Call for Applications: Civil society organizations interested in strengthening resiliency

  November 10, 2020

We are pleased to share with you an opportunity for local civil society organizations interested in participating in a capacity building process to strengthen their resiliency in the face of potential impacts of growing restrictions on civic space. The Resiliency+ Process, developed out of the need for a new organizational model to combat the rise of changing civic spaces around the world, will take selected organizations through a structured process to increase their organizational resilience over a period of 12 months. This opportunity is part of a larger initiative under the USAID-funded Enabling and Protecting Civic Spaces (EPCS) – Illuminating New Solutions and Programmatic Innovations for Resilient Spaces or INSPIRES activity.

Organizations based in Ecuador, Georgia, Kenya, Nigeria, Senegal, and Serbia will be eligible to apply. At a minimum, organizations must be a locally registered civil society organization, have at least four years of experience, and be committed to the 12-month process. Please see the attached documents for more details.

If you’re interested in participating in this opportunity, please fill out this Google Form Application by 11:59 pm EST on the following dates:

  • Kenya: November 6th
  • Nigeria, Serbia, and Senegal: November 16th
  • Ecuador: November 27th
  • Georgia: December 1st

Please feel free to contact us at [email protected] with any questions or concerns.

Check the documents below for more details:

by Mishellt Melgarejo   November 25, 2019

Protests in Santiago, Oct. 22, 2019. Photo by Carlos Figueroa for Wikimedia Chile,

The escalation of protests and the military deployment to stop social demonstrations in Chile has made international headlines in recent weeks — not only because protest has not broken out in the country since democratic transition in 1990, but because these protests coincide with a wave of protests, political crises and social manifestations taking place across Latin America.

What prompted these protests and what does it mean for a country previously considered one of the most peaceful in South America? How will this relatively young democracy fare? If we look at the drivers behind this protest, we can begin to understand what this historic uprising might mean and how organizations like PartnersGlobal and Partners Colombia can help to manage this conflict peacefully.

When citizens needs go unmet

The outbreak of the protests came as a result of the President Sebasti√°n Pi√±era’s announcement that Metro fares would rise by 30 pesos, or about 5 US cents. The fare hike, though relatively small, must be understood in a context of mounting inequality and social dissatisfaction. It was a drop in a bucket of social grievances that then spilled over into the streets. As the protesters stated: “It is not for 30 pesos, it is for 30 years.”

The grievances that motivated many Chileans to raise their voices in protest have their roots, according to experts on the subject, in economic and structural models of institutions that were created in the transition from dictatorship to democracy. Among them is the inefficiency of the pension system, which protesters claim does not provide pensions that are commensurate with the long working years they spend contributing to social security.

Likewise, many Chileans feel dissatisfied with the health system. They denounce the price increase in health plans, poor coverage, low quality of hospitals and specialists, lack of protection and long wait times for care. As Pi√±era himself summed up in 2018, “more than three quarters of citizens are not satisfied with government health management and there are well-founded reasons for this.”

Adding to the drivers of unrest, the country’s capital has witnessed the inefficiency of the Transantiago subway system, which has encountered problems since its inception in 2007.

For residents of Santiago, this translates into long waits to take transportation and travel delays, which falls far short of the service expected given the steep subway ticket fees. In a study of the subway systems in 56 countries, Diego Portales University in Santiago found that Chile had the ninth most expensive transportation based on the average income of its inhabitants.

In addition, the public demands for quality education and social mobility are not being met, although these issues have been on the public agenda since the 2006 protests known as the “penguin revolution” and the 2011 movement protests. Some Chileans say that disparities in basic and secondary education generates segregation and barriers to social mobility.

All these problems have been fueled and permeated by cases of institutional corruption, tax evasion and abuse by companies that arbitrarily set production prices.

Bridging a protest-government disconnect

With so many tensions running high and protesters on the streets numbering in the millions, what does this all mean for democracy in the country?

According to Max Fisher and Amanda Taub, this crisis is a sign of a stagnant democracy, which is evidenced by an increasingly dissatisfied citizenship convinced that official channels are ineffective in satisfying their demands.

We have seen this in Chile through the collapse of electoral participation—in 1989, participation in the presidential election was close to 90 percent; in 2017 it dropped to just 50 percent. Confidence in the government has dropped dramatically from 32 percent in 2005 to 13 percent in 2015. More and more citizens are untying their allegiances and futures to the big political parties. In 2005, 48 percent of people chose not to identify with any political party, compared to 81 percent in 2015.

