Environmental, Natural Resources, & Energy Law Blog
Orinoco’s Mining Arc: An environmental crime with global effects - Luis Palacios
Orinoco’s Mining Arc: An environmental crime with global effects
Luis Palacios LLM Student
The recent years have been marked by a growing concern among people about environmental conservation, and although in many cases this concern is not transformed into action, it is quite unlikely that countries like the United States will allow the creation of an open-pit mining project with an area larger than the size of the state of Virginia or Indiana. Nor does it seem likely that the European Union would allow such a project in an area similar to Austria, Switzerland or Portugal. Unfortunately, a project of this magnitude is taking place without any environmental supervision and is affecting the Amazon and the third largest river in the world by volume, which is a paramount reservoir of the limited fresh water on the planet.
We are talking about the Orinoco Mining Arc (OMA), which has an area of 111,843.70 square kilometers, created in Venezuela by President Nicolas Maduro, through the Decree of Creation of the National Strategic Development Zone of the Orinoco Mining Arc, Decree 2,248, published in the Official Gazette number 40,855 of February 24, 2016.
The OMA is a project where disinformation reigns and the little that is known, implies serious cases of corruption, human rights violations and serious environmental contamination. Since pollution, environmental degradation and climate change transcend political boundaries between countries, its effects such as the reduction of the Amazon rainforest, release of greenhouse gases, pollution of large drinking water reservoirs, pollution of the Caribbean Sea by mercury and cyanide and an increase in the magnitude of Caribbean tropical storms, will harm all kinds of life far beyond Venezuelan borders. Therefore, the response to this threat must be global.
We will now analyze the aspects that we consider most relevant to understand the scope of this project, its socio-environmental impacts and its implications under international law.
Introduction to the Orinoco Mining Arc
The Decree 2,248 that created the OMA affected an extension of 111,843.70 km2, which is an area larger than Portugal (92,212 km2), Cuba (109,212 km2 ), Panama (79,569 km2 ), and makes up 12.2% of the entire national territory. The OMA is located in the Venezuelan Federal State of Bolivar, in an area that extends from the border with the State of Amazonas on west, to the State of Delta Amacuro on East. According to the Decree all this areas are reserved for the large-scale mining of Gold, Coltan, Diamonds, Copper, Iron and Bauxite.
Image 1: Map of Venezuela. In red the area that conforms the OMA1.
The importance of the OMA, both from an environmental point of view, as well as an strategic move of Nicolas Maduro’s government to get out of the country’s terrible economic crisis, is summarized by the investigative journalist specialized on environmental matters, Jeanfreddy Gutierrez Torres, as follows:
“Besides the projected US $100 billion in coltan, Venezuelan authorities optimistically estimate that up to 7,000 tons of gold could be certified within the Orinoco Mining Arc, which would make it the second biggest gold reserve in the world, worth $200 billion dollars, calculated at a price of US $1,200 per ounce.
The government also estimates there to be three billion carats in diamonds in the region, and at least 300 thousand metric tons of rare earth elements: cerium, lanthanum, neodymium and thorium.
But standing in the way of open-pit mines and other extreme forms of extractive development are seven Venezuelan natural monuments and five national parks, which are scattered throughout the Mining Arc.
The Parque Nacional Canaima (Canaima National Park) covers 30,000 square kilometers (12,000 square miles), and is a UNESCO World Heritage site. Located in Bolivar state, it is characterized by vast forests, flat-topped plateaus and fantastic cliffs, and is home to jaguars (Panthera onca), giant otters (Pteronura brasiliensis) and giant anteaters (Myrmecophaga tridactyla).
The region slated for mining development also includes the Imataca Forest Reserve (3,000,800 hectares); the La Paragua and El Caura reserves (5,134,000 combined hectares); the Cerro Guanay Natural Monument; plus the Caroní River watershed (covering 96,000 square kilometers).
The Guri dam is here too; it feeds the main hydroelectric plant in Venezuela, which produces 60 percent of the country’s electricity. This dam’s reservoir and electrical output were at their historic lowest levels in 2015, which helped perpetuate a series of blackouts and power outages across the country. The government claims that the recent El Niño was responsible for the drought, but experts say that deforestation caused by illegal mining and logging across South America has affected the rains in the region for the worse. According to Global Forest Watch, at least five protected areas in Venezuela are already being deforested by illegal mining activities.”2
Concordantly, Alexander Luzardo, who is the author of the environmental rules included in the Venezuelan Constitution, and former president of the Environmental Commission of the extinct Venezuelan Senate; explains that the State of Bolivar, where the OMA is located, is an invaluable area from the environmental point of view, since 1975 has the largest protected area in Venezuela, almost 80% of its surface (7,262,358 hectares) are Areas Under a Special Administration Regime given their wide and incalculable biodiversity in forests, jungles, including “the Sierra de Imataca Forest Reserve with 3 million 800 thousand hectares; La Paragua and El Caura with 5 million 134 thousand hectares, natural monuments such as the case of Guanay decreed in 1991, and basins that are equally protected by environmental laws and international agreements such as the 96,000 square kilometer Caroní Basin, which provides the country’s most important freshwater reserves and generates 60% of the hydroelectric energy that feeds the Guri dam and the hydroelectric complex”. The Sierra de Maigualida Natural Monument and part of the Canaima National Park are added to the natural reserves mentioned. 3
The southern zone of the Orinoco River is the area with the greatest biodiversity in the country, home to species like the manatee (Trichechus manatus), pink dolphin (Inia geoffrensis), Orinoco caiman (Crocodylus intermedius) and the Arrau turtle (Podocnemis expansa), which are already in danger of extinction. The OMA also threatens the area’s forests, which are home to endemic species (only found in one place in the world) that will be severely affected. There are 9,411 species of flora, of which 2,136 are endemic.4
As for the economic aspect, David Smilde, professor of Sociology at Tulane University and senior fellow at the Washington Office on Latin America research center, explains that “It’s a desperate move by Maduro to get cash (…) There is a clear danger that it will lead to ecologically destructive mining operations in a territory with incredible biodiversity and a population protected by indigenous people.” Smilde is convinced that Venezuela will destroy an important resource in terms of basins and potential tourism, in exchange for short-term profits.5
As we can see, the OMA is located in a very large area, which is also immensely rich from a mineral and ecological point of view. Despite the fact that the OMA involves a good portion of Venezuelan territory, it was created by a presidential decree, that means, there was no legislative discussion about it, nor was any previous environmental impact assessment carried out, much less a process of informed consultation with the Venezuelan people.
