The authorities of the countries that make up the Community of Latin American and Caribbean States (CELAC) approved the Buenos Aires Declaration on January 24, 2023.[1]
In its 111 issues, a wide variety of topics of great relevance to the peoples and governments of the region are collected, reflecting a renewed spirit of CELAC both for the change of orientation of several of the member countries and, in particular, for the reincorporation of Brazil into its operation.
In paragraph 4, the Declaration affirms CELAC’s commitment “… to advance with determination in the integration process, promoting unity and the political, economic, social and cultural diversity of our peoples.”
However, this recognition of the cultural diversity of the peoples of the region does not have an adequate correlation in all the paragraphs of the Declaration.
Of course, no document of this type can cover the totality of regional issues, but in relation to Indigenous Peoples, the absence of essential aspects is powerfully striking.
Indigenous Peoples in Latin America
Although the statistical data are not precise and tend to be underreported, there are about 500 million indigenous people living in the world who belong to some of the 5.000 Indigenous Peoples that exist on the planet.[2]
In Latin America and the Caribbean there are 826 Indigenous Peoples of which more than 100 are transboundary because they live in at least two countries and a larger number of peoples in voluntary isolation, almost all in the Amazon. About 60 million indigenous people inhabit the region and are speakers of about 550 indigenous languages, most of them at risk of extinction for various reasons.[3]
Regarding on average they represent something less than 10% of the total population, in some countries this percentage far exceeds (cases Bolivia EP, Guatemala or Mexico).
As for the distribution of peoples on the continent, the realities are heterogeneous: in Brazil, 305 Indigenous Peoples are registered, followed by Colombia (115), Peru (55) and Mexico (68); at the other extreme are Costa Rica and Panama, with 8 and 7 Indigenous Peoples each, El Salvador (3) and in Uruguay the most recent census shows that part of the population is part of 2 Indigenous Peoples. It is relevant to point out that more than 100 Indigenous Peoples are transboundary, that is, they live in various countries of the continent.
In addition, the situation of the several peoples is also not homogeneous, since many exhibit great fragility, in danger of physical or cultural disappearance. It is estimated that some 462 villages currently have less than 3,000 inhabitants and about 200 of them are in voluntary isolation or initial contact, all in a situation of extreme difficulty.
This multicultural reality is an enormous wealth of the continent, but at the same time it is marked by an undeniable fact: a large part of its inhabitants live in conditions of extreme vulnerability, which means, among other aspects, high rates of malnutrition, inaccessibility to health services, precarious infrastructure and, in general, the impossibility of exercising fundamental individual and collective rights.
The social, political and cultural relevance of Indigenous Peoples goes much further than mere population data. For example, a 2021 report by FAO and FILAC shows that the forests of indigenous and tribal territories in Latin America and the Caribbean are key to global, regional and local climate stability and resilience.
These places contain almost 30% of the carbon stored in the region’s forests and 14% of the carbon in tropical forests globally. And they are like that, because indigenous ancestral knowledge has allowed, since time immemorial, a relationship with nature that, far from destroying it, preserves it for its own benefit and for the benefit of all humanity. [4]
In today’s world, where we face overlapping crises, consequences of a social and productive development that generates inequalities and aggresses nature, indigenous traditional knowledge must be seen as an essential part of the responses to the great challenges of the present. Within the framework of the Living Well based on full individual, social, spiritual and ecological harmony, they have a lot to contribute and the rest of humanity, a lot to take into account.
Unlike the dominant historical view, Indigenous Peoples are not a “problem” to be eliminated; they are part of the solution for building a better world.
If CELAC, as the aforementioned declaration says, recognizes “…the necessity that the economic models of the countries of the region prioritize productive development with social inclusion and direct their available resources to achieve this purpose … through strong social cohesion within the countries, which requires high-level political dialogue instances and mechanisms,”[5] a real participation (not only in the role) of Indigenous Peoples through their own authorities and organizational forms becomes essential.
This, moreover, is not only a political necessity, but a legal obligation.
International Law and Indigenous Peoples
The wide and rapid development of international legislation on indigenous peoples has meant that, at the present time, we are facing a true international law for indigenous peoples, which includes not only the recognition of rights, but the creation of organizations for their monitoring and promotion, as well as the development of doctrine and jurisprudence in the field.
