Colombia´s Constitutional Court recent Decision C-055 of 2022, which decriminalises abortion during the first 24 weeks of pregnancy, is historic for three main reasons. First, it upholds the constitutional promise of substantive equality for women: there is no substantive equality without reproductive autonomy.  Second, it consolidates the recognition of reproductive rights as fundamental rights in Colombia and, therefore, as a limit to criminal law. Finally, it encourages a dialogue with Congress by exhorting it to regulate access to integral reproductive services to protect women and pregnant people´s rights and dignity.

The 5-4 vote ruling was rendered in the context of a three year battle to overturn Decision C-355 of 2006 (as I explained here) which recognised access to abortion as a fundamental right with a “grounds system”. That is, a right to an abortion was guaranteed in cases when the pregnancy posed a threat to women’s life or health, on the basis of foetal malformations incompatible with life, and in cases of rape. The petition was filed by Causa Justa, a coalition composed of 90 organisations and 134 advocates, which garnered both broad support to eliminate the criminalisation of abortion and significant opposition. The decision was adopted aligning with a regional trend expanding the recognition of abortion rights, as recently in Argentina and Mexico.

The decision is divided into two parts. The first part tackled a procedural issue: was the Court legitimated to rule on a matter in which it had already adjudicated? In the Court’s view, three sets of conditions allowed the revision of constitutionality of the provision criminalising abortion outside the grounds. First, the Court held that there were four new arguments which had not been considered in Decision C-355 of 2006, which I explain below.  Second, it acknowledged a change in the material understanding of the Constitution as the right to health was consolidated as a fundamental right since 2008; the conditions in which abortion was legally accessed evidenced significant barriers; there were new international standards; and the standards on gender based violence had been further developed. Finally, it considered that there was a change in the legal context in which the criminal code section was inserted, as there was a new statutory law regulating the right to health; new international developments, as the ones from the UN CEDAW and CESCR Committees, that understood the decriminalisation of abortion as necessary to uphold reproductive rights and the right to health; the adoption of Law 1257 of 2008, which tackles sexual and reproductive health and structural changes in the health care system and criminal policy.

The second part addressed the substantive considerations. The Court held that the aim of the provision, protecting the value of life, was imperative. However, it considered criminalisation of abortion during all periods of pregnancy as disproportionate and unnecessary to achieve that aim. This is especially so given that such criminalisation affects ‘intensely’ the right to health and reproductive rights of pregnant women and pregnant persons. The Court also highlighted that  there are other less restrictive means which could be used. It further held that the criminalisation of abortion violated women’s, girls and pregnant people’s right to freedom of conscience. In assessing the use of criminal law measures to pursue a legitimate aim, it understood that women’s rights imposed limits on criminal law. Thus, criminal law could be used only as a last resort measure, while the criminalisation of abortion meant it was used as a primary measure. Additionally, the Court ruled that the criminal provision had a disparate impact on the most vulnerable women. However, the Court observed that completely removing criminalisation, especially when it sought to pursue an imperative aim, was unreasonable. This tension was resolved through adopting a balanced approach that allowed the criminalisation of abortion after 24 weeks of pregnancy, when the grounds system would still be in place. The time limit of 24-weeks was justified under an ‘autonomy’ criteria, as representing the stage at which a foetus can live autonomously outside a woman’s body. For the Court, the concept of “existence” was unhelpful to draw this line, as it is the most restrictive, it lacks a moral definition as to the moment in which life begins, and it ignores the accepted constitutional arguments.

On the 17th of February of 2022, Colombia commemorated 30 years of the installation of its Constitutional Court under the 1991 transformative Constitution, which beholds the promise of substantive equality for women. It has taken 30 years to be closer to that promise, but the recognition of women’s reproductive autonomy by striking down the criminalisation of abortion is definitely a step in making it a reality.

Hosted and recorded by: Mónica Arango Olaya
Edited by: Christy Callaway-Gale
Co-produced by: Mónica Arango Olaya
Executive producer: Kira Allmann
Show notes by: Sarah Dobbie
Music by: Rosemary Allmann
Additional thanks to: Sandra Fredman, Megan Campbell, Gauri Pillai, and Natasha Holcroft-Emmess

***

TRANSCRIPT (PDF)

Mónica Arango Olaya (0:11): You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I am Mónica Arango Olaya. In today’s episode, we are delighted to welcome back Dr Isabel Cristina Jaramillo from Los Andes University in Colombia. We’ll be talking to her about the latest publication she edited, “Gender in Transition: Studies about the Role of the Law in the Distribution of Resources for Implementing the Transition in Colombia after the Peace Agreement.”[1]

(0:52) Isabel Cristina Jaramillo is a full professor of law at Universidad des los Andes in Bogotá, Colombia, where she teaches constitutional law, feminist jurisprudence, and family law. She obtained her law degree with honours from Universidad des los Andes, and a doctoral degree in law (as JD) from Harvard Law School. Her work has focused on feminist legal reform in Latin America. Professor Jaramillo has been a visiting professor in Paris and taught courses at the Free University of Berlin, the University of Geneva, the University of Miami, and Berkeley Law School.

(1:26): Welcome, Isabel. It’s a pleasure to have you with us.

Dr Isabel Jaramillo (1:29): Thank you, Monica. It’s great to be here.

Mónica Arango Olaya (1:32): Congratulations on this publication. The objective of this edited collection is to reconstruct and think about what gender has meant during Colombia’s transition to peace and reconciliation. Additionally, it seeks to answer, “what has the transition meant for the building of Colombian feminisms?” This is very exciting and timely.

(1:54): For our listeners who are less familiar with Colombia’s Peace Accord and its transitional justice scheme, Colombia’s Peace Agreement was signed in 2016 after over four years of negotiations.[2] It ended a 50-year war with the Revolutionary Armed Forces of Colombia (FARC), a leftist guerrilla. However, it was severely contested by almost 51% of the population through a plebiscite. The plebiscite made the Government renegotiate the agreement, which in its newest version was finally adopted, reshuffling Colombia’s legal landscape. We are celebrating the fourth year of the Peace Agreement with FARC.

(2:33): Can you explain, briefly, where is Colombia now and what has happened in these four years?

Dr Isabel Jaramillo (2:40): Yes, Mónica. Well, unfortunately, we’re not where we hoped to be. The impact of the plebiscite was really important in the process of implementation of the agreements. Even if there was a process of adaptation of the final agreement, in light of the critiques of most important sectors in society, including religious sectors and the far right, the  Agreement, which stayed in force after those adaptations, and was approved by Congress, has not been implemented at the speed or with the energy that was expected.

(3:30): Huge amounts of resources were destined, initially, to the materialisation of the many measures that were provided in the Agreement, including measures on [the] redistribution of land, on the activation of rural economies, the protection of the rights of rural populations, and in particular, of rural women, and their needs for land and education. But those resources remain unused, many of them, and others were not appropriated for these tasks. So we have a very— I was involved very closely in the supervision of the first years of implementation. The first two years showed minimal implementation, but I would say that the last two years would even show [more] significant lags in taking the measures that Government was supposed to take in accordance with the Agreement.

Mónica Arango Olaya (4:40): You’ve been working in gender issues for a long time, and now is the fourth year of the implementation, or the adoption of the Peace Accord in Colombia. So this book is quite timely. How did  the idea of this edited collection come about?

