COMISIÓN COLOMBIANA DE JURISTAS Organización no gubernamental con estatus consultivo ante la ONU

Filial de la Comisión Andina de Juristas (Lima) y de la Comisión Internacional de Juristas (Ginebra).

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___________________________________________________________________ Personería jurídica: resolución 1060, Agosto de 1988, Alcaldía Mayor de Bogotá

Calle 72 No. 12- 65 Piso 7 Tel: (571) 3768200 - 3434710 Fax: (571) 3768230

E-mail: ccj@col.net.co Apartado Aéreo 58533 Bogotá, Colombia

Bulletin No. 3: Series on economic, social, and cultural rights

The United Nations Committee on Economic, Social, and Cultural Rights

requested further information from the Colombian state in view of the

examination of the official report in May 2010

On June 10, 2009, the Committee on Economic, Social and Cultural Rights

(CESCR) issued its list of questions regarding the most worrisome issues related

to ESC rights after holding preliminary sessions this past May on the Colombian

State’s fifth report on the implementation of the Covenant.

The preliminary sessions of the CESCR on the situation in Colombia

On May 25 through 29, 2009, the CESCR Work Group met in Geneva

(Switzerland) to examine, in preliminary meetings, the fifth report of the Republic of

Colombia on the implementation of the International Covenant on Economic,

Social, and Cultural Rights (ICESCR).1 This working group, made up of five

members of the Committee, set out to carry out as its principal task a preliminary

review of the Colombian state’s report, as well as of the information that had been

provided to the Committee by other sources (including human rights

organizations). 2.

1 Report presented before the Secretary of the Committee on January 22, 2008. Fifth report by the

Republic of Colombia to the Committee on Economic, Social, and Cultural Rights, doc. E./C.12/COL/5. 2 In the preliminary sessions, the Working Group addresses the situation of ESC rights in five

countries, so that each one ot the members of the group fulfills the role of rapporteur of a country. This rapporteur prepares a draft list of questions that is discussed and approved by the Working Group. During the subsequent consideration of the official report on the part of the plenary session of the Committee, that same rapporteur is charged with drafting a document with final observations based on the official report and the dialogue between the State party and the Committee. Committee on Economic, Social and Cultural Rights (CESCR), NGO participation in the activities of the Committee on Economic, Social and Cultural Rights, doc. E/C.12/2000/6, July 7, 2000, Par. 14 and 15.

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Both before and during the preliminary sessions, various civil society organizations

(among them the organizations that make up the Colombian Platform on Human

Rights, Democracy, and Development, Global Initiative, FIAN International, and the

Norwegian Council on Refugees) provided information to the Committee regarding

the level of respect, protection, and guarantee of ESC rights in the country. In the

case of the Platform, it sent the Committee the executive summary of the Third

Alternative Report by Colombian civil society to the CESCR (which is in the

process of being reviewed and edited) and a proposed list of questions regarding

the most worrying aspects of the social rights situation in Colombia. In addition to

the remittal of information, a delegation of the Platform and of other organizations

that monitor the human rights situation in Colombia was present and had the

opportunity to engage in conversations with the members of the Working Group on

May 25.

2. The CESCR’s list of questions on the situation in Colombia

As a result of the preliminary sessions of May 2009, the CESCR issued a list of

questions on the implementation of the Covenant in Colombia.3 Among the

questions related to the general framework of application of the Covenant, the

CESCR requested, in the first place, information on the work of the Public

Defender’s Office (Defensoría del Pueblo), as well as on the Defensoría’s

participation and that of civil society organizations in the preparation of the fifth

report by the Colombian state to the Committee.

Likewise, the CESCR asked the State: 1) to provide information regarding the

“repercussions” on ESC rights of the free-trade agreements it has entered into; 2)

to describe the State policy regarding the “conversion” of the territories of the

3 Committee on Economic, Social, and Cultural Rights, Lista de cuestiones que deben abordarse en

relación con el examen del quinto informe periódico de Colombia relativo a los artículos 1 a 15 del Pacto Internacional de Derechos Económicos, Sociales y Culturales, doc. E/C.12/COL/Q/5, June 10, 2009.

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indigenous peoples into investment areas or economic areas; 3) to specify if ESC

rights have been included in the “current process of transitional justice.”

On the other hand, among the questions regarding the general provisions of the

Covenant (Articles 1 to 5), the CESCR requested information on the measures

adopted to “watch that the indigenous communities participate in the adoption of

decisions that affect them, particularly by consulting them and obtaining their free

consent before carrying out projects that exploit the forests, the soil and the

subsoil, and their relation to any public policy; it urged the State to specify if the

regulations against discrimination (particularly those related to Afro-Colombians,

indigenous peoples, and displaced persons) have been “effective” and requested

further information regarding the concrete measures that have been adopted to

increase the representation of women in “high public office in the administration” to

ensure the equality of women in terms of income, employment, health care, and

education, as well as to comply with Judicial Decree 092 de 2008, in which the

Constitutional Court ruled that specific programs be implemented for the protection

of displaced women “against the risks of violence and sexual and economic

exploitation.”

