COLOMBIA Methodology: Legal country mapping - 01/2021 White & Case - Human Right 2 Water
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Methodology: Legal country mapping COLOMBIA 01/2021 White & Case
Water LEGAL COUNTRY MAPPING COLOMBIA
Colombia Country Mapping
Water and Sanitation Status
JMP Update 2017
100%
90%
80%
70%
60%
50%
40% Surface Water/Open Defecation
30%
Unimproved
20%
10% Limited
0% Basic
Colombia Drinking World Drinking Colombia World (Sanitation)
Water (National) Water Sanitation Safely Managed
(National)
General Legislation
Member of a regional integration organisation Yes
State organisation Presidential Republic
Relationship between International and National Law Monist
Supreme Law Constitution
Independent National Human Rights Institution (NHRI) Yes
Name of Institution possessing regulation-making authority Yes
Popular consultation as part of governing/legislative process Yes
Water Governance
Right to Water or Sanitation mentioned in Constitution Yes
A water code or a law specific to water resources Yes
National Strategy, Policy, Action Plan etc. on Water and Sanitation Yes
Transboundary Water Resources Yes
Priorities in the allocation of water for different uses Yes
Legal Framework
Human Rights Criterion Human Rights Principles
Non-
Quality and discrimination,
Access to Public
Availability Safety Acceptability Participation
Equality Information
Accessibility Affordability Accountability Sustainability
Deficient Partially included Mostly included
Page 2
Water LEGAL COUNTRY MAPPING COLOMBIA
Table of Contents
CHAPTER 1: WATER GOVERNANCE OVERVIEW .......................................................................................... 4
A Preliminary questions ............................................................................................................................ 4
B The country is member of a regional integration organisation? ........................................................... 5
C Water governance and administration:................................................................................................. 7
CHAPTER 2: INTERNATIONAL AND REGIONAL TREATIES ............................................................................ 9
A Regional Multilateral/Bilateral Treaties ................................................................................................ 9
B International Treaties ........................................................................................................................... 11
C Regional/Americas................................................................................................................................ 15
D Transboundary freshwater resources agreements ............................................................................. 15
CHAPTER 3: DOMESTIC LEGISLATION ON WATER ..................................................................................... 17
A Water laws........................................................................................................................................... 17
B Extraction and/or use of water............................................................................................................ 20
CHAPTER 4: THE HUMAN RIGHTS TO WATER AND SANITATION: ............................................................ 23
A Availability and accessibility ................................................................................................................ 23
B Quality and safety ................................................................................................................................ 26
C Water pollution control ....................................................................................................................... 29
D Affordability ......................................................................................................................................... 31
E Acceptability ........................................................................................................................................ 33
F Non-discrimination, equality and universal access .............................................................................. 33
G Right to information ............................................................................................................................ 34
H Public participation ............................................................................................................................. 36
I Sustainability......................................................................................................................................... 38
CHAPTER 5: JUDICIARY SYSTEM ................................................................................................................ 39
A Preliminary questions .......................................................................................................................... 39
B Remedies and complaint procedures/accountability .......................................................................... 40
C National human rights institutions ...................................................................................................... 43
D Regulation ........................................................................................................................................... 44
Annex 1 ...................................................................................................................................................... 47
Annex 2 ...................................................................................................................................................... 48
Page 3CHAPTER 1: WATER GOVERNANCE OVERVIEW
economic and social development of their
A Preliminary questions territory. They exercise administrative
functions of coordination and
1 What type of State is the country? (e.g.,
intermediation with the municipalities,
Federal, Unitary, etc.)
which provide services such as electricity,
Unitary.1
urban transport, local planning, and police.3
2 Division of government powers exist? If yes,
4 Who has the power to ratify treaties?
please elaborate on their functions.
The President.4
Yes, the Government of Colombia’s
powers is separated into (1) the Legislature:
5 Is there popular consultation as part of
Congress (Senate and House of
governing/legislative process?
Representatives) holds the responsibility for
Not regularly, though when the method
initiating, amending, interpreting, and
of popular consultation is used, it is
repealing legislation; (2) the Judiciary, with
supposed to be obligatory for national
the highest court being the Supreme Court;
authorities to respect the results of such
and (3) the Executive branch, led by the
popular consultation.5
President.2
6 Has the country established a basin
3 Which institutions and levels of
management agency? Is it autonomous?
government have legislative powers?
Water resources are managed by the
Legislative authority is vested in a
Environment Ministry, which is an executive
bicameral Congress consisting of the Senate
ministry headed by a minister appointed by
(Senado) and the House of Representatives
the President. But the country has entered a
(Cámara). Colombia has a two-tier local
series of agreements for the management of
government structure. The upper level
its basins. Amongst which, the “Plan de
consists of 32 departments and the Capital
Ordenamiento y Manejo de las Cuencas de
District of Bogota, and the lower level is
los Ríos San Miguel y Putumayo”, the “Plan
made up of 1,101 municipalities.
para el Desarrollo Integral de la Cuenca del
Decentralization reforms have occurred over
Río Putumayo”, The “Plan Modelo Colombo
the past three decades, but the distribution
– brasileño” for the full development of the
of competencies remains complex. There is
bordering communities of the Tabatinga –
a dual system of decentralized and delegated
Apaporis axis
responsibilities and the majority of
competencies are shared between all levels
7 Does the country have transboundary
of governments (education, health, water
water resources?
and sewage, housing). The departments are
Colombia has major transboundary
responsible for planning and promoting the
water resources. Additionally from the
1 4
OECD Colombia Country Profile (Oct. 2016). Constitution of Colombia (1991), Article 189(6).
2 5
Constitution of Colombia (1991). Law 134 of 1994, Article 8.
