Domestic, Argentina Gisela Sin Gomiz Domestic, Argentina Gisela Sin Gomiz

Civil Association for Equality and Justice (ACIJ) against Government of the City of Buenos Aires (Ministry of Education) and others, EXP 8849/2019-0 CUIJ - Argentina

Background

The case concerns a collective complaint brought by the civil association Asociación Civil por la Igualdad y la Justicia (ACIJ) on behalf of children who had been denied enrolment in private schools for presenting some form of disability. The applicants sought a declaration of the illegality and unconstitutionality of the failure of the Government of the City of Buenos Aires to control, evaluate, audit, and sanction this practice for being in violation of the rights to education, equality and non-discrimination. Prior to this decision, the Court had already ordered precautionary measures to be taken by the local government at the request of the applicant.

Reasoning

The Court declared unconstitutional the failure of the Government of the City of Buenos Aires to control, evaluate, control and sanction the discriminatory practice of private schools in denying the enrolment of children with disabilities, taking into consideration the state’s performance. Firstly, the Court ruled that the local government had failed to comply with the constitutional, legal and regulatory obligation to control the activity of private schools, according to domestic law (CCABA, Article 25; National Education Law, Articles 13 and 121; and Law No. 2.681, Article 1 and Decree No. 107/11, Article 2). Secondly, the Court found that the lack of accessible, specific and effective channels to adequately control the activity of private schools was contrary to national law, which sets out the obligation to provide the necessary mechanisms to facilitate and speed up the receipt of claims and complaints (National Education Law, Article 8). Moreover, the Court criticised a number of procedural omissions by the City of Buenos Aires Government (e.g., absence of notifications, lack of resolution of the issues, etc.) that breached the duty to guarantee the right to due process of those affected by the government’s decisions (Decree No. 107/11, Article 9). Thirdly, the Court noted the limited activity of the City Government in terms of sanctions, the excessive delay in the resolution of appeals filed by private schools against sanctions and the lack of publication of sanctions on the website of the Ministry of Education (Law No. 2.681, Article 10). Fourthly, the Court noted a lack of dissemination of information on the right to inclusive education by the City Government – a right that is expressly recognized by national and international law. The Court also criticised the failure by the City Government to create the Observatory of Public Policies for full educational inclusion provided for in the law (No. 3.331, Article 5). Lastly, the Court highlighted the multiple failures of the City Government to comply with the precautionary measures previously imposed.

The court held that the City Government should implement positive action measures to effectively counteract the structural inequality experienced by children with disabilities. The City Government should do so in compliance with the constitutional and international law provisions projected in the body of law, in particular the CRC (Articles 3, 23, 29), the CRPD (Article 24) and the General Comment No. 4 on the right to inclusive education.

Remedy

Due to the structural nature of the problem, the court avoided imposing a concrete and immutable order. Instead, the defendant (Ministry of Education of the Government of the City of Buenos Aires) was ordered to formulate a proposal involving a diversity of social actors to provide a solution to the case and fulfil its obligations. The minimum content of the proposal was delimited by the court so that its compatibility and adequacy could be analysed by the judiciary.  

Role of children

There were no children directly involved in the case. The children's parents submitted their complaints to Asociación Civil por la Igualdad y la Justicia (ACIJ) and ACIJ filed the collective complaint.

Enforcement and other outcomes

The Government of the City of Buenos Aires was granted a period of 30 days to formulate a proposal to provide a solution to the case and fulfil its obligations. The ruling was appealed by the Government. However, the Ministry of Education has offered to reach an agreement and negotiations with ACIJ are still ongoing.

Significance of the case from a CRSL perspective

In terms of standing, this case is a significant example of an organisation deciding to bring a collective action (acción de amparo colectivo), i.e., a rapid judicial procedure allowing organisations defending collective rights or interests to claim a human rights violation when collective interests or rights are affected (Article 14, Constitution of Buenos Aires), rather than in the name of specific children.

This case is also significant because public schools in Buenos Aires can no longer exclude students with disabilities and the City Government was obliged to make a new inclusive educational public policy. The court’s judgment prompted a change in the current educational system of the city and opened future opportunities for children with disabilities to have the same rights and opportunities as other children without disabilities.

Country

Argentina

Forum and date of decision

First Instance Administrative and Tax Court Nº 6, Judicial Authority of the City of Buenos Aires.

June 26, 2022

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

For the Respondent:

Amicus 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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