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Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and Legal Subjects

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Abstract

The recognition of rivers and related ecosystems as legal persons or subjects is an emerging mechanism in transnational practice available to governments in seeking more effective and collaborative natural resource management, sometimes at the insistence of indigenous peoples. This approach is developing particularly quickly in Colombia, where legal rights for rivers and ecosystems are grasping onto, and evolving out of, constitutional human rights protections. This enables the development of a new type of constitutionalism of nature. Yet legal rights for rivers may obscure the rights of indigenous peoples and their role in resource ownership and governance. We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere to be mindful, in devising ecosystem rights, of the complex and interrelated rights, interests and tenures of indigenous peoples and local communities.
<Symposium Article>
Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and
Legal Subjects
Elizabeth Macpherson,* Julia Torres Ventura** and Felipe Clavijo Ospina***
Abstract:
The recognition of rivers and related ecosystems as legal persons or subjects is an emerging
mechanism in transnational practice available to governments seeking more effective and
collaborative natural resource management, sometimes at the insistence of Indigenous
peoples. This approach is developing particularly quickly in Colombia, where legal rights for
rivers and ecosystems are grasping on to, and evolving out of, constitutional human rights
protections. This enables the development of a new type of constitutionalism of nature. Yet
legal rights for rivers may obscure the rights of Indigenous peoples and their role in resource
ownership and governance. We argue that the Colombian river cases serve as a caution to
courts and legislatures elsewhere to be mindful of Indigenous peoples and local
communities complex and interrelated rights, interests and tenures in devising ecosystem
rights.
This contribution is part of a collection of articles growing out of a Research Workshop on Indigenous Water
Rights in Comparative Law’, held at the University of Canterbury, School of Law, Christchurch (New Zealand),
on 7 Dec. 2018 funded by the New Zealand Law Foundation.
* Senior Lecturer at the University of Canterbury School of Law, elizabeth.macpherson@canterbury.ac.nz, I
would like to acknowledge the support of the New Zealand Law Foundation in funding research assistance for
this article.
** PhD Candidate at the University of Canterbury School of Environment, email.
*** Constitutional lawyer from the National University of Colombia, professor and researcher at Universidad El
Bosque and former Law clerk at the Constitutional Court of Colombia, fclavijoo@unbosque.edu.co.
2
Key words: Colombia, ecosystem rights, biocultural rights, legal personhood.
1. INTRODUCTION
In the 21st century, legal models that recognize or declare rivers and their ecosystems to be
legal persons or legal subjects have emerged as a possible tool for settling disputes between
local communities and governments over natural resource management, via either legislation
or judicial decisions. Such disputes often concern a natural resource that is subject to threat or
under pressure and a failure by existing laws and institutions effectively to protect the resource
from development. As such, legal person or legal subject models have emerged as new
mechanisms to encourage governments to provide more effective, and collaborative, natural
resource management, often involving local communities as ‘guardians’.
1
These developments are ad hoc, and in many cases have been driven by Indigenous,
ethnic, or local communities, who have experienced historical injustices in terms of land and
resource dispossession. These communities hold distinctive relationships with nature or the
environment which may be more reflective of ecocentric philosophical approaches than their
Western counterparts. In many cases, they now have extensive land holdings or recognized
rights to participate in or control natural resource management.
Some might argue that legal person or legal subject models are a useful tool available
to Indigenous peoples in settling claims to natural resources.
2
One example is the Whanganui
River in Aotearoa (New Zealand), which was declared to be a ‘legal person’ in 2017, as part
of a reparative settlement of the historical river claims of local Māori.
3
Community activism
for legal rights for rivers and ecosystems has occurred in countries as diverse as Mexico, the
1
See generally C. Stone, Should Trees have Standing? Law, Morality, and the Environment (Oxford University
Press, 2010).
2
See, e.g., D. Boyd, The Rights of Nature: A Legal Revolution that Could Save the World (ECW Press, 2017).
3
Te Awa Tupua (Whanganui River Claims Settlement) Act 2016 (NZ).
3
United States (US) and Bangladesh, although not always at the insistence of Indigenous
peoples.
4
One country where the recognition of rights for rivers and related ecosystems is
developing particularly quickly is the South American nation of Colombia, where a number of
Indigenous communities maintain traditional territories and continue to fight for recognition of
their rights to control and manage natural resources. In late 2016, the Constitutional Court of
Colombia declared the Atrato River, threatened by unlawful mining, deforestation, and
contamination, to be an entidad sujeto de derechos (legal subject) with reference to the
distinctive biocultural rights of the Indigenous and Afrodescendent communities who call the
river region home. The Court’s decision reflects the community perception of the river as a
spiritual being or ancestor that provides for life and culture and requires care and guardianship,
and not merely as a resource to be exploited.
5
As part of its orders for protection of the rivers
rights, the Constitutional Court devised an innovative and complex collaborative governance
scheme involving a number of government entities, non-governmental organizations (NGOs),
and local and Indigenous ‘guardians’. The ruling emphasized the need for participation by
Indigenous and Afrodescendant communities in decision making about their traditional river
territory, and the key role to be played by Indigenous relationships with and knowledge of
nature to further its protection.
Several other courts and local or regional tribunals in Colombia have since handed
down decisions that recognize ecosystems to be legal subjects, drawing on protections in
Colombia’s Constitution within the framework of its Estado Social de Derecho’ (or social
4
See generally E. O’Donnell, Legal Rights for Rivers: Competition, Collaboration and Water Governance,
(Routledge, 2018), pp. 15-22.
5
E. Macpherson & F. Clavijo Ospina, ‘The Pluralism of River Rights in Aotearoa, New Zealand and Colombia’
(2015) 25(6) The Journal of Water Law, pp. 28393.
4
welfare state based on the rule law).
6
The Colombian Amazon, Río Cauca, Páramo de Pisba,
o La Plata, Río Coello, o Combeima and Río Cocora (Tolima Rivers), Río Otún, and
recently the Río Magdalena (Colombia’s most strategically important river),
7
all of which have
strong aquatic components, are now legal subjects with their own rights of protection,
conservation, restoration, and maintenance.
8
In July 2019, the executive branch of the
Department of Nariño proposed an administrative decree to recognize the rights of nature and
protection of priority ecosystems such as wetlands, lakes, and rivers.
9
At the end of 2019, a
Congressman put forward a broad reform initiative to recognize nature as a legal subject with
its own rights within the right to a healthy environment enshrined in Article 79 of the
Colombian Constitution.
10
6
See generally A. Maya-Aguirre, ‘Implementing Environmental Constitutionalism in Colombia: Tensions
between Public Policy and Decisions of the Constitutional Court’, in E. Daly & J. May (eds), Implementing
Environmental Constitutionalism: Current Global Challenges (Cambridge University Press), pp. 14358; P.A.
Acosta Alvarado & D. Rivas-Ramírez, ‘A Milestone in Environmental and Future Generations’ Rights
Protection: Recent Legal Developments before the Colombian Supreme Court’ (2018) 30(3) (2018) Journal of
Environmental Law, pp. 519–26; L. Pecharroman, ‘Rights of Nature: Rivers That Can Stand in Court’ (2018)
7(13) Resources MDPI pp. 8-9.
7
The Magdalena River crosses Colombia from South to North and 74% of the Colombian population live in its
watershed. See R.A. . Restrepo, Los sedimentos del río Magdalena: reflejo de la crisis ambiental [Sediments of
Magdalena River: The Reflexion of the Environmental Crisis] (Universidad Eafit, 2005), pp. 601.
