Supreme Court of Justice, Neuquén Indigenous Confederation, re. action of unconstitutionality, 10 December 2013, Case No. 1324 XLVII

Constitution of the Nation of Argentina

Article 31

This Constitution, the laws of the Nation enacted by Congress in pursuance thereof, and treaties with foreign powers, are the supreme law of the Nation; and the authorities of each province are bound thereby, notwithstanding any provision to the contrary included in the provincial laws or constitutions, except for the province of Buenos Aires, the treaties ratified after the Pact of November 11, 1859.

Article 75, paragraph 22

(…) Treaties and concordats have a higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the rights and guarantees recognized herein. (…)

Indigenous and tribal peoples
Role of International Law:
Direct resolution of a dispute on the basis of international law
Type of instruments used:

Ratified treaty1 

Indigenous and tribal peoples/ Prior consultation/ Self-identification/ Direct resolution of a dispute on the basis of international law

The Neuquén Indigenous Confederation appealed to the Supreme Court requesting the declaration of unconstitutionality of Decree 1184/2002 issued by the Province of Neuquén, a decree relating to the national law on indigenous policy, on the grounds that the decree breached various constitutional provisions. The Confederation argued that the aforementioned decree imposed greater barriers on Mapuche communities when registering as a legal entity than those defined in national law, and that it omitted self-identification as a fundamental criterion for registration.

In the background to this case, the claimant indicated that the High Court had reviewed the case in the first instance and dismissed the Confederation’s claim. The Confederation then lodged an appeal with the Supreme Court, asking for the case to be reviewed. The Supreme Court ordered a new sentence to be handed down in line with the Court’s instructions. However, when handing down the new sentence, the lower court partially ignored the Supreme Court’s instructions.

In its analysis, the Supreme Court explained that both Argentina and its provinces had jurisdiction to regulate the rights of indigenous peoples, as long as the provinces did not contradict or diminish the standards established in federal legislation, which comprised the Constitution, ILO Convention No. 169 and the national law on indigenous policy.

Once the Supreme Court had reviewed the decree in the light of the aforementioned standards, it found that:

“The decree subject to this claim not only fails to cover self-identification, as established in article 2 of the law on indigenous policy and paragraph 1 of Article 2 of Convention No. 169 as a fundamental criterion for registration, but also substitutes it with the opposing principle of identification on the part of the State”.2

The Court then stated that:

“Decree 1184/02 was issued (...) without taking into consideration the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169), whose Article 6 establishes that ‘governments shall: (a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly’.”3

Referring to the Constitution, the law on indigenous policy and ILO Convention No. 169 to study Decree 1184/02, the Court concluded that it imposed conditions that represented a clear restriction and regression with respect to the provisions of federal legislation, and declared the decree to be unconstitutional.

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Full text of the decision