When institutional channels are not serving citizen needs and responding to problems, citizens go out to the streets to raise their voices in protest. As Seva Gunitsky, a political scientist at the University of Toronto puts it, this pattern is more likely to occur in countries where citizens have enough freedom and power to demand a change but not enough to obtain. These countries are usually the most susceptible to riots and protests.

In addition, social networks have become a catalyst for social disagreements, which makes it easier for individuals and groups to find supporters for social causes, thus making protests more likely to start and increase in size. Although despite the growing numbers, social movement that gain their momentum online are often more difficult to unite and keep together and often lack a plan for what comes next when the protests end.

So, although social manifestations are currently on the rise, not just in Chile but around the world, the protests are becoming less successful. According to a study by Erica Chenoweth, a political scientist at Harvard University, just 20 years ago, 70 percent of the protests that demanded a systemic political change obtained it, however, after the mid-2000s, protestors’ success rate had plummeted to only 30 percent.

Similar to in Chile, several social grievances have emerged in Colombia. On Thursday, Nov. 21, a national mobilization called “National Unemployment Against Paquetazo de Duque” brought hundreds of thousands of protesters to the streets to voice their demands for reform on labor, pensions, financial holding, privatizations, corruption, national tariffs, taxes, minimum wage, compliance with agreements and defense of social protest. A government issued curfew followed the day of protests, and unrest continues as citizens and the government look to determine what’s next.

If citizens do not see a place in political institutions to meet their needs, and protests, despite their growing numbers, are less effective at delivering change, then where do we go? Are we deadlocked into cycles of protest and repression? What process or institution can best respond to the needs of citizens?

We believe that although these protests constitute a challenge for democracy, it is in this context that organizations such as Partners Colombia, and in general the offices of the Partners Network in the world, become more important as facilitators and promoters of dialogue between different sectors. And where this conflict arises, as it inevitably will around the globe, we commit to continue working for dialogue, democracy and peace.

Mishellt Melgarejo is a Project Officer for Partners Colombia

by Luis Gomez Chow   December 10, 2019

Photo by Jasmin Sessler on Unsplash.

In 2015, the Inter-American Commission on Human Rights published a landmark report on the abuses and human rights violations faced by members of the LGBTQ population in Latin America and the Caribbean. The report focused on the pervasiveness of direct prejudice-based violence perpetrated by state, state-sponsored, and non-state actors, as well as on ongoing indirect violence caused by laws that criminalize same-sex relationships and “nonnormative” gender identities. At the time, eleven countries in the region still had such laws, which the report noted were partly responsible for the recurring violence against LGBTQ populations.

According to the report, between 2013 and 2015, almost 800 LGBTQ persons were victims of direct violence in 25 Latin American countries. This figure, while alarming, represented just the tip of the iceberg as crime against LGBTQ populations is normally underreported.

Half a decade the later, the situation is still dire. Since the publication of the Inter-American Commission on Human Rights report in 2015, at least 1,300 LGBTQ persons have been murdered in the region.

Central America has been particularly affected by this type of violence, with Honduras and El Salvador having the highest rate of homicide of LGBTQ persons. Both part of the Northern Triangle, these two countries have long suffered from alarming levels of criminality and violence. While these phenomena have touched all levels and sectors of society, LGBTQ populations, particularly transgender women, have faced additional risks and threats linked to prejudice and stigma from both government institutions and the society at large.

These abuses have taken place in a climate of widespread impunity and prejudice, both of which have permeated most state institutions, particularly the justice system. Law enforcement authorities have both systematically ignored crimes against LGBTQ populations and have failed to effectively identify, bring to trial, and sentence the perpetrators.

With the firm belief that LGBTQ rights are human rights, Partners El Salvador and PartnersGlobal have been working with the Federation of LGBTQ Organizations in El Salvador to better advocate for the recognition and protection of their rights. We have worked hand in hand with the Federation to establish long-lasting partnerships with other vulnerable populations and sectors and jointly push for transformational changes at the institutional and societal level. Our joint work has resulted in a common legislative and policy agenda subscribed to by organizations representing not only LGBTQ populations, but also persons with disabilities, youth, and women victims of violence.

On this Human Rights Day, and as the crisis of insecurity and violence deepens in the region and the political space in these countries closes—a trend we are seeing in other regions of the world as well—it is of utmost importance to continue to fight for the consolidation of LGBTQ rights as human rights, support LGBTQ organizations and groups to become strong and credible actors, and foster deeper intersectoral alliances that can contribute to this goal. Only by working together and building broader and stronger constituencies for human rights will we be able to continue moving forward.

