Response Letter to Representative Amodei
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September 12, 2018
The Honorable Michael Pompeo
Secretary of State
U.S. Department of State
2201 C. Street, NW
Washington, DC 20520
The Honorable Steven Terner Mnuchin
Secretary of the Treasury
U.S. Department of the Treasury
1500 Pennsylvania Avenue, NW
Washington, DC 20220
The Honorable Wilbur Ross
Secretary of Commerce
1401 Constitution Avenue, NW
Washington, DC 20230
Dear Secretary Pompeo, Secretary Mnuchin, and Secretary Ross:
We are professors who are deeply committed to promoting respect for the rule of law and sustainable development in developing countries such as Guatemala. A number of us have spent considerable time in Guatemala studying the impact of extractive industries, while others are experts in human rights, international law, community development, and other disciplines. We write to express our grave concern about the letter that Nevada Congressman Mark E. Amodei sent you dated August 21, 2018. This letter attempts to link the recent departure of the Executive and Legal Directors of the CALAS, a human rights organization working to promote environmental and indigenous rights issues, over allegations of possible fraud and other charges with potential delays in an important case pending before the Guatemalan Constitutional Court involving the Escobal Mine. The Escobal Mine is owned and operated by Tahoe Resources Inc., a Nevada-based corporation. In the letter, Representative Amodei concludes that resolving supposed delays in the Escobal Mine litigation “unquestionably implicates the interest of the United States in the stability of the region” and asks your respective Departments to conduct an investigation into the whether “actions to facilitate corruption at CALAS” are causing “inexplicable delays” in resolving the Escobal Mine case. In addition, Representative Amodei, as member of the House Appropriations Committee, calls for “immediate steps to scrutinize the conditions of foreign aid to Guatemala.”
Representative Amodei’s stance in this letter conflates corporate interest with the interests of the U.S. government and the residents in the Guatemalan mining region. It is an attempt to meddle in the nation’s legal institutions in ways that compromise the rule of law and legal independence at a time when Guatemala is making significant progress in its anti-corruption agenda. It is also highly problematic that Representative Amodei opportunistically seized on the unfortunate struggles of a non-profit organization to attempt to link those problems with the court case against the Escobal Mine. Representative Amodei does not provide any reason why the allegations against CALAS’ personnel have any bearing on the merits or procedures in the mining case.
Metal mining in Guatemala has been a highly polemic industry.[1] Communities in Guatemala affected by mining have filed several complaints in national courts and in international fora challenging significant irregularities in the way that mining extraction has been conducted in the country by U.S. and Canadian companies. These complaints allege violations of international and Guatemalan domestic laws, including fraud or illegality in how mining companies obtained title to the lands where the mining operations occur; lack of local communities’ legitimate prior and informed consent to mining in violation of international and national obligations; inadequate or misleading environmental impact assessments irregularly approved by the nation’s environmental agencies; and harms to health and the environment, including the waste and contamination of water. The tainted water poses a risk to human life, as individuals must consume it untreated and use it to irrigate their crops. Some of these allegations constitute grounds for the permissible suspension of mining under the nation’s laws.
The Guatemalan courts should be encouraged to resolve these disputes in accordance with their own laws and procedures without undue interference from the US government, including threats to withdraw foreign aid. In fact, just the last week, the Constitutional Court suspended the mining license for the San Rafael mine pending completion of a legally required consultation with the community. The Court urged that this consultation take place as quickly as possible for the sake of all involved. The courts in Guatemala are under enormous pressure, even more so now that President Jimmy Morales has ordered that the Commission Against Corruption and Impunity (CICIG) leave Guatemala in the near future. The CICIG has been highly effective in enabling the Guatemalan justice system to handle cases involving government corruption. To suggest a foreign investigation into a case pending before the Constitutional Court in the absence of any rational justification places undue pressure on the national courts. How is this any different from the pressure or bribes that judges in Guatemala must endure constantly when trying to do their jobs? It is simply wrong.
