Human Rights Trade-Offs in a Context of “Systemic Lack of Freedom”: The Case of the Smelter Town of La Oroya, Peru

Abstract

This article offers an analytical account of the human rights trade-offs faced by residents of La Oroya, Peru. The community is confronted with the dilemma of having to sacrifice its human right to health in order to preserve job opportunities at the town's smelter, which is the main source of environmental pollution. The article demonstrates how traditional mechanisms to assess human rights trade-offs fail to fully assess the predicament of the La Oroya community and offers an alternative analytical lens titled a “Human Rights Systemic Model.” By applying this model, this article reveals how a constellation of institutional, social, environmental, and personal factors structure a context of systemic lack of freedom in La Oroya. In particular, the article explains how such a context creates the fundamental conditions for the La Oroya community members to forfeit their own rights and how it diminishes people's agency to collectively defend their human rights.

Acknowledgements

I want to express my gratitude to Martin Scurrah, Lisa Laplante, Severine Deneulin, Helena Degratsi, and two anonymous readers for their comments and suggestions on an earlier version of this article. I would also like to express my deep appreciation to the research participants, especially to members of the community of La Oroya, for sharing their valuable experiences that provided the essence of this study.

Notes

¹By extractive industry, this article refers to activities that involve the exploration, exploitation, and/or refinement of minerals, oil, and natural gas.

²According to the December 2013 Report on Social Conflicts from the Peruvian Ombudsman Office, there were 139 socioenvironmental conflicts from which 104 cases are conflicts related to mining activities, and 17 cases are related to hydrocarbon projects (exploration, development, production phase). These conflicts often illustrate a tension between communities, private companies, and the state over the control, use, or access to land, natural resources, and the protection of the environment. Inherent in these conflicts are also social, economic, and cultural components.

³Although, as discussed in this article, the environmental health problems of La Oroya trace back to the beginning of the last century, the entry point for this study is the recent socioenvironmental conflict, which peaked between the years 1999 to 2009.

⁴In 2006 and 2007, the Blacksmith Institute Annual report named La Oroya as one of the most polluted places on earth.

⁵Although the defense of the right to work in La Oroya best illustrates demands of employment stability to secure wages for subsistence, this article opts to label the conflict in La Oroya as one of health versus work rather than employment given that in the human rights literature the convention is to talk about the “right to work.” That includes, but is not exclusively limited to, safeguards for employment opportunities (Mundlack 2007).

⁶See, for example, Pajuelo (2005), Spieler (2010), and FIDH-Peru (2012).

⁷In the 1990s, The General Mining Law (3 June 1992) approved by Supreme Decree 014-92-EM (3 June 1992) established that new investments in this sector were subject to “environmental impact assessment studies” (EIA) prior to permission being granted to start activities, whereas old operators, like the La Oroya smelter, were subject to the “Environment Management and Mitigation Plan” (PAMA, 1993) for progressive compliance with new legal standards.

⁸At the time of Doe Run operations, the maximum permissible levels of toxic elements in gaseous emissions and liquid effluents from mining-metallurgic activities were approved by Ministerial Resolution No. 315-96-EM/VMM (Maximum Permissible Levels of Toxic Elements in Gaseous Emissions from Mining-Metallurgic Activities 19 July 1996) and Ministerial Resolution No. 011-96-EM/VMM (Maximum Permissible Levels of Liquid Effluent in Mining-Metallurgic Activities 13 January 1996), respectively. Later, in 2001, Supreme Decree No. 074-2001-PCM (Regulations on National Standards for Air Quality 24 June 2001) established national standards for air quality.

⁹This includes international nongovernmental organizations (NGOs) such as Oxfam Americas, Earthjustice, AIDA-Americas, Christian groups such as Joining Hands, and, at the local level, NGOs such as Cooperaccion.

¹⁰There is an ongoing debate within the capability approach literature regarding what type of “valuable” capabilities should be promoted and protected as part of a just society. For Amartya Sen (2009), this determination should be the result of a democratic process of public reasoning. Martha Nussbaum (2011), by contrast, proposes an open-ended list of capabilities that should be recognized in national constitutions. This includes life, bodily integrity, sense, imagination and thought, emotions, practical reason, affiliation, other species, play, and control over one's environment.

¹¹The authors cited propose to complement the ethical individualistic focus of the capability approach with a major engagement of a contextual/structural evaluation that includes an analysis of the role of collective capabilities in the expansion of individual ones.

¹²In order to be all-encompassing and responsive to the diverse claims and voices existing in this community, 61 semi-structured interviews were conducted with three subgroups of residents of La Oroya: those who publicly advocate for the defense of environmental health (18 participants); those who are/were involved in the defense of job opportunities at the La Oroya smelter (13 participants); and those embracing a moderate stance (15 participants) without any particularly involvement or activism favoring either of these two groups. An additional 15 open-ended interviews were also conducted among human rights activists and governmental officials involved in decision-making processes related to the La Oroya case. Interviews were carried out in La Oroya and Lima, Perú, from October to December 2010. In some cases, to protect the anonymity of participants, names where replaced by codes such as MC (member of the community) or FP (public functionary).

