2 Arbitrariness in Hidroituango

In order to substantiate our theoretical claims, we now turn attention to the construction of a regional mega dam, Hidroituango, which is located at the heart of the Colombian mountains on the Cauca River's basin. Hidroituango's construction not only involved damming thirty-eight square kilometres of land previously devoted to agricultural, artisanal mining, fishing and other economies of subsistence, but also led to displacements, dispossessions, death threats and physical violence. Peasants, artisanal miners, fishermen and other groups directly affected by the dam have gathered in Rios Vivos – a social movement that engaged in a rich repertoire of resistance against the project, including strategic litigation before national courts and international bodies.Footnote ² Hidroituango's radical effects on the natural and social environments of the Cauca River basin are representative of the impacts of large-scale infrastructure projects more generally. However, due to its position in a region that is already affected by armed conflict, Hidroituango is marked by higher levels of violence and security concerns than many development projects. Because of this, Hidroituango shows the powerful legitimising role that law can play, even in difficult social contexts in which legal justifications operate simultaneously with military coercion and non-state violence.

EPM (Empresas Publicas de Medellin), a state-owned enterprise of one of Colombia's richest regions, Antioquia, is the company implementing the project. Although not a private entity in a formal sense, EPM is a parent company of over fifty companies operating in Chile, El Salvador, Guatemala, Mexico and Panama.Footnote ³ EPM is also driven by a commercial rationale and associated objectives, with aspirations of exporting electricity to neighbouring countries, attracting capital from global financial markets and ensuring market dominance in the region.Footnote ⁴ In this sense, it is a ‘transnational private actor’ that falls under the conceptual framework of this symposium. Similarly to other development projects discussed by Bhatt and Lander, Hidroituango was also funded by a wide range of international institutions and investors, some of which played an important role in determining the course of this project, but which will not be the focus of the present analysis.

In 2018, a part of the operational structure of Hidroituango's dam collapsed due to flooding caused by heavy rains, coupled with design failures. This exposed an already contested project to further controversy and calls for accountability concerning faulty project design and decisions that continue to harm the local population. Rios Vivos had spent over a decade contesting the rationale of the project at first, and then demanding for adequate treatment after the harm had been caused. They have highlighted not only problems related to land loss and unfair compensation, but also connections between Hidroituango and the use of violence by both state and non-state actors (MICI, 2018). From the perspective of this social movement, the exercise of power in Hidroituango has been indeed arbitrary, and this arbitrariness arguably becomes more obvious if we extend the rule-of-law analysis to EPM, as discussed in the following paragraphs.

Krygier (Reference Krygier, Palombella and Walker2009, pp. 11–12) explains that arbitrariness is not desirable, for two reasons: because the arbitrary exercise of power is ‘frightening’ and because it is ‘confusing’. Building on his conceptualisation, it can be said that the arbitrary exercise of power is one that is (1) unchecked and (2) unpredictable. Krygier (Reference Krygier2016, pp. 203–205) later added another element to his account of arbitrariness: (3) non-participation by those affected by the exercise of power. Arguments in Lander's and Bhatt's books help us to explain why and through what mechanisms, despite an elaborate governance framework being in place, the authority of EPM over members of Rios Vivos evaded all scrutiny based on fundamental rights’ protection or democratic participation.

As in the cases that Bhatt analyses, EPM was not only able to exercise power without scrutiny, but also delegated authority to other private actors. For instance, private contractors hired by EPM conducted social and environmental assessments, and designed resettlement and compensation plans without independent oversight. In this process, artisanal miners who have a partially nomadic lifestyle were excluded from the original impact assessment (similar issues identified in Mongolia by Lander, Reference Lander2020, p. 113). The lack of transparency has made it difficult for Rios Vivos to contest the assessments that defined their rights to land and compensation, among others.Footnote ⁵ Furthermore, since affected communities were not recognised as indigenous groups, they have been denied free, prior and informed-consent-like mechanisms (issues with non-recognition explained by Bhatt, Reference Bhatt2020, pp. 23–24). For people exposed to such an ‘unchecked’ authority, the actions of EPM – that is working closely with military forces and has alleged links with non-state armed groups (Afanador, Reference Afanador2018) – were, and indeed remain, frightening.