3
OECD Colombia Country Profile (Oct. 2016).Water LEGAL COUNTRY MAPPING COLOMBIA
Amazon River Basin and the Orinoco River partner with the World Bank which supports
Basin, the following rivers provide the sector through different projects such as
transboundary water resources: “Rio de “Cartagena Water Supply, Sewerage, and
Oro”, “Rio Catatumbo”, “Rio Guaramillo”, environmental Management project”,
“Rio Tachira”, “Rio Oira”, “Rio Meta”, “Rio “Water Sector Reform Assistance Projects”,
Orinoco”, “Rio Negro”, “Rio Isana”, “Rio as well as with the Inter-American
Vaupes”, “Rio Taraira”, “Rio Caqueta”, “Rio Development bank. There is an Agreement
Amazonas”, “Rio Putamayo”, “Rio San between Colombia, Venezuela and the
Miguel”, “Rio Pun”, “Rio San Juan”, “Rio Organization of American States regarding
Papuri”, “Rio Alabapo”, “Rio Mira”, “Rio the Catatumbo River Basin, signed on August
Mataje”, “Rio Arauca”, “Rio Zulia”, “Rio 5, 1982, but it was never implemented. In
Goajira”, “Rio Carchi”, “Rio Atabapo”’ “Rio fact, the working group contemplated in the
Guainia”, “Rio Naquen”, “Rio Papuri”… (see Agreement has never held a meeting. 7
Annex 2)
B The country is member of a regional
8 Where transboundary water resources
integration organisation?
exist, is there an established international
institution for basin management? Does it
1 Which countries form part of this
have any responsibility in relation to
organisation?
drinking water?
Colombia is part of major international
Colombia did not vote in favor of the UN
and regional organizations such as;
watercourse convention, which establishes a
CAN/ACN: Andean Community of Nations;
framework for the utilization, development,
CariCom: Caribbean Community; IADB: Inter-
conservation, management, and protection
American Development Bank; IHO:
of international watercourses and codifies
International Hydrographic Organization;
the already existing customary international
LAES/SELA: Latin American and Caribbean
water law. However, it is a party to the
Economic System;
Amazon Cooperation Treaty Organization.
ALADI/LAIA: Latin American Integration
There is no explicit provision regarding
Association; the Organization of American
drinking water in the treaty, but Article VIII
States; The Pacific Alliance; PROSUR: Foro
of the treaty refers to the need to "promote
para el Progreso de América del Sur.8
coordination of the present health services …
Amongst them stand out: (i) the
and to take other appropriate measures to
Organization of American States whose
improve the sanitary conditions in the region
members are Antigua and Barbuda,
and perfect methods for preventing and
Argentina, Barbados, Belize, Bolivia, Brazil,
combating epidemics.” 6 The country is also a
6 8
Amazon Cooperation Treaty, Article VIII. https://imuna.org/resources/country-
7
http://apw.cancilleria.gov.co/tratados/SitePages/Ve profiles/colombia; see also
rTratados.aspx?IDT=29aaaa70-316d-4240-8f2b- http://www.oas.org/en/member_states/default.asp
53cbc609a51a (accessed on 11-07-2018).
Page 5Water LEGAL COUNTRY MAPPING COLOMBIA
Canada, Chile, Colombia, Costa Rica, Cuba, furthering economic integration, foreign
Dominica, Dominican Republic, Ecuador, El policy coordination, human and social
Salvador, Grenada, Guatemala, Guyana, development and security.
Haiti, Honduras, Jamaica, Mexico, Nicaragua, Organization of American States (OAS):
Panama, Paraguay, Peru, Saint Vincent and an organization with 35 member states
the Grenadines, St. Kitts & Nevis, Suriname, established in order to achieve “an order of
Trinidad and Tobago, United States of peace and justice, to promote their solidarity,
America, Uruguay, Venezuela, and (ii) the to strengthen their collaboration, and to
Andean Community of Nations (CAN) which defend their sovereignty, their territorial
has as members Bolivia, Ecuador, Colombia integrity, and their independence” (Article 1
and Perú. of the OAS Charter).
Pacific Alliance: free trade bloc with the
2 Are the decisions of the organisation objective of promoting greater economic
binding for the members? integration between Chile, Colombia,
The American Declaration on the Rights Mexico and Peru.
and Duties of Man signed by all Organization PROSUR: Dialogue and coordination
of American States members, has no legal mechanism with the objective of promoting
binding force. the development of the South American
The Andean Community issues countries.
guidelines with respect to different spheres
of Andean sub-regional integration, which 4 Does the regional organisation have the
are carried out by the system bodies and authority to regulate or make decisions,
institutions determined by the Council, in which affect water and sanitation?
keeping with the responsibilities and As for the OAS; The Inter-American
mechanisms established in their respective Commission on Human Rights prepared a
Treaties or establishing Agreements. report in 2015 about the access to water in
the Americas titled, “An introduction to the
3 What is the mandate of the organisation? human right to water in the Inter-American
The mandate of the main regional system”.9 In addition, the Department of
integration organizations to which Colombia Sustainable Development, prepared a report
is a member is as follows: in March 2019 describing the situation
Andean Community of Nations (CAN): surrounding the human right to water and
free trade bloc with the objective of creating sanitation and considering the 2030 Agenda
a customs union comprising the countries of and the Sustainable Development Goals.10
Bolivia, Colombia, Ecuador, and Peru. However, the Inter-American system does
Caribbean Community (CARICOM): not have the authority to regulate or make
organization of fifteen countries throughout decisions, which would affect water and
the Caribbean having the objectives of sanitation in the member countries.
9 10
“An introduction to the human right to water in the OAS report on human right to water, 2019.
Inter-American system”, OAS Report, 2015.
Page 6Water LEGAL COUNTRY MAPPING COLOMBIA
As for CAN; initiatives regarding access of the Ministry of Agriculture, which finances
to water have been part of the Andean and constructs an irrigation system.
Community’s activities.11 In 2011, through
decision No. 763, an Andean Strategy for the At the intermediate level (state, river basin,
Integrated Management of Water Resources other)
was approved. The regional environmental authorities
(CARs) are in charge of implementing the
C Water governance and administration: national policies and regulations as well as
managing the natural resources in their
1 What is the structure of the government boundaries, included water resources.12 As
water administration (provide relevant for water and sanitation services, Colombia
organizational charts whenever available) has acknowledged that amongst
and what power, role and responsibilities infrastructural services, the sanitation
does the Government have at each level? services required specific knowledge that is
not typically found at the municipal level.
