Rights of nature, an ornamental legal framework: water extractivism and backbone rivers with rights in Colombia

ABSTRACT

Rivers have been at the centre of judicialization processes that have forged post-human legal experiments, gaining new rights, personhood, and legal agency. This article interrogates river rights jurisprudence through discourse analysis and using my engagement as situated researcher, revealing the positionality of rivers in the configuration of extractive regimes and contributing to the conceptualization of ‘water extractivism’. I argue that the enshrinement of rights to watercourses has become an ornamental legal framework that doesn't dismantle the private law ‘legal arrangements’ that provide stability and fluidity to extractive projects and interests that still take precedence over human and non-human rights.

KEYWORDS:

• Water-extractivism
• rivers
• Rights of Nature
• extrACTIVISM
• extractive legal arrangements
• ornamental law

Introduction

In the last 30 years, Colombian economic policies have disproportionately intensified the exploitation of minerals, fossil fuels, logging and monocrop cultivation, affecting entire watercourses and aquatic communities (Boelens et al. 2021; Corral-Montoya, Telias, and Malz 2022; Vélez-Torres 2014). The economic matrix of the country has been based on extractivism, which has resulted in increasing persecution of environmental defenders, the intensification of disputes, and socio-environmental conflicts over territories and waterbodies (Corral-Montoya, Telias, and Malz 2022; Göbel and Ulloa 2014). As a collective response, social mobilization, and political contestation by a multiplicity of social actors have emerged with a wide variety of repertoires and strategies, among them litigation and judicialization (Flores, Bohm, and Misoczky 2022; González-Serrano, Digno, and Viaene 2022; Raftopoulus 2017).

Following the recognition of the Atrato River in the northern Pacific region as the first river with rights in Latin America, a wave of rulings in different jurisdictions has expanded this category, which currently extends significantly across the country (Putzer et al. 2022). The same trend can be observed in the international settings, where the adoption of legal initiatives recognizing Rights of Nature (RoN) has escalated rapidly (Macpherson et al. 2021; RiverOfLife et al. 2021).

Given the legal turn generated by the eco-centric and multi-species jurisprudence that grants sweeping rights and personhood to singular natural entities (Celermajer et al. 2021; Clark et al. 2019; Fitz-Henry 2022; Gilbert et al. 2023), this article sheds new light on the intersections between rivers, extractivism, and law.

To do so, the article first contributes to the conceptualization of water-extractivism by showing how rivers have been crucial assemblages for the expansion of multisectoral extractive regimes (Section 1). Second, it traces the processes of judicialization that activists and social movements have undertaken to challenge extractive economies in each basin, which I call extraACTIVISM, revealing the deceptive nature of river rights (Section 2). This is because, on the one hand, judicial decisions have altered the legal status of rivers, granting agency to non-human entities and creating new governance landscapes of water bodies; on the other hand, they obscure and render untouchable extractive policies and projects (Section 3). Consequently, I conceptualize how and why river rights declarations constitute an ornamental legal framework, in terms of extractivism expansion, that keeps unquestioned the ‘legal arrangements’ of private investment law that provide stability to capitalist extraction (Sections 4 and 5).

Theoretically, the article creates a necessary dialogue between political ecology, critical geography, and critical legal studies, particularly in the fields of extractivism, social movements, and legal mobilization strategies. The analytical framework is enhanced with a discourse analysis of the court rulings that granted innovative rights to rivers, following the claims of the plaintiffs and their legal representatives before the courts. I also triangulate this information with data on the multisectoral extractive projects that have been developed in the fluvial basins studied, to explore their continuity after the rulings on rivers’ rights.

I also provide some reflections from my own engagement as an activist and lawyer of peoples and communities affected by war and extractivism. I worked for five years as a lawyer in a well-known Colombian human rights organization¹ that litigates cases of grave human rights violations related to the armed conflict in national and international courts. I then worked for eight years as a litigation coordinator in a non-profit organization² that challenged extractive policies and projects at the national and regional levels.

Then, in order to incorporate this prior experience into the analysis, I draw on my role as a ‘situated knower’, a notion from feminist standpoint theory, in which the situatedness of the knowing subject is crucial to the process of approximating the truth (Haraway 1991; Harding 1996; Hekman 1997). In this regard, I appeal to the theoretical approach in which knowledge is constructed in a ‘dialogical relationship among subjects who are differentially situated’ (Stoetzler and Yuval Davis 2002, 315). Thus, the social practices rather than social location are central to knowledge production (Smith 1990).

Accordingly, my human rights and environmental activism was not an individual experience but entailed constant iteration with an extended multi-stakeholder set of actors, ranging from social movements, riverine, Afro-descendant, Indigenous and peasant communities affected by extractivism, NGOs, politicians, judges, academics, and even corporations confronted during the litigation settings. In this engagement, I co-led and accompanied cutting-edge strategies that combined socio-legal research, high-impact litigation, community legal training, advocacy, and cultural mobilization, resulting in six important and emblematic cases questioning the impacts of extractive projects.³ From this vantage point, I bring to the analysis some reflections and observations that complement the data and add nuance to the narrative. Nevertheless, I limit the scope of the paper to understanding how the extractive projects and activities have been addressed by the courts through the rights of rivers solutions, and their continuity and even expansion despite the rulings, leaving aside other critical points of riverine rights implementation.

Finally, I add some remarks from an international workshop organized by the RIVERS-ERC project,⁴ in which I participated as a doctoral researcher. In this space, a group of interdisciplinary scholars from Latin America, Asia and Europe interrogated the category of water-extractivism in different contexts, examining extractive policies in countries such as Guatemala, Colombia, Spain, Nepal, and India.

