Rights of Nature in Practice: A Case Study on the Impacts of the Colombian Atrato River Decision

Abstract

In recent years, several countries have adopted a new legal approach to address ecological damages by granting fundamental rights to non-human natural entities. Yet, little is known about the actual impacts of this new constitutionalism of nature on environmental protection. This article seeks to better understand these impacts by presenting a case study of the Colombian Atrato River decision. Based on implementation reports and qualitative interviews with the river’s legal guardians and state officials, it argues that rights of nature can be an important impetus for change. However, at least in Colombia, their impacts relate less to legal standing of natural entities, as presumed in the literature, but rather to improvements in policymaking. To transform complex ecological crises in weak governance areas, strengthening local state institutions and integral environmental policies are more important than rights of nature. But they can play a role in this regard.

1. INTRODUCTION: RIGHTS OF NATURE BEYOND THE LAW AND THE COURTROOM

As the earth is entering an environmental crisis unprecedented in human history, scholars in environmental law increasingly question the field’s ability to respond to the continuing deterioration of its ecosystems.¹ Arguing that environmental law ‘has failed to keep humanity from crossing critical planetary boundaries’, they hold that new legal approaches are necessary to navigate the current ecological changes.² One approach discussed in this context is a new constitutionalism of nature, both at the international and national level, which grants fundamental rights to non-human natural entities, recognising them as subjects of rights or right-holders.³ Often associated with the ontologies and customary laws of indigenous peoples, which perceive natural entities such as rivers or mountains as living beings, this approach departs from an anthropocentric conception of nature as property, worthy of protection only for the services it provides to humans.⁴ Instead, it is often associated with a biocentric perspective according to which ‘all forms of life have the right to exist, persist, maintain and regenerate their vital cycles [and] humans have the legal authority and responsibility to enforce these rights on behalf of nature’.⁵ In law, the rights of nature approach is usually traced back to the influential work of Christopher Stone, who famously asked in 1972 whether trees should have legal standing in the USA, affirming this question less on ontological, but rather on practical grounds related to legal gaps in the protection of the environment. In this context, he argued that the US legal system failed to adequately address environmental damages. First, because it limited the right to institute legal proceedings before a court to persons able to demonstrate related individual injuries; secondly, because it did not consider damages to the environment, but only environment-related damages to humans in granting relief; and thirdly, because such relief was not going to the natural entity, but only to affected human beings.⁶ To improve protection, he suggested to recognise non-human natural entities as right-holders, granting them with legal standing in court and making them the direct beneficiaries of legal redress. These rights could be enforced by a guardianship body who could initiate legal action and collect relief on behalf of the natural entity, which could then be directed into a fund to preserve and restore its condition.⁷

These ideas still characterise the global rights of nature movement, which increasingly gains momentum at the international, but especially at the national level, with several jurisdictions acknowledging rights of natural entities in recent years.⁸ In particular, this applies to the protection of rivers, which lawmakers and courts in countries as diverse as Ecuador, Colombia, Bangladesh, India, Uganda and New Zealand recognised as legal subjects. In these cases, the legal representation of natural entities is often entrusted to local indigenous communities, assumed to be their most suitable stewards for close and sustainable relations with nature.⁹ While these developments have attracted considerable attention in environmental law debates, most research focuses on the significance of rights of nature in legal theory or on their legal construction and implications, often from a comparative law perspective. In contrast, the actual impacts of rights of nature in different jurisdictions have received far less attention thus far, with the consequence that their relevance to actually improve environmental protection remains an open question.¹⁰ This article is based on the conviction that environmental law scholarship should not be limited to the legal analysis of laws and court decisions, but also consider their impacts on the environmental problems they seek to address in the first place, that is, their implications beyond the law and the courtroom. In order to understand whether rights of nature provide a viable approach to respond to the ongoing deterioration of the earth’s ecosystems, scholars in environmental law should analyse the experiences of the countries that have already recognised such rights, examining the responses of relevant actors involved in environmental protection.

Against this background, the present article seeks to contribute to a better understanding of the impacts of rights of nature by presenting a case study of the 2016 Atrato decision in Colombia, in which the country’s Constitutional Court recognised the Atrato River as a legal subject.¹¹ Since then, several other decisions have taken up this ecocentric approach, granting legal personality to further Colombian rivers, including the Magdalena, Cauca, Río de la Plata, Coello, Combeima, Cocora and Otún, but also to other ecosystems such as the lake Tota, the Pisba highlands, the Los Nevados National Park and even the entire Colombian Amazon.¹² Considering this development, it is not unfair to say that Colombia is today at the forefront of a ‘new constitutionalism of nature’ and that the globally emerging ‘concept of ecosystem rights is being shaped by Colombia’s experience’.¹³ As such, Colombia and the Atrato ruling, in particular, as its first and most prominent decision recognising rights of nature, constitute an interesting case to study the effects of rights of nature on environmental protection. The article explores these effects four years after the ruling from a socio-legal perspective, distinguishing between direct and indirect as well as material and symbolic effects in the analysis of court decisions. Methodologically, it is based on a review of implementation reports issued by the ruling’s monitoring body and on 12 qualitative interviews and focus groups with 23 experts involved in implementation, conducted by the author between 2019 and 2020 in Colombia.

Assuming that the impacts of court decisions need to be understood in their social context, this article situates the ruling, in the second section, within the local dynamics it seeks to address. The third section presents the ruling in more detail, focusing on its most significant characteristic: the combination of rights of nature with a set of structural public policies orders that aim to translate the river’s rights into practice and create a new model of governance in protecting it. The fourth section then examines the impacts of the ruling. In contrast to the rationale brought forward in the theoretical debate, these impacts relate less to an improved legal representation of the river in court. In fact, the capacity of its legal guardians to collect damages on its behalf remains unclear and has not played any role four years after the ruling’s adoption. But the ruling has led to a new form of governance in designing policies to protect the river’s ecosystem, which is characterised by an increased participation of local communities in their capacity as river guardians and which has resulted in more integral environmental policies to protect the river. Yet, the implementation of these policies is highly uncertain considering the complexity of the problem and the continuing inabilities of local state institutions.

2. THE ATRATO RULING IN CONTEXT: AFRO-DESCENDANT COMMUNITIES, ARMED GROUPS AND ILLEGAL GOLD MINING IN CHOCÓ

Before presenting the Atrato ruling in more detail, this section outlines the social and environmental dynamics it seeks to address, assuming that the significance of a ruling, but also its functionality and impacts can only be understood in relation to the context in which it operates. The Atrato ruling results from a tutela¹⁴ filed by the non-governmental organisation Tierra Digna on behalf of various afro-descendant communities, represented in the community councils of Cocomopoca, Cocomacia and Asocoba, as well as in the organisation Fisch.¹⁵ These communities historically reside at the riverbanks of the Atrato and its inlets in the department of Chocó, which stretches along the Colombian Pacific Coast, flanked by the Andes’ Western cordillera in the East and bordering with Panama in the North. The Atrato, one of Colombia’s most extensive rivers, originates in the Western cordillera, at 3,900 m over sea level, and then crosses the department, receiving the waters of more than 15 other rivers, before it flows into the Caribbean Sea.¹⁶ Because of constantly high temperatures and extreme precipitation rates, Chocó is covered by extensive tropical and subtropical moist forests and considered to be one of the most biologically diverse regions in the world, hosting large numbers of endemic species.¹⁷ At the same time, the department is rich in natural resources such as gold and timber.¹⁸ Nonetheless, almost half of the population live in extreme poverty while around 80% find their basic needs unsatisfied.¹⁹ Among other aspects, this is due to a historical absence of the state, evident in a lack of health care, education, housing, transport and infrastructure; an economy almost exclusively focused on gold mining; and difficult geographic and climatic conditions that increase the costs of production and isolate the department from the rest of the country.²⁰ In this sense, Chocó is often referred to as a ‘forgotten’ region. In addition, the department has been among those most severely affected by the country’s internal armed conflict, suffering from the presence of all major armed groups and from humanitarian law violations committed by all sides, including the military. This is reflected in more than four hundred thousand forcibly displaced persons among its inhabitants.²¹

