A New "Administrative Law Approach" to Social Rights? Learnings from Environmental Litigation in Colombia

Authors

Maria Emilia Mamberti

Abstract

Social rights are at present profusely recognized in international and domestic law. Latin American countries are frontrunners in the field, as virtually all constitutions in the region acknowledge social rights, often in ambitious manners. In many countries, courts have been active and creative in adjudicating social rights cases.

The increasing importance of social rights has led to copious debates in comparative law, which have initially focused on the convenience of constitutionalizing them, and on assessing their nature and core characteristics. With relevant exceptions, more current debates—largely revolving around the decisions of high courts from a handful of jurisdictions—have focused on advancing models of constitutionally appropriate judicial intervention in social rights’ cases. Literature has generally identified forms of judicial review that either prioritize defining some core content of social rights, or focus instead on procedures, assessing if the ways in which administrations act to fulfil social rights are reasonable. Prominent literature has called the latter approach “an administrative law model” of social rights.

This Article identifies a new administrative law approach to social rights, focused on the reform of administrative institutions. It claims that a frequently missing piece in social rights’ literature and jurisprudence is the assessment of the administrative institutions tasked with implementing rights, and the transformations needed in those institutions.

The Article analyses in detail the intervention of the State Council of Colombia in the Bogotá River case to illustrate how a court can trigger relevant institutional innovations in administrations, which can in turn enhance the realization of social rights. In the case, the Council did so by not relying mainly on the interpretation and definition of the content of rights in the abstract, nor on a traditional procedural assessment of administrative action. Instead, it focused on understanding and enhancing the administrative machinery responsible for implementing existing normative protections.

While relevant norms and policy instruments had been put in place throughout the decades to protect the environment, the Bogotá River still became one of the most polluted in the planet. The case made evident institutional problems—such as lack of coordination and volatility in rules and staff—that acted as barriers to the enforcement of environmental protections. To shift the state of institutional inertia that had led to the “environmental catastrophe” of the river, the State Council triggered promising institutional innovations with three key outcomes: it enhanced coordination among public authorities, increased meaningful participation and transparency in administrative bodies, and placed attention on monitoring activities to assess administrative action.

In doing so, the State council modeled a form of judicial intervention that, at least under the circumstances discussed in this Article, can help modernize responsible public administrations and better position them to discharge their social rights’ commitments without replacing their judgment with sweeping judicial orders.