Mammoth Latin American infrastructure projects such as the transcontinental railway are a major concern to independent UN expert Alfred Maurice de Zayas, who argues that they pose a serious risks to both human rights and the environment.
"It is a huge project set for 2021 that would cost billions of dollars, if they decide to build it. I am in favor of development, I believe that investments are necessary for the industrialisation of a country and for job creation, but all human rights conventions must be respected," Cuban-American attorney Zayas said.
Supporters of the project say the railroad would be a ‘win-win’ that will provide a crucial upgrade to region's substandard infrastructure, facilitating trade and increasing export revenues whilst also reducing the cost of agricultural imports for China.
Derailing human rights
Zayas presented a report to the UN General Assembly in New York in October, which highlighted the discrepancy between international human rights law and business practices on the ground.
Asked about the social impacts of investments on Latin America, especially those coming from China, Zayas stated: "We have a very strange situation. Even though an international human rights framework exists, the states enter into countless multilateral and bilateral [trade and investment] agreements, and human rights end up left out of the obligations."
Zayas also lamented the lack of proper consultation with those affected by projects. "The problem is that the people who make commercial treaties live in their own world, and for these people human rights do not exist," he told Diálogo Chino, adding; "unfortunately, in the contracts signed in recent years, countries are not forcing companies to live up to their responsibilities."
Commercial treaties do not supersede human rights treaties and must respect existing international institutions, Zayas says, pointing to the importance of the Covenant on Civil and Political Rights adopted by the UN General Assembly in 1966, the Covenant on Economic, Social, and Cultural Rights of the same year, and Convention 169 of the International Labor Organization (ILO).
ILO convention 169, which was adopted in 1989, relates to the right of indigenous and tribal peoples to free, prior and informed consultation on projects that affect their territories. Peru ratified the convenant in 1994, Brazil in 2002. "These treaties are binding, and therefore cannot be violated, they take precedence," Zayas emphasized.
Special rapporteur on the rights of indigenous people, Victoria Tauli Corpuz, goes even further, suggesting that failure to implement ILO Convention 169, more accurately represents a “reversal” of the rights of indigenous peoples.
Corpuz also said she viewed Chinese investments in Latin America with "great concern" and stressed the dangers faced by indigenous leaders who oppose big development projects.
The transcontinental railway connecting Peru and Brazil is an ambitious project that could cost up to US$ 10 billion. But feasibility studies for the railway are only expected to be completed in May 2016. The proposed route is likely to bisect protected areas and indigenous reserves such as the Isconahua in Peru’s Madre de Dios region which borders Brazil.
The railway would also pass through Brazil’s Serra do Divisor National Park, an area of about 840,000 hectares which is home to 1200 species of animals, many of which are threatened with extinction such as the jaguar, the giant armadillo, and the Amazon river dolphin.
It will also affect the Poyanáwa reserve, which numbers just over 500 inhabitants, the smaller Jaminawa-arara community, and the Nukini, number around 700.
With forced displacement from infrastructure developments a reality for many rural-dwelling Latin Americans, Zayas recently told journalists in New York; "it's time for the international community to demand more from corporations, that they not only be fined, but face legal action for violating the right to life."
Zayas told the UN General Assembly that member states should adopt a resolution prioritising human rights in trade relationships and international investments. According to Zayas, there should be an international court with jurisdiction in the field of investment and trade to punish human rights violations and environmental destruction.
Echoing the sentiments of Corpuz, who claimed that Latin America is subject to a “neo-colonialist” development paradigm, Zayas criticised the short-term profit motive that he says Chinese and other infrastructure financiers prioritise and which “tramples” on the environment and indigenous rights.
"What has occurred is a high level of impunity, it is impossible for us to not make transnationals pay for the damage they cause," he said.