Should international courts be more deferent when taking into consideration international human rights when applying environmental protection laws to climate change cases?

Case commentary – The Colombian youths vs the Colombian Government (STC4360-2018) 

General comment: I don't study law and I have never studied law so I had to self teach myself law over the course of two months to do an independent summer research programme. The paper was graded at the end and it received a B.  Referencing is inconsistent and incorrect, ideas have not been formed properly or written in the correct layout but the topic was very interesting and climate change is an immediate issue that many people are beginning to realise is becoming more and more of an issue. 

Introduction:

Environmental protection laws have mainly been formed due to manmade actions that have long lasting and damaging impacts on the ecosystems. In the last forty years, environmental protection laws have evolved rapidly because environmental risks have become more apparent with examples including the Exxon- Valdez oil spill in the 80’s and Deepwater Horizon in 2010. The Exxon- Valdez oil spill happened in the Alaskan body of water known as the Prince William Sound which had one of the most vibrant marine ecosystems, resulting in one of the most damaging oil spills that affected both sea life and marine birds such as seagulls. Deepwater Horizon was an oil spill affiliated with BP in the Gulf of Mexico and was one of the largest oil spills in US history. These oil spill accidents led to a sudden awareness on the urgency of drafting and incorporating environmental protection laws due to the scale and global nature of the accident. In response to the Exxon-Valdez case the Federal Oil Pollution act[1] (OPA) was signed into law in 1990 to help the United States Environmental Protection Agency (EPA) to help prevent and respond to catastrophic oil spills. There was a lack of specific laws that had been in place to deal with these environmental accidents which are being created and adapted to deal with the increasing level of climate change cases. 

Climate change relies on scientific understanding of the changes that Earth is undergoing due to the increase of greenhouse gases in the atmosphere which alters the fragile ecosystems. The increase of greenhouse gases damages the Ozone layer and increases the global temperature, causing issues such as global warming. This influences the ecosystems by altering their amount of precipitation, vegetation and wildlife as their habitats change among other factors.[2] The beginnings of environmental law on an international scale was first seen in 1972 at the United Nations Stockholm conference on the Human Environment when many different countries from across the world came together to talk about the environmental issues and developments. As Weiss suggests, environmental law has become more integrated with issues of Human Rights, economic developments, trade and national security.[3] These environmental and climate change laws are needed to safeguard the rights of the unborn child (the future generations and the ‘other’ who all deserve to enjoy the same environmental conditions as those in the present), and are therefore primordial component of what one called Human Rights, a concept that is explored in a recent Colombian case[4] against deforestation in the Amazon Rainforest. In this way, climate change law in relation to environmental law can be linked to International Human Rights because the changes in the environment effect the basic principles of those Human Rights.

In Colombia, there is a high level of deforestation in the Amazon Rainforest which contributes to an increase of climate change due to the levels of carbon dioxide released into the atmosphere, creating the context for the case. In the Colombian Amazon 219,973 hectares of forests were lost at the peak of deforestation in a seven-year period from 2010 to 2017[5] despite the numerous pacts signed to reduce the rates and that are transgressing the regulations pertaining to the national Environmental Charter, and the international instruments that integrate the global ecological public order, constitutes a serious ignorance of the obligations acquired by the State in the Framework Convention on Change Paris Climate 2015.[6] It raises the issues as to why the government was unable to fulfil these environmental goals which shall be explored in the essay below.

In the 1991 Colombian Constitution there are 34 laws related to the protection of the environment. This political charter has been catalogued as the ‘Ecological Charter’[7] as well as the “Human Rights Constitution”[8] because it recognizes social and economic rights as well as environmental rights. The most notable article in relation to the Colombia case and to the question is Article 79 whereby every individual has the right to enjoy a healthy environment.[9] The Constitution is a democratic system that strengthens the rule of law in order to defuse political violence, and to secure human rights by establishing mechanisms for the protection of these rights, indicating that there is a close relation between environmental rights and Human rights.[10]

Facts of the Case:

The case was first brought to the Tribunal Superior del Distrito Judicial de Bogotá in the form of an accion de tutela by 25 youths and children from different cities who asserted the increased deforestation in the Amazon threatens their Human Rights such as the right to a healthy life[11] and by extension the right to a dignified life, the right to live in a healthy environment[12] and the right to health.[13] The Plaintiffs sought action by the Supreme Court of Justice in Colombia to compel federal, state and local authorities to protect these fundamental human rights in relation to environmental protection. They allege those rights are threatened by dangerous climate change caused by the high level of deforestation, and they further allege that climate change is caused and exacerbated in part by CO2 emissions deriving from permitted and illicit deforestation activities across Colombia, including in the Colombia Amazon.[14]

The 1991 Constitution created three mechanisms to protect equal representation and Human Rights, one of which being the aforementioned accion de tutela. It allows a party to bring an action to suspend any action or omission of a governmental or private entity that threatens a fundamental right.[15] The lower court’s decision had determined that the acción de tutela was not an appropriate legal action for collective rights claims, but the Supreme Court decided that the acción de tutela may be appropriate when the violation of collective rights results in the violation of individual rights.[16] Based on these actions one could argue that the lower courts are less receptive to environmental impacts affecting Human Rights and it is only at the higher courts that they have acknowledged that the environment does have an impact on ones Human Rights. This suggests that it is a recently new development in Colombia to acknowledge that environmental degradation does have a human consequence.

