Special Rapporteurship on Economic, Social, Cultural, and Environmental Rights
Washington D.C.- The Office of the Special Rapporteur on Economic, Social, Cultural, and Environmental Rights (REDESCA) of the Inter-American Commission on Human Rights (IACHR) conducted a visit to Colombia between September 25 and October 5, 2022, in order to participate in a series of promotional and academic events on Economic, Social, Cultural and Environmental Rights (ESCER), hold meetings with authorities and representatives of civil society, as well as carry out a working visit to gather information on the situation of ESCER in the country, with special emphasis on the Department of La Guajira and the situation of the Wayúu Indigenous People.
In the framework of the working visit, the Special Rapporteur, Soledad García Muñoz, met with the Vice-President of the Republic of Colombia, Francia Márquez M.; the Presidential Adviser for the Regions; the Minister of Housing; the Minister of Health and the Deputy Minister of Public Health and Service Delivery; the Director of the Social Prosperity Department; the Ministry of Foreign Affairs; magistrates of the Constitutional Court (in particular, of the Chamber of Follow-up to sentence T-302 of 2017), among other authorities and State entities responsible for the implementation of the measures adopted for the guarantee of the rights of the Wayúu Indigenous People.
The Office of the Special Rapporteur appreciates the collaboration of the State of Colombia in facilitating and organizing the visit, particularly for the support provided by the Ministry of Foreign Affairs and the Mission of Colombia to the Organization of American States (OAS). Owing to this, the Office of the Special Rapporteur received relevant information on the measures implemented by the State to guarantee access to ESCER, especially for the Wayuu indigenous people who inhabit the Department of La Guajira, as well as the opportunities for improvement and challenges that still exist.
Academic and promotional activities
The Special Rapporteur began the visit by participating in various academic and promotional activities. First at the Universidad del Rosario, where she contributed to spaces for dialogue with students and faculty, addressing, among other issues, the Resolution 3/21 "Climate emergency: scope of inter-American obligations on human rights". Then, she participated in the XVII Meeting "We are all Constitutional Jurisdiction", an event organized by the Constitutional Court of Colombia in Villa de Leyva. There, the Special Rapporteur gave a keynote lecture on Climate Change and the Inter-American Human Rights System, presenting the aforementioned Resolution 3/21. The Special Rapporteur also contributed as a panelist in a space focused on the jurisdictional protection of ESCER.
On the other hand, the Special Rapporteur and the REDESCA technical team also held meetings with the Office of the United Nations High Commissioner for Human Rights in Colombia, with the Office of the Ombudsman of Colombia, as well as with civil society organizations and representatives of indigenous peoples from different areas of the country, such as the Pacific, Cauca, Bajo Cauca, Chocó and Putumayo. To all these institutions and individuals, the Office of the Special Rapporteur is grateful for their time and willingness to collaborate with the delegation.
Working visit to La Guajira
The Special Rapporteur, together with the technical team of REDESCA, carried out a working visit between October 1 and 3, to the Department of La Guajira, in order to know in detail the situation of the ESCER of the population, with a special emphasis on the Wayuu indigenous people, for whom the IACHR has granted precautionary measures for three groups in particular: children and adolescents from Uribia, Manaure, Riohacha, and Maicao; pregnant and lactating women from Manaure, Riohacha and Uribía; and elderly people – approximately 3,000 – from Manaure, Riohacha and Uribía (through Resolutions 60/2015, 3/2017 and 51/2017), as well as internal provisions pending compliance, such as ruling T-302 of 2017 issued by the Constitutional Court, which declares the "Unconstitutional State of Affairs" for the violation of various rights of Wayuu children.
The Office of the Special Rapporteur's working visit took place in Manaure, Maicao, Uribia, Albania, and Riohacha, with three priority objectives: first, to contribute to the diagnosis of the situation; second, to gather information on the efforts under way to implement the necessary measures to address the aforementioned problems; and, finally, to offer the technical support of the Office of the Special Rapporteur as an inter-American mandate specialized in ESCER rights and issues. The foregoing, recalling that the visit is based on the mandate and competences of the Office of the Special Rapporteur and not on the terms of Article 25 of the Rules of Procedure by the IACHR -referring to the mechanism of precautionary measures-.
