Navigating new rights and responsibilities in the Colombian Atrato River - An ecocentric approach to human rights

Author: Laura Duarte Reyes (2020)

Laura Duarte Reyes is a Colombian lawyer from the Pontificia Universidad Javeriana (LL.B) and holds a Master’s degree in Human Rights and Multilevel Governance from the University of Padova (Italy). She works as a legal advisor and Bertha Justice Fellow at the European Center for Constitutional and Human Rights (ECCHR). This In Focus article is an excerpt from her master thesis, discussed in June 2020 under the supervision of prof. Sara Pennicino.

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The worldwide intensification of unprecedented ecological degradation represents one of the greatest contemporary challenges for humanity. Paradoxically, it has been humanity itself that over the last centuries has negatively transformed the Earth’s natural systems, with irreversible consequences for both humans and other species. Admittedly, the effects of human-induced damages, including climate change, deforestation, loss of biodiversity, scarcity of natural resources and pollution, are often being borne by the poorest and most vulnerable groups in society. This is particularly the case of indigenous and local communities, whose way of life is predominantly determined by and dependent on the ecosystems they inhabit.

As a response to these challenges, and in recognition of the interconnectedness of human and non-human life, activists and litigants in dozens of countries have increasingly implemented a human rights basis for climate change litigation over the past five years. As a result, innovative court decisions and legislation embracing an ecological approach to rights, either in the form of environmental rights, rights of nature or, most recently, biocultural rights, have been progressively adopted the world over. Against this background and drawing on a large body of environmental constitutional jurisprudence, in 2016 the Colombian Constitutional Court handed down a ground-breaking ruling recognising the River Atrato as a subject of the rights to protection, conservation and restoration, which need to be protected alongside the riverine communities’ biocultural rights. The Atrato Ruling has been internationally recognised as a pioneering decision in which the ecocentric approach to rights was applied in a multifaceted socio-political context, crossed by war, mining, structural discrimination and poverty. This complex setting has rendered the implementation of the ruling hugely controversial, and further analysis on the impact, effectiveness and on-the-ground challenges of this innovative approach are still pending. In an attempt to understand the actual impact of the Court’s orders from a bottom-up perspective, this work looks at how the significance afforded by local communities to these new ecocentric rights, and the responsibilities attached to them, have influenced their daily lives and the socio-political projects supporting their long-standing struggle to have their fundamental rights and the environment protected.

Case background: from the heart of the river to the Colombian Constitutional Court

The Atrato Ruling represents the final outcome of a Tutela Writ - a constitutional injunction that aims to protect fundamental rights- filed in January 2015 by the Center of Studies for Social Justice 'Tierra Digna', in the representation of the local communities settled by the Atrato river’s basin who had seen their livelihoods and health damaged due to illegal mining and logging activities in the area. The legal action, brought against 26 local and national authorities, was substantiated with solid evidence which showed how the drastic pollution of the river had significant repercussions on the ability of the communities to enjoy their basic human rights considering their strong cultural, social and economic relationship with their natural environment and particularly the river. Not only was the food security of the communities seriously threatened, as levels of mercury concentration found in the fish of the Atrato River is alarming, but also people’s lives and health were at high risk due to the proliferation of diseases such as diarrhoea, dengue fever and malaria. Ultimately, the claimants aimed to enforce the protection of their rights by restoring the ecosystem they inhabit and on which their life mainly (inter)depends.

Photo courtesy of Laura Villa

The Atrato case was built hand in hand with local communities and several stakeholders who, along with ‘Tierra Digna’, played a vital role in exposing the massive omission by State institutions in relation to the humanitarian crisis in the region. The claimants not only aimed at achieving a legal decision to stop the use of heavy machinery and toxic chemicals for mining in the Atrato River, but they also requested a series of concrete orders and measures to provide structural solutions for the severe socio-environmental disaster affecting the main river artery of Chocó. 

The Constitutional Court’s Decision T-622/2016

In order to issue a final decision, the Court not only conducted a thorough analysis of the evidence submitted by the claimants, but it also requested expert’s opinions on the case and ordered an on-site judicial inspection in the area. These sources provided strong evidentiary support for the Court’s decision to declare that the claimants’ rights to life, health, water, food security, a healthy environment, culture and territory were being seriously violated by State authorities, as they omitted or failed to address the humanitarian crisis in Chocó.

Consequently, the Court ordered a series of actions to be carried out jointly by several State agencies with the participation of the riverine communities. The Court’s orders are devoted to definitively stopping illegal mining activities, decontaminating the river, and recuperating traditional forms of subsistence farming and cleaner food sources. Significantly, the Court recognised the biocultural rights of local communities and concluded that the river is a living entity that supports other forms of life and cultures, thus a special subject of protection entitled to rights. Finally, the Court issued a number of orders aimed at the effective implementation of the river’s rights, including the appointment of a joint river’s representative, the creation of a Commission of Guardians of the river and the establishment of a monitoring mechanism for the implementation of the ruling. This framework is aimed at the conservation of the region’s biodiversity, the environment, the culture and, ultimately, the very existence of the Atrato communities.