Situating rivers in the definition of water extractivism

This paper draws on the concept of extractivism, defined as a prominent modality of capital accumulation and value production that increases social inequality based on socio-ecologically destructive processes of subjugation, depletion, and capitalization of nature(s) (Gudynas 2013; Ye et al. 2020; Kröger 2020). Extractivism has become an organizing concept used in multiple studies and disciplines to analyse the global and multimodal expansion of extractive economies in a variety of geographies and fields, including mining, hydrocarbon extraction, hydropower projects, and industrial agriculture (Chagnon et al. 2022; Göbel and Ulloa 2014; Gudynas 2013; Nygren, Kröger, and Gills 2022; Ye et al. 2020). Subsequently, extractivism encompasses dynamic procedures and global practices of imposition, devaluation, exploitation, mobility, dumping, and looting, in which local actors, states, elites, corporations, international banks, speculators, intermediaries, and global consumers, among others, are intricately implicated (Merino 2020; Raftopoulus 2017).

From my practical engagement with extractive projects in several regions of the country, I have experienced how water has critically become one of the core issues in several social mobilizations and political struggles, and one of the main concerns mobilized in legal and political arenas. In the same direction, some scholars have formulated the specific category of water-extractivism to scrutinize the ways in which water has been commoditized and then controlled, exploited, and capitalized in a wide range of industrial activities (Boelens et al. 2021; Hidalgo, Boelens, and Vos 2017; Torres et al. 2022).

In this regard, during the workshop on water-extractivism organized by the ERC Rivers project, we found that

diverse visions about what is being extracted need to be incorporated into the concept of extractivism – in which water, for example, is certainly more than a resource or commodity. What stood out loud and clear from the group reflection was that the concept at stake begs the questions of what it is being extracted. (Terjung 2021)

Hence, water-extractivism has been used to name different modalities of water dispossession. For Stensrud it refers to the ‘practice of singularising and standardising water into the category of “resource” in order to master it and extract as much economic value from it as possible.’ (Stensrud 2019, 141). In the words of Torres et al.,

[w]ater-extractivism can be understood as the processes by which water is extracted from its original territories of life in large scale and/or high intensity, and then exported mainly to the Global North in the form of various commodities, without (or with minimal) processing. (Torres et al. 2022, 151)

Further, the works of Sosa and Zwarteveen (2012), Babidge (2016) and Hidalgo, Boelens, and Vos (2017) detail processes of water grabbing and redistribution of water rights in different contexts, from the open-cast mining in Yanacocha Peru, the extraction of large quantities of scarce water in the industrial mining in the Atacama Desert in Chile, to the irrigation systems of booming export-flowers in Ecuador.

From these critical and ethnographic studies, I grasp two main definitions of water extractivism. The first one is conceived with reference to hydroelectric projects built to produce energy, where value is generated through the use, domination over, and control of the movement of water volumes through invasive infrastructures and technical assemblages. The second one comes from extractive processes – forestry expansion, monocrop irrigation systems, mining operations, etc. – where surface or underground water bodies are used and exploited. In these last cases, water is an essential element for the large-scale extraction or production of other raw materials, and in this way, water is commodified, controlled, and removed from local spaces, generating scarcity, droughts, water hoarding, and the accumulation of water rights (Stensrud 2019; Babidge 2016; Hidalgo, Boelens, and Vos 2017; Torres et al. 2022, 151).

In addition, the work of Kauffer Michel (2018) illuminates other key elements of water extractivism. In her perspective, water is also a container for the effluents generated by conventional extractive activities. From this understanding, water is an inert object that acts as a receptacle for toxic flows. Moreover, for Kauffer water extractivism also refers to extractive activities that are situated in water bodies, which are managed as deposits of valuable materials, including alluvial gold mining and industrial fishing.

Linking these approaches, my contribution goes beyond by situating rivers as part of the discussion on water extractivism to open up underestimated factors in the configuration of extractive regimes and their temporal, geographical, and multi-species impacts.

Rivers are entangled spaces that articulate different regimes and practices of environmental management, evaluation, transformation, conflict, cohabitation, violence, and memory, implicating humans and non-human actors (Li 2015; Boelens et al. 2022, 10). On this matter, Edgeworth (2011) pointed out that rivers are entanglements of nature and culture, where human interventions have transformed and co-created the water-land spaces over time. In the same way, as Rafles (2002) ethnographically documented in the Amazon region, rivers are not natural circuits, but human landscapes co-produced by people.

As platforms of colonial expansion, rivers have long been seeing as pantries exploitable for food, energy, minerals, and other resources, and as vectors of transport and territorial connectivity that need to be ordered, controlled, and defended to facilitate the accumulation of capital (Boelens et al. 2021, 459). They are also living, changing, and moving places and existences where plural social, spiritual, productive relationships and practices are deployed (Krause 2017; Lahiri-Dutt and Gopa 2013; Viaene 2021).

Furthermore, the literature on toxicity and environmental justice shows how the articulation of extractive operations on water landscapes, such as rivers and water bodies, produces massive and far-reaching effects that go beyond the sites of production and extraction of raw materials, affecting humans and nonhumans across temporalities and generations (Hoover 2017; Mitman et al. 2004; Murphy 2008; Nygren, Kröger, and Gills 2022, 744). In this sense, it is imperative to include in the analysis of extractivism not only what is taken, but also what is left behind to produce value and accumulate capital.

Assuming this positionality of rivers in the configuration of water extractivism means rethinking the classical account that locates extractive activities exclusively in remote and distant territories, affecting isolated local communities. In this regard, the political ecology literature has spatialized extractive operations as concrete undertakings called ‘projects’ or ‘megaprojects’, operating in specific spectrums, critically named as ‘sacrificed zones’, ‘borderlands’ or ‘enclaves’, or as a world-wide phenomenon established through complex and global supply chains (Gudynas 2013; Lerner 2010; Nygren, Kröger, and Gills 2022; Ye et al. 2020).

