Colombia

• Author: Eduardo Del Valle Mora
• Pages: 455-474

CHAPTER 24

Colombia

EDUARDO DEL VALLE MORA

I. Introduction to Foundations of the Colombian

Environmental Legal System

A. Basic Environmental Law: The Current Trend

Colombia’s environmental laws are found in the nation’s constitution, laws,

and regulations. The country has been more heavily regulating the environ-

ment, natural resources, landscape, and human health, and some aspects of

its regulatory system stem from international free trade agreements with

other countries. This trend appears to be continuing and suggests that envi-

ronmental laws in Colombia will continue to be based on both domestic and

international sources.

Colombia’s national constitution has been named the “Green Constitu-

tion.” In fact, out of its 380 sections, 49 of them directly relate to the protec-

tion of natural resources and the environment.1 Moreover, the constitution

declares that Colombian citizens have the constitutional right to a clean and

healthy environment. For that reason, the country has modified its regula-

tions several times over the past few decades.2 Even though most of the cur-

rent environmental regulations have been issued in the last 15 years,

Colombia was one of the first countries in South America to issue a compre-

hensive environmental and natural resources code, the 1974 Environmental

and Natural Resources Code (Environmental Code). This code established

the rules with which public and private actors must comply when exploiting

Colombia’s renewable resources.3 Then, after the 1992 Rio Declaration on

Environment and Development,4 Colombia enacted Law 99 of 1993, which

established the national institutional framework for the management of nat-

ural nonrenewable resources and the protection of the environment. Through

this statute, the country created the National Environmental System (SINA)

articulating the relationship between the different environmental agencies in

Colombia and assigning duties to those agencies.5

Moreover recently, consistent with the trend internationally, Colombia

has substantially regulated the use of its natural resources, the landscape,

455

the environment, and the protection of human health. Colombia’s regula-

tions attempt to follow international environmental standards as well as

international trade law. For instance, under Colombian environmental laws,

environmental public policies must take into account available scientific

information, be science based, and may not result in the imposition of an

arbitrary or discriminatory ban on trade. That said, environmental agencies

may apply the “precautionary principle” whenever there is any threat of

serious or irreversible damage that could be caused by a specific activity.

Thus, environmental authorities may impose any measure to prevent irre-

versible damage to the environment and natural resources even in the

absence of absolute scientific certainty about the environmental impact of a

given activity.

As part of an international trend, Colombia has recently entered into

free trade agreements (FTAs) with countries including the United States,

Canada, and the European Community. Under these FTAs, Colombia can-

not waive or derogate from its environmental laws in a manner that weak-

ens or reduces the protections afforded in those laws in a manner affecting

trade or investment.6 In addition, in the FTAs, Colombia has agreed to

(1) maintain appropriate procedures for assessing the environmental

impacts and risks of certain projects and activities defined by the govern-

ment;7 (2) conserve, protect, and improve the environment for the well-

being of present and future generations;8 (3) ensure the conservation and

sustainable use of biological diversity and the preservation of traditional

knowledge;9 (4) guarantee the development of, compliance with, and

enforcement of environmental laws;10 (5) ensure transparency and public

participation on environmental matters;11 and (6) cooperate on the advance-

ment of environmental issues.12

One notable example of these FTAs is the Colombia–United States of

America free trade agreement,13 which recognizes that each country is sover-

eign, has the right to establish its own levels of domestic environmental pro-

tection and environmental development priorities, and accordingly has the

right to adopt or modify its environmental laws and policies.14 The FTA reaf-

firms that each country shall strive to ensure that its laws and policies pro-

vide for and encourage high levels of environmental protection and continue

to improve its respective level of environmental protection.15

Colombia also agreed to implement voluntary actions to protect or

enhance the environment and natural resources, such as (1) partnerships

involving businesses, local communities, non-governmental organizations,

government agencies, or scientific institutions;16 (2) voluntary guidelines for

environmental performance;17 and (3) voluntary sharing of information and

expertise among authorities, interested parties, and the public concerning

methods for achieving high levels of environmental protection, voluntary

environmental auditing and reporting, ways to use resources more effi-

ciently or reduce environmental impacts, environmental monitoring, and

collection of baseline data.18 In addition, Colombia agreed to create incen-

tives to encourage conservation, restoration, sustainable use, and protection

of natural resources and the environment, such as public recognition of

456 INTERNATIONAL ENVIRONMENTAL LAW