Banning Mining in Guatemala

59 Pages Posted: 10 Aug 2017

See all articles by Raquel E. Aldana

Raquel E. Aldana

UC Davis

Randall S. Abate

Florida A&M University - College of Law

Date Written: 2015

Abstract

Metal mining is unsustainable for Guatemala and its harms insurmountable for its people. Guatemalans who oppose mining have been fighting for decades domestically and internationally against the environmental degradation and other human rights abuses from mining activities in the country with little to show for their efforts. The State is too weak and corrupt to offer much hope for reform. Guatemala requires extensive governance reforms to become the type of strong democracy capable of reaping the potential benefits of metal mining in its territory. This is a long-term project. Most Guatemalans opposed to mining already know this, and the struggle is largely to ban all metal mining in the country. The prospect of a ban is elusive, however, largely because of potential liability the country may face from the investors affected by the ban. This article presents the best case for a ban on metal mining while exploring alternatives to minimize the investor liability costs to the country. First, the article recommends that Guatemala exercise its sovereign right to adopt a law banning all future metal mining concessions. Second Guatemala should rely on existing domestic laws to close the mines to mitigate the substantial damages resulting from these activities. Under either approach, Guatemala is likely to face investor liability in the millions, and perhaps lose future investment in the country. This article offers Guatemala suggestions for defending and mitigating these costs by relying on comparative studies of similar actions taken by Costa Rica and El Salvador.

Keywords: Guatemala, extractive industries, environmental justice, indigenous rights, international arbitration, indirect expropriation, metal mining

Suggested Citation

Aldana, Raquel E. and Abate, Randall S., Banning Mining in Guatemala (2015). Vermont Law Review, Forthcoming, Pacific McGeorge School of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2739944

Raquel E. Aldana (Contact Author)

UC Davis ( email )

One Shields Avenue
Apt 153
Davis, CA 95616
United States

Randall S. Abate

Florida A&M University - College of Law ( email )

201 Beggs Avenue
Orlando, FL 32801
United States

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