By order no. 417 of March 24, 2023, published in the Official Gazette of Colombia on June 6, 2023, the Colombian Constitutional Court rejected the request of the Colombian Institute of Agriculture (Instituto Colombiano Agropecuario - ICA) dated January 25, 2023, seeking clarification and extensions of time limits on the effect of ruling T-343 issued on October 5, 2022, in which the Constitutional Court ordered an immediate ban on the use of chlorpyrifos, a neurotoxic and endocrine-disrupting pesticide.

The decision marks the end of the litigation initiated by Luis Domingo Gómez Maldonado (Mr. Luis Domingo), a law professor specializing in the protection of human and animal rights, who called for the withdrawal of registrations for chlorpyrifos-based phytosanitary products and their substitution, on the grounds that these registrations infringed the right to life and health of his daughter, but also of all Colombian children and adolescents, and of future generations, in violation of the precautionary principle.

At first instance, on September 3, 2021, the Third Criminal Court of Bogotá declared the action inadmissible on the grounds that, on the one hand, the existence of irremediable harm had not been established, and that the plaintiff had no interest in acting on behalf of all Colombian children, adolescents and future generations, and on the other, that no evidence had been provided to demonstrate that an infringement of the right to health could be identified. Luis Domingo appealed against this decision, but the Criminal Chamber of the Bogotá High Court upheld it on October 13, 2021. The plaintiff therefore lodged an amparo appeal with the Constitutional Court.

On October 5, 2022, after conducting an investigation, the Court responded to the arguments raised by the Claimant, namely infringement of the right to life and health (I), and breach of the precautionary principle in relation to health protection (II). Finally, the Court declared the appeal admissible and upheld Luis Domingo's claim (III).

I) On the infringement of the right to life :

The Constitutional Court noted that the right to health is recognized by both domestic and international law, notably under the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The protection afforded under this right must be extensive and contain a preventive dimension. It is about providing "the possibility for people to lead a life that enables them to enjoy the highest level of physical, mental and social well-being."

In this regard, the Court notes that the harmful effects of pesticides on human health have been identified on several occasions at international level, in particular by the World Health Organization (WHO), by the Special Rapporteur on toxic substances and human rights, and by the Committee on the Rights of the Child.

It also points out that the Rio Declaration, the Stockholm Convention, the International Conference on Chemicals Management and the International Code of Conduct on Pesticide Management of the Food and Agriculture Organization of the United Nations (FAO) also aim, as part of a precautionary approach, to better protect human health from the dangerous effects of pesticides.

In the Court's view, it therefore implies that States have positive obligations to protect the right to health of individuals and, in particular, of children and adolescents, in the face of risks linked to exposure to toxic substances.

2) Application of the precautionary principle as a rule of interpretation:

The Court underlines that the precautionary principle applies not only to environmental matters, but also to human health, and uses it as a rule of interpretation.

It also examines the existence of a potential risk of irremediable harm, using a comparative law approach. It refers in particular to the work of the US Environmental Protection Agency (EPA) and the European Food Safety Authority (EFSA), which highlight the various risks of chlorpyrifos to the neurological and vascular-cerebral systems, as well as neurodevelopmental effects in children. It also notes that studies carried out at the beginning of the 21st century had already identified some of these risks. For the Court, this indicates that there is sufficient evidence that exposure to this substance on a permanent or repeated basis has harmful effects on human health.

III) Admissibility and merits of the claim :

The Court found that there had been irremediable damage to Colombian children, adolescents and future generations, and that Luis Domingo had a legal interest in bringing the action. In application of the precautionary principle in health matters, and having determined the existence of an infringement of the right to health, the Constitutional Court ruled that the ICA had not been sufficiently diligent in its obligation to protect human health, particularly in that the regulations adopted had not been updated to reflect new international standards and scientific knowledge.

The Constitutional Court finally decided to enjoin the ICA to take the necessary administrative measures to immediately suspend the marketing of agricultural chemicals containing the active ingredient chlorpyrifós, and to definitively eliminate the use of chlorpyrifos.