A/HRC/39/62 IV. Review of free, prior and informed consent practices 46. The United Nations Declaration on the Rights of Indigenous Peoples and the ILO Indigenous and Tribal Peoples Convention, 1989 (No. 169) are complementary and mutually supportive, and both are cited by judicial and quasi-judicial bodies. As emphasized by the Special Rapporteur on the rights of indigenous peoples, Victoria TauliCorpuz, following a visit to Guatemala, “compliance with the obligations of ILO Convention 169 is not limited to the regulation of the right to consultation, but requires the application of the full range of rights affirmed in that instrument”.44 47. The Declaration, including its free, prior and informed consent requirements, is founded on the right to self-determination, which was not necessarily at the heart of the ILO Convention when it was drafted in 1971. The travaux preparatoires of that Convention appear to reveal that this instrument did not specifically address the right to selfdetermination of indigenous peoples. As a result, the free, prior and informed consent requirement under the Declaration goes beyond the consultation requirement of the ILO Convention, at least as interpreted in the past by some States and others, such as in Latin America, where the ILO Convention is most widely ratified. 45 Yet, while the ILO Convention contains different wording from “free, prior and informed consent”, elements of consent requirements are present 46 that would not preclude a substantive free, prior and informed consent-driven approach. Noting that “the protection of human rights evolves”,47 the Human Rights Committee has stated that the International Covenant on Civil and Political Rights should be interpreted as a living instrument, with the rights protected under it applied in context and in the light of present-day conditions. A similar approach applied to the ILO Convention could broaden an interpretation that some may regard as overly narrow. 48. With regard to consent, Indigenous and Tribal Peoples Convention, 1989 (No. 169) cannot be interpreted in isolation from the Declaration and other international instruments. As emphasized by ILO, differences in the legal status of the Declaration and the ILO Convention “should play no role in the practical work of the ILO and other international agencies to promote the human rights of indigenous peoples ... The provisions of Convention No. 169 and the Declaration are compatible and mutually reinforcing”. 48 Special Rapporteur on the rights of indigenous peoples Victoria Tauli-Corpuz also affirms that the ILO Convention is not the only source of legal obligation with respect to consultation and free, prior and informed consent (see A/HRC/33/42/Add.1, para. 98 (b)). State obligations to consult indigenous peoples also derive from universal and regional human rights instruments of general application and the interpretative jurisprudence by supervisory mechanisms of these instruments. The interpretation of the ILO Convention could be aligned with the emerging consensus of human rights bodies on free, prior and informed consent, as imposing both procedural and substantive requirements, including the emerging consensus in international law that large-scale development projects affecting indigenous peoples will often trigger free, prior and informed consent requirements. The Special Rapporteur’s view is reflected in article 35 of the ILO Convention, which states that: “the application of the provisions of this Convention shall not adversely affect rights and benefits of the peoples concerned pursuant to other Conventions and Recommendations, international instruments, treaties, or national laws, awards, custom or agreements”. 44 45 46 47 48 See www.ohchr.org/FR/NewsEvents/Pages/DisplayNews.aspx?NewsID=23068&LangID=E. Ibid; see also “Additional comments on Honduras, 9 June 2017” available at http://unsr.vtaulicorpuz.org/site/images/docs/special/2017-06-09-honduras-unsr-additionalobservations.pdf (in Spanish). See S.J. Rombouts, “The evolution of indigenous peoples’ consultation rights under the ILO and UN regimes”, Stanford Journal of International Law, vol. 53, No. 2 (Spring 2017). See Judge v. Canada (CCPR/C/78/D/829/1998), para. 10.7. “ILO standards and the UN Declaration on the Rights of Indigenous Peoples: Information note for ILO staff and partners”, available from http://pro169.org/res/materials/en/convention169/Information%20Note%20on%20ILO%20standards %20and%20UNDRIP.doc. 13