Another distinctive feature is that Chocó’s population consists in 87% of afro-descendant and in 10% of indigenous communities. Organised in community councils and indigenous reservations, these communities enjoy rights of self-government and own 96% of the department’s surface in the form of collective land titles.²² The majority of the afro-descendant population originates from slaves, who were brought by the Spanish to work in the gold mines of Chocó in the 17th century, which constituted the most important source of gold for the empire at that time.²³ The Spanish obliged the slaves to form work crews dispersed along the riverbanks, who had to procure their own food, which is why half of these groups were dedicated to mining, while the other half was engaged in agriculture, applying techniques inherited from Africa. This organisation led to the emergence of new social and cultural practices related to nature, family, work, property and religious beliefs.²⁴ Over time, in particular, after the abolition of slavery, these communities populated the department through its rivers, settling along their banks. As such, the rivers historically have a central place in the life of these communities. They play a fundamental role in securing their livelihoods, traditionally based on subsistence agriculture, fishing and alluvial gold mining; they are fundamental for their water supply and sanitation; and they provide the main form of transportation, which is essentially fluvial in the whole department.²⁵ In addition, the river is also the social centre of these communities. It is where they wash, where they clean their cloths and cooking utensils, where they meet and where the children have fun in the water.²⁶ As a consequence, there is a close and intimate relationship between the communities and the river, which can be observed in expressions like ‘he doesn’t like to get out of his river’ or ‘when I go back to my river’, indicating a notion of home.²⁷

Although gold mining constitutes an ancestral practice and source of income for the afro-descendant communities living in Chocó, the conditions under which it is extracted have changed in recent years. The communities’ artisanal subsistence mining practices are characterised by the use of handmade equipment and manual extraction methods, transmitted from generation to generation, without applying chemicals.²⁸ This includes small-scale hard rock and alluvial mining, such as the barequeo, which consists in washing sands from the riverbed or banks with water, using troughs, pans and plant saps to separate the minerals.²⁹ However, since the 1980s, these traditional techniques have increasingly been replaced by mechanised forms of mining, characterised by the use of heavy machinery, including backhoes, dredges, motor pumps, bulldozers and dump trucks, and by the massive application of chemicals such as mercury and cyanide.³⁰ Today, these techniques constitute the dominant form of gold mining in Chocó.³¹ In this form of mining, the local communities only play a limited role, given that they do not possess the means to acquire such machinery. Yet, various forms of semi-mechanised mining, including the use of chemicals, are gradually transforming their traditional mining practices and increasingly constitute an alternative livelihood to subsistence agriculture.³² Mechanised mining is mostly carried out by small- and medium-sized enterprises, often from outside the region, operating illegally. According to the Ministry of Mines, out of 507 mining units surveyed in the region in 2011, 99% operated without a mining title and only four with a mining licence. At the same time, Chocó’s mining sector accounts for more than 25% of national gold production and 15% of the department’s gross domestic product.³³

Large parts of the sector are under the control of organised armed and criminal groups, including the ELN, the AGC and residual groups of the demobilised FARC-EP.³⁴ These groups engage in violent confrontations with each other and also with the military, with serious humanitarian consequences for local communities, including confinement, displacement and accidents involving anti-personal mines and unexploded ordnance. Furthermore, they also extort and exercise social control over communities, recruiting minors and committing selective killings, in particular, of community leaders perceived to cooperate with the state or competing armed groups or as acting against their interests.³⁵ For these groups, illegal gold mining constitutes an important source of revenue and also an opportunity to launder proceeds from drug-trafficking. They directly exploit and control mines through front men, but also extort actors along the local supply chain, including those who produce or trade illicit metals and those who provide production means. This form of ‘taxation’ constitutes the most important revenue source for the armed groups in the region.³⁶ As such, ‘the relationship between armed groups and illegal mining revolves around territorial control, which in turn explains the continuing clashes [among different groups]: whoever controls the territory, controls access roads, mineral resources [and] movement corridors.’³⁷ In this context, it has been argued that the relations between armed groups and mining actors are less based on confrontation, but rather on collusion, in the sense that the armed groups infiltrate and instrumentalise miner’s associations and protect illegal mining activities against authorities and local communities.³⁸ These protection strategies also imply intimidation and corruption of regulatory authorities.³⁹ In fact, corruption of local officials by armed groups and mining actors themselves seems to play a key role in sustaining the illegal mining sector. With respect to the security forces, for example, it is reported that military and police officials take bribes for turning a blind eye to illegal mining operations and for allowing heavy machinery to pass checkpoints and reach the sites, where gold is mined illicitly.⁴⁰ These corruption practices play out in combination with the overall regulatory weakness of the public authorities in the region and also the political incentives of maintaining an industry that accounts for large parts of the local economy.⁴¹ Besides the operators of illegal mines, this economy also involves networks of refiners, traders and other businesses, such as petrol stations and wholesalers of machinery, some of which are said to enjoy considerable leverage over local politics.⁴²

At the same time, illegal gold mining has caused ‘serious socio-environmental conflicts and degradation of ecosystems to the point where it is impossible to recover them’.⁴³ Among the principal environmental impacts are deforestation, sedimentation and the discharge of oils, fuel residues, mercury and cyanide into soils and water, which have resulted in significant alterations of the river course, loss of biodiversity and contamination, causing grave risks to human health, water supply and food security.⁴⁴ To put it into more vivid language, illegal mining has ‘razed ten thousands hectares of forests … , leaving pits poisoned with mercury’, which filters into the rivers, ‘creating unprecedented ecological damage and threatening the health of local communities for generations to come’.⁴⁵ Furthermore, mining has caused social problems related to the proliferation of prostitution and diseases, conflicts between neighbours over the use and ownership of lands apt for mining activities and a loss of traditional agricultural and food practices, which threaten the social and cultural fabric of the communities.⁴⁶

3. THE ATRATO RULING: COUPLING LEGAL RECOGNITION OF NATURAL ENTITIES WITH A NEW GOVERNANCE MODEL FOR PUBLIC POLICY

Against the background of the devastating environmental and social impacts caused by illegal mining in the Atrato region and the failure of the State to address them, the Colombian Constitutional Court ruled in favour of the claimant communities in 2016.⁴⁷ This ruling constitutes a landmark decision in the country’s constitutional system, given that the Court not only protected the claimant’s rights to life, health, water, food, territory, culture and a healthy environment, enshrined in the country’s progressive 1991 Constitution, but also pushed the boundaries of constitutional law by recognising, for the first time, a non-human natural entity as a subject of rights and by introducing the concept of biocultural rights of indigenous and afro-descendant communities.

Reasoning that the protection of the environment is ‘a fundamental objective’ and ‘transversal element of the Colombian constitutional order’, that the relationship between the constitution and the environment is ‘dynamic and in permanent evolution’ and that ‘the greatest challenge contemporary constitutionalism faces consists in safeguarding and effectively protecting the environment’, the Court adopted, for the first time, an explicit ecocentric approach to environmental protection, granting legal personhood to the Atrato River.⁴⁸ The Court’s understanding of the ecocentric approach ‘starts from the basic premise that the earth does not belong to humans and, on the contrary, assumes that humans belong to earth, as any other species.’⁴⁹ Pursuant to this perspective, humankind does not own nature, which the Court considers a subject of rights in its own right. The constitutional imperative of protecting nature not only derives from the dependency of humans on a healthy environment to be able to lead a life in dignity and wellbeing, ‘but also in relation to the other living organisms, with which we share the planet, conceived as existences worthy of protection in themselves’.⁵⁰ According to the Court, this approach is of particular relevance in the Colombian constitutional order, given the ample protection it provides to ethnic and cultural pluralism and considering that the knowledge, practices and customs of the country’s indigenous and afro-descendant communities are closely linked to nature and biodiversity.⁵¹ In this context, the Court introduces the concept of biocultural rights:

In their simplest definition, [biocultural rights] refer to the rights of ethnic communities to autonomously administer and protect their territories – in accordance with their own laws and customs – as well as the natural resources that constitute their habitat, where their culture, traditions and way of life are developed based on their special relationship with the environment and biodiversity. In effect, these rights result from the recognition of the profound and intrinsic connection that exists between nature, its resources and the culture of ethnic communities … , which are interdependent and cannot be understood in isolation.⁵²

The Court’s concept of biocultural rights does not formulate new rights for indigenous and afro-descendant communities, but seeks to integrate existing constitutional rights to their natural resources and their culture within a single category, acknowledging that ‘the multiple forms of life expressed as cultural diversity are inherently linked to the diversity of ecosystems and territories’, and that ‘the relations of the different ancestral cultures with plants, animals, microorganisms and the environment actively contribute to biodiversity’.⁵³ As such, the concept’s relevance mostly lies in the recognition that the protection of cultural diversity, enshrined in the Colombian constitution, necessarily implies to protect biological diversity and vice versa; that the two are actually two sides of the same coin, expressed in the term of ‘bioculturality’.⁵⁴ In addition, the concept has important implications for environmental governance in the sense that integral public policies to protect the environment should ‘recognize the link and interrelation between culture and nature, extend the participation of ethnic communities in the definition of … regulatory frameworks, and guarantee the conditions conducive to the generation, conservation and renewal of their knowledge systems’.⁵⁵ Against this background, and considering the extent of environmental degradation of the Atrato, the Court found it necessary ‘to take a step forward in the jurisprudence on the constitutional protection of one of our most important sources of biodiversity’.⁵⁶ Based on the superior constitutional interest in the environment and the notion of biocultural rights, it adopted an ecocentric approach, declaring the Atrato to be a subject of rights, entitled to protection, conservation, maintenance and restauration; and entrusting the government, together with the communities inhabiting the Atrato region, with the legal representation of the river. To this end, the ruling mandates each side to select one representative. These, in turn, are tasked to form a commission of guardians, consisting of these representatives and an advisory group, including environmental organisations.⁵⁷

