By Ariel Pérez Castellón, lawyer AIDA

The current Bolivian Constitution presents important contradictions in its regulatory text. For example, while recognizing rights advanced as the most fundamental right to water, healthy and balanced environment, and the rights of future generations, while holding a vision of deeply extractive development .

One of the greatest expressions of that vision is the rule that "the exploration, exploitation, refining, processing, transportation and marketing of non - renewable natural resources have the character of state necessity and public utility." Note that this standard is unprecedented in previous constitutional texts (Center for constitutional Studies, 2013) .

Let 's do an analysis of this standard. The public utility refers to that which is of benefit and benefit to the community , and in the Bolivian right there on the condition that this utility is qualified by a special law, and for each case. Being public utility legal justification to limit or restrict the right of ownership, through expropriation or other legal restrictions, the legislator must clearly and coherently justify the declaration of public utility .

However, in Bolivia, the current Constitution exempts mining activities (such as mining and oil industry) of the need for this prior legal qualification as their public interest is broadly recognized and unrestricted by constitutional mandate.

This means that those who drafted the Constitution wanted to pave the way for the expansion of mining activities in the country. Rate constitutionally public utility activities related to non - renewable natural resources, means giving them the maximum state interest, the highest priority over other activities developed in the (agricultural, livestock, conservation, tourism, etc.) territories, to the point to empower the expropriation of land to make way for extractive activities. In short, the public utility of the extractive activities is one of the most powerful tools for deepening extractivismo legal tools in the country .

The limits of public utility extractive

In many cases, extractive activities generate or may generate severe social and environmental damage , for example in fragile ecosystems, protected areas or indigenous territories. But beyond the absurdity of considering that these activities are of benefit of the community as a general rule, it should be emphasized that the public interest is not an absolute category .

The first function of the Bolivian state is to protect and guarantee the rights of people . This is recognized by Article 9, paragraph 2 of the Constitution when disposed between the aims and essential functions of the state "ensure the welfare, development, security and protection and equal dignity of individuals, nations, peoples and communities ... "; and "ensure compliance with the principles, values, rights and duties recognized ..." in the Constitution (Article 9, paragraph 4).

Moreover, the Constitution recognizes the strength and constitutional status of treaties on human rights ratified by the country , and if they recognize more favorable than those contained in the formal text of the Constitution rights, their preferred application and therefore the supra - constitutional nature of those rules (Article 256).

International human rights instruments ratified by Bolivia as the American Convention on Human Rights (Law No. 1430, 11/02/1993) recognize the principle "pro homine" (see Article 29 of that instrument). This means that when there is a case that could compromise the human rights of a person or community, look for the source and norm to provide the most favorable solution to the human person, their rights (Bidart Campos, 2002).

Consequently, application of constitutional norms and the principle "pro homine" part of our legal system, provided there is a collision between the public utility of an extractive activity (for example, operating a mine in an area water deficit) and the imperative of protecting human rights could be violated by such declaration and activity (for example, the threat of violation of the right to a healthy environment or the most fundamental right to water in the community that may be affected by mining) activity, must prevail with all rigor preservation and constitutional guarantee of the right of the person or community.

We hope these constitutional rules and principles that emphasize above all the life and dignity of people and communities, are no strangers to public servants, extractive companies and civil society, so that we can contribute so set your implementation.