Is Water Worth More than Gold?: Constitutional rights-based approaches to glacier protection in Argentina

When? 12noon CEST Monday 20 June

Where? Register to join this class on Zoom using this link – https://us02web.zoom.us/meeting/register/tZcvce6prDgoGdd2a_aweYVeUVlHgXOOlH0w

This lecture explores the implications of constitutional environmental rights for the protection of glacial systems and interconnected water resources in Argentina. Environmental rights were incorporated into the Constitucion de la Nacion Argentina during constitutional reforms in 1994. While the inclusion of such rights was perhaps not well-thought out by its drafters, who were more focused on devising a constitutional framework that would attract foreign investment, the consequences have been profound for community stakeholders, resource development companies, and federal and provincial governments. Constitutional environmental rights provisions have repeatedly been invoked by communities seeking prevention or redress of environmental harm due to mining, particularly where there is risk to water resources, as in the case of gold mining.

Valle del Cura in San Juan, Argentina, is said to constitute one of the most important gold and silver districts in the world.[1] However, despite the significant economic potential of resources in this area, projects have been mired in social conflict. This is largely because the area is also home to another invaluable natural asset, namely glaciers. Glaciers are large water reserves that contain 75 percent of the world’s fresh water.[2] The rock glaciers of the Andes Mountains are a significant source of Argentina’s water supply and, therefore, critical to ecosystem survival.[3] Over 20,000 glaciers and extensive ice-rich periglacial areas are distributed throughout what are, otherwise, some of the driest areas of the planet.[4] Extractive methods used in gold mining are viewed as a threat to these glacial and water resources, but San Juan is not amongst the provinces that banned open-pit mining or the use of cyanide. This has led to protracted conflict with local communities and interest groups across the country, campaigning under the banner, ‘Water is Worth More than Gold’, a sentiment echoed across Latin America.[5]

In response to public pressure and pursuant to its constitutionally mandated obligations, the national government enacted glacier protection legislation banning harmful activities on or near glaciers, and authorised the development of a glacier inventory to support conservation efforts. The glacier protection law was challenged by mining companies, but their jurisdictional challenges were unsuccessful as the Argentine courts relied upon constitutional environmental rights provisions to uphold the law. Moreover, these provisions empowered the judiciary to hold state actors accountable through criminal and administrative penalties. While outcomes have been mixed, the Argentine courts have shown a general willingness to take an active role in ensuring that public officials fulfill their constitutional duties vis-à-vis the environment. The extent of constitutional support for glacier protection efforts demonstrates that such provisions afford a powerful voice to citizens in the face of development pressures. This in turn supports the premise that articulation of environmental values within a constitution clearly allows for a more comprehensive dialogue about the merits of pursuing certain activities, particularly where irreparable harm to critical water resources is imminent.

Lecturer:

Dr Asmaa Khadim

Dr Asmaa Khadim is a postdoctoral researcher in Institutions for Conflict Resolution, a research project implemented as part of the Dutch national sector plan for law at Leiden Law School. Her research centres around environmental constitutionalism, with a primary focus on comparative constitutional law, environmental and Indigenous rights, natural resource conflicts, cumulative impact management, and government accountability. Her regional focus is on socio-environmental conflicts in the Americas, particularly Canada, Argentina, Chile and Costa Rica. Asmaa previously held academic positions as a lecturer in Queensland, Australia, convening courses in international environmental law, public international law, the law of international organisations, Canadian constitutional law and Canadian criminal law, at the undergraduate and postgraduate levels. Asmaa holds a BSc in psychology and international development studies from McGill University, and an LLB from Osgoode Hall Law School, York University, specialising in international, comparative and transnational law. She completed her doctorate at the Sustainable Minerals Institute, The University of Queensland. Prior to entering academia, she worked in private practice as a Barrister and Solicitor in Ontario and was admitted as a lawyer in New South Wales.


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

[2] Romina Picolotti, ‘¿Qué protege la ley de glaciares y qué se esconde detrás de su modificación?’, La Voz (Web Page, 10 December 2017) <https://www.lavoz.com.ar/opinion/que-protege-la-ley-de-glaciares-y-que-se-esconde-detras-de-su-modificacion&gt;.

[3] ‘Will glaciers be for mining in Argentina what an iceberg was for the Titanic?’, Mining.com (Web Page, 31 May 2012) <http://www.mining.com/will-glaciers-be-for-mining-in-argentina-what-an-iceberg-was-for-the-titanic/&gt;.

[4] Jorge Daniel Taillant, ‘Argentine Supreme Court Upholds Glacier Law’, Centre for Human Rights and Environment (CEDHA) (Web Page, 4 June 2019) <http://center-hre.org/argentine-supreme-court-upholds-glacier-law/&gt;.

[5] Jorge Daniel Taillant, Glaciers: The Politics of Ice (Oxford University Press, 2015) 6.

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