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A court located in the heart of the Peruvian Amazon has just issued a historic ruling. It has established that the Marañon River, one of the main rivers of the Amazon, is also a «rights holder»1.
On March 8, 2024, Judge Corely Armas Chapiama, of the Mixed Court of Nauta, in the Loreto region of Peru, issued a ruling following the protective order process filed by the Kukama indigenous women’s organization «Huaynakana Kamatahuara Kana»2 of the Parinari district. This process was carried out due to the systematic oil spills from the Oleoducto Norperuano, operated by the state-owned company Petroperu. The lawsuit was directed against Petroperu, the National Water Authority (ANA), the Regional Government of Loreto, the Ministry of Environment and the Ministry of Justice, among others.
1. Main contributions of the ruling
i. Recognition of the rights of the Marañón River
The first thing the ruling does is recognize the rights of the rivers. The judge began by declaring the Marañón River and its tributaries as a holder of rights. She then recognized that this river «has the right to flow, to guarantee a healthy ecosystem, the right to provide a healthy ecosystem, the right to flow free of all contamination; the right to feed and be fed by its tributaries, the right to biodiversity; the right to have it restored, the right to the regeneration of its natural cycles; the right to the conservation of its structure and ecological functions; the right to protection, preservation and recovery».
ii. Obligation of the State to protect the rights of the rivers
Furthermore, the judge established the obligation of the Peruvian State to protect such rights: These are «Rights […] that the State must legally protect, since they are an important part of the fundamental rights of every human being and of our future generations, since they are life, health, and represent one of our basic needs, for our subsistence».
iii. Recognition of the Marañón River as a titleholder, but not as a subject of rights
The judge recognized the Marañón River as a rights holder, but not as a subject of rights. In the sentence, she stated that: «It is incumbent upon this office to protect the right of the Marañon River and its tributaries as a holder of rights, which the State must legally protect, since it is an important part of the fundamental rights of every human being». (Emphasis added)
iv. The rights of rivers are part of the constitutional normative content of the right to enjoy a balanced environment adequate for life
The court sentence develops the constitutional content of the fundamental right to enjoy a balanced environment adequate for life, recognized in article 2.22 of the Peruvian Constitution. Strictly speaking, we are not dealing with unnamed or implicit rights (article 3 of the Constitution), but with the unnamed manifestation of a fundamental right already recognized, such as the right to enjoy a balanced and adequate environment: «There are various international instruments ratified by the State, as well as the jurisprudence of the Constitutional Court that allow complementing the constitutional content of the right to a balanced environment» (emphasis added).
v. Recognition of intrinsic value and ecocentric perspective
The sentence recognizes the ecocentric perspective and the intrinsic value of nature, and that this is part of the constitutional content of the right to enjoy a balanced environment adequate for life: «There are various international instruments ratified by the State, as well as the jurisprudence of the Constitutional Court that allow complementing the traditional content of the right to a balanced environment, with the recognition of an ecocentric dimension, and therefore, consider the intrinsic value of natural entities in decision making in an autonomous and fully justiciable way» (emphasis added).
To this end, the judge also bases her decision on the jurisprudence of the Inter-American Court of Human Rights (hereinafter IACHR or Inter-American Court): «considering the intrinsic value of Nature is a dimension that must be considered in the interpretation and application of the right to a healthy environment» (sic). Based on this, the judgment concludes that «it is incumbent upon this jurisdictional body that the State recognizes the intrinsic value of the Marañón River».
vi. Precautionary orientation
For the sentence «an indispensable part of the implementation of the right to a balanced environment is the adoption of a precautionary orientation in the interpretation and decision making in environmental matters». The judge endorses Consultative Opinion 023 of the Inter-American Court, when she states that «frequently it is not possible to restore the situation existing before the occurrence of environmental damage, [in this sense] prevention must be the main policy regarding environmental protection». On this basis, the judgment also concludes that «it is incumbent upon this Jurisdictional body that the State recognize the intrinsic value of the Marañón River and adopt a precautionary orientation in the protection, prevention and conservation of the Marañón River and its tributaries».
