1 INTRODUCTION

In the context of a transition that is taking place in Latin America regarding the introduction of the rights of nature in legal systems and therefore the need for the functioning of an environmental justice that protects and guarantees these rights, this article describes the tools that are being considered in the Colombian case, as well as the main problems for the implementation of environmental justice.

The tools’ description reveals the existing tensions within the regulatory framework and also between the local practices of companies and communities with the rights of rivers. The article starts from the premise that nature must be understood as a whole in which there is a relationship of interdependence between living beings. There must be, therefore, a balance between society and the natural ecosystem, as the principles of ecocentrism would assert³. Its fundamental premise states that human beings are not the center of the global living planetary system, but a part of it. This should lead to a more harmonious and reciprocal relationship in which we accept that humans can only survive if an eco-systemic balance is maintained⁴. The introduction of the rights of nature implies understanding that we are part of a “network that interacts with nature” and our ethics, values and behaviors must be in harmony with it⁵. We also need an understanding of a relational ontology in which we are concerned not only with populations and species, but also with ecological communities⁶.

The human-nature relationship is shaped by the valuation that the former makes of the latter, from which it takes a role as an object, subject, or resource⁷. Recognizing the rights of nature implies a revision of the form of life and the concepts that have shaped its configuration since the beginning of modernity and that threaten eco-systemic balance. In the Colombian case, the recognition of the rights of nature as well as the human rights creates tensions in their satisfaction that are evident in differences between the rules indicated by jurisprudence and the existing normative frameworks. Describing these tensions between legal forms can broaden the paths of justiciability for degradation, contamination, and privatization of rivers.

In order to develop the argument thus stated, the first part will describe the problems related to pollution, degradation and usurpation of water sources. We will revise the existing regulatory frameworks that establish a relationship between humans and nature based on the control of discharges into rivers, concentrating on the regulation of the right to water and sanitation and the affectation of water sources. The rights to rivers have not been introduced in the existing regulatory frameworks. The second part will present the jurisprudence of the High Courts in cases related to the problem of river pollution, where there is a clear argument in favor of the rights of rivers, and finally the difficulties and tensions present in the judicial decisions issued by the country in this regard.

2 POLLUTION, DEGRADATION AND CONTAMINATION OF RIVERS: COLOMBIAN CASE

Pollution has been legally defined as an alteration of nature by substances or forms of energy produced by human activity in concentrations, levels or quantities capable of interfering with the welfare and health of people, threatening the flora and fauna, degrading the quality of the environment or affecting resources (as defined by the Law 23 of 1973)⁸. It assumes that the equilibrium of nature is modified in such a way that it loses the optimal conditions for the uses for which it was intended, presenting physical, chemical or biological alterations that prevent it from fulfilling its ecological functions⁹.

The main sources of pollution due to human activities are the discharges of urban and agricultural wastewater; dumping of livestock farms’ residues; industrial discharges; and dumping of polluting compounds by mining operations, motor boats and the construction of dams¹⁰. Several studies indicate that although Colombia is rich in water, surface waters are highly polluted¹¹; such is the case of the following rivers: Bogotá; Chicamocha; Medellín; Cauca; Suárez; Pasto; Chinchiná, Otún and Atrato¹². This pollution is caused by the discharge of untreated or inadequately treated wastewater and by the residues left by mining, industrial and agricultural activities in the bodies of water¹³. This affects the rights of the rivers and the human and other living populations that are supplied by them in the territory¹⁴.

Water quality is affected by waste from mining and oil exploitation, but also from industrial and land activities such as iron and steel works, tanning, cattle ranching, and certain agricultural activities. Another factor is the absence of adequate sanitation systems, which is evidenced by the measurement of the quality of water consumed by the population through the Water Quality Risk Index (IRCA)¹⁵, which for 2019 indicated that there was no risk in 116 municipalities while the risk was high in 147 municipalities of rural characteristics¹⁶.

The IDEAM (Institute of Hydrology, Meteorology and Environmental Studies)¹⁷ reveals in its study on the main factors affecting water quality that the generation of pollutants comes mainly from the domestic sector, the industrial sector (as the largest contributor of net organic load discharged to water flows) and the coffee processing industry, finding that in the year 2016 (i) the net biodegradable organic load discharged to surface water flows was 1.174.362 t/year; (ii) the total net chemical oxygen demand load discharged to water systems was 2.906.555 t/year; (iii) the net solids load discharged to surface watercourses was 1.364.660 t/year; (iv) the net total nitrogen load discharged to surface watercourses was 144.989 t/year; and (v) the net PT load discharged to surface watercourses was 33.165 t/year.