At national/federal level? Therefore, it made it a policy to encourage
The institutional framework with water regionalization of water sanitation services
resources in Colombia can be divided into by implementing Departmental Water Plans,
three different categories. The National which are a set of planning and inter-
Environmental System manages water institutional coordination strategies that
allocation and pollution regulation as well as municipalities can voluntarily opt into. This
the ecosystem/watershed. It is a brings a better resourced and more
decentralized system directed by the corporate approach to water sanitation
Ministry of Environment, Housing and service provision and ultimately makes it
Territorial Development and is in charge of easier for large private operators to expand
environmental management in Colombia at services to small towns and rural areas (see
the national level. The water demand for Annex 1)
sectoral uses is regulated by other ministries.
Regarding water for electric generation, the At the local level?
energy regulation committee establishes the The Autonomous Regional Corporations
rules for the operation of the dispatch and Sustainable Development (CAR) are
system. As for water for agriculture corporate public entities, integrated with
irrigation, INCODER is a specialized institute local authorities, commissioned by law to
11 12
http://www.comunidadandina.org/Prensa.aspx?id= Integrated Water Resource Management in
3898&accion=detalle&cat=NP&title=se-inicia- Colombia: Paralysis by Analysis? International
proyecto-ap Journal of Water Resources Development, March
http://www.comunidadandina.org/Prensa.aspx?id=2 2008; see also
785&accion=detalle&cat=NP&title=autoridades-de- http://www.minambiente.gov.co/index.php/compon
agua-de-los-paises-de-la-can-debatiran-propuesta- ent/content/article/885-plantilla-areas-planeacion-y-
de-estrategia-andina-para-gestion-integrada-del- seguimiento-33
recurso-hidrico
Page 7Water LEGAL COUNTRY MAPPING COLOMBIA
administer, within the area of its jurisdiction, charge of controlling the application of these
the environment and renewable natural rules. The latter is the responsibility of the
resources, and work for sustainable Superintendencia de Servicios Públicos
development. Water use for energy; water Domiciliarios (SSPD) or Superintendency for
supply and sanitation and agricultural Residential Public Services, a multi-sector
irrigation is regulated by sectorial ministries. regulatory agency.) The Vice ministry of
Municipal authorities guarantee access to Water and Sanitation (VWS) is part of the
potable water and sanitation to their Ministry of Housing, Cities and Territory of
population, the potable water regulatory Colombia (MHCT). The VWS is responsible
committee regulates the calculation of the for implementing national policies, plans and
tariffs, CARs (within their corresponding programs in relation to water supply and
jurisdictions) grant water permits. sanitation. However, regulation, supervision
and enforcement is the role of the Potable
2 Which government ministries/agencies are Water and Basic Sanitation Regulation
directly or indirectly involved in governance Commission (PWRC) and the
of water and sanitation? Superintendency of Residential Public
The Ministry of Environment, Services (SRPS).
Housing and Territorial Development. The PWRC, created by Law 142 of 1994
The Autonomous Regional Corporations (article 69), is part of the MHCT and is
and Sustainable Development (CAR). primarily focused on regulating tariffs and
other purely regulatory functions.
3 Which agency is responsible for drinking The SRPS, also created by Law 142 of
water? What are its responsibilities? 1994 (article 76) and referred to in Colombia
Responsibility for regulating water as Superservicios is part of the Department
services is vested in two separate institutions of National Planning. The role of the SRPS is
at the national level. The Comisión de to monitor and enforce the performance of
Regulación de Agua Potable y Saneamiento water supply and sanitation operators.13
Básico (CRA) or Potable Water and Basic
Sanitation Regulatory Commission defines 4 Which agency is responsible for sanitation?
criteria for efficient service provision and What are its responsibilities?
sets the rules for tariff revision, but is not in See question 3 above.
13
Link to Law 142 of 1994: ativo/norma.php?i=2752
https://www.funcionpublica.gov.co/eva/gestornorm
Page 8Water LEGAL COUNTRY MAPPING COLOMBIA
CHAPTER 2: INTERNATIONAL AND REGIONAL TREATIES
1 Has the country ratified the following international or regional treaties and
declarations? Please insert the date of the signature/ratification/accession.
2 Has the country made any declaration or reservation to the following instruments?
A Regional Multilateral/Bilateral Treaties
Table 1.a Regional multilateral and bilateral treaties14
Instruments Participating Entry into force
States
Colombia, Ecuador 16,
Perú17, Brasil18,
The Amazon Cooperation Treaty15 Venezuela 19, 12/08/198020
Suriname, Guyana,
Bolivia
The Amendment Protocol to the Amazon Colombia, Ecuador,
Cooperation Treaty creating the Amazon Brazil, Peru,
Cooperation Treaty Organization (“ACTO”) 200221
Venezuela, Suriname,
Guyana, Bolivia
14
http://www.internationalwatersgovernance.com/amazon-basin.html
15
Divided Water, Shared Water? An Approach to Cross-border Aquifers in South America, Carmen Maganda
16
http://www.oas.org/dsd/publications/unit/oea08b/ch05.htm#TopOfPage - ECUADOR: Plan de Ordenamiento y
Manejo de las Cuencas de los Ríos San Miguel y Putumayo
17
PERU: Plan para el Desarrollo Integral de la Cuenca del Río Putumayo
18
BRAZIL: Plan Modelo Colombo - brasileño para el Desarrollo Integrado de las Comunidades Vecinas del Eje
Tabatinga - Apaporis.
19
VENEZUELA: It is important to note that despite the water borders, the governments of Colombia and Venezuela
have only participated in the signing of a single collective agreement for the multinational management of
transboundary waters: the 1978 Amazon Cooperation Treaty.
