December 2, 2015

Banco Interamericano de Desarrollo

Hugo Florez Timoran, Argentine IDB Representative

Casilla de correo No. 181, Sucursal 1

Buenos Aires, Argentina

Tel: 54 11 4320 1800

E-mail: HUGOF@iadb.org

E-mail: BIDArgentina@iadb.org

Loan Contract Number: 1865/OC-AR

Project/ Operation Number: AR-L1026

Sector: ENVIRONMENT AND NATURAL DISASTERS

Requesters, RAUL ESTEBAN GARCÍA, SANTIAGO FIGUEROA, VERONICA

MENDOZA, LORENA MENDOZA, MARTA CALAPIÑA, and RENE ROSALIO

MENDOZA are long-time residents of Abra Pampa, which is the capital of Cochinoca, in the

province of Jujuy. Requesters, represented by the University of Texas at Austin School of Law

HUMAN RIGHTS CLINIC, give notice to this country office regarding Loan Contract

Number 1865/OC-AR, financed by the Inter-American Development Bank (hereinafter “IDB”

or “Bank”) under the ENVIRONMENT AND NATURAL DISASTERS PROGRAM in

progress in Argentina. The loan project in Abra Pampa, part of an environmental remediation

pilot program (Subprogram II, Component 3), raises serious concerns regarding the IDB’s failure

to enforce relevant Bank operational policies on prior consultation of indigenous peoples, access

to information, and environmental compliance standards.

This loan project, the first of its kind in Argentina, will serve as the basis for a technical manual

for future remediation projects. However, the project has failed to meet critical loan targets and

deadlines, and has extended the original completion deadline by three years in Abra Pampa.1 It

has seen multiple years of delaying the beginning and end of remediation measures.2 There has

also been an underutilization of funds, and failures to implement precautionary measures for

toxic lead waste removal, which have resulted in direct harm to residents of Abra Pampa as well

as a deprivation of their rights as an indigenous population. The Bank has failed to adequately

follow its own policies by providing inadequate information regarding the project to residents of

Abra Pampa, has failed to ensure that remediation took place in the most environmentally

sensitive and transparent way possible, and has failed to properly consult with the indigenous

population. The Bank’s shortcomings with regard to its loan design and implementation have

1 Email from Ricardo Quiroga, October 5, 2015. 2 Remediation, according to the original remediation plan, was set to begin in April-December of 2009. Instead,

remediation began at the end of 2011. See: “Activity Proposal for Environmental Remediation of the Former Plant

Metal Huasi, Abra Pampa, Jujuy.” April 25, 2007.

SCHOOL OF LAW

THE UNIVERSITY OF TEXAS AT AUSTIN

Human Rights Clinic • 727 East Dean Keeton Street • Austin, Texas 78705

Phone: (512) 232-6477 • Fax: (512) 232-9171 • hrc@law.utexas.edu

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caused and will continue to cause direct harm to Requesters Raul Garcia, Santiago Figueroa,

Veronica Mendoza, Lorena Mendoza, Marta Calapiña, Rene Rosalio Mendoza, and their

respective family members. These harms come in the form of infringement upon the right to

information, right to health, indigenous rights, and children’s rights. The dire health and

environmental conditions in Abra Pampa require immediate Bank action.

I. Loan Background Information

The overall loan project is classified under the “Environment and Natural Disasters” sector as a

category “C” operation and is currently in its implementation phase.3 The program encompasses

two sub-programs: (i) promotion of cleaner production and eco-efficiency in small and medium

enterprises (“SMEs”) through actions in promotion, capacity and training, and financing of

technological improvements; and (ii) strengthening environmental management in the mining

sector through actions in promotion and awareness in host communities, training and capacity

strengthening of small miners and assessment of environmental liabilities in abandoned mine

sites in Argentina.4

This brief focuses on Component III of the latter sub-program (ii), which includes an

environmental remediation pilot program, to be executed by the Secretaría de Minería de la

Nación (hereinafter, “SM”) and its internal Environmental Management for Mining Department

(hereinafter, “GEAMIN”).5 CESEL S.A. (hereinafter, “CESEL”) was contracted as a consultant

for part of the remediation.

i. Loan Specifics

The loan in question is a sub-project of the 1865/OC-AR loan, approved on May 16, 2007, and

executed by Argentina and the IDB on November 6, 2007.6 The financial conditions of the loan

3 Category C represents operations classified by the Bank as likely to cause “minimal or no negative environmental

and associated social impacts.” These operations do not require environmental or social analysis beyond screening

and scoping analysis but where relevant require safeguard and monitoring minimum standards. See Inter-American

Development Bank, Environment and Safeguards Compliance Policy (GN-2208-18), SUSTAINABLE

DEVELOPMENT DEPARTMENT, 8-9 (Mar. 2006); Clause B.3 4 Inter-American Development Bank, Loan Proposal (AR-L1026), ENVIRONMENTAL MANAGEMENT

PROGRAM FOR SUSTAINABLE PRODUCTION IN THE PRODUCTIVE SECTOR, 9 (May 16, 2007). 5 GEAMIN (el Subprograma de Gestion Ambiental Minera) is the executing unit responsible for the Abra Pampa

pilot program. The overall environmental pilot program called for: “(i) a nationwide inventory of inactive or

abandoned areas degraded by mining activities predating enactment of Law 24585 of 1995, including a prioritized

list of critical areas for remediation; and (ii) a detailed evaluation of liabilities, with onsite profiling of pollution

sources, a description of impacts, and a risk assessment in eight degraded areas… Remediation projects will be

prepared on a pilot basis, and the corresponding investments will be made for the remediation of environmental

liabilities (elimination of pollution sources, adequate disposal of contaminated waste, and monitoring systems) will

be carried out in three of these areas, at an estimated cost of US$10.4 million. This experience will be reflected in a

technical manual for subsequent remediation of other mining-related environmental liabilities.”Loan Proposal (AR-

L1026), supra at 12-13. 6 Inter-American Development Bank, Loan Contract Number 1865/OC-AR: LEG/SGO/CSC/IDBDOCS: 928477-07,

Environmental Management Program for Sustainable Production in the Productive Sector(Nov. 2007) available at

http://www.iadb.org/es/proyectos/project-information-page,1303.html?id=ar-l1026#doc. See also Inter-American

Development Bank, Loan Proposal (AR-L1026), ENVIRONMENTAL MANAGEMENT PROGRAM FOR

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contract stipulated that the IDB would contribute a $40 million credit with a 6-year grace period,

and Argentina, $10 million.7 This loan was designed to assist the Argentine government in waste

removal and remediation efforts to be carried out at three sites affected by mining in Argentina,

including Abra Pampa.

The remediation work included the removal of visible piles of waste in three sites in Abra

Pampa, as well as the building of an amphitheater and a sports complex for community use. The

remediation work included the removal of visible piles of waste in three sites in Abra Pampa, as

well as the building of an amphitheater and sports complex for community use. One of the sites

is the former location of a lead smelting plant, Metal Huasi, which operated for over 50 years

before its operations were shut down in the 1990s.8 Upon its shutdown, the plant left behind

visible piles of heavy metal waste in the site and throughout Abra Pampa. The two other sites

chosen for remediation in Abra Pampa, in the neighborhood Barrio 12 de Octubre and the bed of

the river Tabladitas (“Arroyo Tabladitas”), were two sites in which lead slag from Metal Huasi

had been left throughout the course of the smelter’s operations. However, the loan, in the

proposal or contract, did not address how the lead contamination would be neutralized or

removed from the land. It also did not acknowledge that the three chosen sites for waste removal

were not the only sites with a presence of heavy metal waste and lead contamination. Finally, it

did not address how the health of the residents who had been contaminated would be treated.

These failures have produced direct health harm to the Requesters as shown by dangerous levels

of lead currently present in their blood.

The project suffered consistent under-utilization of the IDB loan in the 2008-2011 period.9 Both

the Argentine government and the Bank obstructed information flow about monetary

compensation and the environmental remediation timetables.10 Additionally, the project

experienced a series of delays that called into question both the Bank’s effectiveness in

monitoring the program and its commitment to the autonomy and physical wellbeing of the

Requesters and the indigenous population that makes up a majority of residents in Abra Pampa.

The remediation work in Barrio 12 de Octubre was scheduled to begin in 2007 and end in 2010,

but did not begin until late 2011. Waste at the Metal Huasi and Arroyo Tabladitas site was

removed in 2008 and 2009. The project was time-sensitive due to the severe health and

environmental effects of exposure to lead, which are exacerbated as prolonged exposure

continues.11 The delays of removal have kept Abra Pampa residents from redress for

environmental harms incurred starting more than 70 years ago, when Metal Huasi began

operating. The loan originally contained a November 6, 2010 deadline but was subsequently

SUSTAINABLE PRODUCTION IN THE PRODUCTIVE SECTOR. Clause 2.11, 12-13 (May 2007) available at

http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1190988. 7 Id. at Project Summary. 8 In Abra Pampa most people have lead in their blood, Clarin.com, (Feb. 9, 2007), available at

http://edant.clarin.com/diario/2007/09/02/sociedad/s-04215 htm 9 According to the 2012 National General Auditor’s report, the actual money invested in environmental remediation

for each year never rose to more than 40.4 percent of the IDB and Argentina’s original allocation of funds for the

project. “Informe de Auditoria de La Nación: Primer semestre de 2010-2012”, 15. 10 “A Generation Poisoned by Lead: A Follow-Up Report on the Health and Environmental Crisis in Abra Pampa

Argentina” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011) 14-17, 24. 11 Interview with Dr. Oscar Perez Heredia, Nov. 5, 2015.

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extended until May 2015, and again until November 2015.12 A recent update from Ricardo

Quiroga, the project manager in Argentina, indicates that IDB deadlines for the loan project

completion and disbursement of funds have been extended until June 2016.13 This recent

communication from the IDB in Argentina stated that funds for Abra Pampa are currently being

disbursed, and 74% of funds for the entire loan have been disbursed.

The remediation efforts in Abra Pampa are in the implementation stage, and were recently

observed by a Clinic delegation in November 2015. Past delegations have visited in May of

2009, April of 2011, and October of 2012.14 The amphitheater is currently under construction at

the former site of Metal Huasi. This construction has experienced similar delays, and the

amphitheater was in a state of incompletion as of November 4, 2015. Requesters have expressed

uncertainty about the project, as it has an open roof, which is unusual in a climate of extreme

temperatures and high winds.15 The sports complex, located in Barrio 12 de Octubre, was also

incomplete during the Clinic’s November 2015 visit, as it consisted of an open field with goal

posts scattered throughout.

More than one simple project delay, these continuous deadline extensions indicate that a sense of

urgency, either about properly achieving the loan’s original conditions, or treating affected

residents, has remained absent from the IDB’s monitoring duties. The duties of the IDB include a

supervisory role to the countries that it intends to aid. Instead of enforcing deadlines that would

encourage efficiency on the part of the Argentine government, as any supervisor would, the IDB

failed to adopt any measures to address Argentina’s haphazard approach to remediation, and

instead seemingly turned a blind eye to the mismanagement of loan funds. This lack of diligence

did not merely impede the Requesters’, their families, and other residents’ recovery from health

issues stemming from environmental dangers, but simultaneously contributed to the spread of

lead contamination beyond the site.

ii. History of the Loan

The loan attempts to alleviate the environmental damage that has been the result of a long history

of neglect in Abra Pampa, as well as other regions that have been affected by metal mining.

Metal Huasi operated in the center of Abra Pampa for roughly 50 years.16 When it closed in the

early 1990’s, it left behind large quantities of heavy metal waste throughout the town, including

a 15 to 20 thousand-ton pile of waste at the former smelting plant site.17 The dangers created by

12 Compare Clause 3.04 of Loan Contract Number 1865/OC-AR with Application for extension of time for duration

of contract. (Oct. 16, 2013), available as of late 2014 at

http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=39268536 13 Email from Ricardo Quiroga, October 5, 2015. 14 Delegations have produced two reports: “Abra Pampa: a Community Ignored, a Community Polluted: The

Struggle for Environmental and Health Rights in Argentina” (Austin: Human Rights Clinic at the University of

Texas School of Law, 2009) and “A Generation Poisoned by Lead: A Follow-Up Report on the Health and

Environmental Crisis in Abra Pampa Argentina” (Austin: Human Rights Clinic at the University of Texas School of

Law, 2011). 15 Interview with Requesters Mendoza, Calapiña, and Figueroa. Nov 2-5, 2015. 16 In Abra Pampa most people have lead in their blood, Clarin.com, (Feb. 9, 2007), available at

http://edant.clarin.com/diario/2007/09/02/sociedad/s-04215 htm 17 “A Generation Poisoned by Lead: A Follow-Up Report on the Health and Environmental Crisis in Abra Pampa

Argentina” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011), 12.

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exposure to waste of this magnitude have been evidenced by recommendations published by the

Argentine Provincial Ombudsman, National Ombudsman, and Ministry of Health, as well as a

number of independent investigations.18 These recommendations linked health problems in Abra

Pampa with exposure to toxic wastes, most notably lead, prior to the IDB’s loan proposal and

subsequent loan contract.19 The Metal Huasi site, Arroyo Tabladitas and Barrio 12 de Octubre,

were identified during the loan’s initial environmental assessment as the areas posing the largest

threat to Abra Pampa and its people of dangers stemming from toxic wastes, likely due to the

amount of waste deposited in these sites.