This means that all the accumulative processes envisioned in the theoretical definitions of water extractivism I have presented, in which value is derived from the control and accumulation of water, can converge and overlap in rivers. From this sense, I state that rivers have historically been cardinal pillars in the expansion of intertwined extractive economies and politics, and therefore, the trajectories and impacts of these activities cannot be enclosed to confined territorial areas or strict temporalities.

Situating rivers in this locus can provide fruitful theoretical and practical lenses to appreciate the performativity of water in capital accumulation. Through this approach, underexplored dimensions of extractive regimes could be achieved, foregrounding the relevance of tracing currents and flows across geographies, temporalities, and human/non-human relations. Indeed, this attribution could promote that the extractive projects and activities operating in riverine territories, rather than being conceived as fixed in space and time as they have been regulated by law, could be analysed as mobile and interactive processes connected through water.

The expansion of water extractivism over Colombian backbone rivers

The Magdalena, Cauca and Atrato Rivers originate in the inter-Andean valleys, flowing in parallel, and traversing a vast territory inhabited by a diversity of peoples, landscapes, and climates before reaching the Caribbean Sea. The Magdalena River is the main artery of the country, considered as an ‘unique fluvial system in the tropical region, which covers nearly one quarter of Colombia’s national territory’ (Jiménez-Segura, Restrepo-Angel, and Hernández-Serna 2022, 2). Today, the Magdalena River basin hosts more than 30 million inhabitants, around 70% of the country's population (Angarita et al. 2018).

Discharging its waters into the Mompós Depression in the Magdalena River basin on the northern coastal plain, the Cauca River runs through more than 150 municipalities, draining a biodiverse patchwork of ecosystems along its journey (Cardona, Pinilla, and Gálves 2016; Vélez-Torres 2014). While, located to the west in the northern coastal Pacific lowlands is the Atrato river, which, in contrast to the two other major river catchments, is a biodiverse territory mostly inhabited by Afro-descendant communities and indigenous peoples (Corte Constitutional 2016).

According to interdisciplinary literature, the Magdalena, Cauca, and Atrato Rivers have historically been corridors of colonization, transportation, trade, nation-building, and violence, and are also emblematic in the formation of riverine community identities, practices, and hybrid livelihoods (Asher 2018; Bocarejo 2018; Serje 2005). In this text, however, I refer to them as backbone rivers. A backbone is an axial skeleton that connects a series of vertebrae from the neck to the tail, structuring a body (Merriam-Webster Dictionary 2023). In terms of extractivism and rivers, each of the bones represents a ‘project,’ ‘megaproject,’ ‘enclave,’ ‘plantation,’ and the column is the connecting line in which they are aggregated. Therefore, I use backbone rivers as a descriptor that emphasizes how watersheds have been shaped and tamed over generations as key articulators of multisectoral and complementary extractive regimes (Corral-Montoya, Telias, and Malz 2022; Flores, Bohm, and Misoczky 2022; Göbel and Ulloa 2014).

In this regard, recent studies from the fields of hydrology and geography conclude that 30% of the Magdalena floodplain has lost its natural networks because of anthropogenic activities such as dams, agriculture, irrigation infrastructure and cattle ranching (Angarita et al. 2018; Boelens et al. 2021). Then, the main hotspots of Colombian wetland degradation are located in the Magdalena River valley, which faces unprecedented phenomena of collapsed fisheries (Galvis and Mojica 2007; Restrepo and Kjerfve 2000). The middle and lower basins of the river have been affected by massive deforestation⁵ and pollution from oil and mineral extraction, extensive cattle ranching, and palm-oil plantations (Salgado et al. 2022). More than 20 large hydropower dams have also been planned along the main channel and its tributaries, ‘spelling uncertainty for the Mompós Depression wetlands, one of the largest wetlands systems in South America’ (Angarita et al. 2018, 1; Salgado et al. 2022, 453).

In addition, the Cauca River is ‘the most depredated in Colombia with a loss of 88% of the wetland area between 1950 and 1980’ (Jiménez-Segura, Restrepo-Angel, and Hernández-Serna 2022, 16). According to Velez-Torres ‘private interests in sugar cane monocultures, electric generation, and large-scale gold mining have tended to shape the socio-ecological dynamic’ of this artery (Vélez-Torres 2012, 431). Even in the last 20 years, informal and medium-scale gold mining has been based in the floodplains of the river, escalating a massive deforestation rate and heavy metals pollution (Caballero-Gallardo, Palomares-Bolaños and, and Olivero-Verbel 2022).

As well, the extractive processes in the Atrato River basin have developed cycles of global informal chains of production and the commercialization of raw materials, fine woods, and minerals (Tubb 2020). In the last three decades, the Atrato river has been a water territory highly impacted by armed and territorial disputes (García Reyes 2014; Oslender 2008). The extractive economies extend into different sectors, such as banana and oil-palm plantations, cattle ranching, informal mining, logging, and coca crop cultivation (Grajales 2022; Centro Siembra 2022, 183). Meanwhile, from 2000 onwards, in times of armed conflict intensification, the state increased the expansion of its neoliberal development policies over the basin, amplifying mining rights to foreign corporations and pursuing the construction of infrastructure and hydroelectric undertakings (Centro Siembra 2022; Fierro Morales 2017).

Rights of rivers: addressing claims on water-extractivism?

Colombia stands out with the continent’s highest statistics of environmental conflicts tied to extractive projects (Richardson and McNeish 2021). With the intensification of extractivism as the country's economic vehicle in favour of elites, capital and corporations, local communities and social movements have questioned its advance amid threats of murder and persecution (Raftopoulus 2017, 388; González Gil 2019; Flores, Bohm, and Misoczky 2022).

