STATEMENT OF THE KAWESQAR COMMUNITY
RESIDENT IN PUERTO EDEN
After analyzing the Draft Under
Articles 6 and 7 of Convention 169 of the ILO, the Kawesqar Community Resident
in Puerto Eden, linguistically and culturally recognized as Living Human
Treasures, by UNESCO and the Government of Chile has no choice but to reject this project for the following reasons:
1. The project is unconstitutional. It
assumes powers to restrict central aspects of Convention No. 169, ignoring that
it is protected by the provisions of Article 5 of the Chilean Constitution.
2. The project is illegal. To access
Rights to consultation and participation, it establishes requirements not
covered by Convention No. 169. In cases of investment projects, it gives the
right to query to the regular system of common procedures on Environmental
Impact Evaluation, which is in no way authorized by the agreement. It also has
processes not covered by it, which undermines these rights and alters the
traditional representation forms of our communities.
3. The project is inappropriate. It
places the communities of the Magallanes Region and Chilean Antarctica at transnational
aquaculture and tourism mercy of interests, by excluding the investment
projects of the consultation process, subjecting to consultation regime only the matters of Environmental
Impact Evaluation. For our communities (strongly linked to the coast and its
resources) this is a direct attack on their traditions, practices and rights.
4. The Government of Chile questions
his own honor and its obligations with the international community. To impose
this regulation on the territory of Chile it will incur in international
responsibility
PROJECT OVERIEW
REGULATION OF CONSULTATIONS
ILO CONVENTION N°169
GENERAL CONSIDERATIONS
Convention N° 169 of the
International Labour Organization (ILO) was ratified by Chile on September
15th, 2008, published on October 2nd, 2008 and the article was published in the
Official Journal on October 14th, 2008.
This instrument is an international treaty to be governed by
own rules and particularly by the rules of Article 5, Art. 32 N° 15, and Art. 54
N° 1 of the Chilean Constitution.
Under Article 31 of the Vienna
Convention on the Law of Treaties of 1969, and of which Chile is also a party,
any treaty must be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in its context and taking into
account the object and purpose. The same article provides that, in addition,
this should be understood also in its preamble and annexes.
Indeed, the preamble of the N°169
Convention provides that it is agreed that in many parts of the world,
indigenous people are unable to enjoy basic Human Rights as the rest of the
population, as they live with their laws, values, customs and perspectives
because the have not been eroded. The text of the Convention itself and its
references to the Universal Declaration of Human Rights, the International
Covenant on Economic, Social and Cultural Rights, the International Covenant on
Civil and Political Rights, and international instruments on the prevention of
discrimination, make sure that this convention is considered within the catalog
of international instruments of Human Rights protection.
Is in this way, that provisions of
the final paragraph of the 5th Article of the Chilean Constitution can be used:
it is Government's duty to respect and promote the fundamental Rights that
emanate from the individuals, these are guaranteed by the Constitution and
international treaties ratified by Chile that are in force. One of these
agreements is precisely Convention N°169.
Therefore, the treaty haves a constitutional
character and requires State agencies to address to their terms. Any action
outside of what the same instrument authorizes implies an incurable case of
nullity of public law. This is guaranteed by the 7th Article of the
Constitution of the Republic of Chile, saying that no magistrate, no person or
group of people can be attributed, even on the pretext of extraordinary
circumstances, any authority or rights than those expressly conferred upon it
by the Constitution or laws. It adds that any act in violation of any such
provision is null and rise to the liabilities and penalties established by law.
Neither the text of Convention No.
169 nor its promulgation appears authorization act for the Government of Chile
appropriate to repeal, modify or suspend its provisions. Therefore, any change
is void and of no value, since the provisions of the fifth paragraph of
paragraph 1 of Article 54 of the Constitution of the Republic of Chile. And you
need to understand that a restriction on the scope of the rules of the
Convention, in particular the right of consultation, is an improper
modification of that international instrument.
Moreover, under Article 27 of the
Vienna Convention on the Law of Treaties, a party may not invoke the provisions
of its internal law as justification for its failure to perform a treaty. The
preeminence of international law over domestic law has also been declared in
several judgments and advisory opinions of international jurisdiction: like in
Alabama, 1872; Case of the Greco-Bulgarian Communities, 1930; PCIJ, Series B,
No. 17, page 32.; Case of Polish Nationals in Danzig,1931; CPJU Series A / B,
No. 44, p. 24; Case of the Free Zones, 1932; PCIJ Series A / B, No. 46, p. 167 and
Applicability of the Obligation to Arbitrate under the Headquarters Agreement
of the United Nations, Case of the PLO Mission, 1988; ICJ Reports 1988, p. 12.
