Ratified treaties;¹ Instrument not subject to ratification;² Work of international supervisory bodies³ 

Indigenous peoples/ Prior consultation/ Direct resolution of a dispute on the basis of international law

The claimants called on the Constitutional Court to rescind Agreement 001-2007 issued by the Municipal Council of San Juan Sacatepéquez, which revoked the call for a consultation of the indigenous communities involved. The consultation’s purpose was to allow the communities to give their opinion on the granting of a permit to a cement company for mining exploration and exploitation within their territories. The claimants considered the decision to revoke the call for a consultation to be a breach of their right to justice and the principles of legality, impartiality and due process. The Ministry of Energy and Mining intervened in the process, stating that there was no obligation to hold a consultation, since the Mining Law did not stipulate that procedure as part of the process of granting licences for mining exploration and exploitation.

In order to embark its analysis of the case, the Constitutional Court indicated that the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), the American Convention on Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination and the United Nations Declaration on the Rights of Indigenous Peoples were standards in force within the Guatemalan legal system, and that they enshrined the right of indigenous people to consultation on state measures that might affect them. The Court then highlighted that consent and/or ratification of these instruments had the following implications for the State of Guatemala: “(i) the normative recognition [of consultation] and, therefore, its inclusion in the constitutional bloc as a fundamental right in virtue of the provisions of articles 44 and 46 of the Magna Carta; (ii) the resulting obligation to guarantee that this right is made effective in all pertinent cases; and (iii) the duty to carry out all the structural modifications required within the state apparatus – above all, in the legislation in force – to ensure compliance with this duty in accordance with this country’s circumstances”.⁴

The Court also referred to the individual observations made by the ILO Committee of Experts on the Application of Conventions and Recommendations to Denmark and Paraguay, in which the Committee underlined that:

“The spirit of consultation and participation constitute the cornerstone of Convention No. 169 on which all its provisions are based”.⁵

The Court went on to refer to the individual observation of the ILO Committee of Experts addressed to Guatemala and published in 2008 in which the Committee pointed out that:

“[D]espite the comments made by the  Committee in 2005, 2006 and 2007 [...] the Government has continued to award mining licences without consultation and, in particular, it has not compensated the indigenous people for the damages sustained nor made efforts to reduce the impact of the exploitation [...] The Committee requests the Government to neither grant nor renew any licence for the exploration and  exploitation of natural resources as referred to in Article 15 of the Convention while the participation and consultation provided for by the Convention are not being carried out [...]”⁶

Consequently, and making use of the aforementioned international instruments, including ILO Convention No. 169 and the observations of the ILO Committee of Experts, the Court revoked Agreement 001-2007 and ordered the defendant to implement all necessary measures to ensure that the prior consultation could take place.