UN Treaty Bodies express concern about Panama’s Fourth Electrical Transmission Line Project, call on Panama to respect Indigenous peoples’ right to free, prior & informed consent
April 11, 2023
GENEVA (CH) — In March, two United Nations bodies issued their findings about the situation of human rights in Panama, revealing that the Panamanian government has failed to meet its obligation to protect Indigenous Peoples’ rights, especially as a project to build the country’s Fourth Electrical Transmission Line moves forward.
These reviews were conducted by the UN Committees that are responsible for monitoring States’ compliance with their obligations under two treaties that are cornerstones of international human rights law: the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights.
According to the findings of both Committees, Panama has not ensured that development projects respect Indigenous Peoples’ rights, including their territorial rights and their right to free, prior, and informed consent (FPIC), as well as their right to maintain their traditional ways of life, livelihoods, and culture.
In response to these pronouncements, Feliciano Santos, a representative of Indigenous Ngäbe, Buglé, and Campesino communities and Coordinator of the Movement for the Defense of the Territories and Ecosystems of Bocas del Toro (MODETEAB), said:
These pronouncements by the United Nations come at a critical moment for our Indigenous communities in Panama, since the Environmental and Social Impact Assessment for the Fourth Line is currently underway. Despite this, our communities have not yet received information about how we will be able to participate in the preparation of this Assessment. Nor have we received information about how we will be able to participate in the design and implementation of the Free, Prior, and Informed Consent process that must be carried out with our communities before the project goes forward.
We reiterate our demand that our Indigenous communities must be informed about all of the impacts that the Fourth Line would cause, and that our right to consultation and to Free, Prior, and Informed Consent must be respected by the Panamanian government, by ETESA, and by the international backers of this project, including the International Finance Corporation.
Only in this way will we be able to ensure the well-being of our Indigenous communities and of our Mother Earth in the territories that would be affected by the Fourth Line, and where we have lived in harmony with nature for generations.
Olinda Castrellón, Sub-Coordinator of MODETEAB, said:
We are particularly concerned about the negative impacts that development projects have had on the lives of Indigenous women and on our young people.
In recent years, our homes have been flooded due to the construction of dams. We have been displaced to make way for highways. Electrical transmission lines have even been built right above our towns, without regard for the safety and well-being of our people and our children. In the face of these situations that have affected our way of life, the voice of our Indigenous communities has not been heard, in violation of our rights under Panamanian law and international standards.
We demand that the opinions and concerns of our communities — and especially of our Indigenous women and young people — be taken into account. We claim our right to grant or deny our consent before the Fourth Line or any other project goes forward that might affect our communities, our land, and our future generations.
Sarah Dorman, CIEL Staff Attorney said:
We welcome the UN Committees’ recognition that large-scale development and extractive projects often jeopardize human rights, including Indigenous Peoples’ rights in particular. This is especially likely to occur when Indigenous Peoples’ territorial rights and their right to free, prior, and informed consent are not protected, as has been the case in the context of the Barro Blanco Hydroelectric Project and the Fourth Electrical Transmission Line in Panama.
We urge the Government of Panama to seriously consider the gravity of these UN findings and to take urgent measures to implement the Committees’ recommendations, which seek to rectify Panama’s shortcomings in this regard and to ensure full respect for the rights of Indigenous communities in the context of development projects, such as the Fourth Transmission Line.
The UN Committee on Economic, Social and Cultural Rights (CESCR) and the UN Human Rights Committee (HRC) issue recommendations for the Panamanian State:
The CESCR and the HRC are UN bodies that are comprised of independent human rights experts and charged with overseeing the implementation of the human rights that are enshrined in the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, respectively. As part of their mandates, both Committees periodically review whether States are meeting their obligations under these Covenants, publish their conclusions, and present recommendations to the State under review.
Based on its review of Panama’s record under the International Covenant on Economic, Social and Cultural Rights, the UN CESCR noted in its Concluding Observations that Panama has not taken adequate measures to protect Indigenous peoples’ rights in the context of large-scale development projects, as follows:
The Committee expresses its concern over the low effectiveness in the application of regulations and mechanisms aimed at guaranteeing the protection of the rights of the Covenant when granting permits for large economic development projects or projects to exploit natural resources. Similarly concerning are reports regarding the impacts of these projects on Indigenous peoples’ traditional ways of life, livelihoods, and culture. In particular, the Committee notes with concern that neither complete environmental impact assessments nor adequate consultation procedures aimed at obtaining Free, Prior, and Informed Consent have been carried out ahead of investment projects, such as the Barro Blanco Hydroelectric Project and the Fourth Electrical Transmission Line. In addition, the Committee regrets that it has not received information about the status of compliance with the agreements reached with Indigenous peoples affected by this type of projects. [Translation by CIEL.]