Join us. #LGBTQrights #StandUp4HumanRights #HumanRightsDay

Luis Gomez Chow is the Director for Latin America and the Caribbean and Global Advisory Services at PartnersGlobal. He oversees Partners’ Civil Society Resilience portfolio as well as the organization’s peacebuilding and democracy-building programs in Latin America and the Caribbean. He has a decade of experience designing, implementing, and evaluating multi-stakeholder dialogue, negotiation, and consensus-building processes and platforms concerning human rights, access to justice, and human security policies and laws.

  October 15, 2018

On Friday September 28, the Nicaraguan police conducted a search and seizure operation at the offices of the Institute of Strategic Studies and Public Policy (IEEPP).

The news was widely covered. The Spanish newspaper El Pa√≠s reported on September 30, “The Ortega government has accused IEEPP and its Director, F√©llix Maradiaga, of financing acts of “terrorism” to destabilize the Sandinista regime. The police confiscated documents and computers from IEEPP’s offices, located in the central San Juan District of Managua.”

IEEPP is a think tank focused on security and public transparency, with extensive experience and recognition in the region. Maradiaga, who is currently in exile, participated in a recent session of the UN Security Council to support denunciations against the Ortega government for the criminalization of public protest, lack of a rule of law, and systemic violation of human rights.

Both the Venezuelan and Nicaraguan regimes are confronting dissidents, criticism, and civil protest through non-democratic mechanisms that criminalize legitimate citizen action. In both countries, there is a recurring pattern of repression by police and military forces that band together with armed groups. There has been a closing of democratic space for the exercise of free expression, peaceful protest, citizen participation, and free association accompanied by the direct censorship of the media and the coercion, harassment, and intimidation of journalists and citizens that reject these abuses of power by the government.

The undersigned organizations reject these policies and express their total solidarity with IEEPP and Nicaraguan civil society that, free and autonomous, claims rights, justice, and democracy.

October 2018



A.C. Cedisuc, Venezuela

Acceso a la Justicia, Venezuela

Asamblea de Educación, Venezuela

Asociación Vida y Luz (Asoviluz), Venezuela

Aula Abierta, Venezuela

Centro de Colaboración Cívica, México

Centro de Derechos Humanos de la Universidad Metropolitana, Venezuela

Centro de la Formación para la Democracia, Venezuela

Centro para la Paz y los DDHH UCV, Venezuela

Civilis Derechos Humanos, Venezuela

Convite A.C., Venezuela

Comisión de Derechos Humanos de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia, Venezuela

Comisión de Derechos Humano de la Federación de colegios de Abogados de Venezuela del Estado Táchira

Comité para la Democratización y Acceso a la Tierra-Paz y Trabajo (CADETA-Paz y Trabajo), Venezuela

Fraternidad Laical Dominicana de Barquisimeto, Venezuela

Fundación Agua Clara, Venezuela

Fundación Esquel, Ecuador

Humano Derecho Radio Estación, Venezuela

IPYS Venezuela

Movimiento Ciudadano Dale Letra, Venezuela

Epikeia Observatorio Universitario de Derechos Humanos, Venezuela

Espacio P√∫blico, Venezuela

Excubitus Derechos Humanos en Educación, Venezuela

Federación de Sociedades de Padres y Represententes (Fenasopadres), Venezuela

Instituto Venezolano de Estudios Sociales y Políticos (INVESP)

Observatorio de Derechos Humanos de la Universidad de los Andes, Venezuela

Organización CIIDER, Venezuela y Colombia

Padres Organizados de Venezuela


Partners Colombia

Programa Venezolano de Educación-Acción en Derechos Humanos (Provea)

Promoción Educación y Defensa en DDHH (PROMEDEHUM), Venezuela

Red 20/20, Venezuela

Red Andina de DDHH (RADAR), Venezuela

Redes Ayuda, Venezuela

SINERGIA, Red de 53 Organizaciones de la sociedad civil en Venezuela

Sociedad Hominis Iura (SOHI), Venezuela

Socios Per√∫

  December 4, 2018

Coalition of civil society organizations dedicated to democracy and human rights denounce Nicaraguan government’s treatment of activist colleagues

PartnersGlobal notes with growing alarm the criminalization of legitimate citizen action in Nicaragua. Together with our colleagues across the Americas, including members of the Partners Network and a coalition of partner organizations in Ecuador and Venezuela, we stand in solidarity with our Nicaraguan colleagues whose activism on behalf of human rights and democracy has been directly targeted by the current regime.

