Through the Constitutional reform of 1994, Argentina recognises indigenous peoples as subjects of law. The Constitution recognises the pre-existence of indigenous peoples and the community ownership of the lands they traditionally occupy, as well as their right to participation in issues affecting them. Argentina has ratified international treaties that recognise these rights, such as the 1989 Indigenous and Tribal Peoples Convention of the International Labour Organization (ILO Convention). The 2007 UN Declaration on the Rights of Indigenous Peoples and the 2016 American Declaration on the Rights of Indigenous Peoples are applicable too. The Inter-American Commission and Court have also insisted repeatedly on the importance of upholding indigenous peoples’ rights (see de Casas).
According to Argentina’s Constitution, treaties have a higher hierarchy than federal law upon their ratification by Congress. The ILO Convention therefore has a higher hierarchy than Argentine laws and its requirement for good faith consultation and consent should be implemented. The indigenous peoples’ right to ownership of their lands should also be guaranteed, as it stems directly from the Constitution. However, these rights are neither regulated in national laws nor in provincial laws (see UBA Amicus Curiae), and Argentina’s lack of compliance with international and constitutional obligations has been a source of criticism for many years, for instance from the Committee on the Elimination of Racial Discrimination. Although this regulation was set as a priority for Argentina’s Human Rights National Action Plan (2017-2020), this objective was not met in Congress, mostly because of the objection of certain provinces and of the extractive sectors.
In any case, although it would be convenient to see a federal law 99 acres database establishing in detail how communal land titles must be granted and how consultation must be undertaken, both rights are already in vigor in Argentine law. As stated by the Argentine Supreme Court of Justice and the Court in this case, the lack of national regulation cannot be a pretext for not implementing rights. However, the ratification or adoption of international human rights instruments does not necessarily trigger compliance of State parties, sometimes it does the contrary, as research has shown (see Hathaway). Argentina is thus only one of many examples. However, this case shows two important aspects. First, the additional difficulties of international instruments’ implementation in federal States, where provinces have different realities and interests. This may unfortunately be reflected in the local reception of the Lhaka Honhat judgment. Second, and perhaps more encouragingly, the ratification of international human rights instruments can lead to a slow emulation process where actors other than the State unite to bring about compliance (see Hafner-Burton and Tsutsui). Indeed, here the civil society actively participated as both petitioners and amici curiae in helping to recognise the right to communal property of indigenous peoples. Hopefully, journalists and academics can participate in this emulation process and push for the implementation of the judgment.