Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Colombia (Ratification: 1991)

Protection of Raizal small-scale fishers. The Committee notes the observations of the General Confederation of Labour (CGT) received on 10 February and 28 March 2014 in which it once again expresses its concern at the situation of the Raizal population due to the violation of their ancestral rights protected by the Convention. The Committee also notes the Government’s replies received in September and November 2014. The CGT indicates that the Government has not ensured the right of prior consultation of the Raizal people in the San Andrés, Santa Catalina and Providencia archipelago in the context of the case before the International Court of Justice (ICJ) respecting the territorial dispute with Nicaragua. The CGT indicates that fishing is the second economic sector on the island following tourism and recalls that the fishing area had already been reduced following the fixing of the northern maritime border with Honduras, which had a major social and economic impact on many Raizal families. In this context, the CGT indicates that since November 2012, following the decision of the ICJ concerning the maritime border with Nicaragua, Raizal fishers have no longer been able to fish with the tranquillity that they did ancestrally. Raizal fishers have to cross Nicaraguan maritime territory, which is reported to give rise to difficulties and the payment of fines. The CGT estimates that around 100 Raizal families are now without the support which they derived directly from fishing. Furthermore, industrial fishing vessels come to fish very close to the keys, which were previously exclusive fishing areas for Raizal small-scale fishers. The CGT calls for the rights of access and of fishing in ancestral areas to be recognized for the Raizal people and for their subsistence activities to be guaranteed. The Committee observes that the CGT continues to express concern at the obstacles affecting traditional fishing by the Raizal community and the need to ensure the consultation and participation of that community in the event that further measures are adopted for regional development which affect it directly.

The Government indicates in the report received in October 2014 that it maintains an open, frank and constructive dialogue with the local authorities of San Andrés, including the Raizal communities. The Government recalls that the Constitutional Court, in response to a request from the Raizal community, which alleged that there was a requirement to hold consultations concerning the maritime borders agreed to in the treaty with Honduras (the bilateral treaty concluded in San Andrés on 2 August 1986), found that it was not indispensable to hold specific and compulsory consultations with individual populations, even though it could be desirable to do so (paragraph 19 of ruling C-1022 of 16 December 1999). The Government adds that the planning and development of the strategy in relation to the ICJ was the subject of studies, meetings and discussions with representatives of the population of San Andrés. The Government adds that the waters in which the small-scale fishers of the Raizal community traditionally fished continue to belong to Colombia and the fishers can continue their work as they did before the ruling of the ICJ of November 2012. With regard to the right of the inhabitants of San Andrés to have access to traditional fishing areas, the Government specifies that such fishing areas are located precisely around the keys and that these areas were not affected by the ICJ ruling, as they consisted of territorial waters awarded to Colombia, together with the sovereignty of the islands and the seven keys. The Government also reports the measures taken in support of small-scale fishing and other activities intended to promote social, economic and cultural life in San Andrés, including a credit programme with the Inter-American Development Bank intended, among other objectives, to promote comprehensive urban development, access to water and sanitation, and the improvement of coastal infrastructure.

According to the information provided by the Government in its report received in November 2014, the Raizal people have the fundamental right to prior consultation and the right to participate in the analysis and the identification of the impact and the formulation of measures relating to projects, works or activities directly affecting their economic, social and cultural development, is guaranteed. The Government maintains that the representatives of the Fishers’ Associations of San Andrés were included in the implementation of a support plan for traditional fishing: the Raizal community benefits from the coverage of the social protection system, participates in meetings of health services and cooperates with educational services. In addition, the Government states that island communities are involved in the Neighbourhood Commission with Jamaica. The Committee refers to its 2013 comments and requests the Government to provide examples of consultations with representatives of Raizal fishers on the matters covered by the Convention and the impact of the adopted measures, with the participation and cooperation of the Raizal communities, designed to improve their conditions of life and work, and their levels of health and education (Articles 6 and 7(2) of the Convention). The Committee reminds the Government that the next report must include the information requested in the 2013 observation and direct request. In this regard, the Committee hopes that the Government will prepare its responses to information requested in consultation with the social partners and interested indigenous organizations (Parts VII and VIII of the report form).

[The Government is asked to reply in detail to the present comments in 2015.]