“Displacement due to environmental factors is one of the great tragedies of our time”

In a recent judgment, the Colombian Constitutional Court has ruled that displacement due to environmental factors can be legally considered as forced displacement triggering specific obligations of the State. The judgment (T-123 of 2024) highlights the deficit of constitutional protection for victims of environmental displacement, urging the state to develop specific strategies to address this issue. It mandates immediate relief for petitioners affected by the Bojabá River flooding and calls for comprehensive public policies to mitigate the impact of environmental displacement.

In this interview, Natalia Ángel-Cabo, a Judge at the Colombian Constitutional Court, explains the implications of the ruling and the concept of displacement due to environmental factors. Natalia Ángel-Cabo holds a law degree from the University of Los Andes and a Master of Laws (LL.M.) from Harvard University. Previously, she was a full-time professor at the Faculty of Law of the University of Los Andes, director of the Constitutional Public Law Area, and editor of the Latin American Law Journal. The interview was originally published in Latin American Spanish in Agenda Estado de Derecho.

AED: What are the implications of recognizing climate displacement as a legal phenomenon protected by the Constitution of Colombia?

NA: The recognition of displacement due to environmental factors in the Colombian legal system primarily signifies progress in protecting this phenomenon’s victims’ rights. The judgment emphasized that, until now, victims of forced displacement due to environmental factors in Colombia have faced a deficit of constitutional protection. While the country has acknowledged and responded comprehensively to displacement caused by violence and armed conflict, the same cannot be said for displacement caused by environmental factors such as disasters, environmental degradation, or events associated with climate change. The Colombian state also has prevention and assistance obligations towards populations displaced by environmental factors derived from the Constitution and its international commitments.

AED: How can these obligations be fulfilled by the State?

NA: One of the central purposes of Judgment T-123 of 2024 is to urge authorities to develop specific strategies to address the phenomenon, not only understanding its dimensions, characteristics, and the specific needs of the affected population but also implementing comprehensive actions to address it. For example, the judgment urges the Colombian Congress to promptly enact a comprehensive public policy to respond to the phenomenon.

AED: How severe is the problem?

NA: Very severe. From a more symbolic perspective, this recognition contributes to raising awareness about the environmental crisis and our contribution to it. The judgment demonstrates how displacement due to environmental factors, including events associated with climate change, is one of the great tragedies of our time and, unfortunately, one that severely affects vulnerable populations. In fact, international estimates show that displacement due to disasters, environmental degradation, and climate change-related events will surpass the number of people displaced by violence and armed conflict. Recognizing these realities is a first step for us, as a society, to begin to understand the impact of human decisions regarding climate change and gradual ecosystem degradation, and to act more decisively.

AED: What is the concept of “displacement due to environmental factors” embraced in this judgment, and what criteria were used for its recognition?

NA: The concept utilized in the judgment stems from the definition of internal forced displacement as outlined in the Deng Principles of the United Nations Economic and Social Council. These principles define internally displaced persons (IDPs) as “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” (emphasis added).

As evident, these principles acknowledge that displacement occurs due to causes such as armed conflict or violence and other events like natural disasters. In the judgment, we start with that definition but characterize the phenomenon as displacement due to environmental factors to encompass other occurrences beyond natural disasters.

AED: What causes of displacement due to environmental factors are encompassed in the judgment?

NA: The concept of displacement due to environmental factors, as advanced in the judgment, includes causes such as disasters, environmental degradation, and other events associated with climate change. Nevertheless, the characterization of the phenomenon stems from the definition of the Deng Principles. That is, understanding that displacement due to environmental factors implies that:

• An individual or group of individuals flee or escape from their home or habitual place of residence.
• The displacement is involuntary, not voluntary.
• Those who are displaced do not cross the state border of their country but move within it.
• It is a phenomenon that can stem from various environmental causes.

AED: What are the main characteristics of this type of displacement?

NA: The judgment highlights relevant aspects that characterize displacement due to environmental factors, particularly its multi-causal and complex nature. For instance, an important point in the judgment is to demonstrate that displacement due to environmental factors doesn’t always occur due to sudden or immediate events but also due to gradual occurrences over time, such as environmental degradation.

Thus, the judgment draws attention to the fact that, unlike some displacements where the cause can be precisely determined, in those caused by environmental factors, it’s not always easy to determine why a person leaves their home and life project. Similarly, it’s not always easy to identify the forced nature of these displacements. While the forced aspect implies a lack of voluntariness in the move, this characteristic is usually associated with the need to leave the place of residence in the face of an imminent event. However, in the case of displacement due to environmental factors, the forced nature may not be associated with a single event and may not be easily perceptible. For example, people may need to migrate because the environmental conditions in their environment do not guarantee livelihoods. As the judgment states, this decision may seem voluntary, but essentially, it is forced because the person’s livelihood is at stake.