This creates a state of general ignorance around the OMA, where the very little official information that has been provided is questioned even by international authorities such as the United Nations Commission on Human Rights6, access to the affected areas is extremely risky and therefore independent investigations are also scarce. This situation, as we will see below, is completely at odds with the national and international norms that regulate the way in which projects with significant environmental implications should be handled, even more when the environmental damage of the OMA is so great that it can have serious consequences for the entire planet.
The legitimacy crisis in Venezuela
The legitimacy of the political forces that hold the effective power in Venezuela is an issue that has been denounced since the early years of the government of Hugo Chavez, who was the former president of Venezuela and declared the current president Nicolas Maduro as his political successor.
The illegitimacy of the government has been alleged over 20 years for many different reasons, and the analysis of these allegations goes beyond the purpose of this article, however we will summarize below the main reason why Nicolas Maduro’s government is rejected by most democratic countries in the world, to conclude that a project as harmful as the OMA is not a sovereign decision of the Venezuelan people, but has been planned and executed by an illegitimate government.
The main questioning of Nicolas Maduro’s government concerns the electoral system, since the results of the last elections held in Venezuela are globally doubted. According to Articles 292 and 293 of the Venezuelan Constitution, the National Electoral Council (CNE by its acronym in Spanish) is the governing body that directs and oversees all elections of the public authorities of the country. According to Article 296 of the Constitution, the members of the CNE shall be appointed by the National Assembly with the vote of two thirds of its members.
The mistrust of the Venezuelan electoral system began in 2002, when the Constitutional Chamber of the country’s Supreme Court of Justice ruled, through decision number 1556 of June 9, 2002, that this chamber could appoint the members of the CNE when the National Assembly could not reach a concession for the appointment. In that judgment, the Chamber based its decision on Article 336, paragraph 7, which states:
“Article 336. The powers of the Constitutional Chamber of the Supreme Court of Justice are :
7. Declare the unconstitutionality of the omissions of the legislative power at the municipal, state or national level when it has failed to issue the regulations or measures indispensable to guarantee the compliance of this Constitution, or has issued them incompletely, and establish the term and, if necessary, the guidelines for their correction”
As it is clearly read in the cited article, the Constitutional Chamber can declare the unconstitutionality of the National Assembly’s omissions, but it can only issue guidelines to correct such omission, it cannot confer to itself the power to elect the members of the electoral system, which according to the Constitution must be elected by the Power that represents all the citizens of the country: the National Assembly.
This decision set the precedent by which the Constitutional Chamber of the Supreme Court of Justice directly appointed the rectors of the CNE periodically in the years 2003, 2005, 2014 and 2017. For this reason, the transparency of all elections held under the direction of a body formed through an irregular process has been questioned.
In 2017, representatives of Nicolas Maduro’s Government and the Venezuelan Opposition met in the Dominican Republic, with the aim of finding a way out of the Venezuelan crisis. One of the most important points of this meeting was to reach an agreement on the celebration of the presidential elections scheduled for 2018.
According to the BBC7, the results of this negotiation were the following:
“The opposition wanted to obtain guarantees that the elections would be held under fair conditions and considered that, in order to obtain them, the elections should not be called before June. The government, however, wanted to execute them in April at the latest.
In the end, the government unilaterally set the vote for May, thus breaking off the negotiations”.
Opposition representatives requested that the elections be called in the second half of 2018, in order to have time to establish a balanced CNE. They also demanded that international independent observation delegations were invited to verify all phases of the process, technical audits, that the Venezuelans living abroad could vote and that the banning of the main opposition parties and leaders such as Leopoldo López or Henrique Capriles be revoked.8
Given that the Government of Nicolas Maduro did not grant any of those requests and disregarded the authority of the National Assembly, the latter rejected the elections called for May 2018 and the coalition opposing the Government decided not to participate in an electoral process that did not provide any guarantee of impartiality.
The results of these elections were as expected, only 46% of the voters participated, Nicolas Maduro was declared the winner by obtaining 67.8% of those votes and the process was unknown by, among others, the National Assembly of Venezuela, the Organization of American States, the United States and the European Union.
For its part, the National Assembly declared that since no valid elections had taken place, there was no validly elected president either, and therefore it was necessary to proceed in accordance with the provisions of article 233, which states
“Article 233. The absolute absence of the President of the Republic shall be: his death, his resignation, or his removal from office as decreed by the Supreme Court of Justice, his permanent physical or mental incapacity certified by a medical board appointed by the Supreme Court of Justice and with the approval of the National Assembly, the abandonment of his position, declared as such by the National Assembly, as well as the popular revocation of his mandate.