Research in 1986 by the Toxicology Service at the Central Laboratory of Jujuy’s State Ministry

of Health tested 120 6-year-old and 102 12-year-old children in Abra Pampa. The study found

that 80 percent of those children had critical amounts of lead (10 micrograms per deciliter, or

“µg/dL”) in their systems. In addition, the study found that 32% of the 6-year-olds and 48% of

the 12-year-olds exceeded the internationally accepted maximum allowable blood-lead level at

the time, which was 20 µg/dL.20 A study by the Department of Toxicology, located in Jujuy,

published in 2006 at the University of Buenos Aires yielded numbers similar to those in the 1986

study and recommended that the government not only conduct an environmental-risk analysis,

but also provide treatment for affected children.21

Around the same time, a study conducted in 2004 and published in 2006 by the Department of

Environmental Toxicology at the Autonomous University of San Luis Potosí in Mexico, with

UN collaboration, found that lead levels in Abra Pampa’s soil exceeded the 400 mg/kg

maximum allowed in Mexico and the United States. The Center wrote the mayor of Abra Pampa

at the time, Herman Zerpa, suggesting a health-monitoring program for children.22 No

government action to monitor health has been taken to date.

18 In 2006, the Jujuy Provincial Ombudsman recommends that relevant government organizations monitor and take

action. Defensor del Pueblo de la Provincia de Jujuy, Resolución No. 0229, June 27, 2009. Original: “…flagrante

violación al derecho humano a un ambiente sano y correlativamente al derecho a la salud.” The Provincial

Ombudsman also wrote a letter to Prosecutor Antonio Oustavo Gomez about the urgency of the situation in Abra

Pampa. In 2007, the National Ombudsman recommended Jujuy government take immediate action for the medical

care of affected residents. Defensor del Pueblo de la Nación, Recomendación al Gobierno de Jujuy y a la Secretaría

de Ambiente de la Nación por la Contaminación en Abra Pampa, Actuación No. 1678/07, July 19, 2007. Quoting,

“Que surge claro de lo aquí relatado que los 7500 habitantes de Abra Pampa ven lesionado su derecho al ambiente

sano dado que el mismo no es apto para el desarrollo humano, en razón de que claramente la negligencia pública y

privada vinculada a la minería, ocurrida durante décadas, ha transformado un ambiente sin impactos negativos

relevantes en un ambiente productor de riesgos y daños al ecosistema natural y a los seres humanos que

desinformadamente vivieron, jugaron, crecieron y trabajaron entre las escorias de la enfermedad. Que surge claro

que las autoridades provinciales o municipales no han realizado las acciones

que responsablemente correspondieran para garantizar los derechos humanos básicos a la salud y al ambiente sano

de los habitantes de esta localidad, considerando que desde 1986 se sucedieron una gran cantidad de acciones

desacertadas y omisiones incomprensibles.” 19 Id. 20 “Epidemiological study on environmental contamination provoked by lead in the school-age population of Abra

Pampa in relation to a lead smelter located in the town” by Toxicology Service of the Central Laboratory of Public

Health from 1986, results published in “Epidemiological study on environmental contamination provoked by lead in

the children of Abra Pampa,” signed by Dr. Sara Barberis. Date not included. 21 Sara Barberis, Adriana Pineiro and Clara Magdalena Lopez, “Study on the environmental contamination provoked

by lead in the children of Abra Pampa” signed by Dr. Sara R. Barberis. Date not included. P.4-6. 22 Letter to Herman Zerpa, Collaborating Centre on Health Risk Assessment and Children's Environmental. Health,

July 2006.

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Another study published in 2006, by the National University of Jujuy’s Applied Chemistry

Research Group (INQA), found that 81 percent of children, 234 children tested between the ages

of 6 and 12, all who lived within 500 meters of the large pile of metal waste at the Metal Huasi

site, had absorbed at least 5 µg/dL of lead in their blood, an amount sufficient to delay mental

development, and 16 percent of those tested had absorbed 20 µg/dL, twice the dosage at which

the body risks organ failure.23 The level at which neurobehavioral damage occurs, according to

the World Health Organization, is less than 5 µg/dL. A child’s developing brain and nervous

system is damaged at levels under 10 µg/dL, a level at which immune, cardiovascular, and

reproductive systems are also adversely affected.24 According to the leading toxicologist in

Jujuy, Dr. Oscar Perez Heredia, who was involved in the 2006 INQA study and recently

evaluated 296 residents of Abra Pampa for lead-related health effects, the ideal level of lead is

zero, as cognitive development and health of those susceptible to poisoning is already greatly

affected at 3 µg/dL.25 The families of Requesters Raul Garcia, Santiago Figueroa, Lorena

Mendoza, Marta Calapiña, Rene Rosalio Mendoza, and Veronica Mendoza all include children

who grew up in and were conceived by pregnant women who were exposed to lead.26 These

groups, as well as the elderly and people with autoimmune disorders are most susceptible to lead

poisoning.27 Requesters state that the following symptoms have been evident either in their own

health or that of their children and grandchildren: chronic fatigue, chronic bone and joint aches,

chronic headaches, memory loss, and cognitive degeneration, all of which are common

symptoms of lead poisoning.28

In late 2014, a judge ordered the evaluation of 297 residents of Abra Pampa who have brought a

civil lawsuit against the local government. Requesters are part of the civil lawsuit, and are

represented by a local lawyer. The judge appointed a biochemist, psychologist, and a

toxicologist, all from the province of Jujuy, in order to measure current blood-lead levels and

evaluate the mental and physical effects of lead on those residents. Dr. Oscar Perez Heredia, the

aforementioned psychologist, spoke to a Clinic Delegation in November 2015 regarding the

general findings, and reported that lead contamination is still present through high lead levels in

blood tests in the majority of those evaluated, years after lead waste was removed through the

IDB-funded remediation loan. In addition, the psychological findings indicate that 90% of those

evaluated have some level of cognitive disability, and many residents were found to meet the

legal standard in Argentina for cognitive disability, which is a 66% level of disability.29

Most recently, the National Ombudsman requested information from the Government of Jujuy in

April 2015 regarding the progress of restoring the environmental conditions left by Metal Huasi

23 “A Generation Poisoned by Lead: A Follow-Up Report on the Health and Environmental Crisis in Abra Pampa

Argentina” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011), 26-28. See also: “Lead

contamination in the town of Abra Pampa” Health Ministry of Jujuy, October 2007. 24 “Childhood Lead Poisoning” Published by the World Health Organization, 2010. Can be accessed at

http://www.who.int/ceh/publications/leadguidance.pdf. 25 Interview with Dr. Oscar Perez Heredia, Nov. 5, 2015. 26 Interviews with Requesters, Nov. 1-5, 2015. 27 Interview with Dr. Perez Heredia, Nov. 5, 2015. 28 Id. 29 Id.

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in Abra Pampa and any actions or plan to solve the continuing problem of lead contamination. 30

The request had not been answered as of September 2015.31 Dr. Perez Heredia believes there is

still a great deal of contamination in the soil, water, and throughout the food supply, and

Requesters all believe there is still contamination present as their blood levels have not shown a

decrease in lead since the removal of the waste. In other words, the IDB and the Argentine

government have been aware of the dire health situation of the Requesters and the rest of the

population in Abra Pampa for almost thirty years – but have failed to adopt a comprehensive

health plan. With this failure, the IDB is directly responsible for the current health situation of

the Requesters.

iii. The Importance of Abra Pampa as a Pilot Program

According to a 2005 United Nations “Report on Human Development”, the province of Jujuy

has historically suffered as a “critical region” of Argentina in need of development due to high

levels of poverty and unmet basic needs. In 2004, coming out of a national economic crisis

spurred on by the 2001 default, the Jujuy region stood out as its poverty rate was sixty-percent,

compared to the national average poverty rate of forty-four percent. The city of Abra Pampa

stood out as it had a seventy-percent rate of unemployment.32 According to Argentina’s National

Statistics Institute’s (INDEC) 2010 National Census, 18.1 percent of residents in Jujuy did not

have their basic physical needs met, compared to the 12.5 percent national average.33 According

to Jujuy’s Secretary of Sanitation Planning and Regulation, 90 percent of the Abra Pampa

population has access to potable water, while only 83 percent has access to electricity. Only 37

30 The National Ombudsman requests information from the government in Jujuy regarding Abra Pampa and the

situation left by Metal Huasi. Defensor del Pueblo de la Nacion, Resoluciones DPN No. 87/07 y 215/11, 15 April

2015. Original“Nota No. 000901, Contaminacion con plomo en Abra Pampa, pcia. de Jujuy, en la cual se realiza el

seguimiento de las acciones de recomposicion del pasivo ambiental dejado en esa localidad por la empresa Metal

Huasi.” 31 Email from Virginia de Francesco, National Ombudsman, on September 10, 2015. 32 United Nations Development Program (UNDP/PNUD). “Informe sobre Desarrollo Humano,” Buenos Aires,

Argentina, 2005. Argentina’s general economic program is worth noting however. According to the 2014

development report, the 2009 cash-transfer program Asignación universal por hijo has reduced poverty by 22

percent, and extreme poverty by 42 percent ( “Ch.4: Building Resilience: Expanding freedoms, protected choices”,

United Nations Human Development Report (2014), 89). 33 “Cuadro 1. Hogares y poblacion con Necessidades Basis Insatisfeschas (NBI) segun provincia. Total del pais. Año

2010. ” http://www.censo2010.indec.gov.ar/archivos/censo2010_tomo1.pdf. Lack of communication (telephones)

and poor infrastructure (high percentages of homes with dirt floors) also characterized Jujuy’s struggling population.

Similarly, the IDB itself historically pinpointed the Argentine indigenous population of the north and northwest as a

community of extreme poverty in no small part due to ethnic discrimination and a lack of autonomy. Anne

Deruyttere, “Indigenous people and Sustainable Development: The Role of the Inter-American Development Bank.”

Presentation at the IDB Forum of the Americas April 8, 1997, 5, 8 (Figure 3). Financial institutions by the time of

the loan had reached a consensus on this holistic approach. In the years leading up to the IDB’s loan, the World

Bank also attempted to respond to indigenous needs focused on “establish[ing] the basis for community

development and the protection and management of natural resources in the lands of indigenous communities in

three areas of Argentina” specifically the Kolla community of Finca Santiago IPA in the Salta province. Shelton H.

Davis, Jorge E. Uquillas, and Melanie A. Eltz, “Introduction and Overview.” In Lessons of Indigenous Development

in Latin America: The Proceedings of a World Bank Workshop on Indigenous Peoples Development. Washington,

DC: World Bank Environ. Soc. Sustain. Dev. Dep., 2004, 5. See also: Sandra Cesilini, Isabel Tomadin, and Melanie

A. Eltz, “The Indigenous Communities Development Project in Argentina” In: Ibid., 64.

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percent of the population has finished primary school.34 A significant indigenous population

lives in northwest Argentina and Abra Pampa is an important social, political, and economic hub

for indigenous residents. The 2010 Census results regarding northwest Argentina indicate that

10% of the population is indigenous, and native populations make up 35% of rural populations.35

However, because data and census collection is more difficult and often incomplete in rural

areas, these numbers likely under represent the number of residents who self-identify as

indigenous. These statistics indicate that Jujuy and Abra Pampa have traditionally been home to

underserved residents, as indigenous populations have historically been among the most

politically and economically marginalized in the country. The presence of mining-related

activity in Abra Pampa has merely exacerbated these conditions, and has added severe health

consequences for its residents.

As a pilot program, the Abra Pampa project should be subject to a higher degree of scrutiny

because it represents part of the IDB’s first undertaking in Argentina to create a model for future

environmental remediation sites. Abra Pampa was selected as one of three loan recipients for the

environmental remediation pilot program from a list of eight degraded sites “prioritized due to

their impact on the environment and the health of affected communities.”36 According to the loan

proposal, Abra Pampa and two other sites were to serve as a model for “clean production” for

other mining projects from the Secretaria de Minería in Argentina. Specifically, the project

would seek to provide concrete procedures for remediation and investment in the “elimination of

pollution sources, adequate disposal of contaminated waste, and monitoring systems.”37 The

experience in the three project sites would serve as the basis for “a technical manual for

remediation of other retired mining sites” that constituted possible environmental hazards.38 In

other words, although the number of people immediately impacted by this remediation is

relatively small, the effects of the IDB’s oversights would certainly extend to the execution of

other projects performed in the future. As a pilot project, it is highly concerning that priority was

given to Abra Pampa due to “the health of affected communities” (including the Requesters) but

the IDB approved and monitored a loan without a health component. Recognizing the execution

of timely and careful remediation, which coincides with the procedures the IDB itself has put

into place, as a priority will be key for the successful execution of future projects. Should the

procedural problems reported herein go unaddressed, future large-scale projects run the risk of

suffering many of the oversights that have caused direct harm to residents of Abra Pampa and

their rights.

34 “Lead contamination in Abra Pampa” Secretary of Sanitation Planning and Regulation, February 24, 2010.

http://repositories.lib.utexas.edu/bitstream/handle/2152/18879/3 marzo 2010 carta OCR.pdf?sequence=2. 35 García Moritán, Matilde, and María Beatriz Cruz, Comunidades originarias y grupos étnicos de la provincia de

Jujuy (Tucuman: Ediciones del Subtrópico, 2011),11.

http://www.productoyungas.org.ar/imagenesfck/pdf/publicaciones/Cartilla-Etnias-Jujuy.pdf. More data on the Kolla

can be accessed on the 2004-2005 ECPI indigenous supplemental survey.

http://www.indec.gov.ar/micro sitios/webcenso/ECPI/pueblos/ampliada index.asp?mode=06. 36 See Loan Proposal (AR-L1026) at 12. 37 Id. 38 Inter-American Development Bank “ARGENTINA PROGRAMA DE GESTIÓN AMBIENTAL PARA UNA

PRODUCCIÓN SUSTENTABLE EN EL SECTOR PRODUCTIVO (AR-L1026) PROPUESTA DE PRÉSTAMO,

Secc. 1.25, Secc. 2.11)” (March 9, 2007),10, 14.

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II. The Loan Design and Its Implementation Were Harmful and Did Not Follow the IDB’s

Own Operational Policies.