Dr Isabel Jaramillo (5:01): I— as you mentioned, I’ve been working on gender issues in Colombia for a long time and questioning how to think [about] this issue through a feminist lens. I was critical of Colombian organisations that were placing too much emphasis on sexual violence within the armed conflict, paying little attention to re-distributional issues, but mostly paying little attention to the connections of the armed conflict with structural inequalities in Colombian society. So from that very critical position, I engaged [in] a number of conversations with feminist organisations that were taking very seriously issues regarding the armed conflict. And from these conversations I got to know young activists who were interested in reflecting themselves— on their own experience in the armed conflict. And we started meeting to read feminist theory and discuss their experience of conflict, and helping victims of the armed conflict, through this feminist theory. And that process brought together also some scholars from other universities, feminist scholars in other universities, who were experts on issues of armed conflict and gender, such as Carolina Vergel and María Carolina Olarte, whom I got to meet — it was very fortunate I got to meet them through this project.

(6:38) And so I think we were trying to create this alliance of academia and organisations to bring theory to bear on the experience of activists, which was very rich, very significant, but created some questions that a theory could or should be able to answer. So the process was one of creating bridges between academia and organisations to understand better what we were all experiencing about the place of armed conflict in feminist mobilisation and feminist thinking.

Mónica Arango Olaya (7:22): One of the starting points of the collection is a question about a transitional moment for Colombia with the Peace Agreement. Within the very complex Colombian context, what do you understand as this “transitional moment”?

Dr Isabel Jaramillo (7:36): Well, at a point in time, it seemed that this Peace Agreement with the FARC guerrilla would be the final point of long-waited— long-awaited transition in Colombia. And just for some of the list— some in our audience who might not be as familiar with Colombian insistence on “transitioning”, we’ve had these type of peace agreements since the 1950s, with many measures geared towards justice, reparation, and reconciliation. We started to use this transitional vocabulary in 2005, when [the] Government entered agreements with the paramilitary groups operating in the territory, and the Constitutional Court decided that this was an opportunity to start speaking of “transition” in Colombia.

(8:39): So this Peace Agreement with FARC seemed to be a last step, as those political groups armed and operating in the territory were finally going to surrender their arms, and we were thinking that we would— that the new scenario would be one in which only groups that delinquents— regular delinquent groups would remain organised and operating in the territory. So this— The hope with the Peace Agreement with FARC was that we would finally end a long process of transition, which meant negotiating which each— with each one of the different political groups that were operating in the territory.

Mónica Arango Olaya (9:29): You mentioned in the introduction of the collection that one of its main contributions is to provide new information about women in Colombia’s transition to peace, but mainly, more pointedly, an analysis of the role of gender in the Peace Accord. How do you understand the role of gender in the Peace Accord?

Dr Isabel Jaramillo (9:48): Well, this agreement with FARC was particularly influenced by feminist organisations and it was empathetic that these agreements should have a gender approach to issues of transition. This was possible because Colombian feminists have been mobilising around peace at least since 1994. But with the Peace Agreement with FARC, there was a stronger participation, there was international pressure, and pressure from the media, to include women in the negotiating teams. But there was also pressure to create a commission that was in charge of the gender approach to the Peace Agreement. And so the chapter by Olga Velásquez in the book shows how progressively women, and in particular feminist points of view, were introduced in the negotiation of the Peace Agreement with FARC.

(10:53): This Peace Agreement, as my chapter shows, not only names gender— the gender approach or “gender mainstreaming” as a tool that should be used to read the agreement as a whole, but includes a number of measures— quite different measures that try to make the Agreement itself an agreement that is sensitive to gender. So, not only is the language of the Agreement— or not only is there an attempt to have the language of the Agreement be language that is gender-inclusive, but also, systematically, there is a call for equal participation of women in the institutions that will be created for the implementation of the Agreement.

(11:42) And then there are special measures geared towards women in particular, as I mentioned before — women in rural areas or areas which have crops in a more vulnerable situation. So gender is thoroughly in the Peace Agreement. As a matter of fact, this led— this was one of the stronger criticisms of groups— of religious groups and groups from the far right, was that the vocabulary of gender was too present and that this was against the neutrality that the Agreement should have.

Mónica Arango Olaya (12:17): This notion about gender ideology, and the backlash that it generated, is quite interesting. Can you tell us a little bit more about that and how it was used against the Peace Accord?

Dr Isabel Jaramillo (12:30): Yes, well, this is not an issue that we are able to go too far into in this book, but it was actually part of the process. It was during the plebiscite campaigns, or in the time allocated by Government for citizens to get to know the content of the Peace Agreement, and to make a decision on whether they would support or not the Agreement as it was negotiated— In that process, for some reason, evangelical and Protestant groups started to— and even some Catholic priests started to raise issues of the Peace Agreement as introducing, in Colombian legislation, the notion of gender. And in that sense, interestingly, they argued the Peace Agreement would authorise same-sex marriage, the adoption of children by same-sex couples, would incentivise sexual education that animated individuals to become transgender, and would authorise abortion.

(13:45): Although it was clear that the intention of the Agreement was to have an impact on the structures of Colombian society far beyond the particulars of the confrontation between Government and FARC, as it understood that patriarchy was at the root also of this political confrontation, it didn’t have any clauses on same-sex marriage, sexual identity, or reproductive rights. Those were already ingrained in Colombian legislation that could not be changed by an Agreement of this type. This agitation, through these false messages, was crucial to creat[ing] an ambience of rejection of the Agreement as a whole. Now, Government and FARC astutely, I would say, didn’t surrender gender as a category that should be used to interpret the Agreement, or that should be used in the implementation, and introduced some clauses on the protection of religious freedom and of religious rights. And it also created a particular institution that would supervise the implementation of gender in the Agreement.

Mónica Arango Olaya (15:14): Given that gender is so central to the Peace Agreement, as you’ve mentioned, how is the collection structured? How are you thinking [about] gender in this collection?

Dr Isabel Jaramillo (15:25): The collection is structured along, I would say, two lines. One of them is the— almost a chronological line, because part of the work is about the Peace Agreement with FARC. But another part of the work that we include here is a— somehow an evaluation or a reflection on the transitional process that preceded the agreements with FARC. So, as I mentioned before, there was a Peace Agreement with a paramilitary that created a transitional infrastructure, transitional apparatus. And some of the— some of the chapters are dedicated to understanding how that transitional apparatus worked, and what were the results for women. And then there’s another part that was— that is specifically about the Peace Agreement with FARC. So that’s one way in which we’re— in which the book is organised.

(16:27): But the book is also organised along the question of the distributional effects of the reforms as— and so some of the chapters show the more private, economical impact, and other chapters study more the justice aspects of the peace agreements and the effects, while others are looking at political participation. So we cover, roughly, issues of justice, and particularly women victims of gender violence in the armed conflict, we cover issues of political participation, both in the negotiation of the Agreement and after the negotiation of the Peace Agreement with FARC, and issues of economical redistribution that should come with a peace agreement, and that in many ways has been problematic, and we’ve seen much less than we have to see.

Mónica Arango Olaya (17:31): The second part of the book is devoted to case studies. Can you tell us a little bit about them?

