Claim of the Raizal people1 in Providencia, impacted by hurricane Iota, to be reviewed by the Colombian Constitutional Court
The Colombian Constitutional Court heard the claim of more than 90 families of the Raizal community and supporting human rights organisations, to review the tutela action2 for the protection of their fundamental rights.
In November 2020, in the middle of crisis of the Covid-19 pandemic, the category 5 hurricane Iota caused destruction to 98% of the island of Providencia, located in the archipelago of San Andrés, Providencia and Santa Catalina, Colombia. The impacts of Iota devastated a large number of houses, hotels, shops, education services, as well as the airport and the local hospital. As a response, the Colombian Government declared a state of public calamity and emergency, ordering the National Unit for Risk Management and Disasters (UNGRD) to create a contingency plan for the reconstruction of the island within a period of 100 days.
The Government did not execute the contingency plan, exacerbating the structural social problems faced in Providencia. Therefore in December 2020, the Raizal leader Josefina Huffington filed a tutela action to claim the protection of the fundamental rights of the Raizal people. The legal action highlighted the lack of response to freedom of information requests by the Raizal community. Other human rights violations were also highlighted, including the uprooting of those who were forced to leave the island and could not return because of the absence of safe conditions, and the fact that those that remained had to inhabit tents for long periods.
Despite the dismissal of the claims by the courts of first and second instance, more than 90 families signed a letter aimed at requesting the Colombian Constitutional Court to review their case. This call was supported by the Centro de Estudios de Derecho, Justicia y Sociedad —Dejusticia—, the Clínica Jurídica de Medio Ambiente y Salud Pública —MASP Uniandes—, the Centro Latinoamericano de Estudios Ambientales —CELEAM—, the Clínica Jurídica de Interés Público de la Universidad de Medellín, the University of Reading Centre for Climate and Justice, and Transparencia por Colombia. This joint effort resulted in the selection of the case by the Constitutional Court in August 2021.
The premise of this collective work between the community and the signatories of this statement is to claim the integral protection of the fundamental rights of the Raizal community. In this process, the Raizal people and human rights organisations emphasised the need to address the impacts of climate displacement and the resulting violations to fundamental rights stipulated in Political Constitution of Colombia of 1991, such as the right to life and human dignity (art. 11), the right to health (art. 49), the right to housing (art.51), the right to ancestral property (art. 20 and 74), and the right to prior consultation (art. 93 and OIT 169 Convention), among others.
The relevance of review of this case by the Constitutional Court was argued from the violation of territorial rights, resulting from a forced displacement situation without any guarantee of a safe stay for communities in the island. In addition, it was asserted that there was a violation to the right to access public information, given the lack of clarity and accessibility of the reconstruction plan data handed over by the Colombian government. Furthermore, the contingency plan developed by the UNGRD did not consult with the Raizal people, without considering that their ancestral rights depend greatly on this plan.
Without doubt, this is a relevant constitutional case in Colombia. Not just because it relates to the most urgent global crisis of today -climate change-, but also because the Colombian legal system has been weak in approaching climate change impacts from a human rights perspective. The emergency continues, considering that the hurricane season started in late May 2021 and little progress has been made on the island reconstruction.
The review of the Providencia tutela action by the Constitutional Court is milestone. Indisputably, while the climate crisis worsens, events like the hurricane Iota and the storms caused by La Niña phenomenon tend to be more frequent and intense. This situation puts at risk, not just the ancestral people of the archipelagos, but also communities in the mainland of Colombia. The signatories here claim for the activation of guarantees of active transparency, governance and rights to land.
Next in this process is a decision by the Constitutional Court about the duties of the State in relation to events like this which involve serious violations of fundamental rights. This is an opportunity for the Court to establish a precedent on the legal recognition of the existence of forced displacement and trapped populations in a context of climate-related events. Additionally, it opens a path to develop a set of national guidelines that includes the phases of humanitarian assistance, recovery, and territory development in the context of climate-related disasters.
1 The Raizales are an ethnic group descendent from enslaved Africans, Amerindians and British emigrants. Most of the Raizales speak Creole, English and Spanish and inhabit the islands of the archipelago of San Andrés, Providencia and Santa Catalina, in Colombia. For more info, see https://minorityrights.org/minorities/raizales/
2 The tutela is a legal action used to claim the protection of the fundamental rights established in the Political Constitution of Colombia. It is the quickest, fastest, and most accessible legal mechanism in the Colombian legal system.