Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

A. Communication of the Workers’ Trade Union Confederation

1. The Committee notes the comments of the Workers’ Trade Union Confederation (USO) on the application of the Convention, which were received on 31 August and transmitted to the Government on 7 September 2005. The Committee notes that the Government’s observations on these comments have not yet been received. The USO indicates that the communication has the agreement and support of the representatives of the community councils of the Curbaradó and Jiguamiandó and that it was prepared jointly with the Inter-denominational Justice and Peace Commission, the Colombian Commission of Jurists and the José Alvear Restrepo Collective Corporation of Lawyers. Two additional CD-ROMs were subsequently received which, due to their late arrival, are not examined in the present observation, but have been forwarded to the Government for its consideration.

2. Article 1 of the Convention. Individual scope of application. The first part of the communication refers to discrimination against persons of African extraction, whose illiteracy rate is three times higher than that of the rest of the country, among whom the child mortality rate is 151 per thousand compared with a national average of 39 per thousand, and 76 per cent of whom live in conditions of extreme poverty. According to the communication, communities of African extraction in Colombia account for 26.83 per cent of the total population. However, most of the communication is related to two communities of African extraction, namely the Curbaradó and Jiguamiandó in the municipality of Carmen del Darién, Department of Chocó, in relation to their forced displacement and the extensive cultivation of the African palm in violation of their rights to the land and without prior consultation. The communication adds that the Curbaradó and Jiguamiandó communities fulfil the criteria for a tribal people set forth in the Convention, are composed of 2,125 persons and 515 families, a majority of whom are of African extraction, and that they have used their land in accordance with their ancestral and traditional practices. The communication indicates that Act No. 70, of 1993, provides in section 2(5) that "the black community consists of the combined families of Afro-Colombian extraction who have their own culture, a common history and their own traditions and customs in the context of the relation between occupied and rural areas, who demonstrate and maintain awareness of identity which distinguishes them from other ethnic groups". Reference is also made to the case law of the Constitutional Court (Ruling T-955, M.P.: Alvaro Tafur Galvis, 17 October 2003). In that ruling, the constitutional court found that the right of black communities to their collective lands "is based on the Political Charter and ILO Convention No. 169, without prejudice to the delimitation of their lands referred to in Act No. 70 (...), the concerned right to collective ownership includes and has always included the faculty of black communities to use, enjoy and dispose of the renewable natural resources existing on their lands in accordance with the criteria of sustainability (...). That is, since 1967, by virtue of Act No. 31, the right to collective ownership of the lands which they and their ancestors have occupied is recognized for national black communities, as tribal peoples". The USO also notes that fundamental aspects of the Convention are developed in the law, with for example consultation being regulated by Act No. 70, while Decree No. 1320, of 1998, regulates consultations with indigenous communities and those of African extraction.

3. The Committee recalls that, in its first report on the Convention, the Government indicated that "the Afro-American communities of Colombia are not understood as being included within the scope of the Convention since, although sections of this population, the coastal communities on the Pacific coast, and certain populations with similar characteristics in the interfluvial valleys have been considered as ethnic groups, according to the new Constitution of Colombia, these groups are not understood by the Colombian Government as being included in the category of indigenous or tribal peoples".

4. The Committee considers that, in the light of the information provided, the black communities of Curbaradó and Jiguamiandó appear to fulfil the requirements set out in Article 1, paragraph 1(a), of the Convention, in accordance with which it applies to: "tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations". Furthermore, paragraph 2 of this Article provides that "self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply". According to the information provided in the communication indicating that the representatives of the community councils of Curbaradó and Jiguamiandó participated in the preparation of the communication, it would appear that, in seeking the application of the Convention to their communities, they identify themselves as being tribal. Furthermore, the definition of "black community", as set out in Act No. 70, appears to coincide with the definition of tribal peoples in the Convention. The Committee requests the Government and the USO to confirm whether these communities identify themselves as tribal communities within the meaning of Article 1, paragraph 1(a), of the Convention. It also requests the Government to provide information on the percentage of persons of African extraction who fulfil the requirements of Article 1, paragraph 1(a), of the Convention. It further requests the Government, if it considers that these communities do not constitute tribal peoples within the meaning of the Convention, to indicate its reasons.

The Curbaradó and Jiguamiandó communities

5. The USO indicates that the members of these communities have been victims of systematic attacks against their life, freedom and integrity and of forced displacement. It states that, due to the crimes which, according to the communication, were committed for the most part by members of the public forces, or by military groups acting with their negligence, tolerance or acquiescence, and in certain cases by guerrilla groups, in August 2002, the 23 community councils of these peoples decided to declare themselves "Humanitarian Safety Zones".

