Courts as an arena for socioenvironmental change: Lessons from the Argentine courts

• Published date: 01 May 2023
• Author: Asmaa Khadim
• Date: 01 May 2023
• DOI: http://doi.org/10.1111/eulj.12485

ORIGINAL ARTICLE

Courts as an arena for socioenvironmental change:

Lessons from the Argentine courts

Asmaa Khadim

*

Abstract

Trends in the Argentine courts indicate a judicial preference towards flexibility in light of possibly

serious environmental consequences, particularly in relation to mining. Through a liberal interpreta-

tion of constitutional provisions where collective environmental rights are threatened, the courts

have expanded access to justice, leading some to view the Argentine judiciary as “interventionist”

or “political”. However, judicial decisions emphasise compliance with constitutional mandates

without necessarily encroaching on policy-making realms. The constitutionalisation of environmen-

tal rights has had a strong influence on the judiciary's approach, but in combination with other

factors, particularly civic mobilisation, institutional changes and an evolving public ethos on envi-

ronmental protection. Proactive judicial engagement with the full extent of its powers to ensure

that policy-makers meet their constitutionally mandated obligations can compel policy-makers to

address sustainability issues and rethink strategies. This positioning of the judiciary as a catalyst

for more effective environmental governance offers useful insights for European courts.

1|INTRODUCTION

Hundreds of socioenvironmental movements have arisen in Argentina in recent decades, many of which centre on

mining because of the country's geological potential.

1

Argentina has significant concentrations of lead, zinc, silver,

tin, borates, lithium, potassium, copper, molybdenum and gold.

2

Experts estimate the value of untapped minerals to

be roughly USD400 billion,

3

and some view the country as a "frontier jurisdiction"with vast swaths of territory

*

Institutions for Conflict Resolution, Leiden University, Leiden, The Netherlands

1

C. Reboratti, ‘Socio-environmental Conflict in Argentina’, (2012) 11(2) Journal of Latin American Geography, 3, 6, 10; L.G. Christel and R.A. Gutiérrez,

‘Making Rights Come Alive: Environmental Rights and Modes of Participation in Argentina’, (2017) 26(3) The Journal of Environment & Development, 322;

F. Koop, ‘Environmental Activism on Rise in Argentina amid Climate Emergency’,Buenos Aires Times (Buenos Aires, 3 August 2019) <https://www.batimes.

com.ar/news/argentina/environmental-activism-on-rise-in-argentina-amid-climate-emergency.phtml>.

2

Undersecretariat of Mining, ‘10 Reasons to Invest in Argentine Mining’(Report, Government of Argentina, 2012), 3, 6.

3

C. Jamasmie, ‘Experts Warn of Civil Unrest in Argentina as It Readies to Lift Ban on Open Pit Mining’,Mining.com (13 February 2018), <https://www.

mining.com/experts-warn-civil-unrest-argentina-readies-lift-ban-open-pit-mining/>.

Received: 4 October 2022 Accepted: 8 February 2024

DOI: 10.1111/eulj.12485

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2024 The Author. European Law Journal published by John Wiley & Sons Ltd.

294 Eur Law J. 2023;29:294–311.

wileyonlinelibrary.com/journal/eulj

remaining "underexplored".

4

Nevertheless, the country has experienced strong divisions over the question of

resource development, with successive governments implementing conflicting policies. The focus initially shifted to

mineral resources in the 1990s, when a joint regulatory framework was established to attract foreign investment.

5

Many projects were subsequently stalled, however, after public outcry over the perceived environmental and health

impacts of large-scale mining.

6

These measures were reversed in 2015, to allow further investment in the industry.

7

Thus, by 2023, there were 113 projects, of which 19 are currently in production and seven under construction.

8

Mining is particularly contentious in Argentina due to environmental concerns over air and water pollution, bio-

diversity loss, soil contamination and erosion, deforestation, desertification, large-scale disturbance of hydrological

and geological systems, rising sea levels, mine tailing spills, potential radioactive contamination, food insecurity and

crop damage, global warming and aesthetic impacts to landscape.