Generally, national legislation has also been ineffective in protecting the right of Rios Vivos members to participate in decisions that directly affect them. As in Mongolia (Lander, Reference Lander2020, pp. 197–198), legal rules have been interpreted in ways that prevent effective participation from affected communities. For instance, Colombian national legislation allows communities to call for a hearing in the context of environmental licencing procedures. However, in Hidroituango's case, only regional governmental authorities were invited, while the participation of grass-roots movements and local communities was restricted.Footnote ⁶ Hearings were also called in towns, but farmers who live in remote areas could not attend or simply were not informed about them. Moreover, compensation plans were grounded on an individualistic and profit-seeking conception of property, which, as in the case of pastoralists in Mongolia (Bhatt, Reference Bhatt2020, pp. 125–136), could not capture cultural and spiritual relationships that local communities have developed with their territory – an issue discussed later in this paper.

All in all, once we adjust the lens of the rule-of-law analysis to cover profit-seeking decision-makers such as EPM, the omnipotent nature of their decisions vis-à-vis the local population becomes apparent. It therefore becomes difficult to claim that their actions were legitimate, although many of their decisions are undertaken under the umbrella of the rule of law. Furthermore, although the rule-of-law analysis could indeed expose the lack of checks and balances in exercising authority, the process and the outcome of decision-making in Hidroituango were both arguably highly predictable – that is, fully in line with the second criterion of non-arbitrariness identified above. Plans announcing the intention to construct Hidroituango were made public as early as 1997 (Consorcio Integral, 2007), threatening to displace local groups from their land and take away their livelihoods. While many members of Rios Vivos were not aware of the project or its impacts until late in the planning process, this does not mean that knowing about the project earlier would have changed its outcome.

From this experience of local groups encountering development planning as a fait accompli, it seems to us that the rule of law in the context of economic development cannot escape the risk of being conflated with the notion of efficiency. Predictability is often equated with reducing transaction costs as a sign of efficiency. Therefore, there is a high risk that efficiency in achieving developmental aims is read as calling for reducing dialogue and opportunities for contestation. This intimate link between efficiency, predictability and the rule of law constitutes a conceptual limit of the rule of law's normative potential for counter-hegemonic action. In the next sections, we explain why that is the case, even if a promise of predictable development outcomes is extended beyond private actors to those who are subjected to their operations.

3 The indeterminacy of rights

Rights are the hallmark of substantive or ‘thick’ conceptions of the rule of law. They are mainly conceived of as protective shields that define claims and liberties on the one hand and duties and liabilities on the other (Quong, Reference Quong, Gaus and D'Agostino2013). They protect the interests and freedoms of rights-holders by imposing restrictions on the duty-bearers’ behaviour. In this traditional sense, rights provide predictability and certainty to people's interactions while protecting rights-holders from arbitrary exercises of power. When rights as protective shields are taken to the contexts of developmental interventions, they are usually portrayed as allies of affected communities. For instance, Bhatt advocates the recognition and proper implementation of land rights and the right to free, prior and informed consent for indigenous peoples as a remedy that could lead to clearer and fairer outcomes for affected communities (Bhatt, Reference Bhatt2020, p. 195). On the contrary, when rights are narrowly interpreted and fail to protect local communities, this is regarded as a violation of the rule of law and a failure of political and judicial systems.

As the Hidroituango case illustrates, this view of rights as protective shields often loses sight of other functions that rights have and that emanate from their intrinsically indeterminate nature. Besides functioning as protective shields, rights are governing techniques. As some critical readings suggest, rights can be deployed to govern rights-holders’ behaviours, to neutralise and discipline opposition to governmental interventions or to produce subjectivities that render people into ‘governable subjects’ (Sokhi-Bulley, Reference Sokhi-Bulley2016). Narrow constructions of rights that impose restrictions on the ways in which they can be exercised or that limit rights-holders’ remedial and political aspirations are examples of how rights are deployed to govern dissenting populations. By the same token, rights are often deployed by social movements and social groups to shape the behaviour of powerful actors. In this sense, rights provide hope and hold emancipatory potential.

To sum up, when rights are understood as governing techniques, besides their protective function, two additional functions emerge: on the one hand, they can be deployed as regulatory and disciplining techniques aligned with exercises of power akin to domination; on the other, rights can be a means of resistance and contestation (Wall, Reference Wall2012). The emancipatory potential of rights (Wall, Reference Wall2012) rests precisely on their indeterminacy and renders them in a way unpredictable. This reveals a tension between definition and openness that is at the heart of rights. Definition might be helpful for protection purposes but, at the same time, the processes of rights determination (of turning rights into positive law) open up spaces for control and domination. Indeterminacy, on the other hand, may impair rights’ protective power (particularly before courts) but, at the same time, holds the promise of more radical changes while allowing social movements to articulate novel demands before the political system.

