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The Constitutional Court of Colombia rules in favor of the right to health and information

On March 15, 2018, the Constitutional Court of Colombia rejected the challenge presented by the Superintendence of Industry and Commerce, and ratified its initial ruling. There he had pronounced in favor of the right of consumers and consumers to access information on the health effects of consuming sugary drinks.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

In August 2017, the Constitutional Court of Colombia had ruled in favor of the protection promoted by the Colombian Association of Consumer Education (EDUCAR Consumers) and by Dejusticia, granting the fundamental rights promoted in it.

This process occurred in the context of the launch of a campaign by Educar Consumidores in August 2016: called “Take care of your life – Take it seriously” that sought to provide information on the harmful health consequences of regular consumption of certain sugary drinks . The campaign spread a commercial on television and radio that showed the high sugar content of these beverages, linking their consumption with problems such as diabetes or obesity, present both in Colombia and throughout the Latin American region.

Postobón SA, a sweetened beverages company in Colombia, denounced that commercial before the Superintendence of Industry and Commerce (SIC), which by means of a resolution ordered Educating Consumers to stop disseminating it, alleging that it was “misleading advertising” by not have scientific or medical support for their assertions. Also, it ruled that it was sent, before its publication, any advertising piece that in the future would like to transmit about the consumption of sugary drinks (BBAA) in any media, including social networks. This restriction was established by the SIC with the objective of exercising prior control and this being the one that authorizes or not its subsequent dissemination, under penalty of fine.

Faced with this, Educar Consumidores decided to file a lawsuit claiming for the violation of their right to freedom of expression in a matter of public interest. At the same time that Dejusticia, also, filed a complementary legal action stating that the resolution of the SIC violated the right of consumers to access relevant information that would allow them to make informed consumption decisions. After different instances and a very good decision of the Supreme Court of Colombia (already commented by FUNDEPS), both cases were accumulated by the Constitutional Court.

We recall briefly that it was before an instance that FUNDEPS together with FIC Argentina, presented an amicus curiae (see note) whose grounds sought to prove that the measures adopted by the SIC resolution meant a violation of human rights obligations at different levels. On the one hand, it violated the freedom of expression of an organization of civil society, even being a clear prior censorship and, on the other, it mattered a serious breach of recommendations of human rights organizations on how to guarantee the right to health and food, and how to deal with the global epidemic of obesity and malnutrition.

Regarding the decision of the Colombian Constitutional Court, in its judgment T-543/17, it was clearly established that “the messages transmitted by Educar Consumidores -which is a non-profit organization and that does not promote any product- are framed in a public health campaign that, beyond influencing a consumer decision, sought to warn of the health risks of excessive consumption of sugary drinks.”

Likewise, he argued that freedom of information (as a component of freedom of expression) in accordance with Article 13 of the American Convention on Human Rights, “includes the freedom to seek and access information, the freedom to inform and, the freedom and the right to receive truthful and impartial information about facts, ideas and opinions of any kind through any means of expression“. Similarly, said that although freedom of information is not an absolute right, any limitation is presumed suspicious, so it must be subject to a strict constitutionality, as required by the case in particular. This is because the right to inform and the right of consumers to receive information, fulfill several essential functions in the ordering, “(i) first, it guarantees the right of consumers to the relevant information on food products that consume, giving meaning to the essential core of their right to information. (ii) Secondly, it enables consumers to freely choose the food products they wish to consume, according to their own life orientation, thus respecting the essential core of the right to choose, which is the responsibility of the consumer and which is linked clearly to the expression of their free development of personality. Third, (iii) it guarantees health protection and prevention, by admitting the presumed or eventual risks linked with aspects of the development of these products that are unknown to society up to now, based on the precautionary principle. [and] (iv) fulfills an instrumental function, by facilitating the monitoring of these products by the corresponding authorities“.

In view of the above, the Court ruled that the SIC violated the fundamental right to freedom of expression of the plaintiffs by submitting the transmission of information on the consumption of BBAA to a prior control over its contents and ordered it, for the term of three months, publish on your home page of your website, a link with access to the aforementioned order with a statement that synthesizes the content of it.

However, the SIC against such resolution decided to file a judicial appeal (nullity action) in order to render the judgment issued by the Court ineffective. FUNDEPS participated on this occasion in the presentation of a collective amicus together with other NGOs of the region. The challenge was resolved on March 15 and confirmed what the Supreme Court of Justice and the Ninth Chamber of the Constitutional Court had upheld. in the initial ruling, with the same arguments: consumers and consumers have the right to know what is the impact that the consumption of sugary drinks and any other product have on our health and that a public health campaign like the one questioned constitutes a message from Informative type that can not be censored.

We celebrate the ruling issued by the Constitutional Court and we believe that decisions such as these are relevant for Colombia and for all of Latin America. The growth of obesity (especially strong impact on children and adolescents) and the strong presence of advertising strategies in the food industry are repeated throughout the region. This situation demands from the State a particularly active role through public policies that, among other things, facilitate access to relevant information on consumer decisions. In turn, we emphasize that the sentence matters and contributes to the generation of valuable and positive jurisprudential precedents in favor of the human right to health and adequate food, allowing voices not driven by economic interests to be respected and heard. We continue accompanying and, proclaiming due recognition and adequate protection of the right to health and food.

