The New Generations Acting Against Amazon Deforestation in Colombia

Abstract

This paper reviews a unique case law sentence of the Supreme Court of Colombia, which in April 2018 legislated in relation to the deforestation of the Amazon forest alleging inter alia a breach of the principle of Intra-generational equity in regard with the protection of the environment. The issue has been on the eye of environmental activists and civil society who are struggling in favor to stop and regulate the disturbing increase of deforestation, which according to national environmental agency data reached a spike of 75% more in relation to previous years. The main focus of this paper will be to analyze the jurisprudential review regarding four main issues that took place in the related case: First, the effectiveness of the use of the Acción de Tutela as a legal instrument for the protection of the individual rights; Second, the reasoning of the Supreme Court of Justice of Colombia, which accepted a pleading from children under age without the legal representation of their parents; third, the fact that the sentence decrees the Colombian Amazon as a subject of rights; and last but not least, the connection between the principle of intra-generational equity as the basis of the sentence.

Background

In recent decades, the protection of the environment in a country as diverse as Colombia has drawn the attention of civil society and NGO´s who have come together to fight against practices that negatively affect the ecosystem. The good news is that in recent years lawyers and judges have set themselves the task of defending environmental resources with the available legal instruments, exposing the very serious conditions and the multiple threats that the delicate natural balance of the Colombian ecosystem faces.

Colombia has important legal tools to defend the fundamental rights of citizens. This is the case of the Accion de Tutela, one of the most popular and effective instruments for the protection of constitutional rights and represents one of the most invoked articles of the 1991 Constitution [Decree 2591 de 1991. Article 10]. From its appearance, it became a commonly used measure, in the landmark of the new Constitution, and, at the same time, as the mechanism that made the Political charter widely known by getting it closer to all Colombians. The Accion de Tutela was instituted as an action, not as a recourse, and can be used before any judge of the Republic when there is a violation of a fundamental right. It is a simple mechanism, without major technical considerations, to the point that can be invoked orally and without a lawyer. [Revista Semana 6/9/2011].

For these reasons and by making use of this legal instrument, in 2017 a group of 25 children, adolescents, and youngsters living in five departments of the Colombian Amazon decided to present an “Accion de Tutela” in the second instance before the Supreme Court of Justice arguing the violation of the fundamental rights of life, health, food, clean water and healthy environment based on the principle of precaution and intergenerational equity due the in the diligence of the national and local authorities by not taking the necessary measures to stop the main causes of deforestation such as the excessive expansion of illicit crops and illegal mining, failing to prevent and mitigate the growing fires, the irrational expansion of the agricultural frontier; lack of prevention of the consequences inherent to the opening of roads, the granting of titles of territorial property and mining concessions and the expansion of large-scale agro-industry and livestock farming.

Despite the existence of sufficient regulations and jurisprudence in the country on these matters and to different international commitments that Colombia has signed on environmental issues [Dejusticia. April 05/2018.], the regional and local authorities still failing on fulfilling the commitments made by the ex-President of the Republic Juan Manuel Santos who in 2015 made a committed to “reduce emissions of greenhouse gases by 20% regarding the projected emissions for the year 2030” [Conditional Mitigation Goal, contained in the Predicted and Determined Contribution INDC at the national level. Page no.5], obligations that are as well contained at the National Level as part of the Paris Agreement signed by Colombia. [Note: The Paris Agreement Law 1844 of July 14, 2017]

Another argument presented by the plaintiffs was related to the imminent irreparable damage they face based on the document “Peace and environmental protection in Colombia: proposals for sustainable rural development” which exposes the environmental risk factors associated with the post-conflict and the damages that the armed groups and illicit economies generated, among them, the increase in deforestation due to the illegal sale of tropical forest wood [Morales, Lorenzo. January 25/2017].

It is important to understand that the conservation of the Amazon becomes not only an obligation of the Colombian State but also of civil society and the international community as a whole since, among other reasons, it represents 6% of the surface of the planet with more than 8.1 million square kilometers contributing approximately 20% of the planet’s fresh water poured into the oceans (amount greater than the Missouri-Mississippi, Nile, and Yangtze rivers together), it has approximately one thousand affluent (around 220 thousand cubic meters of water discharged per second) and occupies 40% of the territory of Latin America and the Caribbean [FAO July 18/2016].

According to reports delivered by the IDEAM (Institute of Hydrology, Meteorology and Environmental Studies) in 2018, an alarming 75% increase in deforestation of the country was observed, which took place in the Amazon region with more than 43,000 hectares of humid forest. What is interesting in the report data is that 19% of these forests were located in areas under the protection of the National System of Protected Forest (SINAP); a public entity in charge of safeguarding the country’s tropical forests. The report indicates the Sierra Nevada de Santa Marta, Tinigüa, Serranía de Chiribiquete, and La Macarena as the national parks with the greatest impact. [Institute of Hydrology, Meteorology and Environmental Studies Center of Documentation and Scientific and Technical Information 2018].

