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Abstract

This article studies the recognition of Río Atrato as a subject of rights through Judgment T-622-16 of the Constitutional Court, in a case without precedent in Colombian Law. To contextualize this jurisprudential milestone, the authors argue that the current regulations failed to protect the biodiversity and related rights of the inhabitants of the areas near the Atrato River. The methodology involved an analysis of the jurisprudential line of the judgments that preceded the case analyzed, as well as the study of theoreticalpostulates and current environmental regulations from an analytical-deductive approach. As results, the authors present the first jurisprudential line of the Río Atrato judgment, supported by their own reflections that demonstrate the birth of a new stage of environmental law in Colombia.
COMO CITAR ESTE ARTÍCULO:
Vargas-Chaves, I., Rodríguez, G.A., Cumbe-
Figueroa, A. y Mora-Garzón, S.E. (2020).
Recognizing the Rights of Nature in Colombia:
the Atrato River case. Revista Jurídicas, 17 (1),
13-41.
DOI: 10.17151/jurid.2020.17.1.2.
Received August 12, 2019
Approved December 16, 2019
Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
Recognizing the Rights
of Nature in Colombia:
the Atrato River case
Iván vargas-Chaves*
glorIa amparo rodríguez**
alexandra Cumbe-FIgueroa***
sandra esteFanía mora-garzón****
* Doctor of Juridical Science. Professor of Law, Universidad
Militar Nueva Granada, Bogotá, Cundinamarca, Colombia.
E-mail: ivan.vargas@unimilitar.edu.co; ivargas@outlook.com.
Google Scholar. ORCID: 0000-0001-6597-2335.
** Ph.D. in Sociology of Law. Professor of Law, Universidad
del Rosario, Bogotá, Cundinamarca, Colombia.
E-mail: gloria.rodriguez@urosario.edu.co
Google Scholar. ORCID: 0000-0002-4194-1259.
*** Research Assistant. Google Scholar.
ORCID: 0000-0002-8407-2671.
**** Research Assistant. Google Scholar.
ORCID: 0000-0002-5901-2634.
ABSTRACT
This article studies the recognition of
Río Atrato as a subject of rights through
Judgment T-622-16 of the Constitutional
Court, in a case without precedent in
Colombian Law. To contextualize this
jurisprudential milestone, the authors
argue that the current regulations failed to
protect the biodiversity and related rights
of the inhabitants of the areas near the
Atrato River. The methodology involved
an analysis of the jurisprudential line of
the judgments that preceded the case
analyzed, as well as the study of theoretical
postulates and current environmental
regulations from an analytical-deductive
approach. As results, the authors present
the rst jurisprudential line of the Río
Atrato judgment, supported by their own
reections that demonstrate the birth
of a new stage of environmental law
in Colombia.
Key words: Atrato River, Biocentrism,
Constitutional Court of Colombia, Rights of
Nature, Water rights.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
14
El reconocimiento de los derechos
de la naturaleza en Colombia: El caso
del río Atrato
RESUMEN
Este artículo parte por analizar las condiciones de
deterioro ambiental, que desde la Revolución Industrial
se ha generado severos problemas no solo para nuestras
especies, sino también para todos los que habitan
este planeta. La situación ha hecho que los sistemas
legales propendan por el reconocimiento de derechos
de la naturaleza como solución, siendo uno de estos
ordenamientos jurídicos el colombiano. Por ello, este
texto tiene como objetivo analizar los precedentes
jurisprudenciales de la Corte Constitucional que han
logrado este reconocimiento de la naturaleza como
sujeto de derechos, para ello se utiliza la metodología
de línea jurisprudencial, que permite identicar las
tendencias de la Corte Constitucional de Colombia y
demostrar el activismo judicial en esta materia, donde
se da cuenta que es una doctrina del precedente que
se ha ido consolidando en los últimos años, a partir de
la adopción del enfoque ecocéntrico.
palabras Clave: Río Atrato, Biocentrismo, Corte Constitu-
cional de Colombia, derechos de la naturaleza, derechos
del agua.
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
1. Introduction
Biocentrism is the moral theory that situates human beings as a part of Nature in
the same scale of protection; it claims that human and all living beings deserve the
same respect and value just because they are living things (Corte Constitucional,
Sentence C-449 de 2015). On the other hand, ecocentrism suggest that the earth
does not belong to human beings, it is rather us the ones who belong to the many
species that inhabit it. According to this approach, Nature has been recognized
as the subject of protection in order to prevent anthropocentric activities from
generating impact on Nature itself.
This recognition has been given by regulation in line with the recognition of the
rights of Nature in the constitutions of Ecuador and Bolivia, and the jurisprudence
in a large number of judicial sentences all over the world. In the case of Colombia,
there are three judicial sentences that have already recognized certain entities of
Nature as subjects of rights.
Thus, in 2016 the Constitutional Court of Colombia, in its judicial Sentence T-622,
recognized the Atrato River as a subject of rights. In 2018, the Supreme Court of
Colombia held the Colombian Amazon was entitled to be included in the same
category, in its judicial Sentence STC4360-2018; also in that year, the Administrative
Court of Boyacá recognized the Páramo de Pisba as an entity subject of rights1 in its
judicial Sentence of August 9 (File 15238 3333 002 2018 00016 01).
This reality truly demonstrates that the High Courts have started to show a clear
collective consciousness about the protection of certain rights that are conferred
to all and that have an interest to all of us (Rodríguez, 2012). Also, it is clear by
the recognition of the rights of Nature that the ethics of the survival of generations
to come overpowers the human impulse to act against the environment and the
natural resources.
This article analyzes the conditions of environmental deterioration that led the
judicial system to take an active part in the solution of these complications caused
by human beings in the rst place. The basis of the recognition of the rights of
Nature will also be studied, beginning with the evolution at an international
1 However, to date September, 2019 other entities have been recognized as subject of rights, these are: (i) Coello River in
judicial Sentence of September 27, 2018 (File 11001 03 24 000 2012 00076 00, Consejo de Estado. (ii) La Plata River
was recognized as a subject of rights in judicial Sentence of March 19, 2019, Juzgado Municipal de La Plata - Huila. (iii)
Combeima, Cocora and Coello Rivers in judicial Sentence of the May 30, 2019 of Tribunal Administrativo del Tolima.
(iv) The Tribunal Superior de Medellín recognized Cauca River in judicial Sentence of June 79, 2019 (File 05001 31 03
004 2019 00071 01). (v) Pance River in judicial Sentence of July 12, 2019; and (vi) Otún River in judicial Sentence of
September 12, 2019 of the Juzgado 4 Penal de Pereira; (vii.) Río Magdalena in judicial Sentence of October 24, 2019
of the Juzgado Penal de Circuito de Neiva – Huila; Río Quindío in judicial Sentence of December 5, 2019, Tribunal
Administrativo del Quindío – Sala Cuarta de Decisión.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
16
level, referencing the cases of Ecuador and Bolivia and nally undertaking the
case of Colombia.
Afterwards, we will show how precedents have acquired a preponderant role as the
basis of law, which facilitated legal pronunciation based on true judicial activism.
