STC 4360-2018
The Supreme Court of Colombia ruled in favor of 25 youth and children in Colombia who successfully argued that the Colombian government has failed to reduce deforestation in the Amazon despite its national and international obligations and voluntary commitments it made in climate summits. The Supreme Court found that future generations can bring suit to protect their rights to a healthy environment, life, food, access to water, and health, and that the Colombian Amazon is an entity subject of rights entitled to legal protection.
With the support of Dejusticia, 25 children and youth filed suit against the President of Colombia, the Ministry of Environment, the Ministry of Agriculture and the municipalities of the Colombian Amazon claiming that deforestation in the country’s Amazon region and the resulting greenhouse gas emissions threaten their rights to a healthy environment, life, health, food, and access to water. The plaintiffs claimed that the Colombian government is obligated to reduce deforestation through at least three commitments: 1) through the Paris Agreement, the Colombian government committed to reduce greenhouse gas emissions and, since deforestation is the paramount source of emissions in the country, reducing it is crucial to abating emissions; 2) through a Joint Statement of Colombia, Germany, Norway, and the United Kingdom, the Colombian government committed to reach zero net deforestation in the Amazon by 2020; and 3) through Colombia’s domestic law 1753 of 2015, the government is obligated to reduce the annual rate of deforestation in the country. The plaintiffs argued that Colombia’s failure to take efficient measures to achieve the goal of zero net deforestation has affected and will affect their individual and collective rights.
The Supreme Court found that “the fundamental right to life, health, basic necessities, liberty and human dignity are significantly linked and determined by the environment and ecosystem.” As such, the environment is inherently connected to fundamental rights and children and future generations may use a tutela (a Colombian legal mechanism to protect fundamental rights) without permission of their parents or legal representatives to bring such a claim to protect their rights. Moreover, the Court found that the “Constitutional State” pursues respect for the ‘other’ as a limit to legal precepts and, in this case, the ‘other’ extends to people that inhabit the planet, including future unborn generations, as well as other animal and vegetable species.
After determining that the case could be brought, the Court asked whether a “mandatory legal relationship of the environmental rights of future generations…[exists], whose effect is translated into a limitation of the freedom of action by present generations.” The Court looked at the Colombian Constitution of 1991, and found that its concepts, along with previous jurisprudence, international law, and academic scholarship, elevated a healthy environment to the status of a fundamental right. Furthermore, the Court sought to advance the emerging field of biocultural rights, which considers nature and the environment as rights-bearing. The Supreme Court thus recognized the Colombian Amazon as a subject of rights.
On the issue of deforestation of the Amazon, the Court determined the government had not dealt effectively with the problem despite its obligations. The Court therefore ordered the relevant authorities—with the participation of plaintiffs, affected communities, and the general public—to formulate a series of action plans, including an intergenerational pact, to combat deforestation, greenhouse gas emissions, and climate change with respect to the Colombian Amazon.
The Court ordered the government to develop the abovementioned action plans within four to five months of the notification of the decision, depending on the plan.
Due to the short deadlines ordered by the Supreme Court, by July 2018, the Ministry of Environment had carried out five workshops in five different municipalities of the Colombian Amazon, where it consulted with the young plaintiffs, communities, environmental authorities, and other key actors the policies to fulfill the court orders. These orders include the development of an Intergenerational Pact for the Life of the Colombian Amazon; the creation of short-, medium-, and long-term plans to reduce deforestation to net zero; and the alignment of land management plans with deforestation targets within four or five months, depending on the plan. In addition to the workshop participants, many young people and communities joined the cause through social networks, and the plaintiffs have become spokespeople for the case and the cause in their respective hometowns, being those most interested in ensuring full compliance with the Supreme Court’s ruling. (Email from Gabriela Eslava, Dejusticia, 11 January 2019).
Although deadlines have passed, the Ministry of Environment and the Ministry of Agriculture remain accountable for full compliance with the court’s orders, in coordination with other governmental agencies. Meanwhile, other governmental agencies that were not called upon by the court, such as the Colombian Family Welfare Institute, have shown their interest to contribute to the ruling’s full implementation through their own capabilities and networks. On November 29, 2018, the Colombian President issued a directive charging particular government agencies with specific tasks to ensure the fulfillment of the Supreme Court’s decision. Some of the challenges in the enforcement of this case are: 1) the definition of the scope and binding power of the Intergenerational Pact for the Life of the Colombian Amazon, 2) the ensuring of greater involvement of communities who inhabit the Amazon in the execution of the orders, and 3) the institutional strengthening of the environmental authorities to enable the achievement of zero deforestation. (Email from Gabriela Eslava, Dejusticia, 11 January, 2019).
This is a landmark decision in Latin America on climate change and future generations, the first of its kind by a high court in the region. In addition to recognizing the rights of future generations to a healthy environment and declaring the Colombian Amazon to be a rights-bearing entity, the case also interpreted Colombia’s commitments under the Paris Accords to be domestically enforceable. The ruling seeks to reduce Amazon deforestation to net zero and thereby reduce greenhouse gas emissions, responding to statistics showing deforestation grew 44% from 2015 to 2016.
The case is significant for three primary reasons: 1) it contributes to the development of jurisprudence that climate change and its impacts threaten human rights and so should be abated to protect human rights; 2) it recognizes the rights of future generations, particularly their right to be heard in the formation of policies that affect them or will affect them in the future; and 3) it advances discussions on the rights of nature. (Email from Gabriela Eslava, Dejusticia, January 11, 2019).
First, the case contributes to the emerging trend of climate litigation where citizens have sought to hold their governments accountable for inaction or insufficient action to address the root causes of climate change in their jurisdictions despite national and international obligations as well as clear commitments these same governments made voluntarily in UN climate change conferences. The growing wave of climate lawsuits contributes to the formation of clear international legal norms obligating States to protect the stability of the climate system. The case was based on the latest advances in climate science, which can now more accurately attribute certain extreme events to climate change. The plaintiffs used official information produced by the defendant itself, the government, to clearly demonstrate that deforestation is the main source of greenhouse gas emissions in Colombia. Halting deforestation would therefore be crucial to reducing emissions and, consequently, climate change effects and their impacts on human rights. (Email from Gabriela Eslava, Dejusticia, January 11, 2019).
Second, the court declared the importance of protecting the rights of future generations—those who will suffer the worst effects of deforestation and global warming. This case gave voice to children and young people who went to courts to have their rights protected. In its decision, the Supreme Court of Justice recognized the rights and duties of current and future generations to abate deforestation and climate change. (Email from Gabriela Eslava, Dejusticia, January 11, 2019).
Third, the Supreme Court recognized the Colombian Amazon as an entity subject of rights that is entitled to protection, conservation, maintenance and restoration led by the state and the territorial agencies. This means that when there is danger to the integrity of the Amazon, citizens can go to court to demand its protection. This advances the discussion on the rights of nature and its scope, meaning, and practical consequences. (Email from Gabriela Eslava, Dejusticia, January 11, 2019).
For their contributions, special thanks to ESCR-Net members: Dejusticia, the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University and Dejusticia.
Last updated on 11 January 2019
