The Constitutional Court of Colombia is the highest tribunal in the Colombian judiciary in matters of Constitutionality. According to the Constitution, it is entrusted to the Court, “The safeguarding of the integrity and supremacy of the Constitution”. In this case, the Court was asked to consider the existence of a fundamental human right to health, a healthy environment, water and human dignity.
The Plaintiff, a 70 year old woman, filed a guardianship action against the defendant company Aqualia Villa del Rosario SAS ESP (‘Aqualia’) in order to protect her fundamental rights to health, a healthy environment, water and human dignity. These rights were apparently violated by the company, Aqualia by leaving her without water supply and sewerage.
The plaintiff stated that, for a year, she has not had a drinking water supply. She indicated that she had submitted a petition to the defendant company for the water supply without obtaining the required connection and for the sewerage system to be installed.
The plaintiff stated that she did not have a sewage system either, so that "all the sewage comes from the front and from the back of my house, which is causing my health to deteriorate greatly due to of these bad smells”. Despite the above, she is issued bills every month for the aqueduct and sewerage. For this reason, she considers that she is being charged for what is not owed.
The plaintiff took the present protection action for the protection of her fundamental rights to health, a healthy environment, water and human dignity. The plaintiff requested that the company be ordered to supply a minimum of fifty litres of water per day and to install the sewage system in her home and those of her neighbours.
The Court Analysis
The Court examined the existence of rights to drinking water and basic sanitation. The first article of the Political Constitution establishes that Colombia is a social State of law founded on respect for human dignity, on the work and solidarity of the people who integrate it and on the prevalence of the general interest. Likewise, the second article of the Charter states that the authorities are established to protect all persons in their life, honor, property and other rights and freedoms. Article 366 prescribes that one of the fundamental objectives of state activity is the solution of the unsatisfied needs of health, education, environmental sanitation and drinking water.
In the Constitution, drinking water and basic sanitation are not provided as fundamental rights. However, the Constitutional Court has recognized the potential existence of these rights due to their importance both to guarantee the life and health of people and because they are essential for the realization of other rights. The evolution of each right has been uneven. While access to drinking water has been recognized by jurisprudence as an autonomous fundamental right, access to basic sanitation remains linked to the guarantee of other fundamental rights.
The Chamber considers it important to refer to international human rights law and to carry out an analysis of the jurisprudence of the Constitutional Court on the matter.
At the international level, there are a series of optimization mandates for States to adopt, within the framework of their powers, the greatest regulatory, logistical and budgetary efforts aimed at guaranteeing that citizens have access to water. These obligations translate into an institutional duty to manage and execute the necessary works to guarantee that the inhabitants of a certain country can access water resources in conditions of availability, quality and accessibility.
International law has advanced in the recognition of drinking water and basic sanitation as essential conditions for health and the development of a dignified life. In this way, in Colombia the rights to drinking water and basic sanitation cannot be fully understood without referring to the international regulatory framework that is integrated into the block of constitutionality.
The right to water has been recognized in different instruments, such as declarations, resolutions or action plans. These were adopted at International Conferences of the United Nations Organization (hereinafter the UN) and were prepared by organizations that make up that organization. Among others, the Declaration of Mar del Plata (1977) is part of this international body of law. This was the first appeal to States to carry out national assessments of their water resources and develop national plans and policies aimed at satisfying the drinking water needs of the entire population. It also recognized that all people and towns have the right to have quality drinking water in sufficient quantity to satisfy their basic needs.
The Court decided that the Plaintiff’s fundamental rights to health, a healthy environment, water and human dignity were violated by the Aqualia company by not providing the water and sewerage supply despite charging her for the service.
The Court analysed whether the defendant violated the fundamental rights to drinking water, basic sanitation, health and a dignified life of the plaintiff by not providing the aqueduct and sewage services in due form. In order to resolve the legal problem, the Court referred to the rights to drinking water and basic sanitation and the state obligation to guarantee access to these two public services.
The Court concluded that the aqueduct and sewerage company violated the fundamental rights of access to drinking water, basic sanitation, health, and a dignified life of the Plaintiff as a user, by not providing her with the services properly despite that she was charged for these. In these cases, if the user's home has a connection to the aqueduct and sewage networks, the company must guarantee the final and efficient disposal of the service, in accordance with the conditions of availability, quality and accessibility established by the jurisprudence of the Constitutional Court.
The Chamber defined that the company must assure the plaintiff the access to minimum sanitary conditions for the collection, treatment and disposal or reuse of human waste in hygienic, safe and private spaces that allow the plaintiff to develop her life free of diseases.