8
Juan Luis Castro Córdoba y Diego Hernán David Ochoa v Ministerio de Ambiente y Desarrollo Sostenible y
otros (2019) Tribunal Superior, Sala Cuarta Civil Medellin [Medellin State Superior Tribunal, Civil Court
number Fourth] N. 2019-076 (Colombia) (‘Cauca River case’); Personeria Municipal de Ibagué Ministerio de
Medio Ambiente y otros, (2019) Tribunal Administrativo de Tolima [Administrative Tribunal of Tolima]
(Colombia) (‘Tolima Rivers case’); Luz Marina Diaz y otros v Empresa de Servicios Públicos del Municipio de
La Plata Huila, (2019) Corte Constitucional [Constitutional Court] No. 2019-114 (Colombia) (‘La Plata Huila
River case’); Juan Carlos Alvarado Rodriguez y otros v Ministerio de Medio Ambiente y otros (2018) Corte
Constitutional [Constitutional Court] Tribunal Administrativo de Boyacá [Administrative Tribunal of Boyacá]
No 15238 3333 002 2018 00016 01 (Colombia) (‘Paramo de Pisba case’); ‘La sentencia que otorgó derechos al
río Otún, en Risaralda’ [The sentence that granted rights to Otun River in Risalda] (2019); ‘Andres Felipe Rojas
Rodriguez y Daniel Leandro Sanz Perdomo v. Ministerio de Ambiente y Desarrollo Sostenible y otros
(2019) Juzgado Primero Penal del Circuito de Neiva Huila [First Criminal Tribunal of the Circuit of Neiva
Huila] 41001-3109-001-2019-00066-00 (Colombia) (‘Magdalena River case’); Andrea Lozano Barragán,
Victoria Alexandra Arenas Sánchez, Jose Daniel y Felix Jeffry Rodríguez peña y otros v Presidente de la
República y otros (2018) Corte Suprema de Justicia [Supreme Court], Sala de Casación Civil [Appeals
Chamber] STC4360-2018 A (Colombia) (‘Amazon case’).
9
L.M. Sanchez Pico, ‘RCN radio, Nariño, primer departamento que reconoce los derechos de la naturaleza’
[Narino, First Department to Recognize the Rights of Nature] (22 July 2019) Colombia.
10
J.C. Lozada Vargas, ‘Proyecto de Modificacion del Artículo 79 de la Constitución’ [Constitutional
Amendment Project to Modify Article 79] 2019 (Colombia).
5
The Colombian Government recently sought an opinion from the Inter-American Court
of Human Rights as to the duties of states emerging from various international human rights in
dealing with the environment. In response to this request, the Court linked the right to a clean
and healthy environment
11
with growing transnational movements around the rights of nature.
12
In its ruling, and citing the Atrato case, the Court emphasized that:
13
This Court considers it important to highlight that the right to a healthy environment as a
standalone right, in difference to other human rights, protects all the components of the
environment, like forests, rivers, oceans and others, as a legal end in itself, even in the
absence of certainty or evidence of risk to individual persons. In this sense, the Court notes
a tendency to recognize legal personality and, ultimately, the rights of nature not just in
judicial decisions but also in constitutional laws.
It is now fair to observe that the emerging concept of ecosystem rights is being shaped
by Colombian experiences.
14
Since the Atrato decision, around ten legal developments have
taken place in Colombia (including court cases, administrative decrees, and legislative reform
proposals) in which nature or natural resources like rivers have been recognized as legal
11
See J.H. Knox & R. Pejan, The Human Right to a Healthy Environment (Cambridge University Press, 2018)
for an analysis of the right to a healthy environment in international law.
12
Inter-American Court of Human Rights, Opinión Consultiva OC-23/17 solicitada por la República de
Colombia sobre medio ambiente y derechos humanos [Consultive Opinion OC-23/17 sought by the Republic of
Colombia about the Environment and Human Rights], (2017).
13
Ibid., para. 62.
14
Some of the countries that have referred to the Atrato case when granting legal personhood to rivers and
ecosystems are Brazil, El Salvador, Mexico, Sweden, Uganda, and the United States (US). See, e.g., United
Nations Harmony with Nature, Report of the Secretary General Assembly United Nations Harmony with Nature,
Report of the Secretary General Assembly A/74/236. (2019); Constitución Ciudad de México [Ciudad de
Mexico Constitution] 2018 (Mexico) (‘Ciudad de Mexico Constitution’); Constitución Política del Estado Libre
y Soberano de Colima [Political Constitution of the Free and Sovereign State of Colima] 2017 (Mexico)
(‘Political Constitution of the State of Colima’); Vecinos Laguna del Carpintero v Presidente Municipal de
Tampico Tamaulipas y otros, (2018) Suprema Corte de Justicia de la Nacion [Supreme Court of Justice of the
Nation] Primera Sala [First Chamber] N. 307-2016 (Mexico) (‘Laguna Carpintero case’); Lake Erie Bill of
Rights 2019 (USA); 1855 Treaty Authority, ‘Chippewa Establishing Rights of Manoomin on White Earth
Reservation and Throughout 1855 Ceded Territory 2019 (US)’; ‘Resolution to amend the Ho-Chunk
Constitution and Provide for the Rights of Nature 2015 (US)’; ‘Amendment for the Rights of Nature in the
Constitution of Sweden’ (2019).
6
persons or legal subjects. Sometimes these developments make reference to Indigenous
peoples rights or cosmologies, including as guardians. At other times, they recognize
relationships between nature and local communities, small agricultural or peasant
communities, citizens, or future generations.
15
This begs the question for Indigenous peoples
and local communities in other parts of Colombia and beyond whether legal rights for rivers
and ecosystems can also help them demand better and more collaborative river and ecosystem
management within traditional areas.
Acknowledging the comparative significance of the Colombian cases and the clear
cross-fertilization of transnational examples of legal rights for rivers, in this article we examine
the legal foundation of the key cases granting legal rights to rivers and ecosystems in Colombia,
and consider their potential relevance for Indigenous peoples. We do this through a detailed
analysis of the most recent legal and political decisions to recognize ecosystems as legal
subjects in Colombia, many of which are unknown to an English-speaking audience. Our
analysis is contextualized through related and regional scholarship.
Although the cases analyzed in this article can only be understood properly in
Colombia’s particular constitutional and cultural context, they all reveal important clues as to
possible inroads for better protection of Indigenous river and ecosystem rights and interests
elsewhere. They show how ecosystem rights are grasping on to, and evolving out of,
constitutional protections, departing from Western laws for the regulation of the natural world
and developing a new type of constitutionalism for nature.
15
See Mohd Salim v State of Uttarakhand & others, WPPIL 126/2014, (2017) (India) (‘Ganges and Yamuna
case’); 1855 Treaty Authority, ‘Chippewa Establishing Rights of Manoomin on White Earth Reservation and
Throughout 1855 Ceded Territory 2019 (US)’; Ordinance Establishing Sustainability Rights Santa Monica 2013
(USA); Resolution Establishing the Rights of the Klamath River, Yurok Tribe (USA) (2019); Ciudad de Mexico
Constitution, n. 14 above; Paralelo 32, Ordenanza 11.462 Santa Fe Municipality, 2019 (Argentina) (2019);
Laguna Carpintero case, n. 14 above; Political Constitution of the State of Colima, n. 14 above; ‘Lake Erie Bill
of Rights 2019 (USA)’, n. 14 above; ‘Resolution to amend the Ho-Chunk Constitution and Provide for the
Rights of Nature 2015 (US)’, n. 14 above .
7
Yet, our analysis of legal and political decisions on ecosystem rights in Colombia
reveals that, although progressive legal developments certainly happen, in some cases the
courts ignore or obscure the rights and perspectives of Columbias Indigenous peoples. This
suggests that the Courts have failed to engage deeply with the complex nature of Indigenous
interests, tenures, and role in river governance. For example, the Colombian Supreme Court’s
decision to recognize the Colombian Amazon as a legal subject, although theoretically ground-
breaking in its recognition of the rights of future generations, apparently ignores the rights of
Indigenous peoples to their traditional territories and their key role in the management and
protection of river ecosystems. Various government and non-governmental bodies
implementing the Amazon decision have picked up on this oversight and attempted to involve
Indigenous communities in giving effect to the Court’s orders. Yet, as we detail below, the
courts in subsequent cases have also failed fully to appreciate the relevance of their judgments
for Indigenous peoples, or the potential application of the Atrato concept of ‘biocultural rights.
We argue that the Colombian river cases serve as a caution to courts and legislatures elsewhere
to be mindful of the rights and interests of local communities and the social, cultural and
environmental complexities of land tenure.
