by Salma Bennagi
This blog is part of the ‘Environmental Justice and the Law – A Student Blog Symposium.’
Introduction
Bouazar, Morocco, shelters a concerning reality beneath its surface—a cobalt mining operation where human rights and environmental justice face grave challenges. Approximately 1,200 miners undertake the perilous task of excavating cobalt over six hundred meters underground, labouring under alarmingly unsafe conditions. The ever-present threat of landslides hovers over their daily lives, a grim echo of industrialisation’s darker legacies. Our case study delves into the profound human toll exacted by cobalt extraction and the ecological impact that often goes unnoticed, aiming to ignite discourse on the adequacy of Moroccan mining regulations and global human rights frameworks in safeguarding the well-being of these labourers.
Environmental justice means treating all individuals fairly, irrespective of race, ethnicity, or economic status when making environmental policies that impact their lives.
The circumstance in Bouazar offers a clear illustration of environmental injustice. The local miners, who face significant risks during their daily labour, bear an excessive share of the environmental burdens. Despite their labour’s crucial role in global trade, the benefits from their arduous toil are enjoyed worldwide. This imbalance between burdens and gains highlights a glaring case of distributive injustice. This inequity raises grave concerns regarding the equity of their situation and the global reliance on their labour.
The Moroccan Mining Code aims to supervise mining operations, including specific provisions for miners’ health and safety. However, these laws’ actual enforcement and application frequently fail to achieve their intended purpose, raising serious concerns about procedural fairness. The miners’ limited ability to influence decisions impacting their work and lives further compounds the injustice, highlighting a gap between policy and practice that needs addressing. This reflects broader structural inequalities in the distribution of environmental burdens and benefits, often following predictable patterns of domination and oppression. The environmental justice movement, as Esme D. Murdock’s “A History of Environmental Justice” discusses, emphasises that communities’ context in experiencing and responding to these injustices significantly shapes their forms of resistance. The movement is rooted in the principle “We speak for ourselves,” underscoring the importance of privileging the voices, experiences, and expertise of those directly confronted with environmental injustice.
Environmental Concerns and Working Conditions in the Cobalt Mines
Is the demand for cobalt for electric car batteries worth the irreversible environmental and human toll it exacts? This dilemma lies at the heart of our exploration into the Bouazar cobalt mines. Mining activities in the region have inflicted significant environmental degradation, sparking concerns. Currently, these mines yield over 2,400 tons of cobalt, primarily destined for electric vehicle batteries. The extraction process takes a severe toll, not only on the landscape but also on local communities. The mines’ insatiable demand for water resources has led to groundwater pollution and scarcity, compromising the villages’ access to water for drinking, cleaning, and irrigation purposes. This scenario underscores a distributive injustice, where local communities bear the brunt of environmental and health burdens. For instance, the Bou-Azzer ore processing facilities consume approximately 1 million cubic meters of water annually. This staggering amount equals the consumption of 50,000 individuals, intensifying the desert region’s already severe water scarcity.
Mining operations’ environmental consequences surpass water scarcity, encompassing soil and air pollution. Vast basins of dried mining residues near the mine contain tens of thousands of tons of arsenic stored in open air, which undergoes reprocessing via sulfuric acid watering. This process leads to soil contamination and airborne dust, severely impacting local populations. Residents of Bou-Azzer, residing mere steps from these arsenic deposits, suffer respiratory issues, skin irritation, and severe allergies due to dust from the mine. Such health crises strain local healthcare systems, raising questions about mining practices’ long-term sustainability and ethics that prioritise profit over people. Moreover, the ecosystem and the community’s way of life have been fundamentally altered. The destruction of traditional agricultural methods represents a loss of cultural heritage, displacing communities and erasing generations of accumulated knowledge.
