'Climate Change Law and the Rights of Nature: A Colombian Example Through an International Perspective' by Mario Alejandro Delgado Galarraga in (2022) 13(2) Revista Catalana de Dret Ambiental 1-44 comments
In 2018, the Colombian Supreme Court bestowed rights to the Amazon Region. The growing climate change risks brought the Court to rule this way. The ruling relied on international environmental law, comparative law, and national policies. The discussion of Rights of Nature is not new; various States have relied on this practice to strengthen environmental protection. Constitutional provisions, legal acts and courts’ decisions are the source chosen by States to entitle the environment with rights. Remarkably, the Inter-American Court of Human Rights already identified how rights of nature are applied in certain American States, raising this discussion to international environmental law. The Colombian Court award may cause further discussions: first, it will allow rights of nature as an alternative in environmental litigation processes, included climate ones. Second, concerning international environmental law, it may contribute to the idea of constituting a regional state practice on rights of nature recognition.
Galarraga states that the Colombian Court
examined Colombia’s international obligations, national policies, and the measures taken to fulfil them. To this end, besides ordering administrative sanctions on the Government, the Colombian Court noted that there must be a more effective way to fight climate change than the measures already in practice. The Court concluded that to protect the environment and ensure the fulfilment of Colombia’s climate change obligations, the Colombian Amazon Region was to be entitled to certain rights: the right to protection, conservation, maintenance, and reparation.
The judgement developed a new paradigm for addressing climate change commitments and their connection with the Rights of Nature (RoN), to the point of making it the cornerstone for upcoming judicial awards concerning the environment, and creating a consistent judicial practice. In the same sense, the importance of the ruling was in the decision to bestow rights to a whole ecosystem, rather than to a single entity like some previous cases. Finally, it linked three legal concepts: deforestation (climate change), rights of future generations, and RoN; an unusual occurrence in the legal world.
This study, relying on this particular case, evaluates whether there is a link between international environmental law and the foundations of RoN. If so, it will review how the Supreme Court managed to merge both concepts. This investigation will give a general overview of RoN, citing the diverse roads taken by those States that have recognised this set of rights. Then, it will examine how the Court addressed general environmental issues and discuss its approach towards RoN by contrasting its arguments with existing international environmental law norms. Afterwards, this paper will examine how the Court, taking into consideration the existing climate change emergency, determined that recognizing the Amazon region as a bearer of rights was imperative. Finally, the study will review how RoN and climate change are interrelated by reviewing how these rights could contribute to climate litigation processes. Although this research does not intend to extensively discuss the legal and philosophical perspective of RoN, it will expose how national and international judges are using legal conceptual alternatives to address environmental matters, specifically, climate change.It will briefly display the current legal status of this set of rights.This study also explains how certain contested concepts, such as RoN, can be employed when interpreting an environmental legal claim, even though they are not part of a legal framework, such as in the Colombian case. Additionally, this document will expose the potential repercussions of the Colombian Court’s decision in future environmental-related legal claims at both the national and international levels.
