In Latin America and the Caribbean, 16 countries have signed the International Labour Organization’s Convention 169 (ILO 169). The United States and Canada have not. The convention—which has the status of an international treaty—establishes the right of indigenous and tribal peoples to be consulted when a policy or project affects their culture or heritage, through what is commonly called “previous and informed consent.” The vaguely worded treaty has been a point of contention in some countries, among governments, investors, and communities, and the progress in implementing it has been uneven. The convention has been interpreted, in particular, as applying to issues of national resource extraction and infrastructure development that affect communal lands—the argument being that communal lands are a central part of indigenous heritage, and, in the case of Colombia, Afro-descendant communities’ heritage as well.
Here we look at the progress of those signatory countries in implementing ILO 169. While controversial, the international treaty obligation is another example of the extent to which countries are willing and capable of adhering to and implementing international norms and commitments that they have signed on to. In the case of ILO 169, there is a particularly complex process involved, made all the more complex because of the vagueness of the right of “previous and informed consent.” Affecting this international obligation requires: the passage of legislation establishing the laws and regulations determining who the law applies to, how broadly to interpret the right, the institutions charged with overseeing it, and the necessary steps; vesting the appropriate institutions with the necessary budget and bureaucratic authority to oversee and enforce the right; the court system effectively applying the law as both foreseen in the convention and—if there is a law—legislation; and the government complying with the obligations and procedures established under the law.
There is a fair amount of difference across these sectors country by country. A number of specific issues stand out. First, in South America it has been the more “neo-liberal” countries that have made the greatest progress in establishing legislation, developing the institutional capacities for protecting indigenous rights under ILO 169, and making the judicial decisions enforcing the right. This includes Chile, Colombia and Peru.
Peru and Colombia have made the greatest progress in terms of passing laws and establishing a government body in charge of overseeing the process. In Peru, despite an initial controversy over what communities could be defined as indigenous, the Constitutional Court instructed the Ministry of Culture—charged with overseeing the process—that indigenous peoples do not need to be formally registered or recognized by the state to be entitled to the right. The Peruvian Culture Ministry has established clear steps and timing for implementing consultation; between 2012 and 2015, 23 cases of consultation were resolved.
In Colombia, there have been more than 4,000 agreements between 2003 and 2014 supposedly settled through previous and informed consent. And a presidential directive in November 2013 established a guide to assist communities and potential investors in the process. A recent Constitutional Court decision has thrown some of the progress into question. While there was a body of judicial precedent reinforcing and defining the right through more than 70 judgments on the issue, in 2013 the Constitutional Court argued that the right to consultation can only be asserted after January 2008—the date that the legislative measures were established—rather than when Colombia signed the treaty, in 1991, raising the possibility that agreements could be rolled back in some cases.
Brazil, after 13 years under a progressive PT government, has not signed ILO 169, despite its relatively large indigenous population and ongoing disputes between indigenous communities and claimants on their lands, including farmers, energy producers and mining interests. Without treaty obligations, the government has no legislation to ensure the right of previous and informed consent—though the constitution recognizes the rights of indigenous peoples. This gap became a flashpoint when in 2011 the Inter-American Commission on Human Rights ordered the Brazilian government to halt the Belo Monte dam project because it had not properly consulted with the Xingua peoples in the affected areas. The Brazilian government ignored the ruling. Nevertheless, in other cases, domestic Brazilian federal and appeals courts have ordered the suspension of projects that had not engaged in a previous form of consultation with affected communities. Brazil’s Supreme Court has yet to decide a case involving consultation.
Despite its progressive image internationally, including in the UNHRC, Argentina has also been slow to implement the commitments of ILO 169. There is a bill in draft form to establish the law, but the bill has not been presented to the full Congress. There have been no court decisions regarding the right. The implementation of the treaty is hampered also by the fact that there is no information on indigenous communities in Argentina and therefore who would be protected under the right.
Bolivia, Ecuador and Venezuela have made even less progress. While Bolivia is a signatory to ILO 169, there has been no law for its implementation, and regulations governing the right are overlapping and contradictory. In a series of government decrees and court decisions, Bolivia has established a negotiated series of compromises and rights to land, but not refined the process, steps, or institutional framework for previous and informed consent. Ecuador remains in a similar situation, with no law, though the ombudsman filed a petition (Arcos v. Dirección Regional de Minería 29) on behalf of the Chachi indigenous and Afro-descendant communities affected by a concession granted to a mining company. The petition invoked the state’s obligations under ILO 169, and a lower court’s decision in favor of the communities was upheld by the Ecuadorian Constitutional Court.
Venezuela has been inert on its ILO 169 obligation. The state signed the treaty in May 2002. Since then there has been no implementing legislation, no established process, no jurisprudence to guarantee or define the right, and no compliance in the case of oil investment projects.
To the north, the governments of Central America, the Caribbean and Mexico have all struggled to implement ILO 169. Costa Rica, the Dominican Republic, Guatemala, Honduras, and Mexico still have no specific enabling legislation. In the case of Honduras, a special ILO commission called out the government’s lack of compliance, stating that in the 20 years since the government had signed the treaty (in 1995) there had been no formalized rules governing prior, free and informed consent of indigenous people. As a result, forestry, oil and gas, and hydroelectric projects appear to have violated indigenous communities’ rights to consultation and the government’s obligations under ILO 169.
In Guatemala, indigenous communities have appealed to the state for application of the right. A 2017 decision by the Guatemalan Constitutional Court acknowledged the right but did not explicitly endorse ILO 169 in its decision and held that the outcomes of consultation are not binding on the state. Costa Rica too has made only limited progress in implementing its ILO 169 obligations. There has been only one case relevant to previous and informed consent, the Diquís hydroelectric project. Executive decrees determined the project to be an issue of public interest, but the consultation process was never completed because of lack of resources. The Dominican Republic—while a signatory—has done nothing legislatively, judicially or policy-wise to put in place the necessary framework and jurisprudence for its ILO 169 responsibilities.
Most surprising of all, perhaps, is Mexico, which in international forums has often portrayed itself as a progressive defender of the liberal international order. Yet, as we have seen in Mexico’s application of international human rights laws domestically and its reception of the Inter-American Commission’s special team to investigate the Ayotzinapa massacre, when it comes to internal matters, it is a different issue. A recent Global Americans trip to Mexico revealed that there is currently little movement within the national legislature to give the treaty application under Mexican law.