Seminar 4 - ASM (artisanal and small-scale miners) - Business and Human Rights Tort

What are ASM? And what 4 types of ASM are there?

Artisanal and small-scale miners (ASM miners) are individuals or small groups involved in labor-intensive mineral extraction using rudimentary techniques and limited machinery. Globally, approximately 80% of these operations work outside of legal and regulatory frameworks.

ASM miners are a diverse group whose work is often deeply rooted in local culture and history. ASM miners are a diverse group whose work is often deeply rooted in local culture and history.

There are 4 types of ASM groups -

1. Ancestral and Traditional Miners: Many ASM miners in regions like Colombia and Peru identify as "ancestral" miners, particularly within Afro-Colombian and Indigenous communities. For these groups, mining is not just an economic activity but a traditional part of their cultural identity and livelihood.

2. Individual and Family Operators: Mining is frequently a family business, sometimes supplemented by other activities like agriculture.

3. Associations and Cooperatives: To increase their bargaining power or gain access to supplies like explosives, many miners form associations, cooperatives, or small enterprises where they pool their labor, tools, and capital.

4. Subsistence Workers: This group includes workers, often women and senior citizens known as chatarreras or barequeras, who make a living by collecting bits of gold-bearing material from the waste or tailings of larger mining operations.

What do ASM do - such as placer mining, and underground mining?

Alluvial & Placer Mining

• Involves extracting gold from riverbeds, stream banks, and loose sediments

• One of the most common methods due to low cost and accessibility

• Does not require heavy machinery or deep excavation

• Common techniques include:

  • Panning – using water and circular motion to separate gold from lighter materials

  • Small-scale dredging – using suction equipment to remove sediment from riverbeds for processing

• Often seasonal and dependent on water availability and river conditions

Underground (Lode) Mining

• Targets gold deposits found in hard rock veins below the surface

• Requires digging vertical shafts, tunnels, and galleries

• Typically limited to shallow depths (10–20 meters) due to high costs and limited technology

• Relies on manual labor and basic tools such as picks, shovels, and simple drilling equipment

• Higher risk compared to surface mining, including tunnel collapses and poor ventilation

What is their general relationship to large scale and formalised mining activity?

• LSM companies offer operating contracts that allow ASM miners to continue working; presented as a solution to conflict. Under GCG’s contracts in Segovia, miners received only 20% of ore at 30% of market value. Miners described themselves as "slaves of the company", yet 70% of GCG's profits came from these contracts.

• Rodríguez-Novoa & Holley examined that ASM can co-exist with LSM, however under two social conditions such as - (1) an organised ASM community which is where ASM miners are organised into cooperatives or associations, the power imbalance with LSM is reduced and meaningful negotiation becomes possible, (2) an independent mediator, they bridge the parties, coexistence typically collapses into latent conflict; especially where government corruption is perceived as high.

Why is the discussion of the relationship between ASM and LSM crucial to Business and Human Rights?

• Under UNGP Pillar II, companies must identify and address adverse human rights impacts along their value chain; ASM miners are directly in that frame.

• Blecher finds that mining companies consistently fail to engage meaningfully with affected rights-holders, generating real legal, financial and reputational risk.

• ASM miners remain structurally invisible in most corporate human rights due diligence practice, despite being among the most affected groups.

What are the legal and livelihood challenges that GASM face in Colombia as per Echavarria?

In Colombia many artisanal and small-scale miners are victims of legal and illegal armed groups in gold mining areas, which converge geographically with traditional ASGM regions, Informal ASM is at risk of being controlled and co-opted in some areas by armed groups. Due to its informality, ASGM is often immersed in opaque supply chains.

• Lacking access to credit, financing and explosives, it is prone to becoming involved in perverse relationships of dependency with armed groups in order to operate.

• ASM miners are often exposed to extortion, illegal financing, kidnapping, threats and murder in these regions.

• Lack of access to formal credit and mining titles for ASM also creates opportunities for informal miners to be financed by criminal networks, who have co-opted some legitimate informal miners and used them as shields to protect criminal operations. In this context it is particularly difficult for informal miners to demonstrate the origin of their gold, creating a huge barrier to accessing markets for legal or conflict-free supply chains.

What are the underlying barriers to ASM formalisation in Colombia as per Echaravia?

Though formalisation and legalisation initiatives have repeatedly included policies to promote and protect traditional informal ASM via promises of tax incentives, free technical support, simplified licensing, organisational capacity building and access to credit – These are all contingent on ASM operations registering with the state and complying with varying and increasing degrees of technical and environmental standards.