Perhaps the most distinctive feature of the Atrato decision is that it couples the river’s legal recognition with a comprehensive set of procedural orders to the respondent state entities regarding the formulation of public policies to protect the rights of the river as well as an interinstitutional monitoring mechanism to follow up on their implementation. This approach constitutes a peculiarity of Colombian constitutional law. In its quest to make fundamental rights a reality, the country’s Constitutional Court has developed a practice of ‘dialogical judicial activism’ that interferes in the realm of legislature in a way that would be considered inconsistent with the separation of powers in other countries.⁵⁸ This is reflected in important decisions, in which the Court extended the effects of the ruling beyond the parties and required the executive to create and implement new public policies to address situations of widespread fundamental rights violations. In these cases, the Court maintained jurisdiction after the verdict and supervised implementation in dialogue with respondent state entities and civil society as a form of follow-up mechanism.⁵⁹ For example, in the most prominent case of this nature, concerning the humanitarian crisis of the country’s forcibly displaced population, the Court held 14 public audiences to discuss implementation after the verdict and issued 84 follow-up rulings, shaping the country’s public policy in this arena.⁶⁰ The Court applied this approach also in the Atrato decision, which has effects beyond the parties and whose implementation is overseen by the first instance tribunal in regular hearings on the basis of monitoring reports issued by an interinstitutional Monitoring Committee.⁶¹ This Committee is comprised of the Procurator’s, the Comptroller’s and the Ombudsman’s Office, which, in line with their constitutional mandates of protecting the public interest and controlling the conduct of public officials, issue biannual reports on the state of implementation of the different public policy orders contained in the ruling, verifying compliance of the respondent state entities.⁶² The respective public policy orders address a wide range of state entities at the national, departmental and municipal level and relate to the environmental restauration of the river system, the neutralisation of illegal mining, the recovery of traditional forms of subsistence of adjacent communities and the conduct of toxicological and epidemiological studies:

Environmental restauration

To the Ministry of the Environment and Sustainable Development, Ministry of Finance, Ministry of Defence, Governorate of the Department of Antioquia, Governorate of the Department of Chocó, the departmental environmental authorities Corporurabá (Antioquia) and Codechocó (Chocó), as well as the respondent municipalities⁶³: Develop and initiate, within one year after the ruling’s notification, a plan to decontaminate the Atrato River basin, its inflows and the riparian territories, to recover their ecosystems and prevent further environmental damages. This plan shall be developed with the support of environmental organisations an in conjunction with the claiming communities and include measures such as (1) the restoration of the Atrato River bed, (2) the elimination of sand banks formed by mining activities and (3) the reforestation of areas affected by legal and illegal mining.⁶⁴

Neutralisation of illegal mining

To the Ministry of Defence, National Army, National Police Unit Against Illegal Mining, Attorney General’s Office, Governorate of the Department of Antioquia, Governorate of the Department of Chocó, as well as respondent municipalities: To develop and implement, within six months of notification, in conjunction with the claiming communities, a joint action plan to definitively eradicate illegal mining not only in the Atrato region, but in the whole department of Chocó. These actions should involve the seizure and neutralisation of heavy machinery, the restriction and prohibition of the transit of inputs, such as fuel and chemicals, in particular, mercury and cyanide, and the judicialisation of the responsible organisations and persons, including foreigners engaged in illegal mining.⁶⁵

Recovery of traditional subsistence forms

To the Ministry of Agriculture and Rural Development, Ministry of the Interior, Ministry of Finance, Department of National Planification, Department of Social Prosperity, Governorate of the Department of Antioquia, Governorate of the Department of Chocó, as well as respondent municipalities: Within six months, in concertation with the claimant communities, to develop and implement an integral action plan so as to recover their traditional practices of subsistence and alimentation, with the objective of ensuring food security and preventing mining-related displacements. This plan should be aimed at restoring the rights of indigenous and afro-descendant communities, in particular, with respect to their culture, participation, territory, identity, way of life and productive activities, including fishing, hunting, agriculture and artisanal mining.⁶⁶

Toxicological  and epidemiological studies

To the Ministry of the Environment and Sustainable Development, Ministry of Health, National Institute of Health and the departmental environmental authorities Corporurabá (Antioquia) and Codechocó (Chocó): Within nine months, with the support of civil society organisations, to conduct toxicological and epidemiological studies of the river system, with the aim of determining the degree of contamination by mercury and other toxic substances and their effect on human health.⁶⁷ In addition, these entities must structure a baseline of environmental indicators in order to have a measurement instrument that allows them to affirm the improvement or deterioration of the conditions of the Atrato River basin in the future.

The innovativeness of this set of public policy orders to restore the rights of the river and local communities is that it acknowledges the interrelatedness of protecting the environment and the communities’ cultural practices, based on the concept of bioculturality, and that it aims at the creation of a new governance model of formulating and implementing public policies. A model that is based on better coordination between the responsible state entities at the local, departmental and national levels so as to create integral public policies, and that involves, as a transversal element, the participation of the local communities and the river’s guardians in the formulation and implementation of these policies.

4. THE EFFECTS OF THE ATRATO RULING

While the Atrato decision has attracted considerable attention nationally and internationally, both in media and academia, research on its impacts on environmental governance and protection in the river basin is largely absent.⁶⁸ The present article addresses these impacts from a socio-legal perspective. Drawing on the work of Rodríguez Garavito and Rodríguez Franco, it adopts a qualitative approach that analytically distinguishes between material and symbolic as well as direct and indirect impacts of court decisions.⁶⁹ According to this approach, material effects refer to observable changes in the behaviour of groups and individuals, whereas symbolic effects relate to changes in ideas, perceptions and social constructions with respect to the subject matter. Direct effects, on the other hand, are those that affect the parties to the lawsuit, while indirect effects include all kinds of consequences that derive from the ruling, also for other groups, without being foreseen in the decision.⁷⁰ For example, a direct symbolic effect may be the redefinition of a social problem, previously considered as an issue of philanthropy, to constitute a violation of state obligations, transforming persons in need from supplicants into right-holders. An indirect symbolic effect may be a change in public awareness and opinion on the gravity of the problem.⁷¹ These impacts are often highly important, given that they can alter the public discourse and with it the political significance of an issue. Yet, this article prioritises the material effects of the Atrato ruling and in particular its direct material effects, that is, its impact on the conduct of the respondent state entities with respect to the implementation of the different court orders. In addition, it focuses on the material implications of awarding legal personality to the Atrato River. The period of analysis covers the first four years of implementation, from the adoption of the ruling in November 2016 to December 2020, when the last interviews for the article were conducted.

Empirically, the analysis is based on a review of the first six implementation reports issued in this period by the monitoring committee established under the ruling and on 12 qualitative interviews and focus groups with 23 experts involved in implementation.⁷² These include the claimant organisations Asocoba, Cocomacia and Fisch (five persons), their legal representatives of the non-governmental organisation Tierra Digna (one), the guardians of the river among local communities (four), the Ministry of the Environment and Sustainable Development (three), the Ministry of Defence (three), the Attorney General’s Office (one) as well as the Procurator’s (two), the Ombudsman’s (three) and the Comptroller’s Office (one), which jointly conform the Monitoring Committee.⁷³ The interviews were of explorative nature and based on semi-structured questionnaires tailored to the specific expertise of the interviewees. Given the difficulties of accessing the field, these were chosen through snowball sampling.⁷⁴ The author conducted these interviews in Spanish and then partially transcribed and coded them, with a view to identify the most relevant impacts of the decision and the main advances and obstacles in implementation.⁷⁵