In brief, the issues mentioned in the accion de tutela[17] detail how deforestation has violated their right to a healthy environment as well as other fundamental human rights. These violations can be broken down into four separate categories: water, food, health and life (in terms of lifestyle). Life plans are likely to change due to changes in the temperature and amount of rainfall. In terms of health, an increase in rainfall would lead to flooding and an increase in swamp related diseases. In turn, drought would also negatively affect the individual’s health and their right to a health. The change in rainfall due to climate change would also affect the availability of food due to possible shortages from crop failure. Less rainfall means there would be less water available, leading to a shortage of drinking water. It is also a threat to the ecosystem because over 50% of rainfall is recycled within it, suggesting that human rights and environmental protection are linked together for survival as well as highlighting the growing threat of climate change.

Legal history:

The Advisory Opinion from the Inter-American Court of Human Rights (IACHR) requested by the Republic of Colombia in relation to the environment in the context of protecting and guaranteeing the right to life recognized in Article 4 of the American Convention stated that Human Rights and environmental protection are both ‘fundamental rights[18]’ that are closely linked together. Environmental degradation may cause irreparable damage to human beings and therefore, a healthy environment is a fundamental right for the existence of humankind who would not be able to survive without such an environment.

international law (both hard and soft) serve as guiding criteria for national law to resolve citizen complaints about the destruction of our habitat, in pursuit of the protection of the fundamental rights of persons, of present and future generations. Despite the Colombia case being a domestic one can compare similar judgements in regards to human rights and the environment in other countries domestic courts to support the judgment made in the Colombia case. In the Yanomami case, the Commission recognized that harm to people resulting from environmental degradation violated the right to health in Article XI of the American Declaration (right to preservation of health).[19] In the Urgenda vs the Netherlands  case the court ruled that the government had to reduce their greenhouse gas emissions to 25% by the end of 2020, relative to the year 1990 because it was contributing to the rise in climate change.[20]

Judgement Analysis:

The Colombian Supreme Court held in the judgment of the case that deforestation in the Amazon “[caused] imminent and serious damages”[21] not just to the environment but also to the welfare of the Colombians of the present and of the future. Future generations deserve to enjoy the same environmental conditions that are present today, thereby extending the fundamental rights not just to the individual but also to the ‘other’.[22] The human right to a healthy environment has both individual and collective connotations. In the individual dimension, its relationship to other rights, such as the right to health, life or personal integrity, its violation may have direct or indirect repercussions on the individual.

There are five major obligations within the main body of the judgement that aim to reduce the rates of deforestation including the creation of a short, medium- and long-term action plan to reduce deforestation in the Amazon, the creation of an Intergenerational pact for the life of the Colombian rainforest, the obligation to update and maintain local land management plans and to create an action plan to stop the rate of deforestation. These can be analyzed in relation to their merits and their failures. There is a lack of political will on behalf of the government to comply and enforce these obligations. On the other hand, there is a lack of specificity on behalf of the judgement that allows the government to not comply with these obligations. Furthermore, there is no ramification for the government for the failure to comply with these obligations.

In regards to the first mandate, the Ministry of the Environment was essentially to create an action plan to reduce deforestation and address the effects of climate change in the Colombian Amazon. The present action plan must be validated to specify its alignment with the [new] government’s priorities and the budgetary limitations for medium-term activities.”[23] Furthermore, as this statement demonstrates, any changes would be made unilaterally: a direct violation of the court’s order to make the process inclusive and participative, immediately highlighting the lack of political will in relation to complying with the obligations. The government was already in breach of the reduction in deforestation targets in other environmental pacts signed as mentioned previously. According to Isabel Cavelier, in statements made by Semana Sostenible, the strategies of the Pact for Sustainability (PND) are not precise and lack ambition to fulfill the pacts accepted by the nation. Despite the Courts efforts to curb the rate of deforestation, Colombia has continued at an alarming rate, raising the issue as to how they would be able to stop at the time of the 2020 deadline and whether they intend on complying.

