Revista Científica General José María Córdova, Bogotá, Colombia, enero-junio, 2016 Historia - Vol. 14, Núm. 17, pp. 347-375 issn 1900-6586, 2016
This paper presents historical and sociolegal research on the operation of the Special Indigenou... more This paper presents historical and sociolegal research on the operation of the Special Indigenous
Jurisdiction, which was conducted with the aim of locating the tensions and difficulties within ordinary
jurisdiction. This study identified enimical relations between jurisdictions, and a negation of the law as
source application valid form of conflict resolution of indigenous peoples in Colombia. The main result
thus evidenced is that of the inability of the Colombian legal system to harmonize the legal pluralism established in the Colombian constitution, and thus the Special Indigenous Jurisdiction is a means of survival
and vindication of indigenous groups in Colombia. An alternative solution is proposed in shape of an
incorporation of deliberative democratic schemes for multi-ethnic societies
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in the context of the agrarian reforms in Colombia with a focus on violent conflicts
in rural areas. The methodology used is that of a multi-method case study and
legal historic analysis. The study shows how, without an agrarian jurisdiction, the
Colombian legal system faces a crisis of legitimacy, lacks effectiveness, and creates
new interethnic rural conflicts. The study also evaluates the country’s recent legislative proposal in the light of constitutional law, the stated goals of the 2016 Peace
Agreement, the Sustainable Development Goals and the United Nations Declaration
on the Rights of Peasants (UNDROP). It offers recommendations on how to enforce
the rule of law in agrarian issues, in order to overcome systematic violations of
human, economic, social, and environmental rights of vulnerable rural populations:
recommendations to be taken into consideration by the legal community and the
international partners of the country’s comprehensive agrarian reform program
Jurisdiction, which was conducted with the aim of locating the tensions and difficulties within ordinary
jurisdiction. This study identified enimical relations between jurisdictions, and a negation of the law as
source application valid form of conflict resolution of indigenous peoples in Colombia. The main result
thus evidenced is that of the inability of the Colombian legal system to harmonize the legal pluralism established in the Colombian constitution, and thus the Special Indigenous Jurisdiction is a means of survival
and vindication of indigenous groups in Colombia. An alternative solution is proposed in shape of an
incorporation of deliberative democratic schemes for multi-ethnic societies
The Chinese imperial law counted with the Tang and Qing codes in china, and this allowed the promotion of the social and economic development of the Chinese Empire. It gave political stability implementing the rights and interests protected by the Empire. Social stability was achieved by the law and order when penalizing crime, and economic stability was achieved by the protection of the agrarian model. Part of the disgrace of considering China as barbaric and backward in its different periods, especially in the twentieth century, is the problem of individual freedom or first generation democratic liberal rights. Since 1979, China lives in an impressive institutional reconfiguration in accordance with the globalization standards. Nevertheless, this situation is an international symptom product of the economy of the knowledge and global warming society that are imposing globally new political and administrative configurations on the States and global judicial legislations.
This is a Critical Law Study inquired the impacts of the current structural environmental conflicts will affect the implementation of the Peace Accord. This study used the methodology of the Socio-cultural and transnational theory of public law. This study proposes a broad vision of peace, using the concept of environmental peace and the importance of building peace through sustainable development.
The first part of the study presents the discussion of the Integral Rural Reform of the Peace Accord and environmental problems and damages caused by the Armed Conflict and the illegal economies, and other structural problems like the lack of environmental and geological information of the land to avoid the sub utilization of the land. Based on the case of the Oil Palm cultivation shows the current lack of planning based on the agro-ecological vocation of the land and it is a big threat to the sustainable development of the country and the implementation of the projects of rural development of the Peace Accord. Another important environmental threat is the deforestation caused by new agribusiness and population settlements in forests, which will increase the climate change in Colombia.
The second part of the study, showed how the gold mining sector, special the illegal gold mining jeopardizes the implementation of the Peace Accord. The study describes the institutional problems to regulate the sector, the new violence and criminalities in Choco around the gold mining and the environmental damages in rivers and mercury contamination in the ethnic and rural areas in Colombia.
Regrettably, The Peace Accord (2016) included attack the illegal mining as a criminal problem, so it means the continuation of the war in the gold mining territories. The natural resources are important factors in maintaining the conflict, as described by the curse theory of resources. In the case of illegal gold mining, it becomes necessary a construction of peace through the strategic management of gold and attacking the structural problems that generate illegality and conflict in mining. It is more than obvious, but not so easy to execute, there is no lasting peace without sustainable development with the protection of a healthy environment and the common goods.
Finally, this study gives some recommendations for implementation of the Peace Agreement in Colombia focused on the problem of mining illegal gold. This study quota relevant environmental proposals.
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The evolution of the binding of the Constitutional Precedent in Colombia is thanks of the strategy of the Constitutional Court to obligate all the judges to follow the ratio decidendi as legal interpretation to ensure the application of the fundamental rights. The Constitutional Court has use as legal transplant from the Common Law theories of the Ratio Decidendi, and Stare decisis. Currently, the Law 1437 of 2011, the New Administrative Law Code orders that all government official should follow the constitutional precedent.
However, the incorporation of the binding of constitutional precedents in Colombia has given rise various problems, not only dogmatic but also practical, which it begins with the non- familiarity with the concept of the ratio decidendi and stare decisis. In judicial practice, due to the application of a codified norm, judges do not check the factual elements with a sub-rule. Therefore, it is recognize as a problem when the judges have to apply the constitutional ratio-decidendi or the binding rule in their decisions. Must of the judges and government officials do not know how to identify the implicit ratio decidendi in the Constitutional jurisprudence.
