Corporation for the Sustainable Development of the Archipelago of San Andrés, Providencia, and Santa Catalina v. National Agency of Hydrocarbons

In 1994, Colombia ratified the CBD and codified it domestically as Law 165. By 2000, Seaflower became part of the UNESCO World Network of Biosphere Reserves, with its MPA ranking among the world’s top ten largest. This site stood as a treasure trove of biodiversity and cultural significance, boasting over 76% of Colombia’s coral reefs and serving as the ancestral home of the Raizal Indigenous Peoples. In 2005, the Plaintiffs established the Seaflower MPA in collaboration with local communities, creating a distinctive participatory model that gained widespread international acclaim.

Despite its extensive protection and global recognition, the Defendant granted oil exploration and extraction leases to three companies – ECOPETROL, REPSOL and YPF – within the boundaries of Seaflower. In response, the Plaintiff filed an Acción Popular, aiming to safeguard collective and constitutional rights and interests concerning the environment, health, home, and public safety. Citing national and international commitments and protections, the Plaintiffs contended that these oil leases would inevitably lead to environmental degradation. They argued that the leases violated (1) R2HE; (2) the collective right to ecological equilibrium; (3) the management and prudent utilization of natural resources to ensure their sustainable development, preservation, restoration or substitution; and (4) the protection of ecosystems.

Finding for the Plaintiffs, the court acknowledged that the exploration leases imperiled certain rights, including R2HE. The Defendants were ordered to halt oil exploration and extraction in the areas where leases had previously been granted. However, the court did not grant the Plaintiff’s request that the Defendant be forbidden from leasing protected lands in the future. Although recognizing the potential threats posed by oil exploration and extraction to marine species and biodiversity hotspots, the court deemed the Plaintiff’s request for this particular relief beyond the purview of the class action. Instead, the court suggested that recourse to prohibit future leasing lay within the jurisdiction of the national government.

Using an established domestic body of law

The Plaintiffs leveraged the legal mechanism of “Acción Popular” bestowed upon Colombian citizens by the National Constitution. This instrument empowers Colombians to pursue the safeguarding of collective and specified rights linked to public health and the environment. It aims to eliminate hazards and threats to those rights while reinstating conditions to their former state. Three of the Plaintiff’s legal claims—namely, R2HE, the right to ecological equilibrium and the responsible management and use of natural resources—were firmly rooted in domestic laws and constitutional rights.

The Colombian Constitution, encompassing Articles 8, 79, 95, and 310, in conjunction with Decree 2811, Law 164 of 1994, and Law 99 of 1993, protect the environmental rights of individuals and communities. These provisions mandate adherence to the precautionary principle and sustainable development in environmental initiatives. The court’s verdict established that the oil leases breached Colombian mandates for sustainable development, emphasizing the failure to abide by principles of precaution, prevention, and intergenerational equity.

Using an established international body of law to support R2HE

The lawsuit claimed that the oil leases were in violation of the CBD, the Rio de Janeiro Convention, the Indigenous and Tribal Peoples Convention (ILO Convention 169), and the U.N. Declaration on the Rights of Indigenous People. Both the CBD and ILO Convention 169 had been incorporated into domestic law, and the plaintiffs relied on the legal obligations and defining principles of these treaties. The Plaintiff’s third and fourth claims were the product of international treaties. In rendering its decision, the court drew upon international definitions of sustainable development and referenced the Framework Convention on Climate Change, emphasizing the imperative of precautionary measures in shaping environmental policies.

Utilizing a variety of legal arguments

The Plaintiff strategically invoked both domestic and international obligations when advocating for environmental and indigenous rights. While emphasizing the project’s potential impact on the environment, the Plaintiff collaborated with the Raizal people, who joined the class action over concerns about the significant repercussions on their way of life. Despite this, the court addressed the Indigenous People’s claims only tangentially, acknowledging the significance of the Reserve for the Raizal but refraining from providing further analysis. 

The court recognized that oil activities within the Seaflower Biosphere Reserve and the MPA had the potential to strain natural resources and disrupt the ecosystem, thereby endangering people’s fundamental rights to health, life, and a healthy environment. However, the ruling fell short in establishing a definitive connection between the local Indigenous Peoples and the ecosystem’s integrity. Additionally, it didn’t preclude the future allocation of oil leases, leaving that possibility open despite the acknowledged risks to the environment and fundamental rights.