Dr Isabel Jaramillo (17:38): Well, yeah, it has, I would say, quite interesting studies on, first, how our family law rules have been part of property law all along, but we’re not thinking of this intersection when doing land reform — which is at the heart of agreements with FARC — and how the fact that women do not have rights if they’re not wives of the m[a]n who has the title or who is given the title.

(18:12): Then there’s, I think, a very interesting chapter on the way in which reparations are using the financial system to bring women into the logic of market and finance, and are leaving women poorer in the process of giving them reparations for the damage they have endured in armed conflict.

(18:44): Then another chapter on the procedural innovations introduced to adjudicate cases involving the armed conflict, and how those innovations — which seemed to bring some promise to feminists for the judicialisation of cases of sexual violence against women in the armed conflict — have not fulfilled the promise, or those innovations have not brought any change in reducing impunity of sexual violence against women in the Colombian armed conflict.

(19:26): Finally, we have two chapters on the case of Bojayá, one of the very few massacres involving FARC in these chapters.[3] The case is— again, is interesting because this is a case that has been researched and tried even before the Peace Agreement with FARC. And so we have plenty of governmental action involved in— involved in justice, reparation and non-repetition in this case of Bojayá. But what the chapters do is, from an ethnographic point of view, try to express the frustration and society’s limitations of all these transitional efforts.

Mónica Arango Olaya (20:20): As you mentioned, these case studies go way before than the Peace Accord. Why do you think it was important to examine gender resource distribution before the Agreement?

Dr Isabel Jaramillo (20:31): Well, as I mentioned Mónica, feminists have been engaged— they’ve been negotiating gender with the Colombian state for at least 25 years. So I think that— or we thought it was crucial to see the Agreement with FARC as a final product of that negotiation. So in— it would be very unfair to think that gender appeared in the Peace Agreement with FARC only because there was some international pressure, or only as a result of the transplant of some foreign institutions to this process. It was actually— whatever resulted in terms of having gender as a part of the Peace Agreement with FARC definitely is the result of the work of feminists in Colombia, for, as I mentioned, at least 20 years.

(21:31): And on the other hand, we thought that these tales of gender in the implementation of peace agreements with the paramilitary could serve as cautionary tales of the ways in which our projects could unravel, and the unexpected adverse effects of some measures that the literature has been advocating as beneficial for women, so that in this process of implementation, we have more time, we have more elements, for a reflection, that is… one could say more conscious of the adverse effects that some of these measures have, and tries to avoid them, or at least recognises that the decisions are made, notwithstanding the knowledge that we have that they will not produce the effects that we desire.

Mónica Arango Olaya (22:33): These case studies vary widely, in theme and geographically, as you have mentioned. Are there any common threads in the findings of those studies?

Dr Isabel Jaramillo (22:43): I would say that, as I mentioned, what we’re trying here to push is to take seriously the role of law in the transitional processes. So one common thread would be this notion of law as relevant in distribution, and in that sense— For example, putting forward how doctrinal— our interpretations of the legal rules in force create scenarios that not— were not necessarily foreseen to begin with. So this would be one of the— is that doctrinal interventions of legislation produce relevant effects in distribution.

(23:37): Another aspect I would say that these papers have in common is, it’s not only the cultural that is at stake, or “justice” as a very abstract notion of being considered an equal part of society — which, of course, we agree is quite crucial — but it’s a— it’s also women’s empowerment and women’s capacity to control resources within Colombian society. So— and even in situations— so, both how law intervenes in distribution, but also how distribution is a crucial aspect of some of the operations of law that in many cases are just not as visible to us as interpreters and as adjudicators of the law.

Mónica Arango Olaya (24:35): This is perfect, now that you mentioned a distributive analysis. That is really the second contribution of the book, to present methodological tools for a gender analysis. Can you explain a little bit — what is a “distributive analysis” of the law?

Dr Isabel Jaramillo (24:50): So, as lawyers we are frequently taught that distributional questions are solved by legislators, and that expertise on distribution remains with economists. And so we understand our task as not involved in issues of distribution, and that means that we are not— on the one hand, that we’re not liable for the costs of our decisions, and on the other hand, that we’re not able to intervene to make those costs less for the people we care about. So our lawyerly training in general makes us irresponsible, both as actors, as agents, of transformation — positive transformation or negative transformation — when it comes to the costs of the— of our decisions.

(25:56): So what we’re trying to push here is the notion that choices about rules have consequences, economic consequences, not necessarily or mainly *monetary* consequences, but negative consequences. And many times those are negative consequences for the groups we care about, or that we are— whose rights we are advocating. And other times there will be costs for other groups. But we should remain alert towards the possibility of creating those costs, both for the groups that we are trying to protect, or empower, and for other groups in society.

(26:48): So in the case of this book, by pushing the distributional line, I think we’re both developing a critique of the Colombian state and its institutions, and how they have understood gender, or implemented gender as part of their institutional arrangement, but we’re also furthering an internal critique in feminism, about the costs that some of our innovations might bring, both for women and for other groups.

Mónica Arango Olaya (27:22): This is a— certainly an innovative tool of approaching gender within this context. Do you think there is a role of human rights— for human rights in this type of analysis?

Dr Isabel Jaramillo (27:36): Distributional analysis— it takes as its point of departure [a] human rights analysis. So it is *because* we’re interested in protecting the rights of individuals who have been excluded, marginalised — well, killed, expropriated, etc. So “human rights” is our contemporary vocabulary— it’s a vocabulary that allows us to understand all these harms. And so distributional analysis starts from the acknowledgement of these harms, and the intention of understanding how these harms are the result of different institutional arrangements. Human rights analysis is, I would say, the starting point of identifying harm in contemporary societies and in identifying costs. Definitely we use human rights in— as a theory of harm in distributional analysis, yes.

Mónica Arango Olaya (28:44): The third contribution of the book is to create new knowledge about the Colombian transition from a gender lens, in furthering a feminist standpoint that really signifies knowledge production and contests past stories. So here, the “who” is talking is central to the collection. Can you tell us a little bit more about the authors — who are the authors of these book chapters?

Dr Isabel Jaramillo (29:09): Yes, the authors in these chapters are all Colombian legal scholars, professors at Colombian universities, who are interested in how law creates or transforms the lives of people. This is innovative because most work on violence in Colombia has been the work either of male scholars — most of them not lawyers or not legal scholars, but rather sociologists, historians, psychologists even — and most of the work on feminism and gender has been done by feminist organisations and activists in Colombia. So we’re entering as a group of legal scholars into a scenario that is populated by men on the side of scholarship, and by activists on the side of gender analysis.

Mónica Arango Olaya  (30:18): You mentioned that this collection is contributing to build[ing] Colombian feminism. Can you unpack this idea?

Dr Isabel Jaramillo (30:25): Well, we’re, as a group, convinced that the Colombian experience and thinking about the transition has been long, intense, interesting, and it would add— that it certainly contributes to the transnational dialogue existing on transitional justice and gender. That is a conversation — the conversation about transitional justice and gender — in which many English-speaking scholars have participated, and in some ways have shaped the concepts that we use to think through our own situations, our own local experience, and it has been this scholarship, produced, that I would say is part of a transnational feminist canon, is rich, interesting, and has taught us a lot, but what we— we were convinced that we, through these type of exercises, are making contributions that are not only relevant locally, but are also relevant in that transnational conversation. And that’s what we believe is somehow a Colombian feminist contribution to the conversation.