Author

Maga Merlo Vijarra

More information

Contact

Agustina Mozzoni – agustinamozzoni@fundeps.org

Juan Carballo – juanmcarballo@fundeps.org

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The Regional Agreement on Principle 10 is binding

On March 4, representatives of 24 countries of Latin America and the Caribbean meeting in San Jose, Costa Rica, adopted the first binding regional agreement to protect the rights of access to information, public participation and access to justice in environmental issues The agreement adopted the character of binding, becoming an unprecedented legal instrument for the region. It was approved without reservation of the States and will require 11 ratifications for its entry into force.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

At the end of the Ninth Meeting of the Negotiating Committee of the Regional Agreement on Principle 10, government delegates, together with representatives of the public and experts from international organizations, agreed on the final text of the agreement. This text was negotiated since 2014, and it also enshrined the protection of human rights defenders in environmental matters.

A little history…

In June 2012, in the framework of the United Nations Conference on Sustainable Development, Rio + 20, ten countries signed the Declaration on the application of Principle 10 of the Rio Declaration on Environment and Development in Latin America and the Caribbean (the Declaration). This, recognized that the rights of access to information, participation and justice in environmental matters are essential for the promotion of sustainable development, democracy and a healthy environment. In addition, the Declaration committed signatories to explore the viability of a regional instrument to ensure the full implementation of access rights.

After two years of work, in November 2014 the signatory countries decided to start negotiating a Regional Agreement. A Negotiation Committee was created, which was formed by the signatory countries.

What is principle 10?

Principle 10 of the Rio Declaration seeks to ensure that everyone has access to information, participates in decision-making and accesses justice in environmental matters. This, in order to guarantee the right to a healthy and sustainable environment for present and future generations. The Declaration of Principle 10 is a major step forward in the region for stronger environmental governance.

Negotiations for the Agreement

The purpose of the negotiations for the Agreement was to deepen Latin American democracies, social cohesion, generate confidence in the decisions adopted, eliminate asymmetries and prevent socio-environmental conflicts. The aspiration of this treaty was to achieve a redefinition in the traditional relations of the State, the market and societies. It also sought to contribute to the implementation of the 2030 Agenda for Sustainable Development.

In 2015, with the first meeting of the Negotiating Committee for the Agreement, and after eight subsequent meetings; the representatives of the nations of Latin America managed to conclude the definitive text of the treaty that will adopt a binding character. The process of hard government work and civil society organizations, resulted in an instrument that improves the standards of access to information, participation and access to justice in environmental matters. The fact that it is binding speaks of a new level of commitment assumed by the governments of the region and guarantees the protection of environmental defenders.

Along the way to reach the Regional Agreement, civil society played a very important role in terms of recommendations for the final text. It was before the eighth meeting (held at the end of 2017), when the civil society organizations expressed their concern about the progress of the negotiations and demanded from the governments a greater commitment to effectively guarantee the rights under discussion. The security situation for environmental defenders became a turning point to demand that the agreement be transformed into a legally binding instrument capable of reversing this situation.

The ninth and last meeting…

As mentioned, the Ninth Meeting for the Negotiation of the Regional Agreement was the last and resulted in the adoption of a final text and in the realization of a binding instrument. In that sense, it became a tool at the regional level that will serve for the protection of environmental defenders and their rights. This is extremely important since one of the main causes of socio-environmental conflicts in Latin America and the Caribbean is the lack of environmental information. Likewise, one of the main consequences of these conflicts is violence, persecution and assassination of environmental defenders. This Agreement then comes to fulfill the first mandate of the negotiations: “Prevent socio-environmental conflicts”.

Other important elements to be included in the Agreement were highlighted before this meeting. One of them was to strengthen the definitions that were still pending such as rights of access, authority and fundamentally that of environmental defenders. Another necessary issue was to define what includes access to environmental information (included in article 2, Inc. c). It is important that the instrument include a broad definition with a list of elements that constitute this type of information (enshrined in Article 6 of the final text). Similarly, with the definition of people and / or groups in vulnerable situations (enshrined in Article 2, Inc. e of the final text). Finally, another relevant point was to include the participation of the public in the structure of what the implementation of the Agreement will be like the Conference of the Parties and the Facilitation and Follow-up Committee. This last element was reflected in article 15, urging the Conference of Parties to define the modalities of public participation (however, public participation is not included as the structure of the Conference). The text of the treaty states that the Agreement will be open for signature by all the countries of Latin America and the Caribbean at the United Nations Headquarters in New York from September 27, 2018 to September 26, 2020. Likewise, It will be subject to ratification, acceptance or approval by the States that have signed it. The ratification of 11 nations will be needed for its entry into force.

The result of the negotiations will allow countries to commit themselves to implement this agreement in their respective territories in a concrete manner. With an agreement without the binding nature that obliges States to implement this Agreement, the rights of access to information, participation and justice would not be assured with certainty.

We celebrate the evolution of this process, highlighting the importance of this agreement to achieve better and more solid democracies. Likewise, we consider that a large part of the environmental problems of the region (related to extractive industries and large infrastructure projects) may find a solution after the implementation of this Regional Agreement.

Más información

Authors

Agustina Palencia

Contact

María Pérez Alsina – mariaperezalsina@fundeps.org

Agustina Palencia – agustinapalencia@fundeps.org

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The legalization of abortion is a matter of equality, health and human rights

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

We support and accompany the process that promotes the legalization of abortion. In this article we present our institutional positioning document and the reasons why we understand that guaranteeing safe and free legal access to the interruption of pregnancy is a matter of equality, public health and human rights.

We present the institutional document that bases the positioning of the Foundation for the Development of Sustainable Policies in relation to the need for the State to legalize the interruption of pregnancy, and guarantee its safe and free access, within the framework of the promotion and effective compliance of sexual and reproductive health policies, guaranteeing comprehensive sexual education, access to methods of contraception and the termination of pregnancy, as full realization of the rights involved.

The purpose of our organization is to contribute to a more just, equitable and inclusive society, seeking to guarantee the validity of human rights (article 2 of our statute). One of our main areas of work is the promotion of women’s human rights.