With these preliminary considerations, the case of the Atrato River that led the
Constitutional Court to recognize Nature as a subject of rights is delimited; that was
the judicial sentence that stated the recognition of the rights of Nature in Colombia
through jurisprudence.
Although the mentioned judicial sentence gives such recognition, we found
precedents that show how the judicial sentence becomes an Archimedean point to
past decisions. Thus, the recognition of the rights of Nature had its legal origin not
in the judicial sentence of the Atrato River, but in a series of reections of this High
Court, beginning with its judicial Sentence C-632 of 2011.
To achieve this, after describing the case of the Atrato River, the technique of
elaboration of jurisprudence lines is methodologically used and, in this case, it will
be used according to the referred case as the most recent judicial sentence, to make
a sweep, create a web structure and identify the nodal points that will lead us to
said judicial sentence. Finally, we will present a series of nal conclusions.
2. Preliminary Considerations
2.1 Environmental Deterioration
The so-called Industrial Revolution introduced a series of changes that implied
the economic transition from agriculture to industry, leaving behind agriculture
and production through artisan methods developed for at least three quarters of
the population worldwide. Its origins date back to the mid-eighteenth century in
Great Britain, then it spread to the rest of Europe and the world, bringing about
technological, economic and even social changes that later generated new patterns
of consumption (Allen, 2009).
Thus, the self- consumption models were left behind and the economy was taken to
the next level by focusing on factories and mass production for commercialization.
The Industrial Revolution introduced new materials such as steel in the production
chains, it also increased dependence on energy sources such as coal for steam
engines, which were the standard of this revolution.
However, the process of industrialization has permeated the environment
—in a direct and indirect way— by altering biodiversity and depleting resources
due to the immeasurable use of natural resources, the excessive generation of
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
waste and contaminating substances, and the monopolization of land and seeds
(Vargas-Chaves, Gómez-Rey y Rodríguez, 2018). This phenomenon occurs in
industrialized and not industrialized countries as a consequence of the environmental
passives left behind by industrialized nations (Goudie, 2018).
The inhabitants of said countries suffer the effects of industrialization in the
environment, which affect their quality of life and life expectancy; the documented
number of said cases are innumerable. In Colombia, one can recently mention
the impacts on human health caused by the use of mercury derived from mining
(Rodríguez-Villamizar, Jaimes, Manquián-Tejos & Sánchez, 2015); the use of
glyphosate in crops used for human consumption are the cause of dermatological
problems in children or spontaneous abortion (Solomon, Anadón, Cerdeira,
Marshall y Sanín, 2008), and the use of asbestos in construction causes illnesses
such as cancer (Ossa, Gómez y Espinal, 2014).
There are some impacts that are imperceptible to human beings until the damage is
imminent. In the case of the depletion of natural resources, the situation is different,
since the ones that exploit them knows beforehand that these resources are not
renewable, and the impact caused by their depletion has the potential of making social
and economic systems, which depend on said resources for subsistence, collapse.
The ‘tragedy of the commons’ has symbolized the degradation of the environment.
It strikes when many individuals simultaneously take or use a scarce resource.
According to Elinor Ostrom, there is no better way to manage a ‘common use’
resource by those involved, the market or the State. The reason is that the exercise
of property rights allows access, extraction, exclusion management and alienation
in the management of common property (Ostrom, 2000).
One of the characteristics of the modern industry as an heir of the industrial revolution
has been its persisting tendency to increase the scale of production, which means
that the environmental impacts they produce are also greater (Liverman, 1990;
Panayotou, 1996). Climatic and environmental alterations have, not in vain, given
place to dire predictions about the development of the biosphere in general and the
questions of whether or not the live species of the planet will survive.
Therefore, the concern for the future is justied due to the environmental
modication caused by men because it will reduce even more the access to basic
needs such as potable water, affecting the health of inhabitants of countries under
the threshold of development negatively, and also becoming a true threat to food
security in countries of Africa, Asia and Latin America (Agarwal, 2014).
From the text published by Rodríguez & Vargas-Chaves (2015) one can obtain
certain data. In the report about climatic change in Paraguay, published by the
United Nations through the Economic Commission for Latin America, signicant
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
18
reductions are foreseen in said country, the productivity of family agriculture, with
important social impact on the sanitary eld and a differentiated impact on illnesses
such as dengue, malaria, diarrheal diseases, and acute respiratory infections would
be observed (CEPAL, 2014).
Regarding water resources, the availability of water on a seasonal basis with a greater
variability in precipitation would be affected. The effects of the rise in temperature
accompanied with prolonged dry seasons would also cause damage. In the end, the
cited report highlights that although the impacts to fauna and ora are difcult to
predict, it is clear that some species could be benetted and others could become
extinct (CEPAL, 2014).
Either way, the economic and social costs of the global effects to the environment are
very uncertain, yet the greatest danger resides in the potential of risking development
not only of the poorest countries, but of all of those inhabited by the generations
to come. Therefore, if some countries with resources are able to mitigate the global
effects in the future, none will be able to withstand neither the burden in terms of
loss of lives, nor the costs associated with the devastation that will be brought by the
environmental altercations (Rodríguez & Vargas-Chaves, 2015).
Unfortunately, these countries -those that are able to mitigate the impacts caused
by industrial activity- are those that will continue to have an excessive use of
natural resources and will continue to cause impacts on the environment because
of their pollution. As a consequence, the countries that do not have the capacity
to mitigate the effects, i.e. vulnerable countries, will be the rst to be affected by
the damage caused to the environment due to industrialization (Liverman, 1990);
their communities will also be affected, such is the case of the Colombian Amazon,
which will be studied in the present article.
2.2 The Recognition of the Rights of Nature
The aftermath of the industrial revolution locates us in an atmosphere of
environmental deterioration difcult to repair as a consequence of the decisions
made through policies that have underestimated the place that human beings have
in an environment that does not belong to them. It is also a consequence of the
systems of production and the new technologies that have prevailed against the
conservation of the environment for the sake of the new generations. This way
of acting of humanity is coated with the power to modify Nature according to
its own interests.
Nevertheless, the right to a healthy environment is considered a human right due to
the social demands issued after the severe environmental crisis (Rodríguez, 2012).
As a human right, Sanchez (2012) afrms, the environment must be protected and
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
guaranteed by rightful means and in equal conditions compared to other human
rights, in order to guarantee the respect for human dignity.
In the legal eld, the origins of the recognition of Nature as the subject of rights can
be found in the Declaration of Stockholm of 1972 in which regulations especially
related to environmental issues began to be observed. In the case of Colombia, it
was the 23rd Law of 1973. In 1982, the General Assembly of the United Nations
approved the international declaration of principles, known as the World Charter of
Nature, by which the processes of decision making must recognize that the needs of
all cannot be met unless the ideal performance of the natural systems is protected.
The United Nations Conference on Environment and Development held in Rio de
Janeiro in 1992 also inuenced positively the achievement of the recognition of
the rights stated before. Therefore, there are many countries that have situated the
environment as a superior judicial interest in their internal law, as will be shown in
the following text. The cases of Ecuador and Bolivia have been the ones that helped
to establish the right to Nature as fundamental to life.
Theoretically, several currents of thought have tried to put Nature in the frontline.