The loan has been marked by noncompliance with the IDB’s own operational policies, causing

direct harm to the Requesters. The following policies have not been complied with during the

design and implementation of the loan: Environment and Safeguards Compliance Policy,

Operational Policy on Indigenous Peoples, Access to Information Policy and General

Operational Policies. There was a lack of accountability during the waste removal process,

resulting in disregard of environmental safeguards by executing agencies, insufficient prior

consultation of indigenous peoples, and non-disclosure of important information to the

community and public. The Bank’s failure to follow and enforce compliance of these policies

onto the agencies that executed the loan should raise serious concerns about the replication of

this pilot project design in the future. These violations have caused direct harm to Requesters and

their families. In order to uphold the quality of work and reputation of the Abra Pampa program

and future IDB-funded environmental remediation projects, these violations must be addressed

and a plan put in place to prevent future violations.

The IDB loan charged the Secreteria de Minera (“SM”) with carrying out the work in Abra

Pampa. It hired CESEL Ingenieros S.A., a Peruvian firm, as a consultant for the remediation

work and began waste removal in 2009 (in its first stage), which was not completed using IDB

funds. No explanation was provided as to why the IDB funds were not used. However,

subsequent removals were completed using IDB funds and were completed by CESEL in the

same manner as the 2009 removal.

The IDB has operational policies in place that serve to ensure the protection of the environment;

these guidelines, if followed, would have yielded a positive impact in Abra Pampa.

Unfortunately the IDB has failed to take supervisory measures to ensure that executing agencies,

which are part of the Argentinean government in the Abra Pampa project, and its consultants

follow the Bank’s policies.

i. The Loan Failed to Comply With the IDB’s Environmental and Safeguard Compliance

Policy by Excluding a Health Remediation Component (“OP-703”) and Through Its

Implementation

A. The Lack of a Health Remediation Component Did Not Comply With OP-703

Despite the IDB’s apparent choice to confine the definition of the environmental remediation

pilot project in Abra Pampa to mean removal of toxic wastes from selected ground surfaces, the

Bank’s definition of environment in their Environment and Safeguards Compliance Policy (“OP-

703”) unmistakably includes biological and human factors that the Bank has ignored in the

implementation of this loan. The policy defines “environment” to include physical/chemical

factors (geophysical), biological factors (biotic), and associated social factors (anthropic).39 The

policy references compliance with the “Declaration on Environment and Development,” also

39 Inter-American Development Bank, Environment and Safeguards Compliance Policy (GN-2208-18),

SUSTAINABLE DEVELOPMENT DEPARTMENT, 10 (Mar. 2006).

10

known as the “Rio Declaration”, which was adopted by the United Nations in 1992.40 The Rio

Declaration states as Principal 1 that “[h]uman beings are at the centre of concerns for

sustainable development.” 41 Principle 13 explains that States shall develop national law

regarding liability and compensation for the victims of pollution and other environmental

damage. States shall also cooperate in an expeditious and more determined manner to develop

further international law regarding liability and compensation for adverse effects of

environmental damage caused by activities within their jurisdiction or control to areas beyond

their jurisdiction.” 42 As a result, the IDB’s own policies, contrary to the design and

implementation of the Abra Pampa pilot project, considers human factors in balance with nature

and fosters the acceptance of international legal norms on environmental liability and

compensation. The project overseen by the Bank in Abra Pampa defies its own language and

goals for environmental remediation. The IDB has made a vow to comply with them and to

uphold them. The failure to include a health plan, as a kind of “compensation for the victims of

pollution and other environmental damage,”43 for the Requesters and the people of Abra Pampa

is a clear rejection of the policies adopted by the IDB.

Furthermore, the IDB Environment and Safeguards Compliance Policy mentions health, and

says the first priority of environmental mainstreaming is to enhance social development and

increase the overall quality of life. The policy recognizes that investments in the environment

and better management of natural resources result in jobs, sustainable income, improved health

and better living conditions, particularly for the poor.44 This language suggests that IDB loans,

particularly those related to environmental management such as this project, have the explicit

goal of improving health and bettering living conditions. Currently, this goal remains absent

from Bank priorities in the loan and should be introduced as a critical component of remediation.

The goal of the Bank to “enhance social development and increase the overall quality of life” is

impossible to fulfill when the health of Requesters and other residents has not been treated,

evaluated, or otherwise acknowledged.45

The Requesters and the Clinic acknowledge the importance of ground toxic waste removal to the

health of Abra Pampa residents. However, this measure is merely preventative for future illness

if we are to believe that contamination has been cleared completely, which has not been proven

by independent studies post-remediation. At this point in time, follow up independent studies,

which could determine the existing levels of lead contamination, have not been conducted. The

removal also does nothing for residents who have already been exposed to lead contamination

that has been present for over 70 years, such as the families of the Requesters.

According to Dr. Perez Heredia, the removal of waste piles has not addressed the problem of

contamination that continues to be present in many other forms, such as in the ground, water, and

throughout the food supply chain. Dr. Perez Heredia was present during the INQA study in 2006,

40 Id. 41 United Nations General Assembly, Report of the United Nations Conference on Environment and Development,

U.N. Conference on Environment and Development (1992), U.N. A/CONF.151/26 (June 3-14, 1992), available at

http://www.un.org/documents/ga/conf151/aconf15126-1annex1 htm. 42 Id. 43 Id. 44 Inter-American Development Bank, Environmental and Safeguards Compliance Policy, 3-4. 45 Id.

12

Lastly, language found within the loan proposal suggests the loan should have included a health

component. The first page of the Loan Proposal, under “Socioeconomic viability,” clause 4.5

specifies:

“The program is expected to generate the following economic benefits: (iii) losses avoided at the

social level from damage to the health and environment of communities near environmental

mining liabilities.”

Clause 4.5 clearly suggests that health of the residents and the remediation of the environment is

closely intertwined and one cannot be achieved without the other. While it does not specifically

mention remedial health action, a health component would have been essential to treating and

preventing health problems resulting from the decades of exposure to waste, as well as the

further exposure during the remediation and removal of waste. While the loan proposal included

remediation of health, the loan contract did not result in any actions to address a health

component of remediation.

In addition to the health studies already mentioned, there are several published reports, including

reports from Clinic delegations in 2009 and 2011, which have made the IDB fully aware of the

pressing health crisis in Abra Pampa during the loan proposal and implementation phases.52 The

National Ombudsman has requested further information from the Argentine government, as well

as air samples to test for contamination, in efforts to get diagnosis and treatment for residents of

Abra Pampa.53 Residents have turned to local media to report a lack of treatment and unreported

results of blood tests by telling their stories.54 Furthermore, the judicially ordered study from

December 2014 has been cited in local news as evidence of continued contamination.55

As primary facilitator of the loan process and principal fund distributer, the IDB had the power

to delay loan approval until a health component was implemented into the design. It is clear that

both the IDB and the Argentine government have been aware of the health issues in Abra Pampa

and Requesters’ and other residents’ demands and needs, yet the IDB excluded a health

component in the loan design and repeatedly dismissed recommendations and opportunities to

address health issues. In addition, the IDB failed to cease loan distribution once it was aware that

the occurrences in Abra Pampa were adversely affecting the health of citizens in Abra Pampa.

This failure to act on the problem has frustrated and caused direct harm to Requesters and has

established a poor precedent for future projects.

52 Sources include: “Abra Pampa: a Community Ignored, a Community Polluted: The Struggle for Environmental

and Health Rights in Argentina” (Austin: Human Rights Clinic at the University of Texas School of Law, 2009) and

“A Generation Poisoned by Lead: A Follow-Up Report on the Health and Environmental Crisis in Abra Pampa

Argentina” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011). 53 “Contaminacion: La defensoria del pueblo nacional retitero pedido por Abra Pampa” El Liberario (16 Abril 2015).

http://www.ellibertario.com/2015/04/16/contaminacion-la-defensoria-del-pueblo-nacional-reitero-pedido-por-abra-

pampa/ 54“Abra Pampa: la salud de un pueblo devastada por promesas incumplidas” Jujuy al Dia (8 Julio 2015).

http://www.jujuyaldia.com.ar/2015/07/08/abra-pampa-la-salud-de-un-pueblo-devastada-por-promesas-

incumplidas/#.VZ1jHflVhBc 55 “Estudio reciente demostro que mas del 75% de las personas presenta envenenamiento con plomo en Abra

Pampa” Jujuy al Dia (6 Julio 2015).

13

B. Loan Implementation Procedures Failed to Comply with OP-703 and Language in the

IDB Loan Contract.

The IDB has failed to ensure that executing agencies, which were intermediaries between the

Bank and the project on the ground, followed the Bank’s operational policies and domestic

environmental standards. The Bank’s failure to supervise and ensure that waste removal methods

were environmentally sound and compliant with standards has exacerbated adverse harm to

residents through the spread of oxidized lead dust, also known as “humos blancos”. These humos

blancos are the most dangerous parts of the waste, as they are a fine white powder form of lead

oxide that is easily ingested and breathed in. Additionally, the fine powder form of this oxide

makes it easily transported via wind and water; hence, the spread of the material may have

caused further contamination in the ground and water supply.56

The Bank’s own safeguard requirement ENV-148 B.10 Hazardous Materials requires Bank-

financed operations to take special measures in order to “avoid adverse impacts to the

environment and human health and safety occurring from the production, procurement, use, and

disposal of hazardous material.”57 The safeguard further explains that “[w]henever the significant

production or use of a hazardous material or substance cannot be avoided, a management plan

should be prepared covering their transport, handling, storage and disposal, with associated

management and reporting practices including preventive and contingency measures, in

consultation with potentially affected workers and communities.”

In addition to policy standards, the loan precautions require working during times of low wind58,

utilizing water sprinklers to reduce the spread of dust and moving the families in the areas closest

to the work site to other accommodations during these operations.59

Yet, during the removal of toxic wastes from the Metal Huasi smelter site, residents attested that

workers failed to follow these precautions.60 Requesters Garcia, Figueroa, and Mendoza recall

that precautions were also not followed during work performed in 2008-2009 at the Metal Huasi

and Arroyo Tabladitas sites and 2011 in Barrio 12 de Octubre, and truck beds carrying toxic

wastes out of Abra Pampa not watered down or covered. Instead, the executing agencies filled

bags with toxic slag that ripped open during transport and performed work during times of strong

56 “Abra Pampa: a Community Polluted, a Community Ignored, The Struggle for Environmental and Health Rights

in Argentina.” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011) 29-34. 57 Inter-American Development Bank, Operational Policy 703 on Environment Safeguards and Compliance Policy,

SUSTAINABLE DEVELOPMENT DEPARTMENT SECTOR STRATEGY AND POLICY PAPERS SERIES, 11

(Jan. 19, 2006), available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1481950 58 According to a letter from Dr. Eduardo M. Bustos Villar, these precautions were necessary to avoid further

poisoning of the residents. Furthermore, more than simply removing the waste itself, Dr. Bustos Villar’s letter

indicated that “comprehensive remediation of environmental contamination in Abra Pampa does not only mean

removal of the waste and contaminated soil, but also, and primarily, the recovery of the quality of life and health of

the affected population.” Letter from Dr. Eduardo M. Bustos Villar, June 16, 2011, 2,6, 59 Letter received June 16, 2011, 6. 60 Interview with Abra Pampa residents, Dec. 2011.

14

wind. As a result, winds carried humos blancos and dust to other parts of the city, further

exposing residents to contamination.

Requesters Figueroa and Mendoza recall that prior to the removal of waste at the Metal Huasi

site, there was a meeting that explained precautions that would be taken.61 Requester Figueroa

stated that these precautions included the use of some sorts of liquid and neutralizers to contain

the piles of waste to be taken out.62 However, Requesters did not see these precautions being

taken and were likely exposed to toxic waste particles as a result.63 The Mendoza family,

including Marta Calapiña, lives one block from Metal Huasi and recalls that during the removal

of the waste from the site, clothes put outside to dry would become stained, outdoor household

plants died, and the ground would turn shades of yellow and white after rain, perhaps a result of

further dispersal of humos blancos.64 When asked if any warnings were issued to residents that

might be close to the removal, Requester Mara Calapiña attested that only Riad Quintar, the

Requsters’ lawyer in the aforementioned civil class action suit, told her to keep her door closed

and stay inside when other measures could have been more effective and protected residents.

There were no warnings from the IDB or its executing agencies. Other residents of Abra Pampa

have reported a similar lack of precautions to local media, stating that hazard masks and

temporary housing were promised to minimize risks during the removal of waste.65 However,

these promises were never fulfilled and these residents state that their health and the health of

their children suffered as a result of further exposure.66

Though the executing agencies have taken efforts to remove large piles of waste and clean up

other visible signs of toxic waste, there is likely still a significant amount of waste spread

throughout the town’s air, water and soil further exposing Requesters and the rest of the

community. In short, the IDB’s efforts are too little too late: as reported in a recent study

published by the Epidemiology Center in Jujuy, a short exposure to lead is sufficient to cause

harm and cognitive disabilities in the population.67 In addition, Dr. Perez Heredia stated that the

general results of the evaluation done in December of 2014 indicated that lead exposure is

strongly correlated to levels of legal cognitive incapacity among residents in the study.68

The health crisis in Abra Pampa has been exacerbated, due to the IDB’s lack of oversight

throughout the different stages of waste removal. While the IDB funds were not used for the

initial removal of waste, the funds were used for subsequent removals, which were characterized

by the problems described by the Requesters. The IDB had a responsibility to its environmental

61 Interview with Requesters Figueroa and Mendoza, Nov. 2 and 5, 2015. 62 Interview with Requester Figueroa, Nov. 2, 2015. 63 Interview with Requesters, Nov. 1-5, 2015. 64 Interview with Requesters Mendoza and Calapiña, Nov. 5, 2015. 65 “Abra Pampa: la salud de un pueblo devastada por promesas incumplidas” Jujuy al Dia (8 Julio 2015)

http://www.jujuyaldia.com.ar/2015/07/08/abra-pampa-la-salud-de-un-pueblo-devastada-por-promesas-

incumplidas/#.VZ1jHflVhBc 66 Interviews with Requesters, Nov. 1-5, 2015. 67 Dirección de Epidemiología. Informe para Expte. 22543/13-1- Situación Ambiental Abra Pampa Jujuy, 2013

(exposición al plomo). 68 Interview with Dr. Perez Heredia, Nov. 5, 2015. While he did not conduct the psychological evaluation, he

understood the results as he and the psychologist worked together to determine the residents’ levels of incapacity.