When the absolute absence of the elected President occurs before taking office, a new universal, direct and secret election shall be held within thirty consecutive days. While the new President is being elected and taking office, the President of the Republic shall be the President of the National Assembly.”
For this reason, the National Assembly proclaimed Juan Guaidó as Interim President of the Republic, who since the first day of his mandate has sought the operative control of the country’s institutions, declaring that his main objective is to ensure the necessary conditions to hold free elections. Despite the fact that Juan Guaidó has the support of the Organization of American States, of several countries worldwide and that the European Union does not recognize Maduro’s mandate and requests that free elections be agreed upon in Venezuela, this has not been possible since the practical control of the country remains in the hands of Nicolas Maduro, who has the support of the Venezuelan Army.
Because of the lack of legitimacy and accusations related to drug trafficking, capital laundering and various human rights violations, Nicolas Maduro and his closest officials have been subject to various international sanctions, including the charges presented by U.S. Secretary of Justice William Barr for the crimes of conspiracy in narco-terrorism, conspiracy in the importation of cocaine, and possession of weapons and other destructive devices. According to the official statement from the U.S. authorities
“the State Department is offering a reward of up to US$ 15 million for information related to Nicolas Maduro Moros. The Department also offers rewards of up to US$10 million in each case for information related to Diosdado Cabello Rondón, president of the illegitimate National Constituent Assembly; General (retired) Hugo Carvajal Barrios, former director of military intelligence of Venezuela (DGCOM); Clíver Alcalá Cordones, major general (retired) of the Venezuelan Army; and Tareck Zaidan El Aissami Maddah, minister of Industry and National Production”.
Thus, the planning, execution, and monitoring of what happens in an extractive project like the OMA, which promises terrible environmental impacts and human rights violations, is clearly in the hands of a small group of people who do not have popular support, that are being investigated for international crimes, and that the only thing that keeps them in power are their weapons.
The Constitution of the Bolivarian Republic of Venezuela is one of the constitutions that includes the most provisions on environmental protection and the way in which the nation’s natural resources are managed. Unfortunately, as in many other cases, the guarantees of the Constitution in Venezuela are no more than empty words for the government. However, this case has the particularity that its effects do not only harm the people of Venezuela, but the effects of unregulated mining affect the entire planet, while at the same time violating various international law standards.
3.1. Absence of Environmental Impact Assessment
The first and main vice of the OMA is that no previous environmental impact study was carried out for its creation. Not even today, years after its adoption, the Venezuelan Government has assessed the environmental implications of a mega-mining project that compromises 12.22% of the national territory.
This situation is a clear contradiction to what is ordered by article 29 of the Constitution that states that “All activities susceptible of generating damage to ecosystems must be previously accompanied by environmental and social-cultural impact studies”.
In its defense, the representatives of the Government of Nicolas Maduro recognized in a hearing before the Inter-American Commission on Human Rights (IACHR), held in Panama on December 2, 2016, that the OMA does not yet have environmental impact studies, but indicated that by the time of the hearing, the project had not started yet, and that before the work begins, they would carry out the required environmental impact studies.
However, on November 28, 2016, this means 30 days before the IACHR was told that the project had not begun, President Nicolas Maduro appeared on a news broadcast9, along with Nelson Merentes, president of the Central Bank of Venezuela, showing the first gold bar from the OMA, indicating that it was extracted with an environmental sustainability standard.
Image 2: Nicolas Maduro holding the alleged first gold bar from the OMA
Logically, both versions cannot be true. Either the government representatives lied at the hearing before the IACHR by saying that they hadn’t started any work, or President Nicolas Maduro and the President of the Central Bank of Venezuela, who is in charge of guarding the country’s gold reserves, lied by publicly showing a gold bar indicating that it came from the OMA.
These lies do not only affect the citizens of Venezuela and the IACHR, but all the inhabitants of countries in the Caribbean and the Atlantic, including the United States, since this project involves altering, by means of substances such as mercury and cyanide, the waters that flow through the Orinoco River to the Caribbean Sea and the Atlantic Ocean. The fact that no environmental impact studies have been carried out means that the environmental consequences that such a project may have inside or outside the country are not known.
In order to reduce this uncertainty in the international framework, the United Nations Declaration on Environment and Development, known as the Rio Declaration, states
“Principle 17: Environmental impact assessment, as a national instrument, shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority.”
And if, as a result of the environmental impact assessment, it is anticipated that the project may have adverse effects on other countries, the Rio Declaration states:
“Principle 19: States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith.”
In so doing, the Venezuelan Government, by authorizing the execution of the MEA without even having carried out environmental impact studies, is not only violating national regulations, but is also infringing on the right of all other countries that may be harmed by adverse transboundary environmental effects to be notified in a timely manner and consulted at an early date.
3.2. No public consultation
The obligation that any project that may have adverse effects on the environment be subject to prior public consultation and the right of citizens to know the details of such projects, are two fundamental pillars of environmental law and are recognized in international law through the Rio Declaration, as follows
“Principle 10: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.”
In Venezuelan domestic Law, the Organic Environment Law recognizes that citizen participation is a right and a duty of all persons10, and adds that this participation and the disclosure of environmental information must be incorporated at all levels of environmental planning11.
In a project like the OMA, the process of informed consultation must be even more rigorous because it is located on lands where the largest number of Venezuelan indigenous people live (around 54,000 people)12. In this regard, article 120 of the Constitution states:
“Article 120: The use of natural resources by the State in indigenous habitats shall be done without harming the cultural, social, and economic integrity of these habitats and, likewise, is subject to prior information and consultation with the respective indigenous communities.”