In relation to the discharge of quicksilver by gold and silver processing operations, the IDEAM¹⁸ notes that in 2016 it was estimated at 183 tons going to ground and water sources, finding that the subareas with greater impact from this kind of dumping were directly the rivers Magdalena (Brazo Morales), Guaitara, Mira, Bajo Nechí (md), Cimitarra, Iscuandé and Telembí.

The consequences of the pollution situation are worrying, in addition to the actual environmental impact. UN (2019)¹⁹ makes clear the potential reduction of economic growth and people's health impairment due to pour water sources, being specially alarming that, according to Gómez-Duran²⁰ an estimated 64% of the population is at risk of contaminated water consumption in Colombia, affecting rural areas in greater proportion, specifically the Pacific and the Amazon regions.

Among the groups that are most affected by pollution are women and the poorest population, but also minors due to the early stage of their body-organ development²¹, which not only manifests itself in recurrent diarrhea, but also in acute and chronic malnutrition, and alterations in psychomotor development²².

Given that human supply comes mainly from surface water and among these, from rivers as the main source of water intake, their contamination aggravates the situation of poverty and generates the displacement of multiple rural communities that have a close relationship with the territory to carry out their life projects²³ .

At the national level, the Ministry of Housing, City and Territory and the Ministry of Health have a system for reporting the effects of pollution on rivers called the Information System for Monitoring the Quality of Water for Human Consumption-SIVICAP²⁴. In the 1,122 municipalities of the country. Unfortunately, in 633 of those municipalities there is no information on the risks to water quality. This is due to the fact that the health authorities in these municipalities do not report on water quality using the SIVICAP system²⁵. application that allows all the municipal health authorities to report data on water quality surveillance, based on their inspection, surveillance, and control activities in their territory²⁶. This water quality report would make it possible to build a risk map²⁷ which is essential for the formulation of a public policy for the protection, conservation, maintenance and restoration of the rivers that are in charge of the State at all levels and for all the communities. It is also essential for the formulation of a public health policy that responds to the needs of the population due to the presence of waterborne diseases such as Acute Diarrheic Diseases-EDA, Hepatitis A, Typhoid and Paratyphoid Fever and Foodborne Diseases ETA²⁸.

Monitoring the institutional response to the situation of water pollution in the country, we observe that not enough information is available to know the situation in the country's rivers, nor the level of risk of the water consumed by the inhabitants of the territory. The IRCA (Water Quality Risk Index) only reflects a partial reality of the situation because it does not have data for the whole country and only evaluates those water resources already treated by treatment systems, without examining the quality of the water sources. SIVICAP on the other hand, depends on reports made by the environmental authorities and the providers of domestic public utilities without means of enforcing this reporting which therefore remains fragmentary.

3 EXISTING REGULATORY FRAMEWORK FOR THE PROTECTION OF WATER SOURCES

The international legal system has regulated the protection of environment and natural resources through various binding and soft law instruments related to the rights to rivers and the protection of water sources.

In the previous section we described the critical situation of river pollution in Colombia, which shows how water sources are affected and how river rights are insufficiently guaranteed. We saw how this contamination affects the fundamental right to water, being the rivers the main human source of surface water intake. This situation is recurring despite the fact that the country has ratified various instruments for the protection of rivers and water sources from 1979 to the Agenda for Sustainable Development Goals 2030.

Among the most important binding instruments are the Tratado de Cooperación Amazónica²⁹ the Convention on Wetlands of International Importance especially as Waterfowl Habitat³⁰; the adoption of the Strategic Plan for Biodiversity 2011-2020³¹ where one of its 20 targets is the conservation of biodiversity through effectively and equitably managed systems; the Convention on Biological Diversity ratified in 1997³² whose emphasis is on the conservation and rational management of wetlands and their recognition for their economic, cultural, scientific and recreational value, the loss of which would be irreparable as regulators of hydrological regimes. The Decision 523 of 2002 of the Andean Community of Nations is a regional strategy for the protection of biodiversity in the countries of the Andean tropics. This decision refers to the need for sectoral policies and development projects with subregional impact to incorporate the sustainable use of biodiversity and its conservation³³. The Agenda 2030 for Sustainable Development that in its 6^th objective states that countries must ensure the availability and ‘sustainable management of water and sanitation for all’. Its targets include ensuring the conservation, restoration and sustainable use of inland freshwater ecosystems and the services they provide, particularly wetlands and related ecosystems.