• Explosives are produced by Indumil, the national military arms industry, which strictly controls their sale and trade due to the armed conflict. ASM miners have been particularly affected by these restrictions where gold mining regions coincide with the presence of illegal armed groups. Obtaining legal explosives is costly and time consuming. It involves verification of legal mining titles, police certification of non-involvement in armed conflict and criminal activities, certification for transport of explosives, certification of training in the safe storage and use of explosives. If ASM cannot access explosives through a legal and efficient mechanism, it is forced to either stop operations or to purchase explosives on the black market at four or five times the legal price.

• The economic burden of formalising employment is one of the greatest bottlenecks in formalisation. Worker formalisation is a key objective of the government in line with the International Labour Organization’s (ILO) ‘decent work’ agenda. However, miners want this framed as a process that enables a degree of flexibility and recognises traditional working arrangements in the ASM sector, where workers often prefer ‘the luck of gold’ to a fixed salary, and often move from one mine to another depending on productivity. This means allowing short-term contracts for workers, as in other economic sectors

• Artisanal, small- and medium-scale miners admit that for many years they did not legalise because of fear of the costs of compliance, the excessive red tape, and the high entry barriers in the form of technical, environmental, legal and economic requirements. Some also recognised that they simply did not want to pay taxes, and being allowed to continue working indefinitely while legalisation requests were being processed

• Miners interviewed report that banks have very strict requirements for opening accounts. They demand accounting to be in place, and goods and services receipts for all purchases. ASM operates in highly informal economic contexts – the local shops that provide goods and services are themselves informal businesses, so do not usually provide receipts, nor are they registered as formal businesses.

• Although ethnic groups have reached innovative agreements with miners of all scales in some areas, driven by the costly requirements for exercising the priority right that ethnic groups are entitled to, and the need to address conflict with external miners operating within their territories. This is the case for the Cocomacoiro Community Council, a major community council in Chocó Department.

• Most formalisation processes have offered technical and legal assistance to miners, but it has been intermittent and neither tailored to local conditions nor inclusive of all ASM regions. The fact that so many artisanal and small-scale miners are illiterate or have had only elementary schooling is a significant barrier for trainers and limits the effectiveness of written or online training materials.

• The cost and technical requirements for formalisation represent additional barriers. According to Edinson Monsalve, a contractor with an operation contract with GCG, today mining and environmental management plans cost a minimum of USD25, 000 for the smallest operation

• The 2001 Mining Code eliminated the differentiated approach to different scales of mining operation, and created uniform rules for all. The code sets very high standards without providing effective mechanisms or incentives for ASM to comply with its terms.

• In most cases the timeframe was too short (and was always extended), the capacity of central authorities to deliver support on the ground was limited, financing for formalisation did not materialise, and information on ‘how to’ was fragmented, difficult to obtain, and inadequate for informal miners, especially for ethnic groups

• Weak governance has been the main barrier to achieving better outcomes in formalisation. Although incentives were built into most formalisation plans, they were not properly implemented. This weakness on the part of the mining authorities has perpetuated a culture of informality.

• The current economic policy which relies on mining as one of main engines of economic growth, ignores the rapid changes which have taken place in the mining sector over the past ten years. The rise in gold prices allowed numerous informal ASM to become MSM, while gold mining attracted criminal networks and armed groups who expanded their influence and control over the ever-growing mining areas in Colombia. ‘The state’s decision to promote the official “mining engine” clashed with the informal, illegal and criminal “mining engines”’ and has meant that Informal ASM and MSM miners are caught in the middle of this clash and have been prosecuted in the same manner as criminal miners, while their traditional areas of operation have been licensed to others. This situation has eroded trust between mining authorities and ASM.

• Despite over 20 years of initiating decentralisation policies in Colombia, decisions regarding minerals development are still made in Bogotá with insufficient consultation with regional and local authorities, who have to deal with the ensuing environmental impacts and social conflicts, or may have alternative visions and plans for development that are not based on minerals. Effective decentralisation is key; however, many interviewees point to the importance of strengthening governance at the municipal level, to ensure that the potential benefits of mining fit with local priorities. A number of formalisation programmes have failed or been abandoned by local authorities due to the lack of continuity, political will and/or capacity; and limited understanding of regulations that are often complex.

• Closing mines could generate social conflict due to the resulting unemployment. In addition, they lack the capacity to police the security risks associated with controlling operations by illegal criminal groups, and there are no regulations for managing confiscated minerals.