16
2. INDIGENOUS PEOPLES AND COLOMBIAN LAW
Since the Spanish colonization of Colombia in 1499, Indigenous peoples have suffered
disposition and loss of their traditional territories and disrupted access to their water
16
See also M.F. Solis, ‘Derechos de la naturaleza y pueblos indígenas’ [Rights of Nature and Indigenous
Peoples] (2019) Universidad Andina Simon Bolivar Boletin Electrónico Spondylus; P. Lyver, J. Ruru, N. Scott,
J. M. Tylianakis, J. Arnold, S. K. Malinen, C. Y. Bataille, M. R. Herse, C. J. Jones, A. M. Gormley, D. A.
Peltzer, Y. Taura, P. Timoti, C. Stone, M. Wilcox, & H. Moller, ‘Building Biocultural Approaches into
Aotearoa New Zealand’s Conservation Future’ (2019) 49(3) Journal of the Royal Society of New Zealand, pp.
394411.
8
resources.
17
Spanish conquerors explored Colombia in their search for gold and spices,
poisoning the waterways, converting Indigenous peoples to slaves, and spreading fear and
shame.
18
Since definitive independence in 1819, Colombian legal frameworks have largely
failed to include or benefit Indigenous peoples, and successive land policies and ‘agrarian
reforms’ have gradually encroached upon and privatized Indigenous landholdings.
19
Some
Indigenous lands have been retained and protected under the Colombian resguardo
[reservation] system, or in the case of Afrodescendent communities, in similar reservations
called consejos mayores[councils].
20
However, Colombian governments have been unable
or unwilling to address inequity in the distribution of land tenure and have almost completely
ignored the question of Indigenous and Afrodescendent rights to water.
Approximately 24% of the territory of Colombia is Indigenous land. This land is the
home of around 90 different Indigenous peoples based in 710 resguardos.
21
The majority of
this Indigenous territory is concentrated in the Amazon area of Colombia
22
with a total of
26,217 hectares across 185 resguardos.
23
Afrodescendants or Afro-Colombian people comprise
17
E. Macpherson, Indigenous Water Rights in Law and Regulation: Lessons from Comparative Experience
(Cambridge University Press, 2019), p. 132.
18
E. Galeano, Las Venas Abiertas de América Latina [Open Veins of Latin America], Siglo XXI ed. (Monthly
Review Press, 2004), at p. 61.
19
B. Gomez Hernandez, ‘La Tenencia de la Tierra y la Reforma Agraria en Colombia [Land Tenure and the
Agrarian Reform in Colombia]’ (2011) Enero-Junio, Verba Iuris; A.-M. Franco-Cañas, ‘Reforma agraria en
Colombia: Evolución histórica del concepto. Hacia un enfoque integral actual’ [Agrarian Reform in Colombia:
Historical Evolution of the Concept. Towards a Current Integral Approach] (2011) 27, Cuaderno de Desarrollo
Rural.
20
See generally Gomez Hernandez, n. 19 above, pp. 68-70; Franco-Cañas, n. 19 above.
21
Departamento Administrativo Nacional de Estadísticas [Administrative Department of National Statistics],
‘Una Nación Multicultural – Su diversidad étnica’ [A multicultural Nation- Its Ethnic Diversity] May 2007,
available at: https://www.dane.gov.co/files/censo2005/etnia/sys/colombia_nacion.pdf. A total of 1,905,617
peoples self-recognized as part of an ethnic group.
22
R. Arango & E. Sanchez, ‘Los pueblos indígenas de Colombia en el umbral del nuevo milenio. Población,
cultura y territorio: bases para el fortalecimiento social y económico de los pueblos indígenas’ [Indigenous
Peoples of Colombia in the Threshold of a New Millenium. Population, Culture and Territory: Foundations for
the Social and Economic Strenthening] (Departamento de Planeación Colombia, 2004), p. 43.
23
Colombian Amazon Ampliación de Resguardos Indígenas en la Amazonia Colombiana [Extenstion of the
Indigenous ‘Resguardos’ in the Colombian Amazon], available at: http://siatac.co.
9
10.5% of the population,
24
and live mainly on the Caribbean and Pacific coasts in deep social,
economic and political marginalization.
25
Against this social context, Indigenous and Afro-
Colombian lands continue to be threatened by resource extraction (legal and illegal), including
the industrialised rubber trade, logging, and mining.
26
The collective property rights of Indigenous peoples are now protected in the
Colombian constitutional framework, within the third generation of human rights and its
protections of cultural and social rights. The Constitución Política de la República de Colombia
[Political Constitution of the Republic of Colombia] 1991 (Constitution) recognizes the pluri-
ethnic and multicultural character of Colombian society. The resguardos are protected in article
329 of the Constitution, giving indigenous Consejos (boards) specific management and
decision-making powers over natural resources within their territories.
27
A number of other
domestic laws also recognize the Indigenous reguardos and the Afro-Colombian right to
collective land.
28
The constitutional protections of the land rights of Indigenous peoples do not make any
specific mention of Indigenous rights to water and, given that land and water are separately
allocated and regulated under Colombian law, there is no explicit constitutional protection of
24
Departamento Administrativo Nacional de Estadísticas [Administrative Department of National Statistics],
‘DANE Ethnic Diversity’, available at: https://www.dane.gov.co/index.php/estadisticas-por-tema/demografia-y-
poblacion/grupos-etnicos/informacion-tecnica.
25
See, e.g., M. A. Velez, J. Robalino, J.-C. Cárdenas, A. Paz, & E. Pacay, ‘¿La titulación colectiva es suficiente
para proteger los bosques? Evidencia de las comunidades afrodescendientes del pacífico colombiano’ [Is
Collective Titling Enough to Protect Forests? Evidence from Afro-descendant Communities in the Colombian
Pacific Region] (2019) SSRN Electronic Journal available at http://ideas.repec.org/p/col/000089/017137.html;
F. Urrea-Giraldo, ‘La población afrodescendiente en Colombia’ [Afro-descendants population in colombia]
(2005) Pueblos indígenas y afrodescendientes de América Latina y el Caribe: información sociodemográfica
para políticas y programas, pp. 219-245.
26
J. Blanco Blanco, ‘Tierra, Autonomía y Ancestralidad, una Triada de Poder al Interior de la Jurisdicción
Especial Indígena en Colombia’ [Land, Autonomy and Ancestrality, a Trilogy of Power Inside the Interior of
Indigenous Special Jurisdiction of Colombia] (2011) II Revista Prolegómenos - Derechos y Valores, pp. 2544,
at 30.
27
See also Constitución Política de Colombia [Political Constitution of Colombia] 1991 (Colombia) (‘Political
Constitution of Colombia’), article 63.
28
See Law 21 1991 (Colombia), Law 160 1994 (Colombia); Law 70 1993 (Colombia).
10
an Indigenous right to water. Water is considered a common good’, regulated by the Código
Civil Colombiano 1887 [Colombian Civil Code] 1887] and Código Nacional de Recursos
Naturales y de Protección al Medio Ambiente 1974 [Natural Resources and Environmental
Protection Code 1974]. Private water use rights are allocated by way of an administrative
concession, and nowhere in the Colombian water laws is there a specific provision for the use
of water by Indigenous peoples or in Indigenous territories.
29
There is a prioritization of water
allocated for human use, in order to protect water access of vulnerable people, in Decree 1541
1978, on which Indigenous people too may rely for water access for basic human needs.
However, in a context of weak government regulation and oversight,
30
private users have
generally encroached upon customary and informal water use.
31
The government has also relied
at times on conservation and common good discourses as a justification to evict Indigenous
peoples from their territories or resources.
32
This has enabled large elites to take advantage of
the exclusion of local communities and Indigenous peoples from official water law frameworks
and the weak recognition of their water rights.
33
29
Macpherson, n. 17 above, p. 140.
30
For indicative media coverage, see Bloqueo en la vía Panamericana deja un saldo de 13 heridos [Blocade of
the Panamerican Highway leaves a toll of 13 injured] (14 Mar. 2019) available at:
https://www.elespectador.com/noticias/nacional/cauca/bloqueo-de-la-panamericana-en-cauca-deja-un-saldo-de-
13-heridos-articulo-844917.
