Colombia Supreme Court - Sentencia STC 4360-2018, Radicación No. 11001-22-03-000-2018-00319-01 - Colombia
Background
The petitioners, a group of children and young persons aged between 7 and 25, brought an action (acción de tutela) against the Colombian Government and governmental agencies (the Respondents) based on their rights to enjoy life, health and a healthy environment. The petitioners alleged that these rights were affected by the continued deforestation of the Colombian Amazon and that the government had failed to comply with its obligations under the Paris Agreement and the domestic Law 1753 of 2015, to ensure that this deforestation ceased.
Reasoning
The Colombian Supreme Court overturned the decision of the High Court of Bogotá –which had rejected the action on the basis that the acción popular (class action), and not the acción de tutela, is the right means to protect collective rights– and declared the admissibility of the acción de tutela. According to the Supreme Court, the jurisprudence had exceptionally accepted this form of action to be admissible when the impairment of collective interests also impaired individual guarantees. In this case, according to the Court, environmental protection entails the protection of individual guarantees enshrined in legislation superior to ordinary law, such as life, health, freedom, and human dignity, and any person, including children, may bring the action.
In addition, the Supreme Court found that the effects of the Amazon’s deforestation entailed a serious and imminent harm for the petitioners and, in general, for all Colombians of present and future generations (p. 34), as “the fundamental right to life, health, basic needs, liberty and human dignity is significantly linked to and determined by the environment and the ecosystem” (p. 13). Finally, the Supreme Court stated that the Amazon deforestation is contrary to environmental principles (precaution, intergenerational equity and solidarity) and to Colombia’s international obligations (such as the Andean Environmental Charter and the Paris Agreement). The Court also recognized the Colombian Amazon as a subject of rights, whose conservation, maintenance and restoration are the responsibility of the State and the different territorial entities, in order to protect this ecosystem for the global common good.
However, although the petitioners had also grounded the tutela action on the principle of participation, the Court did not address this principle in its reasoning. The petitioners had claimed their right, and that of all citizens, to “prior, representative, free, informed, active and effective participation” (see pp. 109-111 of the tutela action) in decisions that affect or may affect the environment, as recognised by the Constitution, various international legal instruments and the Court itself on previous occasions. Participation was indeed contemplated by the Court in the remedy. Another principle that was mentioned in the tutela action and which was not addressed by the Court was the best interests of the child.
Remedy
The Court ordered the Colombian Presidency, the Environmental and Sustainable Development Ministry, and the Agriculture and Rural Development Ministry, to develop a plan and draft an intergenerational agreement in order to adopt measures that will initially reduce and ultimately fully eliminate deforestation (Pacto intergeneracional por la vida del Amazonas colombiano - PIVAC), with the participation of the petitioners and public in general.
It also ordered the municipalities of the Colombian Amazon to design a plan to reduce to zero the deforestation rate in their territories, and ordered environmental agencies in the Amazon to develop a plan, including police, legal and administrative measures, to counteract deforestation.
Role of children
The plaintiffs were a group of 25 children, adolescents, and young adults, between the ages of 7 and 25 years, who initiated the action with the support of Dejusticia, a civil society organisation.
Enforcement and other outcomes
The Supreme Court ordered the respondents to comply with its orders within a period of 4-5 months following the judgment rendered in April 2018. The respondents have yet to comply with those orders (see article by Dejusticia). In fact, by the time such deadlines expired, the respondents had made little progress (see Red-DESC and Ministerio de Agricultura). A year after the judgment was entered, on 5 April 2019, the petitioners asked the Superior Tribunal of Bogotá to declare the respondents’ to be in non-compliance.
As reported by Dejusticia, the Colombian organization that supports the petitioners in this case, deforestation in the Colombian Amazon has increased between 2019 and 2020.
Significance of the case from a CRSL perspective
This was the first lawsuit of this type (acción de tutela) filed by children in Colombia regarding climate change and the rights of future generations.
The judgment sought remedies that would have a positive impact on children, in particular, on those who live in areas most at risk for climate change. In fact, the aim of the Supreme Court’s orders was to reduce deforestation rate and, consequently, reduce the negative effects of greenhouse gases and climate change for future generations.
The case also confirmed children’s standing to bring an acción de tutela. In addition, the Supreme Court admitted an action that is generally used to protect individual rights (acción de tutela), to protect a collective right, based on the connection between the protection of the environment and children’s individual rights to life and health.
Country
Colombia
Forum and date of decision
Colombian Supreme Court, Civil Chamber of Cassation/Corte Suprema de Justicia, Sala de Casación Civil.
5 April 2018
CRC provisions and other international law provisions/sources
International Covenant on Economic, Social and Cultural Rights, Article 12
Protocol Additional to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Articles 35(3) and 55.
Domestic law provisions
Colombian Constitution, arts. 1, 8, 49, 58, 63, 67, 79, 80, 86, 88, 95(8), 215, 226, 268(7), 277(4), 289, 300(2), 310, 311 and 313(9)
Related information
For the petitioner:
Dejusticia, a Colombian research and advocacy organization, supported the petitioners in this action.
Calle 35 No. 24 - 31 Bogotá, Colombia
For the Respondent:
Carrera 8 No.7-26 Bogotá, Colombia
Ministry of Environment and Sustainable Development of Colombia
Calle 37 No. 8-40 Bogotá, Colombia
Ministry of Agriculture and Rural Development of Colombia
Avenida Jimenez N° 7A - 17 Bogotá, Colombia
Unidad Administrativa Especial de Parques Nacionales Naturales
Calle 74 N° 11 - 81 Bogotá, Colombia
Departments of Amazon, Caqueta, Guainia, Guaviare, Putumayo and Vaupes.
Amici curiae:
An amicus curiae was provided in the name of James E. Hansen, director of the Program Climate Science, Consciousness and Solutions of the Earth Institute of the University of Columbia, United States
Case documents
Secondary documents
