The author's of the communication (initial submission dated 10 June 1988 and subsequent correspondence) are E. P., F. W., D. B., L. G., O. B. and A. H., all citiseas of Colombia, residing in the islands of San Andrés, Providence and Catalina, which form an archipelago 300 miles north of mainland Colombia. They invoke articles 1, 2, 25, 26 and 27 of the International Covenant on Civil and Political Rights and claim that, as members of an overwhelmingly English-speaking Protestant population, they are subjected to violations of their rights by Colombia, which has sovereignty over the islands.
The author's state that in 1819, Colombia asserted sovereignty over the archipelago under the doctrine of uti possidetia and consolidated its administration by military force against the will of the islanders. The author's claim that Colombia has been violating their rights ever since.
According to the author's, recent Colombian legislation has led to the dispossession of many islanders of their land. As part of a project to Colombianise” the islands, the Government provides subsidies and incentives to mainland Colombians, particularly to families of four or more, to settle in the archipelago. The process of registering land ownership (Juicio de sertenencia) favours mainianders by permitting them to post their claims in Spanish at the court house or even in Spanish language nowspapers in far-away towne, such as Bogoté or Barranquilla. Indigenous land owners who cannot afford a lawyer, or cannot underetand Spanish, or are simply unaware of claims against their land, are in effect victima of expropriation by mainland Colombians. Already 40,0005 1 9 1 10 10 2771 3275 283 45 96.362648 mainland Colombians and other foreigners have settled on the 445 1 9 1 11 10 2179 3356 205 46 94.948776 square kilometre island of San Andrés. 2.35 1 10 1 1 2 419 3562 104 44 94.436768 The authors assert that the overpopulation resulting from the government's policies has caused severe environmental damage. New developments, including more than 305 1 11 1 1 3 526 3700 233 47 95.907539 hotels, 105 1 11 1 1 5 912 3700 172 44 96.321007 banks and 7005 1 11 1 1 8 1409 3695 480 57 46.792545 imported-goods stores, have put such demands on the water table that an artificial drought has been created, making farming ~184- a ln a al a a OA II OCCA rt is st, impossible, thus deatroying one of the islanders’ traditional livelihocds. The Government has permit.ted the destruction of the mangrove swamps, formerly rich sources of lobster, fish, crabs and crayfish, by allowing electric power plante freely to dump hot, polluted water. Environmental protection laws are allegedly selectively applied to islanders.
The author's asgort that the Government. has granted fishing rights and other concessions to Honduras and other countries without regard to native interests. This has deprived the islanders of another traditional meaus of survival.
Spanish has been made the official language. Education is provided only in Spanish and native children are rejected by the schoole if they fail to learn Spanish. Public libraries offer booka only in Spanish. Nativiis are presumed to know Spanish in Court. Islanders allegedly are often harassed or even arrested by the police for speaking English in public. Disciplinary actions for these abuses are rere and never result in more than the transfer of the responsible officers; the abuses continue with their replacements. All the mass media are in Spanish. These facts are alleged to constitute violations of article 27 of the Covenant.
The author's claim that native islanders suffer pervasive employment discrimination. Only 15 per vent of the workers in the private sector are indigenous. Most businesses, and at least one Government oyeacy, La Ragiatraduria de_lnatrumentios Publicog, hire no natives at all. Natives reap less than § per cent of the islands' total income. Natives are also denied equal access to public utilities such as water, electricity and telecommunications. The foregoing, in the author's' opinion, constitutes violations of article 26 of the Covenant.
With regard to article 25 of the Covenant, the author's note that the archipelago's Governor is not elected by the islanders but is appointed in Bogotá by the President of Colombia. Only 11 of the 90 Governors appointed by the central government have been islanders. Electious to the local council are not by secret ballot. This has led to rampant favouritism and alleged blackmail with regard to jobs, housing, scholarships and other government benefits. In any event, by virtue of law One of 1972, the local council was stripped of much of its power, which was transferred to the Governor. This law algo stripped San Andrés of ite status of a municipality.
The author's object to the increasing miiitarlsation of their islands, in particular, the expansion of the Cove-Seaside naval base and other recent land acquisitions by the Colombian Armed Forces. They fear that this may invoive them militarily in Central American contilicts of which they wish no part. .
The author's claim to have exhausted domestic remedies, to the axtent that thoy can be deemed available and effective for purposes of article 5, paragraph 2 (b), of the Optional Protocol. A series of letters, telegrams and petiticns sent in 1985-1987 to former President Betancur, the Governor and other ministers went unanswered. President Virgilio Barco sent a telegram in reply to one of their letters but nothing that was promised was accomplished. On 4 danuary 1987, they unsuccessfully submitted a Proyecto de Aquardo to the Covernor seeking restraints : on the alienation of land. Several meetings with che Governor produced verbal promises that were not fulfilled. Moreover, the Constitution and the National Bill of Laws of Colombia contain no provisions fer the prutection or recognition of minorities or their rights, in violation of article 2 of the Covenant. i -~165--
By Gecision cf 21 October 1988, the Working Group of the Human Rights Comaittee requested the author's to clarify whether they had been individually affeuted by the alleged activities of the Colombian authorities and to elaborate on their cleim that they had complied with the requirements of article 5, paregraph 2 (b), of tne Optional Protocol concerning exhaustion of domestic remedies.
