“Is it possible to compare different legal jurisdictions like South Africa and Colombia? Is it worthwhile? And, can South South comparisons be a fruitful starting point to make Global South communities more equitable?
These are some of the questions Helena Alviar García of the Sciences-Po Law School in Paris aims to examine in her STIAS project.
“The work specifically aims to weave connections between legal solutions to inequality in two jurisdictions that are not frequently studied together: South Africa and Colombia,” she explained. “Proposing a comparison between South Africa and Colombia comes from the observation that although distant geographically, the countries share crucial characteristics. Both reformed their constitutions in the early 1990s and have advanced transitional justice processes to face the past. During the ensuing period, foundational texts and judicial interpretation have been celebrated as progressive, but they have also been harshly criticised for their lack of wide transformative results. High levels of inequality in terms of access to power and resources continue to characterise both nations.”
“It’s a comparative project,” she added. “Looking for differences and similarities – about opening your eyes while also remaining very aware of the limits of comparing.”
“Whilst here I have been immersed in all things South African and African.”
She explained that she has spent a big part of her career on the critical side of legal theory. “I’m now more interested in South South inspiration and utopian thinking including transformative constitutions, the interdependence of property and gender equality.”
Alviar García’s seminar presentation was liberally peppered with artwork and cultural connections – starting with the African Artists Concert in 1974 in Zaire (now the DRC) in which 80 000 people listened to the Salsa band – Fania AllStars emphasising the African roots of Salsa – “African music had survived the slave ships and with blending had become more unique.”
“I have found art to be a good way to teach especially global students,” she said. “I use art as a way to move away from law and to come back to it.”
Alviar García explained that there are two ways of understanding law in society. The first − the classical liberal perspective − is that law is no more than a frame to promote human interactions, a frame for property and contracts, and the state doesn’t intervene in private resources. While the more interventionist approach sees law as a tool to transform society, to redistribute resources and to guarantee rights.
She also explained that traditionally (and according to mainstream academics, policy makers and politicians including many in Global South countries), legal transplants from Europe or the United States are seen as the best and more efficient way of solving pressing issues from providing access to property and promoting economic development to preventing climate change.
However, she added “Critics of the meagre results set in motion by the transplant approach foreground the long shadow of imposed, foreign colonial law or more recent forced upon neoliberal legal reforms”.
She also noted that instances where inspiration has or could come from other Global South jurisdictions issues has been less explored. By looking at examples of South-South dialogue, she explained that she aims to think about the possibilities and limitations embedded in comparative law and “to explore the political force that can be tapped into by engaging with common challenges and practices, intellectual traditions, cross-border cooperation and long-lasting academic encounters”.
“I’m thinking about alternatives, specifically legal policies that advance human emancipation,” she continued.
She noted that by South South she doesn’t necessarily mean geographical. “There is North and South in every country. South South is more a political than geographical stance.”
She also emphasised the need to understand history and context. “Underdevelopment is a product of existing divisions not a pre-state to development. Power and the construction of knowledge is different across the world. The Global South has a different narrative of progress so perhaps South South co-operation comes more naturally.”
She went into detail with two examples. The first being the inspiration that the Colombian Peace Project took from the South African Truth and Reconciliation Commission. She explained that Colombia had experienced civil war for half a century until peace negotiations ended the conflict in 2016 and the country faced the reality of dealing with perpetrators of violence. “The mainstream approach would be to prosecute perpetrators using criminal law. But you can’t prosecute everyone, so inspiration was taken from the TRC offering alternate forms of justice to people who told the whole truth.”
Granting rights to rivers
The second example involves the granting of rights to rivers to protect them from environmental damage as has also been done in New Zealand and India. “In the past ten years there has been increasing interest in preventing environmental damage. The mainstream legal response would be environmental law and regulations but in many countries this translates into permission to continue to do damage so the idea of granting rights to rivers is gaining force.”
In 2016 in a landmark ruling, the Colombian Constitutional Court recognised the Atrato River as a legal entity with environmental rights that need to be protected alongside the communities’ bio-cultural rights. Since then, a further 10 rivers have been granted similar rights. Alviar García explained that the Atrato is an important water source situated in one of the most biodiverse regions on the planet. The Afro-Colombian Communities living along the river live in extreme poverty even though rich deposits of gold and platinum have been extracted for centuries both legally and illegally. High levels of mercury and cyanide have also been dumped into the river by illegal mining.
“The idea is that nature has personhood and can sue to protect its rights. The judges created the term biocultural rights which was an attempt to move away from an Anthropocentric view of nature. It was a recognition of the spiritual dimension, that the separation between culture and nature is non-existent, and that humans play a role in the circle of life,” said Alviar García.
Guardians representing the local communities as well as municipal officials and other stakeholders were appointed to represent the river.
“I believe South Africa may be fertile ground for this. This was not in the Colombian Constitution whereas the South African Constitution already includes environmental rights.”
But she warned it’s not without challenges.
“You can grant rights to a river. But activists should also know what private corporations are doing and how this is all related to economics and development,” she explained. “Granting the right is not enough, you have to understand development. In Colombia the guardian bodies were only given resources four years after the right was granted. There were no resources and no institutional capacity. There was also conflict within the body. The governance issues are huge. You need a holistic view – the right is only the beginning of the project.”
“I’ve always been critical of rights because they are individualistic. Giving rights to a river is partially a band aid. But it’s much better to have rights than not. The language of emancipation is the language of rights. It has many risks and is far from perfect, but still better than nothing.”
Michelle Galloway: Part-time media officer at STIAS
Photograph: SCPS Photography