WHY BRAZIL CANNOT DENOUNCE ILO 169 WITHOUT ADEQUATE CONSULTATION
and how Indigenous and Quilombola organisations can stop it
Photo: Thiago Dezan / IACHR
On 27 April 2021, almost 32 years after the International Labour Organisation (ILO) adopted the 1989 Indigenous and Tribal Peoples Convention 169 (ILO 169) and almost 19 years since Brazil ratified the Convention, Deputy Alceu Moreira, a former president of the Parliamentary Agricultural Front (FPA) and aggressive far-right advocate for the agribusiness sector (as his anti-Indigenous discourse demonstrates here, here, and here) introduced the Legislative Decree Bill 177/21 (LDB 177) to the Brazilian National Congress. If passed, LDB 177 will provide President Jair Bolsonaro with prior congressional approval to withdraw from ILO 169. Part of a broader and insidious backlash agenda against the environment and Indigenous peoples, Brazil’s potential withdrawal from ILO 169 has been carefully crafted to meet ILO 169’s Article 39 formal denunciation requirements and Brazilian constitutional standards on the competence to conclude and withdraw from treaties (based on the so-called symmetry principle).
In this brief essay, I argue that Brazil’s attempt to denounce ILO 169 calls for a renewed approach compatible with Indigenous and Quilombola rights to self-determination, autonomy and participation in government as recognised by both international law and the Brazilian Constitution. Accordingly, Brazil cannot denounce ILO 169 unless Indigenous and Quilombola organisations, truly representative of their interests, are adequately consulted and agree or provide their free, informed, and prior consent to the denunciation. Spoiler alert! This support is highly unlikely to come. In the following paragraphs, I first demonstrate the importance of ILO 169 to Indigenous and Quilombola peoples in Brazil and lay out the arguments Deputy Moreira deploys to justify LDB 177. Then, I propose to expand the current debate on treaty denunciation beyond governmental prerogative and towards engaged participation of the people directly affected, with particular regard to ILO 169. Concluding remarks follow.
A PERNICIOUS AUTHORISATION TO ILO 169’s DENUNCIATION
ILO 169 is not perfect. Its authors failed to be more inclusive of Indigenous and tribal voices during the drafting process  and refrained from embracing the language of self-determination in the document.  Nonetheless, ILO 169, the only specialised binding legal instrument on Indigenous and tribal people’s rights in force to date , has been vital, especially in Latin America.  ILO 169 revises the assimilationist approach that prevailed in its predecessor ILO 107 and gives international legal form to a more culturally adequate (arts. 3, 4, 5, and 8), economically protective (arts. 2 and 7), and politically empowering (arts. 1, 5, 6, 7, and 8) Indigenous rights paradigm.  ILO 169 unprecedentedly establishes self-identification as a key criterion to identify a group or individual as Indigenous or tribal (art. 1.2). More notably, the Convention introduces the obligation to consult Indigenous and tribal peoples “with the objective of achieving agreement or consent” whenever they may be directly affected (art. 6). Although frequently disregarded by state authorities, ILO 169’s duty to consult has fuelled truly emancipatory autonomy-building mechanisms, such as the grassroots consultation protocols in Brazil.
Furthermore, ILO 169 was central in the 2018 Brazilian Supreme Court’s (STF) recognition of Quilombola land rights (ADI 3239). In this case, Justice Edson Fachin acknowledged that, together with the Brazilian Constitution, ILO 169 forms a genuinely protective system for Quilombola rights. Likewise, Justice Celso de Mello emphasised the need to attribute constitutional status to ILO 169. The grip and catalytic spreading out of this renewed Indigenous and Quilombola rights paradigm, notably by Indigenous and Quilombola organisations themselves, is what the LDB 177 seeks to obliterate by preparing the terrain to denounce ILO 169.
In the justification section of LDB 177, Deputy Moreira states three reasons in support of his bill.
