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Indigenous peoples and international human rights law : mining, multinational corporations and the struggles… Munarriz, Gerardo J. 2017

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INDIGENOUS PEOPLES AND INTERNATIONAL HUMAN RIGHTS LAW: MINING, MULTINATIONAL CORPORATIONS AND THE STRUGGLES OF INDIGENOUS PEOPLES IN PERU by  Gerardo J. Munarriz  LL.M., Osgoode Hall Law School, York University, 2004  A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF  DOCTOR OF PHILOSOPHY in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law)  THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver)  August 2017  © Gerardo J. Munarriz, 2017 ii  Abstract This thesis examines and questions the role of international human rights law and international economic law in relation to the increasing encroachment and dispossession of Indigenous lands and territories by multinational corporations (MNCs) in the extractive industry. It also aims to explore the role of a national state’s legal framework and policies not only in validating, authorizing and embedding this process, but also in authorizing a growing and pervasive trend of persecution and criminalization of Indigenous communities who challenge and resist MNCs’ operations. The examination of the relationship between national and international law provides a terrain to grasp how international economic law and international human rights law have become part of evolving regulatory architectures of global governance aiming to validate and embed global capital accumulation. Focusing on Peru, this thesis argues that law, particularly international economic law and the legal framework developed in Peru since the 1990s, has played a prominent role in facilitating and embedding multinational corporate investment in the extractive industry, and in weakening the rights of Indigenous and peasant communities to control their land, water and resources. Peru’s legal framework and policies on extractive industries have not only validated the expansion of MNCs operations and dispossession of Indigenous lands, but have also validated a growing trend of persecution and criminalisation of Indigenous communities. While international economic law constitutes, enables and protects MNCs, international human rights law and corporate social responsibility mechanisms are linked to and help to extend the expansion and deepening of global capital accumulation by means of laws and regulations designed to facilitate and remove barriers to the power and mobility of MNCs. iii  Notwithstanding legal and socio-economic barriers, Indigenous communities have mobilized against and resisted MNCs operations. A comparison of three conflicts involving corporate actors and local communities reveals the existence of intense social mobilization and resistance of Indigenous and peasant communities to defend their land rights, their environment and livelihood, their participation in the decision making process and fair distribution of economic benefits.        iv  Lay Summary My thesis discusses a growing phenomenon in Latin America and around the world, which is the opposition and resistance of Indigenous communities to extractive projects that affect their lands, health and life. It discusses the central role of law in the dispossession of Indigenous lands by multinational corporations; as well as in the increasing criminalization and repression of affected communities. Focusing on Peru, my thesis highlights Indigenous peoples’ resistance and struggle for justice. Despite the legacies of racist colonial violence and significant legal obstacles in accessing justice, Indigenous communities in Peru continue opposing and resisting the dispossession of their lands and the violation of their rights by corporations and the State. My thesis embraces and supports Indigenous communities’ demands for justice.  It asserts the right to tell Indigenous communities’ stories of discrimination, suffering and resistance as a mean of achieving agency, aiming to question and challenge mainstream narratives.  v  Preface This dissertation is my original and independent work and therefore I take responsibility for any errors or omissions. Some segments in Chapter 3 reproduce and adapt writing from Gerardo J. Munarriz, “Rhetoric and Reality: The World Bank Development Policies, Mining Corporations, and Indigenous Communities in Latin America,” (2008) 10 (4) International Community Law Review 431.  vi  Table of Contents  Abstract .......................................................................................................................................... ii Lay Summary ............................................................................................................................... iv Preface .............................................................................................................................................v Table of Contents ......................................................................................................................... vi Acknowledgements ...................................................................................................................... xi Dedication .................................................................................................................................... xii Chapter 1: Introduction: Conceptual Framework and Methodology of the Thesis ................1 1.1 Introduction ..................................................................................................................... 1 1.2 Issue to be Addressed...................................................................................................... 8 1.3 Central Question and Hypothesis.................................................................................. 12 1.4 Thesis’ Specific Questions ............................................................................................ 12 1.5 Definition of “Indigenous Peoples” .............................................................................. 14 1.6 Research Methodology ................................................................................................. 17 1.6.1 Analysis of Texts and Computer-based and Internet-transmitted Documents ......... 20 1.6.2 Study of Conflicts Involving MNCs and Indigenous Communities in Peru ............ 20 1.7 Theoretical Approach.................................................................................................... 22 1.8 Significance of Thesis Research ................................................................................... 28 1.9 Organization of Chapters .............................................................................................. 30 1.10 Conclusion .................................................................................................................... 31 Chapter 2: Study of Conflicts Involving MNCs and Indigenous and Peasants Communities in Peru ...........................................................................................................................................33 vii  2.1 Introduction ................................................................................................................... 33 2.2 The Minera Barrick Misquichilca (Barrick Gold Corporation, Canada) v. Pierina Mine Communities (Ancash) ............................................................................................................. 37 2.2.1 The Actors in the Conflict......................................................................................... 38 2.2.2 Nature and Scope of the Conflict and Violations of Indigenous Rights ................... 40 2.2.3 Contention and Power Imbalances between MBM and Indigenous Communities .. 42 2.2.4 Domestic and International Legal Claims ................................................................. 48 2.3 Minera Yanacocha (New Mont Mining Company, U.S.A.) v. Yanacocha Mine Communities (Cajamarca) ........................................................................................................ 51 2.3.1 The Actors in the Conflict......................................................................................... 52 2.3.2 Nature and Scope of the Conflict and Violations of Indigenous Rights ................... 55 2.3.3 Contention and Power Imbalances between Mineral Yanacocha and Indigenous Communities ......................................................................................................................... 58 2.3.4 Domestic and International Legal Claims ................................................................. 66 2.4 Rio Blanco Copper S.A. (Monterrico Metals, United Kingdom-China) v. Segunda y Cajas and Yanta Indigenous Peasant Communities (Piura) ...................................................... 71 2.4.1 The Actors in the Conflict......................................................................................... 72 2.4.2 Nature and Scope of the Conflict and Violations of Indigenous Rights ................... 75 2.4.3 Contention and Power Imbalances between Rio Blanco and Indigenous Communities ......................................................................................................................... 76 2.4.4 Domestic and International Legal Claims ................................................................. 82 2.5 Conclusion .................................................................................................................... 87 viii  Chapter 3: Indigenous Peoples in Latin America and the Global Political Economy: A Historical Overview .....................................................................................................................95 3.1 Introduction ................................................................................................................... 95 3.2 Historical Overview and the Origins of Today’s Problems ........................................ 100 3.2.1 The Violent and Traumatic Iberian Conquest and Colonization ............................ 103 3.2.2 Colonialism, Race and Social Stratification ........................................................... 107 3.2.3 Independence and the New Republicas Criollas (Creole Republics) ..................... 111 3.3 Globalization, Prominent Role of MNCs and Neo-Liberal Multiculturalism ............ 120 3.3.1 Globalization, Prominent Role of IFIs and Increasing Power of MNCs ................ 122 3.3.2 Neoliberal Multiculturalism .................................................................................... 129 3.4 The Role of Law and Legal Doctrines in Validating Indigenous Land Dispossession, Violence and Repression......................................................................................................... 133 3.5 Conclusion .................................................................................................................. 140 Chapter 4: Peru’s Policies and Regulations on Extractive Industries and Indigenous Peoples .........................................................................................................................................144 4.1 Introduction ................................................................................................................. 144 4.2 Neo-Liberal Structural Adjustment Policies and Promotion of Private Investment ... 150 4.3 Government Policies and Regulations on Extractive Industries ................................. 155 4.4 State Policies and Regulations on Indigenous Communities ...................................... 160 4.5 Access to Justice ......................................................................................................... 170 4.5.1 Domestic Legal Remedies and Venues ................................................................... 171 4.5.2 Barriers to Access to Justice ................................................................................... 173 4.6 Peru’s International Commitments and International Legal Venues .......................... 185 ix  4.7 Conclusion .................................................................................................................. 187 Chapter 5: Indigenous Peoples and Multinational Corporations at International Law: Asymmetries and Contentions ..................................................................................................192 5.1 Introduction ................................................................................................................. 192 5.2 Emergence and Recognition of Indigenous Peoples at International Law ................. 196 5.2.1 Indigenous Peoples and Contemporary International Human Rights Law ............. 198 5.2.2 International Human Rights Law Sources of Indigenous Peoples’ Rights ............. 201 5.3 Multinational Corporations at International Law ....................................................... 210 5.3.1 Notion, Definition and Legal Personality ............................................................... 211 5.3.2 Multinational Corporations as Actors in International Law ................................... 215 5.4 International Economic Law and Indigenous Peoples’ International Human Rights Law: Asymmetries, Imbalances, and Contentions .................................................................. 224 5.4.1 International Economic Law (IEL) Mediating and Enhancing the Power of Multinational Corporations ................................................................................................. 224 5.4.2 Indigenous Peoples’ International Human Rights Law: Shortcomings .................. 230 5.5 Conclusion .................................................................................................................. 236 Chapter 6: The Legal Framework for MNCs Accountability through International Human Rights Law: Posibilities and Limitations .................................................................................240 6.1 Introduction ................................................................................................................. 240 6.2 The Legal Framework for MNCs Accountabililty through International Human Rights Standards ................................................................................................................................. 244 6.3 States and International Organizations’ Reluctance to Establish International Binding Regulations for MNCs Accountability ................................................................................... 268 x  6.4 Problematizing Corporate Social Responsibility ........................................................ 274 6.5 Conclusion .................................................................................................................. 