A/HRC/42/42
extractive companies are often not disclosed to the public. As the Inter-American Court
observed in a case regarding oil exploration and exploitation without free, prior and informed
consent, the signing of agreements between States and extractives companies regarding the
provision of security by the armed forces or the national police “did not promote a climate of
trust and mutual respect”.29
34.
The different forms of cooperation between State security forces and private security
personnel employed or contracted by extractive companies therefore form a complex web of
relationships in which it is often difficult to identify or distinguish one security actor from
another. Moreover, many studies and reports on the impact of the extractive industry on
human rights describe security providers in such general terms as “mine security” because
they, understandably, focus their attention on specific at-risk groups or on particular
violations and abuses. For stakeholders striving to shine a spotlight on the respective chains
of commands and roles and responsibilities of State security forces and private security
personnel employed or contracted by an extractive company, transparent and up-to-date
information is generally difficult to obtain, thus frustrating any efforts to make security
providers accountable for their actions.
IV. International and national legal instruments and
complementary initiatives
A.
International human rights law and international humanitarian law
35.
International human rights law, applicable in peace and armed conflicts, requires
States to respect, protect and promote human rights. National and international human rights
mechanisms recognize that corporate actors have an independent responsibility to respect,
and not to infringe upon, human rights, and that the State has an obligation to prevent, or
otherwise investigate and provide redress for, harm caused by such actors. This implies that
the State should take all appropriate measures, including adopting legislation and
administrative instructions to regulate corporations.
36.
By its very nature, the extraction of natural resources touches upon core elements of
the right of peoples to self-determination, one of the fundamental tenets of the international
system. The Charter of the United Nations, in its Articles 1, 2 and 55, recognizes the principle
of self-determination, and accords it equal recognition as the principles of international peace
and security. It is further recognized as a rule of international customary law. 30 The
International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights begin with the right to self-determination (common
article 1). In order for people to exercise that right, they should have the freedom to pursue
economic, social and cultural development, and to “freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may
a people be deprived of its own means of subsistence”.
37.
International human rights instruments, such as the United Nations Declaration on the
Rights of Indigenous Peoples, and related jurisprudence specifically highlight the rights of
indigenous peoples in this regard, in particular securing indigenous peoples’ free, prior and
informed consent over developments proposed on their lands. Indigenous peoples and others
have the right to oppose and actively express opposition to extractive projects, including by
organizing and engaging in peaceful acts of protest (A/HRC/24/41, para. 19).
38.
International humanitarian law provides a set of rules applicable to armed conflicts,
distinguishing between international armed conflicts between two or more States and noninternational armed conflicts (civil wars). According to common article 1 to the four Geneva
Conventions, States are obliged to respect and ensure respect for international humanitarian
29
30
10
Inter-American Court of Human Rights, Kichwa Indigenous People of Sarayaku v.
Ecuador,
Judgment of 27 June 2012, para. 193.
Patrick Dailler., Mathias Forteau and Alain Pellet, Droit international public, 2009, p. 578.
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