The International Journal of Human Rights

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Three decades since the ILO’s Convention 169:

reflections in light of the experience of the private
sector with prior consultation

Roberto Suárez Santos

To cite this article: Roberto Suárez Santos (2020) Three decades since the ILO’s Convention 169:
reflections in light of the experience of the private sector with prior consultation, The International
Journal of Human Rights, 24:2-3, 272-278, DOI: 10.1080/13642987.2019.1677618

To link to this article: https://doi.org/10.1080/13642987.2019.1677618

Published online: 24 Oct 2019.

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THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS
2020, VOL. 24, NOS. 2–3, 272–278
https://doi.org/10.1080/13642987.2019.1677618

Three decades since the ILO’s Convention 169: reflections in

light of the experience of the private sector with prior
consultation
Roberto Suárez Santos
International Organisation of Employers, Geneva, Switzerland

ABSTRACT ARTICLE HISTORY

Three decades have already passed since the Indigenous and Tribal Received 14 August 2019
Peoples Convention 1989 (C169) came into force. It is not a short Accepted 19 September 2019
period of time and in terms of putting it into practice significant
KEYWORDS
experience has been gained especially in Latin America, the ILO; Convention 169; private
region with the highest number of countries that have ratified it: sector
a total of twenty-three (including the most recent, Luxembourg),
fourteen of which are Latin American countries. As a result of this,
the reflections in this chapter arise predominantly from the
implementation in this region, with a special emphasis on the
experiences of Chile, Colombia, Peru, Guatemala, Honduras and
Costa Rica. Generally, what has occurred in the other countries in
this region is that the Convention has simply been ratified,
without being officially put into practice by the respective
Governments, or without its implementation having been properly
demanded, in particular with regard to the prior consultation of
the indigenous peoples provided for in article 6 of the Convention.

1. Introduction
Three decades have already passed since the Indigenous and Tribal Peoples Convention
1989 (C169) came into force. It is not a short period of time and in terms of putting it
into practice significant experience has been gained especially in Latin America, the
region with the highest number of countries that have ratified it: a total of twenty-three
(including the most recent, Luxembourg), fourteen of which are Latin American countries.
As a result of this, the reflections in this chapter arise predominantly from the implemen-
tation in this region, with a special emphasis on the experiences of Chile, Colombia, Peru,
Guatemala, Honduras and Costa Rica. Generally, what has occurred in the other countries
in this region, is that the Convention has simply been ratified, without being officially put
into practice by the respective Governments, or without its implementation having been
properly demanded, in particular with regard to the prior consultation of the indigenous
peoples provided for in article 6 of the Convention.
It is evident that Convention 169 involves an important challenge for the International
Labour Organization (ILO), in that it is not a ‘typical’ Convention for the work of the
organisation for various reasons, particularly because it grants special status to a

CONTACT Roberto Suárez Santos suarezsantos@ioe-emp.com

© 2019 Informa UK Limited, trading as Taylor & Francis Group
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 273

population group that has not received special attention except for the Indigenous and
Tribal Populations Convention, 1957 (No. 107): this originates from a colonial era in
which the link between the ‘metropolises’ and indigenous populations had a very
intense labour component.
Convention 169 considers a series of just demands for indigenous peoples by ensuring
them of adequate involvement in the development processes to enable them to preserve
their cultural heritage, paying special attention to educational policies, but also in ways
that facilitate the promotion of good employment in their population and territories.
The private sector, therefore, supported the adoption of this Convention in 1989, aware
of the importance of overcoming the assimilationist hue of Convention 107, and of pro-
moting the broadest and most effective participation on behalf of indigenous and tribal
peoples.
In this framework, the launch of the Convention in Latin America has particular chal-
lenges in the application of the prior consultation considered in article 6. The reflections
here are focused on this particular aspect, without rejecting other content of the Conven-
tion, which have not shown such cause for concern.

2. General concerns with regard to the application of Convention 169

The following are some of the main business concerns in light of the reality with regard to
prior consultation.