We understand that the legal interruption of pregnancy, as part of sexual and reproductive rights, is a matter of human rights, public health and gender. Matters that are of great relevance in our mission and objective as an organization.

We believe that it is necessary that in our country the conditions of legality be created so that women and people with the ability to generate access to medical practices that guarantee the interruption of pregnancy in a safe and free way in the respect of their will in the health system.

We insist, in addition, that the State guarantees the implementation of the Law of Comprehensive Sexual Education and of public policies aimed at access to contraception (such as the National Plan for Sexual Health and Responsible Procreation), as fundamental pillars for the realization of the right to the sexual and reproductive health of people.

A health issue

  • Clandestine abortions are the main cause of maternal mortality in Argentina.
  • Deaths and health complications linked to abortions disproportionately affect women in more vulnerable economic conditions.

A question of human rights and equality

  • Although the Supreme Court decided a case establishing criteria for access to abortion in certain circumstances, the practice is very restrictive and once again disproportionately affects women in more vulnerable economic conditions.
  • In recent years, various human rights committees have made concrete recommendations to Argentina to modify its abortion regulation.
  • In countries where access to abortion was legalized, there was no increase in the number of abortions. At the same time, there were drastic reductions in maternal mortality rates.
  • The termination of pregnancy should be the last resort in a comprehensive plan of sex education and access to contraceptive methods.

More information:

Contact:

Virginia Pedraza – vir.pedraza@fundeps.org

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Leased opportunity: Program and Communication Officer

The Coalition for Human Rights in Development is making a call to fill the post of Program and Communication Officer, under the supervision of FUNDEPS. This position is full-time and will be responsible for providing support to the coordination and advocacy activities of the Coalition, while at the same time coordinating the institutional communication of the Coalition.

For this position, we are looking for a person in Communication, International Relations, Political Science, Advocacy or related careers who have experience in the field of human rights and in institutional communication. The person must have excellent oral and written command of English since communications with the Coalition are conducted in that language.

The post will have a contract with FUNDEPS and the Coalition for a year, starting in April this year, and with the possibility of renewing later, with fees set by the Coalition.

Those who apply should send the following documentation IN ENGLISH:

• Presentation letter
• Curriculum vitae
• Short sample of a written piece.

The documentation should be sent to info@fundeps.org with the subject “Program and Communications Associate” until Monday, March 5 inclusive. Applications in Spanish will be rejected.

To read the full call, click here.

Contact
Gonzalo Roza, gon.roza@fundeps.org

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Gender parity: a necessary conquest

On November 23, 2017, the National Congress approved Law No. 27,412 on Gender Parity in Areas of Political Representation, the result of the harmonization of several projects presented in the Senate during 2016. The first one was the one presented on February 26 of that year by Peronist deputy Jujeña Liliana Fellner.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”.

Although the final draft had been approved in the Senate in October 2016, it did not reach the Chamber of Deputies until shortly before the end of the 2017 session.

In the long session on November 22, Rep. Victoria Donda (Movimiento Libres del Sur) asked that the project be treated “on tables”. Thus, in the early hours of the morning, with 165 votes in favor, 4 votes against, 2 abstentions and 82 absent deputies, the bill became law.

With the aim of guaranteeing gender parity in the legislative bodies, the law establishes that the lists of candidates for the National Congress (deputies and senators) and the Mercosur Parliament must be carried out “placing interspersed women and men from the first titular candidate to the last alternate candidate”.

In this way, the law takes female representation on the electoral lists to 50 percent, guaranteeing the principle of gender equivalent participation. This decision is in tune with the local legislation of some provinces, such as Santiago del Estero, Córdoba, Río Negro and, more recently, Buenos Aires, which for several years now have laws of equivalent gender participation.

The Law of Quota: the fundamental antecedent

Although we had a quota law since 1991, the year in which Argentina became the first country in the world to guarantee the participation of women in electoral posts, this law was already obsolete. Law 24,012, which two decades ago was considered advanced, established a minimum quota of 30% that should be occupied by women. However, in practice, the law ended up showing its limitations when converting that percentage into a ceiling, rather than a minimum quota, causing women to be relegated to third, sixth or ninth place in the lists.

Unfortunately, as we have said on another occasion, in the swing of the interpretation of our National Constitution, and in particular Art. 37, the provisions of the Convention for the Elimination of All Forms of Discrimination against Women continue to be ignored. (CEDAW, for its acronym in English), which enjoys constitutional status and must be mandatorily taken as a current and complementary rule of our Constitution.

 

The CEDAW, in its Art. 4 Inc. 1, provides: “The adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination in the manner defined in the present Convention, but in no way entail, as a consequence, the maintenance of unequal or separate regulations; these measures will cease when the objectives of equality of opportunity and treatment have been reached.”

The female quota laws are nothing other than these “temporary special measures” established in this normative body, which must cease when the objectives of equality of opportunity and treatment have been reached.

Already at the last Conferences on Women in Latin America and the Caribbean, the idea of ​​a minimum percentage for gender parity had been proposed as a regional goal. In the Quito Consensus emerged from the X Regional Conference on Women States recognized that parity is “one of the determinant drivers of democracy, whose goal is to achieve equality in the exercise of power, in decision-making, in the mechanisms of participation and social and political representation, and in the family relations within the different types of families, the social, economic, political and cultural relations, and that constitutes a goal to eradicate the structural exclusion of women“.

 

The quotas are corrective measures and, therefore, temporary; On the other hand, parity is a permanent principle that better represents equality in the exercise of power. Parity is a definitive measure that seeks to share the political power between women and men and transform the very idea of ​​democracy.