15

and safeguard policies to oversee its intermediaries and ensure compliance with projects that

were completed using IDB funds.

ii. The Loan Failed to Comply With the IDB’s Policy on Indigenous Peoples (“OP-765”)

Due to Inadequate Prior Consultation, Which Resulted in Socioculturally Inappropriate

Methods of Implementation

As the capital of the administrative department of Cochinoca, Abra Pampa serves as an

important political, economic, and cultural hub for the altiplano region known as the Puna. 46

indigenous Kolla communities live within the department of Cochinoca, and there is a fluid

relationship between Abra Pampa’s city limits and the surrounding rural areas that are home to

these communities.69 Requesters self-identify as Kolla, as do the majority of Abra Pampa

residents. Abra Pampa hosts important yearly celebrations relevant to Kolla culture, such as

Carnaval in the fall, Pachamama ceremonies honoring the earth in August and various annual

markets in which members of indigenous communities in surrounding rural areas travel to trade

crops, handmade tools and clothing, livestock, and meats.70

The International Labour Organization’s Convention No. 169 (“ILO Convention”) supports self-

identification as a “fundamental criterion” for identifying indigenous peoples.71 According to the

ILO Convention, indigenous communities can be also be identified by having their own social or

political organizations and a culture that has specifics customs and celebrations.72 There are 46

communities in the department of Cochinoca and they meet individually each month. In addition,

these communities meet in Abra Pampa once a month to discuss projects, news, updates, and

various other issues affecting them. The organization is called the Consejo Departamental de

Comunidades Kolla de Cochinoca.73 The highland areas surrounding Abra Pampa are known as

the Puna, which is home to a significant indigenous population and ensured internationally

recognized legal principles relevant to the consultation of indigenous peoples in the design and

implementation of the remediation project.

The 2010 Census states that approximately 10 percent Jujuy’s population identifies as

indigenous, with indigenous people making up about 38 percent of the rural population.74

Official statistics likely underestimate the number of residents who self-identify as being of

indigenous descent. Through a social impact assessment, the IDB should have become aware

that the majority of Abra Pampa’s residents self-identify as indigenous.

69 Interview with Abra Pampa resident, October 2012 70 Interviews with Requesters, Nov. 1-5, 2015. 71 International Labour Convention No. 169, http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm.

Ratified by Argentina on July 03, 2000. 72 ILO Convention 169 73 Id. 74 García Moritán, Matilde, and María Beatriz Cruz, Comunidades originarias y grupos étnicos de la provincia de

Jujuy (Tucuman: Ediciones del Subtrópico, 2011),11.

http://www.productoyungas.org.ar/imagenesfck/pdf/publicaciones/Cartilla-Etnias-Jujuy.pdf. More data on the Kolla

can be accessed on the 2004-2005 ECPI indigenous supplemental survey.

http://www.indec.gov.ar/micro sitios/webcenso/ECPI/pueblos/ampliada index.asp?mode=06.

16

The project financed by the loan does not specifically target indigenous people, but it does affect

Abra Pampa as a city with a high self-identifying indigenous population, which requires that any

environmental and/or development project meet international legal standards for consultation.

Therefore, OP-765 should apply.75 However, neither the loan proposal nor contract references to

OP-765, which indicates that no prior evaluation was conducted in accordance with the policy.

OP-765 is specifically concerned with evaluating the risks of a project before it begins.

However, there is no indication that the Bank assessed the risks posed by the project specifically

to indigenous populations, as they should have. Nor is there a record that the Bank deemed the

project absent of negative effects. Regardless of the IDB’s determination of the effects,

according to OP 765, the Bank’s obligation was to “maximize” the benefits to indigenous

populations and ensure the “efficient use of development resources” even if such initiatives

required additional resources.76 The Bank failed to conduct a thorough investigation of the social

and cultural impact on the indigenous communities in the city of Abra Pampa and the

surrounding region. Such an oversight constitutes a violation of Bank policy OP-765 and it

caused direct harm to the residents’ rights as indigenous peoples.

A. The IDB Failed to Follow OP-765 by Not Conducting Consultation Prior to the

Remediation

The IDB states the objective of OP 765 is to enhance the Bank’s contribution to the development

of indigenous peoples by supporting the region’s national governments and indigenous peoples

in achieving the following objectives: (a) Support the development with identity of indigenous

peoples, including strengthening their capacities for governance and (b) Safeguard indigenous

peoples and their rights against adverse impacts and exclusion in Bank funded development

projects.77 However, the IDB failed to promote the development of Kolla identity and

participation by failing to consult with residents prior to beginning remediation work and making

decisions regarding the loan and the use of funds. In addition, the policy directives state that the

Bank will promote and support the implementation by borrowing member countries to address

the needs and development opportunities of indigenous peoples in activities and operations that

do not specifically target indigenous peoples, but are of potential benefit to them. The IDB has

failed to abide by these measures by not conducting an evaluation to assess community needs

and ensure community representation.

Although OP 765 does not provide a clear definition of prior consultation, the Inter-American

Commission of Human Rights (“IACHR”) and the International Labor Organization’s

Convention 169 (“ILO Convention”) offer relevant standards and policy prescriptions.78 The

IACHR has reiterated that “Consultation is not a single act, but a process of dialogue and

negotiation that implies both parties’ good faith and the objective of achieving a mutual

agreement. Consultation should not be limited to compliance with a series of formal

requirements. Although consent from the indigenous population may not be required there is a

75 Inter-American Development Bank, Sustainable Development Department, Indigenous Peoples and Community

Development Unit, Operational Policy on Indigenous Policy. IV. Policy Directives. 76 OP 765 2.26. 77 IDB OP 765, IV. Policy Directives. 78 Inter- American Commission on Human Rights, Indigenous and Tribal Peoples’ Rights Over Their Ancestral

Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System. Paragraph

285, available at http://www.cidh.oas.org/countryrep/Indigenous-Lands09/Chap.IX.htm

17

duty to give due regard to the results of the consultation or provide objective and reasonable

motives for not having taken them into consideration.”79

The IACHR further explains that “the representation of these peoples during the consultation

processes must be the one established by the affected peoples themselves in accordance with

their tradition, having taken into account the will of the whole people as channeled through the

corresponding customary mechanisms.”80 The ILO Convention provides that “consultation with

indigenous peoples should be undertaken through appropriate procedures, in good faith, and

through the representative institutions of these peoples;” and that a consultation does not meet

the Convention’s requirements unless it has been developed with the indigenous organizations

that are truly representative of the peoples in question.81 None of these steps were taken by the

IDB.

Under the standards of the World Bank, an international financial institution comparable to IDB,

specific language ensures that “affected Indigenous Peoples’ communities are given all relevant

information about projects to include potential adverse affects in a culturally appropriate manner

at each stage of the project preparation and implementation to facilitate articulation of these

groups’ views and preferences.”82 The IDB does not have an existing communication channel

with Kolla community members or leaders. Consequently the IDB does not have necessary

information to approve and implement a project that takes into consideration the indigenous

communities as required by OP-765. If the IDB had conducted consultation prior to approving

the loan contract, it would have become aware that health was a priority for the residents, and

should have tailored the loan and its conditions accordingly. Further, the policy indicates that

IDB carries the burden of conducting studies to procure the necessary information.

The IDB failed to conduct a preliminary evaluation to assess indigenous community needs and to

ensure the representation of indigenous residents in necessary consultations. The IDB did not

make efforts to meet with indigenous community representatives or identify which

representatives should be spoken to in order to pass on information to their communities. This

was a failure to establish good faith negotiations. According to Requesters neither the IDB nor

the executing agencies held meetings with the town residents until February 2010, December

2010, November and December 2011, May 2012 and most recently in November 2014.83

79 See Id. As reinforced in: Inter-American Court on Human Rights, Saramaka v. Suriname, Article 19 of the United

Nations Declaration on the Rights of Indigenous Peoples, The International Labor Organization Convention (“ILO”)

nº 169 on Indigenous and Tribal Peoples, ratified by Argentina on July 3, 2000. 80 Id. at 287. See also Saramaka People v Suriname, IACHR Series C No 185, IHRL 3058 (IACHR 2008). 81 International Labour Organization, Convention No. 169. 82 Id. at 10(c). 83 On February 18, 2010, the first public meeting in connection with the IDB loan was held with representatives

from CESEL, GEAMIN, and the IDB. Clinic witnesses attest that 48 community representatives were present. In

December 2010, GEAMIN presented its last of 4 public consultations in which it presented technical findings. See

Informe de Auditoria General de La Nación at 43. See also RND response to HRC questions (5 Dec. 2014). On

November 29, 30, and December 1 2011, CESEL presented phase two project proposals screened by the Inter-

Institutional Committee. See La Hora de Jujuy, December 9, 2011. The Auditoria reports that only 130 people were

present at the meeting to vote on remediation project options and only 115 when blueprints of the project were first

shown. On November 19, 2014 a public meeting was held by Servicio Geologico Minero Argentino (SEGEMAR) to

discuss change of plans for the amphitheater and sport’s center due to "budget concerns." The meeting was

announced the day before. Correspondence with Abra Pampa residents.

18

Despite claims from the IDB’s National Resources and Disaster Risk Management Division

(RND) that the community was “informed at each stage of the project,” the Requesters have

found that meetings conducted by the IDB and its executing agencies from the Argentinean

government were inadequate and non-compliant with prior consultations requirements of the

Bank’s OP-765, primarily because these meetings occurred long after decisions had been made

and after remediation work had begun, or was scheduled to begin.84

B. The IDB Did Not Follow OP-765 and Failed to Consult with Indigenous Community

Members and Representatives During the Remediation Process

The IACHR and ILO Convention’s definitions of consultation were not met during the

remediation process. These guidelines require that representatives of the indigenous peoples

should be part of the process of consultation. The ILO Convention takes this a step further and

requires that consultation be developed with community representatives. There is a specific

framework of leadership in the indigenous communities within Abra Pampa and the surrounding

regions. Communities are made up of groups of families who select a president, vice president,

and other leaders. Presidents, also called comuneros, represent the community in meetings and

events outside of the community itself and are responsible for calling community meetings and

serving as a political liaison.85 As previously mentioned, indigenous communities meet once a

month in Abra Pampa at the Consejo Departamental de Comunidades Kolla de Cochinoca.

However, the IDB did not consult communities, their respective representatives, or the Consejo

to discuss the impacts that the project would have on the communities or the overall region, or to

take note of members’ interests and needs in project development. The failure to identify and

consult with “legitimate representatives” of the indigenous community indicates non-compliance

with OP-765.

In addition, the consultation must consist of an ongoing process of dialogue and negotiation,

based on good faith and mutual respect.86 The indigenous community should have been informed

at all stages of the remediation process. It especially should have been consulted prior to the IDB

making decisions in order to have an opportunity to present the concerns and priorities of the

community. The meetings that were held in Abra Pampa did not satisfy these requirements of

consultation as dialogue and negotiation were not encouraged. Instead, IDB and executing

agencies’ representatives led the meetings in a unilateral direction and presented decisions that

were already made to the residents.

There were three consecutive meetings held on November 29, 30, and December 1, 2011 and

those were unsatisfactory consultation. It was not until November 29, 2011, that authorities

representing the IDB, CESEL, SM, GEAMIN, and Jujuy’s Secretary of Environmental

Management presented residents with three rehabilitation proposals to encourage public use of

working sites once the remediation process was finalized.87 First, there was a relatively low

84 The letter referred the Clinic to the GEAMIN website where 5 meetings with the Abra Pampa community have

been documented and mentioned an Auditoría report had found that the community was informed at each stage of

the project. Referring to http://www mineria.gob.ar/programadegestionambiental htm. 85 Interview with Abra Pampa resident. 86 IACHR. 87 Addendum; A Generation Poisoned by Lead, UT Human Rights Clinic, 3 (Austin, TX: Nov. 29 2011), available at

http://www.utexas.edu/law/clinics/humanrights/work/AbraPampaADDENDUMENGLISH.pdf

19

turnout due to the lack of advance notice to Abra Pampa residents and the failure to announce the

meetings in a way that would ensure inclusion of the indigenous residents. Requester Raul

Garcia, who attended all three meetings, reported that less than or close to 100 people were

present at each, in a city of nearly 12,000 residents.88 Requester Garcia also attested that at these

meetings IDB and executing agency representatives failed to present open alternatives to their

proposed post-remediation plans. Instead, the IDB and executing agency representatives limited

Abra Pampa residents’ decision to an amphitheater, sports complex, or reforestation project.89

Second, no consultation on other alternatives, such as health treatment, was presented to the

residents prior to, or on, the date of any meetings.90 Third, sufficient time and information were

not given to permit the community independent dialogue and consideration of these projects.

There was heated debate between residents and representatives, and many residents voiced

concern that health – neither diagnosis nor treatment of known cases of lead poisoning -- had

never been a part of remediation considerations.91

In earlier meetings, the IDB and executing agencies presented precautions that would be taken

while the remediation occurred. Requester Raul Garcia informed the Clinic that although the

meeting posed the question of how to dispose of toxic wastes from the remediation process, any

discussion was fruitless because the remediation process had begun without consulting the

indigenous population about their priorities and how loan funds should be prioritized.92

Requesters Veronica Mendoza and Marta Calapiña explained that they felt it was easier to

communicate their concerns to the community president or their lawyer, as they felt it was

impossible for the representatives to listen to their concerns in the meetings.93 Requester

Figueroa reports a similar feeling that the meetings were designed only to answer a few

questions.94 Requesters were able to voice their concerns, but decisions had already been made

regarding the work and funds by the time the meetings occurred.

