Article published in the 22nd edition of Aportes.
Versión en español aquí.
In Latin America, few indigenous peoples’ rights have received as much attention as the right to free, prior, and informed consultation and consent (FPIC). In a region with enormous cultural diversity and high levels of social conflict associated with extractive and investment projects, indigenous peoples have used FPIC as a tool to resist the impacts of those projects on their territories. State authorities, the private sector, financial institutions, and other actors have also viewed prior consultation as a key tool for preventing social conflict.
The main debates on how to make this right effective have largely taken place in Latin America, considering that fourteen of the 23 States party to ILO Convention 169 are from the region. The debate has also been influenced by the standards created in the inter-American human rights system (IHRS). The Latin American experience, therefore, is critical in evaluating the implementation of FPIC.
Several studies on the implementation of FPIC coincide in recognizing substantial progress while also noting that there are new challenges. In the last decade, norms have been adopted, institutions created, rulings issued, and self-consultations held—all reflecting the achievements made with regard to this right. However, various publications also consistently point to the same challenges, mainly associated with the tendency to lapse into formalism in the implementation of FPIC or its possible homogenizing effect. Beyond the finer points of identifying these challenges, there has been a shift in the perception of FPIC; no longer seen as a panacea for upholding indigenous rights, more nuanced and, in some cases, critical views of the potential for this right have emerged.
What remains constant is the leading role of the IAHRS mechanisms. From the decisions of the Inter-American Commission on Human Rights (IACHR) to the judgment of the Inter-American Court of Human Rights (IACtHR) in the Case of the Saramaka People v. Suriname, the history of this right has been shaped by the decisions of both IAHRS bodies. However, in this context it may be beneficial for the IAHRS bodies to take a critical look at their role. In other words, what issues warrant reflection?
One of the core issues is the need to place (or reposition) the right to self-determination at the center of FPIC. This right is one of the fundamental premises of ILO Convention 169, and arguably the most concrete indication of overcoming the integrationist approach of Convention 107. In 2007, this right was expressly recognized in the United Nations Declaration on the Rights of Indigenous Peoples (Article 3), and in 2016 the States of the hemisphere reiterated this explicit recognition in the American Declaration on the Rights of Indigenous Peoples (Article 3).
Despite this, it is a right that has been elusive in inter-American case law. A look at the IACtHR’s rulings on collective property shows an increased reference to “self-determination” in the Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. This is, however, a reference to the decisions of other entities, rather than the incorporation of the concept into the Court’s own framework. Paradoxically, the origin of this affirmation of the right to consultation in the case law is linked to common Article 1 of the International Covenants, which specifically recognizes “the right to self-determination of peoples.” Certainly, when faced with a State, such as Suriname, that is not a party to ILO Convention 169, the Inter-American Court based its decision regarding consultation in the Case of the Saramaka People v. Suriname on the interpretation of that provision by the supervisory bodies of the Covenants, among other considerations. In particular, quoting the Committee on Economic, Social and Cultural Rights, the Court noted that it follows from common Article 1 that indigenous peoples “may freely pursue their economic, social and cultural development,” and may “‘freely dispose of their natural wealth and resources,’ so as not to be ‘deprived of [their] own means of subsistence.’”
The right to self-determination seems to be gaining more relevance in the IACHR. Perhaps the first—or clearest—reference is found in its thematic report on Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas: Recommendations for the Full Respect of their Human Rights. Subsequent thematic reports assert that indigenous rights “have as their fundamental premise the right to self-determination,” as seen in the report on Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in the Context of Extraction, Exploitation, and Development Activities. While this is encouraging, the challenges appear to be related to its practical implementation in contexts other than consultation or consent, especially in specific areas of autonomy.
There is an expectation that the IAHRS bodies will further amplify and develop the international recognition of self-determination and its role in the exercise of FPIC, consistent with the idea of an intercultural State. Self-determination can provide insight, for example, to help resolve situations involving more complex violations of the right to consultation or where there is a need to protect self-consultation experiences.
2. Development and consultation
The second point concerns narratives and understandings of development. References to “development” or the idea of “progress” are frequently repeated in the promotion of investment projects, which has sometimes led to the (false) dichotomy of “indigenous rights versus development.” This dilemma may involve several premises that are at odds with the principles of an intercultural State, and lead to legitimizing, for instance, the State’s assumption of authority to forcibly alter indigenous lands and ways of life. In other cases, it means ignoring the fact that, for some communities, “development” can be synonymous with further impoverishment and deepening inequity through adverse impacts on land and territory.
The IAHRS has taken a tangential approach to this issue. Although in the inter-American case law the right to consultation is closely linked to the self-determination “of [indigenous peoples’] development priorities,” in practice it has been a mechanism for defense or resistance, which has left no room for the protection of their own visions of the future. There is also a tendency for States to engage in consultation processes to provide health or education services, which are part of their obligations rather than negotiable issues.
In the inter-American system, this challenge can be met by developing specific standards on economic and social rights for indigenous peoples and communities. Beyond a few occasional declarations—made principally in country reports—there are still few standards in this area. This can also help focus attention on structural problems, such as historical discrimination and its impact on the exclusion of indigenous peoples’ own ideas for the future.
3. IAHRS Mechanisms
The renewal of FPIC-related challenges may lead to reflection on the principal mechanisms of the IAHRS. This could range from scenarios where there was no attempt at consultation (as in the case of the Saramaka People) or there were “socialization” actions clearly out of step with this right (in the case of the Sarayaku People); to contexts where there are serious attempts at consultation processes or where state actions called “consultation” or “consent” themselves have a negative impact on cultural identity or integrity, causing the division or disintegration of the community. In other words, it is likely that the IAHRS bodies are aware of more sophisticated forms of violation of this right. This may require a specific assessment of how the process was conducted and its impact on the people or community, rather than a superficial analysis of whether or not consultation took place (which is what has been required until now). One of the risks in that scenario is getting bogged down in formalism if the process is not firmly rooted in the right to self-determination.
The other mechanism that warrants reflection is precautionary and provisional measures. For example, the IACHR for several years granted precautionary measures to protect indigenous lands and territories, given how closely they are linked to indigenous peoples’ lives and integrity. In more recent years, especially since the modification of the Belo Monte Dam in Brazil and the Mina Marlin mining project in Guatemala, requests for precautionary measures in these cases have been much less frequent, if not non-existent. The implementation of projects that could potentially lead to the disappearance of peoples, together with the environmental impacts of projects in the midst of the climate crisis, require the IACHR to reflect on new approaches to this mechanism, which was created precisely to provide urgent protection.
*Professor at the Pontificia Universidad Católica del Perú and doctoral researcher at the University of Essex.
 This is expressed, for instance, in the fact that the treaty recognizes the aspirations of indigenous and tribal peoples to “to exercise control over their own institutions, ways of life and economic development” (preamble), while Article 7.1 states that “The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development.”
 See, IACHR. Indigenous Peoples in Voluntary Isolation and Initial Contact in the Americas: Recommendations for the Full Respect of their Human Rights. OEA/Ser.L/V/II, Doc. 47/13, December 30, 2013. Retrieved from http://www.oas.org/en/iachr/indigenous/docs/pdf/Report-Indigenous-Peoples-Voluntary-Isolation.pdf
 See, IACHR. Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human
Rights Protection in the Context of Extraction, Exploitation, and Development Activities. OEA/Ser.L/V/II, Doc. 47/15, December 31, 2015. Retrieved from http://www.oas.org/en/iachr/reports/pdfs/extractiveindustries2016.pdf
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