The regime of Nicaraguan President Daniel Ortega is confronting criticism and civil protest through non-democratic mechanisms that criminalize legitimate citizen action. There is a recurring pattern of repression by police and military forces that band together with armed groups. There has been a closing of democratic space for the exercise of free expression, peaceful protest, citizen participation, and free association accompanied by the direct censorship of the media and the coercion, harassment, and intimidation of journalists and citizens that reject these abuses of power by the government. Among other actions, we denounce:

  • The illegitimate search and seizure operation conducted on September 28, 2018 at the offices of the Institute of Strategic Studies and Public Policy (IEEPP), a renowned think tank focused on security and public transparency, targeting Executive Director F√©lix Maradiaga, who denounced the Ortega regime’s human rights violations at the UN Security Council.
  • The arbitrary detention of human rights activist and Executive Director of the Segovias Leadership Institute (ILLS) Haydee Castillo on October 14, 2018. Ms. Castillo was detained in El Chipote prison overnight even though she had been granted precautionary measures by the Inter-American Commission on Human Rights in September.
  • The illegal deportation of human rights activist and Executive Director of the Information and Health Advisory Services Center (CISAS) Ana Quir√≥s on November 26, 2018. Ms. Quir√≥s is a naturalized Nicaraguan citizen and was forcibly deported to her birth country of Costa Rica without cause after being illegally detained for several hours at the General Directorate of Migration and Foreigners (DGME) without access to her lawyer.

We demand an immediate end to these grave violations of human rights and international law and urge the Nicaraguan government to allow civil society to exercise its legitimate right to free expression and association.


Coalición de organizaciones de la sociedad civil comprometidas con la democracia y los derechos humanos denuncian las acciones del gobierno de Nicaragua en contra de sus colegas.

PartnersGlobal nota con creciente alarma la criminalización de la acción legítima de los ciudadanos en Nicaragua. Junto con nuestros colegas en todo el continente americano, incluidos los miembros de la Red Partners y una coalición de organizaciones asociadas en Ecuador y Venezuela, nos solidarizamos con nuestros colegas nicaragüenses cuyo activismo en favor de los derechos humanos y la democracia ha sido represado directamente por régimen actual.

El régimen del presidente nicaragüense, Daniel Ortega, enfrenta críticas y protestas civiles a través de mecanismos no democráticos que criminalizan la acción legítima de los ciudadanos. Se está implementando formas y mecanismos de confrontación no democráticos y de violación de derechos fundamentales, para enfrentar la crítica y la protesta civil. Existe un patrón recurrente en las acciones represivas por parte de las fuerzas policiales y militares actuando junto con grupos irregulares, provocando el cierre de espacios democráticos para el ejercicio de los derechos de libertad de expresión, manifestación pacífica, participación y libertad de asociación, aplicando una censura directa a los medios de comunicación y ejerciendo acciones como la indicada anteriormente.

Entre otros abusos, denunciamos:

  • El allanamiento illegitimo realizada el 28 de septiembre de 2018 en las oficinas del Instituto de Estudios Estrat√©gicos y Pol√≠ticas P√∫blicas (IEEPP), un centro de pensamiento enfocado en temas de seguridad y transparencia p√∫blica con amplia trayectoria y reconocimiento en la regi√≥n. Su Director Ejecutivo F√©lix Maradiaga ha denunciado las violaciones de derechos humanos cometidas por el r√©gimen de Ortega en el Consejo de Seguridad de la ONU.
  • La detenci√≥n arbitraria de Haydee Castillo, activista de derechos humanos y directora ejecutiva del Instituto de Liderazgo las Segovias (ILLS) el 14 de octubre de 2018. Castillo fue detenida en la prisi√≥n de El Chipote durante la noche, aunque la CIDH le hab√≠a otorgado medidas de precauci√≥n en septiembre.
  • La deportaci√≥n ilegal de Ana Quir√≥s, activista de derechos humanos y Directora Ejecutiva del Centro de Informaci√≥n y Servicios de Asesor√≠a en Salud (CISAS) el 26 de noviembre de 2018. Quir√≥s es una ciudadana nicarag√ºense naturalizada y fue deportada a su pa√≠s natal de Costa Rica sin causa despu√©s de permanecer detenida ilegalmente durante varias horas en la Direcci√≥n General de Migraci√≥n y Extranjeros (DGME) sin acceso a su abogada.

Exigimos el fin inmediato de estas graves violaciones de los derechos humanos y el derecho internacional e instamos al gobierno de Nicaragua a permitir que la sociedad civil ejerza su legítimo derecho a la libre expresión y asociación.