279 Chapter 7: Conclusion: International Human Rights Law, Global Governance and Indigenous Peoples’ Resistance and Demand for Justice .......................................................283 Bibliography ...............................................................................................................................294  xi  Acknowledgements This project has been a great challenge for me and it was made possible by the support and guidance of many people. I am profoundly grateful to my supervisor professor Karin Mickelson for her insight, genuine engagement, timely comments on numerous drafts and immense support during the whole process. I am also deeply grateful to my committee members, professors Gordon Christie, Joel Bakan and Gerardo Otero; they were supportive and full of encouragement and guidance, particularly during the first stages, key moments, in writing this dissertation. I would like to thank Professors Darlene Johnston and Maxwell Cameron (University Examiners), and Mariana Mota Prado (External Examiner) for providing me challenging and thoughtful comments on this project. Thank you also to Associate Dean of Graduate Studies, Professor Doug Harris and his successor Professor Ljiljana Biukovic, and the Graduate Program Advisor Joanne Chung, for their flexibility, patience and great support throughout this process. I would like to acknowledge and thank the financial and material support I received at various stages from the University of British Columbia Graduate Fellowship, the Law Foundation Fellowship, Pacific Century Graduate Fellowship, the Charles Bourne Graduate Scholarship in International Law and the John P. Humphrey Fellowship in International Human Rights Law and Organization. I would like to express my gratitude to a number of scholars outside of the University of British Columbia for their advice and comments on various aspects of this project: Professors Liisa North, Peter Fitzpatrick, B.S. Chimni, and Upendra Baxi; my colleagues at the Allard School of Law, and members and fellow colleagues of the Transatlantic Doctoral Academy. I am very fortunate to have the unconditional support from my family and friends in Peru and Canada throughout this process. I am deeply grateful for their inspiration, support, love and care. Finally, I am very grateful to the staff of the Law Library at the Allard School of Law, the Koerner Library at the University of British Columbia, and the Belzberg Library at Simon Fraser University. Thank you for their support and enthusiasm in searching for and locating important and relevant material for this project. xii  Dedication I dedicate this thesis to: The beloved memory of my mother Antonia Ulloa Huamansuri; my father Gerardo A. Munarriz and my sisters and brothers.  1  Chapter 1: Introduction: Conceptual Framework and Methodology of the Thesis How to overcome the banality and invisibility - of daily genocide of Indigenous peoples in the Americas - that has become inflexible and tenacious? I do not think States, either separately or associated at the United Nations, are those who will formulate and tackle the question. The response is on the other side of the mirror, the side that does not duplicate the self-image, thereby preventing the images of the Others, the Indigenous in this case, from coming alive. In the international community we need more voices, voices that break mirrors and open eyes. It is the voice of the victims [Indigenous peoples] which can make visible the daily genocide. (Bartolome Clavero, 2011)1 1.1 Introduction Huancavelica, located in the central Andes of Peru, is known as the “city of mercury.”2 I was born and raised in the city, and I recall finding on several occasions little silver balls on the playground of my primary school or on the sides of ditches or building foundations around my neighborhood while playing with my classmates and friends. We used to rub our copper colored coins with the little balls hoping to turn them into ‘silver coins.’ Little did our parents and teachers know that we lived with the toxic legacy of over 400 years of severe mercury contamination, which is currently among the highest worldwide.3                                                  1 Bartolome Clavero, ¿Hay Genocidios Cotidianos? y Otras Perplejidades sobre América Indígena (Copenhague : IWGIA, 2011) at 117.  (My translation) 2 Carlos Contreras, La Ciudad de Mercurio, Huancavelica, 1570-1700 (Lima: Instituto de Estudios Peruanos, 1982). 3 Nicholas A. Robins, et al., "Estimations of Historical Atmospheric Mercury Concentrations from Mercury Refining and Present-day Soil Concentrations of Total Mercury in Huancavelica, Peru," (2012) 426 Science of the Total Environment 146-154; Nicholas A. Robins and Nicole Hagan, “Mercury Production and Use in Colonial Andean Silver Production: Emissions and Health Implications,” (2012) 120:5 Environmental Health Perspectives 627-631. 2  Founded in 1571, Huancavelica played a vitally important role in the economic life of the Spanish colony in the Americas.4  In late 1563, the Angaraes native peoples had revealed to the Spanish the large and exceptionally rich cinnabar deposits located in the Santa Barbara Hill just on the outskirts of the city. As the transition to amalgamation-based silver refining was adapted to the ores at Potosi (Bolivia) and other mining centers in the early 1570s, demand for Huancavelica’s mercury surged.5 The unprecedented flow of silver from the mining centers in the Andes would not only help Spain consolidate its position as a global power but would also play a key role in the emergence of the industrial revolution and ultimately of the modern global capitalist economy.6 The less known or hidden history about Huancavelica’s mercury mine is the fact that it also poisoned or killed hundreds of thousands of Indigenous labourers, earning for itself an infamous reputation as a “public slaughterhouse”7 and the Mine of Death (La Mina de la Muerte).8 In his account of Latin American history, Memory of Fire, Eduardo Galeano writes, “Bad dreams, nightmares about abysses or vultures or monsters, may portend the worst.  And the worst, here, is being forced to go to the Huancavelica mercury mines or to the far-off silver mountain of Potosi.”9 The fear of the Mita (forced Indigenous labour duty) in the mercury mines was so extraordinary that Indigenous mothers maimed and crippled their own sons to make them unfit                                                  4 Guillermo Lohmann Villena, Las Minas de Huancavelica en los Siglos XVI y XVII (Sevilla: Escuela de Estudios Hispano-Americanos de Sevilla, 1949). 5 Kendall W. Brown, “Workers’ Health and Colonial Mercury Mining at Huancavelica, Peru,” (2001) 57:4 The Americas 467-496, at 469. 6 Nicholas A. Robins, Mercury, Mining, and Empire: The Human and Ecological Cost of Colonial Silver Mining in the Andes (Bloomington: Indiana University Press, 2011) at 4. 7 Miguel Agia, Servidumbres personales de indios (Seville: Escuela de Estudios Hispano-Americanos, 1946), at 62; Report of Damián de Jeria, January 10, 1604, AGI, Lima 34, Archivo General de Indias, Seville. 8 Production of mercury claimed thousands of victims and accidents; silicosis and mercury intoxication shattered countless other Indigenous lives. Kendall W. Brown (2001) supra note 5 at 468. 9 Eduardo Galeano, Memory of Fire, I. Genesis (New York: Pantheon Books, 1985) at 173. 3  for it.10 To meet the greater demand for Huancavelica’s mercury, the Iberian conquerors forced Indigenous labourers to take turns working (seven days a week) in the mercury mines and refining plants. In the early 1600s, as many as two-thirds of Huancavelica’s Indigenous labourers perished from mercury poisoning and other illnesses or accidents at the mines.11 The poisonous mercury easily accumulated in their bodies; they inhaled mercury-laden dust in the mines and absorbed the poison through their skin. Indigenous labourers tending the primitive distillation ovens breathed in mercury gases as well. As the corpses of deceased Huancavelica Indigenous miners decomposed, they reportedly left puddles of mercury in their graves.12 The production of mercury not only caused the “human catastrophe of death, infirmity, abuse, and suffering dread,” but also resulted in “one of the largest and longest-lasting ecological disasters ever known and one that continues to this day in Huancavelica.”13 As Rob Nixon writes, “violence, above all environmental violence, needs to be seen – and deeply considered – as a contest not only over space, or bodies, or labor, or resources, but also over time.”14 Nixon reminds us of Faulkner’s dictum that “the past is never dead. It’s not even past.”15 Today, despite the end of the mercury processing in the 1970s, Huancavelica remains among the most mercury-contaminated urban areas in the world.16 The majority of the homes in the city are constructed from contaminated earthen materials and often interior walls and floors in these homes are                                                  10 K.endall W. Brown (2001) supra note 5 at 474. 11 Kendall W. Brown (2001) supra note 5; Nicholas A. Robins (2011) supra note 6. 12 Kendall W. Brow, A History of Mining in Latin America: From the Colonial Era to the Present (Albuquerque: University of New Mexico Press, 2012) at 173-174. 13 Nicholas A. Robins (2011) supra note 6 at 177, 184. 14 Rob Nixon, Slow Violence and the Environmentalism of the Poor (Cambridge, Massachusetts: Harvard University Press, 2011) at 8. 15 Ibid at 8. 16 Nicole Hagan, et al., “Speciation and Bioaccessibility of Mercury in Adobe Bricks and Dirt Floors in Huancavelica, Peru,” (2015) 37:2 Environmental Geochemistry and Health 263-272; Nicole Hagan, et al., “Mercury Hair Levels and Factors that Influence Exposure for Residents of Huancavelica, Peru,” (2015) 37:3 Environmental Geochemistry and Health 507-514. 4  unsealed and uncovered. Therefore, the walls and dirt floors of homes are contaminated with a variety of mercury compounds, some of which are bioaccessible.17 In 2015, a five-year-study concluded that mercury contamination from historic mercury processing in and near Huancavelica is above international health-based screening levels in the walls, floors, and indoor air in 75 percent of the earthen homes studied. Since at least 75 percent of the homes are made of earthen materials, and 75 percent of the homes in the study have mercury contamination above health screening levels, the number of people that could be at risk of unsafe exposure mercury could be as high as 20,000 (almost half of the city population), all of whom are potentially at risk for developing adverse health effects.18 The toxic legacies and environmental disasters affecting Huancavelica as a city are not only from the past.  It is located in a region (also called Huancavelica), with the largest Indigenous population, highest poverty, malnutrition, and infant mortality rates19 in Peru, that is currently the site of mining activity run by national and multinational corporations such as Buenaventura, Doe Run and others.20 On June 25th, 2010 a reservoir of mine tailings collapsed in Angaraes, Huancavelica. The failure of the toxic waste reservoir owned by the Caudalosa Chica Mining Company (controlled by a group of Peruvian and foreign companies, among them the                                                  17 Nicole Hagan, et al., “Residential Mercury Contamination in Adobe Brik Homes in Huancavelica, Peru,” in (2013) 8:9 PLOS ONE 1-9; Renzo Silva, “Familias en pobreza extrema son las mas afectadas con contaminacion de Mercurio,” in La Republica, Lima, July 20, 2015, online: <http://larepublica.pe/impresa/politica/16662-familias-en-pobreza-extrema-son-las-mas-afectadas-con-contaminacion-de-mercurio> (retrieved 30 April 2017). 18 Bryn Thoms (Lead Author) and Nicholas Robins, Remedial Investigation: Huancavelica Mercury Remediation Project, Study Project prepared by the Environmental Health Council, March 21, 2015; Elizabeth Prado, “Casi toda la ciudad de Huancavelica esta contaminada con mercurio,” in La Republica, Lima, 3 July 2015, online: <http://larepublica.pe/impresa/politica/12454-casi-toda-la-ciudad-de-huancavelica-esta-contaminada-con-mercurio> (retrieved 30 April 2017). 19 Instituto Nacional de Estadística e Informática (INEI), Cifras de Pobreza 2014, Nota de Prensa No. 057, 23 Abril 2015; Barbara Fraser, “If these walls could talk: Adobe homes in Peru’s Andes tell a centuries-old toxic tale,” in Environmental Health News, February 13, 2013. 20 Honorio Pinto Herrera, “Desastre Ecologico y Ambiental en Huancavelica,” in (2010) 14:25 Investigaciones Sociales 321-338. 5  Scotiabank Peru S.A.A)21 caused a devastating spill of more than 550 tons of tailings containing cyanide, arsenic and lead into seven rivers that provide the sole source of drinking and irrigation water for more than 40,000 Indigenous and peasants communities in the region.22 The predicament of Indigenous communities in Huancavelica, the devastation of their lives, and the contamination of their lands, rivers and lakes as a result of mining activities need to be understood within a historical, economic, political and legal context, both at the national and the international level. During more than five centuries, mining has played a prominent role in Latin America’s economy, including that of Peru.  Today, mining remains a major part of the economic life of the region and a source of conflict and profound human, social, cultural, and environmental consequences. As foreign direct investment, particularly multinational corporate investment has increased in the extractive industries since the 1980s and 1990s, conflicts related to corporate mining and oil exploitation and violations of Indigenous and peasant communities’ rights have also become prevalent in the region. Multinational mining/oil corporations (MNCs)23 have become well known for causing, directly or indirectly, severe environmental contamination                                                  21 Scotiabank Peru S.A.A. is part of Canada’s Bank of Nova Scotia or Scotiabank, “one of the largest financial institutions in North America and the Canadian bank with the largest international presence and projection.” Scotiabank, Reseñas Institutionales, online: <http://www.scotiabank.com.pe/Acerca-de/Scotiabank-Peru/Scotiabank-en-Peru/resenas-institucionales> (retrieved 30 April 2017); Honorio Pinto Herrera, supra note 20 at 324. 22 Deborah Poole and Gerardo Rénique, “Extractivism Spills Death and Destruction in Peru,” in NACLA, September/October 2010 at 32-33; Harvey Wood, Disaster and Minewater: Good Practice and Prevention (London, UK: IWA Publishing, 2012) at 45. 23 The Acronyms MNCs and TNCs (transnational corporations) are used as interchangeable shorthand by some authors. This thesis uses MNCs. Multinational corporations (MNCs) are business organizations which own and control ‘income-generating assets in more than one country.  Some MNCs are global or regional actors, operating across multiple States by controlling unique intellectual property, executing multi-market business strategies and orchestrating expansive networks of production and supply.  See Robin F. Hansen, “The Public Policy Dimensions of MNEs Legal Personality: Is it time to unveil the masters of globalization?” in Andrew Byrnes, Mika Hayashi and Christopher Michaelsen, eds., International Law in the New Age of Globalization (Leiden: Martinus Nijhoff Publishers, 2013) at 241; A MNC may be also defined as a “cluster of corporations of diverse nationality joined together by ties of common ownership and responsive to a common management strategy.” Sarah Joseph, Corporations and Transnational Human Rights Litigation (Oxford: Hart Publishing, 2004). 6  or disasters, industrial accidents, forced displacements, arbitrary detentions, torture and killings of Indigenous peoples.24 These infringements of Indigenous and local communities’ rights by MNCs have taken place in the context of economic globalization and the increasing power and influence of those companies. Since the 1980s, there has been a strong push towards global economic integration, which has been made possible by the progressive dismantling of barriers to trade and capital mobility, together with fundamental technological advances and the steadily declining cost of transportation, communications, and information technology.25 These developments, in turn, have been promoted and supported by international financial institutions (IFIs) such as the International Monetary Fund, World Bank and the associated regional banks (i.e. Inter-American Development Bank) which have not only provided funding to MNCs to explore and exploit mining/oil/gas projects, but have actively promoted and financed the liberalization of the hydrocarbon and mining sectors of national economies across the globe, including Latin America.26                                                  24 UN Special Rapporteur on the Rights of Indigenous Peoples, Victoria Tauli-Corpuz, Opening Remarks at First Session of the Open-ended Intergovernmental Working Group in Charge of Elaborating a Legally Binding Instrument on TNCs and Other Business Enterprises with Respect to Human Rights, Geneva, July 6, 2015. 