A Movement from Specific Remedies to Moderate Remedies. Public institutions must Reformulate policies, Provide Reparation and Fulfill Social Rights. The case of the indigenous Wayuu Children in Colombia

According to the statistics of the Food and Agriculture Organization (FAO) there are 795 million hungry people in the world and 98 percent of them are in developing countries. This is a large number of people who live in a tragic situation of survival. However, the most vulnerable people such as Children, Women, Hungry farmers and people who live in rural areas are considered the social group most affected since they lack all kinds of capital including social and economic. In Colombia, for instance more than 4,770 indigenous people have died of hunger in the last 8 years and more than 37,000 are malnourished. Last February 2015, the Wayuu Community petitioned the Inter-American Commission of Human Rights (IACHR) to issue emergency cautionary measures to the Colombian government to protect their rights to access to Water and Food security for their children. The IACHR requested that precautionary measures be adopted for these children and considered that there was a serious and urgent situation since the personal integrity of these children and young people were at risk. The Remedies ordered by the Court were specific asking the government to adopt the necessary measures to guarantee the life and physical integrity of these children ensuring at the same time the Availability, Accessibility and Quality of health services with an integral and culturally appropriate and comprehensive approach in order to address child malnutrition as well as to adopt immediate measures so that the beneficiaries communities have, as soon as possible, access to drinking water and to food in sufficient quantity and quality. At the same time, the Commission also asked the Colombian government to carry out a consultation process with the community in order to ensure the participation of the communities.

The problem with Specific Remedies is that it does not take into account sustainable solutions to collective and complex problems of systematic violations caused by structural failures of very complex nature. The use of Specific Remedies allow Courts to request from States to fulfil its positive obligations in relation to the specific case in a concrete way, thus protecting the right in question in the short term. However, the case of the indigenous children of Wayuu is a collective and systematic case that must be dealt with in a different way. This entails that not only the Colombian Government has the obligation to adopt micro measures to ensure the protection of these children in the short term but also (because of the nature of the case) it must also integrate the principle of Progressivity in the longer term through macro measures. This type of orientation from a macro perspective to this type of cases was taken by the Supreme Court of India where in cases such as People´s Union for Civil Liberties (PUCL) v. Union of India and Others the Supreme Court of India took into account the systematic violations to the Right to Food and issued not only Specific Remedies but also sustainable solutions to a collective problem. This particular case had a very high impact in protecting the Social Rights of the poorest in the Indian context and today different measures are included and recognised by the government in almost all national plans.
Measures also need to have an orientation to the past and not only to the future. This entails to  operationalize the dimensions of transitional justice such as Truth, Justice and Reparation as part of the necessary actions and measures to be adopted. Thus, the Colombian State should immediately not only adopt the immediate and specific measures ordered by the IACHR to protect the survival of the thousands of children starving in the northern region of Colombia by providing the necessary goods and services while ensuring at the same time the progressivity of the fulfilment of Economic, Social and Cultural Rights in the long term, but also it must recognise the past abuses and systematic violations and provide justice to the victims. This entails that it must take into account the memory and the past and should 1) Reformulate its policies at the macro level, 2) consult the affected community, 3) carry out a full investigation in order to find the truth of the past abuses and death of children, provide integral reparation to the families and children affected and guarantee non repetition for the past systematic abuses due to the actions or omissions of public institutions and 4) fulfill its obligation of protecting the Social Rights in the long term of the indigenous wayuu children so that they are treated with dignity and respect.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s