Amid this life-threatening panorama, Colombia’s backbone rivers have been as well axes of community mobilization, contestation, and resistance (Boelens et al. 2022; Oslender 2008). In this respect, the rivers have been a nurturing epicentre of ‘extrACTIVISM’, a category developed by Willow (2018), followed by Richardson and McNeish (2021), to focus on understanding how social resistance to extractivism plays out in local, regional, and global assemblages.

It is crucial to mention some outstanding defence processes of backbone rivers. Firstly, the work pursued by the ‘Movimiento Rios Vivos Antioquia’, a collective of groups of fishermen, artisanal miners, peasants, women, and young people affected by the construction of the Hidroituango project in the Cauca River canyon (Cardona, Pinilla, and Gálves 2016; Zuleta 2021). Hidroituango is the largest and most ambitious hydroelectric project in Colombia, built in the Cauca River canyon by a consortium of national companies, financed by the Inter-American Development Bank and international private banks (Zuleta 2021). The construction of the project has destroyed strategic ecosystems and the burial sites of people who were disappeared during the armed conflict. It has also led to the forced displacement of thousands of families in the region who have survived through a network of community practices known as ‘canyon life’, centred on artisanal mining, fishing and cattle herding between the river and the mountains (Cardona, Pinilla, and Gálves 2016, 310).

Meanwhile, in the Magdalena River, first, ‘Asoquimbo’, a regional association of peasants, fishers, and farmers, has developed a long-term strategy informing the massive socio-ecological impacts of the construction of the Quimbo dam. This was the first hydroelectric project in the country to be handed over entirely to the private sector, which involved the diversion of the Magdalena riverbed, the construction of a reservoir of 8250 hectares, submerging important natural ecosystems and areas of food production, and the massive displacement of peasant and fishing communities in seven municipalities (Dussán 2017, 48; Clavijo-Bernal 2021). Second, in the lower part of the basin, there has been carried out a collective process of wetlands regeneration and protecting the artisanal fishing practices as a amphibian national cultural patrimony (Dussán 2017, 150; Boelens et al. 2021). Moreover, the defence of the Atrato River has been prompted through an inter-ethnic alliance against war, dispossession, and poisoning, linked to the political agendas to gain territoriality, peace and autonomy (Centro Siembra 2022).

One of the many strategies used by the diverse riverine movements and communities against the promotion of extractive economies in the three rivers has been to take the political debate to the courts (Hirschl 2008; Sieder 2020). This process has been conceptualized as ‘judicialization’, which has been exercised in the context of Colombian backbone rivers defence over the last three decades through a variety of legal mechanisms activated in different jurisdictions, raising a wide range of cases, legal arguments, facts, actors, narratives, and evidence (González-Serrano, Montalvan-Zambrano, and Viaene 2022).

At this point, I elucidate whether or not the assertion of rights of rivers has been part of processes of extrACTIVISM, that is, as an expression of social resistance to extractivism. As explored by Richardson and McNeish (2021) and Wesche (2021, 533), several verdicts and initiatives have declared rivers and aquatic ecosystems as rights holders in Colombia.⁶ These rulings have been labelled as an outcome of the RoN movement, climate litigation strategies or empowered participatory jurisprudence (Rodriguez-Garavito 2019; Tanasescu 2022). In short, there has been a progressive shaping of jurisprudential frameworks that seek to rethink the status of nature and non-human entities in the face of the Anthropocene crisis (Celermajer et al. 2020; Clark et al. 2019; Fitz-Henry 2022).

Therefore, explorations of the ethical, ontological, and legal formulations of nonhuman entities as rights holders with agency and stewardship have captured the attention of academic debates, while questions of local actor participation in decision-making processes and the accommodation of new dynamics and power relations of rivers governance are at the heart of community concerns (Kauffman and Martin 2019; O’Donell 2020; Reeves and Peters 2021; RiverOfLife et al. 2021). Nonetheless, the most circulated narratives of RoN overlook the original claims and conflicts behind the declaration of rights of rivers, which provides space and relevance for my examination, which details whether the legal cases that led to rivers being declared subjects of rights sought to reverse or limit extractive policies or projects, and the specific decisions that courts made in this regard.

New rights to backbone rivers: original claims and final decisions

The Atrato River case was held by the Constitutional Court in 2016 and finally published in May 2017, after a long-term judicialization strategy, part of a regional peace agenda promoted by Afro-descendant communities and social organizations of the Chocó department (Melo forthcoming, 20; González-Serrano Under Review, 5).

From my engagement with the Atrato river peoples and realities, I consider that this case was aimed at challenging extractive pressures and toxic flows as part of a comprehensive vision of peacebuilding. Then, during the legal proceedings, our strategy focused on exposing the negative impacts of informal mining activities, and positioning other factors that disrupt the river’s life (González 2020; González-Serrano Under Review). In that sense, three concrete petitions of the lawsuit were:

TENTH: Order the implementation of a special plan for the cessation of the environmental impact of the extractive activities, including various technically adequate measures to achieve the decontamination of the river, the purification of its waters, the reconfiguration of the riverbed and the integral reforestation of the basin, since this is the determining cause of the violation and constant threat to fundamental rights. (FISCH 2014, 67)

ELEVENTH: In application of the precautionary principle, Codechocó and the corresponding additional entities are ordered to carry out a review process of the logging permits⁷, to verify strict compliance with environmental obligations, and to proceed with the adoption of additional measures to prevent the continuation of the contamination of the Atrato Basin, as well as its marshes and wetlands, damaged as a result of this activity. (FISCH 2014, 68)

TWELFTH. In application of the precautionary principle, to order the Ministry of mines and energy, and the National Mining Agency to temporarily suspend mining concession contracts, the application procedures for new mining concessions, and possible bidding ort he delivery of mining blocks or strategic mining areas that overlap with the Atrato river basin, until substantial measures are adopted to overcome the socio-environmental crises faced by riverside populations. (FISCH 2014, 68)

The recognition of new rights for the river was not part of our arguments or petitions; instead, during the process of litigation we asked for a structural ruling considering that the rights to water, environment, culture, food, and territory are fundamental, not secondary, for the riverine black communities (Richardson and McNeish 2021; Wesche 2021).