25 A key feature of economic globalization has been the expansion of foreign direct investment (FDI) and proliferation of MNCs. During the 1990s FDI almost quadrupled, from $1.7 trillion in 1990 to $6.6 trillion in 2001; by 2007, it had exceeded $ 15 trillion, and by 2012, it rose to $23 trillion. In the same trend, global FDI income increased sharply in 2011, for the second consecutive year, to $1.5 trillion, on a stock of $21 trillion, after declining in both 2008 and 2009. While in 2001 there were about 64,000 MNCs, with about 840,000 foreign affiliates, by 2007 there were 79,000 MNCs with 790,000 foreign affiliates and by 2010 there were 82,000 MNCs with 810,000 affiliated entities. See United Nations Conference on Trade and Development (UNCTAD), World Investment Report 2002: TNCs and Export Competitiveness, Geneva, 2002; World Investment Report 2008, TNCs and the Infrastructure Challenge, Geneva, 2008; World Investment Report 2010, Investing in a Low-Carbon Economy, Geneva, 2010; World Investment Report 2013, Global Value Chain: Investment and Trade for Development, Geneva, 2013. 26 Suzana Sawyer and Edmund T. Gomez, The Politics of Resource Extraction: Indigenous Peoples, Multinational Corporations, and the State (New York: Palgrave MacMillan, 2012); Tom Griffiths, "Holding the IDB and IFC (World Bank) to Account on Camisea II: A review of applicable international standards, due diligence and compliance issues,” Amazon Watch, September 2007. 7  The pressure on Latin American and other Third World countries to deregulate markets and industries has made it easier for MNCs to have greater presence amongst some of the world’s most vulnerable communities, among them, Indigenous communities.  Furthermore, in the case of the mining and oil industry, many valuable mineral, gas, and oil deposits have been lately discovered in the world’s remotest regions, often populated by Indigenous peoples.  As a result, Indigenous communities are the victims of industrial accidents, severe environmental contamination, and forced displacements created by mining and oil operations.  These communities, belonging to the most socially and economically marginalized sectors, are usually left without a legal remedy in either the home or the host country.27 I became involved in the human rights law field because of my own personal experience of human rights violations while I was completing my law degree at San Marcos University in Lima. My work experience at human rights organizations in Ecuador and Canada, and the research I conducted for my LL.M thesis, gave me an opportunity to become aware of the lack of information on the scale and nature of violations and atrocities committed against Indigenous peoples in the Andes, not only during the internal political violence in Peru in the 1980s and 1990s, but also as a result of the tremendous expansion of corporate investment in the extractive industries. When I began my Ph.D. studies, my initial research proposal was intended to focus on the legal and procedural issues of the emerging corporate human rights accountability legal                                                  27 In the field of foreign direct investment (FDI) regulation, ‘home county’ or ‘home State’ is the place, home or state,  of the MNC (or the parent company) where the MNC’s headquarters are located; ‘host country’ or ‘host State’ is the place, country or state, in which a subsidiary of a MNC carries out its local investment projects. Muthucumaraswamy Sornarajah, The International Law on Foreign Investment, 3rd Ed., (Cambridge University Press, 2010) at 8-18; Peter Muchlinski, Multinational Enterprises and the Law (New York: Oxford University Press, 2007) at 5-8; Don Dayananda, et al., Capital Budgeting: financial appraisal of investment projects (Cambridge, UK: Cambridge University Press, 2002) at  298-299. 8  framework, assessing its strengths and weaknesses. Later, however, as I began to carry out my research in depth and pay close attention to what was happening in the real life of affected Indigenous communities, I realized that this issue was multidimensional and well beyond legal and procedural issues. For Indigenous peoples affected by corporate activities in the extractive industry this was a matter of life and death. Impunity for those responsible for violations and immunity for corporate actors were overwhelmingly high. So I decided to focus on analyzing this predicament, and questioning the central role of law in the dispossession of Indigenous lands and in the increasing persecution and criminalization of affected communities. Although this phenomenon is common in many countries in Latin America, and in fact around the world, I have chosen to focus on Peru because it represents an extreme example of a socially, geographically and racially segregated society in which Indigenous peoples are considered and treated as second class citizens, and the government assumes that public policy and the public interest consist primarily in attracting foreign direct investment through selling off the natural resources of the country. The focus on Peru is also because it is where I come from and I cannot help to wonder: how is it that hundreds of years after colonization, the injustices faced by Indigenous peoples in Huancavelica and other regions in Peru are still prevalent and how is it that they are still waiting for justice?  And what does justice mean in a contemporary setting? 1.2 Issue to be Addressed This thesis examines the pervasive dispossession of Peru’s Indigenous peoples’ lands and territories and the infringement of their rights by MNCs’ mining projects.  It questions the role of 9  international law and Peru’s legal framework and policies in validating, authorizing and embedding this process.28 Global mining production, including fossil fuels, has almost doubled since 1984, from just over 9 billion tonnes to over 17 billion in 2015, with the greatest increases over the past 10 years.29 Latin America’s steady rise of Foreign Direct Investment (FDI) inflows during the last two decades brought the influx of multinational mining and oil investment and the rise of concessions on Indigenous peoples’ lands, which have been accompanied by pervasive abuses against Indigenous communities and encroachment of their rights. This critical and endemic situation has been repeatedly raised by the UN Special Rapporteurs on the rights of Indigenous peoples.30 As Victoria Tauli-Corpuz points out, “one of the key reasons why Indigenous peoples are being disenfranchised from their lands and territories is the existence of discriminatory laws, policies and programs that do not recognize Indigenous peoples’ land tenure systems and give more priority to claims being put by corporations – both State and private.”31 Pervasive dispossession of Indigenous lands and territories and the infringement of their rights are, more                                                  28 For the purpose of this dissertation, I concur with Joel Bakan’s notion of “Law” which “refer to mandatory legal systems composed of rules, principles, and standards promulgated and enforced by sovereign state institutions, and recognized as authoritative and binding within their jurisdiction.” Joel Bakan, “The Invisible Hand of Law: Private Regulation and the Rule of Law,” (2015) 48:2 Cornell International Law Journal 279 at footnote 2. 29 C. Reichl, M. Schatz, G. Zsak, World Mining Data, International Organizing Committee for the World Mining Congress, Volume 32, Minerals Production, Vienna, 2017 at 15. 30 UN Special Rapporteur on the Rights of Indigenous Peoples (2015), supra note 24; Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, Extractive industries operating within or near indigenous territories, A/HRC/18/35, July 11, 2011. 31 6th Session of the UN Permanent Forum on Indigenous Issues, Special Theme: Territories, Lands and Natural Resources, Press Release, UN’s Indigenous Forum issues recommendations regarding lands, territories and natural resources as two week meeting concludes, 25 May 2007, online: <http://undesadspd.org/IndigenousPeoples/UNPFIISessions/PreviousSessions/Sixth.aspx> (retrieved 30 April 2017). 10  often than not, permitted and tolerated by States. As the UN Special Rapporteur on the rights to freedom of peaceful assembly and association points out, The central role of corporations in natural resource exploitation means that they can potentially wield enormous power and influence over host States, rendering authorities unwilling to intervene in their interests. Corporations gain access to the corridors of power and often have the ear of key officials (sometimes through unethical means) and are therefore in a position to influence decisions in their favour at the expense of opposing views of other interested parties, including affected communities.32  What makes this situation critical is the fact that these communities affected or injured by mining and oil operations, come from the most socially and economically marginalized sectors of Latin America.  Indeed, as several UN reports on Indigenous peoples point out, Indigenous peoples are at the bottom of the socio-economic scale.  They are discriminated against within society, have generally weak political participation, and lack equal access to economic, social and cultural rights.  They are often implicated in social and environmental conflicts and have less access to justice and security.33 While international economic law (international law on foreign investment and trade law) has facilitated the growth in power and influence of multinational corporations, it has greatly limited government prerogatives to enforce environmental regulations and human rights norms against multinational corporations.34 Of particular concern is the influence that multinational                                                  32 Report of the Special Rapporteur on the rights to freedom of peaceful assembly and association, Maina Kiai, A/HRC/29/25, April 28, 2015 at paragraph 17. 33 International Work Group for Indigenous Affairs, The Indigenous World 2015 (Copenhagen, Denmark: IWGIA, April 2015) at 10; Report of the High Commissioner for Human Rights on Indigenous Issues, E/CN.4/2006/77, February 27, 2006 at 3, para. 2; see also José R. Martinez Cobo, Study of the problem of discrimination against Indigenous populations, UN Doc. E/CN.4/Sub.4/1986/7 and Add.1-4. 34 Saskia Sassen, “When the global inhabits the national: fuzzy interactions,” in Stephen Gill and A. Claire Cutler, Eds., New Constitutionalism and World Order (New York: Cambridge University Press, 2014) at 115; Joseph E. Stiglitz, Making Globalization Work (New York: W.W. Norton & Co., 2006); Saskia Sassen, “De-Nationalized State Agendas and Privatized Norm-Making,” in Karl-Heinz Ladeur, Ed., Public Governance in the Age of 11  corporations exert over international investment agreements, which enable MNCs to sue governments when public interest policies or national legislation potentially harms corporate profitability and investment. The number of international investment agreements and the arbitrations under these agreements (investor-State legal actions) rose dramatically during the last two decades and the trend continues.35 In just one of the tribunal systems, the World Bank's International Center for the Settlement of Investment Disputes (ICSID), the number of investment arbitrations has jumped by more than 400 percent between 2000 and 2012.36 The current global economic order limiting State control in Latin America, including Peru, is particularly detrimental to economic, social, and cultural rights; for example, the right to a safe environment, sustainable livelihood, clean water, the highest attainable standard of physical and mental health, and especially in the case of Indigenous peoples, the right to control the use of their land. During the last three decades, there has been substantial development in the promotion and protection of the rights of Indigenous peoples within international law. International human rights law has also developed conceptual and doctrinal tools to address harms caused by non-state actors. Yet, despite the growing number of international instruments, state constitutions and national laws asserting and protecting the rights of Indigenous peoples, and the development of transnational and international human rights litigation under the doctrines of extraterritorial                                                                                                                                                              Globalization (Aldershot, Hants, England: Ashgate, 2004) at 51–67; Susan Strange, The retreat of the state: the diffusion of power in the world economy (Cambridge: Cambridge University Press, 1996) at 16-48. 35 The number of investment agreements rose from around 500 in 1990 to 2,700 by 2000, and it rose to 3,236 by 2014. See Muthucumaraswamy Sornarajah, Resistance and Change in the International Law on Foreign Investment (Cambridge, UK: Cambridge University Press, 2015) at 4. 36 Transnational Institute, Dangerous Weapons: How International Investment Rules Undermine Social and Environmental Justice, Report, June 2012, online: <https://www.tni.org/files/download/folleto_ingles2.pdf> (retrieved 30 April 2017). 12  regulation and horizontality, Indigenous peoples continue to suffer serious and widespread violations of their human rights and fundamental freedoms in the context of extractive industries; often finding themselves increasingly subjected to discrimination, racism, exploitation, dispossession, and criminal prosecution. Indeed, almost as great a concern as the frequency with which Indigenous human rights are violated by MNCs operating in Latin America is the notable absence of effective national and international mechanisms for imposing legal accountability for such violations. 1.3 Central Question and Hypothesis The central question of this thesis is: What has been the role of law in validating, authorizing and embedding the increasing encroachment on and dispossession of Indigenous lands and territories by MNCs in the extractive industries? This thesis argues that law, particularly international economic law and the legal framework developed in Peru since the 1990s, has played a prominent role in facilitating and embedding multinational corporate investment in the extractive industry, and weakening the rights of Indigenous and peasant communities to control their land, water and resources. Peru’s legal framework and policies on extractive industries have not only validated the expansion of MNCs operations and dispossession of Indigenous lands, but have also validated a growing trend of persecution and criminalisation of Indigenous communities who question, challenge and resist MNCs’ operations causing, directly or indirectly, harmful environmental impacts, adverse health and economic effects, forced displacements, community division and breakdown of social fabric, and serious injuries and deaths during protests. 1.4 Thesis’ Specific Questions The following cluster of questions have guided my research and analysis: 13   How does one understand the predicament of Indigenous communities in Peru, the devastation of their lives, the contamination of their lands, rivers and lakes as a result of corporate mining activities?  What are the historical, economic, political and legal contexts, at the national and international level, that underpin this predicament?  How does one understand the desperate and precarious situation of Indigenous peoples in Peru in light of an international order that supposedly protects human rights and Indigenous rights in particular? Why has international human rights law done little if anything to change this situation?  What are the possibilities and limitations of the emerging legal framework for MNCs accountability through international human rights standards and mechanisms?  Do Indigenous people’s claims enter into conflict with other legal regimes (such as international trade law) and international agendas, which tend towards the emphasis of individual rights and the promotion of the centrality of the right to property as an essential feature of the human rights discourse?  How and to what extent do international human rights norms and mechanisms play a role in framing, structuring, limiting, and co-opting Indigenous peoples’ claims and aspirations?  Why do these norms overlook, bypass or conceal the structural causes of many MNCs’ violations of Indigenous peoples rights, which in the end, may facilitate and further MNCs access to natural resources located within Indigenous peoples’ lands and territories? 