The Rights of Rivers and Forests and Apex Court Dynamics in Colombia: On Natural and Institutional Environments (I-CONnect Column)

—Francisca Pou Giménez, ITAM, Mexico City

[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2018, see here.]

Two weeks ago, James Fowkes’ column underlined how fast climate change has become a litigable issue, and how rapidly comparative inquiry on the matter has moved from asking whether courts would intervene in it to rather deal with “the hows, the whens and the what happened thens”[1] This reminded me of several Colombian high court rulings that would surely enter this universe of developments. The first one is the Constitutional Court ruling on the Atrato River, decided in November 2016.[2] The second one is a ruling on the Amazonian Rain Forest, issued by the Civil Cassation Chamber of the Supreme Court of Justice two months ago (in April, 2018) under the Rapporteurship of Judge Luis Armando Tolosa —known for having once granted a habeas corpus to protect an Andean spectacled bear.[3]

While these rulings have been registered as relevant events in this blog or elsewhere,[4] my impression is that they have been preliminarily seen as manifestations of an idea that often raises eyebrows: the idea of nature, or of components of nature like rivers and forests, being declared legal persons and fundamental rights-holders. The presence of this ingredient would precisely justify careful analysis of these rulings in the comparative scenario. Since the assignment of rights to Earth or to Nature is a distinctive characteristic of several Latin American contemporary constitutions —though not, directly, of the Colombian Constitution of 1991— these rulings would moreover indicate that the region has definitely entered a stage marked by the actual judicial enforcement of these rights.

Without denying that declaring rivers and forests to be legal subjects may, over time, prove consequential for the evolution of the law, I want to suggest that these rulings might contain less novelty than they seem. In the rulings, the “legal subject” or the “rights holder” element pertains to the remedy, not to the standing part of the case or to its legal foundation, and the work it actually does in the context of the argument seems modest —or at any rate not weighty enough to categorially single out these rulings amidst many others. What these rulings certainly suggest, however, is that something might have changed in the dynamics between Colombian apex courts, long seen as a “train crash” between a progressive, rights-protecting Constitutional Court and two backward-looking, transformation-resistant apex Courts —the Supreme Court of Justice and the Council of State. In a time when the platforms of the two candidates contending for the Presidency in the second round have included the amendment of the Constitution to partially reform the judicial branch, this tells us something about constitutional maturity that should not be lightly dismissed.

The Rights of Nature as Remedial Devices and Efficacy in Structural Adjudication          

In view of the confines that legal imagination has reached —as evidenced not only by the fact corporations have long been considered rights holders but also by the extremely unrealistic fictions that dominate tax law, or by the fact humanity has had for centuries little problem in missing the presence of personhood in the case of women, minors and individuals belonging to several racially defined groups— I tend to find nothing extraordinary in declaring non-human entities to be rights-holders. In any case, neither the Atrato nor the Amazon rulings actually rely on the rights of rivers and forests being part of the higher law. The Atrato ruling refers to many conventional and constitutional sources relevant to the resolution of the case, according a prominent place to the rights of indigenous communities (in particular their biocultural rights); to the existence of an “ecological constitution” that enshrines the “superior interest of the environment and its enjoyment by human communities”; to the principle of solidarity and other principles definitional of the Social Law-Based State; to the fundamental rights to water, food security and health; to the special protection enjoyed by rivers, forests, food sources and biodiversity; and to the prevention and the precautionary principles, specific to environmental law.[5] The river as a rights holder does not appear. It is in the “orders” section (§10), which contains both simple-execution and complex-structural measures, where the Court states that the first order “will be the recognition of the Atrato river, with its basin and affluents, as a holder of rights to protection, conservation maintenance and restoration by the State and the ethnic communities.”[6] The Court then declares that the National government, together with the ethnic communities of the basin, will exercise the tutorship and legal representation of the river. It also prescribes the creation of a Commission of Guardians (composed of the two river representatives and a counseling team) and of an Expert Panel to verify the execution of the substantive orders, declaring the Procuraduría General, the Defensoría del Pueblo and the Contraloría General to be in charge of monitoring the implementation of the measures that must end the illegal mining activities that have caused brutal chemical pollution and seabed destruction.[7]

Similarly, in the Amazon ruling, Judge Tolosa only speaks of the Rain Forest being recognized as “sujeto de derechos” in section 14, near the end, when introducing the orders by which a cluster of public authorities and social actors will have to devise activities and plans —including an “inter-generational agreement for the life of the Colombian Amazon”— capable of stopping an accelerated deforestation rate that contradicts all Colombian legal pre-commitments. [8] (In this case, no legal guardians or tutors are designated).