20
https://treaties.un.org/Pages/showDetails.aspx?objid=08000002800eb7e6
21
Final Ratification by Colombia and installation of its Permanent Secretariat in Brazil. http://www.otca-
oficial.info/library/details/155
Page 9Water LEGAL COUNTRY MAPPING COLOMBIA
Table 1.b. Bilateral Agreements entered into by “ACTO”
Instruments Participating Signature
States
Colombia,
Memorandum of Understanding between ACTO and the Ecuador, Brazil,
Coordinating Body for the Indigenous Organizations of the Peru, Venezuela, 10/25/2004
Amazon Basin (“COICA”)22 Suriname,
Guyana, Bolivia
Colombia,
Ecuador, Brazil,
Memorandum of Understanding between ACTO and the Andean
Peru, Venezuela, 9/29/2004
Community
Suriname,
Guyana, Bolivia
Colombia,
Letter of Understanding Between the Coordinator
Ecuador, Brazil,
Intergovernmental Committee of the Countries of the Basin of
Peru, Venezuela, 8/30/2004
the Plata and the Amazonian Cooperation Treaty Organization,
Suriname,
30 Aug. 2004
Guyana, Bolivia
Colombia,
Ecuador, Brazil,
Standard Agreement between the ACTO and the Pan American 26-30 September
Peru, Venezuela,
Health Organization/World Health Organization23 201124
Suriname,
Guyana, Bolivia
Colombia,
Agreement between ACTO and the Inter-American Development Ecuador, Brasil,
Bank — Strengthening the Joint Regional Capacity for the Perú, Venezuela, 7/25/2005
Sustainable Use of Amazonian Biodiversity Surinam, Guyana,
Bolivia
22
International Waters: Review of Legal and Institutional Frameworks UNDP-GEF International Waters Project
(2011)
23
https://www.paho.org/hq/index.php?option=com_content&view=article&id=5998:2011-paho-acto-cooperate-
on-health-knowledge-management-amazon-region&Itemid=135&lang=en
24
https://www.paho.org/hq/index.php?option=com_content&view=article&id=5723:2010-51st-directing-
council&Itemid=40507&lang=en
Page 10Water LEGAL COUNTRY MAPPING COLOMBIA
B International Treaties
Table 2. International binding instruments
Instruments Signature Ratification
(dd/mm/yyyy) (dd/mm/yyyy)
International Covenant on Civil and Political
Rights (1966) 21/12/1966 29/10/1969
Reservation/Declaration:
Optional Protocol to the International Covenant on Civil
and Political Rights (1966) 21/12/1966 29/10/1969
Reservation/Declaration
International Covenant on Economic, Social and Cultural
Rights (1966) 21/12/1966 29/10/1969
Reservation/Declaration:
Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights (2008) N/A N/A
Reservation/Declaration:
Convention on the Elimination of All Forms of
Discrimination against Women (1979) 17/07/1980 19/01/1982
Reservation/Declaration: N/A
Page 11Water LEGAL COUNTRY MAPPING COLOMBIA
Instruments Signature Ratification
(dd/mm/yyyy) (dd/mm/yyyy)
Optional Protocol to the Convention on the Elimination of
All
Forms of Discrimination against
Women (1999)
Reservation/Declaration:
Declarations:
1. The Government of Colombia, exercising the
discretion provided for in article 10 of the
Optional Protocol, and subject to the conditions
set out therein, declares that it does not
recognize the competence of the Committee
provided for in articles 8 and 9 of the Protocol.
2. The Government of Colombia understands article
5 of the Protocol to mean that interim measures 10/12/1999 23/01/2007
not only preclude "a determination on
admissibility or on the merits of the
communication", as established in article 5,
paragraph 2, but that any measures involving the
enjoyment of economic, social and cultural rights
shall be applied in keeping with the progressive
nature of these rights.
3. The Government of Colombia declares that no
provision of the Optional Protocol and no
recommendation of the Committee may be
interpreted as requiring Colombia to
decriminalize offences against life or personal
integrity.
Page 12Water LEGAL COUNTRY MAPPING COLOMBIA
Instruments Signature Ratification
(dd/mm/yyyy) (dd/mm/yyyy)
Convention on the Rights of the Child (1989)
Reservation/Declaration:
Reservation (upon signature):
The Colombian Government considers that, while the
minimum age of 15 years for taking part in armed
conflicts, set forth in article 38 of the Convention, is the
outcome of serious negotiations which reflect various
legal, political and cultural systems in the world, it would
have been preferable to fix that age at 18 years in
accordance with the principles and norms prevailing in
various regions and countries, Colombia among them,
for which reason the Colombian Government, for the
26/01/1990 28/01/1991
purpose of article 38 of the Convention, shall construe
the age in question to be 18 years.
Reservation (upon ratification):
The Government of Colombia, pursuant to article 2,
paragraph 1 (d) of the Convention, declares that for the
purposes of article 38, paragraphs 2 and 3, of the
Convention, the age referred to in said paragraphs shall
be understood to be 18 years, given the fact that, under
Colombian law, the minimum age for recruitment into
the armed forces of personnel called for military service
is 18 years.
The Convention on the Rights of Persons with Disabilities
(2006) 30/03/2007 10/05/2011
Reservation/Declaration:
Optional Protocol to the Convention on the Rights of
Persons with Disabilities (2006) N/A N/A
Reservation/Declaration:
Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984) 10/04/1985 08/12/1987
Reservation/Declaration:
Convention on Access to Information, Public Participation
in Decision-Making and Access to Justice in Environmental N/A N/A
Matters (1998) Reservation/Declaration:
Page 13Water LEGAL COUNTRY MAPPING COLOMBIA
Instruments Signature Ratification
(dd/mm/yyyy) (dd/mm/yyyy)
Geneva Convention (III) relative to the Treatment of
Prisoners of War (1949) 08/12/2005 N/A
Reservation/Declaration:
Geneva Convention (IV) relative to the protection of
Civilian Persons in Time of War (1949) 12/08/1949 08/11/1961
Reservation/Declaration:
Protocol Additional (I) to the Geneva Conventions
relating to the Protection of Victims of International
01/09/1993 17/04/1996
Armed Conflict (1977)
Reservation/Declaration:
Protocol Additional (II) to the Geneva Conventions
relating to the Protection of Victims of
N/A 14/08/1995
Non-International Armed Conflicts (1977)
Reservation/ Declaration:
Convention on the Law of the Non-Navigational Uses of
International Watercourses (1997) N/A N/A
Reservation/Declaration:25
Table 3. ILO conventions
Instruments Signature Ratification
ILO Forced Labor Convention, No. 29 (1930) N/A 04/03/1969
ILO Recruiting of Indigenous Workers Convention, No. 50 (1936)
(shelved convention) N/A N/A
ILO Food and Catering (Ships' Crews) Convention, No. 68 (1946)
(instrument to be revised) N/A N/A
ILO Plantations Convention, No. 110 (1958) N/A N/A
ILO Hygiene (Commerce and Offices) Convention, No. 120 (1964) N/A N/A
ILO Occupational Safety and Health (Dock Work) Convention, No.
