Between the Environment and Foreign Investment Protection: the case of Santurban in ICISD
| Autor | Enrique Prieto-Ríos/Andrés Gómez-Rey/Mariana Díaz-Chalela |
| Cargo del Autor | Lecturer and Head of Research School of Law, Universidad del Rosario/Lecturer School of Law, Universidad del Rosario/Teacher Assistant and Researcher School of Law, Universidad de los Andes |
| Páginas | 161-190 |
161
7
Between the Environment
and Foreign Investment Protection:
the case of Santurban in
Enrique Prieto-Ríos*
Andrés Gómez-Rey**
Mariana Díaz-Chalela***
Introduction
Issues concerning environmental protection seem to have a contradictory
approach in the eld of International Law. On the one hand, environmental
protection is strongly encouraged by the international community, a view
that is reected on multiple environmental treaties regarding climate change,
biodiversity protection, and wetland conservation. On the other hand, when
countries domestically implement these obligations using their regulatory
powers, International Investment Law () seems to punish countries for
doing so. As it is showed in this chapter, arbitration tribunals have resolved
the tension between environmental protection and investment protection, in
most cases siding with the protection of the economic interests of the investor.
e system the object of criticisms from academics to the civil soci-
ety. Some of the criticisms argue that the system re-enacts colonial practices,
* Lecturer and Head of Research School of Law, Universidad del Rosario.
** Lecturer School of Law, Universidad del Rosario.
*** Teacher Assistant and Researcher School of Law, Universidad de los Andes.
162
Crisis del Estado nación y de la concepción clásica de la soberanía
imposing limitations upon ird World host countries.1 Other set of criticisms
argue that is guided by a neoliberal ideology, giving priority to the market and
private interests, jeopardizing the public interests around the world and which
reect the way how arbitrators are appointed and how cases are decided.2
Finally, another important set of criticism focuses on the procedural problems
of the system, mainly in the fact that the system only imposes obligations
to States and that interested parties such as indigenous communities do not
have a clear procedural role to defend their rights before arbitral Tribunals.3
Despite the importance and relevance of all the dierent criticisms towards
the system, in this chapter we move from criticizing the system and rather
our intention is to propose alternatives within the current structure and func-
tioning of the system for a specic situation experienced by the Colom-
bian State. Hence, this chapter argues that the arbitral investment tribunal at
the moment of resolving the case between Eco Oro v Colombia, related to a
mining project in the Santurban’s Paramo, shall not impose a compensation
against Colombia as the measure adopted was legal, and was adopted to pro-
tect, certain ecosystems and natural resources of high environmental value. is
main claim relies on two main arguments: i) international law acts as a system,
and as such must be internally coherent avoiding contradictory outcomes;
ii) obligations regarding international environmental protection hold the same
hierarchy as international investment obligations. Hence, when applying this
theory to the case of Santurban, the arbitration tribunal should conclude that
Colombia is exempt from paying compensation.
is chapter will introduce the existing tensions between international
environmental law and . en we will explain in detail the main facts and
considerations around one case: the Santurban’s Paramo. Analyzing this case
1 See for instance: Kate Miles, e Origins of International Investment Law: Empire, Environment
and e Safeguard of Capital. Cambridge University Press, 2013.
2 See for instance: Enrique Prieto-Rios, “Neoliberal Market Rationality: e Driver of International
Investment Law”. Birkbeck Law Review 3(1) (2015): 55; Gus van Harten, “A Case for an International
Investment Court”. Working Paper Society of International Economic Law 22 (2008). Available at:
outlook.live.com/owa/?path=/attachmentlightbox> accessed 20 June 2012.
3 See for instance: Barnali Choudhury, “Recapturing Public Power: Is Investment Arbitration’s
Engagement of the Public Interest Contributing to the Democratic Decit?”. Vanderbilt Journal of
Transnational Law 41 (2008): 775; Eugenia Levine, “Amicus Curiae in International Investment Arbi-
tration: e Implications of an Increase in ird Party Participation”. Berkeley Journal of International
Law29(1) (2011): 200.
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