In the context of these rulings, in short, the rights of the river and the forest do not really define the content of the law, but merely intervene on the means of execution of what respect for the law entails in the case at hand. What we face is therefore two more adjudication exercises aimed at triggering structural action by breaking a chain of state omissions through a creative package of orders, with the promises and challenges ordinarily associated to this style of “experimental” rulings.[9] And what remains to be explored is whether this particular legal fiction (creating a legal subject whose rights generate guardianship duties to the authorities) will make a difference in terms of transformative efficacy—as measured in terms of direct effects or of the broad range of indirect effects socio-legal studies have associated with structural adjudication.

Apex Court Dynamics and Constitutional Endurance

What is striking is the way Judge Tolosa of the Civil Chamber of the Supreme Court echoes the argumentative and remedial style that the Constitutional Court of Colombia has propagated in the past decades in its famous structural rulings. The Supreme Court’s Amazon ruling seems a sort of contained or “small-scaled” version of the Constitutional Court’s Atrato ruling. If the Supreme Court has long been seen as an agent of resistance to Constitutional Court doctrines, we now see how its Civil Chamber confidently mandates governmental and social actors to come together to debate and devise plans of action, set deadlines, and place conditions and goals on public and private action.

In my view, this suggests something interesting about constitutional dynamics and about institutional design in the Judicial Branch. According to Elkins, Ginsburg and Melton’s classical analysis on constitutional endurance, one of the potential (theoretical) advantages of constitutional permanency, as opposed to constitutional change or replacement, is that it can help develop habits of obedience and bonds of attachment to the Constitution.[10] Almost thirty years after the enactment of the 1991 Constitution, these habits might have developed in Colombia even among initially reluctant actors. It also suggests the potential advantages of devising a system with several apex courts as opposed to only one. Constitutional courts may become less energetic over time; they may feel overburdened with high-profile issues, or they may be object of cooptation campaigns launched by the other branches. The existence of other courts with constitutional responsibilities makes these problems less consequential. Even when all courts travel the same path —as they apparently do in these rulings— horizontal dialogue may still bestow important benefits on the constitutional system.

Suggested citation: Francisca Pou Giménez, The Rights of Rivers and Forests and Apex Court Dynamics in Colombia: On Natural and Institutional Environments, Int’l J. Const. L. Blog, June 13, 2018, at: http://www.iconnectblog.com/2018/06/the-rights-of-rivers-and-forests-and-apex-court-dynamics-in-colombia-on-natural-and-institutional-environments-i-connect-column/

[1] James Fowkes, A Change in the Climate: Partly Cloudy with Increasing Litigation, Int’l J. Const. L. Blog, May 30, 2018.

[2] T-622/2016, November 10, 2018.

[3] STC4360-2018, Radicación nº 11001-22-03-000-2018-00319-01, April 5, 2018. The previous ruling on the bear is AHC4806-2017, Radicación nº 17001-22-13-000-2017-00468-02, July 26, 2017. For an analysis, see Saskia Stucki and Juan C Herrera, Habea(r)s Corpus: Some Thoughts on the Role of Habeas Corpus in the Evolution of Animal Rights, Int’l J. Const. L. Blog, Nov. 4, 2017.

[4] See Vicente F Benítez-R., What’s New In Public Law, Int’l J. Const. L. Blog, May 8, 2017; Marina Brilman, Environmental Rights and the Legal Personality of the Amazon Region, EJIL: Talk!, April 24, 2018.

[5] T-622/2016, pp. 19-112.

[6] Ibid., pp.159.

[7] Ibid., pp. 160-163 and 163-168.

[8] STC4360-2018, pp. 45-50.

[9] Academic debate on experimentalist rulings (i.e., rulings where judges do not take strong determinations unilaterally but rather open spaces for governments, petitioners and social agents to work out solutions) is abundant. For references about the contested impact of this modality of litigation (mostly in Colombia and South Africa) see, for instance, César Rodríguez Garavito and Diana Rodríguez Franco, Juicio a la exclusión: el impacto de los tribunals sobre los derechos sociales en el Sur global (Siglo XXI, 2015); David Landau, “The Reality of Social Rights Enforcement”, Harv. Int’l L. J 53 (2012); Rosalind Dixon, “Creating Dialogue about Socioeconomic Rights: Strong-form versus Weak-form Judicial Review Revisited”, Int’l J. Const. L. 5 (3) (2007); or the contributions included in Helena Alviar, Karl Klare and Lucy Williams (eds.), Social and Economic Rights in Theory and Practice (Routledge, 2015) and Malcolm Langdorf, Ben Cousins, Jackie Dugard and Tshepo Madlingozi (eds), Socio-Economic Rights in South Africa: Symbols or Substance? (CUP, 2014)

[10] Elkins, Ginsburg and Melton, The Endurance of National Constitutions (CUP, 2008), pp. 17-18.