There is an urgent need for sustainable mining practices in Bouazar to prevent further environmental degradation and safeguard the health of local residents, especially children. These individuals are afflicted with illnesses due to contaminated environments. Despite assertions of facilitating expedited and easier access to essential resources, notably potable water, the reality deviates from this claim. Local water sources are prioritised for mining operations over community necessities.
The working conditions in the cobalt mines of Bouazar are perilous. Over 1,200 miners operate in slavery-like conditions underground, frequently encountering landslides, accidents, and electric shocks. Fatalities are common, yet mine management often attributes these deaths to natural causes. Meanwhile, diseases like silicosis are widespread due to inadequate protective measures. Despite Managem’s reputation as an ethical mining leader, certified by several initiatives, first-hand accounts contradict this image. Osmane, a 24-year-old miner, reports insufficient safety gear and training, exposing workers to toxic dust without masks. His account starkly contradicts Managem’s claims of prioritising worker health. Furthermore, miners attempting to assert their rights face harsh retaliation, including beatings and dismissals, as revealed by unionist Hamid Majdi. This suppression of labour rights and exclusion of miners and locals from decision-making exemplifies procedural injustice in Bouazar, highlighting a significant gap between Managem’s public commitments and the harsh realities workers endure.
Legal Framework and International Standards
The Moroccan mining legislation has witnessed a remarkable transformation with the introduction of the new mining code, Law 33.13 (English overview here), in July 2015, followed by its implementing decree in April 2016. This comprehensive reform aimed at modernising the mining sector, encompassing operations such as cobalt mining at Bouazar. Most of the discussions on the legislation in English were also found with Rachida Semlali, author of ‘Management of the Moroccan Mining Heritage,’ who called it a necessary legislative overhaul. Replacing the outdated 1951 regulations, the new code extended mining licenses to ten years and implemented stringent environmental and labour protection requirements. Notably, the licenses now encompass all mineral substances, except for phosphates, which remain under state jurisdiction.
Specifically, Article 8 of Law 33.13 reinforces safety measures in mining operations. It mandates that all mining activities adhere to national safety, health, and environmental protection standards set by the Moroccan Ministry of Energy, Mines, Water and Environment. However, enforcing and ensuring the efficacy of these laws, especially in protecting miners’ rights and safety, has faced notable hurdles despite the explicit legislative improvements. For example, in Bouazar, miners confront challenging work environments, encompassing health hazards due to exposure to contaminants, job insecurity, and insufficient labour rights safeguards. These circumstances have sparked significant labour unrest, such as strikes and the establishment of new labour unions, as workers advocate for enhanced conditions and rights. This situation underscores a discrepancy between the regulatory framework and its practical application.
In agreement with these observations, the statement from Omar L, a temporary worker at the Imiter mine, adds a personal and grave dimension to this discourse. He argues, “Our working conditions are deplorable. The Labour code and the statute of miners are not enforced, and sanitary and security regulations are non-existent within the mine,”. This first-hand account exposes the critical gap between the envisioned safeguards and the actual implementation of these measures. This echoes Semlali’s concerns regarding the practical implementation of labour safeguards and the societal repercussions of mining legislation overhauls. It implies that while the legal framework has progressed, tangible transformations in labour practices and circumstances are imperative.
Although the Moroccan Mining Code aims to uphold international standards, such as the ILO’s Convention C176, which emphasises promoting safety and health in mining operations, the situation in Bouazar raises concerns about the effectiveness of the legal framework in adequately safeguarding miners. The apparent lack of enforcement of these standards suggests that the existing regulations may be insufficient in ensuring the well-being and protection of workers in this challenging industry. Notably, Article 35 of Morocco’s mining regulations mandates that all mining enterprises formulate and execute a holistic strategy for environmental management, encompassing waste management and rehabilitation of mining sites. However, as previously discussed, the situation in Bouazar suggests lapses in adherence and oversight regarding these stipulations. Furthermore, it is argued that the considerable delay in ratifying the International Convention on Safety and Health in Mines until 2013 – eighteen years after its inception – illustrates a significant lag in Morocco’s commitment to upholding international labour standards.
