Indigenous Peoples’ Consultation Rights: Inter-American Requisite for Democracy?

• In Event: Poster Session: LGBTQI+ Power and Politics & Human Rights
  In Poster Session: Poster Session: Human Rights

Abstract

Based on the formalist political perspective, in a pure sense the democracy may be a trap against minorities thanks to the majority rule’s applicability without constitutional devices for protecting them and effective mechanisms of pluralism. In this sense, the failure to protect unpopular groups may be resulted from the legislative’s incapability to face political, economic prevalent forces, in order to facilitate some kind of tyranny of majority to the detriment of the decisional minority, followed by de facto disenfranchisements with notorious consequences against indigenous groups and organizations.
Hence, due process rules seem able to provide procedural preconditions for democracy as an ex ante scheme of guaranties for promoting the equitable political participation. In scenarios where the consensus rule and the supermajority rule are separately applicable, for instance, the minority’s veto capability can work as an institutional brake against hostile interests or harmful legislation, which affect vulnerable minorities in an unbalanced political situation.
The research’s theoretical premise is situated in the doctrine of Ryan Goodman and Derek Jinks (Socializing States..., OUP, 2003; Incomplete Internalization and Compliance…, 19 Eur. J. Int’L L., 2008), according to which the International Law is able to encourage social processes of change within the State, in order to promote the human rights’ implementation through operative mechanisms of material induction, persuasion, and acculturation.
Additionally, the empirical qualitative analysis is essential to map the behavior patterns of the selected Latin American States, especially the States Parties to the American Convention on Human Rights, in order to understand the phenomenon under consideration, which consists in the normative cross-fertilization between international and national systems.
Considering the minority dimension of indigenous peoples, the Human Rights Committee (UN) edited the General Comment No. 23/1994, which states that the protection of a particular way of life is connected to the use of land resources in the case of indigenous peoples and, for granting the exercise of their rights, positive measures must be adopted to ensure the effective participation of minority communities’ members in decisions which affect them.
In its General Comment No. 21/2009, the Committee on Economic, Social and Cultural Rights (UN) asserts that States must recognize and protect the rights of indigenous peoples to own, develop, control and use their communal lands, territories and resources. In this sense, any use or exploitation of these common goods is legally conditioned by the respective communities’ free and informed consent.
Moreover, the definitive international conventional norm on the consultation rights was aggregated by the Convention ILO No. 169 (1989) after more than 30 years and several preparatory debates. Among current 24 States that ratified the ILO Convention, there are 15 Latin American States (Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Paraguay, Peru, and Venezuela), i.e., more than 60% of all ratifications by December 2022.
Complementarily, the Inter-American Court of Human Rights performs an important institutional role in the definition of international standards of indigenous rights, as several judgments may demonstrate:
a) Mayagna (Sumo) Awas Tingni v. Nicaragua (2001): recognition of communal ownership of indigenous lands;
b) Yakye Axa Community v. Paraguay (2005): test of legality, necessity, and proportionality to justify State intervention in indigenous affairs;
c) Moiwana Village v. Suriname (2005): extension of the indigenous lands’ special protection to traditional lands of other minorities;
d) Saramaka People v. Suriname (2007): duty of States to consult the indigenous community according to its traditions and customs about any project which could affect it, especially when involved large-scale development projects.
In a comparative view, several Latin American States have been implementing consultation rights in order to protect indigenous peoples, their lands and resources, as some national judicial decisions are able to demonstrate: Argentina (e.g., Fallo Consejo Qompí – Lqataxac Nam Qompí, 2006); Bolívia (e.g., Sentencia Constitucional Plurinacional No. 300, 2012); Chile (e.g., Sentencia Rol No. 2.840, 2009); Colombia (e.g.: Sentencia No. C-418-02, 2002); Guatemala (e.g., Sentencia Expediente No. 2376-2007, 2008); Nicaragua (e.g., Sentencia No. 123, 2000); Peru (e.g., Sentencia STC No. 03343-2007-AA, 2009).
However, the debate on the prior, free consent of indigenous peoples as a democratic mechanism of veto by minorities is not a pacific question among specialized researchers and relevant Latin American States (e.g., Brazil), what reveals the necessity of continuous analyses of the problem under the light of comparative politics.

Author

• Ranieri L Resende, Federal University of Rio de Janeiro