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Indigenous Peoples' Rights in Convention 169 and the obligations of States for its ratification

Indigenous Peoples' Rights in Convention 169 and the obligations of States for its ratification

By Efrén Diego Domingo

There is no doubt that the native peoples of the American continent continue to be victims of serious violations of their human rights and fundamental freedoms in the nation states where they live. The dissemination and information on indigenous collective rights and the obligations of the States to enforce them is a fundamental issue, since only by knowing the rights can they be defended.

1. Introduction


There is no doubt that the native peoples of the American continent continue to be victims of serious violations of their human rights and fundamental freedoms in the nation states where they live. In the first place, the violations occur precisely because the States do not fulfill their function of guaranteeing, respecting, promoting and protecting the human rights of all their inhabitants, especially indigenous people. Second, the violations occur due to the indigenous peoples' own ignorance of the national and international norms and mechanisms that recognize, guarantee and protect their rights.

For this reason, the dissemination and information on indigenous collective rights and the obligations of the States to enforce them is a matter of greater importance. Well, only by knowing the rights can they be defended, because nobody can defend what they do not know. Nor can States be expected to comply with or voluntarily observe these rights if they are not required to do so.

Based on what we have said, these lines will deal with an instrument that to date continues to be of greater importance for the original peoples of the continent: Convention 169 of the International Labor Organization, as it is a binding human rights instrument for States. that ratify it.

Starting then on the subject, we will say with Jorge Gonzáles Galván (expert from the Institute of Legal Research of UNAM) that “Explanations of legal situations must be disseminated without the author taking them seriously. The importance of the fact does not necessarily lie in the seriousness with which it is treated. The pleasant and clear disclosure of what is analyzed, enlivens and clarifies the reading comprehension. Amenity and irony are ways of circulating legal knowledge based on good reasoned humor ”.

2. What is ILO Convention 169?

Convention 169 of the International Labor Organization on Indigenous and Tribal Peoples in Independent Countries is, without a doubt, the most well-known instrument of international law, cited and, above all, raised as a flag of struggle by millions of indigenous people around the world and invoked as the legal reference par excellence to achieve claims and changes in the legislation of the countries or in other international normative instruments. Its binding nature derives from the fact that it is a convention, agreement or treaty, meaning "an international agreement entered into in writing between states and governed by international law, whether it is contained in a single instrument or in two or more related instruments and whatever its particular name", in accordance with the Vienna Convention on the Treaty Law. [one]

3. Basic principles of the Convention

This international human rights instrument has, according to Mexican lawyer Magdalena Gómez, as basic principles:

a) Respect for the cultures, ways of life and traditional organizations and institutions of indigenous and tribal peoples;

b) The effective participation of these peoples in the decisions that affect them;

c) The establishment of adequate mechanisms and procedures to comply with the Agreement according to the conditions of each country.