For example, the environmental justice movement has been built over the
foundations of environmental ethics, responding to a need for an even distribution
of the burdens that fall upon the environment, to be able to support the opportunity
to be a part of the participative dimension in the decision-making process of
intergenerational equality (Rodríguez & Vargas-Chaves, 2015).
Another valid theoretical approach is given through the principle of responsibility
of Hans Jonas, who by reinterpreting the imperative categorization of Kant,
established a series of guidelines that allow present generations to assume their
responsibility in the conservation of the environment and the natural resources so
as to not compromise them for future generations.
According to the ontological ethic of this author, man is part of the world in all
aspects and, in this sense, he has made decisions apart from the interests that will
characterize it as a being that belongs to it; interests that comprise aspects such as
preservation, welfare, and self-realization of its own species, and also life in its most
ample concept (Jonas, 1985).
Also, the philosophic approach of deep ecology mentioned for the rst time in
1972 by the Norwegian philosopher Arne Naess who asserts that all human acts
must be in harmony with Nature and not opposed to it, for Nature in itself has an
inherent value that does not depend on men.
For this author, human beings must feel connected with and be part of Nature so that
anthropocentric stances are left behind and biocentric egalitarianism be advanced.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
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In other words, for changes to be made with respect to the actual industrial model
of large scale production and immeasurable consumerism because, if these
changes are not made, the destruction of diversity and beauty of the world, and
the possibility of life of the human beings and any other species will be provoked
(Drengson, 2005).
From the perspective of civil responsibility, the recognition of the rights of Nature
is achieved indirectly with the assumption of the responsibility of whomever
contaminates or causes any detriment to the environment. This view derives from a
regime for which commutative justice is a plausible solution between the damage
and to whom the damage is done (Pino, 2013; Ruda, 2008). The rights of Nature
must be read in the face of the obligations imposed in the political constitutions that
recognize them, without confusing them, by any means, with the right recognized
to the human beings to enjoy a healthy environment (Martínez y Acosta, 2017).
If we stand by the aftermath of the severe environmental changes, we will see how
these have been more collective than individual, as a consequence of, what for
Ruda (2008) implies, the interdependence of the natural resources integrated in a
single solution system of continuity or the ecosystem itself. Hence, if it is to attempt
to equate the solution proposed by civil responsibility, the answer transcends the
individual compensation of the damage when this damage is common, and a
reason why it is not always possible to concretely determine the victims affected by
the impacts caused to the environment.
Lastly, on a jurisprudential level, the recognition of the rights of Nature begin to
arise from the judicial activism that judges and High Courts who see the need
to regulate the protection of the environment and the natural resources through
shared responsibility have assumed all over the world. During the last years, one
can evidence the signicant changes in this issue and the important advances in
terms of environmental protection and the right to a healthy environment.
In this sense, the tendency to especially protect Nature through means of judicial
law is now present in different countries. As Acosta y Martínez (2009) explain,
it is a tendency that seeks to instrumentalize actions to crystalize the Universal
Declaration on the Rights of Nature. This is the case in New Zealand, where the
Natural Park Te Urewera was recognized as a legal entity under the Law te Urewera
of 2014, as well as the Whanganui River in Law Te awa Tupua of 2014 and in
December of 2017, Mount Taranaki under the Agreement in Principle signed by the
crown and Ngāti Maru.
Similarly, in India, the Superior Tribunal of the State of Uttarakhand decided on
March 20, 2017 to declare the Ganges River, its basin and tributaries as a living
entity that has rights, with the purpose of preserving and conserving it.; this decision
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
that was overruled by the Supreme Court of India that learned of the case through
an appeal. Ultimately, it is a tendency that is being adopted at a worldwide level.
Finally, another approach to this issue was adopted in the case of the Marañon
River in Perú, one of the most important rivers of this country that, due to the
crude oil spilling, illegal mining and the construction of dams, the ora and fauna
of the Amazon and the inhabitants around this tributary suffered serious damage
(Alegre y Quispe, 2017). Therefore, the President of the Republic, on June 16,
2018 issued the Supreme Decree N° 006-2018-MINAM that establishes the Area of
Conservation of Regional Tropical Forests Seasonally Dry of Marañón to preserve
the biodiversity of the tropical forests seasonally dry in this region.
2.3 The Rights of Nature in the Political Constitutions of Ecuador
and Bolivia
The political constitution of Colombia of 1991 has been important in the protection
of Nature to the point of being called the ecological constitution (Amaya, 2010).
Nonetheless, as Rodríguez (2012) points out, it has been surpassed by the political
constitutions of Ecuador and Bolivia in the recognition of rights, especially because
those countries have stated the right to Nature as a fundamental right, given its
connection with the supreme judicial interest of life (Baldin, 2015; Borràs, 2016).
The preamble of the political constitution of 2008 of Ecuador refers to Nature or
Pacha Mama as a part of people and a vital element to their existence (Gudynas,
2009). In this political charter, the guidelines to strengthen the national unity in
diversity are drawn in order to plan the national development, to eradicate poverty,
to promote a sustainable development, to grant the equal redistribution of the
resources and riches to achieve a well-being, and also to protect the natural and
cultural patrimony of the country.
The concept of rights to a well-being includes the right to water and to a healthy
environment; natural nonrenewable resources as inalienable, indisputable and
indefeasible patrimony, in charge of the State, are found. Likewise, the right to a
healthy environment, article 14, recognizes the right of the population to live in a
healthy environment that guarantees a good living. It is important to mention that
the preservation of the environment is declared as a matter of public interest and
the Ecuadorian state has the duty to promote solutions in the public sector as well
as the private sector (Baldin, 2015; Gudynas, 2009; Rodríguez, 2012).
The recognition of the Rights of Nature in the Constitution is stated in article 71 that
explains Nature, or Pacha Mama as the bearer and maker of life that has the right for
its existence to be respected and preserved, and its vital cycles, structure, features
and evolutionary processes to be regenerated. Every person, community, people or
nationality can demand public authorities to enforce the rights of Nature.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
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Article 72 species the right of Nature to be restored independently from the
obligation of the state and the actors of the civil society —either natural or legal
person— to compensate the individuals or collectivities that depend on the natural
systems affected. Lastly, article 74 describes that communities have a right to benet
themselves from the environment and the natural riches that allow them to live
well and that the environmental services are not susceptible to appropriation; their
production, provision, and use are regulated by the State.
The preamble of the political constitution of Bolivia, promulgated in 2009,
recognizes Bolivians as people of plural composition, inspired by the ghts of the
past, the indigenous, social, and syndicate marches that originated the water wars
and, as of October, the ghts for land and territory. Thus, the state decided to guide
its political charter towards respect and equality considering the search for well-
being and collective coexistence with access to water, work, education, health
and property.
The protection of environment, deemed as crucial for the present and future of all
living things, is emphasized as an important component of the Bolivian constitution.
This body of fundamental principles considers natural resources as a strategic
and public interest that does not only belong to people. It also mentions that the
activities related to natural nonrenewable resources are a need for the government
and a public prot that is fully controlled (Rodríguez, 2012).
In relation to natural resources, the Bolivian constitution establishes in article 33
that the government has the obligation to guarantee their responsible and planned
use in order to promote their industrialization through development and their
preservation for the well-being of present and future generations (Vargas, 2012).