The previously described meetings were announced via local radio, Radio America, on

November 28, less than a day in advance.95 The timing of the announcement fails to take into

consideration the indigenous community and where these residents reside or spend a large

amount of their time. Many residents have second homes in the surrounding areas of the Puna,

and move between Abra Pampa and their other home. In addition, many residents work within

the Puna, which comprises a vast area of the surrounding region and not necessarily near Abra

Pampa. The announcement by radio limits the audience to those who are closest to Abra Pampa.

Radio signal is weaker in more rural areas. Residents in rural areas need more notice in order to

allow for travel time. For example, the news of the meeting would first reach community

representatives in and around Abra Pampa. From there, it is necessary to allow time for the news

to be communicated to people in outside of Abra Pampa. The short notice provided an

88 See Addendum; A Generation Poisoned by Lead at 3. 89 Interview with resident. See also footnote 34. 90 Interview with Raul Garcia, April 2011. 91 Interview with Abra Pampa resident. 92 See Addendum; A Generation Poisoned by Lead at 4. citing: Telephone interview with resident, Dec. 1, 2011. 93 Interview with Requesters Mendoza and Calapiña, Nov. 5, 2015. 94 Interview with Requester Figueroa, Nov. 2, 2015. 95 Addendum; A Generation Poisoned by Lead, UT Human Rights Clinic, 3 (Austin, TX: Nov. 29,2011), available at

http://www.utexas.edu/law/clinics/humanrights/work/AbraPampaADDENDUMENGLISH.pdf

20

inadequate timeframe to encourage community participation. Instead, this short notice actively

hinders meaningful community participation.

In addition, the process for the removal of waste in Barrio 12 de Octubre was announced outside

the Municipality of Abra Pampa by the town’s mayor Ariel Machaca on November 17, 2011, a

day before the operation began, hindering residents’ ability to attend.96 Again, this did not take

into account the constant movement between the town and the rest of the Puna. Requester Garcia

was unable to voice his concerns as waste removal was scheduled to start the following day.

Other residents did not have adequate time to prepare or adjust for the upcoming excavation in

order to better protect their health before the work began. In this instance, Requester Garcia and

other residents were particularly surprised because no excavation efforts had taken place since

that of the former Metal Huasi site in 2008. In addition, CESEL fieldwork evaluating the

environment and levels of contamination from 2010 had still not been shared.97 Since the IDB

and executing agencies failed to communicate with residents, they were uninformed and walked

through the worksite during excavation of the toxic wastes, which created further risk for the

population in the form of increased lead exposure and workers that left uncovered pits and holes

throughout the sites while work was ongoing.98 Indeed, the IDB and executing agencies

neglected to post signs warning children to not play in the working area before the excavation

process began.99 Such deficiencies in program implementation highlight the importance of

participation in the decision making process to ensure the safety of residents.

Not surprisingly, resulting participation in these meetings has been limited.100 A city of 12,000

people cannot be adequately represented by the decisions of 48-130 people. Most importantly,

residents are limited by options imposed by third parties who disregard their priorities. For all

these reasons, the meetings held by the IDB and executing agencies cannot be considered valid

consultations of the indigenous community and as a result, the indigenous population remains

excluded from the remediation process in violation of IDB’s OP 765.

The lack of consideration for regularly used methods of communication101 shows that inadequate

consultation took place during the process of the design, approval and initial execution of the

program. Consequently, it was virtually impossible for the IDB and executing agencies to

implement the concerns of the Kolla communities and Abra Pampa residents prior to the

remediation, as required by OP-765, since it and its agencies did not ensure that residents were

notified of meetings. In fact, it was difficult for members of communities in rural areas to attend

the meetings that occurred after remediation work began, as announcements were last minute and

were not made in order to maximize attendance. Requesters Mendoza recall that meetings

occurred during the day, a time when many residents are working outside of Abra Pampa, and

are not available to attend.102

96 Id. at 1. citing “Telephone interview with Jose Sajama, Nov. 18, 2011.” 97 Id. 98 Id. at 1-2. 99 El Tribuno, Nov.18, 2011. 100 See footnote 66. 101 The majority of Abra Pampa residents use the radio as a means of acquiring information. 102 Interview with Requesters Mendoza, Nov. 5, 2015.

21

In a remediation project of this nature the involvement of the community is key to ensure a safe

and successful implementation of the process. The IDB and loan executing agencies have failed

to adequately establish prior consultation and community participation, as required under OP-

765.103 As a result of the IDB and agencies’ failures, Abra Pampa residents, many of whom are

members of indigenous Kolla communities, and the Requesters have not received adequate

notice in order to participate in loan meetings and voice their concerns on issues that have had a

direct impact on their daily lives. Even if these meetings had engaged residents in a dialogue and

encouraged them to ask questions, the prior consultation requirement would not have been met.

Residents in general, as well as indigenous community representatives, were not given a chance

to deliberate and propose their own solutions that would address their concerns and priorities

prior to loan decisions being made and the beginning of remediation work. The failure to notify

Abra Pampa residents of meetings with adequate notice and methods of communication has

consequently barred them from engaging in good faith consultations and providing their opinions

regarding loan events and project priorities. These shortcomings on the part of the IDB and loan

executing agencies have subjected the Requesters to the unilateral decisions of the IDB and loan

executing agencies.

iii. The Loan Failed to Comply with the IDB’s Operational Policy Access to Information

(“OP-102”), the Policy’s Implementation Guidelines, and Loan Standards on Access to

Information.

A. The IDB Failed to Disclose Relevant Information Regarding Environmental Studies,

Environmental Impacts on Health, and Loan Budgets.

The pilot program has been marked by communication problems between residents of Abra

Pampa and loan executing agencies that could have been mitigated by compliance with the

IDB’s Access to Information policies. As a result of the project’s limited disclosure of

information and documents, Requesters lack a clear understanding of loan goals, implementation

processes, and progress. Requesters also remain unclear on the consequences and current levels

of exposure to heavy metal waste due to the project’s lack of disclosure of loan documents such

as environmental tests and remediation project recommendations from SM, CESEL, and an IDB

mission trip to Abra Pampa. The IDB did not make a good faith effort to distribute information

or to ensure that Argentine authorities disclosed information about the loan project and its

implementation processes, which is a failure to comply with the Bank’s own policies.

The first principle of IDB’s Access to Information Operational Policy 102 (“OP 102”), is to

“[m]aximize access to information” relating to the loan and its results, acknowledging that even

information listed under exceptions will be disclosed in time,” “so long as the Bank is not legally

103 “[t]he Bank will require and verify that the project proponent conduct an evaluation to determine the seriousness

of potential adverse impacts on physical and food security, lands, territories, resources, society, rights, the traditional

economy, way of life and identity or cultural integrity of indigenous peoples, and to identify the indigenous peoples

affected and their legitimate representatives and internal decision-making procedures. This evaluation will include

preliminary consultations with potentially affected indigenous peoples.” Inter- American Development Bank,

Operational Policy on Indigenous Peoples and Strategy for Indigenous Development, SUSTAINABLE

DEVELOPMENT DEPARTMENT SECTOR STRATEGY AND POLICY PAPERS SERIES, 8 (Feb. 22, 2006),

available at http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1442299

22

obligated to non-disclosure.”104 The IDB would be legally obligated to non-disclose either

through its own policies, listed below, or by Argentinean prohibitions on disclosure. IDB’s

standard of disclosure policy is therefore based “not on a list of information that it chooses to

disclose but rather on a clear definition of information that it will not disclose.”105 Documents

listed as exceptions to disclosure are those the Bank is not legally obligated to disclose; those

received with understanding to not be disclosed; or that the Bank determines to pose more

“potential harm to interests, entities or parties” than good, if disclosed.106 In certain cases, such

as Country Program Evaluations, when borrower countries object to disclosure, a public version

of a document with redacted information will be disclosed.107 The policy also requires that

borrower’s disclose appropriate information as part of the environmental assessment process “in

location(s), format(s) and language(s) to allow for affected parties to be meaningfully

consulted.”108 Despite this IDB policy, when Requester Garcia and the Clinic have requested

information, they have been consistently redirected to the Argentine SM, which bespeaks a

curious unwillingness on the IDB’s part to make access to information easier for the people of

Abra Pampa.

During the November 29, 30, and December 1 meetings held with the community, the executing

agency CESEL presented results from their 2011 February-March fieldwork.109 This information

was the first technical environmental information to be shared directly with the community, and

it evaluated the three selected worksites along with the intersection of National Route 9, Avenue

Mitre, and railroad lines for their high lead toxicity levels.110 However, the information was not

presented in order to maximize understanding, as Requesters recall the presentation seemed

rushed, and presenters did not make an effort to explain the technical language they had used

throughout the meeting.111 When asked about language in these meetings, Requester Mendoza

attested that there were words she did not understand, but the time wasn’t taken to explain each

one.112 Moreover, the information presented at the meetings was incomplete. This report failed to

include any information on the potential contamination of groundwater or soil, which occurs

104 Inter-American Development Bank, Access to Information Policy, Office of External Relations, 3-4 (April 26,

2010), available at

http://publications.iadb.org/bitstream/handle/11319/2516/Access%20to%20Information%20Policy.pdf?sequence=2

In addition to IDB’s policy on access to information, IDB board endorsed the Fight Corruption and Foster

Transparency (PAACT) on Nov. 23, 2009 which cites, “...continuity in [Bank] efforts to adopt the highest standards

of transparency” as a key feature. See Inter-American Development Bank, Access to Information: Background

Paper, Office of External Relations, 5 (May 12, 2010), available at

http://publications.iadb.org/bitstream/handle/11319/1906/Access%20to%20Information%20Policy.%20%20Backgr

ound%20paper.pdf?sequence=1. 105 Id. at 4. 106 Id. at 3-4. 107 See Access to Information Policy at 10. 108 Id. at 6; Clause 5.2. 109 On November 29, 30, and December 1 2011, CESEL presented phase two project proposals screened by the

Inter-Institutional Committee. See La Hora de Jujuy, December 9, 2011. The Auditoria reports that only 130 people

were present at the meeting to vote on remediation project options and only 115 when blueprints of the project were

first shown. On November 19, 2014 a public meeting was held by Servicio Geologico Minero Argentino

(SEGEMAR) to discuss change of plans for the amphitheater and sport’s center due to "budget concerns." The

meeting was announced the day before. Correspondence with Abra Pampa residents. 110 La Hora de Jujuy, Dec. 9, 2011. 111 Interview with Requester Veronica Mendoza, Nov. 5, 2015. 112 Id.

23

through the spread of oxidized lead dust,113 as well as consequences that could’ve arisen out of

exposure to toxicity, such as correlations between health and exposure to toxicity, or ways in

which people could prevent or treat existing health conditions that had arisen due to exposure to

lead.114 When prompted, presenters told Requesters and other residents that lead contamination

had not been found in the ground, sub-terrain water, or sediments.115 Requester Garcia and other

residents who attended these meetings asked for written information to pass along to other

community members not present but were told that results had not been finalized.116 Four years

later, a final report has yet to be provided for the benefit of the community. 117

The fact that Requesters did not know whether the water or soil was tested, and the non-receipt

of any type of information regarding the water they drank or dust they inhaled daily leads to the

conclusion that the IDB failed to disclose relevant information about the project.

a. Argentine executing agencies have failed to disclose important information and respond

to Requesters’ Access to Information requests.

Contract terms specify that the SM publish progress-monitoring reports (“PMRs”) every 6

months.118 It should be noted that information in these reports would be available for the public

at large, but it was published online. Any information that was provided was disseminated

improperly, and is not necessarily accessible by Requesters and others in Abra Pampa and the

Puna, the northern region of Jujuy. The SM created a website in order to facilitate access to

information. However, access to information was not facilitated because computer and Internet

access are relatively limited in Abra Pampa due to a lack of infrastructure, and Internet is largely

unavailable in rural areas. As Requester Figueroa pointed out, there is also a generational gap

and older people such as he and Requester Garcia do not know how to navigate and search for

information online, which is also due to a lack of computers and computer literacy classes in the

area until relatively recently.119 Requester Garcia confirmed that he does not know how to use e-

mail or computers, and he carries a basic phone without Internet capability.120 Requester Lorena

Mendoza has studied the use of computers, but she confirms that access to computers and

information on the Internet is difficult to obtain for her parents and other siblings, as well as

residents of Abra Pampa in general.121 When asking the rest of the Mendoza family about the

SM website, they were unaware of it or how to access it.122

Despite it being clear that Internet access is not readily available in rural areas like Abra Pampa,

CESEL created a separate website in 2010 called “Abra Pampa Remedia” to “[establish] a

permanent channel of communication to promote participation of all stakeholders in this

113 “Abra Pampa: a Community Polluted, a Community Ignored, The Struggle for Environmental and Health Rights

in Argentina.” (Austin: Human Rights Clinic at the University of Texas School of Law, 2011) 29-34. 114 Interview with Requester Santiago Figueroa. 115 Id. 116 Addendum; A Generation Poisoned by Lead at 4. 117 Interview with Requester Santiago Figueroa, Nov. 2, 2015. 118 Loan Contract Number 1865/OC-AR, supra at 8-9; Clause 4.04. 119 Interview with Requester Santiago Figueroa, Nov. 2, 2015. 120 Interview with Requester Raul Garcia, Nov. 1, 2015. 121 Interview with Requester Lorena Mendoza, Nov. 5, 2015. 122 Interview with Requesters Mendoza and Calapiña, Nov. 5, 2015.