31
I. Gentes, ‘Derecho de Aguas y Derecho Indígena. Hacia un Reconocimiento Estructural de la Gestión
Indígena del agua en las Legislaciones Nacionales de los Países Andinos’ [Righs of Water and Indigenous Land:
To the Structural Recognition of Indigenous Management of Water in the National Legislations of Andean
Countries] (2002) 1 Revista de Derecho Administrativo Económico, pp. 81111, at 58.
32
See United Nations Human Rights Council, ‘Report of the Special Rapporteur on the Rights of Indigenous
Peoples’ (2017) available at https://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/36/46; V. Tauli Corpuz,
UN Special Rapporteur on Indigenous Peoples rights, ‘Conservation a Pretext to Evict Indigenous Peoples’
(2016) available at https://youtu.be/xgBqgSkWV5o.
33
M. C. Roa-García, P. Urteaga-Crovetto, & R. Bustamante-Zenteno, ‘Water Laws in the Andes: A Promising
Precedent for Challenging Neoliberalism’ (2015) 64 Geoforum, pp. 27080, at 140; B. Duarte-Abadía and R.
Boelens, ‘Disputes over Territorial Boundaries and Diverging Valuation Languages: The Santurban Hydrosocial
Highlands territory in Colombia’ (2016) 41(1) Water International, pp. 1536.
11
The rich biodiversity and mineral wealth of Indigenous territories has left Indigenous
peoples highly vulnerable to resource conflict.
34
In the Colombian Amazon, for instance, illegal
logging and clearing for agriculture and mineral extraction has produced constant conflict and
environmental damage.
35
Colombia is generally considered to be hydro-rich, but water
resources are unevenly distributed, with the vast majority of water going to economic, private
uses including agriculture and industry, at the expense of Indigenous communities that place a
higher social and cultural value on water.
36
Neither constitutional protections nor water law
frameworks have gone far enough to guarantee the rights of Indigenous peoples to own the
natural resources within their territories, nor do they capture the dynamism of Indigenous and
customary legal systems.
37
Ignoring the water rights of ethnic communities as a resource for
life, livelihood, and cultural identity has become a source of conflict between governments and
Indigenous peoples in an ongoing struggle for Indigenous water justice.
3. CONSTITUTIONALIZING ECOSYSTEMS IN COLOMBIA
The foundation of Colombia’s Constitution is the concept of the Estado Social de Derecho,
meaning a social welfare state based on the rule law, and accompanying guarantees of human
dignity (‘vida digna’) and common welfare (‘bienestar general’).
38
The Colombian
Constitution is often referred to as the ‘Ecological’ or ‘Green Constitution’ due to its broad
environmental and natural resource protections, considered progressive in both the regional
34
See A. Acosta, La maldicion de la abundancia [The Curse of Abundance] (Abya Yala, 2009).
35
See, e.g., sostenibilidad.semana.com, ‘La Colombia amazónica al desnudo’, available at:
https://sostenibilidad.semana.com/medio-ambiente/articulo/la-colombia-amazonica-al-desnudo/44588’.
36
Macpherson, n. 17 above, p. 139. In relation to the broad hydrological conditions in Colombia, see M. del
Pilar García Pachón, Régimen Jurídico de los Vertimientos en Colombia: Análisis desde el Derecho Ambiental y
el Derecho de Aguas [The Legal Regime for Wastewater in Colombia: An Environmental and Water Law
Analysis] (Universidad Externado de Colombia, 2017), p. 23.
37
Gentes, n. 31 above, p. 91.
38
Political Constitution of Colombia, n. 27 above, Arts 1, 2, 366.
12
and international context.
39
More than 30 constitutional provisions protect environmental
interests, including both rights and obligations. In particular, Articles 79 and 80 recognize the
collective right of all people to a healthy environment. These provisions specify the
responsibility of the State to: protect the diversity and integrity of the environment; conserve
areas of special ecological importance; plan the management and use of natural resources and
guarantee their sustainable development, conservation, restoration or substitution; and prevent
and control environmental deterioration.
40
Alongside the protection of Indigenous resguardos in Article 329 of the Constitution
and associated powers of management,
41
the Constitution recognizes that Indigenous peoples
have a responsibility to ‘oversee the conservation of natural resources’.
42
It requires that
exploitation of natural resources within Indigenous territories be done ‘without prejudice to the
cultural, social, and economic development of Indigenous communities’ and in decisions that
are adopted with respect to said exploitation, the Government will promote the participation of
the representatives of the respective communities.
43
These social and environmental
protections sit uneasily within the Colombian Constitution alongside its pro-development
elements, for example the provisions enabling the privatization of certain public services.
44
Colombia has a reputation for having a strong judiciary, prepared to uphold the
Constitution’s human rights protections. It sees itself as both a creator and enforcer of laws,
45
39
O. Amaya Navas, La constitución ecológica de Colombia: análisis comparativo con el sistema constitucional
latinoamericano [The Ecological Constitution of Colombia: A Comparative Analysis of the Latin American
Constitutional System] (Universidad Externado de Colombia, 2002), pp. 149-279.
40
Political Constitution of Colombia, n. 27 above, Arts. 1, 2, 8, 49, 79, 86, 88, 95, 333, 366.
41
Ibid., Art. 63.
42
Ibid., Art. 330, 5.
43
Ibid., Art. 330.
44
See generally R. Urueña, ‘The Rise of the Constitutional Regulatory State in Colombia: The Case of Water
Governance’ (2012) 6 Regulation & Governance, pp. 28299; Roa-García et al, n. 33 above.
45
José Manuel Rodríguez Rangel v Enrique Chartuny González (1992) (Colombia).
13
in distinction to other Latin American countries of the civil law tradition such as Chile, which
see the power to make law as something reserved for the legislature.
46
This might seem
unexpected, given Colombia’s evident history of human rights abuses and the killing of
environmental activists.
47
However, the Colombian Constitutional Court has taken a
particularly active approach in developing its jurisprudence as a check on unbridled
development, especially in the absence of strong administrative and legislative government.
Despite there being no specific recognition of a right to water in the Constitution, the
Constitutional Court has developed a line of jurisprudence that attempts to protect the human
right to water,
48
including for Indigenous communities, in reliance on international law
protections including the Indigenous and Tribal Peoples Convention (ILO Convention 169),
49
which Colombia has ratified.
50
The Constitution has also provided authority for a wide range
of public interest cases brought by NGOs and grassroots organizations in the defence of
environmental or Indigenous rights with respect to water,
51
using the ‘acción de tutela’ under
Article 86; a writ for the protection of constitutional rights. A key example of this is the case
of the Río Bogotá, which flows through the country’s capital, known as one of the most polluted
rivers in Colombia. In that case the ‘Consejo de Estado’ (Council of State) made a series of
46
Macpherson, n. 17 above, p. 141.
47
See Colombia: ‘staggering number’ of human rights defenders killed in 2019
(UN News Global perspective Human stories, 14 January 2020) available at
https://news.un.org/en/story/2020/01/1055272.
48
Roa-García et al., n. 33 above; G. Amparo Rodríguez & A. Gómez Rey, ‘La participación como mecanismo
de consenso para la asignación de nuevos derechos’ [Participation as a Consensus Mechanism for Assignment
of New Rights] (2013) 37 Pensamiento Jurídico, pp. 71104.
49
Geneva (Switzerland), 27 June 1989, in force 5 Sept. 1991, available at:
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169.
50
See, e.g., Marcos Arrepiche v Alcalde del Municipio de Puerto López y el Gobernador del Meta [Marcos
Arrepiche v the Mayor of Puerto López and the Governor of Meta] (2010) (Colombia).
51
Maya-Aguirre, n. 6 above.
14
very prescriptive orders in response to serious environmental contamination of the river,
although without recognizing the river as a legal subject.
52
Since 2016, a string of Colombian constitutional cases have recognized the rights of
natural resources or ecosystems as legal subjects.