Within this framework, several key events and meetings were held to evaluate the situation of ESCERs in the territory from a broad and comprehensive perspective, in order to submit observations and recommendations to the State of Colombia on the promotion and protection of such rights. Although this press release is intended to provide some preliminary observations and recommendations, the Office of the Special Rapporteur is preparing a more detailed report on the visit that will be published in due course.
The Office of the Special Rapporteur recognizes the openness and willingness of the State of Colombia to receive the delegation. In particular, the Office of the Special Rapporteur recognizes the significant deployment of national, departmental, and municipal State authorities and institutions that the Colombian Government mobilized in La Guajira to meet and accompany the Special Rapporteur and her team on the ground during the visit. In this regard, it should be noted that the visit was given with the approval of the new Government, in charge of President Gustavo Petro, who took office on August 7, 2022.
In the same vein, sincere thanks are extended to all those people, civil society organizations and international organizations that provided relevant information during the visit and contributed to the organization of spaces with civil society, as well as to the communities visited who shared their testimonies regarding their situation and effects on their rights.
Preliminary observations and conclusions
During the first official visit of the SRESCER to Colombia, the Office of the Special Rapporteur observes that, despite the various measures adopted by the State, there are serious challenges to guaranteeing ESCERs for the population of La Guajira, particularly for the Wayuu indigenous people, other indigenous peoples, as well as for Afro-Colombian individuals and communities.
In this context, although there would be a high level of vulnerability of the population in general, there would be a situation of greater risk for children and adolescents; pregnant and lactating women, and older persons (groups benefiting from precautionary measures in some municipalities of the Department through IACHR Resolutions 60/2015, 3/2017 and 51/2017).
Without detriment to this, it should be noted that although in the framework of its working visit, the REDESCA in addition to observing this situation in person in Riohacha, Uribia, Manaure, Albania and Maicao; received information from multiple sources that reported a situation of generalized vulnerability at the departmental level, being even more complex towards the north of La Guajira, such as in the areas outside the urban centers.
In view of this scenario, the Office of the Special Rapporteur was able to make a broader analysis of the situation of ESCERs in the Department and collected valuable information and testimonies that explain the root causes of the "Unconstitutional State of Affairs" (ECI) that the Constitutional Court decreed through its ruling T-302/17, as well as the situation of gravity and urgency identified by the IACHR in the framework of the aforementioned precautionary measures.
In the same way, it evidenced challenges for the fulfillment of other judicial orders, including ruling T-614/19 of the Constitutional Court, regarding the tutela action to protect the right to health and healthy environment of a Wayuu indigenous community against extractive activities by the company Carbones del Cerrejón Limited; and ruling SU-698/17, in which Wayuu communities consider their fundamental rights violated by the project to divert the Arroyo Bruno riverbed, advanced by Cerrejón.
Faced with this structural situation of violation of rights, REDESCA emphasizes that although compliance with ruling T-302/17 is an essential step for the guarantee of the rights of the Wayuu indigenous people, and particularly of their children, the actions and measures adopted by the State require going beyond what was ordered by the Constitutional Court in that judgment. Thus, progress must materialize in such a way as to urgently and substantially improve the general living conditions of the Wayuu indigenous communities and people.
In this regard, below are some of the measures socialized with REDESCA and adopted by the State to respond to the ECI declared by the Court, in addition to some preliminary observations on the violations of the ESCERs identified in the Department.
Progress and state initiatives
During the working visit, and within the framework of the meetings with national and local government authorities, it was possible to observe the measures that the institutional framework has taken in the following areas, above all, to face the ECI declared by ruling T-302 of 2017.
It should be noted as a common denominator the will expressed by the institutions with which REDESCA met during its visit to project, strengthen and design joint actions that meet the requirements of the aforementioned sentence and, especially, to improve the living conditions of the Wayuu Indigenous People. Proof of this is the existence of the Intersectoral Commission for the Department of La Guajira, created in 2020, as wellas the Binding Regional Dialogues promoted by the current Government, through which it would seek to promote the participation of the communities in the elaboration of the bases of the National Development Plan. Similarly, note is taken of the Budget Law that the Executive would be about to sanction, which provides that all responsible entities within the framework of Ruling T-302 of 2017 must prioritize their resources to comply with it.
