ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
A. THE LEGAL FRAMEWORK
1. The Republic of Colombia is a state party to the International Covenant on Economic, Social and Cultural Rights, adopted by the United Nations in 1966, and ratified by the Colombian state on October 29, 1969. In addition, it is party to countless conventions entered into under the aegis of the International Labor Organization ("ILO") on particular aspects of some of the rights analyzed in this Chapter.
2. The 1991 Colombian Constitution includes economic, social, and cultural rights under Title II, Chapter 2. According to a definition by the Constitutional Court of Colombia, these rights "imply the provision of services by the state and therefore an economic outlay that generally depends on a political decision."( 1 ) In addition, the Constitution states, at Article 53, that, "the international labor conventions, duly ratified, are domestic law." Other human rights treaties, including those on economic, social, and cultural rights, are a guide for interpretation and prevail in the domestic legal order, pursuant to Article 93 of the Constitution.
3. In December 1997, Colombia acceded to the Additional Protocol to the American Convention on Human Rights (the "Convention" or the "American Convention") on economic, social, and cultural rights, known as the Protocol of San Salvador. Law 319 of September 20, 1996, approved that Protocol after both the Senate and the House of Representatives considered it. Later, the Constitutional Court of Colombia, in an important and extensive analysis, declared the Protocol to be constitutional, as it was found to be perfectly compatible with the letter and spirit of the Constitution of Colombia.( 2 ) The Commission highly values Colombia's accession to this instrument, which brings the inter-American system very close to the day when this treaty, detailing the economic, social and cultural rights of the Latin American people, will enter into full force. With ratification by just one more country, the Protocol of San Salvador will enter into force.
4. The fact that this Protocol has yet to enter into force, however, does not mean that the inter-American system lacks provisions which directly protect economic, social, and cultural rights, and give rise to obligations for the Colombian State. Article 26 of the American Convention requires that the states parties to the Convention adopt "measures, both internally and through international cooperation ... with a view to achieving progressively, by legislation or other appropriate means, the full realization" of these rights. As the Inter-American Commission on Human Rights (the "Commission," the "IACHR" or the "Inter-American Commission") has stated previously: While Article 26 does not enumerate specific measures of implementation, leaving the State to determine the most appropriate administrative, social, legislative, or other steps to pursue, it expresses a legal obligation on the part of the State to engage in such a process of determination and to adopt progressive measures in this sphere. The principle of progressive development establishes that such measures are to be undertaken in a manner which constantly and consistently advances toward the full realization of these rights."( 3 ) Furthermore, the Charter of the Organization of American States ("OAS"), as amended by the Protocol of Buenos Aires, enshrines several economic, social, and cultural rights at Articles 33, 44, and 48, among others. Finally, the American Declaration on the Rights and Duties of Man, at Articles XI, XII, XIII, XIV, XV, XVI, and XXII, sets forth many of these rights. The Inter-American Court of Human Rights has held that the American Declaration has full legal effect, and the member states of the OAS are bound by it.( 4 )
5. Having briefly described the legal framework and the legal basis of the obligation of the Colombian State to respect and guarantee economic, social, and cultural rights, the Commission will now analyze the actual effectiveness of these rights. The Commission understands that neither the existence of the legal provisions cited nor of government projects brought to the Commission’s attention during its visit are sufficient to consider that the rights are actually respected or guaranteed. It is essential that the economic, social, and cultural rights recognized in international and constitutional provisions have real effect in the daily lives of each of the inhabitants of Colombia, thereby guaranteeing minimal conditions for leading a dignified life.
6. The progressive nature of the duty to ensure the observance of some of these rights, as is recognized in the language of the provisions cited, does not mean that Colombia can delay in adopting all measures needed to make them effective. To the contrary, Colombia has the obligation to immediately begin the process leading to the complete realization of the rights contained in those provisions. In no way can the progressive nature of the rights mean that Colombia can indefinitely postpone the efforts aimed at their complete attainment.( 5 )
7. The Commission understands that this obligation to progressively develop economic, social, and cultural rights in Colombia is not necessarily being fully met by the State. Thus, for example, the percentage of the population with access to health care fell from 88% to 87% between 1980 and 1993. The obligation to develop these rights progressively requires at a minimum that their observance and access to them not be diminished over time.
B. THE EFFECTIVENESS OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
8. The prevailing socioeconomic situation in Colombia has traditionally placed it among those countries with the best economic indicators in Latin America. Most of the indicators have been above average for the region.
