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Victory: Constitutional Court Defends Right to Prior Consultation
On January 23, 2008, the Colombian Constitutional Court declared the Forest Law of 2006 to be unconstitutional and therefore, invalid, because lawmakers did not consult with indigenous, afrodescendant, and tribal communities during development of the law as required.
This decision is an advance for these Colombian communities who view many economic development projects and policies as a threat to their traditional territory and cultural identity, as well as the environment. The ruling also establishes a valuable legal precedent that can be used to bolster indigenous and tribal communities’ rights in other legal cases throughout the Americas.
The Colombian government is required by law to consult with indigenous and tribal communities regarding administrative and legislative decisions that may affect them. It is obligated to do so because the Colombian Congress previously adopted into law “Convention 169,” a treaty of the International Labour Organization that protects this right and others.
In this case, the Court decided that indigenous and tribal communities should have been consulted because the Forest Law regulates forest issues in general terms, and contains provisions that “will likely affect areas generally used by the communities, which could impact their lifestyles and their close relationships with the forests.”
The court also declared that the requirement to consult with indigenous and traditional communities cannot be replaced with the general public participation process that the government carried out regarding the Forest bill. Rather, to comply with the law, the government should inform the communities about the proposed law, explain its implications and how it could affect them, and give them opportunities to effectively state their opinions regarding the bill.
As a result of this court ruling and civil society’s call to respect the right to prior and informed consultation, the Colombian government proposed a law to regulate and enforce this fundamental right. The Ministry of Agriculture also began developing a new forest law, this time using a process that complies with prior and informed consent procedures.
The lawsuit was brought by a group of students and professors from the University of Los Andes Law School in Bogota with the support of AIDA. Social organizations including the Proceso de Comunidades Negras, the National Indigenous Organization of Colombia (ONIC) and CENSAT Agua Viva also supported the group in presenting this case.
This group also filed a second lawsuit against the Forest Law alleging that the law violated Constitutional provisions protecting the environment. However, because of the January court decision, no decision will be made on this second suit.
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We all deserve to breathe clean air
I was born and raised in Bogota, Colombia’s bustling capital city. When I was a child, I grew accustomed to the chaos of the streets—thousands of cars and buses spewing black smoke into the air, the endless honking of horns. It was normal to see massive smokestacks and smell bad odors. I thought all cities were that way, and that nature and clean air only existed in places far from home. I was used to having health problems: headaches, rashes, eye and throat irritation, coughs and hay fever. I never questioned why my sisters and I were constantly fighting these “environmental allergies.” Pollution even prevented me from enjoying the outdoors. I couldn’t easily walk or ride my bike, for example, because my lungs struggled from the soot emitted by passing trucks and buses. There were days I had to leave my house wearing a mask, and times when we were forbidden from playing outside due to the pollution. Air pollution: a silent killer As an adult, I realized that environmental allergies are not the norm. Often, they are caused by constantly breathing in black carbon, ozone, sulfur dioxide and other pollutants that cars, buses and factories emit into the atmosphere each day. I realized that air pollution is a serious threat to quality of life and to a person’s health, especially among the most vulnerable, like our children and the elderly. According to the World Health Organization, millions of people die each year from illnesses related to air pollution. In Latin America, it is the number one environmental health risk, and causes more than 150,000 premature deaths per year. Cities like Mexico City, Monterrey (Mexico), Cochabamba (Bolivia), Santiago de Chile, Lima (Peru), Medellin (Colombia), San Salvador (El Salvador) and Bogota have the highest levels of air pollution in the region. When cities are allowed to expand without regulation, population skyrockets—and with it, so do the number of cars and trucks and factories. I worry about the future of my family in that scenario. I don’t want the air we breathe to negatively impact our health. My husband, who is not from Bogota, moved there to be with me. One year later, he was diagnosed with asthma. When my daughter was just two months old, she had a respiratory infection that put her in intensive care for several days. The cause of both their illnesses: the city’s poor air quality. Stopping the contamination The majority of the world’s population lives in cities. And while we can’t expect our cities to be pristine, natural ecosystems, they should provide people with the minimal conditions they need to lead dignified, healthy lives. That’s why AIDA works to improve air quality in Latin America, advocating for the protection of our children and other populations highly vulnerable to atmospheric contamination. We are raising awareness among policy makers about the importance of regulating short-lived climate pollutants (SLCPs), which stay in the atmosphere for a relatively short period of time. Unlike carbon dioxide, which can stay in the atmosphere for centuries, SLCPs remain in the air from a few days to a few decades. SLCPs include soot (also known as black carbon) and methane gas. These contaminants are major contributors to climate change, degrade air quality and have serious impacts on food security and human health. Effectively reducing them could significantly improve air quality and advance the fight against climate change in the short-term. Through our experience in international law, we’re seeking ways to regulate these short-lived pollutants across Latin America. Because having clean air to breath is one of life’s basic needs. Clean air shouldn’t be a luxury.
