176. Given that ILO Convention 169 is applicable with regard to the subsequent impacts and decisions resulting from oil projects, even when the latter had been contracted prior to its entry into force,234 it is evident that, at least since May 1999,235 the State had the obligation to guarantee the right to prior consultation of the Sarayaku People, in relation to their right to communal property and cultural identity, in order to ensure that the implementation of the said concession would not harm their ancestral territory, or their subsistence and survival as an indigenous people. B.5 Application of the right to consultation of the Sarayaku People in this case 177. The Court has established that in order to ensure the effective participation of the members of an indigenous community or people in development or investment plans within their territory, the State has the obligation to consult the said community in an active and informed manner, in accordance with its customs and traditions, within the framework of continuing communication between the parties. Furthermore, the consultations must be undertaken in good faith, using culturally-appropriate procedures and must be aimed at reaching an agreement. In addition, the people or community must be consulted in accordance with their own traditions, during the early stages of the development or investment plan, and not only when it is necessary to obtain the community’s approval, if appropriate. The State must also ensure that the members of the people or the community are aware of the potential benefits and risks so they can decide whether to accept the proposed development or investment plan. Finally, the consultation must take into account the traditional decision-making practices of the people or community.236 Failure to comply with this obligation, or engaging in consultations without observing their essential characteristics, entails the State’s international responsibility. 178. Thus, it is necessary to determine the manner and sense in which the State had an obligation to guarantee the Sarayaku People’s right to consultation and whether the actions of the concessionaire company, which the State described as forms of “socialization” or attempts to reach an “understanding,” satisfy the minimum standards and essential requirements of a valid consultation process with indigenous communities and peoples in relation to their rights to communal property and cultural identity. To this end, the Court must analyze the facts, recapitulating some of the essential elements of the right to consultation, taking into account interAmerican case law and norms, State practice, and the evolution of international law. This analysis will be made as follows: (a) the prior nature of the consultation; (b) good faith and the aim of reaching an agreement; (c) appropriate and accessible consultation; (d) the environmental impact assessment, and (e) informed consultation. 234 In the context of Ecuadorian oil operations, the ILO Committee of Experts affirmed that, although the provisions of the Convention cannot be applied retroactively, “the Convention is applicable in the current circumstances [in Ecuador] with regard to the activities that are being carried out since May 15, 1999.” According to the Committee, “the obligation to consult the people concerned does not only apply to the concluding of agreements but also arises on a general level in connection with the application of the provisions of the Convention.” Accordingly, the Committee requested that, as of that date, Ecuador “apply fully” the Convention, recommending that it “establish prior consultation in the cases of exploration and exploitation of hydrocarbons that could affect indigenous and tribal communities and to ensure the participation of the peoples concerned in the various stages of the process, as well as in environmental impact studies and environmental management plans” (ILO, “Representation alleging non-observance by Ecuador of the Convention (No. 169) […], para. 28, evidence file, tome 10, folios 6013 and 6014, 6019, paras. 28, 30 and 45(a)). 235 Nevertheless, under the provisions of Article 18 of the Vienna Convention on the Law of Treaties, Ecuador was obliged to act in good faith in accordance with the object and purpose of the Convention. Article 18 of the Convention establishes: “Obligation not to defeat the object and purpose of a treaty prior to its entry into force. A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty; or (b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.” 236 Cf. Case of the Saramaka People v. Suriname, Preliminary objections, merits, reparations and costs, para 134. 50