53
As the institution charged with upholding
the administration of justice and safeguarding the integrity and supremacy of the Colombian
Constitution,
54
the Colombian courts have played a key role in Colombia’s expansion of
ecosystem rights. Yet at the same time, the courts have provided legitimacy for the use of state
powers and the development of natural resources, requiring the Government to comply with
environmental and human rights obligations in the Constitution and find new ways to address
urgent environmental and social issues. The developing jurisprudence has prompted a recent
proposal for a Constitutional amendment to protect the rights of nature, as follows:
55
Nature, as a living entity and legal subject, will enjoy the protection and respect of the State
and the people in order to secure its existence, habitat, restoration, maintenance and
regeneration of its vital cycles, together with the conservation of its structure and ecological
function.
We consider in more detail the constitutional cases that have recognized the
rights of natural resources or ecosystems as legal subjects in the following section.
3.1 The Atrato River as a Legal Subject
Clearly the most significant development on legal rights for nature to come out of Colombia is
the November 2016 decision of the Constitutional Court with respect to the Atrato River.
56
This
52
Gustavo Moya Ángel y otros v Empresa de Energia de Bogota y Otros [Gustavo Moya Angel and others v the
Bogotá Energy Company and others] (2014) (Colombia). See also Luis Felipe Guzmán Jiménez, Las aguas
residuales en la jurisprudencia del Consejo de Estado: periodo 2003-2014 [Wastewater in the Jurisprudence of
the Administrative Court of Colombia: 2003-2014] (Universidad Externado de Colombia, 2015), p. 18.
53
United Nations Harmony with Nature, n. 14 above.
54
Political Constitution of Colombia, n. 27above, Arts 116, at 241.
55
Lozada Vargas, Proyecto de Modificación del Articulo 79 de la Constitución [Constitutional Amendment
Project to Modify Article 79] (2019), p. 1 (Authors’ translation).
56
See generally Macpherson, n. 17 above; Macpherson and Clavijo Ospina, n. 5 above, pp. 283-93.
15
decision concerned Colombia’s third longest river, the Atrato. The Atrato is a major economic
and strategic asset for the people that live alongside and use the river, within Chocó, the poorest
region of Colombia which has an ethic concentration of 97% Indigenous and Afrodescendent
constituents.
57
The Atrato is also a major environmental asset and is part of a massive aquatic
basin covering 40,000 square kilometres and 60% of the Department of Chocó, fed by more
than 15 rivers and 300 streams.
58
The catchment area is heavily forested and rich in
biodiversity, but this biodiversity is increasingly threatened by encroachment from illegal
mining into remote and traditional territories (Indigenous reservations or resguardos and
Afrodescendent consejos mayores).
59
The illegal mining threatens not only local and ethnic
community livelihoods, but the particular cultural and spiritual connections the Indigenous and
Afrodescendent communities of Chocó have with the Atrato River.
60
It has caused the extreme
desecration of the river and corresponding impacts to human life, as dredging, mercury and
cyanide are used in the mining process.
61
The communities raised their concerns about the situation of the Atrato with Tierra
Digna, a human rights NGO based in Colombia working with a number of Indigenous and
Afrodescendent groups in Chocó. Until then, the communities had met an overwhelming
ignorance or apathy from multiple levels of government, who had little presence or interest in
57
Departamento Nacional de Estadística, Censo General 2005: ‘Proyecciones Nacionales y departamentales de
población 2005-2020’ [National and Departmental Population Projections] (2010).
58
‘Estructura Ecológica Principal de la Región del Chocó Biogeográfico’ [Main Ecological Structure of the
region Choco Biogeographic] IIAP (2011), available at: http://rioatrato.org.
59
See generally U. Oslender, ‘Fleshing out the Geographies of Social Movements: Colombia’s Pacific Coast
Black Communities and the “Aquatic Space”’ (2004) 23(8) Political Geography, pp. 957–85, at 980; ‘Estructura
Ecológica Principal de la Región del Chocó Biogeográfico, n. 57 above.
60
Macpherson & Clavijo Ospina, n. 5 above, pp. 28393; U. Oslender, n. 59 above, pp. 9801.
61
See generally Macpherson, n. 17 above, pp. 14245.
16
Chocó. This inaction was compounded by the inability of existing legal frameworks to manage
the region’s growing environmental and humanitarian crisis.
62
In the acción de tutela, Tierra Digna alleged that, in failing to control the activities of
illegal miners in Chocó, the State had violated their fundamental rights to life, health, water,
food security, healthy environment, culture, and territory under the Constitution.
63
The
claimants were successful, with the Court finding that the Government had violated all of the
fundamental constitutional rights alleged to have been breached through the Governments’
omission to control and eradicate illegal mining in Chocó.
64
Then, significantly, the Court
recognized that the Atrato River, together with its basin and tributaries, is an ‘entidad sujeto de
derechos (legal subject) with its own rights of protection, conservation, maintenance, and
restoration by the State and ethnic communities.
65
The Court made several prescriptive orders to implement its decision,
66
including that
the rights of the river will be represented by a guardian, with one representative from
Government and one from the claimant communities, which it borrowed from the model for
the Whanganui River in Aotearoa New Zealand.
67
Other orders require the establishment of a
number of collaborative fora for implementing various directives of the judgment, involving
representatives from the communities, government, academia, and NGOs.
The most interesting aspect of the Atrato decision is its theoretical depth. Given the
failure of existing legal frameworks and administrative efforts, the Court decided that a new
62
Centro de Estudios para la Justicia Social ‘Tierra Digna’ y otros v Presidente de la República y otros (2016)
Corte Constitucional [Constitutional Court], Sala Sexta de Revision [Sixth chamber] (Colombia) No. T-622 of
2016 (10 November 2016), 4–7 (‘Atrato river case’).
63
Ibid., pp. 47.
64
Ibid., p. 158.
65
Ibid., pp. 1589.
66
Ibid., pp. 15760.
67
See Macpherson & Clavijo Ospina, n. 5 above, at pp. 28393.
17
theory of rights was needed to compel the Government to do something about the Atrato
crisis.
68
It came up with a new constitutional theory of ‘biocultural rights’, based on a ‘profound
unity between nature and the human species’.
69
The concept of ‘biocultural rights’ has been described as an innovative approach
towards combining conservation with respect for indigenous rights and community rights of
stewardship for natural resources,
70
yet it needs further development in the comparative and
theoretical literature. The Court in Atrato uses the term to mean something more than simply
claims to property, in the conventional sense of property as a measurable, commodifiable, and
alienable resource.
71
Rather, biocultural rights are collective rights of communities that carry
out traditional roles of regulating nature as conceived of by Indigenous ontologies.
72
The Court
calls this an alternative vision of the collective rights of the ethnic communities in relationship
to their cultural and natural surroundings, which are called, ‘biocultural rights’.
73
According to
the Constitutional Court in Atrato, biocultural rights connect the cultural rights of ethnic
communities and their rights in natural resources, within the following parameters:
(i) the multiple ways of life expressed as cultural diversity are inextricably linked to the
diversity of ecosystems and territories;
68
Atrato river case, n. 62 above, at pp. 334.
69
Ibid., at p. 47.
70
See generally K. Bavikatte & T. Bennett, ‘Community Stewardship: The Foundation of Biocultural Rights’
(2015) 6(1) Journal of Human Rights and Environment, pp. 729; M. C. Gavin, J. McCarter, F. Berkes, A. T. P.
Mead, E. J. Sterling, R. Tang, & N. J. Turner, ‘Effective Biodiversity Conservation Requires Dynamic,
Pluralistic, Partnership-Based Approaches’ (2018) 10(6) Sustainability, pp. 197-220, at 1846; M. C. Gavin, J.
McCarter, A. Mead, F. Berkes, J. R. Stepp, D. Peterson, & R. Tang, ‘Defining Biocultural Approaches to
Conservation’ (2015) 30(3) Trends in Ecology & Evolution, pp. 14045; P. Lyver, J. Ruru, N. Scott, J. M.
Tylianakis, J. Arnold, S. K. Malinen, C. Y. Bataille, M. R. Herse, C. J. Jones, A. M. Gormley, D. A. Peltzer, Y.
Taura, P. Timoti, C. Stone, M. Wilcox, & H. Moller, ‘Building Biocultural Approaches into Aotearoa – New
Zealand’s Conservation Future’ (2019) 49(3) Journal of the Royal Society of New Zealand, pp. 394411; G.