The United Nations Declaration on the Rights of Indigenous Peoples[6] and the International Labour Convention No. 169[7] are the fundamental bases of this process, although not its only components.
This process, which takes place in parallel with what happens with all universally recognized human rights, gives way to the establishment of what are called the international standards on the rights of indigenous peoples.
The standards are minimum obligations that States assume by the mere fact of ratifying treaties and in general, as members of the regional and global international community.
They are minimum obligations, a floor of requirements to be met, but they can always be exceeded according to the conditions of each context. The minimum exists to try to homogenize a base of obligations, but it is assumed and aspired to, that this is exceeded.
They are enforceable obligations because they are legal norms that can be enforced and that oblige the State to do or to assume the consequences for their lack of implementation.
The standards are not only the written norms, but it is the applicable law, in this case in relation to indigenous peoples; that is, the norms, their interpretation, the doctrine and the jurisprudence that corresponds to be considered.
Most of the Latin American countries have ratified Convention No. 169 of the ILO on Indigenous and Tribal Peoples, which has been the first international instrument that recognizes the concept of “peoples” and establishes a set of rights for these collectives.[8]
Undoubtedly, this is due to the multilingual and multicultural nature of it, where, in some cases, as indicated above, the indigenous population constitutes the majority of the population or a significant percentage of it, but also to the constant struggles of Indigenous Peoples demanding the recognition of their rights and the protection of their enjoyment.
In addition, since June 2016, the region has a new instrument: the American Declaration of the Rights of Indigenous Peoples.[9]
Besides, almost all the countries of the region raised their hands to approve, in September 2007, the United Nations Declaration on the Rights of Indigenous Peoples.
At the same time, in the region, since the 1980s, there has been a process of constitutional reforms that have been incorporating increased recognition of internationally recognized human rights and, in particular, the rights of indigenous peoples present within their territories. Although the new constitutions of Bolivia and Ecuador have been one of the most complete in this regard, very few countries have been left out of these changes.
Along these lines, there have been constitutional changes in Guatemala, 1985; Nicaragua, 1987; Brazil, 1988; Colombia, 1991; Mexico, 1992/2001; Paraguay, 1992; Peru, 1993; Argentina, 1994; Venezuela, 1999; Ecuador, 2008; Bolivia, 2009. The most recent has been the case of El Salvador with its reform of 2014, although at the moment the Chilean process that includes this issue is pending.
In addition to the high rate of ratifications of international human rights instruments including the International Labor Convention No. 169 on indigenous and tribal peoples that are of immediate application, the countries of the region have, in almost all cases, abundant legal and/or regulatory regulations on the subject. In a normative model of constitutional court –guarantor, national legislation should be seen, as part of the set of regulations that aims, on the one hand, to establish the limits to state and private political power, but also, as mechanisms to guarantee the maximum effectiveness of all rights and constitutional promises.
Naturally, these constitutional and legal modifications have had an impact on the jurisprudence of different countries, especially in constitutional justice, and the work carried out by the inter-American system, especially through the Inter-American Commission and the Inter-American Court of Human Rights, has also had a broad development and impact.
An essential data to understand the degree of relevance and application of international law on indigenous peoples within the countries of the region is the status granted to international human rights treaties, as well as the recognition of their self-execution.
At the same time, countries in this part of the world have increased the number of ratifications of international human rights treaties (as is the case with Convention No. 169), although with various redactions, human rights treaties have been granted a privileged legal status, above ordinary law, and in many cases with constitutional hierarchy.
No less relevant is the obvious prevalence of the monistic conception of law by which international law and domestic law are part of a single legal framework.
In other words, duly ratified international human rights treaties are also part of domestic law, and that, to the expanded list of fundamental rights enshrined in the new constitutions, the list of rights recognized in ratified human rights treaties is added.
This means, among other consequences, that a ratified treaty, for example, Convention No. 169, it does not require an internal norm that gives it “internal life”” as happened decades ago in some legal systems.
It should be noted that the consolidation of the international law of indigenous peoples has consequences of enormous importance, such as the application of the spirit and text of Convention No. 169 even to countries that have not ratified it. This has been done by the Inter-American Court of Human Rights, even long before the adoption of the American Declaration in 2016.