• Legislation demands the ‘cession of areas’ and ‘devolution of areas’ not economically viable for LSM concession holders. Until the mining authorities make full use of these instruments, the mining companies who own these titles are unlikely to devolve areas from their concessions before obtaining comprehensive information about the deposits under exploration. Environmental and social impact assessments, FPIC where relevant, and other technical and financial documentation are only required by the state after the exploration phase is finalised and mining is due to begin. This period may be extended even further if the concession-holder requests suspension of work due to an unforeseen event or force majeure (such as armed conflict). This policy has caused extensive areas to become unavailable for many years. There is no legal mechanism to ensure that devolved areas or areas from non-compliant mining exploration concessions are secured for ASM formalisation.

How can these livelihood and legal challenges that ASM face be resolved as per Echaravia?

• Rights to mining → (1) Speed up the legalisation of ASM mining rights. Waiting times for government responses to legal procedures must be drastically reduced and simplified. Many livelihoods depend on these mines, and miners are not able to stop working while they wait for permits to arrive. (2) Mentor and support artisanal and small-scale miners, indigenous peoples and Afro-Colombians to ensure they are able to comply with legal and technical requirements. (3) Guarantee the recovery of mining areas for ASM, by setting clear rules for cession or devolution of areas and mining rights by current title-holders, providing legal tools to enable ASM-LSM collaboration, and implementing strict inspections of current mining concessions.

• Human Rights → ASM and MSM organisations call for the rights of ethnic groups to be recognised over their traditional territories, and for the effective compliance by government with free, prior and informed consultation and consent to mining operations there, in accordance with International Labour Organization Convention No. 169 on indigenous and tribal peoples, and with the Constitution of Colombia.

• Define formalisation → (1) Properly train inspectors to understand the progressive nature of formalisation, and enable the continuous improvement of standards in the ASM sector by following up non-compliance with training and support programmes. (2) Incorporate into the current process prior experience and lessons on the drivers and barriers for miners to formalise different aspects of their operations. Enable greater inclusion and engagement with ASM and MSM at regional level in defining how the progressive formalisation policy will be implemented with continued mentoring.

• Recognising different ethnic groups and types of ASM operations → Not all informal miners see mining as a high-intensity activity; some see it as one of several components of their long-term diversified livelihoods (for instance some AfroColombian communities). (1) Incorporate the different scales of mining into the Mining Code to recognise and properly characterise diversity. (2) Apply differentiated inspection according to the size and capacity of the mining operation, and train inspectors to understand the progressive nature of formalisation. (3) Exempt ethnic groups from the mining canon (surface tax). (4) Train the relevant mining authorities in social, intercultural, and gender-sensitive approaches, or establish alliances with institutions that have the required social expertise, to enable appropriate attention to women, ethnic groups and elderly people working in the ASM sector, and to strengthen ongoing efforts to eliminate child labour and violence in the sector. This is best done in partnership with specialised NGOs, universities or relevant state institutions (such as SENA, the national occupational training service).

• Large-scale mining companies should have responsibility towards helping ASM to formalise, such as formalisation subcontracts → (1) Enable ASM to trade their minerals independently of LSM in formalisation subcontracts, in order that ASM may access ethical market initiatives, which are based on long-term direct relationships between ASM and other supply chain players such as refiners, manufacturers and jewellers. (2) Better regulate formalisation sub-contracts so that more title-holders agree to contribute to formalisation under their areas.

• Deliver legal, financial and technical support → (1) Review procedures for legal access to explosives for ASM, and design secure, yet traceable and timely supply for ASM through local intermediaries. These may be enabled though formalisation commitments and worker/producer organisation. (2) Promote banking systems and products that cater for ASM miners, with offices in the mining regions, and tied to formalisation commitments. This could entail a high-level dialogue between the Ministry of Mines and the Banking Association of Colombia. (3) Make better use of existing ethical certification initiatives as incentives for formalisation programmes. In some regions certification schemes for artisanal and small-scale mining organisations are giving access to international markets, earning premium payments and developing traceable gold supply chains. These set good examples for other ASM about the benefits of certification, as an option for formalised miners.

What are the 3 economic challenges that ASM face as per Echavarria?

1. Informality and Lack of Legal Recognition - 2/3 of mining operations lack legal title, which leads to exclusion from formal economy and this entrenches poverty, this means they cannot scale operations.