The Colombian Constitution contains a long list of rights that includes social, economic, cultural and environmental rights. In 1991, when the current Colombian Constitution was drafted, rights were thought to be good means to address the causes and consequences of the ongoing internal civil conflict, including poverty and inequality. The Constitutional Court of Colombia (CCC) and other national tribunals have keenly protected the rights recognised in the Constitution. Myriads of judicial decisions have granted protection to indigenous communities, peasants and vulnerable populations affected by development projects. This court has not only recognised the right of indigenous peoples and other ethnic minorities to free, prior and informed consent; it has also protected the right to health, food, decent housing, work and participation of communities affected by development projects (Rodríguez, Reference Rodríguez2014).

Despite the above, after more than a decade of legal contestation, Rios Vivos have succeeded in very few legal battles over their rights. Most judicial decisions have tilted the balance in favour of the project, all anchored in thin conceptions of participation, property rights and access to justice. An example of this is how both the environmental authorities and courts approached the rights of Hidroituango's affected communities. For ANLA (National Authority of Environmental Licenses),Footnote ⁷ participatory requirements were fulfilled by inviting local authorities and members of the community to hearings aimed at spreading information about the project and collecting data for managing environmental impacts. Based on this assumption, ANLA approved the environmental-impact assessment conducted by Hidroituango (Consorcio Integral, 2007) – a decision upheld by national courts.Footnote ⁸ According to these authorities, local communities do not have a legitimate claim to further participation and, in particular, they do not have veto power. Furthermore, for courts, access to compensation depends on clearly defined property rights, namely rights to carry out mining activities in areas affected by the project, which many local communities lack.Footnote ⁹

We see a sort of paradox here. In legal arenas, rights have not extended their protective shield to the communities affected by Hidroituango. Narrow constructions of rights have been advanced in the name of the rule of law. Courts’ emphasis on bureaucratic and procedural requirements, coupled with demands of clearly defined property rights,Footnote ¹⁰ have left affected communities unprotected. In the long run, this is arguably meant to create more predictable development outcomes for the businesses and oppositional movements alike, by asserting that rights-based challenges to economic objectives would not succeed, notwithstanding harms caused. In this way, rights have been instrumental in neutralising opposition to the dam. Nevertheless, the idea of rights continues to have a central role in Rios Vivos’ contestation strategies.

An explanation for this paradox might be that rights enable communities affected by injustices and arbitrariness to articulate claims that are often invisible to the legal system. They allow rendering visible before the law other ways of being and living together, marginalised by the modern and Western underpinnings of liberal law. Against this backdrop, it is possible to understand Rios Vivos’ claim to a right to territory. Reference to ‘territory’ (rather than property) highlights the relationship between human and non-human agents – including rivers, mountains and animals – which are not coded into the anthropocentric and utilitarian analysis of ANLA, EPM or domestic courts. These spiritual bonds of communities with animals, mountains and the river cannot be understood through the lenses of property rights and pecuniary damages. For Rios Vivos, the indeterminacy of rights works as a sort of ‘crack’ in the legal system, which, by opening spaces for change, enables resistance and contestation. In this sense, rights provide hope to oppositional movements and hold emancipatory potential. On the whole, this feature of indeterminacy of rights calls into question assumptions of the rule-of-law theory about predictability and certainty as key conditions to curb arbitrariness.

4 Property

With the acquiescence of governmental authorities, Hidroituango placed property rights at the centre of its compensation scheme (Consorcio Integral, 2007). Compensation was allocated according to the quality of property rights that people were able to prove, with artisanal gold miners receiving nearly nothing, as they usually lack mining licences and undertake their activities on public land. For the project promoters, property rights are the best distributive criteria for compensation purposes: they are a legally justified criterion that provides certainty and predictability about who ought to be compensated while contributing to ‘distributive fairness’ (the more precarious the rights, the lower the compensation).

The problem with structuring compensation schemes according to the quality of property rights is that they do not account for all the types of relationships that communities such as those affected by Hidroituango have with their territory. Property rights under Colombian law, following the liberal legal tradition, are grounded in an individualistic conception of a juridical subject (Gill, Reference Gill2008, p. 164). The property owner is conceived of as a sort of possessive sovereign whose rationality is expressed in terms of profit-seeking and accumulation (Cotula, Reference Cotula2017). Property's main purpose is to grant owners control over flows of income derived from the thing owned, while at the same time preventing others from using or extracting value from it (Gill, Reference Gill2008, p. 166). This model involves a particular spatiality: the land is parcelled out into plots setting apart neighbours (Blomley, Reference Blomley2020). By excluding others, fences and borders prevent quarrels and secure owners’ private uses. Therefore, property protects the owner's interests from external interventions, while also preventing conflicts over land.

