No to glyphosate spraying. Yes to the peace agreement

No to glyphosate spraying. Yes to the peace agreement

Originally published in Confidencial Colombia  

The Constitutional Court by means of T-413 of November 29, 2021, widely disclosed on January 19, 2022, annulled the Environmental Management Plan, EMP, issued by the National Environmental Licensing Agency, on the use of glyphosate to eradicate illicit coca crops in the country. 

The high court upheld the second instance guardianship decision issued by the Administrative Court of Nariño in July 2020, which protected the communities’ rights to due process, participation, prior consultation, and access to information. 

The decision was based on a guardianship action filed by human rights and environmental organizations, for violating the fundamental rights of indigenous, black, raizal, and palenquero communities located in six nuclei in 14 departments and 104 municipalities, chosen by the government of Iván Duque to spray with glyphosate. 

The plaintiffs alleged that in the municipalities where the communities reside, they do not have a good internet connection that would facilitate adequate participation through the virtual channels provided by the National Environmental Licensing Agency. To this end, they brought up information from the National Administrative Department of Statistics, DANE, according to which only 52.7% of Colombians in the country have an internet connection, and of that figure, only 16.2% have connections in populated centers and dispersed rural areas.  

What did the Court overturn? It annulled Resolution 0095 of March 30, 2020, of the Ministry of the Interior, which determined that prior consultation with affected communities for the modification of the EMP was not appropriate; Resolution 0694 of April 14, 2021, of the National Environmental Licensing Agency, which contemplated procedures for informative meetings and semi-presential hearings on the return of glyphosate for ignoring the right to participation of the communities, and with which the National Environmental Licensing Agency approved the EMP presented by the National Police of the Program for the Eradication of Illicit Crops through aerial spraying with Glyphosate, PEICG; and Resolution 001 of 2020 of the Ministry of the Interior, which certified the non-presence of ethnic communities in the areas of influence defined for the program.  

What did the Court conclude? That it is not true that there are no communities in the 14 departments and 104 municipalities where the plan is planned, as the Ministry of the Interior said, taking into account that the National Environmental Licensing Agency determined that there are geographic coincidences between the operational nuclei of San José, Tumaco, Caucasia and Condoto with some indigenous reserves and collective territories of black communities.  

That “the environmental authority could not make a decision regarding the modification of the EMP of the PEICG without first carrying out the process of prior consultation with all the ethnic communities likely to be affected by the spraying activity, taking into account that it itself noted partial overlaps between these groups and the areas of influence of the project”. 

And that the guarantee of the right to prior consultation cannot be postponed until the eventual verification made in the Specific Environmental Management Plan. The evidenced violation of the aforementioned fundamental right requires the constitutional judge to take immediate and unpostponable protective actions, an essential premise of the guardianship action. 

What did the Court order?  To the National Environmental Licensing Agency, the Ministry of the Interior, and the National Police that, within a period of one year, extendable for up to six more months, “to carry out a process of prior consultation with the ethnic communities that are present in each of the six operation nuclei defined for the modification of the EMP of the PEICG, which cover a total of 104 municipalities in 14 departments” and, to the National Environmental Licensing Agency that, within the framework of the administrative process of modification of the EMP of the PEICG, to schedule again the informative meetings and the environmental public hearing. 

What did the Court remind them?  To the National Environmental Licensing Agency, the Ministry of Defense, the National Police, the Antinarcotics Directorate, and the Directorate of the National Authority for Prior Consultation of the Ministry of the Interior, that any administrative decision on the spraying activity must consider and abide by the constitutional parameters defined by the Constitutional Court in Ruling T-236 of 2017, especially those related to the application of the precautionary principle. 

On January 19, lawyer Rosa María Mateus of the José Alvear Restrepo Lawyers Collective welcomed the Court’s decision for recognizing that virtual hearings to address the use of the chemical in the territory “are not the ideal means to guarantee the participation of all communities”, since not all people have the technological means to connect and expose the risks of the use of glyphosate. 

On January 25, President Iván Duque referred to glyphosate spraying insisting on the need for its use to combat drug trafficking, and as has been his practice, he attacked the courts saying that “we cannot continue to see a judicial apparatus that constantly limits the capacity to confront this phenomenon”.  He alleged that behind the crimes and the assassination of social leaders are organized armed groups that feed off drug trafficking and are assassinating people in the process of reincorporation. 

Mr. Duque’s argument is too simplistic when he discharges the responsibility in this way. The state has in its hands a strategy to solve the problem of illicit crops without violating the rights of the affected communities. It is called Chapter 4 of the 2016 peace agreement, which Duque and his government have refused to implement. The government’s insistence on resuming glyphosate spraying, a failed tactic in the past, has been simultaneously a frontal challenge to Colombian courts and an effort to undermine the peace agreement. Not to mention the State’s responsibility by action and omission for crimes against social leaders, ex-combatants, and human rights defenders. 

If the Duque government is serious about ending illicit crops, it should address the social and economic problems of the 104 municipalities located in 14 of the country’s departments. As the police found during previous visits to these rural areas, the communities lack adequate social services, basic sanitation, energy, and access roads. According to the sentence, illicit crops are considered the only source of employment and income for these rural inhabitants. The problem is not that the courts protect the rights of Colombian citizens. The problem is that the government does not want to invest the time, effort, and money necessary to confront a structural problem that has existed for decades. In other words, the government refuses to implement the peace agreement. 

Rafael Barrios Mendivil
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