The Constitutional Court’s decision granted four rights to the Atrato River: protection, conservation, maintenance, and restoration, and imported the biocultural rights, which refer to the intricate relationships between communities with nature (Colombian Constitutional Court 2016). Thus, the decision created a new legal subject with legal personality and its own scheme of representation that promotes the articulation of the different community and institutional levels, ‘through a public policy-oriented approach’ (Colombian Constitutional Court 2016; Wesche 2021, 554). However, this decision has largely omitted the adoption of enforceable orders to address a more complete extractive panorama of the basin.

For its part, the Cauca River lawsuit was filed in 2018, by the activists Juan Luis Castro and Diego Hernán David, who intended to address the social, economic, environmental, and cultural damage caused by the construction of the Hidroituango dam, a licenced energy mega-project operated by a public-private company. The original lawsuit demanded the protection of the rights of the communities and the river to compensate for the destruction caused by the installation.

The plaintiffs demanded that the judge:

(ii) declare the Cauca River a subject of rights, on the occasion of the provisions of Judgement T-622 of 2016”, and in consequence “that the violation of the alleged fundamental rights be declared and that the entities involved be ordered to adopt protocols, strategies, guidelines and actions aimed at finding immediate solutions to compensate for the environmental, social, economic and cultural damage caused to the Cauca River. (Tribunal Superior de Medellín 2019, 4)

The lawsuit was rejected in the first instance by the Juez Cuarto Civil del Circuito of Medellín. In the appeal, the plaintiffs considered that the judge of first instance did not study or analyse the judgment T-622 of 2016 (…) and state that what they really seek with the case is ‘to enforce that jurisprudential reference’ (Tribunal Superior de Medellín 2019, 19).

And then, they claimed:

that instead of pursuing a condemnation or finding the company and the entities involved liable, what they seek is “to generate a coordinated, effective and diligent inter-institutional space, aimed at the implementation of medium and long term strategies, with three main functions: (i) recovery and restoration, (ii) prevention and permanent care, (ii) to avoid affecting the fundamental rights of the communities that depend on the Cauca River, and (iii) the protection of the communities that depend on the Cauca River.” (Tribunal Superior de Medellín 2019, 20)

The Magdalena River lawsuit was filed in 2018 by the lawyers Andrés Felipe Rojas and Daniel Alejandro Sanz, who denounced some factors that disturb the river:

The damage caused by the El Quimbo hydroelectric project, the pollution caused by the direct discharge of sewage, and the questionable efficiency of the wastewater treatment plants in some municipalities have highlighted the serious impact on the ecosystem due to the enormous environmental and social repercussions caused in the municipalities bordering the tributaries of the Magdalena River. (Juez Primero Penal del Circuito 2019, 2)

The lawsuit explicitly demanded the protection of the human rights of river communities, the declaration of new rights to the river, and the formulation of new public policies to adequately address the problematics exposed:

The plaintiffs demand the protection of the fundamental rights to health, to a healthy environment, and to a dignified life of the communities that are located in the area of influence of the Magdalena River due to the El Quimbo Hydroelectric Project, as well as the situation of wastewater discharge by the communities described. They request that the Magdalena River be declared a subject of rights, on the occasion of the precedent developed in Judgement T-622 of 2016 and Judgement No. 38 (…) of 2019, in order to find strategies to compensate for the social, economic and cultural environmental damage caused to the Magdalena River. (Juez Primero Penal del Circuito 2019, 4)

However, the lawsuit did not address other critical extractive factors associated with the river, particularly the Magdalena River Navigability Plan, which is focused on transforming the river into a modern multimodal platform for energy production and the transportation of goods and raw materials (Boelens et al. 2021, 474).

The Cauca River ruling was held on 17 June 2019 and the Magdalena one was handed down in October 2019. Both recognized not only the river but also future generations as subjects of rights. For the rivers, the rights to protection, conservation, maintenance and restoration were issued without providing proper definitions; for future generations, the rights to water, health, a dignified life, and healthy environment.

The Magdalena decision established that the river and its tributaries are entities with rights, but there has been no pronouncement on the heart of the claim on the damages and reparations caused by the mega-project, giving all the weight to the new subject of rights without providing a concrete definition of those rights (Juez Primero Penal del Circuito 2019).

One of the most striking differences between the Atrato and the Cauca and Magdalena rulings was the direct involvement of the companies responsible for the construction and operation of the ‘El Quimbo’ and ‘Hydroituango’ mega-dams, not only as actors called by the judges to present their arguments in the proceedings, but also as key players in the implementation of the rulings. In this sense, for example, the third order of the Magdalena’s judgment reads:

Third: To recognize the Magdalena River, its basin and its tributaries as an entity subject to the rights of protection, conservation, maintenance and restoration, under the responsibility of the State, Enel-Emgesa and the Community, as indicated in the motivational part. (Juez Primero Penal del Circuito 2019, 35)

However, in this and the Cauca cases, the judges did not issue any definitive measures, coercive actions or even warnings to the companies to remedy the critical damages and harms caused by the installation of the mega-projects.

Finally, the Magdalena and Cauca River cases were not originally a legal path sought by the social movements, riverine communities, or social organizations with a long history of contestation and resistance in the basins, as Asoquimbo or Movimiento Ríos Vivos. Rather, they were taken up by singular lawyers and activists amid the ‘snowballing effect’ of granting rights to natural entities, cases with a high media boom and political attention (Viaene 2022, 187).