2. Displacement and Marginalisation by Large-Scale Mining (LSM) - The ASM cannot obtain permits, which means they are criminalised or excluded and face a loss of livelihoods, forced movement into less productive or informal spaces.

3. Precarious and Low-Productivity Livelihoods - Rodriguez-Novoa and Holley outlined that ASM livelihoods are based on output-sharing, not wages, which contributes to income instability and low earning.

What are the 3 economic solutions that addresses the struggles ASM face as per Echavarria?

1. Formalisation and Legal Recognition - Echavarria outlines that granting mining titles and legal status would improve access to finance, working conditions and stability. These formalisation policies aim to integrate ASM into legal systems and improve livelihoods.

2. Secure Land Rights + ASM–LSM Coexistence Models → Perdomo and Furlong outline that current systems exclude ASM from permits and favour corporations, therefore tecognising ancestral and traditional mining rights and promoting contract mining & ore purchase agreements. Therefore, Coexistence models can reduce conflict and support livelihoods.

3. Access to Finance and Technical Support - Echavarria argues that expanding ASM access to microfinance and banking, paired with providing them with training and technological support would be beneficial to ASM, provided that lack of credit and technical capacity is a major barrier to ASM development.

What are the 3 environmental challenges that ASM face as per Rodriguez-Novoa and Holley?

1. Mercury Pollution and Toxic Contamination → ASM is the largest global source of mercury emissions as per the Minamata Convention, and this mercury contaminates water system and soil and food chains

2. Deforestation and Land Degradation - Often involves clearing forests, excavation of land without restoration and leads to Biodiversity loss, soil erosion and long-term ecosystem damage.

3. Unregulated Waste and Water Pollution - Disposal of tailings and mining waste into rivers, these lack of environmental safeguards is due to informality (Rodrigues-Novoa & Holley)

What are the environmental solutions that addresses the struggles ASM face as per Rodriguez-Novoa and Holley?

1. Improved Waste Management and Land Rehabilitation - Training on waste disposal and land restoration, providing support for cleaner production methods, since the ASM commonly causes pollution and environmental harm due to lack of technical capacity. Helping provide cleaner water systems also reduces the long-term environmental damage.

What is the context and outcome of Vendanta v Lungowe?

Context → KCM owns mines in Zambia (the second largest mines in the world), with the UK-based parent company being Vendanta. Villagers alleged polluted discharge from the exploitation of the mines, leading to the pollution of their water sources, destruction of their crops and severe health issues.

Outcome → Standard negligence principles can be applied to parent and subsidiaries.

The Parent company has a duty of care of its subsidiaries if it -

• Holds itself out in public document 

• Provides policies

• intervenes in the management of the subsidiary's operations

Though the case could have been heard in front of Zambian courts, English courts could hear the claimants because 

• They were too poor to afford legal representation in Zambia

• Zambian legal system lacked the resources to handle such a claim 

Madre de Dios, Peru is an example of ASM - what did this entail? And how does this relate to ASM as a stakeholder?

In Madre de Dios, illegal mining has destroyed 53,000 hectares of Amazon jungle with mercury 
ASM as a stakeholder:  

• Difficulty balancing livelihoods with the negative impacts 

• A World Bank ASM case study revealed flaws in state’s institutional framework, the uncontrolled growth of informal and illegal mining, and the unequal effects this has on women and men

• So, ASM are not just “illegal miners” but people working in an area where the state struggled to provide workable legislation, environmental protection, and inclusion

DRC is an example of cobalt ASM - what did this entail? And how does this relate to ASM as a stakeholder?

• Around 70% of the world’s cobalt originates from DRC (used for batteries)

• Including 15 to 30% produced by ASM → informal, hard to measure and mobile (depending on seasons and prices) 

• 57% of surveyed artisanal miners → victims of exploitation/forced labor (80,000 workers)/child labor

• Heavy metal pollution (2/3 of workers got sick)

• Low wages

Close ties of ASM miners with global market (part of the global supply chain with large scale miners), but still remain legally vulnerable, poorly protected, and associated with labour and human rights concerns

What is the Minamata Convention on Mercury and how does it relate to ASM?

The Minamata Convention on Mercury is a multilateral environmental agreement that addresses specific human activities which are contributing to widespread mercury pollution.

The convention intends to tackle the dangers of mercury, and it regulates mercury use in artisanal and small-scale gold mining (ASGM), which is the largest single source of man-made mercury emissions.

Parties with significant small-scale gold mining are required to develop national action plans to reduce—and if possible eliminate—the use of mercury in this sector. It mandates phasing out mercury in products and processes, controlling emissions, managing wastes, and reducing its use in artisanal gold mining.