Sajeva, ‘Rights with Limits: Biocultural Rights - Between Self-Determination and Conservation of the
Environment’ (2015) 1 Journal of Human Rights and the Environment, pp. 3054.
71
See J. Watson Hamilton & N. Banks, ‘Different Views of the Cathedral: The Literature on Property Law
Theory’ in A. McHarg, B. Barton & A. Bradbrook (eds), Property and the Law in Energy and Natural
Resources (Oxford University Press, 2010), pp. 1959, at 19.
72
Atrato River case, n. 62 above, p. 36.
73
Ibid., p. 42.
18
(ii) the richness expressed in the diversity of cultures, practices, beliefs and languages is
the product of the co-evolutionary interrelationship of human communities with their
environments and constitutes an adaptive response to environmental changes;
(iii) the relationships of different ancestral cultures with plants, animals, microorganisms
and the environment actively contribute to biodiversity;
(iv) the spiritual and cultural meanings of indigenous peoples and local communities about
nature are an integral part of biocultural diversity; and
(v) the preservation of cultural diversity leads to the conservation of biological diversity,
so that the design of policy, legislation and jurisprudence should be focused on the
conservation of bioculturality.
74
Perhaps most significantly, after centuries of poor environmental management by the
Government and the ignorance of Indigenous interests, the adoption of the biocultural rights
concept in the Atrato case enables the Court to recognize the ‘jurisdiction’ of Indigenous
peoples as regulators, stewards, and decision makers on the management of the river. It creates
new opportunities for them ‘to participate in river sharing, governance and use’ as river
guardians.
75
3.2 The Colombian Amazon as a Legal Subject
The next Colombian case to recognize a natural resource as a legal subject was the judgement
concerning the Colombian Amazon, which responds to the alarming rate of deforestation in the
Amazon rainforest, increasing 44% between 2015 and 2016. This destruction, and its associated
social and environmental consequences, prompted the applicants in Andrea Lozano Barragán
y otros v la Presidencia de la República y otros (the Amazon case) to apply to the Colombian
courts for protection of their constitutional rights as an acción de tutela.
76
74
Ibid., at 5.17 (authors’ translation).
75
Macpherson, n. 17 above, pp. 15960.
76
Amazon case, n. 8above pp. 33-4.
19
The claimants in the case were 25 children and young people between the ages of seven
and 25 who, in representing future generations, were gravely concerned about the impact of
deforestation in the region of the Colombian Amazon tropical rainforest.
77
However, unlike
the Atrato case, the Amazon claimants did not identify directly with an Indigenous group or
rely directly on Indigenous constitutional protections, instead positioning their claims more
broadly on behalf of future generations.
The damage to the Colombian Amazon, known as the ‘pulmón del mundo’ (lung of the
Earth) is well documented in the Amazon case. It is caused by land grabbing, illegal logging,
mining, agricultural expansion, and drug cultivation.
78
According to the claimants, this damage
extends beyond the Amazon to other areas of the country, as it causes direct and negative
effects on the water cycle, alters the ability of soil to capture and absorb water, affects water
supply to the páramos (closed, high altitude ecosystems) and other areas in Colombia, and
impacts broadly on water availability.
79
The claimants argued that impacts of deforestation in
the Colombian Amazon are on a global scale and have global consequences. The massive
reduction in trees releases carbon into the atmosphere and reduces the potential to sequester
carbon, causing a direct nexus between deforestation and the impact of climate change.
80
‘Paradoxically’, the claimants explained, the Colombian Amazon region was better protected
during Colombia’s long civil war, as the Fuerzas Armadas Revolucionarias de Colombia
Revolutionary Armed Forced of Colombia (FARC) and paramilitary presence in the Amazon
precluded development of the area.
81
Since the signing of the peace agreement with FARC in
2016, the Colombian Amazon region has been ‘opened up’ to encroachment and development
77
Amazon case, n. 8 above, p. 30.
78
Ibid., p. 3.
79
Ibid.
80
Ibid., pp. 48, 49.
81
Ibid., p. 4.
20
by (sometimes foreign) industry and business interests, with a proliferation of new roads and
resource concessions.
82
On 5 April 2018, the Corte Suprema de Justicia (Supreme Court), presided over by
Judge Luis Armando Tolosa Villabona, handed down its judgment in the Amazon case.
83
Firstly, the Court accepted that the children and young people could make their claims on behalf
of future generations, on the basis that the acción de tutela can be sought by any person who
requires the protection of fundamental rights and it does not require a specific age or citizenship
status. Children and young people are experiencing the negative effects of environmental
damage in the Colombian Amazon, the Court reasoned, and as such may legitimately request
the protection of their rights to enjoy a healthy environment, life, and health.
84
Thus, recourse
to the acción de tutela would be appropriate to enable the protection of the fundamental rights
of the young claimants and future generations.
85
Like the Atrato case, the Amazon case rested on constitutional human rights
protections, and the claimants argued that by failing to control the increase in deforestation in
the Colombian Amazon, the Colombian Government had violated various fundamental rights.
86
In relation to water, the Court considered the report of the Instituto de Hidrología,
Meteorología y Estudios Ambientales (Institute of Hydrology, Meteorology and Environmental
Studies) (IDEAM) on how deforestation alters water resources, and water supply to the
populations that depend on it, in this region. The Court also relied on other expert evidence that
82
‘Base del Plan Nacional de Desarrollo 2018-2022. Pacto por Colombia’ [National Development Plan 2018-
2022. Pact for Colombia], available at: https://colaboracion.dnp.gov.co/CDT/Prensa/PND-2018-2022.pdf .
83
Amazon case, n. 8above.
84
Amazon case, n. 8above, at p, 15.
85
See also Acosta Alvarado & Rivas-Ramírez, who argue that this case widens the scope of the acción de tutela
enabling Colombian courts to consider collective as well as individual rights: Acosta Alvarado & Rivas-
Ramírez, n. 6 above, at p. 526.
86
Amazon case, n. 8above.
21
greenhouse gas (GHG) emissions as a result of deforestation would increase pollutants in the
watershed and affect water availability, including through prolonged periods of drought.
Although it is not the focus of this article, the precautionary principle
87
provided support
for the Court’s radical plan for protection of the Colombian Amazon. The judgment stated that
as ‘we are late to act to stop global warming, but the precautionary principle invites us to act
now before knowing with complete detail the effects of this uncertain phenomena and the
effects on future generations which are unknown’.
88
The precautionary principle had similarly
been relied upon by the Constitutional Court in the Atrato case, on the basis that the negative
effects of illegal mining on river and communities in the future are uncertain.
89
Finally, the Supreme Court in the Amazon case drew together its analysis by relying on
the principle of solidarity in Colombian constitutional law. Article 1 of the Colombian
Constitution guarantees a social welfare state based on the rule of law founded in principles
that promote ‘solidarity’ between persons. The Court held that, in order to enable the ius
fundamental protections enshrined in the Colombian Constitution, it was necessary to consider
‘the other’ in this process of solidarity. By other, the Court envisaged ‘others that also inhabit
87
See generally A. Shawkat & M. Sheikh Noor, ‘The Precautionary Principle in Biodiversity and Natural
Resource Management: Institutional and Policy Challenges for a Sustainable Future’ (2018) 48(3/4)
Environmental Policy and Law, pp. 187-203.
88
Atrato river case, n 62 above, p. 9. Data provided by the Instituto de Hidrologia Meteorologia y Estudios
Ambientales [Hydrology, Meteorology and Environmental Studies Institute] indicated that the 36% of the
GHGs emitted by deforestation is an uncontrolled factor of CO2 emissions in the country. Based on this
evidence and the uncertainty of the future consequences on the environment and water provision, the Court
stated the need to take corrective and preventive measures to stop illegal mining that could cause future
unknown effects on the Amazon. The precautionary principle is regulated in the Law 99 of 1993, jurisprudence
of the Judicial Courts such as the Sentence T-204/14, C-293/2002, C-703/2010, and in international
environmental instruments that Colombian has committed to.
