Climate Justice, Judicial Review

CliMates’ Judicial review – Case n°2: Colombia Supreme Court

Nature as a subject of rights

This article is part CliMates’ Judicial Review.

On April, 5th 2018, the Supreme Court of Colombia rendered a landmark case in the field of climate litigation by attributing legal personality to the Amazon region and ordering the Colombian government to protect the region from rising deforestation rates.[1]

The Supreme Court of Colombia addressed a claim raised by 25 children and young adults from 7 to 25 living in the Amazon region.[2] They argued that their rights to life, to health and to a healthy environment were threatened by the rising deforestation rates in the Amazon and their impacts on climate change.[3] They claimed that the Colombian State was not taking sufficient actions to limit deforestation.[4]

The Court ruled in favour of the applicants. It vigorously affirmed the causal link between human activity, climate change and its adverse effects.[5] It referred to numerous instruments of hard and soft law, including the International Covenant on Economic, Social and Cultural Rights, the Additional Protocol I to the Geneva Conventions, the Paris Agreement, and the Treaty for Amazonian Cooperation.[6] It also recalled Colombian Constitution provides for a “national ecological order”.[7] More specifically, it concluded that the Colombian State had breached the commitment it made under the Paris Agreement and its Ley 1753 of 2015 to reduce the net rate of deforestation in the Amazon region to zero by 2020. Indeed, despite Colombia’s international and national promises, deforestation has increased by 44% in this area between 2015 and 2016.[8]

The Court declared that the State of Colombia, but also the National Parks and the relevant districts and cities, had not tackled efficiently the issue of deforestation in the Amazon region.[9] It declared the Amazon region as a whole, not just the river, as a “subject of rights”, thereby granting it legal personality. It then ordered Colombia and the relevant authorities to set up a plan of action as well as an intergenerational pact for the life of the Colombian Amazon.[10]

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This case accentuates the rise of climate litigation in recent years.

It also emphasises an increasing “nature rights” movement. In November 2016 already, the Colombian Constitutional Court had recognised the Atrato river as a legal subject with specific rights regarding its protection, conservation, maintenance and rehabilitation.[11] India[12] and New Zealand[13] have also granted legal personality to some of their sacred rivers. As a consequence, the rivers have a legal standing before the tribunals and any act of pollution or harm to their ecosystem could lead to reparation.

This case also exemplifies the development of a more ecocentric approach to human rights that puts an emphasis on the relation between communities and their environment.

Lastly, this case shows that everybody, including children, can take action to have environmental rights recognised. The application was brought before the Colombian courts by a group of children and young persons, as the Colombian Constitution authorises a tutela action, according to which any person may request the immediate protection of their fundamental rights.[14] Similarly in the United States, a group of children have introduced an action against the federal government, supported by the association Our Children’s Trust.[15] They assert that the government affirmative actions have led to climate change and hence have violated their generation’s rights to life, liberty and property. The case is still pending but federal judges have already rejected the government’s motions to dismiss and writ of mandamus.[16]

 

About the author: Charlotte Blondel holds a master degree in International Law within the Global Alliance Program between Sciences Po Paris, Columbia University and Paris I Panthéon-Sorbonne. Before that, she studied Political Sciences and History at Sciences Po Paris and Paris IV Paris-Sorbonne. She is now a trainee-lawyer at the Paris Bar, focusing on public international law. She has been an active member of CliMates since 2015. In January 2016, she co-founded Youth on the Move, a research project on climate migration. She speaks French, English and Spanish and is currently learning Arabic!

 

Footnotes
[1] Corte Suprema de Justicia, STC4360-2018, 5 April 2018 (the “Judgment”).
[2] Judgment, para. 2.1.
[3] Judgment, para 2.5.
[4] Judgment, para. 3.
[5] Judgment, para. 4.
[6] Judgment, para. 6.
[7] Judgment, para. 7.
[8] Judgment, para. 11.
[9] Judgment, para. 12.
[10] Judgment, para 14.
[11] Corte Constitutional, Sentencia T-622/16, 10 November 2016, available at: http://www.corteconstitucional.gov.co/relatoria/2016/t-622-16.htm
[12] “Ganges and Yamuna rivers granted same legal rights as human beings”, The Guardian, 21 March 2017, available at:
https://www.theguardian.com/world/2017/mar/21/ganges-and-yamuna-rivers-granted-same-legal-rights-as-human-beings
[13] “Innovative bill protects Whanganui river with legal personhood”, New Zealand Parliament, 28 March 2017, available at: https://www.parliament.nz/en/get-involved/features/innovative-bill-protects-whanganui-river-with-legal-personhood/
[14] See Colombia Constitution, article 86 ; Judgment, para. 3.
[15] Juliana v. US, 6:15-cv-01517-TC (2015)
[16] The government’s motion to dismiss was on 10 November 2016. On March 7, 2018 the Ninth Circuit Court of Appeals rejected the Trump administration’s petition for writ of mandamus. See Juliana v. US, 6:15-cv-01517-TC (Opinion and Order, 10 November 2016), Juliana v. US, 6:15-cv-01517-TC (9th Circuit, 7 March 2018). The hearing has been scheduled for 29 October 2018.

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