Mónica Arango Olaya (31:53): Well, thank you so much, Isabel. It’s been fantastic to talk to you.

Dr Isabel Jaramillo (31:57): Thank you, Mónica.

Mónica Arango Olaya (32:10): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann. This episode was co-produced by Mónica Arango Olaya, edited by Christy Callaway-Gale, and hosted by Mónica Arango Olaya. Music for the series is by Rosemary Allmann. Show notes for this episode have been written by Sarah Dobbie. Thanks to our production team members — Sandra Fredman, Megan Campbell, Gauri Pillai, and Natasha Holcroft-Emmess — for their valuable feedback in putting this episode together. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

. . . . .

FOR OxHRH DISCUSSION ON BROADER ISSUES REGARDING THE CONFLICT AND PEACE PROCESS IN COLOMBIA, SEE:

• Podcast: “A Reason for Hope: The Pursuit of Restorative Justice in Colombia (with Judge Julieta Lemaitre)” (26 June 2020) https://ohrh.law.ox.ac.uk/media/a-reason-for-hope-the-pursuit-of-restorative-justice-in-colombia-with-judge-julieta-lemaitre/

• Blog Oost: Elena Butti. “Children’s Visibility in Colombia’s Peace Plebiscite Campaign: In Everyone’s Interest but Children’s.” OxHRH (2 October 2016) https://ohrh.law.ox.ac.uk/childrens-visibility-in-the-media-in-colombias-peace-plebiscite-campaign-in-everyones-interest-but-childrens/

• Blog Post: Viviana Waisman. “An important step forward for victims of sexual violence in Colombia.” OxHRH (7 March 2016) https://ohrh.law.ox.ac.uk/an-important-step-forward-for-victims-of-sexual-violence-in-colombia/

• Blog Post: Andrei Gómez-Suárez. “Colombian Victims: Changing the Rules of the Game.” OxHRH (24 November 2014) https://ohrh.law.ox.ac.uk/colombian-victims-changing-the-rules-of-the-game/

• Blog Post: Andrei Gómez-Suárez. “The Santos-FARC Peace Talks: Human Rights Challenges in Colombia.” (3 December 2013) https://ohrh.law.ox.ac.uk/the-santos-farc-peace-talks-human-rights-challenges-in-colombia/

[1]Available at https://www.peterlang.com/view/title/69207.

[2] For the final text of the Peace Accord (Acuerdo Final), see http://www.centrodememoriahistorica.gov.co/descargas/finAcuerdoPazAgosto2016/12-11-2016-Nuevo-Acuerdo-Final.pdf. See generally: Sergio A. Daza. “‘Se necesita paciencia para avanzar con el acuerdo de paz’: ONU” El Tiempo (7 December 2020) https://www.eltiempo.com/politica/proceso-de-paz/onu-balance-sobre-los-cuatro-anos-implementacion-acuerdo-de-paz-colombia-551882; and “Nota de Prensa del Informa Trimestral del Secretario General de Naciones Unidas ante el Consejo de Seguridad sobre la Misión de Verificación de la ONU en Colombia.” Misión de Verificación de la ONU en Colombia (7 January 2021) https://colombia.unmissions.org/nota-de-prensa-del-informe-trimestral-del-secretario-general-de-naciones-unidas-ante-el-consejo-de-0.

[3] See generally: “Bojayá: La Guerra sin Límites.”(2010) https://www.centrodememoriahistorica.gov.co/descargas/informes2010/informe_bojaya.pdf; and “Bojaya massacre: After 17 years, victims’ remains returned.” Al Jazeera (15 November 2019) https://www.aljazeera.com/features/2019/11/15/bojaya-massacre-after-17-years-victims-remains-returned.

Executive Producer: Kira Allmann
Produced by: Sandra Fredman and Mónica Arango Olaya
Edited by: Christy Callaway-Gale
Hosted by: Mónica Arango Olaya
Music by: Rosemary Allmann
Show Notes by: Sarah Dobbie
Thanks to: Meghan Campbell, Gauri Pillai, Natasha Holcroft-Emmess

TRANSCRIPT (PDF)

Mónica Arango Olaya (0:11): Welcome to RightsUp, a podcast from the Oxford Human Rights Hub. I am Mónica Arango Olaya, and in this episode I’m talking to Nathan Law, a pro-democracy activist in Hong Kong and a former legislator now in exile.

Nathan Law is a young Hong Kong activist currently in exile and based in London. During the Umbrella Movement in 2014, Nathan was one of the five representatives who took part in the dialogue with the Government debating political reform. Upholding non-violent civic actions, Nathan, Joshua Wong and other student leaders founded Demosistō in 2016 and ran for the Legislative Council election. Nathan was elected with over 50,000 votes in the Hong Kong Island constituency and became the youngest Legislative Counsellor in history. Yet, his seat was overturned in July 2017 following Beijing’s constitutional reinterpretation, despite international criticism.

Nathan was later jailed for his participation in the Umbrella Movement. In 2018, Nathan and his fellow student activists Joshua Wong and Alex Cho were nominated for the Nobel Peace Prize by US congressmen and British parliament members.

Due to the risk imposed by the draconian National Security Law, Nathan left Hong Kong and continues to speak up for Hong Kong people on the international level. In 2020, he was listed as one of the hundred most influential people in the world by TIME Magazine.

It’s a pleasure to have you with us, Nathan.

Nathan Law (2:09): My pleasure.

Mónica Arango Olaya (2:11): You have been involved in advocating for democracy and human rights in various different ways in Hong Kong — through protest, through your role in leading a pro-democracy political party, and then as a Legislator. Let’s start with some of your background. How did you become a leader for democracy in Hong Kong?

Nathan Law (2:29): Yeah, well, I was the student leader of the 2014 Umbrella Movement, which was a massive civil disobedience action in the pursuit of democracy.[1] I was considered as one of the student leaders because I was the head of my university’s Student Union. So we were heavily involved in the movement, and then we took some actions and people considered us as one of the leaders of the movement. So for me, that was the beginning of my political activism.

Mónica Arango Olaya (3:01): And can you tell us a little bit more about the Umbrella Movement? What was it about?

Nathan Law (3:06): Yes, Hong Kong was handed back to China from the British Government in 1997. And in [the] 1980s, when the Chinese Government and the British Government were negotiating the future of Hong Kong after 1997, [the] Chinese Government promised Hong Kong people that we will enjoy “one country, two systems” and [a] high degree of autonomy, and eventually democracy under their ruling. So back then, Hong Kong people were so nervous about the fact that they are going under the Communist Party’s ruling, because we all see that in mainland China the autocratic ruling was staggering. So after that, Hong Kong people have been fighting for democracy for over three decades. But until around 2014, when the discussion of the political reform in [the] 2017 Chief Executive election — which is our city’s leaders election — was ongoing, there were no sights of Beijing implementing democracy. So people were infuriated, and they decided to take actions. So the civil disobedience actions were— emerged, and our people wanted to have genuine election[s], to vote to the ballot, to elect their city’s leader. So that was the background of the Umbrella Movement. And in the Movement, we adopted civil disobedience actions. We occupied the major runways of Hong Kong in order to put pressure to the Government. But the Chinese Government was just way too powerful and massive. We didn’t achieve any concrete political reform because of the protest.