Acceso a la Justicia de Venezuela

Instituto Venezolano de Estudios Sociales y Políticos-INVESP



Partners Colombia

Promoción Educación y Defensa en DDHH (PROMEDEHUM)

Sinergia, Red Venezolana de Organizaciones de Sociedad Civil

Socios Peru

Una Ventana a la Libertad

by Bridget O'Loughlin   November 22, 2015

Many know Bogotá as a model of urban development in Latin America. In 1993, the city was in crisis, with a recorded homicide rate of 81 per 100,000 inhabitants. To put this figure in perspective, in 2014 there were 328 murders in New York City, or about 4 per 100,000 inhabitants. Over the next few years, however, a series of progressive mayors implemented innovative policies to fight crime and violence. For example, Antanas Mockus sent mimes into the city to use comedy to cajole residents into coexisting peacefully, while Enrique Pe√±alosa constructed miles of bicycle lanes to influence positive and healthy social behaviors. By 2014, Bogot√° enjoyed one of Latin America’s lowest murder rates and citizens took pride in their beautiful and safe city.

While this transformation was certainly dramatic, many would argue that it simply served to contain crime and violence in the city’s most marginalized barrios. These geographically-isolated and precarious communities cling to high mountain peaks on the city’s northern and southern outskirts. Their inhabitants are generally rural refugees fleeing the country’s bloody civil war who constructed makeshift shelters wherever they could find room. As a result, just a few neighborhoods account for an outsized percentage of Bogot√°’s poverty and crime. For example, just six of the city’s 109 neighborhoods accounted for 55% of the city’s homicides in 2014.

Photo by D.R. 2006 Caleb Harris

Photo by D.R. 2006 Caleb Harris


Despite this dire situation, Narciso Torres, a longstanding community organizer and program manager for Partners Colombia (PC), knows how resilient marginalized communities can be. Nacho, as he is known to his friends, stated, “Inside each community member, there is something truly special: a desire to help their barrios.” Bogot√°’s municipal government recognizes this resiliency and has implemented a targeted approach to reducing crime and violence in Bogot√° by tapping into the latent capacity of communities to come together and address their own challenges. The government prioritizes making community members co-creators and co-implementers of locally-based initiatives, with the idea that the best solutions come from those directly experiencing problems.

Partners Colombia is committed to this same approach to working with communities and partnered with the municipal government in 2014 to carry out the Strengthening Community Justice initiative. PC staff worked hand-in-hand with local leaders to increase local capacity to peacefully resolve disputes in the six violent bogotano neighborhoods. Staff first worked to increase awareness of the importance of peaceful coexistence through public forums, print advertisements, and radio and TV spots. Next, the team targeted key local leaders in both the civil society and government sectors with training in conflict resolution, negotiation, communications, coexistence, and community and equitable justice. Finally, the cornerstone of the program involved the establishment of Community Care Points (PAC’s), centers that would provide mediation and conflict transformation services in each of the six target neighborhoods. The Partners Colombia team implemented a 150-hour accreditation course on community conflict resolution to prepare a staff of 100 facilitators—all of whom were residents of the communities they would serve. During a field test of the PAC’s, these facilitators successfully mediated 800 disputes in a 5-day period.


The process of implementing this comprehensive intervention in the six target communities was not easy. Nacho and the PC team first undertook a detailed mapping process to identify and understand the various actors in these complex localities. Next, and most importantly, they had to gain community members’ trust. To do so, they enlisted the help of what they called lazarillos comunitarios, derived from the Spanish word for someone who guides a blind man. Team members became a part of the community through daily, friendly interactions, like sharing a meal at a local restaurant. In the end, community members became protective of the Partners Colombia team, helping to facilitate their work.

Despite these serious challenges, community members’ accomplishments have inspired Partners Colombia staff like Jaidivi Nu√±ez, the organization’s Director of Research and Development. She fondly told me the story of Luis, a man confined to a wheelchair in the neighborhood of Tesoro. Even though Luis suffered from chronic and debilitating pain, he completed all 150 hours of coursework to become a community facilitator. When he graduated, he told Jaidivi that this would be his first graduation, as he was unable to finish primary school. Today, Luis works out of his home, helping his neighbors create solutions to the conflicts and disputes they face on the margins of Bogot√°, where helpful government institutions rarely reach. More importantly, as Nacho explained, Luis now demonstrates more self-esteem, confidence and a burning desire to work towards a vision of peaceful coexistence in his neighborhood.