4.1 State of Implementation: Towards a New Model of Inclusive Governance

Thus far, the material effects of the Atrato ruling primarily relate to the implementation of its public policy orders and consist, in large parts, in coordination, planification and, to a lesser extent, resource allocation activities by the respondent state entities. This includes the creation of the required coordination bodies in 2018, that is, the Intersectoral Commission for Chocó and the Commission of Guardians of the River Atrato, which consists of the Ministry of the Environment and the so-called Collegial Body, comprising seven male and seven female guardians representing the communities in the Atrato region.⁷⁶ In addition, the respondent state entities have invested considerable effort in the formulation of the required action plans. However, it must be noted that only the plan to eradicate illegal mining was adopted within the established time limits under the ruling. This plan was submitted by the Ministry of Defence in December 2017, with a focus to strengthen the legal framework, to improve relations with local communities and to better articulate intelligence and counter-intelligence activities, criminal investigations as well as police and military operations.⁷⁷ However, the plan does not formulate clear targets, costs and baseline indicators against which performance could be measured. Nor did its development process comply with the requirements set by the ruling in terms of participation of local communities and coordination with other state entities, in particular, at the local level. In this context, the Ministry of Defence cites confidentiality requirements so as to prevent leaks of sensitive information.⁷⁸ The Ministry of Environment submitted its action plan on the remediation of ecological damages only in December 2019, with a delay of more than two years, while the Ministry of Agriculture and Rural Development, responsible for the recovery of traditional forms of subsistence, finalised its plan only by the end of 2020, with a delay of more than three years.⁷⁹ While the construction of the action plans required significant resources, in particular, with respect to extensive coordination and socialisation exercises in the difficult-to-access Atrato region, their actual implementation in the form of concrete projects in the territory still remained in an early stage four years after the ruling’s adoption. In this sense, material effects are largely limited to the court orders to conduct toxicological studies and to eradicate illegal mining activities. In addition, there have been some advances with respect to the plan to restore the environment, where a rather small number of prioritised projects have entered the stage of implementation.⁸⁰ These include, for example, a project to restore a mining-affected area of 300 hectares, a study to determine mercury concentration and damages in mining-affected areas, but still without sufficient financing, or a project to enhance the capacity of communities to resolve water-related conflicts.⁸¹ As regards the implementation of the plan to eradicate illegal mining, there have been some advances in the legal field, such as the ratification of the Minamata Convention, which aims to protect human health and the environment from the adverse effects of mercury, or the formulation of a draft law, currently in Congress, that seeks to improve the judicialisation of illegal mining along the value chain by penalising the trade and transport of illicit minerals and mercury use.⁸² In addition, the Ministry of Defence regularly reports statistics on the results of police and military operations against illegal mining sites, such as the numbers of destroyed machinery and equipment. According to some interviewees, these operations have led to a significant reduction of mining sites in the river Atrato, while others stress that they have merely led to a relocation, in particular, to the inflow Río Quito, and that illegal mining activities have actually increased in recent years.⁸³ Given the absence of a baseline and clear indicators in the plan of the Ministry of Defence, these claims are difficult to evaluate.

In sum, the respondent state entities took much more time in constructing their actions plans than was foreseen in the ruling and the implementation of these plans remains in its infancy, perhaps with the exception of the plan to eradicate illegal mining, which corresponds to important security interests in combating organised armed and criminal groups. As such, the most significant material effects thus far relate to the new governance model foreseen in the ruling with respect to the formulation of the action plans in terms of inter-institutional coordination and participation of local communities. In the words of a river guardian from a local community: ‘There haven’t been many substantial changes, the implementation of the plans hasn’t yet been effective. But it has only been three years. And the process enabled us to directly talk to the government, so that they know our perspectives. That is fundamental to us: to be heard, share our problems at the local and national levels.’⁸⁴ However, especially in the beginning of the implementation process, the respondent state entities rather followed a reactive approach towards the ruling, not articulating with the river guardians and communities and submitting plans that basically constituted inventories of their projects in the region⁸⁵:

When the sentence came out, what did the respondent state entities do? Their first reaction was to rush to comply. That’s their logic with respect to legal decisions: comply so as to get rid of the judge. You see that very often, when there is a legal decision, but the institutions do not believe in it. They try to comply with the judge, not with their mission. So, their first reaction was to rush and see how they could comply. That’s when they took an excel sheet, listing all the programs and projects they have in the region. They did that in Bogotá, far away from the communities. There was zero dialogue and consultation. … When they finally went to the region in May 2018 and invited the community guardians, there was a strong clash. The community guardians said “this is not how we do things here, we need to work from bottom-up, we need to sit down and construct together”.⁸⁶

While the construction of the plans to eradicate illegal mining and restore traditional subsistence practices did not involve substantial participation, the Ministry of the Environment changed its approach of constructing its plan to restore the river’s environment in the course of 2018.⁸⁷ With the assumption of office of a new Minister and the commencement of the work of the Commission of Guardians, involving both the Ministry and the Collegial Body of community guardians, the Ministry started to view the ruling from a different perspective, not merely as a respondent state entity required to comply with orders, but as a guardian of the river:

The Ministry of the Environment has a double function: On the one hand, it is a respondent state entity. But on the other, it is also a legal representative of the river. And in that function, it has to lead in the Commission of Guardians and work together with the community guardians. Although the resolution creating the Commission was already there, it hadn’t really taken up its work. But with the change in government, there was a new dynamic of more direct, more close dialogue. The Commission of Guardians started to convene regularly and there were advances. And in that moment, there was also a leap in the Ministry’s other role as a respondent state entity. So, the Ministry distanced itself a little from that logic of a national government entity and starts to develop the plan to restore the environment working together with the community guardians.⁸⁸

In the course of this collective construction process, the Ministry conducted over 40 technical workshops with communities and community guardians and also with the relevant departmental and local level state entities, touring all 15 respondent municipalities and also 11 other municipalities within the large and difficult-to-access Atrato region.⁸⁹ This process culminated in the adoption of an extensive plan of 193 pages and 5 annexes to restore the environment in December 2019.⁹⁰ The objectives of this plan consist in conserving, maintaining, protecting and restoring the ecosystems of the river basin for its sustainable use and management, through a process of collective construction that respects and guarantees territorial autonomy, the communities’ own views of development and their biocultural rights.⁹¹ To this end, the plan formulates five thematic pillars, which not only relate to environmental protection, but also to sustainable production and governance: environmental planning and regulation, improvement of environmental conditions, sustainable production, environmental governance as well as information and knowledge management.⁹² As such, the plan incorporates the concept of bioculturality. Each of these pillars formulate several sublines, such as water management, riverbed restauration, remediation of mercury-affected areas, reforestation or environmental education, defining responsibilities, projects, timeframes and measurement indicators.⁹³ According to the community guardians and the claimant communities, this plan was constructed on the basis of their integral participation and fully incorporates their perspectives and positions.⁹⁴

4.2 The Effects of Awarding Rights to the River and the Role of Its Legal Guardians

Considering the state of implementation and the actions of the guardianship body thus far, the most important material effect of awarding legal personality to the river consists in the collective construction of the plan to restore the river’s ecosystem. In this context, the creation of the guardianship body, comprising both the Ministry of the Environment and the community guardians, has led to a more coordinated and participatory formulation of more integral public policies to enforce the river’s rights to protection, conservation, maintenance and restauration, as well as the related biocultural rights of the local communities. As a consequence of its new role as a guardian of the river, the Ministry of the Environment, for its part, adopted a much more proactive and participatory governance approach, reinventing its ways of formulating public policies and assuming a leadership role in the coordination with other state entities:

We started to act in all the bodies that were created. The Intersectoral Commission for Chocó integrates all the respondent state entities. We associated others, the Ministry of Transport, the National Roads Institute, for the competences they have in the context of re-establishing the river course. As the river’s legal representative, we always advocate for integral policies. We proposed the plan to restore the environment to the Intersectoral Commission and the whole national government agreed to work together in its five pillars. In a model of integral governance that allows us to have greater impacts, better projects and to collaborate in a more articulated way. We achieved that on the basis of the legal representation of the river.⁹⁵

On the other hand, the communities residing in the Atrato region gained a much stronger voice in policymaking in their role as community guardians: ‘The plan to restore the environment reflects our perspectives. We developed it together with the Ministry and the other institutions. We participated in that, at the same level as the Ministry. Everything was decided with us, everything was coordinated with us. We are completely reflected in it.’⁹⁶ These developments constitute a major advance in a country, where public policies for far-off and historically neglected regions such as Chocó are often ‘developed from the desk in Bogotá, by persons, who have never visited these regions, who don’t know these regions. For that, it was so important that the sentence requires the participation of the community guardians, … that the Court required the government to work with us, that they had to construct the plans with us, that every intervention in the course of the sentence in the territory has to be accorded with us.’⁹⁷

