In extractive contexts, international obligations regarding the protection of the environment are hardly enforceable. This is due to the combination of two factors: 1) the lack of access to environmental justice, and 2) the dominance of international investment law.
The Inter-American system has taken almost 20 years to provide a final decision for La Oroya, a case where contamination was scientifically demonstrated decades ago. Contrary to other critical notes supra, this delay is directly attributable to the organs of the system as no administrative burdens or political considerations may serve as justification. However, the further problem is the limited capacity of international human rights law to provide timely and effective reparations, that build upon a consistent and realistic factual framework.
In Latin America and other regions of the Global South, human rights violations due to extractive activities are largely extended phenomena. As described, national institutions are generally incapable of providing environmental justice because it will simultaneously threaten the continuity of economic activities that are crucial for large portions of the population. The paradox of human rights trade-offs such as La Oroya is more common than exceptional.
This is an ongoing situation, for example, in the province of Espinar (Cusco, Peru) situated in an area known as the Southern Mining Corridor. In September 2023, the Ministry of Environment presented a scientific report demonstrating that air, soil, water, flora, fauna and domestic animals from the area are severely contaminated by the direct influence of mining activities. Despite the devastating findings, neither any State office nor the local population is actively soliciting the suspension of activities. On the contrary, the multinational company Glencore, operating in Espinar, is negotiating with local communities for the implementation of a new long-scale project called Coroccohuayco.
After many years of unfruitful attempts to obtain justice, the zalo database population of Espinar has lost confidence in the national and international systems of human rights, while mining activities can provide economic opportunities that are indispensable for their future. This does not mean they have renounced their claims for medical attention and environmental reparations, but they have decided to strategically negotiate these claims with the multinational company and State authorities in exchange for different forms of economic compensation. Are people from Espinar or the workers from La Oroya environmental defenders? As they do not fulfil all idealistic conditions, they might be denied this category. In an extractive context, environmental justice, as portrayed by international law, is a chimera.
Finally, the legal architecture of long-scale extractive activities largely relies upon international investment law, which is crucial to natural resource governance through the proliferation of investment agreements. Created for the protection of foreign direct investments in host countries, nearly all economic activities of a foreign investor are considered under the protection of these agreements and almost any aspect of the legal system of the State might be subjected to international arbitration. Thus, States from the Global South are more restrained in regulating extractive activities implemented by multinational companies.