Defense of the Atrato River
RIGHTS OF NATURE IN CHOCÓ
WHEN RIGHTS OF NATURE ARE GRANTED TO BODIES OF WATER:
ATRATO RIVER CASE AND ONGOING EFFECTS OF EXTRACTIVISM
The mighty Atrato River is the third most navigable river in Colombia. It emerges in the Cerro Plateau in the western mountain range of the Andes, flowing north to the Gulf of Urabá. The river extends 750 kilometers, most of which flows through the region of Chocó in the Pacific Coast of the country. Chocó is a department rich in biodiversity, minerals, and rainwater. Yet it has been impacted by systemic marginalization for hundreds of years. Extractive economic practices began during the colonial period in Latin America when Spanish colonists brought enslaved Africans to extract gold for the center of gold production in Santa María. Extractivism did not end with Colombia’s independence from Spanish colonial rule. Instead, it became a central part of the state’s economic development paradigm and a source of revenue for local livelihoods as well as illegal armed actors and criminal networks.
Today, Chocó is regionally distinct in Colombia as 95% of the population is of Afro-Colombian descent and roughly 3% is made up of indigenous peoples. While indigenous and Afro-Colombian populations have been ancestrally mining using minimally disruptive methods for centuries, the gold ore in Chocó that colonial actors violently exploited became the object of mechanized and dredge mining in the 20th century. In contrast to the traditional methods that local communities have and continue to use, these newer forms of mining pose grave environmental threats to the Atrato watershed. This includes polluting it with mercury and cyanide, disrupting the flow of rivers, and harming the already vulnerable sources of food and transportation for local residents. Mechanized mining methods have also been taken up by illegal actors and armed groups.
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Bernadino Mosquera, a community Guardian of the Atrato River, explains the phenomena of illegal gold mining in Chocó.
In addition to mining, monoculture agriculture and the loss of traditional agroforestry practices continue to shape and transform the contemporary landscape in the region. Chocoanos continue to suffer from chronic lack of potable water and other basic services, and additionally have grappled with massive internal displacement due to years of armed conflict. Residents rely on the river for cooking, cleaning, preparing food, recreation, and transportation – it is their only water source and thus a critical part of their territory and daily lives. Environmental degradation caused by mechanized and dredge mining, the presence of trash, and other forms of pollution have enormous consequences on the riverine communities of Chocó, the health of aquatic life, and the biodiversity of the entire region.
Video describing the socio-environmental conflicts in Chocó that provoked the lawsuit and eventual rights of nature case for the Atrato. Foro Interétnico Solidaridad Chocó.
In response to decades of prolonged environmental harm, in 2015, a group of Afro-Colombian and indigenous communities and the NGO Tierra Digna filed an acción de tutela, alleging that the Colombian government had violated citizens' fundamental rights by not doing more to stop illegal mining and the degradation of the watershed. The 1991 Constitution of the country makes specific affordances for environmental protection, the human right to a healthy environment, and the right of citizens to legally object to the violation of their fundamental rights. Due to the enormous organizing work on the part of community activists and Tierra Digna, the Constitutional Court, the highest court in the country, sided with Chocó residents after the tutela endured a long court process and initial limited support from conservative judjes. Sentence T-622 declared the Atrato River a subject of legal rights entitled to protection, conservation, maintenance, and restoration.
Community organizing that led to T-622
Padre Sterlin Londoño from the Diocese of Quibdó in Chocó explains how the communities began to organize to recover ancestral mining practices. This implied confronting the mechanized mining, deforestation, and other forms of degradation affecting the Atrato River basin. He explains the lengthy community process that eventually brought the legal case into fruition.
Summary of the T-622/2016 Ruling:
The NGO Tierra Digna filed an acción de tutela on behalf of and in collaboration with four community-based organizations in the region:
Greater Community Council of the Popular Campesino Organization of the Alto Atrato (Cocomopoca)
Greater Community Council of the Integral Campesino Association del Atrato (Cocomacia)
Association of Community Councils of Bajo Atrato (Asocoba)
Inter-Ethnic Forum of Solidarity Chocó (FISCH)
The claimants argued that through the inaction of the government, their rights to life, health, culture, and territory had been violated. It is important to note that the use of the Atrato River for tasks, such as cleaning and preparing food, would not be necessary if the government provided infrastructure that ensures potable water for all communities.
