May 5th, 2017
Guest Blogger Laura Villa from Innove [i] goes behind the scenes to give us the scoop on the latest river to gain legal personhood rights.
The Atrato River has been granted legal personhood rights by the Constitutional Court in Colombia, through a partnership of many organizations including CELDF[ii]. Just a month ago, the third largest river in New Zealand (the Whanganui) and the Ganges were recognized as having legal personhood. The High Court in Colombia recognizes for the first time in its jurisprudence that a natural resource, in this case a river and its watershed, are subjects and holders of rights alone, and it is the State's responsibility to protect it.[iii]
This is so exciting for those of us working in the field. Each milestone helps pave the way for other rivers to get legal personhood, including in the United States. Earth Law seems to be an idea whose time has come. Earth Law Center[iv] defines Earth Law as “a growing body of law recognizing that the Earth has inherent rights, and that humans and nature are co-members of a larger Earth Community whose well-being is guaranteed. Rather than treating nature as “property” for human consumption, Earth Law recognizes that nature is an entity with its own rights. Nature's rights are not “given” by humans, but rather are inherent to nature’s existence – just as humans possess inherent rights to life, liberty and the pursuit of happiness.”
In his groundbreaking work, Should Trees Have Standing, Christopher Stone observes that the history of law suggests a parallel development with that of human moral development – and further, that each successive extension of rights to some entity has been “unthinkable”. He cites children, slaves, women and ethnic minorities as examples.[v] With three different nations coming to the same conclusion about a key river in their jurisdiction, the notion of Earth Law no longer seems to be as unthinkable as it once was.
Think of when corporate personhoods, like these rivers gaining legal standing, were also considered unthinkable before it happened. Corporate entities date back to medieval times, observes Colombia law professor John Coffee, an authority on corporate law. "You could think of the Catholic Church as probably the first entity that could buy and sell property in its own name," he says.[vi]
In the case of the Atrato River, the High Court asserts that "the defendant state authorities are responsible for violating fundamental rights to life, health, water, food security, the healthy environment, culture and territory of the local ethnic communities."[vii] The Atrato River cuts through the Darien Gap, the rugged tropical jungle that straddles the border between Panama and Colombia.[viii]
The Atrato River ecosystem represents the only break in the Pan-American highway, which intended to connect Canada with Argentina but hasn´t been completed yet due to ecological concerns. Before the Atrato River flows into the Caribbean sea, it creates a swampy delta which is one of the most biodiverse wildlife ecosystems in the world. This ecosystem is also home to afro and indigenous groups and other minorities and happens to be one of Colombia´s poorest and most forgotten areas, thus rife with drug trafficking. The Atrato River has also been decimated by gold mining since Spanish colonial times.
Today, the degradation of the river and its ecosystem expands to almost 650.000 hectares and approximately 800 dredges. According to Mercury Watch, Colombia is the country with the highest rate of mercury and cyanide contamination in America, and a third of its total 180 tons per year are poured into the Atrato River.
Although water isn’t a fundamental right considered in the National Constitution of Colombia, in this case the Constitutional Court has considered it indispensable for guaranteeing the right to life, as well as essential for the environment and the life of multiple species that inhabit the planet. The judgement said that “only an attitude of profound respect and humility with nature and its beings makes it possible for us to relate with them in just and equitable terms, leaving aside every utilitary, economic or efficient concept”.
To guarantee this historic judgement, the claiming communities represented by the Tierra Digna organization will have to create a commission of guardians with two delegates to follow up on the protection and restoration that the State must provide for the river. The Humboldt Institute and the WWF will advise this commission.
The Colombian public opinion has been favorable to the judgement of the Constitutional Court, but skeptical about its accomplishment. The reason for doubt is human rights legislation. Albeit the constitution and laws aim to protect human rights and individual freedom, indigenous leaders and journalists are still targets of killings and death threats. Colombia still appears in the top of International Amnesty and Human Rights Watch indexes. If the state cannot guarantee the traditional law in cities and municipalities where the is institutional presence, how will it fare in guaranteeing the protection and restoration of the Atrato River, located in a jungle - where the minimum living standards such as food security, fresh water, energy, health and education are not available? How will the thousands of people that depend on illegal mining in the Atrato River replace their livelihoods?
As with the Ganges and Yamuna Rivers in India, the Atrato rights declaration is a big step forward towards an earth-centered law and a sustainable planet. Nevertheless, the mechanisms for guaranteeing the implementation of this judgment presents a challenge for third world countries with more urgent issues to attend to, with very limited capacities and resources to spare. Do we need the creation of an International Earth Law Court to intervene in the ecocides that affect not only a country, but the entire planet? The consequences of the degradation and destruction of major river ecosystems around the world affect the whole world – and the biosphere we call home.
[i] Innove is a Colombian think& do tank that promotes the social and economic transition to sustainable models through publications and projects such as “Sustainable Antioquia” a regional initiative to address the SDGs that interacts with partners at a global scale. More info: http://innove.com.co/english/ or contact firstname.lastname@example.org