CCPR/C/39/D/318/1988

P. Communication No, 3198/1988, E, P. et al, v, Colombia

thirty-ninth session)

Submitted by: E. P. et al.

Alleged victima: The authors

State party concerned: Colombia

Date of communication: 10 June 1988 (date of initial letter)

The Human Righta Committee, established under article 28 of the International

Covenant on Civil and Political Rights,

Meeting on 25 Juiy 1990,

Adopts the following:

Decision on admissibility

1. The authors of the communication (initial submission dated 10 June 1988 and

subsequent correspondence) are E. P., F. W., D. B., L. G., O. B. and A. H., all

citiseas of Colombia, residing in the islands of San Andrés, Providence and

Catalina, which form an archipelago 300 miles north of mainland Colombia. They

invoke articles 1, 2, 25, 26 and 27 of the International Covenant on Civil and

Political Rights and claim that, as members ot an overwhelmingly English-speaking

Protestant population, they are subjected to violations of their rights by

Colombia, which has sovereignty over the islands.

2.1 The authors state that in 1819, Colombia asserted sovereignty over the

archipelago under the doctrine of uti possidetia and consolidated its

administration by military force against the will of the islanders. The authors

claim that Colombia has been violating their rights ever since.

2.2 According to the authors, recent Colombian legislation has led to the

diepossession of many islanders of their land. As part of a project to

"“Colombianise" the islands, the Government provides subsidies and incentives to

mainland Colombians, particularly to families of four or more, to settle in the

archipelago. The process of registering land ownership (Juicio de pertenencia)

favours mainianders by permitting them to post their claims in Spanish at the court

house or even in Spanish language nowspapers in far-away towne, such as Bogota or

Barranquilla. Indigenous land owners who cannot afford a lawyer, or cannot

underetand Spanish, or are simply unaware of claims against their land, are in

effect victima of expropriation by mainland Colombians. Already 40,000 mainland

Colombians and other foreigners have settled on the 44 square kilometre island of

San Andrés.

2.3 The authors assert that the overpopulation resulting from the government's

policies has caused severe environmental damage. New developments, including more

than 30 hotels, 10 banks and 700 imported-goods stores, have put such demands on

the water table that an artificial drought has been created, making farming

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impossible, thus deatroying one of the islanders’ traditional livelihoeds. The

Government has permitted the deatruction of the mangrove swamps, formeriy rich

sources of lobster, fish, crabs and crayfish, by allowing electric power plants

freely to dump hot, polluted water. Environmental protection laws are allegedly

selectively appiied to islanders.

2.4 The authors assort that the Government has granted fishing rights and other

concesgions to Honduras and other countries without regard to native interests.

This has deprived the islandera of another traditional meaus of survival.

2.8 Spanish has been made the official language. Education is provided only in

Spanish and native children are rejected by the schools if they fail to learn

Spaniah, Public libraries offer books only in Spanish. Nativie are preaumed to

know Spanish in Court. Islanders allegedly are often harassed or even arrested by

the police for speaking Engligh in public. Disciplinary actions for these abuses

are rare and never result in more than the transfer of the responsible officers;

the abuses continue with their replacements. All the mass media are in Spanish.

These facts are alleged to constitute violations of article 27 of the Covenant.

2.6 The authors claim that native islanders suffer pervasive employment

discrimination. Only 15 per vent of the workers in the private sector are

indigenous. Most businesses, and at least one Government ayeacy, La Ragiatradurina

de Inatrumentos Publicog, hire no natives at all. Nativea reap lease than

& per cent of the islands’ total income. Natives are also denied equal access to

public utilities such as water, electricity and telecommunications. The foregoing,

in the authors' opinion, constitutes violations of article 26 of the Covenant.

2.7 With regard to article 25 of the Covenant, the authors note that the

archipelago'’s Governor is not elected by the islanders but is appointed in Bogoté

by the President of Colombia. Only 11 of the 90 Governors appointed by the central

government have been islanders. Elections to the local council are not by secret

ballot. This has led to rampant favouritism and alleged blackmail with regard to

jobs, houging, scholarships and other government benefits. In any event, by virtue

of law One of 1972, the local council was stripped of much of its power, which was

transferred to the Governor. This law also stripped San Andrés of ite status of a

municipality.

2.8 The authors object to the increasing miiitarisation of their islands, in

particular, the expansion of the Cove-Seaside naval base and other recent land

acquisitions by the Colombian Armed Forces. They fear that this may invoive them

militarily in Central American contlicts of which they wish no part.

2.9 The authors claim to have exhausted domestic ramedies, to the axtent that thoy

can be deemed available and effective for purposes of article 5, paragraph 2 (b),

of the Optional Protocol. A series of letters, telegrame and petiticns sent in

1985-1987 to former President Betancur, the Governor and other ministers went

unanswered. President Virgilio Barco sent a telegram in reply to one of their

letters but nothing that was promised was accomplished. On 4 January 1987, they

unsucceasfully submitted a Pruyecto de Aqueardo to the Covernor sueking restraints

on the alienation of land. Several meetings with che Governor produced verbal

promises that were not fulfilled. Moreover, the Constitution and the National Bill

of Laws of Colombia contain no provisions for the protection or recognition of

minorities or their rights, in violation of article 2 of the Covenant.

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3. By @ecision cf 21 October 1988, the Working Group of the Human Righta

Comaittee requested the authors to clarify whether they had been individually

affected by the alleged activities of the Colombian authorities and to elaborate on

their cleim that they had complied with the requirements of article 5,

paregraph 2 (b), of tne Optional Protocol concerning exhaustion of domestic

remedies.

