Intransigence, Transition, Transformation: Natural Resources and Conflict Under Latin America's Modern Constitutions

Abstract

The transformative potential of the environmental and human rights protections now embedded in international and domestic law, including within modern constitutions, is regularly in conflict with the international and domestic law protecting international natural resource investments, and enforcing property and contract rights. The result is that, while local communities find traction for resisting natural resource projects on the basis of human rights and environmental protections in one set of instruments, the companies and investors pushing for the projects similarly believe that the law is tailored to facilitating and guard their investments and that the law will give primacy to their economic interests.

Political science and academic literature on courts, and on law more generally, implies, and occasionally claims that mitigating and preventing conflicts is chief among the roles law and courts play in society. This Chapter explores this narrative to argue that law and courts are not currently adequately serving this vital function; where law and courts are meant to provide legitimate, bounded channels for the resolution of conflicts between interested parties, such that violent conflict is mitigated or eliminated, this promise is often not met. Rather, through an exploration of case studies in Brazil, Mexico and Colombia, this Chapter illuminates a common pattern that raises the concern that, too often, the pretense of legal protection for each set of interested parties, and the pursuit of litigation by them, can have the unexpected and undesired effect of escalating tensions and exacerbating violence outside of the courtroom.

Keywords: transformative constitutionalism, Ius Constitutionale Commune, human rights, natural resources, rights of nature, nature's rights, Mexico, Brazil, Colombia

JEL Classification: K32