Mónica Arango Olaya (4:49): So what is then your assessment of the effectiveness of this protest?

Nathan Law (4:54): Well, I think the protest indeed awakened a lot of people. When we’re talking about having social movement, [it] is not only about making concrete progress, but also making more and more people being involved in political life, and making them aware that there are injustice[s] in the society, and they have to get involved to tackle it. In that perspective, the Umbrella Movement, indeed, made m[any] more people more politically active, making the foundation of a protesting society for the— for this particular ongoing movement starting from 2019.

Mónica Arango Olaya (5:31): Let’s move to your role as a leader of the Demosistō political party, and which as I understand was formalised as an organisation in 2016. How did this party form?

Nathan Law (5:42): Well, in 2016, after the Umbrella Movement, Joshua and I, and the other student leaders, we were thinking about continuing the spirit of the Umbrella Movement, and injecting youth power into the political scene and also into the parliamentary— in politics. So for us, we decided to form a youth-lead party, Demosistō,[2] and then ran for the election in 2016. And by then I was running for the seat, I was a complete underdog, but I eventually won the election, and with a large margin, and became the youngest ever Legislator in the city at the age of 23. It was quite a remarkable result for me.

Mónica Arango Olaya (6:28): Does the political party still exist?

Nathan Law (6:32): Well, the political party was disband[ed] due to the implementation of the National Security Law, because we were worried that all the members of the party would be submitted to years of imprisonment.[3] So for their own sake, we had to do it.

Mónica Arango Olaya (6:51): That is very interesting, because in a way, two things are being mixed here. One is the role of protest and speaking up, and then being able to be part of government, at least as a Legislator. You held that role very briefly due to a controversy over your oath. What happened at the oath ceremony?

Nathan Law (7:12): Yeah, well, after you are elected, you have to take the oath to resume office. And there has been a tradition of Legislators in Hong Kong to make [a] political statement before and after the oath. So, back then, I followed that tradition, I quoted Gandhi, and I said that I will serve the people instead of the autocratic regime. And the oath taking was approved. I served the Council for almost a year. But the Beijing Government, that didn’t like that approval, they basically reinterpret[ed] our Constitution, and then implement[ed] new restriction[s] on the oath-taking process, after my oath, and then appl[ied] it retrospectively. So I made a legitimate oath. But the Government said that they just didn’t like it. So they amended our restriction and distorted our legal system, and appl[ied] it retrospectively.[4] Therefore, I was disqualified after nine months of serving. And that reinterpretation of our Constitution was seen as a massive encroachment on our rule of law, because their interpretation was made by the political party in China, which they were not making it because of, well, legal perspective, but as political suppression.

Mónica Arango Olaya (8:46): How did you find the Legislative Council. Do you think change is possible from such a position?

Nathan Law (8:52): Well, I’ve always said that Legislative Council is just a platform for you to trigger political power and also [for] making your demands and your opinion more visible. But at the end of the day, we still have to rely on the resistance and the pressure outside the system in order to really make a systematic change. So my role as a legislator back then was merely an assisting identity for my activism. I still continue[d] to protest, to participate in our political activism, and to try to make a change outside the system.

Mónica Arango Olaya (9:36): Those particular elections were symbolic in that former protesters and pro-democracy activists had an official political mandate. Did this translate into political action?

Nathan Law (9:48): Well, by then, in 2016, people were quite upset about the politics, but they didn’t really translate it into actions, for example, direct protests or demonstrations. So I think using [the] ballot to express their opinion is one of the ways that they express their political resentment in this low tide of political protest. So I think, yeah, that was one of the ways that they expressed themselves.

Mónica Arango Olaya (10:20): What do you see as the role of human rights in your work?

Nathan Law (10:25): Well, I think democracy, freedom and human rights are closely correlated concept[s] and a lot of the concrete connotations that they share, overlapped. So I think it’s important that we understand that without the protection of democracy, freedom and human rights could be very fragile.

Hong Kong is a perfect example. In 1997, when Hong Kong was handed back from the British Government to China, we were kind of getting rid of our colonial status. But in fact, the last decades of Hong Kong governance under the British Government, it implemented a lot of free— freedom elements in Hong Kong, with freedom of expression, freedom of movement, freedom of a lot of other things, that Hong Kong was praised as the beacon of free— the beacon of freedom in Asia. So that was actually quite a remarkable honour for Hong Kong. But under Chinese ruling, even though we were, like, going back to the country as a city, our freedom has been eroded, or even demolished, under that. That is because we just cannot elect our legislature and our executive. The top leaders of Hong Kong serve the interests of Beijing in self-interest [instead] of Hong Kong people. So I think we have been witnessing the fading of our freedom. And that’s why people wanted democracy so badly, because that could protect us from this autocratic ruling that destroy[s] our system.

Mónica Arango Olaya (12:27): Protests in Hong Kong are part of a long history to pursue democracy and they are not new. However, in June 2019, the world saw the biggest demonstration recorded so far, with a quarter of the population in the streets trying to block a piece of legislation that would extradite Hong Kong citizens to China to face trial. The legislation was withdrawn in October in 2019. Why were such protests so important?

Nathan Law (12:56): Well, under that extradition law, Hong Kong people could be extradited back to China.[5] And basically China, as a [country] without any sense of rule of law, they could drum up cases and order the Hong Kong Government to extradite anyone that they want back to mainland China, and [the] Hong Kong Government won’t refuse that because they are basically the puppet of the Chinese Government. So it triggered a lot of anger in the society and it was translated to a massive movement that involved more than a million people. And, yeah, that was the start of the whole anti-extradition and freedom fighting movement. And even though that implement— that proposal of the extradition law was withdrawn by the Government afterwards, the movement has evolved to a movement that fights for holding the police accountable on addressing the police brutality and the lack of autonomy of Hong Kong as a whole, and a more comprehensive demand movement. So, yeah, that was really a conglomeration of the city’s failure in terms of governance and Hong Kong people were very determined to fight back [for] the things that they deserve.

Mónica Arango Olaya (14:26): This protest, as you point out, quickly became something bigger. How was this change[d]? And were there any specific demands, and if so, have any of those demands been met?

Nathan Law (14:39): The five demands in the movement were the consensus of the protesters; namely [1] the overthrow of the extradition treaty, the extradition agreement, which was accomplished, and [2] setting up an independent inquiry commission on police brutality, [3] having democracy, [4] stop labelling the movement as “riots”, and [5] properly releasing all the political prisoners. And the other demands, the Government has not even committed anything to address them.

Mónica Arango Olaya (15:19): The protesters have taken the slogan, “be water”. What does this mean?

Nathan Law (15:25): Well, “be water” is the slogan originally from Bruce Lee, a martial arts master. And it means that we have to be very fluid in terms of our strategy and tactics, so that we could be unpredictable and the Government has had to attack us by attacking the weakness, [but] because we always shift our form, we have less weakness. So it is a philosophy that [was] largely adopted by the protesters, and it was manifest in terms of how we protest, and how we would choose resistance movement.

Mónica Arango Olaya (16:10): With the escalating protests and demonstrations, violence has also escalated. There have been reports of the use of water cannons, tear gas and pepper spray to disperse protesters. What do protesters face in the streets?

