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28 March 2022
By Astrid Puentes Riaño, climate justice and human rights expert attorney
Image credit: Titsor8976, CC BY-SA 4.0, via Wikimedia Commons
More than a century ago, the United Fruit Company of the United States was established in the Caribbean for the production and export of bananas. It operated with a model characterized by corruption, serious human rights violations and impunity. One of these dire violations was the massacre of the bananeras in 1928 in Colombia, an event narrated even in One Hundred Years of Solitude, which some people still deny. Investment along these lines gave rise to the shameful and denigrating concept of "Banana Republics", evidencing a clear absence of the rule of law in the face of prioritizing corporate interests.
Are fossil fuel and extractive companies today the ones challenging the rule of law, as banana companies did a century ago? It sounds exaggerated, but the reality in Latin America is that the high impact of the climate crisis (experienced especially by the most vulnerable people and communities), weak actions to address it, and increasing dependence on fossil fuels, coupled with the influence of the sector, creates a situation that demands deep reflection.
To this end, the following examples demonstrate the privileging of fossil fuel interests, in a way that prevents the profound and systemic changes needed to address climate change. It is also impacting existent rule of law, as projects and initiatives are being implemented ignoring applicable national and international binding regulations. In addition, these situations exemplify how much a new rule of law is needed, one that effectively contributes to solving the climate crisis.
Mexican Constitution prioritizes oil activities over any other land use
In 2013, the Mexican Constitution was amended through an electricity reform, which sought to modernize the sector, boost the energy transition and promote renewable energy. The reform included an article according to which all oil and hydrocarbon activity and energy distribution and transmission, are prioritized over any other land and subsoil use. The influence of the extractive sector speaks for itself. According to this amendment, activities such as food production, environmental conservation and traditional use of their territory by indigenous peoples are less important than activities related to oil and other hydrocarbons, considered to be of a "strategic nature" because of "social interest and public order".
This provision deepens the dominance of the oil sector. Currently, the “recovery” of the sector and the strengthening of Petróleos Mexicanos (PEMEX) is a priority of the federal government. To this end, projects that otherwise would not have been approved, or at least would have required a comprehensive technical and environmental evaluation, today have the green light. This is the case for the Dos Bocas refinery, which the government is building in Tabasco, in spite, according to Greenpeace, of not complying with requirements for environmental impact assessment and in spite of its evident climate impacts. Tabasco is precisely one of the states most affected by the climate crisis, where floods worsen annually and where the sea level has already risen, affecting thousands of people. However, the refinery continues, without having evaluated the climate risk, nor considered the additional impacts it would have on the population, the country or the world.
In line with the ascendency of the oil sector and arguing that it seeks to achieve energy sovereignty, PEMEX bought the Deer Park refinery in Texas from Shell. The announcement was made in mid-2021, days before a Dutch court concluded that Shell must reduce its global emissions by 45% to comply with its responsibility regarding climate change. Getting rid of its sources of emissions could be a strategy, although such emissions will continue to be released to the atmosphere, this time by PEMEX, the ninth largest contributor to climate change in history. This demonstrates a risk that we need to avoid: the Global North exporting climate emissions to the Global South, a characteristic also of the Banana Republics. Instead of this balloon effect, climate accountability needs to be achieved, preventing continued increase on emissions that worsen climate change.
Colombia and fracking
The Colombian government has promoted gas extraction, especially through fracking, arguing that it is clean energy. This ignores the fact that gas is a fossil fuel that urgently needs to be replaced to solve the climate crisis. In 2018 the Council of State suspended fracking, responding to a citizen law suit and, applying the precautionary principle, concluded that there was no scientific certainty that possible serious and irreversible risks to health and the environment would be avoided, making the activity unfeasible.
The government and several companies, including the Empresa Colombiana de Petróleos (ECOPETROL) and foreign companies such as Exxon Mobil and Drummond Energy (part of the same group that operates coal mines in Colombia) insisted and managed to implement pilot projects, even against the court decision suspending it. These projects have already begun, despite the multiple scientific studies that reiterate the health, water, environmental and climate risks of fracking. Thus, while many countries have banned or abandoned this technique, Colombia is betting on it. Ironically enough, it has been implemented in the same area where the banana plantations thrived.
Climate Justice to strengthen the rule of law in Latin America and elsewhere
There are many other examples that demonstrate inconsistencies in the face of the climate crisis and the continued prioritization of the sectors that have caused it. For example, in Brazil, the legal framework has been modified to benefit agribusiness, which is responsible for the deforestation of the Amazon; in Honduras, Guatemala and Nicaragua, mining and agribusiness companies operate with impunity, affecting the environment, the climate and the rights of indigenous peoples and communities.
At the same time, there are viable solutions, in which climate justice can shed light on this complex reality, helping advance solutions that are currently elusive in all areas, including on mitigation, adaptation and loss and damage. As the IPCC recently concluded—and indigenous peoples, communities and their allies have said for years—climate action needs to consider equality and justice, putting people and nature at the center. Already the Paris Agreement recognized that it is necessary to respect “human rights, the right to health, the rights of indigenous peoples, local communities, migrants, children, persons with disabilities and people in vulnerable situations and the right to development, as well as gender equality, empowerment of women and intergenerational equity”. A vital requirement that remains to be central to all climate action.
Climate justice encompasses the respect of all human rights, and aims for processes and results that are diverse, equitable and inclusive, promoting participation, transparency and accountability. In that sense, it could also enable the consideration of traditional knowledge and diverse climate solutions that excluded groups, like indigenous peoples, afro descendant, women, youth, migrants, and others could contribute. In addition, it could provide adequate controls to the influence of the fossil fuel and other sectors, for example by achieving transparency about their actual impact, and implementing effective measures.
Thus, climate justice could help achieve the rule of law, to transcend once and for all, any banana republic schemes. A new rule of law aiming to solve the climate crisis, by ending the dependency of fossil fuels and other drivers, promoting the transformations needed, and proving the solutions for the loss and damages caused.
This requires a multilateral commitment and support, in which the states of the Global South prioritize solutions beneficial to their interests, and the states of the Global North ensure adequate controls of their companies, so that they can be actors in promoting a just transition that respects rights and also contributes to equity and global justice. Otherwise, as was the case a century ago, they will continue to bear part of the responsibility for the shameful banana republic scenario.