In addition, article 41 of the Organic Environment Law provides:
“Article 41: Indigenous peoples and local communities have the right and the duty to participate in the formulation, application, evaluation and control of national, regional and local development plans and programs, that may directly affect their lives, beliefs, values, institutions and spiritual well-being, and the use of the lands and habitats that they collectively occupy and use.”
The Government of Venezuela has said that the OMA had an extensive process of consultations, explanatory hearings, and meetings with indigenous peoples; however, these statements were taken with skepticism by the IACHR rapporteurs at the December 2, 2016 hearing, who expressed doubts about how informed the consultation with indigenous peoples was.
The concern of the IACHR rapporteurs is completely founded, because the international and domestic norms require that prior to the establishment of the OMA, the Government should have:
1. Made the OMA environmental information available to everyone, as well as the opportunity to participate in decision-making processes.
2. Carried out the positive action of informing, consulting and including indigenous peoples in the decision process of the OMA, since this project proposes to make use of the natural resources of their lands and has a high potential to affect the way of life of the indigenous peoples living in these areas.
Although the government has said that several hearings were held with indigenous peoples, this consultation could not be complete, much less informed, since as explained above, no environmental impact studies have been carried out, so even the government itself is not aware of the environmental consequences of the implementation of the OMA.
This makes impossible for the Government to have made available and submitted for public consultation information that even the Government itself does not possess. Much less can it be said that all the observations of the indigenous communities on the effects on their habitat were informed and heard, if it is precisely the information that the government itself does not know.
3.3. Lack of representation of the Mining Arc
As stated above, the OMA was established by a presidential decree, published on February 24, 2016, without prior notice or public consultation.
On the same day that the Venezuelan people first heard about the OMA, Nicolas Maduro declared that 150 companies from 35 countries intended to invest in the OMA.13
During 2016, the government signed a series of agreements with foreign companies, among which we find the following
- Agreement with the Chinese company Camc Engeerering CO. LTD, for the exploration and exploitation of Coltán.
- Agreement with the company Yakuang Group, also from China, which will join the work of exploration and exploitation of gold.
- Agreement with the mining company Afridiam of the Republic of the Congo, for the exploration and exploitation of diamonds, gold and coltan.
- Agreement to establish a joint venture between Venezuela and the Canadian company Gold Reserve, which will carry out gold and copper exploration and exploitation activities through Las Brisas-Cristinas integral project.
- Memorandum of understanding with the US-owned Guaniamo Mining Company for the certification of diamond reserves.
In accordance with Articles 24 and 25 of the Decree that created the OMA, this project is of public interest and despite this, none of these contracts were approved and not even brought to the attention of the National Assembly, which implies that they are unconstitutional, since Article 150 of the Constitution states that “No contract of municipal, state or national public interest may be entered into with foreign states or official entities or with companies not based in Venezuela, or transferred to them without the approval of the National Assembly”.
Not only did the National Assembly not approve any of the contracts concluded by Nicolas Maduro’s government with respect to the OMA, but on June 14, 2016 it issued the “Agreement on the decree creating the national strategic development zone, the Orinoco Mining Arc,” which rejected the creation of the Orinoco Mining Arc for being contrary to the interests of the nation and threatening the integrity of the immense and rich biodiversity and the country’s last non-contaminated freshwater reserves, which are considered irreplaceable assets of the nation.
Similarly, the lack of knowledge of the environmental and social impacts of this project makes any type of approval that may be given to the OMA impossible, as the negative effects of this project are unknown.
Fraud against indigenous peoples.
As pointed out by the Venezuelan Program for Education and Action on Human Rights; the Working Group on Indigenous Affairs of the University of Los Andes and the Peace Laboratory, before the Inter-American Commission on Human Rights, the OMA is located in territories ancestrally inhabited by the indigenous communities Mapoyo, Inga, Eñepá, Hoti o Jodi, Kariña, Arawak and Akawako. In addition, the extension of its area borders and is related, environmentally, territorially and fluvially, to the indigenous territories of the Yekuana, Sanemá, Pemón, Waike, Sapé, Eñepá and Hoti or Jodi in the same State of Bolivar, in the Amazon with the Yabarana, Hoti, Wotjuja Peoples, and in the Delta with the Warao Indians.
The indigenous peoples of the Americas and the Caribbean have a close and ancient relationship with the Orinoco River, where the OMA is located, because it was from this river that the Amerindian peoples left the continent to populate the islands of the Caribbean and established a commercial relationship that would sustain the populations of the Caribbean long before the European conquest.
With respect to the way of life and the lands of the indigenous peoples, the Venezuelan Constitution establishes the following:
“Article 119: The State shall recognize the existence of indigenous peoples and communities, their social, political and economic organization, their cultures, uses and customs, languages and religions, as well as their habitat and original rights over the lands they have traditionally and ancestrally occupied and which are necessary to develop and guarantee their ways of life.
It shall be the responsibility of the National Executive, with the participation of the indigenous peoples, to demarcate and ensure the right of collective ownership of their lands, which shall be inalienable, imprescriptible, unseizable and non-transferable in accordance with the provisions of this Constitution and the law”.
This constitution came into force in 1999, and in its transitional provisions it established
“Twelfth: The demarcation of the indigenous habitat, referred to in article 119 of this Constitution, shall be carried out within a period of two years from the date of entry into force of this Constitution.”
In accordance with the constitutional mandate, the Executive Branch was required, within a period that expired in 2001, to demarcate the lands that have been occupied by indigenous peoples historically in order to ensure their collective ownership in perpetuity, since the demarcated lands are inalienable, imprescriptible, unseizable and non-transferable.