Nathan Law (16:27): Well, it was a very traumatic and haunting year for a lot of Hong Kong people. Because when people marched down to the street, at the very beginning, all peacefully, what they faced was the baton, from the police, water cannons, rubber bullets, endless tear gas. And these are very terrifying, like, I’ve been there. I’ve been facing the rates of the riot police and all of the firearms that they are equipped [with] and firing to the crowd — those were terrifying. So for me, I think it’s an extremely traumatic experience, especially [when] we’re under a regime that they will do everything to protect the police from being investigated, from being identified, and taking responsibility. So yeah… These protesters, they risk themselves, and they are exposed to police brutality, and arrests, and charges that will put them in jail for years. Or even for some, they are tortured, and allegedly sexually abused in the police station. And these are really staggering experiences and stories that make a lot of Hong Kong people really infuriated about the behaviours of the police.

Mónica Arango Olaya (18:02): Another important aspect of the protest has been the use of technology to dissipate and prosecute protesters, creating serious concerns for human rights. What type of technologies are used and how?

Nathan Law (18:16): Yeah, the police have technology that [means] they could crack into the protesters’ phone[s], even without the warrant from the court, and then collect the information. And also they have been tracing the protesters, tracing people that they want— that they suspect are involved in the movement, by different technological appliances. For example, a GPS tracker installed in your car and things like that. So, those are worrying tactics that the police have been using.

Mónica Arango Olaya (18:54): How has the Movement evolved from peaceful manifestations, for example, like the Umbrella Revolution, to a struggle facing so much violence?

Nathan Law (19:04): Well, I think the most crucial turning point would be the protesters realising that unlimited and disproportionate police brutality are not checked. They started to think of ways to protect themselves, for example, making fire barricades or things like that. I think the turning point would definitely be because we have a police force, legitimate use of violence from the Government, without any checks and balances. So people, they started to think about fighting back

Mónica Arango Olaya (19:42): Do you feel there is a division in society?

Nathan Law (19:45): Well, of course there is polarisation, and in fact, there has been a growing polarisation in every single society. But in Hong Kong, people who are in favour of the democracy has always been the majority. And our demands in the Movement, for example, setting up an independent inquiry commission on police brutality, and also democracy, they once gained more than 80% of support in the society — there’s an overwhelming majority. So I will say that, yes, that is a deficient, but the majority has always been in support of the Movement and the democracy.

Mónica Arango Olaya (20:27): Are there people in favour of the police while acknowledging all of this police brutality and violence?

Nathan Law (20:34): Well, of course, there is always 10% to 20% minority in the society that they omit all the facts, and they wholeheartedly support the police, because they think that they bring them stability, and some of them are the relatives of the police, or police themselves. So, yeah, there is a group of them. And also there are lots of opportunists, that they just feel like aligning with the Communist Party could grant them material rewards. So they are doing so.

Mónica Arango Olaya (21:09): Do you think that bridges can be built between these two parts of society?

Nathan Law (21:15): Definitely it has to start with having truth and having democracy, a structural and systematic change in order to mend the rift. Otherwise it is impossible for us to pretend nothing happened, because there are indeed people getting hurt, a lot of injustice, and to say that we’re going to reconciliate, it is not going to happen. It has to start with systematic reform.

Mónica Arango Olaya (21:43): Do you think that the most recent demonstrations have changed Hong Kong?

Nathan Law (21:48) Well, of course, but it is in response to the change made by the Government. Hong Kong is no longer the one that we used to know. Democracy has never arrived. Freedom has been fading. And under the National Security Law, our freedom of expression is demolished, and people are living in fear, and with terror, and you could never imagine that, like, 20 years ago. So in Hong Kong, yes, indeed, protest shaped the Movement and it is in response to the heavy hand approach by the Beijing Government.

Mónica Arango Olaya (22:24): How has the Coronavirus affected the protest?

Nathan Law (22:28): Well, the Coronavirus granted the Government a convenient excuse to halt any public gathering and demonstrations, and that is indeed the case. So it basically helped them to quiet[en] down the Movement. But on the other hand, of course, we understand the importance of public health. And the Government, even though they have to implement measures like that, there are just a lot of exercise[s] of that public gathering ban on the protesters with absurd implementation. There are cases like— there’s only one protester standing there, the police are also sending— fining them, accusing them [of] breaking the public gathering law. And it was so ridiculous.

Mónica Arango Olaya (23:25): The National Security Law 2020 was recently adopted and poses serious concerns for human rights, particularly to the right to peaceful assembly as well as the right to privacy.[6] What is this law about?

Nathan Law (23:38): Well, this is a law that is directly imposed by [the] Beijing Government and circumvent[s] all the local legislation and consultation process. And the law basically says certain behaviours, including secession, subversion, colluding with foreign forces, etc. is violating the law, and it governs the speech and the mind of people basically. So, the Chinese Government and the Chief Executive have been saying that [it] is a law that targets violent protest. But in fact, it is not. It targets peaceful demonstration and freedom of expression. There are many cases under the law that the police arrested people who were just merely chanting the slogan, posting something on social media, or having a flack that has the protest slogan on. So these are political crimes, and speech crimes, and that is the true nature of the law — it is to quash our freedom of expression.

Mónica Arango Olaya (24:47): How did the adoption of this law influence you to leave Hong Kong?

Nathan Law (24:53): Well, the law obviously targets prominent activists and also people who have been working on the international front, having international advocacy work that targets Beijing and hoping the international community could put more pressure to constrain the authoritarian expansion of China. So, I clearly understand that was targeting my work, and I decided to leave because I think it’s important that we have a voice on the international level that is free from the threats of the National Security Law, and continue to voice for Hong Kong people. And that is what I’m doing.

Mónica Arango Olaya (25:36): It seems that the change towards more control from China is being canvassed through using the rule of law, or the adoption of these laws that we have been discussing. This would look like a democratic process. But is there a rule of law without democracy?

Nathan Law (25:52): Well, I think it’s very, very difficult, because democracy— the aim of democracy— democratic system is to generate democratic accountability, which is to prevent the government doing whatever they like. So, most of the time, destroying the rule of law benefits the government, because the courts under their control could always give a preferred judgment and result for them. So I think, indeed, without democracy, rule of law and freedom are very fragile.

Mónica Arango Olaya (26:28): Given that the Chinese authorities’ response has been so heavy handed, do you see protestors nevertheless having an important role in keeping human rights alive? And what do you think that role is?

Nathan Law (26:40): Yeah, I think protesters play an important role to remind all of us that the struggle is ongoing, that people are suffering on a daily basis, and there are injustice in the society, which is massive. So I think this is a signal that protests could give us and could mobilise and push us forward to commit ourselves into the fight against injustice.

Mónica Arango Olaya (27:08): What do you think is next for Hong Kong?

Nathan Law (27:12): I think it’s important that for Hong Kong people, we keep our resilience and tenacity, and we continue to protest in the forms that could allow us to magnify our impact. And for me, as an activist in exile, I will continue to be the voice of Hong Kong and to meet with politicians and NGOs, and [be a] presence on the internet and the media to urge the world to take actions to constrain the Chinese authoritarian expansion.

Mónica Arango Olaya (27:44): Do you see any other alternative approaches from outside Hong Kong?

