No Going Back: The Impact of ILO Convention 169 on Latin America in Comparative Perspective

Abstract

In this article we assess the impact of the International Labour Organization’s 1989 Indigenous and Tribal Peoples Convention (ILO C-169) since it entered into effect in 1991. We examine the Convention’s impact on selected key Latin American states which have ratified the Convention: Bolivia, Brazil, Chile, Colombia, Mexico and Peru. We analyze each country’s constitutional order, legislative and jurisprudential developments, as well as different policy developments concerning indigenous peoples and their rights. We also trace the development of indigenous peoples’ rights in the same period in two non-ratifying states—Australia and Canada—along the same dimensions. We compare the impacts that these laws and policies have had on indigenous peoples’ rights, both in the six Latin American signatories as well as in Australia and Canada. In particular, we examine the indigenous right to political participation and self-government, as well as on the right to land, territories and natural resources. In doing so we assess the right of indigenous peoples to prior consultation and free, prior and informed consent (FPIC), and to participate in the benefits provided by resource extraction on their lands and territories. We then analyze and discuss the impact that ILO C-169 has had on non-ratifying states, in the case of in Australia and Canada. We argue that ILO C-169 has had an indirect but nevertheless decisive impact on these tow states expressed in legal developments, jurisprudence and policies that concern indigenous peoples. We conclude that ILO C-169 represents a key step in the recognition and protection of indigenous peoples’ rights. Whether directly or indirectly, and notwithstanding the many gaps still left to address, it demonstrates that there is no going back on indigenous peoples’ rights.