Domestic, Colombia Gisela Sin Gomiz Domestic, Colombia Gisela Sin Gomiz

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

Domestic law provisions

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:

Amici curiae:

Case documents

Secondary documents

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Domestic, Philippines Gisela Sin Gomiz Domestic, Philippines Gisela Sin Gomiz

Minors Oposa v. Secretary of the Department of Environment and Natural Resources 33 I.L.M. 173 (1994) - Philippines

Background

This action was initiated by (among others) a group of children in the Philippines, who represented themselves and generations yet to be born, and The Philippine Ecological Network, Inc.  They demanded that the Department of Environment and Natural Resources (“DENR”) discontinue existing and further timber license agreements (“TLA”) in view of deforestation, on the basis of a fundamental right to a balanced and healthful ecology which was embodied in the Constitution and various legislations.  Their action was however dismissed at lower court on the basis that (i) there was a lack of a legally recognised wrong giving raise to the claim, (ii) the issue raised was a political question and (iii) on the ground of the non-impairment of contracts clause in the Constitution. The applicants appealed to the Supreme Court, which had to rule on whether there was a legally recognised wrong that could give raise to a claim to "prevent [and stop] the misappropriation or deterioration" (p. 2) of the Philippine rainforests.

Reasoning

The Supreme Court first considered the procedural issue in respect of standing, which it concluded that not only were the child applicants entitled to represent themselves and others of their generation, they were also entitled to sue on behalf of the future generations based on the concept of intergenerational responsibility.  By asserting their right to a healthy environment, the applicants were also, at the same time, performing their obligation to protect the right to full enjoyment of a balanced and healthful ecology for the future generations.

The Court recognised that the right to a balanced and healthful ecology was so fundamental that it was “assumed to exist from the inception of humankind” (p. 9).  Such right was provided for in the Constitution and various legislations, hence imposing upon the state a correlative obligation to preserve the right to a balanced and healthful ecology. DENR’s duty to protect and advance the right to a balanced and healthful ecology was also clearly stated under its mandate and by virtue of its statutory powers and functions. Hence, DENR’s refusal to refrain from harming the environment by continuing to grant and/or renew the TLAs would therefore constitute a legally recognised wrong that could give raise to a claim, as it was an act or omission in violation of the plaintiffs’ legal rights.  The Court further concluded that the issue in question was not one concerning policy formulation or determination by the state, rather, it involved the enforcement of a certain right in the face of formulated policies and written legislation.  Lastly, the court considered that all TLAs could be revoked or rescinded by executive action, given that the TLAs were simply instruments for the state to regulate the utilization and disposition of forest resources, instead of contracts or properties being protected by the Constitution.

Remedy

The court found in favour of the applicants and set aside the lower court’s dismissal order. The Court ruled that the applicants might amend their complaint to include as respondents the holders or grantees of the challenged timber license contracts.

Role of children

Forty-five children based in the Philippines were the applicants in this case and asserted their rights to a balanced and healthful ecology.  The children applicants also represented the succeeding generations based on an intergenerational responsibility.

Enforcement and other outcomes

In practice, the case did not result in the cancellation of the existing TLAs. Indeed, since the early 1990s the issuance of TLAs had been discontinued. However, it had an immediate effect contributing to forest protection in the Philippines: a logging ban from 1991 was imposed in old-grown forests and the number of TLAs holders was reduced. Legal remedies to stop threats or degradation to the environment are now available and documented in the Rules of Procedure for Environmental Cases (2010).

Significance of the case from a CRSL perspective

This case declared that the constitutional right to a balanced and healthful ecology is justiciable. More importantly, this case expressly confirms the standing of future generations to sue, where future generations would be able to assert their rights through the present generations.  As a result, this case paved the way for other strategic litigation cases on the basis of intergenerational equity and justice, and has since opened up opportunities for future child rights litigation particularly in the area of climate litigation (e.g Metropolitan Manila Development Authority v. Concerned Residents of Manila Bay) as well as being cited in by litigators in other countries seeking to assert the environmental rights of children and future generations.

Country

Republic of the Philippines

Forum and date of decision

Supreme Court

July 30, 1993

CRC provisions and other international law provisions/sources

Not applicable

Domestic law provisions

Related information

For the applicants: No information available.

For the Respondent:

Case documents

Minors Oposa v. Secretary of the Department of Environment and Natural Resources 33 I.L.M. 173 (1994)

Secondary documents

Child Rights International Network, ‘Submission for the report of the Special Rapporteur on human rights and the environment on healthy ecosystems and human rights: sustaining the foundations of life’ (May 2020)

Rachel Johnston, "Lacking Rights and Justice in a Burning World: The Case for Granting Standing to Future Generations in Climate Change Litigation”, Tilburg Law Review 21 (2016) 31-51

Zena Hadjiargyrou, ‘A Conceptual and Practical Evaluation of Intergenerational Equity in International Environmental Law’, International Community Law Review 18 (2016) 248-277 

Lydia Slobodian, ‘Defending the Future: Intergenerational Equity in Climate Litigation’, The Georgetown Environmental Law Review, Vol 32:569, 569-589

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