Derechos Ambientales, conflictividad y paz ambiental

Grupo Investigación en Derechos Colectivos y Ambientales de (GIDCA),Gregorio Mesa Cuadros,Isabel Villaseca Bioxareu,Beatriz Elena Ortiz Gutiérrez,Luis Fernando Sánchez Supelano,Diana Carolina Rodríguez Ávalo,María Alejandra Erazo Romero,Carlos Eduardo Olaya Díaz

• Editorial: Universidad Nacional de Colombia
• Año: 2020
• ISBN:
  9789587837827
• Categoría: Law
• Categoría: Environmental Law

Los últimos años de diálogos y acuerdos de paz han sido un reto para la construcción de democracia, país y perspectiva de una paz estable y duradera, donde la materialización de los derechos de los asociados sea el horizonte de actuación estatal y social, a favor de los que menos pueden y tienen la capacidad de ser sujetos. Los aportes del Grupo de Investigación en Derechos Colectivos y Ambientales (GIDCA), presentados en este libro que lleva por título Derechos Ambientales, Conflictividad y Paz Ambiental, corresponden a la primera parte del Informe de Investigación 2016-2017 (el libro que recoge la segunda parte es Estándar Ambiental y Derechos Ambientales en posacuerdos de paz: algunos estudios de caso). Estas contribuciones son relevantes, ya que abordan, desde una perspectiva teórica ambiental crítica, las cuestiones jurídico políticas relativas a la crisis ambiental y civilizatoria, así como sus causas y consecuencias sobre ecosistemas y culturas, las cuales se han agudizado en las últimas décadas de hegemonía del capitaloceno, el caos climático y las afectaciones subsiguientes, resultado de las amenazas, el desconocimiento y los atentados a los derechos ambientales. En este ejercicio aún están pendientes múltiples tareas para lograr un cambio de paradigma desde enfoques ambientales críticos, y para llegar a una comprensión amplia y un profundo debate sobre los diversos problemas y conflictos ambientales. La participación ambiental debe irrigar las diferentes instancias estatales, sociales y comunitarias, donde los movimientos y redes por la defensa del ambiente, es decir, de sus ecosistemas y culturas, contribuyan a la pervivencia de la vida humana presente y futura y de otros seres sobre la Tierra. Una comprensión integral y sistémica de los derechos, la política, la sociedad, el Estado y la paz, desde el paradigma ambiental puede contribuir significativamente a ello.

CAPÍTULO 1

SOME DEBATES IN ENVIRONMENTAL CONFLICT AND ENVIRONMENTAL RIGHTS IN LATIN AMERICA AND COLOMBIA*

GREGORIO MESA CUADROS**

There cannot be a clearer demonstration of anything, than several nations of the Americans are of this, who are rich in land, and poor in all the comforts of life; whom nature having furnished as liberally as any other people, with the materials of plenty, i.e. a fruitful soil, apt to produce in abundance, what might serve for food, raiment, and delight; yet for want of improving it by labour, have not one hundredth part of the conveniences we enjoy: and a king of a large and fruitful territory there, feeds, lodges, and is clad worse than a day-labourer in England.

JOHN LOCKE, The Second Treatise of Civil Government

The question before us is whether the class of persons [Negro people or slaves] described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.

SUPREME COURT OF THE UNITED STATES, Dred Scott v. Sandford

The main problems of the contemporary world have to do with the way human beings relate to the environment. This relationship is culturally diverse and depends on how human societies have built concrete and specific relationships with their natural environment and other human communities.

The specific use of nature by cultures is related to the concrete forms of how the law defines whom the environment belongs to or to which it belongs, that is, of legal forms pre-established by law and new ones that human beings, States, corporations or, especially, the academy, prescribe on how the environment can or should be used or appropriated.

Environmental conflict is the concept I use to identify the differences, contradictions and oppositions between various kinds of use and appropriation of nature and is the result of the actions of one, several or many human beings or groups that improperly or unjustifiably appropriate the Nature, which belongs to another, to several, many or all subjects of law.

In the last five centuries, companies and States have been illegally appropriating the Nature from other nations and States, seeking to legitimize this appropriation with new theories of law. The University usually serves these forms of appropriation, either because the theories originate there or because companies and States with power finance studies that say or formulate theories that these companies and those States require to appropriate what is not theirs.