As a result, the UN CESCR urged the State of Panama to take the following actions:
a. Effectively apply environmental regulations and complete social, environmental, and human rights impact assessments before granting licenses for development projects and projects seeking to exploit natural resources;
b. Design, adopt, and implement—in consultation with Indigenous peoples—an adequate mechanism and guidelines for the effective application of the right to consultation and free, prior, and informed consent, in accordance with Law no. 37 of 2016, and consider technical support from the Human Rights Council’s Expert Mechanism on the Rights of Indigenous Peoples for this purpose;
c. Fully implement all of the agreements reached with Indigenous peoples affected by the impacts of development projects and projects seeking to exploit natural resources, particularly the tripartite framework agreement of November 26, 2009, providing just and adequate reparations;
d. Take concrete measures to preserve the traditional ways of life, livelihoods, and culture of Indigenous peoples in the face of the impacts of development projects and incursions by third parties on their territories, including by accelerating the demarcation and adjudication of Indigenous peoples’ collective property that is not within the comarcas;
e. Ratify the International Labour Organization’s Indigenous and Tribal Peoples Convention, 1989 (no. 169);
f. Take into account, in this regard, [CESCR’s] General Comment no. 26 (2022) on Land and Economic, Social and Cultural Rights.
[Translation by CIEL.]
In turn, the UN HRC published its Concluding Observations following its review of the situation of civil and political rights in Panama, emphasizing that Panama must to do more to protect the rights of Indigenous peoples under the International Covenant on Civil and Political Rights and expressing its concern as follows:
The Committee takes note of the adoption of Law no. 37 of 2016, which establishes the [right to] consultation and free, prior, and informed consent of Indigenous peoples, but it regrets that implementing regulations for this Law have not yet been adopted. The Committee is concerned by reports that adequate and sufficiently participatory consultation processes have not been carried out for the purpose of obtaining free, prior, and informed consent in relation to projects with negative impacts on Indigenous peoples’ lands or ways of life, such as the Barro Blanco Hydroelectric Project and the Fourth Electrical Transmission Line. The Committee is also concerned by the lack of sufficient information about the process of demarcating and titling Indigenous peoples’ collective lands, as well as allegations regarding the slow progress of this process. [Translation by CIEL.]
In addition, the UN HRC recommended that the Panamanian State take the following actions to ensure the respect of Indigenous Peoples’ rights:
a. Expedite the procedures for establishing implementing regulations for Law no. 37 of 2016, guarantee that these regulations are fully consistent with the [International Covenant on Civil and Political Rights] and other relevant international standards, and ensure the active participation and consultation of Indigenous peoples in the development of these regulations prior to their adoption;
b. Guarantee that effective consultations are held in good faith with Indigenous peoples, ensuring their active and effective participation, for the purpose of obtaining their free, prior, and informed consent before adopting and applying any measure that could substantially affect their rights, their way of life, and their culture, including in particular infrastructure projects or projects seeking to exploit natural resources;
c. Ensure that Indigenous peoples affected by infrastructure projects or projects seeking to exploit natural resources have adequate access to justice, to effective remedies, and to just and adequate reparations;
d. Expedite the process for demarcating and titling Indigenous peoples’ collective lands, including by establishing and applying a simplified procedure for doing so, among other measures;
e. Guarantee to Indigenous peoples access to education and to health facilities, goods, and services;
f. Consider the possibility of ratifying the International Labour Organization’s Convention on Indigenous and Tribal Peoples, 1989 (no. 169).
[Translation by CIEL.]
Prior to these periodic reviews, MODETEAB and CIEL submitted information to the UN CESCR and to the UN HRC regarding the ways that projects such as the Fourth Electrical Transmission Line and the Barro Blanco Hydroelectric Project jeopardize Indigenous Peoples’ rights in Panama. The reports that MODETEAB and CIEL submitted to the UN CESCR are available here and here, and the report submitted to the UN HRC is available here.