14  1.5 Definition of “Indigenous Peoples” There is no authoritative or incontrovertible definition of Indigenous peoples,37 and no definition of Indigenous peoples has ever been adopted by any United Nations system body.  One of the most cited descriptions of the concept of the Indigenous was formulated by Jose R. Martinez Cobo, the Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his Study on the Problem of Discrimination against Indigenous Populations: Indigenous communities, peoples and nations are those which, having an historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in these territories, or parts of them. They form at present non-dominant sectors of society and are determined to perceive, develop and transmit to future generations their ancestral territories and their ethnic identity, as the basis of their continued existence as people, in accordance with their own cultural patterns, social institutions and legal system.38 Article 1 of the International Labour Organization (ILO) Convention Concerning Indigenous and Tribal People in Independent Countries, No. 169, contains a statement of coverage rather than a definition, indicating that the Convention applies to: a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations; b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to                                                  37 Benjamin J. Richardson, Shin Imai and Kent McNeil, Eds., Indigenous Peoples and the Law: Comparative and Critical Perspective (Portland, OR: Hart Publishing, 2009) at 12-13. 38 See UN Doc. E/CN.4/Sub.2/1986/7/Add.4, para.379 and 381. 15  which the country belongs, at the time of conquest or colonization or the establishment of present state boundaries and who irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions. Article 1 of ILO also indicates that self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.39 Historically, the term “Indio” (Indian) or “Indigenous” has been a very derogatory term; European conquerors and colonizers formulated the terms to refer to the inhabitants of “the oppressed but not defeated peoples.”40 As one of the key tools of the colonizers was the imposition of their image of the colonized on the subjugated people,41 sustaining hierarchical structures and social discriminations were part of the “sentimentality” and the governmentality of everyday life.42  Yet native peoples in the Americas increasingly have subverted the colonial terms in their liberation struggle and in their claim for justice. The use of a Capital “I” in reference to Indigenous peoples is intentional and based on a preference specified by the board of directors of the South and Meso American Indian Rights Centre (SAIIC) as a strong affirmation of their ethnicities. It is not intended to essentialize, overstate and romantize their identities.43 I am aware that the term Indigenous peoples is both a                                                  39 International Labour Organization (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries, No. 169, June 27, 1989 at Article 1. 40 Silvia Rivera Cusicanqui, Oprimidos pero not vencidos: luchas del campesinado aymara y qhuechwa de Bolivia 1900-1980 (Geneva: United Nations Research Institute for Social Development, 1986). 41 Frantz Fanon, The Wretched of the Earth (New York: Grove Press, 2004), cited in Charles Taylor, “The Politics of Recognition,” in Charles Taylor and Amy Gutmann, Ed., Multiculturalism: Examining the Politics of Recognition (Princeton, New Jersey: Princeton University Press, 1994) at 65. 42 Homi K. Bhabha, “On Writing Rights,” in Mattew J. Gibney, Ed., Globalizing Rights: The Oxford Amnesty Lectures 1999 (New York: Oxford University Press, 2003) at 177. 43 Marc Becker, Indians and Leftists in the Making of Ecuador’s Modern Indigenous Movement (Durham: Duke University Press, 2008) at footnote 1. 16  fragile legal category and signals a socially constructed, historically contingent, differently experienced and collectively embodied identity.44   This thesis questions and challenges discourses that tend to essentialize Indigenous identity and subjectivity based upon their ethnicity, race and notions of “evolved,” “achieved,” “immutable” or “natural” Indigenous culture, defining them either as the noble and mistreated descendants of pre-colonial societies or the ignorant and stubborn Indian peasantry whose “backward and primitive” ways will prevent the “development” and “progress” of the country or region. In the Americas, as Quijano argues, the term or category Indigenous peoples only has meaning with reference to the system of power which originates in the colonial experiences and which since then has grown and developed continuously, maintaining its basic original principles and colonial character.45  The issue of the “Indigenous” cannot be looked into or debated except in relation to the coloniality of the system of power, because outside that framework such a categorization of people would not even exist.46 In the context of 21st century transnational resource extraction, the content of the term Indigenous peoples, its philosophy and aspirations are not self-evident, but rather constitute a terrain of political struggle and contestation. As Li argues, communities’ “poverty, powerlessness and exclusion from valuable resources are integrally related.”47  Law (national                                                  44 John Borrows, Freedom and Indigenous Constitutionalism (Toronto: University of Toronto Press, 2016) at Introduction; Etienne Balibar and Immanuel Wallerstein, Race, Nation, Class: Ambiguous Identities (London, UK: Verso, 1991); Etienne Balibar, Politics and the Other Scene (London, UK: Verso, 2002). 45 Anibal Quijano, “The challenge of the ‘Indigenous Movement’ in Latin America,” (2005) 19:3 Socialism and Democracy 55 – 78. 46 Ibid.  47 Tania M. Li, “Boundary Work: Community, market and State reconsidered,” in Arun Agrawal and Clark C. Gibson, Eds., Communities and the Environment: Ethnicity, Gender, and the State in Community-Based Conservation (New Brunswick, NJ: Rutgers University Press, 2001) at 161, cited in David Szablowski, Transnational Law and Local Struggles: Mining, Communities and the World Bank (Portland, OR: Hart Publishing, 2007) at 140. 17  and international) has been used as a tool and tactic to fix Indigenous identity and govern their conduct.48 Thus, as Szablowski writes, “so long as the forces which have helped to construct and maintain aspects of their (powerless, poor) identity remain in place, vigorous efforts will be made to identify them in a manner that  renders them ineligible as beneficiaries of newly valuable resources.”49 1.6 Research Methodology One of the aims of this thesis is to expose and denounce the responsibility of States and MNCs in the infringement of Indigenous peoples’ lives and rights, and to confront the ‘crime of silence,’ and the working of ‘dominant law’ inflicting second violations on Indigenous communities suffering through a judgement of denial.50 To challenge the 'crime of silence' which enables the powerful to silence voices of pain and suffering in the courts, in the legislative bodies, in international negotiations, in the media, academia and education, Indigenous peoples need to tell and retell their stories and narratives for themselves, thereby breaking the grid of administration of silence. How can society ever ‘do justice’ to Indigenous peoples if they “are not its parts but stand outside communication, if society cannot communicate with them but at most about them, indeed not even reach them but merely either irritate or destroy them?”51 In the light of grossly inhuman social practices to which Indigenous peoples are subjected, “the justice of human rights is a                                                  48 Tania M. Li, “Fixing Non-market Subjects: Governing Land and Population in the Global South,” in (2014) 18 Foucault Studies 34-48 at 39. 49 David Szablowski (2007), supra note 47 at 140. 50 See “Permanent People’s Tribunal on Global Corporation and Human Wrongs: Findings and Recommended Action,” University of Warwick, 22-25 March 2000, (2001) 1 Law, Social Justice & Global Development Journal (LGD); Jayan Nayar, “A People’s Tribunal against the Crime of Silence? the Politics of Judgment and an Agenda for People’s Law,” in (2001) 2 Law, Social Justice & Global Development Journal (LGD). 51 Gunther Teubner, “The Anonymous Matrix: Human Rights Violations by ‘Private’ Transnational Actors,” in (2006) 69:3 Modern Law Review 327 at 345. 18  burning issue.”52 As Teubner argues, the justice of human rights is aimed at removing unjust situations; it is only the counter-principle to communicative violations of body and soul, a protest against inhumanities of communication.53 Therefore, “if the self-observations of mind/body (introspection, suffering, pain) and the spontaneous indignation, unrest, and protest [of Indigenous peoples], however distorted, gain entry to communication, then there is a chance to observe the closeness of justice. The decisive thing is the ‘moment’: the simultaneity of consciousness and communication, the cry that express pain.”54 The most intimate scale, the body, writes Alejandra Roncallo, is the site where the violence of policies decided at broader scales is most dramatically felt; yet, it is also the less addressed in academic literature and it is urgent to fill this vacuum.55 Inspired by the prolific work of Eduardo Galeano, who was deeply politicized and intensely concerned with issues of historical context and who used testimonio and storytelling as  challenges to the arbitrariness of power,56 this thesis attempts to provide an account that critically describes and redescribes Indigenous peoples’ resistance and struggles against the expansion of MNCs and their appropriation of their lands for oil, gas and mining projects, bringing forced displacements, violence, pain, suffering, detentions, criminalization and killings. Critical re-description, is “an attempt to redefine through narrative, a world we take for granted, inviting it to be seen differently as a mode of political engagement; it offers to legal thought the potential of                                                  52 Ibid. 53 Ibid at 346. 54 Ibid at 346. 55 Alejandra Roncallo, The Political Economy of Space in the Americas: The New Pax Americana (New York: Routledge, 2014) at 11. 56 Daniel Fischlin and Martha Nandorfy, Eduardo Galeano: Through the Looking Glass (Montreal: Black Rose Books,2002) at 4; Eduardo Galeano, Memoria del Fuego, 3 Vols. (Madrid: Siglo Veintiuno de España Editores, 1982); Las Venas Abiertas de America Latina (México, D.F.: Siglo Veintiuno, 2006); We Say No: Chronicles 1963-1991 (New York: Norton, 1992); Upside Down: a primer for the looking-glass world (New York: Metropolitan Books, 2000); Los Hijos de los Dias (Montevideo: Ediciones del Chanchito, 2012). 19  storytelling in trying to understand the world differently than the way we usually know it.”57 This method resonates with Foucault’s approach in his study of the emergence of the State and the operation of power. For Foucault, It has long been known that the role of philosophy is not to discover what is hidden, but to make visible precisely what is visible, that is to say, to show that which is so close, which is so immediate, which is so intimately linked to us, that because of that we do not perceive it…the role of philosophy is to make us see what we see.58  In addition, according to Foucault, philosophy may be able to play a role in the struggle against power, but only on condition that it “sets itself the task of analyzing, clarifying, making visible, and thus intensifying the struggles that take place around power”59 Relying on the description and re-description approach, Chapter Two discusses three particular conflicts involving MNCs and affected Indigenous communities; in addition, each chapter of this thesis starts describing and telling a particular story about Indigenous suffering, struggle and resistance against MNCs and State’s policies and actions. It is in questioning ‘the power of power to erase victimage from public memory’ and in the attainment of the communication, circulation of their narratives, indignation, and their ‘cry that express suffering, pain’ that the possibility of justice for Indigenous peoples begins.60 In addition to the method of description, re-description and storytelling, this thesis builds on doctrinal and non-doctrinal socio-legal studies, which includes a combination of two                                                  57 Sundhya Pahuja, “Laws of Encounter: A Jurisdictional Account of International Law,” in (2013) 1:1 London Review of International Law 63-98 at 65. 58 Michel Foucault, “La Philosophie Analytique de la Politique,” in D. Defert and F. Ewald, Eds., with J. Lagrange, Dits Et Ecrits, 1954-1988, 4 Vols., Vol. 3 (1994), 534, at 540, cited in Anne Orford, “In Praise of Description,” (2012) 25 Leiden Journal of International Law 609-625 at 617. 59 Ibid at 622. 60 Upendra Baxi, Inhuman Wrongs and Human Rights: Unconventional Essays (New Delhi: Har-Anand Publications, 1994) at 32; Gunther Teubner (2006), supra note 55 at 346; Pheng Cheah, David Fraser and Judith Grbich, “Introduction: the body of the law,” in Pheng Cheah, David Fraser and Judith Grbich, Eds., Thinking Through the Body of the Law (New York: New York University Press, 1996) at xv-xvi. 20  qualitative research methods: A) analysis of texts, documents and printed and electronic (computer-based and Internet-transmitted) material; and B) the study of conflicts involving MNCs and Indigenous communities in Peru. 1.6.1 Analysis of Texts and Computer-based and Internet-transmitted Documents The thesis examines relevant treaties, conventions, declarations, resolutions, decisions and rulings, reports, and scholarly writing publications on international human rights norms/mechanisms and Indigenous peoples rights with regard to states and non-states accountability for MNCs violations (with particular emphasis in the mining).  This includes the emergent jurisprudence (concluding observations, decisions, and rulings) of cases holding both states and MNCs legally accountable for Indigenous human rights violations within the United Nations treaty-based human rights regime, the Inter-American human rights system, and in the civil courts of MNCs’ home states. In addition, the thesis uses the technique of analysis of documents – both printed and electronic (computer-based and Internet-transmitted) materials such as books, journals, magazines, newspapers, reports, testimonies, documentary videos, etc. produced and published by international, national and local Indigenous and human rights organizations, international and national non-governmental organizations, intergovernmental organizations (United Nations, Organization of American States, the World Bank, Inter-American Development Bank), relevant government agencies, and international business organizations and multinational (mining and oil) corporations. 1.6.2 Study of Conflicts Involving MNCs and Indigenous Communities in Peru An important part of the thesis is dedicated to the analysis of three conflicts involving MNCs and Indigenous communities in Peru. 21  a) Minera Barrick Misquichilca (Subsidiary of Barrick Gold Corporation, Canada) v. Pierina Mine Communities (Ancash) b) Minera Yanacocha (Subsidiary of New Mont Mining Company, U.S.A.) v. Yanacocha Mine Communities (Cajamarca) c) Rio Blanco Copper (Subsidiary of Monterrico Metals, United Kingdom – China) v. Segunda y Cajas and Yanta Indigenous Peasant Communities (Piura). These conflicts have been selected because they involve large-scale mining operations which are reported to have had serious impacts on Indigenous communities and have been associated with Indigenous land dispossessions and grave human rights violations. The mining projects are managed and developed by consolidated multinational corporations headquartered in Canada, the U.S., and the United Kingdom- China (Hong Kong), the countries with the largest mining investment in Peru. The study of the conflicts helps to illustrate the nature and degree of infringements caused by MNCs’ activities, the degree of responsibility of multilateral financial institutions and the state, the level of participation of affected Indigenous communities in decision-making mechanisms and their ability to access justice, as well as the effectiveness or ineffectiveness of domestic (the host states), international (the UN and OAS), and transnational (the home states of the corporations) legal jurisdictions for bringing justice and remedies to victims.  