Indigenous People in Latin-America and their Right to Free

Indigenous People in Latin-America and

their Right to Free, Prior and Informed

Consent within International Law

Janne Dewaele Student number: 01204818

Supervisor: Prof. Dr. Yves Haeck

Co-supervisor: Andy Van Pachtenbeke

A dissertation submitted to Ghent University in partial fulfilment of the requirements for the degree of

Master of Laws

Academic year: 2016 - 2017

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Acknowledgements

Writing this note of thanks is the finishing touch to my master thesis but also to my years at Ghent

University. I would like to thank some people who were there for me along the way.

I would first like to thank my thesis supervisors Professor Haeck and Andy Van Pachtenbeke for their

guidance throughout these last two years. Both during the moot court classes and during the writing of

this thesis, they conveyed their passion for human rights to me and taught me more than I could ever give

them credit for here.

To my parents: I owe it all to you. Thank you for relentlessly supporting me in all that I do. I am also

forever grateful to my sisters Lien and Nele for paving the way for me on so many levels.

A special mention goes out to Heleen Defieuw. Thank you so much for all the food, encouragement and

laughs throughout this final master year.

Thank you very much, everyone!

Janne Dewaele

Ghent, 2017

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Abstract (in Dutch)

a. In Latijns-Amerika hebben winningsindustrieën zoals mijnbouw vaak een gigantische impact op

het leven van inheemse volkeren. Zowel binnen de Organisatie van Amerikaanse Staten (‘OAS’) als

binnen de Verenigde Naties (‘VN’) probeert men hun rechten dan ook beter te beschermen. Een

belangrijk concept dat hierbij besproken wordt, is het recht van inheemse volkeren om hun vrije,

geïnformeerde toestemming te geven voor projecten die een effect kunnen hebben op hun manier van

leven. Er is echter veel discussie over de precieze inhoud en toepassing van dit recht. In deze thesis

onderzoeken we of dit recht enkel inhoudt dat men geconsulteerd moet worden of dat het ook een echt

vetorecht inhoudt. We willen bovendien nagaan of er echt al sprake is van een recht of enkel van een

‘opkomend recht’.

b. We merken, zowel tussen de beide organisaties als binnen de beide organisaties, veel

nuanceverschillen op. Binnen de OAS baseert men het recht op toestemming vooral op het recht op

eigendom uit Artikel 21 van het Amerikaans Verdrag voor de Mensenrechten. Binnen de VN stelt men

dat dit recht eerder gebaseerd is op het recht op zelfbeschikking. Wat de inhoud van het recht betreft,

heeft men het binnen de OAS over een ruim recht om geconsulteerd te worden. Er is enkel een echt recht

op toestemming in het geval van grootschalige projecten. Binnen de VN lijkt er meer consensus te zijn

over een ruim recht op toestemming, toepasselijk in verschillende situaties.

c. Ook de Verdragen en Verklaringen rond inheemse rechten binnen deze organisaties kennen

nuanceverschillen. De ILO Conventie 169 uit 1989 introduceert een recht op consultatie met het

wenselijke doel om toestemming te bereiken. De VN Verklaring over de Rechten van Inheemse Volkeren

uit 2007 breidt dit uit tot een ruim recht op consultatie met een vereiste om toestemming te bereiken. In de

OAS Amerikaanse Verklaring over de Rechten van Inheemse Volkeren uit 2016 wordt hier geen duidelijk

standpunt over ingenomen. Er is een recht op consultatie met het doel toestemming te bereiken, maar

werkelijke toestemming is enkel vereist in uitzonderlijke omstandigheden.

d. Over het recht op consultatie is dus al ruime consensus, over de exacte inhoud van het recht op

toestemming iets minder. Toch is er zowel binnen de OAS als de VN op z’n minst een recht op

toestemming wanneer projecten zullen plaatsvinden op inheems gebied of wanneer ze hun manier van

leven kunnen beïnvloeden. Het recht op toestemming is dus al meer dan een ‘opkomend recht’. Het is ook

duidelijk dat inheemse volkeren in goed vertrouwen geconsulteerd moeten worden. Dit houdt in dat hun

opmerkingen een invloed moeten hebben op het uiteindelijke resultaat. Helaas blijft er een grote kloof

tussen dit uitbreidende recht op toestemming in het internationaal recht en de praktijk in Latijns-Amerika.

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Table of Contents

1. Introduction ........................................................................................................................................ 10

2. Indigenous Peoples and their Right to Free, prior and informed consent .......................................... 12

CHAPTER I. Introduction ................................................................................................................. 12

A. Definition of Indigenous Peoples .............................................................................................. 12

B. Rights of Indigenous Peoples .................................................................................................... 12

C. Structure of thesis ...................................................................................................................... 15

CHAPTER II. Organization of American States ................................................................................ 17

A. Introduction ............................................................................................................................... 17

B. Inter-American Court of Human Rights .................................................................................... 18

1. 2001: Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua ..................... 18

2. 2005: Case of the Yakye Axa Indigenous Community v. Paraguay ................................... 20

3. 2007: Case of the Saramaka People v. Suriname ................................................................ 21

4. 2012: Case of the Kichwa Indigenous People of Sarayaku v. Ecuador .............................. 25

5. 2015: Case of the Kaliña and Lokono peoples v. Suriname ............................................... 29

6. Criticism .............................................................................................................................. 31

C. Inter-American Commission on Human Rights ........................................................................ 32

1. 1983: Report on the Situation of Human Rights of a Segment of the Nicaraguan Population

of Miskito Origin ........................................................................................................................... 33

2. 1997-2000: Country Reports about Ecuador, Colombia and Peru ...................................... 34

3. 2002: Mary and Carrie Dann v. United States .................................................................... 35

7

4. 2004: Maya indigenous community of the Toledo District v. Belize ................................. 37

5. 2009: Thematic Report on Indigenous and tribal peoples’ rights over their ancestral lands

and natural resources...................................................................................................................... 38

6. 2015: Thematic Report on Indigenous Peoples and Extractive Industries .......................... 40

7. Criticism .............................................................................................................................. 41

D. American Declaration on the Rights of Indigenous Peoples ..................................................... 42

E. Intermediate Conclusion ............................................................................................................ 43

CHAPTER III. United Nations ............................................................................................................ 45

A. Introduction ............................................................................................................................... 45

B. Declarations and Treaties concerning Indigenous Rights.......................................................... 46

1. ILO Convention 169 ........................................................................................................... 46

i. ILO Convention 107 ........................................................................................................... 46

ii. ILO Convention 169 ....................................................................................................... 46

iii. ILO Committee of Experts .............................................................................................. 49

2. United Nations Declaration on Indigenous Peoples (UNDRIP) ......................................... 50

C. Charter-based Bodies concerned with Indigenous Rights ......................................................... 53

1. Human Rights Council ........................................................................................................ 53

i. The Working Group on Indigenous Populations under the Commission on Human Rights

53

ii. The Expert Mechanism on the Rights of Indigenous Peoples under the Human Rights

Council ...................................................................................................................................... 56

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iii. Special Rapporteurs on the Rights of Indigenous Peoples .............................................. 58

a. 2001-2008: Rodolfo Stavenhagen ................................................................................... 58

b. 2008-2014: James Anaya ................................................................................................ 59

c. 2014- present: Victoria Tauli Corpuz .............................................................................. 63

2. Economic and Social Council ............................................................................................. 63

i. Permanent Forum on Indigenous Issues ............................................................................. 63

D. Treaty Supervisory Bodies concerned with indigenous rights .................................................. 67

1. Human Rights Committee ................................................................................................... 67

2. Committee on Economic, Social and Cultural Rights......................................................... 69

3. Committee on the Elimination of Racial Discrimination .................................................... 71

E. Intermediate Conclusion ............................................................................................................ 72

3. Conclusion .......................................................................................................................................... 75

4. Bibliography ....................................................................................................................................... 78

A. Declarations and Treaties .......................................................................................................... 78

B. Case law ..................................................................................................................................... 79

1. Inter-American Court of Human Rights (IACtHR) ............................................................ 79

2. Inter-American Commission on Human Rights (IACHR) .................................................. 79

3. International Court of Justice (ICJ) ..................................................................................... 80

C. Books and articles ...................................................................................................................... 80

D. UN Publications ......................................................................................................................... 84

1. Commission on Human Rights ........................................................................................... 84

2. Human Rights Council ........................................................................................................ 85

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3. Special Rapporteurs on the rights of indigenous peoples ................................................... 85

4. Permanent Forum on Indigenous Issues ............................................................................. 86

5. Human Rights Committee ................................................................................................... 87

6. Committee on Economic, Social and Cultural Rights......................................................... 88

7. Committee on the Elimination of Racial Discrimination .................................................... 88

8. Other ................................................................................................................................... 89

E. Internet publications .................................................................................................................. 89

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1. INTRODUCTION

1. Latin-America is a continent in motion. After some years of economic growth, the continent is

struggling not to go in a slowdown.1 In general, many Latin-American countries’ economies are highly

dependent on the income of natural resource extraction, exploitation of rural lands, construction of

hydroelectric dams, and so on.2 Therefore, countless new extractive, development and industrialization

projects are being implemented.3

2. These projects are often situated on indigenous territories and have a profound impact on the

communities living there. In multiple Latin-American states, the relationship between the indigenous

peoples and the government is complicated because of the colonial history. Consequently, their rights are

not properly protected.4 Also, the indigenous communities’ own notion of development often differs from

the general understanding of development in a country.5 This whole situation leads to a lot of tension.

Numerous industry projects in Latin-America have led to social unrest, indigenous protests and

sometimes even outbursts of violence.6 The protesters frequently have to deal with brutal force of

government and private security forces.7

1 OECD, ECLAC, CAF, Latin American Economic Outlook 2017: Youth, Skills and Entrepreneurship, 2016, p.49.

2 T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University

of Pennsylvania Journal of International Law, 2014, p.116; K. SLACK, Human Rights and Extractive Industries in

Latin America, Aportes DPLF, 2011, p.4; D.C. BALUARTE, Balancing Indigenous Rights and a State’s Right to

Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169, Sustainable Development

Law & Policy, 2004, p.9. 3 IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection in

the Context of Extraction, Exploitation, and Development Activities, Report OEA/Ser.L/V/II., Doc. 47/15, 2015,

§11. 4 T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University

of Pennsylvania Journal of International Law, 2014, p.123-126; D.C. BALUARTE, Balancing Indigenous Rights and

a State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169,

Sustainable Development Law & Policy, 2004, p.9. 5 M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land tenure: challenges and possibilities,

Land Reform, Land Settlement and Cooperatives, 2004, p.8; see also Art.7(1) Convention concerning Indigenous

and Tribal Peoples in Independent Countries, C169, ILO, 5 September 1991 (hereinafter “ILO Convention 169”). 6 S.H. CARRASCO, Extractive Industries and the Protection of Human Rights in the Americas, Aportes DPLF, 2015,

p.27; DPLF, Right to Free, Prior, and Informed Consultation and Consent in Latin America, 2015, p.iii-iv; HRC,

Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people,

James Anaya, UN Doc. A/HRC/15/37, 2010, p.8. 7 T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University

of Pennsylvania Journal of International Law, 2014, p.118; K. SLACK, Human Rights and Extractive Industries in

Latin America, Aportes DPLF, 2011, p.4.

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Example: The construction of the massive Belo Monte hydroelectric dam on the Xingu river in

Brazil has caused a lot of controversy. The indigenous peoples living in the surrounding lands

are highly concerned about the effects this project has and will have on their traditional way of

living. The dam has resulted in loss of control over their lands, rivers, and resources. As a way of

protest, groups of indigenous peoples have tried to invade and occupy the site on multiple

occasions.8

3. On the one hand, important steps are being undertaken in the recognition of the human rights of

these indigenous peoples. Indigenous activist groups are finding their voice and reclaiming self-

determination. There is a huge theoretical progress regarding their rights, and often waves of

(constitutional) reform follow.9 One concept that is currently highly debated upon in international law, is

the right to consultation, and the following ‘right to free, prior and informed consent’.10

4. On the other hand, business associations and transnational corporations still have a lot of

influence on politics.11

Bigger projects are being undertaken with an even more profound impact on the

surrounding environment and people. State practice is often not in line with the developments in

international law. “Major legislative and administrative reforms are needed in virtually all countries in

which indigenous peoples live to adequately define and protect their rights over lands and resources and

other rights that may be affected by extractive industries.”12

5. This thesis will look at this phenomenon. It will focus on the ‘right to free, prior and informed

consent’, as a concept that could mitigate the negative effects of extractive industries for indigenous

peoples. We will examine what the current status of this right is in international law: does it entail only a

right to meaningful consultation or a true veto right? Is it even a real right for indigenous peoples or just

an ‘emerging’ right? We will answer these questions by examining the work of both the Organization of

American States and the United Nations.

8 HRC, Report of the Special Rapporteur on the rights of indigenous peoples on her mission to Brazil, UN Doc.

A/HRC/33/42/Add.1, 2016, p.10-11; A. BARRIONUEVO, Brazilian Amazon Group Invade Site of Dam Project, The

New York Times, 27 October 2011, http://www.nytimes.com/2011/10/28/world/americas/brazilian-amazon-groups-

try-to-stop-dam-project.html. 9 T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University

of Pennsylvania Journal of International Law, 2014, p.122. 10

COMMISSION ON HUMAN RIGHTS, Standard-Setting: Legal Commentary on the Concept of Free, Prior and

Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, p.3; see also T. WARD, Right to Free, Prior and

Informed Consent: Indigenous Peoples’ Participation Rights within International Law, Northwestern University

Journal of International Human Rights, 2011, p.54. 11

DPLF, Right to Free, Prior, and Informed Consultation and Consent in Latin America, 2015, p. v. 12

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, UN Doc.

A/HRC/21/47, 2012, p.15.

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2. INDIGENOUS PEOPLES AND THEIR RIGHT TO FREE,

PRIOR AND INFORMED CONSENT

CHAPTER I. Introduction

A. Definition of Indigenous Peoples

6. Using a strict definition for the term ‘indigenous peoples’ can be risky, considering their immense

diversity.13

Even though there is therefore no internationally accepted definition, one that is often used is

the one embedded in the ‘Indigenous and Tribal Peoples Convention’ of the International Labour

Organization (hereinafter ‘ILO Convention 169’). Article 1(1)(b) of this Convention defines indigenous

peoples as “peoples in independent countries who are regarded as indigenous on account of their descent

from the populations which inhabited the country, or a geographical region to which the country belongs,

at the time of conquest or colonisation or the establishment of present state boundaries and who,

irrespective of their legal status, retain some or all of their own social, economic, cultural and political

institutions”.14

Article 1(2) of the Convention mentions self-identification as a fundamental criterion for

determining which communities can be seen as indigenous.15

In almost every law, policy or jurisprudence

about indigenous peoples, the close relationship with their lands is highlighted, and the fact that this

relationship is vital for their survival.16

B. Rights of Indigenous Peoples

7. In Latin-America, there are 45 million indigenous people, belonging to more than 800 groups.

This accounts for 8% of the region’s total population.17

In the last decades, there has been an increased

attention, both on an international level and in the legislation of many countries, for their individual and

13

IACHR, Indigenous Peoples, Afro-Descendent Communities and Natural Resources: Human Rights Protection in

the Context of Extraction, Exploitation and Development Activities, Report OEA/Ser.L/V/II.,Doc. 47/15, 2015, §27. 14

Art. 1(1)(b) ILO Convention 169. 15

Art. 1(2) ILO Convention 169; see also Art. 33(1) United Nations Declaration on the Rights of Indigenous

Peoples, A/RES/61/295, 13 September 2007 (hereinafter ‘UNDRIP’); Art.1(2) OAS American Declaration on the

Rights of Indigenous Peoples, 15 June 2016 (hereinafter ‘American Declaration’). 16

IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and

Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, p.1. 17

DPLF, Right to Free, Prior, and Informed Consultation and Consent in Latin America, 2015, p.2; ECLAC,

Guaranteeing indigenous people’s rights in Latin America: Progress in the past decade and remaining challenges,

UN Doc. LC/L.3893/Rev.1, 2014, p.6 and 43.

13

collective rights.18

There has been more and more awareness that indigenous communities can be seen as

a distinct category of human societies and that they have specific needs and rights.19

8. The debate on indigenous rights has been ongoing for a long time, with discussions on which

conceptual structures are most fitting for indigenous claims: human rights, historic sovereignty claims,

minority claims,…20

There is still some controversy about the fact that indigenous peoples are seen as a

‘distinct’ category with ‘special’ human rights, while one of the foundations of human rights is of course

the fact that they are universal.21

This special treatment could be justified by the existence of common

distinctive histories and experiences of indigenous peoples, as they share a long history of exploitation

and oppression by States in which they were often wrongfully deprived of their rights.22

This has made

them a vulnerable group.23

Also, they have their own notion of development, which often collides with

the general notion of development within a society.24

Therefore, there is more and more consensus on the

fact that specific safeguards are necessary, and that human rights can provide this protection.25

9. These indigenous human rights are evolving. Cases concerning these rights are decided upon by

international human rights bodies, international instruments to safeguard them are drafted, and slowly

18

IWGIA, FPP, F. MACKAY, Guide to Indigenous Peoples’ rights in the Inter-American Human Rights System,

2002, p.16-17. 19

L. BURGORGUE-LARSEN, A. ÚBEDA DE TORRES et al., The Inter-American Court of Human Rights: Case law and

Commentary, New York, 2011, p.501; M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land

tenure: challenges and possibilities, Land Reform, Land Settlement and Cooperatives, 2004, p.9. 20

K. ENGLE, On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of

Human Rights, The European Journal of International Law, 2011, p.143 and 151; B. KINGSBURY, Reconciling Five

Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law, N.Y.U.

Journal of International Law and Politics, 2001, p.190. 21

T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University

of Pennsylvania Journal of International Law, 2014, p.135-136; B. KINGSBURY, Reconciling Five Competing

Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative Law, N.Y.U. Journal of

International Law and Politics, 2001, p.196. 22

B. KINGSBURY, Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in

International and Comparative Law, N.Y.U. Journal of International Law and Politics, 2001, p.199 and 244; R.

SHRINKHAL, Free, Prior and Informed Consent as a Right of Indigenous Peoples, Journal of National Law

University, Delhi, 2014, p.61. 23

See infra ¶23. 24

See supra ¶2; see infra ¶93. 25


of Pennsylvania Journal of International Law, 2014, p.135-136; K. ENGLE, On Fragile Architecture: The UN

Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, The European Journal of

International Law, 2011, p.151; B. KINGSBURY, Reconciling Five Competing Conceptual Structures of Indigenous

Peoples’ Claims in International and Comparative Law, N.Y.U. Journal of International Law and Politics, 2001,

p.202.

14

they are also incorporated into domestic law, jurisprudence and practice. Still, there is a long way to go,

definitely in the state practice.26

10. Indigenous peoples face multiple barriers when wanting to secure their traditional lifestyle and

the close ties to their lands. Their specific way of living is endangered by discrimination, racism and

marginalization. Their lands are frequently threatened by mining, deforestation and other extractive

industries, and the legal recognition of their property rights is often weak.27

States regularly possess

ownership over water and subsurface resources on indigenous territories, and grant concessions for the

exploration and extraction hereof.28

Example: In a report of the Permanent Forum on Indigenous Issues of 2011, it was stated that

80% of the indigenous territories in Colombia were under concessions for industrial and

infrastructure projects. Because of these concessions and the armed conflict in the country,

numerous indigenous peoples felt forced to leave their ancestral lands. This led to a situation

where 65% of Colombia’s indigenous people were compressed within 7.7% of the total

indigenous territory. At the same time, 34 up till 62 of the country’s 87 different indigenous

peoples were in peril of extinction.29

11. Specific human rights needed to be established to avert this devastating impact of the extractive

industries on the life and survival of the indigenous communities.30

These rights seek to guarantee the

close connection of the indigenous peoples to their lands and to secure their dignified existence in

general. One of the most important concepts, regarding these rights, that is currently being debated within

international law, is the ‘right to free, prior and informed consent’ (hereinafter ‘FPIC’). The most basic

26


2002, p.16-17. 27


Commentary, New York, 2011, p.502; M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land

tenure: challenges and possibilities, Land Reform, Land Settlement and Cooperatives, 2004, p.10; F. MACKAY,

Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s Extractive Industries

Review, Sustainable Development Law & Policy, 2004, p.49. 28



PFII, Situation of indigenous peoples in danger of extinction in Colombia, UN Doc. E/C.19/2011/3, 2011, p.3-4

and 9; see also M. YRIART, Jurisprudence in a Political Vortex. The Right of Indigenous Peoples to Give or

Withhold Consent to Investment and Development Projects, in Y. HAECK et al., The Inter-American Court of

Human Rights, Cambridge, 2015, p.477 and 504. 30

M. SATTERTHWAITE and D. HURWITZ, Right of Indigenous Peoples to Meaningful Consent in Extractive Industry

Projects, Arizona Journal of International and Comparative Law, 2005, p.3; F. MACKAY, Indigenous Peoples’

Rights to Free, Prior and Informed Consent and the World Bank’s Extractive Industries Review, Sustainable

Development Law & Policy, 2004, p.49.

15

way to explain this is “the right of indigenous peoples to make free and informed choices about the

development of their lands and resources”31

. FPIC is thus the consensus of an indigenous community

determined in accordance with their customary laws and practices. The consent should be free (without

coercion), prior (before any activities start) and informed (with full knowledge of the intent and scope of

the activity).32

While international standards used to focus on the fact that indigenous peoples should be

consulted in advance about state legislative and administrative measures that can affect themselves and

their lands, the attention recently shifted to the right to give their consent.33

However, this right is still

highly contested by states and by the extractive industry.34

C. Structure of thesis

12. This thesis will explore the development within international law of the right to free, prior and

informed consent regarding extractive industry projects on indigenous lands. It will give an overview of

how indigenous rights have been established by multiple organizations and in different conventions, with

an emphasis on Latin-America.

13. We will start with the work of the Organization of American States, which plays a significant role

in the protection of human rights in Latin-America. Here, we will focus on both the work of the Inter-

American Commission on Human Rights (hereinafter ‘the Commission’) and the Inter-American Court

on Human Rights (hereinafter ‘the Court’). We will conclude this chapter with the examination of the

American Declaration on the Rights of Indigenous Peoples (hereinafter ‘American Declaration’), adopted

in 2016.

14. We will continue with the work of bodies, agencies and programmes connected to the United

Nations (hereinafter ‘UN’). In this regard, the International Labour Organization Convention 169, the

first binding treaty dealing with indigenous rights, and the United Nations Declaration on Indigenous

Peoples will be addressed. The Special Rapporteurs and the Expert Mechanism on the Rights of

Indigenous Peoples under the Human Rights Council, and the Permanent Forum on Indigenous Issues

31

T. WARD, Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within

International Law, Northwestern University Journal of International Human Rights, 2011, p.54. 32

F. MACKAY, Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s Extractive

Industries Review, Sustainable Development Law & Policy, 2004, p.49. 33

M. YRIART, Jurisprudence in a Political Vortex. The Right of Indigenous Peoples to Give or Withhold Consent to

Investment and Development Projects, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge,

2015, p.479. 34

R. SHRINKHAL, Free, Prior and Informed Consent as a Right of Indigenous Peoples, Journal of National Law

University, Delhi, 2014, p.54.

16

under the Economic and Social Council, also stand out in the progressive development of indigenous

rights.