Other relevant instruments for the interpretation of binding instruments in Colombia are the Stockholm Declaration (1972); the Mar del Plata Action Plan which contains a series of recommendations on water resources assessment; the Dublin Declaration which recognizes as a serious threat to sustainable development and environmental protection the scarcity and abusive use of freshwater as a finite resource. The Agenda 21 of the 1992 United Nations Conference on Environment and Development, includes in its chapter 18 the ‘Protection of the quality and supply of freshwater resources: application of integrated approaches to the development, management and use of freshwater resources’³⁴.

In accordance with the international regulatory framework, Colombia has developed a series of regulations that seek to enforce the international norms. Thus, the Decree-Law 2811 of 1974 (National Code of Renewable Natural Resources and Environmental Protection - hereinafter CNRNR-), and the 1991 Constitution contain various provisions aimed at the regulation, protection and defense of natural resources.

For the conservation and preservation of water, the CNRNR provides for measures to guarantee water quality and set that watercourses, water regime and quality may not be altered, nor may their legitimate use be interfered with, without the permission of the competent authority (Article 132). It also indicated that sources such as waterfalls, lakes and other water reservoirs or currents (natural or artificial) in areas declared worthy of protection, as well as waters intended for human and animal domestic consumption and food production or that are breeding grounds and habitats of crustacean, fish and other species requiring special management, are subject to special protection and control.

The regulations adopted since 1978³⁵ and in force today in Decree 1076 of 2015 prohibits the infringement of the aquatic environment through dumping of polluting substances or changes in flows without permit that affect water resources, flora, and fauna. The alterations of water flows for public and private water uses are regulated. There is a National Policy for the Integrated Management of Water Resources that considers water as a factor of economic development and social welfare.

The regulations point to the need to characterize and optimize the water supply, improve quality, and minimize water resource pollution, and to develop a comprehensive management of risks associated with water supply and its availability. These objectives have strategies that are developed by the National Water Plan.

Among the most relevant institutions are the Ministry of Environment and Sustainable Development, the Regional Autonomous Corporations, the National Authority of Environmental Licenses, research institutes, environmental secretariats in the municipalities and departments³⁶.

There is also a criminal regime that penalizes behaviors that affect natural resources. This regime was modified in 2021³⁷, and includes crimes such as the violation of borders for the exploitation or utilization of natural resources (Art. 329); damage to natural resources (Sec. 331): environmental pollution (Sec. 332), environmental contamination by exploitation of mining or oil deposits (Sec. 333), invasion of areas of special ecological importance (Sec. 337), usurpation of water bodies (Sec. 262), water pollution (Sec. 371).

The regulations and institutional framework described above show tensions between the mandates of international norms as an aspirational ideal and its development at the national level. Given the reality of rivers in Colombia, there is also a tension between the rights of rivers and human rights. Since the 1970s, regulations have approached rivers from the point of view of human consumption, not from the point of view of river care and restoration. This relationship of exploitation is reflected in the fact that the systems of institutions responsible for conserving and protecting the rights of nature do not have sufficient information on the reality of the rivers in the country, and therefore cannot implement a public policy for their care that protects the rights of rivers, and, recognizing the close relationship between them, the protection of communities dependent on its ecosystem.

4 DIFFICULTIES AND TENSIONS IN JUDICIAL DECISIONS

Examining the jurisprudence, the protection of river rights has been a judicial order, of which to date there has been no relevant implementation that has implied a change in the functioning of the administrative structures of the national, departmental and local order. Nor has there been any evidence of changes in the levels of contamination in Colombia’s rivers. We are just at the beginning of a process of transformation of the legal approach to the use and utility of water resources from an anthropocentric towards an eco-centric one.

We observe an increase in litigation on the subject which, in all cases, involves concepts of geography, ecology, environmental engineering, necessary for the correct application of environmental law. This represents a challenge for judges, who are no experts in these areas. To this, we must add the heterogeneity of subjects and causes, and the effects their decisions will have on the economy, politics and social welfare of communities and/or the country. On top of that there is the difficulty of judging how to apply binding international regulations and soft law to a specific case.

