term tactics and objectives. For her clarity on
the long term objective of banning metal mining outright in El
Salvador “was fundamental for orienting the international
campaign”.

Actions

For our interviewees, having a clear, powerfully amplified
narrative that connected local and global issues on the one
hand, and investing time, energy and resources in consolidating
alliances on the other, were the foundation stones for building
the successful international campaign. We also asked them about
some of the specific actions that they felt were particularly
effective at maintaining momentum and pressure.

They told us about attending the company’s
AGM
s to pressure shareholders; protests in
Canada
and Australia; actions
at the World Bank offices in Washington
DC
and in San Salvador; an open
letter
to the head of the World Bank in 2011 signed by
244 international civil society organizations;
another in 2014
signed by over 300 international groups;
two Amicus Curiae/Friends of the Court briefs submitted to
the ICSID tribunal in 2011
and in
2014
; protests at the Canadian embassies both in
El Salvador
and in the US; the
2014 report
Debunking 8 falsehoods by Pacific Rim/Oceana
Gold; the 2014
Month of Action
; the 2016
report
on mining and supposed ‘corporate social
responsibility’ in El Salvador; and a more recent
open letter
to Oceana Gold demanding that it pay up and
pack up signed by 280 organisations from around the globe.

While all of these campaign actions were significant, our
interviewees put particular emphasis on some additional
international initiatives.

Delegations and Visits – Weaving a web of Solidarity

The most significant of the several visits to El Salvador
organised by the International Allies, according to our
interviewees, was the 2013 fact-finding trip. A delegation of
45 people from 22 organizations in 12 countries participated in
five days of conferences and strategy workshops and visits to
mining-affected municipalities in the north of the country. A
documentary was made based on the experience and according to Perez
Rocha, “it was a real milestone in the campaign as it
strengthened the links between people from the international
organizations with the Salvadoran groups”.

There were also several visits to the global North by
Salvadorans. These included the 2013
North American Tour
and the 2015
Stop the Suits Tour
of Canada. For Jen Moore, this was
important “to maintain the connections with people working in
solidarity with El Salvador in Canada”. For her, bringing the
voices of affected communities directly to the home countries
of the company’s involved was a powerful way to demonstrate
both to the public and to the authorities their “complicity in
the structures that cause these problems”.

Once Oceana Gold had taken over Pacific Rim, Vidalina Morales
also went on the Water Not Gold
Tour
of Australia in 2013. In collaboration with Australian
trade unions and other civil society groups, she spent two
weeks there spreading the story of the impact this Australian
company was having on her home country. The International
Allies also
visited
the Philippines in 2013 to strengthen connections
with communities affected by Oceana Gold’s project and to
document the impacts of mining there.

While international travel is often out of reach of most
communities affected by extractive projects in Latin America,
whenever there is a confluence of interests and objectives, and
therefore available resources, these trips are a powerful way
to consolidate alliances, build trust and apply pressure on the
corporations involved in their own back yard.

Bringing the Case to International Fora

Another lesson for our interviewees was the importance of
taking the case into international institutional spaces.

When five anti-mining activists were murdered between 2009 and
2011, the El Salvador case was brought before the Inter
American Human Rights Commission which issued
precautionary measures against the government of El Salvador.
Next, the case was
presented
;at the Permanent Peoples Tribunal (PPT) in
Geneva Switzerland in 2014 with the help of groups like the
Transnational Institute and the Institute for Policy Studies.
For Saul Baños, while the rulings of the PPT are not legally
binding, “they have political weight globally and are important
ways to increase power”. A
statement
describing the human right violations of Pacific
Rim-Oceana Gold was then submitted to the United Nations Human
Rights Commission also in 2014, and the case has been taken
up by
advocates
for a Binding Treaty for business and human
rights at the UN.

For Baños, all of these actions were important for raising the
profile of the case and forcing it on to the government’s
agenda “they [the government] are afraid of any kind of
sanction that comes from an international body….this is why
it’s important to further strengthen the international
solidarity.”

Reaping the Harvest

The struggles of local communities all over Latin America in
defence of their basic resources are never just local affairs.
The extraction sites for gold or other minerals, or for oil and
gas, are just the starting point on supply chains that begin in
places like El Salvador, but often end in high-consumption
economies far away – many in the global North. The abuses of
those that control and profit from these supply chains rarely
come up against a commensurate internationally coordinated
response. In the case of El Salvador, they did.

As international movements, one of the major things that the
campaign tells us is that when we have a clear, shared
understanding of the ways in which local and international
struggles relate to and complement each other, we can leverage
the diversity of our relationships, privileges, power and
resources to great effect.

In addition, the case leaves us with two other sets of
overarching lessons.

The first relates to campaigning and strategy. We can never
forget the basics of organising. Powerful narratives rooted in
local realities, told and amplified well, are a powerful and
unifying force. Relationships built on trust and intentional,
committed (sometimes laborious) communications processes are
the backbone of effective alliances. While international groups
have no place dictating political strategy to local actors,
this campaign showed the very effective ways that they can
indirectly apply political pressure and the crucial role that
they play in taking these struggles to the home countries of
the corporations and institutions involved.

The second kind of lesson relates to the struggle ahead against
the ISDS system itself. In its communiqué following the ISDS
result, the El Salvador Roundtable stated that “El Salvador
didn’t ‘win’ anything” – they just didn’t lose, there’s a
difference. At the end of the day there is no corresponding
mechanism for these communities to hold corporations legally
accountable for their abuses. It’s a one-way street.

In the words of Vidalina Morales, “given the environmental
damage, economic loss, social conflicts and corruption brought
about by the corporation’s presence in El Salvador, they should
have been the ones being sued…but no, the perpetrator sued the
victim…in an upside down world.”

The Roundtable also described the ISDS system as “a form of
blackmail” – a legal mechanism used to pressure governments
with the threat of legal action, creating a ‘chilling effect’
on responsible public interest policies. Their rulings are
based on the legal protections for investors granted in free
trade and investment agreements and they have no obligation to
balance these interests with social and environmental concerns.

The El Salvador context was relatively unique. The mining
moratorium achieved there in 2009 meant that no new permits
were issued in the intervening period, and the slow grind of
national politics was able to run its course, and civil society
pressure could slowly crystallise around an outright mining
ban. But in other countries, where no such moratorium has
existed, and where hundreds of permits or licenses have already
been given, once communities and governments begin questioning
the extractivist model, it’s too late. Changes to local or
national laws result in a barrage of new ISDS cases – Colombia
being a good
case in point
. El Salvador makes very clear that progress
on our most urgent environmental issues is intimately connected
to the dismantling of corporate power.

In terms of the path ahead on ISDS, Perez Rocha suggests two
urgent tasks. One is to lift the veil on the details of
settlements between governments and corporations in ISDS cases.
The overall
statistics
of ISDS case results, excluding these
settlements, are regularly used to defend the system. But if we
can show the ways that these settlements also force governments
to put corporate interests over the public good, we can make
even clearer the injustices at the heart of the system.

The second is to continue to make local campaigns emblematic.
Pacific Rim/Oceana Gold Vs El Salvador and other emblematic
cases need be replaced with new high profile cases. He sees a
real willingness to continue connecting other local struggles
-around extractive projects in
particular
– to the global campaigns against corporate power
and the free trade and investment regime.

In the words of Pedro Cabezas, “we have to continue globalizing
the struggle!”

1 In the
extractive industries, the majority of ISDS cases end with a
settlement of some sort i.e. policy concessions
to the corporations – this is one of the least understood and
most nefarious results of the whole ISDS system


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