Nathan Law (27:49): Well, I think if— in terms of how the international community could react, we definitely need a more proactive and a multilateral, collective approach to really tackle the problem of China’s rising authoritarianism, because this is not only about Xinjiang people,[7] Hong Kong people, but it’s also about our democratic values. The growing authoritarianism justify themselves and they are trying to infiltrate into democracies by sharp power, soft power, and all the technological methods that they have been deploying, and to discredit and dismantle democracy inside out. So I think this is actually a very important task for the global community to work together and to restrain that influence.

Mónica Arango Olaya (28:41): Is this also about human rights?

Nathan Law (28:45): Well, yes, of course, the authoritarian regime abuses human rights and people— their rights are deprived, and they are living in fear. And that’s what is happening in mainland China.

Mónica Arango Olaya (28:57: Finally, what are your plans for the near future?

Nathan Law (29:02): Well, I’ll continue to be the voice of Hong Kong and continue to magnify the influence of the resistance movement and urge the international community to help and to safeguard democratic values together.

Mónica Arango Olaya (29:17): Thank you so much for talking to us today.

Nathan Law (29:20): Thank you so much.

Mónica Arango Olaya (29:32): RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Kira Allmann. This episode was co-produced by Sandra Fredman and Mónica Arango Olaya, edited by Christy Callaway-Gale, and hosted by Mónica Arango Olaya. Music for this series is by Rosemary Allmann. Show Notes for this episode have been written by Sarah Dobbie. Thanks to our production team members — Meghan Campbell, Gauri Pillai, Natasha Holcroft-Emmess — for their valuable feedback in putting this episode together. Subscribe to this podcast wherever you like to listen to your favourite podcasts.

. . . . .

FOR ADDITIONAL OxHRH DISCUSSION ON HONG KONG AND THE ISSUES ADDRESSED DURING THIS EPISODE, SEE:

• Mathias Cheung. ‘Upsetting the ‘apple’ cart: the latest onslaught on press freedom in Hong Kong.’ Oxford Human Rights Hub (13 September 2020) https://ohrh.law.ox.ac.uk/upsetting-the-apple-cart-the-latest-onslaught-on-press-freedom-in-hong-kong/

• Valerie Kwok. ‘Anti-mask Law Ruled a Disproportionate Infringement of Rights Amidst Political Upheaval in Hong Kong.’ Oxford Human Rights Hub (13 December 2019) https://ohrh.law.ox.ac.uk/anti-mask-law-ruled-a-disproportionate-infringement-of-rights-amidst-political-upheaval-in-hong-kong/

• Jeremy Lam. ‘Hong Kong’s anti-extradition movement and common law judges’ extrajudicial opinions.’ Oxford Human Rights Hub (29 July 2019) https://ohrh.law.ox.ac.uk/hong-kongs-anti-extradition-movement-and-common-law-judges-extrajudicial-opinions/

• Stephanie Tai. ‘An Analysis of the Banning of the Hong Kong National Party and the Legitimate Restrictions on Freedom of Expression.’ Oxford Human Rights Hub (28 November 2018) https://ohrh.law.ox.ac.uk/an-analysis-of-the-banning-of-the-hong-kong-national-party-and-the-legitimate-restrictions-on-freedom-of-expression/

• Martin Lau and Jason Ko. ‘Free Speech in Non-Public Spaces: Recent Developments in Hong Kong.’ Oxford Human Rights Hub (8 November 2017) https://ohrh.law.ox.ac.uk/free-speech-in-non-public-spaces-recent-developments-in-hong-kong/

• Stephanie Tai. ‘Lam Wing Kee, Hong Kong, and China’s ever-expanding reach.’ Oxford Human Rights Hub (1 February 2017) https://ohrh.law.ox.ac.uk/lam-wing-kee-hong-kong-and-chinas-ever-expanding-reach/

• Mathias Cheung. ‘The Violence Must Stop – Abuse of Police Power in Hong Kong’s Democracy Protests.’ Oxford Human Rights Hub (30 September 2014) https://ohrh.law.ox.ac.uk/the-violence-must-stop-abuse-of-police-power-in-hong-kongs-democracy-protests/

• Mathias Cheung. ‘A Human Rights Defence of Hong Kong’s Occupy Central.’ Oxford Human Rights Hub (16 August 2014) https://ohrh.law.ox.ac.uk/a-human-rights-defence-of-hong-kongs-occupy-central/

[1] For a brief overview of the Umbrella Movement, see Jonathan Kaiman. ‘Hong Kong’s umbrella revolution — the Guardian briefing.’ The Guardian (30 September 2014) https://www.theguardian.com/world/2014/sep/30/-sp-hong-kong-umbrella-revolution-pro-democracy-protests

[2] See generally https://www.demosisto.hk/about?lang=en.

[3] The National Security Law 2020 refers to the ‘Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region 2020’. For further discussion, see Thomas Yeon and Clara Chok. ‘National Security and Constitutional Rights: Recent Developments in Hong Kong.’ Oxford Human Rights Hub (15 July 2020) https://ohrh.law.ox.ac.uk/national-security-and-constitutional-rights-recent-developments-in-hong-kong/; Nalinaksha Singh. ‘All Eyes on Hong Kong: China’s New Security Law and Rising Rights Concerns. Oxford Human Rights Hub (3 July 2020) https://ohrh.law.ox.ac.uk/all-eyes-on-hong-kong-chinas-new-security-law-and-rising-rights-concerns/. See also Cora Chan and Fiona de Londras (eds). China’s National Security: Endangering Hong Kong’s Rule of Law? (Hart Publishing, 2020).

[4] For discussion of the amendments, see Geoffrey Yeung. ‘Sincerity of Oaths of Allegiance, Freedom of Expression and the Right to Stand for Election in Hong Kong.’ Oxford Human Rights Hub (3 January 2017) https://ohrh.law.ox.ac.uk/sincerity-of-oaths-of-allegiance-freedom-of-expression-and-the-right-to-stand-for-election-in-hong-kong/

[5] For a brief overview of the proposed extradition law, see ‘Hong Kong-China extradition plans explained.’ BBC (13 December 2019) https://www.bbc.co.uk/news/world-asia-china-47810723

[6] For further details of the National Security Law 2020, see footnote 3 above.

[7] Referring to people of the Xinjiang Uygur Autonomous Region (XUAR) in China.

Paola Guzmán Albarracín endured sexual violence, in the form of sexual harassment and abuse, for over a year starting when she was 14 years old. The Vice-Principal of the public school which she attended lured her into having sex with him in exchange for completing her academic requirements to pass the school year. She believed they were in a loving relationship, in spite of the 40 years between them, his position of power and the fact that it is a criminal offence to have sex with a minor. She became pregnant and was pressured by the Vice-Principal and the school physician to have an abortion. She took her own life leaving letters behind explaining that she felt deceived by the Vice-principal, as he had been with other women. While the Court did not acknowledge Paola´s pregnancy nor the pressure to have an abortion as proved facts, it determined that Ecuador had violated Paola´s rights to life, dignity, personal integrity, education, equality before the law, fair trial and judicial protection and to be free from sexual violence as stated in the American and the Belém do Pará Conventions.