Given both the geographic and social isolation that these barrios experience, it is easy to ignore or dismiss them as “bad neighborhoods,” where one shouldn’t venture after nightfall. Although, there are complex socio-economic factors that are contributing to the cycle of violence in these areas that need public policy solutions, Luis’ story demonstrates a deep well of social capital to draw upon. Nacho, Jaidivi, and the entire Partners Colombia team will keep working at both the policy and community levels to bring about the needed change in these barrios.

  February 10, 2013

This is the second installment of a two-part series that was originally published by the International Law News, Volume 44, Number 2, 2015. © 2015 by the American Bar Association. View the first installment here.

Creating Conditions Above and Below Ground for Unconventional Oil and Gas Development through a Governance and Sustainability Framework


In the Southern Cone, regulatory frameworks, public policy initiatives, and opportunities for public-private partnerships are neither harmonized nor harmonious. South America shows different approaches to government regulation over hydrocarbons and ownership schemes over minerals, as well as their development and management, government-private sector relations and development, access to technology, regulations, implementation of industry sustainability standards, and different jurisdictions’ approaches to their own quality of governance and rule of law. Creating opportunities for leveraging, engaging, and innovation will require that the immediate future of unconventional oil and gas development in South America be characterized by development on three fronts:

1) a strategic approach to hemispheric policy development, diplomacy, and cooperation;

2) understanding the importance of social licensing processes and how that could affect the private-sector bottom line; and

3) the role of the legal profession in these developments.

Hemispheric Multi-Stakeholder Engagement

Strategic engagement and dialogue within the Americas among those who share the wealth of unconventional oil and gas resources will prove to be beneficial for the region and hemisphere at different levels. So-called energy diplomacy can have a direct impact on the establishment of solid dialogue and diplomatic relations that leverage good policy, regulatory frameworks, and industry best practices supporting energy independency and/or efficiency (depending on a country’s needs). When it comes to preventing and/ or mitigating the environmental, social, and governance (ESG) impacts of hydraulic fracking, one company’s best sustainability practices or even research initiatives trying to understand the true environmental impact of this activity are not enough. A multi-stakeholder approach, one that brings together governments, the oil and gas industry, research and academic institutions, industry associations, investors, shareholders, and even NGOs, can be the catalyst for leveraging best sustainability practices, investing in serious academic research that identifies the true impact (even the negatives) of hydraulic fracking, and providing standards for prevention, mitigation, and further technological and research development. This, in turn, will leverage international and regional standards that governments, the private sector, and even NGOs can agree upon to integrate as important for their own operations and activities. At the same time, it will serve to create the conditions for operating within a governance and rule-of-law framework.

Social License to Operate and Shareholder Participation

Bans and moratoria are denials of companies’ social license to operate arising from concerns about environmental and social risks. Richard A. Liroff, Shareholder Engagement as a Tool for Risk Management and Disclosure, in Beyond the Fracking Wars, supra. Confronted with this reality, the unconventional oil and gas industry needs to incorporate sustainability standards that call for a responsive management guided by committed shareholder participation on these issues. Reducing environmental and community impact requires not only strengthening federal, state, and local regulations within a governance and rule-of-law framework but also having industry itself incorporating the highest international safeguard, sustainability, and multi-stakeholder engagement standards at the operational level—even when there are no local regulations requiring them to do so.

And this is when shareholder engagement is so very important. Management cannot do it alone or be left alone on these key strategic decisions that have a direct impact on risks and rewards. Today, it is widely acknowledged by the investor community that how a company manages ESG has a direct impact on financial numbers and investor’s returns. Id. The investor and shareholder communities have already begun mobilizing around these issues by developing best practices that permeate management at different levels. Id. (citing 12 core management goals for natural gas operations identified in Extracting the Facts: An Investor Guide to Disclosing Risks from Hydraulic Fracturing Operations, a guide published by Investor Environmental Health Network (IEHN) and the Interfaith Center on Corporate Responsibility (ICCR), including Green Century Capital Management and Boston Common Asset Management. While this is still a process in development, it certainly is already creating a positive impact that should be leveraged and embedded across the industry and within standards even more forcefully in jurisdictions that have different approaches to regulating, governance, rule-of-law, and sustainability frameworks.

