‘The Legal Cultures of the Subsoil’: mapping the use of law in environmental politics in Central America
Written by Dr Ainhoa Montoya
Courts have increasingly become the locus of environmental disputes. Dr Ainhoa Montoya looks at one such case, which occurred in El Salvador, where resource extraction has preoccupied many of its citizens for more than a decade.
In 2017, the Salvadoran Legislative Assembly passed an unprecedented blanket ban on all forms of metallic mining. The ban was the outcome of a more than decade-long struggle over mineral and water resource governance – a struggle that had resulted in the assassinations of several anti-mining activists and threats against the lives of many other inhabitants of a region designated for mining development.
The ban was the first of its kind in the world. Although Costa Rica had previously banned future open-pit mining, subterranean mining and open-pit concessions that were already operational remained lawful. What was most remarkable about El Salvador’s legal development was that the ban was citizen-crafted, having been drafted and promoted by religious organisations and adopted virtually unaltered by Salvadoran MPs.
Moreover, it reflected an ethics of care towards the environment that emerged in opposition to the 1990s-era pro-market regulatory and extraction-led development approach pursued in much of Latin America. In El Salvador, as in other countries, the aim of this approach was to attract foreign direct investment and promote, among other things, the development of a fully-fledged mining industry.
The origins of this political activism can be traced back to El Salvador’s civil war. The sites of the planned mines were located in former guerrilla strongholds or repopulated zones – areas in which wartime political organising continued through the post-war era to now.
In 2006, Salvadoran citizens who participated in grassroots organisations and NGOs belonging to the umbrella coalition Mesa Nacional frente a la Minería Metálica (National Roundtable against Metallic Mining) began engaging in law drafting. They envisioned a mining ban as the most productive means of accomplishing two goals: first, asserting their view that mining would expose the populations surrounding the mines to irreversible environmental, social and health-related damage, and, second, regulating for more socially responsible resource management.
One of the NGOs that formed part of the Mesa Nacional coalition – Fundación de Estudios para la Aplicación del Derecho (Foundation for the Study of the Application of the Law, FESPAD) – was comprised of human rights lawyers who provided advice during the drafting process. They provided the legal terminology and format to the 2006 draft of the mining ban and the update completed in 2013, both of which laid the groundwork for the recent legislation.
In late 2016, after a seven-year multi-million dollar arbitration filed by the Canadian mining corporation Pacific Rim against the Salvadoran state culminated in a favourable award for the latter, El Salvador’s Catholic sector saw a window of opportunity in which to join the anti-mining efforts. An informal alliance of mostly religious organisations –some of which had been or still were part of the Mesa Nacional – and leading representatives of the country’s Jesuit university worked on a new draft ban that built upon previous Mesa Nacional efforts. The San Salvador Archbishop himself delivered the resulting document to MPs at the Legislative Assembly on 6 February 2017. His intervention received widespread media coverage and won many over to the anti-mining cause. Along with his subsequent public anti-mining statements and a sizeable rally he headed on 9 March, it paved the way for the favourable vote on the draft ban at the Legislative Assembly on 29 March 2017. In an extraordinary move, the citizen-drafted document became law. (More information on the ban is available from The Legal Cultures of the Subsoil project).
Legal cultures and environmental politics
Engaging with the law to claim specific entitlements and rights is not new or unique to El Salvador or the Latin American region. There are many historical instances of such engagements within and beyond the region, such as the US Civil Rights movement, feminist demands for reproductive and other rights, calls from the LGBTQ community for recognition to be enshrined in law, post-conflict or post-authoritarian retributive justice processes and struggles for housing rights.
However, citizen engagements vis-à-vis natural resource management introduce an additional layer of complexity into the legal. As anthropologists such as Marisol de la Cadena and Fabiana Li have observed, conflicts over resource extraction grapple with diverse and often seemingly irreconcilable visions, of development, of sovereignty, and of nature and inanimate beings. While the realm of formal law does not easily embrace diverse worldviews, there are cases, including the one described here, in which actions by citizens and grassroots organisations have led to the reshaping of law to fit their own moralities, cosmologies and purposes.
The Economic and Social Research Council (ESRC)-funded project ‘The Legal Cultures of the Subsoil: the Judicialisation of Environmental Politics in Central America’ has sought to unveil these legal patchworks. The research has mapped out how the realm of the jural has become the locus of political discords over natural resources and the divergent notions thereof.
It has explored uses of law and legal innovations undertaken by a range of actors including citizens in four Central American countries (El Salvador, Guatemala, Honduras and Nicaragua), countries with similar ecological and political-economic conditions, and shared common histories of democratisation. These countries have made headlines for legal actions and innovations inspired or shaped by citizens in the context of environmental disputes, even as they, along with the broader Latin American region, have witnessed the flagrant assassinations of environmental and human rights defenders (see Global Witness 2016 and 2017 reports).
The legal actions undertaken in the context of resource conflicts in Central America have frequently involved multilateral institutions, courts and arbitration or popular tribunals mimicking official ones, as well as law firms, NGOs and think tanks beyond the region. In order to research the transnational legal cultures that have emerged as a result, this project has included research at global hubs such as Washington DC, Geneva and London, where many of the relevant actors are based, as well as on the ground in Central America. Rather than conducting an ethnography of specific locations, the research has followed the actors themselves who are connected through legal endeavours that have emerged from conflicts over minerals in Central America.
Mapping out legal cultures in a database
While exploring the legal cultures that are emerging within environmental politics and how they are shaped by diverse moralities and ontologies, The Legal Cultures of the Subsoil project has also shed light on the specific repertoires of legal and law-like actions and artefacts that constitute those legal cultures. In other words, the project has endeavoured to trace the engagements with law by a range of actors in the context of subsoil resource conflicts, including engagements with formal legality and attempts to emulate it or to yield legal innovations. The resulting mapping-out of legal cultures is available in an open-access, online database, developed with the support of several London-based human and environmental rights lawyers. It is intended to enable further scholarly research on the subject as well as act as a resource for lawyers and activists working on environmental law and/or involved in natural resource-related cause lawyering. New research questions emerging from this ESRC project, along with further development of the database, including its translation into Spanish, will be undertaken with the support of a British Academy Sustainable Development Programme award.
Dr Ainhoa Montoya (@montoya_ainhoa) is the principal investigator on the The Legal Cultures of the Subsoil: the Judicialization of Environmental Politics in Central America project, and a lecturer at the Institute of Latin American Studies, School of Advanced Study, University of London. She is the author of The Violence of Democracy: Political Life in Postwar El Salvador.