However, it is necessary to recognize that the quota laws or quota mechanisms have achieved conquests on the road to equality, favoring new issues on the public agenda, especially in terms of gender equality and defense of rights.

Since then, our Congress has enacted numerous laws that promote the rights of women against discrimination and inequality that they suffer for reasons of gender, such as Law 26,485 of Comprehensive Protection to prevent, punish and eradicate violence against women in the areas of that develop their interpersonal relationships (2009), Law 26,522 of Audiovisual Communication Services (which promotes equal treatment and not stereotyped in the media, avoiding discrimination based on gender or sexual orientation, also in 2009), Law 26,862 of Comprehensive access to medical-assistance procedures and techniques of medically assisted reproduction (2013) and Law 26,873 of Breastfeeding – Public Promotion and Awareness (2013), to name a few.

As a result of the long struggle of the different feminist movements and the work of legislators of different party colors, parity represents an enormous advance in legislative matters. This advance, however, must be accompanied by public policies with a gender perspective that guarantee and deepen the realization of these rights and that contribute to a real transformation of patriarchal power relations.

The Gender Parity Law in Areas of Political Representation is definitely a positive measure that will allow the effective enjoyment of women’s human rights and the real opening of the legislative space to the agenda of the feminist movements as inescapable themes for the strengthening of the democracy.

 

Authors

Rocío Aguirre

Mayca Balaguer

More information

Virginia Pedraza – vir.pedraza@fundeps.org

Mayca Balaguer – maycabalaguer@fundeps.org

Emilia Pioletti – emiliapioletti@fundeps.org

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On March 8, we stop again

With an extraordinary organization in all parts of the country, and within the framework of an international movement, women are once again demanding equality.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

On women’s day in 2017, a mobilization was carried out in more than 35 countries to denounce the historical inequality of women in society and its multiple consequences: from sexist violence -and its most extreme expression, femicides- to feminization of poverty, economic violence, domestic work and unpaid care, wage gap in relation to male salaries, job insecurity, universal vacancies in kindergartens, extension of maternity and paternity leave, salaries for victims of gender violence, equal salary for equal work, reopening of the moratorium for housewives, among other claims.

This year, the mobilization multiplied, and the organizations and movements and unions of all the places of the country reconvene under the same banner. Thousands of people are gathering in the Organizational Assemblies of the International Stop of women, trans, lesbians and of all feminized identities, and we call for various measures, from unemployment to marches, interventions, digital campaigns, etc.

The deployment of energies occurs throughout Latin America, and the claims are adjusted to the most urgent needs of each place, making visible the diversity of our continent.

Undoubtedly, the collective Ni Una Menos, present in all provinces and almost all cities in the country, is the space that brings together people who want to make visible again the struggle for the rights to equality and a life free of violence. From these spaces are built the alliances and the links of a historical and tireless struggle that grows every day.

From FUNDEPS we stop all the identities that are part of our organization. We return to the need to rethink our relationships, our policies and our socio-cultural reality. We accompany the fight, invite and adhere to the International Women’s Strike on March 8, 2018.

Contact

Virginia Pedraza, vir.pedraza@fundeps.org

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The intervention of INADI before said homophobes against Flor de la V

After the election of the Carlos Paz Awards 2018, the speaker Carlos Caserta made a series of homophobic, discriminating and derogatory comments against Florencia de la V and the trans community. It was denounced by social organizations, criticized in the media and INADI declared its repudiation.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

The speaker Carlos Caserta, in his program on FM 100, criticized the Carlos Paz Awards for recognizing the actress and comedian Florencia de la V, for his performance in the play “Explosivos”.

In his sayings he said: “Choose a ‘trava’ as a prominent female figure … Excuse me, you, but they are sick in the head (…) Honestly, I do not mean it, it’s not a woman! You have to respect the woman Fuck! How can it be that a job is more important than a woman? And the women, above, do not do anything, they take it with grace, they are shitting the clients, the prizes. you carry, or homosexuals.”

The aberrant manifestations of Caserta are framed in a violent practice, in flagrant detriment of the rights of the LGTTTBIQ collective, which foment discrimination, inequality and hatred. In these cases it is essential to remember the “Guide for the journalistic treatment responsible for gender identities, sexual orientation and intersexuality“, published by the Ombudsman’s Office, which recommends, among others: “Respect the principle of self-determination of sexual identities and orientations and promote media discourses that avoid judging or discrediting the autonomy of people to define themselves.”

On the other hand, the sayings of this man promote a dichotomous vision of gender and sexuality, making a focus on compulsory heterosexuality as the only legitimate model of bodies, identities, relationships and families.

Many organizations make complaints through the corresponding channels, which are responsible for ensuring the rights of audiences, such as the Ombudsman’s Office, ENACOM, INADI, and INAM.

The response of INADI was swift and concrete in its rejection of the statements of Caserta, reaffirming that “these manifestations take on another dimension and impact when they are disseminated in the mass media,” which is why it invites awareness-raising among communicators to the microphone.

This type of conduct by communication professionals is plausible for sanctions and is in flagrant violation of our national regulations, as well as the Human Rights Treaties, which are part of our legal system.

It should not be forgotten that, according to the Audiovisual Communication Services Law No. 26,522, it establishes in article 70: “The programming of the services provided in this law shall avoid content that promotes or incites discriminatory treatment based on race, color, sex, sexual orientation (…) or that undermine human dignity or induce behaviors that are harmful to the environment or to the health of people and the integrity of children or adolescents.”

On the other hand, the Gender Identity Law N ° 26.743, in its article 1:

“Everyone has the right:

a) To the recognition of their gender identity;
b) The free development of their person according to their gender identity;
c) To be treated according to their gender identity and, in particular, to be identified in that way in the instruments that accredit their identity with respect to the name/s of pile, image and sex with which it is registered there.”

