Human Rights and International Law from the Ground Up: Mining, Indigenous Communities, and the Community Consultation Movement in Latin America Amanda Merritt Fulmer A dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Washington, Seattle 2020 Reading Committee: Michael McCann, Chair Angelina Godoy José Antonio Lucero Program Authorized to Offer Degree: Political Science ©Copyright 2020 Amanda Merritt Fulmer University of Washington Abstract Human Rights and International Law from the Ground Up: Mining, Indigenous Communities, and the Community Consultation Movement in Latin America Amanda Merritt Fulmer Chair of the Supervisory Committee: Michael McCann Department of Political Science Abstract My dissertation analyzes the role that international human rights treaties play in local struggles over natural resources in Latin America. I examine how the right of indigenous communities to consultation in the event of a proposed project or law that affects them, protected in Convention 169 of the International Labor Organization, influences the politics of battles over three controversial mines in Peru and Guatemala. Based on extensive field research, I argue that the treaty protection of the right to consultation is central to the region-wide political mobilization against unwanted mines, but that its importance has rested not on the use of formal legal institutions like courts, but on the cultural importance of international law and human rights norms. Community activists and their nonprofit allies have been able to use Convention 169 and the right to consultation to their advantage by rhetorically invoking the legitimacy and authority of international human rights law, even though there have been few legal victories in court based on the right. My study complements “compliance” studies of international law and contributes to work on the cultural power of law. 1 Table of contents Acknowledgements 2 Chapter 1 5 Chapter 2 33 Chapter 3 79 Chapter 4 132 Chapter 5 179 Chapter 6 224 Chapter 7 268 Chapter 8 297 Appendix 1 302 Appendix 2 313 Appendix 3 314 References 316 2 Acknowledgements I have so much gratitude and appreciation for the many people and institutions that supported me in creating this dissertation. Oxfam America was my first institutional home that supported me as I immersed myself in the issues of mining and indigenous rights in Latin America. Maritza Paredes and Jeannet Lingán guided me as friends and mentors, and Martin Scurrah provided me with key personal and professional support. I was proud to count Edda, Sandra, Cathy, Igidio, Guille, Javier, and Liliam as my friends and colleagues. During fieldwork, CooperAcción and José de Echave provided me with invaluable institutional support and a home base of operations in Lima. Grufides played the same role in Cajamarca. I am grateful that they made me feel welcome and included me on so many meetings and activities. At the University of Washington, my dissertation supervisor Michael McCann was the intellectual inspiration behind my project. I am grateful for his support, without which I never would have entered or completed graduate school. Angelina Godoy helped me grow immeasurably as a thinker, activist, and teacher. María Elena García and Tony Lucero provided me with fabulous models of engaged scholarship that I have tried to emulate. Jamie Mayerfeld made sure that I was able to bring a flute along on fieldwork and on other occasions rearranged his personal schedule to protest with me so I wouldn’t be lonely protesting alone. Susanne Recordon and Ann Buscherfeld provided amazing administrative support, which is an underappreciated skill. Mark Weitzenkamp also provided administrative support, and shared his time, energy, and wealth of knowledge on a variety of subjects. Stephen Dunne provided superlative technical support. I would not have been able to complete research for this project without generous support from the Inter-American Foundation and a Chester Fritz grant. In Lima, I found a warm welcome with the family and friends of Harald and Federico Helfgott. Being able to share many delicious vegetarian meals with their grandmother on short notice was one of the key centering pleasures of my stays in Lima. The family of Jeannet Lingán ensured 3 that I had a comfortable place to stay in Lima and was well cared for during my time there. In Cajamarca, the family of Elena Huachecorne was endlessly welcoming. I dream of their hot chocolate. We shared jokes, intellectual conversations, and many meals. Their tender care when I injured myself is almost enough to make me forgive them for beating me in Scrabble. In Guatemala City, the family of Alejandro Cerón provided amazing hospitality. When Mom bosses you around when you’re sick, you know you’re home. While I did not conduct fieldwork in Chile for this project, I will never forget the love and ongoing