24

environmental remediation initiative in Abra Pampa, within a framework of trust, transparency

and mutual respect”123 to fulfill their information access requirement. The CESEL website

contained links to information regarding public consultations, the SM reports described during

said meeting, and technical information about the Abra Pampa project, as well as an online

forum for residents to ask questions about the project. CESEL visited Abra Pampa periodically

in 2009-2011 to measure levels of contamination in the air and soil, and to guide removal of

waste in Barrio 12 de Octubre. These results were not available on the website, or presented at

any meetings with residents. Requester Lorena Mendoza has accessed the website, and stated it

was difficult to navigate and the majority of information available generally confirmed that the

project was moving along, but did not provide specific information.124 The website was an

inappropriate way to disseminate information in a region where Internet access is unreliable and

many residents do not have regular Internet access. Although the IDB built access to this

information into its policies, the information was not made available until November 2014, when

it was uploaded to the website. Further, the initial studies conducted by CESEL on

environmental toxicity and health issues presented at the meetings, have not been provided as of

yet, even on the website, despite resident requests.125

Although the website was intended to be a “permanent” solution, the CESEL website was

hacked for several months and thus, unavailable and is now completely inaccessible. Once again,

the IDB failed to consider the importance of infrastructural appropriate solutions. According to

IDB policy, the IDB was responsible for finding a way to get the information into the residents’

hands “in location(s), format(s) and language(s) to allow for affected parties to be meaningfully

consulted”126 and in Abra Pampa, that could have been accomplished through creating visual

aids and explaining them at meetings, via presentations on the radio, or in any other format that

would allow relevant information to be presented in clear, concise, accessible language.

In 2009, a Clinic delegation met with representatives from the SM, the Secretary of Health, the

Secretary of the Environment, and various other Argentinean local and federal authorities.

During these meetings, Clinic members requested information on scheduled remediation events

and timelines, and environmental, health, and mining impact studies. In August 2009, the Clinic

made specific recommendations to improve access to information processes to each

governmental entity in its report, “Abra Pampa: a Community Polluted, a Community Ignored:

The Struggle for Environmental and Health Rights in Argentina.”127 Although the IDB is not

legally bound to non-disclose this information, as it should be available to the public because of

its non-sensitive substance, requests and recommendations were ignored or denied. This was

problematic because the people of Abra Pampa were entitled to the information by virtue of their

proximity to the loan project and the way in which its disbursements affected their daily lives.

Requester Garcia serves as a point person in Abra Pampa at times to relay information and

updates from sources such as the Clinic. Requester Garcia has attended all meetings held by the

123 Addendum; A Generation Poisoned by Lead at 35. 124 Interview with Requester Lorena Mendoza, Nov. 5, 2015. 125 Interview with Requester Raul Garcia, Nov. 1, 2015. 126 See Access to Information Policy at 6; Clause 5.2. 127 Addendum: Abra Pampa: a Community Polluted, a Community Ignored. The Struggle for Environmental and

Health Rights in Argentina.

25

executing agencies and all meetings that pertain to the project. Moreover, Requester Garcia has

met with any representatives that have visited Abra Pampa in regards to the environmental

remediation. Requester Garcia, in conjunction with the Clinic, has also proactively requested

loan documentation from these various Argentine authorities including but not limited to, the

Ministry of Production, the Ministry of Heath, Secretary of Mining, the National Ombudsman

and the Secretary of Environment and Sustainable Development.128 As mentioned, Requester

Garcia and the Clinic have been consistently redirected to the Argentine SM, despite the IDB's

policy to release all information except that which it is not allowed to disclose.129 All requests

directed at the SM and CESEL remain unanswered.

b. Though the IDB has agreed to disclose information, it has yet to release important

technical information regarding the health and environment of Abra Pampa.

Following the Clinic’s first meeting with the IDB in Argentina, the Clinic published its August

2009 report. This report provided the IDB with specific recommendations for improving access

to information, to facilitate implementation of disclosure as well as remediation procedures.130

In mid-2011, Requester Garcia and the Clinic began to request information directly from the

IDB. On May 5, 2011, a request was made for a timetable for SM evaluation and implementation

of the pilot project, the monthly project reports submitted by executing agencies, loan terms of

reference, public documentation of bidding process leading to CESEL selections, and any

documentation regarding disbursement of funds.131

128 Interview with Requester Raul Garcia, Nov. 1, 2015. 129 The Requester has made the following access to information requests to Argentine government bodies: April

2009: Provincial level - Ministry of Production, Ministry of Health, Secretary of Health Care Coordination and the

Provincial Directorate of Mining and Energy Resources Federal level- National Secretary of Mining, the National

Ombudsman, the Secretary of Environment and Sustainable Development. March 2011: CESEL [response referred

Clinic to SM’s GEAMIN] April 2011: Secretary of Human Rights October 2013: Secretary of Production (Jujuy) -

Request No 660-576-P-2013 for Memorandum de Entendimiento Para la Asistencia Complementaria Tecnico-

Financiera Aplicable a la Ejecucion del Plan de la Provinvia de Jujuy, para la Remediacion Integral del Pasivo

Ambiental de la Ex Fundicion Metal Huasi" Ministerio de Produccion Provinvia de Jujuy - Secretaria de Mineria de

la Nacion – 2007, Expediente No. 0521-051/01/01- DPMAyRN: "Remocion residuos ex fundidora Metal Huasi en

Abra Pampa" - 1 de octubre de 2001, notificacion al Secretario de Medio Ambiente y Recursos Naturales de la

Provincia de Jujuy, sobre el traslado de desechos mineros de la compania Metal Huasi - Accion Judicial B -

162740/06, RS No. 115/2004: Direccion Provinvial de Medio Ambiente y Recursos Naturales. Sobre remediacion

ambiental predio de ex fundacion Metal Huasi, RS No. 135/2005: Direccion Provinvial de Medio Ambiente y

Recursos Naturales. Sobre Ex Fundicion Metal Huasi- Limpieza de Predio- Incumplimiento, RS No. 115/2005:

Direccion Provincial de Medio Ambiente y Recursos Naturales. Sobre predio sede ex Fundidora Metal Huasi -

clausura total y definitive, RS No 075/2006: Direccion Provinvial de Medio Ambiente y Recursos Naturales, Nros.

5-2007 Y 6-2007: Direccion Provincial de Mineria y Recursos Energeticos. Sobre regulacion de EIA - Obligacion

de las empresas al envio de copias de EIA a residentes en Abra Pampa, documents detailing policies, plans,

programs, or actions developed between 2004 - 2013 by Secretary of Environmental Management relating to the

Resoluciones above that include but are not limited to resolutions, technical notes and information, cabinet

meetings, minutes, reports or press communications (Art. 2 L25831- Art5 L4444/89), information detailing the

precautionary measures used for processing, containing, removing the slag; April 2014: Health Minister, Secretario

de Gestion Ambiental, SM [response received form Health Minister on August 10, 2014 stating information rests

with SM]. 130 Addendum: Abra Pampa: a Community Polluted, a Community Ignored. The Struggle for Environmental and

Health Rights in Argentina, 3. 131 Id. at 50-54.

26

On November 29, 2011, after communicating with Requester Garcia and other Abra Pampa

residents, a letter was sent to the IDB President highlighting the delays in implementation of the

remediation plan and the non-compliance of the Argentine government with the IDB’s loan

requirements.132 On December 16, 2011, Jose Luis Lupo responded on behalf of the IDB stating

that the IDB would be requesting a “technical mission from Headquarters to make an evaluation

of all the processes and technical aspects of the pilot project in Abra Pampa.” The purpose of the

mission was to “provide specific recommendations to align the project and make the necessary

adjustments to ensure that the objectives of the project are properly met for the benefit of the

Abra Pampa community.” However, the results of that mission were never made public. Despite

the complaints to the IDB, it failed to address the pressing information access concerns and even

now continues to support a weak, almost non-existent, communication system between

information-gatherers and Requesters in Abra Pampa.

In 2014, the Auditoria General de la Nacion, an auditing agency of the Argentine federal

government, released a loan report that that the IDB conducted a five-day mission trip in January

2011 to evaluate project progress, administer technical environmental evaluations, and organize

community interviews.133 The report further mentions that this particular mission found that the

IDB had followed best practices and made recommendations to the Argentinean government

regarding the health of the population. According to the report, the IDB also requested that

GEAMIN create proposals to improve the community’s access to information and verify

CESEL’s complete removal of contaminated sources and debris.134 However, in a most muted

manner, the IDB refused to provide information regarding the abovementioned requests. On

October 6, 2014 a request for documentation regarding the above-mentioned IDB mission trips

was submitted. Requesters135 also asked for any documentation describing CESEL’s

recommendations that a health program be included in the pilot program; progress on past

requests and recommendations; and terms of reference for the extension of the Abra Pampa

project to May 2015, but the IDB failed to respond.136

The Clinic waited for approximately two weeks before directly contacting the IDB’s Access to

Information department and other relevant divisions to request a meeting. On October 28, 2014

the Clinic met with eight IDB representatives at its headquarters in Washington, DC. At this

meeting, the Clinic was told that documents concerning environmental studies and tests prepared

by CESEL and IDB missions are classified as deliberative and were not available for public

disclosure, even though Argentinean law requires information regarding the environment to be

provided to those residents whose lives are potentially impacted.137 Bank representatives,

132 Letter from the Human Rights Clinic to IDB representative, 2011. 133 See Auditoria at 45-46. 134 See Auditoria at 45-46. 135 Requester Raul Garcia in conjunction with the Human Rights Clinic. 136 The Auditoria also confirmed a) the pilot program would be extended to May 2015 by reference to Nota 02/2013-

SM (04/01/13) from the Mining Secretary; and b) in February of 2011 CESEL presented “Plan de Salud para Abra

Pampa” to the Argentine government and IDB. 137 Deliberative classification reflects confidential information as distinguished by the categories of the IDB

Implementation Guidelines. The IDB Implementation Guidelines classify confidential information into the

following categories: 1) legal, disciplinary, or investigative matters 2) country specific information 3) personal

information 4) communications involving executive directors 5) safety and security 6) [i]nformation provided in

27

however, pledged to follow up on certain requested documentation as confirmed in a November

6, 2014 letter from Jose Luis Lupo, Manager, from the Southern Cone Country Department.138

On November 10, 2014, the Clinic wrote to the IDB to request that any confidential information

from the requested IDB mission reports be redacted in order to create a public version suitable

for distribution. Although this was a feasible solution, the IDB refused to provide any

documentation, disregarding the impact it could have on Requesters lives by giving them a way

to understand their circumstances and find a way to resolve their health problems.

On December 5, 2014, the Clinic received a response from the Natural Resources and Disaster

Risk Management Division (RND) regarding a number of the Clinic’s October 6 requests. The

letter contained no documents but attempted to re-direct the Clinic to a number of Argentine

authorities, including the Argentine SM, for information requests, and provided summaries of

planned Abra Pampa budgets and an Argentine government website where participation meeting

reports can be found. As it was mentioned, the SM so far has refused to provide the Clinic with

any requested information. Additionally, the information requested was produced or received by

the IDB, and as such, the Bank has a duty to disclose it. This duty stems not only from the IDB’s

own policies, but from an obligation to the residents whose lives are impacted by the

“remediation.”

During late 2014, information regarding PMR reports and confirmation of the loan extension to

May 2015 were made available online. Prior to Clinic requests, PMR reports had been updated

inconsistently, sometimes up to 2 years after the examined work had been done.

To date, the IDB documentation regarding PMR reports and confirmation of the loan extension

to May 2015, or post-remediation contamination information and terms of the loan extension

concerning the project timeline and budget remain to be explained to the people of Abra Pampa. 139 The information found on the IDB website is limited to financial reports and implementation

reports, which lack substantive data on environmental impact and contamination levels.140

The IDB has additional information pertaining to the loan remediation program studies that

include environmental impact and contamination information, which must be disclosed to the

confidence, intellectual property and business/ financial information 7) [c]orporate administrative information 8)

[i]nformation relating to non-sovereign guaranteed operations 9) deliberative information 10) certain financial

information. Both confidential and disclosed over time documents can still be disclosed under Bank policy in

extraordinary circumstances or with a positive override. Inter-American Development Bank, Access to Information

Policy, Office of External Relations, 4-7 (April 26, 2010), available at

http://publications.iadb.org/bitstream/handle/11319/2516/Access%20to%20Information%20Policy.pdf?sequence=2 138 The letter said that the IDB would request i) a second independent environmental audit to ensure that

environmental remediation measures have been competed successfully, according to the project, and in compliance

with established environmental practices and regulations; and (ii) establish an official website in which all

documents that should be public, including technical reports and reports on public consultation, be readily available.

The letter also specified that the Public Information Center (PIC) and National Resources and Disaster Risk

Management Division (RND) would be emailing soon in response to other Clinic requests. 139 The letter did clarify that Argentina’s loan repayments remain as stipulated in the original contract terms. 140 Inter-American Development Bank, AR-L1026 : Clean Production and Environment Management

(February 25, 2015), available at http://www.iadb.org/en/projects/project-description-title,1303.html?id=AR-

L1026#doc.

28

affected community. The IDB has failed to make such disclosures, which has served to keep

Abra Pampa and its residents in a state of perpetual harm that could have been mitigated with the

provision of such information.

There is no way to measure the progress of an environmental remediation program without

access to technical environmental information. Without any details regarding the past and current

conditions of soil, air, and water quality as well as available preventive measures, the residents of

Abra Pampa can only rely on the word of the Argentine government, backed by the word of the

IDB and CESEL, both of which have proved to be fickle in nature and unresponsive to residents’

needs. By refusing to provide requested information, the IDB has proven its weak accountability

measures for this pilot program and have kept Requesters from rightful participation in the

remediation process. Public awareness and knowledge garnered from the disclosure of this type

of information would not only lead to improved health of Abra Pampa residents as a whole, it

would also contribute to the success of future remediation programs by taking the town’s

feedback into consideration.

