The Requirement of Consultation with Indigenous Peoples in the ILO

Between Normative Flexibility and Institutional Rigidity

In The Requirement of Consultation with Indigenous Peoples in the ILO, María Victoria Cabrera Ormaza examines the law-making and interpretive practice of the International Labour Organization (ILO) relating to indigenous peoples with a particular focus on the consultation requirement established by Article 6 of ILO Convention No. 169. Taking into account both the mandate and institutional characteristics of the ILO, the author explains how the ILO understands the notion of consultation with indigenous peoples and outlines the flaws in its approach. Through a comprehensive analysis of state practice and human rights jurisprudence concerning indigenous peoples, the author explores the normative impact of ILO Convention No. 169, while revisiting the ILO’s potential to help harmonize different interpretations of the consultation requirement.
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Biographical Note

María Victoria Cabrera Ormaza, who received her Ph.D. from Göttingen University in 2017, is Professor of Public International Law at Universidad Espíritu Santo-Ecuador. She has worked for the ILO on indigenous issues and has published in the field of indigenous rights.

Table of contents

Foreword
Acknowledgements
List of Acronyms

Introduction
 1 Setting the Scene: The ilo and the Perennial Uncertainty around the Requirement of Consultation with Indigenous Peoples
 2 Research Questions and Methodology
 3 Structure of the Book

1 General Background
 1 The ilo and Its Standard System in a Nutshell
  1.1  The ilo ’s Broad Mandate
  1.2  Tripartism
  1.3  The ilo Functioning
  1.4  International Labour Standards
  1.5  ilo Supervisory System
 2 Historical Development of ilo Standards Concerning Indigenous Peoples
  2.1  Standards on Indigenous Workers
  2.2  Concern for Indigenous Populations in ilo Regional Conferences
  2.3  Standards on ‘indigenous populations’ and the Question of ilo Competence
  2.4  Criticism against ilo Convention No. 107 and the Genesis of Convention No. 169

2 Consultation with Indigenous Peoples: Conception and Normative Dimensions
 1 The Notion of Consultation in the ilo Regime
 2 Overview of the Provisions on Consultation in ilo Convention No. 169
 3 History of the Concept of Consultation with Indigenous Peoples
  3.1  Early Developments in the Context of ilo Convention No. 107
  3.2  Debates Within the Development Process of ilo Convention No. 169
 4 Dimensions of the Concept of Consultation with Indigenous Peoples
  4.1  Consultations with Indigenous Organizations during the Negotiation of Convention No. 169
  4.2  Consultation as a Guiding Principle of ilo Convention No. 169
  4.3  The Human Rights Dimension of the Requirement of Consultation
 5 Conclusions and Outlook

3 State Practice
 1 Preliminary Considerations
  1.1  Incorporation of International Norms
  1.2  The Need for the Adoption of Implementing Legislation
  1.3  The Role of National Courts
 2 State Practice on Consultation among States Parties to ilo Convention No. 169
  2.1  Convention No. 169 as a Support for Democracy in Latin America
  2.2  Convention No. 169 in the Commonwealth of Nations: Dominica
  2.3  Scandinavian Countries: Progress in Consultation Mechanisms
  2.4  Asia and Oceania: Consultation in a Contested Terrain
  2.5  Convention No. 169 in the Central African Republic: Consultation in a Context of Armed Conflict in Africa
 3 Comparison and Conclusions

4 Practice of the ilo Supervisory Bodies
 1 Regular Reporting System (Art. 22 of the ilo Constitution)
  1.1  The ceacr and its Contested ‘interpretive functions’
  1.2  Examination of State Reports Concerning ilo Convention No. 169: Procedural Aspects
  1.3  Possibility for Indigenous Peoples to Provide Comments on State’s Reports
  1.4  The Requirement of Consultation with Indigenous Peoples in the Jurisprudence of the ceacr
 2 Debates over Consultation Within the cas 132
 3 Consultation with Indigenous Peoples in the Context of Representations (Art. 24 of the ilo Constitution)
  3.1  Tripartite Committees’ General Approach
  3.2  The Requirement that Consultation Should be Prior
  3.3  Subjects Entitled to Consultation and the Question of Indigenous Representation
  3.4  Measures to be Consulted on with Indigenous Peoples
 4 Conclusions and Outlook

5 Consultation with Indigenous Peoples in International Human Rights Law
 1 The Requirement of Consultation and Free, Prior and Informed Consent under the un System of Human Rights
  1.1  Indigenous Peoples in the un in a Nutshell
  1.2  The Requirement of Consultation and Free, Prior and Informed Consent under the undrip
  1.3  Consultation and Free, Prior and Informed Consent in the Practice of the Human Rights Treaty Bodies
  1.4  Consultation and Free, Prior and Informed Consent in the Work of the un Special Rapporteur on the Rights of Indigenous Peoples
  1.5  Consultation and Free, Prior and Informed Consent in the Studies of the Expert Mechanism on the Rights of Indigenous Peoples
 2 The Notion of ‘consultation’ with Indigenous Peoples in Regional Human Rights Systems
  2.1  The Contribution of the Inter-American System of Human Rights
  2.2  Indigenous Peoples and the Question of Consultation in the African Human Rights System
 3 Evaluation
  3.1  Consultation with Indigenous Peoples, an Evolving Norm of Customary International Law?
  3.2  A Treaty Norm vs. a Customary Rule on Consultation with Indigenous Peoples
  3.3  Consultation with Indigenous Peoples as a General Principle of International Law

6 Overall Assessment
 1 Reconsidering Flexibility
 2 Rectifying Indeterminacy
  2.1  The Option of a Supplementary Recommendation to ilo Convention No. 169
  2.2  A Resolution of the International Labour Conference
  2.3  A Need for an icj Advisory Opinion?
  2.4  Clarification by the International Labour Office
  2.5  The Failed Attempt to Undertake a General Survey on ilo Convention No. 169
  2.6  Standard Review Mechanism 1
 3 Revisiting the Interpretive Practice of ilo Supervisory Bodies
  3.1  The Inappropriateness of the Current Interpretive Approach
  3.2  A Human Rights-Oriented Interpretive Approach to ilo Convention No. 169
 4 Institutional Considerations
  4.1  Re-reading the ilo Mandate
  4.2  The ilo Cooperation with the un in the Promotion of Indigenous Peoples’ Rights
  4.3  A Special Committee to Deal with C169?

Conclusions
List of References
Index

Readership

Anyone concerned with the legal protection of indigenous peoples, including scholars, officers of international organizations, practitioners, international and national adjudicators. The book can be used for courses on indigenous peoples.