The commons: an innovative basis for transnational environmental law in the era of Anthropocene? The case of Latin America

The purpose of the present paper is to find a theoretical-legal basis for the recent innovative decisions by the Colombian Supreme Court of Justice and by the Inter-American Court of Human Rights on the issue of environmental justice. In order to pursue this aim, we will proceed as follows. First of all (Par. 1), we will outline the general framework in which the considered case law are situated. The contemporary environmental degradation of our planet – especially of the so-called (environmental) commons – caused by human activity has led to a new term coined to describe a “human-made” geological era: the Anthropocene. The increasing detrimental conditions of most natural ecosystems has elicited the birth in recent decades of a new category of fundamental human rights – strictly coupled with the natural environment – the so-called “environmental rights”. In the central part (Par. 2 and 3) we will illustrate and comment on the content of the judicial decisions by the Supreme Court of Colombia (STC 4360-2018) and by the Inter-American Court of Human Rights. Notably, we will try to underline the most innovative shifts that these judgements have brought in the theme of environmental justice. The following part (Par. 4) will deal with the question: what is the theoretical-legal basis for the innovative case-law set out earlier? We argue that this basis actually already exists, and it can be found in the theory of the environmental commons (henceforth, simply “commons”). To do this, we will first identify five core points characterising the new environmental justice approach of the considered jurisprudence. After this, we will show how these five points are almost completely mirrored by the main features of the commons, so that they can offer – we believe – a valid theoretical-legal basis for this innovative case law. Lastly (Par. 5), we will consider two theoretical objections, that can legitimately arise, and how we propose to overcome them.