9

Gold mining carries additional concerns due to

risks associated with the use of cyanide solutions and other chemicals in the extraction process,

10

as demonstrated

in a number of high-profile incidents. Furthermore, the public is apprehensive about health and socioeconomic

impacts on communities, including impacts on tourism, employment security and economic benefit sharing, increased

corruption and crime, militarisation and increased police presence, population displacement, land dispossession, loss

of traditional knowledge and culture, discrimination against Indigenous peoples, human rights violations, gender

impacts, substance abuse and prostitution.

11

These concerns are tied to the scale of these “mega-projects”, which

have increased substantially over the years with rising commodity prices and will only continue to expand due to

increasing demand as a result of green energy transitions (e.g., as planned under the European Green Deal).

12

The growth of the mining industry corresponds with an escalation of socioenvironmental conflict, which has

'increased in vehemence, content and geographic scope’.

13

Reboratti observed that in 2011, mining conflicts alone

accounted for more than 100 incidents,

14

and as of 2021, the Environmental Justice Atlas documented approxi-

mately 44 major disputes over extraction across the country.

15

On a national level, the social movement against min-

ing is said to be one of the best organised and most powerful in Latin America.

16

Lack of information tends to fuel

speculation about environmental and human impacts.

17

After a mining project becomes known, local communities

tend to mobilise to stop the activity, including by turning to the courts. They are often supported by environmental-

ists active at the national level who can increase public awareness.

18

Companies often respond to such movements

by touting the economic and employment benefits, while the national government appears to avoid interfering

where it can, to avoid the political consequences of choosing sides. Provincial governments in support of

4

M. Pistilli, ‘Mining in Argentina: From Frontier to Emerging Mineral Resource Market’,Investing News Network (19 August 2019), <https://investingnews.

com/innspired/mining-one-of-the-fastest-growing-sectors-argentina-economy/>.

5

The framework was established under the neoliberal government of Carlos Menem. See S.J. Dondo, ‘Financial Assurance for Mine Closure: A Regulatory

Perspective from the Argentine Context’(Occasional Paper Series, Sustainable Minerals Institute, The University of Queensland, May 2014), 6; Reboratti,

above, n. 1, 10.

6

This was particularly the case during the presidency of Cristina Fernández de Kirchner: see A. Hiyate (ed.), Focus on Argentina, Mining: An Investor's Guide

(The Northern Miner, 2016).

7

After Mauricio Macri took office: ibid.; J. Castilla, ‘Mining Companies Still Reluctant to Tap Argentina Deposits’,Reuters (23 May 2018), <https://www.

reuters.com/article/us-argentina-mining/mining-companies-still-reluctant-to-tap-argentina-deposits-idUSKCN1IO1IM>.

8

US Department of Commerce, ‘Argentina: Country Commercial Guide’,International Trade Administration (2 November 2023), <https://www.trade.gov/

country-commercial-guides/argentina-mining#::text=Argentina%27s%20%2430%20billion%20mining%20portfolio,production%20and%20seven%

20under%20construction>.

9

Environmental Justice Atlas, Argentina,<https://ejatlas.org/country/argentina> (hereinafter, EJAtlas).

10

These concerns have been prominent in disputes relating to mining at Esquel, San Juan (Veladero) and Andalgalá (Bajo La Alumbrera).

11

EJAtlas, above, n. 9.

12

Reboratti, above, n. 1, 4; A. Khadim, R. Janjua and C. Xu, ‘Critical Mineral Supply in the European Energy Transition: Toward Just Institutional

Approaches’, in D. Iglesias Márquez, C. Esteve-Jordà and B. Felipe Pérez (eds.), Legal Challenges at the End of the Fossil Fuel Era: Shaping Energy Futures

through Legal Intervention (Palgrave Macmillan, 2024).

13

Dondo, above, n. 5, 6.

14

Reboratti, above, n. 1, 10.

15

EJAtlas, above, n. 9.

16

D. Gutman, Interview with Enrique Viale, Argentine Association of Environmental Lawyers (Inter Press Service, 4 November 2017), <http://www.

ipsnews.net/2017/11/argentina-aims-leader-mining-obstacles-abound/>.

17

Silvia Nonna, ‘The Argentine Constitution and Its Relationship with Environmental Standards’, in Stephen J. Turner et al. (eds.), Environmental Rights: The

Development of Standards (Cambridge University Press, 2019), 265.

18

Reboratti, above, n. 1, 10–11.

KHADIM 295