152 (1979) N/A N/A
ILO Convention No. 161 concerning Occupational Health Services
(1985) N/A 25/01/2001
25
Colombia did not vote in favor of the UN watercourse convention, which establishes a framework for the utilization,
development, conservation, management, and protection of international watercourses and codifies the already
existing customary international water law.
Page 14Water LEGAL COUNTRY MAPPING COLOMBIA
Instruments Signature Ratification
ILO Safety and Health in Construction Convention, No. 167 (1988) N/A 06/09/1994
ILO Convention No. 169 concerning Indigenous and Tribal Peoples
in Independent Countries (1989) N/A 07/08/1991
ILO Work in Fishing Convention, No. 188 (2007) N/A N/A
C Regional/Americas
Table 4. Instruments open for ratifications in the Americas
Instruments Signature Ratification
American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights (1988) N/A 10/10/1997
Reservation/Declaration:
American Convention on Human Rights
“Pact of San José, Costa Rica” (1969) N/A 28/05/1973
Reservation/Declaration:
D Transboundary freshwater resources agreements
1 Has the country agreed to any international implement their preferred management
convention or treaty regulating the uses of regime. Colombia signed the Amazon
its transboundary watercourses? Please Cooperation Treaty in 1978, which aims to
specify. promote sustainable use of resources
As for now, South American states do not including water. Subsequently, in 2005,
seem to have an immediate interest in a Colombia signed the integrated and
universal framework to help them regulate sustainable management of transboundary
the management of their transboundary Water Resources in the Amazon River Basin
water resources. Colombia is not part of considering Climate Variability and Change
either the UN Watercourse Convention or Project. Additionally, Colombia is a member
the UNECE Water Convention, which are the of the World Bank Group, which has been
two global, legally binding instruments steadily involved in projects aiming to
concerning the management of improve the provision of water supply and
transboundary watercourses. Rather, they sanitation services in Colombia.
count on international organizations to help
Page 15Water LEGAL COUNTRY MAPPING COLOMBIA
2 If so, what are the norms in those water governance?
agreements, regulating access to water Please specify which norm.
and/ or sanitation, if any? The eight-member countries of the
The most important legal rule of the Amazon Cooperation Treaty organization
Amazon Cooperation Treaty is the principle joined to run integrated management and
of “equitable and reasonable use” as well as sustainable regional project for
the no-harm rule, which encompasses both a transboundary water resources in the
right and a duty to use international Amazon River Basin.27 The GEF Amazon
watercourse in an equitable and reasonable project looks to contribute to the effective
manner. The most important external protection and sustainable use of water and
cooperation partners for the Colombian land resources of the Amazon Basin. Based
water and sanitation sector are the World upon principles of integrated water resource
Bank, The Inter-American Development management, the goal is to achieve a shared
Bank and the Andean Development vision for the development of the region
Corporation. Through their joined efforts, based on the needs of the Amazonian society
they have developed water and sanitation and aiming to strengthen the institutional
projects such as the Cartagena Water supply, framework created to protect and manage
La Guajira Water and Sanitation the water resources. Indeed, the sustainable
Infrastructure and many more. The World development of the Amazon River basin
Bank has provided a series of loans for water requires a coordinated government strategy
and sewage improvements, totaling more between the Amazon countries to tackle
than $700 million dollars since 1988.26 environmental and social impacts on the
ecosystem caused by natural or human
3 Do those agreements adopt an integrated events.
water resources management approach to
26
http://www.fao.org/nr/water/aquastat/countries_ formulate a consensual Strategic Action Program
regions/profile_segments/amazon-IntIss_eng.stm based on the needs and objectives of Amazonian
27
In 2010, the GEF Amazonas Project was signed, stakeholders (ACTO/GEF/UNEP, 2015)
prepared by the 8 ACTO members countries to
Page 16Water LEGAL COUNTRY MAPPING COLOMBIA
CHAPTER 3: DOMESTIC LEGISLATION ON WATER
A Water laws mentions that “when a territorial entity
achieves universal coverage and meets the
1 Is the right to water or the right to quality standards established by the
sanitation mentioned in the Constitution? competent authorities in the sectors of
Water in the Colombian legal system education, health, and/or public services
has a double connotation, as a fundamental concerning drinking water and basic
right and as a public service.28 Although, the sanitation in the home, according to
right to water is not explicitly recognized certification by the competent national
under the Colombian Constitution,29 it is entity, it may spend the surplus resources on
considered as a fundamental right, and investment in other sectors within its
defined by the Committee on Economics, competence.”33 Also, under the rights of
Social and Cultural Rights, as “the right of Colombians to a reasonable standard of
everyone to have sufficient, safe, acceptable, living, Article 66 of the Colombian
accessible and affordable water for personal Constitution establishes that “the general
or domestic use.”30 In addition, Article 79 of well-being and improvement of the
the Constitution provides an “implied (and population’s quality of life are social
justiciable) right to water… from the broader purposes of the State. A basic objective of
‘right to a healthy environment.”31 As a their activity shall be to address the
public service, Article 356 of the Constitution unfulfilled public health, educational,
provides that “the resources of the General environmental, and drinking water needs of
System of Participations of the departments, those affected. For such an outcome, in the
districts and municipalities will be earmarked plans and budgets of the nation and of the
for the financing of the services under their territorial entities, public social expenditures
charge, according to priority to the … public shall have priority over any other
services concerning potable water and basic allocation.”34
sanitation in the home.”32 Moreover, Article
357 of the Constitution establishes how the 2 Does the Constitution otherwise reference
amount of the General System of Shares of water and sanitation?
the Departments, Districts and Yes. Both in Article 357 and Article 366 of
Municipalities shall be increased annually the Constitution. As mentioned above, as
and specifically part of the distribution of resources, Article
357 establishes that once the territorial
28
Judgement T-740/11. Implementation of the Human Right to Water in
29
Olmos Guipponi, M. B. & Paz, M. C. (2015). The Argentina and Colombia. Anuario Mexicano de
Implementation of the Human Right to Water in Derecho Internacional, 15, pp. 343. See also Article 79
Argentina and Colombia. Anuario Mexicano de of the CONSTITUCIÓN POLÍTICA DE COLOMBIA.
