Against this damage and deterioration caused by the new wave of extraction of elements, and affectations to the social and cultural practices of peoples and communities in Colombia and most of the Latin American countries, people from different origins, groups and organizations have united in a series of popular social mobilizations to define collective actions in defense of collective goods and in the pursuit of the public interest in general.
A good part of their proposals aims at defending the little cultural and natural heritage that is still preserved in the country; others seek to defend the territories, some ecosystems or the environment in general, under the idea of a sense of commonality, that needs to be taken care of and preserved.
Sometimes, Environmental Law can contribute to this defense, since some mechanisms of citizen participation in environmental matters such as, green meetings, public environmental hearings, popular environmental consultations, prior consultations with free and informed consent, as well as environmental assessments have sometimes yielded some positive results (Mesa Cuadros, 2015b). For example, the popular environmental consultations in the municipalities of Cajamarca and Piedras, Tolima, for the defense of the waters and forests of the region against the extraction of gold by Anglo Gold Ashanti, or the consultation in Villanueva, Casanare, in procure of water and soil protection against oil extraction by British Petroleum and Ecopetrol, the Colombian state oil company.
In any case, many of these legal demands have resulted in lawsuits (protection actions or environmental protection, popular environmental actions, class actions or group in environmental matters, nullity actions and reestablishment of law, among others), for the political and legal recognition of those peoples, communities and organizations that have not been considered when planning development outside of the environmental considerations established by the Colombian law. Colombian environmental standards include the Political Constitution of Colombia of 1991, Ley 99 de 1993 (General Environmental Law), Decreto 2811 de 1974 (Code of Natural Resources), Ley 2 de 1959 on protection of natural forests, among others.
Despite the existence of international treaties and environmental conventions (Climate Change, Biodiversity, Biotechnology) and international declarations on development and environmental protection (United Nations, 1972; 1992; 2012), its implementation suffers from a commitment deficit from both States and the international community for their effectiveness and concrete application. They continue to give priority to chrematistic values for the unlimited appropriation of nature, which usually starts by ignoring the biophysical limits of the environment, mainly with its ecosystems.
However, we need to recognize their symbolic role in proposing and guiding the discussions in the national, regional and global levels regarding the need to incorporate the environmental dimension in development planning as a limit to the productive processes that degrade and pollute the environment. Even so, international and national environmental laws are partially applied from certain specific subjects and territories (the global North), against specific populations and ecosystems (the global South).
In most of the debates, speeches and arguments presented by those who suffer the negative impacts of environmental conflict require the recognition of constitutional or legal limits, both natural and cultural to access nature, as well as the respect, protection and promotion of care for cultural and natural diversity that are part of the essence of the Colombian nation and most of the Latin American countries. This goes against of the classical liberal vision of the Nation State, which is homogeneous natural and culturally speaking, and was promoted by the Eurocentric vision of the world.
Likewise, the ideas of clarification of truth, justice, reparation and guarantee of non-repetition of damages and adverse environmental impacts are demanded. Even during the peace negotiations with armed guerrilla groups, mechanisms have been defined to clarify the historical truth about what kind of projects and who have dealt with the deterioration and environmental damage, in what territories, at what time, their duration and who were affected (Mesa Cuadros, 2015c).
Justice is demanded to investigate the facts and actions to punish those responsible for crimes against the environment and to compensate victims (both individual and collective human and non-human, including various elements of nature). Negative environmental impacts and unrepaired environmental liabilities can take many decades to resolve. We must remember that in New Zealand and India in 2016, legislator and judges, respectively, have recognized rights of Nature and rights of some elements of it.
In any case, the fact of signing the peace accords with the FARC guerrillas, carried out last year, and those currently underway with the ELN is no guarantee that the environmental conflict will be solved. The State and companies have been pushing for a series of normative changes that are further eroded by the low environmental standards of Colombian regulations, an aspect that together with the inefficiency of our environmental regulations makes environmental protection more difficult in periods of peace, and during the war was carried to extreme degrees of deterioration and contamination.
Finally, and as a synthesis of the first part of this paper, it is necessary to have an adequate conceptualization and foundation of environmental conflict. We must take into account the context in which these conflicts originate, their specific causes and their consequences, both the ecosystems and the populations affected and the mechanisms for protecting the rights effectively and the corresponding reparations for violated or denied rights, all in an integral, global and systemic way, that is, our environmental perspective.
SOME THEORIES ABOUT RIGHTS, BEYOND LIBERALISM
In this second part of this text, we will dialogue about the concept and the basis to justify the need to formulate a new theory of rights that seeks to overcome the deficiency of materialization and effective protection of the same, subject that will be approached from our theory on environmental rights and environmental justice.
Concept and basis of rights
Theories, history and practice of human rights contain a series of concepts, foundations, justification and legitimacy of the same, regarding their existence, permanence or disappearance, where human beings, mainly from the academy, produce reasons and arguments to specify, expand, reduce and interpret what we call rights.
Since scholars have been researching on this topic for more than 20 years, it is imperative that we specify its content from the university, because rights can be understood not only as norms or as attributes of humans, but also as a dynamic set of social and cultural action-reactions arising from concrete contexts of relations between humans and their environment, in two great dimensions, their universalization and specification, not only for a few humans but for all of them and other beings.
As Ferrajoli (1999) points out, rights are nothing more than socially shared meanings and as such do not fall from the sky nor affirm in a day but are the result of long processes through which their normative statements are sedimentary in the collective conscience and, above all, those of the victims of their violations.
These rights incorporate principles, rules and diverse forms of articulation of individual and collective actions as a result of social, economic, cultural and political processes in defense of environmental (human and ecosystemic) dignity, with the occasion of the existence of environmental conflict in a specific place.
Theories of law that have been constructed to speak of rights, guarantees, freedoms or faculties in the heads of a few, many or all human beings are diverse, but in the last decades, the idea of the need for extending the scope of protection of subjects to other beings, beyond just human beings.
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