Correspondingly, the work of the guardianship body has thus far focused on the collective and participatory construction of public policies. In addition, the community guardians have invested high efforts in educational and socialisation activities with communities in the territory. In this context, the legal recognition of the river has led to important symbolic effects in terms of enhancing environmental awareness among communities.⁹⁸ In contrast, the judicial means of the guardianship body to enforce the rights of the river have not played any role in its work thus far.⁹⁹ This is an interesting aspect, given that the rights of nature debate generally relates the added value of granting rights to natural entities to legal standing, that is, the ability of their guardians to initiate legal actions and collect damages on behalf of the natural entity. However, neither the Ministry of the Environment nor the community guardians have yet truly considered the possibility of instituting legal proceedings on behalf of the river. The Ministry, on the one hand, considers that, ‘for the moment, it has not been necessary to institute proceedings against a government entity, because the level of articulation is very good. But we would of course institute such proceedings against an entity or a mining enterprise that is not complying with environmental law.’¹⁰⁰ Many community guardians, on the other hand, lack legal expertise and rather see themselves as interlocutors between the communities and the government, whose main task is to represent the communities in the construction of the public policies required under the ruling:

We serve as an articulating entity. We articulate between the government and the communities, as an intermediary. Our responsibility is to ensure compliance with the court orders with respect to the formulation of the plans. We are the link between the communities and the government. More important [than the institution of legal proceedings] are the socialization of the ruling, participation, to be the voice of the communities. But we can’t ignore these capabilities. Although we are no experts on legal issues. We have to learn much more in this regard.¹⁰¹

According to the communities’ legal representatives in the Atrato decision, this lack of consideration of judicial actions on behalf of the river by the community guardians, for example, against an operator of an illegal mine, also results from the fact that the communities never asked to be the legal representatives of the river and have not yet fully understood its implications. To them, the more important issue is compliance with the ruling’s public policy related orders:

The communities did not request the legal recognition of the river. That was an additional result of the ruling. They want that the respondents comply with the ruling. Because this ruling, beyond granting rights to the river, takes up their vision of the territory, the importance of their ways of living, of their participation in public policies, of their own forms of development. That was their request in the ruling. I think this is why their focus is on the implementation process and not on other judicial scenarios. … In fact, in this process, it has always been an issue to remind them that they are talking for the river, that they have to think in the river, that they are the representatives, the voice of the river. … For them, the figure of the river as a legal subject continues to be somewhat distant, a little strange. To identify it as a subject, with own rights, own interests, that is not so clear to them. They rather see the river from the perspective of bioculturality. I feel that they are, above all, representatives of their communities and only in a second place, representatives of the river. That figure has not transcended so much.¹⁰²

An additional factor in this context is the security situation in the region, that is, the presence of organised armed and criminal groups benefiting from illegal mining. As a consequence, many guardians perceive that their participation in a criminal or civil action against local public or private actors involved in this sector could imply risks for their security and physical integrity.¹⁰³ However, some consider that it is necessary to assume a more adversarial approach with respect to those state entities that have thus far not adequately participated in the implementation of the ruling’s public policy related orders. In particular, this applies to some departmental and municipal authorities.¹⁰⁴ Yet, they see the Monitoring Committee in a better position to act, especially the Procurator’s Office, whose constitutional mandate includes the institution of disciplinary proceedings against public officials not complying with their responsibilities. However, such proceedings have not been instituted thus far.¹⁰⁵

Furthermore, the precise nature of the guardians’ judicial capabilities remains unclear. A respective legal opinion of the Ministry of the Environment largely limits itself to affirming that ‘the implication of being the river’s legal representative is none other than being the guarantor of its rights, by demanding violations, denouncing those who attempt to violate them and, in general, exercising effective protection’.¹⁰⁶ A more detailed opinion of the Panel of Experts, which advises the Monitoring Committee, states that the river’s legal guardians can become a party in criminal proceedings, which includes the rights to file applications during the trial and receive compensation. In addition, it holds that the Ministry, in its role as legal guardian, could create accounts and conclude contracts for the purpose of protecting the river with these funds.¹⁰⁷ However, these assumptions have not been tested in a court of law as of yet. In this context, it would have been helpful if the Atrato ruling had further specified the nature of the guardian’s legal capabilities.

Interestingly, the interviewees from the Ministry of the Environment argued that the Ministry could not initiate judicial proceedings, for a lack of legal personality, and that the more appropriate way to address grievances would consist in informing the competent authorities.¹⁰⁸ This seems to imply that legal proceedings on initiative of the Ministry, in its role as a river guardian, cannot be expected in the near future. A relevant aspect in this context is also the bipartisan structure of the guardianship body. While its participation in criminal or civil proceedings against private actors, for example, operators of illegal mines, is politically conceivable, it seems doubtful whether the guardianship body would be able to act against another executive entity that is not complying with its responsibilities, but led by the same government or political party as the Ministry. For the Ministry, this would imply a conflict of interest, which could lead to a paralysis of the guardianship body at the time of reaching a consensus to institute proceedings against such an entity.

A further structural problem of the guardianship body is a lack of resources on the side of the community guardians. The work of these guardians requires extensive efforts in the form of travel, meetings and study, given the highly technical nature of the often-extensive documents related to the ruling’s implementation. At the same time, the role of a community guardian is not remunerated and they have to fulfil also their other professional responsibilities, often within the organisations that nominate them. Nor do they count with own resources to facilitate transport, accommodation and alimentation for meetings with government entities and workshops with local communities in far-off territories. These activities generally have to be financed by the organisations or state entities. This lack of resources greatly limits the community guardians’ ability to comply with their role and puts at risk the functioning of the guardianship body.¹⁰⁹

4.3 Implementation Barriers: A Difficult Path to Make the River’s Rights a Reality

With all plans of the ruling adopted, ahead lies the much longer and more challenging phase of their implementation, which not only includes the momentous tasks of re-establishing the river course and restoring mining-affected areas in the vast and difficult-to-access Atrato basin, but also to transform an entire economy depending on illegal mining—all this in a context of ongoing conflict, poverty, weak institutions and corruption. In all probability, this will be a complicated and lengthy process, with large obstacles and frequent setbacks. In fact, the plan to restore the environment, foreseeing an implementation period over 20 years, already encounters strong challenges in terms of securing the required resources. In this context, the main problem is that the national government does not provide a general budget to implement this plan. Instead, the funds have to be provided largely by the departmental and municipal authorities, on the basis of the taxes they collect, in particular, property taxes. Unfortunately, the respective authorities in the Atrato region are among those that receive very few property taxes, due to large gaps in cadastral registration.¹¹⁰ In addition, these authorities have also been the weak link in the plan’s construction, many of them not regularly participating. Since the plan’s adoption, the Ministry of the Environment has invested large efforts in securing funds for its implementation, socialising the plan with local majors and governors so as to achieve the inclusion of specific projects in their budget planning. Furthermore, the Ministry is trying to secure funds in international cooperation. While these activities have been successful in some cases, the plan’s implementation involves very high costs, so that none of these sources would be sufficient.¹¹¹ As a consequence, there is a risk that the collectively constructed plan to restore the environment remains a plan on paper, which is a great concern among the communities, their guardians and the organisations accompanying them:

There was effective participation in the construction of this plan, the workshops were super participatory, all the communities participated. But what does the government do with that? They need to provide the resources. Otherwise, the plan is useless. If they do not provide the resources, there is a risk that this exercise, that was so valuable, is lost.¹¹²

One measure to secure additional resources could consist in a stronger consideration of legal actions by the guardianship body against private actors involved in illegal mining, so as to ensure compensation funds for the river. However, it seems that an effective implementation of the plan necessarily requires the allocation of significant funds by the national government.