As for the food security crisis, efforts are being made to address it from different areas. This is how the Ministry of Agriculture and Rural Development has worked in recent years in the promotion of capacities, through the Productive Alliances Support Project. At the same time, note is taken of the Integral Agricultural and Rural Development Projects (PIDAR), through, for example, the implementation of self-sufficient integral farms or the improvement of productive and organizational capacities of livestock producing families.
Likewise, within the initiatives promoted by the Administrative Department for Social Prosperity (DPS) in the municipalities of Maicao, Manaure, Riohacha and Uribia, the implementation of 2,400 Productive Units of Food for Self-Consumption (UPAA) that would seek to contribute to the access and consumption of healthy food by populations in situations of poverty and vulnerability stands out, through pillars such as food production, the promotion of eating habits and the use of local products within the framework of food security. In this regard, according to official information, it has been indicated that it is expected that these UPAAs will benefit 2,100 families in the municipalities of southern La Guajira.
In line with the points just mentioned, efforts such as Families in their Land (FEST) are highlighted, whose goal is to contribute to the socioeconomic stabilization of vulnerable rural households victims of forced displacement, an initiative that has allowed, among other things, to implement agricultural production units for self-consumption.
Also, in terms of food security, based on information provided by the Ministry of National Education, there is an increase in investment in the School Feeding Program (PAE) between 2020 and 2021 that would have allowed more students to access its benefits.
For its part, the Colombian Institute of Family Welfare (ICBF) has some programs to support food security. On the one hand, the Nutritional Recovery Centers (CRN) to care for children under five years of age with acute, moderate or severe malnutrition. On the other hand, the Community Care Units (UCA) for the support of pregnant women and children. In this regard, the interest in having a differential approach in these spaces is remarkable. The Office of the Special Rapporteur had the opportunity to visit a CRN in the area.
With regard to the guarantee of the right to water, it should be noted that the State has implemented various initiatives, such as "Guajira Azul", a model that includes the installation of modules, collection points, drinking water production points and public batteries, the latter being one of its main strategies. During the working visit, the team of the Office of the Special Rapporteur visited the public pile located in the Sararao community delivered in 2021.
Likewise, note is taken of the installation of water wells for agricultural use, which contributes to the maintenance and development of agricultural projects, as well as for the consumption of animals. In this context, it is worth welcoming the efforts aimed at articulation with different social services of the State and with other actors involved around the construction of batteries and the search for their sustainability.
Finally, in the area of education, the investment aimed at improving the infrastructure that serves students, specifically in the School Residences, is recognized. Likewise, the investment focused on the financing of flexible educational models is highlighted. With regard to the right to health, note is taken of the efforts of the Ministry of Health to address not only the provision of health services, but also their social determinants. Likewise, the efforts to agree on a differential health model for the Wayuu indigenous People are welcomed.
Challenges in guaranteeing ESCERs
REDESCA observes that the Colombian department of La Guajira, despite being a land full of natural and cultural wealth, faces a generalized situation of lack of access to basic human rights as a result of poverty, inequality and structural discrimination, which is aggravated by acts of corruption and lack of institutional articulation. This situation has a differentiated and disproportionate impact on the Wayuu indigenous people, as well as on Afro-Colombian people, other indigenous peoples, Afro-Wayuu people and people in situations of human mobility.
The identification of ESCER violations in the territory of La Guajira is identified by the Office of the Special Rapporteur based on three axes: themes, populations, and rights. In this framework, and as a context, it is essential to consider that the territory is predominantly indigenous (representing the Wayuu People 48% of the population of the Department) and that it has the highest rate of monetary poverty in the country (according to DANE, 67.4% in 2021).
These data are dramatically crystallized in the preventable death of the elderly, and of children due to malnutrition and associated causes, the lack of guarantee of ESCER of a large part of the population, as well as in situations of begging and street life, including childhood.
In this line, REDESCA notes that, despite the efforts, part of the state measures to address the situation of La Guajira, such measures would not be generalized or sustainable, so that some pilot projects or increase of quotas of some programs that, on the one hand, do not benefit the entire population and, on the other hand, face serious challenges to maintain themselves over time. Likewise, it is observed that, even from their design stage, the programs would not guarantee an effective level of consultation and participation of the Wayuu indigenous people and other communities to which such measures are directed.