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Infographic: Advisory Opinion 23
The Inter-American Court of Human Rights, the Observatory of the Inter-American Human Rights System of the UNAM (OSIDH), the Due Process Foundation (DPLF), AIDA and the Institute of Constitutional Studies of the State of Querétaro present this infographic on the Court's Advisory Opinion 23. The main objective is to make available to all interested persons the main points and standards developed by the Court regarding the obligations of States regarding the environment and its relationship with human rights. We hope that this joint initiative will contribute to the full validity and guarantee of economic, social, cultural and environmental rights in the region. Advisory Opinion 23, issued on November 15, 2017, establishes a historical precedent for the protection of human rights in the continent. Download the infographic in Spanish Download the infographic in Portuguese Download the infographic in French Advisory Opinion (full text) English Spanish
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Argentina’s approval of fracking wells violates international obligations
The authorization of four fracking wells within the Vaca Muerta shale deposit poses a risk to vital water sources and violates the rights of Mapuche communities. In support of an amparo filed to invalidate the project’s approval, AIDA presented evidence detailing Argentina’s failure to comply with international environmental and human rights obligations. Mendoza, Argentina. Argentina violated international environmental and human rights obligations when it authorized the development of four fracking wells in indigenous territory. The wells would damage vital water sources and violate the rights of Mapuche communities, AIDA explained in an amicus brief presented before the Supreme Court of Mendoza Province. The brief supports an amparo seeking to invalidate the project’s approval, filed by the Environment and Natural Resources Foundation (FARN, for its initials in Spanish). “Fracking was authorized in Mendoza without any environmental impact assessment,” explained AIDA Attorney Claudia Velarde. “In fact, the project was presented for authorization as ‘infrastructure adaptation’ and the environmental authority granted the permits in a record time of just six days.” The wells are located within Vaca Muerta, the largest non-conventional deposit of shale gas in Latin America. Mapuche indigenous communities—recognized by the National Institute of Indigenous Affairs—live in the project area and, as such, have the right to prior consultation; operators must receive their free, prior and informed consent for any activity affecting their territory. The energy company El Trebol S.A. failed to recognize that right when assessing the project. As a result, the project’s authorization violates Convention 169 of the International Labor Organization, the United Nations Declaration on the Rights of Indigenous Peoples, and the American Declaration on the Rights of Indigenous People—all international standards recognized by Argentina. “The chemicals used in fracking can contaminate both surface and groundwater, including, in this case, those of the Llancanelo lagoon, a wetland of international importance under the Ramsar Convention, a treaty ratified by the government of Argentina,” said Velarde. “The site is a zone of passage and rest for more than 130 species of resident and migratory birds.” In addition, fracking activities require large amounts of water, while Mendoza has for years suffered from drought, a problem only aggravated by climate change. Finally, the brief emphasizes that there is neither detailed geological data of the zone nor quality information on the dynamics of the groundwater. “Faced with this scientific uncertainty, authorities have an obligation to apply the precautionary principle,” Velarde explained. “An activity as potentially harmful as fracking must be rejected unless those seeking to implement it can prove that it will not cause serious and irreversible damage to the environment.” Press contact: Victor Quintanilla (Mexico), AIDA, [email protected], +5215570522107
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