This disposition declares that all people have a right to a healthy, protected, and
balanced environment and that this right allows individuals and collectivities of
present and future generations, apart from other living things, to develop in a normal
and permanent manner (Borràs, 2016).
Article 349 also establishes that natural resources are a property of direct, indivisible
and indefeasible domain of the Bolivian people and that the government is in charge
of their administration since they have a collective interest, The natural patrimony
of public interest and strategic character for sustainable development is considered
in article 346.
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
2.4 The recognition of the rights of Nature in Colombia through the
sentence of the Atrato River.
2.4.1 The value of judicial precedent in Colombia
With respect to legal activity, the 1991 Colombian Constitution establishes in
article 230 that the administration of justice, i.e., jurisprudence, general principles
of law, equity and doctrine, is under the rule of law and that the rest of law sources
are ancillary.
Nonetheless, according to López-Medina (2006), to jurisprudence, an important
value is stated in the legal system of the law in Colombia from the same year of the
judicial enactment of the political charter. In 1995 the Constitutional Court started
to have a strong tendency towards considering jurisprudence as a binding source to
public ofcials, judges and the rest of the citizens. It is evident in judicial Sentence
T-123 of 1995, and later in Sentences such as C-037 of 1996, SU-0477 of 1999 and,
more clearly, in C-836 of 2001, whose article 4 was interpreted in Law 169 of 1896
in order to refer to the comprehension of the judicial precedent that drifts away
from the traditional theories of the sources by claiming that a source is binding in
the legal system (López-Medina, 2016).
Therefore, between 2002 and 2015 the issue of the jurisprudential doctrine is
developed by the constitutional court in two big areas: the rst one refers to the
mechanisms of monitoring and applying effectively the constitutional precedent by
means of the judges, and the second one, from the role of the legislator, refers to the
doctrine of precedence that has been given a higher value, with the sole purpose of
supporting the decongestion of the legal system, and, specically the administrative
contentious jurisdiction, as asserted by López-Medina (2016).
In spite of the mentioned issues and the reiterated emphasis of the Constitutional
Court on the doctrine of precedents, according to the same author, the decisions of
the instance judges have been strong in certain cases, which allows us to nd the
incoherence in regards to the jurisprudential lines in the High Courts, in disobedience
of the vertical precedent, or regarding their own decisions as horizontal precedent.
This has generated the so-called train wreck that describes the institutional conicts
via tutelage (a mechanism included in the Colombian Constitution that protects
the individuals from the denial or infringement of their constitutional rights by any
public authority) in the organisms that solve discrepancies in decisions between the
Constitutional Court and the Supreme Court, or between the Constitutional Court
and the State Council, or between the Supreme Court and the Supreme Council of
the Judiciary (Agudelo-Osorio, 2016).
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
24
Thus, the Constitutional Court has established a series of criteria by which it intends
to maintain its coherence among its decisions, and also to set its validity in the
legal system. Such criteria are: the mechanisms of monitoring and the mechanisms
of sanction for the disregard of the precedent that are found in: (i) the revision,
where the Constitutional Court has the faculty to unofcially revise certain
tutelage and ascertain the fulllment of jurisprudence; (ii) the tutelage permitted
by the constitution and the law to protect fundamental rights where the judges
have reached a decision incoherent to precedent; (iii) the revision of the nullity of
sentences in the Court permitted by decree 2067 of 1991 when a violation of due
process or disregard to the jurisprudential doctrine are faced; and, nally, (iv) penal
sanctions for the disregard of precedent based on facts used by the High Court until
the year 2008 (López-Medina, 2016).
In virtue of the recognition of the doctrine of precedent, the legislator has followed
the tendency included in the laws of what is known as contentious administrative
proceedings (Laws 1295/2010 and 1437/2011) and in the Code of General
Proceedings (Ley 1564/2012) where it is given a strong value in the jurisprudence
of the legal system.
2.4.2 The Case of the Atrato River
The tutelage, that successfully made the Constitutional Court recognize the Atrato
River as a subject of rights, was led by the Center of Studies for Social Justice “Tierra
Digna”, in representation of the Consejo Comunitario Mayor de la Organización
Popular Campesina del Alto Atrato (Cocomopoca), the Consejo Comunitario Mayor
de la Asociación Campesina Integral del Atrato (Cocomacia), the Asociación de
Consejos Comunitarios del Bajo Atrato (Asocoba), the Foro Inter-étnico Solidaridad
Chocó (FISCH) and others, against the Presidency, the Ministry of Health and Social
Protection, the Ministry of Environment and Sustainable Development, the Ministry
of Mines and Energy, the Ministry of Agriculture, the Ministry of Defense, the Ministry
of Home, City and Territory, the municipalities of Acandí, Bojayá, Lloró, Medio
Atrato, Murindó, Quibdó, Vigía del Fuerte, Turbo, Riosucio, Río Quito, Unguía,
Carmen del Darién, Bagadó, Yuto de Carmen de Atrato, the Center of Studies for
Social Justice “Tierra Digna”, the Corporation for sustainable development of the
Urabá – CORPOURABÁ, the Autonomous Regional Corporation for Sustainable
Development of Chocó – CODECHOCO and others.
This was done for the protection of their fundamental rights to life, health, water,
food security, healthy environment, culture, and the territory of ethnic communities
and the petitioners. A series of orders and measures were requested to allow
articular structural solutions to respond to the severe crisis in the matters of health,
socio-environmental crisis, ecological crisis and humanitarian crisis that are found
in the Atrato River basin, its tributaries and adjacent territories, derived from illegal
mining and the inaction of the authorities.
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Because of this, the Court posed the following judicial issue: Due to the activities of
illegal mining in the basin of the Atrato River (Chocó), its tributaries, and adjacent
territories and the omission of the defendant government authorities (in charge of
taking care of this situation at a local and national level), there is a violation of
the fundamental rights to life, health, water, food security, healthy environment,
culture, and territory of the ethnic communities as petitioners.
In order to settle this issue, the Court began by considering that, according to article 8
of the Constitution, the government and the society have the fundamental obligation
to care for the natural and cultural riches, as well as to protect the environment with
the purpose of preventing, and controlling the factors of environmental deterioration,
seeking their conservation, restauration and sustainable development.
Additionally, the Court asserts that the protection of forests, rivers, food sources,
and biodiversity as elements of a healthy environment have a direct relation and
interdependence with the guarantee of the rights to life, health, culture and territory
as biocultural rights. Thus, the elements of this approach have an intrinsic relation
among Nature, culture and the diversity of the human species as a part of Nature
and the manifestation of multiple forms of life, by which the conservation of
biodiversity requires the preservation and protection of all ways of life and cultures
that interact with it.
Consequently, after evaluating the proof of the case and the judicial inspection of the
Court with the petitioning communities and other government entities, Codechocó,
Corpourabá, la Defensoría del Pueblo, la Procuraduría General de la Nación,
la Contraloría General de la República, the experts of the Universities of Cartagena
and Chocó, international organisms such as the UN and non-governmental
organizations such as Dejusticia and WWF Colombia, among others. The court
conrms in situ the extensive use of heavy machinery and toxic substances such as
mercury in the process of gold extraction from the Atrato River and its tributaries.