4. In their zeply, dated 21 December 1988, to the Working Group's request for

Clarification and elaboration, the authors itemise the effects that the

Government's policies are said to have had on them personally:

- O. B. allegedly was denied a teaching position for which she was

otherwise qualified because she did not speak Spanish. F. W., D. Be,

&. P. and L. G., were allegedly unable to qualify for teaching positions

in English.

- Three of the authors have children who are allegedly unable to receive

education in their native language.

- E. P. was allegedly denied the possibility to apply for a scholarship

because he is not Catholic.

~ None of the authors claims to have felt able to vote freely because the

ballote sre not secret.

- All of the authors allege that they are required to speak Spanish in

court, before the police and before other officials,

5, By decision of 4 April 1989, the Working Group oi the Human Rights Committee

transmitted the communication to the State party and requested it, under rule 91 of

the rules of procedure, to provide information and observations relevant to the

question of the admissibility of the communication.

6.1 In its submission under rule 91, dated 9 August 1989, the State party contends

that the authors failed to exhaust domestic remedies, as required by article 5,

paragraph 2 (b), of the Optional Protocol.

6.2 The State party outlines in general terms the jurisdiction of the Colombian

Supreme Court over constitutional claims emanating from individuals or groups of

individuals, and the jurisdiction of the Administrative Courts over collective

claims. The State party further notes that administrative remedies are available

through the Consejo de Estado (Council of State) or Administrative Tribunals with

full jurisdiction and authority to nullify administrative acts deemed to be

arbitrary, illegal or an abuse of power. Only after the exhaustion of these

remedies may leave to appeal to the Supreme Court be considered and granted.

6.3 The State party finally claims that the authors have failed to clearly

identify in their complaint the alleged victims, the rights considered to have been

violated or the administrative agents responsible for their situation.

7.1 In their comments, dated 30 August and 2 September 1989 and 17 April 1990, the

authors indicate that the domestic remedies suggested by the State party are

ineffective. They cite in their support the 1968 decision of the Consejo de

Eateado, which struck down resolution 206 of INCORA providing land for settlers.

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Ostensibly a legal victory, the ruling was allegedly circumvented by the State

party through other procedural means, and the disposseasion of the natives has

continued unabated. Legislation that would have restored San Anérés' status as a

municipality was vetoed by President Barco on 30 January 1990 for reasons of

“national security and sovereignty".

7.2 Furthermore, the authors contend that resort to domestic judicial remedies

would be too prolonged and prohibitively expensive due to the large number of acts

and legislation to be contested. They cite the example of a petition to the

Attorney General in 1937 in which they asked for collective action on many of their

grievances. There was no reply for over two years, and then the authors were

merely requested to report in person for confirmation. Meanwhile, the settlement

of more Colombians on the islands proceeds at a rate of some 8,000 individuals per

year. In view of the urgency of the situation, therefore, the pursuit of

protracted domestic remedies is considered ineffective, with no prospect of

adequate redress.

7.3 Finally, the authors state that many of the laws and actions in question are

constitutional. There is no right of self-determination in the Constitution and

article 27 thereof actually guarantees the "free alienation" of land, one of the

authors’ principal complaints. Contrary to the Government's aisertion, the

International Covenant on Civil and Political Rights is not incorporated into

Colombian law.

8.1 Before considering any claims contained in a communication, the Human Rights

Committee must, in accordance with rule 87 of its rules of procedure, decide

whether or not the communication is admissible under the Optional Protocol to the

Covenant.

8.2 With regard to the issue of the authors' standing, the Committee reaffirms

that the Covenant recognizes and protects in most resolute terme a people's right

to self-determination as an essential condition for the effective guarantee of

observance of individual human rights and for the promotion and strengthening of

those righte. However, the Committee reiterates that the authors cannot claim

under the Optional Protocol to be victims of a violation of the right of

self-determination enshrined in article 1 of the Covenant. a/ The Optional

Protocol provides a procedure under which individuals can claim that their

individual rights have been violated. These righte are set out in part III of the

Covenant, articles 6 to 27, inclusive. The Committee further notes that no

individual, or group of individuals, can in the abstract, by way of actio

popularia, challenge a law or practice deemed to be contrary to the Covenant. An

individual, or a group of individuals, can only claim to be a victim in the sense

of article 1 of the Optional Protocol if he or she, or they, are actually affected,

8.3 With regard to the requirement of exhaustion of domestic remedies, the

Committee reiterates that pursuit of such remedies can only be required to the

extent that they are both available and effective. It notes that the authors have

not pursued the remedies which the State party has submitted were available to

them, because they consider them ineffective and because their pursuit would be

“too prolonged and prohibitively expensive". The Committee further observes that

the authors did not comply with the Working Group's request for clarifications

about the steps they had taken to pursue remedies available to them in respect of

their individual grievances (see paragraph 4 above). The Committee concludes that

the authors have not shown the existence of circumstances which would have absolved

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them from exhausting the remedies which the State party indicates are available to

them) it reaffirms b/ that mere doubts about the effectiveness of remedies, as well

as the prospect of protracted and coatly legal proceedings, did not absolve the

authors from exhausting them. Acccrdingly, the requirements of article 5,

paragraph 2 (b), have not been met.

9. The Human Rights Committee therefore decides:

(a) That the communication is inadmissible under article 5, paragraph 2 (b),

of the Optional Protocol;

(b) That this decision be transmitted to the State party and the authors.

(Done in English, French, Russian and Spanish, the English text being the original

version.)

Notes

a/ = See annex X, sect. A above, pare. 32.1.

h/ = See Communication No. 224/1987 (A. and &. N. v. Norway), inadmissibility

decision of 11 July 1988, para. 6.2.