2.1. Lack of appropriate regulation

The business sector in the region is concerned about some of the aspects arising from the
application of Convention 169, undoubtedly highlighting the lack of appropriate regu-
lation of prior consultation in some countries. Increasingly, the application of this obli-
gation by Governments is being demanded through the courts, as opposed to resorting
to administrative or regulatory measures.
Some countries have spent almost a decade with various failed regulatory attempts
(Guatemala), or, it took too long to create a legal framework, as in the case of Costa
Rica. Additionally, the involvement of the business sector in the development of this regu-
lation has been minimum or null. To this, we must add the confusion caused by the inter-
vention contrary to the involvement of the private sector on behalf of some of the High
Instances of the United Nations System.
This lack of appropriate regulation of the prior consultation has resulted in judicial
uncertainty, and in some instances very serious consequences, as has been the case in Gua-
temala for almost a decade. This has been seen more recently in Honduras and Costa Rica.
On the other hand, there is a growing and increasingly contentious demand for the
prior consultation to be applied directly, without such a clear call to adopt legislative
measures which, logically, would have a greater impact as a consequence of their
general nature. These demands have centred upon calling for administrative measures
associated with the operating licences for private investments in the extractive and hydro-
electric industries.
Here, it is important to note that following the period of neglect towards the end of the
previous decade, governments seemed to ‘remember’ the existence of this Convention.
274 R. S. SANTOS

More specifically, this reminder came as a result of important projects of extractive and
hydroelectric investment. The fact is that in some of these cases, the legal requirements
have resulted in violence, confusion and social destabilisation in its interpretation and
application, which have even caused the suspension and cancellation of projects already
underway, in addition to the postponement or rejection of future investment projects.
This is particularly serious in countries with high levels of unemployment, extremely
high levels of unreliability and fragile economies, even more so if the ILO’s priority is
taken into account; and promoting good employment. Instead, this is rather the misappli-
cation of prior consultation that has rather frightened and punished the sound investment
which generates good employment.
It is for this reason that the International Organisation of Employers has eagerly
requested the ILO to assume its historical obligation and debt by offering technical
advice to Governments to appropriately regulate prior consultations, considering the
interests and needs of the private sector and within the tripartite framework upon
which the Organisation itself is based.

2.2. Lack of tripartite consultation: exclusion or limitation of employers’

organisations
Within this framework of a lack of appropriate regulation of prior consultation, there is
also concern regarding the lack of tripartite consultation and in particular, the lack of
involvement of Employers and Business Organisations in the process, in clear violation
of Convention 144 where it has been ratified, as well as of the tripartite nature of the
ILO. In addition, this exclusion contradicts the 1989 Resolution on ILO action concerning
the Indigenous and Tribal Peoples and the ILO Tripartite Constituents’ Handbook:
‘Understanding the Convention on Indigenous and Tribal Peoples’.
It is also of great concern that ILO Convention 144 is being interpreted by some Gov-
ernments in an excessively restrictive manner, thus justifying the total exclusion of the
employer sector from the process of designing a prior consultation mechanism. These
are practices that will undoubtedly affect and ultimately affect employment and sustain-
able development, with the aggravating factor that this mechanism decreed in a non-con-
sulted manner that distorts the responsibility of public institutions and irresponsibly shifts
the costs of prior consultation to companies that request permits from the State in order to
carry out their activity.

2.3. Confused and inconsistent jurisprudence with the text and spirit of C 169: de
facto judicial veto power
Undoubtedly, the main source of legal uncertainty originates from the confusing, contra-
dictory and inconsistent interpretation and application of the text and spirit of Conven-
tion 169 by both national and supranational courts. The most confusing scenario
occurs in those cases where court authorities unreasonably assimilated the scope of the
consultation provided for in Convention 169 to that of a plebiscitary event.
This led to a complete denaturalisation of the purpose of intercultural dialogue that
presupposes the correctly performed prior consultation, confusing it with other figures
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 275

of community consultations by way of a voting system, on the same project, causing both
confusion and unfounded expectations.
Fortunately, this confusion has been overcome thanks to the intervention, albeit some-
what delayed by the ILO, clarifying when the Convention requires and when it does not
require, an obligation of prior consent, as referred below.
On the other hand, there are also confusing jurisdictional criteria (especially by some
Constitutional Courts) that require prior consultation, even in cases where there is
prior express regulation implemented by the Convention. In practice, this legal require-
ment becomes a de facto veto which paralyses projects and investment, as it is very
difficult to lead a consultation process if it is not expressly regulated by the State. This
is detrimental to the direct interest of these populations, who need sustainable develop-
ment that generates decent employment, while preserving their cultural heritage and
natural environment.
Hence, another key aspect that urgently needs to be clarified, especially in those
countries that have not yet developed adequate regulation on prior consultation, are the
effects of judicial rulings when the lack of consultation is challenged in a court of
law or an administrative decision is objected to in application of the provisions of
Convention 169.
In this sense, judgements with retroactive and suspensory effects (in constitutional or
contentious-administrative headquarters) with respect to permits legitimately granted
prior to regulation, are of particular concern, thus causing the consequent legal
uncertainty.