Traditionally, much of the Court´s jurisprudence on sexual violence against women has been geared towards sexual violence as torture,  sexual violence in the context of extrajudicial killings and detention and feminicide, amongst others. These cases are situated in the most evidently extreme position within the spectrum of gendered violence and discrimination. They have developed important jurisprudence around the duty to eliminate, prevent and sanction violence against women. However, either because of the backlog and increase of petitions before the Inter American Commission of Human Rights or because cases are not litigated for many reasons, the Court´s docket has fallen short in addressing everyday violence against women. This is why this case, along with others, is crucial to guide the region on how to address structural issues of discrimination that have been ignored, not because of their lack of gravity but because of their normalisation. The case sheds light on sexual harassment and abuse and its prevalence in education settings, an issue which is not portrayed by the Court as an exceptional situation, but rather as pervasive.  Also, on the role of sexual and reproductive rights education as a duty to prevent sexual violence and under the right to education.

Notably, the decision builds on the Court’s jurisprudence on the right to non-discrimination. It continues to depart from a single axis discrimination analysis and embraces an intersectional discrimination analysis. As such, it understands the discriminatory nature of the violence suffered by Paola delving on her vulnerability because of her age and gender.  It also determines the violation of the right to access to justice based on the use of gender stereotypes within the criminal investigation. The Court´s analysis addresses discriminatory practices in law making – the criminal offense in place at the time- and legal interpretation within the criminal law investigation. Such analysis provides guidance on substantive equality approaches to cases of gender-based discrimination and upholds the duty for States to apply a gender perspective in adjudication.

Finally, and perhaps most importantly, the case develops the understanding of sexual harassment and abuse as violence. The decision determines that Paola suffered a continuum of sexual violence escalating from sexual harassment to sexual abuse and leading her to take her own life. Moreover, for the Court, the lack of measures to prevent and sanction sexual violence at the school, as well as the lack of education on sexual and reproductive rights, as a duty to prevent sexual violence, placed Paola in a vulnerable situation. As such, it affirmed that the school´s omissions enabled the sexual violence and amounted to institutional violence. The Court´s understanding of her situation within a continuum of violence and affirming the school´s enabling behaviour as institutional violence are important steps in developing criteria to analyse the causes and consequences of violence and discrimination against women, as well as the role of the State, institutions and society in perpetrating, tolerating and enabling such violence and discrimination. It was about time that Paola´s mother and sister got some justice after waiting for 18 years.

The main argument which sought to overturn the precedent was that allowing abortion, even under those narrow circumstances, violated women’s right to mental health. For the majority, the petition was vague, unclear, unable to articulate a constitutional law argument and it did not comply with the minimum argumentative standard for non res judicata claims. Consequently, the Court did not rule substantively on the issue. This means, for one part, that the statuo quo is upheld and there is no change in the jurisprudence, which recognizes that women have a fundamental right to interrupt their pregnancies within the limits of the “indication system”. On the other hand, the substantive question about whether there is or is not res judicata on the issue is still unanswered. The voluminous participation in the review process, and through opinion pieces and social media posts in favour of and against recognizing a right to abortion beyond the “indication system”, created a sense that the Court would rule substantively, either by settling the discussion with a judgment completely criminalizing abortion (which seemed unlikely), or by recognizing an expanded right.

The central question that the Court did not respond to is about the limits that the living Constitution imposes today upon legislators, when criminalizing conduct that only affects women. It did not answer if, after almost 15 years of having upheld a narrow right to abortion, whether Colombia’s social evolution demands a more expansive understanding of women’s rights to equality, autonomy and dignity. More importantly, it did not deal with the issue of whether the recognition of reproductive rights as fundamental rights, which is a development subsequent to 2006, has created new constitutional standards.

Such an approach would suggest that there is no res judicata on the issue, as this question has not been adjudicated. It would also mean that Court must examine afresh its earlier position that the criminalization of abortion nullifies reproductive rights by not allowing a choice for women – but only in extreme circumstances, as when their lives or health are at stake.

The fact that the minority position considered that not only there was a constitutional claim, but also that its answer was a necessary recognition of the right to abortion during the first 16 weeks of the pregnancy, shows there is constitutional room for protecting reproductive rights. However, the vote was divided. Two of the six Justices who supported the majority affirmed in their concurring vote that the right to abortion should be overturned or further narrowed, and a third one explained that there were questions that had not been adjudicated.

Decision C-088 of 2020 has ignited the anti-rights and the feminist movements, as well as refined the arguments in the public discussion. The issue is at the center of the debate with roaring voices calling for substantive equality, green kerchiefs in the public plaza, as well as voices demanding the denial of women´s rights. This seems to be only the first round of a much larger constitutional conflict.

In late 2018, the Court adopted Decision C-117 of 2018, holding that a provision imposing 5% VAT tax on tampons and sanitary pads violated women´s rights to equality, autonomy, and access to a minimum core standard of life. The petitioners had argued that the tax did not consider women’s economic ability to access essential goods that only they were obliged to use (given that there were no comparable alternative products in the market).

The Court recognized that there was a high margin of discretion for the legislature in tax law. Nonetheless, it could not infringe the principles of reasonableness and non-discrimination. The Court also affirmed that the tax violated the principle of “no taxation without representation”, as Congress never discussed why tampons and sanitary pads should be taxed, despite being irreplaceable goods used only by women. More importantly, it underscored two points. First, women´s ability to appear in and navigate public spaces, and participate in all the dimensions of public life, is necessarily contingent on access to sanitary pads and tampons. While the Court acknowledged the existence of alternatives like the cup and menstrual underwear, it also found that these options were effectively inaccessible for rural women, and indeed for the majority of women, who lived on the minimum wage. Effective access was thus held to be interrelated with the protection of other rights, such as the rights to health, education, autonomy and dignity.

Second, the Court noted that the impact of indirect taxes like VAT was different for women, because of four structural barriers preventing their full economic development: disparate (i) access to employment; (ii) remuneration; (iii) use of their economic resources, as women spend most of their income on childbearing and the household and; (iv) access to property rights. This gendered dimension allowed the Court to apply the framework of indirect discrimination, and hold that the tax imposed an undue burden upon women (particularly for those with lower economic means).

More recently, building upon the previous case, the Court affirmed in Decision T-398 of 2019 that the city of Bogota had violated the rights to dignity, autonomy as well as the sexual and reproductive rights of a woman living on the streets, by not including in their policies the provision of sanitary pads. The Court found that women in vulnerable positions, with no knowledge of menstrual hygiene, had to look through trash cans to find products to manage their flow. This was a breach of the State´s positive duties to provide minimum goods for the most vulnerable.

The Court´s reasoning placed access to adequate conditions for the management of menstrual hygiene within the right to sexual and reproductive health. It stated that menstrual hygiene required access to four elements: (i) adequate products to absorb blood; (ii) adequate private facilities to discharge such products, (iii) water and soap to wash the body and (iv) education to provide a full understanding of the basic aspects of the menstrual cycle. By reaffirming that menstrual hygiene management was determinative of women´s full development and participation in public life, it understood access to such goods as a state goal, pursuant to article 1 of the Constitution.

The remedies not only involved the provision of the goods to the defendant, but were also structural. The Court ordered the city of Bogota to frame: (i) a plan of contingency in the next six months so that women in similar situations could access the same products and (ii) a public policy for the city on menstrual hygiene management for women living on the streets.

These two decisions evidence Colombia´s Constitutional Court approach towards intersectionality and indirect discrimination, and its understanding that women’s participation in public life, and their exercise of the rights to substantive equality, autonomy and dignity, requires positive and negative action from the state.