The situation is further exacerbated by Moroccan labour laws designed to safeguard mining workers. The Labour Codeand the 1960 Statute for mining employees only apply to companies with over 300 workers. This exclusion of smaller firms and subcontractors has drawn criticism from the International Labour Organisation (ILO). They argue it creates a dual system – larger entities can circumvent compliance while smaller operations remain largely unregulated. This legal loophole undermines worker protection and raises concerns about potential exploitation.
Regarding environmental impact, the new mining code requires operators to submit impact assessments and comply with environmental laws. However, practices like using local water resources without charge at the Bouazar mine lead to pollution and depletion of groundwater, indicating ongoing governance challenges. The intense exploitation of land and miners in regions like Drâa Tafilalet, which holds 40% of mining permits, reveals the scale of this issue. The exploitation by large entities like the Managem group, affiliated with the national royalty, highlights systemic problems tied to prioritising profits over miner welfare and governance. The connection between the Moroccan royal family and the management of mining operations through subsidiaries arguably poses a potential conflict of interest. This could hinder genuine reforms in mining practices. Additionally, Morocco’s non-committal stance at United Nations Framework Convention on Climate Change discussions, particularly its omission of mining-related environmental impacts and limited number of policies focused on climate change mitigation, can be seen as avoiding regulatory responsibilities. To counter this, however, strides have been made, like the European Bank for Reconstruction and Development’s promotion of sustainable practices by enforcing environmental, social, and governance (ESG) standards and supporting responsible mineral extraction to address these regulatory challenges.
Overall, Morocco’s endeavours to reform mining legislation are praiseworthy, positioning the nation favourably in regional assessments. However, the practical implementation of these laws in remote mining locales like Bouazar unveils significant deficiencies in worker safety protocols, environmental preservation measures, and adherence to global labour standards. These shortcomings accentuate the necessity for fortified enforcement mechanisms and potentially a re-evaluation of how the regulations are applied on-site to safeguard better both the natural environment and the miners’ well-being.
Human Rights Concerns and Corporate Accountability
The UN unanimously welcomed the Guiding Principles on Business and Human Rights in 2011. These principles have three key pillars. Firstly, states have a duty to safeguard against human rights violations by third parties like businesses. Secondly, corporations must respect human rights. This means avoiding infringement and addressing adverse impacts they contribute to. Lastly, effective remedies must be available for victims of business-related abuses.
The UNGPs provide clear guidance, yet their implementation in high-risk industries like mining remains challenging. Examining cobalt mining in Bouazar, Morocco, exposes gaps between policy commitments and on-the-ground realities. Prominent automakers like BMW and Renault claim to uphold responsible mining principles. However, field reports paint a different picture – inadequate safety precautions, exploitative working conditions, and grave health hazards due to exposure to toxic dust without proper protective gear.
These companies shifted to Morocco to avoid the cobalt scandal in the Democratic Republic of Congo, which accounts for over 70% of global supply but faces severe criticism for human rights violations like child labour, unsafe working conditions, corruption, and other abuses. The UK Supreme Court’s Vedanta case ruling affirmed that parent firms can be legally responsible for the overseas operations of their subsidiaries. This pivotal judgment facilitates holding multinational corporations accountable for environmental and human rights violations globally. It highlights how international legal principles can address injustices like those in Bouazar, providing a framework for affected communities to seek redress and enforce corporate accountability under international law, akin to potential applications under Moroccan mining regulations.
