Meanings of energy poverty in the South American context: a regional overview

MONTOYA PARDO, MILTON FERNANDO; MARTIN, LIBER ALEXIS; JUSTO, JUAN BAUTISTA; RIVERA BRAVO, DANIELA

ENERGY JUSTICE AND ENERGY LAW

Oxford University Press

Lugar: Oxford; Año: 2020; p. 217 - 239

The energy sector is one of the main recipients of the foreign direct investment flowing to Latin America since the 90´, becoming, therefore, a central aspect of its current performance. As the argentine cases before the International Center for Settlement of Investment Disputes (ICSID) prove, this feature entails the enforcement of an international legal regime for the protection of investors that has significant consequences for the regulatory space of the States.The growing incidence of foreign investment in the energy sector coexists with scenarios of deep social exclusion in access to basic goods ?energy among them- in the host countries. Argentina is a clear example.The contrast between the need to secure the legal and economic environment for the attraction of capital in order to finance the projects and the articulation of affirmative actions to reverse the vulnerability of the disadvantaged groups means that the energy field is crossed by two requirements in tension: protection of foreign investors and enjoyment of economic, social and cultural rights by the population, which involves universal access to basic services (electricity, water, gas) and environmental sustainability.The legal translation of the first demand is found in modern investment law, while the answer for the second lies in modern human rights law. These two legal sources constrain the players´ interaction in the energy sector, leaving the state with a limited capacity.Investments, energy poverty and environmental vulnerability are, thus, three hot spots of Energy Law in Latin American countries, which must be read in a very peculiar scenario, marked by three phenomena that clearly undermine the paradigm of the unity of law on which the modern State is based: legal fragmentation, interpretative fragmentation and domestic law´s devaluation.The outcome of this background is that national law has fewer and fewer tools to tackle those three hot spots. In a framework of growing conflict, the State is increasingly unable to address the challenges resulting from the fragmentation tied to globalization.The concrete consequences of these changes are seen on a daily basis: the most critical issues of the energy´s sector agenda, related to access to property rights on natural resources, environmental and social conflicts, raising of tariffs, etc. are processed under different rules and by different adjudicators. This means that those key aspects for the development of the country are no longer managed according to the premise of unity on which its legal system is grounded.