February 6, 2019
ICSID, the World Bank tribunal, accepted an ‘amicus curiae’ brief submitted in the arbitration between Romania and the mining company Gabriel Resources over a destructive gold mine proposal in western Transylvania. Such acceptance marks an opening for the tribunal to hear the perspectives of the people directly affected by the mining project. In this case however, the tribunal conditioned its admission; excluding all testimonials and legal arguments from the villagers of Rosia Montana as well as rejecting their request to participate in the hearings.
“The tribunal can’t say that justice will be done and at the same time ignore what we had to endure in the name of greed,” says Eugen David, President of Alburnus Maior. “The tribunal must prove that they understand the case and this means to include our arguments. Until then, our fight continues.”
The brief was filed by the Romanian organisations Alburnus Maior, Greenpeace Romania, and ICDER, with support from CIEL (Center for International Environmental Law), ClientEarth, and the ECCHR (European Center for Constitutional and Human Rights). The amicus presented new facts about the constitutional, environmental, and human rights violations related to Gabriel Resources’ efforts to build Europe’s largest open-pit gold mine.
The amicus also included testimonials from property-owners of Rosia Montana, who over the last 15 years have been voicing their opposition to the mine plan and had to endure the impacts of all preparatory works, including involuntary relocation/ resettlement. Yet, while the Tribunal generally accepted the amicus, it decided to exclude their testimonies and any related information.
“By excluding the testimonials of those directly affected, the tribunal severely undermines the central purpose of the amicus submission,” says lawyer Christian Schliemann of the ECCHR. “For the locals of Roşia Montană, this decision denies them meaningful access to both the arbitration and justice in the present proceeding.”
The Tribunal also decided to exclude all legal arguments from the amicus brief. It stated that the organizations could not possibly have experience in international investment law, emphasizing that they are not eligible to become amicus curiae. “This approach fosters and aggravates the imbalances that are built into the arbitration system and further weakens an already meagre possibility to participate on behalf of those affected and to further the public interest,” says Erika Lennon, senior attorney at CIEL. The parties to the dispute, both the investor and the state, can further deny basic rights, including access to information, by denying access to documents based on a confidential business information argument.
“Although for now we are relieved the Tribunal agreed to accept some of our arguments, we are still pressing that all arguments will be taken into account and that local community voices are respected,” added Cristinel Buzatu, legal adviser for Greenpeace Central and Eastern Europe. “We will continue to make sure that no more abuses occur and that the rights of communities, people, and nature are respected and not sacrificed in the name of corporate interests.”
Included in trade and investment agreements, investor-state arbitration could persist in similar forms, like the investment court system (ICS), including the free trade agreement between Canada and the EU (CETA). This mechanism allows foreign investors to sue governments in special courts outside of the normal judicial system for passing laws or making decisions that are deemed harmful to corporate profits. The legality of this mechanism under EU law is currently being questioned before the Court of Justice of the European Union.
“This case highlights the asymmetry of a system that deprives local communities from any proper legal participation while providing investors with additional rights to sue the state unilaterally,” says ClientEarth lawyer Amandine Van Den Berghe. “It shows how foreign investors can use investor-state dispute settlement to undermine the public interest and bypass national courts. With a similar mechanism included in the CETA free trade deal, the case of Roşia Montană could soon become commonplace within the European Union.”
The case hearings are scheduled for December 2019 in Washington DC, at ICSID. Alburnus Maior, Greenpeace Romania, and ICDER invite the public to read the amicus to understand and further disseminate the perspectives and lived experiences of the locals from Roşia Montană.
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Note for editors
After failing to obtain the relevant permits to build the mine, Gabriel Resources (GBU:CN) is now attempting to sue the state of Romania for US$4.4 billion, using the investor-state dispute settlement (ISDS) found in Romania’s bilateral trade agreements (BITs) with Canada and the United Kingdom.
In attempting to relocate the local community using resettlement packages, the company was in breach of numerous international human rights principles. If built, the mine would have levelled four mountains and caused potentially devastating pollution by using thousands of tons of cyanide in the mining process.
Memories of the Baia Mare disaster in 2000 are still fresh in Romania, when a dam at a different gold mine overflowed, leading to cyanide-contaminated water leaking into the Danube, killing large numbers of fish in Hungary and Romania. The spill has been called the worst environmental disaster in Europe since Chernobyl.
In 2013, hundreds of thousands of Romanians took to the streets to demand their government apply the law and stop the Roşia Montană mine. The demonstrations followed the Romanian judiciary declaring that the company’s permits were obtained illegally. Other permits have never been issued as the company failed to submit all necessary data.