Análisis jurisprudencial de los criterios establecidos por la Corte de Constitucionalidad de la República de Guatemala relativos al derecho de consulta previa de pueblos indígenas de conformidad con el Convenio 169 de la organización internacional del trabajo

Guatemala ratified, in 1996, the International Labor Organization Convention 169 regarding Indigenous and Tribal Peoples Convention. After 25 years of entering into force, the State of Guatemala has breached its international obligations by committing recurring violations to the rights of indigen...

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Bibliographic Details
Main Author: García Sáenz, Carlos Javier
Format: Article
Language:Spanish
Published: 2022
Subjects:
ILO
OIT
Online Access:https://dialnet.unirioja.es/servlet/oaiart?codigo=8877731
Source:Revista Auctoritas Prudentium, ISSN 2305-9729, Nº. 27, 2022
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Summary: Guatemala ratified, in 1996, the International Labor Organization Convention 169 regarding Indigenous and Tribal Peoples Convention. After 25 years of entering into force, the State of Guatemala has breached its international obligations by committing recurring violations to the rights of indigenous peoples and the certainty and security of investors coming, mainly, from the violation of the right of consultation contained in articles 6, 15 and 17 of the Convention. The Guatemalan Constitutional Court has developed several criteria regarding the prior consultation process of indigenous peoples, since 2005. Through the ruling in the case of Oxec hydroelectric plant (dossier 90, 91 and 92 – 2017), the Court tried to establish a unified consultation process to safeguard the certainty and security of investors, as well as the prior consultation process to indigenous communities. Guatemalan law, of civil law tradition, does not adopt the stare decisis principle. Although article 43 of the Ley de Amparo, Exhibición Personal y Constitucionalidad (Law of Amparo, Habeas Corpus and Constitutionality) regulates that once legal doctrine is set, Guatemalan courts are required to follow the criteria established by the Constitutional Court in three concurrent rulings. However, this regulation does not apply to the Court itself, as it can vary its criteria, reasoning its variation. The purpose of this article is to analyze the criteria that the Court has established, from the first ruling related to ILO Convention 169 up until the ruling rated to Oxec Hydroelectric plant, with its legal, caselaw and author’s opinions.