Constitutional Court (Colombia), 16 April 2024, Case T-123

Displacement – Environmental Factors – Climate Change – Colombia – State Obligations – Fundamental Rights – Tutela – Violence – Victims.

In this landmark decision, the Colombian Constitutional Court recognized that displacement due to environmental factors constitutes a form of forced displacement. As a result, such displacements impose specific obligations on the State. In Colombia, the legal framework for individuals displaced by armed conflict grants certain benefits to these victims. In this context and considering the specific aspects of displacement due to environmental factors, particularly its multi-causal nature, the Court urged the Colombian Congress to adopt a comprehensive public policy to address this type of displacement.

Zoé Briard

The Sentencia T-123 is a new judgment of the Colombian Constitutional Court that deserves attention. This is not the first time that one of its decisions has garnered international recognition, as the Court holds a “high reputation around the world”.[1] On 16 April 2024, the Constitutional Court, for the first time in Colombia, recognized that displacement due to environmental factors can legally be considered as forced displacement. As a result, such displacements impose specific obligations on the State when they occur. In this commentary, we will explore the concept of forced displacement due to environmental factors and examine how the Court has balanced the continuity of this form of displacement with its specific characteristics.

A. Facts and Ruling

1. Facts

José Noé Mendoza Bohórquez and Ana Librada Niño de Mendoza, the applicants in this case, are a couple aged 63 and 66, originally from Saravena. This municipality is located in the Department of Arauca, in eastern Colombia, near the Venezuelan border. However, the applicants no longer reside there. They were forced to leave their home due to the Bojabá River flooding (§ 31). This forced displacement is at the heart of the present case, as the petitioners argue that, as victims of forced displacement, they should be entitled to the same benefits as those displaced by violence and conflict. In Colombia, there is a specific legal framework for people displaced by armed conflict, principally organized by Law 387 of 1997 and Law 1448 of 2011.

As a result, the applicants submitted a petition to the Unidad para la Atención y Reparación Integral para las Víctimas (UARIV) on 10 September 2020 (§ 1). This institution, established by Law 1448 of 2011, is responsible for registering and processing claims from victims of armed conflicts to provide them with benefits. In their request, the applicants claimed that they should be recognized as victims of forced displacements as defined by Law 1448 and, therefore, be entitled to the benefits that come with this recognition (§ 1). UARIV responded that, before proceeding their petition, the applicants would need to visit the offices of the Public Ministry to present the facts and circumstances that would qualify them as victims (§ 2).

Unsatisfied with this lack of substantive answer, the applicants introduced a tutela action against UARIV, the department of Arauca, the municipality of Saravena, the administrative department for social prosperity (Departamento Administrativo para la Prosperidad Social, “DPS”) and the national system for the prevention and support of natural disasters (Sistema Nacional para la Prevención y Atención de Desastres) (§§ 5 and 9).

The tutela constitutes the most popular legal remedy in Colombia.[2] It is outlined in Article 86 of the 1990 Colombian Constitution. According to this provision, any individual can file a tutela action before a judge to seek immediate protection of his or her fundamental constitutional rights in cases where these rights are threatened or violated by the actions or omissions of any public authority.

Before reaching the Constitutional Court, which has the authority to review every tutela judgment ex officio, the case went to the Juzgado 33 Penal con Funciones de Conocimiento del Circuito de Bogotá, in first instance (§§ 24-27) and to the Sala Penal del Tribunal Superior del Distrito Judicial de Bogotá, in second instance (§§ 30-33). These rulings primarily focused on the relevance and admissibility of the tutela action, aspects that will not be elaborated upon in this commentary.

In addition to alleging a violation of their right to petition, the applicants claimed that their right to equal treatment had been violated, as they could not benefit from the State programs designed for victims of violence-related displacements (§ 6). The couple further argued that their rights to housing, labor, food, food security and the bare minimum needed for survival had been violated, as the loss of their crops left them in a precarious situation (§ 7). Moreover, the applicants asserted that their right to life and personal safety had been compromised, as the State failed to adequately address the threat posed by the flooding of the Bojabá River (§ 8). Consequently, the applicants requested the Constitutional Court to issue orders directing the relevant entities to recognize them as forcibly displaced and entitled to the appropriate guarantees and benefits in this case (§ 9).

2. Ruling

The Constitutional Court began by synthesizing the international legal framework applicable to internal displacements due to environmental factors (§§ 66-94). It notably addressed instruments dealing with internal displacement (§§ 67-73), human rights treaties (§ 75), environmental law (§§ 76-79), disaster risk management instruments (§§ 80-83) and the Peninsula Principles (§ 88).[3]

The Court then emphasized the characteristics of displacements due to environmental factors, particularly their multi-causal and complex nature, and the fact that the most vulnerable populations are the most affected (§§ 95-111). Following this, the Court examined the State’s obligations towards people facing forced displacement, as established in the Constitution, case law, and international instruments (§§ 112-144). Most of these obligations are framed within the context of forced displacement related to armed conflict (§ 118). For instance, the State is required to guarantee the human rights of displaced individuals and, among them, the rights to life, liberty and personal integrity (§ 119). Additionally, the State must register displaced persons, provide humanitarian assistance to ensure the right to the bare minimum needed for survival and uphold the right to voluntarily return or resettlement (§ 119). In the specific context of displacement caused by environmental factors, the Court added that the State has obligations related to prevention and adaptation before (§§ 121-129), during (§§ 130-136) and after (§§ 137-144) displacement occurs (§ 120).

