TOMANDO LOS DERECHOS COLECTIVOS EN SERIO: EL DERECHO A CONSULTA PREVIA DEL CONVENIO 169 DE LA OIT Y LAS INSTITUCIONES REPRESENTATIVAS DE LOS PUEBLOS INDIGENAS

Abstract

The present work focuses on the legal command indicated in article 6 of ILO Convention 169, concerning that prior consultation has to be done through the representative institutions of indigenous peoples. Specifically, it addresses the issue of how to understand the antinomy between collective and individual rights, which arises whenever these institutions, by their procedures of constitution, organization or operation, restrict certain rights of its members. In this sense, this article sets out two ways of comprehending the abovementioned issue. The first one stands that individual rights have a clear primacy upon the collective rights of the peoples; the second one, which is the one defended in this work, states that the priority between both kinds of rights is not manifest, in so far as the contemporary legal order in the matter is based on the recognition of indigenous peoples as collective subjects of fundamental rights, implying that the correct way of understanding this antinomy is as conflictive rights of equal hierarchy. (English) [ABSTRACT FROM AUTHOR]