In the landmark ruling resulting in Sentence T-622, the Constitutional Court sided with the communities, creating the legal scaffolding for a rights of nature case articulating a new constitutional theory of biocultural rights that articulate how for the communities that presented the acción du tutela, rights to life, health, culture, and territory are contingent on maintenance of traditional relationships with the local ecosystem and the river basin, in particular.
The Court decision ordered the following:
Protection of claimants’ fundamental rights to life, health, water, food security, a healthy environment, culture and territory.
Recognition of the Atrato River, its basin, and tributaries as an entity subject to rights of protection, conservation, maintenance and restoration by the state and ethnic communities.
The obligation of national and local entities, including defendant municipalities, to create a plan to decontaminate the river and surrounding territories.
The obligation of national and local entities to create a plan to neutralize and definitively eradicate mining activities illegally carried out not only along the Atrato River and its tributaries, but also in the Department of Chocó.
The obligation of national and local governments to create a plan to recover traditional forms of subsistence and food production within the framework of the concept of ethno-development that ensures minimum food security in the area, which has been disrupted by pollution, forced displacement, and dispossession.
The obligation of the national government, with the support of academic institutions and NGOs, to conduct epidemiological and toxicological studies of the river.
The obligation of the national government to monitor how well the implicated entities have complied with the court ruling.
Former Constitutional Court clerk Felipe Clavijo Ospina, who worked on developing the Atrato River legal sentence, explains the implications of Colombia's historical inheritance of Spanish colonial law; the tensions between legal norms dictated in Bogotá and the realities of the country's regions; and how T-622 attempted to interpret and protect intercultural and biocultural rights rather than the rights of particular groups or subjects.
Felipe describes the importance of the in-situ visit that the Constitutional Court legal team made to Chocó; how they navigated the river with the communities and also saw the impacts of mining on the basin from an aerial perspective. The debates he listened to among the communities and witnessing territorial relations with the river had a profound impact on his conceptualization of the legal case.
This precedent setting case, modeled off of rights of nature legal frameworks developed in the United States, Ecuador, Bolivia, New Zealand, and India, came to fruition due to a history of community activism and mobilization. The Atrato River case is one aspect of a larger story of socio-environmental conflict and community activism in Chocó. In the years since the court ruling, community leaders have succeeded in amending the terms of the sentence to particular regional sociocultural dynamics. They also continue to grapple with many challenges as they work towards ensuring the implementation of the court orders in a context of continued violence and environmental degradation.
Understanding acción de tutela and its role in T-622:
The Colombian judiciary has seen itself as a creator and enforcer of laws compared to other Latin American countries, and it has used this power in the past as a check on unbridled development; the Atrato River rights of nature case is one example of such a check.
In the 28 years that the court has been hearing tutelas, around 7 million have been filed. Only a very small percentage of tutelas make it past the first round of sorting by 5th year law students, after which an even smaller percentage reach the desks of the two justices who are tasked with selecting the most pressing cases. The acción de tutela filed by the Afro-Colombian and indigenous communities of Chocó was initially rejected by the two conservative justices that selected cases at the time.
However, community activists with NGO support worked quickly to appeal the decision, and were finally chosen in a second round when a more liberal justice was charged with selecting the cases to be heard. Overcoming this remarkable series of legal obstacles, the work of the community activists and NGO finally landed the tutela on the desk of Judge Palacio who serves on the Constitutional Court, and who was more attuned to environmental issues. Judge Palacio approached the case by having his legal team conduct an in situ visit to Chocó to speak directly with community members, hear their concerns, and walk and navigate the territory.
Defense of the Atrato River
RIGHTS OF NATURE IN CHOCÓ