2.4. Lack of specialist knowledge in the state: executive, legislative and judicial
In direct relation to the previous point, generally speaking, there is still a great lack of
knowledge about Convention 169, in particular regarding prior consultation. This is
very serious in countries that ratified the Convention more than two decades ago and
in which neither the Governments nor the ILO itself have undertaken their own task of
informing and training state authorities about its correct application. The Handbook
for ILO tripartite constituents on understanding Convention 169 remains very unfamiliar.
It is for this reason that the employer sector has reiterated the urgent need to expand
ILO action with regard to the development of capacities in States that have ratified the
Convention, in order for them to assume their legal and increasingly historic obligation
after many years of inactivity in this regard. In this sense, there are two additional lines
of technical assistance that are needed. Capacity building of Judicial Powers is needed
in order for them to interpret and correctly apply the obligation to prior consultation
when cases are presented to them. Also, building the capacity of the Legislative Power
is needed to draw up adequate regulations on prior consultation, with the due partici-
pation of the actors involved, including the business sector.

2.5. Proportionality in application criteria and costs

Another serious problem that can be observed in some countries relates to the fact and the
intention of transferring the responsibility of complying with the obligation of prior con-
sultation with indigenous peoples from States to companies. The ultimate expression of
276 R. S. SANTOS

this irresponsible transfer of responsibilities is when the State abandons functions or

simply transfers the costs of this consultation to the private sector.
Although it may be true that in specific cases where large projects are involved, typically
those which involve concessions for the exploitation of public property, it would be justified
for countries, once these concessions have been awarded and prior consultation has been
successfully completed, to make a special contribution to the State as a means of covering
the costs of consultations which, due to the complexity of these projects, are a significant
expense. However, this is not the case in the majority of the projects that should be
subject to prior consultation, and it is unjust for small projects with very little impact to
add new burdens to micro and small entrepreneurs, especially in a region such as that of
Latin America with such high levels of business mortality and informality.
If the States do not make sensible judgment in determining which administrative
measures and which drafts are subject to prior consultation, including the determination
of the cost of this consultation process, it would rather be imposing a new additional cost
to those which are already high and which would eventually become an additional incen-
tive to enter into and remain part of the world of informality.
Moreover, if Governments do not directly and fully assume the costs of the prior con-
sultation, at least two perverse incentives are generated. First, they will not apply the
necessary principle of economic efficiency when designing the consultation process,
adhering to what is strictly necessary to ensure adequate intercultural dialogue on a tech-
nical basis, generating the risk of exaggerating the costs of such consultation. And, sec-
ondly, they will have a perverse incentive to submit any administrative measure for
prior consultation as they will not be financing it, inhibiting them from developing a
necessary and strict principle of self-restraint.
It is therefore essential for States to design optimal prior consultation processes both in
terms of intercultural and economic dialogue, as a means to avoid excesses by creating
unhealthy markets for consultants and advisers who will promote unnecessarily extensive
consultations and unreasonable requirements with the sole purpose of illegitimately char-
ging fees. Furthermore, and for that very reason, the States should apply the so-called pro-
portionality test, as carried out by the Government of Peru and which is considered good
practice. Thanks to a very valuable experience, it has been refining the criteria under which
to determine whether or not a measure should be subject to prior consultation, under the
understanding that it corresponds to measures which generate negative impacts on indi-
genous peoples.

2.6. Application of non-binding instruments unrelated to Convention 169

A growing concern in the employer sector is that which relates to the intention to assim-
ilate the United Nations Declaration on Indigenous Populations with Convention 169. At
this point, it is fundamental to be very clear that for countries which have ratified it, the
Convention is a binding judicial instrument and thus of mandatory compliance by those
particular States. The Declaration, although important in both its spirit and purpose, does
not have the legal status of a Convention.
It is clear that the contemporary confusion which exists in many countries and in par-
ticular the jurisdictional scope, stems from the extensive application of the Declaration
by the Inter-American Court of Human Rights, which in practice, has assimilated it into
 THE INTERNATIONAL JOURNAL OF HUMAN RIGHTS 277

the Convention. However, this is legally incorrect and this misled many national courts that
have confused the two, failing to understand that the formal, normative source is Conven-
tion 169, together with the legal system in place in each individual country. The Declaration
would only be applicable insofar as the express, binding norms and the corresponding hier-
archy according to the internal order, require systematic interpretation in the face of inter-
pretative voids, which is not the case here in this discussion regarding prior consultation.
The case of countries that have given legal status to the Declaration, and where the
Declaration already assumes a normative and binding character, is different.