The full enjoyment of human rights according to their identity, without discrimination or coercion; the integrity of peoples’ values, practices and institutions; their political participation at all levels, defining their own development priorities; the right to be consulted in advance; education with its own cultural identity, bilingual education, use and development of its own languages are some of the many rights established in the Convention that have later been developed by other instruments such as the UN Declaration of 2007 or the American Declaration of 2016, already mentioned.
In order to better conceptualize the scope and, above all, the limitations of the Buenos Aires Declaration in relation to the previous advances already registered in relation to Indigenous Peoples, it is appropriate to focus on some specific aspects of the international rights of Indigenous Peoples that, in many countries, have their correlation in the national legislation itself.
Self-determination
Indigenous Peoples are part of the most excluded, marginalized, and disadvantaged sectors of society, which affects their ability to determine the direction of their own societies and to take decisions on issues that affect their rights and interests.
This is what FAO maintains by affirming that indigenous communities constitute an important part of the world’s population exposed to food insecurity, and that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development, and by recognizing the benefits that derive from closer collaboration.[10]
The right to make decisions, and participation in decisions that affect them, is necessary for indigenous peoples to be able to protect, inter alia, their cultures, including their languages and their lands, territories and resources. This is essential so that they can maintain and develop their identities and cultures within the framework of the State in which they reside.
This right of participation has a close relationship and conceptually supported by the right to self-determination and even coexists with the exercise of their own forms of government according to specific national contexts.
For example, the United Nations Declaration on the Rights of Indigenous Peoples affirms that these peoples, in the exercise of their right to self-determination, have the right to create and maintain their own decision-making institutions and powers in parallel with their right to participate in external decision-making processes that affect them.
Article 3. Indigenous peoples have the right to self-determination. By virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development.
Long before the Declaration, the Human Rights Covenants already contained this right, although at that time, indigenous peoples as a collective, were not considered subjects of international law.
Thus, articles 1 and 2 of the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights, establish:
All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. [11]
Therefore, Indigenous Peoples have the right to determine their own economic, social and cultural development and to manage, for their own benefit, their own natural resources. The obligations to participate and consult with indigenous peoples and to obtain their free, prior and informed consent are essential elements of the right to self-determination.
Article 3 of the UN Declaration on Indigenous Peoples is clear on this:
Indigenous peoples have the right to self-determination. By virtue of this right, they freely determine their political status and freely pursue their economic, social and cultural development.
Article 5, on the other hand, establishes:
Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.[12]
Indigenous Peoples have the right to take autonomous decisions on all matters related to their internal and local affairs, and to have a real influence on external decision-making processes that affect them, if they choose to participate in them.
It is essential to conceive of the rights of participation and consultation as an expression of self-determination, because in this way its logic and scope can be understood more clearly and, therefore, to evaluate the actions taken to ensure its effective compliance.
A good part of the differences and conflicts that the issue has unleashed in the region has to do with an approach to the issue from different perspectives and with dissimilar objectives.
In other words, if the proposals or mechanisms that aim at participation and consultation with Indigenous Peoples are not based on and allow progress in terms of self-determination or self-development, then they will not be aligned either with international standards or with the historical interests of these peoples.
In this regard, it has been stated that the most important indicator of a good practice of participation and/or consultation is the degree to which indigenous peoples have participated in its design and agree with it, for which it should be considered whether:
Enables and enhances the participation of indigenous peoples in the adoption of decisions.
Allows indigenous peoples to influence the outcome of decisions that affect them.
Gives effect to the right of indigenous peoples to self-determination.
It includes, where appropriate, well-structured procedures and/or consultation processes to obtain your free, prior and informed consent.[13]
The right to participation
The international law of Indigenous Peoples includes participating in the decision-making processes that affect them, as well as controlling the outcome of those processes.
In relation to the rights of participation, international human rights law refers to the right to participate in public affairs, in a general and specific way, in various human rights treaties, such as in the article International Covenant on Civil and Political Rights, whose article 25 establishes:
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his country.
Although it is a generic rule, at present, it is also applicable to indigenous people and groups.