The limited loan and project information presented to residents of Abra Pampa throughout the

duration of the remediation process represents the failure of the IDB to guarantee access to

information and transparency to residents affected by remediation. As a result, the population has

not been privy to important environmental studies conducted throughout the course of the

remediation pilot project by the executing agency CESEL and the IDB.141

c. IDB proposals to address Access to Information requests have been inadequate and

insufficient.

The IDB’s responses to Requesters’ access to information requests have been largely inadequate

and insufficient. The failures of the IDB and executing agencies are apparent when analyzing

their weak attempts to guarantee access to information. The previously mentioned SM website

was created for the purpose of informing the people of Abra Pampa about the progress of the

loan and remediation process. However, such measures have been taken before and were proved

unsuccessful.142 Therefore, a website is not an appropriate solution for places in Argentina with

limited Internet access and which have historically been excluded from infrastructure

development.

141 As part of the loan’s evaluation and design phase, CESEL from January to April 2010 used statistical and

qualitative health standards to determine which parts of the community posed the largest risk to the community’s

health. These studies included soil samples taken from 47 pits throughout Abra Pampa, air samples, and water

quality of the Miraflores River, and underground sources. This fieldwork also included an evaluation of the health

risks and common routes of toxin exposure based on a compilation of studies, statistics, and epidemiological

information available from the Abra Pampa hospital, the Ministry of Health, and the provincial government of Jujuy.

A Generation Poisoned by Lead, UT Human Rights Clinic, 7; 19 (2011), citing: “Ministry of Federal Planning,

Public Investment and Services of the National Secretary of Mining, Detailed evaluation and design of the areas

impacted by the activity of the former smelting plant Metal Huasi in Abra Pampa, Province of Jujuy, First Progress

Report of Activities, period beginning January 29 and ending March 30, 20120, 6-7. 142 In 2010, CESEL created a website called “Abra Pampa Remedia” at www.abrapamparemedia.com to promote

dialogue and participation with residents in Abra Pampa regarding the environmental remediation program, but the

Web site was only live for one year and has been inaccessible since 2011.

29

As previously mentioned, the policy directives of OP 765 call for a socio-culturally appropriate

solution. Even though the request for the creation of a website might have been well intentioned,

it is an insufficient remedy for the town’s lack of access to information. This solution fails to

take into account the reality of Abra Pampa’s rural location. It remains necessary to consult Abra

Pampa residents on the best way for them to access information to ensure the widest distribution

possible.

III. The IDB Has an Obligation to Abide by International Human Rights Law

While the obligation to protect human rights lies initially with the State, this responsibility is

shared with international financial institutions (IFIs), including the IDB. As subjects and

members of international law, international organizations such as the IDB are “bound by any

obligations incumbent upon them under general rules of international law, under their

constitutions or under international agreements to which they are parties.”143 Such obligations

include obligations in the area of human rights.144 A wide range of human rights has acquired a

customary status in international, and these rights are stipulated in multilateral treaties that are

binding on member states. By the reasoning that the IDB is subject to and a member of

international law, international organizations are also bound, and should exercise their powers in

imposing requirements to ensure compliance.145

Argentine domestic law has recognized the right to health, and it is a positive right that must be

proactively provided to citizens by the government.146 The 1994 Constitution of Argentina also

recognizes the right to live in a healthy environment,147 and it requires Argentina to comply with

instruments of international law to which it is party. The Constitution of the province of Jujuy

reaffirms the right to a healthy environment, and includes provisions to eliminate all elements

that cause contamination and can affect the population.148 Further, Argentina’s General

Environmental Law offers protection to all communities affected by environmental policies and

projects, in particular indigenous people. The law includes minimal standards of precautions and

protections, as well as the right to prior consultation and obligatory environmental impact

assessments.149 Argentina has ratified the Convention on the Rights of the Child, which has

provisions regarding the right of the child to the “highest attainable standard of health and to

facilities for the treatment of illness and rehabilitation of health...” as well as taking into

consideration the risks of environmental pollution.150 Argentina has also ratified the International

Labour Organization Convention 169, the rights of indigenous people to prior consultation and

143 Interpretation of the Agreement of 25 Mar. 1951 between the WHO and Egypt, Advisory Opinion, 1980 I.C.J.

73, (20 Dec.). 144 Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic,

Social and Cultural Rights, Vol. 34, 1120. 145 See Louis Henkin, The Age of Rights 19 (1990); Nigel S. Rodley, Human Rights and Humanitarian Intervention:

The Case Law of the World Court, 38 Int’l & Comp. L. Q. 321, 333, (1989); Theodor Meron, Human Rights and

Humanitarian Norms as Customary Law (1989); Louis B. Sohn, The Human Rights Law of the Charter, 12 Texas

Int’l L.J. 129, 132-34 (1977). 146 According to a key decision in Argentine domestic law, Campodonico de Beviacqua, and the San Salvador

Protocol. 147 Constitution of Argentina, Article 41, 1994. 148 Constitución de la Provincia de Jujuy, Article 22. 149 General Environmental Law, Law 25.675. 150 Convention on the Rights of the Child, Article 24.

30

protections from the State are guaranteed, due to their status as a historically vulnerable group.151

Argentina’s Constitution dictates international legal standards and treaties stand above

constitutional law, and dictates that the State should comply in this respect.152

Further, the IDB has a duty to exercise due diligence during its project in Abra Pampa. The IDB

has a minimum duty of due diligence to exercise adequate supervision in order to ensure that the

Bank is operating in a sufficiently responsible manner to protect their operations and the interest

of third party contributors and borrowers, including the human rights obligations of Argentina.153

Furthermore, if the IDB had exercised its due diligence duties and respected the importance of

Abra Pampa as a pilot project, it should have refused to approve a loan that fell short of

Argentina’s international and national legal obligations to the right to health. The absence of a

health component in the Abra Pampa pilot project is a failure that creates significant risk for

other communities that may be affected in later replicated projects. The absence of a human

rights or health policy is a reflection of shortcomings in the IDB’s project approval and

implementation process. The absence of a human rights and health policy have had a clear and

direct impact on the Requesters and in the Abra Pampa community.

i. The IDB Has Violated Multiple Human Rights Standards in Abra Pampa

As previously mentioned, the violations of Requesters’ and Abra Pampa residents’ human rights

have been documented through a variety of published studies and reports that date from 1986,

and a direct causal link can be established between the IDB’s actions and these violations.154

151 International Labour Organization, Convention No. 169, ratified by Argentina on July 3, 2000. 152 Article 75.22 of the Argentine Constitution states that: “…Treaties and concordats have a higher hierarchy than

laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the

American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the

International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and

Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the

Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and

other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the

full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this

Constitution and are to be understood as complementing the rights and guarantees recognized herein. They shall

only be denounced, in such event, by the National Executive Power after the approval of two-thirds of all the

members of each House.” 153 The International Law Association (ILA) as early as 2004 published a comprehensive report on international

organization accountability. The report stressed that an organ of an international organization, such as the Board of

Directors, maintains a “fundamental obligation” to exercise due diligence in reviewing the acts of that organization.

Furthermore, the ILA states “Members of an IO [international organization] have a duty to exercise adequate

supervision of the IO [international organization], i.e. to ensure that it is operating in a responsible manner so as to

protect not only their own interest but also that of third parties.” International Organization Membership, the report

explains, does not suspend or annul state responsibilities to comply with international laws applicable to that state.

International Law Association, Berlin Conference (2004), Accountability of International Organizations.

International Organizations L. Rev. 1, Issue 1, 221-293, 240; 233. (2004), available at http://www.ila-

hq.org/html/layout_committee htm 154 Medical Studies dating back to 1986 demonstrate high levels of blood in the citizens and children of Abra Pampa.

31

Violations of the Right to Health and a Healthy Environment

The right to health was first articulated by the World Health Organization in its 1946

Constitution, which defines health as more than the absence of disease or infirmity, and as a

“state of complete physical, mental and social well-being.” The right to health is also outlined in

the 1948 Universal Declaration of Human Rights, and was recognized in the 1966 International

Covenant on Economic, Social and Cultural Rights.155 The infringement of the right to health is

evident: After the toxic waste was improperly removed, it exacerbated the toxicity in the water

supply and the soil of Abra Pampa, likely increasing already vulnerable residents’ exposure to

toxic lead waste. Toxicologist Dr. Perez Heredia emphasizes that due to high wind speed, the

lead contamination present in the air has likely spread throughout the agricultural food supply for

Abra Pampa as well.156 Requester Veronica Mendoza states that her counsel has the latest results

of blood tests from December 2014, and she reports that her family members’ levels have stayed

the same or increased; a fact that is true for almost 300 other Abra Pampa residents who are party

to the same civil lawsuit.157 As previously mentioned, results from the aforementioned 2014

evaluation158 show that 90% of the 297 residents in the study conducted are legally disabled,159

according to evaluations based on lead levels and an analysis by a psychologist. The IDB has not

acted to remediate or address the problem of continued lead exposure, to toxic lead waste, which

has likely not been fully removed, as evidenced by currently high lead levels in Requesters and

their families studied in 2014, years after the first waste removal operations took place.160

Requesters are not the only families with young children who lived near the sites of waste

removal, which suggests that other families are affected by lead contamination. The toxic waste

continues to be a significant threat to the residents’ health, as attempts in the past to remove it

did not go past the surface of the contamination.

In conjunction with the violation of the right to health, the IDB’s actions can be directly traced to

the violation of the right to a healthy environment. Article 11 of the International Covenant of

Economic, Social, and Cultural Rights dictates that “everyone shall have the right to live in a

healthy environment,” and “the States Parties shall promote the protection, preservation, and

improvement of the environment.”161 Improper waste removal allowed toxic substances to

contaminate the air. 162 Humos blancos are constantly present in Abra Pampa, polluting the

atmosphere and the bodies of those who inhale it, and are a constant, additional threat to the

people’s health. Prolonged exposure to this oxidized lead dust, which as previously explained

can seep into the soil, water, and be ingested, was enough to create adverse health effects for

those residents most susceptible to contamination. As it stands, many residents of Abra Pampa

155 The Right to Health, Fact Sheet No. 31 (Office of the United Nations High Commissioner for Human Rights and

the World Health Organization, June 2008). 156 Interview with Dr. Perez Heredia, Nov. 5, 2015. 157 Id. 158 Id. 159 The legal standard for disability in Argentina is 66% incapacity. 160 “Estudio reciente demostro que mas del 75% de las personas presenta envenenamiento con plomo en Abra

Pampa” Jujuy al Dia (6 Julio 2015). 161 Addendum: Abra Pampa: a Community Polluted, a Community Ignored. The Struggle for Environmental and

Health Rights in Argentina,, 23. 162 Requester Garcia noted that cleanup was done at times of high wind and that more valuable types of debris were

not disposed of properly.

33

referenced, and demonstrated, the state of their children’s gums, which were black. 174 Dr. Perez

Heredia explained that gums turn black as a result of exposure to mercury, lead, or arsenic, with

lead being the most likely cause in Abra Pampa.175 Any exposure to lead will lead to

developmental problems for a child or pregnant woman’s unborn child. Continued exposure

furthers these risks, even after successful treatment occurs and the child or pregnant woman

returns to a contaminated area.176 In 2006, the INQA study showed that approximately 81% of

the children tested for studies in Abra Pampa are suffering from lead poisoning.177 The children

of Abra Pampa were born into a damaged environment, which the IDB is responsible for

remediating. The damaged environment caused disabilities in a large number of children, and

the continued contamination in the environment constitutes a continuing human rights violation

of the rights of disabled children.

Violations of the Rights of Indigenous Peoples

Finally, during different phases of cleanup and loan distribution, there was no adequate

consultation conducted with the indigenous population of Abra Pampa, despite the requirement

of consultation according to the definitions of consultation in the ILO Convention and the

IACHR. The organizational and governing structure of the indigenous communities in the Puna

were not taken into account and these structures were not consulted when making loan decisions.

Further, there was no process of dialogue and negotiation before or during the remediation

process. The population of Abra Pampa self-identifies as indigenous, so the IDB’s actions violate

articles 18 and 29 of the Declaration of the Rights of Indigenous Peoples, which state that

indigenous peoples have a right to participate in the decision-making process that would affect

their rights, and that they have the right to the conservation and protection of their

environment.178 As already mentioned, the IDB is responsible for remediation of the

environment, and if done incorrectly, for the subsequent harm to the environment. Subsequently,

the IDB has ignored all concern voiced by the community, including Requesters’ complaints,

and has ultimately excluded the indigenous-identifying residents from having any sort of input.

In addition, by failing to distribute adequate information to the community, the IDB has violated

the universally recognized right to information. 179

Violation of Customary Laws

Further, the IDB has violated multiple customary laws, including article XI of the Rights of Man,

and article 25 of the Universal Declaration of Human Rights, which states that every person has

the right to a standard of living “adequate for the health and well-being of himself and his

family.”180 There can be no question that Argentine residents have been deprived of this

174 Id. 175 Interview with Dr. Perez Heredia, Nov. 5, 2015. 176 Id. 177 See December 2014 UT Health Clinic Press Release. 178Declaration of the Rights of Indigenous Peoples. Accessed March 28, 2015.

https://www.humanrights.gov.au/publications/un-declaration-rights-indigenous-peoples-1. 179 Mendel, Toby. "Freedom of Information as Internationally Protected Right." Accessed March 28, 2015.

http://www.article19.org/data/files/pdfs/publications/foi-as-an-international-right.pdf. 180 "The Universal Declaration of Human Rights." In The Universal Declaration of Human Rights. Article 25 (1)

United Nations, 10 December, 1948. Accessed March 28, 2015. http://www.un.org/en/documents/udhr/.