In addition, a sustainable implementation of this plan requires an effective eradication of illegal mining. Otherwise, the environmental damages caused by continuing mining activities could compromise the advances in the restauration of the river’s ecosystem. While there have been selective successes with respect to operations against mining sites, their eradication involves enormous challenges in the region, given the presence of armed groups and the weakness of the local institutions. The latter have important responsibilities with respect to the eradication of illegal mining, but often lack the capacities to comply with them:

According to the law, if you see a backhoe in the mountain, the first person you have to call is the major, who has to instruct the local police. But in those far-off places with weak state presence, that doesn’t happen. The people don’t report crimes, because they feel threatened. And even if they do report to the major, he doesn’t have the means. He can instruct the police, but they will say “difficult”, [because of the armed groups in the region].¹¹³

Moreover, the authorities are sometimes also unwilling to act, due to corruption and the influence mining-related actors enjoy in local politics: ‘For example, the autonomous environmental authorities, they monitor environmental impacts in the departments. But some of them face great difficulties. They don’t have the resources. Or they are too politicized to act against groups or persons not complying with environmental legislation. … There are cases of corruption of local majors. And there is the political issue: “My electorate wants that we are municipality dedicated to mining”.’¹¹⁴ However, these problems not only concern the civilian authorities, but also the public forces, affecting their operations against illegal mining:

When operations come up, there are always channels that leak the information. This is very delicate. We asked the Ministry of Defence to implement strategies to investigate that internally. In Río Quito, the dredges pass right in front of the police station.¹¹⁵

In fact, the difficulties to act against illegal mining sites seem to relate less to their localisation, but rather to their owners’ protection networks in the region. In addition, the effects of military and police operations are also limited, given the large revenues of illegal mining activities. According to the Ministry of Defence: ‘Illegal mining generates millions of dollars a year. You can affect it with the destruction of a dredge, but with the enormous financial capacity they have, they can replace the machinery very fast. We are not eradicating the activity, we are detaining it.’¹¹⁶ In this context, an important step would consist in a more holistic prosecution strategy of mining-related crimes that targets the owners of mining sites and of business enterprises providing supplies and buying illicit metals, together with their support networks in the public sector. However, the Attorney General’s Office in Chocó neither count with such a strategy, nor with a specialised unit investigating illegal mining.¹¹⁷

Besides these governance deficits in the public sector, a fundamental problem in eradicating illegal mining is the population’s economic dependency on this activity. Illegal mining does not only involve organised armed groups, corrupt public officials and foreign businessmen, but also the very same communities who suffer from its impacts, but lack other income opportunities. While ownership of heavy machinery is limited among community members, many have adopted hazardous practices to extract minerals, while others work in mining sites or supply them with goods and services.¹¹⁸ As a community guardian puts it:

To eradicate illegal mining means that 60 per cent of Chocó’s population need to find another job. It’s not only persons from outside the region. Those who work in the mine sites, who deliver them fuel, those are people from here. And there are also persons who own machinery. Why do they do it? Because of necessity. They don’t have any work alternatives to sustain their families. There are communities who know nothing else than mining.¹¹⁹

In addition, many communities discharge their wastewater and dispose their garbage into the river, given the absence of a functioning sewage and waste disposal system, but also a lack of environmental awareness among the communities.¹²⁰ In other words, the river’s environmental protection requires much more than simply recognising it as a subject of rights and entrusting the local communities with its legal representation. At least in the Atrato case, these communities do not all live in unity with nature, as rights of nature advocates sometimes romantically seem to assume, but are characterised by inner divisions, forming part of the problem, due to the lack of infrastructure and income opportunities. As a consequence, the restauration of the river needs to go hand in hand with a transformation of the local economy. This transformation cannot be achieved through a piecemeal approach of implementing an alternative livelihood project here and there, but requires a massive development programme on the side of the national government. Yet, such a programme seems unlikely in the near future, given that the government’s limited resources are currently focused on combating the coronavirus pandemic and will be significantly reduced by its economic impacts.

5. CONCLUSION: RIGHTS OF NATURE IN WEAK GOVERNANCE SETTINGS

As rights of nature are emerging as a new legal approach in various countries, more research is needed to assess their actual impacts on environmental protection and to develop good practices with respect to their legal framing and the design of guardianship bodies. In all probability, the implications of this new approach will differ in accordance with these parameters, but also and more importantly with the legal, political, economic and social contexts of different jurisdictions. As noted in the introduction, the rationale of awarding rights to natural entities and granting a guardianship body with legal standing so as to collect damages on their behalf was first formulated in a country with strong institutions, strong rule of law and a well-functioning legal system, which greatly relies on private law damages in regulating grievances that are elsewhere rather addressed in public law litigation. While the rights of nature approach may have strong impacts in such a context, most countries that have thus far recognised rights of natural entities are quite different. At least, this applies to Colombia, where private law litigation is largely an exclusive domain of corporate lawyers and which is characterised by weak governance capabilities and a historical centre-periphery divide, with dysfunctional state institutions and absence of rule of law in many areas affected by grave environmental damage. Considering the Atrato case and the enormous barriers to enforce the river’s rights, it seems that such contexts, more than the recognition of natural entities as legal subjects and individual civil law proceedings relating to violations of their rights, require large-scale public policy interventions that aim to strengthen local state institutions and to transform the economic drivers causing environmental degradation. In this sense, the Atrato ruling constitutes an example of good practice, given that it not only recognises the river as a legal subject, but also aims at such a structural public policy response that translates the river’s abstract rights into concrete measures. Rights of nature advocates in similar countries should take up this transformative public policy-oriented approach.

Furthermore, the Atrato case shows that there can be a productive interplay between the recognition of natural entities as legal subjects, and public policies through symbolic effects leading to increased public and consequently political attention, but also in the sense that the creation of a guardianship body leads to a new model of policymaking, at least among some government entities. In Colombia, this new model is characterised by stronger participation of affected communities in their role as river guardians. As such, the ruling has resulted in the formulation of more integral policies and helped to bridge the country’s historical centre-periphery divide, at least in their formulation. An important aspect in this context is the bipartisan nature of the guardianship body, comprising both government and affected communities, which has played a significant role in facilitating dialogue between both sides and in enabling participation. However, this structure arguably limits the body’s ability to make use of its judicial capabilities to enforce the river’s rights, at least where such action is directed at government entities not adequately complying with their responsibilities in environmental protection. Interestingly and in contrast to what one would expect on the basis of the rights of nature literature, the activities of the guardianship body have thus far strongly focused on constructive policymaking instead of litigation, with legal actions being considered as an instrument to explore in the future. This seems to be a consequence of the ruling’s focus on public policy, but also of the lack of clarity as to the body’s precise capabilities with respect to civil and criminal law litigation and relating to the administration of compensation funds obtained through such proceedings. In this context, a recommendation for lawmakers and courts in other countries would be to define the legal capabilities of guardianship bodies more clearly in the respective laws and decisions, but also to provide community guardians with legal education. Additionally, they should address the financial means of community guardians, given that a lack of resources, as in the Atrato case, undermines their ability to comply with their responsibilities.

In sum, the recognition of the Atrato River as a legal subject has resulted in some important advances with respect to the formulation of environmental policies in Colombia. Yet, four years after the adoption of the ruling, these advances are not yet reflected in concrete improvements in the river’s environmental condition. In part, this is due to the fact that four years are too short a time to remedy an environmental crisis that has generated over decades and results from a historical absence of the state, combined with armed conflict and structural poverty. Perhaps, there will be improvements in the river’s environmental condition in the years to come that result from the implementation of the public policies formulated under the ruling. However, this involves vast challenges. In fact, the Atrato case suggests that rights of nature advocates should be humble in their expectations with respect to the impacts of this approach on environmental protection in weak governance settings. While rights of nature decisions can create an important impetus for change, actually improving environmental protection in such settings requires much more than awarding legal rights to a natural entity in a courtroom.

CONFLICT of INTEREST STATEMENT

The author has no conflict of interest to report.

Footnotes

1

Louis Kotzé and Rakhyun Kim, ‘Earth System Law: The Juridical Dimensions of Earth System Governance’ (2019) 1 Earth System Governance 1.

2

ibid 4; Louis Kotzé (ed), Environmental Law and Governance for the Anthropocene (Hart 2017) 48.

3

Susana Borràs, ‘New Transitions from Human Rights to the Environment to the Rights of Nature’ (2016) 5(1) Transnational Environmental Law 113; David Boyd, The Rights of Nature: A Legal Revolution That Could Save the World (ECW 2017); on the discussion of a global constitutionalism: Louis Kotzé, ‘A Global Environmental Constitution for the Anthropocene?’ (2019) 8(1) Transnational Environmental Law 11.

4

Erin O’Donnell and others, ‘Stop Burying the Lede: The Essential Role of Indigenous Law(s) in Creating Rights of Nature’ (2020) 9(3) Transnational Environmental Law 403; Mihnea Tănăsescu, ‘Rights of Nature, Legal Personality, and Indigenous Philosophies’ (2020) 9(3) Transnational Environmental Law 429.

5

Borràs (n 3) 114. The differences in ontological approaches manifest in different conceptions of environmental rights: the right to a healthy environment, reflecting an anthropocentric, and rights of nature, reflecting a biocentric approach. For a comparison of different types of environmental rights and a critical appraisal of rights of nature, see Sanja Bogojević and Rosemary Rayfuse, Environmental Rights in Europe and Beyond (Hart 2018), in particular chs 1 and 2.

6

Christopher Stone, ‘Should Trees have Standing? Towards Legal Rights for Natural Objects’ (1972) 45 Southern California Law Review 459f.

7

ibid 480.