The Legal Profession and Sustainability

The sustainability, business, and human rights movement is a movement that has begun to change how businesses across the globe operate that has gained momentum in recent years with the private sector and legal profession, owing in part to the passage by the UN Human Rights Council in 2011 of the UN Guiding Principles on Business and Human Rights (Guiding Principles) and the 2012 Rio+20 Sustainability Conference. In light of these, many corporations and the legal profession as a whole are looking at how to adopt sustainability and human rights policies as part of their headquarters and field operations to avert costly disruptions and reputational harm in the context of implementing due diligence mechanisms. Other international multi-stakeholders, as well as industry-related initiatives, are at the heart of this discussion because they are providing the framework for the private sector to engage with other sectors and generate best practices across regions through sustainability reporting and integrated operational practices.

An entirely new regime and system are emerging; these are comprised of both soft and hard law (international law), where soft law standards are being increasingly embedded as part of due diligence mechanisms and sustainability operations of the private sector. It has been noted that this process is acknowledging the “standard setting power of soft law into the development of emerging norms into the international community while also integrating social expectations into these rule making process.” U.N. Human Rights Council, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, Report of the Special Representative of the Secretary-General (SRSG ) on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises , A/HRC/4/035 (Feb. 9, 2007).

In turn, this new regime and system are also influencing a new field of practice that does not only involve human rights or environmental law. The complexity of the legal questions emerging from this new field of practice increasingly requires that corporate lawyers, whether in-house or those advising industries that, as a result of hydraulic fracking, have the potential to collide with ESG standards and run into serious conflicts or reputational damages, be well versed in these standards and emerging system of laws so that they can integrate them as part of their advisory services to their clients.

This is the second installment of a two-part series that was originally published by the International Law News, Volume 44, Number 2, 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 35 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

by Lelia Mooney   September 23, 2015

Aligning Conditions Below and Above Ground for Unconventional Oil and Gas Development within a Governance and Sustainability Framework

The Shale Revolution Phenomenon Below Ground

Hydraulic fracturing or “fracking,” the process of injecting sand, water, and chemicals into shale rocks to crack them open and release the hydrocarbons trapped inside, is already a big topic of conversation in South America because the promises of fracked energy are so great. These include job creation, lower carbon emissions, achieving energy independency and efficiency, and industry development. At the same time, this projected bonanza does not come concern free. Critics in the United States and elsewhere challenge this new phenomenon by claiming that “fracking” pollutes the water, ground, and air and holds the potential for seismic movements, all leading them to affirm that these costs outweigh the benefits. Alex Prudhomme, Hydrofracking: What Everyone Needs to Know (2014).

The development of hydrocarbons trapped within underground shale formations generated the so-called shale revolution phenomenon that led many to affirm that shale may be the most transformational technology advancement in the twenty-first century. It has transformed the Western Hemisphere into the new center for oil and gas production while lowering both gas prices and greenhouse gas emissions (Robert A. Manning, The Shale Revolution and the New Geopolitics of Energy (2014). This paramount development is challenging geopolitics worldwide and within the Western Hemisphere in particular with respect to regulatory frameworks, public-private partnerships, multi-stakeholder engagement, environmental concerns, and matters of diplomacy and national security.

In practical terms, the shale gas and oil phenomenon, driven by the impressive size of proven reserves, is revolutionizing the global energy landscape, positioning the Western Hemisphere in a unique situation for resources exploration and development. Americas Society/Council of the Americas, Shale Gas Development in Latin America, (2014), A close look at the 2013 United States Energy Administration report maps the presence of 137 shale formations in 41 countries outside the United States and across regions. According to the report, two-thirds of the assessed, technically recoverable shale gas resource is concentrated in six countries: the United States, China, Argentina, Algeria, Canada, and Mexico, and the top 10 countries from this list account for over 80 percent of the currently assessed, technically recoverable shale gas resources of the world. U.S. Energy Administration, Technically Recoverable Shale Oil and Shale Gas Resources: An Assessment of 137 Shale Formations in 41 Countries Outside the United States (2013).

This report shows that Argentina ranks fourth after Russia, the United States, and China in terms of the top 10 countries with technically recoverable shale resources. Moreover, Argentina has world-class shale gas and shale oil potential, and the report affirms that, besides the United States, it is possibly this South American country that has the greatest prospects, given its large and potentially high quality shale gas and oil resources in four main sedimentary basins: the Neuquen Basin, the Golfo San Jorge Basin, the Austral Basin, and the Paran√° Basin.

Brazil’s most prolific petroleum basin lies offshore, while the country has 18 mostly underdeveloped and lightly explored sedimentary basins onshore. Three of these basins—the Paran√° in the south and the Salim√µes and the Amazonas in the north, produce significant amounts of conventional oil and gas, although these three basins also have geological data indicating that assessment of shale gas and oil potential is warranted.