Unfortunately, as reported to the Inter-American Commission on Human Rights, the Coordinating Body of Indigenous Organizations of the Amazon (COIAM) issued a statement in which it expressed that after a detailed study of the National Demarcation Process over the last 15 years, it was shown that only 12.4 per cent of the Indigenous Habitats and Lands had been demarcated, based on the number of communities counted.
Consequently, the Chávez Government and his successor, Nicolas Maduro, have failed to fulfill their constitutional duty to demarcate and ensure ownership of over 85 per cent of indigenous communities. Even worse, they have entered into contracts with international companies to establish mega-mining projects on lands inhabited by indigenous people and that have been declared protected areas since the last century.
This way of acting by Nicolas Maduro’s government not only violates Venezuelan domestic law, but is a clear contradiction to the provisions of the Convention on Indigenous and Tribal Peoples of the International Labor Organization (Convention 169), which it establishes:
1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession.
And as for access to natural resources that may be found on these lands, the Convention states.
1 The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.”
The articles of the Convention just cited are completely ignored by the government of Nicolas Maduro, because, as has been explained, the situation of the OMA with regard to indigenous peoples is as follows:
- The lands that are communally owned by the indigenous peoples who occupy the area of the OMA have not been demarcated and it is intended that these lands will be exploited by foreign companies.
- There has been no environmental impact study to determine the consequences that mining may have on the lands, livelihood activities and health of indigenous peoples.
- In the absence of this information, there could not be a proper consultation process.
- No effective scheme for benefit-sharing from mining activity or compensation for indigenous peoples has been put in place.
In this way, the OMA is a scam on the indigenous peoples of Venezuela who have been promised their claims since the beginning of the Chavist regime, but who have repeatedly been victims of deceit and dispossession.
Militarization of the OMA
The continuous presence of military personnel performing surveillance functions, which are normally the responsibility of civilian public security bodies such as state and municipal police, has many social and economic effects. However, in this section we will only refer to the militarization of the OMA areas in terms of access to information.
Article 13 of Decree 2,248, which created the OMA, establishes that
“The Bolivarian National Armed Force, in conjunction with the organized People’s Power, and in coordination with the authorities of the Ministry of the People’s Power with competence in oil matters, will have the responsibility to safeguard, protect and maintain the harmonious continuity of the operations and activities of the Strategic Industries located in the National Strategic Development Zone of the Orinoco Mining Arc”.
According to this norm, the security of an area equivalent to 12.2% of the entire national territory is the responsibility of the Armed Forces and the Ministry with competence in oil matters, while no other norm speaks of coordinated action between the army and the local police forces. This means that the only people responsible for guaranteeing security, legality and allowing access to areas of the OMA depend on the National Executive Branch carried out by the Government of Nicolas Maduro.
This militarization was made effective and was informed by Nicolas Maduro on March 9, 2016, when he declared that “order shall be brought to the OMA, and therefore a Special Military Zone will be implemented to protect the inhabitants and the resources of that area” and that there are already three helicopters and more than a thousand soldiers in the area14.
Five months later, the military presence was reinforced after the announcement of the Minister of Defense, General Vladimir Padrino López, informing that a “Special Unit of the FANB” would be activated for integral defense operations in the Orinoco Mining Arc “In the next few days, the formation of this special unit will be presented, which will be in a mutual command relationship with the Integral Defense Operative Zone and the Integral Defense Strategic Region”15.
Additionally, the military presence in the area is not only under the pretext of being a security agent but is also recognized as an economic stakeholder, since on August 5, 2016, the Government signed a memorandum of understanding with the Anonymous Military Company of Mining, Oil and Gas Industries.
The disproportionate military presence in the area is suffered by the civilian population on a daily basis. Drivers can expect to encounter improvised roadblocks approximately every half hour. The military roads are also patrolled by the military and intelligence services, who search all vehicles in transit for gold smugglers or perhaps an opportunity to extort money or supplies from anyone passing by, but especially from the local population, who make deliveries of food and fuel to the mines.16
This excessive presence of military personnel prevents access by citizens, the press and technical experts to verify the execution of the OMA. In this way, the supervision of the progress of the work, the health and safety conditions of the work or any analysis of the possible environmental impact that the mines in operation may have is absolutely limited.
The few people who have dared to enter the military blockade to request information about a project declared to be of public interest17 have known that they have put their lives at risk in the hands of military officials from a government that has been accused and sanctioned internationally for unofficial executions and human rights violations of people detained by the security forces18.
This situation was experienced firsthand by Bram Ebus, who is Dutch and one of the investigative journalists who has reported the most on what he has seen in the south of Venezuela.
On September 21, 2017, Ebus set out to interview someone in charge of the company Empresa Mixta Minera Ecosocialista Parguaza, whose majority shareholder is the Venezuelan State with 45% of its capital and was created with the aim of exploiting 20 tons of coltan per month19. In particular, they wanted information on how the indigenous peoples have been shared in the benefits or compensated for mining activities on their lands, which as we saw is a duty of the State according to ILO Convention 169.
The journalist and his companions were illegally retained in an unofficial center within a mining company, denied the right to make a phone call and were not allowed to speak to a lawyer. They were questioned by soldiers who have no authority to interrogate them, who told them that they suspected them of being spies or infiltrators of the opposition to the government, as if what was happening in a state-owned mining company was not public information or if the opposition members were not Venezuelans with the right to know what is happening within a state owned company.
More than 24 hours after their illegal detention, they were released thanks to a campaign by the Church, the Dutch embassy, the media and civil society.