In their zeply, dated 21 December 1988, to the Working Group's request for Clarification and elaboration, the author's itemise the effects that the Government's policies are said to have had on them personally: - O. B. allegedly was denied a teaching position for which she was otherwise qualified because she did not speak Spanish. F. W., D. B., EB. P. and L. G., were allegedly unable to qualify for teaching positions in English. - Three of the author's have children who are allegedly unable to receive education in their native language. - E. P. was allegedly denied the possibility to apply for a scholarship because he is not Catholic. ~ None of the author's claims to have felt able to vote freely because the ballota cre not secret. “ All of the author's allege that they are required to speak Spanish in court, before the police and before other officials.
By decision of 4 April 1989, the Working Group oi the Human Rights Committee transmitted the communication to the State party and requested it, under rule 91 of the rules of procedure, to provide information and observations relevant to the question of the admissibility of the communication.
Inu its submission under rule 91, dated 9 August 1989, the State party contends that the author's failed to exhaust domestic remedies, as required by article 5, paragraph 2 (b), of the Optional Protocol.
The State party outlines in general terms the jurisdiction of the Colombian Supreme Court over constitutional claims emanating from individuals or groups of individuals, and the jurisdiction of the Administrative Courts over collective claims. The State party further notes that administrative remedies are available through the Consejo de Estado (Council of State) or Administrative Tribunals with full jurisdiction and authority to nullify administrative acts deemed to be arbitrary, illegal or an abuse of power. Only after the exhaustion of these remedies may leave to appeal to the Supreme Court be considered and granted.
The State party finally claims that the author's have failed to clearly identify in their complaint the alleged victims, the rights considered to have been violated or the administrative agents responsible for their situation.
In their comments, dated 30 August and 2 September 1989 and 17 April 1990, the author's indicate that the domestic remedies suggested by the State party are ineffective. They cite in their support the 1968 decision of the Consejo de Estado, which struck down resolution 206 of INCORA providing land for settlers. ~186- Ostensibly a legal victory, the ruling was allegedly circumvented by the State party through other procedural means, and the dispossession of the natives has continued unabated. Legislation that would have restored San Anérés' status as a municipality was vetoed by President Barco on 30 January 1990 for reasons of “national security and sovereignty”.
Furthermore, the author's contend that resort to domestic judicial remedies would be too prolonged and prohibitively expensive due to the large number of acts and legislation to be contested. They cite the example of a petition to the Attorney General in 1937 in which they asked for collective action on many of their grievances. There was no reply for over two years, and then the author's were merely requested to report in person for confirmation. Meanwhile, the settlement of more Colombians on the islands proceeds at a rate of some 8,000 individuals per year. In view of the urgency of the situation, therefore, the pursuit of protracted domestic remedies is considered ineffective, with no prospect of adequate redress.
Finally, the author's state that many of the laws and actions in question are constitutional. There is no right of self-determination in the Constitution and article 27 thereof actually guarantees the free alienation of land, one of the author's’ principal complaints. Contrary to the Government's aisertion, the International Covenant on Civil and Political Rights is not incorporated into Colombian law.
Before considering any claims contained in a communication, the Human Rights Committee must, in accordance with rule 87 of its rules of procedure, decide whether or not the communication is admissible under the Optional Protocol to the Covenant.
With regard to the issue of the author's’ standing, the Committee reaffirms that the Covenant recognizes and protects in most resolute terms a people's right to self-determination as an essential condition for the effective guarantee of observance of individual human rights and for the promotion and strengthening of those rights. However, the Committee reiterates that the author's cannot claim under the Optional Protocol to be victims of a violation of the right of self-determination enshrined in article 1 of the Covenant. a/ The Optional Protocol provides a procedure under which individuals can claim that their individual rights have been violated. These rights are set out in part III of the Covenant, articles 6 to 27, inclusive. The Committee further notes that no individual, or group of individuals, can in the abstract, by way of actio popularia, challenge a law or practice deemed to be contrary to the Covenant. An individual, or a group of individuals, can only claim to be a victim in the sense of article 1 of the Optional Protocol if he or she, or they, are actually affected,
With regard to the requirement of exhaustion of domestic remedies, the Committee reiterates that pursuit of such remedies can only be required to the extent that they are both available and effective. It notes that the author's have not pursued the remedies which the State party has submitted were available to them, because they consider them ineffective and because their pursuit would be “too prolonged and prohibitively expensive". The Committee further observes that the author's did not comply with the Working Group's request for clarifications about the steps they had taken to pursue remedies available to them in respect of their individual grievances (see paragraph 4 above). The Committee concludes that the author's have not shown the existence of circumstances which would have absolved ~187 - them from exhauating the remedies which the State party indicates are available to them) it reaffirms b/ that mere doubts about the effectiveness of remedies, as well as the prospect of protracted aad coatly legal proceedings, did not absolve the author's from exhausting them. <Acccrdingly, the reguirements of article 5, paragraph 2 (b), have not been met.
The Human Rights Committee therefore decides: (a) That the communication is inadmissible under article 5, paragraph 2 (b), of the Optional Protocol; (b) That this decision be transmitted to the State party and the author's. {Done in English, French, Russian and Spanish, the English text being the original version. ) Notes B/ See annex X, sect. A above, pare. 32.1. b/ See Communication No. 224/1987 (A. and &. N. v. Norway), inadmissibility decision of 11 July 1988, para. 6.2.