However, under the concept of Indigenous Peoples, the international treaty that enshrines it is the ILO Convention No. 169 on Indigenous and Tribal Peoples (1989).[14]
Article 5
In applying the provisions of this Convention:
(a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
(b) the integrity of the values, practices and institutions of these peoples shall be respected;
(c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.
Article 6
1. 1. In applying the provisions of this Convention, governments shall:
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
On the other hand, the UN Declaration on the Rights of Indigenous Peoples contains several general provisions related to self-determination, which includes the right to autonomy or self-government and too the right to participate and be actively involved in decision-making processes, including obtaining their free, prior and informed consent, holding consultations, cooperation with indigenous peoples, and the adoption of joint measures.[15]
Among others, Article 18 stands out, which establishes:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision-making institutions.
The right to participate in public affairs is not limited to participation in official political institutions, but also includes participation in civil, cultural and social activities of a public nature and exercising their decision-making authority.
The right of Indigenous Peoples to participate in decision-making is also recognized in international jurisprudence such as the Inter-American Court of Human Rights, which, among other rulings, recognized their right to participate politically in accordance with their customs and traditions within the framework of the electoral laws of the States.[16]
Following this resolution, the inter-American system adopted the American Declaration of the Rights of Indigenous Peoples, which in its article XXIII also enshrines the right to participation, with the following text:
Article XXIII
Participation of indigenous peoples and contributions of indigenous legal and organizational systems
1. Indigenous peoples have the right to full and effective participation in decision-making, through representatives chosen by themselves in accordance with their own institutions, in matters which affect their rights, and which are related to the development and execution of laws, public policies, programs, plans, and actions related to indigenous matters.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned, through their own representative institutions, in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
Right to free, prior and informed consent
The right to free, prior and informed consent is an integral part of the right to self-determination.[17]
It is the State, in a generic sense, since different institutions may be involved, that is responsible for carrying out the consultations. In order for them to comply with international standards, it is not appropriate for the consultation process to be led by companies, non-governmental or international organizations.
The obligation of the State to obtain the free, prior and informed consent of indigenous peoples gives them the right to effectively determine the outcome of decision-making processes that affect them, and not only to participate in them. Consent is an important element of the decision-making process, which requires genuine consultation and participation.
Consequently, the obligation to obtain the free, prior and informed consent of Indigenous Peoples is not only a matter of form, but an essential mechanism to guarantee respect for the rights of these peoples.[18]
The UN Declaration on the Rights of Indigenous Peoples requires that the free, prior and informed consent of indigenous peoples be obtained on issues that are of fundamental importance for their rights, survival, dignity and well-being.[19]
The impact that it may have on the affected Indigenous Peoples, taking into consideration, among other things, the cumulative effects of previous interventions or activities and the historical inequalities suffered by indigenous peoples, such as forced displacement or forced relocation, are causes that determine this mechanism.
There is no specific formula for consulting Indigenous Peoples applicable to all countries in all circumstances.
The specific characteristics of the consultation process required by the duty to hold consultations will necessarily vary depending on the nature of the proposed measure and the extent of its impact on indigenous peoples.
The measures of constitutional or legislative reform that interest or affect all the indigenous peoples of a country will require appropriate consultative and representative mechanisms that are in some way open to all of them and within their reach.
On the other hand, measures affecting particular indigenous peoples or communities, such as initiatives for the extraction of natural resources in their territories, will require consultation processes that guarantee the participation of the particularly affected groups and pay special attention to their interests.[20]
In order to concretize the expression of the free, prior and informed consent of Indigenous Peoples, there must be a way or mechanisms for this and a process that allows these peoples to adopt their own independent and collective decisions on the issues that affect them.
As the United Nations Expert Mechanism affirms, the obligation for the State to obtain free, prior and informed consent affirms the prerogative of Indigenous Peoples to deny their consent and to establish the conditions for giving it.[21]
This highly relevant aspect should be understood as a consequence of the principle of self-determination and the requirement of good faith that should guide the process, as required by Article 6 of the Convention 169:
6.2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
The same article calls for consultations with indigenous peoples to be held through appropriate procedures and through institutions that are representative of indigenous peoples.
With a view to reaching an agreement or consent about the proposed measure, is a central aspect in this right.
