回应部门: Office of the Presidential Advisor for Human Rights
Note: This response was originally submitted in Spanish. Unofficial English translation provided by Business & Human Rights Resource Centre.
The Colombian government’s work in relation to Business and Human Rights has consisted mainly of dissemination of the Guiding Principles among civil society, firms and the public sector in order to create space for that agenda within the country. However, seeking to advance more proactively in the application of the UN Guiding Principles, several initiatives have been undertaken, two of which are worthy of particular note:
1) Working Group: The creation of an Interinstitutional Working Group on Business and Human Rights with the framework of the National System for Human Rights, the country’s highest human rights governing body, which was created by Decree 4100 of 2011 (For more information, please see the Decree (in Spanish) at [link]). The Group was formed in order to create an inter-agency space to address various issues that link businesses to human rights. In this first year and a half since its formation, work has focused on drawing up a document entitled “Lineamientos para una Política Pública de Derechos Humanos y Empresas” (Business and Human Rights Public Policy Guidelines). Launched in July 2014, it will be the basis for the National Action Plan being developed in 2015.
This Group is expected to take on a coordination role to steer the State’s actions in this area, to review general problems connected with the topic, and to supervise actions carried out within the framework of the National Action Plan, which will be developed.
2) Governance Structures: Conflict within territories means that there is a need to implement measures aimed at fostering and creating spaces of consultation and dialogue between civil society, companies and the government through what we call ‘governance structures’; they are spaces whose goal is to resolve human rights conflicts through dialogue and participation. The structure therefore functions as a strategy to mitigate the impact caused by the development of mega-projects. The first pilots of this strategy are being implemented in the El Quimbo and Ituango hydroelectric projects. This initiative is based on joint governance models aimed at recognising the diversity of interests, identifying the levels of interaction complexity, locating the sources of tensions and taking action on any points that can be changed, thus turning those tensions into medium- and long-term opportunities, and reviewing what type of interactions and stakeholders are involved in the situation and what their perceptions and opinions are.
Implementation of the governance structure for these projects seeks:
a. To articulate, coordinate and manage the response of the relevant bodies;
b. To ensure the participation of the community and of its various representatives in processes of citizen oversight and social control;
c. To monitor prior agreements, commitments and obligations, as well as those established during the project’s development and operation;
d. To foster and manage periodic and occasional accountability processes;
e. To establish appropriate and practical channels for the company, communities and territorial authorities (national, departmental and municipal) to relate to one another.
There are many authorities connected with the Business and Human Rights topic. In order to create a coordination space, the Interinstitutional Working Group mentioned in point 1 was formed. The entities and departments/divisions of those entities that form part of the Group are listed below:
Business and Human Rights Working Group – National System for Human Rights and International Humanitarian Law
- Office of the High Counsellor for Citizen Coexistence and Security
- High Commissioner for Peace
- Secretariat for Transparency
- Office of Comptroller General of the Republic (Division for the Environmental Sector, Division for Citizen Participation, Division for the Mining and Energy Sector, Division for the Social Sector)
- Office of the Ombudsman (Evaluation of risks to the civilian population as a consequence of armed conflict (SAT), Monitoring of Human Rights Public Policies (Prosedher), Collective and Environmental Rights)
- Administrative Department for Social Prosperity (DPS) (Colombian Institute for Family Welfare (ICBF), Directorate for Management Control and Planning, Subdirectorate Unit for Assistance and Full Reparation of Victims, Special Administrative Unit for Territorial Consolidation, National Agency for Overcoming Extreme Poverty (ANSPE))
- National Department for Planning (Directorate for Sustainable Rural Development, Directorate for Justice, Security and Government, National Agency for Public Procurement (Colombia Compra Eficiente)
- Attorney General's Office (National Unit for Crimes against Natural Resources and the Environment)
- Ministry of Agriculture and Rural Development (Legal Advice Office, Colombian Institute for Rural Development (INCODER))
- Ministry of the Environment and Sustainable Development (Vice-Ministry of the Environment and Sustainable Development, Office of the Minister National Authority for Environmental Licences (ANLA))
- Ministry of Commerce, Industry and Tourism (Secretariat General Vice-Ministry of Foreign Trade, Vice-Ministry of Business Development, Vice-Ministry of Tourism, Superintendency of Industry and Commerce, Superintendency of Companies, Bancoldex Proexport Artesanías de Colombia (Arts and Crafts of Colombia))
- Ministry of National Defence (Directorate for Human Rights)
- Ministry of Mines and Energy (Office of Environmental and Social Affairs, National Hydrocarbons Agency, National Mining Agency)
- Ministry of Labour (Directorate for Fundamental Labour Rights)
- Ministry of the Interior (Directorate for Prior Consultation, Directorate for Human Rights)
- Office of the Prosecutor General of the Nation (Division for Human Rights and Ethnic Affairs, Division for Labour and Social Security Affairs, Division for Environmental and Agricultural Affairs)
- National Learning Service (SENA) (Director of Employment, Work and Entrepreneurship, SENA)
- Superintendency of Notaries and Records: Deputy Superintendent for the Protection, Restitution and Formalization of Land titles
- Superintendency of Surveillance and Private Security
- Financial Superintendency
The Colombian government does not yet have an Action Plan, though it has been carrying out preparatory work for two years and aims to have it ready by the end of 2015. From the work carried out by the Colombian government, worthy of note as a significant outcome is the document “Lineamientos para una Política Pública de Derechos Humanos y Empresas” (Business and Human Rights Public Policy Guidelines), which contains lessons learned and recommendations made by the national government, civil society and private sector representatives, who took part in many multi-stakeholders discussions, national consultations, regional consultations and bilateral dialogues. The document is divided into three main areas (based on the three pillars of the UN Guiding Principles) and contains the roadmap for drawing up the National Action Plan in 2015.
