Examinando por Materia "RECURSOS EXTRAORDINARIOS (DERECHO)"

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    El derecho fundamental a la consulta previa en los proyectos REED+ : análisis del fallo de tutela T-248/24
    (Universidad EAFIT, 2024) Paniagua Agudelo, María Camila; Montoya Restrepo, Nataly
    Prior Consultation is a fundamental right of ethnically differentiated communities. By means of Law 21 of 1991, Convention 169 of the International Labor Organization, hereinafter ILO, was incorporated into the Colombian legal system to its block of constitutionality in the strict sense. But it has been over the last decades that in judicial instances a precise development of the contents of the law has been made, being then the jurisprudence the formal source in which the details and requirements of the procedure can be consulted through concrete cases. In accordance with the above, so far it has not been possible to have a democratic debate in the legislative instance and there are opinions according to which it would be possible to achieve a regulation of the Prior Consultation that guarantees the right of participation of The Communities, the interests and rights of the actors of the measures, and the interests of the different state entities. These frustrated attempts to establish a systematic regulation in the legislative or administrative instance have given rise to some questions, gaps and problems regarding Prior Consultation at the legal, economic, social and political levels. In this sense, we insist on the important role played by the jurisprudence of the Constitutional Court in defining the parameters, contents and procedures regarding the right to Prior Consultation. However, given that the approach has been taken on a case-by-case basis, for a comprehensive regulation of the figure as it relates to the methodological route proposed by the Court in its jurisprudence, several opportunities for improvement can be identified according to the practical development of the Prior Consultation process. On the other hand, Prior Consultation is related to the central role that environmental protection has been occupying in the global and national public agenda, which may eventually enter into contradiction, affect the rights of the Ethnic Communities in the development of their culture or suppose limits for those who intend to develop projects or activities in the collective territories of such communities. Thus, the importance of the jurisprudence of the Constitutional Court to establish limits, parameters, obligations and precise contents is once again highlighted. In this context, the recent judgment T-248 of 2024 will be analyzed to establish the precisions and incidences of the Prior Consultation in the framework of the Court's decision. With this, it will be verified whether there were innovative proposals for the protection of this Fundamental Right, the application of the Law to carbon credits as financial mechanisms for environmental protection and what are the challenges and open issues that remain for Colombian Law.