15. We will examine to what extent these different mechanisms accept the right to FPIC, what they

base it upon, and what criticism they receive. Throughout this dissertation, some real-life examples will

be provided, to check if the principles established by international law are being applied in practice. We

hope that this thesis can be a comprehensive reference book on the right to FPIC, that gives both the

historical development and the current status of this right. What does it entail exactly? And is it a real

right yet or only an ‘emerging’ right?

17

CHAPTER II. Organization of American States

A. Introduction

16. In the Organization of American States (hereinafter ‘OAS’), human rights are protected under the

framework of the Charter35

, the Declaration36

and the American Convention on Human Rights

(hereinafter ‘the Convention’ or ‘ACHR’)37

. Within these frameworks, an elaborate body of

jurisprudence regarding the rights of indigenous peoples has been established.38

Several reports

concerning these rights have been published by the Commission and a lot of cases have been brought

before the Court39

. Throughout these reports, thematic hearings and cases, numerous special rights and

principles were found and further developed, by interpreting the provisions of the Declaration and the

Convention in light of the provisions of ia. ILO Convention 169 and UNDRIP.40

Both the Court and the

Commission called upon the member states to protect these rights in domestic law and practice.41

The

right to FPIC has been a slow-developing norm through all of this and has been expressed through several

35

OAS Charter of the Organization of American States, 30 April 1948 (hereinafter ‘the Charter’). 36

OAS American Declaration on the Rights and Duties of Man, 2 May 1948 (hereinafter ‘the Declaration’). 37

OAS American Convention on Human Rights, "Pact of San Jose", Costa Rica, 22 November 1969 (hereinafter

‘ACHR’). 38


International Law, Northwestern University Journal of International Human Rights, 2011, p.61; IACHR, Indigenous

and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the

Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §6; D.C. BALUARTE, Balancing

Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO

Convention 169, Sustainable Development Law & Policy, 2004, p.9. 39

The Mayagna (Sumo) Awas Tingni Community v. Nicaragua, IACtHR, 31 August 2001; Plan De Sánchez

Massacre v. Guatemala, IACtHR, 29 April 2004; Moiwana Community v. Suriname, IACtHR, 15 June 2005; Yakye

Axa Indigenous Community v. Peru, IACtHR, 17 June 2005; YATAMA v. Nicaragua, IACtHR, 23 June 2005;

Sawhoyamaxa Indigenous Community v. Paraguay, IACtHR, 29 March 2006; Escué-Zapata v. Colombia, IACtHR,

4 July 2007; Saramaka People v. Suriname, IACtHR, 28 November 2007; Tiu Tojín v. Guatemala, IACtHR, 26

November 2008; Chitay Nech et al. v. Guatemala, IACtHR, 25 May 2010; Xákmok Kásek Indigenous Community v.

Paraguay, IACtHR, 24 August 2010; Fernández Ortega et al. v. Mexico, IACtHR, 30 August 2010; Rosendo Cantú

et al. v. Mexico, IACtHR, 31 August 2010; Kichwa Indigenous People of Sarayaku v. Ecuador, IACtHR, 27 June

2012; Río Negro Massacres v. Guatemala, IACtHR, 4 September 2012; Norín Catrimán et al. (Leaders, Members

and Activist of the Mapuche Indigenous People) v. Chile, IACtHR, 29 May 2014; Kuna Indigenous People of

Madungandí and the Emberá Indigenous People of Bayano and their Members v. Panama, IACtHR, 14 October

2014; Garífuna Punta Piedra Community and its Members v. Honduras, IACtHR, 8 October 2015; Community

Garífuna Triunfo de la Cruz Community and its Members v. Honduras, IACtHR, 8 October 2015; Kaliña and

Lokono Peoples v. Suriname, IACtHR, 22 November 2015. 40

See infra ¶28. 41

A. PAGE, Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System,

Sustainable Development Law & Policy, 2004, p.16.

18

landmark cases.42

As the Court established some important principles that are crucial to fully understand

indigenous rights in general and the right to FPIC in specific, we will first go through the Court’s

jurisprudence. After that, we will discuss the more progressive approach of the Commission on the right

to consent, and the adoption of the American Declaration.

B. Inter-American Court of Human Rights

17. As decisions of the Court are binding upon states, the Court has played a crucial role in the

development of indigenous rights.43

It is gradually enhancing an indigenous corpus juris through

provisional measures and judgements, and has a real pioneering role on the American continent.44

1. 2001: Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua

18. The first real landmark case regarding indigenous rights before the Court is Awas Tingni v.

Nicaragua in 2001.45

In this case, the Nicaraguan government had granted logging concessions that

allowed a company to commence operations within the traditional territory of the Mayagna Community

of Awas Tingni, an indigenous group.46

The community members only learned of these concessions when

the loggers were already encroaching their territories. The petition before the Court claimed that

Nicaragua hereby violated the rights of the Awas Tingni. In its final judgement of 2001, the Court

declares that the Awas Tingni have collective rights to their traditional lands and resources and that

Nicaragua did not comply with its obligations under the Convention to effectively recognize and enforce

these rights. The Court highlights the fact that States have to take the specific characteristics of

indigenous communities into account when applying their domestic legislation.47

Nicaragua violated the

rights of the Awas Tingni to property under Article 21 ACHR and the right to judicial protection under

Article 25 ACHR.48

42

See infra Saramaka v. Suriname, IACtHR, 28 November 2007; Sarayaku v. Ecuador, IACtHR, 27 June 2012; see

also T. WARD, Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within



of Pennsylvania Journal of International Law, 2014, p.120; IWGIA, FPP, F. MACKAY, Guide to Indigenous

Peoples’ rights in the Inter-American Human Rights System, 2002, p.16-17. 44


of Pennsylvania Journal of International Law, 2014, p.120; L. BURGORGUE-LARSEN, A. ÚBEDA DE TORRES et al.,

The Inter-American Court of Human Rights: Case law and Commentary, New York, 2011, p.503. 45

Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Judgment), IACtHR, Ser. C, No. 79, 31

August 2001 (hereinafter ‘Awas Tingni v. Nicaragua’). 46

Awas Tingni v. Nicaragua, IACtHR, 31 August 2001, §103. 47

Ibid. §51. 48

Ibid. §139 and §155.

19

19. The Court further develops the scope of this Article 21, by dynamic interpretation. First, the Court

expands the notion of the word ‘property’ by concluding that this not only includes “material things

which can be possessed”, but also “any right which may be part of a person’s patrimony”, and

“intangible object[s] capable of having value”.49

Then, it finds a new concept of ‘communal property’ by

stating that “article 21 of the Convention protects the right to property in a sense which includes, among

others, the rights of members of the indigenous communities within the framework of communal property

[…]”.50

20. In two crucial paragraphs, the Court elaborates on this new concept of communal property for

indigenous communities:

“[…] Among indigenous peoples there is a communitarian tradition regarding a communal form

of collective property of the land, in the sense that ownership of the land is not centered on an

individual but rather on the group and its community. Indigenous groups, by the fact of their very

existence, have the right to live freely in their own territory; the close ties of indigenous people

with the land must be recognized and understood as the fundamental basis of their cultures, their

spiritual life, their integrity, and their economic survival. For indigenous communities, relations

to the land are not merely a matter of possession and production but a material and spiritual

element which they must fully enjoy, even to preserve their cultural legacy and transmit it to

future generations.”51

“Indigenous peoples’ customary law must be especially taken into account for the purpose of this

analysis. As a result of customary practices, possession of the land should suffice for indigenous

communities lacking real title to property of the land to obtain official recognition of that

property, and for consequent registration.”52

21. This case is a huge step forward for the recognition of indigenous rights. The concept of

‘communal property’ will be essential for the later development of the right to FPIC. It is also the first

time that an international judicial body explicitly confirms that indigenous territorial rights arise from

traditional occupation and use, irrespective of whether the state has issued title or registered these lands as

49

Ibid. §144. 50

Ibid. §148. 51

Ibid. §149. 52

Ibid. §151.

20

such.53

The delimitation, demarcation and titling of community lands must be carried out with their

participation and must take into account their customary laws and practices.54

This already prevents States

from unilaterally exploiting community natural resources, even though the words ‘consultation’ or

‘consent’ are not used yet.55

The judgement is also a significant (binding) confirmation of the importance

of land rights for the cultural integrity and survival of indigenous communities.

Example: The premise that indigenous land rights arise from traditional occupation as such,

without needing official registration by the State, is often not accepted in practice. In Argentina,

property rights on traditional territories are not recognized without official titles. An executive

agency was charged with the demarcation and titling of indigenous lands, but fails to adequately

perform this task. Many of the indigenous communities remain without land titles and

subsequently without protection. To make things worse, new legislation is issued that seeks to

privatize indigenous peoples’ lands.56

2. 2005: Case of the Yakye Axa Indigenous Community v. Paraguay

22. In Yakye Axa v. Paraguay of 200557

, petitioners had attempted to reclaim their ancestral lands

through state administrative procedures. This whole process had taken twelve years, and in the meantime

the community had to move to an area next to their ancestral lands where they could not continue their

traditional practices. During this temporary resettlement, they had to live in precarious conditions: there

was a complete lack of decent housing, no access to clean water, no sanitary facilities, etc.58

23. In this case, the Court emphasizes that the vulnerability of indigenous communities requires

special measures of protection. “As regards indigenous peoples, it is essential for the States to grant

effective protection that takes into account their specificities, their economic and social characteristics,

as well as their situation of special vulnerability, their customary law, values, and customs.”59

Their

53


of Pennsylvania Journal of International Law, 2014, p.141; IWGIA, FPP, F. MACKAY, Guide to Indigenous

Peoples’ rights in the Inter-American Human Rights System, 2002, p.85 and 90. 54


A. PAGE, Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights System,

Sustainable Development Law & Policy, 2004, p.16. 56



2015, p.524-527. 57

Case of the Yakye Axa Indigenous Community v. Paraguay (Judgment), IACtHR, Ser. C, No. 125, 17 June 2005

(hereinafter ‘Yakye Axa v. Paraguay’). 58

Yakye Axa v. Paraguay, IACtHR, 17 June 2005, §50.92-50.105 and §164. 59

Ibid. §51 and §63.

21

cultural identity has a direct effect on the Convention’s “scope and content”, and leads to special state

obligations.60

“To guarantee the right of indigenous peoples to communal property, it is necessary to take

into account that the land is closely linked to their oral expressions and traditions, their customs and

languages, their arts and rituals, their knowledge and practices in connection with nature, culinary art,

customary law, dress, philosophy, and values.”61

The case is notable because of the mentioning of the

right to ‘cultural identity’, a right that is not expressly named in the Convention.62

However, the Court

does not explain its content. Still, this right to cultural identity will be essential for understanding the

scope of the right to FPIC as later established by the Court.

24. It is also the first time that the Court clearly states that the right to property can be restricted. State

interference within traditional lands should be assessed considering the restrictions’ legality, necessity

and proportionality, and whether they serve a “legitimate goal in a democratic society”.63

25. The Court eventually finds that Paraguay violated the right to life embedded in Article 4 of the

Convention, by not ensuring decent living conditions for the vulnerable indigenous group.64

Paraguay

also violated their right to property, by not having an effective legal procedure for land claims.65

3. 2007: Case of the Saramaka People v. Suriname

26. In 2007, the Court rules upon the Saramaka People v. Suriname case.66

It turns out to be the most

important decision of the Court to date concerning the right to free, prior and informed consent. In this

case, the Surinamese government had granted logging and mining concessions to private companies

within the lands of the Saramaka People, a tribal people. They had done this without consulting them and

without achieving their consent.67

The Court finds that Suriname hereby violated their right to judicial

protection and their right to property. Suriname failed their obligation to have effective mechanisms that

60

Ibid. §51. 61

Ibid. §154. 62

Ibid. §147. 63

Yakye Axa v. Paraguay, IACtHR, 17 June 2005, §144; see also T.M. ANTKOWIAK, Rights, Resources, and

Rhetoric: Indigenous Peoples and the Inter-American Court, University of Pennsylvania Journal of International

Law, 2014, p.141. 64

Yakye Axa v. Paraguay, IACtHR, 17 June 2005, §176. 65

Ibid. §155-156. 66

Case of the Saramaka People v. Suriname (Judgment), IACtHR, Ser. C, No. 172, 28 November 2007 (hereinafter

‘Saramaka v. Suriname’). 67

Saramaka v. Suriname, IACtHR, 28 November 2007, §124.

22

could protect the Saramaka’s property rights.68

Throughout the decision, some crucial principles for the

protection of indigenous rights are established.

27. First, the Court rules that tribal peoples have the same rights as indigenous peoples, stating that

“[…] the Court’s jurisprudence regarding indigenous peoples’ right to property is also applicable to

tribal peoples because both share distinct social, cultural, and economic characteristics, including a

special relationship with their ancestral territories, that require special measures under international

human rights law in order to guarantee their physical and cultural survival”.69

28. Second, the Court clarifies how the right to property, as protected by Article 21 ACHR, should be

applied in practice. The Court makes clear that he right to property is inseparable from other fundamental

human rights, including non-derogable rights.70

It is, inter alia, linked to common Article 1 of the

International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’) and the International

Covenant on Economic, Social and Cultural Rights (hereinafter ‘ICESC’) (the right to self-

determination)71

, Articles 4 and 5 of the ACHR (the right to life and the right to physical, moral and

mental integrity), Articles 6 and 15 of the ILO Convention 169 (right to prior consultation) and Article 32

of UNDRIP (right to give or withhold consent).72

This is because the use or destruction of indigenous

lands can lead to a complete downfall of their physical integrity, culture and self-determination, and can

even mean the end of their existence.73

This progressive interpretation of Article 21 of the Convention

leads to a broad right for indigenous peoples to freely determine their own social, cultural and economic

development, including the right to enjoy their particular spiritual relationship with their ancestral lands.74

68

Ibid. §185. 69

Ibid. §86. 70

Saramaka v. Suriname, IACtHR, 28 November 2007, §91 and §92-96; see also M. YRIART, Jurisprudence in a

Political Vortex. The Right of Indigenous Peoples to Give or Withhold Consent to Investment and Development

Projects, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.479. 71

UN GA International Covenant on Civil and Political Rights, Treaty Series vol. 999, p. 171, 16 December 1966

(hereinafter ‘ICCPR’); UN GA International Covenant on Economic, Social and Cultural Rights, Treaty Series vol.

993, p. 3, 16 December 1966 (hereinafter ‘ICESCR’). 72

Saramaka v. Suriname, IACtHR, 28 November 2007, §90-96, §131, §136 and §168; see also M. YRIART,

Jurisprudence in a Political Vortex. The Right of Indigenous Peoples to Give or Withhold Consent to Investment

and Development Projects, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015,

p.480; T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,

University of Pennsylvania Journal of International Law, 2014, p.151-152. 73



2015, p.451. 74

Saramaka v. Suriname, IACtHR, 28 November 2007, §95; see also T.M. ANTKOWIAK, Rights, Resources, and

Rhetoric: Indigenous Peoples and the Inter-American Court, University of Pennsylvania Journal of International

Law, 2014, p.152.

23

29. Therefore, the Court imposes additional requirements for the restriction of indigenous rights.

Article 21 ACHR permits the right to property to be restricted for reasons of public utility or social

interest, and according to law. Restrictions have to be established by law, aimed at achieving a legitimate

goal in a democratic society, necessary and proportional.75

When it comes to development, investment,

exploration or extraction plans within indigenous territory, the State must also ensure that the planned

restriction does not amount to a denial of the indigenous people’s traditions and customs, endangering

their survival.76

In order to ensure this protection, the Court implements three safeguards: the State has a

duty to a) ensure effective participation of the indigenous peoples (including consultation), in conformity

with their customs and traditions, b) share benefits with the indigenous communities; and c) conduct a

prior environmental and social impact assessment to mitigate any negative effects.77

30. The Court further defines this duty to ensure effective participation as including an obligation on

the State to disseminate and receive information and to maintain constant communication with the

indigenous community. Consultations must be in good faith, be culturally appropriate, and have the intent

of reaching an agreement. Furthermore, they have to be held in accordance with the own indigenous

traditions and from the early stages of the development or investment plans. Throughout the

consultations, the indigenous peoples should be aware of possible risks of the project.78

31. In the case of large-scale development projects, “that may have a profound impact on the

property rights of the members”, the State has a duty not only to consult, but also to obtain free, prior and

informed consent.79

This conditional right to consent seems to correspond with the weakest interpretation

of UNDRIP, as will later be discussed.80

This interpretation of UNDRIP entails that consent is only

required in some drastic situations, while mere consultations with the objective of consent are required

prior to “any project affecting [indigenous] lands or territories”.81

However, in this thesis it is claimed

that there is an unconditional right to consent embedded in UNDRIP.82

Then, even though the Court

75

Art.21(1) and Art.21(2) ACHR; Saramaka v. Suriname, IACtHR, 28 November 2007, §127; see also Yakye Axa v.

Paraguay, IACtHR, 17 June 2005, §144. 76

Saramaka v. Suriname, IACtHR, 28 November 2007, §128. 77

Ibid. §129. 78

Ibid. §133 and §137. 79

Ibid. §134. 80

See infra ¶101. 81


of Pennsylvania Journal of International Law, 2014, p.166; Art. 32(2) United Nations Declaration on the Rights of

Indigenous Peoples. 82

See infra ¶101 and 134.

24

mentions UNDRIP in the Saramaka case, it does not apply the Declaration to its full extent.83

This is not

coherent with the fact that the OAS is a “regional agency within the United Nations”84

, and the

requirement in UNDRIP for “all agencies” to “promote the full application of the provisions” of the

Declaration.85

32. Still, it is a step forward from the mere consultation model of ILO Convention 169. There, as will

be discussed later, consent is just an aspirational objective: there is no true decision-making power vested

in the indigenous peoples.86

33. There is another important remark to all of this. While the importance of this case for the

development of indigenous rights cannot be underestimated, it is at the same time a step back. As said,

restrictions to the right to property can be justified when they are established by law, necessary,

proportional and when they have a legitimate aim in a democratic society.87

In the Saramaka case, it is the

first time that the Court states that the economic development of a society as a whole can be a legitimate

aim that can justify the use of indigenous lands or resources by private individuals.88

This might be

problematic because this ‘economic argument’ is what States often use to justify undermining indigenous

peoples’ land rights.89

Before, the Court had used this reasoning in favor of indigenous peoples: ‘the right

to property of private individuals can be restricted for the legitimate aim of preserving the cultural

identities of the indigenous communities in a democratic and pluralist society’.90

From now on, a balance

83

Saramaka v. Suriname, IACtHR, 28 November 2007, §131; Art. 32 United Nations Declaration on the Rights of

Indigenous Peoples; L. BURGORGUE-LARSEN, A. ÚBEDA DE TORRES et al., The Inter-American Court of Human

Rights: Case law and Commentary, New York, 2011, p.520; J. PASQUALUCCI, International Indigenous Land Rights:

A Critique of the Inter-American Jurisprudence of the Inter-American Court of Human Rights in Light of the United

Nations Declaration on the Rights of Indigenous People, Wisconsin International Law Journal, 2009, p.90. 84

Art. 1 OAS Charter of the Organization of American States, 30 April 1948. 85

Art. 4 UNDRIP. 86

See infra ¶92-96. 87

Art. 21(2) ACHR. 88


Commentary, New York, 2011, p.519; J. PASQUALUCCI, International Indigenous Land Rights: A Critique of the

Inter-American Jurisprudence of the Inter-American Court of Human Rights in Light of the United Nations

Declaration on the Rights of Indigenous People, Wisconsin International Law Journal, 2009, p.84. 89


International Law, Northwestern University Journal of International Human Rights, 2011, p.64; J. PASQUALUCCI,

International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the Inter-American Court

of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous People, Wisconsin

International Law Journal, 2009, p.51 and 84. 90

Yakye Axa v. Paraguay, IACtHR, 17 June 2005, §148.

25

needs to be found between these two forms of ‘collective’ interest: the economic development of a whole

society, and the interests of the indigenous community.91

34. It can also be seen as problematic that small-scale concessions can be granted without achieving

consent from the affected indigenous peoples.92

Only those lands and resources that are “essential for the

survival of their way of life” seem to benefit from the broad protection of Article 21 ACHR. Projects that

do not endanger the survival of an indigenous community, are permitted.93

This is not in line with the

previous case law of the Court which required special measures to protect the dignified life of vulnerable

indigenous peoples.94

The fact that not all resources on indigenous lands require the same protection, is

also not in line with ILO Convention 169, as Article 15(1) of this Convention states that “the natural

resources” on their lands should be safeguarded.95

Here, no difference is made between ‘essential’

resources and other resources: all resources are protected and indigenous people can “participate in the

use, management and conservation” hereof.96

However, it is positive that the Court clarifies in its

interpretation judgment that the notion of ‘survival’ equates “much more than physical survival”.

Therefore, the lands and resources that are needed to continue the traditional indigenous way of life, are

protected.97

4. 2012: Case of the Kichwa Indigenous People of Sarayaku v. Ecuador

35. In 2012, the Court rules in the Case of the Kichwa Indigenous People of Sarayaku v. Ecuador98

that Ecuador violated the right to property, to right to life, the right to personal integrity and the right to

91


Commentary, New York, 2011, p.519. 92


International Law, Northwestern University Journal of International Human Rights, 2011, p.64; J. PASQUALUCCI,

International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the Inter-American Court

of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous People, Wisconsin

International Law Journal, 2009, p.90-91. 93

Saramaka v. Suriname, IACtHR, 28 November 2007, §123; T.M. ANTKOWIAK, Rights, Resources, and Rhetoric:

Indigenous Peoples and the Inter-American Court, University of Pennsylvania Journal of International Law, 2014,

p.154. 94

See supra ¶23; T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American

Court, University of Pennsylvania Journal of International Law, 2014, p.155. 95

See infra ¶90-96; Art. 15(1) ILO Convention 169; J. PASQUALUCCI, International Indigenous Land Rights: A

Critique of the Inter-American Jurisprudence of the Inter-American Court of Human Rights in Light of the United

Nations Declaration on the Rights of Indigenous People, Wisconsin International Law Journal, 2009, p.80-81. 96

Art. 15(1) ILO Convention 169. 97

Case of the Saramaka People v. Suriname (Interpretation of the Judgment), IACtHR, Ser. C, No. 185, 12 August

2008, §37. 98

Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Judgment), IACtHR, Ser. C, No. 245, 27 June

2012 (hereinafter ‘Sarayaku v. Ecuador’).

26

judicial protection of the Sarayaku community living in the Amazon99

, by not ensuring a meaningful

consultation with them before permitting oil prospecting within their ancestral territory.100

Without any

type of consultation, a company had entered the Sarayaku’s territory and started prospective works (the

drilling of boreholes, the use of explosives, the felling of trees,..). This had an enormous impact on the

community’s traditional way of living and their ability to exercise their religious rites.101

36. This judgement further strengthens the framework of protection for indigenous peoples’ rights, by

focusing on the collective nature of indigenous rights and on the right to cultural identity, and by stating

that the duty to consult is a general principle of international law.102

The judgement also entails some

comprehensive guidelines on how consultations should be held exactly.