We applaud the immediate reaction of INADI, and the follow-up of the other competent organs of the State, in the fulfillment of its functions, and in guarantee to the rights that protect our laws. It is essential to understand that the media are creators of opinion and that this entails a great responsibility to those who create and reproduce the contents, to promote equality and respect for rights, in pursuit of a more just and equitable society.

Contact

Virginia Pedraza, vir.pedraza@fundeps.org

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Advisory Opinion of the IACHR on the environment and human rights

Following a request made by the State of Colombia on March 14, 2016, for the first time the Inter-American Court developed the content of the right to a healthy environment in its Advisory Opinion OC-23/17 on “Environment and Human Rights”, notified on February 7.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

In this document the Court recognized “the undeniable relationship between the protection of the environment and the realization of other human rights“, highlighting the interdependence and indivisibility that exists between human rights, the environment and sustainable development. Therefore, it understands that all rights are vulnerable to environmental degradation, and its full enjoyment depends on an appropriate environment.

In the inter-American human rights system, the right to a healthy environment is expressly enshrined in Article 11 of the Protocol of San Salvador, which establishes the right of everyone to live in a healthy environment and to have basic public services, and the consequent obligation of the States to promote the protection, preservation and improvement of the environment.

In addition, this right is also considered included among the economic, social and cultural rights protected by Article 26 of the American Convention.

The Court clarified that “the human right to a healthy environment has been understood as a right with both individual and collective connotations. In its collective dimension, [..] constitutes a universal interest, which is due both to present and future generations. However, […] it also has an individual dimension, insofar as its violation can have direct or indirect repercussions on people due to its connection with other rights, such as the right to health, personal integrity or life, among others. The degradation of the environment can cause irreparable damage to human beings, so a healthy environment is a fundamental right for the existence of humanity.”

The Advisory Opinion also determined the state obligations for the protection of the environment.

With respect to jurisdiction, States must respect and guarantee the human rights of all people and this may mean, depending on the case in particular and exceptionally, situations that go beyond their territorial limits. In the same sense, States have an obligation to avoid transboundary damage.

In particular, in order to respect and guarantee the rights to life and integrity, it determined that States must comply with the following obligations and principles:

Obligation of prevention: means to prevent significant environmental damage, inside or outside its territory, which implies that they must regulate, supervise and supervise the activities under their jurisdiction, carry out environmental impact studies, establish contingency plans and mitigate the damage that has occurred;

Principle of precaution: States must act in accordance with the precautionary principle against possible serious or irreversible damage to the environment that affects the rights to life and personal integrity, even in the absence of scientific certainty;

Obligation of cooperation: involves cooperation with other States in good faith for protection against significant environmental damage. From this are derived:

  • The obligation to notify potentially affected States of possible significant environmental damage caused by activities carried out under their jurisdiction;
  • The duty to consult and negotiate with the potentially affected States;
  • The duty to ensure the exchange of information between States;

Procedural Obligations: These are obligations that support a better formulation of environmental policies. Among them, States have to ensure:

  • Access to information: guarantee access to information on possible effects on the environment;
  • Public participation: guarantee the right to public participation of people, in making decisions and policies that may affect the environment.
  • Access to justice: guarantee access to justice, in relation to state obligations for the protection of the environment.

It is remarkable that the IACHR determines the content and scope of the procedural obligations, since they are in line with the provisions of Principle 10 of the Rio Declaration on Environment and Development. This principle seeks to ensure that everyone has access to information, participates in decision-making and accesses justice in environmental matters, in order to guarantee the right to a healthy and sustainable environment for present and future generations. In this sense, FUNDEPS, together with several civil society organizations, actively participates in the negotiation process to obtain a Regional Agreement on Principle 10, considering that its concretion will allow strengthening capacities to deal with environmental challenges in the region. .

This Advisory Opinion arose because of Colombia’s concern regarding the “risk” that new major infrastructure projects will seriously affect the marine environment in the region. Everything provided by the Court will allow Colombia to continue advancing in the effective protection of the environment in the Greater Caribbean and the rights and interests of Colombians.

Beyond the effects that the document may have for the State that requested the Opinion, we understand that it constitutes a significant advance in terms of environmental protection for all American States, as it provides interpretative guidelines and completes the sense of the rights contained in the Covenant.

More information

– See the full resolution

Author

Mayca Balaguer, maycabalaguer@fundeps.org

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BID Invest will review in 2018 its policy of access to information

During 2018, the private sector investment arm of the Inter-American Development Bank, BID
Invest, will review its institutional policy on access to information. It is a process that is expected
to improve its current policy, in order to effectively guarantee this right.

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

The investment arm of the private sector of the Inter-American Development Bank, BID Invest, will review its access to information policy during 2018. IDB Invest, is the entity in which the former Inter-American Investment Corporation (IIC) was transformed, as a result of the deepening that the IDB intends to carry out in its financing to the private sector.

The IIC (now BID Invest), like the other international financial institutions (IFIs), has operational policies that regulate the actions of the entity and present criteria for the granting of loans. The policies of access to information fall within the group of rules that define the actions of the institution. In particular, they claim the basic right of access to information that human beings have.

It is also important to mention the relevance that this right adopts in terms of development projects. For a true development to take place, it is necessary that those involved can be part of the information exchange process, and even more, that they can see their development priorities reflected throughout the project’s investment cycle. Only then, policies and projects will be able to provide real benefits to local communities.

