On Friday, 2 November 2018, public interest law organizations filed an amicus curiae brief on behalf of the Roşia Montană community affected by an illegal gold mine project in Romania to include their perspectives in arbitration proceedings at the International Center for the Settlement of Investment Disputes (ICSID), housed at the World Bank.
In the amicus brief, the legal team presents new facts and perspectives regarding the human rights violations suffered by community members who opposed plans to build Europe’s largest open pit gold mine in western Transylvania. It also details the devastating impacts to the social fabric of the local community, caused by the company behind the mine, Canadian and British firm Gabriel Resources.
Having failed to build the mine, the company is now attempting to sue the state of Romania for $4 billion, using the investor-state dispute settlement (ISDS) found in Romania’s investment agreements with Canada and the United Kingdom.
In attempting to relocate the local community, the company was in breach of numerous international human rights principles. If built, the mine would have leveled four mountains, destroyed archaeological heritage, and used thousands of tonnes of cyanide.
Memories in Romania are still fresh from the Baia Mare disaster in 2000, when a dam at another mining project overflowed, leading to cyanide-contaminated water flooding into the Danube and other nearby rivers.
In 2013, hundreds of thousands of Romanians took the streets to demand their government apply the law and stop the Roşia Montană mine. The demonstrations followed numerous cases in which the Romanian judiciary declared that the company’s permits were illegal or that the company had not complied with the law.
Both the State and the company have submitted their arguments to the ICSID Tribunal, however both exclude the perspective and experience of local communities. The amicus brief explains how the company has not complied with EU or Romanian law and therefore should not be protected through international investment law.
On behalf of Roşia Montană NGO Alburnus Maior, the Independent Centre for the Development of Environmental Resources (ICDER), and Greenpeace Romania, civil society lawyers from the Center for International Environmental Law (CIEL), ClientEarth, and the European Center for Constitutional and Human Rights (ECCHR) filed the amicus brief to ensure the tribunal adequately considers these vital perspectives.
Hearings on the arguments of the case are scheduled for December 2019.
Commenting on the case, Eugen David, President of Alburnus Maior said:
“We won every case to prove this mine illegal. We will prove once more the severe illegalities committed against us. We will never give up!”
Erika Lennon, Senior Attorney at CIEL said:
“As the Tribunal considers this case, it must weigh the unique and vital perspectives of those at the heart of this dispute: the locals of Roşia Montană. Our amicus makes clear that Gabriel Resources has never had the right to mine in Roşia Montană, and thus it has never had a legitimate expectation to start exploitation. The company should not use investment arbitration to circumvent the legitimate enforcement of domestic law.”
Amandine Van Den Berghe, Trade Lawyer at ClientEarth said:
“The fate of the local community is in the hands of an arbitration tribunal which, despite sitting outside the European Union’s judicial system, will decide upon a dispute involving questions of domestic and EU law. Such questions however belong to the exclusive jurisdiction of the Romanian Courts, and ultimately the Court of Justice of the European Union. By using the investor-state dispute settlement mechanism, Gabriel Resources is clearly attempting to sideline the Romanian courts, in complete disregard of past rulings.”
Christian Schliemann, Legal Advisor at ECCHR said:
“For the first time in Romania, the perspective of a local community is represented in an ISDS case. The villagers of Roşia Montană and the members of Alburnus Maior have resisted the mining project and forced both the state of Romania and Gabriel Resources to respect them and their rights. With our legal intervention, it is our joint objective to safeguard this important achievement.”
Cristinel Buzatu, Legal Advisor at Greenpeace CEE said:
“The Roşia Montană case is a textbook example of state and corporate collusion: it is a case about corruption, greed, and environmental recklessness. At the same time, it is also a story about resistance and people power, and we hope it is a lesson that no corporation or politician can act against existing laws to the detriment of people and nature. We urge the tribunal to acknowledge that communities, nature, and rule of law must prevail over corporate interest.”