Natural Integrity: The Relationship between Anti-Corruption Laws and Natural Resource Protections in Latin America
Alexandra R. Harrington
Global Institute for Health and Human Rights; Albany Law School
December 25, 2008
Currents International Trade Law Journal, Forthcoming
Corruption is not a new phenomenon to law or society, particularly in Latin American nations. Natural resources, while routinely explored and developed in Latin America, have taken on a new sense of importance in recent years. What connects the issues of corruption and natural resources in Latin America is an increasing market for the latter, leading to increased opportunities for the former. Together, the issue of corruption in the natural resource context is becoming of such importance that it was featured as one of the subtexts in the recent installment in the James Bond movie series, "Quantum of Solace". In an exchange between Camille - Bond's cohort - and Dominick Greene - one of the central villains in the movie who is, among other things, plotting to take over control of a vast expanse of Bolivian water supplies - Camille reminds Greene that you can't buy integrity, to which he replies I can try. More than a sinister line from a movie, the concepts expressed in this short exchange underlie the arguments in this article.
The definition of corruption can vary, however its effects are the same regardless of how the term is defined. Part II of this article discusses three key anti-corruption conventions in the Latin American context: the UN Convention Against Corruption, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and the Inter-American Convention Against Corruption.
Part III sets out anti-corruption and associated laws in each Latin American state. Included in the discussion of these laws are comments raised by the IACAC and OECD Anti-Bribery Convention evaluation committees regarding the compliance of each state's anti-corruption laws with the requirements of applicable convention(s). Also discussed are other relevant evaluations of the anti-corruption apparatuses in each Latin American state.
Part IV opens with a discussion of the natural resources found in Latin American states. This part progresses to a discussion of the constitutional provisions which address mining, sustainability and natural resource exploitation in these states. It then discusses mining law and practice in Latin American, heavily emphasizing the areas in which corruption can occur throughout the exploration and exploitation process. Part V suggests that, despite the enactment of anti-corruption laws and mining laws per se, the abundance of natural resources found in Latin America - and the ease with which they can be subject to corruption - requires a specifically tailored legal response. It is also argued that, given constitutional provisions found in most Latin American states, there is a general state duty to protect natural resources - and the revenues that they can provide to the state and its citizens - from the dangers posed by corruption in regards to natural resources. With this in mind, the article suggests that the OAS members should enact a new protocol to the IACAC that exclusively addresses the issue of corruption in natural resources exploration and exploitation. The IACAC is selected as the best forum to address this issue because, it is argued, the particular resource concerns facing Latin American states are more amenable to solution on the regional, rather than international, scale. Finally, Part VI concludes the article by suggesting that now is the time for Latin American states to ensure that the integrity of their natural resources, and laws themselves, cannot be bought in the future.
Number of Pages in PDF File: 30
JEL Classification: K33
Date posted: December 26, 2008