The study of the conflicts particularly demonstrates the link between the volatile and complex context on which economic liberalization and foreign investment coexist with state repression and violence, and the complicity of MNCs in furthering violence against Indigenous communities and violations of their fundamental rights.  They also illustrate how persistent colonial legacies of racism gloss over the relationship of state, MNCs and IFIs with Indigenous 22  peoples, tending toward the social, regulatory and legal manipulation of Indigenous peoples and their potential claims and interests. The analysis of these three conflicts could have benefited from a field study and interviews with affected communities in Peru; however, due to personal circumstances, it was not possible to carry out such field work. I tried, however, to address this limitation with an exhaustive and extensive analysis of documents, reports and studies carried out by other academics, Indigenous organizations, civil society, environmental and human rights organizations. I am aware of the existence of peer reviewed journals and academic literature dealing with mining in Peru and the violations and abuses caused by MNCs operations; however, very few pieces reflect the views, interests, and visions of Indigenous communities affected by corporate extractive activities. Therefore, the study of the three conflicts in Chapter 2, as well as Chapter 3 (historical overview) and Chapter 4 (Peru’s policies and regulations) have relied, in addition to academic sources, on the work of officials of inter-governmental and non-governmental organizations (both national and international), as well as on the work and reports of Indigenous and non-Indigenous human rights and environmental activists, and public intellectuals. 1.7 Theoretical Approach This thesis intends to address several conceptual problems of international human rights law, MNCs accountability and Indigenous people’s rights movement, and the complex relations between them.  It aims to address such conceptual problems in the context of global processes (economic, social, political and legal) and global inequalities which rest on the outcome of contentions, struggles and asymmetries (in relations of power) and on structural and legal 23  arrangements. To do so, the dissertation draws upon the work of Indigenous scholars, critical legal approaches such as Third World Approach to International Law (TWAIL), postcolonial legal theory, and postmodern and critical discursive perspectives. Indigenous scholars such as James Anaya and Robert A. Williams Jr. offer an alternative approach to the mushrooming mainstream literature on Indigenous peoples and international human rights law which overlooks the current controversies and paradoxes in the human rights discourse and norms and privileges a liberal conciliatory stage in Indigenous peoples – state relations.  While Anaya and Williams discuss international law’s discriminatory and colonial past, and the historical rationalization for the oppression of Indigenous peoples, they also praise the development of international human rights law and the steps taken by the international and regional human rights institutions and mechanism such as the UN and the OAS for the empowerment of Indigenous peoples.61  In contrast, another Indigenous scholar -- Jeff Corntassel -- highlights the potential dangers of framing Indigenous claims in mainstream legal/rights discourse, and critically examine how Indigenous movements have become institutionalized and mainstreamed within the UN human rights system and how these developments have impacted grassroots Indigenous mobilization.62                                                  61 James Anaya, Indigenous People in International Law (New York: Oxford University Press, 2004); Robert A. Williams, Jr., Savage Anxieties: the Invention of Western Civilization (New York: Palgrave Macmillan, 2012); Robert A. Williams, Jr., The American Indian in western legal thought: the discourses of conquest (New York: Oxford University Press, 1990); Robert A. Williams, Jr., “Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World,” (1990) Duke Law Journal 660. 62 Jeff Corntassel, “Partnership in Action? Indigenous Political Mobilization and Co-optation during the First UN Indigenous Decade 1994-2004),” (2007) 29 Human Rights Quarterly 137-166; Jeff Corntassel, “Cultural Restoration in International Law: Pathways to Indigenous Self-Determination,” in (2012) Canadian Journal of Human Rights 93-125; Taiaiake Alfred and Jeff Corntassel, “Being Indigenous: Resurgences against Contemporary Colonialism,” in (2005) 40:4 Government & Opposition 597. 24  TWAIL and post-colonial legal perspectives,63 unlike mainstream approaches to international law that mask and justify unjust power relationships and tend to decontextualize action, attempt to demonstrate that modern and contemporary international law has deeply entrenched Eurocentric liberal foundations, which are erroneously held to be value-neutral, and emphasize the need to place colonialism as a key backdrop against which to appreciate the historic role of international law in relation to Third World countries.64 More specifically, TWAIL scholars explore and expose the hegemonic orientation of the liberal human rights movement, including that associated with leading international human rights NGOs.65  They emphasize the need, in all its complexity, ‘to internalize the uncomfortable fact that human rights discourse is part of the problem of global hegemony and the absence of global justice.’66  Yet, they provide insightful arguments to search and construct a counter-hegemonic potential for a reoriented human rights movement by ‘paying attention to the pluriverse of human rights, converting official and sanctioned human rights discourse in one of many languages of                                                  63 Peter Fitzpatrick, Law as Resistance: Modernism, Imperialism and Legalism (Aldershot, Hampshire, England: Ashgate, 2008); Sundhya Pahuja, Decolonising International Law: Development, Economic Growth and the Politics of Universality (New York: Cambridge University Press, 2011); Sundhya Pahuja, “the Postcoloniality of International Law” (2005) 46:2 Harvard Journal of International Law, 459 – 469; Peter Fitzpatrick, Modernism and the Grounds of Law (New York: Cambridge University Press, 2001); Dianne Otto, “Subalternity and International Law: The Problems of Global Community and the Incommensurability of Difference,” in Eve Darian-Smith and Peter Fitzpatrick, Eds., Laws of the Postcolonial (Ann Arbor: The University of Michigan Press, 1999). 64 B S Chimni, “The Past, Present and Future of International Law: A Critical Third World Approach,” (2007) Melbourne Journal of International Law 27; Muthucumaraswamy Sornarajah, “Power and Justice: Third World Resistance in International Law,” (2006) 10 Singapore Year Book of International Law 19; Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge: Cambridge University Press, 2005); Antony Anghie and B S Chimni, “Third World Approaches to International Law and Individual Responsibility in Internal Conflict” in Steven R. Ratner and Anne-Marie Slaughter, Eds., The Methods of International Law (Buffalo, N.Y.: William S. Hein, 2005);  James T. Gathii, “Good Governance as a Counter Insurgency Agenda to Oppositional and Transformative Projects in International Law” (1999) 5 Buffalo Human Rights Law Review 107. 65 Upendra Baxi, the Future of Human Rights (New Delhi, Oxford University Press, 3rd edition, 2008); Balakrishnan Rajagopal, International Law From Below: Development, Social Movements, and Third World Resistance (Cambridge, UK: Cambridge University Press, 2003). 66 Balakrishnan Rajagopal, “Counter-Hegemonic International Law: rethinking human rights and development as a Third World strategy,” (2006) 27: 5 Third World Quarterly 767 at 768. 25  resistance, and enacting a cultural politics at many scalar levels.’67 Further, these perspectives highlight the significant role played by Third World social movements in affecting/shaping the development of international law. Postmodern and critical discursive perspectives provide a methodology of studying the working and manifestations of modern power through understanding power relations.  According to Foucault, ‘power exists only as exercised by some on others, only when it is put into action…that the ‘other’ (the one over whom power is exercised) is recognized and maintained to the very end as a subject who acts and that, faced with a relationship of power, a whole field of responses, reactions, results and possible inventions may open up.’68  The exercise of power or ‘governance,’ is described as a management of possibilities, and understanding the operations of power is to understand how these possibilities are administered over the object of the power relations, either inciting, inducing or seducing the object to be disciplined or making things easier, more difficult or forbidding absolutely for it.  Thus, practices of ‘governance’ or ‘governmentality’ exercise normative control over the meaning and content of planned and systematic thoughts and actions that aims to shape, regulate or manage the way people conduct themselves by acting upon their hopes, circumstances and environment. Governance, in this sense, is most effective when it colonizes modes of thought.  This methodology provides insightful tools to examine how and the ways in which power is exercised through various legal                                                  67 Ibid. 68 Michel Foucault, Power: Essential Works of Foucault 1954 – 1984, Vol. 3rd edition, J D Faubion/ trans. R. Hurley and others (London: Penguin, 1994) at 340. 26  and regulatory instruments at the global level, including institutions and mechanisms associated with international human rights law.69 Furthermore, postmodern and critical discursive perspectives not only provide tools to unmask ‘the superstructures of law that both hide and reflect the economic and political interests of the dominant forces of society,’ but turn towards political and ethical responsibility and engagement with questions of a relationship between law and force, and between law and justice.70 Law pertains to the realm of the calculable; it is about debt, claim, obligation and entitlement, all assessed by a third party such as a judge, whose task is to engage in a commutative/distributive exercise that is meant to be kept within strictly legal boundaries.71 Justice is not the same as ‘right’ or ‘law’ [droit]; it is that which attempts, nonetheless, to produce a new right; and to do so it is necessary, first, to take the context into account and then, at a given moment, to transform it radically.72 In the name of justice-which-is not-law which one cannot renounce, there arises a duty to retain ‘one’s freedom to question, to get indignant, to resist, to disobey, to deconstruct.’73 The later provides an important framework to focus on the voices and narratives of many Indigenous communities in the Andes who are continuously                                                  69 Stephen Gill and A. Claire Cutler, New Constitutionalism and World Order (New York: Cambridge University Press, 2014); Ben Golder and Peter Fitzpatrick, Foucault’s Law (New York : Routledge-Cavendish, 2009); Michel Foucault, Security, Territory, Population, Lectures at the College de France (New York: Palgrave Macmillan, 1997); Michel Foucault, “Governmentality,” in Graham Burchell, Colin Gordon and Peter Miller, Eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991); Michel Foucault, “Two Lectures,” and “Truth and Power,” in Colin Gordon, Ed., Power/Knowledge: Selected Interview and Other Writings 1972-77 (Brighton: Harvester Press, 1980); Slavoj Žižek, “Against Human Rights,” (2005) 34 New Left Review 115-131; Tony Evans, “International Human Rights Law as Power/Knowledge,” (2005) 27 Human Rights Quarterly 1046; .Jacques Rancière, “Who Is the Subject of the Rights of Man?” (2004) 103The South Atlantic Quarterly 297; Jean- Luc Nancy, The Creation of the World or Globalization (Albany, NY: State University of New York, 2007). 70 Jacques Derrida, “Force of Law: The "Mystical Foundation of Authority,” in J. Derrida, Acts of Religion (New York: Routledge, 2002) at 230. 71 Pierre Legrand, Ed., Derrida and Law (Surrey, UK: Ashgate Publishing Limited, 2009) at Introduction, xxxi. 72 Jacques Derrida and Maurizio Ferraris, A Taste for the Secret (Cambridge, UK: Polity Press, 2001) Translated from the French and Italian by Giacomo Donis and edited by G. Donis and D. Webb at 16-17. 73 Jacques Derrida, Paper Machine, trans. Rachel Bowlby (Stanford, CA: Stanford University Press, 2005) at 155. 27  subjected to injustices, but also silenced and excluded, denied speech and voice, denied the right to tell their stories, to express what happened, to name the violence of ‘development’ and ‘progress.’ For Lyotard an extreme form of injustice is that of an ethical tort of differend, in which the injury suffered by the victim is accompanied by a deprivation of the means to speak about it or prove it.74  And as Baxi points out, “practices of ‘governance’ exercise normative control over the meanings and content of human rights and sculpt regime-specific institutional arrangements often justifying even the worst excesses of silencing powers as serving either the ‘common good’ or ‘public interest’ [I would add ‘development,’ ‘economic growth,’ and  ‘modernization].”75 Thus, “governance consist in the power or authority to decide: Who may and may not ‘speak,’ how and when one may ‘speak,’ what one may ‘speak’ about, and to what intent/effect one may ‘speak.’”76 In using storytelling methods in the study of conflicts involving MNCs and Indigenous communities, and in combining different theoretical approaches (Indigenous legal scholars’ approach, Third World Approaches to International Law, postcolonial legal theory, and postmodern and critical discursive perspectives), this thesis has developed an original approach. This might appear an unconventional use of incompatible methodologies; yet it has allowed me to convey the historical and ongoing suffering of Indigenous peoples in Peru, the abuses and violations and injustices to which they have been subjected, and to highlight the central role of law in this predicament. In addition it has allowed me to understand how State officials, corporate actors and the Peruvian elite, including the mainstream media, have manipulated                                                  74 Jean-Francois Lyotard, The Differend (Manchester: Manchester University Press, 1988) at 5. 75 Upendra Baxi, ‘Epiloque: Whom May We Speak For, With, and After? Re-Silencing Human Rights,’ in Gurminder K. Bhambra and Robbie Shilliam, Eds., Silencing Human Rights: Critical Engagements with a Contested Project (New York: Palgrave Macmillan, 2009) at 253-254. 76 Ibid at 254-255. 28  affected communities through the rhetorical discourse of “economic growth” “development” “the inevitability of progress” through mining because Peru is a “mining country;” and how and in which ways human rights discourse and legal instruments are instrumentalized by the same influential actors in order to secure their particular interests and goals. 