Owning the Atrato Ruling 

The Atrato River is immersed in a unique reality, crossed by armed conflict, extractivism and state neglect, but also one in which a strong Afro-Colombian and Indigenous social movement has historically sustained and advanced the defence of their territory. Thus, although the Atrato people acknowledge that seeing the material impacts of the Court’s structural orders will take up to a decade or more, they have embraced the ruling as a new powerful means to continue their historical struggle to achieve the restoration of the river and the protection of its rights and those of local communities. 

Photo by Tierra Digna

The rights of the river and the notion of biocultural rights have been embraced by local communities as a recognition of their cultural values. Yet, there are several responsibilities attached to these new rights that fall on their shoulders. The practical understanding and scope of these new responsibilities need to be judiciously developed and reinforced both within the communities and at the policy level. Following the Atrato ruling, communities swung into action creating a collective body of 14 guardians that could cover the whole region’s territory. Despite their financial and security challenges, the Guardians have worked tirelessly to socialise the ruling in the region and to create a shift in the awareness of local communities about their responsibility as stewards of the natural environment. In the Guardians’ view, in addition to achieving successful cooperation with government institutions, another main pillar for the effective implementation of the ruling is the commitment of local communities to its notions and meanings. 

Community leaders recognise that addressing the humanitarian crisis in Chocó involves complex challenges that include not only advancing the ruling’s implementation in a context of war, but also a structural reconfiguration of the centralised governance of natural resources in Colombia. In their view, three main issues need to be urgently addressed: firstly, the extractivist development model imposed in the region, whereby mining has almost become the only source of livelihood. This is strictly linked to the second issue, namely, the loss of food sovereignty. The agricultural devaluation of the collective property land of black communities and its subsequent revaluation as a profitable good to be destroyed by miners has converted large tracts of fertile and cultivable land in desolate infertile areas. This, in addition to the contamination of the river, has worsened the progressive loss of traditional agricultural and fishing practices that allowed local communities to be food self-sufficient; and thirdly, the lack of water and sewage systems, as well as the inexistence of waste-water treatment facilities in the riverine settlements and municipalities. Tackling these problematics requires a strong commitment from the government; however, the lack of political will and the entrenched economic interests has made the implementation of the ruling far from certain.

Against this background, local communities assert that material impacts following the Atrato Ruling are inexistent or incipient. Nevertheless, they forcefully emphasise that the Court has provided them with a new language of resistance to continue their long-standing struggle to have their rights and the rights of the Atrato river protected. To some extent, the ruling has afforded local communities with the tools to make it more costly for powerful actors to dismantle their rights, their life, and their dignity; it has opened new opportunities of participation in the political and technical spheres in which the decisions that mark the course of their own realities are made; and it has positively impacted the internal organisational processes of the social movements that propelled the Court’s decision in the first place. 

Furthermore, the Atrato Ruling has become a central element of the Atrato peoples’ narratives about their identity and struggle, which has created a feeling of hope among community members and has moved them to be more proactive in the ruling’s implementation. The significance of this new element pervading their narratives lies on the fact that it is framed in terms of rights. The ruling has broadened the scope of rights available for these communities, not only legitimising their claims,  but also providing them with new legal tools that can be used as a site of struggle for the protection of their culture, their territory, and ultimately their lives. 

In this sense, the symbolic meaning of the ruling becomes a powerful tool that legitimises the communities’ vision by rendering illegitimate the actions (or omissions) of armed actors, corporations and governmental institutions trying to impose a development model that is harming the biodiversity of Chocó, including its human and non-human elements. The Guardians of the River are determined not to lose the critical window created by the Atrato Ruling, and their tireless processes of resistance and solidarity will continue to guide them towards the realisation of their rights and the protection of their beloved river. 

Conclusion 

The Atrato case demonstrates that broadening the category of rights both for ecosystems and for local communities that have an intrinsic interdependent relationship with their territory, provides new legal tools and languages of resistance for grass-root movements and might amplify their voices in policy decision-making scenarios. Nevertheless, attention should be placed on the wider picture in which these realities are immersed. This implies the recognition that, ultimately, what is at stake in these cases is a dispute for the governance of natural resources, which could often endanger the very existence of local communities. Hence, the conservation of biodiversity must aim at protecting both local communities and the ecosystems they inhabit, without neglecting either of them. To this purpose, courts, legislators and policy-makers, when designing plans or orders addressed at safeguarding both human rights and the environment, shall guarantee the participation of the communities of contested hydro-social territories. Along these lines, new responsibilities deriving from collective water governance models, which designate local communities as guardians of natural ecosystems, should not be underestimated but instead clearly established and defined. Moreover, the responsibility of States to guarantee the conditions for these communities to fulfil this task, including financial support, must be emphasised and demanded.

A paradigm shift towards an ecocentric approach to rights implies being open to embracing new ways of understanding the world and the value of life in all its forms. This transformation can be stimulated but not completely advanced only by structural rulings or the formal adjudication of rights to nature. In addition, it requires the deployment of several concurrent processes in which the role of civil society, academy, and government institutions results fundamental. Preventing the destruction of the world’s biocultural heritage, including the Atrato River and the culture of the Afro-Colombian and Indigenous communities settled in its basin is a responsibility of humanity as a whole. It is up to us to make use, advance, and develop these new legal tools to contribute to the transformation of the unjust socio-environmental realities besetting the most vulnerable corners of our home planet.