ILO Convention 169: Free, prior consent and the Diquís Hydroelectric Project in Costa Rica
Author: María Fernanda Pérez Argüello
Originally Published at Peace and Conflict Monitor on: 08/03/2013
“The proposition that every people should freely determine its own political status and freely pursue its economic, social and cultural development have long been one of which poets have sung and for which patriots have been ready to lay their lives.” John Humphrey
In the early 1950’s the International Labour Organization (ILO hereafter), adopted Convention 169, called the “Convention Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries.” It was the first time in History that indigenous populations, a vulnerable group of people, sharing a common historical tradition or culture, territorial connection or, more sadly, a group of people who collectively and constantly suffer from the deprivation of human rights, were given attention to.
To date, there is no specific legal definition of what an “indigenous population” is, making these groups all the more susceptible to gross human rights violations. Indeed, this ambiguity on behalf of States, North and South, East and West, is not without intention. There is consensus, however, that in order to qualify as an indigenous population, there must be self-identification. During thirty years, until the drafting of ILO Convention No. 169 (1989) Concerning Indigenous and Tribal Peoples in Independent Countries, Convention 169 was the only legally binding instrument under which the Indigenous populations could afford to claim any (petty) protection. However, there was a catch; Convention 169 had the specific aim of assimilating and integrating Indigenous populations into the non-indigenous society, considering they were “temporary societies destined to disappear with ‘modernization.’” And yet, this Convention was extolled for the “progress” it represented.
Costa Rica, since 1993, is among the 22 countries that have ratified the 1989 Convention Number 169, which, in its article 6, states the following:
1. In applying the provisions of this Convention, 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;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples’ own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
Indigenous populations in Costa Rica account for approximately 1,7% of the population, according to the Universidad Nacional de Costa Rica and Elizabeth Serrano’s 2000 census. This 1,7% is divided among eight different sociocultural groups, which have endured decades of being ignored and tricked into deceit, being remembered and taken into consideration only when elections are around the corner. A clear example of this is the fact that although there has been a recognition and acknowledgment of the indigenous territories in the country, since the 1970’s, they only received their “cédulas” in 1993, giving them, only then, access to public services such as the Caja’s social security health care. The current government, under President Laura Chinchilla, boasts in the international scene of its “superb treatment” towards these groups, when in reality they have been trampled upon time and time again. The most recent example of this two-faced discourse, under the present Chinchilla administration, is the Diqu’s hydroelectric plant project, in the southern part of the country.
The Diqu’s hydroelectric plant project, under the auspices of the ICE (Instituto Costarricense de Electricidad), is supposed to be a dam that would generate 610 Mega Watts (MW), starting in 2016. Moreover, the dyke would have a height of 172 meters, and would be 4 kilometers north of the Térraba river. Its reservoir would flood approximately 6,080 Ha, of which 730 are indigenous territories.
It follows that under the provisions of article 6 of the ILO Convention 169, as stated above, the Costa Rican government needs to, firstly, consult with the affected indigenous groups, and secondly, acquire their consent for the construction of the dam.
In April of 2011, United Nations Special Rapporteur on the rights for Indigenous Peoples, Juan Anaya, visited the area and expressed, in his subsequent report, the absolute need for the indigenous groups to be consulted. He reiterated this a year later, after a second visit in March of 2012, by stating that the process of consultation should constitute a true dialogue, with no preconceived decisions, but that it be an opportunity for the indigenous communities to freely express themselves about the project..”
And, when one takes a look at the Costa Rican national law on Indigenous groups, dating from 1977 (the same one which recognized the existence of indigenous territories in the country) states the following in its article 3: “indigenous reserves are inalienable and imprescriptible, non-transferable and exclusive for the indigenous communities that inhabit them.”
The problem, of course, arises when the government chooses to ignore its own law; when the law is limited to the paper, and when the pressure from the international community seems insufficient.
Moreover, to add on to the already complicated situation, is the fact that the government, through an Executive decree, declared the project as being of public interest and national benefit, since February 2008. The University for Costa Rica, in response to this, petitioned on October 3rd, 2012, that the aforementioned Executive Decree be derogated. The government based its decision of “national benefit”, basing itself in the Costa Rican Ley Forestal, article 19(b) –relating to the use of forest soil, which shall be authorized when they are of national benefit. This Law has been interpreted as roughly meaning that when a “developmental” project is at stake, a balance must be struck between the project’s social and environmental effects and consequences. When the benefits for the former are stronger and/or trump the consequences for the latter, then it is only rational to go ahead with the project.
This has been the reasoning behind the Diquís project, which is of grave concern not only to environmentalists because of its impact on local ecosystems, but also to Costa Rican society as a whole because of its impact to the local indigenous communities.
