This case involves a tutela action brought to protect the right to public health. An unfinished sewer system was overflowing and causing a significant public health risk to the inhabitants of two neighborhoods. The Constitutional Court used this case to delineate their role in defining and enforcing fundamental rights. The Court also laid out the criteria to interpret whether a right is fundamental and declared the right to public health fundamental.
Access to potable water is still a major problem in Colombia, despite the state having invested in sewer systems. Decree 605 of 1996 created new procedures for solid waste management including collection, storage, and disposal. Decree 3137 of 2006 created a Vice-Ministry of Water and initiated four new programs aimed at improving service, particularly in rural areas. Unfortunately, however, wastewater disposal remains a major problem. A significant percentage of wastewater remains uncollected because many households are not connected to municipal sewer systems. And even when connected, many municipalities lack wastewater treatment facilities. The WHO reported in 2006 that in rural areas, which comprise 23% of the population, only 71% had access to safe drinking water and only 54% had access to adequate sanitation.
This decision is considered very important because it proclaims the Constitutional Court’s authority to delineate new fundamental rights from the constitutional text and apply those rights to social realities through the tutela. The Court declares the right to public health to be a fundamental right. The Court also declares that the state has an obligation to give priority to social spending over any other allocation of resources and sets precedent affirming that the state has a duty to complete public works projects once started.
For their contributions, special thanks to ESCR-Net member: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.