4. What are the rights established in the Convention?

  • Right to self-identification.
  • Right to participate in State policies that affect them.
  • Right to non-discrimination in the enjoyment of human rights and fundamental freedoms.
  • Right to their own institutions and to the conservation of the environment.
  • Right to the recognition and protection of their values ​​and social practices.
  • Right to be consulted through their representative institutions, whenever legislative or administrative measures are foreseen that may affect them directly
  • Right to political participation as indigenous peoples.
  • Right to full development of its institutions and initiative, allocating resources for these purposes.
  • Right of consultation and free and informed consent in those interests that affect them.
  • Right of autonomy and self-determination.
  • Right to improve their living conditions.
  • Right to the application of their indigenous normative systems.
  • Right to the strengthening of their own rights and their own institutions.
  • Right to own jurisdiction in order to punish crimes committed by its members.
  • Right for judges to take into account customs and regulatory systems in administrative and judicial decisions.
  • Right to obtain sanctions other than imprisonment from the courts.
  • Right not to be objects of compulsory personal services of any kind.
  • Right to be protected against the violation of their rights and to jurisdiction either personally or through their representative institutions.
  • Right to express themselves in their own language before the judicial and administrative powers, providing interpreters if necessary.
  • Right to territory, understood as the entire habitat of the regions that indigenous peoples occupy or use in some other way and especially the collective aspects of that relationship.
  • Right to own and possess the lands they traditionally occupy.
  • The right to use lands that are not exclusively occupied by them, but to which they have traditionally had access for their traditional and subsistence activities, especially as regards nomadic peoples and itinerant farmers.
  • Right to the adoption of special measures for the determination of their lands and territories.
  • Right to effective protection of their property and possession rights.
  • Right to adequate procedures within the legal system to settle land claims.
  • Right of participation in the use, administration and conservation of its natural resources.
  • Right to be consulted in order to determine whether the interests of indigenous peoples will be harmed by the exploration or exploitation of natural resources existing on their lands.
  • Right to participate in the benefits of the exploitation of its natural resources.
  • Right to be compensated for damages suffered as a result of said exploitation.
  • Right not to be transferred from the lands they occupy.
  • Right to free and informed consent in case of necessary transfer, with indigenous participation where they have the possibility of being effectively represented.
  • Right to return to their traditional lands when the causes that motivated their transfer and relocation no longer exist.
  • Right to receive lands whose quality and legal status are at least equal to those they previously occupied when such return is not possible.
  • Right to compensation to the transferred persons for any loss or damage they have suffered as a result of their displacement.
  • Right to the transmission of land rights among its members, according to their right.
  • Right of consultation in case of considering their ability to alienate their lands or another form of transmission of their rights over those lands outside their community.
  • The right that strangers cannot assume the property, possession or use of the lands that belong to them, based on their customs or. ignorance of the laws.
  • Right to have the law provide appropriate sanctions against any intrusion or unauthorized use of their lands.
  • Right to the allocation of additional lands when those available are insufficient for their normal existence and numerical growth.
  • Right to the granting of the necessary means by the State for the development of the lands that indigenous peoples already possess.
  • Right to the adoption by the State of special measures, with indigenous participation, for protection in terms of hiring and employment conditions.
  • Right to the guarantee of non-discrimination in relation to access to employment, equal respect for non-indigenous workers, medical and social assistance, safety and hygiene at work, social security and housing.
  • Right of association and to enter into collective agreements with employers or employers' organizations.
  • Right to adequate information regarding the legal conditions of employment and the legal resources available to them.
  • Right not to be subjected to work conditions dangerous to health.
  • Right not to be subject to coercive contracting systems.
  • Right to equal opportunities and treatment for men and women and protection against sexual harassment.
  • Right to control by the State of the employment conditions.
  • Right to equal opportunities in the means of professional training with respect to other citizens.
  • Right to voluntary participation in vocational training programs of general application.
  • Right to specific professional training plans.
  • Right to have specific plans based on the economic, social and cultural environment and their specific needs.
  • Right to have all studies carried out in cooperation and consultation with indigenous peoples.
  • Right to the recognition and strengthening of their handicrafts, rural industries, traditional activities - fishing, hunting and gathering - as important factors in the maintenance of their culture and their self-sufficiency and economic development.
  • Right to request appropriate technical and financial assistance based on traditional techniques and their cultural characteristics.
  • Right to the application of pension regimes without discrimination.
  • Right to adequate health services.
  • Right to health services at the community level, with indigenous participation.
  • Right of preference for access to employment in health services for members of the indigenous community.
  • Right to acquire an education at all levels on an equal footing with the rest of the national community.
  • Right to participate in educational programs and services, including their history, knowledge and techniques, their value systems and their social, economic and cultural aspirations.
  • Right to have the responsibility for carrying out educational plans and programs transferred to indigenous peoples.
  • The right of indigenous peoples to create their own educational institutions and facilities, with resources destined for this.
  • Right to education in the indigenous language or in the language of each people.
  • Right to master the official language.
  • Right to the State to adopt special measures to preserve indigenous languages ​​and to promote their development and practice.
  • Indigenous children's right to access general knowledge and skills that help them participate fully and on an equal footing in the life of their own community and that of the national community.
  • Right to access education and knowledge of their rights from their own language, especially through written translations and the mass media.
  • Right for the State to promote educational measures towards non-indigenous society in order to overcome prejudices.
  • Right for States to facilitate contacts and cooperation between indigenous peoples across borders, including economic, social, cultural, spiritual and environmental activities.
  • Right for the authority responsible for the application of the Convention to ensure that there are institutions to administer programs that affect indigenous peoples and that they have the necessary means to fulfill their functions and;
  • Right that the application of the provisions of the Convention is without prejudice to the rights and advantages guaranteed by virtue of other conventions and recommendations, international instruments, treaties or laws, awards, customs or national agreements

4. Obligations of the States for the ratification of Convention 169

As soon as the States ratify an international Human Rights Treaty or Convention, such as Convention 169, they have the duty to comply with the legal obligations assumed in the ratified instrument. In this case, says Rodolfo Rorhmoser (former president of the Constitutional Court of Guatemala) that the Agreement is enforceable by itself and therefore has binding force.

Two important aspects in this case:


1. In the application of each of the provisions of the Convention, the States may be obliged to apply them without any change to their domestic legal system, or to carry out an intermediate act for their application such as regulating, ordering administrative measures, carrying out consultations with indigenous peoples, establish a sanction and / or publish the Convention.

2. Of course, it must be recognized that some parts of the Convention, since they are programmatic standards, require the issuance of laws by the legislator to develop their provisions. An important observation by Jorge Gonzáles Galván (expert from the UNAM Legal Research Institute) is that the obligations of the States that ratify Convention 169 are found in 17 sentences contained in Articles 4, 6, 8., 12, 14 , 15, 17, 19, 20, 22, 25, 26, 30, 31, 32, 33, which so stipulate [2] and that it must be taken into account that they are Conventions that have the character of promotional that oblige the States to take legislative and administrative measures, that is, the bases are established for the States to implement policies for the development of indigenous peoples. In this sense they are considered to be norms promotional. The so-called promotional conventions are those whose purpose is to cause the States that ratify them to adopt certain policies that lead to improving the living conditions of indigenous peoples. Thus, each State, acting autarkically in the establishment of specific norms and practices, must deploy an additional activity. [3]

For this reason, the ILO Constitution in its article 35.1 establishes that "Members are obliged to apply the conventions they have ratified."