9. Without claiming to engage in an exhaustive analysis, the Commission provides the following examples. While illiteracy in Latin American and the Caribbean as a whole is 12% for men and 15% for women over 15 years of age, in Colombia the rate is 9% for both. While the percentage of the population with access to health services and drinking water is 57% and 73% respectively, for Latin America and the Caribbean as a whole, in Colombia they are notably higher, at 63% and 76%, respectively.( 6 )
10. The Commission understands that the indicators outlined as examples, together with others, have made it possible to achieve greater observance of economic, social, and cultural rights than in other countries of the region. The Commission takes note of this situation, and urges the Colombian government to maintain it. Nonetheless, the Commission must note as well that the economic situation in Colombia is deteriorating, causing the country to begin to lag behind the rest of the region in some respects. For example, unemployment has climbed to hitherto unknown levels, from 7.6% (443,574 unemployed) in the third quarter of 1994, to 12.7% (798,748 unemployed) in March 1997.( 7 ) Debt-service payments for 1996 came to 6.1% of the gross domestic product for the region as a whole, and to 6.6% in Colombia.( 8 ) Foreign debt has reached U.S. $31.6 billion dollars.( 9 ) In addition, Colombia has suffered, in recent years, from serious trade deficits, amounting to 4.1 billion dollars in 1995, 4.7 billion in 1996 and 4.8 billion in 1997.( 10 ) The Commission is especially concerned by the fact that the infant mortality rate in Colombia is more than double the figure for the rest of the region.( 11 ) The Government should take forceful measures to guarantee that infant mortality is brought down to a number in accordance with the economic situation described above.
11. The principles of non-discrimination and equal protection before the law, set forth in Articles 1 and 24 of the American Convention, also apply to economic, social, and cultural rights. Nonetheless, in Colombia there are profound differences in the effective observance of economic, social, and cultural rights which divide the rural population from the urban population. In addition, there is a profoundly inequitable distribution of income between the richest and poorest sectors in Colombia, with a very large percentage of Colombians living below the poverty line.
12. In Colombia, poverty is on the rise, in differing degrees for rural and urban areas. Whereas in 1991, 29% of the rural population was below the poverty line, one year later that percentage rose to 31.2%. During the same period, the urban population below the poverty line increased from 7.8% to 8%, respectively.( 12 )
13. Whereas the poorest 10% of the population accounts for only 1% of consumption, the wealthiest 10% is responsible for 46.9% of all consumer spending.( 13 ) The Commission recommends that the Colombian state adopt as many measures as needed to reduce inequities in Colombia and for the Government to ensure that the poorest sectors of the population are able to live in conditions such that their basic needs are met.
14. These wealth inequities and increasing poverty levels also affect access to education. One of the principle reasons why children leave school is the cost of education. Although education itself is free, many families cannot afford the costs associated with schooling, such as buying clothing and materials and paying for transportation. For example, in 1991, the cost of education was named as the primary reason that young girls between 6 and 11 abandoned schooling. Poor persons are thus likely to have lower educational levels. In 1992, the population considered to be poor had an average of 4.32 years of schooling, while average number of years of schooling for the population not considered to be poor rose to 7.45. Because the level of schooling has a direct effect on wages earned, education is an important aspect of a cycle of poverty. Children from poor families receive fewer years of education than their wealthier counterparts and, as a result, obtain lower wages at adulthood. Their families thus tend to remain poor, making it likely that their children, in turn, will benefit from fewer years of education.
15. The Commission has also received information indicating that the quality of education is not adequate in Colombia. More than half (52.5%) of teachers have only a secondary education, while some teachers (0.5%) have only a primary education. Another factor affecting the quality of education is the inadequate pay received by teachers. According to the Colombian Federation of Educators, the average monthly salary of teachers is $292,000 pesos (approximately $185 dollars) and 55% of teachers earn only $250,000 pesos (approximately $158 dollars).( 14 )
16. The IACHR has received information regarding the National Development Plan for the 1994-1998 period, called "El Salto Social" ("the Social Leap Forward") implemented by the Government, as well as the goals set in that plan. Nonetheless, it has found that many of its ambitious anticipated results have not been attained. Thus, while El Salto Social proposed to create 1.5 million new jobs, as of early 1997 the net creation of new jobs came to 180,000, just 12% of the goal.( 15 ) For these reasons, the Commission adopts the recommendation of the Committee on Economic, Social and Cultural Rights of the United Nations, "to make concerted efforts to improve the effectiveness of Colombia's economic and social development programs."( 16 )
C. VIOLENCE, FORCED DISPLACEMENT, AND THE OBSERVANCE OF ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
17. The phenomenon of widespread violence, analyzed carefully by the Commission in other Chapters of this Report, together with the situation of the thousands of Colombians who have been displaced from their homes, has negative repercussions on the effective observance of economic, social, and cultural rights.
