Transitioning All Together? Participation Rights, Foreign Investment, and the Pursuit of a Just Energy Future

As Latin America’s socio-environmental conflicts related to mining are poised to intensify due to the escalating demand for the region’s mineral resources—primarily driven by the US energy transition plans—local communities in this region are increasingly likely to seek legal redress before domestic courts against mining corporations. Can this rising judicialisation by affected groups help shape a just energy transition? In this chapter, it is contended that this is often not the case. Using Guatemala and Mexico as examples, the implications of the US decarbonisation plans for Latin America are explored, with a focus on the tensions arising between local communities’ successes in national courts—where they assert their participation rights—and the obstacles posed by international investment arbitration. At the heart of this issue is the transnational nature of the energy transition, which challenges conventional nation-state legal boundaries and thus the effectiveness of domestic judicial remedies. From this perspective, the chapter shows how the current interplay of international human rights, trade, and investment law often works to the disadvantage of both local communities and Latin American countries at large. For transitioning all together, it emphasises the importance of incorporating participation rights that align with human rights standards into both domestic environmental regulations and, concurrently and complementarily, into free trade agreements.