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Yanacocha Mine, Campesino Dispossession, Privatized Coercion Charis Kamphuis

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Yanacocha Mine, Campesino Dispossession, Privatized Coercion Charis Kamphuis Osgoode Hall Law School of York University Osgoode Digital Commons Research Papers, Working Papers, Conference Comparative Research in Law & Political Economy Papers Research Report No. 11/2010 The onC vergence of Public and Corporate Power in Peru: Yanacocha Mine, Campesino Dispossession, Privatized Coercion Charis Kamphuis Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/clpe Recommended Citation Kamphuis, Charis, "The onC vergence of Public and Corporate Power in Peru: Yanacocha Mine, Campesino Dispossession, Privatized Coercion" (2010). Comparative Research in Law & Political Economy. Research Paper No. 11/2010. http://digitalcommons.osgoode.yorku.ca/clpe/318 This Article is brought to you for free and open access by the Research Papers, Working Papers, Conference Papers at Osgoode Digital Commons. It has been accepted for inclusion in Comparative Research in Law & Political Economy by an authorized administrator of Osgoode Digital Commons. OSG000E HALL LAW SCHOOL YORK UNIVERSITY OSGOODE HALL LAW SCHOOL RESEARCH PAPER SERIES Research Paper No. 11/2010 THE CONVERGENCE OF PUBLIC AND CORPORATE POWER IN PERU: YANACOCHA MINE, CAMPESINO DISPOSSESSION, PRIVATIZED COERCION Charis Kamphuis Editors Peer Zumbansen (Osgoode Hall Law School, Toronto, Director, Comparative Research in Law and Political Economy) John W. Cioffi (University of California at Riverside) Lisa Philipps (Osgoode Hall Law School, Associate Dean Research) Nassim Nasser, Ahmed Hassan (Osgoode Hall Law School, Toronto, Production Editors) Comparative Research in YORK Law & Political Economy U N I V V V S I T V Electronic copy available at: http:/Jssrncom/abstract1598477 00 I 2 CLPE RESEARCH PAPER SERIES {VOL. 06 No. 03 CLPE Research Paper 11/2010 Vol. 06 No. 3 (2010) Charis Kamphuis The Convergence of Public and Corporate Power in Peru: Yanacocha Mine, Campesino Dispossession, Privatized Coercion Abstract: This paper focuses on the convergence of the corporate power of Yanacocha Mine with the Peruvian State's public power. The convergence is studied in relation to two interrelated and fundamental sites of power: land rights and the regulation of the use of force. Parts One and Two present two international human rights litigation initiatives: the Negritos Case and the Grufides Case. The legal history behind the Negritos Case illustrates the complex relationship between Peru's colonial history, the 1960s Agrarian Reform, the neo-liberal shift in the 1990s, and Yanacocha's current status as one of the most profitable goldmines in the world. The serious land rights violations alleged in the Negritos Case provide the social context for the Grufides Case, namely, the emergence of widespread social protest and the escalating use of private security companies by multinational mining companies. The Grufides Case depicts the dynamics of corporate impunity, and the legal regime that facilitates it, pointing to a shift in the legitimate exercise of coercive force from the State to the corporate sector. In Part Ill, the author analyzes four legal processes that flow from the private public convergence: (1) the privatization of land; (2) the production of consent; (3) the privatization of coercive force; and (4) the absence of effective legal remedies. The human rights implications of these processes in international and national law are highlighted. In conclusion, the author considers the significance of the case study for those who seek to engage international law to address the human rights issues at the centre of the private public convergence. Keywords: Law, convergence of public and corporate power, Peru, Yanacocha Mine, privatized coercion JEL Classification: K30 Charis Kamphuis Osgoode Hall Law School, York University Electronic copy available at: http:IIssrn.com/abstract1598477 2010] LAW & THE CONVERGENCE OF PUBLIC AND PRIVATE POWER IN PERU 3 THE CONVERGENCE OF PUBLIC AND CORPORATE POWER IN PERU: YANACOCHA MINE, CAMPESINO DISPOSSESSION, PRIVATIZED COERCION Charis Kamphuis1 I. INTRODUCTION Yanacocha Mine is the largest gold mine in Latin America and one of the most profitable in the world. It is located between 3500 to 4000 meters above sea level in the Cajamarca region of the Peruvian Andes, approximately 35 kilometers north of the city of Cajamarca or about a sixteen-hour bus ride north of Lima. Three shareholders own and control Yanacocha: the Peruvian CompañIa de Minas Buenaventura and the International Finance Corporation hold a minority interest; the Newmont Mining Corporation, one of the largest gold mining company in the world, is the majority shareholder. Since Yanacocha began operations in the early nineties, significant social, political