The Facts

There are four important elements in this case, which are worth mentioning for their legal procedure and for the sentence handed down by the Supreme Court of Justice. The first element is related to the legal problems that the Court faced before the validity and acceptability of the Acción de Tutela as a legal instrument to present this type of lawsuit due to the definition of Article 86 of the Political Constitution of 1991 ruling the Accion de Tutela as an instrument that does not proceed for the protection of the “collective” rights and interests, because it was conceived like a mechanism of protection of the fundamental individual prerogatives. In this case, then, the valid legal instrument would be a “Popular Action” which is regulated in Article 88 of the Political Constitution / Law 472 of 1998 [Law 472 de 1998] which applies as a mechanism of protection of collective rights and can be exercised against any act or omission of public authorities or individuals. It makes sense then that the Accion Popular is the best instrument to be used in this case, however, what makes a big difference between the two of them is that the Accion de Tutela seek the “principle of immediacy” when it is presumed that the violation of the fundamental right is imminent and is causing harm.

Having this into consideration, the constitutional jurisprudence established and accepted the origin of the Accion de Tutela for this case since it was demonstrated that the object of the demand “… undermines the group interests and at the same time” infringes, consequently, individual guarantees ” [Tolosa Villabona. 05/04/2018] To prove this thesis, the court ruled that the Accion de Tutela presented must demonstrate the following points:

1. The connection between the violation of collective rights and the violation of one or other primary, fundamental and individual type, so that the transgression of the first, causes contiguously, the affectation of the second.

2. The actor must be the person directly affected in its essential prerogative, by virtue of the subjective nature of fundamental rights.

3. The breach of the fundamental right must not be hypothetical, but fully proven in the course, or be virtually threatened, because rule 86 of the Charter provides “(…) whenever they are violated or threatened by the act or omission of any public authority (…) “.

4. The judicial order should tend, first of all, to reestablish the individual prerogatives, and not the collective ones properly considered, even when these, implicitly, are protected in the decision. [Tolosa Villabona. 05/04/2018]

Consequently, and based on the facts exposed by the 25 plaintiffs, there was conclusive evidence of the deterioration of the territory and the correlation between fundamental and collective rights, and whose ownership rests with any citizen, the use of the Accion de Tutela can be used as a legitimate instrument to seek the protection of collective rights. This provision was argued in light of the following decree:

Decree 2591 of 1991. Article 10. “The Accion de Tutela may be exercised, at any time and place, by any person violated or threatened in one of its fundamental rights, who will act by itself or through a representative. The powers will be presumed authentic. It can also arrange the rights of others when the owner of the same is not able to promote their own defense. When such a situation occurs, it shall be stated in the application”. [ Decree 2591 of 1991. Article 10]

For the Court, it was accepted that when there is damage or impairment of collective rights, this affectation also implies the affectation of the fundamental rights, then the relationship of connection exists. In this way, the Court declares the Accion de Tutela appropriate since it demonstrated the existence of a violation of the right to a healthy environment and this transgression directly produces “the direct affectation of other prerogatives of a fundamental nature, among them, the life, health and access to water for the guardians and their families ” [Tolosa Villabona. 05/04/2018].

The second element to highlight from this sentence is the fact that the Accion de Tutela was presented by minors and the fact of finding a legitimization of children and adolescents under age to request the protection of the right to a healthy environment, without the intervention of their parents or legal representatives.

In this sense, the Court studied article 86 of the Political Constitution where it establishes that the Accion de Tutela represents a defense mechanism by which “anyone can claim the immediate protection of their fundamental rights.” [Colombian Constitution Article 86] Then, “adulthood” does not constitute a restrictive factor in relation to its exercise”, for this reason, children and adolescents have a legitimate right to assert their fundamental rights through this instrument without requiring the intervention of their parents or legal representatives.

In the same way, the Court studied Article 44 of the Political Constitution [Colombian Constitution Article 44] and found support regarding the definition of the fundamental rights of children as follows:

Political constitution. Article 44 “The fundamental rights of children are life, physical integrity, health, and social security, a balanced diet, their name and nationality, having a family and not being separated from them, care and love, education and culture, recreation and the free expression of their opinion. (“) They will also enjoy the other rights enshrined in the Constitution, laws, and international treaties ratified by Colombia … (“) … (“) The family, society, and the State have the obligation to assist and protect the child to guarantee its harmonious and integral de development and the full exercise of its rights … (“) The rights of children prevail over the rights of others”.

