A/HRC/15/35
agreement or achieve consent. This qualitative requirement is closely and inherently linked
to the requirement that consultations be carried out in good faith.
25.
Finally, the ILO supervisory bodies have established that there should be a periodic
evaluation of the effectiveness of existing consultation procedures or mechanisms between
States and indigenous peoples, with the participation of the indigenous peoples concerned,
with a view to continuing to improve the effectiveness of such procedures or mechanisms.
26.
In addition to these standards, Convention No. 169 contains a number of other
provisions affirming the right to participation of indigenous peoples:
(a)
The right to participation (art. 2, 5–7, 15, 22, 23);
(b)
The right to be consulted (art. 6, 15, 17, 22, 27, 28);
(c)
27, 33);
(d)
The State obligation to cooperate with indigenous peoples (art. 7, 20, 22, 25,
The right of indigenous peoples to decide their own priorities (art. 7);
(e)
The obligation to refrain from taking measures contrary to the freely
expressed wishes of indigenous peoples (art. 4);
(f)
The obligation to seek agreement or consent from indigenous peoples (art. 6);
(g)
(art. 16);
The obligation to seek free and informed consent from indigenous peoples
(h)
The right of indigenous peoples to exercise control over their own
development (art. 7);
(i)
B.
The right of indigenous peoples to effective representation (art. 6 and 16).
Regional instruments and jurisprudence
27.
Regional systems have also contributed significantly to a fuller understanding of the
content of the right of indigenous peoples to participate in decision-making. In the InterAmerican regional human rights system, a draft American declaration on the rights of
indigenous peoples is currently being debated.16 The American Convention on Human
Rights generally sets forth only individual rights and does not directly address the
corresponding rights of indigenous peoples. Nevertheless, the lack of specific indigenous
provisions has not prevented the Inter-American Court of Human Rights and the InterAmerican Commission on Human Rights from developing significant case law on the rights
of indigenous peoples, which have particular relevance to the right to participation in
decision-making.
28.
Of particular importance regarding the right to political participation is the case of
Yatama v. Nicaragua. The Inter-American Court held that the electoral law of Nicaragua
constituted a disproportionate restriction on the political rights of the candidates of an
indigenous and ethnic party because the State requirements for participation in the
municipal elections required a form of organization that was foreign to the customs and
traditions of the people.17
29.
The African Charter on Human and Peoples’ Rights specifically refers to both the
rights of individuals and the rights of peoples, and provides for the right of all citizens to
16
17
8
Available at www.oas.org/OASpage/Events/default_ENG.asp?eve_code=11 (accessed 6 May 2010).
Yatama v. Nicaragua, Series C (No. 127), 2005.
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