Document Type

Article

Publication Title

Texas Law Review

Abstract

Throughout the entire day, Luis Alfonso Hoyos, the director of the agency in charge of attending to the approximately five million internally displaced persons (IDPs) by Colombia’s armed conflict, was on the stand publicly testifying about what the government had done and failed to do for the displaced population. While Hoyos fired off statistics and PowerPoint slides in response to questions posed by the court and the nongovernmental organizations (NGOs) in attendance, from inside the courtroom we could hear the shouts of displaced persons in the contiguous Bolívar Plaza protesting the lack of state attention to their cause. The path that led up to the hearing started five years earlier when, in January 2004, the Colombian Constitutional Court (CCC) aggregated the constitutional complaints (tutelas) of 1,150 displaced families and handed down its most ambitious ruling in its two decades of existence: Judgment T-025 of 2004. In this decision, the CCC declared that the humanitarian emergency caused by forced displacement constituted an “unconstitutional state of affairs;” that is, a massive human rights violation associated with systemic failures in state action. As the complaints that reached the court from all corners of the country showed, there was no serious and coordinated state policy for offering emergency aid to IDPs, nor was there reliable information on the number of IDPs or the conditions they were facing. Moreover, the budget allocated to the issue was clearly insufficient. To eradicate the root causes behind this state of affairs, the court ordered a series of structural measures that as we will see, spawned a lengthy implementation and follow-up process that continues today. In this Article, I focus on the CCC’s decisions in these situations, which I dub “structural cases.” I characterize these cases as judicial proceedings that (1) affect a large number of people who allege a violation of their rights, either directly or through organizations that litigate the cause; (2) implicate multiple government agencies found to be responsible for pervasive public policy failures that contribute to such rights violations; and (3) involve structural injunctive remedies, i.e., enforcement orders whereby courts instruct various government agencies to take coordinated actions to protect the entire affected population and not just the specific complainants in the case. In Latin America, judicial activism on socioeconomic rights (SERs) has become increasingly prominent over the last two decades under different rubrics, including “strategic litigation,” “collective cases,” and American-style “public interest law.” In countries as different as Brazil and Costa Rica, courts have decisively shaped the provision of fundamental social services such as health care. In Argentina, some courts have undertaken structural cases and experimented with public mechanisms to monitor the implementation of activist judgments such as Verbitsky, on prison overcrowding, and Riachuelo, on environmental degradation.

First Page

1669

Volume

89

Publication Date

2011

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