32
Derecho Internacional, 15, pp. 323. Id. at Article 356.
30 33
Judgement T-740/11. Id. at Article 357.
31 34
Olmos Guipponi, M. B. & Paz, M. C. (2015). The Id. at Article 366.
Page 17Water LEGAL COUNTRY MAPPING COLOMBIA
entities achieve the coverage required by the contamination of water for human
law and meet the quality standards in consumption.
different sectors, including drinking water Decree 2811 of 1974 by means of which
and sanitation in the home, they may spend the National Code of Renewable Natural
the additional surplus resources in other Resources and Environmental Protection is
sectors within their competence. Article 366 enacted. Section III of this Code regulates the
states that water supply “belongs to the use of non-maritime waters and the ways to
category of public service to be provided by acquire the right of use of such waters.
the State”.35 Decree 1541 of 1978 regulates the
norms related to the resource of waters in all
3 Is there a water code or a law specific to its states. More specifically, Article 2
water resources? Please specify. establishes that “the preservation and
Law 142 of 1994, which establishes the management of waters are of public utility
regime of Public Housing Services Law (Ley and social interest according to the
de Servicios Públicos Domiciliarios) in provisions of Article 1 of Decree-Law 2811 of
Colombia, and seeks to guarantee its quality 1974:
at all levels. Resolution No. 1096 of 2000 by “In the management and use of the
which the Technical Regulations governing water resource, both the administration and
drinking water and the basic sanitation the users, whether they are public or private,
sector (Reglamento técnico del Sector de will comply with the general principles and
Agua Potable y Saneamiento Basico (RAS)) rules established by the National Code of
was adopted. This Regulation indicates the Renewable Natural Resources and
requirements that must be met by the Environmental Protection, especially those
designs, the works and procedures enshrined in Articles 9 and 45 to 49 of the
applicable to drinking water and the basic aforementioned Code.”36
sanitation sector and its complementary Decree No. 3930 of October 25, 2010.
activities, as indicated in Article 14, numerals According to Article 1, this Decree
14.9, 14.22, 14.23 and 14.24 of Law 142 of establishes the provisions related to uses of
1994, and to be carried out by the entities water resources, water resources
that provide municipal public services management and discharges to water
regarding aqueduct, sanitation and sewage. resources, to the ground and to the sewers.
The Colombian Sanitary Code (Código Law 1753 of 2015 by means of which the
Sanitario) was enacted by Law 9 of 1979, National Government is ordered to
which among other things regulates the determine the differential schemes for the
sanitary control of the use of water. provision of aqueduct, sewer and toilet
Additionally, Title II of this Code, which services in rural areas.
regulates the water supply, provides a In addition, the National Development
variety of regulations to eliminate and avoid Plan (Plan Nacional de Desarrollo) (PND)
35 36
Id. at Article 366. Article 2 of Decree 1541 of 1978.
Page 18Water LEGAL COUNTRY MAPPING COLOMBIA
establishes guiding policies for the provision characteristics of these areas and
of public services, including water and that contribute to the
sanitation.37 The PND for 2010-2014 improvement of the conditions of
recognized the delivery of such services to life of the rural population;
rural areas of Colombia as a priority and (ii) Strategic importance of the
provided for contributions from the national project “Financial support for the
and regional budgets.38 infrastructure investment plan to
The Water for Prosperity Program (PAP) strengthen the provision of
and Department Water Plans (PDA) are two aqueduct and sewage services in
strategies designed by the national the municipality of Cali” June 24,
government to “increase access to water and 2013.
improve the management of water and (iii) Policy for the supply of potable
sanitation services.”39 The implementation water and basic sanitation issued
of the PAP and PDA is assigned to “municipal in July, 2014.
authorities, services providers and (iv) Strategic importance of the
departmental governments.”40 projects “financial support for the
development of the strategic
4 Is there national strategy / policy, action policies of the sector of potable
plan or similar document on water? water and basic sanitation at a
Yes. The National Council of Economic national level” and “financial
and Social Policy (Consejo Nacional de support for the regional coastal
Política Económica y Social – CONPES) is the aqueduct of the department of
highest national planning authority and Córdoba” (2013).
serves as an advisory body to the Moreover, “in 2010, the National Policy
Government in all aspects related to the for the Integral Management of Water
economic and social development of the Resources (Policy) was issued, which
country. Some of the documents of CONPES establishes the objectives, strategies, goals,
regarding water and sanitation are: indicators and lines of action for the
(i) the policy for the supply of management of the resource in the country
potable water and basic with a horizon of twelve years.”41 The
sanitation in the rural area. The general objective of the Policy is to ensure
policy aims to promote access to the sustainability of water resources through
drinking/potable water and basic the management and efficient and effective
sanitation in rural areas of use, articulation of planning and land use,
Colombia, through solutions that and conservation of ecosystems that
are consistent with the regulate water supply; the policy considers
37 39
Private Sector Provision of Water and Sanitation Id. at pp. 14.
40
Services in Rural Areas and Small Towns: The Role of Id.
41
the Public Sector, Country Report: Colombia. World Water Management. Sistema de Información
Bank Group, pp. 8 (2016). Ambiental de Colombia.
38
Id. The most recent PND covers 2014-2018.
Page 19Water LEGAL COUNTRY MAPPING COLOMBIA
water a factor in economic development and Special Contribution tariff for the 2018 term
social welfare and endeavors to implement for the service of regulation of potable water
processes that promote equitable and and basic sanitation and other provisions.
inclusive participation.42 The National Water Also, Decree 707 of 1995 regulates the
Plan is designed to implement the National criteria for the payment of the special
Policy for the Integrated Management of contribution for the Regulation of Potable
Water Resources; the plan is to integrate via Water and Basic Sanitation. Resolution 2115
programs, projects, and activities the lines of of 2007 indicates characteristics, basic
action of the Policy in order to achieve its instruments and frequencies of the control
objectives and goals.43 and surveillance system for water quality for
human consumption.