1.8 Significance of Thesis Research The thesis’ research has two threads of legal significance. The first relates to the Andean and Amazonian Indigenous peoples’ physical and cultural resilience, and their resistance and inexhaustible struggle for justice. Despite historical and structural barriers and significant legal challenges and obstacles in accessing justice, Indigenous communities in Peru continue opposing and resisting the dispossession of their lands and the encroachment of their rights by MNCs operations and the state. They are not only at the forefront of demanding justice for the devastation of their lives, but they are at the forefront of resistance to environmental destruction, social disintegration, misery and injustice created by the nihilism of neoliberal globalization. The thesis expands the academic discussion on the prominent role of law and prevailing legal structures in validating and embedding the expansion of corporate mining projects, dispossession of Indigenous lands and a pervasive criminalisation of affected Indigenous communities. This thesis embraces, supports and is part of Indigenous communities’ demands for justice; it asserts the right to tell Indigenous and peasant communities’ stories as a mean of achieving agency, aiming to question and challenge mainstream narratives, “narrative monopolies, narrative oligarchies that silence [and or distort] the voices of human suffering, often in the name of 29  human rights.”77  The process of globalization has located Indigenous peoples at the cutting edge of the “quest for global justice” and at the heart of contemporary trends in international law and international human rights law; in their search for justice, Indigenous peoples not only face and resist that ancient and terrible challenge of their own survival but contest and challenge the evolving legal architecture of global unaccountability and impunity, and in doing so Indigenous peoples become central to and constitutive of the evolving global order.  Indigenous communities’ efforts, struggles and engagement with the corporate accountability movement through a reoriented human rights discourse contribute and strengthen the field of law referred as a ‘subaltern legality’ or ‘counter-hegemonic legality.’78 The second thread is related to the critical examination and assessment of existing literature and jurisprudence on MNCs accountability for the infringement of Indigenous people’s rights in Peru, from the lens of Indigenous peoples’ concerns, struggles and demands for justice.  More specifically, the dissertation problematizes and questions the viability, complexity and contradictory nature of international human rights law through which Indigenous communities have been expressing their resistance and struggles. It assesses, for instance, the evolving doctrine of indirect state responsibility, under which states have the responsibility to regulate private actors under their control, and the theory of horizontality, in which multinational corporations can themselves be the source of human rights violations.79                                                  77 Upendra Baxi, Foreword, in Daniel Fischlin and Martha Nandorfy, The Community of Rights The Rights of Community (Montreal: Black Rose Books, 2012). 78 Balakrishnan Rajagopal, “Counter-Hegemonic International Law: rethinking human rights and development as a Third World strategy,” in Richard Falk, Balakrishnan Rajagopal and Jacqueline Stevens, Eds., International Law and the Third World (New York: Routledge-Cavendish, 2008) at 63; Boaventura S. Santos and Cesar A. Rodriguez-Garavito, Eds., Law and Globalization from Below: Towards a Cosmopolitan Legality (Cambridge: Cambridge University Press, 2005). 79Parts of this jurisprudence are the decisions of the Inter-American Court of Human Rights (the Court) in Awas Tingni Community v. Nicaragua (2001), Saramaka People v. Suriname (2007), and Kichwa Indigenous People of 30  1.9 Organization of Chapters The thesis is divided in seven chapters. Chapter One provides an introduction and conceptual framework and discusses the thesis’ research methodologies and theoretical framework. Chapter Two examines three selected conflicts in Peru between Indigenous communities and multinational mining companies. It discusses the nature and degree of Indigenous communities’ rights violations caused by MNCs’ activities, the degree of responsibility of the state, the level of participation of affected Indigenous communities in decision-making mechanisms and their ability to access justice, as well as the effectiveness or ineffectiveness of domestic (the host states), international (the UN and OAS), and transnational (the home states of the corporations) legal jurisdictions for bringing justice and remedies to victims. Chapter Three provides a historical overview – within the global political economy -- of the volatile conflicts between Indigenous communities and MNCs, the encroachment on Indigenous communities’ lands and environment and their struggles and agency. Chapter Four examines Peru’s policies and legal framework that encourage and support foreign and private investment in the extractive industry which has affected negatively Indigenous communities’ rights. Chapter Five analyzes the emergence and location of both Indigenous peoples and multinational corporations in international law and the asymmetries and imbalances. Chapter Six discusses the evolving legal framework for multinational corporate responsibility and accountability through international human rights standards, and the potential dangers of assuming that international human rights law is the only, or the best strategy for                                                                                                                                                              Sarayaku v. Ecuador (2012). See The Mayagna (Sumo) Indigenous Community of Awas Tingni v. Nicaragua, Judgment of 31 August 2001, Inter-Am. Ct. H. R. (Ser. C) No. 79; Saramaka People v. Suriname, Judgment of Nov. 28, 2007, Inter-Am. Ct. (Ser. C) No. 172; and the Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment of June 27, 2012, Merits and Reparations, Serie C, No. 245. 31  promoting/protecting Indigenous peoples’ rights and aspirations. Chapter Seven provides some concluding remarks. 1.10 Conclusion Jean-Luc Nancy’s The Creation of the World or Globalization reflects on globalization and its impact on our being-in-the-world.80 It discusses globalization as ‘an unprecedented geopolitical, economic and ecological catastrophe’ that entails social disintegration, misery, and injustice.81 Yet, on the other hand, there is the possibility of an authentic world-forming, a ‘creation’ of the world which “maintains a crucial reference to the world’s horizon, as a space of human relations, as a space of meaning held in common, a space of significations or of possible significance.”82 Nancy understands such world -forming in terms of an inexhaustible struggle for justice.  In the name of a certain justice, the nihilism of globalization may be resisted.  The future of the world hangs in the balance. In the name of justice, Indigenous peoples who have been harmfully affected by MNCs’ extractive projects have defied and resisted the forces of globalization. By focusing on particular voices, in this case on “silenced” Indigenous voices and underlining the role of their organizations and struggles,83 the nihilism of globalization is challenged and resisted. The current Indigenous struggles and resistance, in more ways than one, deal with the frontier issues of our time: global and social justice, democracy, the environmental/ecological crisis and climate                                                  80 Jean-Luc Nancy, The Creation of the World or Globalization, translated by F. Raffoul and D. Pettigrew (Albany: State University of New York Press, 2007). 81 Ibid at 2. 82 Ibid at 2; see also Jean-Luc Nancy, After Fukushima: The Equivalence of Catastrophes, translated by C. Mandell (New York: Fordham University Press, 2015). 83 Stephen Gill, “Towards a Radical Concept of Praxis: Imperial ‘common sense’ Versus the Post-modern Prince,” in (2012) 40:3 Millennium: Journal of International Studies 505-524. 32  change, and human rights.84 The international community needs to hear the voices of Indigenous communities, “voices that break mirrors and open eyes,” as Bartolome Clavero points out,85 voices that claim justice, dignity and humanity.                                                  84 Jerry Mander, “Introduction: Globalization and the Assault on Indigenous Resources,” in Jerry Mander and Victoria Tauli-Corpuz, Eds., Paradigm Wars: Indigenous Peoples’ Resistance to Globalization (San Francisco: International Forum on Globalization, 2006) at 10. 85 Bartolome Clavero (2011), supra note 1 at 117. 33  Chapter 2: Study of Conflicts Involving MNCs and Indigenous and Peasants Communities in Peru To our father the creator Tupac Amaru: The bullets are killing; the machine guns are exploding the veins, Iron sabres are cutting human flesh; Here and in all parts; On the icy ridge of the hills of Cerro de Pasco, [Ancash, Cajamarca, and Piura…] In the cold plains, in the warm and hot coastal valleys, On the large living grass, between deserts… … Wait quietly, Listen quietly, Contemplate quietly this world, We are still here, we live  [We are] fine, rising up! (Jose Maria Arguedas, 1984)86  2.1 Introduction On September 1st, 2014, four Indigenous Ashéninka leaders from the community of Alto Tamaya-Saweto were shot and killed in a remote region of the Peruvian Amazon.87  Edwin Chota, one of the victims, the president of his community and a long time environmental advocate, had fought for the rights of Indigenous communities in the Amazon region.88 Since 2003, he had been working tirelessly to have the authorities grant his community formal title to their traditional lands in an effort to prevent incursions by loggers and private companies,                                                  86 Jose Maria Arguedas, “Tupac Amaru Kamaq Taytanchisman (Haylli – Taki)” / “A Nuestro Padre Creador Tupac Amaru (Himno – Cancion)” in J. M Arguedas, Katatay (Lima: Editorial Horizonte, 1984).  A bilingual Quechua-Spanish edition, edited by Sybila Arredondo de Arguedas. [Translated by the author]. 87 Andrea Zarate and William Neuman, “Peru Investigate the Killing of an Environmental Advocate,” in the New York Times, September 10, 2014, online: <http://www.nytimes.com/2014/09/11/world/americas/peru-investigates-the-killing-of-an-environmental-advocate.html?_r=0> (retrieved 30 April 2017). 88 Scott Wallace, “Quadruple Homicide in Peruvian Amazon Puts Criminal Logging in Spotlight,” in National Geographic, September 11, 2014, online: <http://news.nationalgeographic.com/news/2014/09/140911-peru-amazon-illegal-logging-chota-alto-tamaya/> (retrieved 30 April 2017). 34  without any positive outcome.89  Since 2005, Edwin Chota had been repeatedly submitting formal complaints to the police and judicial authorities about illegal incursions in his community’s lands and the threats and violence he had been receiving, without any results.90 Indigenous organizations severely criticized the police and judicial authorities for doing absolutely nothing to protect the four Indigenous leaders despite repeated complaints.91 Indigenous peoples and environmental activists around the world are being killed in record numbers trying to defend their land and protect the environment in the face of increased competition and conflicts over natural resources; major drivers are mining, agribusiness, logging, and hydropower.92 In order to discuss and illustrate the main arguments of the thesis, three conflicts involving MNCs and Indigenous communities in Peru have been identified and selected: a) Minera Barrick Misquichilca (Subsidiary of Barrick Gold Corporation, Canada) v. Pierina Mine Communities (Ancash) b) Minera Yanacochocha (Subsidiary of New Mont Mining Company, U.S.A.) v. Yanacocha Mine Communities (Cajamarca) c) Rio Blanco Copper (Subsidiary of Monterrico Metals, United Kingdom – China) v. Segunda y Cajas and Yanta Indigenous Peasant Communities (Piura).                                                  89 Beatriz Jimenez, “Vicepresidente de Ucayali blanquea madera de la tala ilegal, según Osinfor,” in La Republica, Lima October 2, 2014, online: <http://www.larepublica.pe/02-10-2014/vicepresidente-de-ucayali-blanquea-madera-de-la-tala-ilegal-segun-osinfor> (retrieved 30 April 2017). 90 AIDESEP, “No Queremos mas Sawetos, y la Solucion es Muy Simple: Titulacion de Comunidades Indigenas,” Pronunciamiento de la Comunidad Alto-Tamaya Saweto, online: <http://www.aidesep.org.pe/no-queremos-mas-sawetos-y-la-solucion-es-muy-simple-titulacion-de-territorios-indigenas/> (retrieved 30 April 2017). 91 Ibid. 92 Global Witness, “On Dangerous Ground: 2015’s Deadly Environment, the Killing and Criminalization of Land and Environmental Defenders Worldwide,” Annual Report, London, UK, June 2016. 35  The conflicts have been selected because they represent large-scale mining operations which are reported to have had serious impacts on Indigenous communities and have been associated with grave human rights violations. As affected Indigenous communities began to organize themselves to demand respect for their rights enshrined in the Constitution and international human rights instruments, the Peruvian State, corporate actors and mainstream media have accused them of blocking the growth and prosperity of the country, and called them “anti-mining terrorists.”93 Former President, Alan Garcia (2006 – 2011), has called Indigenous communities who have claimed their rights “barbarians, savages and backward people.”94  These kind of responses have had devastating consequences for the fundamental rights of affected Indigenous peoples, where defending and claiming their rights has become a matter of death and life, as it was the case for the Ashéninka leaders. According to the Global Witness report, Peru’s Deadly Environment, Peru is the world’s fourth most dangerous country to be a land or environment defender, after Brazil, Honduras and the Philippines.95  The report points out that at least 57 environmental activists, mostly Indigenous, have been murdered in Peru since 2002. This trend is rising, as 60 percent of those deaths occurred in the last four years. This is not only tolerated by the government, which has brought just one percent of those responsible for the                                                  93 El Comercio, “Shining Path and MRTA Aim to Direct Anti-Mining Protests? An Interview with Hernando De Soto,” El Comercio, Lima, 06 July 2015; Amnesty International, “Sacrificing Rights in the Name of Development: Indigenous Peoples under Threat in the Americas,” London, UK, 2011. 94 Rodolfo Stavenhagen, “Derechos Humanos y Ciudadanias Indigenas en America Latina,” in Sarah Albiez, Nelly Castro, Lara Jussen and Eva Youkhana, Eds., Ethnicity, Citizenship and Belonging: Practices, Theory and Spatial Dimensions (Madrid: Iberoamericana, 2011) at 122; Alan Garcia, “El Sindrome del Perro del Hortelano,” in El Comercio, 28 October 2007; “Receta para Acabar con el Perro del Hortelano,” in El Comercio, 25 November 2007; “El Perro del Hortelano contra el Pobre,” in La Republica, 2 March 2008, online: <http://www.justiciaviva.org.pe/userfiles/26539211-Alan-Garcia-Perez-y-el-perro-del-hortelano.pdf> (retrieved 30 April 2017) . 95 Global Witness, “Peru’s Deadly Environment: the rise in killings of environmental and land defenders,” London, UK, November 2014, online: < https://www.globalwitness.org/en/campaigns/environmental-activists/perus-deadly-environment/> (retrieved 30 April 2017). 