MEMORANDUM
To: Board of Directors, Freeport-McMoRan Copper & Gold, Inc.
From: Amnesty International - USA Robert F. Kennedy Memorial Center for Human Rights
Re: Freeport Social and Human Rights Policy
Date: May 5, 1999
CC: Amungme Tribal Council (LEMASA)
We welcome the company's establishment of a Social and Human Rights
Policy and appreciate the opportunity to comment on the policy.
Below are detailed, preliminary comments on each section of the
policy. We look forward to elaborating upon these comments and
recommendations in further discussions with the Board and management
of Freeport-McMoRan Copper & Gold, Inc. (FCX) and to receiving FCX's
responses to the points raised below.
General
The policy refers in several sections to the company's commitment to
respect "laws and regulations of the host country." Local laws in
many countries do not meet international standards for the
protection of human rights. For example, Indonesia's national laws
do not protect a citizen's right to freedom of association, nor do
they meet international standards regarding the use of force by
state security personnel. For this reason, we recommend that the
Board amend the policy to include language stating the company's
commitment to respect international human rights standards.
Social Principles: Communities
We welcome the company's stated commitment to consult the "local
populations about important operational issues that will affect
their communities." However, since the adoption of this policy by
FCX's Board, local community leaders in Irian Jaya (West Papua) have continued to
express dissatisfaction with the consultation process. In
particular, they have not received adequate notice before meetings
to ensure proper representation and did not have the opportunity to
participate in setting the agenda.
The March 1999 consultation in Bogor regarding the environmental and
health impact of the company's planned increase in its daily
throughput to 300,000 metric tons reflects our concerns about FCX's
commitment to meaningful consultation with local communities.
First, this meeting took place after the company had already made a
decision to expand. Second, the preparation and conduct of the
meeting showed no improvement over earlier consultations before the
Board's adoption of the new policy.
The use of the word "patiently" in the policy to describe the
company's approach to the building of relations with local
communities sounds extremely paternalistic. It does not suggest
that FCX respects and accepts local populations as partners on an
equal footing. Developing this kind of relationship is a long and
energy-consuming process that must evolve with respect for local
values, customs, attitudes and decision-making processes.
We recommend that FCX discuss the terms of consultation with local
community leaders and NGOs so that the Board may develop a
consultation system that satisfies the requirements of the Amungme
Tribal Council (LEMASA) and /or representatives of other affected
local communities. Local communities must be involved in developing
the agenda for meetings with the company. This requirement applies
to meetings that involve the participation of Indonesian government
personnel, community legal counsel, academics or representatives of
NGOs. The company should determine dates and locations for meetings
in consultation with LEMASA and representatives of other local
people well in advance. This notice should allow the communities
time to discuss their position on issues, decide who will represent
their interests at such meetings and ensure that these
representatives are able to be present. In addition, the company
should provide to local communities, in Bahasa Indonesia and the
relevant local language (e.g., Amungkal), all information and data
available to the company that is pertinent to the subjects to be
discussed.
The company should demonstrate a genuine "political will" to improve
its consultation process with local communities by hiring
well-qualified and trained staff in its community affairs department
and giving that department a real say in the company's overall
operations in the area.
The company's stated commitment to consult with local communities
raises a fundamental question about the implications of such
consultation for the company's decision-making. Does this commitment
mean that the company will revise or cancel operational plans if,
after consultation, local communities do not agree with the plans?
We strongly urge the company to respect the results of genuine
consultation processes with the local communities and to limit its
operations in ways that ensure that they do not damage the cultural
and environmental surroundings or violate human rights. Company
decision-making should be bound by a transparent and honest
assessment of the impact of operations. In this regard, we draw
your attention to the operational directive adopted by the World
Bank's Board of Directors regarding consultation with indigenous
peoples (please see appendices). These guidelines represent the
world-class standard for consultation and involvement of local
communities in decision-making and should serve as the model for a
revised policy by FCX's Board. Guidelines for implementation are
elaborated in the International Finance Corporation's October 1998
publication, Doing Better Business Through Effective Public
Consultation and Disclosure: A Good Practice Manual.
Social Principles: Employment
We recommend that the Board change the language "obey the laws and
regulations of the host country with respect to employment" to
refer to international human rights standards. The attached sheet
includes relevant standards for health and safety as well as fair
employment. Also included are relevant international standards
regarding freedom of association and the right to collective
bargaining. We are concerned that the policy does not require any
measures by FCX to ensure that company employees are able to
exercise those rights. It is critical that the policy include such
measures.
Human Rights
We are pleased to see the commitment, stated in the FCX policy, to
educate employees about human rights and company policies. We look
forward to reviewing the plans, procedures and materials that the
company produces for this purpose.
