Project
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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Environmental Defense Guide
The purpose of this publication is to promote the use of the Inter-American System of Human Rights for addressing environmental degradation that causes human rights violations. Within this guide we provide the legal strategies and arguments necessary to use the System effectively and properly. Our goal with this publication and our work in general, is to strengthen people’s capacity to defend their individual and collective right to a healthy environment through the proper development, implementation and fulfillment of domestic and international law. With the publication and widespread distribution of the English-language edition of the Guide, we hope to significantly advance this goal. Read and download the guide
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La Oroya before the Inter-American Commission on Human Rights
In an effort to compel the Peruvian government to resolve the health crisis in La Oroya, AIDA appealed to the Inter-American Commission on Human Rights (IACHR) in 2005, requesting that the Commission take urgent precautionary measures (in Spanish) to safeguard human rights. Working together with Earthjustice, CEDHA, and our Peruvian colleagues, we brought this case on behalf of more than 60 adults and children who live in La Oroya and suffer from health problems believed to be caused by the smelter’s pollution. The following year, after the government failed to heed Peruvian court mandates to clean up La Oroya, we submitted a full petition to the IACHR, asking the Commission to thoroughly evaluate the human rights situation and obligate the State of Peru to prevent the Doe Run Peru smelter from further contaminating the city. The Commission responded favorably to our efforts. In 2007, the IACHR requested that the State of Peru take precautionary measures to prevent irreversible harm to the health, integrity, and lives of the people of La Oroya. Specifically, as a first step, the Commission requested that the Peruvian government diagnose and provide specialized medical treatment to the group of people we represent. When the government was slow to comply, the Commission met with the parties again in 2008 and 2009, and successfully motivated the state to implement the measures appropriately, a process currently in progress. In August 2009, the IACHR accepted AIDA’s petition to fully evaluate the case against Peru. It based its decision on the fact that the illnesses and deaths allegedly resulting from the severe pollution constitute potential violations of the human rights to life and integrity. It also found that the State of Peru likely violated the public’s right to information when it manipulated and failed to publish important human health information. Finally, the Commission concluded that the State of Peru unjustifiably delayed compliance with the 2006 decision of the Peruvian Constitutional Tribunal, and thus may be violating citizen’s rights of access to justice and to effective domestic remedies. Now, several years after the IACHR first ordered Peru to provide precautionary measures, it is clear that the state’s efforts have been woefully inadequate. The 65 residents represented by AIDA have received spotty medical attention that falls far short of the “specialized” care that was promised, and the government’s efforts have not reduced health risks in a meaningful way. In March 2010, AIDA and its partners returned for another public hearing at the IACHR, to present evidence that the Peruvian government’s actions fail to satisfy the terms of the 2007 recommendations. Backed by findings from independent experts, AIDA argued that the medical evaluations conducted by the government were never completed and that the city is still contaminated by heavy metal pollution that causes a range of debilitating conditions, especially among children. The State denied these claims, insisting that it has taken sufficient action and the case should be closed. While we wait for a final decision on the case, AIDA will continue to pressure the Peruvian Ministry of Health to comply with its obligations, and to encourage the IACHR to maintain a spotlight on the Peruvian State until the pollution in La Oroya no longer threatens people’s fundamental human rights. Positive changes resulting from this case will not only benefit those we represent, but all residents of La Oroya. A decision from the IACHR will also create a vital precedent that can be applied in other cases throughout the hemisphere. IACHR hearing - La Oroya Follow us on Twitter: @AIDAorg "Like" our page on Facebook: https://www.facebook.com/AIDAorg
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La Oroya triumphed in the Constitutional Court, but the ruling was not implemented
In 2006, the Peruvian Constitutional Tribunal recognized that high levels of pollution in La Oroya were causing serious health problems for the local population. The Tribunal ordered the Ministry of Health to comply with the law and take urgent action to prevent additional irreversible impacts to the environment and human health. This decision was supported by numerous scientific reports from the government, civil society organizations, and Doe Run Peru, which operates the smelter. In its decision, the Tribunal accepted all the arguments presented by the Peruvian Society for Environmental Law (SPDA), which represented La Oroya citizens in the case with AIDA’s support. The court gave the government 30 days to: Provide emergency medical attention for people contaminated with lead, giving priority to pregnant women and children; Implement an action plan to improve air quality in La Oroya; Declare States of Alert when pollution levels are excessive; Establish epidemiological and environmental monitoring programs. This ruling established a key legal precedent for three fundamental reasons. First, it recognized that extremely high pollution levels like those in La Oroya can cause serious and irreversible harm to people’s health, violating human rights. Second, it reiterated the State’s obligation to protect citizen rights, requiring specific actions to reduce health threats. Third, by ordering the State to coordinate with the polluting company, the Tribunal confirmed that corporations are responsible for conducting their businesses in ways that respect the human rights to health, to life, and to a healthy environment. In response to this ruling, the Peruvian government made some changes, but by no means complied fully with the order. Thus, in 2006, AIDA, in conjunction with Peruvian lawyers, Earthjustice, and CEDHA, brought the case to the Inter-American Commission on Human Rights. Through this case, we seek enforcement of the Peruvian court’s order and implementation of additional measures that would truly protect health in La Oroya. Follow us on Twitter: @AIDAorg "Like" our page on Facebook: https://www.facebook.com/AIDAorg
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