Colombia

Photos courtesy of Laura Villa

Photos courtesy of Laura Villa

The Importance of the Atrato River in Colombia Gaining Legal Rights
 

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.


India

Himanshu Sharma, Ganges River Basin, Wikimedia Commons

Himanshu Sharma, Ganges River Basin, Wikimedia Commons

On March 22, 2017, the Uttarakhand high court in India declared two sacred rivers, the Ganga and Yamuna, as living entities with their own legal rights. The two rivers now have the same legal status as a person. The court also appointed guardians to represent these waterways in legal matters.

This is a monumental step for these waterways. Citizens can now file complaints on the rivers' behalf. The court’s decision also requires that a board be created to clean and maintain the rivers. The Ganga River, the third largest river in the world, is extremely polluted. The Yamuna is its main tributary.

This news followed just five days after the Treaty settlement for the Whanganui River was passed into law in New Zealand. Now three rivers worldwide have been granted legal personhood.

Sources:

1)      http://www.hindustantimes.com/india-news/uttarakhand-hc-says-ganga-is-india-s-first-living-entity-grants-it-rights-equal-to-humans/story-VoI6DOG71fyMDihg5BuGCL.html 

2)      http://www.huffingtonpost.in/2017/03/20/uttarakhand-high-court-recognises-river-ganga-as-first-living-en_a_21903158/

3)      http://www.livemint.com/Politics/IwxheezmdiazU5mWtiWU2K/Uttarakhand-HC-recognizes-Ganga-and-Yamuna-rivers-as-living.html

Mexico City

Gonzalo De La Rosa, Xochimilco, Wikimedia Commons

Gonzalo De La Rosa, Xochimilco, Wikimedia Commons

On January 11, 2017, Mexico City adopted rights of nature into its Constitution. The new Constitution is expected to enter into force in September 2018.

The relevant sections of the new Constitution are paragraphs 2 and 3 of Article 13. They assert that "the right to the preservation and protection of nature will be guaranteed by the authorities of Mexico City." Additionally, Article 13 purports that a secondary law shall be passed "to recognise and regulate the protection of the rights of nature, as formed by all its ecosystems and species as a collective entity with collective rights." The effect will be that citizens of Mexico City will be able to enforce fundamental rights on behalf of nature. 

The constitutional amendment followed the “First International Forum for the Rights of Mother Earth,” held in Mexico City on June 1-5 2016. The Forum was “centered around the importance of legislating the Rights of Mother Earth” and worked towards supporting and implementing the constitutional amendment.

New Zealand

Michelle Bender

Michelle Bender

Recently, New Zealand granted legal personhood to the Te Urewera National Park and Whanganui River and its tributaries.

In 2013, the Tūhoe people and the New Zealand government agreed upon the Te Uewera Act, giving the Te Urewera National Park “all the rights, powers, duties, and liabilities of a legal person.” A Board was then established to serve as “guardians” of Te Urewera and to protect its interests. The stated purpose of the Act was to protect Te Urewera “for its intrinsic worth,” including its biodiversity and indigenous ecological systems.

As a result, the government gave up ownership of Te Urewera, and all decisions must serve the interests of and preserve the relationship of the Te Urewera and the Tuhoe people. From a legal standpoint, this legislation is monumental. There is no longer a requirement to demonstrate personal injury in order to protect the land; lawsuits “can be brought on behalf of the land itself.”

Similarly, the Maori people have successfully pursued similar results for the Whanganui River and its tributaries, under the Maori worldview “I am the River and the River is me.” Under the Tutohu Whakatupua Treaty Agreement, the river is given legal status under the name Te Awa Tupua . Te Awa Tupua is recognized as “an indivisible and living whole” and “declared to be a legal person.” Two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river. This treaty is especially important because it “recognises the intrinsic interconnection between the Whanganui River and the people of the River (both iwi and the community generally),” and finds “the health and wellbeing of the Whanganui River is intrinsically interconnected with the health and wellbeing of the people."

In March 2017, the Treaty settlement passed into law.

Although New Zealand has not formally adopted the Rights of Nature into statutory or constitutional law, the nation has acknowledged the inherent rights of nature by granting legal personhood to selected lands and rivers.

Partners, Movement Rights, recently visited New Zealand to learn the extent and process of both legislations. Read the blog here.

Further Reading:

1) In New Zealand, Lands and Rivers Can Be People (legally speaking), New York Times

2) Agreement entitles Whanganui River to legal identity, NZ Herald

3) Te Urewera Act 2014

4) Te Awa Tupua (Whanganui River Claims Settlement) Bill

5) Tutohu Whakatupua Agreement between the Whanganui Iwi and the Crown

Bolivia

Laguna del Parque Nacional Tunari, Cochabamba, Bolivia, Fabio Giudici

Laguna del Parque Nacional Tunari, Cochabamba, Bolivia, Fabio Giudici

In 2010, the Universal Declaration of the Rights of Mother Earth, was adopted internationally in Cochabamba, Bolivia. Since then, new national statutes require the people to “uphold and respect the rights of Mother Earth.” Passed in 2009, The Law of Mother Earth defines these rights as the right to: life, the diversity of life, water, clean air, equilibrium, restoration and pollution-free living. Among the guiding principles of this law are harmony, collective good, guarantee of the regeneration of Mother Earth and no commercialism.

Additionally, in 2012, Bolivia passed the Framework Law of Mother Earth and Holistic Development for Living Well. In reaction to the pressing concerns of climate change, the law “aims to link the three concepts of: (i) the rights of Mother Earth; (ii) Holistic Development; and (iii) Living Well” or “Vivir Bien.” A main objective is to guarantee “the ability of the components and life systems of Mother Earth to regenerate.” This is done in part by the adoption of the precautionary principle, use of holistic management and development, and adoption of the indigenous worldview.

Further Reading:

1) Law of Mother Earth

2) Framework Law of Mother Earth and Holistic Development for Living Well

Ecuador

Yasuni National Park, Ecuador, Geoff Gallice

Yasuni National Park, Ecuador, Geoff Gallice

Ecuador was the first country to adopt Rights of Nature into its constitution. The 2008 Ecuadorian Constitution, endows “Nature or Pachamama” with inalienable rights to "exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution," and it empowers individuals to legally defend these rights on behalf of the environment. Additionally, “Nature has the right to restoration” and the State shall “apply precaution and restriction measures in all the activities that can lead to the extinction of species, the destruction of the ecosystems or the permanent alteration of the natural cycles.”

This has led to a successful court case challenging the government of Loja for widening the Vilcabamba-Quinara road, which was found to violate the rights of nature and in particular the rights of the Vilcabamba River.

However, Ecuador has much to do in the way of implementation. Recently, they sold oil rights to a Chinese-owned oil company in a “remote corner of the Amazon rainforest.” This most certainly violates Article 71 and 73 and we will continue to provide updates.

Further Reading:

1) Rights of Nature Articles in the Ecuadorian Constitution

2) Rights of Nature case in Ecuador

3) Ecuador sells oil rights in the Amazon