Working papers

URI permanente para esta colecciónhttps://publicaciones.dejusticia.org/handle/dejusticia/23

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Accountability of Google and other businesses in Colombia: The protection of personal data in the digital age
Vivian Newman-Pont; María Paula Ángel Arango
In this document we analyze the privacy policies of 30 companies with data-driven business models that collect data in Colombia and identify practices that have not been sufficiently contemplated by the personal data protection regime currently applicable in our country. But what has been done in Colombia to guarantee these rights in the digital economy framework? In this document, we explore the degree of preparedness of our legal personal data protection regime and data protection authorities for tackling the risks that the digital era poses to different values and rights, thereby holding accountable the companies with data-driven business models (DDBM). From the review of their privacy policies, we analyze the modus operandi of an illustrative sample of 30 DDBM, among which are included—for their economic, technological, and social power—the so-called GAFAM (Google, Apple, Facebook, Amazon, and Microsoft). After this analysis, we identify several practices that have not been sufficiently contemplated by the personal data protection regime currently applicable in Colombia, and whose regulation, in comparison with the European GDPR and the CCPA of California, has significant room for improvement. Likewise, we identify several shortcomings in the capacities of the Colombian data protection authorities in holding the DDBM accountable and therefore, propose some corrective measures. Descripción tomada y adaptada de: https://www.dejusticia.org/publication/accountability-of-google-and-other-data-driven-business-models-data-protection-in-the-digital-age/
Addicted to Punishment: The Disporportionality of Drug Laws in Latin America
Rodrigo Uprimny Yepes; Diana Esther Guzmán Rodríguez; Jorge Alberto Parra Norato
This document analyzes the proportionality of drug related crimes in seven Latin American countries through the study of the evolution of their criminal legislations from 1950 until 2012. The study suggests the existence of a regional tendency to maximize the use of criminal law for combating this type of conducts. This is reflected in: i) the gradual increase in the number of drug-related conducts described as criminal, ii) the exponential growth of the penalties with which those conducts are punished and iii) the incomprehensible tendency of punishing with more severity the drug-related crimes rather than those more evidently severe such as homicide, rape and aggravated robbery. Those upward trends indicate that the Latin American States have become addicted to punishment because of their frequent and empirically groundless increasing of the punitive dose, regardless of its constantly decreasing benefits. Addicted to punishment is part of a series of studies carried out by the Research Consortium on Drugs and the Law (CEDD) that critically analyze the application of the proportionality principle in relation with drug crimes. The studies find that the punishments imposed and the punitive treatment of the offenders is disproportional, often generating more damages than benefits.
Are reparations impossible to pay? Colombia’s reparation policy for survivors of sexual violence and victims of the armed conflict
Diana Esther Guzmán Rodríguez; Paula Valencia Cortés; Randy Villalba Arango; Paola Molano Ayala
The right to reparation for victims of human rights violations is one of the cornerstones of transitional justice and is a widely recognized principle in both the literature and human rights standards. Despite its importance, administrative reparation programs are often seen as costly and ineffective policies. Nevertheless, the literature on reparations has overlooked the question of the financial feasibility of these programs. In an effort to address this question, this text contributes to the analysis of the financing of administrative reparation programs, particularly regarding reparations for sexual violence, based on the Colombian experience. We examine how the financial feasibility of the reparations policy created in 2011 was determined, how the budget allocated to reparations has behaved between 2012 and 2022, and the role of reparations for acts of sexual violence within this framework. This study allows us to identify important methodological, conceptual, and political elements in order to establish what has worked well and what has been problematic in this process. Based on this, we discuss factors that should be taken into account in different contexts to ensure sustainable programs that fulfill the rights of victims of human rights violations, especially survivors of sexual violence.
Communications Surveillance in Colombia: The Chasm between Technological Capacity and the Legal Framework
Carlos Cortés Castillo; Celeste Kauffman (Trad.)
This book aims to examinate the colombian legal and jurisprudential framework related to the communication surveillance of today’s technologies. Phrased in the form of hypothesis, the purpose is to demonstrate how intelligence-related laws and jurisprudence fail to ensure that potentially affected rights remain intact.