Thus, any public policy addressing the issue must consider the complex and multidimensional nature of the phenomenon, as well as understand its greater impact on the most vulnerable populations. For example, in the Colombian context, this implies the need to adopt a specific response to the phenomenon rather than simply replicating the way forced displacement due to armed conflict has been addressed.

AED: What international or comparative precedents were considered to make this decision, and how does Colombia align with these global trends?

NA: To establish the elements comprising the concept of displacement due to environmental reasons, the judgment reviewed some international instruments related to the issue. Initially, reference was made to the Deng Principles and the Pinheiro Principles. It was noted that these instruments, for over 20 years, recognized that internal displacement could occur due to factors associated with changes in the environment.

The judgment also mentioned other international instruments from various legal domains applicable to addressing internal displacement due to environmental factors. Thus, some instruments of international human rights law were referenced, and several instruments of international environmental law were analyzed, among which the United Nations Framework Convention on Climate Change of 1992, the Kyoto Protocol, and the Paris Agreement were highlighted. Some instruments related to Disaster Risk Management were also considered. Within this group, reference was made, for example, to the Hyogo Framework for Action, the Sendai Framework, and the Nansen Initiative.

Overall, I believe this decision allows the country to integrate into its legal framework many of the international standards applicable to the protection of human rights and environmental protection. In this regard, Colombia progresses in recognizing environmental realities that enable it to align with other countries to make decisive decisions regarding the future challenges posed by changes in nature.

AED: What specific measures did the Constitutional Court order to address the displacement of the petitioners?

NA: Regarding the petitioners and other individuals affected by flooding from the rising waters of the Bojabá River, the judgment mandates local authorities to urgently ensure access to food, clean water, shelter, basic housing, appropriate clothing, and medical and sanitation services for the petitioners. Additionally, it orders the same authorities to conduct a detailed study of the level of risk and vulnerability of the property where the petitioners resided to determine if they can return and under what conditions. If the municipality determines the risk on the property is mitigable, it must guarantee a voluntary and safe return. Also, in this scenario, it’s ordered to ensure conditions for the petitioners to have a sustainable livelihood in the future, such as assisting in recovering their crops. If a safe return is not possible, the Court ordered the municipality to ensure the relocation of the petitioners, considering their specific situation. In all cases, the Court ordered the actors to be involved in the process.

Furthermore, considering that the triggering event of the displacement could have affected other individuals, the Court ordered that the mentioned measures be extended to all victims of displacement due to the flooding of the Bojabá River through inter communis effects. Indeed, the Court found that several people living in communities near the river were in an equally pressing situation as the petitioners, as they had also requested authorities of the Office of the Mayor of Saravena and the Office of the Governor of Arauca to take protective and assistance measures due to the river overflow.

AED: Were orders adopted to address the issue more structurally?

NA: As a general and structural measure, the Court urged the National Congress to regulate through legislation a comprehensive response to the phenomenon of internal forced displacement due to environmental factors. The Court pointed out that such regulation should consider the multidimensional impact generated by forced displacement due to these causes.

AED: What are the challenges for Colombia and Latin America to effectively implement this judgment and its translation into public policies?

NA: The challenge for the Colombian State now is to understand the provisions of the judgment comprehensively. Authorities might limit themselves to fulfilling the initial orders and simply restoring the rights of the petitioners in the short term. However, for the decision to be effectively implemented, it must go beyond that and make a structural modification of the institutions that enables a new perspective on changes in nature and the effects derived from them.

Therefore, for the judgment to effectively translate into public policy, it is crucial for the Colombian State to recognize the need for a preventive approach that enables the coordination of various sectors to address this new challenge. The main challenge for institutions lies in halting the old perspective that considered environmental changes as “emergencies” and establishing a framework that recognizes that while these changes will determine the future, we can still implement public policies to mitigate their adverse effects.

AED: Environmental degradation seems to be an issue that demands joint action among different States. What does the judgment say about this?

NA: As explained in the judgment, environmental phenomena may be associated with only a portion of the territory, and it is difficult to identify when and where a changing factor originated that altered the functioning of an ecosystem. Therefore, to address the problems derived from changes in nature, it is crucial for there to be coordination among countries that allows for the identification of elements that can exacerbate these natural changes. If there is consensus among countries about the policies to be implemented to reduce the adverse effects that come with the environmental crisis, governments may be able to reduce, to some extent, the rights violations resulting from changes in ecosystems.