First, Mr Moreira claims that national legislation is sufficiently protective to Indigenous peoples, making international legislation superfluous. If ILO 169 is superfluous but not detrimental to Indigenous and tribal peoples, why bother denouncing it, one might ask? Perhaps because Mr Moreira seeks not to eliminate redundant legislation but instead dismantle the legal protection of Indigenous and tribal peoples at its core. Without ILO 169, Quilombola communities are left with limited protection only from the broader provisions of the Constitution and the infra-legal provisions of the land rights executive decree. Indigenous peoples are left with the constitutional provisions and the obsolete Indian Rights Act of 1973 (Law No. 6001), which, in the same vein of ILO 107, employs an assimilatory tutelage regime. The Indian Rights Act does not recognise Indigenous collective subjectivity and treats Indigenous individuals as limited legal entities whose actions are deprived of legal validity before Brazilian law. In trying to revive the Indian Rights Act’s patronising colonialist spirit, LDB 177 seeks to legally disempower Indigenous peoples, both individually and collectively, as bearers of the rights provided for by ILO 169.
Second, Mr Moreira claims that ILO 169 makes it harder for the state and private agents to access Indigenous lands to expand development projects such as those concerning the energy and infrastructure sectors. Without supporting data, the bill states that ILO 169’s obligation to consult with Indigenous communities affected by such projects would slow down and undermine national development. For a start, the bill directly collides with the Brazilian Constitution. In tune with ILO 169, the Constitution determines that Indigenous peoples are “entitled to the exclusive usufruct of the riches of the soil, rivers and lakes existing thereon,” (Art. 231.2) and that “[a]cts aimed at the occupation, dominion and possession of [Indigenous] lands (…), or at exploitation of the natural wealth of the soil, rivers and lakes existing thereon, are null and void” (Art. 231.6). To this extent, it is (constitutionally) good news that ILO 169 curbs undue penetration in Indigenous lands. At its heart, ILO 169 seeks to discourage those model of development detrimental to the lives and lands of Indigenous and tribal communities. As to that being prejudicial to national development, even the OECD has acknowledged that land rights are essential for Indigenous development (in case they freely decide to pursue that path); whereas the UN and other civil society organisations have recognised that Indigenous lands are crucial not only to national but to global development as a whole.
Third, Deputy Moreira claims that consultation threatens national sovereignty as it gives too much power to Indigenous peoples. This is correct. ILO 169, as the Brazilian Constitution, seeks to provide Indigenous and tribal peoples with the legal basis to become “subjects of their own destiny”, as the former UN Special Rapporteur on the Rights of Indigenous peoples put it.  What Mr Moreira refrained from mentioning is that ILO 169 expressly states that political empowerment “shall not be construed as having any implications as regards the rights which may attach to the term [peoples] under international law” (art. 1.3). In other words, political autonomy and domestic legal subjectivity do not entail a right to secession as the Deputy assumes. Conversely, consultation is an Indigenous right and state duty that reaffirms Brazilian sovereignty.
Deputy Moreira’s justifications for LDB 177 are a lot of things: untruthful, dangerous, discriminatory, greedy, and poorly written. But they are not surprising. The bill draws upon the colonising spirit that, however historically varied in shape, has always deemed Indigenous peoples as “archaic lumps in the body politic, in need of modernisation and integration” a. Nonetheless pervasive, this approach has gained unparalleled institutional support after Brazil turned (far) right in the 2018 presidential elections. The denunciation of ILO 169 is part of a broader liberalising authoritarian agenda  particularly harmful to the environment, Indigenous and Quilombola communities – though ultimately detrimental to Brazilian society as a whole . The damage already caused (and yet to be caused) by President Bolsonaro and his allies’ recklessness is what the Brazilian Constitution and treaties like ILO 169 seek to mitigate - as by the time the complaint against President Bolsonaro reaches the International Criminal Court (ICC), if it reaches at all, it might be too late . But can the denunciation of ILO 169 be avoided?