Fraught with Pain: Access to Palliative Care and Treatment for Heroin Use Disorder in Colombia
Isabel Pereira-Arana; Lucía Ramírez Bolívar
This books seeks to facilitate linkages between discussions on the right to health and discussions on drug policy reform. The populations we talk about here are the noes most in need of a change whereby drug culture measures cease to stand in the way of a life free from pain. The suffering and pain experienced by people with terminal illnesses and people with heroin use disorder can be alleviated through opioids. At the same time, the enforcement of international drug control treaties means that these medicines are subjected to strict controls that create excessive red tape and contribute to generalized fear among patients and health professionals concerning these medicines’ use. Although many opioids are included in the World Health Organization’s list of essential medicines, the fact that they are controlled substances means that in practice, the right to health of these two populations often is violated. Fraught with Pain offers a diagnosis of five Colombian cities with regard to the barrieres that both populations—patients at the end of life and individuals with heroin use disorder—face when trying to access opioids. The hurdles they encounter can be grouped into four categories: 1. Structural failings of the Colombian health system 2. A lack of institutional capacity to mantain sufficient opioid stocks in small and medium cities 3. A lack of specialized training among health professionals in small and medium cities on the issues of palliative care and psychoactive substance use disorders 4. Stigma surrounding opioids and the people who use them Analyzing the enjoyment of the right to health among these two groups of people would seem ill advised, for what could they and the health care they receive possibly have in common? However, this book argues that someone facing the end of life and someone with a heroin use disorder actually face similar challenges: they are both in need of the same controlled substances; they both require interdisciplinary treatment that extendes beyond opioids; they both seek health services during moments of extreme vulnerability; and they are both often treated negligently by health systems that are ill equipped to handle death and drug dependence. Fraught with Pain seeks to facilitate linkages between discussions on the right to health and discussions on drug policy reform. The populations we talk about here are the noes most in need of a change whereby drug culture measures cease to stand in the way of a life free from pain. Descripción tomada de: https://www.dejusticia.org/en/publication/fraught-with-pain-access-to-palliative-care-and-treatment-for-heroin-use-disorder-in-colombia/
Gender Discrimination in Football. Building a Toolbox Toward Gender Equity in the Beautiful Game
Rachel Davidson Raycraft; Rebecca Robinson; Jolena Zabel
The importance of gender and gender-based categorizations cling to the world of sport like no other realm of culture or society in the twenty-first century. While presented as natural, logical, and innate, the differential treatment of men and women and boys and girls in the world of sport is largely the product of over a century of global socialization intent on preserving sport as a male-dominated pastime, lifestyle, and avenue of opportunity. As the most popular sport worldwide, football (or soccer) may be the poster child for lingering gender disparities in sport. Despite women’s presence on the pitch since the turn of the twentieth century, governments and football associations have proactively suppressed their ability to participate in the game through gender stereotypes, underinvestment, precarious professional opportunities, and disrespect. This report describes the various manifestations of gender-based discrimination that shape the game of football today, the role the Fédération Internationale de Football Association (FIFA) plays in perpetuating this discrimination, and existing avenues for remedy (or lack thereof). The report concludes with key takeaways from the fight for gender equality to date, with an eye toward building a more just world of sport in the years to come.
Making Social Rights Real: Implementation strategies for Courts, Decision Makers and Civil Society
César Rodríguez Garavito ; Celeste Kauffman
Given the disappointing implementation levels in various countries and across human rights systems, this guide seeks to contribute to the discussion regarding strategies for courts, international decision-makers, and civil society to increase the implementation of ESCR decisions. For generations, human rights defenders have struggled to secure recognition of economic, social and cultural rights (ESC rights) and ensure their justiciability in national, regional and international courts, a struggle that has been very successful. National courts around the world, including in Colombia, India, South Africa and Kenya, are expressing their views on ESC rights on a regular basis, and several countries have explicitly included the justiciability of ESC rights in their constitutions. Regional tribunals such as the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights now consider petitions on ESCR. At the international level, in 2013, the Optional Protocol to the International Covenant on Economic and Social Rights entered into force, allowing the Committee on Economic and Social Rights to hear individual complaints concerning violations of ESC rights
Negotiating from the Margins: Women’s Participation in Colombian Peace Processes (1982–2016)
Nina Chaparro González; Margarita Martínez Osorio
In this book, we offer an examination of and recommendations for women’s participation in Colombia’s peace processes, with an eye toward strengthening spaces for participation and, in doing so, ensuring that the peace accord is ultimately translated into long-term social pacts that are inclusive and committed to justice and equity.