Another flaw within the obligation to create such an action plan is the failure to consider the economic impacts of these decisions upon those who depend on the Amazon for their livelihood and survival. The recent Farc demobilization due to the peace treaty between them and the Colombian government has led to an increase in deforestation in the areas that they have returned home. There is a shortage of income and therefore many turns to illegal activities in the forest such as illegal logging, mining or farming which is detrimental to the Amazon. The government is unable to intervene to prevent them without provoking a violent reaction, especially since they continue to be armed and dangerous.

There has been a lack of progress in regards to the second obligation to create the intergenerational pact. This obligation can be linked with the governments desire to protect the future generation from further environmental harm. The age range from the plaintiffs was between 7-26 years old suggesting that they would already be placed under a great environmental burden than the average Colombian who has a median age of 30.[24] This failure to act and create such a pact is a blatant disregard of the urgency that the serious problem of deforestation in the Amazon and its climate change impacts demand. The government has asked for an extension and has not acted on working towards it, another demonstration of their lack of political will and motivation. In September 2018, the Ministry proposed seven phases for the construction of the Intergenerational Pact, but did not establish dates, assign persons or agencies in charge, or create a budget for the fulfilment of each phase. The judgment itself was not clear as to what the intergenerational pact should entail specifically, demonstrating that there was also an issue with the specifics of the judgement.

The fourth obligation was written in connection to local land management. There were only 14 municipalities were defendants in the case, the Court’s order applies to all 81 municipalities that compose the Colombian Amazon, according to the Sinchi Institute. Of the 14 defendants, only seven submitted information about their compliance with the Court’s order. Seven other municipalities also submitted responses to indicate actions they had taken to reduce deforestation, which means that, of the 81 municipalities under mandate, only 14 have provided some information on their progress. Of these 14, not a single municipality has updated its local land management plan or provided an action plan with measurable strategies for curbing deforestation, as ordered by the Court.  The fourth mandate was directed to Corpoamazonia, Cormacarena, and the Corporation for the Sustainable Development of the northern and western Amazon (CDA). These are local environmental authorities with jurisdiction over the Amazon but while these three authorities have said that they are complying with the Court’s mandate, they have not yet provided the court any roadmap for the formulation of the action plan.[25] There is a lack of government will across the different divisions to comply with the obligations of the court which suggests that they continue to disregard the threat of climate change and do not view the continued environmental degradation as detrimental to the individual’s human rights.

Conclusion:

This landmark case is a positive step forward in acknowledging the growing environmental issues caused by climate change and their effect on International Human Rights because people cannot continue to have the same quality of life without the same access to natural resources as before. At times what is best for the environment is not necessarily the best for the people and it can be difficult to find the balance between the two, with reference to the issue of the recent Farc demobilization. However, despite the positive ruling of the judgement, the case has been brought back once more to the Supreme Court of Justice by 18 of the original plaintiffs for failure to conform to the obligations of the judgement. While the government is acknowledging there is a problem, they have not yet been able to react to it appropriately because there is a lack of political will within the government to enforce these changes.

Bibliography:

Legislation:

Inter-American Court of Human Rights, Advisory Opinions OC-23/17, p. 2 from: http://www.corteidh.or.cr/docs/opiniones/resumen_seriea_23_eng.pdf (accessed: 09/08/2019)

Oil pollution Act 1990, from: https://legcounsel.house.gov/Comps/Oil%20Pollution%20Act%20Of%201990.pdf (accessed: 02/08/2019)

Right to a healthy environment, Article 79, 1991 Colombian Constitution with amendments through to 2005p. 20 from: https://www.constituteproject.org/constitution/Colombia_2005.pdf (accessed: 25/07/2019)

Right to a healthy life, Article 3, Universal Declaration of Human Rights (2015) from: https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf (accessed: 20/07/2019)

Right to health, article 25, Universal Declaration of Human Rights from: https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf (accessed: 12/08/2019)

Website:

‘Colombia: Environment and Climate Change law 2019’, ICLG.com, from: https://iclg.com/practice-areas/environment-and-climate-change-laws-and-regulations/colombia (accessed: 08/08/2019) 

‘Constitutional history of Colombia’, ConstitutionNet, from http://constitutionnet.org/country/constitutional-history-colombia (accessed: 02/08/2019)

‘In historic ruling, Colombian Court protects youth suing the national government for failing to curb deforestation’ Dejusticia, from: https://www.dejusticia.org/en/en-fallo-historico-corte-suprema-concede-tutela-de-cambio-climatico-y-generaciones-futuras/ (accessed: 20/07/2019) 

‘STC4360-2018 de la Corte Suprema de Justicia, Sala de Casacion Civil, M.P. Luis Armando Tolosa Villabona (2018)’ Environmental Law Alliance World-Wide from: https://www.elaw.org/CO_Amazon (accessed: 09/08/2019)

‘The Colombian government has failed to fulfill the Supreme Court’s landmark order to protect the Amazon’, Dejusticia, from:https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/ accessed: (25/07/2019)