WHY PRESIDENT BOLSONARO CANNOT DENOUNCE ILO 169 WITHOUT ADEQUATE CONSULTATION
As in “most, if not all, states”, the 1988 Brazilian Constitution is omissive in establishing a treaty denunciation mechanism. For this reason, the Brazilian Supreme Court stepped in to decide (1) who is(are) the competent authority(ies) to denounce a treaty, and (2) how a treaty should be denounced. In the still ongoing ADI 1625 case, the STF is inclined to rule that, because Articles 49, I and 84, VIII of the Constitution implement a bilateral mechanism wherein the executive and legislative branches share the competence to conclude an international agreement, the exact bilateral mechanism must apply, according to the symmetry principle, to treaty withdrawal. In the case of ILO 169, benefiting from the parliamentary support his administration currently enjoys, President Bolsonaro at once obtains prior congressional authorisation and prevents future judicial disputes over the matter of competence.
Besides making sure their attempt to dump ILO 169 meets the most protective constitutional criteria - over which well-intentioned constitutional and international law scholars c fought for decades - Deputy Moreira also observed ILO 169’s sophisticated ten-years denunciation cycle mechanism. To protect Indigenous peoples within a state party (as to protect workers in other ILO conventions), Article 39 of ILO 169 conditions state withdrawal to a one-year window every ten years. The first of these cycles started “from the date on which the Convention first [came] into force” (art. 39). Because ILO 169 first entered into force on 05 September 1991, the third cycle of ten years comes to a close on 05 September 2021, whereas the one-year denunciation window opens up from this date to 05 September 2022.
By tackling two contentious issues on treaty denunciation (competence and formal treaty requirements), Deputy Moreira seeks to endow constitutional legitimacy to a future denunciation executive decree from President Bolsonaro. Considering this cunning strategy, on the one hand, and the urgency, gravity, and potentially irreversible implications of ILO 169’s denunciation to its direct beneficiaries, on the other, a renewed approach that can uncover LDB 177’s sheep’s clothing and reveal its true wolf-like nature is in order. To do so, one has to let go of the (currently useless) competence debate and consider alternatives responsive to the threats Indigenous and tribal peoples face in the current context. 
The alternative to avoiding ILO 169 denunciation lies within ILO 169 itself. The Brazilian executive may withdraw from treaties so long it obtains formal congressional approval and follows denunciation rules in the convention from which it intends to withdraw, customary international law, or the Vienna Convention on the Law of Treaties (VCLT). In the case of ILO 169, Article 39 provides for denunciation rules. However, Article 6.1 of ILO 169 establishes that “[i]n 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”. Because the denunciation of ILO 169 would unquestionably affect Indigenous and tribal peoples within a state party, state parties should not be allowed to withdraw from ILO 169 by invoking Article 39 without triggering the obligation to consult under Article 6 of the same Convention. To be clear, the Brazilian state can withdraw from ILO 169 so long it consults the 305 ethnic Indigenous groups and 3.524 Quilombola communities through their representative organisations and following culturally appropriate procedures.
As “the fundamental principles of consultation and participation constitute the cornerstone of the Convention” , special attention must be paid to Article 6.2, according to which “[t]he 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”. To this extent, both the legislative and the executive branches are bound to reach an agreement or obtain the consent of Indigenous and tribal groups through appropriate mechanisms for consultation and participation. ILO 169’s mechanism reinforces state attribution to protect Indigenous social organisation, customs, languages, creeds, traditions, and lands by the Brazilian Constitution (Art 231). Even if it conflicted with the Constitution, states cannot “invoke the provisions of its internal law as justification for its failure to perform a treaty”, according to Article 27 of the VCLT. Consequently, through its executive and legislative branches, the state continues to be competent to denounce ILO 169. However, as long as ILO 169 remains in force, it binds the Brazilian state to carry out adequate consultation to obtain consent or reach an agreement concerning its aim to denounce ILO 169 according to Article 39 and Article 6 of the same instrument. Otherwise, denunciation cannot thrive.
