Polenta and Cyanide? Investment Arbitration as Prospective Environmental Injustice in Roșia Montană

Abstract

Around the world, local communities supported by national and transnational advocacy networks are fighting to defend or preserve their homes and livelihoods from extractivist projects that threaten their environments. In this chapter, we look at Investor-State Dispute Settlement (ISDS) as a form of prospective environmental (in)justice (PEJ). ISDS provides for multinational corporations to sue states when they have a grievance over the state’s treatment of their investment. We argue that ISDS continues the structural violence of extractive projects and the pre-project harms resulting from foreign investor-welcoming climates. The chapter draws on empirical research on the Roșia Montană case in Romania to extend the theory of PEJ to scenarios where communities have succeeded in stopping a mining project, but the investor brings arbitration against the state, thus prolonging the “soft” extractive violence. We analyse how grassroots movements formed coalitions with national and foreign NGOs, succeeded in stopping a Canadian mining project based on cyanide extraction, and inscribed Roșia Montană as a UNESCO World Heritage site. In response, the Canadian mining company instigated investment arbitration proceedings against Romania. The case illustrates that, despite the legal victory of the Romanian state, international investment arbitration potentially allows “green crime”, rendering it awfully lawful.