'An Intergenerational Ecological Jurisprudence: The Supreme Court of Colombia and the Rights of the Amazon Rainforest' by Alessandro Pelizzon in (2020) 2(1)
Law, Technology and Humans 33 comments
In 2017, 25 young Colombians, then aged 15 to 25 and living in 17 different Colombian municipalities, initiated the first successful climate change and future generations lawsuit in Latin America and, indeed, the world. Assisted by the organisation Dejusticia, the young plaintiffs filed a tutela action—a special action under the Colombian Constitution that allows individuals to demand the protection of their fundamental rights. In this action, the plaintiffs contended that the current deforestation rates and their destructive consequences were violating their future right to a healthy environment. They further submitted that climate change is and (more importantly) will continue to be a direct threat to their fundamental rights to life, health, food and water, which would continue to diminish due to the damage that is likely to occur and the effects of business-as-usual activities in the near future.
The Supreme Court of Colombia delivered a remarkable judgment in an untraditional environmental damage case. The presiding judge, Justice Tolosa, ruled in the plaintiffs’ favour, granting their petition and guaranteeing the right to enjoy a healthy environment and their future rights to life, health, food and water. Moreover, Justice Tolosa ordered that the Colombian Government must formulate an action plan to reach zero-net deforestation in the Amazon by 2020 and create an intergenerational pact for the future of the Amazon. More importantly, in granting the plaintiffs’ petition, Justice Tolosa went beyond the grounds raised in the plaintiffs’ brief by recognising the Amazon rainforest as a subject of rights. Justice Tolosa later stated, ‘our community is much wider and more diverse than what we used to think. Earth does not belong to human beings. On the contrary, human beings are the ones who belong to the Earth’.
The young plaintiffs were driven by an awareness that they were the first generation to reach adulthood in peace—Colombia had reached a peace agreement three years earlier, ending decades of internal strife—and the last generation that, according to overwhelming scientific consensus, would be able to stop the most destructive and devastating consequences of climate change. The plaintiffs considered the primary drivers of greenhouse emissions in Colombia and reports that deforestation alone accounted for 36% of these emissions. In 2016, deforestation in the Colombian Amazon, one of the most biodiverse regions of the planet, increased by 44%; in this time, 170 thousand hectares (an area equivalent to the size of Long Island) were cut down in a single year and many areas that had previously been inaccessible because of conflict were now within easy reach of loggers.
The plaintiffs argued that they would reach adulthood between 2040 and 2070, when, according to virtually all climate change scenarios modelled on the current trends, they would be living in a country at least 1.6% warmer, whose water cycles would have been profoundly altered by deforestation, with significantly increased occurrences of floods, droughts, landslides, as well as decreased access to water and food security. Thus, despite not living in the Amazonian region themselves, the plaintiffs argued that anything that happens in the region has, and will continue to have, a direct impact upon them, and indeed everyone in Columbia and the rest of the world. The plaintiffs based their action on four legal pillars:
1) The Paris agreement to reduce greenhouse emissions, which in its preamble explicitly refers to ‘intergenerational equity’;
2) A multilateral agreement between Colombia, the United Kingdom (UK), Norway and Germany to stop deforestation in the Amazon;
3) The Colombian Constitutional right to a healthy environment; and
4) The National Development Plan that set a deforestation rate of less than 90,000 hectares per year.
To understand the position of future generations, the plaintiffs asked the court to take into account five principles in determining the matter: the precautionary principle; the principle of participation; the principle of the best interests of the children; the principle of intergenerational equity; and the principle of solidarity (i.e., solidarity with other humans, future generations and non-human beings). Finally, aware that they faced enormous difficulties in proving that the future lives of children living hundreds of kilometres away from the rainforest would be impacted in the future by actions presently being conducted there (which they needed to prove to show that they had standing to bring the case), most of the voluminous scientific evidence they presented was directly drawn from studies conducted by the government itself.
In his judgment, Justice Tolosa reasoned that when faced with accurate and overwhelming scientific evidence, judges cannot simply ignore that evidence, but must intervene to stop the inaction of both governmental entities and private businesses. Thus, in such cases, affirmative action represented both a judicial duty and an ethical imperative. Justice Tolosa further determined that a number of environmental rights are available to all Colombian citizens as Constitutional rights and their protection does not need to be explicitly invoked by a plaintiff for them to be applied. In recognising such rights, Justice Tolosa referred to and applied the principles articulated by the Constitutional Court of Colombia in the Atrato case of 2017. In that nuanced and detailed judgment, the Constitutional Court recognised the Atrato river as a legal subject, an entity to be represented by specifically appointed ‘guardians of the river’ with the equal participation of the Indigenous communities that have lived in the region since ancestral times.
Justice Tolosa explicitly referred to three principles: firstly, the principle of an ‘Estado de derecho constitucional y ambiental’ (a state based on a constitutional and environmental rule of law); secondly, the principle of ecological public order; and thirdly, the principle of ecological sovereignty. Justice Tolosa noted the need for a paradigmatic epistemological change, a ‘Copernican revolution’ regarding the category of legal subjectivity, which can no longer be limited to humans alone. To move beyond a token application of the precautionary principle, Justice Tolosa reasoned that a more ecologically aware ethical approach must be grounded in ‘moral de la alteridad’ (a ‘morality of the other’) that would be capable of encompassing not only all other humans, but also all future humans and the non-human world. The idea of the legal personhood of nature and of the rights of nature was thus an important symbolic and ethical responsibility (shared by all) to safeguard children, grandchildren and all of posterity. This responsibility made it necessary to declare the Amazon basin a legal subject, even though the plaintiffs had not explicitly asked the court to do so and even though the plaintiffs did not live in the Amazonian region themselves.
Justice Tolosa’s judgment can be described as a ‘courageous’ judgment, one that, in the words of Justice Francois Kunc of the Supreme Court of New South Wales, displays courage as a fundamental judicial value. Further, as Justice Antonio Herman Benjamin of the High Court of Brazil observed, the emblematic decision demonstrates the profound need for the judiciary to meaningfully engage with legal concepts and the depth of novel legal theory, even in instances where doings so takes members of the judiciary outside their ‘comfort zone’.
More importantly, this judgment highlights a shift in legal thought that has gained momentum over the past decade towards a novel ‘ecological jurisprudence’. This concept will be explored and contextualised further below in Parts II and III. Specifically, Part II will trace the theoretical origin of ‘ecological jurisprudence’ with particular reference to the emergence of the theory known as ‘Earth jurisprudence’ at the beginning of the 21st century. Part III will focus on the contextual articulation of this novel theory in a number of international jurisdictions. After providing the necessary contextual background, the article will then return to the central thesis that was introduced in this section: that is, that a radical shift in legal thinking is occurring (increasingly, it appears) in response to the demands of younger generations, whose political claims tend to be more clearly and explicitly ecologically focused. This article contends that the influence of the younger generations on the discourse of ecological jurisprudence is capable of engendering an atmosphere of hope and providing the necessary framework within which we, as humans, can reconceptualise our collective self in relation to the non-human world for future generations.
