8
d)
regarding the fourth criterion, that this constituted “a strictly provisional
parameter, given that the use set for the land by the community nowadays might
possibly not be the same use set in the future; therefore, the State is concerned
because the establishment of criteria with such a high degree of variability may
generate serious difficulties at the moment of determining the beneficiaries of the
provisional measures.” Additionally, the State emphasized that “the burden of the
proof in matters of determination and identification of the beneficiaries of the
provisional measures is strictly on […] the [Inter-American] Commission, the organ
that requests the […] Court to adopt the measures in matters not yet submitted to
the Tribunal[…], such as the case under study”. Furthermore, the State expressed its
willingness “[to] work on the agreement and monitoring of the present provisional
measures with the population that the […] Court determines as their beneficiary; and
underline[d] the importance of the strengthening of the organizations […] of the
Afro-Colombian population as well as of the Community Councils.”
*
* *
16.
That the Court appreciates the efforts carried out by the Inter-American Commission
regarding the group of criteria submitted for the determination of the beneficiaries of the
present measures. The Tribunal is aware of the difficulties that such task has implied and
the significance that it has for the effective implementation of this measures. However, the
Court considers that, since it was the Commission who requested the adoption of the
present provisional measures, it shall not limit the establishment of general criteria
according to which the Tribunal shall decide who the beneficiaries of the present preliminary
measures are. The Commission, besides having submitted objective criteria for the
determination of the protected persons, shall inform clearly to the Tribunal its position as to
which is the range of people that make up the beneficiary communities, namely, whether
they were formed by the 161 families represented by the Inter-Ecclesiastical Commission of
Justice and Peace, as well as the 231 claiming families, and the 450 families
that make up the “Return Management Committee”, or if only one of this groups shall be
considered as the beneficiary.
17.
That despite that stated above, given the time that has passed since the request of
the 231 families, and due to the fact that this type of request is continually submitted
before this Tribunal by other groups of families, (supra Having Seen 8), the Court shall
analyze the criteria presented by the Inter-American Commission in order to establish
whether they are adequate to clarify which is the range of beneficiaries of the measures
and, in this line, to evaluate the referred requests.
18.
That regarding the first criteria provided by the Inter-American Commission,
regarding the membership to the human group that forms the so-called “Minor Community
Councils” of the basin of the Jiguamandó and Curvaradó rivers, recognized by the […]
Colombian State locally and municipally, this Tribunal notes that the Law 70 of 1993,
“[t]hrough which temporary Article 55 of the Political Constitution,” 7 does not establish a
specific name designation for the organizational institutions established by the communities
of the zone. Such law establishes that, in order to consider the communities as beneficiaries
of the law, they shall establish Community Councils as a form of internal organization,
7
Crf. Law 70 of 1993, published in the Official Gazette No. 41.013 of August 31, 1993, which explained the
provisional Article 55 of the Political Constitution. Available at: http://www.secretariasenado.gov.co/
senado/basedoc/ley/1993/ley_0070_1993.html.