In conclusion, it is noted that the decisions that declared new rights of backbone rivers do not imply substantive measures on extractive interests, projects or activities covered by concessions, permits or licences issued by the state (Table 1).

Table 1. Backbone rivers rights and extractive interests.

Own elaboration
Cases	Disruption factors invoked before the Courts	Judicial orders
Atrato River Acción de tutela Corte Constitucional Ruling T-622 de 2016 Actors: Community Councils of Black Communities and social organization from Chocó	Informal mining Mining titling to corporations Illegal deforestation Corporate logging Discharges of domestic and industrial waste	Integration of a Commission of River Guardians. Elaboration of policymaking instruments to: (i) dismantle informal mining; (ii) recover the river from degradation caused by informal mining; (iii) restore traditional livelihoods and rooted productive alternatives; (iv) Implementation of toxicological and epidemiological studies of mercury waste and other toxic substances derived from illegal mining. No concrete measures on the other extractive sectors operating in the Basin.
Magdalena River Acción de tutela Ruling issued by Juez Primero Penal del Circuito Rad. 41001-3109-001-2019-00066-00 Actors: Individual lawyers	El Quimbo hydroelectric project Discharges of domestic and industrial waste	Set up a guardian’s commission made up of 4 institutions and open to the participation of civil society and universities. Implementation of studies and works to promote the Wastewater Treatment Plans. No specific and concrete measures on El Quimbo or the other hydroelectric projects on the Magdalena, nor on extractive activities responsible for river degradation.
Cauca River Acción de Tutela Ruling enacted by Tribunal Superior of Medellin (2019) Sentencia No 38. Radicado No: 05001 31 03 004 2019 00071 01 Actors: Individual lawyers	Social and environmental impacts caused by the construction of the Hidroituango dam in the Cauca River canyon.	Establish a Commission of Guardians headed by institutions, with the participation of a community representative and the advice of a group of experts. EPM was declared responsible for ensuring the rights of the river and the communities affected by the construction of the dam. However, the orders did not assign the company any obligations, responsibilities or measures to be implemented.

Rights of rivers as ornamental law

The literature on RoN explores how these legal innovations are ground-breaking because their implementation brings together a plurality of stakeholders with agency and voice to co-design plans to tackle structural problems, including the participation of local communities (Celermajer et al. 2021; Gilbert et al. 2023; Macpherson et al. 2021). In practice, however, the operative part of the legal instruments reflects an abstract model, in which concepts, objectives, and concrete methods are not stipulated (Jefferson, Macpherson, and Moe 2023; Reeves and Peters 2021). Moreover, the judicial decisions that recognized the backbone rivers as rights holders have resulted in bureaucratic settings. As Bellina has pointed out, RoN solutions to socio-environmental conflicts conduce to depolitization, ‘where conflict is displaced from the field of public dissensus to a techno-managerial manageable consensus’ (Bellina 2023, 4).

Then, the rulings issued on backbone rivers in Colombia are the result of processes of judicialization of the impacts caused by extractive projects and activities. However, the judicial resolutions do not adopt any type of measure to address the conflicts that exist in the river basins provoked by extractive economies covered by state permits, concessions, and public policies. The analysis reveals that the recognition of rights for non-humans does not translate into binding obligations and remedies to extractive economies’ impacts and violations. Thus, I argue that RoN in Colombia do not meaningfully extend constitutional environmental law. Instead, they give rise to an ornamental law: an apparently counter-hegemonic set of verdicts that in practice silence the aggregated extractive regimes that shape water extractivism in backbone rivers.

Ornamental as an adjective has been defined as describing something that is artistically decorated or beautiful, rather than practical. Ornament as a noun refers to a decorative object, especially a plant grown for its beauty rather than for its use (Merriam Webster Dictionary 2023). Historically, the terms ornament and ornamental come from the Latin expression ornare, which means decoration or adorn (Sales Meyer 1894). In the field of architectural design, the term also has a sense of abstraction and serial production of decorative patterns. In her piece ‘Ornament’, Coomaraswamy, takes note of Andre’s words, ‘The sensible forms [of artefacts], in which there was at first a polar balance of the physical and the metaphysical, have become more and more empty of content on their way down to us: so, we say, “This is an ornament” … an “art form” … [Is the symbol] therefore dead, because its living meaning has been lost, because it was denied that it was the image of a spiritual truth?’. She, then reflects on how for some ancient peoples and cultures a ‘divorce between meaning and utility would be inconceivable’⁸ (2015, 375).

Certainly, RoN are rhetorically appealing because their narrative aims to change through legal statements the legal status of nonhumans. However, the Colombian model of RoN has taken on the form of a decorative pattern, in which the first decision, the Atrato River case, has been partially imitated and reproduced by subsequent decisions. I then advocate that the category of rights of rivers has become an ornament that shows the separation between meaning and utility, allowing the continuity of extractive regimes, without challenging the hegemonic factors that cause the destruction of rivers and nature.

Instead of taking on the role of resolving the legal tensions and social conflicts caused by extractive pressures, the eco-jurisprudence in Colombia, through its decisions, creates new rights holders without providing them with relevant substantive content, and completely avoids defining the roles, duties, and responsibilities of the public and private actors behind the economic policies. As a result, river rights solutions leave structural changes in the hands of an asymmetrical and bureaucratical dialogue between the actors involved, in a context of worsening violence and persecution of environmental leaders.

For example, in the process of implementing the Atrato river decision that I’ve followed over the years, the approach promoted for the recovery of the water body points to the activation of the institutional apparatus at its entangled instances and procedures, in order to align it with the protection of the river, in a region marked by the historical absence and neglect of the state. This goal of making present a structure that is blurred and distant from local realities implies that the communities must adapt to the institutional logic, its rhythms, procedures, and operating schemes, in a context of persistent violence, displacement and racism (Centro Siembra 2022; Monitoring Committee 2020). While the communities demanded the adoption of concrete, verifiable, and achievable actions to change the patterns of degradation and exploitation of the river, the challenge for the institutions is to set in motion a spiral of planning spaces and to incorporate formulated and existing instruments and policies as part of the solution (Melo forthcoming; Wesche 2021).