In addition, if ILO Convention were to be merely read and not only interpreted, Article 12 would work against the indigenous peoples in this case. It reads as follows (with my emphasis):
1. The populations concerned shall not be removed without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations.
2. When in such cases removal of these populations is necessary as an exceptional measure, they shall be provided with lands of quality at least equal to that of the lands previously occupied by them, suitable to provide for their present needs and future development. In cases where chances of alternative employment exist and where the populations concerned prefer to have compensation in money or in kind, they shall be so compensated under appropriate guarantees.
3. Persons thus removed shall be fully compensated for any resulting loss or injury.
It is frustrating, though not surprising, to see that in a somewhat utilitarian but certainly very inhumane way, the “well-being” and interests of the majority are given priority without leaving space for the consideration of uniquely inherent troubles to the Indigenous populations.
As a way of comparing, Indigenous peoples in Brazil are currently dealing with a similar, if not worse, situation. The Belo Monte hydroelectric dam project in Brazil is envisioned to be the third largest in the world, and unlike the Diquís hydroelectric project in Costa Rica, its construction has already begun. After having received a full license to undertake construction on June 2011, the Brazilian court halted the project on August 14, 2012 claiming that the precepts of free, prior and informed consent were not respected; according to the author of the ruling, federal judge Souza Prudente:
The court’s decision highlights the urgent need for the Brazilian government and Congress to respect the federal constitution and international agreements on prior consultations with indigenous peoples regarding projects that put their livelihoods and territories at risk. Human rights and environmental protection cannot be subordinated to narrow business interests.
As of June of the present year (2013), the indigenous peoples voices had not been heard, as Maíra Irigaray, Brazil Program Coordinator at Amazon Watch, stated:
Why talk about free, prior and informed consent if affected people have no meaningful say or veto power? A consultation is not a simple formality, it must be taken seriously and respected.
James Anaya, United Nations Special Rapporteur on Indigenous Peoples, as seen before, has been ferociously fighting for an equitable and fair stance at the negotiation tables, but is not the only one concerned by the situation. The United Nations Committee on the Elimination of Racial Discrimination (CERD), in fact, has also expressed its preoccupation (three times in the year 2009 alone) about the situation of the Terraba Indians but also, at a larger scale, about the government’s lack of political will and its reluctance in the adoption of the draft Bill on the “Autonomous Development of Indigenous Peoples.” This Draft bill has been sitting in Congress for the last 16 years, and the CERD has expressed its unrest at the priority given the Diquís hydroelectric plant project.
Indigenous groups have few sturdy international and legally binding instruments to cling onto, and they shouldn’t give up the fight in a matter such as the one at hand. In the end, the essence—and what is most worrying to indigenous leaders and human rights activists worldwide—is that this case really deals the Indigenous people’s Right to Self-determination and their own decisions as to how to deal with their own lands. Although not legally binding, the United Nations Declaration on the Rights of Indigenous Peoples, UNDRIP, from 2007, states in its article 10, the following:
Indigenous peoples shall not be forcibly removed from their lands or No relocation shall take place without the free, prior and informed consent of the indigenous peoples concerned and after agreement on just and fair compensation and, where possible, with the option of return.
In addition, the Declaration also highlights the relevance and importance of International legislation. Article 17(1), states the following: Indigenous individuals and peoples have the right to enjoy fully all rights established under applicable international and domestic labor law. Following the same line, Article 18 affirms:
Indigenous peoples have the right to participate in decision-making in matters which would affect their rights, through representatives chosen by themselves in accordance with their own procedures, as well as to maintain and develop their own indigenous decision making institutions.
And, Article 19:
States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.
In this respect, the Inter-American Commission of Human Rights affirms in a press release dated August 10, 2012, “the IACHR observes with concern the multiple social conflicts that emerge because of interests of third parties in the natural resources located in indigenous territories.” It is surprising to the author of this paper that no cases have been brought before the Inter-American Commission of Human Rights, which unfortunately is most likely indicative of a passivity on behalf of civil society organizations and society at large, rather than being evidence of the State’s respect for these Indigenous Populations.
Yet, the current panorama is one of hope. Oscar Almengor, indigenous leader, affirms that there are approximately 104,000 indigenous men and women uniting forces to confront the Costa Rican government, and to do away with old clichés of the indigenous as being “quiet, passive individuals.” Almengor also speaks of the ignorance of the common Costa Rican concerning Indigenous peoples; many do not believe he is indigenous because he wears “normal clothes”.
The Indigenous People’s fight to end with twenty years of mockery and disrespect is only just beginning, and their opposition to the Diquís hydroelectric plant project is a small manifestation of their potential; a fight that Costa Ricans, proud of their heritage as I am, will stand behind and defend side by side with them.
Bio: María Fernanda Pérez Argüello, age 21, 2013 University for Peace Graduate Student in International Law and Human Rights. Concerned about the current situation of Indigenous Peoples in Costa Rica, my country.