For the above, the right of appropriation corresponds to theories of liberal rights, which have in civil and political rights the central axis in the idea of freedom over property and unlimited appropriation of nature. Even in contemporary times, social, economic, cultural, collective and environmental rights are considered mere aspirations that can be accepted in the future since there are multiple theories of rights, the radical is imposed despite the rivers of ink that go in favor of other alternative theories.

To present this theory, I have grouped this text into two parts. The first is a brief analysis of environmental conflict from the political and legal point of view and the second, the basis of a theory of environmental rights, which discusses theories of rights that contributes to the resolution of the environmental conflict, the search and concretion of environmental justice, especially in the Latin American and Colombian sphere.

THE ENVIRONMENTAL CONFLICT

In this section, we will develop our approach from two positions. First, the inadequate conceptualization of environmental problems and conflicts and an analysis of their main causes and consequences to overcome the deficit of conceptualization and foundation of this conflict and; second, the formulation of a practical theoretical proposal from a systemic, comprehensive and global political point of view, that is, environmental in a strict sense.

Conceptualization, reasons, and arguments

As mentioned before, the environmental conflict is the result of the inadequate appropriation of nature by a few human beings. A pertinent conceptualization should start by specifying what they are and why there are conflicts that we call environmental (Mesa Cuadros, 2015a).

The majority of the environmental problems, such as climate change, desertification, exaggerated and widespread contamination of water, soil and atmosphere, the unlimited extraction of the various elements of nature and the intensive reduction of biological diversity, are the result of these inadequate and illegitimate ways of using and appropriating nature. Therefore, peoples, societies and communities affected by it must organize, demand and claim a different use of nature and demand respect for their traditional practices and customs, different from the way modern capitalist society has established how the environment can and should be used and appropriated.

These juridical forms of use, access and modern appropriation of Nature correspond to liberal or modern theories of law that start from the idea of the unlimited human capacity to access nature and that any barrier (natural or artificial) can be transformed by a theory of law that justifies the appropriation. In history, appropriation could be justified by the right of conquest and war (Ginés de Sepúlveda, 1941); by civilizations against barbarism and exploitation against non-use (Locke, 1690; Montesquieu, 1906), the appropriation of common goods in the English forest fence (16th century) or the new tragedy of the commons by Hardin (1968). In the twentieth century, appropriation also affected plant patents, animals and humans regarding transgenesis or cloning. In recent years, laws of appropriation have affected the radical transformation of life through the nanotechnology of synthetic biology. The “sustainable development” in Rio (United Nations, 1992) or “green economy” in Rio+20 (United Nations, 2012) are the main ways in which capitalism has reoriented its way of speaking about “going green” or “dressing green”, and what should or shouldn’t be considered “green” or consevationalist.

We must remember that environmental conflicts are part of the set of elements that manifest themselves from the tremendous global crises and the injustices of re-distribution on the elements or components of the environment. These injustices originate in the absence of equity in generational terms and with other beings of nature, evidencing not only the type of inequalities linked to the distribution of environmental and natural goods, but also those loads of pollution, deterioration, degradation, displacements and ecosystemic and social damages from which all kinds of demands emerge in different sectors of the population.

Environmental problems are impossible to deny today. Pollution, the destruction of biodiversity, climate change, the gradual disappearance of tropical forests, increased greenhouse gas emissions, acid rain, deforestation, among others, are phenomena that we hear talk daily, besides being problems that demand our attention together with the early implementation of actions aiming to reverse them.

It is for this reason that the primary concern of “political ecology”, as Gorz (1994) points out, has to do with the generation of a balance between human needs and the normative elements that establish the limits to actions and behaviors towards nature since the participatory and democratic perspective.

Within the focus of political ecology, professor Martínez (2002) speaks of “ecological re-distributive conflicts”. He understands by ecological distribution the various social, spatial and temporal patterns of access to the obtainable benefits from natural resources and services provided by the environment as a life support system. This way, ecological distribution links the processes of nature extraction with the growth of the metabolism of industrialized societies that consume more and more natural goods and energy because of asymmetries or social, spatial or temporal inequalities and the reduction of natural resources as well as the increase of pollution loads.