Unfortunately, our U.S. foreign policy in Guatemala is replete with examples of intervention to protect corporate interests in ways that have deeply compromised democracy in that country and affected U.S. interests in the long term.[2] Guatemala’s ability to continue on a path toward eradicating corruption in favor of the rule of law will hinge a great deal on the ability of national courts to act with integrity and independence. We ask that rather than try to influence the outcome in a case on behalf of private interests, the United States continue to support Guatemala’s rule of law and judicial independence.
Sincerely,
Individual Signatories*:
Raquel Aldana
Associate Vice Chancellor for Academic Diversity and Professor of Law
University of California, Davis
Sahar Aziz
Professor of Law and Chancellor's Social Justice Scholar
Newark Campus
S.I. Newhouse Center for Law and Justice
123 Washington Street
Newark, NJ 07102
Steven Bender
Associate Dean For Planning And Strategic Initiatives
Seattle University School of Law
Richard A Boswell
Professor of Law
UC Hastings
College of the Law San Francisco
Kristina M Campbell
Professor of Law
University of the District of Columbia
Marisa Cianciarulo
Professor, Associate Dean, Academic Affairs
Chapman University
Jenny-Brooke Condon
Professor of Law
Seton Hall University School of Law
Julie Davies
Professor of Law
McGeorge School of Law
University of the Pacific
Patricia Ferreira
Professor
University of Windsor
Lauren Gilbert
Professor of Law
St. Thomas University
Elizabeth M Iglesias
Professor of Law
Miami Law
University of Miami School of Law
José R. (Beto) Juárez Jr.
Professor
Sturm College of Law
University of Denver
Anibal Rosario Lebron
Assistant Professor of Lawyering Skills
Howard University School of Law
Rachel Lopez
Director of the Community Lawyering Clinic
Associate Professor of Law
Drexel University
Thomas R. Kline School of Law
Beth Lyon
Clinical Professor of Law
Cornell Law School
Michelle McKinley
Bernard B. Kliks Professor
University of Oregon
Margaret Montoya
Emeritus Professor of Law
Senior Adviser to Executive Vice President for UNM Health Sciences Center
School of Law
The University of New Mexico
Karen Musalo
Director, Center for Gender & Refugee Studies
Professor
University of California Hastings
College of the Law
Odeana R Neal
Associate Professor of Law
University of Baltimore
Michael A. Olivas
Willam B. Bates Distinguished Chain in Law;
Director; Institute for Higher Education Law & Governance (IHELG)
University of Houston Law
Tom Romero II
Assistant Provost of IE Research and Curriculum Initiatives for University of Denver
Ruben G Rumbaut
Distinguished Professor of Sociology
School of Social Sciences
University of California, Irvine
Antoinette Sedillo Lopez
University of New Mexico
Deborah Weissman
Reef C. Ivey II Distinguished Professor of Law
UNC School of Law
Marcia Narine Weldon
Professor of Legal Writing & Lecturer in Law
Miami Law
University of Miami School of Law
*Titles for identification purposes only
Organizational Signatory:
Latina and Latino Critical Legal Theory, Inc. (a legal-educational nonprofit organization with board members at Cornell, Tulane, Pittsburgh, Miami, Seattle, and other U.S. law schools, and sponsor of the 2015 Guatemala Study Space and 2018 South-North Exchange conference, Antigua, Guatemala).
Cc: Congresswoman Norma Torres, US House of Representatives
Vice President Michael Pence
Chairman Harold Rogers, House Appropriations Committee
Chairman Paul Cook, House Western Hemisphere Subcommittee, Foreign Affairs Committee
[1] Raquel Aldana and Randall S. Abate, Banning Metal Mining in Guatemala, 40 Vermont L. Rev. 597 (2016).
[2] See, e.g, Stephen Schelensinger and Stephen Kinzer, Bitter Fruit: The Story of the American Coup in Guatemala (Harvard University Press, Revised Edition 2005).
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