5 Are there any other major regulations, Decree 2811 of 1974 enacts the National
decrees, orders, circulars, or similar official Code of Renewable Natural Resources and
documents (such as pricing, water policing, Environmental Protection. Section III of this
utility easements, public domain Code regulates the use of non-maritime
occupation…etc.) related to the rights to waters and the ways to acquire the right of
water and sanitation? use of such waters. Decree 1076
Article 85 of Law 142 of 1994 established (26/05/2015) has the aim of collecting in a
a special contribution in order to recover the single regulatory body all existing regulatory
costs of the regulatory service provided by decrees which pertain to laws on
the Regulatory Commission of Potable Water environmental matters.44
and Basic Sanitation – (Comisión de
Regulación de Agua Potable y Saneamiento B Extraction and/or use of water
Básico – CRA) to the entities which are
defined as taxpayers, all persons providing 1 Does the legislation regulate the right to
public services domiciliary of the aqueduct, abstract water? (surface, groundwater,
sewage, cleaning and complementary etc.)?
activities throughout the national territory, According to Decree 1541 (1978),
subject to the regulation of such concessions are required to carry out
Commission. These entities are subject to activities such as “the supply of household
the payment of a special contribution paid water, irrigation activities, nuclear or power
each year in accordance with the provisions generation, transport of toxic materials and
of Article 85 of Law 142 of 1994 and other minerals, transport of wood logs, fishing and
related provisions. According to the aquaculture, sport and recreation, medicinal
foregoing, Resolution CRA 847 of 2018 use activities, and certain mining
issued by the Regulation Commission of applications.”45 Decree 1541 also establishes
potable water and sanitation establishes the
42 Id. Ambiente y Desarrollo Sostenible.
43 Id. 45
44
Decree 1541. See also Rincón Rubiano, D. (2011).
Unique Regulatory Decree of the Environment and Environmental Law in Colombia, pp. 64. The
Sustainable Development Sector, Ministerio de
Page 20Water LEGAL COUNTRY MAPPING COLOMBIA
special permits for “abstraction, or the use of industrial)?
sands, stones and gravels from waterbeds, For the use and utilization of water
streams or deposits.”46 resources, every user is required to apply for
a concession permit before the competent
2 Does the legislation distinguish between the environmental authority.51 The provisions
extraction of drinking water and water for for the use and utilization of water are
other uses? established in Decree 1076.52 According to
When granting concessions, the Decree 1076 (2.3.2.2), “aside from the
competent authority must give priority to waters originating and remaining within the
certain uses.47 In order of preference, the same property (real estate), all freshwater
priority refers to “water for human resources are public, meaning the use of
consumption, individual domestic needs, water must be authorized through a water
community agricultural uses, generation of concession and a water occupancy permit
hydropower, industrial or manufacture uses, issued by the competent environmental
mining activities, and recreational uses.”48 agency.”53 Waters that run through natural
The relevant authority may change this channels may be used by individuals without
hierarchy in order to “satisfy the special a permit if it is for “drinking, bathing, running
economic or social needs of the region.”49 animals, washing clothes and other similar
purposes.”54 Regional committees are
3 Is the right to use water connected to land responsible for granting water usage permits
ownership? within their geographical jurisdiction.55 At
Decree 2811 (1997) establishes that water the national level, the Ministry of
resources and water use is of public domain, Environment and Sustainable Development
“with the sole exception of watersheds that (Minambiente) oversees environmental
begin and finish within the same property matters.56 Minambiente is in charge of
belonging to the owners of the banks (Decree “creating and implementing water resource
1541).”50 management policies and regulations”.57 It
also “manages protected areas and grants
4 Are permits/licenses required for water use licenses to infrastructure projects requiring
(e.g., domestic, agricultural, and access to water resources.”58 At the regional
Netherlands: Kluwer Law International BV. del-agua
46 52
Id. Id.
47 53
Id. Zapata Lugo, J. V. & Solorza Cortés, M. (2017).
48
Id. Environment. Getting the Deal Through. Available at:
49
Id. https://gettingthedealthrough.com/area/13/jurisdict
50
Decree 2811 and 1541. See also Colombia, Water ion/8/environment-colombia/
54
Resources Allocation: Sharing Risks and Opportunities Supra note 10.
55
(2015). OECD Studies on Water, pp. 5. Water Usage (2014). Shale Gas, an International
51
Use and Water Use. Ministerio de Ambiente y Guide, 2nd ed., 2.1.
56
Desarrollo Sostenible. Available at: Water Resources Rights (2014). Shale Gas, an
http://www.minambiente.gov.co/index.php/gestion- International Guide, 2nd ed., 2.6.
57
integral-del-recurso-hidrico/administracion-del- Id.
58
recurso-hidrico/demanda/uso-y-aprovechamiento- Id.
Page 21Water LEGAL COUNTRY MAPPING COLOMBIA
level, the Corporaciones Autónomas Water concessions can be assigned, given
Regionales (CARs) are tasked with the prior written authorization of the
implementing policies and managing the competent environmental authority (Decree
natural resources in their region.59 CARs are 1541, art. 50).65 That authority may deny an
administratively and financially independent assignment “when reasons of public utility or
but do receive some resources from the social interest deem appropriate.”66 In the
national government.60 In relation to water event that the facility or land where the
resources, “the main function of CARs is to water concession is located is sold, the new
efficiently allocate water resources to users, owner must request the assignment.67
control water pollution and create and
implement programs for the protection of 7 Are there priorities in the allocation of water
the ecosystem.”61 CARs grant permits for for different uses?
water usage.62 Waters for public use that run through
natural channels and are used for domestic
5 Can permits/licenses be suspended? Under purposes do not provide exclusivity or
what circumstances? priority of use to the first person to make use
“Governmental authorities may restrict of the right.68 In cases involving the use of
or even prohibit water use concessions in surface waters for non-domestic purposes,
order to accomplish certain purposes, such as or domestic purposes that require
facilitating the provision of a public service or derivation, both of which require a
restoring the quality, flow or environment of concession, do involve an order of priority.69
the water body.”63 For example, “if an area Generally, domestic use will always have
of groundwater is at risk of being depleted, priority over others; collective uses over
or there is a danger of contamination or a those of an individual; and those uses of the
substantial decrease in quantity or quality of inhabitants of a region over those outside of
the water resource, the competent it.70 The granting of water pursuant to
authorities can temporarily or permanently concessions is also subject to the availability
suspend any operations that take place in the of the resource.71 In cases of scarcity, the
area.”64 order in which concessions were granted
does not convey priority; the environmental
6 Can water abstraction licenses be authority would define the best procedure
transferred? Is transferability subject to for distributing water.72
restrictions?