6. Lands and natural resources. The USO further indicates that since 2001 the perpetration of human rights violations against these communities has been related to the advance of the extensive cultivation of oil-bearing palms and African palms and stock-raising projects, which have been undertaken despite the existence of collective title to these lands. The USO adds that "the dispossession of the lands of these communities has also been achieved through unlawful legal acts by palm-growing enterprises by means, among others, of the conclusion of contracts in violation of Act No. 70, fraudulent misrepresentation, deceit, the drawing up of legal acts which purportedly give the approval of these communities, the misrepresentation of the functions of duly recognized and registered representatives of the communities, agreements for the establishment of agricultural exploitations facilitated by public officials who are members of the armed forces, coercion and direct threats against the occupants, who are frequently compelled to sell their property through fear or the absence of any other beneficial option". In the communication of USO, examples are provided of death threats in March, April and June 2005 against members of these communities who had not yet left their lands with a view to forcing them to sell or abandon them. It concludes that the impact of intensive deforestation for the cultivation of African palms and stock-raising has given rise to devastating social and environmental harm.

7. Consultations. The USO refers to Decree No. 1745, issued under the third chapter of Act No. 70, which defines and determines the functions of the councils of communities of African extraction, and provides that community councils "are the highest internal administrative authority in the lands of black communities". It indicates that these authorities were not consulted, but that meetings were held with persons not authorized to represent the communities, and cites examples.

8. Action at the national level. The communication reports various activities at the national level. It indicates that in November 2004 the Colombian Rural Development Institute (INCODER) estimated that 4,993 ha. of the collective lands of the Curbaradó and Jiguamiandó had been taken over for the cultivation of palms and 810 ha. for stock-raising. Some 93 per cent of the land used for the cultivation of palms is within their collective lands, with the remaining 7 per cent consisting of private property adjudicated by the INCORA before the entry into force of Act No. 70. It refers, among others, to Instruction No. 008, of 21 April 2005, in which the Public Prosecutor required the Codechocó Corporation, the body entrusted with monitoring the Environmental Act, and INCODER to "submit within 15 days a report on the action taken up to the present to guarantee effectively the protection of the traditional rights of these communities and persons and a plan of action to be undertaken for this purpose". It also refers to resolution No. 30 of the Office of the Ombudsperson, of 2 June 2005, entitled "violation of human rights through the cultivation of the African palm in the collective lands of the Curbaradó and Jiguamiandó", inter alia, requiring enterprises engaged in the cultivation of palms to suspend with immediate effect the extension of the cultivation of African palms, request the return of the indigenous collective lands and resguardos that are affected by the cultivation of oil-bearing palms and those intended for stock-raising and the exploitation of wood and urging specific public bodies to refrain from granting environmental permits, authorizations and licences relating to the collective lands of the Curbaradó and Jiguamiandó black communities and indigenous resguardos without full compliance with the requirements relating to the environment and lands.

9. The Committee refers to the comments contained in paragraph 4 above, according to which the communities referred to appear to fulfil the requirements to be covered by the Convention. Subject to any comments that the Government may make, the Committee notes that if it is confirmed that these communities are covered by the Convention, it is necessary to give effect to Articles 6, 7 and 15 respecting consultations and natural resources and Articles 13 to 19 with regard to lands. In particular, the Committee refers to the right of these peoples to return to their traditional lands as soon as the grounds for relocation and transfer cease to exist (Article 16, paragraph 3, of the Convention) and the measures envisaged by the Government against any unauthorized intrusion in the lands of the peoples concerned or any unauthorized use by persons alien to them (Article 18 of the Convention). Noting that the communication refers on various occasions to threats, coercion and a climate of terror, as well as the lack of penalties against those responsible for violations of the right to life, integrity and freedom which gave rise to the forced displacement, the Committee also requests the Government to make all the necessary efforts to protect the life and integrity of the members of these communities. The Committee would be grateful if the Government, in addition to its comments on the communication, would provide information on the measures adopted to follow up the resolution of the Office of the Ombudsperson and Instruction No. 008 of the Public Prosecutor’s Office. The Committee will continue to examine the communication together with the Government’s comments.

B. The Government’s request for technical assistance

10. The Committee notes with interest that the Government has requested the Office’s technical assistance to facilitate consultations with the U’wa people in the context of the recommendations made by a tripartite committee in its report on a representation which was adopted by the Governing Body at its 212th Session (November 2001). The Committee notes that this request will be confirmed in the near future and that the Office has indicated its readiness to contribute to improving the implementation of the recommendations of the supervisory bodies. The Committee awaits further information on the commencement and implementation of this assistance.

[The Government is asked to reply in detail to the present comment in 2006.]