 ‘Tutela Cambio Climatico’ Dejusticia from:  https://www.dejusticia.org/wp-content/uploads/2018/01/TutelaCambioClim%C3%A1tico.pdf?x54537&x54537&x54537&x54537 (accessed: 09/08/2019)

‘Urgenda Foundation v. The State of the Netherlands’ Environmental Law Alliance World-Wide from: https://elaw.org/nl.urgenda.15 (accessed: 09/08/2019)

 

Journal Articles:

Weiss, Brown Edith, The evolution of international Environmental Law (Georgetown: Georgetown University Law Centre, 2011) from: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2684&context=facpub, (accessed: 02/08/2019)

Books:

Ed. Faure, Michael G., Nolkaemper, Andre, Analysis of issues to be addressed: Climate Change cases (Amsterdam: Friends of the Earth Netherlands, 2007)

Mayer, Benoit, The International law on climate change (Cambridge: Cambridge University Press, 2018)

Case:

Colombian government vs the Colombian youths (2018), STC4360-2018

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[1] Oil pollution Act 1990, from: https://legcounsel.house.gov/Comps/Oil%20Pollution%20Act%20Of%201990.pdf (accessed: 02/08/2019)

[2] Benoit Mayer, ‘The International law on climate change’ (Cambridge: Cambridge University Press, 2018) p.35

[3] Edith Brown Weiss, ‘The evolution of international Environmental Law’ (Georgetown: Georgetown University Law Centre, 2011), p. 1 from: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=2684&context=facpub, (accessed: 02/08/2019)

[4] Colombian government vs the Colombian youths (2018), STC4360-2018

[5] ‘The Colombian government has failed to fulfill the Supreme Court’s landmark order to protect the Amazon’, Dejusticia, from:https://www.dejusticia.org/en/the-colombian-government-has-failed-to-fulfill-the-supreme-courts-landmark-order-to-protect-the-amazon/ accessed: (25/07/2019)

[6]  Colombian government vs Colombian youth

[7]‘Colombia: Environment and Climate Change law 2019’, ICLG.com, from: https://iclg.com/practice-areas/environment-and-climate-change-laws-and-regulations/colombia (accessed: 08/08/2019)  

[8] Constitutional history of Colombia, ConstitutionNet, from http://constitutionnet.org/country/constitutional-history-colombia (accessed: 02/08/2019)

[9]Right to a healthy environment, Article 79, 1991 Colombian Constitution with amendments through to 2005p. 20 from: https://www.constituteproject.org/constitution/Colombia_2005.pdf (accessed: 25/07/2019)

[10] Constitutional History

[11] Right to a healtht life, Article 3, Universal Declaration of Human Rights (2015) from: https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf (accessed: 20/07/2019)

[12] Right to a healthy environment, 1991 Colombian Constitution

[13] Right to health, article 25, Universal Declaration of Human Rights from: https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf (accessed: 12/08/2019)

[14]Dr Hansen ‘Amicus brief’ p. 2

[15] Constitutional history, ConstitutionNet

[16] ‘STC4360-2018 de la Corte Suprema de Justicia, Sala de Casacion Civil, M.P. Luis Armando Tolosa Villabona (2018)’ Environmental Law Alliance World-Wide from: https://www.elaw.org/CO_Amazon (accessed: 09/08/2019)

[17] ‘Tutela Cambio Climatico’ Dejusticia from:  https://www.dejusticia.org/wp-content/uploads/2018/01/TutelaCambioClim%C3%A1tico.pdf?x54537&x54537&x54537&x54537 (accessed: 09/08/2019)

[18] Inter-American Court of Human Rights, Advisory Opinions OC-23/17, p. 2 from: http://www.corteidh.or.cr/docs/opiniones/resumen_seriea_23_eng.pdf (accessed: 09/08/2019)

[19] Ed. Michael G. Faure, Andre Nolkaemper, Analysis of issues to be addressed: Climate Change cases (Amsterdam: Friends of the Earth Netherlands, 2007) p. 40

[20] ‘Urgenda Foundation v. The State of the Netherlands’ Environmental Law Alliance World-Wide from: https://elaw.org/nl.urgenda.15 (accessed: 09/08/2019)

[21] Colombian government vs the Colombian youth

[22] ‘In historic ruling, Colombian Court protects youth suing the national government for failing to curb deforestation’ Dejusticia, from: https://www.dejusticia.org/en/en-fallo-historico-corte-suprema-concede-tutela-de-cambio-climatico-y-generaciones-futuras/ (accessed: 20/07/2019)

[23] Colombian government vs the Colombian youth

[24] Dr.Hansen, Amicus Curiae Brief, p.2

[25] The Colombian government vs the Colombian youth