The ILO Convention 169
The International Labour Organization (ILO) adopted in June 1989 the Convention 169 “Concerning Indigenous and Tribal Peoples in independent Countries”. This is a legal binding international instrument that deals with the rights of indigenous and tribal peoples. It has been ratified by 22 countries and it has been in effect since September 6, 1991 (International Labour Organization (ILO), 2007, p. 6-9).
Countries that have ratified Convention 169
The consultation and participation of indigenous peoples is the corner stone of Convention 169. The Convention requires that indigenous peoples be consulted “whenever legislative or administrative measures are given which may affect them directly“. In addition, such consultations “should be made in good faith and in an appropriate manner to the circumstances in order to reach an agreement or consent on the proposed measures“. (International Labour Organization (ILO), 2007, p. 22)
The Prior Consultation Law (PCL) and the application of Convention 169 in Peru
Convention 169 was ratified by Peru in 1993 and went into effect in 1995 with constitutional status. Therefore, from that date the Peruvian State must adapt national legislation to Convention 169. However, it did not.
One problem for the implementation of this agreement is that it does not clarify how the consultation with indigenous peoples should be made and to what extent it binds. In addition, it does not define who indigenous and tribal peoples are, but only provides criteria to describe the people it claims to protect, leaving that definition in the hands of the State.
In September 2011, the Peruvian government approved the Prior Consultation Law to Indigenous or Native peoples, recognized in Convention 169 (PCL). Although it was 16 years late, the approval of this Law was considered positive by indigenous organizations because it was a step forward in the process of application of Convention 169 (Working Group of Indigenous Peoples of the National Coordinator for Human Rights, August 2012, p.6).
The President of Peru, Ollanta Humala, signing the Prior Consultation Law in 2011
But this optimism waned when the Regulations of the PCL were approved in 2012, as indigenous organizations believe these Regulations did not take into account their suggestions and recommendations; in addition, the final text included aspects not consulted or agreed with them (Working Group of Indigenous Peoples of the National Coordinator for Human Rights, August 2012, p. 14-18).
According to the PCL, who are considered indigenous peoples?
Article 20 of the PCL states the need to create an official database of indigenous or native peoples in order to identify indigenous peoples. This process has identified 52 indigenous peoples in Peru up until August 2012.
However, indigenous organizations are unhappy with this process. As suggested in the article “Peru: Alternative Report 2012 on the implementation of ILO Convention 169”, this identification would have been based mainly on the Ethno–linguistic map, which establishes the languages that remain spoken in Peru, and would not have considered other criteria established in Convention 169 to be considered as indigenous peoples (such as self-identification and the preservation of its cultural institutions). This process may leave out many people that over the years have lost their native language or their territory.
Criteria for identifying indigenous peoples
Does the PCL give a veto to indigenous communities?
Article 6 of Convention 169 says that governments should consult the peoples concerned to “agree or consent” about the proposed measures. But it does not indicate how to proceed in case of not reaching any agreement or consent.
Due to this, Article 15 of the PCL states that “the final decision for the approval of the legislative or administrative measure corresponds to the responsible governmental entity“. Thus it is clear that, at least for the Peruvian government, the query does not give veto power to the indigenous communities.
The PCL Regulations were even beyond. Article 1 states that “the outcome of the consultation process is not binding, except in those aspects in which there are no agreements between the parties involved“.
Prior consultation in the process of environmental impact assessment (EIA)
Another claim that indigenous organizations make is that the Regulations “are not clear about when to apply the consultation when it comes to administrative measures that have approved the use of natural resources” (Working Group of Indigenous Peoples of the National Coordinator of Human Rights, May 2012, p. 17).
As these organizations interpret “the consultation would take place only during the preparation of the Environmental Impact Assessment” (Working Group of Indigenous Peoples of the National Coordinator of Human Rights, May 2012, p. 17). Nor it is clear whether it complies with all cases of use of natural resources and this is important because each sector in Peru has different laws regarding the development of the EIA.
History of ILO Conventions on indigenous peoples:
- Congreso de la República del Perú. Ley del Derecho a la Consulta Previa a los Pueblos Indígenas u Originarios, reconocidos en el Convenio 169 de la Organización Internacional del Trabajo (OIT). Setiembre 2011. (In English: Congress of Peru. Prior Consultation Law to the indigenous or native peoples, recognized in the Convention 169 of the International Labour Organization (ILO). September 2011)
- Grupo de Trabajo de Pueblos Indígenas de la Coordinadora Nacional de Derechos Humanos. Análisis del Reglamento de la Ley de Consulta Previa. Mayo 2012. (In English: Working Group of Indigenous Peoples of the National Human Rights Coordinator. Analysis of Regulations of the Prior Consultation Law. May 2012).
- Grupo de Trabajo de Pueblos Indígenas de la Coordinadora Nacional de Derechos Humanos. Perú: Informe Alternativo 2012 sobre el cumplimiento del Convenio 169 de la OIT. Agosto 2012. (In English: Working Group of Indigenous Peoples of the National Human Rights Coordinator. Peru: Alternative Report 2012 on the implementation of ILO Convention 169. August 2012).
- Ministerio de Cultura. Directiva que regula el funcionamiento de la Base de Datos Oficial de pueblos indígenas u Originarios (Resolución Ministerial Nº 202-2012-MC). Mayo 2012. (In English: Ministry of Culture. Directive governing the operation of the official database of indigenous or native people (Ministerial Resolution No. 202-2012-MC). May 2012).
- Ministerio de Cultura. Reglamento de la Ley del Derecho a la Consulta Previa a los Pueblos Indígenas u Originarios, reconocidos en el Convenio 169 de la Organización Internacional del Trabajo (OIT). (Decreto Supremo Nº 001-2012-MC). Abril 2012. (In English: Ministry of Culture. Regulations of the Prior Consultation Law to indigenous or native peoples, recognized in the Convention 169 of the International Labour Organization (ILO). (Supreme Decree No. 001-2012-MC). April 2012).
- Organización Internacional del Trabajo (OIT). Convenio 169 sobre Pueblos Indígenas y Tribales en Países Independientes. 2007. 106 p. (In English: International Labour Organization (ILO). Convention 169 on Indigenous and Tribal Peoples in Independent Countries. 2007. 106 p.)
- Yrigoyen, R. El Convenio Núm. 169 de la OIT y su Aplicación en Perú. Instituto Internacional de Derecho y Sociedad-IIDS. Enero 2009. (In English: Convention No. 169 and its Application in Peru. International Institute for Law and Society, IISD. January 2009).
- Wikipedia. Convención 169 de la OIT sobre pueblos indígenas y tribales. Ratificaciones. (In English: Convention 169 on indigenous and tribal peoples. Ratifications).
- SERVINDI. Comunicación intercultural para un mundo más humano y diverso. (In English: Intercultural Communication for a more humane and diverse world).