The consultation is not a mere exercise or a requirement to comply: on the contrary, it tries to achieve a result that will be either an agreement (the initial modified proposal) or to obtain the acquiescence of the consulted. Agreements or consent are the goal to achieve, for which it is essential that there are real efforts to achieve those results.
In all cases in which the duty to hold consultations is applied, its purpose should be to obtain the consent or agreement of the indigenous peoples concerned. Hence, consultations should be carried out at the early stages of the elaboration or planning of the proposed measure in order to enable indigenous peoples to truly participate and influence the decision-making process. It is essential that the State makes a good faith effort to reach an agreement.[22]
As the UN Special Rapporteur on the Rights of Indigenous Peoples has said at the time, international regulations establish consultation requirements that limit the power of the State and promote intercultural dialogue and consensus regarding decision-making that may directly affect indigenous peoples.
The United Nations Declaration on the Rights of Indigenous Peoples indicates two examples of situations in which consent is required beyond being an objective of the consultation: the case in which the project results in the transfer of the group outside their traditional lands and the cases related to the storage or dumping of toxic wastes on indigenous lands (arts. 10 and 29, para. 2, respectively).
The Rapporteur also adds the case of a proposal to install natural resource extraction activities within an indigenous territory when those activities have significant social, cultural and environmental impacts.
Some situations in which the requirement to obtain free, prior and informed consent is considered are the following:
When the project involves the transfer of indigenous peoples from their traditional lands (UN Declaration, Indigenous Peoples, art. 10; Convention 169, Art. 16.2.)
When the project involves the storage or disposal of hazardous materials in their territories (UN Declaration, art. 29.2).
When it comes to large-scale development or investment plans that could have a greater impact on indigenous territories (I/A Court H.R., Saramaka v. Suriname Case, para. 133).
When it comes to natural resource extraction activities in indigenous territories that have significant social, cultural and environmental impacts (United Nations Special Rapporteur on the Rights of Indigenous Peoples, 2010).[23]
On the other hand, if the State decides to move forward with a legislative or administrative measure without an agreement, it should be only after having complied with all the procedural requirements of the consultation, and only with arrangements that ensure that the project does not have a significant social, cultural or environmental impact on the affected indigenous people and that there are measures to safeguard all their rights, including their right to set their own priorities for development.[24]
6.1. In applying the provisions of this Convention, Governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever legislative or administrative measures likely to affect them directly are envisaged.;
It is up to the indigenous peoples to decide on representativeness.
With regard to the determination of representative institutions, the ILO supervisory bodies have pointed out that the important thing is that they are the result of a process of their own, internal to the indigenous peoples.”
While recognizing that this determination can be a difficult task in many cases, the ILO’s supervisory bodies emphasized that “if an adequate consultation process is not developed with the indigenous and tribal institutions or organizations truly representative of the affected communities, the consultation aimed would not comply with the requirements of the Convention”[25]
As for the requirement to carry out consultations through appropriate procedures, it means that general public hearings, workshops, meetings or the like, are not enough to comply with that procedural rule. Consultation procedures should allow for the full expression of indigenous peoples’ views, in a timely manner and on the basis of a full understanding of the issues at stake, so that they can influence the outcome and a consensus can be reached.
They must be procedures that generate the conditions conducive to reaching an agreement or obtaining consent about the proposed measures. “The form and content of the consultation procedures and mechanisms must allow for the full expression — well in advance and on the basis of a full understanding of the issues raised — of the opinions of the peoples concerned so that they can influence the results and a consensus can be reached, and so that these consultations are carried out in a way that is acceptable to all parties.”[26]
To be appropriate, the procedure should allow indigenous peoples sufficient time to carry out their own decision-making process and participate in decisions taken in line with their cultural and social practices. Finally, the purpose of consultations should be to reach an agreement or consensus.
The Absence of Indigenous Peoples in the CELAC Declaration
Despite this solid corpus of international rights, which, moreover, in many countries is complemented and expanded with its own legal regulations, the Buenos Aires Declaration does not include any specific section on them, on Indigenous Peoples, their rights and their relevance as social and political subjects.