The legality of the actions of the Venezuelan army is questioned at the international level, and those who seek to obtain the public information that the government of Nicolas Maduro illegally omits, may suffer violations of human rights. Therefore, when analyzing the consequences that the OMA has had on the inhabitants, the environment and the international community, it is necessary to take into account the lack of credible official information and the difficulty for anyone outside of the Nicolas Maduro government to know in depth what is happening in the OMA area.
An environmental impact with global consequences
As we have said, there is no formal environmental impact study carried out prior to the execution of the OMA, and the Nicolas Maduro government has not allowed access to technical information, much less let environmental specialists outside the government access the project area.
Therefore, the little that is known about the environmental impacts of the MOU is thanks to studies carried out by scientists outside the Government and their conclusions are based on pre-existing information and on environmental effects that can reasonably be foreseen with a high degree of certainty.
The AMO is located in one of the oldest geological formations on the planet, known as the Guiana Shield, which dates back to the Precambrian period, which is the first and longest stage in the history of the earth, in which the lithosphere, hydrosphere, atmosphere, and the origin and early evolution of the earth began to form. In the following images20 we can see the extension of this very ancient geological formation, and how the OMA overlaps over it and borders in all its extension with the Orinoco River, which with a flow of 33,000 m³/s, becomes the third largest river in the world:
Image 3: Guiana Shield total extension
Image 4: OMA overlapping north extension of Guiana Shield
From an ecological perspective, mining development in this area is very delicate, according to biologist Edgar Yerena, “the soils generated are very leached and very washed. It has few nutrients, is very sandy and the environmental recovery from any impact on the Guiana Shield is very slow, if not irreversible.”21
The affected region is extremely rich in vegetation, within the OMA there are 68,737 km2 of forest which constitutes the largest portion of the area where this mega mining project is planned to be developed. According to Virginia Behm and Lucio Marcello22, the area of the OMA has the following coverage:
Image 5: Vegetation types within OMA
A group of scientists from the Institute of Zoology and Tropical Ecology of the Science Faculty of the Central University of Venezuela, conclude that the mining activity, as it is planned, will fragment the ecosystems of the area, mostly forests, and will cause a significant loss of species of both flora and fauna, some of which are already threatened23.
Additionally, they point out that the remaining standing forests will be at risk of progressive degradation due to the severe conditions that deforested areas will have, which will lead to local droughts, greater wind effects that will favor the continuous fall and death of trees that remain exposed.
In addition to the loss of biodiversity in the area, deforestation will have negative effects on climate change, as areas that continuously sequester carbon dioxide will be eliminated, and worse still, the trees that are felled will release the greenhouse gases that they have been accumulating for decades.
Juan Carlos Sanchez, who is a member of the Intergovernmental Panel on Climate Change and co-winner of the Nobel Peace Prize for his efforts in the fight against climate change, points out that “the coexistence of mining and forests in the Guiana Shield is not possible. All the land dedicated to mining, and in particular surface mining, will be land where forests are sacrificed because it requires the removal of large amounts of land. This sacrifice of the forests represents an irreparable loss of natural capital.”24
In terms of water pollution, half of the basins that make up the southern Orinoco overlap partially with the OMA areas. The state of Bolivar, where the project is located, has the eleventh largest freshwater reserve in the world25. The basins in this area generate 65% of the country’s electricity.
Image 6: Southern Orinoco Watersheds.
Thanks to the enormous amount of water that flows through this area, most of the country’s electricity is clean and comes from renewable sources. This carbon-free power generation is also threatened by local droughts generated by mining deforestation and by the excess sediment that this will bring to the water. According to Yerena, “Mining damages water quality. The issue of hydropower potential in Guyana depends not only on the quantity but also on the quality of the water. It requires water with little sediment.” 26
The reduction in hydroelectric production is a mortal threat to the population of Venezuela, which is already immersed in an energy crisis that has caused blackouts for several days in a row, limiting the operability of basic and health services27. But it is also an aggravating factor for climate change around the world, since it increases the country’s dependence on energy from non-renewable sources that emit greenhouse gases.
Due to the size of the operations proposed by the OMA, it is anticipated that many waters contaminated with cyanide, at best, and with mercury in the case of illegal mines, will be directed downstream into the Caribbean Sea, bringing damage that goes beyond Venezuela’s borders.
According to the scientists of the Central University of Venezuela, “all the sediments and chemicals produced by the mining would flow into the Atlantic Ocean and the Caribbean Sea through the Orinoco Delta, which would have important implications for other coastal and oceanic marine ecosystems, inside and outside our borders, reaching the Southern Caribbean region (not only our coast and oceanic islands, but could reach the Dutch Antilles) and the Eastern Caribbean (from the Lesser Antilles to Puerto Rico)”28.
This group anticipates that the mining activity will generate a high sedimentary discharge that would bring negative changes in the fishery production in the Eastern Caribbean region. They point out that, even without the Mining Arc project, it has been reported that during periods of abundant rainfall there are significant decreases in salinity and significant increases in temperature, which generate high susceptibility in fish to bacterial infections. Likewise, it has been reported that through the discharge of the Orinoco River, pathogens produced by anthropogenic contaminants can be dispersed, causing massive fish mortality in the region.
Venezuelan scientists are also emphatic that the Atlantic hurricane season matches the season of greatest water discharge from the Orinoco River. Evidence shows that the intensity and duration of the majority of the most destructive hurricanes in the region’s history have been influenced by the atmosphere-ocean interaction with the Orinoco and Amazon River discharges just before they reach the Caribbean. This implies that by generating even warmer waters due to increased discharges from the Orinoco River as a result of megamining, a period of more vigorous hurricanes will be generated.