The Court also reviewed Colombian regulations on climate change, natural disaster management, and forced displacement related to armed conflict or violence (§§ 145-172). From the latter set of regulations, the Court concluded that victims of displacement due to environmental factors are excluded from the existing system of protection (§ 173). Indeed, both Law 387 and Law 1448 restrict their understanding of displaced persons to the context of armed conflict.

In the end, the Court concluded in the existence of a deficit of constitutional protection for the victims of forced displacement related to environmental factors (§§ 173-180). Therefore, similar to displacements related to internal armed conflict, displacements due to environmental factors should benefit from an adapted protection system (§§ 178 and 180).

The Court then conducted a concrete analysis of the case (§§ 181-263) and recognized that the applicants were victims of forced displacement, with the right to have their fundamental rights upheld (§ 204).

In light of these findings, the Court concluded that, considering their mandate, UARIV and DPS were neither competent nor responsible in this case (§§ 212-213). On the contrary, the Court recognized that the department of Arauca, the municipality of Saravena and the national system for the prevention and support of natural disasters should have done more regarding the situation of the applicants. For instance, the Court ordered the department of Arauca to ensure the applicants access to food, water, housing, adequate clothes, medical and sanitary services, and to provide them via humanitarian assistance if necessary (§ 254). The Court instructed the municipality of Saravena to conduct a risk assessment to evaluate the safety of the applicants’ residence (§ 255).

The Court also urged the Colombian Congress to promptly enact a comprehensive public policy to respond to forced displacement due to environmental factors (§ 263).

B. Discussion

This judgment marks a significant advancement in the protection of individuals displaced by environmental factors. Many arguments in the Court’s reasoning deserve close attention. In its long reasoning, the judgment highlights the urgency of the environmental crisis and emphasizes the need for international coordination to address these challenges.[4] This commentary will focus on the situation prior to the Constitutional Court’s ruling and how the Court has recognized both the continuity of displacement due to environmental factors with other forms of displacements and the specific characteristics of such displacement.

- The Situation Prior to the Constitutional Court’s Judgment

Colombia has a deeply rooted history of forced displacement. For five decades, the country has been embroiled in violence due to conflicts with non-state armed groups, most notably the Revolutionary Armed Forces of Colombia (FARC). According to the Internal Displacement Monitoring Center (IDMC), this constituted one of the world’s most severe internal displacement crises. Although these numbers have decreased since the peace agreement signed by the Colombian government and the FARC in 2016, Colombia still reported the highest number of conflict-related displacements in the Americas in 2023. In total, at the end of that year, approximately 5.1 million people were still living in situations of internal displacement caused by conflict and violence in Colombia. Additionally, thousands more are displaced annually by natural disasters, particularly floods and landslides.[5]

Prior to this Constitutional Court judgment, the situation of environmentally displaced persons in Colombia, whether permanent or temporary, was governed by disaster policy. Through Law 1523 of 2012, this framework did not specifically address displaced persons, creating a clear distinction in terminology. The term desplazado, meaning “displaced” in Spanish, was reserved exclusively for those displaced by violence or conflict. In contrast, individuals affected by environmental disasters and in need of assistance were referred to as damnificado, literally meaning “affected” or “damaged”.[6] Even though the situation has evolved, during many years, the agency in charge of managing environmental risks focused mostly on risk reduction and not on disaster management.[7] This differentiation led to tensions, as desplazados were entitled to more substantial benefits.[8]

In 1997, Law 387 was enacted and established the framework governing the situation of persons displaced in the context of armed conflict. In 2004, the Constitutional Court issued the sentencia T-025, which emphasized the need for an effective response to violence-related displacements in Colombia. This ruling recognized armed conflict as the sole underlying cause of forced displacement. Following this judgment, the government developed a program for displaced persons, enacted Law 1448, increased the budget, and strengthened institutional capacity (§ 62).

Law 1448 established part of the system applicable to victims of violence-related displacements (§ 168). In its Article 3, it is clearly stated that this regulation applies in case related to the internal armed conflict.

- The Notion of “Displacement Due to Environmental Factors”: Elements of Continuity

Both the applicants in their petition (§ 6) and the Colombian Constitutional Court in its judgment (§ 68) referred to the Deng Principles of the United Nations Economic and Social Council (“Guiding Principles”) to define the notion of “displacement due to environmental factors”. This “soft” law instrument serves as the main global standards for the protection of internally displaced persons (“IDPs”).[9] However, in Colombia, the Guiding Principles have been formally integrated into the legal framework.