It should be noted, however, that even though the Colombian government has not completed the creation stage of the National Action Plan, it does have a broad regulatory framework. While this framework could be improved, it does allow many of the existing challenges to be addressed.
In this respect, some of the existing laws and rules are listed below:
- Political Constitution of Colombia of 1991. Article 13
- Law 1496 of 2011
- Law 931 of 2004
- Law 975 of 2001
- On labour issues, the constitutional corpus comprises the Preamble and Articles 1, 25, 26, 39, 53, 54, 55, 56, 57, 64 and 125 of the Constitution of 1991, as well as the core aspects of ILO Conventions 87 and 98
- Law 22 of 1967
- Law 50 of 1990
- Law 584 of 2000
- Law 581 of 2001
- Decree 4588 of 2006
- Tripartite agreement
- Political Constitution of Colombia of 1991. Articles 7, 8, 49, 58, 63, 79, 80, 88, 95 and 330
- Decree Law 2811 of 1974
- Law 23 of 1973
- Law 99 of 1993
- Decree 1753 of 1994
- Decree 2150 of 1995 and its regulations.
- Law 388 of 1997
- Law 491 of 1999
- Decree 1122/99
- Decree 1124/99
- Law 1333 of 2009
- Decree 3678 of 2010
- Decree 2820 of 2010
- Law 1450 of 2011, through which the 2010-2014 National Development Plan is formulated, states that, "in the four-year period from 2010 to 2014, the following cross-disciplinary principles will be incorporated into all spheres of national activity in order to secure Prosperity for All: […] a society in which environmental sustainability, adaptation to climate change, access to information and communication technologies, and cultural development are priorities and practices representing essential components of welfare and principles of equity for future generations." The relevant environmental aspects of the law will be noted in the respective topics.
Criminal and civil liability:
- Political Constitution.
- Article 29 Law 599 of 2000
- Law 906 of 2004
- Law 57 of 1887
- Decree 1400 of 1970
- Law 1437 of 2011
Ownership and access to land:
- Political Constitution of 1991.
- Article 58 Law 1448 of 2011
- Law 906 of 2004
The above-mentioned Guidelines, which will serve as the bases for the Action Plan, were developed by referring to international human rights standards. In particular, the UN Guiding Principles, the OECD Guidelines for Multinational Enterprises and the UN Global Compact Principles were taken as the main points of reference.
Consultations on the content of the Guidelines took place through a variety of processes:
- For civil society, consultations took place in all of the country’s departments, approximately 19 people in the context of the National Conference on Human Rights, at which one of the topics discussed with communities was Business and Human Rights. Six multi-stakeholder regional training and dialogue sessions were held, in which there was a space to get feedback on the proposed Guidelines. These were held in Huila, Bolívar, Casanare, Valle del Cauca, Antioquia and Norte de Santander.
Furthermore, consultations took place with various NGOs familiar with the topic in order to get their input to create the Guidelines. Some of the proposed lines of action reflect recommendations obtained from these consultations.
- For the private sector, dialogue and feedback processes took place in many settings: the first of these were the above-mentioned multi-stakeholder regional training and dialogue sessions.
Secondly, many dialogue sessions were held the country’s well-established multi-stakeholder initiatives: these were Guías Colombia (Colombia Guidelines) and Comité Minero Energético en Seguridad y Derechos Humanos (Mining and Energy Committee on Security & Human Rights).
As a third line of consultation and dialogue with business owners, two consultation events were held about the foundations of the Guidelines: in the first, the content was discussed with chambers of commerce throughout the country and, in the second, conversations were held with companies that were unaware of the UN framework.
- Finally, the creation process involved many technical discussion sessions with various State entities, in the context of the Working Group formed for that purpose.
No specific measures have been adopted on this issue. However, in the Guidelines document mentioned on numerous occasions in the answers to this questionnaire, a commitment to some measures has been made in order to make progress on this front. These recommended measures are expected to be included in the drafting of the National Action Plan.
A valuable step that has been taken is the creation of the Colombian National Contact Point. The Ministry of Commerce, Industry and Tourism established the Colombian National Contact Point by means of Decree 1400 of 2012 and assigned it the following main functions:
a. To raise awareness of and disseminate the Guidelines to State entities and organizations, the business sector, trade union organizations, NGOs and other stakeholders.
b. To examine specific cases arising from application of the Guidelines by a multinational enterprise in Colombia.
c. To contribute to the resolution of specific cases arising from application of the Guidelines, in a way that is impartial, predictable, fair and compatible with the principles and rules of the Guidelines.
d. To serve as a discussion forum, helping interested parties to solve the problems posed in specific cases in an efficient, opportune and appropriate way, in accordance with the Guidelines.
e. To cooperate with the National Contact Points of other countries that have signed up to the Guidelines.
f. To provide a timely response to Guideline-related enquiries made by other National Contact Points, the business sector, trade union organizations, NGOs, the governments of countries that have not signed up to the Guidelines, and other interested parties.
Furthermore, it should be noted that governance structures, as a concept applicable to different types of conflict, represent a good model for ensuring free-flowing dialogue in cases of significant conflict between companies and communities.
Most important factor:
- Concern about deterring foreign investment
- Lack of understanding or awareness of business & human rights in government
- Challenges of coordinating across government departments
- Lack of resources for enforcement, monitoring and prosecution
- Opposition by economic interest groups or business associations
Not a factor:
- Opposition or lack of consensus within government
- Other opposition by influential people or groups outside government
Technical assistance for the implementation of an information system to enable monitoring of the impact on human rights of business activities in the territories.