37. So first, the Court finds a violation of the right to property of the collective group.103

“[…]

Indigenous or tribal communities and peoples, united by their particular ways of life and identity,

exercise some rights recognized by the Convention on a collective basis […]”.104

Before, even though the

Court recognized a ‘collective’ right to property in indigenous cases, it only found violations to the

detriment of individual members of the group.105

38. Then, the Court affords a particular emphasis to the right to cultural identity, based on their

specific worldviews.106

The indigenous cultural identity forms an essential component of the special

relationship between the indigenous communities and their lands.107

Even though the Court already

mentioned the importance of cultural identity in previous indigenous cases, it was always raised in

relation to other rights (the right to property, the right to life,…).108

In Sarayaku, it is finally considered as

a fundamental right of a collective nature, justified by the principle of non-discrimination enshrined in

99

Sarayaku v. Ecuador, IACtHR, 27 June 2012, §341(2)-(4). 100

Ibid. §211. 101

Ibid. §105, §137 and §174. 102

G. SÄUBERLI, The Case of the Kichwa Peoples of the Sarayaku v. Ecuador. Constructing a Right to Consultation

and to Cultural Identity?, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.573. 103

Sarayaku v. Ecuador, IACtHR, 27 June 2012, §232; see also G. SÄUBERLI, The Case of the Kichwa Peoples of

the Sarayaku v. Ecuador. Constructing a Right to Consultation and to Cultural Identity?, in Y. HAECK et al., The

Inter-American Court of Human Rights, Cambridge, 2015, p.577. 104

Sarayaku v. Ecuador, IACtHR, 27 June 2012, §231. 105


and to Cultural Identity?, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.577;



Sarayaku v. Ecuador, IACtHR, 27 June 2012, §217 and §159. 107

Ibid. §159. 108

Yakye Axa v. Paraguay, IACtHR, 17 June 2005, §146-148 and §167-168; Saramaka v. Suriname, IACtHR, 28

November 2007, §51, §124, §147, §200 and §203.

27

Article 1(1) and reinforced by Article 29(b) of the Convention.109

Still, it is not an independent right, but

rather a means to interpret other rights.110

39. The Court also reiterates the right to be consulted in advance about state legislative and

administrative measures that directly affect indigenous peoples and lands. Instead of just applying the

safeguards established in Saramaka, the Court goes beyond by stating that the right to consultation is also

“a general principle of international law”.111

From now on, the obligation to carry out a consultation

process is triggered whenever “certain interests of indigenous peoples and communities are about to be

affected”.112

In Saramaka there was only an obligation to consult when the right to property was

restricted. The right to consultation is also linked to the right to cultural identity, as it is important to

consult indigenous peoples when certain measures can affect their cultural and social life.113

40. In Sarayaku, the Court also elaborates on how this free, prior and informed consultation should be

held exactly. The consultation should be (a) prior, (b) held in good faith and with the aim of reaching an

agreement, (c) appropriate and accessible, (d) informed; also, there should be (e) an environmental impact

assessment.114

It is the obligation of the State –and not of the indigenous peoples– to prove that all these

aspects are effectively guaranteed.115

41. ‘Prior’ consultation means that it must be undertaken in advance of the state taking any

administrative or legislative measures or before implementing a project.116

42. About the obligation to conduct an ‘environmental, social and cultural impact study’, the Court

states that this should ensure that the planned restrictions on the indigenous right to property will not

amount to a denial of their survival as a people.117

The study must be carried out with the participation of

109

Sarayaku v. Ecuador, IACtHR, 27 June 2012, §213 and §217; see also Art. 29(b) of the Convention that states

that “No provision of this Convention shall be interpreted as restricting the enjoyment or exercise of any right or

freedom recognized by virtue of the laws of any State Party or by virtu39e of another convention to which one of the

said states is a party.” 110



Sarayaku v. Ecuador, IACtHR, 27 June 2012, §164-166. 112

Ibid. §165 113

Ibid. §217. 114

Ibid. §178. 115

Ibid. §179. 116

Ibid. §180. 117

Ibid. §205.

28

the affected communities, and should allow them to make an informed decision, taking into account all

the potential risks, including environmental and health risks, relating to the plan.118

Example: In practice, impact studies often do not reach the indigenous communities. When a

major hydroelectric dam project was being built in Chile, some studies described the harmful

effects that this project could have on the indigenous peoples living in the area. The state

authorities rejected these reports, and they were not distributed to the indigenous communities.119

43. ‘In good faith’ means that consultations must allow for internal discussions, according to the

indigenous peoples’ traditions. Effective participation in the decision-making process should be ensured,

both at the early stages of the project planning and at all stages of the legislative process.120

The

consultations should be held with the aim of achieving agreement or consent and must therefore not be

understood ‘as a mere tick box in a state’s checklist’, but should embody a genuine dialogue “in a climate

of trust and mutual respect”.121

In no way, the indigenous peoples should be coerced or pushed in a

certain direction, for example by bribing them.122

The fact that numerous meetings have taken place, is

not sufficient as such. They should demonstrate a clear determination to obtain a consensus.123

Another

important statement of the Court is that the obligation to consult cannot be outsourced to private

companies or third parties, but is the complete responsibility of the state.124

Example: Guatemala does not seem to respect this last obligation. There are no governmental

authorities that carry out consultation processes. Therefore, for certain projects, participation

processes have been carried out by the company that is responsible for the execution of the

project.125

44. In Sarayaku, the Court does not elaborate on the right to free, prior and informed consent as such.

It only talks about a right to consultation with the aim of achieving consensus. As the Court hereby refers

118

Ibid. §205, §206 and §208. 119

J. PASQUALUCCI, International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the

Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of Indigenous

People, Wisconsin International Law Journal, 2009, p.96. 120


Sarayaku v. Ecuador, IACtHR, 27 June 2012, §185-186 and §193; G. SÄUBERLI, The Case of the Kichwa

Peoples of the Sarayaku v. Ecuador. Constructing a Right to Consultation and to Cultural Identity?, in Y. HAECK et

al., The Inter-American Court of Human Rights, Cambridge, 2015, p.588-589. 122


Ibid. §198. 124

Ibid. §187. 125

DPLF, Right to Free, Prior, and Informed Consultation and Consent in Latin America, 2015, p.20.

29

to ILO Convention 169126

, which entails a mere consultation model, it seems that it is taking a step back

from previous case law.127

In Saramaka, the Court had indeed been more progressive and adopted a duty

to obtain consent when large-scale development projects could have a profound impact on the rights of

the indigenous people.128

However, it is stated that the duty to consult in good faith is a “general principle

of international law”, that is triggered whenever legislative or administrative measures may affect

indigenous rights or when their interests risk being violated.129

Even though this does not equal a right to

veto of indigenous peoples, it is a broad right that can safeguard genuine and meaningful participation.130

The Court thus expands the right to consultation but at the same time seems to curtail the right to

consent.131

45. In Sarayaku v. Ecuador, the Court demonstrates that the right to property, the right to consultation

with the aim of achieving consensus and the right to cultural identity are interdependent rights that ensure

indigenous survival together.132

5. 2015: Case of the Kaliña and Lokono peoples v. Suriname

46. In 2015, the Court issues its judgement in the case of the Kaliña and Lokono Peoples v.

Suriname.133

The complaints brought forth by these indigenous peoples stated that the ownership to the

lands they traditionally occupied, was not recognized by the State. Suriname had also distributed parts of

these lands to non-indigenous peoples (ia. for mining concessions) and established some nature reserves

herein. All of this happened without consultations with or the consent of the Kaliña and Lokono

indigenous peoples.134

47. Concerning the right to juridical personality, the Court again touches upon the definition of

indigenous peoples, as Suriname argued that some members of the Kaliña and Lokono peoples had been

126


T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court,

University of Pennsylvania Journal of International Law, 2014, p.157. 128

See supra ¶31. 129

See supra ¶39. 130


and to Cultural Identity?, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.590-

591. 131





Case of the Kaliña and Lokono peoples v. Suriname (Judgement), IACtHR, Ser. C, No. 309, 25 November 2015

(hereinafter ‘Kaliña and Lokono v. Suriname’). 134

Kaliña and Lokono v. Suriname, IACtHR, 25 November 2015, §2 and §100.

30

integrated with the non-indigenous population, and therefore lost their rights. The Court mentions the

importance of self-identification, and also states that the fact that certain members “do not retain the

traditions of the indigenous peoples as such”, does not deprive the indigenous people as a whole of its

rights.135

It hereby refers to the right to self-determination of Article 5 of UNDRIP and of the ICCPR and

the ICESC.136

The Court reiterates that indigenous peoples exercise certain rights on a collective basis.137

Recognition of this collective judicial personality is necessary to ensure their collective property rights.138

Therefore, Suriname violated the indigenous peoples’ right to juridical personality under Article 3 of the

Convention.139

48. Concerning the property rights of the Kaliña and Lokono people, The Court assesses that

Suriname has failed to recognize these rights.140

The State did not provide information regarding which

titles had been issued to non-indigenous individuals and the indigenous peoples’ ownership over their

traditional lands was not recognized.141

49. Concerning the restrictions to this right to property (the mining concessions and the nature

reserves within the ancestral lands of the indigenous peoples) without prior consultation, the State tried to

use the argument that there was no violation of the right to property as only concessions for small-scale

mining projects were handed out.142

These activities had no substantial effect on the lifestyle of the

indigenous peoples. “There is only small-scale interference that does not rise to the level of a Convention

violation.”143

This is what we already had noted as problematic concerning the Saramaka judgement.144

The Court is again vague when addressing this issue. It repeats that States should ensure that projects

within ancestral lands do not endanger the survival of the indigenous people.145

It also repeats the

Saramaka safeguards: when restricting indigenous’ property rights, States must ensure their effective

participation, guarantee benefit-sharing and issue an impact assessment.146

This effective participation

requirement means that indigenous peoples should be consulted “on any matters that might affect them”

135

Ibid. §78 en §80. 136

Ibid. §80. 137

Ibid. §81. 138

Ibid. §85. 139

Ibid. §87 and §167(1). 140

Ibid. §99 and §115. 141

Ibid. §99, §115 and §167(2). 142

Ibid. §31 and §117. 143

Ibid. §31. 144

See supra ¶34. 145

Kaliña and Lokono v. Suriname, IACtHR, 25 November 2015, §124. 146

Ibid. §125.

31

and “the purpose of such consultations should be to obtain their free and informed consent”.147

While

reiterating that large-scale development projects require the FPIC of indigenous peoples involved148

, the

Court does not elaborate on the argument of the State about small-scale mining. It only states that there is

a violation of the right to property as there was no consultation at all.149

50. Again, the Court misses an opportunity to take a firm stance on the issue of consent, by only

focusing on the right to consultation. It leaves us with the vague concept of consultation “aimed at

obtaining […] free, prior and informed consent”.150

The only new thing is that the Court clearly states

that the right to free, prior and informed consultation is also derived from the right to self-

determination.151

6. Criticism

51. Next to the criticism on the ambiguity of the Court on the principle of FPIC as already discussed

above, there is also some criticism on the fact that the Court uses the right to property as the basis for

indigenous rights. Even though it links other rights (right to cultural identity, right to consultation) to this

communal property, this can be problematic.152

First, because this might limit the autonomy of indigenous

peoples. Indigenous communities who would decide to allow certain projects on their territories, or who

would sell parts of their ancestral lands, could risk endangering all the rights that are linked to their right

to property.153

Second, because it has often been found that the right to property is a weak right, despite

the Court’s Saramaka safeguards, as domestic and international law allows interference with property

under a wide range of circumstances.154

Some scholars therefore argue that other rights, such as the right

to self-determination, the right to a dignified life, or cultural rights, can serve as better conceptual

strongholds for indigenous peoples’ rights.155

The new approach of the Court in Kaliña and Lokono v.

147

Ibid. §127. 148

Ibid. §128. 149

Ibid. §132 and §167(3). 150

Ibid. §167(3). 151

Ibid. §119. 152


University of Pennsylvania Journal of International Law, 2014, p.113 and 120. 153


University of Pennsylvania Journal of International Law, 2014, p.120-121 and 160; K. ENGLE, Indigenous rights

claims in international law: self-determination, culture, and development, in D. ARMSTRONG, Routledge Handbook

of International Law, New York, 2009, p.339. 154


University of Pennsylvania Journal of International Law, 2014, p.121 and 162. 155


University of Pennsylvania Journal of International Law, 2014, p.121 and 172; K. ENGLE, Indigenous rights claims

in international law: self-determination, culture, and development, in D. ARMSTRONG, Routledge Handbook of

32

Suriname, mentioning the right to self-determination as a base for the right to consultation, is therefore a

positive evolution.

52. Another point of criticism is that the Saramaka safeguards are limited and can render the right to

consultation meaningless. Even if a State conducts a consultation process, issues an impact study and

shares benefits with the affected community, it could still ignore the indigenous peoples’ concerns and

implement the project as planned before, causing serious damage on their ancestral lands and resources.156

C. Inter-American Commission on Human Rights

53. The Commission has also developed considerable jurisprudence on indigenous rights, and has

often taken more progressive stands than the Court when it comes to the right to FPIC.157

For example, in

the Awas Tingni v. Nicaragua case, the Commission held that the State “is actively responsible for

violations of the right to property […] by granting a concession […] without the consent of the Awas

Tingni indigenous community”.158

As stated before, the Court does not even mention the words

‘consultation’ or ‘consent’ in its final judgement.159

54. This recognition and promotion of respect for indigenous rights has been present since the

Commission’s establishment in 1959.160

In numerous country and thematic reports and through

precautionary measures and cases, the Commission elaborated on these rights.161

We will discuss some of

the most remarkable ones here.

International Law, New York, 2009, p.339; R. SHRINKHAL, Free, Prior and Informed Consent as a Right of

Indigenous Peoples, Journal of National Law University, Delhi, 2014, p.55. 156




Industries Review, Sustainable Development Law & Policy, 2004, p.51-52. 158


See supra ¶21. 160

Mary and Carrie Dann v. United States, IACHR, Report No. 75/02, 27 December 2002, §126. 161


University of Pennsylvania Journal of International Law, 2014, p.138-139.

33

1. 1983: Report on the Situation of Human Rights of a Segment of the

Nicaraguan Population of Miskito Origin

55. In 1983, the Commission brings out a ‘Report on the Situation of Human Rights of a Segment of

the Nicaraguan Population of Miskito Origin’.162

There had been conflicts in Nicaragua between the

government and the Miskito ‘ethnic group’ over a new agrarian reform programme, where groups of

Miskito people were compulsory relocated. The Miskito claimed that many of ‘their’ lands would be

redistributed through the new policy, and some of their belongings on their ancestral lands had already

been destroyed, and that this violated ia. their right to property and their right to self-determination.163

56. The concept of ‘indigenous people’ is not used in this report yet, but the Commission does

recognize that “certain ethnic and racial groups” require extra protection.164

The Commission also

recognizes that there is a right to self-determination in international law, but states that “this does not

mean […] that it recognizes the right to self-determination of any ethnic group as such”.165

Even though

the Commission does not accept the right to self-determination in this case, it is interesting that it already

mentions the concept, considering that the Court only touched upon this in Saramaka People v. Suriname

in 2007, and only truly used this concept for indigenous peoples in Kaliña and Lokono v. Suriname in

2015.166

Also, the Commission makes clear that, despite the lack of the right to self-determination for the

Miskito people, they do deserve special protection that can preserve their cultural identity and the use of

their ancestral lands.167

The Commission thus focused on the right to cultural identity from the very

beginning, while this is a rather new approach of the Court.168

57. What is most surprising, is that the Commission already mentions ‘consent’. When considering

the freedom of movement and residence of Article 22 of the Convention, it states that the concept of

162

IACHR, Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito Origin,

Report OEA/Ser.L./V.II.62, 1983. 163


Report OEA/Ser.L./V.II.62, 1983, Part I B(4), Part II A(1) to (7), Part II B(8) and Part II F(3); see also K. ENGLE,

On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights,

The European Journal of International Law, 2011, p.153-154. 164


Report OEA/Ser.L./V.II.62, 1983, Part II B(1) to (4). 165

Ibid. Part II B(8) and (9). 166

See supra ¶28, 47 and 50. 167


Report OEA/Ser.L./V.II.62, 1983, part II B(15). 168

See supra ¶38; see also K. ENGLE, On Fragile Architecture: The UN Declaration on the Rights of Indigenous

Peoples in the Context of Human Rights, The European Journal of International Law, 2011, p.153-154.

34

consent is generally applicable when cases involve relocation. The involuntary replacement of indigenous

communities violates international human rights law.169

2. 1997-2000: Country Reports about Ecuador, Colombia and Peru

58. Country reports can be interesting as they often include a chapter dealing with indigenous rights,

displaying how the Commission interprets State obligations.170

The early reports discussed here show the

development of these rights by the Commission, before the Court issued its first judgement in this regard.

59. A Commission report from 1997 about Ecuador171

is interesting for the later development of

FPIC, as it mentions the importance of indigenous participation in decisions affecting the environment,

with access to understandable information. This is linked to Article 23 of the American Convention, the

‘right to participate in government’.172

The report also states that respect for the special ties of indigenous

peoples with their lands and resources is essential for their physical and cultural survival. Therefore, it

recommends the State to “ensure meaningful and effective participation of indigenous representatives in

the decision-making processes about development and other issues which affect them and their cultural

survival”.173

It reiterates that special protection for indigenous communities is required for them to be

able to exercise their rights fully.174

60. In a report about Colombia in 1999175

, the Commission talks about how exploitation of natural

resources found at indigenous lands and infrastructure projects hereon can negatively affect indigenous

peoples. Therefore, the State should ensure that these projects “should be preceded by appropriate

consultations with and, to the extent legally required, consent from the affected indigenous communities.

The State should also ensure that such exploitation does not cause irreparable harm to the religious,

169


Report OEA/Ser.L./V.II.62, 1983, Part II E(27); see also COMMISSION ON HUMAN RIGHTS, Standard-Setting: Legal

Commentary on the Concept of Free, Prior and Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005,

p.6; F. MACKAY, Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s Extractive

Industries Review, Sustainable Development Law & Policy, 2004, p.53; IWGIA, FPP, F. MACKAY, Guide to

Indigenous Peoples’ rights in the Inter-American Human Rights System, 2002, p.64. 170


2002, p.78-79. 171

IACHR, Report on the Situation of Human Rights in Ecuador, Report OEA/Ser.L./V.II.96, 1997. 172

IACHR, Report on the Situation of Human Rights in Ecuador, Report OEA/Ser.L./V.II.96, 1997, Chapter VIII;

see also IWGIA, FPP, F. MACKAY, Guide to Indigenous Peoples’ rights in the Inter-American Human Rights

System, 2002, p.67. 173

IACHR, Report on the Situation of Human Rights in Ecuador, Report OEA/Ser.L./V.II.96, 1997, Chapter IX. 174

Ibid. 175

IACHR, Third Report on the Human Rights Situation in Colombia, Report OEA/Ser.L./V/II.102, 1999.

35

economic or cultural identity and rights of the indigenous communities.”176

It seems like the Commission

allows States to decide themselves whether consent is required in a specific case or not. In the report, the

Commission also mentions the importance of proper land demarcation processes that enable indigenous

communities to enjoy effective control over their lands.177

This was later picked up by the Court in Awas

Tingni v. Nicaragua in 2001.178

61. In 2000, the Commission assesses the human rights situation in Peru.179

In the report’s chapter

about indigenous communities, the Commission is worried about the large-scale exploitation of natural

resources from indigenous territories, “without consulting or obtaining the consent of the communities

affected”, as this can endanger their survival.180

The Commission hereby refers to Article 15 of ILO

Convention 169, ratified by Peru in 1994, that provides for consultation and benefit-sharing in the case of

exploration and exploitation projects on indigenous lands.181

Therefore, the Commission recommends

Peru to decide on these projects “[…] with the participation of and in consultation with the peoples

interested, with a view to obtaining their consent […]” 182

With the establishment of this concept of

consultation with the aim of consent, the Commission further specifies the State obligation it introduced

in the report above about Colombia. Again, the Commission is way ahead of the Court.

3. 2002: Mary and Carrie Dann v. United States

62. The case of Mary and Carrie Dann v. United States, brought before the Commission in 2002, is

its first full merits case concerning indigenous rights.183

It is built upon the principles established by the

Court in Awas Tingni in 2001. In this case, Marie and Carrie Dann, both members of the Western

Shoshone indigenous people, claimed that the United States violated their rights under the Declaration by

appropriating their ancestral lands as federal property, by physically removing and threatening to remove

176

Ibid. Chapter X. 177

Ibid. 178

See supra ¶21. 179

IACHR, Second Report on the Situation of Human Rights in Peru, Report OEA/Ser.L/V/II.106, 2000. 180

Ibid. Chapter X, §26. 181

Art. 15(2) ILO Convention 169; IACHR, Second Report on the Situation of Human Rights in Peru, Report

OEA/Ser.L/V/II.106, 2000, Chapter X, §7 and §26; see also D.C. BALUARTE, Balancing Indigenous Rights and a

State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169,

Sustainable Development Law & Policy, 2004, p.12; IWGIA, FPP, F. MACKAY, Guide to Indigenous Peoples’ rights

in the Inter-American Human Rights System, 2002, p.81. 182

IACHR, Second Report on the Situation of Human Rights in Peru, Report OEA/Ser.L/V/II.106, 2000, Chapter X,

§39(5). 183

Mary and Carrie Dann v. United States, IACHR, Report No. 75/02, 27 December 2002 (hereinafter ‘Mary and

Carrie Dann v. United States’).

36

their livestock from these lands, and by permitting gold prospecting activities hereon.184

The United

States argued that the Western Shoshone traditional land rights had been extinguished and that the matters

raised by the Dann’s do not involve human rights violations but are rather a legal dispute.185

63. The Commission finds that the United States violated the right to equality under the law, the right

to a fair trial and the right to property of the Dann’s.186

Because the United States is not a party to the

American Convention, the Commission bases its arguments on the American Declaration. It states that

this Declaration should be applied in the context of “[…] evolving rules and principles of human rights

law in the Americas and in the international community more broadly, as reflected in treaties, custom and

other sources of international law”.187

The Commission uses ie. The International Covenant on Civil and

Political Rights (ICCPR), the Convention on the Elimination of All Forms of Racial Discrimination, ILO

Convention 169 and the (then Draft) American Declaration on the Rights of Indigenous Peoples to clarify

which indigenous rights should be respected.188

64. In general, States should have special attention for indigenous peoples’ particular historical,

cultural, social and economic situation and experience, for the collective aspect of their rights, and for the

connection they have with their traditional lands.189

There is an obligation to recognize the property and

ownership rights of lands, territories and resources they have historically occupied. These titles can only

be changed by mutual consent between the state and the indigenous peoples. This entails that they should

have full knowledge of the nature hereof. 190

Therefore, States have to take special measures “to ensure

recognition of the particular and collective interest that indigenous people have in the occupation and use

of their traditional lands and resources and their right not to be deprived of this interest except with fully

informed consent, under conditions of equality, and with fair compensation.”191

The Commission

specifies that all members of the community have to be “fully and accurately informed of the nature and

consequences of the process and provided with an effective opportunity to participate individually or as

collectives.”192

184

Mary and Carrie Dann v. United States, IACHR, 27 December 2002, §35-43. 185

Ibid. §76. 186

Ibid. §172. 187

Ibid. §124. 188

Ibid. §127. 189

Ibid. §125 and §128. 190

Ibid. §130. 191

Ibid. §131. 192

Ibid. §140.

37

65. The Mary and Carrie Dann case is a crucial case, as it is the first case in which the Commission

explicitly mentions the concept of FPIC. This is still way before the Saramaka case of the Court in 2007.

Still, it is not completely clear if the Commission wants to establish a real right or rather an aspirational

objective.

