Since the start of the industrial revolution, average temperatures have gradually increased. Today, however, we are faced with an unprecedented situation. Over the past five decades, the increase has accelerated and has placed humanity on the brink of ecological security.
According to the report published in 2018 by the UN Intergovernmental Panel on Climate Change, if this trend persists, in less than ten years the threshold of 1.5 degrees could be exceeded compared to the temperature before the radical transformation of production methods.
The consequences could be dramatic: life in many parts of the planet would be affected and thousands of people would have to migrate.
The urgency accentuates the contradictions of the production system and puts on the table the relevance of abandoning the current model of development and reconsidering the environmental costs of certain industrial sectors.
The much talked about “business as usual” is no longer a valid answer. But those who resist behavior change are often protected by legal-institutional schemes tailored to protect foreign investors.
Civil society movements seeking environmental and social rights have arisen in various parts of the world, which in many cases pose a risk to its members.
Latin America and the Caribbean remain the most dangerous region for human rights and environmental defenders.
According to Amnesty International’s latest report, countries like Bolivia, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua and Paraguay do not yet have protocols or policies to protect those working on environmental issues.
Controversies between investors and states
The killings in El Salvador of environmental activists Marcelo Rivera, Felicita Escheverría and Dora Alicia Resinos Sorto (eight months pregnant) are part of the local community’s opposition to the PacRim mining project.
This is an iconic case, and the investor-state controversy is being resolved at the Center for Settlement of International Investment Disputes.
Even without being able to determine the perpetrators of the crimes, the prosecution understood that there were indications that the murders could have a common origin, as indicated in the amicus curiae report presented by the non-governmental organization Ciel and which was rejected by the search.
Finally, the 2016 report was favorable to the state and from that point on, El Salvador became the first country in the world to ban metal mining.
Latin America: cradle of other voices
Invisible voices in investor-state arbitration are gaining ground in other areas.
In Colombia, a group of 25 children and young people (aged 7 and 25) filed a lawsuit because their human rights were threatened by deforestation in the Colombian Amazon and the resulting greenhouse effect.
With a broad view of human rights, in the 2018 decision, the Supreme Court of Colombia recognized the rights of present and future generations due to the imminent damage generated by deforestation. He also saw the Colombian Amazon as an entity subject to law.
Another case is that of a Peruvian mountain guide, Luciano Lliuya, who filed a lawsuit in the courts of Essen (Germany) against the German electricity supplier RWE for its responsibility in the accumulation of carbon dioxide in the atmosphere.
Although the court ruled against him at first instance, Lliuya has appealed to the Hamm Regional Superior Court and is awaiting a resolution.
The defense of the environment develops from the bottom up.
In 2013, the failure of Canadian mining company Barrick Gold to monitor glaciers and discharge water into the Estrecho River caused environmental and health damage to local people on the Chile-Argentina border.
In the decision, the Antofagasta Environmental Court established the total and final closure of the Pascua Lama gold project.
Another case that is heard by the Constitutional Court of Ecuador concerns the exploration of the Río Magdalena mining project, in the protected forest of Los Cedros, by Empresa Nacional Minera.
The case reached the Constitutional Court after the second instance decision of the Imbabura Provincial Court concluded that the rights of nature were not violated.
The process is particularly interesting because the mining company is owned by the state and, therefore, is the responsibility of the state.
Nothing new under the sun?
In the disputes mentioned, a series of institutional changes can be observed, supported by the obligations assumed by States in international treaties that protect biodiversity or the rights of indigenous peoples and local communities.
Likewise, in Latin America, developments have been consolidated internally.
Ecuador and Bolivia have protected the rights of nature at the constitutional level, Colombia recognizes rivers as a subject of law and in Chile the issue is debated in the Constituent Assembly.
Litigation over climate issues is not new, but the arguments of the plaintiffs and the greater receptiveness of the courts to analyze these issues are.
The UK Supreme Court has accepted the claim of the communities of Ogale and Bill in Nigeria against Royal Dutch Shell and its Nigerian subsidiary Shell Petroleum Development Company. In February of this year, the court ruled in favor of the plaintiffs.
Although the oil companies are well aware of the harmful effects of their activity, they have been able to evade responsibility for years.
Failure to recognize the source of the emissions has thwarted lawsuits and prevented action on climate change.
Today, there is data that offers greater precision, identifies the responsible source and level of contamination, and can estimate the duration of effects.
These same concepts could apply to sectors such as deforestation, water pollution and megamination.
These cases are just one example of how environmental advocacy is also developing from the bottom up and has started to take root in Latin America and other parts of the world.
These voices, often ignored, are those that question an international scenario in which industrial activity generates environmental damage that ends up affecting the majority.