This understanding of property rights as relational yet exclusionary spaces under the Western legal tradition tends to distribute power in a way that renders communities such as those in the Hidroituango area vulnerable to the arbitrary exercise of power. That is because this focus on the property owner leads to a hierarchy of rights that structures the use, occupation and possession of land, and that also distributes power among people with interests and activities in a given territory. Within this hierarchy, most power is allocated to the individual owner, based on the assumption that the legally recognised right to property is the most important relation that a person can have with a thing. People who develop other types of territorial relationships become subjected to the owner's power and excluded from the property. In this way, ‘property law also structures interlocking relations of vulnerability and privilege’ (Blomley, Reference Blomley2020 p. 41). Not only does this model not protect territorial relationships that are different from ownership, but it also provides grounds for arbitrariness, as it privileges owners over everyone else.

As a social relationship, property is contingent. What Blomley names ‘the Lockean property model’ or the ‘ownership model’ is not a universal arrangement (Blomley, Reference Blomley2020, p. 49). It is a product of social struggle (Blomley, Reference Blomley2020, p. 49). Therefore, other forms of territorial arrangements are possible. This is precisely what eco-territorial movements like Rios Vivos are looking for: to make visible other types of territorial relationships that are not protected and are threatened by the ownership model (Escobar, Reference Escobar2015; Svampa, Reference Svampa2019). Therefore, even if communities like those affected by Hidroituango were granted exclusionary property rights, it would arguably not be enough to protect the cultural and ancestral relationships that they have with their territories.

Lander generally appears to be critical of the protective function of land rights. She draws attention to Mongolia's post-communist Constitution in which the customary land-use rights of pastoralist communities appear to be protected by the state's commitment to developing the economy ‘based on all forms of property’ (both public and private) as a means of preventing communal-land privatisation and maintaining the pastoral economy (Lander, Reference Lander2020, p. 95). However, constitutional protections have not delivered. Pastoralists have been deprived not only of property, but also of use rights in the context of a state highly dependent on extractive businesses, in which investors have been given greater powers at the expense of local communities. Admittedly, it can be argued that Mongolia's example is context-specific and that, in any case, herders were not granted exclusionary rights, as, according to the Mongolian Constitution, the state kept ownership over pastureland and subsoil. Nonetheless, the question of whether property rights assigned to communities always fail to protect them or only in some instances is beside the point for our analysis. That is because our claim is that, even under a situation of strong protection of land through property rights, the Western conception of property is likely to be at odds with alternative visions of development that indigenous and local traditional communities tend to advance and support. The liberal ownership model of property rights not only renders invisible before the law territorial relationships that are central to these visions alternative to development, but also imposes a particular grammar with which to talk about land, which risks undermining the very practices at the heart of those alternatives.

While this ‘Western model of property rights’ is not, by default, included in the concept of rule of law and therefore might appear of no relevance to the focus of this symposium, in practice, in the Hidroituango case, private property has been central to the quest for predictability and non-arbitrariness. This goes hand in hand with traditional approaches to development economics according to which, without such protection of identifiable property rights, there can be no economic development that generates profit and subsequent wealth for individuals and states (Krever, Reference Krever, May and Winchester2018). The premise here is that property rights afford certainty to economic transactions, facilitate trade and promote efficient outcomes. For that reason, property rights, economic development and the quest for non-arbitrariness in pursuit of the rule of law appear to us as intrinsically connected ideals that are extremely difficult, if not impossible, to separate in practice. Accordingly, rule of law and the exclusionary notion of property explained in this section cannot be either analytically or ideologically separated in a meaningful way.

As in the case of rights, we take issue with property because, although it might signal predictability and certainty, from the point of view of social movements such as Rios Vivos, property might frustrate change in terms of legal protections for other types of territorial relationships and, more broadly, alternatives to development. Accordingly, local communities like Rios Vivos can only benefit from the rule of law as an ideal if they are willing to surrender their non-exclusionary and relational understanding of territory in their pursuit of better legal entitlements or compensation. This might indeed lead to more predictable outcomes (although Lander's analysis suggests that this would not always be the case), but any discussion following such renunciation would take place in predominantly Western economic, political and legal terms.