For this reason, within the framework of the distribution of scarce resources and, in some cases, without an adequate intercultural approach that respects the traditional and legitimate authorities of the Wayuu people, inter- and intra-clan conflicts have been generated. This coupled with a complex panorama in which institutions would ignore their responsibilities to respond to the situation, which occurs, above all, due to the absence of an articulated, concerted and culturally relevant plan that responds to an updated and comprehensive census of the Wayuu People. That scenario becomes even more complex when considering the serious allegations of corruption and poor transparency, together with the lack of continuity of public policies as a result of changes in governments and the repeated renewal of local authorities (for example, 15 different governors since 2011).
While noting that the pandemic and the humanitarian crisis in Venezuela have had an impact in this context, the Office of the Special Rapporteur observes that the Department's problems are long-standing and that it has been difficult to respond adequately to it due to a lack of adequate characterization of the population, underreporting, and the rural/urban divide affecting the country. Thus, the approach to the communities would be mainly through a focus on charity and not rights, thereby bringing serious threats to the physical and cultural survival of the Wayuu indigenous people, who, according to what has been evidenced, are constantly subject to stigmatization and revictimization.
In this way, the asymmetry of power experienced by communities vis-à-vis business actors is of particular concern, together with the threats and harassment of defenders of the environment, water, territory, and those who oppose extractive projects, about which REDESCA received repeated complaints from civil society during the visit. Regarding this last point, the mandate notes that the IACHR has already warned about the frequency with which indigenous and Afro-Colombian peoples, particularly their traditional authorities, leaders, are victims of violence by armed actors or groups associated with them, and how this situation would be aggravated in some cases by the presence of mineral and hydrocarbon extractive activities. Likewise, REDESCA in its 2021 annual report indicated that the priority attention of the State would be required to issues such as the murder and criminalization of environmental defenders, on which a pattern would continue to be evidenced. The above, especially taking into account that in turn there would be a routine practice of murders and violence against those who oppose extractive industries, and not a situation of isolated events. In this context, the recent ratification of the Escazú Agreement and the emergency plan for the protection of leaders, human rights defenders and signatories of the Peace Agreement are welcomed.
Based on the field visit and the information gathered, REDESCA notes that there are serious violations of the rights to water, food, a healthy environment, health, housing, decent work, education, cultural rights, prior consultation and self-determination, and the right to care, highlighting the latter's lack of recognition of the role of women in their work.
This is reflected, among others, in the fact that between January and October 2022, 48 children had already died from malnutrition (with reports of at least six other victims between the end of the visit and the publication of this press release). This is worsened by the stigmatization that would be presented towards women who lose their children, about whom REDESCA received reports of how some mothers and families were told that "they were being left to die out of carelessness or to give pity". Consequently, there was a strong fear of mothers and communities to resort to institutionality in case of loss of minors or high risk of losing them.
Given this scenario, the Office of the Special Rapporteur, in turn, observes with special concern that these violations of ESCERs would be intrinsically related to the role of business actors, in which not only civil society organizations and communities pointed to the actions of the company Carbones del Cerrejón Limited for its impacts on health, water, environment and rights to information and participation, but also to wind power companies that, within the framework of their activities, would not be acting with due diligence as they replicate the way extractive companies act in the territory.
Faced with the aforementioned approach, REDESCA closely follows the fact that business actors concentrate both the use of resources and natural assets, as well as critical infrastructure, without the revenues of their economic activities being reflected in a benefit for the communities. For this reason, it is difficult to think about giving a leading role to business actors in some solutions to this serious human rights situation without first guaranteeing an effective reparation process and the adequate participation of communities. This, without neglecting to emphasize that it is in the State that falls the main obligation to guarantee the ESCER of this population in the field of business activities.
The lack of guarantee of the human right to water impedes the enjoyment of other ESCERs
In relation to these rights, the Office of the Special Rapporteur preliminarily observes that the lack of guarantee of the right to water generates a vicious circle of deprivation of ESCER, since it is a vital resource to ensure the lives of communities and the environment. This occurs in a context of serious impact on soils and bodies of water, from business activities and in which the impacts of climate change are increasingly evident, reflected in heavy rains or droughts, as well as in the substantial decrease in the food traditionally consumed by communities. Faced with this, it is noted that in its 2020 annual report, the Office of the Special Rapporteur had already warned about the lack of guarantee of the right to water in the department, with a special emphasis on rural areas.