89
Atrato river case, n. 62 above, at para. 9.25. Cf M. del P. Garcia Pachón, ‘La Corte Suprema de Justicia
reconoce como sujeto de derechos a la Amazonia Colombiana’ [The Supreme Court Recognizes the Colombian
Amazon as a legal subject] (2018), available at: https://medioambiente.uexternado.edu.co/la-corte-suprema-de-
justicia-reconoce-como-sujeto-de-derechos-a-la-amazonia-colombiana/. Garcia Pachón argues that the
precautionary principle should not have been applied in the Colombian Amazon case because the extent and
impact of deforestation was evident, with no lack of certainty in the scientific evidence requiring a precautionary
approach.
22
the planet, either animal or plant’
90
and ‘those yet to be born that also deserve to enjoy the
same environmental conditions that we enjoy now’.
91
This meant that the freedom of present
generations to act could be limited by an obligation to ‘no-hacer(do no harm)
92
and instead
assume the care and custody of natural resources and the future human world.
93
At the same time, the Court recognized that ‘an ethical duty of solidarity of the species
requires equitable and wise consumption by present generations in order to preserve and secure
the future subsistence of humankind.
94
The Court explained that natural resources are shared
among all the habitants of the Earth, which includes descendants or new generations and plant
and animal species, noting that a lack of future resources necessary to live could put the human
species at threat. The Court emphasized the need for humans to take care of the environment,
and to start thinking about our obligations to nature and humanity in general instead of focusing
on individual rights to use resources.
95
As such, the Court adopted from the Atrato decision the
idea of nature as a legal subject and declared the Colombian Amazon ‘a right holder of the
protection, conservation, maintenance and restoration by the State and the territorial entities
that comprise it’.
96
In contrast to the Atrato case, the Supreme Court in the Amazon decision did not
consider the impact of deforestation and climate change upon the many Indigenous
communities of the Amazon, who depend on access to water and land to survive and preserve
90
Amazon case, n. 8above, p. 18.
91
Ibid., p. 19.
92
For a discussion of the duty to ‘do no harm’ in accordance with the precautionary principle, see generally R.
Attfield, ‘To Do No Harm? The Precautionary Principle and Moral Values’ (2001) 1(3) Philosophy of
Management, pp. 1120.
93
Amazon case, n. 8above, p. 21.
94
Ibid., p. 134.
95
Ibid., p. 18.
96
Ibid., p. 134.
23
their culture. The analysis of solidarity towards ‘others’ simply lumped Indigenous
communities in with the other communities concerned about the Amazon, including the
applicants, who lived in urban centres like Bogotá and were removed from the local context
and its challenges. Meanwhile, large-scale projects run by powerful actors encroach on
Indigenous land with state approval or acquiescence, prompting the mobilization of Indigenous
communities to defend their land and water.
97
The Amazon case also failed to mention Indigenous land tenure, despite the fact that
Indigenous territories (resguardos) cover 54.18% of the Colombian Amazon extension,
98
nor
did it refer to the idea of biocultural rights or appoint guardians. Despite this fairly major
oversight, the Government has considered the need for participation by Indigenous groups in
its implementation of the Supreme Court decision. The Court made a number of detailed orders
for implementing the decision, calling on different government departments and entities and
NGOs to perform specific functions and mandating the creation of a ‘Plan de Acción’ (Action
Plan) to combat deforestation effects and enforce the decision.
99
Within five months, the central
government was required to prepare the Pacto Intergeneracional por la Vida del Amazonas
Colombiano (PIVAC) (Intergenerational Pact for the Life of the Colombian Amazon), with
measures directed at reducing deforestation to zero. Local authorities were also asked to
97
See D. Hill, ‘“Defending our Existence”: Colombian Tribe Stands in way of Oil Exploration’ (2019),
available at: available at https://www.theguardian.com/world/andes-to-the-amazon/2019/apr/02/colombia-siona-
tribe-oil-exploration-territory-putumayo.
98
See generally Gentes, n. 31, above, p. 86; G. Amazonas, ‘From Farms To Forests: Land Rights as an Impact
(2019), available at: https://www.gaiaamazonas.org/recursos/videos/60/; G. Amazonas, ‘Gaia Amazonas -Trece
pueblos indígenas de la Amazonía colombiana recuperan más de 44.000 hectáreas de su territorio ancestral’
[Thirteen Indigenous Groups in the Colombian Amazon recover 44,000 Hectares of their Ancestral Territory],
available at: available at: https://www.gaiaamazonas.org/noticias/51/.
99
Amazon case, n.8 above, pp. 4750.
24
implement Territorial Arrangement Plans,
100
which may prove controversial if they interfere
with Indigenous territorial autonomy.
101
The Action Plan refers to a strategy called the Estrategia Bosques Territorios de Vida
(Forest Territories’ Strategy for Life) created and funded by the United Nations Reducing
Emissions from Deforestation and Degradation (UN-REDD) programme.
102
The Strategy for
Life recognizes the key role played by Indigenous peoples to combat deforestation in the
Colombian Amazon, with the goal of consolidating territorial governance of ethnic groups and
agricultural and rural communities’.
103
The Action Plan provides that Indigenous peoples, their
holistic vision and ‘resguardos, are a necessary part of the inter-institutional coordination for
the proper management of the Colombian Amazon,
104
alongside related planning documents
which emphasize the importance of Indigenous stewardship in tackling environmental
problems.
105
Unfortunately, the Action Plan was created by the previous government
administration and, as the incoming government is yet to formally mandate the Action Plan, its
status is uncertain.
100
Ibid.
101
Acosta Alvarado and Rivas-Ramírez, n. 6above, p. 525.
102
‘Bosques Territorios de Vida- Estrategia Integral de control a la deforestación y Gestión de los Bosques -
UN-REDD Programme Collaborative Online Workspace’, available at: https://www.unredd.net.
103
Ibid., at p. 25.
104
Ibid., at pp. 92, 330.
105
‘El Tratado de Cooperación Amazónica Planes y Programas’ [Plans and Programmes of the Amazon
CooperationTreaty], available at: http://www.oas.org/dsd/publications/unit/oea08b/ch03.htm#TopOfPage;
Ministerio de Ambiente y Desarrollo Sostenible and Ministerio de Agricultura y Desarrollo rural, ‘Plan de
Acción para reducir la deforestación y hacer frente a los efectos del cambio climático en la Amazonía
colombiana STC 4360 de 2018’ [Action Plan to Reduce Deforestation and Respond to Climate Change Effects
in the Colombian Amazon] (2018) (‘Action Plan for Colombian Amazon’); Bosques Territorios de Vida, n. 102
above.
25
4. RIVERS AND ECOSYSTEMS RIGHTS AND INDIGENOUS PEOPLES IN
COLOMBIA A BIOCULTURAL IMPERATIVE
The Atrato and Amazon decisions have spurred a string of cases declaring rivers and
ecosystems to be legal subjects in Colombia. The Cauca river, together with its watershed and
tributaries, was declared a legal subject by the Superior Tribunal of Medellín (a local Tribunal
in the Department of Antioquia) in June 2019, as a result of an acción de tutela for protection
of the rights of future generations brought by local and rural communities in response to a
hydroelectric development.
106
The Court ordered the establishment of a similar governance
structure to the arrangements in the Atrato case,
107
with a committee of guardians including
government and community representatives,
108
and an expert advisory panel.
The Cauca River case was followed in June 2019 by decision of the Administrative
Tribunal of Tolima to recognize that a number of rivers making up the ‘Tolima Rivers’ were
legal subjects,
109
issued in response to concerns about mining in the Combeima and Cocora
Basin.
110
This case was an acción popular
111
brought by a local municipality in order to protect
the collective rights of the people of Ibagué whose water supply from the basin would be
affected by the mining.
112
The Tolima Tribunal found a ‘breach of the collective rights to enjoy
a public space free of pollution, a healthy environment and ecological equilibrium, prevention
106
Cauca River case, n. 8 above, at p. 39.
107
Ibid., at p. 41.
108
Ibid. The group met on 27 February 2019 at the University of Antioquia.
109
Personeria Municipal’ is the governmental office that protect human rights and the conservation of the
environment in a municipality. It is part of the Office of the Inspector General of Colombia and in this case
represents the people in a municipality.