Thus, in terms of the extractive policies and activities deployed along the basin, these issues were repeatedly taken up by the communities during the implementation phase. For illustration, the baseline diagnosis of the Environmental Action Plan identified 29 disturbance factors, mostly related to territorial conflicts, and impacts of the extractive matrix, beyond informal mining and mercury contamination. Despite this, the expansion of the dialogue agenda was limited to two components, deforestation due to illegal logging and the dumping of household waste (Ministry of Environment 2019). Then, the industrial exploitation of timber, oil palm and banana plantations in the lower Atrato, legal mining with more than 118 mining titles granted to foreign companies and active operations have been ignored. In addition, potential mega-projects of hydro-energy, infrastructure and port projects have been designed and configured in the basin, without any consideration during the execution of the sentence (Melo forthcoming).

Private investment law prevails over human and nature’s rights?

In this section, I draw on the intersectional legal landscape that provides stability, certainty and fluidity to extractive regimes, in order to better understand what are the legal anchors that RoN leave untouched. It is fundamental to note that extractive policies activate alliances among large investors, national and regional elites, and multilateral banks, among other influential actors (Merino 2020). Further, they are based on political settlements and ‘legal arrangements’ in which the trade regimes and the protection of foreign investments are central (Perrone 2022; Cotula 2020, 432; Miles 2013).

As Cotula has examined, the legal framework that underpins extraction involves intersections between instruments from fragmented fields of domestic legal systems, particularly civil law, mining and energy law, property and land law, even environmental law (Cotula 2020, 433). All these normative provisions have been historically reinforced to make extractive projects feasible and effective, presenting water, land, and rivers as resources and ‘commercial assets’ (Cotula 2020, 435; Vélez-Torres 2014). As Nygren et al. note, ‘For extractive capital to be invested in a particular place, the state has a key role in producing legal, fiscal and proprietary conditions for capital accumulation’ (2022, 739).

In the legal cases studied on the Magdalena and Cauca Rivers, the complaints filed challenged Hidroituango and El Quimbo. These hydroelectric projects were identified in Conpes document 3762 of 2013 as ‘projects of strategic interest to the nation’ (PINES, Spanish acronym), which means that they are infrastructures that, like the large-scale mining policy challenged in the Atrato River case, are of ‘public utility and social interest’ (González-Serrano, Digno, and Viaene 2022). This means, on the one hand, that environmental licencing, land acquisition, resettlement and community participation processes must be completed expeditiously as fast-tracking procedures, to ensure their prompt and effective implementation. On the other hand, companies and investors can benefit from tax advantages and favourable conditions for the execution and renewal of their contracts with the state (González-Espinosa 2015, 107; Dussán 2017). To appreciate some practical effects, the ‘public and social utility’ declaration of the Quimbo hydroelectric project implied that the company imposed several easements and carried out processes of voluntary alienation or expropriation of land over 514 points and rural properties (Clavijo-Bernal 2021, 78).

As I have reasoned, the decisions granting rights to backbone rivers in Colombia contain references to the private sector, but their resolutions treat it with absolute deference. The plans and agreements elaborated in the implementation processes of these rights of rivers’ rulings do not change or modify in any way the legal regime that drives and secures water extractivism. Nevertheless, in my read, the tactful way in which judges and courts have dealt with extractive interests and projects in these cases can be explained by the antecedents of other types of legal processes initiated by communities, organizations and citizens who have confronted extractive policies or projects before the judicial authorities (Raftopoulus 2017, 395).

In the first phase, the main claim recognized by the courts in a progressive jurisprudence was the violation of the right to prior consultation and free, prior, and informed consent of ethnic communities affected by extractive projects and policies (Machado et al. 2017). As Bustamante has observed, the implementation of these decisions in Colombia has been abandoned, subordinated, and institutionalized by the state in order to catapult neoliberal agendas (2015, 179). This means that despite obtaining positive decisions stating the violation of ethnic rights, in practice most of the extractive projects reviewed by the courts have been effectively implemented.⁹ Subsequently, other constitutional arguments have emerged around the right to public participation of other marginalized populations affected by extractive projects, such as farmers, fishermen and artisanal miners. In this direction, the main cases have referred to popular consultations and territorial environmental planning to claim the right of citizens and local authorities to vote and decide on the arrival of extractive projects in their localities¹⁰ (Acosta García 2022; Dietz 2017; González Gil 2019).

More recently, claims of violations or threats to the rights to a healthy environment, water, food, education, territory, and culture caused by extractive projects and policies have gained traction¹¹ (González-Serrano, Digno, and Viaene 2022). In this universe of cases, the courts have issued different types of decisions, some of which have imposed measures directed at different levels of the state and the private sector to set limits, suspend projects, modify environmental licences, mandate consultation processes, apply sanctions and require reparations, among others. In Cotula's words, ‘ the (judicial) contestation over aspects of the extractive regime was considered a threat to the system and a driver of economic disintegration’ (Cotula 2020, 435).

Therefore, several judicial decisions protecting the rights of citizens and communities affected by extractive projects have led to the initiation of quasi-judicial proceedings by the private sector in private law arbitration settings.¹² To this end, because of investment protection agreements that incorporated different forms of stabilization and consistency clauses, companies interested in extractive projects have sued the Colombian state in investor-state dispute settlement (ISDS) forums, ‘where local communities do not play a significant role in the investment treaty regime and are not parties to ISDS disputes’ (Frank 2019; Perrone 2022, 838; Cotula 2020, 441).