The expected environmental impacts are extremely serious for the planet’s health in general, which is already suffering from the COVID-19 pandemic, but they represent only the tip of the iceberg. As Bram Ebus concludes in an interview with biologist Edgar Yerena, “Ignorance also represents a problem for environmental justice movements that have little research and facts available to argue. “It’s complicated because until now, advocacy has been based on the concept of the project and the way they have tried to implement it.”29
Possibilities of response through international law.
Considering that the effects of the OMA threaten the right to a healthy environment of the whole world, especially the countries bordering the Caribbean Sea, Gulf of Mexico and Atlantic Ocean, and taking into account that the cause of these damages is the Government of Nicolas Maduro, it is concluded that the best way to stop this situation is through international law. Even more so if we remember how little effective the Venezuelan justice system has been in condemning the human rights violations perpetrated by the Nicolas Maduro regime and that this has led the international community to join in a series of political and economic sanctions.
As mentioned in section 3.1 of this article, the lack of environmental impact studies and the absence of notification to other States that may be affected by the OMA is contrary to those established in the United Nations Declaration on Environment and Development (Rio Declaration).
However, the principles of the Rio Declaration do not have a binding structure and therefore, in establishing the means of conflict resolution, the declaration only states that “States shall resolve all their environmental disputes peacefully through appropriate means in accordance with the Charter of the United Nations. Therefore, despite the fame and universal support of the Rio Declaration, when defining the means to coercively demand corrective action, it is more appropriate to take into account International Conventions that have more specific procedural and conflict resolution rules.
Given that the most direct environmental damage caused by the OMA to other countries relates to pollution of the aquatic environment, it is most viable for members of the international community to require corrective action under the rules of the United Nations Convention on the Law of the Sea (UNCLOS), which has an extensive chapter dedicated to the protection and preservation of the marine environment, as well as various dispute resolution mechanisms. However, Venezuela is one of the 15 countries worldwide that have not signed this convention.
Given this scenario, the convention of universal scope that would be applicable to stop the environmental damages that the OMA produces and that eventually become damage to the marine ecosystem is that of the United Nations Convention on Biological Diversity, whose scope we will explain below.
6.1. United Nations Convention on Biological Diversity (CBD)
Issued at the same international summit where the Rio Declaration was agreed, the CBD is the first binding international instrument to recognize that “the conservation of biological diversity is in the common interest of all humankind”.
The CBD, in its article 2, defines the term “biological diversity” as “the variability among living organisms from all sources including, inter alia, terrestrial, marine and other aquatic ecosystems and the ecological complexes of which they are part; this includes diversity within species, between species and of ecosystems”. Thus, if we take into account that within the environmental impacts of the OMA there is a fear of massive fish mortality in the region, the applicability of this Convention becomes clear.
Venezuela has been a party to this Agreement since 1994, and therefore is bound by it. However, in the case of the OMA, it has failed to comply with several of the obligations established in Article 14, namely:
Establish appropriate procedures requiring environmental impact assessment of its proposed projects that are likely to have significant adverse effects on biological diversity with a view to avoiding or minimizing such effects and, where appropriate, allow for public participation in such procedures.
Establish appropriate arrangements to ensure that the environmental consequences of its programs that are likely to have significant adverse effects on biological diversity are duly taken into account.
Promote notification, exchange of information and consultation on activities under their jurisdiction or control which are likely to have significant adverse effects on the biological diversity of other States or areas beyond national jurisdiction.
Immediately notify, in the event of imminent or grave danger to or damage to biological diversity originating under their jurisdiction or control in the area under the jurisdiction of other States or in areas beyond the limits of national jurisdiction, States likely to be affected by such danger or damage, and initiate measures to prevent or minimize such danger or damage
With regard to non-compliance with these duties, the same article provides that “The Conference of the Parties shall, on the basis of studies to be undertaken, consider the issue of liability and redress, including restoration and compensation for damage to biological diversity, except where such liability is a purely internal matter”.
In this way, it seems that the Conference of the Parties may hear cases where a party has failed to comply with the duties set out in Article 14 and may agree both on measures to restore biological diversity and on compensation to parties who have suffered harm as a result of a party’s contravention.
In addition, Article 27 of the CBD establishes a series of steps for conflict resolution, which we describe below:
Negotiation between parties.
If the negotiation between the parties does not lead to a satisfactory outcome, the parties may request mediation with the assistance of a third party.
Upon adoption of the CBD or at any time thereafter, the parties must declare their acceptance of one or both of the following means of dispute settlement, in the event that neither of the means described in paragraphs 1 and 2 has produced a positive outcome:
Arbitration in accordance with the procedure laid down in Annex II, Part 1 of the CBD
Submission of the dispute to the International Court of Justice.
As Venezuela has not declared its acceptance of either of the procedures indicated in point 330, the dispute shall be submitted to conciliation in accordance with Part 2 of Annex II, unless the parties agree otherwise.
The conciliation process set out in Part 2 of Annex II to the CBD provides that a Conciliation Commission shall be appointed at the request of one of the parties to the dispute. Such commission shall, unless the parties otherwise agree, be composed of five members, two appointed by each party involved and a President chosen jointly by those members. If the members appointed by each of the parties do not agree on a President within two months, the President shall be elected by the Secretary-General of the United Nations.
The conciliation commission shall take its decisions by a majority vote of its members. It shall, unless otherwise agreed by the parties, determine its own procedure.
However, Annex II, Part 2, Article 5 provides that “The commission shall render a proposal for resolution of the dispute, which the parties shall consider in good faith. This means that the resolutions of the Conciliation Commission may not be of a binding nature; and while these may be a strong indication of the responsibilities involved, experience to date in international conflicts with the Chavists governments of Venezuela is that they rarely abide by good faith provisions.