8

Cyrus R Vance Center for International Justice and others, Rights of Rivers. A Global Survey of the Rapidly Developing Rights of Nature Jurisprudence Pertaining to Rivers (International Rivers 2020) 6; Louis Kotzé and Paola Villavicencio Calzadilla, ‘Somewhere between Rhetoric and Reality: Environmental Constitutionalism and the Rights of Nature in Ecuador’ (2017) 6(3) Transnational Environmental Law 401; Paola Villavicencio Calzadilla and Louis Kotzé, ‘Living in Harmony with Nature? A Critical Appraisal of the Rights of Mother Earth in Bolivia’ (2018) 7(3) Transnational Environmental Law 397; Paula Andrea Acosta Alvarado and Daniel Rivas Ramírez, ‘A Milestone in Environmental and Future Generations’ Rights Protection: Recent Legal Developments before the Colombian Supreme Court’ (2018) 30(3) Journal of Environmental Law 519. For an overview of countries recognising rights of nature, see United Nations Harmony with Nature, ‘Rights of Nature Law, Policy and Education’ <http://www.harmonywithnatureun.org/rightsOfNature/> accessed 7 January 2021.

9

Cyrus R Vance Center for International Justice and others (n 8); Cristy Clark and others, ‘Can You Hear the Rivers Sing? Legal Personhood, Ontology, and the Nitty-Gritty of Governance’ (2018) 45 Ecology Law Quarterly 78; Gabriel Eckstein and others, ‘Conferring Legal Personality on the World’s Rivers: A Brief Intellectual Assessment’ (2019) 44(6–7) Water International 804; Joshua Gellers, ‘Earth System Law and the Legal Status of Non-humans in the Anthropocene’ (2021) 7 Earth System Governance 1.

10

Borràs (n 3). But see Erin O’Donnell, ‘At the Intersection of the Sacred and the Legal: Rights for Nature in Uttarakhand, India’ (2018) 30(1) Journal of Environmental Law 135, pointing to possible implementation challenges of rights of nature in India related to a lack of political willingness among state authorities and the ambiguities of its new, but rather abstract responsibilities. See also Bogojević and Rayfuse (n 5).

11

Corte Constitucional, Sentencia T-622/16, Acción de Tutela Interpuesta por el Centro de Estudios para la Justicia Social “Tierra Digna” en Representación del Consejo Comunitario Mayor de la Organización Popular Campesina del Alto Atrato (Cocomopoca), el Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato (Cocomacia), la Asociación de Consejos Comunitarios del Bajo Atrato (Asocoba), el Foro Inter-étnico Solidaridad Chocó (FISCH) y otros, Bogotá, DC, diez (10) de Noviembre de Dos mil Dieciséis (2016).

12

United Nations Harmony with Nature (n 8).

13

Elizabeth Macpherson and others, ‘Constitutional Law, Ecosystems, and Indigenous Peoples in Colombia: Biocultural Rights and Legal Subjects’ (2020) 9(3) Transnational Environmental Law 4.

14

The tutela is a legal action introduced by the 1991 constitution, which provides persons with a simple, expeditious and affordable procedure to claim immediate protection against constitutional rights violations by public authorities before any court of law, and, as such, has greatly improved access to justice in Colombia in recent years. See Manuel Iturralde, ‘Access to Constitutional Justice in Colombia’ in Daniel Bonilla Maldonado (ed), Constitutionalism of the Global South. The Activist Tribunals of India, South Africa, and Colombia (CUP 2013).

15

Community councils constitute the legal form, by which afro-descendant communities receive collective property rights over the territories they historically occupy as well as the right to administrate these territories. See Ley 70 de 1993 and Decreto-Reglamentario 1745 de 1995. Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato (Cocomacia), Asociación de Consejos Comunitarios del Bajo Atrato (Asocoba), Foro Inter-étnico Solidaridad Chocó (Fisch). A further claimant was Consejo Comunitario Mayor de la Organización Popular Campesina del Alto Atrato (Cocomopoca).

16

Corte Constitucional (n 11).

17

WWF, ‘Northern South America: Western Colombia into southeastern Panama’<https://www.worldwildlife.org/ecoregions/nt0115>accessed 18 November 2020.

18

Corte Constitucional (n 11).

19

ibid.

20

Defensoría del Pueblo, Crisis Humanitaria en Chocó. Diagnóstico, Valoración y Acciones de la Defensoría del Pueblo (Defensoría del Pueblo 2014) 9.

21

In the department, the conflict reached its peak between 1997 and 2003, with the incursion of the paramilitary Autodefensas Unidas de Colombia and the public forces into areas under the control of the rebels of the Fuerzas Armadas Revolucionarias de Colombia – Ejército del Pueblo (FARC-EP). The ensuing confrontations led to atrocities of historical dimensions, such as the massacre of Bojayá, which caused the loss of life of 79 civilians, including 48 minors, who had sought refuge in a church that was hit by a cylinder bomb. On the history of the armed conflict in Chocó, see Comisión Interétnica de la Verdad and others, Impactos Étnico-Territoriales del Conflicto en el Chocó. Aportes a la Comisión de la Verdad (Comisión Interétnica de la Verdad and others 2019); Tatiana Quintero Suárez and others, Violencia, Racismo y Conflictos Socioambientales. El Despojo de Tierras en el Consejo Comunitario de los Ríos La Larga y Tumaradó (Fundación Centro de Investigación y Educación Popular 2020); Comisión Nacional de Reparación y Reconciliación, Bojayá. La Guerra sin Límites (CNRR-Grupo de Memoria Histórica 2010). Nevaldo Perea, an afro-descendent social leader from Chocó, provides a beautifully written autobiographical account of the region’s armed conflict. See Nevaldo Perea, Soy Atrato. Vida y Amargos Recuerdos de un Líder Negro (Otramérica 2012).

22

Corte Constitucional (n 11).

23

Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato and Red de Solidaridad Social, Presidencia de la República de Colombia, Medio Atrato: Territorio de la Vida (COCOMACIA 2002) 39ff.

24

For a detailed description of the population process and the social and cultural norms and practices of afro-descendant communities in the Atrato region, see ibid.

25

ibid; Corte Constitucional (n 11).

26

Consejo Comunitario Mayor de la Asociación Campesina Integral del Atrato and Red de Solidaridad Social (n 23).

27

Corte Constitucional (n 11).

28

Corte Constitucional (n 11) para 7.22; Albeiro Moya Mena, ‘La Minería en el Chocó’ in Juan Carlos Henao and Ana Carolina González Espinosa (eds), Minería y Desarrollo. Tomo IV. Minería y Comunidades: Impactos, Conflictos y Participación Ciudadana (Universidad Externado de Colombia, 2016) 283.

29

ibid.

30

Corte Constitucional (n 11) para 7.22.

31

In addition, Chocó has also attracted the interest of large-scale mining companies, who have solicited and acquired high numbers of mining titles in the department, often times on collectively owned soils of indigenous and afro-descendant communities and in environmentally protected areas. This is had led to conflicts with these communities. However, there is currently no large-scale industrial mining project in the stage of exploration. ibid paras7.17, 7.20, 7.21; Moya Mena (n 28) 296ff.

32

ibid; Organization for Economic Cooperation and Development, Due Diligence in Colombia’s Gold Supply Chain. Gold Mining in Chocó (OECD 2017) 7f.

33

ibid 9.

34

Ejército de Liberación Nacional (ELN); Autodefensas Gaitanistas de Colombia (AGC), also referred to as Clan del Golfo.

35

Misión de Apoyo al Proceso de Paz en Colombia de la Organización de los Estados Americanos, Vigésimo octavo informe del Secretario General al Consejo Permanente sobre la Misión de Apoyo al Proceso de Paz en Colombia de la Organización de los Estados Americanos (MAPP/OEA), OEA/Ser.G CP/doc.5610/20, 18 de mayo de 2020.

36

Frédéric Massé and Philippe Le Billon, ‘Gold Mining in Colombia, Post-war Crime and the Peace Agreement with the FARC’ (2017) 3(1) Third World Thematics 116.

37

Organization for Economic Cooperation and Development (n 32) 12.

38

Frédéric Massé, ‘Minería y post conflicto: ¿es Posible una Minería de oro Libre de Conflicto en Colombia?’ in Juan Carlos Henao and Ana Carolina González Espinosa (eds), Minería y Desarrollo. Tomo IV. Minería y Comunidades: Impactos, Conflictos y Participación Ciudadana (Universidad Externado de Colombia 2016) 257; Massé and Le Billion (n 36).

39

ibid.

40

Organization for Economic Cooperation and Development (n 33).

41

Massé (n 38).

42

Organization for Economic Cooperation and Development (n 32).

43

del Pueblo (n 20) 44.

44

ibid 144ff.

45

Organization for Economic Cooperation and Development (n 32) 9, 12.

