Requirement of Consultation with Indigenous Peoples in the ILO

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.

• ForewordAcknowledgementsList of AcronymsIntroduction1 Setting the Scene: The ilo and the Perennial Uncertainty around the Requirement of Consultation with Indigenous Peoples2 Research Questions and Methodology3 Structure of the Book1 General Background1 The ilo and Its Standard System in a Nutshell1.1 The ilo’s Broad Mandate1.2 Tripartism1.3 The ilo Functioning1.4 International Labour Standards1.5 ilo Supervisory System2 Historical Development of ilo Standards Concerning Indigenous Peoples2.1 Standards on Indigenous Workers2.2 Concern for Indigenous Populations in ilo Regional Conferences2.3 Standards on ‘indigenous populations’ and the Question of ilo Competence2.4 Criticism against ilo Convention No. 107 and the Genesis of Convention No. 1692 Consultation with Indigenous Peoples: Conception and Normative Dimensions1 The Notion of Consultation in the ilo Regime2 Overview of the Provisions on Consultation in ilo Convention No. 1693 History of the Concept of Consultation with Indigenous Peoples3.1 Early Developments in the Context of ilo Convention No. 1073.2 Debates Within the Development Process of ilo Convention No. 1694 Dimensions of the Concept of Consultation with Indigenous Peoples4.1 Consultations with Indigenous Organizations during the Negotiation of Convention No. 1694.2 Consultation as a Guiding Principle of ilo Convention No. 1694.3 The Human Rights Dimension of the Requirement of Consultation5 Conclusions and Outlook3 State Practice1 Preliminary Considerations1.1 Incorporation of International Norms1.2 The Need for the Adoption of Implementing Legislation1.3 The Role of National Courts2 State Practice on Consultation among States Parties to ilo Convention No. 1692.1 Convention No. 169 as a Support for Democracy in Latin America2.2 Convention No. 169 in the Commonwealth of Nations: Dominica2.3 Scandinavian Countries: Progress in Consultation Mechanisms2.4 Asia and Oceania: Consultation in a Contested Terrain2.5 Convention No. 169 in the Central African Republic: Consultation in a Context of Armed Conflict in Africa3 Comparison and Conclusions4 Practice of the ilo Supervisory Bodies1 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 Aspects1.3 Possibility for Indigenous Peoples to Provide Comments on State’s Reports1.4 The Requirement of Consultation with Indigenous Peoples in the Jurisprudence of the ceacr2 Debates over Consultation Within the cas 1323 Consultation with Indigenous Peoples in the Context of Representations (Art. 24 of the ilo Constitution)3.1 Tripartite Committees’ General Approach3.2 The Requirement that Consultation Should be Prior3.3 Subjects Entitled to Consultation and the Question of Indigenous Representation3.4 Measures to be Consulted on with Indigenous Peoples4 Conclusions and Outlook5 Consultation with Indigenous Peoples in International Human Rights Law1 The Requirement of Consultation and Free, Prior and Informed Consent under the un System of Human Rights1.1 Indigenous Peoples in the un in a Nutshell1.2 The Requirement of Consultation and Free, Prior and Informed Consent under the undrip1.3 Consultation and Free, Prior and Informed Consent in the Practice of the Human Rights Treaty Bodies1.4 Consultation and Free, Prior and Informed Consent in the Work of the un Special Rapporteur on the Rights of Indigenous Peoples1.5 Consultation and Free, Prior and Informed Consent in the Studies of the Expert Mechanism on the Rights of Indigenous Peoples2 The Notion of ‘consultation’ with Indigenous Peoples in Regional Human Rights Systems2.1 The Contribution of the Inter-American System of Human Rights2.2 Indigenous Peoples and the Question of Consultation in the African Human Rights System3 Evaluation3.1 Consultation with Indigenous Peoples, an Evolving Norm of Customary International Law?3.2 A Treaty Norm vs. a Customary Rule on Consultation with Indigenous Peoples3.3 Consultation with Indigenous Peoples as a General Principle of International Law6 Overall Assessment1 Reconsidering Flexibility2 Rectifying Indeterminacy2.1 The Option of a Supplementary Recommendation to ilo Convention No. 1692.2 A Resolution of the International Labour Conference2.3 A Need for an icj Advisory Opinion?2.4 Clarification by the International Labour Office2.5 The Failed Attempt to Undertake a General Survey on ilo Convention No. 1692.6 Standard Review Mechanism 13 Revisiting the Interpretive Practice of ilo Supervisory Bodies3.1 The Inappropriateness of the Current Interpretive Approach3.2 A Human Rights-Oriented Interpretive Approach to ilo Convention No. 1694 Institutional Considerations4.1 Re-reading the ilo Mandate4.2 The ilo Cooperation with the un in the Promotion of Indigenous Peoples’ Rights4.3 A Special Committee to Deal with C169?ConclusionsList of ReferencesIndex