In this regard, IFIs and their policies do not always account for the best standards and practices in terms of access to information. In a recent analysis, the organization International Accountability Project, found that the former Corporation failed greatly in guaranteeing this right. Numerous projects financed by this member of the IDB Group have not managed to make the affected communities have access to information or participation mechanisms. This situation has been fostered by a lax normative framework that does not guarantee access to this right in its fullness.

It is expected that in this 2018, with the change to BID Invest, the review of the policy will achieve maximum standards and good practices in what access to information is concerned. However, there are still few details about this process. The dates are not defined and it is not known if there will be any instance that allows participation and / or comments from civil society organizations. From FUNDEPS we will be following this process closely and getting involved in it.

More information

Author

Agustina Palencia

Contact

Gonzalo Roza – gon.roza@fundeps.org

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Court filings for contamination in Chacra de la Merced

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From FUNDEPS we requested the participation as “Friend of the Court” and as private plaintiff in civil and criminal cases, respectively, initiated against a tannery that operated illegally at the height of km. 3 and 1/2 of the Chacra de la Merced road.

The past month of December formally presents an Amicus Curiae in the titled cars “Foundation of Third Generation C / Jolaga SRL – Environmental Protection”, (File 6229513) that is processed before the Civil and Commercial Court and the 45th Nomination of this city, for carry out the legal claims of the Court on the environmental damage caused by the contaminating activity of the JOLAGA tannery establishment SRL and the obligation that it has on it to recompose the environmental damage caused to the Suquía river.

The environmental protection initiated in February 2017 is aimed at the use of the activity developed for the establishment of wounds and the recomposition of the environmental damage caused.

All this is based on the illegal dumping of waste and residues in the Suquía River, on the Chacra de la Merced highway, km 3 1/2, by the establishment of JOLAGA SRL tanneries, owned by Jorge Ricardo Gawuryn and Ariel Gawuryn. , there has been a clear violation of the General Law of the Environment No. 25,675 and the Provincial Environmental Policy Law No. 10,208, which affects the rights of constitutional roots – right to a healthy environment – art. 41 CN -, right to health, right to life, not only of the population of the affected area but also of the entire community of the province of Córdoba.

In addition, due to the illegal and clandestine activity of possession, a criminal proceeding was initiated that culminated with the closure and with the imputation of tango owners JOLAGA SRL, Jorge Ricardo Gawuryn and Ariel Gawuryn, for the crime of continued environmental pollution, as co-authors, in accordance with the provisions of articles 55 of the Hazardous Waste Law 24,051, and 45 and 55 of the Criminal Code.

According to the investigation, the establishment operated almost ten years ago despite the complaining repetitions of the neighbors, throwing polluting substances into an open-air lagoon in the company’s facilities, and then they would have thrown them into an adjoining land, through of a pump drain. All these properties drain, by simple gravity, into the Suquía River.

As a foundation that promotes and encourages the realization of the right to a healthy and balanced environment, we consider that the contamination and environmental damage caused by the holders of privacy is a violation of these rights that we defend. For this reason, it requests the participation of a private prosecutor to promote the process and help the Public Prosecutor’s Office in the criminal investigation.

The neighborhood of Chacra de la Merced is located at the eastern end of the city of Córdoba, about 150 meters from Circunvalación Avenue and 200 meters from the Suquía River. For more than two decades it was part of the green belt of the city of Córdoba, today it has multiple sources of contamination. The worst thing is the Edar Bajo Grande wastewater treatment plant that has been dumping sewage into the Suquía River for years with poor treatment and even without treatment.

Other polluting industries are also sought, among them, such as JOLAGA SRL, quarries, lagoons produced by the extraction of aggregates converted into open air dumps, among others.

In this context almost 300 families live and the area has been declared in recent years in “environmental emergency” by the Municipality of Córdoba. However, there is no final non-compliance with the measures and actions provided, leaving the neighborhood forgotten in a “pollution river”.

In order to protect the fundamental rights of the residents of the neighborhood, a change of attitude was proposed to avoid impunity and the secrecy of this type of polluting activity. the mercy.

Source of images

La Voz del Interior

More Inforamtion

– Investigan contaminación con un carcinógeno en las cercanías de Suquía,  La Voz del Interior

–  Amicus curiae en causa “Fundación de Tercera Generación C / Jolaga SRL – Protección Ambiental”

– Demandante privado en causa “Acciones talladas arrojaron contaminantes cerca del río Suquía”

Contact

María Pérez Alsina – mariaperezalsina@fundeps.org

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What does 2017 leave us in relation to trunk pipelines?

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

The year 2017 began with important and promising news for the Gasification Project of Localities of the Interior of the Province of Córdoba, better known by the people of Córdoba as the “main gas pipeline project”. During the first days of January, the Governor of Córdoba Juan Schiaretti and President Mauricio Macri were present at the inauguration of a Pressure Reducing Plant in La Calera, work carried out by the Brazilian company Odebrecht within the framework of the systems awarded to it after the public tender launched in 2015. The reduction plant constituted the first section inaugurated by the Córdoba-Gran Córdoba Ring System, comprised of 52 kilometers of gas pipelines. reinforcement, and that will benefit 300 thousand inhabitants of both Córdoba and La Calera and of Saldán, Villa Allende, Mendiolaza, Malagueño and Malvinas Argentinas, according to official information.

The presence of Macri at the inauguration of the work represented a gesture of political support for the Schiaretti government. Especially taking into account the strong questions and criticisms received by the provincial government for the involvement in this project of the Brazilian construction company Odebrecht, involved in a corruption scandal in Brazil and other Latin American countries, even in Argentina. Despite these questions, the Schiaretti government always defended the participation of the company by resorting to the debatable argument that the corruption events in which it is involved occurred between 2004 and 2013, while the tender in Córdoba was carried out only in 2015.