personal and intellectual support from my host family from my semester in Santiago, Roxana Donoso and Saúl “Bunda” Havilio. I will never forget their care and attention during my first time living in Latin America, which shaped me personally and politically. Several friends supported me throughout the long process of completing the dissertation. Greg Mancini initially pushed me to go to graduate school (thanks…I think?) Richard Just and Anna Huppler Bell endured many updates (“I think I’m getting close to done.”) Hind Ahmed-Zaki gave me her shoulder to cry on during times of personal or political crisis. Filiz Kahraman made my life joyful. Brian and Claire Greenhill, Seth Greenfest, Francisco Pedraza, Matthew Walton, Deepa Bhandau, Jennifer Fredette, and Heather Pool were strong sources of personal and professional support. Michelle Wolf, we miss you. My family of origin made me who I am. My father made me a voracious and skeptical reader and cultivated my love of languages. My mother taught me to keep smiling politely and not move from a chair until I had what I needed. My brother solved countless technical problems. My husband, Douglas, was my rock of calm and non-judgmental support during the entire time I was writing my dissertation. My children, Jackson and Gabo, were entirely unhelpful in completing my dissertation, but I love them anyway. My thanks go to Kidspace Childcare Center, which has contributed so much to my children and my family, and without which I could not have completed my dissertation. 4 Many other people in Peru and Guatemala, too numerous to mention, supported me and guided me in ways large and small. I am so lucky that despite the fact that I came from a country that has inflicted so much harm on Latin America, so many people were willing to talk to me, to argue with me, to laugh with me, to share music and dance with me, to march with me, to eat with me, to drink with me, to live with me, to be my guardian angels in times of danger, to literally take me by the hand and lead me where I needed to go. Thank you. Mil gracias. ​ ​ 5 Chapter 1: Introduction “People don’t give one damn about Latin America.” Richard Nixon tutoring Donald Rumsfeld in 1971 on foreign policy “Why didn’t anybody tell me about this?” Maggie Thatcher in 1992, shocked to see signs of great wealth and infrastructural development from a helicopter ride over Latin America. Introduction As the bus sped south through the nighttime fog gripping the Peruvian coast, I was trying hard to figure out what was going on. It had only been a few hours since I had volunteered to be an “international observer” at a community consultation in the Arequipan province of Islay, where a US mining company had plans to expand, and I wasn’t entirely certain what I had signed up to do. I knew that Convention 169 of the International Labor Organization, which Peru had ratified, guaranteed the right of indigenous communities to a consultation in the event of a project or law that affected them, but I wasn’t sure what an actual consultation would look like in practice. I was travelling from Lima with a representative of the CONACAMI[1], the National Confederation of Communities Affected by Mining, himself from the Arequipa region, and with a young Dutch man who worked with the organization and who was also to be an observer. As people around us on the bus began to snore, my companion from Holland filled me in on the consultation, a local vote on whether or not the mining project, named Tía María, should proceed. 6 He was pleased at my last minute addition to the observer contingent, which consisted of the two of us. “I think our presence will really help elevate the importance of the consultation,” he commented. That remark caught me up short; why should the presence of outsiders serve to validate a referendum intended to demonstrate how local residents felt about a project? What was our role? What did the organizers hope to accomplish with the whole exercise? What did it mean that civil society leaders and local authorities were convening the vote, rather than the national government, which in theory should be the entity responsible for upholding Peru’s treaty obligations and thus the right to consultation? And what, exactly, does an international observer do, anyway? These questions were to gnaw at me through 16 months of fieldwork in Peru and Guatemala, during which I tried to understand how communities grapple with large multinational mining projects in their midst, and how law might fit into their grappling. This dissertation, through an examination of the right to consultation and its role in mining conflicts in Latin America, constitutes an attempt to answer these questions. I draw on an analysis of three in-depth case studies of social conflicts around large mining projects backed by multinational capital, two in Peru and one in Guatemala.