Derechos Ambientales, conflictividad y paz ambiental. Gregorio Mesa Cuadros
Overall and as a synthesis, Rights are historical processes of demand and effective protection of the dignity of subjects in time and space, which are always in vindication before their ignorance or violation. In this age and in the near future, events such as climate change may be more difficult by the possibilities of rights.
Some of the initial elements that a new comprehensive theory of rights and justice must contain should begin with the understanding of rights as environmental rights, in the sense of presenting a political and ethical legal scenario from the extension of protection to new and more subjects. It should also stand up for the recognition of environmental principles as real limits to the unlimited appropriation of nature, and for responsibility plans in the short and long term from now on. These ideas would materialize in the protection of all rights, as well as in the creation of an “environmental justice” and a new form of State, the “Environmental State of Law”.
From our legal perspective, a new theory of environmental rights must start from a new broad concept of rights, recognizing the existence of collective and environmental rights, which considers that the rights, in general, are environmental rights that occur in the Environment and could be grouped into two broad sets of rights, human rights and the rights of nature.
This theory of environmental rights implies, therefore, their integrity plus a renewed political and juridical synthesis that recognizes the emergence of new subjectivities, which correspond to the existence and deepening of new and serious problems and conflicts and its environment; rights that are translated in exigencies in the face of the continuous aggressions to those subjects of right.
The idea of Environmental Rights can be summarized in the figure 1.
FIGURE 1. Environmental Rights Theory. Rights from Nature,
Mother Earth, Environment, Ecosphere.
This new vision also includes the integrality of human rights. That means that all human beings without distinction are subjects of rights and they include both civil and political human rights, together with economic, social, cultural, collective and environmental human rights. Secondly, it also includes the integrity with the rights of nature, Mother Earth, wildlife, forests, rivers or ecosystems. And we mean it not only from a rhetoric speech as when we have come to speak of “fundamental rights” of juridical persons, but with the real intent to concretize such ideas of the dignity of non-human subjects and, therefore, the duties, obligations, and responsibilities of humans with nature.
Therefore, rights are both individual and collective, protect and defended both humans and nature; to present and future generations, in an idea of expansion of protection that overcomes the narrowness of the theory that restricts them by their ownership or by their exercise.
In this sense, a new theory of rights in environmental perspective must answer at least three big questions: who are subjects of law? In what time is the subject of law? And in what space or territory are these rights established?
It is here that modern liberal theories suffer from a deficit of formulation in its concept and its basis of rights for their material protection, since most who defend these theories consider that not all beings are subjects of law. If we speak of the rights of future generations it is only in a figurative way, because very little is done to incorporate mechanisms for their effective protection, just as people are only subject of rights within the narrow limits of the Nation-State, space par excellence of the liberal state form.
Finally, a new theory of rights from the environmental rights and environmental justice point of view incorporates as three key elements: first and foremost, an inter-generational justice among humans, based on the duty to ensure the dignity of future generations as a demand for the current generation; second, the intra-generational justice as indicated above, because misery and impoverishment are the rules of capitalism advocated by the liberal theory of law; third, the inter-species justice element is required since not only human beings are subject to rights, but also other beings of nature, and not only as a simple utilitarianism, for the exclusive benefit of human beings.
For centuries, in most of the traditional ethnic and peasant communities in Colombia and Latin America, there has been a similar idea to what we could call today rights of Nature. In defending the idea of the environment as the Mother Earth from its cosmovision, who is at the same time nutritious, master’s and sacred, they represent their idea of recognition, respect and defense of natural limits and the containment of human behaviors on ecosystems and other cultures (Mesa Cuadros, 2013). Most of these practices are recognized as the “buen vivir” concept, far removed from the modern vision of appropriation that began with the conquest of the late fifteenth century. Appropriation went through servitude and slavery of the haciendas of the sixteenth and seventeenth century, settled with extractives of quinoa, tobacco and guano of the eighteenth and nineteenth centuries, and consolidated with rubber, hydrocarbons and new minerals in the twentieth and the present century.
CONCLUSIONS
Usually, the people that don’t have rights tend to fight for them and in the last decades the main demands have been about the right of water access, the right of preserving nature, rights for the land, clean air and natural forestry.
Similarly, the protection of the natural and cultural diversity is the most important reason that indigenous peoples, Afro-Colombian peoples, peasant or poor farmers and other rural and urban communities demand rights from the government and the judicial system, especially because their great contribution to the conservation the forest, clean water, seeds and wildlife in general.
In addition, we cannot forget that natural forests still exist because there are cultures that continue to inhabit them from special rules of use and access to nature, based on a strong environmental standard oriented more in the limits than in authorizations. This is one of the main reasons why the rights of indigenous and tribal peoples were affected by environmental degradation resulting from extraction activities, biopiracy and the forced displacement of their traditional lands.
Finally, if we add to the destruction generated by drug trafficking, illegal crops, trafficking of species and weapons in a country of prolonged civil war such as Colombia, the pollution produced by national and transnational companies with their big projects, works or activities, environmental law must be implemented immediately in order to salvage what we have left.
This is a main problem because this situation impacts the rights from the traditional peoples and communities and hence to all the population in the country. We all need water, soil, clean air, and natural forest in well conditions for a healthy life and equality for all.
REFERENCES
Congreso de Colombia. (16 de diciembre de 1959). Ley 2 de 1959: sobre economía forestal de la Nación y conservación de recursos naturales renovables. DO : 23 095.
Congreso de Colombia. (22 de diciembre de 1993). Ley 99 de 1993: Ley General Ambiental. DO : 41 146.
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