36  crimes to justice; in the majority of the cases it is actually state-actors who have committed the crimes.96 The examination of the conflicts allow us to discuss the nature and degree of  violations of Indigenous communities’ rights caused by MNCs’ activities, the degree of responsibility of the State, the level of participation of affected Indigenous communities in decision-making mechanisms and their ability to access justice, as well as the effectiveness or ineffectiveness of domestic (host states), international (the UN and OAS), and transnational (home states of the corporations) legal systems for bringing justice and remedies to victims. The analysis of the conflicts reveals, on the one hand, the fragile and ineffective nature of the laws and regulations recognizing Indigenous peoples’ rights, particularly their lands, territories, health and environment. On the other hand, it reveals the strong and effective nature of the laws and regulations that promote, protect and guarantee the rights of corporate private investment in the extractive industry, particularly their property and contract rights, which are efficiently secured by police and courts. This asymmetric legal framework constitutes the source of oppression and contributes to the subjugation of Indigenous peoples and the immunity and impunity of MNCS. Chapter Two is divided into five sections. Section Two, Three and Four will analyse the three conflicts mentioned above. The study of each conflict will provide an introduction of the actors involved in the corporate and community conflict; it will also discuss the nature and scope of the conflict and violations of Indigenous communities’ rights, the contention and power imbalances between the MNC and the Indigenous Communities, and any domestic and international legal claims initiated by the affected communities and corporate actors. Section                                                  96 Ibid. 37  Five will provide a summary of the chapter’s main arguments, highlighting the common issues and insights arising from the examination of the three selected conflicts. It underlines particularly the volatile and complex context in which economic liberalization and foreign investment coexist with State repression and violence; the involvement of MNCs in furthering violence against Indigenous communities and violations of their fundamental rights; and the persistence of colonial legacies of racism and discrimination in the relationship of State and MNCs with Indigenous peoples, tending toward the social, regulatory and legal manipulation of Indigenous peoples and their potential claims and interests. 2.2 The Minera Barrick Misquichilca (Barrick Gold Corporation, Canada) v. Pierina Mine Communities (Ancash) On September 19, 2012, a peaceful protest of affected Indigenous communities against Minera Barrick Misquichilca’s massive open-pit gold and silver mine, which destroyed their water sources, was violently repressed by the Police. At least nine people were wounded, among them Nemesio Poma Rosales (55) who later died. According to media reports, relatives of the injured said that “Nemesio was taken alive to the Pierina mine medical post where he bled to death.”97  Minera Barrick Misquichilca’s Pierina mine began operating in the 1990s and was one of the first new foreign investments in the Peruvian mining sector in more than thirty years together with Antamina (owned by Canadian firms Rio Algom, Noranda and Teck Corporation) and                                                  97 Luis Manuel Claps, “Peru: Police Abuse in the Pay of Mining Companies,” in NACLA, December 16, 2013; Efrain Rosales and Liliana Rojas, “Un muerto y nueve heridos deja enfrentamiento en centro minero Pierina,” in La Republica, Lima, 21 September 2012, online: <http://www.larepublica.pe/21-09-2012/un-muerto-y-nueve-heridos-deja-enfrentamiento-en-centro-minero-pierina> (retrieved 30 April 2017); Human Rights Watch “Peru: Prevent Unlawful Killings of Protesters” September 20, 2012, online: <http://www.hrw.org/news/2012/09/20/peru-prevent-unlawful-killings-protesters> (retrieved 30 April 2017). 38  Yanacocha (owned by U.S. Newmont Mining Coporation). These constitute the biggest mineral operations (mega mines) constructed in Peru following the neoliberal reforms implemented by Alberto Fujimori’s regime in early 1990s. 2.2.1 The Actors in the Conflict The Minera Barrick Misquichilca Minera Barrick Misquichilca (MBM) is a wholly owned subsidiary of Toronto-based Barrick Gold Corporation (Barrick). Barrick is currently the world’s largest gold producer with interests in 27 operating mines and development projects in 10 countries on four continents.98 As government regulations in North America were becoming onerous, by the spring of 1994, Barrick shifted its interest to South America.99 Peter Munk, Barrick’s founder and chairman, became acquainted with the key countries in Latin America and their presidents (Chile, Argentina and Peru) thanks to Brian Mulroney, former Canadian prime minister who had been brought onto Barricks’ international advisory board in early 1993.100 Munk was aware of the radical shift underway in Latin America’s economic policies which were opening up their economies to foreign capital.101  He was very optimistic about Barrick’s business prospects in the continent.  In the fall of 1995, speaking at the Society of the Americas’ meeting in New York, Munk pointed out, “an enormous shift has taken place over the past ten years in the affairs of our                                                  98 About Barrick Gold Corporation, online: <http://www.barrick.com/company/default.aspx> (retrieved 30 April 2017). 99 Donald Rumball, Peter Munk: the Making of a Modern Tycoon (Toronto: Stoddart Publishing Co., 1996) at 17. 100 The other members of Barrick’s international advisory board were: Peter Munk, Andronico Luksic, Vernon Jordan, Howard Baker, Dr. Karl Otto Pohl, Paul Desmarais, Jose Rohm, Bob Smith, and former U.S President George Bush (Sr.) Ibid at 13-17. On March 2015, Barrick hired former Canadian foreign affairs minister John Baird and former Republican speaker of the U.S. House of Representatives Newt Gingrich to serve on its international advisory board. See Rachelle Younglai, “Barrick Gold hires John Baird, Newt Gingrich,” the Globe and Mail, 27 March 2015, online: < http://www.theglobeandmail.com/report-on-business/industry-news/energy-and-resources/barrick-boosts-chairman-john-thorntons-pay-package/article23675413/ > (retrieved 30 April 2017). 101 Donald Rumball, supra note 99 at 17. 39  hemisphere…the fundamental change from the rhetoric of poverty-driven socialism, from the bankrupt ideas of Marxism, to the fabulous emergence of free enterprise, democracy, and all the things which we stand for, we believe in…”102 By 1994, Barrick’s subsidiary MBM was established in Peru and has been dedicated to the production and sales of gold; it also supports related activities such as exploration, development, mining and processing. MBM currently operates two mining projects in Peru: Pierina mine (acquired in 1996) in Ancash region and Lagunas Norte in La Libertad region. MBM began operations in Pierina in 1998 and became Peru’s second largest gold producer, after U.S Newmont’s Yanacocha mine. According to Barrick's former president and CEO, Aaron Regent, “Peru, in particular, has been a motor of development for the corporation,”103 and Pierina became “one of the lowest cost mines in the world and one of Barrick’s most profitable.”104 Barrick, under the protection of a legal (tax) stability contract (signed during the Fujimori regime), is exempted from paying royalties and corporate taxes.105 Pierina is an open-pit, truck-and-loader operation. Closure activities were initiated at Pierina in August 2013.106                                                  102 Ibid at 18. 103 Matthew Himley, “Global Mining an Uneasy Neoliberalization of Sustainable Development,” in (2010) 2 Sustainability 3270 at 3277. 104 Barrick 1999 Annual Report at 21, online: < http://www.barrick.com/files/annual-report/Barrick-Annual-Report-1999.pdf> (retrieved 30 April 2017). 105 Legal stability contracts that provide tax exemption to companies were introduced by Fujimori government with the aim of promoting foreign investment. A section of the law (1992 mining law) enabling mining companies to sign contracts allowing reinvesting up to 80 percent of their profits tax-free was modified in 2000. But the existing legal stability contracts remained in place, for they are protected by the 1993 Constitution (Art. 62) which prescribes that Contract-Laws can only be modified by agreement between the parties, and they cannot be modified by any legislative act or law. Eleven of the biggest corporations in Peru, including Xstrata, Teck Cominco, Newmont and Barrick Gold, are still benefiting from tax exemption. See Humberto Campodonico, “Recursos Naturales, Decada Perdida y Politica Macro,” in La Republica, 09 February 2015, online: < http://larepublica.pe/columnistas/cristal-de-mira/recursos-naturales-decada-perdida-y-politica-macro-09-02-2015> (retrieved 30 April 2017); Emilie Lemieux, Mining and Local Development: challenges and perspectives for a fair and socially inclusive sustainable development in Canadian mining zones in Peru, SUCO – Cooper Accion, June 2010 at 17. 106 See Barrick Gold Corporation, Annual Information Form, 31 March 2014 at 14, 17, online: <http://www.barrick.com/files/agm/Barrick-AIF-2013.pdf > (retrieved 30 April 2017). 40  Indigenous / Peasants Communities (Jangas District, Ancash Region)  The area and lands where the Pierina mine is located belong to Quechua-speaking Indigenous peasant communities. These communities live in social and political marginalization, with a high percentage of malnutrition of their population, without potable water, sewage and electricity.107 According to Himley, Pierina mine’s area of influence is made up of about eighteen peasant communities who have been affected by the mining operation. MBM considers eleven of these communities, in general the ones closest to the mine project, to be within its “direct” area of influence, and the others within its “indirect” area of influence.108 In addition to Indigenous – peasant communities, there are a variety of settlement types within the area, including villages, and small towns. The majority of inhabitants of these settlements are Quechua speakers and their main activities are agriculture (small-scale farming) and livestock raising (sheep and cattle).109 2.2.2 Nature and Scope of the Conflict and Violations of Indigenous Rights The main sources of social conflict between MBM and the communities surrounding Pierina mine have been the stark differences between the expectations and interest of the company and the communities, the negative impacts of mining on communities’ land and water sources, and the encroachment on communities’ rights. In addition, communities believe that the State and local governments monopolized the decision-making process and power over mining concessions and contracts and that there is no meaningful participation and consultation of                                                  107 Coordinadora Andina de Organizaciones Indígenas – CAOI, Minería Canadiense en el Perú: Vulneración de derechos y conflictos sociales, Barrick en Ancash, June 22, 2011, online: <http://alainet.org/active/47522&lang=es> (retrieved 30 April 2017). 108 Matthew Himley, “Regularizing Extraction in Andean Peru: Mining and Social Mobilization in an Age of Corporate Social Responsibility,” in (2013) 45:2 Antipode 394, at 403. 109 Ibid at 403 and 406; Coordinadora Andina de Organizaciones Indígenas – CAOI, supra note 107. 41  affected communities, and they also have the perception that the expansion of mining projects is not subject to control and regulation.110 While the company expected to have low operating costs and higher financial benefits, the communities had very high expectations regarding social and economic benefits that a mining project would bring to their residents. Communities’ expectations were reinforced by MBM promises during the company-community negotiations over land transfer.  According to affected communities, promises of social development support, in areas like health, education, infrastructure and agricultural improvement, made by MBM during these negotiations were strong incentives for Indigenous communities to sell their lands.111  Other incentives included the monetary proceeds deriving from the sale and the hope for employment at Pierina, which Indigenous residents recalled that MBM officials suggested, would be available for them at Pierina mine.112 Yet, more than a decade later, as Himley argues, the social-development expectations of many community residents had not been met.113   High levels of dissatisfaction and frustration are perceived among affected Indigenous communities, who have been displaced and or dispossessed from their lands.114 Indigenous communities have denounced serious problems of water contamination and water scarcity as a result of the mining operation which caused forced migration and                                                  110 Coordinadora Andina de Organizaciones Indígenas – CAOI, supra note 107. 111 Matthew Himley (2010), supra note 103 at 3281. 112 Ibid. 113 Matthew Himley, “Mining History: Mobilizing the Past in Struggles over Mineral Extraction in Peru,” in (2014) 104:2 Geographical Review 174 at 185-186. 114 Julio Lopez Mas and Pablo Condori Luna, “Gran Mineria Aurifera y sus Repercusiones en el Desarrollo Economico Local," in Gestión en el Tercer Milenio, Rev. de Investigación de la Fac. de Ciencias Administrativas, UNMSM, Vol. 9, Nº 18, Lima, Diciembre 2006 at 24; Limberg Chero Senmache, El Otro Caso Barrick (Lima: PLADES, 2009). 42  displacement.115 MBM’s open-pit technique and the use of cyanide heap leaching has vastly increased social and environmental impacts on Indigenous lands and environment, for it requires an increased quantity of land, water and energy and generates higher volumes of waste and toxic substances such as arsenic, cadmium, selenium, lead and mercury.116 Journalists who reported health and contamination issues affecting Indigenous residents around the mining area have been harassed and received death threats.117 MBM’s operation has also generated increasing disagreements and conflicts within communities and between communities.118 The source of many of these conflicts and disagreements is the dilemma of improving their living or defending their environment and lands. For some communities and some members, despite the negative impacts of mining projects, the projects seem to become the only option for improving their wellbeing. Social and economic marginalization and lack of government’s investment in affected communities make the mining projects, coupled with MBM’s corporate social responsibility programs (community development projects), hard to refuse and the only choice for improving their precarious lives. 2.2.3 Contention and Power Imbalances between MBM and Indigenous Communities Whereas MBM (with the support of host and home States) has carried out a series of                                                  115 Julio Lopez Mas and Pablo Condori Luna, supra note 114 at 24; Matthew Himley, “Monitoring the impacts of extraction: science and participation in the governance of mining in Peru,” in (2014) 46 Environmental and Planning A 1069, at 1075; Sakura Saunders, Ed., Debunking Barrick, ProtestBarrick.Net, April 2013 at 10-11, online: <http://protestbarrick.net/downloads/DebunkBarrick-Report_fnl_web_single.pdf> (retrieved 30 April 2017). 116 Ricardo Grinspun, Carlos Larrea and Liisa North, “Post-neoliberalism in Latin America: Continuities and discontinuities in regimes of extraction,” in Kalowatie Deonandan and Michael L. Dougherty, Eds., Mining in Latin America: Critical approaches to the new extraction (New York: Routledge, 2016) at 63; Anthony Bebbington, “Water and Mining Conflicts in Peru,” in (2008) 28: 3-4 Mountain Research and Development 190-195. 117 Tribunal a la Mineria Transnacional: el caso de Barrick Gold Corporation en Latinoamerica (Chile, Peru y Argentina), “Argumentos para la Acusacion en el Tribunal a la Mineria Transnacional,” 25 November 2006, online: <http://www.olca.cl/oca/chile/region03/cargos_a_barrick.pdf> (retrieved 30 April 2017).  118 Julio Lopez Mas and Pablo Condori Luna, supra note 114 at 24; Matthew Himley (2014), supra note 113 at 184-186. 