Shortcomings in environmental protection, taxation systems and legislation, as well as procedural legal flaws in issuing permits, are among the most contentious matters concerning the mining industry in Armenia. However, human rights and its protection in the mining sector are seldom ever discussed. Often, superficial environmental issues are placed on the public agenda such as ‘protecting’ rocks and bushes, and recently, the protection of even a certain type of butterfly. The perennial counter-argument for these superficial issues concentrates on the idea of job creation and the “noble” notion of tax revenue that the sector secures.
Speaking of rights, it has also become popular to talk about the rights of mining companies and their owners threatened with international arbitration and large fines. However, discussions around the rights of the people whose lives are irreversibly impacted due to these mining companies are few and far between. This article will not highlight the legal shortcomings and flaws in mining procedures but will focus on legal issues pertaining to the rights of mining companies and of the residents of mining-affected communities.
Clearly, mining is not a tissue manufacturing company. It is, however, associated with polluting the environment. Mining companies, their shareholders and state bodies that issue mining permits are all aware of this, which means these types of investments are initially risky not only in Armenia, but all over the world as well. Hence, mining companies and shareholders have to accurately assess all risks. It is for this reason that compared to tissue manufacturing companies, separate legislation was developed to regulate the mining industry. Moreover, there is a separate taxation system for mining as well. In terms of financial revenue, this means that the rights of mining companies and their shareholders have to be completely integrated with the rights and legitimate interests of the residents of the communities concerned. If not, conflicting interests and disputes will arise in the future, as we’ve seen in the case of the Amulsar gold mine.
It is not new that communities around the world have been fighting against mines. So called “developing countries” in Latin America, Africa, and Asia have communities protesting against corporations that mine their country’s natural resources. Unfortunately, Armenia continues to be a “developing country” that protects the financial interests of those same corporations and their shareholders more than the vital human rights of their own citizens.
In law, human rights are divided into two groups – procedural and material rights. An example of procedural rights is a community’s right to take part in decision-making processes. In the environmental sector, this is secured in the Aarhus Convention which Armenia is a signatory to. An example of material rights is the right to ownership.
However, participation in decision-making processes in Armenia takes place only through public discussions and by submitting suggestions. Any opinion by a community opposing draft decisions holds no weight in the final decision made by state bodies. In practice, public discussions are formal and are organized to create the illusion that the right to participate is secured for communities concerned. Even if a whole community is opposed, the Armenian Government has been callously allowing mines to be exploited for years. This is why residents of many communities don’t allow public discussions to take place so as to not make it possible to secure part of the procedural obligations mining companies have to organise public hearings (examples include the communities of Vazashen, Kapan, Ardvi).
Another example of how communities are trying to seek alternative legal mechanisms to protect their rights is by drawing up petitions. Recently, several communities, including Noyemberyan, Jermuk, Areni, and Gladzor, have been submitting signed petitions to their community councils demanding that mining be forbidden in their communities. This has led to a new political climate where the jurisdiction of state and local self-governing bodies are actually surrendering to the mechanisms of direct democracy, since petitions are a way for residents to have direct, non-mediated participation in the governance of their own communities.
This might make it seem like there is a legal or even constitutional crisis developing, because on the one hand legally natural resources are considered exclusive property of the state and only the government has the right to regulate them, and on the other hand communities don’t want mines in their communities, especially when they see how disorganized and irresponsibly mines are exploited in Armenia.
The truth is there is no looming legal crisis nor any issues with separation of power. The question is how to correctly understand developing legal trends and direct democracy mechanisms.
It is important to differentiate the jurisdiction community councils have as local self-governing bodies from the rights citizens to organize and submit petitions. The Armenian Constitution and laws clearly separate the powers of state governing and local self-governing bodies. Armenian laws also state that local self-governing bodies can solve issues regarding their communities within their own jurisdiction. At the same time, the new Law on “Petitions” ensures the right of community residents to take part in governing their communities by submitting petitions to their community councils. Hence, the issue is not about the separation of powers of two administrative bodies (state and local self-government), but about community residents emerging as new players.