At any time, if the state attempts to apply Article 39 but neglects Article 6 of ILO 169, Indigenous and Quilombola organisations can invoke Article 232 of the Brazilian Constitution and bring a domestic lawsuit against the executive or legislative authorities and request the immediate suspension of the denunciation process until proper consultation is conducted. Because such an attempt directly affects all Indigenous and Quilombola peoples in Brazil, National-scale Indigenous and Quilombola organisations  can bring a lawsuit directly to the Supreme Court, since Justice Luis Roberto Barroso recently recognised Indigenous peoples’ standing (“legitimidade ativa”) before the STF in his ADPF 107’s monocratic decision.
The Inter-American Court of Human Rights (IACtHR) has recently pointed towards a similar direction. In its Advisory Opinion 26 of 2020 requested by Colombia, the IACtHR emphasised that:
“regardless of the different domestic procedures for denouncing treaties in the region, the denunciation of a human right treaty - particularly one that establishes a jurisdictional system for the protection of human rights, such as the American Convention - must be subject to a pluralistic, public and transparent debate within the States, as it is a matter of great public interest because it implies a possible curtailment of rights and, in turn, of access to international justice (…)”. (AO 26/20 para 64) (highlights are mine)
If applied to Brazil’s attempt to denounce ILO 169, the pluralistic, public, and transparent debate required by the IACtHR can only occur under a culturally and linguistically adequate consultation format representative of all Indigenous and tribal communities directly affected.
A secondary pathway lies outside ILO 169 but brings us right back to it through the lenses of the Inter-American Court of Human Rights. Since 2012, in the judgement of the Sarayaku v. Ecuador case, the IACtHR has held that “the obligation to consult, in addition to being a treaty-based provision, is also a general principle of international law” (para 164) . For the IACtHR, the obligation to consult “is directly related to the general obligation to guarantee the free and full exercise of the rights recognised in the Convention (Article 1(1))” (para 165). The IACtHR’s interpretation brings two additional layers of protection of Indigenous rights and against the denunciation of ILO 169.
First, because the Court has recognised the obligation to consult as a principle of international law, Indigenous organisations can invoke Article 43 of the VCLT  according to which:
“The (…) denunciation of a treaty, the withdrawal of a party from it (…), as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfil any obligation embodied in the treaty to which it would be subject under international law independently of the treaty.”
Not all rights protected under ILO 169 might be deemed as principles of international law and enjoy general international law’s protection. However, Brazil cannot refrain from protecting those that are, as is the case of the obligation to consult. Finally, any attempt to formally denounces ILO169 without adequate consultation will result in the violation of the non-discrimination clause (Article 1.1) of the ACHR by the Brazilian state as both the Sarayaku case and the Advisory Opinion 26 indicate. This violation will open up an international litigation avenue before the Inter-American System of Human Rights (IASHR).
In this essay, I argued that Brazil can withdraw from ILO 169 so long it obtains congressional approval and complies with the formal withdrawal requirements of ILO 169 which is not restricted to Article 39 but includes the consultation clause of Article 6. Otherwise, denunciation is unlawful. The times when Indigenous and Quilombola peoples were subjugated by (international) law are over. Stronger and more organised than ever, Indigenous and Quilombola organisations are equipped to protect and demand their rights in and outside political forums and courts, at domestic and international levels. Attempts to dismantle hard-earned rights that allow Indigenous and tribal peoples to restore, cultivate, and develop their autonomy (both in relation to and despite the state) should be repealed and revealed for what they truly are: authoritarianism, racial/cultural discrimination, and political-economic oppression - despite the cloak of legality they might wear. In such times, a revitalised debate on treaty denunciation will come in handy for those on which the consequences of the authoritative turn in international law weigh more heavily.
Scientia PhD Scholar at UNSW, Sydney
 Patrick Thornberry, Indigenous Peoples and Human Rights (Juris Pub ; Manchester, UK : Manchester University Press 2002) 339.
 Karen Engle, The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Duke University Press 2010) 108–109.