However, the policy raises additional questions regarding promotion
and protection of human rights within the project area. In
particular, we believe that the policy statement that "the company
will work pro-actively to create a constructive climate for
promotion of human rights . . ." should include a commitment by FCX
to actively demand that the presence of the Indonesian Army in FCX's
project area be reduced.
We also welcome the company's stated commitment to cooperate with
investigations of human rights violations. We strongly encourage
the Board to include in the policy provisions to: 1) protect
employees and non-employees who report human rights violations; 2)
establish internal reporting procedures that will ensure this
protection; and 3) inform all employees about these procedures fully
and on a regular basis. (We also recommend that the company report
credible accusations of human rights violations to local and
international human rights organizations as well as to the
appropriate government authorities. )
We further recommend that the company ensure that its operations do
not have a negative impact on the enjoyment of human rights by local
communities. The company should conduct and be guided by
assessments of the human rights impact of all operations, including
projects planned or under consideration. These assessments should
always involve the participation of local community representatives,
appropriate NGOs and academic experts.
Further Recommendations
FCX's Social and Human Rights policy does not address several other
areas that are relevant to the company's operations. The Board
should include provisions about these issues in the Social and Human
Rights Policy.
Security:
FCX should ensure that all company security arrangements are
designed and implemented to protect human rights and to be
consistent with international standards for law enforcement. Any
security personnel employed or under contract should receive
adequate training, including training in international human rights
and law enforcement standards. The conduct and procedures of any
such security personnel should be guided by the standards and
principles contained in the following international instruments:
- United Nations (UN) Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials;
- UN Code of Conduct for Law Enforcement Officials;
- UN Convention Against Torture;
- International Convention on the Elimination of All Forms of Racial
Discrimination;
- Convention on the Elimination of All Forms of Discrimination
against Women; and
- UN Declaration on the Elimination of Violence against Women
Company procedures should include measures to prevent excessive
force, discrimination -- particularly based on racial, ethnic or
religious grounds -- violence against women, and torture or cruel,
inhuman or degrading treatment. FCX should develop clear rules
governing the use of and/or engagement with state security forces,
including an effective prohibition against hiring security personnel
who have been responsible for human rights violations. There should
also be a clearly established procedure to ensure that all
complaints about security procedures or personnel are promptly and
independently investigated.
Use of equipment:
FCX's policy should include strict monitoring of the use of all
company equipment to ensure that the equipment is not used to commit
human rights violations.
Independent Auditing:
We welcome the company's agreement to allow the RFK Memorial Center
for Human Rights to conduct independent monitoring of human rights
conditions within the FCX project area. The Board should clearly
state in the adopted policy that the company is committed to
independent auditing by local and international monitors.
Implementation:
The company's Social and Human Rights Policy must include a plan for
implementation. The policy should state that the company will
thoroughly document its compliance with the Social and Human Rights
Policy and maintain and make available compliance records. We are
aware that the company "currently reports on social and human rights
in its annual report." We would encourage the Board to include this
practice as part of the company's policy.
Additionally, this reporting, as presented for the first time in the
1998 Annual Report, is incomplete and biased. For example, the 1998
report states (page 8) that "There have been a number of clashes
between the Indonesian military and the separatists and there have
been allegations of human rights violations in connection with some
of these incidents. These allegations have been investigated and
the individuals in the military who were determined to be involved
have been punished." This statement presumably refers to human
rights violations perpetrated by the Indonesian military against
civilians from the local indigenous communities, as documented in
"Violations of Human Rights in the Timika Area of Irian Jaya (West Papua),
Indonesia," the August 1995 report of the Catholic Bishop of
Jayapura. Indonesia's National Commission on Human Rights confirmed
these abuses, concluding in its September 1995 statement that clear
and identifiable human rights violations have occurred, including
"indiscriminate killings, torture and inhuman [or] degrading
treatment, unlawful arrest and arbitrary detention, disappearance,
excessive surveillance, and destruction of property." The
Commission called on the Indonesian government and military to
investigate these occurrences and prosecute those responsible. They
also recommended government compensation to the victims and their
families. To date, an investigation and prosecutions have been
carried out with regard to only one of the confirmed incidents. No
victims have received compensation.
In addition, the statement that no investigation "found that any
PT-FI [PT Freeport Indonesia] employee participated in any
violation" is not correct. While it is accurate to state that, to
date, no PT-FI employee has been found to have been directly
involved in perpetrating extrajudicial killings, arbitrary detention
or torture, the Catholic Bishop's report clearly states that the
Indonesian military forces used PTFI equipment, premises and
vehicles to carry out these human rights abuses and that PTFI
personnel cooperated with the military who perpetrated some of these
incidents of abuse.