In a closer look at South America, the report shows that northern South America has prospective shale gas and shale oil potential within marine deposited cretaceous shale formations in three main basins: the Middle Magdalena Valley and Llanos basins of Colombia, and the Maracaibo/Catatumbo basins of Venezuela and Colombia. Bolivia, Chile, Paraguay, and Uruguay have prospective shale gas and shale oil potential in three large sedimentary basins with organic rich and marine-deposited black shales: the Paran√° Basin of Paraguay and Uruguay, the Chaco Basin of Bolivia and Paraguay, and the Magallanes Basin of Chile.

Exploring and Understanding Conditions Above and Below Ground

Frack DiagramThe paramount latent opportunities that exist below ground for the unconventional development of oil and gas resources cannot be explored in isolation from the conditions that exist above ground. Shale Gas Development in Latin America, supra. Fracking is an activity that is also associated with high levels of risks and challenges, particularly with respect to the environmental and social impact of the activity below ground, which, in turn, has a direct impact above ground.

The impact does not go unnoticed by different stakeholders because it has a subsequent direct influence on the value proposition of this activity, and therefore calls for a different kind of business approach. Such an approach welcomes a broad concept of corporate sustainability that focuses on long-term value creation as opposed to philanthropic activities embedded as part of corporate social-responsibility practices. This approach also requires the type of government regulation that creates conditions for the private sector to operate and create long-term value with clear rules that will operate within a fully functioning governance and rule-of- law system.

The term “fracking wars” represents the “polarized debate between those in favor of this development and those opposed or highly skeptical of it.” Beyond the Fracking Wars, at xxxiii (Erica Levine Powers & Beth E. Kinne, eds., 2013). Fracking “possesses potential environmental risks, such as the draining or polluting of underground aquifers, the spurring of seismic activity (earthquakes) and the spilling of waste products during their aboveground transport.” Edward L. Morse, Welcome to the Revolution: Why Shale Is the Next Shale, 93 Foreign Aff. 3 (2014) (addressing the theme, “Big Fracking Deal: Shale and the Future of Energy”). Confronted with these latent challenges, communities have already begun mobilizing across the Western Hemisphere to impose moratoriums and bans on this activity. In other words, they are denying public consent and thereby canceling their social license to operate. For instance, “from Pennsylvania to North Dakota, more and more people are expressing concern about the environmental problems associated with this production, including local air pollution from drilling sites known as ‘well pads,’ the contamination of drinking water from spills or leaky wells, and noise and dust from trucks serving drilling sites.” Fred Krupp, Don’t Just Drill, Baby—Drill Carefully: How to Make Fracking Safe for the Environment, 93 Foreign Aff. 3 (2014).

Two very important cases from Argentina and the United States are good illustrations of how communities are beginning to take a stand on the shale boom while also canceling a company’s social license to operate. By using the jurisdictional venues, these communities have sought jurisdictional redress to confirm a ban or restriction on this type of extractive operation through the issuing of local zoning laws. Inre Wallach v. Town of Dryden, 16 N.E.3d 1188 (N.Y. 2014) (local municipality exercising its local policy legislative powers to completely ban this activity); Provincia de Rio Negro c/ Municipalidad de Allen s/ Conflicto de poderes, (case of the municipality of Allen in the province of Rio Negro in Argentina). Both cases, regardless of their outcomes, reflect serious concern over the quality of life of towns and their citizens and demand careful consideration of the development and sustainability framework that regulators should follow if they set out to try to fulfill the remarkable economic development promises brought about by the shale gas boom.

In 2013, the municipality of Allen in the province of Rio Negro in Argentina did not succeed with its claim due to the fact that the regulatory authority over hydrocarbons rests in the province of Rio Negro according to the National Constitution. The municipality of Allen ended up exceeding its local policing authority to exercise legislative power over the provincial government’s authority. By contrast, the towns of Dryden and Middlefield in New York State ended up succeeding with their claim when the New York Court of Appeals affirmed a lower court ruling in 2014 and found that the towns did have the authority to ban fracking through zoning laws that foster “the health, safety, morals, or the general welfare of the community . . . [and that] are directed at regulating land use generally and do not attempt to govern the details, procedures or operations of the oil and gas industries.” Town of Dryden , 16 N.E.3d at 1194, 1197.

These concerns are not going away; they are projected to increase as the exploration and development take root in the South American region.

This is the first installment of a two-part series that was originally published by the International Law News, Volume 44, Number 2, 2015. © 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion 35 thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.