The third element in this case law and the one, in my opinion, represents an important step in the jurisdictional protection of the environment is the fact that the Court in the final sentence ratified and recognized the Amazon as a subject of rights, holder of protection, conservation, maintenance and restoration by the State and the territorial entities that comprise it [Sentence STC4360-2018. April 5 /2018] . This historic recognition has several implications. First, the fact that recognizing the Amazon has rights (protection, preservation, and restoration) implies that all citizens can demand their protection before the courts, regardless of the region they inhabit and second, it is not necessary to show that deforestation affects human rights because, in itself, it violates the rights of the Amazon as an entity that already has them. [Dejusticia April 13/2018]. Nevertheless, despite the fact that recognition represents a great step for its protection, it remains unclear if this recognition will have judicial impacts and what type of sanctions will be applied to private individuals or companies which may be attempting against its integrity. In any case, it is evident that due to the lack of efficiency of the local and regional administration to prevent and protect the Amazon region, the Supreme Court of Justice seeks to generate pressure on those responsible for its protection.

Finally, this case law is strongly connected with the principle of Intra-generational equity which is violated by the ineffectiveness of the Colombian State through its local and regional entities to apply measures that stop the deterioration of the environment due to the violation of the territorial legal and regulatory attributions, established by Article 3 of Law 1551 of 2012 [Law 1551 Article 3 July 6 /2012], which assigns municipalities “to ensure the proper management of natural resources and the environment, in accordance with the Constitution and the law” as well as the international instruments that integrate global ecological public order.

Therefore, the Court recognizes the importance to safeguard the fundamental rights of future generations by ratifying that the twenty-five plaintiffs are being seriously threatened and will face, during their adult life, the effects of climate change associated with deforestation that threaten their rights to life, health, water, and good environment. For this reason, one of the measures to be taken according to by the sentence is the creation of an “Intergenerational Pact for the Life of the Colombian Amazon ” with the objective of reducing deforestation and greenhouse gases to zero, as well as for the incorporation of environmental preservation components into the territorial ordinance as well as for taking all necessary measures to stop deforestation from the local entities in the territories affected.

Conclusion

In conclusion, the ruling of the Supreme Court of Justice sets a historical precedent in the framework of Colombian environmental law and judicial actions against climate change as this to represent a fundamental step in the direction that other courts around the world have already been giving, which have ordered governments to comply and increase their commitments against global warming. Likewise, it is important to mention how new generations are requesting agreements to be included in the decision-making process in this matter by using legal and legitimate instruments to claim the power to work for the environment that they will inherit. The 25 plaintiff children have been the inspiration for more initiatives oriented to the protection of the environment setting a voice of not resign themselves to the world that belongs to them. In this case, in addition to gathering the scientific consensus on the importance of forests in mitigating climate change, the advances by declaring the Amazon as a subject of rights allow real protection of this ecosystem which is essential nor only for Colombians but for the humanity as a whole.

Appendix – Additional Information:

• Deforestation Hotspots in the Colombian Amazon Chiribiquete – Macarena
  https://maaproject.org/chiribiquete
• Finalist 2018 – 25 Voices against Deforestation, Colombia:
  https://www.youtube.com/watch?v=s9OcqFwrWtE
• The main competences of the Court:

• Order the Presidency of the Republic, the Ministry of Environment and Sustainable Development, and the Portfolio of Agriculture and Rural Development so that, in coordination with the sectors of the National Environmental System, and the participation of the actors, the affected communities and the interested population in general, within four (4) months following the notification of the guardianship, formulate a plan of action of short, medium and long term, that counteracts the rate of deforestation in the Amazon, where it is faced with the effects of climate change.

• Order the previous authorities to formulate within a period of five (5) months, with the active participation of the guardians, the affected communities, scientific organizations or environmental research groups, and the interested population in general, the construction of a “pact” intergenerational for the life of the Colombian Amazon -PIVAC “, where measures are adopted aimed at reducing deforestation and greenhouse gas emissions to zero, which must have national, regional and local execution strategies, preventive, mandatory, corrective, and pedagogical, aimed at the adaptation to climate change.

• To order all the municipalities of the Colombian Amazon, within a period of five (5) months, to update and implement their Land Management Plans, which must contain an action plan to reduce deforestation in their territory, and encompass measurable strategies of preventive, mandatory, corrective and pedagogical nature, aimed at adapting to climate change.

• Order the Corporation for the Sustainable Development of the South of the Amazon-Corpoamazonia, the Corporation for the Sustainable Development of the North and the Amazonian Orient -CDA, and the Corporation for the Sustainable Development of the Special Management Area La Macarena -Cormacarena, within five (5) months, with regard to its jurisdiction, an action plan that counters the deforestation problems reported by the IDEAM by means of police, judicial or administrative measures. [Sentence Corte Supreme Court of Justice STC43602018. pp.48-51.]