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ABSTRACT
The impact of Convention 169 on Indigenous and Tribal Peoples in countries independent of the International Labor Organization (hereinafter Convention 169), on the rights of indigenous peoples is unquestionable. Since its adoption (the Convention 169 was adopted by the ILO on 27 June 1989, in Geneva), 22 countries have ratified it with consequences that range from: its incorporation into internal regulation; constitutional, legislative and institutional modifications aimed at incorporating its standards; changes in practices in dealing with indigenous peoples; and rulings of domestic courts of justice that incorporate the Convention's standards in their decisions, among others. However, its impact has not been limited to the countries that ratified it, but it has crossed these borders, since it is considered a minimum standard in the discussions regarding other international instruments on the rights of indigenous peoples or has been incorporated, through the mechanism of its application or interpretation, in the decisions of international human rights organisations, both universal and regional. The following pages will deal with the incorporation of ILO's Convention 169 in the inter-American human rights system, regarding consultation and consent.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Isabel M. Madariaga Cuneo is a Chilean lawyer who specializes in human rights. From 2000 to 2013 she worked at the Inter-American Commission on Human Rights (IACHR), an independent and autonomous organization of the Organization of American States (OAS), with headquarters in Washington D.C., USA. In the IACHR, she coordinated the Rapporteurship on the Rights of Indigenous Peoples and the Mesoamerica Region and the Spanish-speaking Caribbean. She currently works as a consultant on human rights and teaches the subject.
Notes
1 The American Declaration of the Rights and Duties of Man was approved at the Ninth International Conference of American States, Bogotá, Colombia, 1948.
2 The IACHR is a principal autonomous body. It is composed of seven members elected by the General Assembly of the OAS from a list of candidates proposed by the governments of the member states, for four years and they may be re-elected once. The main mandate of the IACHR is to promote the observance and defense of human rights and to foster public awareness regarding human rights in the Americas.
3 The Inter-American Court of Human Rights was created in 1969. It is an autonomous judicial institution. It consists of seven judges, elected by the OAS General Assembly from a list of candidates proposed by the governments of the member states, for a term of six years and they may be re-elected once. The I/A Court H.R. has jurisdiction to hear any case concerning the interpretation and application of the provisions of the American Convention submitted to it, provided that the States Parties to the case, recognise or have recognised such jurisdiction by special declaration or special convention.
4 The international instruments approved by the OAS in the area of human rights are the following: Charter of the Organization of American States (1948); American Declaration of the Rights and Duties of Man (1948); American Convention on Human Rights (1969); Inter-American Convention to Prevent and Punish Torture (1985); Protocol of San Salvador: Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (1988); Protocol to the American Convention on Human Rights to Abolish the Death Penalty (1990); Convention of Belém do Pará: Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (1994); Inter-American Convention on Forced Disappearance of Persons (1994); Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities (1999); Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance (2013); Inter-American Convention against All Forms of Discrimination and Intolerance (2013); American Declaration on the Rights of Indigenous Peoples (2016).
5 IACHR, Resolution on ‘Special protection of indigenous populations: Action to combat racism and racial discrimination’. 1972 Annual Report.
6 The details of the actions of the IACHR in relation to the rights of indigenous peoples can be obtained on the website of its Rapporteurship on the Rights of Indigenous Peoples: http://www.oas.org/es/cidh/indigenas/default.asp
7 As a reference, the following sentences have been issued by the Inter-American Court of Human Rights on the communities and peoples’ rights of ownership of their lands and territories, among other rights: Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (2001); Case of the Yakxe Axa Indigenous Community v. Paraguay (2005); Case of the Sawhoyamaxa Indigenous Community v. Paraguay (2006); Case of the Saramaka People v. Suriname (2007); Case of the Xákmok Kásek Indigenous Community v. Paraguay (2010); Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (2012); Case of the Kuna de Madungandí and Emberá de Bayano Indigenous Community and their members v. Panamá (2014); Case of the Garífuna de Triunfo de la Cruz Community v. Honduras (2015); Case of the Garífuna de Punta Piedra Community v. Honduras (2015); Case of the Kaliña and Lokono People v. Suriname (2015).
8 ILO. Topics: Indigenous and Tribal Peoples. www.ilo.org.
9 Adopted by the UN General Assembly on September 13, 2007.
10 Adopted by the UN General Assembly on June 14, 2016.
11 IACHR. Case of Mary and Carrie Dann v. United States of America. Merit Report 75/02 dated December 27, 2002, paragraph 124.
12 IACHR. Case of Mary and Carrie Dann v. United States of America. Merit Report 75/02 dated December 27, 2002, paragraph 124.
13 IACHR. Case of Mary and Carrie Dann v. United States of America. Merit Report 75/02 dated December 27, 2002, paragraph 131.
14 IACHR. Third report on Human Rights situation in Paraguay. Doc. OEA/Ser./L/VII.110, Doc. 52, March 09, 2001, Chapter IX, paragraph 12.