After understanding the presence of illegal mining activities in the Atrato River basin
and its tributaries, as well as the direct and indirect effect in the fundamental rights
to life, health, and a healthy environment of the ethnic communities that inhabit
this region along with the lack of scientic certainty, the Court determines that the
case requires the precautionary principle in environmental law. The protection of
the right to health is represented in the following actions: (i) to prohibit the use of
toxic substances such as mercury in activities of mining whether legal or illegal;
and (ii) to declare the Atrato River as a subject of rights that imply its protection,
conservation and preservation.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
26
Also, the Court considers that the activities that contaminate and severely threaten
water resources and forests due to illegal mining directly affect the availability,
accessibility and sustainability of food production for the ethnic communities that
inhabit the Atrato River basin and its tributaries.
With respect to the responsibility of the authorities towards preventing the violation
of the rights to the petitioners, the Court establishes that the neglect in taking effective
action to stop the activities of illegal mining has generated a severe humanitarian and
environmental crisis in the Atrato River basin (Chocó), its tributaries and adjacent
territories. The national government and its mining and environmental authorities
are responsible for the eradication processes of illegal mining and, in cases of legal
mining, for the previous consultation with ethnic communities that can be affected
in their collective territory or territories and their traditional ways of life.
Thus, the Court considers that there is a violation to the rights to territory and
culture of the ethnic communities in the Atrato River basin as a consequence of the
implementation of the activities of illegal mining.
As previously stated, the Court decides to declare the existence of a severe violation
of the fundamental rights to life, health, water, food security, a healthy environment,
culture and territory of the ethnic communities that inhabit the Atrato River basin
and its tributaries. It also recognizes the Atrato River, its basin and tributaries as an
entity subject of rights, which involves its protection, conservation and preservation.
The recognition of the rights of Nature is based on overcoming its utilitarian
vision, which is limited and disproportionate. In this context, judges and High
Courts in Colombia have decided to judge environmental conicts because
entities are subjects of law. The explanation for this intervention lies in the fact
that environmental law from a traditional perspective has failed (Gómez-Rey,
Vargas-Chavés y Ibáñez-Elam, 2019).
Unlikely, according to authors as Wei-xian (2010), the rights of Nature are only
ction of rights, as well the rights of future generations. This ction is the result
of the shape of thinking to solve the environmental crisis and it also undermines
the traditional theory of new rights. In the context of aliened language in the
postmodern semantics, the judges must prudently use “right” as term and concept
(Wei-xian, 2010).
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
3. Methodology
The jurisprudential line, according to López-Medina (2006), is the not so abstract
idea found in a graph, in which a question or judicial problem is depicted, well
dened and followed by its possible answers that generally are bipolar stances, for
the exercise of traceability of the sentences to be achieved, so as to allow one to see
the tendency in matter of the decisions made in one or more approaches to cases of
the same judicial fundamental problem.
Methodologically, the research that precedes this article was based on the study
of a jurisprudential line about a judicial problem identied by a question that,
according to López-Medina (2006), leads to a not so abstract idea —for example,
the extent of a right or a case with very specic characteristics— as it was to
determine the ecocentric approach of the Constitutional Court. In this sense, the
exercise of traceability of the sentences allowed us to identify through the nodal
points its tendency in decision making.
Firstly, it is necessary to emphasize that this research used an analysis technique
that led us, in the rst place, to nd an Archimedean point, which is the most recent
Sentence (T-622 of 2016) of the Court about the judicial problem. That sentence,
recognized the Atrato River as a subject of rights. In fact, our research question that
deals with the possibility of creating a jurisprudential line of the same sentence that
marked the beginning of the recognition of the rights of Nature in Colombia was
developed from the same sentence.
Secondly, we used the before mentioned method that deals with process of
engineering the inverse line and consists of nding, through the Archimedean
sentence, those cited sentences related to the research subject.
Finally, the creation of a ‘jurisprudential web’ to identify the nodal points which
lead us to the landmark sentence in which the legal reasoning is based upon,
and the sentence that founded it, which is the one that dealt with the issue in the
rst instance.
Thanks to this ‘web’, we were able to identify the sentence that solved the judicial
problem and, through the graph, the tendency of the Court. This method is useful
because it allows the researcher to arrive at the consolidating sentence of the line,
where the Court reafrms its position, and the modifying sentence, where the Court
steps away from its initial position, and also the reconceptualizing sentence, that
takes various different concepts and unies jurisprudence in a certain issue.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
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4. Results
4.1 Archimedean point
Based upon the methodology proposed, it was necessary, in the rst place, to nd an
Archimedean point for the judicial problem posed, that is, the most recent sentence
that addressed the subject, which was in this particular case T 622 of 2016, wherein
Recognizing the Rights of Nature in Colombia: the Atrato River case
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
the Atrato River was recognized as a subject of rights and marked a turning point in
the recognition of the rights of Nature.
This sentence, as previously stated, discussed the case of the Afro-descendant
and indigenous communities that live in the riverbeds of the Atrato River, its
tributaries and the territories nearby in the Chocó District, and that live on artisan
mining, agriculture, hunting and shing, which has existed for many centuries and
guarantees the complete supply of their dietary needs.
However, illegal mining is practiced in a large scale by certain armed outlaw
groups that produce serious contamination of this river and its tributaries, a
scourge that has not been stopped due to the omissive attitude of the government.
Thus, the fundamental rights to life, to health, to water, to food security, to a clean
environment, to culture, and to territory of the ethnic communities inhabiting the
basin of the Atrato River and its tributaries, have been affected.
Therefore, the Court, after considering that the activities of illegal mining can
undermine health and the environment, and that there exists scientic uncertainty
of the adverse effects of the toxic substances used for this activity, nds it appropriate
to apply the precautionary principle, to protect the right to a clean and healthy
environment, and to protect the wellbeing of the people that inhabit this territory.
They also decided to ban the use of toxic substances, such as mercury, in the
activities of legal or illegal mining, and recognized the Atrato River as a subject of
rights, for its protection, conservation and preservation.
In this sentence, the Court cites certain decisions in which it had addressed the
issue in a general manner, without recognizing a certain entity as a subject of rights,
but that serves as theoretical foundation to justify the decision made and construct
the citational niche.
4.2 Study of the Jurisprudential Line
In Sentence T 622 of 2016 the Court recognizes a particular entity of Nature
as a subject of rights to guarantee its protection, conservation and preservation:
the Atrato River, and its tributaries. However, the High Court had been adopting
the judicial approach of biocentrism during past decisions, as can be seen in
their citations. The court has adopted three approaches to fulll the constitutional
disposition to protect the environment: anthropocentrism, biocentrism, and
ecocentrism. Anthropocentrism was adopted during the initial decisions about
this kind of protection, biocentrism was adopted during the rst decade of the
2000s, and ecocentrism was used to base decisions referring to Nature as a good
to protect by itself.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
30
Similarly, Sentence C 449 of 2015 contains an action of unconstitutionality for
which the partial unenforceability of sections 3 and 4 of Article 42 of Law 99 of
1993 is declared. It refers to the retributive and compensatory taxes because, for
the petitioner, these dispositions violated constitutional article 338 since only laws,
ordinances and agreements can establish the taxable bases and tariffs of taxes.