110
Tolima Rivers case, n. 8 above.
111
The writ of Acción popular is provided in Article 88 of the Colombian Constitution for the ‘protection of
collective rights and interests related to the heritage, space, security, public health, administrative, moral,
environmental, free economic competence and other similar matters’ (authors’ translation) in Political
Constitution of Colombia, n. 27 above, Art. 80.
112
Tolima rivers case, n. 8 above.
26
of preventable disasters, security and public health’.
113
It then declared the Coello, Combeima
and Cocora rivers, their watersheds and tributaries to be legal subjects with their own rights of
protection, conservation, maintenance and restoration.
114
The Tribunal referred to international
and comparative law and jurisprudence on the human right to water and food security in support
of its decision, and grasped onto domestic jurisprudence around the Constitution and Estado
Social de Derecho.
115
As a precautionary and preventive measure, the Tribunal ordered the
cessation of mining activities and permissions which could cause irreparable or irreversible
damage to ecosystems and natural resources.
116
As in the Atrato and Cauca cases, the Tolima
Tribunal created a collaborative governance regime (with representatives of the rural
communities as guardians) and extended orders to create and act to decontaminate the river,
and recover traditional forms of livelihoods and food security.
117
The Court did order the
involvement of local communities, referring to the ILO Convention 169, which at least led to
the involvement of Indigenous and ethnic communities in the guardianship model.
118
However,
neither Indigenous nor ethic communities participated directly in the action so they did not
have a chance to voice their concerns or assert particular rights.
The Colombian river cases, whereby the courts are offering rights of nature as a
pragmatic response to environmental conflicts, challenge traditional legal paradigms. In this
113
Ibid., p. 146.
114
Ibid., p. 149.
115
Ibid., at p. 63. The Court reasoned that water pollution would affect the vegetation, soil and drinking water,
risking the availability of food and health of the people that live in the area. Water access and the right to food
are associated in international environmental law. See, eg, Dublin Declaration on Water and Sustainable
Development (International Conference on Water and Development-Development for the 21st century), Dublin,
1992, A/CONF, 151/pc/112); United Nations, The Millennium Development Goal Report 2014 available at
https://www.undp.org/content/undp/en/home/librarypage/mdg/the-millennium-development-goals-report-
2014.html at p. 13.
116
Ibid., p.125.
117
Ibid., pp. 1534.
118
Ibid., p. 140.
27
rapidly-developing jurisprudence, the judicial branch forces the executive government to take
action, where it has previously neglected its environmental obligations of protection of the
environment and the rights of Indigenous communities.
The strength of the Atrato case resides in the way in which the Constitutional Court
combined cultural and environmental imperatives to develop a new concept of biocultural
rights, drawing on the closeness of Indigenous and ethnic peoples and river ecosystems.
119
Biocultural rights, devised by the Court in Atrato in their analysis of third-generation human
rights, account for the rights, interests, and tenures of Indigenous peoples by preserving
practices related to the kinship of ethnic communities and their duty of stewardship towards
nature.
120
Biocultural rights open the door to Indigenous participation in environmental law
frameworks while respecting Indigenous collective and territorial rights. This approach not
only accords with legal and constitutional principles, it reflects the reality of land and water
rights, interests and tenure, and accounts for the traditional knowledge systems of Indigenous
and tribal peoples as guardians.
However, as in the Amazon case, the tribunals in the Tolima and Cauca cases gave
inadequate consideration to the possibility that ethnic communities might also have interests in
the rivers’ management. Researchers have often documented the grave error made by water
regulators when they ignore Indigenous normative systems, as Indigenous peoples contribute
to improved management of water and land on their territories by drawing on their values,
knowledge, and experience in resource management.
121
Instead, governments should devise
119
Macpherson, n. 17 above, p. 154.
120
See Lyver et al, n. 70 above, pp. 394-407; Bavikatte & Bennett, n. 70 above, pp. 10-11; A. Grear, ‘The
Discourse of Biocultural Rights and the Search for New Epistemic Parameters: Moving beyond Essentialisms
and Old Certainties in an Age of Anthropocene Complexity Editorial’ (2015) 1 Journal of Human Rights and
the Environment, pp. 16; Sajeva, n. 70 above.
121
See, e.g.; R. Boelens, B., Duarte, R. Manosalvas, P. Mena, T. Roa J vera ‘Contested Territories: Water
Rights and the Struggles over Indigenous Livelihoods’ (2012) 3(3) International Indigenous Policy Journal; I.
Gentes, n. 31 above,pp. 81111.
28
legal tools and mechanisms that allow Indigenous peoples and local communities to defend
their territory from powerful development interests, and grant them the autonomy to manage
their resources in their own cultural ways.
5. CONCLUSION
The recognition of the rights of rivers and related ecosystems is developing particularly quickly
in Colombia, highlighting the potential for the concept of ecosystem rights to be shaped by the
Colombian experience. Legal rights for rivers and ecosystems in Colombia are building a new
type of constitutionalism for nature: a rights revolution beyond traditional Western law.
At the start of this article, we asked whether legal rights for rivers and ecosystems might
help Indigenous communities to demand better and more collaborative river and ecosystem
management within their territories. On occasion, ecosystem rights cases have been led by, or
decided with respect for, Indigenous peoples and ontologies, raising hope for Indigenous
peoples (and local communities) in other parts of the world that legal rights for rivers might
help them to similarly demand better and more collaborative river and ecosystem management
within their traditional areas. In other cases, ecosystem rights have provided a new way for
local or rural communities to participate in river governance.
However, our analysis of the Colombian jurisprudence shows that the Colombian courts
have sometimes ignored or obscured Indigenous perspectives, or failed to engage deeply with
the legal and institutional complexity of Indigenous rights, interests, and tenures. Although
most recent cases have replicated the legal person model put forward in the Atrato river case,
the cases fail to recognize and respond to the unique connection that Indigenous peoples and
Afro-Colombians have with their land and water. Subsequent cases have failed to acknowledge
29
biocultural rights and the role of local communities in providing environmental stewardship in
accordance with their culture.
This finding has transnational relevance for the rights of nature movement and the
settling of Indigenous resource-related disputes more generally. It raises new questions about
who is entitled to speak for nature (particularly rivers), and draws new legal paths for rural and
even urban communities to participate in management of rivers and the environment.
Ultimately, only with strong community buy-in do legal rights for rivers and ecosystems offer
the potential for increased Indigenous involvement in and control over natural resource
management and, consequently, improved Indigenous-governmental relationships.
... The establishment of RoR in Colombia came along with the creation of biocultural rights. These were aimed at reconciling local communities' traditions and their role as stewards with the conservation and use of 'nature', as they define it (Macpherson et al., 2020). In this framework, the distinction between people's and nature's rights disappears, since nature and cultural diversity are intertwined and mutually supportive (Bridgewater and Rotherham, 2019). ...
Chapter
What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
Chapter
What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
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What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
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What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
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What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
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What are the possibilities for multispecies justice? How do social justice struggles intersect with the lives of animals, plants, and other creatures? Leading thinkers in anthropology, geography, philosophy, speculative fiction, poetry, and contemporary art answer these questions from diverse grounded locations. In America, Indigenous peoples and prisoners are decolonizing multispecies relations in unceded territory and carceral landscapes. Small justices are emerging in Tanzanian markets, near banana plantations in the Philippines, and in abandoned buildings of Azerbaijan as people navigate relations with feral dogs, weeds, rats, and pesticides. Conflicts over rights of nature are intensifying in Colombia’s Amazon. Specters of justice are emerging in India, while children in Micronesia memorialize extinct bird species. Engaging with ideas about environmental justice, restorative justice, and other species of justice, The Promise of Multispecies Justice holds open the possibility of flourishing in multispecies worlds, present and to come. Contributors. Karin Bolender, Sophie Chao, M. L. Clark, Radhika Govindrajan, Zsuzsanna Dominika Ihar, Noriko Ishiyama, Eben Kirksey, Elizabeth Lara, Jia Hui Lee, Kristina Lyons, Michael Marder, Alyssa Paredes, Craig Santos Perez, Kim TallBear
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