4. 2004: Maya indigenous community of the Toledo District v. Belize

66. In 2004, the Commission reiterates the principles it had previously established. In the Maya

Communities of the Toledo District v. Belize193

, Belize had granted concessions to foreign companies to

start oil extraction and logging on lands traditionally occupied by the Maya Communities.194

The

Commission repeats that indigenous communal lands should be effectively delimited, demarcated and

recognized.195

This is crucial for indigenous peoples, as “the lands they traditionally use and occupy are

critical to their physical, cultural and spiritual vitality”.196

Property rights are not defined exclusively by

formal entitlements, but also include indigenous communal property based on custom and tradition.197

67. The Commission clarifies that the obligation of the State, embedded in Mary and Carrie Dann v.

United States, to obtain consent when determining or changing land titles, is equally applicable when

making decisions that will have an impact upon indigenous lands and their communities.198

When

granting concessions within these lands, there should therefore be “effective consultations with and the

informed consent of”199

the communities. “The duty to consult is a fundamental component of the State’s

obligations in giving effect to the communal property right”.200

68. By failing to recognize the Maya peoples’ communal right to property, by granting concessions

on their lands without consultation or consent etc., Belize violated the Maya peoples’ right to property,

their right to equality before the law and their right to judicial protection as protected by the American

Declaration.201

193

Maya indigenous community of the Toledo District v. Belize, IACHR, Report No. 40/04, 12 October 2004

(hereinafter ‘Maya indigenous community v. Belize’). 194

Maya indigenous community v. Belize, IACHR, 12 October 2004, §5. 195

Ibid. §194. 196

Ibid. §155. 197

Ibid. §117. 198

Ibid. §142. 199

Ibid. §153. 200

Ibid. §155. 201

Ibid. §193-196.

38

69. With this ruling, the Commission defines that consultation that results in consent is required to

protect the communal right to property of indigenous peoples.202

It seems that the Commission sees this

consent as more than just an aspirational objective. It also makes clear that clear recognition and

protection of indigenous land rights is crucial, as without this the free, prior and informed consent will not

provide the protection it is designed to provide.203

5. 2009: Thematic Report on Indigenous and tribal peoples’ rights over their

ancestral lands and natural resources

70. In 2009, the IACHR brings out an important thematic report, titled ‘Indigenous and tribal

peoples’ rights over their ancestral lands and natural resources: Norms and Jurisprudence of the Inter‐

American Human Rights System’.204

In this extensive report, the Commission discusses numerous

important concepts that already have been established concerning indigenous rights, such as the

obligation for states to adopt special measures, the broad right to communal property (including the right

to natural resources), the right to delimitation and demarcation of indigenous territory, the right to cultural

identity,…205

The Commission clearly states that the basis for most of these indigenous rights is Article

21 of the Convention.206

We already discussed why this might not be the best right to build other rights

upon.207

Throughout the report, the Commission extensively refers to ILO Convention 169.208

It also

refers to UNDRIP.209

It accepts the right to self-determination embedded in this declaration.210

202

J. ANAYA, Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource Extraction,

Arizona Journal of International and Comparative Law, 2005, p.16; A. PAGE, Indigenous Peoples’ Free Prior and

Informed Consent in the Inter-American Human Rights System, Sustainable Development Law & Policy, 2004,

p.19. 203

M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land tenure: challenges and possibilities,

Land Reform, Land Settlement and Cooperatives, 2004, p.10; F. MACKAY, Indigenous Peoples’ Rights to Free, Prior

and Informed Consent and the World Bank’s Extractive Industries Review, Sustainable Development Law & Policy,

2004, p.57. 204


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009. 205


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §49-50,

§59-67, §94-102, §160-162 and §181-183. 206

Ibid. §2 and §10. 207

See infra ¶51. 208


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §12-14 and

§51. 209

Ibid. §19. 210

Ibid. §165-166.

39

71. The report mentions the devastating impact certain measures or projects can have on the lives of

indigenous peoples211

. Any plan that may affect the integrity of indigenous lands and thus restricts the

right to property, triggers special safeguards.212

The Commission makes clear that a state cannot approve

of a project that may threaten the indigenous survival ánd must at the same time apply the other Saramaka

safeguards: good faith consultations “and, where applicable, consent”, an impact assessment and benefit-

sharing. In the case of expropriation, extra rules are applicable.213

The Commission claims that these

safeguards are in accordance with UNDRIP. In this thesis, it is found that this is not completely true.214

72. The Commission then elaborates on this concept of consultation, establishing that this is a broad

obligation that is applicable in multiple situations.215

It is linked to Article 23 of the Convention (the right

of participation), but also to the right to communal property and cultural identity. 216

This is taken over by

the Court some years later in Sarayaku v. Ecuador.217

The Commission makes clear that every

consultation process should have the goal of obtaining consent, but truly obtaining this consent is only a

requirement in limited situations.218

The Commission hereby refers to the Saramaka interpretation

judgement, that states that the duty to obtain consent “depends upon the level of impact of the proposed

activity”.219

In some specific circumstances, consent is always mandatory: in the case of relocation, when

indigenous peoples would be deprived of the capacity to use their lands and resources necessary for their

subsistence, and in the case of disposal of hazardous materials.220

73. “The requirement of consent must be interpreted as a heightened safeguard for the rights of

indigenous peoples, given its direct connection to the right to life, to cultural identity and other essential

human rights, in relation to the execution of development or investment plans that affect the basic content

of said rights. The duty to obtain consent responds, therefore, to a logic of proportionality in relation to

211

Ibid. §205-208. 212

Ibid. §220-222. 213

Ibid. §225. 214

See supra ¶31; see infra ¶101 and 134. 215


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §273. 216

Ibid. §274-275. 217

See supra ¶39. 218


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §329-334. 219

Case of the Saramaka People v. Suriname (Interpretation of the Judgment), IACtHR, Ser. C, No. 185, 12 August

2008, §17; IACHR, Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources:

Norms and Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009,

§330. 220


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §334.

40

the right to indigenous property and other connected rights.”221

It is positive that the Commission brings

some clarity to the concept of consent. In general, this report of the Commission is more in line with the

Court’s jurisprudence, and less progressive than its former statements.

6. 2015: Thematic Report on Indigenous Peoples and Extractive Industries

74. In 2015, the Commission issues another thematic report on the rights of indigenous peoples in the

case of extractive industries.222

The Commission expresses its concern about the impact extractive and

development activities still have on the lives of indigenous peoples. There is still a lack of proper

supervision by the states, there are not enough mechanisms that can prevent human rights violations, and

victims face massive barriers when wanting to find justice.223

It is therefore highly important for States to

implement an adequate legal framework, to supervise the activities and prevent illegal ones, to guarantee

effective participation, to prevent violence against the indigenous communities and to ensure access to

adequate and effective remedies.224

75. One of the biggest concerns of the Commission is the lack of application of the right to

consultation and, where applicable, consent.225

What is new here, compared to the last thematic report, is

that the Commission now also links this right to Article 13 of the Convention, the right to freedom of

thought and expression.226

The Commission upholds the notion of a broad right to consultation as a

general principle of international law, applicable in multiple circumstances and with the objective of

consent, but with the true obligation to obtain consent only applicable in certain cases.227

Now the

Commission makes clear what this ‘objective to obtain consent’ entails. The concerns of the indigenous

peoples should have an influence on the final decisions.228

“There should be clear evidence indicating

that plans and projects were modified taking into account the opinions, concerns, and contributions of the

indigenous […] peoples at issue.”229

When the results of the consultation process are not completely

incorporated in the final plan, the indigenous peoples have a right to know the reasons why.230

The

Commission also clarifies that the broad right to consultation entails that indigenous peoples can decide

221

Ibid. §333. 222

IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection

in the Context of Extraction, Exploitation, and Development Activities, Report OEA/Ser.L/V/II., Doc. 47/15, 2015. 223

Ibid. §2, §18-19 and §22. 224

Ibid. §66, §98, §106, §119 and §128. 225

Ibid. §173-175 and §177. 226

Ibid. §107 and §162. 227

Ibid. §150, §159, §160 and §163. 228

Ibid. §179. 229

Ibid. §181. 230

Ibid. §182.

41

not to initiate a consultation process, for example in the case of indigenous peoples in voluntary

isolation.231

76. Mandatory consent is applicable in large-scale projects. The Commission now clarifies that this is

a flexible concept not “limited to a specific category”.232

Some activities are prima facie large-scale, for

example “dams that involve the permanent, partial, or total flooding of [indigenous] lands and

territories”, or “those that imply significant impacts in […] sacred places”.233

In other circumstances, the

“human and social impact of the activity” should be taken into account.234

An activity that seems small-

scale because of its volume, can also require consent because of its grave impact on the environment.235

Consent is still required in the cases of relocation and storage of dangerous materials as well.236

77. This report is thus very insightful as it clarifies some of the ambiguities within the Court’s

jurisprudence.

7. Criticism

78. The progressive approach of the Commission is often not accepted by the States.237

When the

Commission adopts precautionary measures to prevent irreparable harm to indigenous peoples, States

repeatedly not comply with this.

Example: In 2011, the Commission requests the construction of the Belo Monte hydroelectric dam

project on the Xingu River in Brazil to be halted, until precautionary measures have been met.

The Commission states that Brazil should ensure a prior consultation process, issue a social and

environmental impact study, and protect the life and integrity of the indigenous communities in

the area. The Brazilian government makes clear that it disagrees with this action of the

Commission by withdrawing its ambassador to the OAS. It also threatens to stop financial

support of the OAS. In the meantime, the dam continues operations. Later, the Commission

231

Ibid. §262 and §206. 232

Ibid. §186. 233

Ibid. §187. 234

Ibid. §188. 235

Ibid. §189. 236

Ibid. §192 and §193. 237


University of Pennsylvania Journal of International Law, 2014, p.119.

42

modifies the precautionary measures. There is no immediate obligation to conduct a consultation

process anymore. It is troublesome that the Commission softens its position under pressure.238

D. American Declaration on the Rights of Indigenous Peoples

79. The adoption of the ‘American Declaration on the Rights of Indigenous Peoples’ by the OAS on

the 15th of June 2016 is a new milestone for the protection of indigenous rights within Latin-America.

239

The adoption of this declaration is the result of decades of advocacy, lobbying and negotiation. In 1989

already, the OAS General Assembly passed a resolution on the drafting of an own indigenous rights

instrument, shortly after ILO Convention 169 came out.240

While the first drafts received a lot of

criticism, mainly for the lack of proper indigenous input and participation in the drafting process, this

final version can be seen as an extensive framework that strengthens the respect for their rights.241

The

Declaration discusses various issues related to indigenous rights, such as the right to self-determination,

the right to cultural identity, the right to protection of a healthy environment, and of course the right to the

lands and resources they have traditionally occupied.242

It also entails special measures for peoples in

voluntary isolation.243

80. The right to consultation and consent is also mentioned in the final version of the Declaration.

Indigenous peoples have a general right to “participate in the decision making in matters which would

affect their rights”.244

In different other provisions, the Declaration mentions the concept of free, prior and

informed consent. States should have consultations in good faith in order to obtain indigenous peoples’

FPIC before adopting measures that may affect them, or that concern their intellectual property, or that

affect their lands or resources.245

Indigenous peoples deserve redress when their cultural or spiritual

property is taken without their FPIC.246

Sterilization or other medical experiments are also forbidden

238

IACHR, Indigenous Communities of the Xingu River Basin, Pará, Brazil, PM No.382/10, 2011; see also T.M.

ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court, University of

Pennsylvania Journal of International Law, 2014, p.119 and p.186-187. 239

OAS, American Declaration on the Rights of Indigenous Peoples, 15 June 2016. 240


2002, p.95. 241

OAS, A 17-Year Wait Pays off for Indigenous Peoples, Press Release E-075/16, 15 June 2016. 242

Art. III, VI, XIII, XIX and XXV American Declaration on the Rights of Indigenous Peoples, 15 June 2016. 243

Ibid. Art. XXVI. 244

Ibid. Art. XXI(2) (Right to Autonomy or Self-government). 245

Ibid. Art. XXIII(2) (Contributions of the indigenous legal and organizational systems), Art. XXVIII(3)

(Protection of Cultural Heritage and Intellectual Property) and Art. XXIX(4) (Right to Development). 246

Ibid. Art. XIII(2) (Right to Cultural Identity and Integrity).

43

without FPIC.247

Lastly, military activities shall not take place in indigenous territories, “unless justified

by a relevant public interest or otherwise freely agreed with or requested by the indigenous peoples

concerned”.248

It seems that the Declaration is weaker in this regard than what has already been

established by the Court and the Commission. There is only a right to consultation with the aim of

reaching consent, and true consent is only required in exceptional circumstances. There is no mentioning

of the full right to consent in the case of large-scale development projects that can have a profound impact

on the indigenous communities. Still, some countries fear that this Declaration entails a true veto right.

Example: Colombia upholds some reservations to the Declaration. The State breaks with the

obligation to have consultations in order to obtain FPIC before implementing measures that may

affect the indigenous communities or their lands or resources, as this could amount to a “possible

veto”.249

These reservations of Colombia completely undermine the goal of the Declaration.

E. Intermediate Conclusion

81. Within the Organization of American States, there has been a lot of attention for the rights of

indigenous peoples, and the right to free, prior and informed consent has been a slowly developing norm

through all of this. Both general participation rights and also the specific right to consent in the case of

extractive industries are evolving from vague concepts into more defined rights.

82. The Court’s jurisprudence has been crucial in this regard, but lacks some clarity. First, the Court

established some important principles that are essential to fully grasp the concept of FPIC with regard to

extractive industries on indigenous lands. It emphasized the special relationship indigenous peoples have

with their lands and developed the right to communal property.250

It mentioned the importance of cultural

identity251

and self-determination252

, and how the interrelationship between all these rights is essential for

the indigenous peoples’ survival253

.

83. In the Saramaka v. Suriname case in 2007, the Court established that States should implement

some safeguards when restricting the indigenous right to property. Among these safeguards, there is a

duty to ensure meaningful consultations with the aim of obtaining consent with indigenous peoples when

247

Ibid. Art. XVIII(3) (Health). 248

Ibid. Art. XXX(6) (Right to Peace, Security, and Protection). 249

OAS, American Declaration on the Rights of Indigenous Peoples, 15 June 2016, footnotes 3 and 4. 250

See supra ¶19 and 20. 251


See supra ¶47. 253

See supra ¶29, 39 and 45.

44

projects will affect their lands, and a duty to obtain consent when they can endanger their survival or

when they are large-scale projects.254

In the Sarayaku v. Ecuador case in 2012, the Court expanded this

concept of consultation as being a general principle of law that is applicable in many circumstances, and

is more clear about the requirements of this process. At the same time, the judgement is unclear about the

duty to obtain consent, and hereby it enlarges the uncertainty that Saramaka introduced.255

In general, the

Court has not taken a completely clear stance on the right to FPIC, and leaves room for exploitation.

84. The Commission has been more progressive on the right to free, prior and informed consent in its

early country reports and judgements, seeing this as more than just an aspirational objective of a

consultation process.256

The Commission thus first sees the concept of FPIC as entailing a broad right:

consent is not just a mere objective. Later however, in its thematic reports, the Commission is more in

line with the Court. The content of the right itself gets narrowed again -consent is more often a mere

objective than a true requirement- but the concept can be applied in more situations. There is now a broad

general right to consultation in multiple cases, always with the aim of obtaining consent. This means that

the concerns of the indigenous peoples should have an impact on the final decision. True consent is only

required in the case of ‘large-scale projects’, but this is a broad and flexible concept.257

85. The American Declaration on the Rights of Indigenous peoples, adopted in 2016, again brings

back some ambiguity, as it goes back to the general right to consultation with the aim of consent, and

does not mention the right to FPIC in case of large-scale development projects.258

However, together with

the Court’s jurisprudence and the Commissions statements, it can be a strong framework.

254

See supra ¶29-31. 255


See supra ¶59-61. 257

See supra ¶72-73 and 75-76. 258

See supra ¶80.

45

CHAPTER III. United Nations

A. Introduction

86. In 1975 already, the International Court of Justice (hereinafter ‘ICJ’), as the principal judicial

organ of the United Nations, lays the foundation for the later articulation of the right to free, prior and

informed consent worldwide.259

In its advisory opinion on the Western Sahara case concerning the

decolonization of the disputed territory of the Western Sahara260

, the ICJ states that the principle of self-

determination should be applied to bring colonial situations “to a speedy end”, including that “a free and

genuine expression of the will of the peoples concerned” is required.261

The ICJ refers to some General

Assembly resolutions to define that freely informed consent of decolonized groups is a necessary

precondition to establish their position within the new independent State.262

In this case this means that

the native peoples of the Western Sahara have a right to determine “their future political status by their

own freely expressed will”.263

87. In this chapter we will discuss the later development of indigenous rights within the United

Nations (hereinafter ‘UN’). Within its mandate to promote and encourage “respect for human rights and

for fundamental freedoms for all without distinction as to race, sex, language, or religion”, the UN has

played a leading role in defining human rights of indigenous communities and in establishing standards

for the protection of these rights.264

We will cover the rights embedded in ILO Convention 169 and in

UNDRIP. We will also cover the Charter-based bodies (such as the Human Rights Council) and the

Treaty Supervisory bodies that have made statements on indigenous peoples and their right to consent.

259

Art. 92 Charter of the United Nations, 26 June 1945; A.J. KINNISON, Indigenous Consent: Rethinking U.S.

Consultation Policies in Light of the U.N. Declaration on the Right of Indigenous Peoples, Arizona Law Review,

2011, p.1323; COMMISSION ON HUMAN RIGHTS, Standard-Setting: Legal Commentary on the Concept of Free, Prior

and Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, §10. 260

Western Sahara, ICJ Advisory Opinion, 16 October 1975. 261

Ibid. §55. 262

Ibid. §56-58. 263

Ibid. §70. 264

Art. 1(3) Charter of the United Nations, 26 June 1945; D.B. SUAGEE and C.T. STEARNS, Indigenous Self-

Government, Environmental Protection, and the Consent of the Governed: A Tribal Environmental Review Process,

Colorado Journal of International Environmental Law and Policy, 1994, p.3.

46

B. Declarations and Treaties concerning Indigenous Rights

1. ILO Convention 169

i. ILO Convention 107

88. The International Labour Organization (hereinafter ‘ILO’), the UN Specialized Agency

concerned with social justice, has played a huge role in the protection of indigenous rights, by issuing the

first international treaties that created binding obligations for States in this regard. 265

89. In 1959, it adopts the ‘Indigenous and Tribal Populations Convention No.107’ (hereinafter ‘ILO

Convention 107’).266

This treaty is considered problematic however, as it is written from a rather

paternalistic vision on indigenous peoples. It is mostly aimed at integrating indigenous communities into

the ‘modern society’.267

Even though ILO Convention 107 recognizes a right of ownership of traditionally

occupied lands268

and also some participation rights, namely that indigenous peoples should give their

consent in the case of relocation269

, this is very limited. This early ‘right to consent’ can be restricted “in

accordance with national laws and regulations for reasons relating to national security, or in the interest

of national economic development or of the health of the said population”.270

Even though the treaty is no

longer open for ratification, in Latin-America it is still binding on 5 states.271

ii. ILO Convention 169

90. In 1991, the ‘Indigenous and Tribal Peoples Convention No. 169’ (hereinafter ‘ILO Convention

169’) enters into force.272

This improved version of ILO Convention 107 will be, for a long time,

considered as the most vital legal text concerning indigenous rights, and definitely concerning their

265



ILO Indigenous and Tribal Populations Convention, C107, 26 June 1957 (hereinafter ‘ILO Convention 107’). 267


Human Rights, The European Journal of International Law, 2011, p.156; T. WARD, Right to Free, Prior and



Art. 11 ILO Convention 107. 269

Ibid. Art. 12(1). 270

Ibid. Art. 12(1). 271

The five Latin-American States are Cuba, Dominican Republic, El Salvador, Haiti and Panama. See

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312252:

NO . 272

ILO Indigenous and Tribal Peoples Convention, C169, 27 June 1989 (hereinafter ‘ILO Convention 169’).

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312252:NO

http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:11300:0::NO:11300:P11300_INSTRUMENT_ID:312252:NO

47

‘communal right to land’.273

It ascribes the same rights to both indigenous and tribal peoples without

discrimination.274

It is only ratified by 22 countries worldwide, but it is binding on most Latin-American

states.275

91. As stated before, ILO Convention 169 introduces one of the most used definitions of the term

‘indigenous peoples’. Article 1(1)(b) defines indigenous peoples as “peoples in independent countries

who are regarded as indigenous on account of their descent from the populations which inhabited the

country, or a geographical region to which the country belongs, at the time of conquest or colonisation or

the establishment of present state boundaries and who, irrespective of their legal status, retain some or

all of their own social, economic, cultural and political institutions”.276

Article 1(2) mentions self-

identification as a fundamental criterion for determining which communities can be seen as indigenous.277

In general, ILO Convention 169 protects indigenous peoples’ right to cultural identity, different

consultation and participation rights and the collective right to possession and property of lands and

resources.278

However, there is no mentioning of ‘the right to self-determination’, as this was highly

contested by States.279

92. The most central principles of ILO Convention can be found in Articles 6 and 7. Article 6 states

that governments shall consult indigenous peoples regarding legislative or administrative measures that

may affect them directly.280

Indigenous peoples should also be able to participate freely at all levels of

decision-making in institutions and bodies responsible for policies and programmes which concern

them.281

These consultations should be carried out in good faith and “with the objective of achieving

273


Commentary, New York, 2011, p.500; D.C. BALUARTE, Balancing Indigenous Rights and a State’s Right to Develop

in Latin America: The Inter-American Rights Regime and ILO Convention 169, Sustainable Development Law &

Policy, 2004, p.11. 274

Art. 1(1) and 3(1) ILO Convention 169; M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous

land tenure: challenges and possibilities, Land Reform, Land Settlement and Cooperatives, 2004, p.9. 275

In Latin-America, it has been ratified by Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica,

Ecuador, Fiji, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru and Venezuela. See

http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314 . 276

Art. 1(1)(b) ILO Convention 169. 277


See for example Art. 2(2)(b), Art. 14 and Art. 15 ILO Convention 169. 279


Human Rights, The European Journal of International Law, 2011, p.157. 280

Art. 6(1)(a) ILO Convention 169. 281

Art. 6(1)(b) ILO Convention 169.

http://www.ilo.org/dyn/normlex/en/f?p=1000:11300:0::NO:11300:P11300_INSTRUMENT_ID:312314

48

agreement or consent to the proposed measures”.282

This does not mean that it is required to reach a full

consensus, but it does mean that meaningful participation is vital.283

Example: In Chile, ILO Convention 169 is implemented in national legislation. However, it seems

that a more restrictive interpretation of Article 6 of the Convention is embedded in Supreme

Decree No. 66 of 2013. While the Convention states that consultation is required regarding any

legislative or administrative measures that ‘may’ affect the indigenous communities, the Chilean

law requires that these measures should have a certain effect and a specific impact on them

before consultation is applicable.284

93. Article 7 defines that indigenous peoples “shall have the right to decide their own priorities for

the process of development […] and to exercise control […] over their own economic, social and cultural

development. In addition, they shall participate in the formulation, implementation and evaluation of

plans and programmes for national and regional development which may affect them directly.”285

This

recognition of their own notion of development is a huge step forward from the State-centric view of

development in ILO Convention 107. It shows a change of conception: it is no longer the goal to

integrate indigenous communities into the rest of society. Instead, they can preserve their own way of

living.