Palliative Care: A Human Rights Approach to Health Care
Isabel Pereira-Arana
This report compiles the results of a research project aimed at describing the current palliative care situation in eight Latin American countries. The project’s general objective—to raise awareness and influence public policy around the need to approach palliative care from a human rights perspective—was achieved through rapprochement among professionals from various fields in the region, which in and of itself is a key step forward in terms of bringing together communities that defend patients’ rights with communities that advocate a drug policy embracing a public health focus. We hope that this diagnostic report is useful for professional associations, health professionals, patients’ rights advocates, drug policy reform activists, and decision makers, who can rely on its findings to better integrate palliative care into general health services and to use human rights language to promote public policy reform and guarantee the human rights of those in the Americas who suffer from severe and chronic pain.
Protecting Human Rights on the Ground. Case Studies on the Origin and Development of OHCHR Country Offices and their Relevance for the Situation in Venezuela
Ligia Bolívar Osuna; Lucía Ramírez Bolívar
During the investigation, the presence of OHCHR completed its first six months in Venezuela, so a consultation with human rights defenders in the country was included to assess this experience. Being the first comparative research in this field, its findings are equally of interest to other audiences beyond Venezuela. Following the proposal to create in Venezuela a country office of the United Nations High Commissioner for Human Rights (OHCHR), the need arises to explore some experiences that can provide insights to those who, from civil society in general and the human rights movement in particular, have an interest in promoting a process of greater presence and monitoring by the international human rights system in Venezuela, so that this process is the product of informed and strategically considered decisions. This study identifies processes, strategies, lessons and practices that may or may not be applicable to the situation in Venezuela, based on a comparative analysis of the experience of four OHCHR country offices with different characteristics and contexts, but with elements of interest for the Venezuelan case: Cambodia, Colombia, Guatemala and Tunisia. The purpose is to provide elements to the national human rights movement and other interested parties in Venezuela, for the design of a realistic and coordinated advocacy strategy against the different actors involved: the UN human rights system, government, other interested States and donors. During the investigation, the presence of OHCHR completed its first six months in Venezuela, so a consultation with human rights defenders in the country was included to assess this experience. Being the first comparative research in this field, its findings are equally of interest to other audiences beyond Venezuela.
Sarayaku before the Inter-American Human Rights System: Justice For the People of the Zenith and their Living Forest
Mario Melo Cevallos
How was it possible for an indigenous people in the middle of the Amazon to protect their life and territory from oil exploitation? What was the response of the Government of Ecuador to the claims of the Sarayaku people? How is a human rights strategy developed at different geographical levels? In this text, Mario Melo Cevallos, lawyer of the Kichwa people of Sarayaku, addresses these questions by presenting his version of the history of resistance and mobilization of the indigenous people before the State plans to exploit the oil that was in the heart of the Amazon. From the jungle, through the national courts, to the inter-American human rights system, the author shows the different sources of political and legal mobilization used by the people. Based on the work of more than a decade that Melo has done with the descendants of the jaguar, the book combines anecdotal references with judicial decisions and social mobilizations to show the story behind one of the most important sentences of the Inter-American Court of Human Rights. Undoubtedly, the case of the Sarayaku people is a symbol for the other indigenous peoples of the Global South. Your experience, we hope, will serve as an example for all indigenous peoples who mobilize against the expansion of the extractive border over their territories. Descripción tomada de: https://www.dejusticia.org/publication/the-sarayaku-and-the-inter-american-system-on-human-rights-justice-for-the-medio-dia-people-and-their-living-jungle/
Summary: Protecting Human Rights on the Ground. Case Studies on the Origin and Development of OHCHR Country Offices and their Relevance for the Situation in Venezuela
Ligia Bolívar Osuna; Lucía Ramírez Bolívar