To understand the essence of the problem, let’s bring an example. When the Jermuk Community Council passed a decision forbidding mining in their region, the Government began to panic. The Ministry of Territorial Administration and Development of Armenia and the Marzpetaran of Vayots Dzor approached the Jermuk Community Council demanding they reconsider their decision, claiming that the Council did not have the jurisdiction to pass such a decision. The Council, encouraged by community residents, only reaffirmed its decision. However, nobody took this case to the Constitutional Court to get final clarification. Eventually, the state bodies simply acknowledged the Jermuk Community’s stance.
These are new legal conditions that require further development and a separate approach. This is because legal mechanisms for direct democracy are significantly different from mechanisms in the current legislation in Armenia that secure separation of power between state governing and local self-governing bodies. This is a new trend in community self-government and it can play a central role in mining in the future.
Prior to the 2015 constitutional reforms, the former Armenian Constitution stated that people had the right to live in an environment that promoted health and well-being. This meant that the government was obliged to ensure that right. After the constitutional amendments, this clause was reviewed and changed: the Armenian Government is now only obliged to promote that right, not ensure it. This fundamental change has worsened the situation because now the state can refuse responsibility if the decisions it makes causes damage to people’s property or health.
Imagine if you bought a house and a plot of land in a beautiful location surrounded with rich, scenic views. You pay a lot of money for the renovation of the house, you plant a garden and eventually start planning organic agriculture and ecotourism on your land. Suddenly you find out that under the hill next to your property, people have found copper and, maybe, even gold and they’re going to construct a mine there. This would change your life, you can’t continue your business, you will never live with clean air, and there were always be noise and dust. Now imagine that people have lived in these places for generations, they have memories and other non-material values. You can imagine, in this case, how many rights we are dealing with and how many of them are fundamental rights. For the record, let’s establish once again that mines are not tissue manufacturing factories. These are conditions where people’s lives are being turned upside down – their health, well-being, business, non-material values, etc. Companies can claim they won’t pollute the air and cause dust as much as they want. There is not a single example of responsible mining in Armenia, there simply isn’t any.
The Right to Health
The effects mining has on the right to health is one of the most crucial issues in terms of protecting material rights in the sector. This is an issue that everyone tries to avoid. There are no proper legal regulations that can assess the effects mining has on people’s health, no possibility to prove causal links, nor are there compensation mechanisms. This issue is completely flawed legally and practically. There is no judicial precedent in which people have gone to court to receive compensation for health loss.
Relevant state bodies that regulate Armenia’s health sector are not legally obligated to conduct medical assessments or evaluate mining sites. There are also no laws requiring mandatory insurance or health compensation institutions for issues caused by mining sites.
Several years ago, the Center for Ecological-Noosphere Studies of the National Academy of Sciences of Armenia conducted research in the Lernadzor and Kajaran Communities in Syunik Marz. The aim of the research, which included 17 children, was to find heavy metals in their systems caused by mining. The study found a whole array of heavy metals in all 17 of the children’s hair, including lead, copper, and cadmium. The study concluded that large amounts of lead affect children’s nervous system which can lead to mental impairments, as well as eyesight, hearing and oral speech impediments. The study also concluded that large amounts of copper can lead to the development of cancerous cells, and large amounts of cadmium lead to skeletal deformation and lesions in the lungs. These metals can enter a person’s system through different means: soil, water, air, and farm animals.
To assess the effects heavy metals have on the environment, and, specifically, soil, experts from the American University of Armenia (AUA) conducted research in Akhtala and Alaverdi where they found high levels of lead in the bloodstream of the children who were part of the study. Their research was published in an international academic journal. Children were specifically targeted in the study because lead is particularly dangerous at a young age. Just like the research done by the Center for Ecological-Noosphere Studies, the AUA study also found that high amounts of lead can cause growth delays, serious nervous and mental development disorders, as well as loss of memory, short attention span and hyperactivity.
Compared to adults, children are more susceptible and sensitive to lead. Children’s bodies absorb lead in larger amounts. Adults absorb 10-15 percent of exposed lead, whereas children absorb nearly 50 percent. Moreover, a young child’s brain is hypersensitive to toxins. The hematoencephalic barrier, which protects the brain from different pathogens, is not completely developed in children. Hence, toxic substances, including lead, can easily penetrate the brain. Children are also more susceptible because their low weight count means more lead is absorbed for every weight unit. Hence, it affects the body more severely.