94. Articles 6 and 7 can be seen as reflecting the spirit of free, prior and informed consultations with

the aim of achieving consent, and apply to each provision of ILO 169 that follows.286

In ILO Convention

169 it is further specified that consultation is needed when States retain “the ownership of mineral or sub-

surface resources or rights to other resources pertaining to [indigenous] lands”.287

In this case, the

people concerned should also participate in the benefits of these exploration or exploitation activities.

Consultation is also required prior to transferring land rights outside of the indigenous community.288

282


D.C. BALUARTE, Balancing Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-

American Rights Regime and ILO Convention 169, Sustainable Development Law & Policy, 2004, p.10; F.

MACKAY, Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s Extractive


DPLF, Right to Free, Prior, and Informed Consultation and Consent in Latin America, 2015, p.18; IWGIA, The

Indigenous World 2014, 2014, p.203-204. 285



American Rights Regime and ILO Convention 169, Sustainable Development Law & Policy, 2004, p.10. 287


Art. 17(2) ILO Convention 169.

49

95. Obtaining free and informed consent, rather than conducting a mere consultation with the aim of

consent, is obligated in the case of relocation of indigenous peoples.289

Normally, they should not be

removed from the lands which they occupy at all290

, but if relocation is necessary as an exceptional

measure, consent is required. Still, ILO Convention 169 does not contain a veto right in this case. It is

stated that “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.”291

Still, there are some other requirements that protect the indigenous peoples in case of relocation. They

should always be returned to their lands, or given functionally equivalent lands or monetary compensation

when return is not possible, and they should be fully compensated for any resulting or injury.292

96. In total, ILO Convention 169 can be seen as an important piece of ‘hard law’293

that establishes

multiple indigenous rights and that introduces the concept of consultation with the aspirational objective

of consent. Still, the failure to achieve such consent will lead to unilateral decision-making power of the

State.294

The right to free, prior and informed consent in cases of relocation is also in no way a veto right.

As discussed before, the Inter-American Court of Human Rights established a broader right to consent in

the Saramaka v. Suriname case in 2007, but only seems to refer to this mere consultation model in

Sarayaku v. Ecuador in 2012.295

iii. ILO Committee of Experts

97. The ILO Committee of Experts on the Application of Conventions and Recommendations

(hereinafter ‘Committee of Experts’) monitors compliance with the ILO Conventions by reviewing State

reports.296

Here, the Committee of Experts often explains the importance of applying the principles

embedded in ILO 169 for the development of Latin-America.297

It repeatedly emphasizes the prominence

289




Art. 16(3), 16(4) and 16(5) ILO Convention 169. 293


Commentary, New York, 2011, p.510. 294



2015, p.510. 295

See supra ¶29-31 and 44. 296

OHCHR, Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No. 9/Rev. 2, 2013,

p.26. 297


American Rights Regime and ILO Convention 169, Sustainable Development Law & Policy, 2004, p.9.

50

of participation rights, but focuses on meaningful consultation rather than on the aspirational objective to

obtain consent.298

Example: In 2009, the Committee of Experts observes that the Guatemalan government failed to

undertake consultations with the Sipacapa and San Miguel Ixtahuacan indigenous people before

granting licenses for the Marlin Mine project. The Committee states that further activities at the

Marlin mine should be suspended until the consultation process as required by ILO Convention

169 has taken place.299

2. United Nations Declaration on Indigenous Peoples (UNDRIP)

98. In 2007, an important piece of soft law concerning indigenous rights is added within the United

Nations context, with the adoption of the ‘United Nations Declaration on the Rights of Indigenous

Peoples’ (hereinafter ‘UNDRIP’).300

UNDRIP is the result of more than 25 years of advocacy,

negotiations and lobbying by indigenous peoples’ rights advocates.301

Even though the declaration is not a

binding instrument, it does show that international legal norms are evolving in a certain direction.302

Still,

the final version that is adopted by the General Assembly, contains a lot of compromises, mostly related

to the right to self-determination.303

99. UNDRIP contains a number of collective rights for indigenous peoples, including participatory

rights, extensive land rights and cultural rights.304

This broad recognition of collective rights is

unprecedented in international human rights law.305

298



Ibid. p.77. 300

United Nations Declaration on the Rights of Indigenous Peoples, A/RES/61/295, 13 September 2007 (hereinafter

‘UNDRIP’). 301


Human Rights, The European Journal of International Law, 2011, p.141; T. WARD, Right to Free, Prior and




International Law, Northwestern University Journal of International Human Rights, 2011, p.58-59; M. DAVIS,

Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples,

Melbourne Journal of International Law, 2008, p.27. 303

See infra ¶100; see also K. ENGLE, On Fragile Architecture: The UN Declaration on the Rights of Indigenous

Peoples in the Context of Human Rights, The European Journal of International Law, 2011, p.144. 304

See for example Art. 15, 18, 19, 25-32 UNDRIP. 305


Human Rights, The European Journal of International Law, 2011, p.148.

51

100. One of the most crucial rights is the right to self-determination. “They [indigenous peoples] freely

determine their political status and […] their economic, social and cultural development”.306

In

exercising this right to self-determination, “[they] have the right to autonomy or self-government in

matters relating to their internal and local affairs, […]”.307

It is also highlighted that their status depends

on self-identification.308

This has always been strongly endorsed by indigenous peoples themselves.309

The right to self-determination for indigenous peoples was often contested by states, but the inclusion of

the principle in UNDRIP seems to finally settle down this issue in favour of indigenous peoples.310

Still, it

has been watered down through the different drafts.311

Before, the provision on the right to self-

determination included a list of areas over which indigenous peoples would have control. This was

deleted. External forms of self-determination (‘a right to secession’) were also left out the Declaration.312

The right to self-determination seems to be the biggest strength and weakness of UNDRIP at the same

time: it is the first time that the right to self-determination is clearly pronounced, but it is also a soft

version adapted to the States’ concerns.

101. In UNDRIP, the right to free, prior and informed consent is based upon and linked to this right to

self-determination.313

Article 10 and 29 state that FPIC is explicitly required in the case of relocation314

and when hazardous materials will be stored or disposed on indigenous lands315

. Article 19 and Article

32(2) further state that States should also “consult and cooperate in good faith with the indigenous

peoples concerned […] in order to obtain their free, [prior] and informed consent” when legislative or

administrative measures that may affect indigenous peoples are adopted or implemented316

, and when

projects affecting their lands or resources are approved317

. The difference in wording between the first

two (‘no relocation shall take place without FPIC’ and ‘no storage or disposal of hazardous materials

306

Art. 3 UNDRIP. 307

Art. 4 UNDRIP. 308

Art. 33(1) UNDRIP. 309

M. COLCHESTER, T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land tenure: challenges and possibilities,

Land Reform, Land Settlement and Cooperatives, 2004, p.10. 310


University of Pennsylvania Journal of International Law, 2014, p.126-127; R. SHRINKHAL, Free, Prior and Informed

Consent as a Right of Indigenous Peoples, Journal of National Law University, Delhi, 2014, p.55-56. 311


Human Rights, The European Journal of International Law, 2011, p.144-146. 312

Ibid. p.145-147. 313



Art. 10 UNDRIP. 315

Art. 29 UNDRIP. 316

Art. 19 UNDRIP. 317

Art. 32(2) UNDRIP.

52

shall take place without FPIC’ ) and the last two (‘in order to obtain their FPIC’) seems to indicate that

obtaining FPIC is sometimes a true condition, and other times just an objective.318

This ambiguity is one

of the weak points of the Declaration. It can be brought back to the general discussion whether or not the

right to FPIC should be seen as a true veto right or rather as a way of ensuring meaningful participation of

indigenous peoples when decisions might impact their lands, territories, and resources.319

However, it

seems that UNDRIP wanted to introduce a general right to FPIC, much broader than the one embedded in

ILO Convention 169.320

This is most clearly stated by the Permanent Forum on Indigenous Issues.321

Example: This broad right to FPIC was exactly the reason why Colombia first abstained from

voting on the text. According to them, Article 19 and 32 are “in direct contradiction with

Colombia’s internal legal system”. As these are crucial articles of the Declaration, the statements

of the government undermine its entire goal.322

In 2016, Colombia will express these same

concerns with the adoption of the American Declaration on the Rights of Indigenous Peoples.323

102. When reading ILO Convention 169 in light of Articles 19 and 32(2) UNDRIP, the aspirational

objective of consent could be reinterpreted as being an imperative objective.324

Still, UNDRIP is only

‘soft law’.

103. Despite the criticism, UNDRIP expands the collective rights of indigenous peoples and is a huge

step forward for their right to culture and self-determination.325

It is an important international standard,

318



HRC, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous

peoples, James Anaya, UN Doc. A/HRC/12/34, 2009, §48; T. WARD, Right to Free, Prior and Informed Consent:

Indigenous Peoples’ Participation Rights within International Law, Northwestern University Journal of

International Human Rights, 2011, p.58. 320



2015, p.510; A.J. KINNISON, Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N.

Declaration on the Right of Indigenous Peoples, Arizona Law Review, 2011, p.1328; J. PASQUALUCCI, International

Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of the Inter-American Court of Human

Rights in Light of the United Nations Declaration on the Rights of Indigenous People, Wisconsin International Law

Journal, 2009, p.90-91. 321

See infra ¶134. 322

GA, General Assembly adopts Declaration on rights of indigenous peoples: ‘Major step forward’ towards human

rights for all, says president, UN Doc. GA/10612, 2007; see also M. YRIART, Jurisprudence in a Political Vortex.

The Right of Indigenous Peoples to Give or Withhold Consent to Investment and Development Projects, in Y.

HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.500. 323

See supra ¶80. 324



2015, p.511.

53

and it seems to correspond to a large extent with the views of the bodies within the United Nations that

deal with indigenous rights.326

C. Charter-based Bodies concerned with Indigenous Rights

1. Human Rights Council

104. The United Nations Human Rights Council (hereinafter ‘UNHRC’ or ‘the Council’), as a

subsidiary body of the General Assembly, replaced the United Nations Commission on Human Rights

(hereinafter ‘UNCHR’ or ‘the Commission’) in 2006. The Council has a mandate to promote respect for

the protection of human rights and to investigate violations in this regard.327

In 1982, the Commission on

Human Rights established a Working Group on Indigenous Populations (hereinafter ‘Working Group’),

which was a catalyst for many initiatives related to indigenous peoples. The Working Group was later

substituted by the Expert Mechanism on the Rights of Indigenous Peoples. In 2001, the UNCHR decided

to also appoint a Special Rapporteur on the rights of Indigenous Peoples. Up till now, 3 Special

Rapporteurs have issued numerous reports that enforce indigenous’ protection.

i. The Working Group on Indigenous Populations under the Commission on Human Rights

105. In 1946, the ‘United Nations Commission on Human Rights’ is established to promote and

protect human rights and set standards that can govern the conduct of States. Its mandate is to examine,

monitor and report on either human rights situations in specific countries or territories, or on worldwide

trends of human rights violations.328

One of the themes addressed by the Commission is the protection of

indigenous peoples. For this purpose, it establishes a ‘Working Group on Indigenous Populations’ in

1982, as a subsidiary organ of the Sub-Commission on the Promotion and Protection of Human Rights, to

further develop existing standards and to encourage dialogue.329

This Working Group is a flexible organ

325


Human Rights, The European Journal of International Law, 2011, p.141; V. TOKI, Indigenous Rights – Hollow

Rights?, Waikato Law Review, 2011, p.30-31. 326

See infra ¶152-155; see also T. WARD, Right to Free, Prior and Informed Consent: Indigenous Peoples’

Participation Rights within International Law, Northwestern University Journal of International Human Rights,

2011, p.58-59. 327

GA, Resolution adopted by the General Assembly on 15 March 2006: Human Rights Council, UN Doc.

A/RES/60/251, 2006, Art. 1-3. 328

See http://www.ohchr.org/EN/HRBodies/CHR/Pages/Background.aspx . 329

ECOSOC, Study of the problem of discrimination against indigenous populations, Resolution 1982/34, 1982; see

also V. TOKI, Indigenous Rights – Hollow Rights?, Waikato Law Review, 2011, p.29.

http://www.ohchr.org/EN/HRBodies/CHR/Pages/Background.aspx

54

that provides an opportunity for indigenous peoples to let their voices be heard. Indigenous peoples’

organisations and representatives attend the annual Working Group meetings.

106. The most important work concerning indigenous rights of the Working Group on Indigenous

Populations is the drafting of the Declaration on the Rights of Indigenous Peoples, that plays an essential

part in the formation of today’s human rights standards for indigenous communities.330

However, the

Working Group fails to reach an agreement on the Declaration during the First International Decade of

the World’s Indigenous People (1995-2004). The version that was adopted by the newly formed Human

Rights Council, during the Second International Decade of the World’s Indigenous People (2005-2014),

was very different from the first draft and contained a lot of compromises. Additional compromises were

made for the adoption of the final version by the General Assembly.331

107. Within the Working Group, Erica-Irene Daes, as a Chairperson and Rapporteur, stands out when

it comes to the development of the right to FPIC. In her working paper of 2004 on the sovereignty of

indigenous peoples over their natural resources, she states that a broad concept of self-determination

exists that carries with it “the essential right of permanent sovereignty over natural resources”.332

She

supports the fact that the combination of this right to self-determination with other developing rights leads

to “an increased recognition of indigenous peoples’ right to give or withhold their prior and informed

consent to activities within their lands and territories and to activities that may affect their lands,

territories, and resources.”333

She deplores the fact that subsurface resources are often declared by law to

be the property of the State, as she believes that indigenous peoples should be regarded as owning these

resources in most of the cases.334

It is also noteworthy that she states: “Few if any limitations on

indigenous resource rights are appropriate, because the indigenous ownership of the resources is

associated with the most important and fundamental rights: the right to life, food, and shelter, the right to

self-determination, and the right to exist as a people.”335

Therefore she declares in the recommendations

that in most situations “States may not take indigenous resources, even with fair compensation, because

330

See supra ¶103. 331

See supra ¶100; see also K. ENGLE, On Fragile Architecture: The UN Declaration on the Rights of Indigenous

Peoples in the Context of Human Rights, The European Journal of International Law, 2011, p.143-144. 332

COMMISSION ON HUMAN RIGHTS, Indigenous peoples’ permanent sovereignty over natural resources: Final report

of the Special Rapporteur, Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2004/30, 2004, §17; see also T. WARD,

Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within International Law,

Northwestern University Journal of International Human Rights, 2011, p.55. 333

COMMISSION ON HUMAN RIGHTS, Indigenous peoples’ permanent sovereignty over natural resources: Final report

of the Special Rapporteur, Erica-Irene A. Daes, UN Doc. E/CN.4/Sub.2/2004/30, 2004, §38. 334

Ibid. §43-45. 335

Ibid. §48.

55

to do so could destroy the future existence of the indigenous culture and society […]”.336

These

statements can serve as a strong foundation for a broad right to free, prior and informed consent.

108. As the right to free, prior and informed consent is also a main concern that is often raised by the

indigenous peoples’ organisations during the annual meetings of the Working Group337

, it is decided that

a specific working paper on this principle should be prepared.338

A preliminary working paper, prepared

jointly by (a member of) the Working Group and an indigenous NGO (the Tebtebba Foundation, an

indigenous non-governmental organization with special consultative status with the ECOSOC based in

the Philippines339

) comes out in 2004.340

An expanded working paper is submitted the following year.341

109. This working paper, after demonstrating that the right to FPIC is gaining widespread recognition,

goes into the substantive and procedural base of the concept. “The universal and continuing applicability

of the fundamental right of peoples to self-determination is the general principle underlying free, prior

and informed consent.”342

The concept of self-determination is inevitably linked with the rights to land

and resources. The combination of these two rights, and thus the fact that indigenous communities should

be able to freely dispose of their natural lands and resources, leads to a collective right to free, prior and

informed consent.343

To be meaningful, this should include “a right to withhold consent to certain

development projects or proposals”.344

The paper clarifies that respecting the right to FPIC means

ensuring that indigenous peoples are not coerced, pressured or intimidated, that the consent is sought and

freely given prior to the authorisation or start of development activities, that they should have full

information about the scope and impact of the activities, and that their ultimate choice to give or withhold

336

Ibid. §61. 337

See for example COMMISSION ON HUMAN RIGHTS, Report of the Working Group of Indigenous Populations on its

twentieth session, UN Doc. E/CN.4/Sub.2/2002/24, 2002, p.7; COMMISSION ON HUMAN RIGHTS, Report of the

Working Group of Indigenous Populations on its twenty-first session, UN Doc. E/CN.4/Sub.2/2003/22, 2003, p.15. 338

COMMISSION ON HUMAN RIGHTS, Report of the Working Group of Indigenous Populations on its twenty-first

session, UN Doc. E/CN.4/Sub.2/2003/22, 2003, p.23. 339


Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, p.3. 340

COMMISSION ON HUMAN RIGHTS, Report of the Working Group on Indigenous Populations on its twenty-second

session, UN Doc. E/CN.4/Sub.2/2004/28, 2004. 341


Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005. 342


Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, p.9; see also Art.1 ICCPR and Art.1 ICESCR. 343


Informed Consent, UN Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, p.11-12. 344

Ibid. p.12.

56

consent should be respected.345

The Working Group thus clearly states that the right to FPIC includes a

veto right, which is later, because of the resistance of the States, not really embedded in UNDRIP.

110. During the last session of the Working Group in 2006, it is made clear that, also after the adoption

of UNDRIP, further codes of good practice and implementation guidelines on the principle of free, prior

and informed consent will need to be constructed and disseminated.346

ii. The Expert Mechanism on the Rights of Indigenous Peoples under the Human Rights Council

111. In 2006, the UN Member States approve the establishment of a new Human Rights Council that

replaces the Commission on Human Rights.347

During its first session, the Declaration on the Rights of

Indigenous Peoples is adopted, which is a huge step forward for the indigenous right to self-determination

and, to a smaller extent, for their right to FPIC.348

The UNHRC addresses indigenous rights through

multiple of its mechanisms and also establishes an Expert Mechanism on the Rights of Indigenous

peoples (hereinafter ‘Expert Mechanism’), as a subsidiary body that can provide it with thematic

expertise.349

112. In 2011, the Expert Mechanism brings out a report on the right to participation in decision-

making for indigenous peoples.350

Herein it assesses ‘good practices’ based on the criteria of UNDRIP.351

The Expert Mechanism indicates that the right to be consulted is already well established in international

law, and that now the focus is more on the right to “actually control the outcome of such processes”, and

thus the right to FPIC.352

While the Expert Mechanism first seems prudent in its statements, by saying that

it is established within the United Nations that there is a duty to effectively consult “and, in some cases,

to seek to obtain the consent of indigenous peoples”353

, the report later entails a progressive interpretation

of UNDRIP in this regard. “[UNDRIP] requires that the free, prior and informed consent of indigenous

peoples be obtained in matters of fundamental importance for their rights, survival, dignity and well-

345

Ibid. p.15. 346

HUMAN RIGHTS COUNCIL, Report of the Working Group on Indigenous Populations on its twenty-fourth session,

UN Doc. A/HRC/Sub.1/58/22, 2006, p.15 and 24. 347

GA, Resolution adopted by the General Assembly on 15 March 2006: Human Rights Council, UN Doc.

A/RES/60/251, 2006. 348


HRC, Expert mechanism on the rights of indigenous peoples, UN Doc. A/HRC/6/36, 2007. 350

HRC, Final report of the study on indigenous peoples and the right to participate in decision-making: Report of

the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/18/42, 2011. 351

HRC, Final report of the study on indigenous peoples and the right to participate in decision-making: Report of

the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/18/42, 2011, §12. 352

Ibid. Annex §2. 353

Ibid. Annex §11.

57

being. In assessing whether a matter is of importance to the indigenous peoples concerned, relevant

factors include the perspective and priorities of the indigenous peoples concerned, the nature of the

matter or proposed activity and its potential impact on the indigenous peoples concerned, taking into

account, inter alia, the cumulative effects of previous encroachments or activities and historical inequities

faced by the indigenous peoples concerned.”354

The Expert Mechanism seems to indicate that the right to

FPIC is a general concept applicable to all articles of UNDRIP. It then specifies that in certain specific

articles the right to obtain FPIC is required, and hereby refers to ia. Article 19 and Article 32(2)

UNDRIP.355

This seems to clarify the ambiguity of these articles as discussed before: obtaining FPIC is

not just an objective but a true condition.356

Example: The report of the Expert Mechanism indicates ‘good practices’ of Bolivia. In 2010, the

Bolivian Ministry of Hydrocarbons and Energy undertook a consultation process with the

Guaraní indigenous peoples of Charagua Norte and Isoso that respected their traditional

customs, before starting a hydrocarbon exploration project in their territory. Eventually the

indigenous communities gave their consent, which was embedded in a signed agreement reached

between them and the State.357

113. However, when the Expert Mechanism undertakes questionnaire surveys in 2016 to know the

current position of States and indigenous peoples’ organizations on implementation strategies to attain the

goals of UNDRIP, it seems that this progressive interpretation of UNDRIP is not implemented in practice.

“Several indigenous peoples’ organizations emphasized that free, prior and informed consent was either

not referred to or was not well articulated in laws and policies and provided examples of large-scale

public works, such as hydroelectric dams, or extractive industries pursuing their activities on indigenous

peoples’ lands without their consent.”358

354

Ibid. §22. 355

Ibid. 356


OXFAM, Case Study: Bolivian Government Consultation with the Guaraní Indigenous Peoples of Charagua Norte

and Isoso, 2010, p.1; HRC, Final report of the study on indigenous peoples and the right to participate in decision-

making: Report of the Expert Mechanism on the Rights of Indigenous Peoples, UN Doc. A/HRC/18/42, 2011, §65. 358

HRC, Summary of responses to the questionnaire seeking the views of States and indigenous peoples on best

practices regarding possible appropriate measures and implementation strategies in order to attain the goal of the

United Nations Declaration on the Rights of Indigenous Peoples, UN Doc. A/HRC/33/58, 2016, §1 and §31.

58

iii. Special Rapporteurs on the Rights of Indigenous Peoples

114. Another important mechanism in the protection of indigenous rights within the

UNCHR/UNHRC, is the Special Rapporteur on the Rights of Indigenous Peoples (the former ‘Special

Rapporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples’)

(hereinafter ‘Special Rapporteur’).359

The job of the Special Rapporteur is to identify and promote best

practices, to gather information on alleged violations, to promote UNDRIP, and so on.360

In this regard, he

or she participates in meetings, hears representatives of indigenous peoples and organizations, provides

technical assistance for domestic law reform, drafts recommendations,… Up till now, there have been 3

Special Rapporteurs. We will discuss the statements on the right to FPIC in some of their annual reports.

a. 2001-2008: Rodolfo Stavenhagen

115. From 2001 till 2008, Rodolfo Stavenhagen is the Special Rapporteur. In 2003, he issues a report

on the impact of large-scale development projects on indigenous communities.361

He states that, in the

case of major development projects on indigenous lands, “it is likely that their communities will undergo

profound social and economic changes that are frequently not well understood […]. Large-scale

development projects will inevitably affect the conditions of living of indigenous peoples. Sometimes the

impact will be beneficial, very often it is devastating, but it is never negligible.”362

There can be loss of

traditional lands, negative health impacts, destruction and pollution of the traditional environment and

even harassment and violence.363

Later, the Inter-American Court on Human Rights will refer to this

paragraph in the Saramaka v. Suriname case, to justify the right to consultation and, in some cases,

consent.364

116. The Special Rapporteur concludes that “free, prior and informed consent is essential for the

human rights of indigenous peoples in relation to major development projects”, and thus a “necessary

359

HRC, Human rights and indigenous peoples: mandate of the Special Rapporteur on the rights of indigenous

peoples, UN Doc. A/HRC/RES/15/14, 2010. 360

HRC, Human rights and indigenous peoples: mandate of the Special Rapporteur on the situation of human rights

and fundamental freedoms of indigenous people, UN Doc. A/HRC/RES/6/12, 2007, §1(a)(b) and (g). 361

UNCHR, Human rights and indigenous issues: Report of the Special Rapporteur on the situation of human rights

and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. E/CN.4/2003/90, 2003. 362

Ibid. p.2. 363

Ibid. 364

Saramaka v. Suriname, IACtHR, 28 November 2007, §135.