18. As the Committee on Economic, Social, and Cultural Rights of the United Nations has indicated, "a situation of violence persists on a large scale in Colombia ... [that] has a seriously destabilizing effect on the country and hampers the Government's efforts to guarantee the full enjoyment of economic, social, and cultural rights."( 17 )
19. The negative impact of the violence demonstrates the interdependence of civil and political rights, on the one hand, and economic, social, and cultural rights on the other. As the Commission has indicated in another context, this is the result of "the organic relationship between the violation of the rights to physical safety on the one hand, and neglect of economic and social rights ... on the other. That relationship, as has been shown, is in large measure one of cause and effect."( 18 )
20. Colombia's internal armed conflict requires the Government to use funds for defense and weapons that should be earmarked to address the population's unmet basic needs. The Commission feels compelled to note how social indicators have declined in recent years, just as defense spending has been on the rise. Defense spending as a percentage of gross domestic product rose from 1.6% in 1985 to 2.6% in 1995. In the same years, the percentage of Government spending dedicated to defense spending rose from 10.3% to 16.3%.( 19 )
21. The Commission has taken note of the information that it has received regarding the plans of the Government of President Andrés Pastrana to address the connection between the violence, the deterioration of the economic situation and their negative impact on human rights. President Pastrana has prepared a Development Plan 1998-2002 for presentation to the Congress. The central objective of this plan is to work toward the construction of peace by creating a society with characteristics which are favorable for peace. The pillars of the plan are the following: 1) achieve a viable and participative State; 2) reconstruct the social fabric; 3) move forward hand in hand in the development of peace; 4) bring life and vitality back to the motor of economic growth - employment.( 20 )
In addition, as the Commission has previously explained, the violence has caused forced displacement. Persons who are forcibly displaced, as described in depth in the respective Chapter, suffer from many unmet needs which directly affect their economic, social, and cultural rights.
Based on the foregoing, the Commission makes the following recommendations to the Colombian State:
1.The State should, through economic development and other programs address the problem of the inequitable distribution of wealth in Colombia, with the object of effectively combating the poverty that characterizes the situation of many sectors of the population. The State should also undertake concerted efforts to improve the efficiency of existing economic and social development programs.
2.The State should take all measures necessary to ensure that the observance of economic, social and cultural rights does not diminish in any aspect over time.
3.The State should take all necessary steps to improve the material conditions of teaching staff in the nation’s schools and to ensure the effective right to free primary education for all. The State should take measures to improve the quality of education at all levels.
4.The State should give priority to efforts that seek to relieve the extremely difficult economic, social and cultural situation of internally displaced persons.
( 1 ) Constitutional Court, Judgment T-570/92 (translation by the Commission).
( 2 ) See Constitutional Court, Judgment C-251/97, September 28, 1997.
( 3 ) IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, at 23.
( 4 ) See I/A Court H.R., "Interpretation of the American Declaration on the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Advisory Opinion OC-10/89, July 14, 1989, Series A, No. 10.
( 5 ) See Committee on Economic, Social and Cultural Rights of the United Nations, General Observation No. 3, adopted at the Fifth Session, 1990, E/1991/23; Limburgh Principles, Human Rights Quarterly, Vol. 9, No. 2, 1987, at 121.
( 6 ) See World Bank, World Development Indicators, 1998, at 16, 18.
( 7 ) Oscar Arcos Palma, Dando Palos de Ciego, Ciendías Magazine, at 10.
( 8 ) See World Bank, at 242, 248.
( 9 ) See CEPAL, Economic Balance for Latin America and the Caribbean, 1997.
( 10 ) See id.
( 11 ) See id., at 104, 106. The indicators are 7 per 1,000 live births in Colombia, but only 2 to 3 per 1,000 live births in the region.
( 12 ) See World Bank, at 64.
( 13 ) World Bank, at 68. Along the same lines, see "Market alone will not correct inequities," in Latin America Weekly Report, March 4, 1997. According to that report, the wealthiest 10% of the Colombian population earns 41 times more than the poorest 10% of the population. See also Albert Berry, The Income Distribution Threat in Latin America, in Latin America Research Review, Vol. 32, No. 2, 1997, at 3-40.
( 14 ) See "Tarea de matemáticas", El Tiempo, May 8, 1995. The minimum wage established for 1995 was $118,933.50 pesos.
( 15 ) See Ciendías, at 10.
( 16 ) Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by Member Parties pursuant to Articles 16 and 17 of the Covenant, Concluding Observations of the Committee, December 8, 1995, E/C.12/1995/12, item 21.
( 17 ) Id.
( 18 ) Annual Report of the Inter-American Commission on Human Rights 1979-1980, OEA/Ser.L/V/II.50 Doc. 13, rev. 1, October 12, 1980, at 151.
( 19 ) See World Bank, at 248.
( 20 ) Speech of President Andrés Pastrana Arango, on the occasion of the presentation of the Development Plan to the National Planning Council, November 17, 1998.