Nayib Bukele’s recent interest in reversing the ban on metallic mining in El Salvador has reactivated the discussion at the national and international level around the issue, vetoed since 2017. From his networks, he argues that it was God who put a treasure under the feet of the population, and that it would be “absurd” not to exploit this resource that would bring “unprecedented” economic and social development.
This time the tension is greater given the concentration of power in the presidential figure and the existence of a regime of exception that erodes the organization and political opposition in the country. But what is the origin of the ban, and what are the implications of lifting the mining ban in this political and social context?
Origin
The discussion is long-standing, predating Bukele’s popularity and his controversial security measures. The ban has its roots in a legal dispute involving El Salvador with the Canadian mining company Pacific Rim. The company was in the process of renewing its gold mining permits at the El Dorado Project when, in 2009, President Antonio Saca, responding to internal pressure, declared that he would not authorize mining permits until a new mining law was enacted. Mining was, in fact, suspended and, as a result, Pacific Rim sued the State before the International Centre for Settlement of Investment Disputes, arguing that its investment had lost value because of the State’s actions.
The arbitration addressed two key issues: the State’s regulatory sovereignty over environmental issues vis-à-vis foreign investment protection, and the need to include the usually marginalized voices of local communities and civil society. On this last point, this is not just another case. The arbitration took place in a context of intense local resistance to the company that was characterized by threats and attacks on environmental defenders, which cost the lives of three of them. Although those responsible have not been identified, the Attorney General’s Office indicated that the company’s presence and the crimes could have the same root cause.
Civil society organizations, through social mobilizations as well as the filing of amicus curiae briefs, can act as a kind of counterweight to transnational corporations, as pointed out by jurist M. Sornarajah. However, in investment arbitration, neither local communities nor civil society have the space to be heard by the tribunals.
What did the tribunal decide? In the award issued on October 14, 2016, it rejected PacRim’s claims, finding that the company did not have mining rights in place when the government virtually suspended metallic mining in El Salvador. However, the most significant thing happened next. With the support of the Catholic Church, following the encyclical Laudato Sí, the Universidad Centroamericana José Simeón Cañas, social organizations and more than 33,000 signatures, a bill was presented to the Legislative Assembly.
On March 29, 2017, the Legislative Assembly passed a law of public order that makes El Salvador the first country in the world to ban metallic mining in its territory, reaffirming the right to health, the environment and sustainable development. “Yes to life, no to mining” is a slogan that continues to be present in society. Despite the affinity of Bukele’s followers with his way of doing politics, the current discontent is evident.
The news was the culmination of actions initiated in 2021, with the incorporation to the Intergovernmental Panel on Mining, Minerals and Sustainable Development, the approval of the Law for the Creation of the General Directorate of Energy, Hydrocarbons and Mines and the designation of a budget item to “review and update the law prohibiting mining”. Without published official studies, the only known impacts of past mining projects are the 16.5% increase in water demand and the 2.5% decrease in water availability, according to data from the UCA El Salvador.
Future
Authoritarianism facilitates such unpopular announcements, and increases the likelihood of executing them and repressing those who oppose them. El Salvador has been under a state of emergency for more than three years, and after denouncing the possible reactivation of mining, five environmental defenders from Santa Marta were confined for 21 months for alleged crimes that occurred during the armed conflict, an act described by the organization as manipulation of restorative justice to persecute environmental activism. Although they were released, recently the Criminal Court of Cojutepeque ordered the repetition of the trial in another court.
Is political popularity enough in this type of decision without considering the population? Perhaps not, what is enough is the control of the other organs of the State, as well as the military power. This is where the lack of checks and balances, and its consequences on people’s lives, are most evident.
The lifting of the mining ban is following the same line in which Bukele has governed, issuing an instruction without dialogue, fulfilled by his like-minded collaborators in the State bodies involved. However, the difference is the social articulation that already exists regarding this issue, different from the articulation regarding democracy, rule of law, corruption, among other issues that are debated in the Salvadoran arena. What remains, however, is the absence of a political opposition that can bring together these social demands and represent them in the scenarios dominated by the executive. Therein, we believe, lies another key to what will happen in the face of the threat of the return of metallic mining in El Salvador.
There are still unanswered questions: What would happen in the case of approval of the regulatory change and the eventual contamination? What will be the behavior of the Salvadoran State in defense of human rights, if it does not incorporate the population in the dialogue tables? Will the flexibility with which construction permits have been granted in protected areas be repeated?
*Machine translation proofread by Janaína da Silva.
Autor
Associate Professor of Public International Law at the University of the Republic and Researcher of the National System of Researchers (Uruguay). Professor at the University of Monterrey (Mexico). PhD in International Relations from the National University of La Plata (Argentina).
PhD candidate in Political and Social Sciences from the National Autonomous University of Mexico (UNAM), Master in Political Science from the University of Chile and consultant in research and social communication processes.
