El Cerrejón, the Wayuu struggle and coal for Germany: the double standards of the energy transition

Written on 22 November 2025. Posted in News

BY RENÉ KUPPE FOR INDIGENOUS DEBATES

In La Guajira, the Swiss transnational Glencore operates a mine that has diverted a stream in order to extract coal. Beyond the environmental damage to nearby communities, the operation has also affected access to drinking water and undermined their spiritual life. The situation has worsened since the outbreak of the war in Ukraine: the German government has turned to Colombian coal as an alternative to Russian gas. The Wayuu people’s struggle is a reminder that the energy transition cannot be fair if those who pay the highest price are ignored.

Following a phone call in 2022 between the German Chancellor, Olaf Scholz, and the then Colombian President, Iván Duque, Colombia considered the possibility of increasing its coal exports to Germany. This occurred despite the fact that, during the first three months of that year, as a result of the war, the amount of coal imported from Colombia had already risen by 62% compared with the previous year, according to the German Coal Importers Association.

These reports, published in May 2022 by the news agency N-TV, attracted attention because they came to light shortly before the entry into force of ILO Convention No. 169 in Germany. After years of civil society efforts, Germany decided in 2021 to ratify Convention No. 169, which protects Indigenous Peoples’ rights. The ratification aimed to express the solidarity of the Federal Republic of Germany with Indigenous Peoples worldwide, and it was expected that the European power would respect, protect and uphold their rights through its international economic policy.

However, Germany’s growing demand for Colombian coal gave new impetus to El Cerrejón, the largest coal mine in Latin America which, in 2021, had announced a gradual shutdown due to falling demand for the mineral. The reactivation of the mine has already had serious consequences for the Indigenous and Afro-descendant Peoples living in the area.

El Cerrejón and the Wayuu People

El Cerrejón is located in the department of La Guajira, in Colombia’s Caribbean region, on ancestral Wayuu territory. The Wayuu are the largest Indigenous People in Colombia, numbering over 300,000 in La Guajira, and they also inhabit the state of Zulia, across the border in Venezuela. The mining complex was established in 1976 following the signing of a partnership agreement between the Colombian State, through Carbocol, and the International Colombia Resources Corporation (Intercor), a subsidiary of Exxon.

Coal extraction began in 1983. For several decades, two multinational mining companies, Anglo American and BHP Billiton, each held equal shares in the enterprise. Between 2000 and 2002, the Colombian State sold its stake through Carbocol. Today, Carbones del Cerrejón, the company that operates the mine, is wholly owned by the Swiss transnational Glencore.

Since its inception, the local communities within El Cerrejón’s area of influence have suffered severe environmental, social, and cultural impacts as a result of the mine. Around 35 Indigenous and Afro-descendant communities have been displaced from their ancestral territories. Mining activities have polluted the soil, air, and water. In one of the driest regions of tropical South America, several rivers —the main sources of water— have disappeared. Fine dust emissions from mining and the high levels of mercury have severely affected the health of local residents: almost all Wayuu people suffer from respiratory illnesses and skin rashes.

The Cerrejón company has, since 2013, sought to develop a new open-pit mine known as La Puente in order to expand coal extraction. To do so, it has diverted the Bruno Stream, a crucial tributary of the Ranchería River —the only major river in this arid region— which flows through the heart of El Cerrejón’s concession area. The company rerouted the Bruno north of its natural course in order to extract the coal beneath it. In response to this escalation, several local communities, both Wayuu and Afro-descendant, have denounced the project, stating that they were not consulted.

The Conflict over the Bruno Stream

In 2017, Colombia’s Constitutional Court ruled that the company Carbones del Cerrejón and state institutions had violated the Wayuu people’s rights to water, food sovereignty, and health by authorising and carrying out the diversion of the Bruno Stream’s natural course in order to expand the mine. The Court therefore ordered the suspension of the coal exploitation zone, which had been expanded by the El Cerrejón complex without consultation. Throughout the legal process, the claimants were subjected to threats.

Ruling SU-698/17 was regarded as a legal victory for the plaintiffs before the Constitutional Court. The Court justified its decision on the basis of the project’s impacts on the local climate and the health of residents, as well as on the cultural rights protected under Colombia’s constitutional framework. It also recognised the river’s spiritual significance. For the Wayuu, rivers are not only sources of life but also sacred entities. As lawyer Mateus Parra explained: “One of the supreme deities of the Wayuu lives in the rivers. When the river disappears, this goddess can no longer be invoked.”

In its ruling, the Court instructed the company, the authorities, and the affected communities to work together to find a solution to the most contentious issues. Instead of complying with the decision, however, Anglo American and Glencore launched international legal action against Colombia. The companies resorted to a mechanism of public international law that grants foreign investors the right to initiate arbitration proceedings against the host State. The basis of their claims was that the State had altered the conditions under which the investment was made, thereby undermining the investors’ legitimate expectations of profit. The companies argued that the Court’s decision amounted to a measure equivalent to indirect expropriation without compensation, even though it was grounded in national constitutional norms designed primarily to protect human rights and the environment.

The use of international arbitration mechanisms (ISDS) demonstrates how the defence of Indigenous rights clashes with the global investment protection regime, which grants corporations asymmetrical legal advantages over States. In their investor–State arbitration claims, Glencore and Anglo American described ruling SU-698/17 as “discriminatory and unreasonable”, invoking bilateral investment treaties to safeguard their economic interests over and above human rights.

Failure to Uphold the Spirit of the Court’s Ruling

In April 2022, a report by the Interinstitutional Technical Committee, chaired by the Ministry of Environment, revealed that the Bruno Stream would remain diverted into an artificial channel. The José Alvear Restrepo Lawyers’ Collective commented: “The Committee expects the ‘purpose of the Court’s ruling’ to be fulfilled. In turn, they note that the recommendations regarding ‘the Wayuu people’s world vision, spiritual and cultural aspects’ have already been incorporated into the study with contributions from the La Horqueta community. In exchange for the permanent destruction of the Bruno Stream’s natural ecosystem, the company offers, as ‘compensation’ measures, the construction of a ritual site and the expansion of nurseries.”

Organisations such as the José Alvear Restrepo Lawyers’ Collective interpreted this outcome as a failure to uphold the spirit of the Court’s ruling and as a precursor to the international arbitration claims previously initiated by Glencore and Anglo American against the Colombian State. However, the international arbitration proceedings brought by the companies against the Constitutional Court’s decision were closed in 2023. This occurred in the context of negotiations with President Gustavo Petro regarding the mine’s future, as part of a “planned energy transition” under the new government.

Backed by administrative decisions, the Swiss company Glencore thus continued to divert the course of the Bruno Stream. Human rights organisations have interpreted this institutional support as a form of “state capture”: the lobbying efforts of El Cerrejón executives are believed to have influenced public entities to skew the outcome of the Interinstitutional Working Group (established by order of the Court itself) and secure approval for the stream’s diversion, disregarding the opposition of local communities.

A report by Censat Agua Viva estimates that El Cerrejón consumes some 30 million litres of water per day —approximately 40% of the water available in the region— while thousands of families lack access to drinking water. Water deprivation has been so severe that, in 2023, President Gustavo Petro publicly accused the company of being partly responsible for the deaths of “thousands of Wayuu children” from hunger and thirst. Although his remarks sparked political debate, they illustrate the scale of the humanitarian crisis perceived nationwide. Furthermore, neither El Cerrejón nor the Interinstitutional Committee took into account the Wayuu people’s spiritual connection to the rivers.

The War in Ukraine and German Imports

Historically, El Cerrejón was operated by a consortium of three mining giants: Anglo American, BHP Billiton, and Glencore. In January 2022, when Glencore acquired full ownership of the mine, it assumed complete responsibility for its social and environmental impacts. Weeks later, the war in Ukraine triggered a surge in Colombian coal demand from Germany. This spike contrasts sharply with the company’s legal actions: while benefiting from the boom, it was simultaneously litigating against Colombia through the ISDS mechanism for “losses” arising from the constitutional protection of the Bruno Stream.

By 2023, production had increased by 12%, and Glencore announced its intention to operate the mine until 2034. As of August 2025, Glencore remains the sole owner, despite international lawsuits and political pressure. Current output stands at approximately 24 million tonnes per year (2024). Although this is below the historical peak of 32 million tonnes reached in 2015, it represents a significant revival compared with pre-Ukraine war levels, when the mine was on a path toward gradual closure. However, this development contrasts with the European trend of progressively reducing coal consumption in favour of renewable energy. Coal from El Cerrejón is a structurally declining resource, yet its extraction continues to leave irreversible impacts on the Guajira desert.

With the entry into force in January 2023 of the Lieferkettensorgfaltspflichtengesetz (LKSG), the “German Supply Chain Due Diligence Act”, the El Cerrejón case acquired even greater significance. This legislation requires large German companies to ensure that their global supply chains are free from serious human rights violations and environmental damage. In practice, this means that companies that are importing coal from El Cerrejón, such as EnBW, Uniper, and STEAG, are now accountable for complaints raised by the Wayuu communities.

This framework also serves as a test of the effectiveness of international norms against the reality of abuses. To date, the mine’s record reveals a pattern of forced displacements, pollution, unfulfilled compensation promises, and extensive use of corporate social responsibility rhetoric. Glencore and its partners have implemented various “sustainability” initiatives, yet German and Colombian critics denounce these as greenwashing. The German Bundestag has questioned the fact that Glencore’s claims of compliance with the UN Guiding Principles contrast sharply with reports of disease, hunger, and displacement in La Guajira.

Governance and Social Struggles

The conflict surrounding El Cerrejón cannot be understood solely as an environmental dispute. It represents a relational space in which the development vision of the Colombian State, the interests of a multinational corporation, and the survival of an Indigenous People converge. Within this space actors exercise different forms of power—economic, legal, and symbolic—and continuously negotiate meanings, including the very concept of “development”.

These negotiations do not take place between monolithic blocks. Wayuu demands have evolved from an initial call for financial compensation to a sophisticated assertion of ethnic rights: autonomy, ancestral territory, and the right to define their own model of development. This “politics of identity-based claims” has enabled them to engage with the mining project without being entirely subordinated, strategically leveraging the multicultural framework of the 1991 Constitution to gain legitimacy.

Despite these internal dynamics and the company’s divisive strategies, the Wayuu people have resisted by means of railway blockades, legal action, and international alliances. In 2015, they petitioned the Inter-American Commission on Human Rights, which granted precautionary measures to protect Wayuu children from malnutrition and lack of water. In 2019, Colombia’s Constitutional Court recognised that pollution from El Cerrejón was violating fundamental rights: ruling T-614/2019 established that the mine infringed upon the rights to health, water, food, and a healthy environment. However, the enforcement of these rulings has been slow and selective.

In this context, Germany’s role is particularly significant. As both an importing country and now a regulator under the LKSG, its decisions directly affect local dynamics. German companies can no longer claim ignorance regarding the origin of their coal. The critical question is whether the law will serve as an effective instrument for the Wayuu or remain trapped in a web of bureaucracy and symbolic gestures.

The Double Standard of the Energy Transition

El Cerrejón epitomises the dilemmas of the global energy transition: as Europe seeks to reduce its dependence on Russian gas and shift towards “clean” energy sources, it is, in the short term, turning to Colombian coal, exacerbating the crisis in Indigenous communities. The impact on the Wayuu people is just one example among many across Latin America.

Recent events illustrate how local struggles over water, health, land, and spirituality intersect with global debates on corporate responsibility, climate justice, and sovereignty. The presidency of Gustavo Petro has once again placed the issue on the national agenda, linking the hunger and thirst of Wayuu children directly to mining exploitation. In Germany, the entry into force of the LKSG now provides an unprecedented opportunity to ensure that documented abuses do not go unaddressed.

The central question remains: can a transnational legal framework compel Glencore to respect Indigenous rights, or will the logic of global capital continue to prevail? Either way, the Wayuu struggle serves as a stark reminder that the energy transition cannot be a just one if those who pay the highest price are ignored.

René Kuppe is a professor at the Faculty of Law, University of Vienna, and a member of the International Board of the International Work Group for Indigenous Affairs (IWGIA). His research focuses on Indigenous Peoples’ rights, legal pluralism, and the intercultural dimensions of human rights.

Cover photo: INDEPAZ

Tags: Indigenous Debates