Amsterdam Law Clinic students’ work reaches Colombia’s Constitutional Court

Fracking pilots in Colombia 

Fracking is a drilling technology used for extracting oil, natural gas, geothermal energy, or water from deep underground. In 2020, amidst national discussions on whether fracking should be allowed or banned, through Decree nbr. 328 (2020) the Colombian government authorized and regulated pilot projects for the development of fracking in Colombia. The Decree nbr. 328 (2020) was incompatible with the recommendations of an independent expert committee assembled by the Colombian government to analyse the environmental and economic effects of hydrocarbon exploration through fracking. Against this backdrop, a tutela action was filed before national courts in an attempt to stop these pilot projects and discuss the legality of the respective regulation.

Tutela action

A tutela action is a mechanism given by the Constitution of Colombia to everyone, through which a person may claim before a constitutional judge the immediate protection of his/her fundamental constitutional rights, when these are violated or threatened by the action or omission of any public authority.

Collaboration between Business and Human Rights Clinic and Javeriana University

There is a longstanding collaboration between the Legal Clinic on Law and Territory (Clínica Juridica sobre Derecho y Territorio) of the Pontificia Universidad Javeriana in Bogotá and UvA's Business and Human Rights Clinic (BHRC). BHRC is a one of the thematic clinics of the course Amsterdam Law Clinics. Therefore, BHRC students were asked to prepare an amicus curiae brief assessing the compatibility of the decree nbr. 328 (2020) and the pilot projects with international human rights standards for governments and businesses.

The amicus brief argued that Decree 328 (2020) and the pilot projects are incompatible with Colombia’s international human rights obligations, for 4 main reasons:

1. Decree 328 (2020) contravenes 2 relevant guarantees in relation to the corporate responsibility to carry out a due diligence on the possible impact of the pilot projects on human rights;
2. The Decree does not ensure the pilot projects comply with the required social license;
3. The Decree does not guarantee the protection of the right to access information;
4. The Decree fails to protect the rights of environmental and human rights defenders.

To present these arguments, the first part of the amicus discusses the applicable international law framework, including the UN Guiding Principles on Business and Human Rights and the OECD Guidelines. Here, the brief analyses the corporate human rights responsibilities and State obligations relevant to the case and presents a comparative international legal practice. The second part of the amicus examines the compatibility of Decree 328 (2020) and the ensuing pilot projects with the international standards.

Download the Spanisch amicus curiae brief here (pdf).

Our students’ experiences

This amicus brief was produced in the context of the course Amsterdam Law Clinics for Master's students. The project was carried out by BRHC students Mees Brenninkmeijer, Maisie Hopkins, Keila McFarland Dias, and Tim Waldvogel, supervised by Claudia Müller-Hoff.

On the clinical experience, Tim Waldvogel stated: 'For me, working in the Business & Human Rights Clinic set a personal precedent in researching and applying international law to an important and significant human rights case. The work required high concentration and close cooperation with peers whose skills and positive attitude I greatly appreciated.'

Maisie Kopkins added: 'It is an honour to know that something we worked on has been submitted to the Colombian Constitutional Court and has the potential to make a difference to the lives of people in these areas affected by fracking and these pilot projects. It was a pleasure to work with the Javeriana Clinic, to learn about the damage environmentally the oil and gas industry is causing in Colombia, how it is affecting these people, and support them to safeguard environmental and human rights.'

The following persons also contributed to the amicus: Linde Bryk, coordinator of the Business and Human Rights Clinic, Prof. Johanna Del Pilar Cortes Nieto (Universidad del Rosario) and Dr. Antenor Hallo de Wolf (University of Groningen).

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