Along these lines, despite the fact that one of the Government's main strategies to guarantee the right to water is through the installation of public batteries of the Guajira Azul program, the Office of the Special Rapporteur notes that, according to information provided by official authorities, the communities themselves and civil society organizations, these are insufficient to guarantee the right to drinking water due to their low coverage and problems in their sustainability, which results in a low availability of water for people and challenges for its continuity once they are delivered as a result of lack of maintenance. Thus, although 24 public batteries are planned within the program by 2022, to date there would only be five built and four in operation.
On the other hand, since the basic and social determinants of health are not being effectively addressed (such as water, food and poverty), the risk of violation of the right to health is very high, being aggravated by the fact that the approach is not preventive and the health facilities, goods and services would not be accessible or sufficiently equipped to adequately serve the entire population, in addition to lacking an intercultural approach. As an example, the lack of prenatal check-ups, incomplete vaccination schedules, among others, is denounced.
Along these lines, there are also reports of asthma and respiratory effects on workers, children and adolescents, and communities, as a result of extractive activities, particularly the continuous dispersion of particulate matter and coal dust. In view of this, the communities repeatedly maintained that they do not receive adequate medical care and that the privatization of the health service would generate, in some cases, greater obstacles to the guarantee of their right in the face of bureaucratic obstacles that prevent them from quickly accessing the services they require.
In this regard, REDESCA visited El Pájaro Health Center and evidenced that it was closed in the middle of the afternoon. Once opened for the visit, the facilities were obviously precarious and there were no medicines to deal with malnutrition, despite the fact that this is one of the most complex problems in the territory. It should be noted that, according to the information collected, infant mortality from causes associated with malnutrition in the Department is seven times higher than the national average and that malnutrition is three times higher than the national average.
With this in mind, it is of particular concern that nutrition assistance programmes do not have universal coverage and that, according to various testimonies, they do not have sufficient nutritional requirements, cultural relevance, regularity and supervision. It should be noted that these complaints occurred in a generalized way against various programs and initiatives, including the PAE, the UCA and the CRN.
Given that some of the initiatives mentioned are linked to educational programs, attention is drawn to the complaints about lack of teacher recruitment, coverage and quality of the PAE, availability of school transport, as well as deficiencies in the infrastructure of the educational centers that the Office of the Special Rapporteur was able to visit. Similarly, it is noted that although the programmes would partially contribute to the food security of those who are beneficiaries, during recess or vacations, children would be left in a situation of vulnerability because they do not receive the nutritional components provided by these programmes, so that upon their return to school in some cases they could arrive in a state of malnutrition.
In the context of business activities, the Office of the Special Rapporteur observes that there are serious challenges to respecting and guaranteeing inter-American standards on business and human rights, both in the case of industries in the fossil fuel sector (coal, oil, and gas) and in those that operate in terms of so-called clean energy. Thus, testimonies were received denouncing the displacement of communities by the projects of these companies, as well as the lack of guarantee of their rights to information, participation, as well as the protection of their right to land, territories and natural resources. In this regard, the Office of the Special Rapporteur calls for the urgent application of inter-American standards on the subject.
From its visit, REDESCA takes special note of the complaints of displacement by the El Rocío Community and the impact of the activities on water sources -particularly in the Arroyo Bruno-; the application of the proportionality test established in Presidential Directives 10 of 2013 and 08 of 2020 for the community of the corregimiento of Cañaverales in the framework of the Best Coal Company mining project (to the detriment of their right to free, prior and informed consultation, despite the fact that this decision was recently overturned by a Riohacha court); and the displacement of several communities due to the construction of 65 wind energy parks in La Guajira. It should be noted that the use of clean energy would be especially challenging considering that there would be various legal loopholes through which it is denounced that territories would be granted in perpetuity and without respecting the rights to collective property, consultation and prior, free and informed consent of various indigenous peoples.
