Juridical Journal Mario Alario D`Filippo

Indigenous law in Colombia: advances, principles and challenges towards the protection of cultural and territorial rights

2024-06-13T11:25:36-05:00

The Political Constitution of Colombia recognizes and protects the ethnic and cultural diversity of the nation. However, in practice there is a precarious material fulfillment of this duty. This is partly due to legislative changes against the constitutional guarantees of indigenous peoples; on the other hand, some judicial rulings that show blind obedience to legal formalism in open disregard of the substantive rights of indigenous peoples. This article analyzes the development of indigenous law in Colombia, focusing on the advances, principles and challenges that have arisen in the protection of the cultural and territorial rights of indigenous communities. In addition, it seeks to analyze the legal implications and effects on the rights of indigenous communities in specific cases. It is justified by the need to understand and evaluate the existing legal framework in relation to indigenous rights, in order to identify areas for improvement and strengthening. It is noted that the development of indigenous law in Colombia has experienced significant advances in the protection of the cultural and territorial rights of indigenous communities. However, important challenges persist in terms of the effective application of the established principles and rules, especially with regard to prior consultation and the granting of environmental licenses.

Procedural dynamics in the Colombian state: towards new evidence tools in sustainability

2024-06-13T11:25:34-05:00

The purpose of this paper is to analyze the figure of environmental expertise as a binding evidence tool for the current dynamics of Colombian procedural law as a means to guarantee the sustainability of the State. It is from this that it can be understood that it, as a means of proof, moves away from the classic conception that exists on the mere technical aspects that an expert opinion on this area brings with it. This is mainly due to the fact that the bases on which the environmental expertise is based are multidisciplinary and its approach seeks precisely to give priority to sustainability over any aspect, this is because the test allows to gather related and transversal aspects of the environment, so that it It would provide a justice operator with sufficient information so that his ruling is as less serious as possible to the environment, the environment and all the other elements that make up society. Therefore, it was concluded that the environmental expertise does result in an adequate means to be able to affect the sustainability not only of the environment itself, but also of the judicial decisions of the Colombian State.

Critical reflections on the legal regime of organ donation In the Colombian legal order

2024-06-13T11:25:31-05:00

Although in Colombia the absence of regulation on the legal availability of the human body or parts of it is a reality, there is basic legislation on some issues that have been developed by medical science, such as organ donation, it is considered as Legal problem: Is there legal, jurisprudential or principialist foundations in the Colombian legal system that allow or prohibit the legal availability of the human body and its separate parts, in response to scientific advances promoted by medical science (in this case limited to transplantation? and organ donation) ?; For this reason, some legal aspects of organ donation in Colombia will be analyzed as a critical reflection, as well as its regulation in timeline, as well as its difference with the legal presumption of organ donation, especially to the light of Law 1805 of 2016, raising arguments that establish criticisms of the legal mechanisms that the law contemplates for the declaration of will in this regard; giving it a current nuance with the introduction of the figure of advance directives in light of the 1996 of 2019 law in Colombia. To finally conclude that a systematic and updated but coherent regulation is necessary on the disposition of the human body, in this case, of separate parts of the human body, such as organs.

Unnominated precautionary measures in arbitration processes

2024-06-13T11:25:28-05:00

With the issuance of Law 1564 of 2012, progress was made in the matter of precautionary measures since the so-called preliminary orders or unnamed precautionary measures were originated, an institution that in turn was developed in Law 1563 National Statute of National and International Arbitration that took a great step in arbitration matters in our internal legal system, the brief but necessary historical account of the development of international arbitration and the legal framework that has been regulating it, among others, by the New York convention, the European Convention on commercial arbitration International Geneva of April 21, 1962 and the Resolutions that regulate them, will lead us to conclude that there is a gap in the adoption of the so-called unnamed precautionary measures and for their part this power is not directly attributed to the arbitrators, aspect which makes its applicability even more difficult due to the formalities that the arbitration process that requires the arbitrators to guarantee the effective protection of the party that agrees to this measure to resort to tools known as emergency arbitrators and judicial support that allow effective protection of the rights recognized in the substantial law.

On the other hand, the purpose is to analyze and define whether in the arbitration processes carried out during the years 2019 to 2021 in a certain city of Colombia, unnamed precautions have been decreed. What are the requirements established in the arbitration regulations for the application and decree of interim measures. The study will be carried out with respect to the analysis of processes processed in the arbitration centers of a given city in Colombia during the years.

Relationship between companies and ethnic communities within the framework of the right to prior consultation: an analysis based on multinomial logistic regression

2024-06-13T11:25:25-05:00

The article aims to present the use of the quantitative analysis technique called multinomial logistic regression to identify the main factors that influence the optimization of the relationship between companies and ethnic communities in scenarios of social licensing processes and corporate social responsibility (CSR). Through the use of multinomial logistic regression, the article explains the key factors that impact the optimization of dialogue, recognition, and consensus-building between companies and ethnic communities. The case analyzed focuses on an investment company that has had to obtain a series of social licenses from ethnic communities through prior consultation in the city of Cartagena de Indias, in order to initiate intervention projects in their territories. The results show that the success of the company's relationship management with the community is based on the trust it can generate within the community and its active involvement in development-oriented processes, strengthening social fabric through communication, dialogue, and engagement. Among the main conclusions, it is highlighted that multinomial logistic regression is an extremely useful analysis technique to examine the relationship between a company and an ethnic community within the framework of prior consultation. It also represents a reliable method for making informed and responsible decisions in such scenarios.

Consensual justice: a commitment to functionality and practical results

2024-06-13T11:25:22-05:00

The criminal law of our country was characterized by its inquisitorial court materialized with Law 600 of 2000, and it is with the entry into force of Law 906 of 2004 where this paradigm changes to make it accusatory, following the Anglo-Saxon system as an example and introducing a new and questionable tool for some, such as pre-agreements and negotiations between the accusing entity and the accused that seeks to impact with a paradigm shift that transfers the legal to the sociological or in the words, thus humanizing the criminal process as it is in accordance with the preamble of our constitution, and what it seeks in itself is to provide a quick and effective solution to the process, decongest judicial offices, guarantee truth and reparation to the victim and As for the defendant, ensure a reduction in the penalty or benefits for his acceptance of charges.

The value of the legal rules in the Colombian legal system

2024-06-13T11:25:19-05:00

This article explores the concept of validity in legal theory and system sources in Colombian law, in order to account for the theory that best explains the legal validity of individual standards in our legal system. This first explores the different concepts of validity proposed by various theoretical approaches-legal, then describes the system of sources in the Colombian legal system and finally confronts these various theoretical approaches with our sources.