By Julia Torres Ventura and Elizabeth Macpherson - Colombian cyclist Egan Arley Bernal Gómez and this year’s winner of the Tour de France has captured the world’s attention as the first Latin American to don its leading yellow jersey. What readers may not know is that Colombia also wears the yellow jersey in the race for protection of Mother Earth – blazing the trail for the rights of nature. In response to weak environmental regulation and lack of decisive Government action on climate change, biodiversity loss, and environmental degradation, Colombia is arguably the most judicially and politically active nation in granting legal personhood and rights of nature.
Soon after New Zealand’s Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, which recognised the Whanganui River to be a legal person in a legislative first, the Constitutional Court of Colombia released a decision that declared the Atrato River to be a legal subject with its own rights of protection, conservation, maintenance and restoration. The Colombian Court’s watershed judgment sought to reverse extreme pollution and damage in the Atrato River caused by illegal mining in the face of an apathetic and inactive government. It did so at the insistence of Indigenous and Afro-Colombian communities who depend on the river for their livelihoods and spiritual wellbeing, which the Court in turn recognised and appointed as river guardians.
In 2018, the Supreme Court of Colombia recognised the Amazon ecosystem, including its river and forest territory, to be a legal subject, and compelled the Colombian Government to take action to control deforestation and associated climate change and water cycle impacts in the Amazon region. Despite being ‘the lung of the Earth’, deforestation of the Colombian Amazon has increased by 44% in the last 3 years alone. The Amazon case was brought by a group of children and young people ranging from 7 to 25 years of age who successfully claimed as representatives of future generations the violation of their constitutionally protected human rights to life, water and a healthy environment, caused by the Government’s inaction. Key to its analysis, the Court interpreted the Constitutional principle of solidarity between citizens to mean that Colombians must show solidarity not just towards their fellow Colombian people, but towards people living in other countries and unborn future generations affected by climate change, and even towards plant and animal species. We are all, after all, members of Earth’s community and we all have a stake in the survival of the planet.
These are not the only judicial decisions to come out of Colombia on the rights of nature. The La Plata River, Cauca River and the Páramo de Pisba high-altitude ecosystem have all been recognised as legal subjects in the past two years. There have also been a string of cases that recognise animals to be legal persons in Colombia, and grant them the writ of habeas corpus to free them from unlawful detention within zoos, including a spectacled bear call ‘Chucho’. Chucho and his sister were born on the small Colombian reserve of Río Blanco and lived there happily in semi-captivity. That was until the female bear died unexpectedly and Chucho underwent a sudden change of behaviour leading to his escape from the reserve and his ultimate transfer to a Zoo in the city of Barranquilla. In 2017 a group of animal rights petitioners appealed to the Constitutional Court of Colombia for Chucho’s release, relying on Colombian Law 1774 (2016), which declares that animals are sentient beings and not objects of property. The Court ruled in favour of the animal and its rights, emphasising the bio-centric interrelationship between humans and nature, granted Chucho the protection of habeas corpus and upheld his human right of freedom, allowing him to return to the reserve at Rio Blanco.
Many readers will know that this year’s Tour de France was controversially suspended due to a landslide, allowing the Colombian contender to use his experience climbing Colombian mountains to take the lead. The Colombian rights for nature cases are also causing landslides in Colombia’s legal system. In recent days, the regional administrative government of the Department of Nariño recognised the legal personality and rights of the strategic ecosystems of Nariño, providing for their protection, conservation, restoration and advocacy in an administrative bylaw or State Executive Decree. This Decree recognises the intrinsic value and urgent need to protect strategic ecosystems and the key role of Indigenous, Afro-Colombians and peasant communities to enable socio-ecological change. The Decree confirms the role of the Nariño Government as guarantor of and advocate for the wellbeing of nature, requiring the rights of nature to be considered in government decision-making. To provide some clarity around policy implementation, the Decree orders the preparation of a Strategy for Respect, Protection and Guarantee of the Rights of Nature in the Department of Nariño. Those charged with drafting the Strategy include non-governmental environmental advocacy groups, representatives of Indigenous, Afro-Colombian and peasant communities, universities, and government agencies dealing with climate change, women and LGBTI rights. Importantly, the Nariño Decree sets a new precedent, by demanding the cooperation of governments to work beyond their jurisdictions to ensure the protection of ecosystems.
Other countries are trailing close behind Colombia in the global quest for the rights of nature, some of which have been political rather than judicial. During the last two years, the State of Mexico City recognised the rights of nature in its Constitution, the United States City of Toledo in Ohio State granted rights to Lake Erie in the Lake Erie Bill of Rights, and the White Earth Band of Ojibwe in Minnesota granted legal rights to Wild Rice of ancestral and productive value to the First Nation people. Although not accompanied by a conferral of legal personhood, Australia’s Yarra River was recognised as an integrated, living being under the guardianship of the Wurrundjeri under the Yarra River Protection (Wilip-gin Birrarung murron) Act 2017 (Vic).
Still, it seems that the yellow jersey will remain firmly strapped to Colombia’s backs as its courts and government authorities continue to champion an Earth-centred approach to natural resource management. The strength of the Colombian approach to the rights of nature is due to a number of factors, including that:
The Colombian courts reach their findings based on an in-depth collective analysis of international, comparative domestic and national law and legal doctrine at multiple scales, together with leading scientific, social science and philosophical research literature.
Colombia’s strong constitutional framework for environmental and indigenous rights, and its principles of solidarity, intergenerational equity, and a social welfare state based on the rule of law.
In face of governmental failure to enforce national environmental obligations, Colombian authorities are increasingly emphasising a need for collaboration between and beyond governments and communities to protect the rights of nature.
The groups that are arguably most affected by environmental damage long-term (namely Indigenous peoples and future generations) are gaining an ever-stronger voice in Colombian rights of nature institutions, increasing the likelihood of transformative change.
It is a time of fiesta in Colombia, a time to celebrate world leadership in cycling and, it seems, global environmental governance. Nonetheless, Colombian history tells us that justice is vulnerable to political, social and economic instability, and the Colombian authorities may well decide in the future that the protection of nature is not a priority. Perhaps a greater danger in the Latin American context is that ground-breaking documents and discourses are often poorly implemented and enforced. Meanwhile, we the members of the Earth’s community, as both spectators and stakeholders, should stay glued to the tube.
This article was originally published on 23 August 2019 at I-CONnect. Blog of the International Journal of Constitutional Law.
About the Authors
Elizabeth Macpherson is a Senior Lecturer in the School of law, University of Canterbury in New Zealand. Macpherson is working and researching issues of environment, natural resources and indigenous law, with a particular interest in indigenous rights to water in New Zealand, Australia and Chile. Ms. Macpherson is a Member of WCEL and the WCEL Specialist Group on Water and Wetlands.
Julia Torres Ventura is a PhD student in the University of Canterbury. She is experience and interest are environmental and indigenous rights. Ms. Ventura is a Member of WCEL and the WCEL Specialist Group on Water and Wetlands.