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Rights Archives: Right to an adequate standard of living

Decision T-291/09

Year: 2009 (Date of Decision: 29 April, 2009)

Forum, Country: Constitutional Court; Colombia

Standards, Rights: Non-discrimination and equal protection of the law; Right to decent work; Right to life; Right to an adequate standard of living

Summary Background: A group of waste pickers from the City of Cali filed an appeal of legal protection against several municipal entities which had allegedly violated their rights to work and a decent life through the closure of Navarro waste dump. At the Navarro site, the waste pickers had developed over the course of 30 years the economic activity of recycling to provide a livelihood for themselves and their families.

Traditionally recycling activities in Colombia have been undertaken by extremely poor and marginalized sectors of society. But gradually, as recycling became more profitable, a privatization trend set in with waste management companies dominating the scene. In 2008, Colombia enacted legislation penalizing activities associated with informal waste pickers’ work activities. When the City of Cali privatized its waste management system, at the time of the public bidding process, it disregarded prior orders from the Constitutional Court that public agencies take affirmative actions to guarantee the participation of informal recyclers in the privatization process. It was at this time that the Navarro Landfill in Cali was closed. More than 1000 families that worked in that landfill were not permitted to work in the new landfill that replaced the Navarro Landfill. Although they were assured a social reintegration plan that included opportunities of employment, capacity-building programs, health and education, these commitments were never honoured.

Holding: The Court held that municipal authorities had violated the Navarro waste pickers’ fundamental right to a decent life in connection with the right to work [para. III.9.1.1].

The Court also made clear that the defendant entities established discriminatory laws and policies, which had adversely affected the petitioners [para. III.2].

The Court’s ruling decision

  1. developed the precedent established in earlier cases regarding the rights of informal recyclers during the privatization of waste collection,
  2. suspended the bidding process,
  3. ordered the State to adopt all the necessary measures to assure effective implementation of recyclers’ right to health, education and food,
  4. ordered the State to ensure recyclers’ access to education as well as to other social services,
  5. included recyclers in State Solid Waste Disposal Programs of collection, and recognized them as autonomous solidarity-based entrepreneurs,
  6. created a committee to reform the municipal waste management policy of Cali and integrate the informal recyclers into the formal economy of waste management,
  7. ordered emergency measures to be taken to address the Navarro recyclers’ survival needs and
  8. suspended legal and administrative provisions that were adverse to waste pickers’ trade in Cali [para. IV].

The case emphasized the positive measures the State must undertake towards overcoming the material inequality between groups. The Court stated that “Equality is one of the pillars upon which is based the Colombian State. The Constitution recognizes equality as a principle, a value and as a fundamental right that goes beyond the classical equality formula before the law, used to build a postulate that points towards the realization of conditions of material equality. In that perspective, a central objective in the equality clause is the protection of traditionally discriminated or marginalized groups: on one side, as an abstention mandate or interdiction of discriminatory treatment and, on the other side, as an intervention mandate, through which the State is obliged to carry out actions oriented towards the overcoming of the material inequality faced by such groups” [para. III.3].

Additional Comments: The case explores the State’s duty to respect, protect and fulfil.

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Case of the Sawhoyamaxa Indigenous Community

Year: 2006 (Date of Decision: 29 March, 2006)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Indigenous people

Summary Background: The Sawhoyamaxa Community has historically lived in the lands of the Paraguayan Chaco, which since the 1930s have been transferred to private owners and gradually divided. This increased the restrictions for the indigenous population to access their traditional lands, thus bringing about significant changes in the Community’s subsistence activities and finally caused their displacement.

Holding: The Court found various violations of the ACHR, such as of article 8 and 25 (right to a fair trial and judicial protection), article 21 (right to property), article 4(1) (right to life), and article 3 (right to recognition as a Person before the Law), all of them in relation to article 1(1) (the obligation to respect rights) [paras. 112, 144, 178 and 194]. The Court ordered the Paraguayan government to adopt measures for returning the ancestral lands to the Community within three years [para. 215], to provide basic goods and services and implement an emergency communication system until they recovered their land [para. 230]. Moreover, a development fund for the Community in the amount of one million US dollars had to be created [para. 224], compensation in the amount of 20,000 US dollars was to be paid to the families of the 17 persons who died as the result of the forced displacement of the Community [para. 226] as well as for non-pecuniary damages, costs and expenses [para. 239].

Additional Comments: However, in the years following the judgement no progress was made toward the implementation of the judgements and the communities decided to unite their efforts and to ask Amnesty International to help them set up an international campaign designed to put pressure on the government.

The fact that the two communities were in the exact situation and undertook joint actions may have been an important factor in the enforcement process.

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Case of the Yakye Axa Indigenous Community

Year: 2005 (Date of Decision: 17 June, 2005)

Forum, Country: Inter-American Court of Human Rights; Paraguay

Standards, Rights: Procedural fairness and due process; Right to life; Right to adequate standard of living; Right to adequate housing; Right to adequate food; Rights to water and sanitation; Right to health; Right to education; Indigenous people

Summary Background: The Yakye Axa community, a Paraguayan indigenous community, has traditionally lived in the lands of the Paraguayan Chaco, large parts of which were sold through the London stock exchange at the end of the 19th century. In 1979, the Anglican Church began a comprehensive development program and fostered resettlement of the indigenous groups to Estancia El Estribo, where the natural environment and resources are different from those of the place of origin of these indigenous groups. While they stayed there, the community lacked adequate access to food and water, health services and education. Sixteen persons died due to these living conditions.

Holding: The Court found that Paraguay had violated various provisions of the American Convention on Human Rights (ACHR) in relation to article 1(1) (the obligation to respect rights), such as the right to a fair trial and judicial protection (article 8 and 25) [para. 119], the right to property (article 21) [para. 156] and the right to life (article 4) [para. 176], since it failed to adopt the necessary positive measures required to ensure the community lived under dignified conditions during the period they had to do without their land [para. 168-169]. The Court considered that Paraguay had failed to adopt adequate measures to ensure its domestic law guaranteed the community’s effective use and enjoyment of their traditional land and concluded that the State had the obligation to adopt positive measures towards a dignified life, particularly when high risk, vulnerable groups that require priority protection were at stake [para. 162]. The Court ordered the State to submit the traditional land to the community at no cost [para. 217], to establish a fund for the purchase of land for the community [para. 218], and to provide basic goods and services necessary for the community to survive as long as the Community remained landless [para. 221].

Moreover, the State was ordered to create a community development fund and a community program for the supply of drinking water and sanitary infrastructure. In addition, the Court ordered the State to allocate 950,000 US dollars to a community development program consisting of the implementation of education, housing, agricultural and health programs [para. 205]. Pecuniary damage had to be compensated and costs and expenses reimbursed within one year [para. 233].

Additional Comments: The Inter-American Court stated that it would supervise enforcement and ordered the State to submit a report on measures adopted within one year after the decision was notified [para. 241].

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