2.7. Institutional weakness for the correct application of the Convention

Convention 169 has demonstrated, especially in Latin America, the pressing need to
strengthen the state capacities in the world of work, to which the urgent need to
develop specialist capacities to regulate and adequately put the prior consultation into
practice, is to be added. The reality demonstrates that these capacities, after a period of
more than two decades, did not exist at all, and they have had to be created slowly and
gradually amid growing and legitimate demands for compliance with prior consultation
by indigenous peoples.
It is for this reason that it is now essential for the United Nations to contribute, along-
side the ILO, towards the development of these capacities, but under the ILO’s technical
leadership, developing not only specialist knowledge but also designing an architecture tai-
lored to the needs of the implementation of prior consultation, in accordance with the rea-
lities of each individual country.
This is key in order to generate the necessary coherence in the action of the different
state levels (federal, national and local) and at the same time their powers and autonomous
bodies. Today, in general, it seems that we are far from achieving this level of specialisation
and coherence within the States, which is why it is urgent that the ILO emphasises this line
of technical assistance, with the collaboration of the other organisations in the system and
in addition to the different public and private bodies interested in the development of the
affected countries and, in particular, indigenous peoples.
In this sense, we must remember, in particular, when writing and reading from devel-
oped countries, that many countries with significant challenges in terms of implementing
prior consultation are also those with the highest levels of poverty, institutional weak-
nesses and democratic deficits. It is for this reason that Convention 169 imposes new
and superior obligations in order to give them all the support required to carry out a
task that seems easy from a distance, but the reality is that it has turned out to be signifi-
cantly more complex than anyone could have perhaps ever imagined.

3. Final observations: an urgent need to recover the original spirit of

Convention 169 under the proactive leadership of the ILO
Thirty years after Convention 169 it is evident that during the first two decades of the Con-
vention being in force, it seems to have been forgotten, including by the ILO itself; and it
was not until the previous decade that the existence of the Convention appears to have
been ‘remembered’, or put into action. At that point, the ILO’s responsiveness to assist
authorities in the proper application was, and still remains, too limited.
278 R. S. SANTOS

This made it easier for the issue of prior consultation to be taken up by other actors and
United Nations agencies which do not understand the ILO’s particularity with regard to its
tripartite structure, which features social dialogue as its cornerstone. Of course, this does
not mean excusing States from their responsibility for having ratified the Convention and
having taken on their task of developing an adequate regulatory and institutional frame-
work that allows both full respect for the rights of indigenous peoples, as well as for com-
panies to operate legitimately and for the population to benefit from the general progress
which comes as a result of private activity.
Therefore, it is a more than opportune time to reflect on the real impact the implemen-
tation of Convention 169 has had, with emphasis on the prior consultation, especially in
Latin American countries. And in this reflection, the employer sector wants and must have
a central voice, as there is no doubt that in several countries, the private sector has been
especially affected by the action or omission of the Executive, Legislative and more recently
the Judiciary, with a certain judicial activism that has generated confusion and legal uncer-
tainty with very serious consequences for formal business activity.
This situation of confusion may only be overcome with clear, decisive action with a
solid base on empirical evidence from the ILO and different actors, built on its founding
principle of social dialogue, without excluding any of its constituents.
Convention 169 has in its spirit, not only a historic demand with indigenous peoples,
but also a vocation to strengthen democratic governance through the adequate partici-
pation of these peoples in the design and implementation of the public policies which
affect them.
In summary, the ILO should take up its corresponding leadership with regard to Con-
vention 169, firmly supporting Governments in order to regulate and appropriately put
into practice prior consultation, offering relevant technical assistance which is clear and
focused on resolving the problems which have been outlined here. This will not only
make it a decisive contribution to the fulfilment of the promise outlined in Convention
169, but it will also contribute to the strengthening of the democratic governance in the
countries in which it has been ratified, favouring an environment that is conducive to
business and which facilitates greater creation of decent employment, without disrespect-
ing the rights of any individual or collective subject, especially of indigenous peoples who
benefit most from the development.

Disclosure statement
No potential conflict of interest was reported by the author.

Notes on contributor
Roberto Suárez Santos was appointed Secretary-General of the International Organisation of
Employers (IOE) on 26 October 2018, having held the post of Deputy Secretary-General since
December 2012. Prior to joining the IOE, Roberto was ILO Programme Director for the promotion
of youth employment in the Maghreb region. He previously worked at the Spanish Confederation
of Employers’ Organisations (CEOE) in various areas ranging from comparative labour policies and
labour relations to youth unemployment and social and employment policy. Roberto is a trained
lawyer with experience in European and international labour law, as well as in international
relations. In addition to his native Spanish, he speaks French and English.