If the Government of Venezuela decides not to accept the resolution of the Conciliation Commission, violations by the Government of Venezuela of the obligations established in Article 14 of the CBD may be brought before the International Court of Justice, whose decisions are binding on all members of the international community.
Article 36 of the Statute of the International Court of Justice states that “The jurisdiction of the Court extends to all disputes which the parties may submit to it and to all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force” and although the Venezuelan Government may oppose the jurisdiction of the court, it is this same court which has the power to decide whether or not it has jurisdiction.
By way of precedent, in a case similar to this one, related with the establishment of cellulose plants for the paper industry, the International Court of Justice determined that Uruguay failed in its duty to notify Argentina about the construction of this project and the environmental implications that this project could have on the waters of the Uruguay River that flows between both countries.
In this case, the Court confirmed that it is possible to consider the application of the provisional measures referred to in Article 41 of the Statute, but the measures to halt the work requested by Argentina were rejected, among other reasons, because:
Argentina did not present any evidence suggesting that any resulting pollution could have the effect of causing irreparable damage to the river.
In any case, there would be no threat of imminent environmental damage until the plants were operational.
According to this rule, if it is proved that there is environmental damage in the marine environment and that this is the result of water pollution produced in it, the International Court of Justice could approve the suspension of mining activities that result in the pollution of the Orinoco River, or at least minimize the environmental impact, as established in article 14, paragraph a) of the CBD.
As to the substance of the jurisprudential precedent cited, it was not proven that the environmental contamination was the work of the plants installed in Uruguay, and therefore no compensation for environmental damage was agreed, but positively, the Court established that both countries should, jointly, monitor the environmental effects of the project.
In view of this precedent, the International Court of Justice could be asked to order the Government of Venezuela to admit the passage of personnel sent by other countries to verify the conditions in which the WOA is being executed in order to monitor its environmental consequences and to request undertaking works to minimize its environmental impact.
In accordance with everything explained in this article, the following is concluded:
1. The OMA is a project that is extremely harmful to the environment, health and life internationally.
2.This project is contrary to law, violates the Constitution, Venezuelan laws and a large number of international law rules.
3.The OMA is not a sovereign decision of the people of Venezuela, the people were not consulted, and they do not even have free access to the information related to a project that involves 12% of the territory of their country.
4.The Venezuelan National Assembly rejected the creation of the OMA and revoked the decree that created it. It should be noted that the representatives of the National Assembly were the last public officials elected through elections that were internationally accepted as impartial.
5.The persons who designed and have executed the OMA are persons internationally accused of human rights violations and economic crimes.
6.The execution of the OMA has not benefited the Venezuelan people at all; in fact, its execution coincides with the most severe crisis in any way that the country has suffered since its modern history.
7.The OMA poses a global threat, as environmental degradation, global warming and the spread of disease do not distinguish political boundaries.
8.The international community can stop the OMA, there are sufficient legal arguments and support of the population that increasingly demands action to protect the environment.
1 Taken from: https://arcominerodelorinoco.com/
2 Taken from: https://news.mongabay.com/2016/10/thirst-for-coltan-gold-threatens-venezuelan-forests-indigenous-lands/
3 According to a report prepared by the Venezuelan Program for Education and Action on Human Rights (Provea); the Working Group on Indigenous Affairs (GTAI) of the University of Los Andes and the Peace Laboratory (LabPaz), addressed to the Inter-American Commission on Human Rights. December 2, 2016.
4 Group of scientists from the Institute of Zoology and Tropical Ecology of the Science Faculty of the Central University of Venezuela: “Environmental consequences of the Mining Arc Project”. October 18, 2016.
5 Taken from: https://arcominero.infoamazonia.org/story
6 See the report of the United Nations High Commissioner for Human Rights, Michelle Bachelet, presented at the 42nd session of the Human Rights Council in Geneva, Switzerland.
10 Organic Law on the Environment, artículo 39.
11 Organic Law on the Environment, Article 23.
13 See: http://avn.info.ve/contenido/maduro-que-150-empresas-35-pa%C3%ADses-inviertan-venezuela-es-una-demostraci%C3%B3n-confianza
17 See: According to Article 24 of Decree 2,248 creating the National Strategic Development Zone of the Orinoco Mining Arch.
19 See: http://www.desarrollominero.gob.ve/empresa-mixta-parguaza-preve-exportar-20-toneladas-al-mes-de-coltan/
20 Taken from: https://virginiabehm.maps.arcgis.com/apps/Cascade/index.html?appid=18e425a6057945af9ad56e8af989a656
21 Taken from: https://arcominero.infoamazonia.org/story/gambling
22 See: https://virginiabehm.maps.arcgis.com/apps/Cascade/index.html?appid=18e425a6057945af9ad56e8af989a656
23 See: https://www.derechos.org.ve/actualidad/ucv-consecuencias-ambientales-del-proyecto-arco-minero
24 Taken from: https://arcominero.infoamazonia.org/story/gambling
25 See: https://virginiabehm.maps.arcgis.com/apps/Cascade/index.html?appid=18e425a6057945af9ad56e8af989a656
26 Taken from: https://arcominero.infoamazonia.org/story/gambling
27 See: https://www.washingtonpost.com/world/the_americas/rotting-food-and-endangered-patients-how-venezuelans-are-faring-during-continuing-nationwide-power-outages/2019/03/10/137e14a2-4343-11e9-94ab-d2dda3c0df52_story.html
28 See: https://www.derechos.org.ve/actualidad/ucv-consecuencias-ambientales-del-proyecto-arco-minero
29 Taken from: https://arcominero.infoamazonia.org/story/gambling