59

precondition for such strategies and projects”.365

This includes a right to say no.366

The Special

Rapporteur thus already sees the obligation to obtain consent as a true condition rather than an objective,

but only in the case of “major development projects”. This is more in line with the later jurisprudence of

the Inter-American Court of Human Rights than with UNDRIP.

b. 2008-2014: James Anaya

117. From 2008 until 2014, James Anaya is appointed Special Rapporteur. Throughout his reports, he

comments on the right to FPIC, from cautious statements in his first ones to explicit requirements in his

last.

118. In his report from 2009, James Anaya discusses the duty to consult, as a concept that is derived

“from the overarching right of indigenous peoples to self-determination”, and linked to other human

rights such as the right to cultural integrity and the right to property.367

He is still cautious in interpreting

UNDRIP, stating that Article 19 of the Declaration “should not be regarded as according indigenous

peoples a general “veto power” over decisions that may affect them, but rather as establishing consent as

the objective of consultations with indigenous peoples.”368

Anaya acknowledges that the wording of

UNDRIP suggests a need for consultations in the nature of “negotiations towards mutually acceptable

arrangements”, rather than the consultations embedded in ILO Convention 169 that are more in the nature

of one-sided information processes where indigenous peoples cannot truly influence the outcome.369

The

duty to obtain consent is thus more an objective than a requirement (except in the cases of relocation or

storage of toxic waste within indigenous lands), but the strength of the objective can still vary according

to the circumstances.370

The more an activity will affect indigenous lands, the greater the level of

participation should be.371

In general, the Special Rapporteur regrets that the discussion on the right to

365

UNCHR, Human rights and indigenous issues: Report of the Special Rapporteur on the situation of human rights

and fundamental freedoms of indigenous people, Rodolfo Stavenhagen, UN Doc. E/CN.4/2003/90, 2003, §66 and

§73. 366

Ibid. §66. 367

HRC, Promotion and protection of all human rights, civil, political, economic, social and cultural rights,

including the right to development: Report of the Special Rapporteur on the situation of human rights and

fundamental freedoms of indigenous peoples, James Anaya, UN Doc. A/HRC/12/34, 2009, §41. 368

Ibid. §46. 369

Ibid. 370

Ibid. §47. 371

A.J. KINNISON, Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on

the Right of Indigenous Peoples, Arizona Law Review, 2011, p.1327.

60

consultation and consent is often focused on whether or not this entails a ‘veto power’. The point of this

right is to build dialogue and mutual understanding, not to impose the will of one party over another.372

119. Some scholars strongly argue that it ís crucial to focus on whether or not participation entails a

‘veto power’.373

They wonder how ‘meaningful’ participation can be if there is no opportunity for the

indigenous peoples to say ‘no’. If the State knows that there is no ability to withhold consent, indigenous

peoples are after all left with little bargaining power.374

If indigenous communities can only utter their

worries and try to modify the project in this regard, the consultation process will only be a mere exchange

of views.375

120. In 2011, Anaya brings out a report devoted to the impact of extractive industries within

indigenous territory.376

He shares the concerns of the former Special Rapporteur on the long-term effects

of extractive industries on the collective cultural, social, environmental and economic rights of indigenous

peoples.377

Even though developments have taken place in this regard, for example by the adoption of

UNDRIP, violations of these rights still take place on a large scale.378

In an addendum to the report, the

Special Rapporteur further explains his previous statements on the fact that a consultation process should

build dialogue and mutual understanding. He considers that consultations “should involve a genuine

opportunity for indigenous peoples to present their views and to influence decision-making”.379

If a State

has a determined outcome in mind, meaning that the indigenous peoples will accept the project, the

372

HRC, Promotion and protection of all human rights, civil, political, economic, social and cultural rights,

including the right to development: Report of the Special Rapporteur on the situation of human rights and

fundamental freedoms of indigenous peoples, James Anaya, UN Doc. A/HRC/12/34, 2009, §48-49. 373

A.J. KINNISON, Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N. Declaration on

the Right of Indigenous Peoples, Arizona Law Review, 2011, p.1329; B. MCGEE, The Community Referendum:

Participatory Democracy and the Right to Free, Prior and Informed Consent to Development, Berkeley Journal of

International Law, 2009, p.594. 374

Ibid. 375

B. MCGEE, The Community Referendum: Participatory Democracy and the Right to Free, Prior and Informed

Consent to Development, Berkeley Journal of International Law, 2009, p.594. 376

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Extractive industries

operating within or near indigenous territories, UN Doc. A/HRC/18/35, 2011. 377

See supra ¶115; HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya:

Extractive industries operating within or near indigenous territories, UN Doc. A/HRC/18/35, 2011, §23. 378


operating within or near indigenous territories, UN Doc. A/HRC/18/35, 2011 §24 and §26. 379

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Addendum,

Communications sent to and received from Governments, UN Doc. A/HRC/18/35/Add.1, 2011, Annex IV, §12; see

also IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection

in the Context of Extraction, Exploitation, and Development Activities, Report OEA/Ser.L/V/II., Doc. 47/15, 2015,

§203.

61

consultations are not ‘in good faith’. “[…] the option of not proceeding with the proposed project should

not be foreclosed during [the] consultations”.380

121. In 2012, the Special Rapporteur again tries to clarify the scope of the duty to consult and to obtain

consent, as the ambiguity often leads to conflicts.381

Neither the right to consultation nor the right to

consent are ‘stand-alone rights’, and they are also not the only safeguards that protect indigenous peoples

when measures may affect their lands.382

It is therefore always necessary to look at the broader

framework. The specific requirements of the duty to consult and to obtain consent will be dependent of

which indigenous rights are impacted, and to what extent.383

If the implicated rights are essential for the

indigenous survival and there can be a significant impact on the exercise of their rights, the duty to obtain

consent is a true requirement.384

What is also remarkable in the report is the statement that “if consent is

obtained, it should be upon equitable and fair agreed-upon terms, including terms for compensation,

mitigation measures and benefit-sharing in proportion to the impact on the affected indigenous party’s

rights.”385

This seems to indicate that the consent of an indigenous group to an ‘unfair’ agreement will

not be accepted.

122. In his final report of 2013, the Special Rapporteur takes on a new approach on the right to FPIC.

He states that consent is required for extractive projects within indigenous territories as a general rule, as

the enjoyment of their rights will be “invariably affected in one way or another”.386

Making this a general

rule is interesting for practical considerations as well, as this can lend stability to the projects.387

Consent

may be required when extractive activities are not within their territories but do have an impact on

them.388

Consent is not required in certain exceptional circumstances, for example “when it can be

established that the extractive activity would only impose such limitations on indigenous peoples’

substantive rights as are permissible within certain narrow bounds”.389

When a state decides that a

certain extractive project can continue without the affected indigenous peoples’ consent, “it remains

380

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya: Addendum,

Communications sent to and received from Governments, UN Doc. A/HRC/18/35/Add.1, 2011, Annex IV, §12. 381

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya, UN Doc.

A/HRC/21/47, 2012, §47. 382

Ibid. §49 and §52. 383

Ibid. §64. 384

Ibid. §65. 385

Ibid. §68. 386


and indigenous peoples, UN Doc. A/HRC/24/41, 2013, §27-28. 387

Ibid. §29. 388

Ibid. §27. 389

Ibid. §31.

62

bound to respect and protect the rights of indigenous peoples and must ensure that other applicable

safeguards are implemented.”390

This decision should also be reviewed by an “impartial judicial

authority”.391

123. The statement of Anaya that using FPIC as a general rule not only protects indigenous peoples’

human rights, but is also useful for practical considerations, for example to lend stability to projects, is

endorsed by scholars. Taking into account indigenous peoples’ interests can minimize the risk of (violent)

conflicts. It can reduce costs: there will be less need to secure the extractive industry project against

occupation or other protests, and there will be less litigation and reputational damage costs. 392

124. In this report of 2013, the Special Rapporteur also clarifies that indigenous peoples have the right

to decline to engage in consultation processes as part of their right to freedom of expression. If the State

made an adequate consultation procedure available, and encouraged the indigenous peoples to engage

herein, but they decline, the State is discharged of its obligation to consult. However, in this case the

decision of the indigenous peoples must be seen as a withholding of consent, which will have

consequences for the project.393

125. Further, the Special Rapporteur states that “indigenous peoples are free to enter into negotiations

directly with companies if they so wish”. This might be even more efficient than consultations by the

State.394

Precondition is of course that these consultation processes meet the same international

standards.395

This goes against what the Inter-American Court has stated in Sarayaku v. Ecuador.396

126. Another important part of this report clarifies that consent of an indigenous group to an ‘unfair’

agreement397

, is indeed not accepted. If consent is not given “on just and equitable terms”, it does not

fulfil its role as safeguard for their other rights.398

Therefore, an agreement should include provisions

providing for impact mitigation, benefit-sharing and grievance mechanisms.399

390

Ibid. §38. 391

Ibid. §39. 392



Ibid. §25. 394

Ibid. §61. 395

Ibid. §62. 396

See supra ¶43. 397



and indigenous peoples, UN Doc. A/HRC/24/41, 2013, §72. 399

Ibid. §91.

63

127. For the future, the Special Rapporteur sees possibilities in a new model of indigenous-controlled

resource extraction, through their own enterprises.400

Anaya’s last report thus entails a progressive

interpretation of the right to FPIC, that is more practical and clear than all what has been established

within the United Nations before.

c. 2014- present: Victoria Tauli Corpuz

128. The present Special Rapporteur, Victoria Tauli Corpuz, has not really further explained the scope

of the right to FPIC. In general wordings, she encourages States to regulate indigenous “good-faith prior

consultation to give or withhold free, prior and informed consent in relation to measures affecting their

rights”.401

After her visit to Brazil, she is clear though that two new projects in Brazil (the Belo Sun

mining project and the Tapajós dam project), “should not be considered […] if the indigenous peoples

concerned withhold their free, prior and informed consent following the conduct of participatory social,

environmental and human rights impact assessments and good faith consultations.”402

2. Economic and Social Council

i. Permanent Forum on Indigenous Issues

129. In 2000, the Economic and Social Council (hereinafter ‘ECOSOC’) establishes a Permanent

Forum on Indigenous Issues (hereinafter ‘Permanent Forum’ or ‘PFII’).403

It can advise ECOSOC on the

economic, social and cultural rights of indigenous peoples. In this regard it prepares information, provides

recommendations and raises awareness on indigenous issues.404

Eight of its sixteen members are

nominated by indigenous organizations.405

Every year, the Permanent Forum holds a two-week session, in

which it reviews the work on indigenous rights of the UN system.406

During these sessions it meets with

member states and indigenous peoples, but also with the Expert Mechanism and with the Special

Rapporteur. Each year a specific theme (or a review on the implementation on the previous theme) is

400

Ibid. §8. 401

HRC, Report of the Special Rapporteur on the rights of indigenous peoples, UN Doc. A/HRC/33/42, 2016,

§103(d). 402

HRC, Report of the Special Rapporteur on the rights of indigenous peoples on her mission to Brazil, UN Doc.

A/HRC/33/42/Add.1, 2016, §99(b). 403

ECOSOC, Establishment of a Permanent Forum on Indigenous Issues, UN Doc. E/2000/22, 2000, §1. 404

Ibid. §2. 405

Ibid. §1. 406

Ibid. §4.

64

discussed. Since the adoption of UNDRIP, the Permanent Forum also focuses on the implementation

hereof.407

130. During its first sessions, the Permanent Forum immediately identifies the principle of free, prior

and informed consent as a major challenge for indigenous peoples. At its first working session, it already

proposes that a working group on “prior informed consent” should be organized, that should meet

annually for the next three years, to define what “prior informed consent” means and produce a paper and

guidelines hereon.408

131. During the third session of the PFII in 2004, the Inter-Agency Support Group on Indigenous

Issues409

, together with the United Nations Development Programme, presents a complete report on “free,

prior and informed consent”, which “has emerged as the desired standard to be applied in protecting and

promoting [indigenous] rights in the development process”.410

The report examines how this principle is

understood and applied by the different UN programmes and agencies.411

The outcome is that most

responding agencies recognize the principle, but the interpretation of it differs.412

For example, while the

UN Population Fund says that it means that indigenous peoples should be able to participate fully in the

economic, social and cultural life of the country413

, the ILO refers to its Convention No. 169, where ‘good

faith consultations’ are embedded, but clearly states that the principle does not mean “that a lack of

consent will be sufficient grounds […] to block a development programme or project”.414

However,

indigenous peoples “should have a realistic chance of affecting the outcome”.415

This report makes clear

407

OHCHR, Indigenous Peoples and the United Nations Human Rights System, Fact Sheet No. 9/Rev. 2, 2013,

p.12-13. 408

ECOSOC, Permanent Forum on Indigenous Issues: Report on the first session, UN Doc. E/2002/43/Rev.1-

E/CN.19/2002/3/Rev.1, 2002, §13; see also F. MACKAY, Indigenous Peoples’ Rights to Free, Prior and Informed

Consent and the World Bank’s Extractive Industries Review, Sustainable Development Law & Policy, 2004, p.53. 409

The Inter-Agency Support Group was established in 2002 to support the PFII: different departments and

organizations of the UN participate in this cooperation. They exchange information about existing programmes and

projects on issues concerning indigenous peoples, to enhance unity within the UN. See ECOSOC, Review of

Activities of the United Nations System Relating to Indigenous Peoples: an interactive discussion, UN Doc.

E/CN.19/2002/2, 2002, §4-7. 410

PFII, Inter-Agency Support Group on Indigenous Issues; report on free, prior and informed consent, UN Doc.

E/C.19/2004/11, 2004, §1. 411

Ibid. §3. 412

Ibid. §6. 413

Ibid. §37. 414

Ibid. §67. 415

Ibid.

65

that FPIC is still confused with consultation and participation, and thus that further harmonization and

coordination of the principle within the UN is needed.416

132. In its report on this third session, the Permanent Forum also decides that there should be a

complete workshop on the right to “free, prior and informed consent”, with both representatives from

within the UN system as from other indigenous or intergovernmental organizations. A report from this

workshop should be presented at the fourth session of the Permanent Forum.417

In the eventual report of

this Workshop in 2005, the Permanent Forum finds that FPIC is especially important in extractive

industry projects.418

It also adopt some “elements of a common understanding of free, prior and informed

consent”.419

It states for example that the information provided in the consultation process should at least

cover the size, purpose and duration of the project, which areas will be affected exactly and which

potential risks it holds.420

While the workshop is not completely clear about the difference between

consultation and consent, it does state that “all sides in a FPIC process must have equal opportunity to

debate any proposed agreement/development/project”.421

133. In 2007, the Permanent Forum focuses on the special theme of indigenous territories, lands and

resources, and herein finally takes a firm stand on the right to FPIC. As land is “the foundation of the

lives and cultures of indigenous peoples all over the world”422

, lands and resources-related projects “shall

not be implemented without the free, prior and informed consent of indigenous peoples”423

. The

Permanent Forum strongly encourages States to apply this principle when implementing projects ‘on’

indigenous lands and territories.424

416



ECOSOC, Permanent Forum on Indigenous Issues: Report on the third session, UN Doc. E/2004/43-

E/C.19/2004/23, 2004, p.1. 418

PFII, Report of the International Workshop on Methodologies regarding Free, Prior and Informed Consent and

Indigenous Peoples, UN Doc. E/C.19/2005/3, 2005, §45; see also M. SATTERTHWAITE and D. HURWITZ, Right of

Indigenous Peoples to Meaningful Consent in Extractive Industry Projects, Arizona Journal of International and

Comparative Law, 2005, p.2. 419


Indigenous Peoples, UN Doc. E/C.19/2005/3, 2005, §46(i); see also COMMISSION ON HUMAN RIGHTS, Standard-

Setting: Legal Commentary on the Concept of Free, Prior and Informed Consent, UN Doc.

E/CN.4/Sub.2/AC.4/2005/WP.1, 2005, §4. 420


Indigenous Peoples, UN Doc. E/C.19/2005/3, 2005, §46(i). 421

Ibid. §46(v). 422

ECOSOC, Permanent Forum on Indigenous Issues: Report on the sixth session, UN Doc. E/2007/43-

E/C.19/2007/12, 2007, §5. 423

Ibid. §9(b). 424

Ibid. §19.

66

134. After the adoption of UNDRIP, the Permanent Forum uses this firm stand to interpret the

Declaration. In 2009, it states that UNDRIP entails that FPIC “must be obtained” before starting projects

that can affect indigenous lands and territories.425

The Permanent Forum is in favor of a broad

interpretation of Article 32(2) UNDRIP. In a documented submitted by the Secretariat of the Permanent

Forum at this eighth session, this is affirmed. Here it is stated that UNDRIP entails a general principle to

consult with indigenous peoples in matters affecting them, and a specific requirement of obtaining FPC in

certain matters. Article 19 and Article 32(2) are part of these ‘certain matters’, and thus is consent a true

requirement when adopting legislative measures that affect them or their lands and resources, and not

only in the case of relocation or storage of hazardous materials.426

This backs our claim that a broad

general right to FPIC is embedded in the Declaration.427

135. This broad interpretation of UNDRIP is repeated at the tenth session of the Permanent Forum in

2011.428

The Permanent Forum also clarifies that “consent can never be replaced by or undermined

through the notion of ‘consultation’”.429

The PFII is worried about the amount of interventions where

indigenous peoples claim that their right to FPIC was denied, “in relation to extractive industries and

other forms of large- and small-scale development”.430

Again, the Permanent Forum thus supports a

broader right to FPIC than the one in the framework of the Organization of American States.431

136. During the latest session of the Permanent Forum in 2017, an interesting view on the ambiguity

embedded in Article 19 and 32(2) of UNDRIP is brought forward. This ambiguity is not necessarily a bad

thing, as it can be seen as “constructive ambiguity”.432

This means that, when consensus seems

completely beyond reach, States will still have a motive to at least conduct meaningful consultation. If the

articles of the Declaration would be completely clear that full consent is an absolute requirement, and it

seems totally impossible to obtain consent in a certain case, there would be no motive to even start a

consultation.

425

ECOSOC, Permanent Forum on Indigenous Issues: Report on the eighth session, UN Doc. E/2009/43-

E/C.19/2009/14, 2009, §4. 426

PFII, A draft guide on the relevant principles contained in the United Nations Declaration on the Rights of

Indigenous Peoples, International Labour Organisation Convention No. 169 and International Labour Organisation

Convention No. 107 that relate to Indigenous land tenure and management arrangements., UN Doc.

E/C.19/2009/CRP.7, 2009, p.19. 427


ECOSOC, Permanent Forum on Indigenous Issues: Report on the tenth session, UN Doc. E/2011/43-

E/C.19/2011/14, 2011, §35. 429

Ibid. §36. 430

Ibid. §38. 431

See supra ¶83-84. 432

PFII, Tenth anniversary of the United Nations Declaration on the Rights of Indigenous Peoples: measures taken

to implement the Declaration: Note by the Secretariat, UN Doc. E/C.19/2017/4, 2017, §32.

67

D. Treaty Supervisory Bodies concerned with indigenous rights

137. Human rights treaty supervisory bodies monitor the implementation of a specific human rights

treaty. Their comments, observations or recommendations are not binding decisions, but interpretations of

how this specific treaty should be implemented. All 3 of the supervisory bodies here discussed have stated

that there is at least a right for indigenous peoples to be consulted in regard to development projects, and

have addressed the right to FPIC, but the impact hereof will be limited.433

Still, their ‘doctrine’ can be a

tool to help shape international human rights law standards.

1. Human Rights Committee

138. In the International Covenant on Civil and Political Rights (hereinafter ‘ICCPR’), some rights are

embedded that can be valuable for indigenous peoples, such as the right to self-determination in Article 1

and the right of minorities to enjoy their culture in Article 27. These rights are also referred to by the

Inter-American Court of Human Rights.434

The implementation of this covenant is overseen by the

Human Rights Committee, that meets three times a year to discuss state reports and individual reports.435

139. Article 1(1) of the ICCPR states that “all peoples have the right of self-determination”, by virtue

of which they freely determine their political status and pursue their development.436

This also entails that

they should be able to “freely dispose of their natural wealth and resources”.437

Even though this seems

like the perfect base for an indigenous right to be consulted when measures will affect these resources, the

Human Rights Committee has been reluctant to use this article in indigenous claims.438

Instead, it prefers

claims of cultural integrity on the base of Article 27 ICCPR.439

140. Article 27 of the ICCPR states that ethnic, religious or linguistic minorities have the right to

“enjoy their own culture, to profess and practice their own religion, or to use their own language”, and

433




Art.28 UN GA International Covenant on Civil and Political Rights, Treaty Series vol. 999, p. 171, 16 December

1966 (hereinafter ‘ICCPR’); HUMAN RIGHTS COMMITTEE, Rules of procedure of the Human Rights Committee, UN

Doc. CCPR/C/3/Rev.10, 2012, Rule 2.1 and Rule 66.1. 436

Art. 1(1) ICCPR. 437

Art. 1(2) ICCPR. 438


University of Pennsylvania Journal of International Law, 2014, p.173; K. ENGLE, On Fragile Architecture: The UN

Declaration on the Rights of Indigenous Peoples in the Context of Human Rights, The European Journal of

International Law, 2011, p.154-156. 439


University of Pennsylvania Journal of International Law, 2014, p.173.

68

this “in community with the other members of their group”.440

The Human Rights Committee has

interpreted Article 27 in its General Comment No.23 of 1994 as being applicable to indigenous

communities and their way of life.441

It entails that they should be able to control and use their own lands

and resources, and participate in decisions which affect them.442

141. In 2000, in the Apirana Mahuika et al. v. New Zealand case, some Maori people of New Zealand

claim that a new fishing act threatens their way of life by confiscating their fishing resources and hereby

violates Article 27 ICCPR.443

The Human Rights Committee makes clear that the right to control and use

traditional lands and resources can be restricted, but only when the community participates in that

decision.444

In this case, Maori communities were consulted on the new fishing regulation and “their

proposals did affect the design of the arrangement”.445

According to the Committee, the majority of the

members agreed with the settlement. The fact that some individuals do not agree and that their individual

right to their own culture is thus affected, conflicts with the exercise of the rights of the other members of

the minority group. In this case, the Human Rights Committee “may consider whether the limitation in

issue is in the interests of all members of the minority and whether there is a reasonable and objective

justification for its application to the individuals who claim to be adversely affected”.446

There is thus

only a right for indigenous peoples to participate and to be consulted, but absolutely no duty for a State to

obtain consent. In multiple concluding observations, the Committee uses this interpretation to compel

States to consult with indigenous peoples when starting development projects or granting resources

concessions within indigenous territory.447

440

Art. 27 ICCPR. 441

HUMAN RIGHTS COMMITTEE, General comment No. 23(50) (art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5, 1994,

§3.2; see also T. WARD, Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within


HUMAN RIGHTS COMMITTEE, General comment No. 23(50) (art. 27), UN Doc. CCPR/C/21/Rev.1/Add.5, 1994,

§7. 443

HUMAN RIGHTS COMMITTEE, Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993,UN Doc.