34

elemental right, as many of them now struggle not only with problems related to poverty, but

medical concerns resulting from toxic waste contamination. The IDB has also violated the

customary law of the American Declaration of Human Rights, article 11, which guarantees the

right to health.181 In addition, every citizen has a right to health, and for their health not to be

jeopardized, as put forth in the American Declaration of the Rights and Duties of Man.182 It is

also worth noting, the IDB‘s due diligence in lending practices is directly connected with

observing the laws and treatises of the borrowing country. Argentina has ratified the

International Covenant on Economic Social And Cultural Rights and the International Covenant

on Civil and Political Rights, but the IDB has failed to observe these. The IDB should observe

these covenants because of its collective collaboration with Argentina. Consequently the IDB’s

disregard for the health or well being of the residents of Abra Pampa has directly resulted in a

violation of these rights.

A. As An International Organization, Responsibility For The Human Rights Violations

Can Be Attributed To The IDB

The causal link for responsibility of the rights violations in Abra Pampa is evident and it

indicates that the IDB is a responsible party. The IDB has an international responsibility to

respect the rights of those that it works with.183 The failure to exercise due diligence during this

project led to the violation of human rights.

Furthermore, there is a trend towards impugning responsibility on international organizations,

which is inferred or implied from ratified treatises.184 The International Law Commission

Commentaries state an internationally wrongful act occurs when it is attributable to that

organization under international law, and it constitutes a breach of an international obligation of

that organization. In addition—it does not matter who the organ or agent committing the act is in

respect to its position within the international organization. The IDB is in violation of such

guidelines considering its failure to act on the human rights issues clearly present in Abra Pampa.

B. The IDB’s Failure to Include a Health Component in the Loan Design is a Violation of

Human Rights.

As previously mentioned, the IDB is bound to international human rights law as a result not only

of its collaboration with Argentina, but as a subject of international law185. The UN Committee

on Economic, Social, and Cultural Rights has consistently stated that the obligations of States

181 Organization of American States. American Declaration on the Rights and Duties of Man. Article 11 The Ninth

International Conference of American States, 1948.

https://www.cidh.oas.org/Basicos/English/Basic2.American%20Declaration.htm 182And as ratified by Argentina. See Article XI. 183 “Extreme Poverty and Human Rights” August 4, 2015, Report of the Special Rapporteur on Extreme Poverty and

Human Rights, Philip Alston. The Special Rapporteur asserts that international organizations have an obligation to

abide by the laws of the jurisdiction that they are working in, in addition to respecting international standards of

human rights. 184 “Draft Articles on the Responsibilities of International Organizations, with Commentaries." Paper presented at

International Law Commission, 2011. Accessed March 28, 2015. http://legal.un.org/ilc/texts/instruments/english/

commentaries/9_11_2011.pdf. See page 7. 185 Commentary to the Maastricht Principles on Extraterritorial Obligations of States in the Area of Economic,

Social, and Cultural Rights, Vol. 34, 1121.

35

that are parties to the ICESCR extend to State action as part of inter-governmental organizations,

and can be termed “collective collaborations.”186 The IDB’s actions in conjunction with

Argentina from 2007 to the present constitute a “collective collaboration” on this particular

project. The IDB is bound to international human rights law by virtue of its business relationship

with Argentina, and to its domestic law by the same. The IDB and Argentina’s “collective

collaboration” in Abra Pampa create a customary law obligation, and also impose treaty

obligations on the IDB to respect human rights and prevent the violation of human rights, and

international treaties signed and ratified by Argentina. As such, the IDB’s failure to include a

health component in the loan to Argentina was a violation of the international law it is bound to

uphold.

The IDB’s failure to secure the right to health of Abra Pampa residents stands in sharp

contradiction to the commitment of the international financial sector, including the IDB, to

cooperate in the protection of human rights and has also been expressed within many

international guidelines.187 A recent study found that “most...other [multilateral development

banks] ...[recognize] the responsibility of clients to respect human rights.”188 As a multilateral

development bank (“MDB”), the IDB distinguishes itself from mainstream investments by the

importance it places on linking capital provisions and finances to long-term sustainable social

goals.189 Thus, the IDB has a recognized responsibility to comply with and protect human rights.

By denying responsibility and failing to incorporate the right to health in its policies and

processes, the IDB lags behind the best practices followed by certain private sector actors and

multinational enterprises, contradicting its own missions and goals as an MDB and mission as a

socially responsible investment.190 More importantly, in failing to respect the human rights of

those in Abra Pampa, the IDB is failing to uphold its original goal and purpose of the pilot

project of which Abra Pampa is a part.191 Through its failure to follow international human rights

and health law, the IDB contradicts its recent commitment to support the UN’s Post-2015

Development Agenda, which outlines a commitment to “ensure healthy lives” as the 4th goal of

the agenda.192

186 Indigenous peoples and NGOs urge the UN to focus on the human rights impacts of multilateral finance

institutions." Forest Peoples Programme. Last modified October 1, 2013. Accessed March 28, 2015.

http://www.forestpeoples.org/ topics/african-development-bank-afdb/news/2013/10/ indigenous-peoples-and-ngos-

urge-un-focus-human-rights. - In 1986, Argentina became a party to the ICESCR, and is therefore legally governed

by this covenant 187 1) International Labor Organization (ILO) Tripartite Declaration of Principles Concerning Multinational

Enterprises and Social Policy; 2) OECD Guidelines on Multinational Enterprises; 3) UN Norms on the

Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights ; 4)

The UN Global Compact, Ethical Indices Requirements, 5) Health Impact Assessment; 6) Draft Principles of

International Law for Multilateral Development Banks, 7) Millennium Development Goals and the post-2015 UN

Development Agenda. 188 “Extreme Poverty and Human Rights” August 4, 2015, Report of the Special Rapporteur on Extreme Poverty and

Human Rights, Philip Alston. 189 Francesca Mantra and Rita Roca, Values Added: The challenges of integrating Human Rights into the Financial

Sector. The Danish Institute for Human Rights (2010), available at

http://www.humanrights.dk/files/media/dokumenter/tools/values added report dihr.pdf 190 Id. 191 Section 2.11 of the loan states ““Such experience [the results of the project] will be reflected in a technical

manual for the future remediation’s of other mining sites.” 192 The IDB along with other six Multilateral Development Banks, agreed to support the UN’s new post-2015

Development Agenda at the April 11, 2014 UN Conference. The Agenda strives to “ensure healthy lives” as a 4th

36

Under customary international human rights law, the IDB’s aforementioned193 duties of due

diligence extend to supervising conditions of borrowing countries’ locally affected communities,

including a health aspect and respect for the human rights obligations of Argentina. The IDB’s

failure to include a health component in the loan, appreciate the special needs of the community,

particularly its indigenous residents, or to remediate the health problems caused by the botched

cleanup constitute violations of the required due diligence imposed on the IDB.

In sum, ensuring the protection of human rights, including the right to health, in the Abra Pampa

pilot project is not only Argentina’s responsibility but also that of the IDB. Despite the Bank’s

statement that Argentina chose to design a restrictive loan that excluded a health component, the

IDB plays an equally active role in contract development and agreement. The Bank had a

responsibility to comply with its international customary duty to protect the right to health in

Abra Pampa. The IDB also had an implied duty and duty of due diligence to a) respect

international standards by virtue of its status as an international organization b) respect

international treaties signed by Argentina, c) international guidelines pertaining to IOs and

MDBs, and d) MDB shareholders by considering the positive and negative impacts of certain

community investments.

IV. Conclusion

Not only has the IDB failed its own standards and policies, it has also failed to comply with an

international duty to protect the right to health, the right to a healthy environment, the right of the

child, and the right of indigenous peoples and has utterly failed to exercise due diligence in

preventing Argentina as a borrower country from violating international obligations during bank-

financed operations. Its status as an international organization imbues on it the duty to exercise

the powers it has been delegated in compliance with the requirements that human rights impose

as internationally recognized customary law. In failing to exercise its powers in this manner, the

IDB has committed multiple violations of both customary international law and treaties that

Argentina has ratified against Requesters and the community of Abra Pampa. As a result,

Requesters’ families have suffered permanent medical disabilities, as well as been denied the

right to information concerning their community, or the right to provide input on the loan

remediation to the IDB.

The IDB is responsible for said human rights violations against Requesters and the community in

Abra Pampa because it has failed to exercise due diligence before granting the loan to Argentina,

neglected to include a health component in the loan design and fallen short of any remedial steps

once it was made clear that the health of the Abra Pampa population was at risk. As a result of

goal, stressing that “[h]ealth enables people to reach their potential. Healthy children learn better. They become

healthy adults. Healthy adults work longer and more regularly, earning higher and more regular wages. Though we

focus on health outcomes in this goal, to achieve these outcomes requires universal access to basic health-care. We

must start with a basic commitment to ensure equity in all the interconnected areas that contribute to health (social,

economic and environmental).” United Nations General Assembly, Keeping the promise: united to achieve the

Millennium.65U.N.A/RES/65/1(Oct.19,2010),availableathttp://www.un.org/en/mdg/summit2010/pdf/outcome docu

mentN1051260.pdf 193 At 33-34.

37

the IDB’s actions and subsequent remedial inaction, Requesters’ families have suffered

permanent, serious harm in the form of permanent mental disability, potentially irreversible

organ damage and a significantly lowered quality of life.

The IDB’s omission of a health component in an environmental remediation program shows a

general disregard for the lives of the Abra Pampa community. Disregard for community health is

directly in conflict with Bank goals to ensure projects provide long-term sustainable social goals

and the IDB’s goal to use Abra Pampa as a pilot project. Accountability requires that the IDB, at

a minimum, enforce the right to health during the loan design processes and provide adequate

supervision of loan projects through close monitoring of the methods used during environmental

remediation.

The IDB also failed to ensure timely execution of the loan, and as a result the implementation of

the program was significantly delayed. Furthermore, the IDB failed to establish adequate

consultation with the Abra Pampa community. As a result of these shortcomings the IDB bears

responsibility for harming the health of a significant portion of the Abra Pampa population. The

IDB has failed to enforce loan-executing agencies’ compliance with its own policies and

standards during the implementation process by failing to adequately develop appropriate

consultation with the indigenous community.

Furthermore, if the IDB had exercised its due diligence duties and respected the importance of

Abra Pampa as a pilot project, it should have refused to approve a loan that fell short of

Argentina’s international and national legal obligations to the right to health. The absence of a

health component in the Abra Pampa pilot project is a failure that creates significant risk for

other communities that may be affected in later replicated projects. The absence of a human

rights or health policy is a reflection of shortcomings in the IDB’s project approval and

implementation process. The absence of a human rights and healthy policy have had a clear and

direct impact in the Abra Pampa community.

Had the Bank taken the adequate approach to the right to health in this pilot project and used its

considerable power to intervene, or met its duty to supervise the project--as its own policies

demand--it could have prevented additional harm to the population and averted the continued

violation of the right to health in the Abra Pampa community.

V. Petition

Based on the above observations, relevant Bank operational policies, and international legal

norms, Requesters ask that the IDB’s management:

1. Consider this request filed in due time and form by representatives of the Requesters since the

loan’s last disbursement has yet to occur;

2. Recognize the representative appointed by the Requesters for all purposes of this proceeding

before relevant management and departments;

38

3. Determine this request to be eligible for all administrative purposes in order to fulfill the

prerequisite of reaching IDB’s relevant management and departments before Consultation and/or

Compliance Review Phase;

4. Ensure proper consultation of Abra Pampa’s indigenous peoples in all future remediation

processes;

5. Ensure access to information to the Abra Pampa community regarding the status and progress

of the loan and future disbursements;

6. Enforce international legal standards on the right to health in all future remediation projects

financed by the IDB, recognizing that health remediation represents a necessary foundation in

environmental remediation programs;

7. Determine in consultation with the community whether or not loan reformulation for the Abra

Pampa project is possible to address the pressing right to health demands of the Abra Pampa

community and as a method to improve accountability and implementation. This new plan could

include:

a) A local campaign to raise awareness about the effects of lead poisoning and mining activities

on the health of the population;

b) A research study on the quality of the air, subsoil, and water by a third party company, not

responsible for the remediation process;

c) Free blood tests for the Abra Pampa population offered by a local health clinic and

accompanied by a community awareness campaign to promote such tests;

d) Local health clinic treatments for those showing lead blood concentration levels higher than

those accepted by international standards;

8. Cease all Bank disbursements related to the project until a new plan can assure the Abra

Pampa population adequate right to health mechanisms;

Please find enclosed requestor’s power of attorney agreement and previous correspondences

between the Requesters in conjunction with the Clinic and the IDB. We await an expeditious

response to this request and remain at your disposal for any questions or clarification.

Sincerely,

The Human Rights Clinic at the University of Texas at Austin, School of Law

Ariel Dulitzky

Priscilla de la Garza

Amy Rodriguez

CC: Ricardo Quiroga

Principal Rural Development and Natural Resources Specialist

División de Medio Ambiente, Desarrollo Rural y Administración de Riesgos por Desastres

(RND)

39

Esmeralda 130 Piso 19

Buenos Aires, Argentina

Tel: 54 11 4320 1870

E-mail: ricardoq@iadb.org

CC: Pedro V. Martel

Chief, RND

E-mail: pedroma@iadb.org

CC: Maria Claudia Perazza

Lead Environmental Specialist, RND

E-mail: mariacp@iadb.org

CC: Jose Luis Lupo Flores

Manager of the Southern Cone Country Department

E-mail: JOSELU@iadb.org

CC: Luis Ferpozzi

UES-GEAMIN

Secretaría de Minería de la Nación.

Av. Julio A Roca 651, piso 3, sector 29

Ciudad Autónoma de Buenos Aires

Tel: 54 11 4349 3197

E-mail: lferpo@minplan.gov.ar