Hence, a major political, economic, and fiscal factor being considered by the Colombian judiciary system is to abstain from imposing too many mandatory obligations that represent costs or changes in the rules of the game agreed with economic actors and protected by investment law. In this regard, Cotula considered,

Businesses have initiated a growing number of investor-state arbitrations to challenge state conduct in wide-ranging policy domains (…) despite significant policy shifts and often lively debates, most investment treaties remain in force, and the past few years have witnessed consistently high numbers of investor-state arbitrations. (Cotula 2020, 443)

In this regard, the most recent report of David Boyd, the Special Rapporteur on human rights and sustainable environment, stated that ‘the investor-State dispute settlement has become a major obstacle to the urgent actions needed to address the planetary environmental and human rights crisis’ (2023, 2). In this compelling context, I advocate that the most strategic path taken by judges in the last five years has been therefore to issue ornamental rulings, such as the rights of rivers decisions observed, with high media attention, making bureaucratic moves without knocking the extractive locomotive off its trajectory.

Acknowledgements

Thank you to Edel and Rafael (my parents), Guillermina, Marco, Alicia and Miguel (my grandparents), and my aunt ‘Toya’ for rooting me in the river territories and showing me the paths of education and legal practice as means to defend them. Vielen Dank auch an meine Lieben Golda und Alejandro.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Data availability statement

Part of the data that support the findings of this study are included in the paper, and other sources are openly available in ‘figshare’ at https://figshare.com/account/home#/projects/168470.

Additional information

Funding

This work was supported by the Starting Grant from the European Research Council (2019–2025) ‘RIVERS – Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation’ [grant agreement 804003], under the European Union’s Horizon 2020 research and innovation programme.

Notes on contributors

María Ximena González-Serrano

María Ximena González-Serrano is a Colombian activist, lawyer, and committed researcher. Over a period of 15 years, she worked with Indigenous, Black and Peasant communities leading collective strategies to defend territories and rivers facing extractive economies, in and out of the courts. She then turned to pursue an academic path, where she is advancing research focused on water disputes, strategic litigation, extractivism, and legal mobilization processes and has been a doctoral researcher in the ERC research project RIVERS – Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation.

Notes

1 Colectivo de Abogados José Alvear Restrepo – CAJAR’ (Collective of Lawyers José Alvear Restrepo).

2 Centro de Estudios para la Justicia Social Tierra Digna’ (studies centre for social justice Tierra Digna).

3 As part of this work, three national court rulings that suspended the legal basis for the expansion of the mining policy over aquatic and terrestrial territories were issued. In addition, the legal work was instrumental in achieving initiatives that gained socio-environmental standards, particularly in human rights to prior consent and political participation, which contributed to the temporary suspension of two large-scale mining projects (La Colosa and Dojurá). At the same time, I was lead counsel for the defense of the Atrato River through the T-622 decision of the Colombian Constitutional Court in 2016.

4 The research project RIVERS Water/human rights beyond the human? Indigenous water ontologies, plurilegal encounters and interlegal translation (2019–2025), financed by a Starting Grant of the European Research Council (ERC) with Guatemala, Colombia, Nepal and UN human rights system as research contexts. More info: www.rivers-ercproject.eu. The workshop on ‘Water Extractivism’ was held on 20 September 2021.

5 Deforestation of the Magdalena River valley has resulted in the loss of 70% of its original vegetation cover (Boelens et al. 2021).

6 Currently, the following rivers and water bodies are rights-holders: The Atrato, Cauca, Magdalena, Quindío, Pance, La Plata, Conbeima, Cocora, Coello, Totaré, Lagunillas, Recio, Guali, and Opía rivers.

7 These permits allow the extraction of fine woods in favor of private corporations.

8 She refers to the piece: Andrae, Walter. ‘Die ionische Säule, Bauform oder Symbol, 1933, Schlusswort.

9 I'm referring to the following cases: The Uwa case (SU-039, 1997), The Urrá dam case (T-652, 1998), The Motilón Barí case (T-880, 2006), The Ranchería river case (T-154, 2009), The Puerto Brisa project case (T-547, 2010), The mining concesions in the Apaporis river case (T-384A,2014) The puerto Compas project case (T-479, 2018).

10 The following are some of the most notable cases in which this type of allegation was made: The case of the El Quimbo dam (T-135, 2013); Popular consultation in Cumaral – Meta on a hydrocarbon extraction project (SU-095,2018);Popular consultation in Pijao – Quindio on a mining project (T-446, 2016); the role of communities in decisions on mining projects (C-123, 2014); The rigtht to participation and environmental planification in paramos (highland ecosystems) delimitation (T-361, 2017); The right to participation of the artisanal miners of Marmato mining project (SU-133, 2017).

11 Some of the relevant cases in this line of argumentation are: Educational impacts caused by the Salvajina dam (T-462A, 2014), Environmental and health impacts of the Cerrejón mine case (T-614, 2019 and T-256, 2016), Environmental damage in the Cerromatoso mine case (T-733, 2017), Environmental and health impacts of coal transport (T-672, 2014).

12 Currently, there are several cases litigated by the extractive private sector against Colombia in international arbitration forums. Some of them are: Anglo American vrs Colombia 2021; Glencore vrs Colombia 2021; South32 v Colombia related to Cerromatoso mine 2020; Glencore vrs Colombia 2019 related with the concession contract for Puerto Nuevo; Galway Gold vrs Colombia 2018, Red Eagle vrs Colombia 2018 and Eco Oro vrs Colombia 2016 related with the Constitutional Court decision to ban mining operation in paramos; Gran Colombia Mining vrs Colombia 2018 related with the big mining project in Marmato; Cosigo Resources vrs Colombia 2016 related with the establishment of a national park that suspended exploration and exploitation concessions.