This post was written by Alicia Ely Yamin, O’Neill Institute Director, Health and Human Rights Initiative. Any comments or questions about this post can be directed to firstname.lastname@example.org.
At the O’Neill Institute, as part of the Health and Human Rights Initiative, we will try to share important subjects of our work from time to time, not just through our academic publications and events, as well as of course the courses we offer, but also through a variety of multi-media formats. These are intended to supplement our traditional means, and to foster new ways of thinking about and getting to know the contexts in which we work and the challenges with which we are grappling in advancing health and social justice. This month we are pleased to be partnering with Social Documentary Network (SDN) to bring their series of photography exhibits, “Focus on Colombia.”
It is sad to say that many North Americans may be exposed to Colombia principally through shows such as “Narcos,” which released its second and final season on Netflix this month. As the famous Nigerian writer, Chinua Achebe, wrote decades ago about Joseph Conrad’s portrayal of Africa in Heart Of Darkness, this show seems to use Colombia as a mere backdrop, in order to project onto its inscrutable and uncivilized nothingness the story of how North American DEA agents become involved in the hunt for Pablo Escobar, wrestle with their consciences and become increasingly involved in human rights abuses. Murphy may have replaced Marlow as narrator but this almost stomach-turningly narcissistic portrayal goes a long way in explaining the hateful, self-serving nature of many US political discussions today. But, more importantly, it is deeply, deeply unfair to Colombia.
The fact that it is the insatiable hunger for illicit drugs in the United States that created Escobar and those like him, and that the US government and US multinationals are directly and indirectly responsible for untold atrocities during that so-called “drug war” in that country of course appear only as a series of background allusions. It is also not surprising that no viewer of this series would have an inkling of any nuance about this country, such as that Colombia has produced some of the greatest art and literature of the Twentieth Century (not the greatest Latin American art and literature but all art and literature– take Fernando Botero and Gabriel Garcia Marquez, to just name two).
But from the perspective of what we are trying to do here at O’Neill, one of the most troubling things is that the 1991 Constitution, which turns twenty-five this year, is offensively portrayed as having been centrally a struggle over the extradition of Pablo Escobar and assorted criminals (which was initially banned and later changed under a constitutional amendment). No doubt extradition was a contentious issue, but the truth is that the Colombian Constitution of 1991, which is being celebrated later this month at the 11th Conference on Constitutional Jurisdiction, is an iconic document that all comparative constitutional lawyers should study, as is the Constitutional Court it created, which is regularly ranked by experts as among the most important constitutional courts in the world(for among other things its progressive jurisprudence on economic and social rights, including health).
The 1991 Constitution not only established the Constitutional Court and included a robust enumeration of economic and social rights, but also created an innovative protection writ mechanism, the tutela, which allowed people to go to court for their complaints rather than turn to violence to resolve disputes. Health, although not initially conceived of a right under the Constitution, was quickly found to be enforceable by a Constitutional Court that saw its mission as advancing the principles of substantive equality and dignity, and a “social state of law” set out in the Constitution. Colombia has seen more health rights litigation than any other country in the world. Perhaps more notable is that sua sponte the Constitutional Court decided to address systemic regulatory failures and inequities in the system, which could not be remedied in a one-by-one approach, issuing the most sweeping health rights decision of all time. That opinion, T 760/08, a model of so-called ‘dialogical justice’ subsequently triggered a series of changes in the health system, including a new statutory framework law. Along with many others, I have been closely followed the implementation of the T 760/08 decision, among other things having been appointed as a Voluntary Independent Expert of the Constitutional Court and by conducting research with Colombian colleagues both before and since the judgment was issued. It is clear that Colombia’s health system remains deeply unequal, as does the society, but there have been important transformations in the years since the judgment.
Anyone interested in the possibilities and challenges of using the law to advance health justice would do well to become more familiar with Colombia– the evolving role of the Constitutional Court as well as the more ambiguous impacts of lower courts in protecting health rights, together with the context in which the Minister of Health has recently stood up to powerful interests in the health sector, including the US pharmaceutical lobby. In health, as in other areas, Colombia is showing the world new ways of using law, rights and courts, which although deeply contested, attempt to respond to the kinds of democratic deficits that exist across the region, and the world.
Similarly—and it is therefore doubly ironic that “Narcos” should premiere its second season this month—Colombia is set to sign historic peace accords on September 26th, after more than half a century of ravaging civil war with FARC guerrillas. These accords, among other things, create an innovative framework for transitional justice, which calls upon all of us in human rights and international humanitarian law to honestly re-assess some of our one-size-fits-all views on what constitutes justice in post-conflict situations which we have for too long taken for granted.
This blog is the beginning of a series through which we will explore different issues we work on at O’Neill, which we feel are central to the health and human rights field more broadly. I feel strongly that part of teaching, research and advocacy in this increasingly globalized world requires grappling openly and collectively with how we think about not just our own but other countries’ health and legal systems, as well as the narratives that we create in our public discourse and media. When we analyze comparative legal developments from the immutable starting point of the US Supreme Court we shackle ourselves to misunderstandings about the myriad possibilities for institutional arrangements to promote rights in the world. Similarly, when in global health, we assume that heath systems are merely technocratic apparatuses onto which “evidence-based interventions” need to be tidily applied, our research findings are more apt to obscure than reveal the very political determinants of health that drive persistent inequity and dysfunction in health systems across the globe.
The universal quality of dignity that underpins human rights is often understood better through looking into the eyes of an individual than through the arid vocabulary of international law. At the same time, I am well aware that showing photographs can provide an illusion of closeness to the suffering that has occurred in Colombia during the war, while reinforcing a stagnant sense of “otherness”. It is my hope, however, that by coupling these photos (and other forms of creative expression at other times) with discussions here at Georgetown and the links we are providing, as well as the context provided by Social Documentary Network itself, that they may open the possibility of broader conversations and reflections. About Colombia, and beyond. Both the judicial and health systems will have complicated roles to play to promote social reconciliation and inclusion in a post-conflict Colombia, and we have much to learn from how those challenges are faced.
In all of these blogs, I warmly welcome colleagues to respond to the opinions expressed, and more importantly to add their own thoughts on these topics.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.