Legal Pluralism in Practice?

On 5 May 2025, the President of Colombia issued Decree 488 establishing ‘regulations concerning the functioning of Indigenous territories and their coordination with other territorial entities’. A post by Marzia Genovese, recently appeared on EJIL:Talk!, offers a thoughtful but ultimately overstated analysis of Decree 488’s significance for Indigenous territorial autonomy in Colombia. While the decree represents a development in terms of streamlining of administrative norms, its characterization as a transformative legal instrument requires substantial qualification when examined against Colombia’s constitutional framework, implementation realities, political context, and the persistent tensions between legal pluralism and human rights protections.

Constitutional Continuity Rather Than Transformation

The post’s central thesis that Decree 488 effects a fundamental reconfiguration of Colombia’s territorial and legal architecture misconstrues both the decree’s legal nature and the country’s constitutional history. Indigenous rights to autonomous territorial governance have been firmly enshrined in Colombia’s legal order since the 1991 Constitution, with Articles 246, 329, and 330 establishing the framework for Indigenous self-government, territorial rights, and customary justice systems. This constitutional foundation has been progressively elaborated through decades of Constitutional Court jurisprudence that predates and informs Decree 488.

The Constitutional Court’s landmark decisions had already established robust protections that the decree merely streamlined into administrative regulation. As the Court itself has consistently emphasized, administrative decrees lack the authority to create new rights or alter constitutional frameworks. The post’s suggestion that Decree 488 somehow establishes new rights reflects a misunderstanding of Colombia’s legal hierarchy and the relationship between constitutional norms and administrative regulation.

A close reading of Decree 488’s actual provisions further reveals their essentially administrative character. The decree primarily regulates procedures for implementing pre-existing frameworks rather than creating new structures of governance. Its most touted innovations largely formalize practices that had already developed under Constitutional Court supervision. Moreover, the decree’s explicit deference to ordinary legislation on critical issues like resource extraction maintains rather than transforms the status quo the post claims it revolutionizes.

Claims of International Alignment

The post’s assertion that Decree 488 represents progress toward international pluralism standards also requires significant qualification. Colombia maintains a troubling record of unimplemented Inter-American Court rulings concerning Indigenous rights. This pattern of non-compliance extends to domestic enforcement, where the Defensoría del Pueblo (2024) documents an increase in violence against indigenous communities during 2022-2023, as well as an increase in filings for protective injunctions for indigenous communities. The Petro administration’s failures to implement Decree 4633 of 2011, related to the recovery of stolen land from indigenous communities, as well as the 2016 Peace Agreement further contradicts claims of meaningful advancement of international norms.

The decree’s failure to address well-documented human rights tensions in Indigenous justice systems – particularly regarding gender equality and corporal punishment – directly undermines its purported alignment with international standards. The Inter-American Commission has repeatedly noted systemic due process deficiencies widespread in Indigenous justice systems, such as lack of appeal mechanisms and language barriers in proceedings. These persistent shortcomings suggest Decree 488 functions more as a symbolic gesture of the Petro administration following the 2024 Minga Indígena protests than as a genuine effort to implement international obligations.

The Unresolved Tensions of Legal Pluralism

A critical dimension overlooked in the original analysis is the enduring tension between Indigenous justice systems and fundamental human rights protections, a tension that Decree 488 fails to adequately address. The Constitutional Court has repeatedly confronted cases where Indigenous customary practices conflict with constitutional and international human rights standards, particularly regarding corporal punishment and gender equality.

In Judgment T-523 of 1997, the Court limited the severity of corporal punishments administered by Nasa authorities, ruling that excessive physical discipline violated constitutional prohibitions against cruel treatment. Parallel rulings have scrutinized customary marriages involving minor girls, condemning them as violations of protections against forced marriage and children’s rights, though historically permitting limited exceptions for Indigenous communities. The recent ruling in Judgment C-039 of 2025  has eliminated such exceptions entirely. While stopping short of directly invalidating forced marriages in Indigenous jurisdictions (to preserve legal autonomy), the decision establishes a binding precedent by nullifying all civil marriages and de facto unions involving minors under 18, thereby pressuring Indigenous systems to conform to constitutional and international child rights standards. Complementing this, the Court’s order for targeted awareness campaigns reflects a strategic effort to erode the practice culturally rather than through coercive legal intervention. These cases reveal the complex balancing act the Colombian judiciary has attempted between respecting Indigenous legal autonomy and upholding fundamental rights.

Statistics published by the National Indigenous Association of Colombia (Onic) document ongoing challenges in this regard. Their research shows the special vulnerability of indigenous women under 20, as well as a tradition of excluding women from meaningful judicial redress. Oxfam Colombia has, for its part, documented the increase of gender based violence against indigenous women during the Petro administration. These patterns persist despite constitutional guarantees of gender equality and Colombia’s obligations under international instruments like CEDAW.

The Implementation Gap in Indigenous Territories

Beyond questions of legal authority, the article’s portrayal of the decree creating a recognized and regulated system of plurinational governance overlooks the stark realities of implementation. Indigenous territories across Colombia continue to face profound challenges that render the decree’s administrative provisions largely theoretical in many contexts. The ongoing security crisis represents perhaps the most immediate barrier as, according to data from INDEPAZ, Indigenous leaders keep being murdered at alarming rates in recent years. This relentless violence fundamentally undermines the conditions necessary for meaningful autonomous governance.

Political Context: Crisis Management over Transformation

The political circumstances surrounding Decree 488’s adoption reveal a more complex story than the post’s narrative of progressive development. Rather than representing organic progress, the decree emerged amidst deteriorating relations between the Petro administration and Indigenous organizations. The 2024 “Minga Indígena” protest march from Cauca to Bogotá, which preceded the decree’s issuance, highlighted the government’s failure to fulfill the majority of its 2022 campaign commitments to Indigenous communities.

This context of broken promises and mounting frustration undermines characterizations of the decree as part of a broader shift toward pluralist governance. The administration’s significant reduction in Indigenous territorial funding between 2022 and 2024, along with its failure to implement key Constitutional Court orders concerning Indigenous leader protection, suggests the decree functions more as political crisis management by an embattled government than transformative recognition.

Conclusion: Between Pluralism and Rights Protection

While Genovese’s post provides valuable analysis of Decree 488’s formal provisions, it overstates both the decree’s novelty and impact by divorcing it from the constitutional, political, and practical contexts that give it meaning. The persistent gap between Colombia’s progressive legal framework and the realities of Indigenous territorial governance suggests that true pluralism requires more than administrative recognition: it demands structural reforms addressing security, resource conflicts, and institutional resistance that continue to limit Indigenous self-determination.

Future scholarship might productively shift focus to the central challenge Decree 488 leaves unresolved: how to construct a pluralist system that genuinely respects Indigenous legal traditions while ensuring robust protection of fundamental rights. The Constitutional Court’s jurisprudence points toward potential solutions, such as establishing minimum rights standards, creating intercultural mediation mechanisms, and supporting internal reform processes within Indigenous communities. However, without addressing these tensions head-on, decrees like 488 risk becoming empty gestures that recognize Indigenous autonomy in theory while failing to protect it in practice, as Genovese herself has argued in the conclusions to her post.