An initial analysis regarding the feasibility of implementing Marine Conservation Agreements (MCAs) in Colombia was completed in 2005. Findings indicate that the central government’s role in Colombia seems to be more active than in some other Latin American countries. The government can engage in co-management of submerged land (usually for exploitation purposes, but the law allows for conservation purposes). Private property rights are limited to those that were in effect before 1974 and after the establishment of the territorial sea. Leases in submerged waters have traditionally been linked to the mineral exploitation, but there appears to be no limitation regarding conservation. Conservation easements in Colombia have recently been established for terrestrial areas.
The Colombian Government is authorized (but is not obliged) to participate in efforts with the private sector to conserve plants and animals that are located in marine areas.1 The agency in charge of the regulation and control the marine activities, including coastal management and development, is the Dirección General Marítima y Portuaria.2 Jurisdiction for conservation, preservation, use and management of the marine areas was also given to the Ministry of Environment (Ministerio de Medio Ambiente) by Law 99 of 1993.
The marine management policy in Colombia is the Política Nacional Ambiental para el Desarrollo Sostenible de los Espacios Oceánicos y las Zonas Costeras e Insulares de Colombia. This management policy, established in the year 2000, proposes to create a standardized system for determining uses and conservation of marine and coastal areas. However, no particular zoning information was found.
The beaches, low baseline and the territorial sea are public goods of the State that cannot be subject to adjudication. 3 Article 63 of the Colombian Constitution establishes that public goods are not subject to private purchase. As such, private acquisition of areas currently held in public ownership is not possible.4 However, Colombian law grandfathered private property rights of submerged land before the baseline (inland). As a result, private acquisition of areas currently held in private ownership appears possible.
The same law, which forbids the purchase of publicly-owned submerged land, authorizes the concession of resources in these areas.5 Private concessions could be achieved using permits or licenses, but these permits and licenses would not create any kind of title in the land.6 The most traditional lease of underwater land is the mineral concession for the Colombian seabed.7 Proposals for the expedition and exploitation of minerals in the sea require a positive opinion of the Dirección General Marítima y Portuaria.8 Once the concession has been granted, the grantee has to follow the terms of reference, the environmental guides and environmental license.9
Conservation easements are a recent concept in Colombia and the few experiences to-date have been in terrestrial areas. To create a conservation easement one of the parties must be the owner of the property to be eased. In cases where private ownership currently exists, there should not be limitations on establishing conservation easements with the private owners. For more information on the first conservation easement established in Colombia, see Fundacion Pro-Aves and TNC's Save of the Week.
1 Decree 1877, August 2nd 1979, art 1.
2 Angel Massiris Cabeza, Manejo de Areas Geoestrategicas y de Division Territorial
3 Law-Decree 2324 (1984), art 166 (Col.)
4 Decree 2811 (1974), art 83 (Col.)
7 Codigo de Minas [Code of Mines], Law 685 of August 15th 2001, art 145