A View from the Private Sector

Americas Quarterly, Spring 2014 | Go to article overview

A View from the Private Sector


Guatemala ratified International Labour Organization Conven- tion 169 (ilo 169) on June 5, 1996, more than a year after Guatemala's Constitutional Court, the highest court in the country, ruled in Docu- ment 199-95 that the Conven- tion did not contradict the Guatemalan Constitution.1

But the lack of clarity in ilo 169 and the absence of clear national guidelines for setting up a consulta pre- via process, despite the Court's decision, have left the door open for conflict and misinterpretation that has harmed, rather than helped, the people the Convention intended to serve. Nearly 10 years later, Guatemala still does not have a clear path for the development of reg- ulations that can balance commercial and investment interests with the rights of Indigenous peoples.

Guatemala isn't alone. Latin American countries make up the largest group of signatories to the Convention: as we like to say, ilo 169 "speaks Spanish." Of the 185 ilo member states, only 22 have ratified the Convention- and 13 of those countries are Spanish-speaking Latin American states.2 Yet most of them are still waiting for clear guidelines about how to proceed.

Article 6 of ilo 169 obligates states to consult with Indige- nous communities on all the "legislative or administrative mea- sures that might di- rectly affect them." Many countries, lacking the capacity to exploit their nonrenewable natural resources, have granted concessions to private companies in exchange for tax revenue. That has provoked conflict.

But today, the right has expanded to other areas: de- cisions to approve laws, build schools and roads to dis- tant communities or spray illicit crops.

THE COMPLEXITY OF CONSULTATION IN GUATEMALA

Most of the movements that claim to represent and uphold the defense and rights of Indigenous peoples in Gua- temala, including the defense and promotion of consulta previa, have common characteristics. They emerged from the con- flict and the peace negotiations; they make intensive use of social networks and communications; and they are led by a few leaders who monopolize the causes of excluded, minority groups. In their name, they fight for land rights, for ancestral rights over natural resources, and against discrimination.

Although these movements proclaim passive resis- tance, their methods and actions can turn violent and sometimes fatal. When members of the groups are prosecuted, they rely on special treatment and denounce what they call the crimi- nalization of social protest. In reality, they are engaging in criminal acts such as attacking company employees and tres- passing. As a result, they avoid conviction and remain outside the law.

The leaders of these movements are also active inter- nationally. They frequently use forums like the Inter-Ameri- can Human Rights system to denounce the lack of consultation on the proj- ects-often bypassing the requirement that groups must have exhausted all do- mestic judicial recourse before receiving a hearing at the Inter-American Commission on Human Rights. As a result, the burden of proof is placed on the state and the private company holding title to the concession through a contract or license.

Quite frequently, even after no incriminating evi- dence is found against the accused entity following an investigation, no favorable pronouncement is released. But unfortunately, none of these decisions offers com- pensation for the damage suffered to the reputation of the state or the private investor.

THE IMPACT

In Guatemala, in cases related to firms such as Cementos Progreso, the government has been put on the defensive even when all parties to the agreement have played by the rules. Many com- munities have undertaken what are erroneously named "community consultations" related to mining projects, but which are, in fact, plebiscites that manipu- late information about a project to ensure its rejection.

The fact that such false consultations take place un- derlines the central problem of lack of clarity. …

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