and legal conflict has ensued. The primary locus of this conflict is the land occupied by Campesino Communities. The focus of this paper is on the convergence of Yanacocha's corporate power and the Peruvian State's public power in relation to two interrelated and fundamental sites of power: land rights and the regulation of the use of force. This convergence occurs in a particular social and cultural context: the land in question is Campesino land, and the use of force at issue is exercised primarily with regard to Campesino Communities and their advocates. In this respect, the merger of public and private power articulates with broader patterns of institutionalized ethnic, social and cultural discrimination faced by Campesino Communities, together with other Indigenous groups in Peru.2 This paper presents two international human rights litigation initiatives that focus on this reconfiguration of public and private power. The story of each case is told through official documents that form the evidentiary basis of each case. These documents have been collected, This paper results from the collaborative legal work carried out by an organically constituted transnational team of volunteer lawyers and law students, working under the direction of Professor Shin Imai of Osgoode Hall Law School since February 2008. However, the work of two people in particular has been essential. The Negritos and GrujIdes Cases came to fruition only as a result of the consistent wisdom, support and guidance of Professor Imai. That said, neither case would exist without the dedicated work and courage of Peruvian lawyer Jesica Karma Chuquilin Figueroa. This paper was written as part of a United Nations University (UNU) funded research project that will be published in a forthcoming volume by the UNU Press. 2 OAS, Inter-American Commission on Human Rights, Second Report on the Situation of Hmnan Rights in Peru, OR OEA/Ser.L/V/II.106, Doc. 59 rev (2000) at para. 32. Andean high land indigenous people remain among the poorest, most marginalized members of society: see Gillette Hall & Harry Anthony Patrinos, Indigenous Peoples, Poverty and Hwnan Development in Latin America: 1994-2004 (Washington: World Bank, 2004) [Hall & Patrinos]. Electronic copy available at: http:llssrn.comlabstract-1598477 4 CLPE RESEARCH PAPER SERIES [VOL. 06 No. 03 reviewed and systematized by a transnational team of community members, volunteers, lawyers, and law professors in Cajamarca, Lima and various Canadian cities. The factual evidence of each case is further contextualized by the most pertinent social science literature. Part One discusses the Negritos Case, which will eventually go to the Peruvian Constitutional Court. I begin this part by providing an overview of the major political and legal shifts in Peruvian Campesina land law and foreign investment policy since 1969. The legal history of the Campesino Community San Andres de Negritos illustrates the complex relationship between Peru's Agrarian Reform and Yanacocha's operations and reveals that the land now occupied by Yanacocha is the ancestral land of the Negritos Community. The allegations in the Negritos Case relate to the transfer of land interests from the Negritos Community to Yanacocha in violation of Peruvian constitutional law and international human rights treaties. Part Two presents a second litigation initiative, the Grufides Case before the Inter-American Human Rights Commission. I begin this section with a brief description of the dynamics that inform the emergence of widespread social protest in response to mining expansion and the corresponding rise of private security companies servicing multinational mining companies operating in Peru. In Cajamarca, when the grassroots NGO Grufides organized to support Campesino protest and activism, Yanacocha responded in part by employing private security companies. The Grufides Case relates to the refusal of the Peruvian State to prosecute the human rights violations arising from the alleged surveillance and persecution of Grufides personnel and Campesino leaders by Yanacocha's private security companies. This form of alleged corporate impunity, and the legal regime that facilitates it, point to a shift in the legitimate exercise of coercive force from the State to the corporate sector. Finally, in Part Three I identify four legal processes that flow from the private public convergence in the Negritos Case and the Grufides ease: (1) the privatization of land; (2) the production of consent; (3) the privatization of coercive force; and (4) the absence of effective legal remedies. The conflation of the roles and responsibilities of the State and Yanacocha in the context of each of these legal processes is analyzed. The human rights implications of these processes in international and national law are highlighted throughout the discussion.
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