Therefore, it cannot be done by an administrative authority as it is the case of the
Ministry of the Environment and Sustainable Development, which disregards the
principle of tax legality in an ample sense.
Then the Court establishes the following judicial problem: “Does article 42, of
Law 99 of 1993, partially violate the principle of tax legality as rendered in article
338 of the Constitution by delegating the denition of annual bases on which the
calculation of the depreciation of natural resources is based (section 3) and the
power to apply the method (as provided in section 4) for the denition of the costs
on which the base would be xed of the amount of taxes of the compensatory taxes
for environmental contamination is based, to an administrative authority, when
according to the law it can only determine the taxable bases and rates of the taxes?”
(C 449 de 2015).
Hence the High Court proceeds to declare that the recognition of Nature has
been historically slow and difcult; particularly in Colombia, great progress was
made in the Constitution of 1991 that adopted anthropocentrism, biocentrism, and
ecocentrism as the different judicial approaches to protect the environment through
legislation and jurisprudence.
Anthropocentrism perceives human beings as the most valuable and the sole reason
for the existence of the legal system, because they are the only rational worthy
and complete beings in the planet, which situates natural resources only as simple
objects at their service. Therefore, the most important is to guarantee the existence
of the human species.
Biocentrism conceives that Nature does not belong exclusively to the human beings
that inhabit it, but to future generations as well, and to humanity in general, thus,
its protection makes sense because it guarantees the survival of the human species.
Ecocentrism proposes that earth does not belong to human beings, but rather the
opposite just like the other species, and human beings are nothing more than an
event in the long chain of evolution of the planet. Therefore, Nature is the authentic
subject of rights that must be recognized by the states and exercised through the use
of tutelage of legal representatives.
Then, the Court proceeded to study the guiding principles of environmental law,
including the principle of sustainable development, i.e., the one who contaminates,
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Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
must pay compensatory nes, the principle of prevention, and the precautionary
principle to refer to the compensatory taxes for environmental contamination.
They are meant to aid in the recovery of the costs generated by the uses of the
atmosphere, the soil and the water allowed by the environmental authorities to
introduce or dispose waste, either from agriculture, mining or industry, black
waters or of any origin, smoke, fumes and toxic substances produced by anthropic
activities, or promoted by man, or the economic activities or services whether or
not lucrative. Hence, the High Court decided to declare sections 3 and 4 of article
42 of Law 99 of 1993 constitutional.
In Sentence T 080 of 2015 the Court reviewed a tutelage against the judicial
sentence of the Superior Court of the District of Cartagena that underestimated the
claims of the popular action that asked for the ecological damage to be recognized,
because it was produced by the Dow Química company of Colombia S.A.
Such company dumped a chemical component called “Lorsban” that has as an
active element “Chlorpyrifos” in the Bay of Cartagena in June of 1989, therefore,
it should pay a compensatory ne; the Court studied if the environmental damage
had been caused by this component, although it was biodegradable.
Accordingly, the Court emphasizes that the Colombian constitution considers Nature
as a transversal element thought as important because of their interdependence
with all living things on earth. It also recognizes human beings are part of the
global ecosystem rather than dominant beings or users. Thus, jurisprudence of this
entity sustained that Nature does not encompass exclusively the environment and
surroundings of human beings, but it is in itself a subject of its own rights and as
such, those rights must be protected and guaranteed.
Also, the Court establishes that the environment in the Colombian constitution has
acquired relevance because it represents not only an objective of principle in the
social rule of law, but also a fundamental right for its relation to life and health,
and a collective right that jeopardizes the community, which represents a duty to
all. Furthermore, because it is an environmental affectation that generates legal
responsibility for the damage, even if the ecosystems have the way to recover, not
accepting it constitutes a lack of environmental protection under the excuse that
Nature will recover and reaching its balance eventually.
Hence the Court decided to revoke the sentence passed by the Superior Court of the
District of Cartagena that underestimated the claims of the tutelage and disregard
it instead, order the community to be part of the recovery of the affected zones,
and make the Dow Química company recognize in a newspaper the human and
institutional aws caused by the dumping of the chemical substance in the Bay of
Cartagena, explain the circumstances, ask for public forgiveness for the damages,
and commit to never repeat the action.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
32
Recently, in Sentence C 123 of 2014, the Court studied an action to declare article
37 about the legal prohibition of Law 685 of 2001, that issues the Code of mining
and dictates other provisions unconstitutional as well as article 2 of the regulatory
decree 0934 of 2013 because they violate articles 1, 2, 79, 80, 82, 288 and 313,
sections 2, 7 and 9 of the Constitution. It happens every time it disregards the duties
assigned to the municipal councils, which causes the violation of the principle
of autonomy; additionally, this article makes it impossible to fulll the duty of
protecting the environment by way of the municipal councils.
In fact, the Court poses a judicial problem: if the legal prohibition of municipal
and district councils regarding the ability to exclude mining from their territories
does not permit their land development plans to address such issues apart from not
permitting the district and municipal authorities to regulate the uses of the soil in
their own territory. Consequently, it is impossible to protect the environmental and
cultural patrimony of the Nation.
Thus, the High Court established that the concept of environment is complete
because it involves different elements that participate in its surroundings that
allow the development of the life of human beings, ora and fauna. This led to
the protection not only of the environment, but also of the elements that are part
of it, no matter if they are useful or necessary for the development of human life,
such that the protection of Nature overcomes the utilitarian notions, and becomes
respected, and the city is founded on ontological conceptions.
Consequently, as the Court notes, the constitution assigned the government the
duties of (i) protection of the environment’s diversity and integrity, (ii) safekeeping
of the nation’s natural resources, (iii) conservation of areas considered of special
importance, (iv) promotion of environmental education, (v) planning management
and use of the natural resources based on the principle of sustainable development,
(vi) prevention and control of environmental deterioration, (vii) sanction and
demand of the environmental damages repair, and (viii) cooperation with other
nations in the protection of ecosystems located near the frontiers.
Because of this, when dealing with mining activities, the license given does not
represent the end of the environmental protection process of the project, or mere
environmental protection because it originates the fulllment of the requirements
and conditions stated in the license in dealing with environmental effects. Therefore,
the Court declares the norm demanded, constitutional.
In Sentence C 632 of 2011, the Court studies whether or not to declare constitutional
article 31 that refers to the compensatory measures taken and paragraphs 1 and 2 of
article 40, that refer to the sanctions established in Law 1333 of 2010 that establishes
the procedure for sanctioning environmental damage and other provisions.
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In this case, the petitioner bases his claims on the fact that the afore mentioned
provisions violate the constitutional principle of non bis in ídem of article 29 since
it is an environmental violation, which generates two different processes with the
same claim, i.e., twice the compensation for the damages caused: one assigned
by the administrative environmental authority, and the other by the competent
judicial authority.
This generates the prot without just cause of the administration by receiving twice
the compensation of the damage and a violation of the principle of interdiction of
arbitrariness as indicated in the preamble and in articles 1 and 2 of the constitution.
The attributions of jurisdictional duties of the administrative authorities without the
full compliance of the presumed premises established in the constitution for this
matter must be added.