This is so, despite the fact that last July, the Latin American countries that make up CELAC approved a first evaluation of the Ibero-American Action Plan for the implementation of the rights of Indigenous Peoples (2018-2028), assuming a series of commitments to promote the issue, without the point even being mentioned in this Declaration. [28]
On the other hand, if there is a specific section on the Afro-descendant population (number 62), which ratifies the commitment to promote, respect, guarantee and protect the rights of people of African descent, as well as the processes of eradication of all forms of racial discrimination, xenophobia and related intolerance, in search of societies with higher levels of equity and racial justice
The Declaration incorporates the section entitled “Indigenous Languages”, something that in itself should be highlighted positively, although insufficient. There are three numerals through which the launch of the International Decade of Indigenous Languages (2022-2032) is highlighted, the creation of the Ibero-American Institute of Indigenous Languages is welcomed, inviting the States of Latin America and the Caribbean to be part of its creation and strengthening and, finally, previous agreements on the right to revitalize oral, philosophical languages and traditions, their writing systems and their literature are recognized, recognizing the importance of establishing alliances to coordinate joint actions in this regard
It is difficult to understand the reason why, both in this section on indigenous languages and in other numerals of the Declaration such as those referring, for example, to the care of Mother Earth (30) or on the importance of camelids (9), or the protection of water and water resources (36), the key political subject to carry out these objectives is omitted: Indigenous Peoples.
The literal reading of this Declaration seems to promote the revitalization of languages, the care of Mother Earth and other objectives, without an essential, leading and essential role of the Indigenous Peoples who are never mentioned.
The same happens when the Declaration invokes social dialogue, on various aspects such as innovation and technology, ignoring Indigenous Peoples and their ancestral knowledge, as if they were not part of the broad cultural baggage of humanity.
In a regional context in which the demands, proposals and realities of Indigenous Peoples are increasingly present in national legislations and debates, when newly installed governments such as Brazil’s have carried out significant changes towards the recognition of Indigenous Peoples as central actors of development, this Declaration seems to be far behind the concrete reality on which it intends to influence.
The current challenge is to reach agreements that allow each culture that we live together on earth to contribute the best we have to twist the current course.
CELAC should be a driving agent of a broad intercultural dialogue, an equitable and horizontal interaction between the cultures that coexist on the continent, their expressions and ways of seeing the world, including synergies between scientific innovations and the traditional knowledge of Indigenous Peoples as necessary tools to understand reality and act on it.
San José de Costa Rica, January 26, 2023
NOTES
[1] El texto de la Declaración puede verse en https://www.lacommunis.org/wp-content/uploads/2023/01/CELAC-DECLARACION-DE-BUENOS-AIRES-Version-Final.pdf
[2] Organización Internacional del Trabajo (OIT), Aplicación del Convenio sobre pueblos indígenas y tribales n.° 169 de la OIT. Hacia un futuro inclusivo, sostenible y justo. 2019
[3]Fondo para el Desarrollo de los Pueblos Indígenas de América Latina y El Caribe (FILAC) y Foro Indígena Abya Yala (FIAY), Los Pueblos Indígenas ante la pandemia de COVID-19. Primer informe regional.2020
[4] FAO y FILAC. 2021. Los pueblos indígenas y tribales y la gobernanza de los bosques. Una oportunidad para la acción climática en América Latina y el Caribe. Santiago, 2021
[5] Numeral 11 de la Declaración de Buenos Aires del 24 de enero de 2023
[6] ONU, Asamblea General, 61/295. Declaración de las Naciones Unidas sobre los derechos de los pueblos indígena, 107a. sesión plenaria 13 de septiembre de 2007
[7] El texto del Convenio puede verse en https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169
[8] El texto del Convenio puede verse en https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C169
[9] AG/RES. 2888 (XLVI-O/16) Declaración americana sobre los derechos de los Pueblos Indígenas, 14 de junio de 2016.
[10] FAO, Política sobre pueblos indígenas y tribales, 2011. En el documento se afirma que la misma se ha elaborado a solicitud explícita formulada por el Foro Permanente de las Naciones Unidas para las Cuestiones Indígenas, por organismos de las Naciones Unidas y por los propios Pueblos Indígenas.
