—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” 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. 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.
While these rulings have been registered as relevant events in this blog or elsewhere, 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.