However, after a few days the project suffers a major setback: Schiaretti announces that, due to delays in obtaining loans from Chinese banks, 4 stretches of gas pipelines would be re-tendered to avoid postponing the start of the works in said sections, but in this case with the Province’s own financing. Recall that of the 10 trunk systems that were defined in 2015, 4 were awarded to Transitory Business Unions (UTEs) made up of Argentine and Chinese companies and financed by Chinese banks (ICBC and Bank of China); and the remaining 6 were awarded to Odebrecht (at first it was said that the Brazilian company would present its own financing for the start of the work, but finally this was not the case, making the province have to resort to indebtedness to start the works).

Thus, criticisms of the link with Odebrecht in the work will be added to questions about the delays in Chinese financing; the lack of relevant explanations regarding the reasons for the fall in financing; the need to re-tender the work and the decision of the provincial government to go back to the market to borrow to finance the work and even for the substantial increase in the cost of the work, which went from a budget of 8,600 million pesos in 2015 to 12,480 million pesos at the beginning of 2017 (an increase of 45% in almost two years).

After a new call for bids in February, in March the works of the four aforementioned systems were re-awarded to the same UTEs that had won in the first tender. In turn, the government issued a new batch of public securities for 460 million dollars to finance the start of works in the 4 tranches of the project, with the financial agent of Banco de Córdoba (Bancor).

Although in that same month of March advances were announced in the negotiations with the Chinese banks to finish making the committed credits for the work, surprisingly on April 21 the Governor Schiaretti announced the definitive fall of the Chinese financing and the signing of a decree that rendered ineffective the adjudication of the works of the 4 corresponding trunk systems. While Schiaretti himself blamed the Chinese banks for the fall in funding, arguing that they raised conditions “leonine, unacceptable to Cordoba and the national government,” the fact is that the government never made clear the true reasons and reasons that led to the fall of Chinese financing.

In this way, the government of Córdoba decided to launch a new tender for 437 million dollars for the construction of the 4 gas pipeline systems, which now in the new call would become 8 systems (in addition to the 6 remaining systems already awarded to Odebrecht ) and whose financing would come from the same province. In this case, the allocation of the new systems fell to national companies.

In early May, and despite criticism from the opposition, the provincial legislature approves a bill that enables new changes in the pipeline project: the negotiations with Chinese banks to finance 4 of the trunk systems are terminated, and it is approved that it is now the provincial government itself that must obtain the totality of the funds to complete the work (ratifying in this way the authorization granted by law 10,339 that enabled operations to take public credit to carry out the works). Just a few days later, the government made official through a decree published in the Official Gazette, a new debt collection for 450 million dollars to finance the work. By the end of June, Schiaretti himself would announce through his Twitter account that the province had obtained the total financing for the work through the placement of bonds in the international capital market.

In short, this strategic project for Córdoba that was going to have in the beginning with financing provided or managed by international actors (initially through the National Bank of Economic and Social Development of Brazil -BNDES-, then through Chinese banks and own financing provided by the Odebrecht company) to depend exclusively, for its concretion, on the province’s own resources or obtained through debt through the issuance of government securities.

The second half of the year would be marked mainly by the progress of the work (according to the government by the end of the year 14% of the work had been completed and the work was planned to be completed by mid-2019), but also by the constants and recurring questions from sectors of the opposition and civil society in relation to the project. Especially after Córdoba was mentioned in the framework of the Lava Jato case as one of the destinations where the Odebrecht constructure paid bribes in Argentina.

Although the national government of Mauricio Macri began a campaign to review and investigate the possible involvement of Odebrecht in the payment of bribes in numerous public works projects in Argentina (which even led the national government to suspend the company to carry out works at a national level), the gas pipeline project in Córdoba was strangely excluded from said revision and the relevant explanations were never provided to justify such exclusion. Even the company continues to operate in the province despite its suspension at the national level (its main work is precisely that of gas pipelines in Córdoba) and the requirements from the opposition that the same be done at the provincial level. Given the lack of answers at the national level, some opposition legislators traveled to Brazil in October of this year to ask the prosecutors of the Lava Jato case to investigate the link between the Brazilian company in the payment of bribes in the framework of the bidding process in 2008 for the construction of trunk pipelines.

In this way, between marches and counter-marches, the balance of 2017 in relation to the trunk gas pipeline project throws little light and many shadows and suspicions in relation to the transparency and execution of the project. Not only because of the never entirely clear fall of Chinese financing at the beginning of the year but also, and above all, because of the way the provincial government has handled the involvement of the construction company Odebrecht in the work and the numerous causes of corruption that splash throughout Latin America and even in Argentina itself. Although the government of Schiaretti has detached the company from any kind of connection with the possible delivery of bribes and corruption in the bidding of the work (even with the support of the national government of Macri itself that has initiated a kind of “Crusade” against the Brazilian company for its actions in the country during the Kirchner government), the truth is that the year that ends leaves many questions and aspects not clarified about the project.

Undoubtedly, 2017 has left a huge debt outstanding in terms of transparency and accountability in relation to this strategic and emblematic project for Córdoba. From FUNDEPS, we expect this debt to be paid in 2018.

More information

– Working Document: Transparency in the gasification project of localities in the interior of the province of Córdoba by Melanie Mackenzie – December 2017. FUNDEPS.

– Notes and publications of FUNDEPS in relation to trunk gas pipelines.

–  Main gas pipelines in Córdoba: a work that advances in the shadow of corruption by Agustina Palencia – December 2017. El Entramado. FUNDEPS.

