7
identification of […] the risk factors suffered by the persons that they represent [….] since
2001, […] all of them members of the Community Councils of Curvaradó y Jiguamiandó,”
whom, according to their judgment, “are the beneficiaries of the Provisional Measures.”
Finally, it requested the Court to “take any measures to allow the full and effective
enforcement of the protection measures of which the inhabitants of the Humanitarian and
Biodiversity Zones are the beneficiaries that [they] represent.”
15.
That the State referred to the four criteria suggested by the Inter-American
Commission for the determination and identification of the beneficiaries of the provisional
measures (supra Having Seen 13). In that sense, as a general observation, it considered
that the Commission did not “precise with sufficient criteria” to permit the determination
and identification of the beneficiaries of the measures in a collective sense. Additionally, it
indicated, inter alia:
a)
regarding the first criterion, that the Commission had lacked precision in the
terms, because the Law 70 of 1993 does not assign denominations such as “Minor
Community Councils” or “Major Community Councils” and that, in any event, what
existed, by its own denomination of the communities of the Jiguamiandó River and
Curbaradó River, was the “Major Community Councils.” Furthermore, the State
denied the existence of official statistics related to the Community Councils, since
precisely “one of the problems faced in the conformation of [such] is the
displacement of the inhabitants of the zone and the errors on the censuses.”
Likewise, it pointed out that in November 2000, “the Community of Curvaradó was
formed by 642 families (2415 persons) and […] the Community of Jiguamiandó [by]
483 families (2368 persons).” Regarding that particular matter, the State informed
that it currently is planning a census process within the Communities, and gave
information about the procedures for its development within the communities of
Jiguamiandó and Curvaradó. Finally, it pointed out that “[t]his commitment is
developed in a extremely delicate context; in part due to a conflict within the
community, particularly evident in the discrepancies of the criteria of appointment
and membership to the community councils; but also because the community links
have been disabled, exposing the persons in both councils to a regrettable
uprooting;”
b)
regarding the second criterion, which was not concordant with that
established by the Court in its Order of March 6, 2003, since in this Order it had also
considered the displaced persons as beneficiaries of the present provisional
measures. Finally, the State emphasized the difficulties that it would have to adopt
this suggested criterion, such as: identify with certainty the people that have
remained in the territory since the date of the aforementioned Order; the
determination of which authority would be the one charged with establishing such
permanence, and the differences within the Community that could arise while
applying such criterion, as this could deepen their division;
c)
regarding the third criterion, that it shall not have further relevance, due to
the fact that “it is only the two legal representatives of the Community Councils who
could attend the judicial hearing.” It added that if the Inter-American
Commission“refers to another type of participation, the State of Colombia wants to
point out that the criterion, interpreted in this manner, constitutes a strictly
excluding and discriminatory parameter, since the reasons not to have participated
in the judicial complaints may refer to different circumstances, one of them —for
example— could have [been] the lack of knowledge of the initiation of judicial
procedures for the recuperation of their territory, a situation that could have taken
place with the population that is in a situation of displacement,” and