vii. Preservation of the Marañon River is a condition for the subsistence of the indigenous peoples
For the judge, the preservation of the Marañon River is a condition for the subsistence of the indigenous peoples, of all the people who live around it and of future generations: «As it is a primordial element for the functioning of the associated ecosystems and for the subsistence of the native communities and of all that surround it, as well as of our future generations».
viii. The Marañón River as a sacred place
Also important for indigenous peoples is the recognition made by the ruling that the Marañón River is sacred: “In this territory, the Kukama people carry out hunting, fishing and harvesting for their subsistence, and they collect water, plants for medicinal purposes, oils, minerals and wood. The sacred sites are distributed throughout the territory, at the same time the Marañón River itself has a sacred value for them.”
ix. Recognition of the Kukama people’s interdependence with the Marañón River
Finally, we have the recognition of the interdependence and identity of the Kukama people with their territories and rivers. According to the judgment, «the identity of the members of the people with the Marañón River is intrinsically related because it is their main source of subsistence. To this end, the judgment is also based on the pronouncements of the Inter-American Court: «the jurisprudence of the Inter-American Court of Human Rights has had the opportunity to repeatedly prove that there is an interdependence between culture, territories and the management of resources by indigenous peoples, understanding that the traditional practices of indigenous peoples and their cultural identity are compatible with the sustainable use of the environment and play a fundamental role in its conservation».
2. Background to the recognition of the rights of nature in Peru
This is not the first time that a Peruvian authority has recognized the rights of nature. Perhaps the first precedent for this ruling are the local government ordinances of Puno in the Peruvian Altiplano, which have recognized their watersheds and rivers as sacred. The ordinance of the Provincial Municipality of Melgar, in the Puno region of the Altiplano, recognized the Llallimayo river basin as a subject of rights.
The Ordinance of the District Municipality of Orurillo, province of Melgar in Puno, makes a more general recognition of all the water sources that exist in the district of Orurillo. It is an Ordinance that provides for «the recognition of mother water, the Yaku Unu Mama as a living being subject to rights within the jurisdiction of this municipality«. In this sense, it recognizes the puquios, springs, rivers, lagoons and lakes as subjects of rights. In the same sense, the Ordinance of the District Municipality of Ocuviri, in the province of Lampa, is pronounced in the same sense.
There were also two legislative initiatives that attempted to recognize the rights of nature. A bill to recognize the rights of nature was approved and ruled favorably by the Commission of Indigenous Peoples, Afro-Peruvians and the Environment, but was never scheduled by the Board of Spokespersons of Congress to be discussed by the plenary. Article 1 of this bill stated that, «the purpose of this Law is to recognize that Mother Nature, ecosystems and species are holders of rights and subject to protection by the State; as living entities, with intrinsic and universal value, which have the right to exist, develop naturally, regenerate, restore and evolve».
Another bill aimed to decontaminate Peru’s main rivers; article 2.5 recognized «that Peru’s rivers, lakes and lagoons have the right to exist and to regenerate their vital cycles and evolutionary processes».
On the other hand, the Peruvian Constitutional Court, in a case that questioned the dumping of solid waste and clinical waste in the Nanay River in the city of Iquitos, Loreto region, after recognizing the existence of anthropocentric, biocentric and ecocentric approaches, established that those approaches that consider the intrinsic value of nature cannot be excluded.
In the Inter-American sphere, it was Advisory Opinion 023 of the Inter-American Court of Human Rights that for the first time recognizes the intrinsic value of nature. In this Opinion, the Court states that it is a matter of protecting “nature and the environment, not only because of the benefits they provide to humanity or the effects that their degradation may have on other human rights, such as health, life or personal integrity, but because of their importance to the other living organisms with which we share the planet that also merit protection in their own right.”
This argument was taken up in paragraph 203 of the IACHR Court’s Lhaka honat v. Argentina judgment. These pronouncements of the Court must be taken into account by Peruvian judges when interpreting and applying fundamental rights, as specified in Article VIII of the Preliminary Title of the Peruvian Constitutional Procedural Code.