5. The Pacta sunt servanda principle, a principle that indigenous peoples can invoke.

Another important aspect that we must know is that there is also a norm in International Law that orders States to respect the treaties signed by them: The standard pacta sunt servanda.The Vienna Convention on the Law of Treaties also establishes the principle that international law has supremacy over domestic law. In its article 26 it says that " Any treaty in force binds the parties and must be complied with in good faith. and the 27 provides that A party may not invoke the provisions of its internal law as justification for the breach of a treaty.

In short, the ratification of the Convention by the States legally binds them at the national and international level. From there, all State agencies, as well as all judges, legislators and public officials are obliged to abide by and make everyone comply with ILO Convention 169. Judges must apply the content of Convention 169 in their decisions, taking into account the primacy of the Convention over other norms and the pro-indigenous principle established in Article 35 of the Convention; The Executive Branch is obliged to establish public policies, institutions and measures, with the effective participation of indigenous peoples, and legislators (deputies) are obliged to adapt the other national regulations to the spirit of Convention 169, through prior consultation with indigenous peoples.

6. Challenges of indigenous peoples

a) Make good use of the contents of Convention 169, as well as its application guide, the United Nations Declaration on the Rights of Indigenous Peoples and other instruments that recognize their rights;

b) Know how domestic legal remedies operate to defend collective rights, as well as that of the international human rights protection bodies: the Inter-American Commission and Court of Human Rights, the ILO's supervisory bodies and present complaints or information to the United Nations Special Rapporteur on the human rights and fundamental freedoms of indigenous peoples; Y

c) Promote a political struggle based on forceful mobilizations, alliances and coordination with other indigenous peoples, since we must know that a right that is not claimed or defended is lost.

d) Participate in any activity aimed at defending human rights: marches, protests, public complaints, etc.

Finally, Gabriela Olguín Martínez (ILO expert) suggests a minimum agenda for the defense of collective rights. Among some ideas that he suggests are:

  • The constitution of a basic team dedicated to indigenous rights.
  • Training in human rights and rights of indigenous peoples.
  • Alliances with like-minded organizations.
  • Contest of advisers and consultants identified and committed to the struggles of the indigenous movement.
  • Good communication to inform, disseminate and guide civil society on this problem.
  • Awareness campaign on symbolic dates or allusive to human rights and especially the rights of indigenous peoples.
  • Have a reserve fund.
  • Actions in the international sphere of the ILO.
  • The development of an observatory of indigenous rights.
  • Ensure that, within the social dimension of regional integration processes, the issue of indigenous rights is incorporated as a priority.
  • Establish indigenous networks, at the grassroots level, in order to monitor possible violations of indigenous rights.
  • Strengthen one or the home front.
  • Specialized advice to choose the most appropriate action from among the various options offered by the constitutional, administrative and criminal fields.
  • Know and make use of the mechanisms for the protection of human rights in the Inter-American System.
  • Know the most agile channels and networks in disseminating their problems and responding to their requests for support and solidarity.
  • Clearly identify the political authorities or public officials linked to the solution of indigenous problems and be able to exert public pressure in order to link them to indigenous positions or achieve decision-making favorable to our cause and,
  • Systematize the experience from Analysis of the strategy, analysis of the results obtained, analysis of the strengths, opportunities, weaknesses and threats and analysis of the instruments and methodology applied.

Cited sources:

  1. Convention 169 of the International Labor Organization.
  2. Vienna Convention on the Law of Treaties.
  3. Gabriela Olguín Martínez. Legal Guides Series - Indigenous Rights No. 4 Right of Indigenous Peoples in the Inter-American System.
  4. Jorge Gonzáles Galván. Convention 169 of the International Labor Organization on the Rights of Indigenous Peoples and the Obligations of Mexico with its ratification
  5. Magdalena Gomez. Indigenous Rights. Annotated Reading of Convention 169 of the International Labor Organization. INI, Mexico, 1995.
  6. Magdalena Gomez. Indigenous Law. National Indigenous Institute, Mexico 1997.

Pages consulted

  • www.juridicas.unam.mx
  • www.nacionmulticultural.unam.mx

Notes:

[1] The indigenous peoples of Mexico 100 questions. No. 79 What is ILO Convention 169? www.nacionmulticultural.unam.mx

[2] José Rolando Ordóñez Cifuentes, Mexico / Guatemala. Constitutionality of the Rights of Indigenous Peoples. Interdisciplinary Analysis. P. 26.

[3] http://www.juridicas.unam.mx/publica/rev/boletin/cont/96/art/art5.htm


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