Hence, the Court poses the judicial problem in the present case to establish whether
or not the legislator, by including the compensatory measures in the penalty system
and by assigning the administrative authorities the duty to adopt them, disregarded
the guarantees of non bis in ídem, the principle of legality of the sanctioning and
the principle of legal reservation, as well as the principle of separation of powers”
(C 632/11).
The court indicates that the objective to have a healthy environment is justied
in relation to the right of life, right to health and physical integrity of the people
because the authorities around the world have to provide legal mechanisms, even
preventive ones, and to act in situations of risk or environmental damage, as well as
to recognize the responsibility to take care of toxic effects not only for the victims,
but also for the ecosystem itself. Hence, it is necessary to recognize that Nature
is not only seen as the environment and surroundings of human beings, but as a
subject of its own rights that must be protected and guaranteed.
Thus the High Court indicates that since the administrative eld has the power
to impose penalties, it is oriented to the protection of the organization and
performance of the jeopardized or disregarded public interest. That is why they
are completely capable of adopting repressive measures against the administrated
parties, and against the public ofcials, when dealing with contrary conducts of the
legal system, always seeking for the non-violation of the constitutional guarantees
to due process. Therefore, the Court decided to declare the mentioned articles
as constitutional.
The Constitutional Court, in Sentence 595 of 2010, studies whether the paragraph
of article 1 about the presumption of guilt or deceit for environmental infringement,
and paragraph 1 of article 5 about the weight of the proof that the environmental
infringer has to outweigh the presumption of guilt or deceit found in law 1333 of
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
34
2009, which establishes the procedure to penalize environmental infractions and
dictates other provisions are constitutional.
The petitioner points out that the sections cited violate articles 29 and 4 others of
the Constitution by establishing an administrative procedure to penalize infringers
based on the presumption of guilt or deceit of the investigated —the presumed
infringer— because the principle of presumption of innocence is applied, and the
principle of supremacy of the constitution (Article 4) is disregarded by foreseeing
that, in a penalty proceeding, the government does not have to outweigh the
presumption of innocence and that it is the accused who has to outweigh the
presumption of guilt.
In virtue of the claims made, the Court claims that the judicial problem to be
resolved is whether or not the paragraph of article 1 and the paragraph 1 of article
5 of law 1333 of 2009 violate the principle of presumption of innocence in article
29 of the constitution, by presuming the guilt or deceit of the infringer and investing
in the weight of the proof that the administrative environmental penal law dictates.
To solve this, the Court indicates that the constitution of 1991 attributes a special
relevance to the environment as a good to be protected and because of its relation
to the living things that inhabit the earth. This is seen in the fact that the environment
is a legal asset constitutionally protected through the actions of the government and
the concurrence of people, society and the rest of the authorities.
All stated before, since conservation and the perpetuity of humanity depend on the
unconditional respect to the environment and its unyielding defense because it is
an indispensable element that allows and guarantees existence and full life. Thus,
the importance of a healthy environment means renouncing to life itself, and the
survival of present and future generations is ignored.
Therefore, the Court considered the presumption of guilt and deceit in environmental
terms not contrary to the Constitution because it does not exclude the government
from an active presence in the process of environmental sanctioning nor does it
give the infringer the title of alleged perpetrator. Meaning that the environmental
authorities are obliged to verify the conduct, and, if in the case of an environmental
infraction, a possible exoneration of responsibility.
For the Court, the basis of all is the precautionary principle, from which not only
answers are given until there are consequences for the actions taken, but where an
active position of anticipation is taken, to prevent future environmental affectations
to optimize the surrounding natural life.
Consequently, the High Court decided to declare paragraph of article 1 and the rst
paragraph of article 5 of Law 1333 of 2009 constitutional.
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Before this decision, the Court took the issue of environmental protection in Sentence
C 339 of 2002, where a claim of unconstitutionality was led by a citizen against
article 3, the part about general regulation; article 4, of general regulation; article
18, the part about requirements for foreigners; article 34 about anti-mining zones;
article 35 partially about restricted zones for mining; and, article 36, partially about
the effects of exclusion or restriction of Law 685 of 2001, “by which the Charter for
Mining and other provisions is issued”.
For the petitioner, said provisions violate the preamble and articles 1, 2, 4, 5, 8,
11, 12, 13, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 38, 44, 58, 63,
65, 72, 79, 80, 82, 84, 85, 93, 95, 150, 158, 209, 230, 277, 288, 313, 333, 334,
360 and 366 of the Colombian Constitution, in the sense that they disregard that
environmental laws are of preferential application and are related to the duty of
protection, preservation and conservation of the environment, added to the fact that
the claims made against said articles sponsor the destruction of the environment,
among other claims made.
In this context, the Court establishes in its considerations that the constitution of
1991 has among its primary objectives, the protection of natural resources and
a healthy environment (articles 8, 79 and 80 of the constitution) because the risk
that humanity must face is not only the destruction of the planet, but of life itself.
Considering that the human species is a product of the evolution that the planet has
achieved over millions of years, if we continue destroying the biosphere that has
permitted this evolution, we are destined to, not only the loss of quality of life of
the present and future generations, but also the disappearance of the human being.
Thus the High Court found as an obligation of the government, relating to the
protection of the environment, the following three aspects: (i) the ethical standpoint
that begins using the principle of biocentrism that considers human beings as part of
Nature, giving both the same value; (ii) the economic standpoint, that understands
that the productive system cannot extract resources or produce waste without limits
since it must adjust to the social and environmental interests and to the cultural
patrimony of the nation (articles 333 and 334); and (iii) the judicial position that
states that the law and the government must protect the dignity and liberty of a human
being over other human beings and must also look out for the depletion of natural
resources, that requires new values, norms, judicial techniques, and principles that
put collective values above individual values (articles 67, subparagraph 2, 79, 88,
95 section 8).
What serves as the foundation for the Court to declare articles 3, 4, 18, 34 -sections
1, 2, 3 y 4- and 35 of Law 685 of 2001 that issues the Code of Mines and where
other provisions are dictated are constitutional, and that the expression of article
35, and a part of article 36 are unconstitutional.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
36
Similarly, Sentence C 495 of 1996, where the Court studies whether or not articles
42, referring to compensatory taxes on the direct or indirect use of the atmosphere,
water or soil, to introduce or dispose of waste and toxic substances from anthropic
or man-made activities, or economic activities or of service, either protable or not,
and paragraph; article 43, referring to the taxes for the use of water and its paragraph;
and article 46, section 4 of the patrimony and revenue of the autonomous regional
corporations of Law 99 of 1993, and article 18 of the Executive order 2811 of 1974
that refers to the use of the atmosphere, the rivers and soil for the uses mentioned.
To establish that the articles are unconstitutional, the petitioner says that the
provisions cited, violate what has been established in article 150, section 11, and
articles 154, 338, 359 and 363 of the Constitution, since the legislative initiative is
of scal Nature, apart from the fact that national revenue cannot be assigned to the
patrimony of the Autonomous Regional Corporations. Also, the petitioner presents
that by taxing four times, and simultaneously, the use of water in the events signaled
by the law, a tributary inequity is imposed.