59
Id. note 19 at pp. 5.
60 66
Id. Supra note 19, at pp. 5.
61 67
Id. Uriba & Correa Posada & Bernal, supra note 34.
62 68
Id. Supra note 10.
63 69
Rubiano, supra note 14, at pp. 65. Id.
64 70
Id. Id.
65 71
Uriba, L. & Correa Posada, L. & Bernal, A. (2017). Id.
72
Latin Lawyer. Environment, Colombia; see also supra Id.
Page 22Water LEGAL COUNTRY MAPPING COLOMBIA
CHAPTER 4: THE HUMAN RIGHTS TO WATER AND SANITATION:
A Availability and accessibility 3 Does the law ensure continuous supply of
water for all?
1 Does the law ensure that a minimum Decree 2811 of 1974, also known as the
essential level of water is available to all? “Colombian Natural Resources Code”,
There is no law that ensure a minimum establishes in its Article 134 that “it is a
essential level of water for all the inhabitants responsibility of the State to guarantee
of Colombia. However, the Constitutional water quality for human and other uses.” 76
Court has several times stated that access to Additionally, the supply of water, as a
a minimum vital amount of water is a human domestic public service, is regulated by Law
right.73 Even though access to a minimum 142 of 1994, which states in its Article 2.4
vital amount of water is not expressly that the Government shall ensure the
guaranteed by Colombia’s Constitution, the continuous supply of water, with no
Constitutional Court has repeatedly stated exceptions but for any force majeure event
that the protection of this right is necessary or other technical or economic
to assure other rights protected by circumstances which allow the interruption
Colombia’s Constitution, for example, the of service
right to health and right to life. Therefore,
access to a minimum vital amount of water 4 Does the law prioritize water for domestic
should be protected.74 uses over other uses?
Article 41 of Decree 1541 of 1978
2 What are the standards on the amount of provides that when granting water
water to be made available/is there any concessions, the relevant authority shall
guidance in the law in this respect? accord first priority to human use over any
The law does not provide a standard on other kind of uses in both urban and rural
the amount of water. Nonetheless, the areas.77
Constitutional Court has stated, following
the guidelines of the World Health 5 What are the grounds for disconnecting,
Organization, that 50 liters per person are interrupting or altering water supply and
the minimum essential level of water that sanitation services (e.g., authorities may
should be guaranteed.75 alter water supply in case of droughts or
73 75
Opinión Jurídica, Vol. 15, N° 29, pp. 123-140 - ISSN Judgement 270 of 2007 of the Constitutional Court
1692-2530 • January-June de 2016 / 266 p. Medellín, of Colombia.
76
Colombia. Decree 2811 of 1974
74 77
Judgement T-578 of 1992 and Judgement T-4132 Decree 1541 of 1978.
of 1995 of the Constitutional Court of Colombia.
Page 23Water LEGAL COUNTRY MAPPING COLOMBIA
emergencies, in which cases are service is only allowed in case of emergency.
disconnections possible…)? If an emergency occurs, the relevant water
As per Article 2.4 of Law 142 of 1994, provider shall follow and implement the
unless a force majeure event or other relevant Emergency and Contingency Plan.
technical or financial circumstance has The guidelines to building up these plans are
occurred, service providers should supply contained in Resolution 154 of 2014 of the
water continuously without any exception. Housing, City, and Territory Development
Nonetheless, Law 1523 of 2012, which is the Ministry.79 Constitutional jurisprudence has
first Colombian regulation on the recognized the right to water as being
management of emergencies and natural fundamental, linking it to the principle of
disasters, establishes that the water human dignity since this constitutes an
providers shall prepare an Emergency and element to have adequate material
Contingency Plan, including actions to conditions of existence. For instance, in
recover services as soon as possible in case judgment T -761-15, the court affirmed that
of emergency.78 In accordance with Chapter “Subjects of special constitutional protection,
2 of resolution number 154 of 2014 by the including children, enjoy a minimum content
Ministry of Housing, a series of steps are to of the right to water that is not subject to
be taken to establish the following in cases restriction under any circumstances.”80
of droughts: i. monitoring of flows from Similarly, in judgment T-131 of 2013, the
supply sources -ii. To the extent that such court found that the right to water of an
flows are not sufficient, routes and elderly resident of the municipality of Alcala
periodicity of vehicles to transport water are had been violated when he was not given
to be established -iii. Damage assessment access to water resources in a timely
and analysis of the mechanisms -iv. manner.81
Implementation of campaigns for promoting
a more efficient way to use water -v. Water 7 Are alternative ways of water supply and
rationing is carried out and the supply of sanitation services provided for in case of
schools and health entities are prioritized alteration of supply and/or service?
and -vi. Water Quality is to be controlled to Courts have stated that the amount of
ensure that it is safe for human money gained from suspending access to
consumption. water is too low to justify the suspension
when compared to the harm done. The
6 What are the procedural standards/criteria Chamber reiterated the constitutional
for permitting interruption, disconnection precedent on the fundamental right to water
or alteration of water supply and sanitation and extracted four jurisprudential rules
services? applicable to the case:
The interruption, disconnection, or (i) there is a right of companies providing
alteration of water supply and sanitation home public services to interrupt the
78 80
Law 1523 of 2012. Judgement T -761-15, Judgement T-475-17
79 81
Resolution 154 of 2014. Judgement T-131 de 2013
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