3. Other measures for the protection of the Marañón River ordered by the decision
Not only does the court decision recognize the Marañón River as a right holder, but it also provides for other measures aimed at protecting the indigenous communities. First the creation of the Marañon River Basin Committee is ordered; the Regional Government of Loreto is ordered to «take the necessary steps before the National Water Authority to request the guidelines for the creation of the Water Resource Basin Councils for the Marañon River and its tributaries, under its jurisdiction, and to promote the commitment and participation of the institutions, including the participation of the indigenous organizations of Loreto, with decision-making capacity». This is the implementation of an institutional space that can allow citizen participation of indigenous peoples and civil society in general in the management of the Marañon River.
Secondly, the indigenous peoples are recognized as guardians, defenders and representatives of the Marañon River: «RECOGNITION AND APPOINTMENT of the State (Ministry of the Environment, Ministry of Agrarian Development and Irrigation and the National Water Authority), Regional Government of Loreto and the indigenous organizations as guardians, defenders and representatives of the Marañon River and its tributaries» (emphasis added). This measure aims to ensure that the Marañon River is not defenseless, but is represented and defended, among others, by the indigenous peoples. Note that not only the plaintiffs (Huaynakana) will be the defenders, but eventually other indigenous peoples and also public institutions.
Thirdly, Petroperu is ordered to update its environmental certification. According to the law, no extractive activity can take place without an environmental impact study and this must be updated every 5 years. The current environmental management instrument for the Norperuvian oil pipeline dates back to 1995 and has not been updated. In this sense, Petroperu is ordered to «within six months, prepare and submit the project to update its Environmental Management Instrument (IGA) to the Ministry of Energy and Mines, in order to include the integral evaluation of the impacts identified in the hydrocarbon transportation activity through the Norperuvian Pipeline, and to assume environmental commitments to guarantee the adequate management and mitigation of such impacts». In addition, prior consultation with indigenous institutions and organizations on the updating of the new IGA is ordered.
Not everything that the plaintiffs requested in their lawsuit was granted by the judge. The request to require Petroperu, according to its Environmental Adjustment Program (PAMA), to carry out an integral maintenance of the Norperuvian Pipeline was rejected. In the judge’s opinion, after evaluating Petroperu’s documentation, such maintenance is already being carried out.
In conclusion
Criticism of this judicial decision in Peru has not been long in coming. First of all, those who deny and mock any possibility of the recognition of the rights of nature from an assimilationist and even racist perspective3. These criticisms lack legal arguments and even less an intercultural perspective.
Then there are those who consider that this judgment has no practical effects and consequences; it is only a symbolic and well-intentioned recognition. This is incorrect; this sentence, in case it is confirmed by the second judicial instance and becomes final, will havevery concrete consequences, because it recognizes new constitutional contents of the fundamental right to enjoy a balanced and adequate environment for life and, in this way, also become criteria of material validity of any administrative or normative decision of the State or of any act of the private ones. In this sense, the legal sanction of any act that violates or threatens these new constitutional contents of this fundamental right would be nullity.
Photo credits: Juan Carlos Ruiz
- Judgment of the Nauta Court, eleventh ground. All the quotations that follow from this judgment come from the same grounds.
- Which in the Kukama language means «organization of working women», and groups 29 indigenous communities.
- Peru has no limits to amaze us; it is more hallucinogenic than the purest LSD mixed with ayahuasca. The shaman of the latest of these psychotropic trips so common in our nation has been that sidereally disastrous NGO called IDL, which has achieved a bizarre sentence in a court of Nauta (Loreto), issued by a singular judge named Corely Armas Chapiama. Corely’s sentence follows the lines of that ideology between poetic, romantic, animist, indigenist and pantheist, which is fashionable in the postmodern «ecowoke» world. Thus, he grants several «rights» to the Marañon River as if it were a human being, a nonsense by any standards. A little more and they establish that the river reasons and speaks!» https://peru21.pe/opinion/opinion-aldo-mariategui-otro-zarpazo-mas-del-idl-contra-el-peru-noticia/.