Judges issue orders to national and local authorities to address river degradation and contamination. However, according to the Colombian state design, the ministries (national level) formulate public policy for environmental protection and conservation, while its implementation remains mainly in the hands of the municipalities and the companies that provide public utilities. The former does not have the resources to adequately address the problem and the latter have a commercial approach to water. In the jurisprudence of the Administrative Courts, Ministries involved in litigation request their removal from the processes of tutela or popular actions, arguing that they have acted in accordance with the law and that therefore do not have administrative jurisdiction in the facts that conforms the action, insofar as it is a matter of non-compliance with administrative functions that are the sole responsibility of the territorial entities of municipal and departmental order. Thus, in the responses to the lawsuits, the responsibility at the national level to formulate public environmental and water policy is observed, but the contamination suffered by the rivers remains in the hands of municipalities.

The orders issued in the sentences urge a coordination, articulation and harmonious functioning between the public administrators and the communities that are represented by them, especially given that the extension of the rivers and their basin is wide, for example the Atrato River is 750 km long and involves 2 departments; the Cauca River is 1350 km long and crosses 7 departments; the Magdalena River 1558 km long involves 20 departments⁴⁷. The latter involves more than half of the country. This extension and heterogeneity makes necessary the involvement of the entire institutional framework, as well as the interaction of the communities organized to protect those rivers and the inhabitants of the territory.

The protection of river rights and access to the fundamental right to water varies substantially if the municipality is rural or urban. In the former, there are almost no institutions responsible for the protection, conservation and restoration of rivers, however, there is a close connection between nature, its resources and the culture of the communities. In the case of water rights, the provision of the service is fundamentally the responsibility of the water companies or of organized communities, which must guarantee a minimum of access to the resource in order not to affect human dignity. In administrative terms, it can be pointed out that the rivers and water rights cannot be protected if there is not sufficient infrastructure for sanitation and discharge control, as well as wastewater treatment plants. It is also necessary to have authorities at the local level that monitor and control deforestation and carry out concrete reforestation actions near springs and micro-watersheds. We also need a transformation in the mentality of some communities and institutions on the valuation of nature as a living being that must be restored.

In relation to the formulation and implementation of the wastewater treatment system that must include a wastewater treatment plant -PTAR-, it is a competence that is in charge of the municipalities and its implementation in the companies that operate in that territorial area. This competence is essential for the protection and conservation of rivers. From judgment T-622 of 2017 to judgment 2019-00024 of the State Council, which recognizes rights to the Quindío River, one of the fundamental arguments is that the treatment system and the control of discharges should properly carried out at the municipal level. These sentences dictate orders to the various authorities of all orders to carry out this competence. However, there are deficits in coordination, articulation and joint work among institutions and a lack of resources. There is also a lack of control over discharges, non-compliance by the service providers, and treatment plants that do not function⁴⁸ These deficits can be attributed, among other reasons, to the existing tensions between the market schemes of the public water service, which is the use and utility of the rivers and an eco-centric approach.

5 CONCLUSIONS

The normative approach in Colombia since the 1970’s is fundamentally anthropocentric and proposes a vision of exploitation, consumption and control over rivers that constitutes a limiting factor in the transformation of the relationship between communities and nature, as well as the restoration of rivers. The current regulations do not alleviate the situation of river pollution or the access to water and sanitation of rural communities.

The role of judges has been fundamental in the transformation of this anthropocentric vision to an eco-centric one and in the understanding and recognition of biocultural rights. In the Colombian legal system, the anthropocentric normative framework and eco-centric jurisprudence coexist. In this sense, the role of judges is also limited because they issue orders that cannot be complied with by the national and local authorities due to the limitations of the normative framework, the lack of resources at the local level, and the absence of articulation between entities responsible for avoiding the contamination of rivers and for attending to the right to water.

This situation lets us conclude that in Colombia there are limitations in the legal structures (laws, budgets, state competences) to realize the rights of nature, which prevent the ecological restoration of rivers and the fundamental right to water of all living beings. There is an absence of recognition, in the legal regulation and institutional responsibilities, of the relationships and mutual dependencies of humans and nature, although some jurisprudence recognizes rivers as subject of rights. This implies that we should have an eco-centric approach that cuts across all the legal structures and institutions at different levels that addresses the stability and integrality of river ecosystems in the country. This would finally allow to comply with the concepts and orders issued by the judges.