We are of the idea that environmental conflict essentially has to do with disputes between societies and States, on access, extraction, use, appropriation, transformation, production, control, commerce, consumption, destruction, pollution and waste the elements of the environment (natural and cultural). However, reality is that it has more to do with several or many human beings pretending to appropriate the elements that belong to other human groups and communities, generating reactions from others to guarantee their care and access, under other legal norms in which their cultural forms have been previously established (Mesa Cuadros, 2015b).

Following Escobar (2011), these disputes over defense and environmental protection occur mainly because for many communities in ecosystems and their cultural practices is their direct source of subsistence. Such conflicts exist in the context of different economies, cultures and forms of knowledge, along with ecosystems in which local societies engage in struggles against translocal forces to defend their territoriality.

This is because, with the current advances of globalized and transnational capitalism, the pressures to intensify the extraction of environmental goods have been increased and eliminate or erode the juridical limits that societies had established for access to nature. However, as these pressures increase, social resistance also increases, especially from traditional and local community sectors (rural and urban), all of which is reflected in the existence of unresolved environmental problems and conflicts, on the occasion of misappropriation or unjustified of Nature by the new actors in those territories and cultures.

As Inglehart (1977) and other authors point out, some of the keys to defining and understanding the emergence of ecological conflicts in European and North American countries are found in the increasing competition and scarcity of natural resources in the South and the emergence of ecological values in the North. There, various actors are in dispute for controlling and accessing scarce resources along with the change of values in contemporary societies, which are more focused on ideas of self-realization and participation (i.e., post-materialism), than in exclusive concerns of economic security (materialism).

However, we prefer the expression “environmental conflicts” rather than the expression “ecological conflicts”, as we consider the first expression to be more comprehensive and inclusive, by understanding within its analysis the natural, cultural, and spiritual ecosystemic aspects. It emphasizes the different relations between cultures, nature and other societies, and not only in the relations of a society with the ecosystems.

As said earlier, from this conceptualization it is argued that environmental conflicts arise from unjustified appropriations of the environment or violating the rights of some, many or all in a society, by a few. Therefore, environmental conflicts involve, above all, the interests of all subjects of law, not only human beings, but also non-human beings such as forests, mountains, rivers or wild animals.

Just as environmental conflict can be conceptualized in different ways, it can also be categorized. Martínez’s (2008) classification of this type of conflict seems pertinent, since it considers the different points in the production chain. For example, in the areas of material extraction and energy (i.e. mining, hydrocarbons, or biopiracy,), manufacturing and transportation processes (oil spills, waterways) or final disposal (such as generation of waste and pollution by toxic waste like fumigations to illicit crops, which is evident in the Colombian case because of the failed international fight against drugs).

In the last twenty years, and on the occasion of the predominance of the neo-extractivist postulates based on appropriation by dispossession (Harvey, 2003), the neoliberal version of capitalism has promoted in Colombia and Latin America a way to take advantage of the comparative and competitive benefits of producing raw materials. In the idea that greater exchange will generate more progress and development, developing countries allow developed States to transform the raw material...

Índice

• Cubierta
• Portadilla
• Página legal
• Contenido
• Lista de tablas
• Lista de figuras
• Lista de siglas y acrónimos
• Presentación
• CAPÍTULO 1 Some Debates in Environmental Conflict and Environmental Rights in Latin America and Colombia
• CAPÍTULO 2 Problemas de legitimidad y viabilidad del desarrollo sostenible: desentrañar la crisis ambiental en el siglo XXI
• CAPÍTULO 3 Acuerdo de paz en Colombia y protección ambiental: entre las continuidades y las posibilidades
• CAPÍTULO 4 Reconocimiento jurídico-político de territorios interculturales: más allá de jerarquizaciones y negaciones entre derechos étnicos y campesinos
• CAPÍTULO 5 Licenciamiento ambiental: acuerdos de paz y gradación del estándar ambiental en Centroamérica y Colombia
• CAPÍTULO 6 Aproximación jurídico-conceptual a los pasivos ambientales mineros
• CAPÍTULO 7 Is Transitional Justice in Developing Countries an Opportunity to Protect the Environment Harmed by Armed Conflict?
• CAPÍTULO 8 Desarrollo rural, extractivismo y procesos de descampesinización en el marco de los dos últimos planes nacionales de desarrollo de Colombia
• CAPÍTULO 9 Un lenguaje ambiental: el sentido humano de la salud
• Autores
• Índice temático
• Índice onomástico
• Índice tiponímico
• Cubierta Posterior