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

Constitutional Court of Colombia, Sentencia T-025 de 2004 - Colombia

Background

This case involved 108 files that had been joined by the Court. These concerned 108 tutela actions submitted by 1150 family units, all belonging to the displaced population, and composed mainly of women heads of household, elderly persons and children, as well as some indigenous persons. A number of these tutela actions were filed by civil society organisations on behalf of displaced persons. The complainants claimed that authorities were not fulfilling their mandate to protect the displaced population in terms of fundamental rights enshrined in the Constitution and were failing to respond effectively to the complainants’ requests for housing, health care, education, humanitarian aid and access to state aid for their integration into the labour market and the implementation of economically profitable projects. The majority of these tutela actions had been rejected by the judges at the lower courts.

Reasoning

The Court stated that due to the conditions of extreme vulnerability in which the displaced population finds itself, as well as the repeated omission to provide them with timely and effective protection on the part of the various authorities responsible for their care, the rights of both the actors in the case and the displaced population in general were violated. Specifically, it referred to the right to a dignified life and to personal integrity (Arts. 1 and 12 of the Constitution and UN Guiding Principles 1, 5, 6, 8, 10, 11, 12, 13 and 15), to equality (Art. 13 of the Constitution and UN Guiding Principles 1 to 4, 6, 9 and 22), to petition, to work and to social security (Art. 6 of the Constitution , Law 387 of 1997 and UN Guiding Principles 1, 3, 4, 11 and 18), to health (Arts. 49 and 50 of the Constitution and UN Guiding Principles 1, 2 and 19), to education (Art. 67(3) of the Constitution and UN Guiding Principle 23), to the minimum conditions for life (UN Guiding Principles 18, 24 and 27) and to the due special protection (Arts. 42 and 44 of the Constitution and UN Guiding Principles 2, 4, 9 and 17) for the elderly, women heads of household and children.

The Court defined the minimum levels of protection that must be guaranteed in a timely and effective manner to the displaced population in the face of insufficient resources or deficiencies in institutional capacity. According to the Court, this determination of minimum standards implies that “(i) in no case may the essential core of the fundamental constitutional rights of displaced persons be threatened and (ii) the State has to satisfy the minimum level of the rights to life, to dignity, to physical, psychological and moral integrity, to family unity, to the provision of urgent and basic health services, to protection against discriminatory practices based on the condition of being displaced, and to the right to education up to the age of fifteen in the case of children in a situation of displacement.” (p. 32).

The existence of an unconstitutional state of affairs with regard to the situation of the displaced population was declared by the Court on the basis of the lack of concordance between (a) the seriousness of the impact on constitutionally recognised rights developed by law, and (b) the volume of resources allocated to ensure the effective enjoyment of such rights and the institutional capacity to implement them. The Court also relied on the high number of tutela actions filled by displaced persons, which confirmed the impact these violations had had on a large part of this population group, and the structural nature of the issue, since the violations were attributable to various state bodies.

Remedy

The Court ordered a series of actions related to the unconstitutional state of affairs aimed at guaranteeing the rights of the entire displaced population, regardless of whether they had sought protection of their rights through tutela actions. The aim with the order was to force the government to reassess and restructure the actions or omissions that led to the violation of the Constitution and legislation in the shortest possible time, providing sufficient opportunities for the participation of displaced people’s representatives, to ensure that displaced people, including children, could effectively enjoy their rights. The Court also ordered a series of actions aimed at responding to the specific requests of the complainants in the tutela action in line with the Court’s previous jurisprudence on the rights of displaced population. These actions included: (i) addressing requests to access financial support programmes (including temporary jobs, business projects, training and food security) and housing, (ii) determining whether requests for registration in the Unified Registry of Displaced Populations meet the objective conditions of displacement and, if so, giving them immediate access to the assistance envisaged for their protection, (iii) effectively granting the requested humanitarian aid to those who applied for it, (iv) guaranteeing the complainants’ effective access to the health system, ensuring that they are provided with the required medicines, (v) ensuring effective access to the education system for children until the age of fifteen and (vi) registering information regarding displaced people’s land properties in order to effectively protect them.

Role of children

Children were petitioners in the tutela actions. They were represented by adults, mostly legal representatives of the civil organisations involved.

Enforcement and other outcomes

The decision forced the government to reassess and restructure the actions and omissions that led to the violation of the Constitution and the legislation in the shortest possible time to ensure that displaced people, including children, could effectively enjoy their rights. The court ordered a series of concrete actions to be carried out by the authorities to this end. This decision is followed by two orders (Autos 251-05 and 756-08), which focus specifically on assessing and monitoring the rights of displaced children. In these Autos, the Constitutional Court described progress in this regard as “low”.

Significance of the case from a CRSL perspective

Although the litigation was not brought solely to protect the rights of displaced children, its aim was to stop the massive violation of fundamental rights of displaced people, which affects displaced children as well. The decision forces the government to reassess and restructure the actions or omissions that led to the violation to ensure the effective enjoyment of the rights of this vulnerable group. This implies the obligation to adopt clear policies in favour of displaced people, including children. The state of unconstitutional affairs enables the Constitutional Court to make the effects of the decision applicable to all and to directly monitor compliance with the ruling (see Autos 251-08 and 756-18).

Country

Colombia

Forum and date of decision

Constitutional Court, Third Review Chamber, Republic of Colombia/Corte Constitucional, Sala Tercera de Revisión, República de Colombia

22 January 2004

CRC provisions and other international law provisions/sources

Domestic law provisions

Related information

For the applicants:

  • Municipal ombudsman of Neiva - Jorge Osorio Peña

    Personería de Neiva

    Calle 8 no. 12-22 Neiva-Huila

  • Fundación Ayudémonos FUNDAYUDE - Javier Augusto Silva Madero, legal representative

  • Asociación Humanitaria de Colombia (ahudeco@hotmail.com) - Jorge E Peralta de Brigard, legal representative

  • Asociación de Desplazados del Caribe Colombiano - Juvenal Navarro Arroyo, legal representative

  • Asociación por un mejor vivir feliz - Deyanira Herrera, legal representative

  • Asociación Nueva Vida (alonsovifi@hotmail.com) - Eduardo Orozco, legal representative

  • Asociación Nuevo Horizonte - Pedro Pacheco, legal representative

    Calle 1B # 55 – 74 Cali-Colombia

  • Asociación Desplazados Unidos - Ismael Maestre, legal representative

  • Asociación Asodespente - Juan Montes, legal representative

  • Asociación Justicia y Paz (cauca@justiciaypazcolombia.com) - Jony Meriño, legal representative

  • Asociación Renacer (asorenacer@yahoo.es) - Luis Carlos Fernández, legal representative

  • Asociación de Familias Desplazadas (ASOFADECOL) (luzmarinac59@yahoo.es) - Henry Rivera Acosta, legal representative

  • Asociación de Personas Desplazadas de Fonseca, ADESFONGUA - Eustacio Fonseca Barraza, legal representative.

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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