Image source

La Voz del Interior

Authors

Macarena Lourdes Mustafa / Voluntaria del Área de Gobernabilidad Global

Gonzalo Roza / Coordinador del Área de Gobernabilidad Global

Contact

Gonzalo Roza / Coordinador del Área de Gobernabilidad Global

gon.roza@fundeps.org

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Towards a regional agreement on environmental human rights

“Below, we offer a google translate version of the original article in Spanish. This translation may not be accurate but serves as a general presentation of the article. For more accurate information, please switch to the Spanish version of the website. In addition, feel free to directly contact in English the person mentioned at the bottom of this article with regards to this topic”

In 2015, negotiations began on the regional agreement on access to information, participation and justice in environmental matters. From that moment on, meetings of the Negotiating Committee took place, in which the text proposals of the countries regarding the preliminary document of the regional agreement were discussed, reviewed and approved. This document consists of a preamble and twenty-five articles.

This process was initiated at the United Nations Conference on Sustainable Development (Rio + 20) in 2012, with the Declaration on the Application of Principle 10 of the Rio Declaration on Environment and Development. In November 2014, the countries approved the Santiago Decision, through which they began the negotiation of a regional instrument on access to information, public participation and access to justice in environmental matters in Latin America and the Caribbean. . This, with significant public participation and the support of ECLAC, in its capacity as Technical Secretariat. The Declaration currently has 24 signatory countries, with the recent incorporation of Saint Lucia and is open to the accession of all the countries of Latin America and the Caribbean.

In the Seventh Meeting of the Committee, held in Buenos Aires from July 31 to August 4, 2017, the articles on Access to Information and Public Participation (6th, 7th and 8th) were agreed upon. However, representatives of society were quick to show their concern about the serious setback in the progress of the negotiations. After this seventh meeting, civil society made the following recommendations to be able to guarantee the correctness of the negotiations:

1. The participation of the UN and IACHR rapporteurs related to these rights, since the standards of the Inter-American Human Rights System on the rights of access to information, participation and environmental justice could be weakened by the agreements to which they are arriving in the negotiations of Principle 10.

2. The evaluation by governments and ECLAC of the degree of progress and regressivity of the text that has been negotiated so far between the countries, since standards achieved at the national level in some countries and at the regional level have been reduced.

3. Link the Regional Agreement of Principle 10 and the 2030 Agenda, so that there is integration and coordination of both initiatives. Therefore, it is necessary that there are reports of compliance with the SDGs in our countries where information related to actions for the better implementation of Principle 10 is included.

4. Do not go back on the regime of exceptions that has been introduced into the text, which allows States more possibilities to deny information to citizens, but to guarantee the dissemination of the greatest amount of environmental information, such as pollutant emissions and studies. of environmental impact. In addition, recognize indigenous monitoring and monitoring, as a form of legitimate participation, an indispensable preventive measure to avoid environmental damage. Also, recognize the broad active legitimacy, which allows any person or group access to justice to protect the environment.

5. Include in the text, the duty of the states to GUARANTEE the rights of access to information, participation and environmental justice, and not use verbs such as “facilitate, promote and encourage”, thus contravening the current standards of rights humans.

6. A Regional Agreement on Principle 10 that is BINDING, that clearly incorporates the intercultural and gender approach in favor of vulnerable populations, especially indigenous peoples, and human rights defenders, in recognition of the reality of violence that they are facing in our countries of Latin America and the Caribbean.

In this regard, at the opening of the eighth meeting, Andrea Sanhueza elected representative of the public, said: “We have reached a turning point. This is the last opportunity to amend the course and return to the original spirit of the process. We can not allow environmental and social rights to remain the poor relatives of sustainable development. That is also why the agreement must ensure the protection of environmental defenders.”

Finally, that was one of the main results of the meeting, as the countries agreed to consecrate the protection of people who fight for the defense of human rights in environmental matters in the future regional agreement.

This means that the signatory countries were obliged to guarantee the recognition, protection and promotion of their rights to freedom of opinion, freedom of assembly, peaceful association, freedom of movement and the free exercise of their rights. The situation of defenders Environmental impacts in Latin America have been getting worse as the years have gone by. During 2016, more than 200 environmental defenders lost their lives in an effort to demand their rights violated. 60% of these cases were registered in the Latin American region. The fact that during the last negotiations of the Regional Agreement, it has been possible to incorporate an article that protects these people, is fundamental when it comes to advancing towards the effective guarantee of Human Rights.

At the meeting, other important advances were made on the final text of the regional instrument. Among them were articles on access to justice in environmental matters, and on capacity building and cooperation, and also approved most of the general obligations.

In addition, the main objective of the Agreement was approved, which seeks to “guarantee the full and effective implementation in Latin America and the Caribbean of the rights of access to environmental information, public participation in decision making and access to justice in environmental matters. , as well as the creation and strengthening of capacities and cooperation, contributing to the protection of the right of each person and of present and future generations to live in a healthy environment and sustainable development “.

On the occasion of the meeting, experts from the UN issued a communiqué urging governments to adopt a firm agreement on environmental rights. “It is crucial that the governments of the region act in solidarity and accept legally binding norms to protect human rights and the environment,” they said.

At the end of the eighth meeting, the participants recognized the significant consensus and definitions reached on the text compiled by the Board of Directors in this week of negotiations and agreed to continue with the discussion of the articles still pending from the legal document (11 to 25) during the following meeting, which will be held in the first quarter of 2018 in San José, Costa Rica.

More information

– Pronouncement of civil society organizations

– Press release from the Office of the United Nations High Commissioner for Human Rights

– Message from the elected representatives of the public – Principle 10

Authors

Noelia Salvia

Agustina Palencia

Contact

María Perez Alsina <mariaperezalsina@fundeps.org>