Indeed, in the case of the Greco-Bulgarian Communities (1930), the Permanent
Court of International Justice stated that "it is a generally accepted
principle of international law in relations between Powers who are parties to a
treaty, the provisions of law internal cannot trump those of the treaty.
"Finally, Convention No. 169 does not require any rule of law to make it
applicable. The instrument is self-executing, as we have stated the Superior
Courts of Justice. It would be absurd to refer the legal scope of rights under
the Convention to the regulatory power of the state itself in respect of which
it intended to assert those rights. Neither the text nor the straight logic
suggest that there should proceed to issue a regulation to implement the rights
contained in this instrument.
From all the foregoing:
i) Convention No. 169 is within the
international catalog of instruments to protect human rights;
ii) that according to the
constitutional rules of Chilean law, he cannot be modified by acts of law;
iii) that any restrictive amendment
thereof would result in a case of nullity of public law, which could be claimed
on a national and international level.
SOME CONSIDERATIONS ON THE TEXT
OF THE REGULATION UNDER
CONSIDERATION
These considerations should be taken
into account when considering the draft regulation on consultations Convention
N° 169, proposed by the Government of Chile.
First, IT is legally unnecessary and
undesirable. Unnecessary, because it is self-executing an international
instrument, which are not covered in any of its policies called the law of each
state to make it applicable. It is a Drawback, because it will lead to a
contentious Government on its scope in specific cases where it is intended to be
applicable.
The project goes through concepts that turn to illegible
as they are not covered by the Convention.
In its 2nd Article: The draft manages
a Query concept that is not contained in Convention N° 169, here, the formula
"mutual benefit" is wrongly introduced because between the Chilean Gov
and native people exists an equal relationship. This undermines the very human
rights system. The Inter-American Court of Human Rights has stated about this
that:
"... Modern Human Rights
treaties in general, and particularily, the American Convention, are not
multilateral treaties of the traditional cut that are constructed to accomplish
the reciprocal exchange of Rights for mutual benefit of the contracting States
. Their object and purpose is the protection of the fundamental rights of human
beings, regardless of nationality, both against their own state as compared to
the other Contracting States. "(Inter-American Court of Human Rights, The
Effect of Reservations on the Entry into Force of the American Convention on
Human Rights (Articles 74 and 75), Advisory Opinion OC-2/82 of September 24,
1982)
The context and scope of Convention
N° 169 is indicated in the text itself, it is intended to protect the rights of
indigenous peoples and to guarantee respect for their integrity on the part of
governments. It is therefore an obligation of the latter, governments, the
provide for such purposes, which cannot be confused with compensation or mutual
benefit formulas, which could make the worst practices incur compensatory
damages to the identity and rights of our peoples.
Insistence on assimilations approach of native ethnic
groups
Moreover, the assimilations approach
of the draft regulations is evident in another set of proposed provisions in
it. It is striking that he calls "investment projects" under the
System of Environmental Impact Assessment, would be regulated by the
consultation procedure of Law N° 19,300. Again here, the project incurred in illegality,
the project goes beyond what the law authorizes, in this case Convention N° 169. Chile's government is not
allowed to play in this case, by analogy, the scope of the consultation process
and equate them with procedures provided for environmental conservation
purposes. None of the provisions of Convention N° 169 refers to a school of
this type, and Convention N° 169 is the law of the Republic of Chile and is
current public law.
Moreover, when Article 6 of
Convention N° 169 concerning procedures "appropriate", this word
should be given its natural and obvious sense, that is: "applied to
everything what is proper and more convenient." (Dictionary of the Spanish
Royal Academy of Language 22th edition (2001))
And appropriateness should apply to
the object of protection under the Convention this is to protect the rights of
indigenous peoples and to guarantee respect for their integrity. This object
escapes process under the System of Environmental Impact Assessment, of Law N°
19300.
The ILO Manual on Convention N° 169,
states that for an "appropriate"
query requirements must meet the needs of each specific situation, and must be
meaningful, sincere and transparent. The assimilation procedure of Law N° 19.300
would be far from complying with the requirement to be appropriate to the
specific situation of the respective indigenous communities.