43  community-level development initiatives as a part of its Corporate Social Responsibility (CSR) program aimed at obtaining a ‘social license’ and legitimizing the mining operation, affected Indigenous communities have undertaken a variety of measures, including protest, to hold MBM accountable for its social development promises during the land acquisition, and to demand remedies for Pierina mine’s adverse impacts on their land and water sources. Barrick Gold has positioned itself as a driver of sustainable development and as a modern, socially and ecologically responsible mining company that respects human rights.119 As Barrick’s Vice President and Assistant General Counsel, Jonathan Drimmer, points out, [O]ur priority is to ensure that Barrick, and any entity that works on our behalf, respects the human rights of stakeholders impacted by our operations…The protection and respect of human rights and upholding the rule of law should be at the forefront of the global agenda, with companies, governments, civil society, and citizens working together toward that goal. Everyone gains when human rights are respected…For companies, it reduces the risk of disruptions to business, as well as the risk of reputational damage and lawsuits, and it upholds what should be core values for every multi-national.120 MBM has carried out a series of development projects involving primarily Indigenous communities that sold their lands to MBM. Among the projects are a temporary and rotational work program, stockbreeding and agricultural production, reduction of child poverty and                                                  119 In 2012, Barrick established its Corporate Social Responsibility Advisory Board, which acts as an external sounding board on a range of corporate responsibility issues, including community relations, sustainable development, water, energy, climate change, security and human rights. The Board members includes Aron Cramer, Robert Fowler and Gare Smith. John Ruggie, former UNSR on Business and Human Rights, serves as a Special Consultant to the Board. Barrick’s CSR Advisory Board, online: <http://www.barrick.com/responsibility/our-approach/csr-advisory-board/default.aspx> (retrieved 30 April 2017). 120 Jonathan Drimmer, “BLOG: A Passion for Respecting Human Rights,” November 5, 204, online: <http://barrickbeyondborders.com/blog/2014/11/a-passion-for-protecting-and-respecting-human-rights/> (retrieved 30 April 2017). 44  malnutrition (in partnership with NGO World Vision),121 and reforestation, entrepreneurship and agro-forestry (in partnership with NGO Socodevi and Canadian International Development Agency (CIDA), and Canadian and Peruvian governments).122 The Canadian government has demonstrated particular interest in Peru's mining sector and supported Barrick. From 1998 - 2012, CIDA financed ($17.7 million) the Peru-Canada Mineral Resources Reform Project (PERCAN), that aimed to provide technical assistance and technological support to Peru’s Ministry of Mines and Energy, and to reduce conflicts and facilitate the establishment of new mines.123 According to a report submitted to the Inter-American Human Rights Commission, “PERCAN served as the platform for advising Peru on the implementation of mining sector regulations.”124 On May 2013, Prime Minister Harper visited Peru and announced his government’s support for Peru’s efforts to improve the environmental impact assessment process for mining and energy projects as well as support for natural resource management.125 Days after the visit, the executive branch of Peru issued two supreme decrees (Decretos Supremos 054-2013 and 060-2013) to facilitate investments, further                                                  121 Barrick Beyond Borders, online: <http://barrickbeyondborders.com/people/2009/09/world-vision-update-4,000-children-and-families-in-peru-receive-help-to-defeat-poverty/#.VPEhGk1TG1s> (retrieved 30 April 2017). 122 In early 2013, CIDA was abolished as an independent agency by Canada’s Harper government. This agency was incorporated into the Ministry of Foreign Affairs and International Trade where it is subject to commercial economic interests of Canada. CIDA has been increasingly subsidizing CSR initiatives and projects in Peru, in partnership with NGOs and Peruvian government, particularly in regions where Barrick and other Canadian companies operate. CIDA- Peru – International Development Projects, online: <http://www.acdi-cida.gc.ca/cidaweb/cpo.nsf/fWebCSAZEn?ReadForm&idx=00&CC=PE> (retrieved 30 April 2017). 123 Bonnie Campbell, Etienne Roy-Grégoire and Myriam Laforce, “Regulatory Frameworks, Issues of Legitimacy, Responsibility, and Accountability: Reflections Drawn from the PERCAN Initiative” in Julia Sagebien and Nicole M. Lindsay, Eds. Governance Ecosystems: CSR in the Latin American Mining Sector (New York: Palgrave MacMillan, 2011) at 84; Project profile: Peru-Canada Mineral Resources Reform Project (Percan), online: <http://www.acdi-cida.gc.ca/cidaweb/cpo.nsf/vWebCSAZEn/EC9BECACB9F82869852572F70037148D> (retrieved 30 April 2017). 124 Working Group on Mining and Human Rights in Latin America, “The impact of Canadian Mining in Latin America and Canada’s Responsibility” Executive Summary of the Report submitted to the Inter-American Commission on Human Rights, April 2014 at 27. 125 Canada-Peru Joint Statement, 22 May 2013, online: < https://www.canada.ca/en/news/archive/2013/05/canada-peru-joint-statement.html> (retrieved 30 June 2017). 45  relaxing the legal frameworks applicable to extractive industries, especially mining.126 Canadian government’s involvement in supporting Barrick has been revealed by a WikiLeaks document, which indicates a meeting of ambassadors and mining company executives from the United States, Canada, Great Britain, Switzerland and South Africa, hosted by the Canadian and US ambassadors in Lima in August 2005. Participants (among them the directors of Barrick, Antamina, Yanacocha, BHP Billiton and Quellaveco) discussed the possibility of encouraging Peru’s government to relocate teachers opposed to mining away from conflict areas and persuading the Catholic Church to relocate similarly critical bishops and priests. Following the ambassadors’ meeting, Peruvian government harassment and persecution of mining industry critics increased noticeably.127 As Himley argues, “despite the unambiguously idyllic picture of its social development programs that the firm presents in its public relations documents, many residents expressed frustration regarding what they considered to be a lack of development support from the firm;”128 as well as regarding the environmental impact on their land and water and unfair labour practices associated with the mine.129 MBM Director of Corporate Affairs’ comments on Peru’s Law on the Right to Prior Consultation to Indigenous or Native Peoples does not help to mitigate the sentiment of affected communities. He points out that the law on prior consultation is aimed only to consulting with Amazonian native communities and not Andean peasant communities, as they                                                  126 Sociedad Peruana de Derecho Ambiental (SPDA), “Señalan que decretos 054 y 060 atentan contra el medio ambiente, patrimonio arqueológico y consulta previa,” in SPDA Actualidad Ambiental, 8 July 2013, online: <http://www.actualidadambiental.pe/?p=19556> (retrieved 30 April 2017). 127 Liisa North and Laura Young, “Generating right for communities harmed by mining: legal and other action,” in (2013) 34:1 Canadian Journal of Development Studies 96 at 105; Jose De Echave, “Peru: Embajadas, Empresas Mineras y Embajadas,” CooperAccion, Lima, 2 February 2011, online: <http://www.cooperaccion.org.pe/opina/43-cooperaccion-opina/282-peru-wikileaks-empresas-mineras-y-embajadas> (retrieved 30 April 2017). 128 Matthew Himley (2010), supra note 103 at 3283-3284; Matthew Himley (2014), supra note 113 at 184-186. 129 Lopez Mas and P. Condori Luna, supra note 114 at 24-25; M. Himley (2013), supra note 108 at 395. 46  already enjoy privileges through various regulations. He also stressed that the “ILO Convention 169 is not the only instrument to regulate the relations between the company and the Indians.”130 The first regional protests against MBM took place in March and June 2005 over the issue of environmental pollution caused by the Pierina mine operation, and a controversial Tribunal Tax decision (September 2004) that waived a $141 million tax payment (plus $51 million in interest for the 1996-2003 period) levied on MBM by Peru’s tax authority SUNAT.131 This ruling is related to an alleged tax evasion issue involving Barrick during a simulated merger in 1996 of two of its own subsidiary companies to gain tax deductions.132 According to Quiroz, Barrick’s tax evasion scheme was possible due to the fiscal mismanagement characteristic of the corrupt Fujimori regime, and it was part of the larger issue of corrupt economic policy management, including crooked privatization and banking rescue schemes executed by key finance ministers linked to private and foreign interests.133 In May 2006 members of 18 affected Indigenous communities protested, blockading access roads to the Pierina mine and demanding a salary increase and changes to unfair labour practices associated with the short-term work programs at the mine. Two members of the                                                  130 Diario Gestion, “Barrick remarca: Consuta previa es para indigenas nativos,” in Diario Gestion, Lima, 4 November 2011, online: <http://gestion.pe/noticia/1328363/barrick-remarca-consulta-previa-indigenas-nativos> (retrieved 30 April 2017). 131 Coordinadora Andina de Organizaciones Indígenas – CAOI, supra note 107. 132 Alberto Quimper Herrera, “El Caso Minera Barrick,” in La Republica, 5 June 2003, online: <http://www.larepublica.pe/05-06-2003/el-caso-minera-barrick> (retrieved 30 April 2017); Peruvian Congress, Informe Ampliatorio del Caso Pierina, Lima, July 2003, online: <http://www4.congreso.gob.pe/historico/ciccor/infofinal/barrick120.pdf> (retrieved 30 April 2017). 133 Alfonso W. Quiroz, Corrupt Circles: A History of Unbound Graft in Peru (Washington D.C. / Maryland: Woodrow Wilson Center Press / Johns Hopkins University press, 2008) at 397. 47  community were shot dead by the police and twenty persons were seriously injured, among them some policemen.134 In April 2007, several Indigenous communities mobilized against MBM’s exploration of the Condorhuain Mountain area, which contains dozens of water sources that are essential for their consumption and agriculture. As they were protesting, they were attacked by other community members, allied to MBM, supported by members of the national police. In the same month, April 2007, social, labor and environmental organizations organized a 48 hours regional strike to protest against MBM and Antamina mining operations in the region. A 19 year old demonstrator was killed by the police, thirty people were detained, and a woman died of a heart attack after the police tear-gassed protesters.135 In December 2009 and March 2010, affected Indigenous communities occupied roads leading to Pierina mine to demand MBM comply with a series of its promises and commitments such as fair payment for effects on community common properties, and a compensation for the use of community lands.136 The latest large protest against MBM’s Pierina mine took place in September 2012, when Indigenous communities protested over a water shortage as a result of the                                                  134 As part of its corporate social responsibility and social development agenda, Barrick carried out a temporary and rotational work initiative through which residents of nearby communities were hired to work on canal construction and reforestation on a short-term basis―typically for three months per year. The hiring occurred through intermediary companies which usually privileged and favored some communities at the expense of others. Matthew Himley (2010), supra note 103 at 3282-3284; La Republica, “Barrick Gold Mining Conflict Leaves Two Dead in Perú,” in La Republica, May 7, 2006, online: <http://www.minesandcommunities.org/article.php?a=3184> (retrieved 30 April 2017). 135 Corpwatch, “Barrick’s Dirty Secrets: Communities worldwide respond to gold mining’s impacts,” May 2007, online: <http://s3.amazonaws.com/corpwatch.org/downloads/Barrick_final_sml.pdf> (retrieved 30 April 2017).  136 Servindi, “Peru: Comuneros advierten aumento de protestas contra Barrick,” in Servindi, 28 December 2009, online: <https://www.servindi.org/actualidad/20814> (retrieved 30 April 2017); Diario La Primera, “Comuneros se enfrentan a Barrick,” Lima, 23 March 2010, online: <http://www.diariolaprimeraperu.com/online/nacional/comuneros-se-enfrentan-a-barrick_59125.html> (retrieved 30 April 2017). 48  destruction of their water sources; at least nine people were wounded, among them Nemesio Poma who later died at Barrick’s Pierina mine medical post.137 2.2.4 Domestic and International Legal Claims Peru’s ineffective judicial remedies have prevented Indigenous communities, whose rights have been infringed by MBM’s mining projects, from obtain declarations of liability, penalties for violations and damage caused, and reparations.138 This is aggravated by significant barriers that Andean Indigenous communities confront in their interactions with the wider sociopolitical sphere, including unfamiliarity with the legal and institutional system, lack of access to the press and to “scientific knowledge”, limited financial capacity, and racism, discrimination and language barriers as the majority of their members are Quechua speakers.139 In addition, MBM’s leverage, capacity and excellent CSR programs and community relations approach to effectively mitigate and manage conflicts with affected communities140 have played a key role in preventing communities from making legal claims. As Lemieux argues, mining companies began promoting CSR programs in Peru towards the end of the 1990s, in the hopes of offsetting the obvious unrest that was taking place, which manifested itself as protest by the local communities.141 MBM established a communication team and a community-relations team who are based at the mine site. These teams are each composed of approximately ten members, both men and women; they are Peruvian nationals, usually not from the region, with                                                  137 Efrain Rosales and Liliana Rojas, “Un muerto y nueve heridos deja enfrentamiento en centro minero Pierina,” in La Republica, Lima, 21 September 2012, online: <http://www.larepublica.pe/21-09-2012/un-muerto-y-nueve-heridos-deja-enfrentamiento-en-centro-minero-pierina> (retrieved 30 April 2017). 138 Working Group on Mining and Human Rights in Latin America, “The impact of Canadian Mining in Latin America and Canada’s Responsibility” Executive Summary of the Report submitted to the Inter-American Commission on Human Rights, April 2014 at 23. 139 Matthew Himley (2013), supra note 108; Matthew Himley (2014), supra note 115. 140 Fiorella Triscritti, “Mining, development and corporate-community conflicts in Peru,” in (2013) 48:3 Community Development Journal 437- 450. 141 Emilie Lemieux (2010), supra note 105 at 9. 49  degrees in humanities such as sociology, anthropology and conflict management; they work in close partnership with local communities to identify their needs, attend to any issue they might raise and jointly manage development programmes. To monitor community grievances, Barrick uses a mechanism that it calls the ‘Community Grievance Management Resolution Procedures’ (CGMRP). The CGMRP defines the generic process (identification, tracking and redress) used to manage grievances from communities and other local stakeholders.142 As Coumans points out, mining companies seek partnership with anthropologists, development organizations and socially responsible investment companies to help secure a so-called social license to operate and manage risk reputation; these corporate engagement actors define the problems to be addressed and implement solutions that may impede the agency of affected communities, providing information and advice  regarding the communities to the company, lending legitimacy to CSR programs and “remaining silent about the environmental and human rights abuses to which they become privy.”143 In fact, CSR programs (community and social development projects) have become mechanisms of collaboration through which companies involve affected Indigenous communities and contribute to the making of mining’s new modern subject, the homo oeconomicus, the neo-liberal subject, which is responsible, self-disciplined, environmenta