¹³Legislative Decrees No. 757 (General Law for the Promotion of Private Investment 13 November 1991) and No. 662 (General Law Granting Legal Guarantees to Private Investors 2 September 1991) were, together, the cornerstone that provided legal stability to foreign private investment. Among the benefits reported were the efficiency of administrative procedures for the approval of investments, availability and free transfer of foreign monetary exchange, equal treatment under the law of national and foreign investment, and, most importantly, the signing of tax stability agreements. In addition, the Constitution of 1993 came to consolidate the idea of minimal state intervention in the economy under the “subsidiary principle” (Article 38). According to this principle, the Peruvian state is forbidden to develop any entrepreneurial activity, such as the direct exploitation of natural resources, unless authorized by Peruvian law in cases of manifest national interest.

¹⁴See, for example, the discussion about the privatization of La Oroya smelter in the Parliamentary Report to Implement the Recommendations of the Committees Investigating Acts of Corruption Perpetrated during the Government of Former President Alberto Fujimori (1990-2001) (2003).

¹⁵Del Castillo's intervention was directly related to the lawsuits filed in the Circuit Court of the State of Missouri against Doe Run/the Renco Group to legally respond to health damage suffered by 107 children from La Oroya.

¹⁶The argument that extractive-led development will benefit local communities by enhancing job opportunities is a recurrent one, even though, in practice, the industry only contributes to 1% of the economically active population in the country (see Sotelo and Francke 2011).

¹⁷According to Supreme Decree No. 007-2012-TR, the basic wages for Peruvian workers subject to the private labor regimen is set at S/. 750.00 soles per month (approximately US $268). It should be noted that La Oroya is composed of a great number of independent merchants and business people, whose incomes may or may not be close to those of smelter workers, which report an average of S/. 3,500 soles per month (approximately US $1,250). Notwithstanding, smelter workers have job stability and social benefits (e.g., health care, unemployment insurance, and a pension plan, etc.), which independent workers and merchants do not easily have access to.

¹⁸Interview with MC 12 (13 November 2010), La Oroya, Peru.

¹⁹Interview with MC 39 (2 December 2010), La Oroya, Peru.

²⁰Interview with FP01, public functionary at the Ministry of Labour (15 October 2010) Lima, Peru.

²¹The following interviewees provided testimonies in this line: Interview with MC 26 (16 November 2010), La Oroya, Peru; Interview with Juan Aste, former adviser, Committee on Mining, the Environment and Indigenous Affairs, Peruvian National Congress (29 October, 2010) Lima, Peru; Interview with Raul Chacon, Sociologist and Media Communicator, former member of the technical group of the MOSAO (12 December 2010), Lima, Peru; Interview with Hugo Villa, physician and former president of the technical group of the MOSAO (6 November 2010), Lima, Peru.

²²These findings were made apparent from the interview questions related to the participants’ current work situation. Only 12 out of 25 female participants reported having paid jobs or owning businesses. Six of these participants are single and one is a single mother. This trend seems to suggest that being a married woman in La Oroya likely limits the possibility of developing a career or maintaining a full-time paid job.

²³Interview with MC 19 (14 November 2010) and Interview with MC 42 (16 December 2010), La Oroya, Peru.

²⁴Interview with MC 42 (16 December 2010), La Oroya, Peru.

²⁵Since June 2009, the company has suspended its smelting activities, claiming ongoing financial problems. Doe Run's principal creditors in Peru filed a local bankruptcy proceeding against the company. As a result, the “Right Business S.A” company was named by the creditors’ meeting as the temporary administrator.

²⁶Interview with MC 25 (15 November 2010), La Oroya, Peru.

²⁷This information was also confirmed by the following interviews: Interview with MC 30 (17 November 2010); Interview with MC 14 (13 November 2010); Interview with MC 8 (27 November 2010), La Oroya, Peru.

²⁸The following interviews also confirmed this affirmation: MC1 (22 October 2010); MC 6 (27 October 2010), MC12 (13 November 2010); MC16 (13 November 2010), MC24 (15 November 2010), MC 33 (30 November 2010) and MC 34 (30 November 2010).

²⁹Interview with MC 47 (20 December 2010), La Oroya, Peru.

³⁰To elaborate this assertion, I draw on the following interviews: Interview with MC 1 (22 October 2010); Interview with MC 11 (8 November 2010); Interview with MC 18 (14 November 2010); Interview with MC 21 (15 November 2010); Interview with MC 26 (16 November 2010); Interview with MC 30 (17 November 2010); Interview with MC 35 (1 December 2010), La Oroya, Peru.

³¹Interview with MC 21(15 November 2010); Interview with MC 3 (27 October 2010); Interview with MC 13 (13 November 2010); Interview with MC 15 (13 November 2010); Interview with MC 23 (15 November 2010); Interview with MC 31 (28 November 2010), La Oroya, Peru.

³²Interview with MC 38 (2 December 2010) and Interview with MC 39 (2 December 2010), La Oroya, Peru.

³³Interview with MC 26 (16 November 2010) and Interview with MC35 (1 December 2010), La Oroya, Peru.

³⁴See, for example, “Peru: un pais minero lleno de oportunidades.” Peruvian Ministry of Energy and Mines. [Online]. Available: http://www.minem.gob.pe/_detalle.php?idSector=1&idTitular=159&idMenu=sub149&idCateg=15 [28 December 2013].

Additional information

Notes on contributors

Arelí Valencia

Arelí Valencia is the 2013–2014 Gordon F. Henderson Postdoctoral Fellow in the Human Rights Research and Education Centre (HRREC) at the University of Ottawa.