Unduly excludes investment projects of query from Convention
N° 169.
It is also clear that what we are
looking a draft regulation that is left out of the assessment made by the
communities of people with investment projects, as these are decisions with
certain specifications. In fact, the aforementioned draft proposes regulation
states that it applies only to legislative measures and general administrative
orders. This distinction between measures of general administrative and legislative
matters is of obvious contrast, including administrative measures, this is not
mentioned anywhere in any of the provisions
of Convention N°169.
Again this is a illegality option of
the proposed project. It happens, however, that the special administrative
measures are the most harmful effects and Kawesqar ethnicity is more that ever
involved, for this is the relationship with the coastal and marine environment
which is elementary for our people. It is in this environment where the
Government provides extensive maritime and aquaculture concessions, often to
particular corporations or industrial companies that perform intensive farming
in our territories, and these are cases of special administrative measures, or
fall outside the consultation process, or at best times it would be subject to the
assimilatory scheme of Law N° 19.300.
Induces wasteful procedural traps.
Through it seeks to impose a
definition of the terms "direct concern" caused by the measures
likely to visit. In Article 6 of Convention N°169 provides consultation with
the people concerned and this shall be "each time given to legislative or
administrative measures which may affect them directly." However,
illegally and arbitrarily, the Government introduced a rating to this formula,
by requiring that "involvement" is "significant." Then
listed cases in which it is understood that there will be such
"significant damage." It is understood, however, whether these are
cases in which the law presumes that such an effect exists, or if it is just a
legal presumption in which may argue against such a presumption. Because, under
a legal technique unfortunate, in each case again uses the word
"significant" implying that even in them, a third party may invoke -
now inside the case - that the species question would not be met,
hypothetically, the status of "significance." With this, the position
of indigenous peoples affected by a measure, to see, first restricted, then
threatened by the definition tautological, & circular, this formula: direct
involvement / significant involvement: a third party involved may bring the
matter to a court of the State of Chile, arguing that the measure has no
significant effects, and end by subtracting the decision on the scope of a
measure of the consultation process itself should been made to the community
directly affected. The consultation process may thus be a futile exercise,
which will respond to the Government of Chile, also forcing communities to test
the significance of the planned intervention in wasteful legal proceedings,
which were not even remotely under the Convention. This opens the door wide to
the national picaresque in its various forms.
Needless to say that such a
reference to the "significance" of involvement appears not mentioned
in any provision of the Convention N° 169. Therefore, the draft rules again
incurs in illegality.
It is also clear that such significant
involvement will be decided by the political authority of the Government of
Chile. It will, then, abstract again the consultation process, which is
precisely what seeks to define whether a particular measure has effects that
are prized for their communities. Therefore, the project is entered in a field
that is not its own, is therefore doubly illegal and arbitrary.
The forms for participating in the
project alter traditional forms of representation.
Finally, the proposed regulation is
also in charge of participation procedures. This introduces the concept of
commissions, one national and other regional. This practice violates community
representation on their own realities; going at this point precisely against
the explicit provisions of Convention No. 169. Thereby disrupts the sense of
participation, to the extent that she is willing to ensure equitable access to
elective institutions and other representative and responsible for policies and
programs that concern them. Convention does not address in any way the creation
of intermediary bodies of participation, such as the draft regulations. The
risk of politicization of this representation and the intrusion of corporate
interests in indigenous policy is open and the project of the Government of Chile.
CONCLUSION
Examination of the core provisions
of the draft regulations for consultation and participation of Convention No.
169 shows that it unduly restricts the scope and meaning of the right to
consultation and disrupts the pattern of community representation. It is
therefore a project queanuncia vices unconstitutionality and illegality.
The project, attempting to regulate
those rights risks in trying to define to end restricting them, which is not
competent to the regulatory powers of the Government of Chile. The substance of
these rights in the Convention itself, as well as treaties, conventions and
covenants on human rights declares that it is founded.
Therefore, the draft regulation is
unconstitutional, illegal, inappropriate and is likely to be faced in the
administrative and judicial branches, as well as nationally and
internationally. So this indigenous community does not endorse or delegated
representative to any person and any agreement taken under our name, will be
completely unknown.
KAWESQAR COMMUNITY RESIDENT IN
PUERTO EDEN
