The Legal Cultures of the Subsoil: The Judicialisation of Environmental Politics in Central America

The proposed project will explore the increasing resort to legal instruments, institutions, languages and practices by a range of stakeholders (corporations, governments, and civil society organisations) in the context of extraction-related conflicts as a means to assert their rights over resource governance.

Coinciding with the booming demand for natural resources since the 1990s, foreign direct investment targeted toward the extraction of minerals and hydrocarbons has grown exponentially, in tandem with conflicts over the governance and management of these resources. Latin America exemplifies this trend, with conflicts over extraction in the region having become a concern for a wide range of local and international stakeholders. This research will be based on fieldwork conducted in Central America (El Salvador, Guatemala, Honduras and Nicaragua), which has received little scholarly attention on the matter of resource governance despite the high number of fierce and polarised conflicts underway there; the few existing studies on this area have been limited to single countries or extractive operations. While filling this gap, this research will also examine the transnational dimensions that are becoming increasingly prominent within environmental politics. To this end, qualitative research will be conducted in Washington, DC, Geneva and London in order to shed light on the role played by global judicial and quasi-judicial transnational institutions, norms and agreements. Although the geographical scope of the empirical cases will be limited to Central America, this research will seek to yield theoretical and practice-oriented lessons for conflicts over resource governance that are occurring elsewhere in the world.

The objectives of the project are threefold:

1 - To offer a map of the legal cultures (i.e. the multi-scalar repertoires of legal languages, institutions, instruments, and practices) brought to bear by stakeholders with colliding interests vis-à-vis the issue of governance of resources from the subsoil.
2 - To provide analytical and conceptual tools that elucidate the increasing resort to legal repertoires within environmental politics and the impacts of these repertoires on the governing practices and decision-making of a range of stakeholders.
3 - To provide a methodology that brings together stakeholders with opposing views and stimulates them to engage in self-reflecting practices and the co-production of knowledge while shedding light on the colliding interests at work.

To address these objectives, instead of focusing on a particular legal domain as the few existing studies have done, this project will take a broad-based approach so as to apprehend the universe of available legal repertoires in the context of environmental politics (specifically when it comes to mining). The research will focus on an a priori fourfold classification of the domains pervaded by legal cultures: i) transnational judicial and quasi-judicial institutions and norms; ii) constitutional courts; iii) domestic courts and legislation; and iv) para-legal actions and law-like actions that occur outside of formal legal arenas.

As well as contributing theoretically and methodologically to our understanding of the emerging relevance of legal cultures in the context of environmental politics, this research will provide relevant raw data systematised in a database to be employed in follow-up research or by stakeholders participating in debates or decision-making on the management of resources from the subsoil. Overall, the research will contribute significantly to elucidating the role that legal arenas are playing vis-à-vis resource governance and the conflicts thereof, thereby providing relevant stakeholders (policy-makers, the business community and civil society organisations concerned with conflicts over mining) with tools that will encourage deliberative attitudes and stimulate public and policy debates on good practices.

My proposed research has the potential to make an impact in both academic and wider circles. The project will have an academic impact on researchers (i) whose research agenda is at the interface of conflict, the rule of law and democracy, and/or resource extraction; (ii) with an interest in interdisciplinary research; (iii) who embrace the goal of developing research that can influence policy; and (iv) who would like to experiment with forms of knowledge co-production with relevant stakeholders. Academic impact will be maximised via the publication of three articles in highly-respected journals and an edited volume (submitted to an international press) on the judicialisation of conflicts over resource extraction; the development of an online resource centre that systematises project-related data; and the various opportunities for knowledge exchange that arise at conferences, during the two proposed research stays, and at annual meetings of MINAYAL (for more details about the identity of academic beneficiaries and how the project will address them, see the section Academic Beneficiaries).

The project will also result in significant societal and economic impact. Conflicts over resource extraction, in Central America and elsewhere, are a matter of deep concern for a range of international stakeholders, whether due to their impact on human rights and the environment or their developmental and financial implications. I will build impact through engagement with direct beneficiaries of this project during various stages of the research process. Direct beneficiaries (or users) of this research include policy-makers and members of multilateral organisations (e.g. Central American governments, the UK Foreign & Commonwealth Office, and the UN Working Group on Business and Human Rights); members of the business community who have vested interests in the extractive industry (e.g. corporate members of Canning House and The Natural Resources Forum); and civil society actors (e.g. Central American and London-based organisations participating in the research and citizenry concerned with human rights and the environment). This research will serve these actors in a variety of ways:

1-For policy-makers and global organisations seeking to address resource-related conflicts, the research findings will help stimulate the design of policies and programmes that are sensitive to the multiple interests involved and that seek to resolve these conflicts in ways that are both efficient and human rights-compliant.
2-For members of the business community who are concerned about the problems (specifically the low economic returns) resulting from opposition to mining by local populations and international organisations, the project will yield insights about legal/quasi-legal disputes in contexts where disparate interests collide and encourage a self-reflective attitude about the role of corporations in these conflicts.
3-The benefits of this research for civil society actors concerned with human rights violations in the context of disputes over resource extraction are threefold: (i) it will improve their understanding of legal arenas; (ii) it will allow them to think proactively about how policies and legal/quasi-legal instruments and institutions might more efficiently comply with the UN Guiding Principles on Business and Human Rights; (iii) it will provide them with resources with which to generate public debate on related issues.

The ultimate goal of this research is to stimulate stakeholders from the extractive sector to increase their capacity to value and cultivate a deliberative approach so as to minimise the fallout from current resource-related conflicts. While the project will focus on case studies drawn from Central America, it will have reverberations for stakeholders and populations wherever similar conflicts have arisen, whether over mines in Africa and the South Pacific or fracking in various European countries, including the UK.