Advocates, including Jonathan Bonnitcha in the European Journal of International Law concur that the UNGPs provide a clear framework for holding entities accountable for human rights violations. This framework is essential given the increasing global influence of multinational corporations. Proponents like Jonathan highlight advancements in corporate human rights policies since the UNGPs’ adoption, citing initiatives such as human rights impact assessments as proof of the UNGPs’ positive impact. However, the UNGPs’ voluntary nature and absence of compulsory enforcement mechanisms have led critics like Florian Wettstein in the Business and Human Rights Journal to question their practical effectiveness, stating that we are betting on the “wrong trojan horse.” Despite corporate claims, severe human rights violations persist in industries like mining, highlighting a gap between policy and practice. A counterargument is that the focus should extend beyond UNGP enforcement to strengthening domestic legal systems and global governance structures. Integrating the UNGPs into national laws and creating international bodies to hold corporations accountable beyond mere national jurisdiction could address this gap.
Corporations assert their dedication to upholding human rights standards throughout their operations, a vow mirrored by industry giants like BMW and Renault in their public sustainability disclosures. Nonetheless, a revelatory report from the Corporate Human Rights Benchmark (CHRB) contends that these professed commitments seldom manifest as concrete enhancements in real-world practices. The unrelenting accounts of labour exploitation and safety lapses point to systemic shortcomings in effectively implementing or rigorously monitoring such professed policies.
Substantial critiques of the UNGPs highlight several concerns. These include a lack of specificity, undue corporate influence in their development, inadequate remedial measures, and insufficient monitoring and accountability mechanisms. The third pillar, which emphasises effective remedies for victims, often falls short in practice. For instance, in Bouazar, responses to workers’ grievances during strikes or protests have involved repression rather than constructive engagement, failing to meet the UNGPs’ standards for effective remedies.
The state of affairs grows more convoluted with recent revelations. Managem’s declaration, as conveyed by Reuters, claiming an audit found no irregularities in water supplies stands at odds with independent probes that uncovered grave environmental and labour transgressions, encompassing excessive arsenic levels. Such contradictions accentuate the pivotal necessity for external, impartial audits to corroborate corporate claims.
In summation, though the UNGPs furnish a foundational framework for mitigating human rights infractions within business operations, their efficacy, particularly in high-risk sectors like mining, hinges upon genuine and rigorous implementation by both governments and corporations. The framework’s success ultimately rests upon addressing the outlined criticisms and adopting more enforceable and specific standards.
Looking Ahead
Morocco’s mining regulations necessitate a multifaceted strategy to bolster multinational corporations’ compliance with domestic legislation through international cooperation. This approach may encompass integrating enforcement mechanisms within international trade accords and fortifying local governance through regular audits and public accountability initiatives. As explored in the Journal of International Economic Law by Oliver Hailes, such mechanisms in lithium trade have set precedents for integrating stringent environmental safeguards in trade agreements, which can be adapted for the mining sector in Morocco. Furthermore, corporate accountability could be enhanced by mandating due diligence reporting and independent audits. To mitigate potential corporate resistance stemming from apprehensions regarding increased costs and public scrutiny, incentives such as tax concessions or public recognition could offset compliance expenditures, rendering these measures more palatable to enterprises.
Empowering communities situated in mining zones requires substantial education and resource allocation. Reducing reliance on mining for local infrastructure development can be achieved through diversifying investments into sectors like agriculture or tourism. Establishing community advisory boards with miner representation would facilitate aligning mining operations with local sustainability and community needs.
However, it is argued that depending exclusively on voluntary adherence to international standards can be problematic because it may need more uniformity and economic motives could sway compliance. In response to this, bolstering global governance mechanisms and advocating for binding international accords would fortify the enforcement of these norms. From the perspective of Francesca Martines in the European Journal of International Law, negotiating binding global agreements is a vital element for fostering uniform ethical practices across nations’ boundaries. These accords serve to bolster local endeavours while mandating multinational corporations to comply with both local and international ethical norms. Consequently, this approach nurtures a more accountable and sustainable mining sector within Morocco’s borders.
Overall, the analysis of cobalt mining in Bouazar reveals significant gaps between the country’s mining legislation and the harsh realities miners face, including environmental and human rights issues. These findings underscore the urgent need for stricter enforcement of both local and international laws to protect miners and the environment.