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Excerpted From: Maria Claudia Fuentes, The Restoration, and Protection of Afro-Colombian Land to Establish Equality and Mitigate Violence, 33 Emory International Law Review 399 (2019) (Student Comment) (271 Footnotes) (Full Document)


MariaClaudiaFuentesAfro-Colombians in the Pacific Region of Colombia have uniquely endured violent attacks on their personhood, community, and property throughout the country's history. Unfortunately, this remains the case today, even as many other segments of Colombian society have begun to experience the promise of post-war prosperity and peace.

In November 2016, the Colombian government and the guerrilla group--Fuerzas Armadas de Revolucionarias de Colombia (FARC) signed a peace agreement that ended a fifty-two year conflict. The Colombian Civil Conflict led to 220,000 deaths, 7 million displacements, and around 33,000 kidnappings. The peace agreement signified many different things for Colombians: the end of half a century of bloodshed, a boost in the economy, and, for internally displaced citizens, a chance to return home.

For the Colombians who live in major cities, such as Bogotá or Medellín, progress from the turmoil has been underway for several years. In those cities, the occurrence of violent crimes has decreased, and employment opportunities and access to healthcare have increased. But for those who live in the Pacific Region of Colombia, relief from the turmoil that characterized wartime is currently unattainable.

Peace in the Pacific remains unattainable because violence in the area is often connected with the desire for arable land and the facility to take land from its occupants. The desire for arable land is often manifested through forceful land grabs. The land can be taken from its occupants due to the lack of protections the Colombian government provides the occupants of the Pacific Region.

Violent forceful acquisitions of arable lands in the Pacific Region did not begin with the rise of the guerrillas, and such practices will not be eradicated by peace agreements. The physical removal of people to acquire arable lands in post-Independence Colombia can be traced back to the early 1800s when landowners and the Colombian government asserted dominion over lands that were inhabited by Afro-Colombians and Indigenous peoples. Wealthy landowners and the Colombian government pushed several Afro-Colombian groups and Indigenous peoples off the land to establish an agricultural industry in the area. This physical removal detrimentally impacted Afro-Colombians' and Indigenous peoples' society, independence, and means of survival.

The emergences of other violent actors such as the guerrillas, the paramiliatares, and the cartels in the Pacific Region contributed to fights over lands that have exacerbated the pain of Afro-Colombians and Indigenous people, and interest in the arable lands of the Pacific has not ended. Today, the fertile land of the Pacific Region is still being fought over because the lucrative industry of palm oil cultivation requires rich land.

This Comment will focus only on the treatment of the Afro-Colombians of the Pacific Region. While Indigenous people endured transgressions similar to those suffered by the Afro-Colombians, Afro-Colombians are unique in a sense that the Colombian government and society historically denied their presence in the country. Since Afro-Colombians' status as a distinct group was essentially erased from the Colombian society, the Colombian government overlooked the unique historical and cultural connection that Afro-Colombians had to the land in the Pacific Region and ignored the pain that Afro-Colombians endured.

Throughout the battles for land in the Pacific, Afro-Colombians were subjected to horrendous acts of both physical and mental depravity: families were often removed from their homes at gunpoint; women were often raped; and, along with their land, Afro-Colombians lost their independence and culture.

The Colombian government has attempted to make amends for its past behavior of prioritizing economic development over Afro-Colombian land rights and, in 1991, began to recognize Afro-Colombians' ties to certain lands in the Pacific Region through the ratification of Law 70 into its Constitution and the establishment of consulta previa. These laws provided Afro-Colombians with collective title to their lands, ensured certain lands rights and recognized the past assaults that Afro-Colombians faced on their livelihoods. However, the Colombian government has failed to establish a clear policy on how to reconcile the interests of the agricultural industry with the interests of Afro-Colombians.

If the government does not reinforce the current protections to Afro-Colombian lands, such as consulta previa, Colombian citizens may continue to face more violence as eager business owners and bacrim forcibly take Afro-Colombian land and assassinate Afro-Colombian leaders who attempt to assert and protect their land rights. To move past the violence of the Colombian Civil Conflict, and to truly achieve peace within the nation, the Colombian government must prioritize the rights of Afro-Colombians over those of corporations by truly recognizing and respecting Afro-Colombians' rights to land.

Safety in the Pacific will only be possible if the Colombian government does four things: (1) moves away from its current loose legal framework of consulta previa and stops circumventing consulta previa by (2) communicating with Afro-Colombians, (3) using the Declaration on the Rights of Indigenous People (UNDRIP) as a guideline, and (4) granting Afro-Colombians the ability to veto. This Comment will advocate for the above proposal while examining the attendant obstacles it faces through four interrelated subtopics:

Part I will detail a brief history of Afro-Colombians in the Pacific Region and the origins of the modern land-rights dispute.

Part II will describe the current system of laws protecting Afro-Colombians' title to property.

Part III will address problems with the current system, and

Part IV will propose changes that will enable the system to provide more protections to Afro-Colombians.

Part V will address criticisms to the general concept of consulta previa.

[. . .]

With the passing of Law 70 and implementation of consulta previa, Afro-Colombians have moved from being completely ignored by the Colombian government and have a defined role as a stakeholder in Colombia's economic development projects in the Pacific Region. The promise of consulta previa is to provide a mechanism for Afro-Colombians to protect their territory, as well as their cultural identity, while also allowing them to work with the Colombian government and future investors to take part in the project of Colombian economic development on their own terms.

While Afro-Colombians in the Pacific Region now have some form of agency--in that they hold legal title to areas of vital importance to the Colombian economy, they continue to be ignored, abused, and abandoned by their government and fellow citizens. The Colombian government has failed in its implementation of the consulta previa regime. The government should ensure the protection and safety of Afro-Colombians as corporations and bacrim will continue to manipulate the process or illegally force Afro-Colombians off their own land.

As the Colombian government makes strides in its relations with the FARC, other guerrilla groups, and paramilitary groups to end the half a century of bloodshed, it is vital that the government ensure that all brutal violence within its borders ends, so that all its citizens may share equally in the promise of peace. To do so, the Colombian government should establish a clear policy on consulta previa. Without a stronger system of consulta previa, Colombia will not be able to move beyond its violent history and Afro-Colombians will continue to be harassed and murdered.

Notes and Comments Editor, Emory International Law Review, Volume 33; J.D. Candidate, Emory University School of Law (2019); Bachelor of Arts, University of Florida, in Political Science and Government, History (2016).