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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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Read moreAIDA presents report at Durban linking climate change to decline of human rights in Latin America
Calls for measures to protect the human rights of the most vulnerable communities. Durban, South Africa – On Wednesday, December 7, 2011, the Interamerican Association for Environmental Defense (AIDA) presented delegates at climate meetings in Durban, South Africa with a report detailing the negative effects of climate change on human rights to life, access to water, health, food, and housing for millions of people in Latin America. “Climate change causes the greatest harm to the human rights of those who are least responsible for greenhouse gas emissions – vulnerable and historically disadvantaged communities such as peasant farmers, indigenous peoples, and the urban poor,” said AIDA staff attorney Jacob Kopas. “Governments disproportionately responsible for historical and current emissions have an international obligation to contribute more to lasting solutions.” The most troubling of the impacts detailed by the report is a dramatic reduction in access to freshwater in Latin America. Increased melting of glaciers, degradation of high-mountain páramo wetlands, erratic weather patterns and severe droughts will limit dry-season access to water for up to 50 million people in the Tropical Andean region by 2050. Other impacts include heavier rains and flooding, which affected 2.2 million people and caused $300 million of damages in Colombia alone in 2010, and the loss of 80% of Caribbean coral reefs due in large part to warming ocean temperatures and ocean acidification. “The parties must understand that the climate change problem can no longer be ignored. We need to act now to help the world’s most affected communities cope with climate change by securing urgent yet attainable solutions like the Green Climate Fund here in Durban,” said AIDA attorney Andrés Pirazzoli, who distributed the report to delegates at the meeting. AIDA backs the Green Climate Fund, which would finance low-carbon technology adoption and adaptation programs in the developing world. AIDA issued the report this week to inform an investigation by the Inter-American Commission on Human Rights (IACHR) on the link between climate change and human rights. The report calls for a binding climate treaty and for the biggest emitters to pay for adaptation and mitigation measures in the developing world.
Read moreAIDA presents report at Durban linking climate change to decline of human rights in Latin America
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