Finally, the petitioner upholds that the norms demanded violate the principle
of legality in the sense that they are not rightfully determined, not including the
elements of obligation, as well as the system and method to x them.
Based on this, the Court studies whether or not the norms are constitutional,
beginning with the afrmation that it is undeniable that today, to be able to
determine the judicial principles, the need to protect the environment and to
give people their related rights cannot be disregarded. Thus, the Court found that
environmental resources are an issue of vital importance in the constitution, which
is why they constitute a patrimony to all the people of Colombia, and that it is
the responsibility of the head of the state to plan and use the natural resources to
procure a sustainable development and of the citizens to promote its conservation
and preservation.
It is why the High Court deduces that authorities can issue norms relating to the
protection of the environment or seeking to reestablish it, when possible, thus the
compensatory rates of the demanded norms represent with certainty the generation
of economic costs for those that cause harmful effects to Nature. This is, a corrective
measure to heal the affectation to the environment produced by the usage of the
natural resources, which relates with the purposes of the Constitution.
In fact, the Court nds that the rules of article and its paragraph, and number 4 of
the article 46 of the Law 99 of 1993 are constitutional because they adjust to the
constitution, and it represses to rule about article 18 of the executive order 2811
of 1974.
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Sentence C 423 de 1994 was interposed by a citizen to demand the articles 34
about the Corporación para el Desarrollo Sostenible del Norte y Oriente de la
Amazonía, CDA; 35 of the Corporación para el Desarrollo Sostenible del sur de la
Amazonía, CORPOAMAZONIA; 36 referring to the Corporación para el Desarrollo
Sostenible de la Sierra Nevada de Santa Marta, CSN; 37 of the Corporación para
el Desarrollo Sostenible del Archipiélago de San Andrés, Providencia y Santa
Catalina, CORALINA; 38 of the Corporación para el Desarrollo Sostenible de la
Macarena; y 41 about the Corporación para el Desarrollo Sostenible de la Mojana
y San Jorge, CORPOMOJANA of Law 99 of 1993. It states “by which the Ministry
of the Environment is created, the public sector is reorganized and in charge of
the management and conservation of the environment and the natural renewable
resources, the National Environmental System (SINA in Spanish) is organized, and
other provisions are taken.”
As a basis, the petitioner manifests that Congress over passed its constitutional
duties, found in article 150, in that, it does not have the faculty to create regional
corporations and less so, the autonomy of the development of their activities.
Also, the creation of these new entities favors the centralism that the framers of the
constitution tried to stray away from.
Therefore, to solve this action of unconstitutionality, the Court states that article
150 of the Constitution establishes the general duties of congress, that it nds a
limitation in the same dispositions of this article. Also, that the protection of the
environment can be achieved by two means: (i) by way of the State, that uses civic
participation and the fulllment of its constitutional duties, apart from the creation
of public policy that pursue this purpose, and (ii) by way of the judicial, by means
of the implementation of judicial mechanisms for preservation or sanction.
However, the protection of the environment nds its meaning because it guarantees
general prosperity and the public interest, in the understanding that natural resources
are primordial to the prevalence of the population of Colombia and the entirety of
humanity. This is the reason why the Court nds as a given that the articles pertain
to the Constitution and declares them constitutional.
Hence, the line begins at the judicial Sentence T 411 of 1992, where an action of
protection by a citizen is presented in his condition as legal representative of the
Industria Molinera Granarroz Ltda.,and as a natural person, based on the following
facts: in the development of the activity of the Mill, specically with the management
of the residues of raw materials —rice hulls— that were abandoned and afterwards
burnt, pulmonary and respiratory illnesses originated in the inhabitants of the area
surrounding the mill, reason that led the mayor of the city to decide to close the mill
down, due to the affectation to the health caused by this activity, and the effects on
the environment, for the mill did not possess an operating license.
Iván Vargas-Chaves, Gloria Amparo Rodríguez, Alexandra Cumbe-Figueroa y Sandra Estefanía Mora-Garzón
38
Therefore, seeing this, the plaintiff asks the judge, using tutelage, to prevent the
mayor from closing down the mill because of the quantity of losses and damages
that closing down the mill could cause to the legal entity, an also the violation of the
25th article of the Colombian constitution relating to the right to work.
However, the judge did not grant the tutelage because he considered that there was
no violation to the right to work, and indicated that the public interest is above the
private interest.
Thus, the Court poses the question that the judicial problem of the case is:
To determine if a violation to the right to work of the plaintiff does exist when the
mayor orders to close down the mill? For this case, the Court determined in rst
place that, although the individual does possess rights that must be protected, such
as described in the constitution, here the problem must be looked at in a social
dimension, for, although the rights, guarantees and duties should be protected, in
them, the protection of the environment, for it is vital to human beings, such as art
and culture, for it belongs to the people that there in inhabit it, but also belonging
to the generations to come, reason for why it must be protected and conserved for
the following generations that will later inhabit it.
The Court also recognized that, man is not the omnipotent owner of the environment,
being able to do as he pleases with it, but that, on the contrary, man is part of
Nature. Therefore, the Court decided to verify the judicial sentence given by the
prior judge, where the tutelage was not granted in reason to the right to work.
We emphasize that the Constitutional Court in recent years has protected Nature
as a whole, based on the recognition of its rights. However, with the judgment of
the Río Atrato the Court made further progress by declaring it as a subject of rights.
An unprecedented fact because it is an entity of Nature. The key issue of this ruling
is the importance of the river for the ecosystem balance and the survival of people.
This precedent has served as support for the judges of different instances to declare
other entities as subjects of rights. This has opened the discussion on the role of
judges in these matters, as well as on the concept of subjects of law. Finally, it is
necessary to indicate that this new paradigm represents a very important task for the
legislator in Colombia.
After all that has been stated, the question that should be answered is the central
theory of the rights of Nature. Is it necessary to give legal identity or fundamental
rights to the elements of the environment to be able to fulll the constitutional
dispositions of protection, conservation and reasonable planication of
the environment?
Recognizing the Rights of Nature in Colombia: the Atrato River case
39
Revista Jurídicas, 17 (1), 13-41, enero-junio 2020
Conclusions
In virtue of the afore stated, it is necessary to understand that the present investigation
does not intend to provide a solution for the issue of the protection of the
environment through judicial ordainment to obtain its conservation, preservation
and/ or restoration like so, but it is the result of the inquiry of the constitutional
jurisprudence of Colombia referring to Nature as the subject of protection using the
approaches developed by the same jurisprudence, which are anthropocentrism,
biocentrism and ecocentrism.
Therefore, a major breakthrough related to the protection of the environment is
evidenced around the world in statutory terms, especially in Colombia, that as
a pioneering country, has adopted an ecocentric judicial approach to ensure the
fulllment of the constitutional obligation of the State and society in itself to procure
the care of natural and cultural riches and also to protect the environment and
propend for its conservation, restoration and sustainable development.
This approach, as it was seen in the development of the investigation, understands
the earth as not belonging to the human beings, but as the human being belonging
to Nature such as any other species, thus, human beings cannot be the owners of
other species, or of the biodiversity, or of the natural resources or of the destiny
of the planet. Therefore, it was determined that an effective measure to protect
the environment is to declare it a subject of rights and as such, for them to
be guaranteed.
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