15 IACHR, Report No. 40/04, Case 12,053, Maya Indigenous Communities of the Toledo district (Belize), October 12, 2004, footnote No. 123. CIDH. Rights of indigenous and tribal peoples over their ancestral lands and natural resources. Norms and jurisprudence of the Inter-American human rights system. OEA/Ser.L/V/II, December 30, 2009, paragraph 14.
16 IA Court HR. Case of the Yakye Axa Indigenous Community v. Paraguay, Merits, Reparations and Costs, paragraphs 125 to 130; Case of the Saramaka People v. Surinam, Preliminary Exceptions, Merits, Reparations and Costs, paragraphs. 93 and 94; Case of the Sawhoyamaxa Indigenous Community v. Paraguay, paragraph 117; Case of the Kichwa Indigenous People of Sarayaku v. Ecuador, Merits, Reparations and Costs, paragraph 161.
17 Corte IDH. Case of the Sawhoyamaxa Indigenous Community v. Paraguay. Merits, Reparations and Costs, paragraph 117. IACHR. Report on Indigenous peoples in voluntary isolation and initial contact in the Americas. OEA/Ser.L/V/II.Doc. 47/13. December 30, 2013, paragraph 37.
18 See for example in IACHR: Report on Ecuador 1997, conclusions from Chapter IX and Chapter VIII; Report on Colombia 1999, Chapter X, recommendation 4; Background Report 75/02, Case 11,140, Mary and Carrie Dann v. USA, paragraph 140; Merits. 40/04, Case 12,053, Maya Indigenous communities of the Toledo District v. Belize, paragraph 142; Report on access to justice and social inclusion: The road towards strengthening democracy in Bolivia, 2007, Chapter IV, paragraph 248; IACHR, Indigenous and tribal people’s rights over their ancestral lands and natural resources. Norms and jurisprudence of the Inter-American Human Rights System, 2009, Chapter IX.
19 IACHR, Report 40/04, Merits. Case 12,052, Maya Indigenous Communities of the Toledo district, paragraph 142.
20 IA Court HR. Case of the Saramaka People, paragraph 133.
21 IA Court HR. Case of the Kichwa Indigenous People of Sarayaku, paragraph 166.
22 United Nations Committee on the Elimination of Racial Discrimination, Considerations of the Reports submitted by the States Parties pursuant to article 9 of the Convention. Final observations with respect to Ecuador (Session 62, 2003), ONU Doc. CERD/C/62/CO/2, June 02, 2003, paragraph 16:
Regarding the exploitation of resources that lie in the subsoil on traditional lands of indigenous communities, the Committee observes that mere consultation with these communities is not sufficient to meet the requirements established by the Committee in its general recommendation XXIII on the Rights of indigenous peoples. The Committee, therefore, recommend obtaining the prior and informed consent of said communities.
UN, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples, supra note 97, paragraph 66: ‘Free, prior, and informed consent is essential for the protection of the human rights of indigenous peoples in relation to major development projects’. IA Court HR. Case of the Saramaka People, paragraph 134:
regarding large-scale development or investment projects that would have a major impact within Saramaka territory, the State has a duty, not only to consult with the Saramakas, but also to obtain their free, prior, and informed consent, according to their customs and traditions.
23 IACHR, Rights of indigenous and tribal peoples over their ancestral lands and natural resources. Norms and jurisprudence of the Inter-American Human Rights System, December 30, 2009, paragraph 205.
24 UN, ILO Convention 169, article 16.2: Where the relocation of these peoples is considered necessary as an exceptional measure, such relocation shall take place only with their free and informed consent. Where their consent cannot be obtained, such relocation shall take place only following appropriate procedures established by national laws and regulations, including public inquiries where appropriate, which provide the opportunity for effective representation of the peoples concerned. UN Declaration on the Rights of Indigenous Peoples, art. 10. Indigenous peoples shall not be forcibly removed from their lands or territories. No relocation shall take place without the free, prior, and informed consent of the indigenous peoples concerned … .
25 UN Declaration on the Rights of Indigenous Peoples, art. 29.2: States shall take effective measures to ensure that hazardous materials are not stored or disposed of in the lands or territories of indigenous peoples without their free, prior, and informed consent.
26 OAS, Declaration on the Rights of Indigenous Peoples, art. XVIII.3: States shall take measures to prevent and prohibit indigenous peoples and individuals from being subject to research programmes, biological or medical experimentation, as well as sterilisation without their prior, free, and informed consent.
27 OAS, Declaration on the Rights of Indigenous Peoples, art.XIII.2: States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious, and spiritual property taken without their free, prior, and informed consent or in violation of their laws, traditions, and customs.
28 Article 3 and III, respectively, of the UN and OAS Declaration on the Rights of Indigenous Peoples.