Finally, with regard to labour rights, despite the fact that their protection and guarantee are an effective channel for securing the livelihoods of the population and thereby addressing the vicious circle of poverty, it has been reported that there is discrimination in access to work by the Wayuu indigenous people. In addition, the Office of the Special Rapporteur observed that there would be no support for the productive enterprises of the communities, which is detrimental to their ancestral and cultural knowledge, in addition to facilitating their exploitation and affecting their ability to implement their own development priorities and initiatives. Given this scenario, REDESCA emphasizes that guaranteeing the right to work for the Wayuu indigenous people is instrumental in addressing their situation of food insecurity.
Preliminary conclusions and recommendations
Given the serious violation of human rights, and particularly of the ESCER, evidenced in the working visit of the Office of the Special Rapporteur to the Department of La Guajira, REDESCA considers that the situation does not admit waiting and urgent and immediate measures are required for the protection of the communities making use of the maximum available resources, ensuring compliance with the State's obligations regarding non-discrimination and the progressive development of ESCER, with particular emphasis on the protection of the Wayuu Indigenous People and other groups in vulnerable situations. The foregoing must be implemented from a human rights and gender equality perspective, based on a differentiated, intersectional and culturally appropriate approach that, in accordance with international and inter-American standards on the subject, ensures the protection and guarantee of the rights to water, food, a healthy environment, health, housing, decent work, education, cultural rights, collective property, prior consultation and self-determination, and the right to care for all people living in La Guajira.
To this end, it is essential a comprehensive approach to the territory that understands that the measures should be directed to La Guajira as a Department affected by similar problems throughout its territory, as well as to the Wayuu People as a whole. For this, it is required that the State respect and dialogue with the legitimate and traditional authorities of the Wayuu indigenous people, without generating controversies by recognizing authorities alien to their own customs.
In the same sense, given the leading role that business actors have played in the violations of ESCR in the territory, the effective application of the Inter-American standards and recommendations on business and human rights contained in the report Business and Human Rights: Inter-American Standards is required. These are especially relevant in the framework of extractive industries, companies dedicated to clean energy, companies providing health services and all business actors involved in the provision of public services in the Department. It should be noted that any activity that is assigned, coordinated or outsourced to public or private companies within the framework of an "Unconstitutional State of Affairs" such as that decreed by the Colombian Constitutional Court, requires reinforced information, participation, consultation and cooperation with the communities involved, as well as expeditious processes of reparation and justice in the corresponding cases.
It is noteworthy that, as a baseline, a genuine and participatory dialogue with the legitimate authorities of the Wayúu Indigenous People is required, as well as an adequate characterization of the communities and their needs. This must go hand in hand with a comprehensive, consensual and articulated plan that allows progress in the guarantee of human rights and, especially ESCER, for the population of La Guajira, with special attention to the Wayuu people, Afro-Colombian people, other indigenous peoples, Afro-Wayuu people and people in situations of human mobility.
All the actions mentioned above must be framed within the respect and guarantee of the rights of access to participation, information and justice for communities, as well as respect for their right to self-determination, within which it is crucial to recognize the notion of development built from their worldview. Likewise, it is necessary to adopt effective and immediate measures for the protection and non-criminalization of environmental defenders and those who oppose extractive projects.
REDESCA emphasizes that, if these measures are not adopted immediately, their physical and cultural survival will continue to be put at risk, in addition to increasing the preventable deaths of the elderly and children of the Wayuu Indigenous People. Without detriment to this, the Office of the Special Rapporteur welcomes the willingness of the National Government to address this situation, as well as the expectation of dialogue that the communities have to build consensual solutions that address the ECI experienced in the Department. To this end, the Office of the Special Rapporteur is at the disposal of the National Government and all State institutions, such as civil society and authorities of the Wayuu Indigenous people, to support the efforts, dialogues, and measures being taken in this area, including, in particular, the follow-up actions being carried out by the Constitutional Court through its ruling T-302/17.
Finally, given that addressing this situation requires sustainable and substantial financing of the various initiatives, an urgent call is made to investigate and punish all acts of corruption, together with the adoption of a fair and transparent fiscal policy based on responsible planning that allows the sustainability of the initiatives and programs that are implemented. Only in this way, the economic growth and benefits generated in the region will truly serve the people and contribute to the adequate protection of their communities and the environment.
In view of the situation evidenced by REDESCA following its working visit to La Guajira, the Office of the Special Rapporteur recommends that the State of Colombia:
On the other hand, the SRESCER recommends that companies and international financial institutions with operations in La Guajira: