Dr Ainhoa Montoya, a lecturer at the Institute of Latin American Studies, and international lawyer and researcher, Constanza Pauchulo, report on a project that created a database of legal actions relating to mining conflicts in El Salvador, Guatemala, Honduras and Nicaragua.
Populations inhabiting resource-rich territories have engaged with resource extraction in varied ways. In Central America, like in the Andean, Amazonian, and Southern Cone regions of Latin America, these engagements have ranged from participation in small-scale informal mining and employment in mining industries, to outright opposition to all forms of mineral extraction.
There are many cases across Latin America where communities have experienced mining in antagonistic ways, resulting in deep divisions between members, which are often fuelled by the actions of the mining corporations investing in the area. Assassinations, physical aggressions, forced displacement, and intimidation and threats have sometimes followed suit.
Crucially, opposition to industrial extraction across Central America has found expression in legal as well as political languages and arenas. Opponents to mining, with the support of both national and international human rights lawyers and organisations, have engaged in legal actions such as administrative proceedings, civil or criminal actions before subnational, national or international courts, and denunciations through the Inter-American System.
They have also developed actions that, while not strictly within the domain of the legal, have mimicked its language and procedures. Such is the case of law drafting by citizens and grassroots organisations or hearings before tribunals like the Permanent Peoples Tribunal or the International Peoples Health Tribunal, that emulate formal courts in their proceedings even though their verdicts are not legally binding.
Exemplary of the legal and law-like actions relating to opposition to mining and its irreversible impacts is the case of Guatemala’s Escobal mine, one of the world’s largest silver reserves. Operational from 2013 but suspended since July 2017 due to judicial challenges by local indigenous and human rights organisations, it is located in the environs of the urban centre of San Rafael Las Flores, a municipality belonging to the Santa Rosa Department, its subterranean tunnels expanding below some of its rural areas. The mine is owned by Minera San Rafael S.A., a subsidiary of Goldcorp Inc from 2006 to 2010, Tahoe Resources Inc from 2010 to 2019, and as of February 2019, Pan American Silver Corporation, all of which are Canadian corporations.
With the support of the human rights organisation, Centro de Acción Legal Ambiental y Social de Guatemala (Guatemala’s Centre for Legal, Environmental and Social Action, CALAS), residents of San Rafael Las Flores and neighbouring municipalities that are potentially affected by the project began to judicialise their opposition to Escobal. They initiated legal actions ranging from a petition for constitutional protection to civil lawsuits before both Guatemala and Canadian courts, to community consultations and participation in a Permanent Peoples’ Tribunal hearing denouncing the actions of Tahoe Resources.
CALAS led the defence of the locals arrested and charged for taking part in protests, and provided ongoing support during the subsequent criminal proceedings. Like so many other cases in Guatemala, the lack of consultation with indigenous and other local populations, and the violent repression by the mining company’s private security guards and the Guatemalan police and military, have been the basis of conflicts.
These repertoires of legal and law-like actions are mapped out in The Legal Cultures of the Subsoil database. This ESRC-funded, online resource compiles basic information on the legal actions regarding extraction at a number of mining projects in four Central American countries: El Salvador, Guatemala, Honduras and Nicaragua.
The database is designed around three main search pages: Legal Actions; ‘Legal Artefacts; (ie the documents of different sorts that are mobilised, created and transformed through these legal actions); and Extractive Projects. Each page brings the user to distinct but related search engines that provide targeted results across the specific mining projects.
Selected mining projects are emblematic of both the kinds of violent conflicts that occur over extractive projects in the region and how actors (such as community members, grassroots and human rights organisations, government officials, and corporations) use and encounter law in relation to those conflicts. Their engagement with law is varied, and is aimed at asserting their right to have their views on resource governance prevail.
The rationale to focus on Central America is that the four researched countries have many things in common. They share geological landscapes and ecological conditions. For example, cross-border water basins and the so-called ‘gold belt’ that cuts across by the region; democratisation histories; noteworthy levels of political and legal mobilisation on various fronts (memory work, CAFTA-DR, indigenous rights, and more recently corruption and environmental issues); and at least three of the countries, El Salvador, Honduras and Guatemala, have some of the world’s highest per capita homicide rates.
The database takes a broad-based approach and focuses on: (i) international judicial and quasi-judicial norms and institutions; (ii) domestic courts, administrative bodies, and legislation; and (iii) para-legal and law-like actions that occur outside of formal legal circuits. The latter is unique to this project. It builds upon existing databases or collections of related legal actions by expanding the focus beyond traditional legal arenas and actors (such as, courts, legislatures, politicians, and lawyers) to popular law-making initiatives. In so doing, it expressly considers the use of legal language and formalities by grassroots movements and civil society actors to assert rights and reshape political imaginaries related to resource futures.
This open-access resource was created to suit research needs of human rights organisations and lawyers, but it is also useful for other scholars and independent researchers, and policymakers. Its unique feature is that it brings together both legal and law-like or quasi-legal actions while concentrating on the extraction of subsoil resources. At present, it is limited to legal actions involving minerals in Central America, but future developments might seek to expand its remit to other subsoil resources and regions.
In a context of wider debates about the role of law and legal proceedings in addressing environmental and other conflicts and rights abuses, this database creates a repository of law and law-like actions that looks within and beyond formal judicial bodies and legal arenas, providing a window into new and emerging developments in the field.
About the authors
Dr Ainhoa Montoya (@montoya_ainhoa) is a lecturer at the Institute of Latin American Studies, School of Advanced Study, University of London. She was the principal investigator on ‘The Legal Cultures of the Subsoil: The judicialization of Environmental Politics in Central America (ESRC ES/N017870/1)’ project.
Constanza Pauchulo (@CPauchulo), the project’s research assistant, is an international lawyer and researcher. She holds a master’s in International Human Rights Law from the London School of Economics and Political Science.
Dr Ainhoa Montoya and researchers at the Center for Research and Graduate Studies in Social Anthropology (CIESAS) in Mexico City have secured a British Academy Sustainable Development Programme award to develop, expand and translate the database into Spanish. It will also allow them to expand the information on previously researched mining sites, and a new one in Mexico (Corazón de Tinieblas/Reducción norte de Corazón de Tinieblas, in San Miguel El Progreso, Guerrero).
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