CCPR/C/70/D/547/1993, 2000, §6.1 and §6.2. 444


CCPR/C/70/D/547/1993, 2000, §9.5; see also Saramaka v. Suriname, IACtHR, 28 November 2007, §130. 445


CCPR/C/70/D/547/1993, 2000, §9.6. 446

Ibid. 447

See for example HUMAN RIGHTS COMMITTEE, Concluding observations of the Human Rights Committee: Chile,

UN Doc. CCPR/C/CHLR/CO/5, 2007, §19(c); HUMAN RIGHTS COMMITTEE, Concluding observations of the Human

Rights Committee: Panama, UN Doc. CCPR/C/PAN/CO/3, 2008, §21(c); HUMAN RIGHTS COMMITTEE, Concluding

observations of the Human Rights Committee: Nicaragua, UN Doc. CCPR/C/NIC/CO/3, 2008, §21(c); see also T.

WARD, Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within International

Law, Northwestern University Journal of International Human Rights, 2011, p.56.

69

142. In 2009, the Human Rights Committee adopts a new approach in the Ángela Poma Poma v. Peru

case.448

In this case, a Peruvian indigenous farmer claims that Peru, by diverting water from her territory,

violated her right to enjoy her traditional way of life.449

The Committee concludes that, even though

‘economic development’ is a legitimate reason of the State to justify this water diversion, this decision

cannot undermine the rights embedded in Article 27.450

The right to effective participation under this

article entails that indigenous peoples should not be merely consulted, but also give their free, prior and

informed consent.451

Still, this is only the case if measures “substantially compromise or interfere with

the culturally significant economic activities of a minority or indigenous community”, not if they only

have a “limited impact”.452

143. The Human Rights Committee thus recognizes an obligation to obtain free, prior and informed

consent under Article 27 ICCPR when implementing measures that will have a substantive impact on

indigenous peoples. However, it could be a step forward for indigenous peoples if it would also recognize

this under Article 1 ICCPR.453

2. Committee on Economic, Social and Cultural Rights

144. Many of the rights embedded in the International Covenant on Economic, Social and Cultural

Rights (hereinafter ‘ICESCR’) are relevant for indigenous peoples, most importantly the cultural

rights.454

Implementation of the ICESCR is supervised by the UN Committee on Economic, Social and

Cultural Rights.

145. Early on, the Committee on Economic, Social and Cultural Rights focuses on the effect of

extractive industries on indigenous lands, and the safeguards of consultation with the goal of obtaining

consent in this regard.455

In 1998 already, it expresses its concern on the unilateral extinguishment of

448

HUMAN RIGHTS COMMITTEE, Ángela Poma Poma v. Peru, Communication No. 1457/2006, UN Doc.

CCPR/C/95/D/1457/2006, 2009. 449

Ibid. §3.3. 450

Ibid. §7.4. 451

Ibid. §7.6 ; see also T.M. ANTKOWIAK, Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-

American Court, University of Pennsylvania Journal of International Law, 2014, p.168-169. 452

HUMAN RIGHTS COMMITTEE, Ángela Poma Poma v. Peru, Communication No. 1457/2006, UN Doc.

CCPR/C/95/D/1457/2006, 2009, §7.4 and §7.6. 453


Human Rights, The European Journal of International Law, 2011, p.154-156. 454

UN GA International Covenant on Economic, Social and Cultural Rights, Treaty Series vol. 993, p. 3, 16

December 1966 (hereinafter ‘ICESCR’); OHCHR, Indigenous Peoples and the United Nations Human Rights

System, Fact Sheet No. 9/Rev. 2, 2013, p.20. 455


International Law, Northwestern University Journal of International Human Rights, 2011, p.56-57; COMMISSION ON

70

indigenous peoples land rights and titles.456

In 2001, it “notes with regret that the traditional lands of

indigenous peoples have been reduced or occupied, without their consent, by timber, mining and oil

companies, at the expense of the exercise of their culture”.457

States should consult with people regarding

decisions affecting their lives, and “seek [their] consent” when implementing extractive projects or other

policies that will affect them.458

146. In 2009, in its General Comment No. 21, the Committee on Economic, Social and Cultural Rights

clarifies the scope of Article 15 of the ICESCR (the right to participate in cultural life459

) and establishes a

broader right to consent in this regard. Article 15 is applicable to indigenous peoples, and for their

communal cultural lives, the use of ancestral lands and resources is particularly important.460

When lands

have been taken or used without the indigenous “free and informed consent”, there is therefore an

obligation to return them.461

There is also a general obligation to “respect the principle of free, prior and

informed consent of indigenous peoples in all matters covered by their specific rights”.462

Lastly, there is

a specific obligation to obtain free, prior and informed consent when the preservation of their cultural

resources, and thus their way of life, is at risk.463

States should also take special measures to protect

indigenous peoples from having these rights violated by third parties.464

HUMAN RIGHTS, Standard-Setting: Legal Commentary on the Concept of Free, Prior and Informed Consent, UN

Doc. E/CN.4/Sub.2/AC.4/2005/WP.1, 2005. p.5. 456

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, Concluding observations of the Committee on

Economic, Social and Cultural Rights: Canada, UN Doc. E/C.12/1/Add.31, 1998, §18; see also F. MACKAY,

Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s Extractive Industries

Review, Sustainable Development Law & Policy, 2004, p.51. 457


Economic, Social and Cultural Rights: Colombia, UN Doc. E/C.12/1/Add.74, 2001, §12; see also M. COLCHESTER,

T. GRIFFITHS, F. MACKAY and J. NELSON, Indigenous land tenure: challenges and possibilities, Land Reform, Land

Settlement and Cooperatives, 2004, p.9-10. 458


Economic, Social and Cultural Rights: Colombia, UN Doc. E/C.12/1/Add.74, 2001, §33; see also COMMITTEE ON

ECONOMIC, SOCIAL AND CULTURAL RIGHTS, Concluding observations of the Committee on Economic, Social and

Cultural Rights: Ecuador, UN Doc. E/C.12/1/Add.100, 2004, §35. 459

Art. 15(1)(a) ICESCR. 460

COMMITTEE ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, General comment No.21: Right of everyone to take

part in cultural life (art.15, para.1(a), of the International Covenant on Economic, Social and Cultural Rights), UN

Doc. E/C.12/GC/21, 2009, §36. 461

Ibid. 462

Ibid. §37. 463

Ibid. §55(e). 464

Ibid. §50(a).

71

3. Committee on the Elimination of Racial Discrimination

147. The Committee on the Elimination of Racial Discrimination (hereinafter ‘CERD’) is the body of

independent experts that observes the implementation of the International Convention on the Elimination

of All Forms of Racial Discrimination.465

Like the Human Rights Committee and the Committee on

Economic, Social and Cultural Rights, it has established some doctrine on indigenous rights, and it was

also referred to by the Inter-American human rights system.466

148. In 1997, the CERD issues ‘General Recommendation XXIII on the rights of indigenous

peoples’.467

Being conscious of the fact that indigenous peoples are often discriminated against and “in

particular that they have lost their land and resources to colonists, commercial companies and State

enterprises”, the CERD calls upon States to protect and recognize the rights of indigenous peoples to

control and use their ancestral lands and territories.468

Indigenous peoples have a right to participate in

public life, and “no decisions directly relating to their rights and interests [should be] taken without their

informed consent”.469

Specifically, when lands and territories have been taken away from them without

their “free and informed consent”, they have a right to restitution or fair compensation.470

The wording of

this last statement is almost identical to Article 28(1) of the later adopted UNDRIP.471

This General

Recommendation is one of the first clear statements of the right to FPIC within the United Nations.

149. In later years, the CERD uses this Recommendation in concluding observations and other

decisions and further develops indigenous rights.472

It states that “the land rights of indigenous peoples

are unique and encompass a traditional and cultural identification of the indigenous peoples with their

land that has been generally recognized”.473

It repeats the right to consent to decisions “directly relating

465

UN GA International Convention on the Elimination of All Forms of Racial Discrimination, Treaty Series vol.

660, p. 195, 21 December 1965. 466

See supra ¶63. 467

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, General Recommendation XXIII on the rights of

indigenous peoples, 1997. 468

Ibid. Art.3 and 5. 469

Ibid. Art. 4(d). 470

Ibid. Art.5. 471

Art. 28(1) UNDRIP states “Indigenous peoples have the right to redress, by means that can include restitution

or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which

they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied,

used or damaged without their free, prior and informed consent.” 472



COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, Procedural Decisions of the Committee on the

Elimination of Racial Discrimination, Australia: Decision 2(54) on Australia, UN Doc. A/54/18, para.21(2), 1999,

§4.

72

to their rights and interests” as part of the right to participate.474

Eventually, the CERD recognizes a full

right to FPIC in the case of extractive industries: “The Committee urges the State […] to […] consult the

indigenous population concerned at each stage of the process and obtain their consent in advance of the

implementation of projects for the extraction of natural resources”.475

E. Intermediate Conclusion

150. Within the United Nations, the principle of free, prior and informed consent is being discussed

and explored within multiple different mechanisms. This underscores the evolution of this principle as a

norm and standard that should be applied to all matters that affect indigenous peoples. However, there are

slight differences between the different mechanisms on the exact scope of this right.

151. ILO Convention 169, adopted in 1989, is still the most important binding legal text on indigenous

rights. It introduces a concept of consultation with the aspirational objective of consent, applicable when

implementing measures or development plans that may affect indigenous peoples. Obtaining free and

informed consent, rather than conducting a mere consultation process with the aim of consent, is only

obligated in the case of relocation. Still, this is not a veto right, as the failure to achieve such consent will

lead to unilateral decision-making power of the State.476

152. The United Nations Declaration on Indigenous Peoples, adopted in 2007, introduces extensive

collective rights and a clear right to self-determination. The right to free, prior and informed consent is

linked to this right. There is an explicit requirement to obtain FPIC in the case of relocation and when

storing hazardous materials on indigenous lands. In Article 19 and Article 32(2), there is a requirement to

‘consult in good faith in order to obtain FPIC’ when legislative or administrative measures that may affect

indigenous peoples are adopted and when projects affecting their lands are approved. There is ambiguity

on whether or not the requirement in these last articles is a true condition or just an objective. In this

thesis it is asserted that it is a true condition: a broad general right to FPIC is embedded in UNDRIP.477

153. The Working Group on Indigenous Populations, under the Commission on Human Rights, issues

a working paper on the right to FPIC in 2005, in which it clearly states that this right is based upon the

right to self-determination together with the right to lands and resources. The right includes a veto right to

474

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, Concluding observations of the Committee on

the Elimination of Racial Discrimination: Costa Rica, UN Doc. CERD/C/60/CO/3, 2002, §13. 475

COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION, Concluding observations of the Committee on

the Elimination of Racial Discrimination: Ecuador, UN Doc. CERD/C/ECU/CO/19, 2008, §16. 476

See supra ¶92-96. 477

See supra ¶101.

73

certain development projects or proposals.478

Later, its successor, the Expert Mechanism on the Rights of

Indigenous Peoples, under the Human Rights Council, endorses a broad interpretation of UNDRIP,

stating that the right to FPIC is a general concept applicable to all articles of the Declaration. In certain

specific cases, it is a true requirement, including in Article 19 and Article 32(2).479

154. The first Special Rapporteur on the Rights of Indigenous Peoples is Rodolfo Stavenhagen. He

states that there is a true obligation to obtain consent, but only in the case of “major development

projects”.480

The next Special Rapporteur, James Anaya, is first prudent when it comes to the right to

FPIC, stating that Art.19 UNDRIP does not entail a veto right. It is more important to have meaningful

consultations with an objective to obtain consent, than to impose the will of one party over another. Still,

the strength of the objective can vary according to the circumstances.481

Later, Anaya clarifies that the

right to consultation and consent are not ‘stand-alone rights’, and that their specific scope will be

dependent of which indigenous rights are impacted, and to what extent. In his final report, Anaya takes on

a new approach, stating that consent is required for projects within indigenous territories as a general rule,

and may be required when the activities are not within their territories but do have an impact on them.

Indigenous peoples have the right to decline to engage in consultation processes, but are also free to enter

into negotiations directly with companies instead of with the State. Consent to an ‘unfair’ agreement

should not be accepted.482

The current Special Rapporteur, Victoria Tauli Corpuz, only encourages States

to regulate indigenous “good-faith prior consultation to give or withhold free, prior and informed consent

in relation to measures affecting their rights”.483

155. The Permanent Forum on Indigenous Issues plays an important role in the development of the

right to FPIC by organizing a working group and workshops on this theme. In 2007, the Forum states that

land and resource-related projects “shall not be implemented without the free, prior and informed consent

of indigenous peoples”. This firm stand is also used to interpret UNDRIP, stating that Article 19 and

Article 32(2) entail a true requirement, which is later taken over by the Expert Mechanism.484

156. The doctrine of treaty supervisory bodies can also be a tool to help shape the scope of indigenous

rights. The Human Rights Committee focuses on the right to cultural integrity of Article 27 ICCPR, to

recognize an obligation to obtain FPIC when implementing measures that will have a ‘substantive impact

478





See supra ¶121-122 and 125-126. 483


See supra ¶112 and 133-134.

74

on indigenous peoples’ since 2009.485

Also in 2009, The Committee on Economic, Social and Cultural

Rights interprets Article 15 ICESCR, the right to participate in cultural life, as entailing a broad right to

consent in “all matters covered by their specific rights”.486

The Committee on the Elimination of Racial

Discrimination had already established this in 1997, when stating that no decision relating directly to

indigenous rights and interests should be taken without their informed consent.487

157. The interpretation of the right to FPIC thus differs within the different UN programmes and

agencies, but is mostly based on the right to self-determination. The Special Rapporteur Anaya, the Expert

Mechanism and the Permanent Forum support a progressive interpretation of UNDRIP, but it seems that

this progressive interpretation is not implemented in practice.

485

See supra ¶142-143. 486


See supra ¶148.

75

3. CONCLUSION

158. The concept of free, prior and informed consent, as a tool that can mitigate the negative effects of

extractive industries on the rights of indigenous peoples, is discussed extensively both within the

Organization of American States and within the United Nations. There are differences in interpretation of

this right between these two organisations, but also within the organisations themselves.

159. We can mark some of the main differences between the organisations. Within the Organization of

American States, the duty to consult and obtain consent is based mostly on Article 21 ACHR, the right to

property. Within the United Nations, this duty is based on the right to self-determination and/or cultural

rights. Considering the disadvantages of the right to property, the right to self-determination seems to be

the better basis for indigenous rights.488

Within the Organization of American States, a broad right to

consultation seems to exist, but only a true right to FPIC in the case of large-scale development projects.

Within the United Nations, there seems to be more consensus on a broad right to FPIC, applicable in

multiple circumstances.

160. The Declarations and Treaties concerning indigenous rights of these organizations also entail a

different interpretation of the right to FPIC. The ILO Convention 169 of 1989 establishes a right to

consultation with the aspirational objective of consent. The United Nations Declaration on the Rights of

Indigenous Peoples of 2007 seems to introduce a broad right to consultation with the imperative object of

consent. The American Declaration on the Rights of Indigenous Peoples within the OAS of 2016 misses

an opportunity to take a clear stand in this regard, and only entails a right to consultation with the aim of

reaching consent. True consent is only required in exceptional circumstances.

161. Still, these differences between the OAS and the UN are relative, as there are many nuances

within the organisations themselves as well. While the duty to consult can be seen as a general principle

of international law489

, it is thus not completely clear what the status of the duty to obtain free, prior and

informed consent is.490

All international standards consider it fundamental to consult indigenous peoples

with the aim of reaching consent when projects are being considered which will be on their lands and

territories or which will affect their resources, but the interpretation of when this entails a true duty to

488

See supra ¶51. 489



and to Cultural Identity?, in Y. HAECK et al., The Inter-American Court of Human Rights, Cambridge, 2015, p.581.

76

obtain consent differs.491

There is also a broad consensus on the fact that these consultations should be

held ‘in good faith’, which means ia. that the concerns and remarks of the indigenous peoples should have

an effect on the final decision.492

162. As at least ‘a right to free, prior and informed consent’ is embedded in ILO Convention 169, the

United Nations Declaration on Indigenous Peoples, the American Declaration on the Rights of Indigenous

Peoples, ánd accepted by the Inter-American Court of Human Rights, the Inter-American Commission on

Human Rights, the Working Group on Indigenous Populations, the Expert Mechanism on the Rights of

Indigenous Peoples, the Special Rapporteurs on the Rights of Indigenous Peoples, the Permanent Forum

on Indigenous Issues, the Human Rights Committee, the Committee on Social, Economic and Cultural

Rights and the Committee on the Elimination of Racial Discrimination, we can say that this is an

internationally accepted standard. It is a real right for indigenous peoples, and not just an ‘emerging

right’. While the acceptance of this right is expanding, the exact scope of it moves along a narrowing

consultation-consent-spectrum towards strict consent. But maybe it is not even necessary that an exact

definition of the right to FPIC is found. Different contexts might invoke a different interpretation of the

exact scope of the principle, and this can be “constructive ambiguity”.493

A very strict demarcation of the

right to free, prior and informed consent could even turn out to be less beneficial for the indigenous

people. However, to this day, the concept is still too vague to effectively protect them. It is therefore

important to keep discussing this right in the hope that more harmonisation will follow.

163. Also, there is still a huge gap between this developing norm of FPIC within international law and

the state practice.494

National laws do not always guarantee the protection of indigenous rights and

established patterns of oppression of indigenous communities are hard to change.495

Even if the rights to

consultation and consent are embedded into the national legal framework, they are often not respected on

the executive and administrative level. There is therefore also strong need for better implementation and

491




International Law, Northwestern University Journal of International Human Rights, 2011, p.54 and 84. 493

See supra ¶136; see also A.J. KINNISON, Indigenous Consent: Rethinking U.S. Consultation Policies in Light of

the U.N. Declaration on the Right of Indigenous Peoples, Arizona Law Review, 2011, p.1327-1328. 494




Commentary, New York, 2011, p.501; D.B. SUAGEE and C.T. STEARNS, Indigenous Self-Government,

Environmental Protection, and the Consent of the Governed: A Tribal Environmental Review Process, Colorado

Journal of International Environmental Law and Policy, 1994, p.1.

77

enforcement of this principle. The non-binding doctrine of all the bodies and agencies stated before can

hopefully serve as a guide for how the binding obligations of the States should be exercised.

164. For the right to FPIC to become an effective protection against the negative impacts of extractive

industries, a lot of works still needs to be done, both in theory and in practice. If we want to get all actors

on the same page in this, it will be important to look at this concept in a positive light. The free, prior and

informed consent of indigenous peoples can help corporate activities to become a key factor in their

development, with respect for their rights.496

Instead of seeing this principle as an obstacle for economic

development, it is important to reiterate that it is in fact its precondition.497

“There is no development as

such without full respect for human rights”.498

496

HUMAN RIGHTS COUNCIL, Report of the Special Rapporteur on the situation of human rights and fundamental

freedoms of indigenous people, James Anaya, UN Doc. A/HRC/15/37, 2010, p.8. 497

IACHR, Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights Protection

in the Context of Extraction, Exploitation, and Development Activities, Report OEA/Ser.L/V/II., Doc. 47/15, 2015,

§24. 498


Jurisprudence of the Inter‐American Human Rights System, Report OEA/Ser.L/V/II., Doc. 56/09, 2009, §204.

78

4. BIBLIOGRAPHY

A. Declarations and Treaties

United Nations (UN), Charter of the United Nations, 26 June 1945.

Organization of American States (OAS), Charter of the Organization of American States, 30 April 1948.

Organization of American States (OAS), American Declaration on the Rights and Duties of Man, 2 May

1948.

UN General Assembly (GA), Universal Declaration of Human Rights, 217 A (III), 10 December 1948.

International Labour Organization (ILO), Indigenous and Tribal Populations Convention, C107, 26 June

1957.

UN General Assembly (GA), International Convention on the Elimination of All Forms of Racial

Discrimination, Treaty Series vol. 660, p. 195, 21 December 1965.

UN General Assembly (GA), International Covenant on Civil and Political Rights, Treaty Series vol.

999, p. 171, 16 December 1966.

UN General Assembly (GA), International Covenant on Economic, Social and Cultural Rights, Treaty

Series vol. 993, p. 3, 16 December 1966.

Organization of American States (OAS), American Convention on Human Rights, "Pact of San Jose",

Costa Rica, 22 November 1969.

International Labour Organization (ILO), Indigenous and Tribal Peoples Convention, C169, 27 June

1989.

UN General Assembly (GA), United Nations Declaration on the Rights of Indigenous Peoples,

A/RES/61/295, 13 September 2007.

Organization of American States (OAS), American Declaration on the Rights of Indigenous Peoples, 15

June 2016.

79

B. Case law

1. Inter-American Court of Human Rights (IACtHR)

Contentious cases

Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua (Judgment), IACtHR, Ser. C, No. 79,

(31 August 2001).

Case of the Yakye Axa Indigenous Community v. Paraguay (Judgment), IACtHR, Ser. C, No. 125, (17

June 2005).

Case of the Sawhoyamaxa Indigenous Community v. Paraguay, (Judgment), IACtHR, Ser. C, No. 146,

(29 March 2006).

Case of the Saramaka People v. Suriname (Judgment), IACtHR, Ser. C, No. 172, (28 November 2007).

Case of the Saramaka People v. Suriname (Interpretation of the Judgment), IACtHR, Ser. C, No. 185, (12

August 2008).

Case of the Xákmok Kásek Indigenous Community v. Paraguay (Judgment), IACtHR, Ser. C, No. 214,

(24 August 2010).

Case of the Kichwa Indigenous People of Sarayaku v. Ecuador (Judgment), IACtHR, Ser. C, No. 245 (27

June 2012).

Case of the Kaliña and Lokono peoples v. Suriname (Judgement), IACtHR, Ser. C, No. 309 (25

November 2015).

2. Inter-American Commission on Human Rights (IACHR)

Reports

IACHR, “Report on the Situation of Human Rights of a Segment of the Nicaraguan Population of Miskito

Origin”, Report OEA/Ser.L/V/II.62, Doc. 10 rev. 3, (1983).

IACHR, “Report on the Situation of Human Rights in Ecuador”, Report OEA/Ser.L/V/II.96, Doc. 10 rev.

1, (1997).

IACHR, “Third Report on the Human Rights Situation in Colombia”, Report OEA/Ser.L/V/II.102, Doc. 9

rev. 1, (1999).

80

IACHR, “Second Report on the Situation of Human Rights in Peru”, Report OEA/Ser.L/V/II.106, Doc.

59 rev., (2000).

IACHR, “Fifth Report on the Situation of Human Rights in Guatemala”, Report OEA/Ser.L/V/II.111,

Doc. 21 rev., (2001).

