Regulatory frameworks for the national protection of human rights defenders and their territorial implementation in Latin America

Latin America, biodiverse, multicultural and multiethnic, has presented important advances and challenges in the recognition of the rights of nature, sentient beings and the collective rights of indigenous and Afro-descendant peoples.

Emancipatory jurisprudential precedents have also been developed, such as the recognition of biocultural rights and the consecration of the Atrato River as a subject of rights in Colombia (Constitutional Court of Colombia, 2016), among other relevant understandings in the region, which also include the recognition of rights to territoriality and prior consultation of indigenous peoples. This has not been the case in other countries of the continent, which completely surrendered to an extractivist neoliberal system that halted or left halfway proposals for the recognition of rights won by social movements and sometimes demanded by international organizations as a condition for the signing of free trade agreements. Despite the progress made, there are also major setbacks and weaknesses in environmental governance that leave deep implementation gaps and impede the full exercise of rights. In this context, the role of human and biocultural rights defenders is essential in Abya Yala, especially when there is a structural pattern of multiple violations that affect their rights to life, integrity, due process, access to justice and effective judicial protection as a result of an evident phenomenon of criminalization and arbitrary persecution by public authorities, co-opted by the interests of large extractivist capital.

Faced with the serious setbacks and threats described above, and due to the high levels of corruption and the weaknesses of judicial bodies servile to the interests of those in power and captured by the lobbies of extractive companies in the region, this study was conceived: Regulatory frameworks of national protection for human rights defenders and their territorial implementation in Latin America, in collaboration between the Observatori desca and researchers from clacso. Our interest was to investigate the existence of regulatory frameworks for the protection of human rights defenders in general, and environmental and Mother Nature rights in particular. Given that several regulations exist formally but are not enforced in practice, we were interested in analyzing the fight against one of the origins of the implementation gap of these regulations: corporate extractivist interests. For this reason, we chose to analyze whether these regulations for the protection of human rights defenders allow pressure to be brought to bear on the parent companies of the global North in the event of human rights violations; whether human rights defenders can participate in the elaboration of these regulatory frameworks; and, if so, whether their participation is binding.

Four countries were chosen for this study: Mexico, Colombia and Peru, three of which have been hard hit by attacks on human rights defenders, and Bolivia, which has made significant legislative progress in the defense of Mother Earth. We studied their regulatory frameworks, or lack thereof, in the four points mentioned above, and the scope and extent of their application. The analysis ends with some general conclusions, common to the four cases analyzed, and specific recommendations for each of them.

[Observatori DESCA]