According to the introduction of the Guiding principles, IDPs are:

“persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized state border”.[10]

The judgment defines “environmental factors” to include natural disasters, environmental degradation, and other events associated with climate change (§§ 58 and 98). Therefore, there is no distinction between persons displaced by natural disasters, whether related to climate change or not. This aligns with the reality on the ground, as individuals in both scenarios face similar challenges.

For the rest, the notion of displacement as interpreted in the judgment is derived from the Guiding Principles and requires three other key elements. First, the individual or group must be forced to flee their home or habitual place of residence. Second, the displacement must be involuntary. Third, it must occur within the borders of a single country (§ 95). In this regard, a continuity with other forms of displacement is evident.

- The Notion of “Displacement Due to Environmental Factors”: Elements of Specificity

The applicants argued that their right to equal treatment had been violated, as people displaced due to either violence or environmental factors find themselves in similarly vulnerable situations, and thus, these situations should be governed by a unified system (§ 6). This unity is in adequation with the Guiding Principles that, as just seen, mention both armed conflict and natural or human-made disasters as causes of internal displacement. Nevertheless, the Court acknowledges the specificity of displacements due to environmental factors.

This specificity is particularly evident when the Court examined the characteristics of environmental displacements (§§ 95-111). The judgment emphasized that, unlike other types of displacements, those caused by environmental factors can have causes that are difficult to pinpoint (§ 99). The Court provided the example of sudden and slow-onset natural disasters (§§ 64 and 98). While landslides, earthquakes and floods are immediately noticeable, phenomena like desertification, rising sea levels and gradual environmental degradation are harder to detect (§ 98). Consequently, the Court highlighted a specific feature of displacements due to environmental factors; their multi-causal character (§§ 97-99).

Moreover, the Court noted that the forced character of displacement due to environmental factors might also be challenging to establish (§ 100). The effects of climate change, for instance, may not manifest overnight. Some take time to evolve into disasters, while others gradually generate conditions that eventually force people to move (§ 101). Furthermore, displacements can occur preemptively, to avoid the consequences of a disaster or in prevision of a loss of livelihoods (§ 102).

In light of these findings, the Constitutional Court concluded that simply replicating the system used for forced displacement due to armed conflict would be inadequate; a specific and tailored response is required. The Court affirmed that the obligations outlined in Law 1448 apply exclusively to displacement related to the internal armed conflict (§ 167). Given their distinct nature, displacements due to environmental factors should be addressed through a dedicated system of protection (§§ 178 and 180).

Although the scale of violence-related displacement in Colombia may make it a unique case, the Constitutional Court’s decision to categorize displacement based on its cause could be questioned, especially considering that other instruments, such as the Guiding Principles, do not make such distinctions.

C. Conclusion

While it may take time to observe the concrete effects of this judgment, it is already clear that it represents a significant step forward in protecting individuals displaced by environmental factors. This progress aligns with scientific findings on displacement on which the judgment is highly reliant. Drawing from the lessons of Sentencia T-025, there is reason for optimism. Although criticisms have been raised regarding the enforcement of that judgment and the effectiveness of the measures implemented, Sentencia T-025 nonetheless strengthened the rights of those displaced by conflict and violence.[11]

Given the current realities of climate change, it is likely that states will need to revise their legal frameworks to address the consequences of climate change and the threats it poses to the human rights of their citizens. In this judgment, the Colombian Constitutional Court provides a model for how this can be done, offering an approach that could serve as both an example and a source of inspiration for other countries.

D. Suggested Reading

To read the case: Constitutional Court (Colombia), 16 April 2024, Case T-123.

Case law:

Constitutional Court (Colombia), 22 January 2024, Case T-025.

Doctrine:

Ángel-Cabo, N., “‘Displacement due to environmental factors is one of the great tragedies of our time’: Interview with Natalia Ángel-Cabo, Justice of the Constitutional Court of Colombia”, Verfassungsblog, 14 July 2024.

Bustos, C., “Climate Change and Internal Displacement in Colombia: Chronicle of a Tragedy Foretold?”, Case Western Reserve Journal of International Law, Vol. 56, 2024, pp. 369-408.

Cantor, D., “’The IDP in International Law’? Developments, Debates, Prospects”, International Journal of Refugee Law, Vol. 30, No. 2, 2018, pp. 191-217.

Merhof, K., “Building a bridge between reality and the constitution: The establishment and development of the Colombian Constitutional Court”, International Journal of Constitutional Law, Vol. 13, No. 3, 2015, pp. 714-732.

Websites:

IDMC, “Country Profile Colombia”, 14 May 2025.

Wordreference, “damnificado”, 2024.

 

To cite this contribution: Z. Briard, “Balancing continuity and specificity: the Colombian Constitutional Court recognized displacements due to environmental factors as a form of forced displacements requiring specific protection”, Cahiers de l’EDEM, August 2024.