 Two caveats. First, ILO 107 is still in force but closed for accession. Second, nnonetheless disputed, the legal nature of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) is considered non-binding for a start because it was conceived under a UNGA resolution format. However, some scholars consider several rights enshrined in the UNDRIP as customary international law and, therefore, biding in nature. See, e.g., S James Anaya, Indigenous Peoples in International Law (Oxford University Press 2004) 49–57.
 Out of the 23 state-parties of ILO 169, 15 are from Latin America.
 As an example, some Zapatistas leaders relied on ILO 169 to claim legitimacy over their Indigenous identity and a right to political autonomy in Chiapas, Mexico. See Shannon Speed, ‘Global Discourses on the Local Terrain: Human Rights and Indigenous Identity in Chiapas’ (2002) 14 Cultural Dynamics 205, 218–220.
 Victoria Tauli-Corpuz, ‘Prologo’ in Marco Antonio Huaco Palomino, Los trabajos preparatorios del Convenio 169 sobre los pueblos indígenas y tribales en países independientes (Fundación Konrad Adenauer (KAS) 2015) 23.
 Douglas Sanders, ‘The Re-Emergence of Indigenous Questions in International Law’ (1983) 1983 Canadian Human Rights Yearbook 3, 19.
 Lucas da Silva Tasquetto and João Henrique Ribeiro Roriz, ‘“Deus em Davos”: populismo, neoliberalismo e direito internacional no governo Bolsonaro’ (2020) 17 Revista de Direito Internacional.
 Among the measures taken by the united front formed by the government and the parliament to defend agribusiness (and extractive) interests are (1) the bill that legitimises and rewards land grabbers, (2) the bill that eases environmental permits, (3) the executive act that eases the alienation of Indigenous lands to private buyers, and (4) the open declaration that “not a single centimetre of Indigenous land will be demarcated in this administration”, among others. And now, the denunciation of ILO 169.
 On the international criminal consequences of Bolsonaro’s actions, see more in Fernanda Frizzo Bragato, Marco Antonio Delfino de Almeida and Jocelyn Getgen Kestenbaum, ‘Povos Indígenas, Genocídio e Pandemia no Brasil’ (2020) 7 Revista Culturas Jurídicas.
 Annalisa Ciampi, ‘Invalidity and Termination of Treaties and Rules of Procedure’ in Enzo Cannizzaro (ed), The Law of Treaties Beyond the Vienna Convention (Oxford University Press 2011) 369.
 See, among others, André de Carvalho Ramos, Teoria geral dos direitos humanos na ordem internacional (2016); Flávia Piovesan, Direitos Humanos e o Direito Constitucional Internacional (19a edição, Saraiva Jur 2021).
 It should be acknowledged that, today, differently from the 1990s and 2000s (when treaty conclusion, not denunciation, was a main scholarly concern), the reach of authoritarian and reactionary ideologies to domestic and international legal institutions has made treaty denunciation a more dramatic threat.
 International Labour Organisation, Understanding the Indigenous and Tribal People Convention, 1989 (No. 169): Handbook for ILO Tripartite Constituents. (International Labour Office 2013) 1.
 The STF has applied on several of its recent judgements the prohibition of social setback principle, which roughly means that previously acquired fundamental rights aimed at improving individual and collective life should not be supressed or limited by ensuing law and policy. This can be indicative of towards which direction the STF might head if requested to appreciate the matter of ILO 169 denunciation. See ADI 5016 or ARE 745745, for instance.
 See more on AO-26/20 in Lucas Lixinski, ‘The “Collective Guarantee” of International Human Rights: Creating, Reinforcing, and Undoing Legitimacies and Mandates between Law and Politics’  Questions of International Law.
 Instead of principle of public international law, James Anaya argues that ILO 169 is “meaningful as part of a larger body of developments that can be understood as giving rise to new customary international law”. See Anaya (n 3) 49–57.
 Although Brazil ratified the VCLT on 14 December 2009, almost five years after it ratified ILO 169, the provision of Article 43 should be regarded as binding because of the customary legal nature of the VCLT’s provisions. On this, see Karl Zemanek’s introductory note here.