Appendix: Relevant International Standards
Workplace health and safety
United Nations, Universal Declaration of Human Rights (UDHR) Article
3: "Everyone has the right to life liberty and security of person."
There are numerous International Labor Organization (ILO)
Conventions in this area. ILO Convention 155 on Occupational Safety
and Health relates to general provisions, and other Conventions
relate to specific areas of work.
Fair Working Conditions
UDHR Article 23:
"(1) Everyone has the right to work, to free choice of employment,
to just and favorable conditions of work and to protection against
unemployment.
(2) Everyone, without any discrimination, has the right to equal pay
for equal work.
(3) Everyone who works has the right to just and favorable
remuneration ensuring for himself and his family an existence worthy
of human dignity, and supplemented, if necessary, by other means of
social protection."
UDHR Article 24: "Everyone has the right to rest and leisure,
including reasonable limitation of working hours and periodic
holidays with pay."
There are numerous ILO Conventions relating to this area, including
the following:
ILO Convention 95 and 131 on wages
ILO Conventions 14 and 106 on weekly rest
ILO Convention 132 on holidays with pay
ILO Convention 138: on the Minimum Age for Admission to Employment
Freedom of Association and Right to Collective Bargaining
UDHR Article 20: "(1) Everyone has the right to freedom of peaceful
assembly and association. (2) No one may be compelled to belong to
an association."
UDHR Article 23: "(4) Everyone has the right to form and to join
trade unions for the protection of his interests."
ILO Convention 87: on the Freedom of Association and Protection of
the Right to Organize
ILO Convention 98: on the Right to Organize and Collective Bargaining
ILO Convention 135: on Workers' Representatives
Security
UDHR Article 3: "Everyone has the right to life, liberty and
security of person."
UDHR Article 5: "No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment."
UDHR Article 9: "No one shall be subjected to arbitrary arrest,
detention or exile."
UN Code of Conduct for Law Enforcement Officials includes provisions that:
" . . . (2) In the performance of their duty, law enforcement
officials shall respect and protect human dignity and maintain and
uphold the human rights of all persons.
(3) Law enforcement officials may use force only when strictly
necessary and to the extent required for the performance of their
duty.
(4) Matters of a confidential nature in the possession of law
enforcement officials shall be kept confidential, unless the
performance of duty or the needs of justice strictly require
otherwise.
(5) No law enforcement official may inflict, instigate or tolerate
any act of torture or other cruel, inhuman, degrading treatment or
punishment, nor may a law enforcement official invoke superior
orders or exceptional circumstances such as a state of war or a
threat of war, a threat to national security, internal political
instability or any other public emergency as a justification of
torture or other cruel, inhuman or degrading treatment or punishment.
(6) Law enforcement officials shall ensure the full protection of
the health of persons in their custody and, in particular, shall
take immediate action to secure medical attention whenever possible.
(7) Law enforcement officials shall not commit any act of corruption. . . .."
UN Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials elaborate on point 3 of the UN Code. The
Principles set out standards for rules and regulations governing the
use of firearms, for the dispersal of unlawful assemblies, the
treatment of persons in custody and for the training of law
enforcement officials in the use of force. The following provisions
are particularly relevant:
"(4) Law enforcement officials, in carrying out their duty, shall,
as far as possible, apply non-violent means before resorting to the
use of force and firearms. They may use force and firearms only if
other means remain ineffective . . .
(9) Law enforcement officials shall not use firearms against persons
except in self defense or defense of others against the imminent
threat of death or serious injury, to prevent the perpetration of a
particularly serious crime involving grave threat to life, to arrest
a person presenting such a danger and resisting their authority, or
to prevent his or her escape, and only where less extreme means are
insufficient to achieve these objectives. In any event, intentional
lethal use of firearms may only be made when strictly unavoidable in
order to protect life.
(10) In the circumstances provided for under principle 9, law
enforcement officials shall identify themselves as such and give a
clear warning of their intent to use firearms with sufficient time
for the warning to be observed, unless to do so would unduly place
the law enforcement officials at risk or would create a risk of
death or serious harm to other persons . . ."
Principles Governing Conventional Arms Transfers of the Organization
for Security Cooperation in Europe stipulate that "each
participating state will avoid transfers which would be likely to be
used for the violation or suppression of human rights and
fundamental freedoms."
Consultation with and involvement of local communities
Operational Directive 4.20 on Indigenous Peoples, September 1991,
The World Bank Operational Manual, The World Bank, Washington, D.C.
Doing Better Business Through Effective Public Consultation and
Disclosure: A Good Practice Manual, International Finance
Corporation, Washington, D.C., October 1998.