46

Corte Constitucional (n 11).

47

Corte Constitucional (n 11) 161.

48

ibid 43, 47, 44, 46.

49

ibid 45.

50

ibid 47.

51

ibid.

52

ibid 47f.

53

ibid 48, 51.

54

ibid 48, 51ff.

55

ibid 141.

56

ibid 142.

57

ibid 143, 161, 162.

58

César Rodríguez Garavito and Diana Rodríguez Franco, Juicio a la exclusión. El impacto de los tribunales sobre los derechos sociales en el Sur Global (Siglo Veintiuno Editores 2015); Iturralde (n 14).

59

ibid.

60

ibid.

61

On the Atrato ruling in the context of ‘dialogical judicial activism’, see also Alejandra García and Daniela Varón, ‘La Sentencia del río Atrato: Un Paso más Allá de la Constitución Verde’ in Natalia Orduz Salinas (ed), La Corte Ambiental. Expresiones Ciudadanas Sobre los Avances Constitucionales (Fundación Heinrich Böll 2018) 302.

62

In case of non-compliance, the court can impose contempt sanctions of up to six months of arrest and fines of up to 20 minimum wages. In addition, the Procurator’s Office can also institute disciplinary proceedings against non-compliant public officials, imposing sanctions such as fines, suspensions and termination of contract.

63

Respondent municipalities include Acandí, Bojayá, Lloró, Medio Atrato, Riosucio, Quibdó, Río Quito, Unguía, Carmen del Darién, Bagadó, Carmen de Atrato y Yuto (Chocó), y Murindó, Vigía del Fuerte y Turbo (Antioquia)

64

ibid 162.

65

ibid 163.

66

ibid 163f.

67

ibid 164.

68

To the knowledge of the author, the only work that addresses the implementation of the Atrato decision, but rather from a theoretical than empirical perspective, is Maria del Pilar García Pachón, ‘El Reconocimiento de los Recursos Naturales Como Sujetos de Derechos. Análisis Crítico Sobre los Fundamentos y Efectividad de la Sentencia del río Atrato’ in Maria del Pilart García Pachón (ed), Reconocimiento de la Naturaleza y de sus Componentes Como Sujetos de Derechos (Universidad Externado de Colombia 2020).

69

César Rodríguez Garavito and Diana Rodríguez Franco (n 58).

70

ibid 40.

71

Indirect material effects include, for example, the impacts that rulings cause with respect to network- and capacity-building among interest groups involved in the subject matter. ibid.

72

These include the following monitoring reports: Procuraduría General de la Nación, Primer Informe de Seguimiento a las Órdenes Emitidas por la Corte Constitucional en la Sentencia T-622 de 2016 por Parte de la Procuraduría General de la Nación, la Contraloría General de la República y la Defensoría del Pueblo, Bogotá DC, 5 de Diciembre de 2017; Procuraduría General de la Nación, Contraloría General de la República y Defensoría del Pueblo, Segundo Informe de Seguimiento Sentencia T-622 de 2016, Bogotá DC, Junio de 2018; Procuraduría General de la Nación, Contraloría General de la República y Defensoría del Pueblo, 3° Informe de Seguimiento a las Órdenes Emitidas por la Corte Constitucional en la Sentencia T-622 de 2016 por Parte de la Procuraduría General de la Nación, la Contraloría General de la República y la Defensoría del Pueblo, Bogotá DC (without date); Procuraduría General de la Nación, Contraloría General de la República y Defensoría del Pueblo, Cuarto Informe de Seguimiento Sentencia T-622 de 2016, Bogotá DC, Junio de 2019; Procuraduría General de la Nación, Contraloría General de la República y Defensoría del Pueblo, Quinto Informe de Seguimiento Sentencia T-622 de 2016, Bogotá DC, Marzo de 2020; Procuraduría General de la Nación, Contraloría General de la República y Defensoría del Pueblo, 6° Informe de Seguimiento Sentencia T-622 de 2016 Sobre la Gestión Cumplida en el Primer Semestre de 2020, Bogotá DC, Agosto de 2020.

73

See previous section on the functioning of the Monitoring Committee.

74

Sampling technique in which existing interview partners recommend further interviewees for the research.

75

All interviewees gave their free and informed consent to participate in the research and, if applicable, to be cited in the article. The author translated all citations from Spanish into English. To protect the identities of interview partners, all citations were pseudonymised while contextual information that could reveal their identity was changed. The Tilburg Law School Ethics Review Board granted ethical clearance to the research.

76

The Commission of Guardians of the River Atrato was created by the Ministry of the Environment by Resolution 907 of 2018. In contrast to the Atrato ruling, which foresees the nomination of one guardian from the government and one guardian from the communities, the resolution created a collegial body of seven female and seven male guardians from the communities, which they nominate for a period of three years in office and respecting the principle of gender equality. The presidency of the Commission is exercised by the government guardian, that is, the Ministry of the Environment, and one community guardian elected by the collegial body. The claimants proposed this institutional set-up arguing that one person could not represent the various communities residing in the large Atrato region. The Intersectoral Commission of Chocó was created by Decree 749 of 2018 by the Presidency in response to another order of the ruling. This Commission integrates all respondent state entities at the national, departmental and local level with the aim to improve coordination and provide an articulated and integral response not only with respect to the implementation of the ruling, but to address also other rulings and the humanitarian crisis in the Atrato region in general.

77

Procuraduría General de la Nación, 3° Informe (n 72) 18ff.

78

ibid; Procuraduría General de la Nación, Cuarto Informe (n 72) 48ff.

79

Procuraduría General de la Nación, Quinto Informe (n 72) 30; Interview with Comptroller’s Office, 2020.

80

Interviews with Community Guardians, 2020. Ministerio de Ambiente y Desarrollo Sostenible, Sentencia T-622 de 2016. El Río Atrato: Entidad Sujeto de Derechos, Presentation by the Ministry of the Environment to the author, 2020; Focus group with Ministry of the Environment, 2020.

81

ibid.

82

Interview with Public Procurator’s Office, 2020.

83

ibid; Interviews with Community Guardians and Tierra Digna, 2020.

84

Community Guardians (n 80).

85

Procuraduría General de la Nación, 3° Informe (n 72).

86

Comptroller’s Office (n 79).

87

ibid. Community Guardians and Tierra Digna (n 83).

88

Comptroller’s Office (n 79).

89

Ministerio de Ambiente y Desarrollo Sostenible (n 80); Ministry of the Environment (n 80).

90

Ministerio de Ambiente y Desarrollo Sostenible, Plan de Acción Ambiental. Cumplimiento a la Orden Quinta – Sentencia T-622 de 2016, Diciembre de 2019.

91

These objectives are also reflected in the plan’s vision: ‘By the year of 2040, the Atrato river and its inflows will be alive, dynamic, accessible and flowing freely; its territory prosperous, ethno-developed and sustainable, with its people enjoying a dignified life with cultural identity and peace, all of them with their rights restituted’, ibid.

92

ibid.

93

ibid.

94

Community Guardians (n 80).

95

Ministry of the Environment (n 80).

96

Community Guardians (n 80).

100

ibid.

101

Community Guardians (n 80).

102

Interview with Tierra Digna, 2020.

103

Community Guardians (n 80).

104

ibid. The lack of participation of these entities is confirmed in several monitoring reports. See, for example, Procuraduría General de la Nación, 3° Informe (n 72).

105

Community Guardians (n 80).

106

Ministerio de Ambiente y Desarrollo Sostenible, Memorando OAJ-8140-31-010782, Bogotá DC, 5 de Noviembre de 2018.

107

Procuraduría General de la Nación, 3° Informe (n 72) 15ff.

108

Ministry of the Environment (n 80).

109

Interviews with Community Guardians and Fisch, 2020.

110

Ministry of the Environment (n 80).

111

ibid.

112

Tierra Digna (102).

113

Focus group with Ministry of Defense, 2019.

114

ibid.

115

Interview with Procurator’s Office, 2020.

116

Ministry of Defense (n 113).

117

Interview with Attorney General’s Office in Chocó, 2020.

118

Interview with Ministry of Defense, 2020.

119

Community Guardians (n 80).

120

ibid; Interview with Cocomacia, 2020.

97

Community Guardians ibid.

98

Interview with Fisch, 2020.

99

Community Guardians and Tierra Digna (n 83); Ministry of the Environment (n 80).

ACKNOWLEDGEMENTS

I would like to thank my supervisors at Tilburg University, Prof. Daniel Augenstein and Prof. Nicola Jägers, as well as Carmen Helena Gómez of the Colombian Procurator’s Office for her role in facilitating my field work. The views and opinions expressed in this article do not reflect the position of OAS/MAPP.