Lastly, among the questions relative to specific provisions of the Covenant (Articles

6 to 15), the CESCR urged the State to send more information regarding the level

of realization of the rights recognized therein.

Thus, with regard to the right to work, the CESCR requested, among other things,

specifications on the growth of the informal (or “submerged”) economy and on

programs adopted to ensure that those persons who are informally employed have

access to basic services and social security.

With respect to union freedom, the Committee exhorted the State to provide

information regarding restrictions to the creation of unions and the right to strike, as

well as regarding “institutional arrangements relative to collective bargaining.”

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With regard to protection of the family and children, the CESCR requested

precisions on measures adopted to fight child labor and human trafficking, as well

as to “address the issue of street children.” In this respect, the Committee also

requested further information on the “persistence of the effects of the armed

conflict, particularly on women and children who have been the victims of

excessive physical, sexual and/or psychological violence used as war strategy.”

Concerning the right to housing, the CESCR urged the State to send more detailed

information on the situation of the internally displaced population; on measures

implemented to “carry out a true agrarian reform;” regarding access by the

population to clean water and basic sanitation; on the number of homeless persons

and of those who live in inadequate housing; as well as on measures adopted to

prevent forced evictions. Furthermore, the Committee requested further

explanations regarding the degree of attention given to “the situation of the least

favored groups in the national housing strategy, in particular indigenous and Afro-

Colombian population groups.”

With respect to the right to health, the Committee requested details on progress on

universal access to basic health care by persons of levels 1, 2 and 3 of the

SISBEN system, as well as on the results of “the measures adopted by the State

with regard to sexual and reproductive health.”

Regarding the right to education, the Committee demanded information on, among

other aspects, the application of the constitutional guarantee of a free and

compulsory education; on measures adopted to lower school drop-out rates; and

regarding the protection of school premises against occupation by armed groups.

With respect to education, the Committee concludes by asking “what measures the

State party is planning to take to formulate a true national educational strategy for

children in Colombia.”

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Lastly, regarding cultural Rights, the Committee requested more details on the

measures adopted to promote participation and access by the population to

cultural life, as well as “to protect cultural diversity, improve public knowledge of the

cultural heritage of the ethnic and linguistic minorities, as well as of indigenous

communities, and to create favorable conditions so these groups can preserve,

promote, express, and disseminate their identity, their history, their culture, their

language, and their customs.”

3. Discussion of the official report before the CESCR in May 2010

With respect to the above-mentioned issues, the Colombian state will need to

respond in writing to the Committee well enough in advance to the date of

examination of the official report by the plenary session of CESCR, initially

foreseen to be held in its May 2010 sessions.

The Colombian Commission of Jurists calls on the State to give a full and prompt

response to the questions that have been formulated by the CESCR with regard to

the situation of economic, social, and cultural Rights in Colombia. Likewise, with

the intention of strengthening the debate before the Committee, the CCJ invites the

State to take into consideration in its responses not only the issues highlighted by

the Committee in its list of questions, but also to present full and adequate

responses on the aspects about which civil society organizations expressed their

concern in the documents sent to the CESCR on the occasion of its preparatory

sessions.4 Among other aspects, the Colombian State should provide responses

to ongoing concerns regarding issues such as:

- The absence of public policies for an effective guarantee of ESC rights of

members of the LGBT community, in conditions of equality and

comprehensiveness.

4 These reports are available on the webpage of the preliminary sessions of the CESCR, at:

http://www2.ohchr.org/english/bodies/cescr/cescrwg42.htm.

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- The situation of the right to adequate nourishment and the food insecurity

that affects more than 40% of homes in Colombia, according to figures of

the Colombian Institute of Family Welfare.5

- The flaws in regulation and surveillance of the health-care system and the

existence of four general patterns of violations of the right to health,

situations highlighted by the Constitutional Court in its Sentence T-760 of

2008.

- The widespread use of the cooperatives for associated labor (cooperativas

de trabajo asociado, CTA, in Spanish) and commercial and civil hiring

modalities to conceal labor relations with precarious labor rights.

- The persistent use of anti-union violence and impunity in sanctioning the

crimes committed against the life, integrity and freedom of unionized

workers.

For the CCJ, the questions raised by the Committee and the concerns expressed

by social and human rights organizations account for the persistent violation of

economic, social, and cultural rights in Colombia, and for the repeated lack of

compliance with the State’s obligations to respect, protect, and guarantee these

human rights. The Colombian State must, therefore, adequately answer the

questions formulated by the Committee, prepare to carry out fully all the

recommendations issued by the Committee after its sessions in May of 2010, and

begin from now on to implement the necessary reforms to improve the situation of

social rights for the whole of the Colombian population.

Bogotá, September 1, 2009

For further information, please contact: Felipe Galvis Castro, Researcher in economic, social,

and cultural rights, DESC, CCJ (Tel. 571-376 8200, ext. 129),

5 Colombian Institute for Family Welfare (ICBF for its acronym in Spanish), Encuesta Nacional de la

Situación Nutricional de Colombia ENSIN 2005, ICBF, Bogotá, 2007. In that regard, see Colombian Platform for Human Rights, Democracy, and Development, Así van los DHESC, Bogotá, 2008, pgs. 9 to 17.