The following is a summary of the findings and conclusions of a comparative study regarding OHCHR country offices in four locations (Cambodia, Colombia, Guatemala and Tunisia). The study ultimately aims to generate reflections derived from these comparative experiences for the case of Venezuela. The study’s methodology included document review and conducting interviews with around 60 officials and former officials of OHCHR, human rights defenders from the four countries studied and from Venezuela, representatives of international human rights NGOs, officials of the United Nations system with knowledge of the situation in Venezuela and former officials of public institutions of the countries studied
The Intersection of Migration with Authoritarian and Illiberal Tendencies: Contextualized in Latin America and the Middle East
Christy Baile Crouse; Nur Elçik Sari; Jessica Corredor Villamil
Democratic and authoritarian governments alike may respond to migrant flows with authoritarian and illiberal tendencies. These practices tend to negatively impact the inclusion, protection, and humane treatment of migrants. We view this as a problem; migration or the movement of people is a reality, and the response to this reality is a choice that countries are faced with constantly. We wish to better understand the factors that trigger or mitigate these authoritarian and illiberal responses to migration. This exploratory, theoretical study engages with the nuance of both migration and authoritarian tendencies to provide a wide and conversation-starting introduction to the intersection of these topics. For this research, we focus on Latin America and the Caribbean (lac) and the Middle East and North Africa (mena), with examples from Venezuela, Colombia, Mexico, Turkey, and Lebanon. These two regions are currently experiencing major migration crises. Our study aims to contribute to the conversation and debate about the ways in which countries respond with authoritarian or illiberal tendencies to migrant flows into, out of, or through them. Our guiding questions include: How are migration flows revealing and provoking authoritarian and illiberal tendencies in countries with different levels of democratic development? What are the illiberal and authoritarian tendencies that we observe in the responses to migrant flows of countries with differing levels of democracy? What are the authoritarian and illiberal practices that contribute to migrants’ low acceptance and integration in destination countries? What factors trigger, or mitigate, these tendencies in both receiving and sending countries? These questions help us explore the relationship between migration and authoritarian and illiberal tendencies. Our findings identify certain factors that we believe either trigger or mitigate such tendencies.
Victims and press after the war: Tensions between privacy, historical truth and freedom of expression
Vivian Newman-Pont; María Paula Ángel Arango; María Ximena Dávila Contreras
The drive to conduct this research was born out of the tension that developed on May of 2017 in the context of the journalistic coverage of the exhumations of those who died in the Bojayá massacre. Thus, this document has the purpose of asking and answering, from a socio-legal perspective, the following question: How can the events related to the armed conflict and to the transition to peace be narrated without violating the right to privacy of the victims? Or, how can a journalist record a dramatic event or recount an injuste that moves readers while respecting the limits of the private lives of the victims? To answer the question, this document examines the tensions between rights that can arise out of narrating the transition to peace as part of the journalistic profession, with the hope that the conclusion set forth is valid not only for the Bojayá case, but also in future transition years, as both victims and society in general benefit from a free and responsible press and the respect for private lives.
WP # 10 Data Feast. Enterprises and Personal Data in Latin America
Vivian Newman-Pont (Ed.); Daniel Ospina-Celis (Ed.); Juan Carlos Upegui Mejía (Ed.)
This book addresses the multiple challenges of this new type of system. It seeks to show how, in the digital age, companies pursue the massive collection of personal data and how they deal with their power of information accumulation while also trying to push forward their business strategy. In the case of the Internet giants—Google, Amazon, Facebook, Apple, and Microsoft (GAFAM)—they now possess an ability to reconfigure the behaviour of individuals, clients, and citizens globally. Specifically, this book analyzes the privacy policies of selected companies that use data-driven business models in four Latin American countries: Brazil, Chile, Colombia, and Mexico. It also assesses how prepared these states are to protect their citizens against the exploitation of their personal data and to face the legal and technical challenges of Big Data in an ever-changing transnational context, and with actors more powerful than nation states.