Faced with the aforementioned context and problems, this work was the product of an international comparative law investigation that began in 2014, was inquired the international judicial practices of the constitutional precedent and their legal theory. In the second phase of this research, carried out in 2015, a comparative study of the different existing methodologies for handling the precedent jurisprudential in the legal systems of Germany, Colombia, Chile, the United States and Spain. In the third phase of this investigation, carried out in 2016, the characteristics, elements and uses of the jurisprudential precedent were located in order to create a methodology model of application of the precedent for the Colombian legal community.
in the context of the agrarian reforms in Colombia with a focus on violent conflicts
in rural areas. The methodology used is that of a multi-method case study and
legal historic analysis. The study shows how, without an agrarian jurisdiction, the
Colombian legal system faces a crisis of legitimacy, lacks effectiveness, and creates
new interethnic rural conflicts. The study also evaluates the country’s recent legislative proposal in the light of constitutional law, the stated goals of the 2016 Peace
Agreement, the Sustainable Development Goals and the United Nations Declaration
on the Rights of Peasants (UNDROP). It offers recommendations on how to enforce
the rule of law in agrarian issues, in order to overcome systematic violations of
human, economic, social, and environmental rights of vulnerable rural populations:
recommendations to be taken into consideration by the legal community and the
international partners of the country’s comprehensive agrarian reform program
Jurisdiction, which was conducted with the aim of locating the tensions and difficulties within ordinary
jurisdiction. This study identified enimical relations between jurisdictions, and a negation of the law as
source application valid form of conflict resolution of indigenous peoples in Colombia. The main result
thus evidenced is that of the inability of the Colombian legal system to harmonize the legal pluralism established in the Colombian constitution, and thus the Special Indigenous Jurisdiction is a means of survival
and vindication of indigenous groups in Colombia. An alternative solution is proposed in shape of an
incorporation of deliberative democratic schemes for multi-ethnic societies
The Chinese imperial law counted with the Tang and Qing codes in china, and this allowed the promotion of the social and economic development of the Chinese Empire. It gave political stability implementing the rights and interests protected by the Empire. Social stability was achieved by the law and order when penalizing crime, and economic stability was achieved by the protection of the agrarian model. Part of the disgrace of considering China as barbaric and backward in its different periods, especially in the twentieth century, is the problem of individual freedom or first generation democratic liberal rights. Since 1979, China lives in an impressive institutional reconfiguration in accordance with the globalization standards. Nevertheless, this situation is an international symptom product of the economy of the knowledge and global warming society that are imposing globally new political and administrative configurations on the States and global judicial legislations.
This is a Critical Law Study inquired the impacts of the current structural environmental conflicts will affect the implementation of the Peace Accord. This study used the methodology of the Socio-cultural and transnational theory of public law. This study proposes a broad vision of peace, using the concept of environmental peace and the importance of building peace through sustainable development.
The first part of the study presents the discussion of the Integral Rural Reform of the Peace Accord and environmental problems and damages caused by the Armed Conflict and the illegal economies, and other structural problems like the lack of environmental and geological information of the land to avoid the sub utilization of the land. Based on the case of the Oil Palm cultivation shows the current lack of planning based on the agro-ecological vocation of the land and it is a big threat to the sustainable development of the country and the implementation of the projects of rural development of the Peace Accord. Another important environmental threat is the deforestation caused by new agribusiness and population settlements in forests, which will increase the climate change in Colombia.
The second part of the study, showed how the gold mining sector, special the illegal gold mining jeopardizes the implementation of the Peace Accord. The study describes the institutional problems to regulate the sector, the new violence and criminalities in Choco around the gold mining and the environmental damages in rivers and mercury contamination in the ethnic and rural areas in Colombia.
Regrettably, The Peace Accord (2016) included attack the illegal mining as a criminal problem, so it means the continuation of the war in the gold mining territories. The natural resources are important factors in maintaining the conflict, as described by the curse theory of resources. In the case of illegal gold mining, it becomes necessary a construction of peace through the strategic management of gold and attacking the structural problems that generate illegality and conflict in mining. It is more than obvious, but not so easy to execute, there is no lasting peace without sustainable development with the protection of a healthy environment and the common goods.
Finally, this study gives some recommendations for implementation of the Peace Agreement in Colombia focused on the problem of mining illegal gold. This study quota relevant environmental proposals.
The evolution of the binding of the Constitutional Precedent in Colombia is thanks of the strategy of the Constitutional Court to obligate all the judges to follow the ratio decidendi as legal interpretation to ensure the application of the fundamental rights. The Constitutional Court has use as legal transplant from the Common Law theories of the Ratio Decidendi, and Stare decisis. Currently, the Law 1437 of 2011, the New Administrative Law Code orders that all government official should follow the constitutional precedent.
However, the incorporation of the binding of constitutional precedents in Colombia has given rise various problems, not only dogmatic but also practical, which it begins with the non- familiarity with the concept of the ratio decidendi and stare decisis. In judicial practice, due to the application of a codified norm, judges do not check the factual elements with a sub-rule. Therefore, it is recognize as a problem when the judges have to apply the constitutional ratio-decidendi or the binding rule in their decisions. Must of the judges and government officials do not know how to identify the implicit ratio decidendi in the Constitutional jurisprudence.
Faced with the aforementioned context and problems, this work was the product of an international comparative law investigation that began in 2014, was inquired the international judicial practices of the constitutional precedent and their legal theory. In the second phase of this research, carried out in 2015, a comparative study of the different existing methodologies for handling the precedent jurisprudential in the legal systems of Germany, Colombia, Chile, the United States and Spain. In the third phase of this investigation, carried out in 2016, the characteristics, elements and uses of the jurisprudential precedent were located in order to create a methodology model of application of the precedent for the Colombian legal community.