IACHR, “Indigenous and Tribal Peoples’ Rights Over Their Ancestral Lands and Natural Resources:

Norms and Jurisprudence of the Inter‐American Human Rights System”, Report OEA/Ser.L/V/II., Doc.

56/09, (2009).

IACHR, “Indigenous Peoples, Afro-Descendent Communities, and Natural Resources: Human Rights

Protection in the Context of Extraction, Exploitation, and Development Activities”, Report

OEA/Ser.L/V/II., Doc. 47/15, (2015).

Contentious cases

Mary and Carrie Dann v. United States, IACHR, Report No. 75/02, (27 December 2002).

Maya indigenous community of the Toledo District v. Belize, IACHR, Report No. 40/04, (12 October

2004).

Precautionary measures

IACHR, Indigenous Communities of the Xingu River Basin, Pará, Brazil, Precautionary Measure

No.382/10, (2011). http://www.oas.org/en/iachr/decisions/precautionary.asp

3. International Court of Justice (ICJ)

Advisory Proceedings

Western Sahara, Advisory Opinion, ICJ Reports 1975 p. 12 No.61, (16 October 1975).

C. Books and articles

Anaya, J., “Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resource

Extraction: The More Fundamental Issue of what Rights Indigenous Peoples have in Lands and

Resources”, Arizona Journal of International and Comparative Law, 22.1, 7-17, (2005).

Antkowiak, T.M., “A Dark Side of Virtue: The Inter-American Court and Reparations for Indigenous

Peoples”, Duke Journal of Comparative & International Law, 25.1, 1-80, (2014).

81

Antkowiak, T.M., “Rights, Resources, and Rhetoric: Indigenous Peoples and the Inter-American Court”,

University of Pennsylvania Journal of International Law, 35.1, 113-187, (2014).

Anton, D.K. and Shelton, D.L., Environmental Protection and Human Rights, Cambridge, Cambridge

University Press, 1026, (2011).

Baluarte, D.C., “Balancing Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-

American Rights Regime and ILO Convention 169”, Sustainable Development Law & Policy, 4.2, 9-15,

(2004).

Barrera-Hernández, L., Barton, B., Godden, L., Lucas, A. and Rønne, A. (eds.), Sharing the Costs and

Benefits of Energy and Resource Activity, Oxford, Oxford University Press, (2016).

Bratman, E.Z., “Human Rights in Third Place: The Green Economy, Environmentalism, and Social

Justice in the Brazilian Amazon”, in Aspinall, D.E., Lorenz, E.C., Michael Raley, J. (eds.), Montesino’s

legacy: Defining and Defending Human Rights for Five Hundred years, London, Lexington Books, 259,

(2014).

Burgorgue-Larsen, L., Úbeda de Torres, A. et. al., The Inter-American Court of Human Rights: Case law

and Commentary, New York, Oxford University Press Inc., 886, (2011).

Carino, J., “Indigenous Peoples’ Right to Free, Prior, Informed Consent: Reflections on Concepts and

Practice.”, Arizona Journal of International and Comparative Law, 22.1, 19-40, (2005).

Carrasco, S.H., “Extractive Industries and the Protection of Human Rights in the Americas: The Need for

a System of Responsibility that Includes Home States”, Aportes DPLF, 8.20, 27-29, (2015).

Castellino, J., and Walsh, N., International Law and Indigenous Peoples, Leiden, M.Nijhoff Publishers,

399, (2005).

Clavero, B., “The Indigenous Rights of Participation and International Development Policies”, Arizona

Journal of International & Comparative Law, 22.1, 41-51, (2005).

Colchester, M., Griffiths, T., MacKay, F. and Nelson, J., “Indigenous land tenure: challenges and

possibilities”, Land Reform, Land Settlement and Cooperatives, 2004.1, 9-26, (2004).

Crawford, J., The Rights of Peoples, Oxford, Clarendon Press, 236, (1992).

Davis, M., “Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of

Indigenous Peoples”, Melbourne Journal of International Law, 9.2, 439-471, (2008).

82

Dhundale, L., Public Participation Compliance, Copenhagen, The Danish Institute for Human Rights, 33,

(2013).

Engle, K., “Indigenous rights claims in international law: self-determination, culture, and development”,

in Armstrong, D. (ed.), Routledge Handbook of International Law, New York, Routledge, 503, (2009).

Engle, K., “On Fragile Architecture: The UN Declaration on the Rights of Indigenous Peoples in the

Context of Human Rights”, The European Journal of International Law, 22.1, 141-163, (2011).

Galvis, M.C., “The Obligation of States to Prevent International Law Violations by Private Actors”,

Aportes DPLF, 4.15, 12-14, (2011).

Herbertson, K., “The World Bank Group’s Opportunity to Advance Indigenous Peoples’ Rights”, Aportes

DPLF, 4.15, 39-42, (2011).

Jacobsen, A.F., The Right to Public Participation: A Human Rights Law Update, Copenhagen, The

Danish Institute for Human Rights, 32, (2013).

Kingsbury, B., “Reconciling Five Competing Conceptual Structures of Indigenous Peoples’ Claims in

International and Comparative Law”, N.Y.U. Journal of International Law and Politics, 34:189, 189-250,

(2001).

Kinnison, A.J., “Indigenous Consent: Rethinking U.S. Consultation Policies in Light of the U.N.

Declaration on the Right of Indigenous Peoples.”, Arizona Law Review, 53.4, 1301-1332, (2011).

MacKay, F., “Indigenous Peoples’ Rights and the UN Committee on the Elimination of Racial

Discrimination”, in Derrso, S. (ed.), Perspectives on the rights of minorities and indigenous peoples in

Africa, Pretoria, Pretoria University Law Press, 365, (2010).

MacKay, F., “Indigenous Peoples’ Rights to Free, Prior and Informed Consent and the World Bank’s

Extractive Industries Review.”, Sustainable Development Law & Policy, 4.2, 46-65, (2004).

McGee, B., “The Community Referendum: Participatory Democracy and the Right to Free, Prior and

Informed Consent to Development”, Berkeley Journal of International Law, 27.2, 570-635, (2009).

Medina, C., The American Convention on Human Rights, Cambridge, Intersentia Publishing Ltd, 252,

(2014).

Miranda, L.A., “Indigenous People as International Lawmakers”, University of Pennsylvania Journal of

International Law, 32(1), 203-264, (2014).

83

Montes, A.R. and Cisneros G.T., “The United Nations Declaration on the Rights of Indigenous Peoples:

The foundation of a new relationship between indigenous peoples, states and societies”, in Charters, C.

and Stavenhagen, R. (eds.), Making the Declaration Work: The United Nations Declaration on

Indigenous Peoples, Copenhagen, International Work Group for Indigenous Affairs, 390, (2009).

Murphy, M.A., “Representing Indigenous Self-Determination”, University of Toronto Law Journal, 58.2,

185-216, (2008).

Page, A., “Indigenous Peoples’ Free Prior and Informed Consent in the Inter-American Human Rights

System”, Sustainable Development Law & Policy, 4.2, 16-20, (2004).

Pasqualucci, J., “International Indigenous Land Rights: A Critique of the Inter-American Jurisprudence of

the Inter-American Court of Human Rights in Light of the United Nations Declaration on the Rights of

Indigenous People”, Wisconsin International Law Journal, 27.1, 51-98, (2009).

Pulitano, E. (ed.), Indigenous Rights in the age of the UN Declaration, Cambridge, Cambridge University

Press, 370, (2014).

Satterthwaite, M., Hurwitz, D., “Right of Indigenous Peoples to Meaningful Consent in Extractive

Industry Projects”, Arizona Journal of International and Comparative Law, 22.1, 1-6, (2005).

Säuberli, G., “The Case of the Kichwa Peoples of the Sarayku v. Ecuador. Constructing a Right to

Consultation and to Cultural Identity?”, in Haeck, Y., et. al. (eds.), The Inter-American Court of Human

Rights: Theory and Practice, Present and Future, Cambridge, Intersentia, 832, (2015).

Shrinkhal, R., “Free, Prior and Informed Consent as a Right of Indigenous Peoples”, Journal of National

Law University, Delhi, 2, 54-65, (2014).

Slack, K., “Human Rights and Extractive Industries in Latin America”, Aportes DPLF: Business and

Human Rights: A Complex Relationship, 4.15, 4-6, (2011).

Stavenhagen, R., “Making the Declaration Work”, in Charters, C. and Stavenhagen, R. (eds.), Making the

Declaration Work: The United Nations Declaration on Indigenous Peoples, Copenhagen, International

Work Group for Indigenous Affairs, 390, (2009).

Suagee, D.B., Stearns, C.T., “Indigenous Self-Government, Environmental Protection, and the Consent of

the Governed: A Tribal Environmental Review Process.”, Colorado Journal of International

Environmental Law and Policy, 5.1, 59-104, (1994).

84

Thornberry, P., Indigenous peoples and human rights, New York, Juris Pub, 484, (2002).

Toki, V., “Indigenous Rights – Hollow Rights?”, Waikato Law Review, 19.2, 29-43, (2011).

Ward. T., “Right to Free, Prior and Informed Consent: Indigenous Peoples’ Participation Rights within

International Law”, Northwestern University Journal of International Human Rights, 10.2, 54-84, (2011).

Xanthaki, A., Indigenous rights and United Nations standards: self-determination, culture and land,

Cambridge, Cambridge University Press, 314, (2007).

Yriart, M., “Jurisprudence in a Political Vortex. The Right of Indigenous Peoples to Give or Withhold

Consent to Investment and Development Projects – The Implementation of Saramaka v. Suriname”, in

Haeck, Y., et. al. (eds.), The Inter-American Court of Human Rights: Theory and Practice, Present and

Future, Cambridge, Intersentia, 832, (2015).

D. UN Publications

1. Commission on Human Rights

Commission on Human Rights (Sub-Commission on the Promotion and Protection of Human Rights),

“Prevention of discrimination and protection of indigenous peoples: Report of the Working Group on

Indigenous Populations on its twentieth session”, E/CN.4/Sub.2/2002/24, (2002).



Indigenous Populations on its twenty-first session”, E/CN.4/Sub.2/2003/22, (2003).



Indigenous Populations on its twenty-second session”, E/CN.4/Sub.2/2004/28, (2004).


“Indigenous peoples’ permanent sovereignty over natural resources: Final report of the Special

Rapporteur, Erica-Irene A. Daes”, E/CN.4/Sub.2/2004/30, (2004).

Commission on Human Rights (Sub-Commission on the Promotion and Protection of Human Rights-

Working Group on Indigenous Populations), “Standard-Setting: Legal Commentary on the Concept of

Free, Prior and Informed Consent”, E/CN.4/Sub.2/AC.4/2005/WP.1, (2005).

85

2. Human Rights Council

Human Rights Council (Sub-Commission on the Promotion and Protection of Human Rights),

“Prevention of Discrimination and Protection of Indigenous Peoples: Report of the Working Group on

Indigenous Populations on its twenty-fourth session”, A/HRC/Sub.1/58/22, (2006).

General Assembly (GA), “Resolution adopted by the General Assembly on 15 March 2006: Human

Rights Council”, A/RES/60/251, (2006).

Human Rights Council, “Human rights and indigenous peoples: mandate of the Special Rapporteur on the

situation of human rights and fundamental freedoms of indigenous people”, A/HRC/RES/6/12, (2007).

Human Rights Council, “Expert mechanism on the rights of indigenous peoples”, A/HRC/6/36, (2007).

Human Rights Council, “Human rights and indigenous peoples: mandate of the Special Rapporteur on the

rights of indigenous peoples”, A/HRC/RES/15/14, (2010).

Human Rights Council, “Report of the Special Representative of the Secretary-General on the issue of

human rights and transnational corporations and other business enterprises, John Ruggie”, A/HRC/17/31,

(2011).

Human Rights Council, “Final report of the study on indigenous peoples and the right to participate in

decision-making: Report of the Expert Mechanism on the Rights of Indigenous Peoples”, A/HRC/18/42,

(2011).

Human Rights Council, “Summary of responses to the questionnaire seeking the views of States and

indigenous peoples on best practices regarding possible appropriate measures and implementation

strategies in order to attain the goal of the United Nations Declaration on the Rights of Indigenous

Peoples”, A/HRC/33/58, (2016).

3. Special Rapporteurs on the rights of indigenous peoples

Commission on Human Rights, “Human rights and indigenous issues: Report of the Special Rapporteur

on the situation of human rights and fundamental freedoms of indigenous people, Rodolfo Stavenhagen”,

E/CN.4/2003/90, (2003).

Human Rights Council, “Promotion and protection of all human rights, civil, political, economic, social

and cultural rights, including the right to development: Report of the Special Rapporteur on the situation

of human rights and fundamental freedoms of indigenous peoples, James Anaya”, A/HRC/12/34, (2009).

86

Human Rights Council, “Report of the Special Rapporteur on the situation of human rights and

fundamental freedoms of indigenous people, James Anaya”, A/HRC/15/37, (2010).

Human Rights Council, “Report of the Special Rapporteur on the rights of indigenous peoples, James

Anaya: Extractive industries operating within or near indigenous territories”, A/HRC/18/35, (2011).


Anaya: Addendum, Communications sent to and received from Governments”, A/HRC/18/35/Add.1,

(2011).


Anaya”, A/HRC/21/47, (2012).


Anaya: Extractive industries and indigenous peoples”, A/HRC/24/41, (2013).

Human Rights Council, “Report of the Special Rapporteur on the rights of indigenous peoples, Victoria

Tauli Corpuz”, A/HRC/27/52, (2014).

Human Rights Council, “Report of the Special Rapporteur on the rights of indigenous peoples, Victoria

Tauli Corpuz”, A/HRC/30/41, (2015).

Human Rights Council, “Report of the Special Rapporteur on the rights of indigenous peoples”,

A/HRC/33/42, (2016).

Human Rights Council, “Report of the Special Rapporteur on the rights of indigenous peoples on her

mission to Brazil”, A/HRC/33/42/Add.1, (2016).

Human Rights Council, “Report of the Special Rapporteur on the Rights of Indigenous Peoples on her

mission to Brazil: Addendum: Comments of the Government of Brazil to the report of the Special

Rapporteur”, A/HRC/33/42/Add.5, (2016).

4. Permanent Forum on Indigenous Issues

ECOSOC, “Establishment of a Permanent Forum on Indigenous Issues”, E/2000/22, (2000).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the first session”, E/2002/43/Rev.1-

E/CN.19/2002/3/Rev.1, (2002).

87

ECOSOC, “Review of Activities of the United Nations System Relating to Indigenous Peoples: an

interactive discussion”, E/CN.19/2002/2, (2002).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the third session”, E/2004/43-

E/C.19/2004/23, (2004).

Permanent Forum on Indigenous Issues, “Inter-Agency Support Group on Indigenous Issues; report on

free, prior and informed consent”, E/C.19/2004/11, (2004).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the fourth session”, E/2005/43-

E/C.19/2005/9, (2005).

Permanent Forum on Indigenous Issues, “Report of the International Workshop on Methodologies

regarding Free, Prior and Informed Consent and Indigenous Peoples”, E/C.19/2005/3, (2005).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the sixth session”, E/2007/43-

E/C.19/2007/12, (2007).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the eighth session”, E/2009/43-

E/C.19/2009/14, (2009).

Permanent Forum on Indigenous Issues, “A draft guide on the relevant principles contained in the United

Nations Declaration on the Rights of Indigenous Peoples, International Labour Organisation Convention

No. 169 and International Labour Organisation Convention No. 107 that relate to Indigenous land tenure

and management arrangements.”, E/C.19/2009/CRP.7, (2009).

ECOSOC, “Permanent Forum on Indigenous Issues: Report on the tenth session”, E/2011/43-

E/C.19/2011/14, (2011).

Permanent Forum on Indigenous Issues (PFII), “Situation of indigenous peoples in danger of extinction in

Colombia: Summary of the report and recommendations of the mission by the Permanent Forum to

Colombia”, E/C.19/2011/3, (2011).

Permanent Forum on Indigenous Issues, “Tenth anniversary of the United Nations Declaration on the

Rights of Indigenous Peoples: measures taken to implement the Declaration: Note by the Secretariat”,

E/C.19/2017/4, (2017).

5. Human Rights Committee

Human Rights Committee, “General comment No. 23(50) (art. 27)”, CCPR/C/21/Rev.1/Add.5, (1994).

88

Human Rights Committee, Apirana Mahuika et al. v. New Zealand, Communication No. 547/1993,

CCPR/C/70/D/547/1993, (2000).

Human Rights Committee, “Concluding observations of the Human Rights Committee: Chile”,

CCPR/C/CHLR/CO/5, (2007).

Human Rights Committee, “Concluding observations of the Human Rights Committee: Panama”,

CCPR/C/PAN/CO/3, (2008).

Human Rights Committee, “Concluding observations of the Human Rights Committee: Nicaragua”,

CCPR/C/NIC/CO/3, (2008).

Human Rights Committee, Ángela Poma Poma v. Peru, Communication No. 1457/2006,

CCPR/C/95/D/1457/2006, (2009).

Human Rights Committee, “Rules of procedure of the Human Rights Committee”, CCPR/C/3/Rev.10,

(2012).

6. Committee on Economic, Social and Cultural Rights

Committee on Economic, Social and Cultural Rights, “Concluding observations of the Committee on

Economic, Social and Cultural Rights: Canada”, E/C.12/1/Add.31, (1998).


Economic, Social and Cultural Rights: Colombia”, E/C.12/1/Add.74, (2001).


Economic, Social and Cultural Rights: Ecuador”, E/C.12/1/Add.100, (2004).

Committee on Economic, Social and Cultural Rights, “General comment No.21: Right of everyone to

take part in cultural life (art.15, para.1(a), of the International Covenant on Economic, Social and Cultural

Rights)”, E/C.12/GC/21, (2009).

7. Committee on the Elimination of Racial Discrimination

Committee on the Elimination of Racial Discrimination, “General Recommendation XXIII on the rights

of indigenous peoples”, (1997).

89

Committee on the Elimination of Racial Discrimination, “Procedural Decisions of the Committee on the

Elimination of Racial Discrimination, Australia: Decision 2(54) on Australia”, A/54/18, para.21(2),

(1999).

Committee on the Elimination of Racial Discrimination, “Concluding observations of the Committee on

the Elimination of Racial Discrimination: Costa Rica”, CERD/C/60/CO/3, (2002).

Committee on the Elimination of Racial Discrimination, “Concluding observations of the Committee on

the Elimination of Racial Discrimination: Ecuador”, CERD/C/ECU/CO/19, (2008).

8. Other

General Assembly (GA), “General Assembly adopts Declaration on rights of indigenous peoples: ‘Major

step forward’ towards human rights for all, says president”, Press Release GA/10612, (2007).

OHCHR, “Guiding Principles on Business and Human Rights”, A/HRC/17/4, (2011).

OHCHR, “Indigenous Peoples and the United Nations Human Rights System”, Fact Sheet No. 9/Rev. 2,

(2013).

Economic and Social Council (ECOSOC), “Study of the problem of discrimination against indigenous

populations”, Resolution 1982/34, (1982).

Economic Commission for Latin America and the Caribbean (ECLAC), “Guaranteeing indigenous

people’s rights in Latin America. Progress in the past decade and remaining challenges”,

LC/L.3893/Rev.1, (2014).

E. Internet publications

AIPP, FPP, IUCN, “Mining, the Aluminium Industry, and Indigenous Peoples: Enhancing Corporate

Respect for Indigenous Peoples’ Rights”, (2015).

http://www.forestpeoples.org/sites/fpp/files/news/2015/11/Mining,%20the%20Aluminium%20Industry%

20and%20Indigenous%20Peoples.pdf

Barrionuevo, A., “Brazilian Amazon Groups Invade Site of Dam Project”, The New York Times, (27

October 2011). http://www.nytimes.com/2011/10/28/world/americas/brazilian-amazon-groups-try-to-

stop-dam-project.html

90

DPLF, “Right to Free, Prior, and Informed Consultation and Consent in Latin America”, (2015).

http://www.dplf.org/sites/default/files/executive_summary_consultation_2015_web_02-17-2016_c.pdf

DPLF, “The Right of Indigenous Peoples to Prior Consultation”, (2011).

http://www.dplf.org/sites/default/files/1302034794.pdf

ECLAC, “Guaranteeing indigenous people’s rights in Latin America. Progress in the past decade and

remaining challenges”, (2014). http://www.cepal.org/en/publications/guaranteeing-indigenous-peoples-

rights-latin-america-progress-past-decade-and-remaining

FIDH, “Human Rights Situation in the State of Pará, Brazil”, (2005),

https://www.fidh.org/IMG/pdf/Para_Brazil_427-2eng.pdf

IWGIA, “The Indigenous World 2014” (2014).

http://www.iwgia.org/iwgia_files_publications_files/0671_I2014eb.pdf

IWGIA, FPP, MacKay, F., “Guide to Indigenous Peoples’ rights in the Inter-American Human Rights

System”, (2002). http://www.iwgia.org/publications/search-pubs?publication_id=93

NSI, “A House Undermined: Transforming relations between mining companies and Indigenous Peoples

in the Americas”, (2011). http://www.nsi-ins.ca/wp-content/uploads/2012/10/2011-A-House-

Undermined-Tranforming-Relations-Between-Mining-Companies-and-Indigenous-Peoples-in-the-

Americas.pdf

NSI, “Tipping the Power Balance: Making Free, Prior and Informed Consent Work”, (2011).

http://www.nsi-ins.ca/wp-content/uploads/2012/10/2011-Tipping-the-Power-Balance-Making-Free-Prior-

and-Informed-Consent-Work.pdf

OAS, “A 17-Year Wait Pays off for Indigenous Peoples”, OAS Press Release E-075/16, (15 June 2016).

http://www.oas.org/en/media_center/press_release.asp?sCodigo=E-075/16

OECD, ECLAC, CAF, “Latin American Economic Outlook 2017: Youth, Skills and Entrepreneurship”,

(2016). http://dx.doi.org/10.1787/leo-2017-en

Oxfam, “Case Study: Bolivian Government Consultation with the Guaraní Indigenous Peoples of

Charagua Norte and Isoso”, (15 November 2010).

https://www.oxfamamerica.org/static/media/files/oxfam-bolivia-consultation-process-nov-2010-final.pdf

http://www.dplf.org/sites/default/files/executive_summary_consultation_2015_web_02-17-2016_c.pdf

http://www.dplf.org/sites/default/files/1302034794.pdf

http://www.cepal.org/en/publications/guaranteeing-indigenous-peoples-rights-latin-america-progress-past-decade-and-remaining

http://www.cepal.org/en/publications/guaranteeing-indigenous-peoples-rights-latin-america-progress-past-decade-and-remaining

https://www.fidh.org/IMG/pdf/Para_Brazil_427-2eng.pdf

http://www.iwgia.org/iwgia_files_publications_files/0671_I2014eb.pdf

http://www.iwgia.org/publications/search-pubs?publication_id=93

http://www.nsi-ins.ca/wp-content/uploads/2012/10/2011-A-House-Undermined-Tranforming-Relations-Between-Mining-Companies-and-Indigenous-Peoples-in-the-Americas.pdf



http://www.nsi-ins.ca/wp-content/uploads/2012/10/2011-Tipping-the-Power-Balance-Making-Free-Prior-and-Informed-Consent-Work.pdf

http://www.nsi-ins.ca/wp-content/uploads/2012/10/2011-Tipping-the-Power-Balance-Making-Free-Prior-and-Informed-Consent-Work.pdf

Documents

Indigenous People in Latin-America and their Right to Free