[11] El texto completo del Pacto puede verse en https://www.ohchr.org/sites/default/files/cescr_SP.pdf
[12] El concepto se reafirma en varios otros artículos del instrumentos como por ejemplo el 18, 36 y 37
[13] ONU, Consejo de Derechos Humanos, Mecanismo de Expertos sobre los derechos de los pueblos indígenas, Informe definitivo del Estudio sobre los pueblos indígenas y el derecho a participar en la adopción de decisiones, A/HRC/18/42, Ginebra, 2011
[14] El tema se recoge en varios artículos, como por ejemplo 2, 5 a 7, 15 a 17, 20, 22, 23, 25, 27, 28, 33 y 35.
[15] Arts. 3 a 5, 10 a 12, 14, 15, 17 a 19, 22, 23, 26 a 28, 30 a 32, 36, 37, 38 y 40 y 41.
[16] Corte Interamericana de Derechos Humanos, Yatama c. Nicaragua, fallo de 23 de junio de 2005:
“La restricción de participar a través de un partido político impuso a los candidatos propuestos por YATAMA una forma de organización ajena a sus usos, costumbres y tradiciones, como requisito para ejercer el derecho a la participación política, en contravención de las normas internas […] que obligan al Estado a respetar las formas de organización de las comunidades de la Costa Atlántica, y afectó en forma negativa la participación electoral de dichos candidatos en las elecciones municipales de 2000 (…) La Corte estima que el Estado debe adoptar todas las medidas necesarias para garantizar que los miembros de las comunidades indígenas y étnicas de la Costa Atlántica de Nicaragua puedan participar, en condiciones de igualdad, en la toma de decisiones sobre asuntos y políticas que inciden o pueden incidir en sus derechos y en el desarrollo de dichas comunidades, de forma tal que puedan integrarse a las instituciones y órganos estatales y participar de manera directa y proporcional a su población en la dirección de los asuntos públicos, así como hacerlo desde sus propias instituciones y de acuerdo a sus valores, usos, costumbres y formas de organización, siempre que sean compatibles con los derechos humanos consagrados en la Convención.”
[17] “Derecho a la consulta” es la terminología utilizada por el Convenio 169; la Declaración ONU y luego la americana, incorporan el concepto de “consentimiento libre, previo e informado”. Actualmente, el concepto es el mismo, sin importar cuál de las dos expresiones se utiliza.
[18] ONU, Consejo de Derechos Humanos, Mecanismo de Expertos, citado
[19] Entre otros, artículos 11, párrafo 2, 19, 28, párrafo 1, 29, párrafo 2, 32, párrafo 2, y 37.
[20] CONSEJO DE DERECHOS HUMANOS 12º período de sesiones, Informe del Relator Especial sobre la situación de los derechos humanos y las libertades fundamentales de los indígenas, James Anaya, A/HRC/12/34 15 de julio de 2009,
[21] ONU, Consejo de Derechos Humanos, Mecanismo de Expertos, citado, Anexo, párrafo 23.
[22] Informe del Relator Especial Anaya, citado.
[23] Comisión Nacional para el Desarrollo de los Pueblos Indígenas, CDI, Protocolo para la implementación de consultas a pueblos y comunidades indígenas de conformidad con estándares del Convenio 169 de la Organización Internacional del Trabajo sobre Pueblos Indígenas y Tribales en Países Independientes, México, 2013
[24] Declaración pública del Relator Especial sobre los derechos humanos y libertades fundamentales de los indígenas, James Anaya sobre la “Ley del derecho a la consulta previa a los pueblos indígenas u originarios reconocido en el Convenio No. 169 de la Organización Internacional de Trabajo” aprobada por el Congreso de la República del Perú, 7 de julio de 2010.
[25] OIT, Los derechos de los pueblos indígenas y tribales en la práctica. Una guía sobre el convenio núm. 169 de la OIT, Ginebra, 2009.
[26] OIT, citado
[27] ONU, Grupo de las Naciones Unidas para el Desarrollo – UNDG. Directrices “Elementos del consentimiento libre, previo e informado” NY, 2008
[28] Para ampliar el punto puede verse, Fondo para el Desarrollo de los Pueblos Indígenas de América Latina y el Caribe (FILAC), Evaluación del Plan de Acción de Iberoamérica para los Derechos de los Pueblos Indígenas. La Paz, Bolivia, 2022.