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DECISION T-622/2016

THE ATRATO RIVER AS A “SUBJECT OF RIGHTS”

In this decision, the Colombian Constitutional Court ordered to protect the Atrato River as an autonomous entity subject to rights. Following an ecocentric  apporoach, the Court started from a basic premise: the earth does not belong to man but, on the contrary, man and all other species belong to the earth.

“According to this view, the human species are just one more event within a long evolutionary chain that has endured for thousands of years and, therefore, they are in no way the owners of the other species, neither of the biodiversity or the natural resources, and they cannot determine the fate of the planet. Thus, this view sees nature as a real subject of rights that have to be recognized by the States and exercised under the supervision of its legal representatives,  e. g. the communities who live in it or the communities who have a special relationship with it". On the basis of this reasoning, the protection of nature and environment constitutes a veritable constitutional challenge, because, as the Constitutional Court says, Colombia is the fifth most biologically diverse country on Earth. 54.871 species of animals live in this country.

After a long discussion about the importance of water throughout the history of humanity, starting with the civilizations settled in Mesopotamia, on the shores of the Tigris and Euphrates Rivers, the River Nile in Egypt, the River Ganges in India or the River Huang He in China, the ruling takes into account the foundational myth that is embodied by water. With this information, and returning to the domestic setting, the Court explained: “While the right to water is not expressly stated in the Constitution as a fundamental human right, the Constitutional Court regards it as such because it is part of the right  to life under humanly dignified conditions not only when it is intended for human consumption but also because it is an essential part of the environment and it is necessary for the survival of multiple organisms and species that inhabit this planet.”

According to the Court, “the importance of the Nation´s biological and cultural diversity for future generations and the survival of the planet creates in the states the need to adopt comprehensive public policies about conservation, preservation and compensation that take into account the interdependence between biological and cultural diversity”. For this reason, the Atrato River constitutes an important factor of cultural identity in the Chocó Province. However, the mining tradition in this area has been maintained for more than 500 years. It started with the establishment of Spanish mining colonies in Santa María la Antigua del Darien, a colonial town located in northern Chocó province. Over the years, the area became synonymous with gold and wealth, as revealed through oral narratives made by great black inhabitants born in this area. These narratives spread quickly the legend of the land of gold. Today this is a no-man´s land, or in other words, a disputed land.