These studies clearly show that mining does harm the environment and people’s health. The research conducted by AUA concludes that immediate action needs to be taken to neutralize the dangers in the communities concerned, as well as decrease and prevent new dangers. When launching new mining projects it’s important to assess not only the economic and environmental risks but health risks and possible dangers as well.
It should be noted that mining companies have never admitted that the heavy metals found in the communities concerned were caused by their emissions. Moreover, many company representatives insist that the substances found in the soil were caused by wind-blown dust coming into Armenia from neighboring countries. This, of course, is absurd. However, the fact remains that the current legislation puts the weight of proving loss of health on the individual, which in practice is impossible.
Hence, the most crucial human rights violated by the mining industry is the right to health, which has long-term, fatal consequences. Hence, legislation regulating healthcare and mining has to develop preventive measures for health loss caused by mining. In order to decrease negative social impact, mining companies should be required to include an obligatory clause in their mining plans that would ensure health safety of the residents of the communities concerned and mine workers. This clause should be put into effect during the exploitation of the mines and after the mines have closed as well. As for ensuring the protection of health of residents from neighboring communities (those residing on the periphery of the mines), if it has been proven that loss of health was a result of pollution caused by mining (pollution of water and soil resources, etc.), then that should be the responsibility of the state.
The Right to Ownership
The right to ownership is also vulnerable in the mining sector. When the Teghut mining project was launched, hundreds of families lost land or the ability to cultivate their land. By claiming those lands as eminent public domain, they were acquired from residents for a small amount of money. Domestic courts did not protect these people. However, the European Court of Human Rights ruled that the rights of the Teghut residents were violated and obligated the state to pay land compensation. This meant that the loss of land due to the mining company was compensated by the citizens of Armenia because fines laid out by the European Court have to be paid from the state budget.
Confiscating people’s property and, specifically, land is a widespread practice for mining purposes. It has become custom to claim private property as eminent public domain for the implementation of almost all large-scale mining projects (Kajaran, Teghut, Amulsar).
Effects on Green Business
An issue seldom discussed is how certain businesses that require clean environments, such as tourism, agriculture, health resorts and different types of green farming, are not compatible with mining, especially if they are right next to each other. Statesmen have claimed many times that modern mining can be compatible with green business by bringing examples in Austria, Sweden, etc. The issue of compatibility was widely discussed when the Teghut mine was launching. Eventually, several years after opening the mine, the company owning it voluntarily stopped all activities because the mine’s newly constructed dam was in critical condition. That same dam had received the green light by state inspection bodies and foreign auditing companies during the technical security assessment.
There have been numerous incidents of dangerous substances being drained into rivers or polluting soil and air which have destroyed fish farms or have forced farmers and beekeepers to halt their businesses. It’s preposterous that not one company has ever been held responsible for the loss of businesses people have had to endure. This is because every single business has to itself prove that its losses were due to illegal activity. The same issue is evident when discussing the harmful effects mining has on health: not one company has ever accepted the fact that people can get sick due to the pollution they emit. If it is ever proven that losses were caused by these mining companies, they, in turn, can always claim that everything they do is within the law because the Government granted them permits, hence, compensation should be demanded by the Government. Unfortunately, the Government won’t take on that responsibility, because the 2015 constitutional amendments clearly state that it can only support people to live in a healthy environment, but does not have the legal responsibility to ensure that.
Hence, the issue of human rights in mining is very complicated. State bodies and those regulating the mining sphere have to eventually understand that when assessing short-term economic benefits, it’s necessary to take into account long-term socio-economic consequences as well. These two assessments should be carried out based on the same financial equivalents, including, at least, the human rights mentioned above. If not, there will always be social tensions, and Armenia will remain a developing country that mines raw materials. People can’t simply come in and turn a community’s life upside down without taking their opinion into account, and without suggesting an equivalent alternative and compensation mechanisms. Current social processes in Armenia and in the whole world are a testament to this. This has to be understood by mining companies and calculated by potential investors.