What is the Regional Agreement (aka Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean)?

The Regional Agreement is instrument for environmental protection, but it is also a human rights treaty. Its main beneficiaries are the people of the Latin American and Caribbean region, particularly the most vulnerable groups and communities. As of 2026, multiple countries in the region have signed, with 15 parties having ratified it, including Argentina, Chile, Mexico, and Uruguay.

The Agreement guarantees access to (1) environmental information, (2) participation in decision-making processes, and (3) justice regarding environmental matters. This means that there is right of all persons persons to have access to information in a timely and appropriate manner, to participate significantly in making the decisions that affect their lives and their environment, and to access justice when those rights have been infringed. The treaty recognizes the rights of all individuals, provides measures to facilitate their exercise and, most importantly, establishes mechanisms to render them effective.

It is the first treaty in the world to include specific provisions aimed at protecting human rights defenders in environmental matters.

What the Consequences of Failing to Engage Rights-Holders Affected by Mining Company Activities as outlined by Laura Blecher?

Legal challenge → These structures create governance gaps on human rights and allow shareholding companies to avoid their responsibilities to respect human rights. International human rights laws and standards have the potential to fill these governance gaps, however it has significant gaps relating to stakeholder protections. At the international level, free prior and informed consent (FPIC) applies to Indigenous People but not to other affected rights-holders. The UN Guiding Principles on Business and Human Rights (UNGPs) include standards of corporate accountability in relation to rights-holders. However, the UNGPs are voluntary.

• By requiring rights-holders’ input, the UK can both fulfil its obligation to respect and protect human rights and create the conditions for more sustainable businesses in the context of the green energy transition (by implementing legislation akin to EU’s CSDDD require companies, including mining companies based in Europe and to an extent those domiciled elsewhere, to account for human rights and environmental practices in their supply chains and value chains to a certain degree). However, to achieve this goal, it must harmonise its efforts with other jurisdictions in order to avoid ‘forum shopping’, where companies seek jurisdictions with legal regimes that permit human rights failings.

Business challenge → Operationally, affected rights-holders can hold strikes and protests that lead to shutdowns and consequently lost production and profits. Reputationally, affected rightsholders can lobby investors and governmental bodies who can, respectively, withhold finance and legal licences to operate. Legally, companies often face litigation worth billions of dollars that could be re-invested in the company or paid as dividends to investors. As a result, there often are significant financial consequences for companies who fail to engage properly with rights-holders, with knock-on financial consequences for investors. However, these consequences tend not to be highlighted or explored by either the companies or investors, presumably for fear of leading to further financial impacts.

• international mining companies, BHP and Vale, have faced a large amount of litigation in relation to the collapse of a tailings dam owned by their joint venture, Samarco. This litigation has arisen in large part because both companies failed to engage meaningfully with affected rights-holders both prior to and following the dam collapse. If two pieces of litigation alone - one in Brazil and one in the UK - succeed, BHP and Vale may be liable to pay compensation amounting to around 60 percent of BHP’s market capitalisation and around two and a half times Vale’s market capitalisation

Economic challenge → Currently, investors tend to engage only with investee mining companies, not affected rights-holders, on ESG (including human rights) issues. Company engagement is important but provides only one perspective on the companies’ ESG performance.

What are some recommendations that are outlined by Laura Blecher?

UN Working Group on Business and Human Rights

• Consider adding a fourth pillar to the UNGPs on stakeholder engagement with affected rightsholders.

• Take steps to ensure that the UNGPs appropriately include environmental rights.

• Issue guidance on appropriate rights-holder engagement for companies and investors, especially in relation to FPIC.

• Prioritise country visits where affected rights-holders are experiencing human rights and environmental abuses as a result of poor corporate conduct.

Legislators

• Enact legislation mandating the separation of consulting and auditing functions in order to prevent conflicts of interest and facilitate stronger human rights (including health and safety) protections in relation to company operations and ensure that affected rights-holders are consulted in the audit process.

• Coordinate with other jurisdictions to harmonise legal standards on extraterritoriality relating to corporate accountability for human rights and environmental impacts in order to prevent corporate forum shopping.

• Enact corporate reporting legislation that requires UK companies to disclose independent human rights impact assessments, including testimonials from a representative sample of rights-holders, so that investors have more complete information on which to undertake company engagements, investment decisions and to use their leverage in promoting human rights and environmental protection by investee companies.

Companies