Convention No.169
is a legally binding international instrument open to ratification,
which deals specifically with the rights of indigenous and tribal
peoples. Today, it has been ratified by
20 countries.
Once it ratifies the Convention, a country has one year to align
legislation, policies and programmes to the Convention before it becomes
legally binding. Countries that have ratified the Convention are
subject to
supervision with regards to its implementation
Click here for translations of Convention No. 169.
The basic principles of ILO Convention
Identification of indigenous and tribal peoples.
The Convention does not define
who are indigenous and tribal peoples.
It takes a practical approach and only provides criteria for describing
the peoples it aims to protect. Self-identification is considered as a
fundamental criterion for the identification of indigenous and tribal
peoples, along with the criteria outlined below.
Elements of tribal peoples include:
- Traditional life styles;
- Culture and way of life different from the other segments of the
national population, e.g. in their ways of making a living, language,
customs, etc.; and
- Own social organization and traditional customs and laws.
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Elements of indigenous peoples include:
- Traditional life styles;
- Culture and way of life different from the other segments of the
national population, e.g. in their ways of making a living, language,
customs, etc.;
- Own social organization and political institutions; and
- Living in historical continuity in a certain area, or before others “invaded” or came to the area.
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Non-discrimination
In recognition of the fact that indigenous and tribal peoples are
likely to be discriminated against in many areas, the first general,
fundamental principle of Convention No. 169 is non-discrimination.
Article 3 of the Convention states that indigenous peoples have the
right to enjoy the full measure of human rights and fundamental freedoms
without hindrance or discrimination. In Article 4, the Convention also
guarantees enjoyment of the general rights of citizenship without
discrimination. Another principle in the Convention concerns the
application of all its provisions to male and female indigenous persons
without discrimination (Article 3). Article 20 provides for prevention
of discrimination against indigenous workers.
Special measures
In response to the vulnerable situation of indigenous and tribal
peoples, Article 4 of the Convention calls for special measures to be
adopted to safeguard the persons, institutions, property, labour,
cultures and environment of these peoples. In addition, the Convention
stipulates that these special measures should not go against the free
wishes of indigenous peoples.
Recognition of the cultural and other specificities of indigenous and tribal peoples
Indigenous and tribal peoples’ cultures and identities form an
integral part of their lives. Their ways of life, customs and
traditions, institutions, customary laws, forms of land use and forms of
social organization are usually different from those of the dominant
population. The Convention recognizes these differences, and aims to
ensure that they are protected and taken into account when any measures
are being undertaken that are likely to have an impact on these peoples.
Consultation and participation
The spirit of consultation and participation constitutes the
cornerstone of Convention No. 169 on which all its provisions are based.
The Convention requires that indigenous and tribal peoples are
consulted on issues that affect them. It also requires that these
peoples are able to engage in free, prior and informed participation in
policy and development processes that affect them.
The principles of consultation and participation in Convention
No. 169 relate not only to specific development projects, but also to
broader questions of governance, and the participation of indigenous and
tribal peoples in public life.
In Article 6, the Convention provides a guideline as to how consultation with indigenous and tribal peoples should be conducted:
Consultation with indigenous peoples should be undertaken through
appropriate procedures, in
good faith, and through the
representative institutions of these peoples;
The peoples involved should have the opportunity to
participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly;
Another important component of the concept of consultation is that of
representativity.
If an appropriate consultation process is not developed with the
indigenous and tribal institutions or organizations that are truly
representative of the peoples in question, then the resulting
consultations would not comply with the requirements of the Convention.
The Convention also specifies individual circumstances in which
consultation with indigenous and tribal peoples is an obligation.
Consultation should be undertaken in good faith, with the objective
of achieving agreement. The parties involved should seek to establish a
dialogue allowing them to find appropriate solutions in an atmosphere of
mutual respect and full participation. Effective consultation is
consultation in which those concerned have an opportunity to influence
the decision taken. This means real and timely consultation. For
example, a simple information meeting does not constitute real
consultation, nor does a meeting that is conducted in a language that
the indigenous peoples present do not understand.
The challenges of implementing an appropriate process of consultation
with indigenous peoples have been the subject of a number of
observations of the ILO’s Committee of Experts, as well as other
supervisory procedures of the ILO, which the ILO has now compiled in a
Digest. Adequate consultation is fundamental for achieving a
constructive dialogue and for the effective resolution of the various
challenges associated with the implementation of the rights of
indigenous and tribal peoples.
Right to decide priorities for development
Article 7 of Convention No. 169 states that indigenous and tribal
peoples have the right to “decide their own priorities for the process
of development as it affects their lives, beliefs, institutions and
spiritual well-being and the lands they occupy or otherwise use, and to
exercise control over their economic, social and cultural development”.
This has been interpreted by the ILO’s supervisory bodies as an
essential consideration when consultations with indigenous peoples take
place.
Implementation of Convention No. 169
Since its adoption, Convention No. 169 has gained recognition well
beyond the number of actual ratifications. Its provisions have
influenced numerous policy documents, debates and legal decisions at the
regional and international levels, as well as national legislation and
policies.
The Provisions of Convention No. 169 are compatible with the
provisions of the United Nations Declaration on the Rights of Indigenous
Peoples, and the adoption of the Declaration illustrates the broader
acceptance of the principles of Convention No. 169 well beyond the
number of ratifications.
The Convention stipulates that governments shall have the
responsibility for developing co-ordinated and systematic action to
protect the rights of indigenous and tribal peoples (Article 3) and
ensure that appropriate mechanisms and means are available (Article 33).
With its focus on consultation and participation, Convention No. 169
is a tool to stimulate
dialogue between governments and
indigenous and tribal peoples and has been used as a tool for
development processes, as well as conflict prevention and resolution.
Although considerable progress has been made with regards to the
implementation of the Convention in the countries that have ratified,
the
supervisory bodies of
the ILO have also noted a number of implementation challenges,
particularly with regards to the coordinated and systematic action
required as well as the need to ensure consultation and participation of
indigenous peoples in decisions that affect them.
At the country-level, it has become evident that a focus on good
practices and lessons learned from practical implementation is crucial
for achieving a constructive dialogue. This is especially the case in
Africa and Asia, where the perceived sensitivity of indigenous issues is
a major obstacle to dialogue. Therefore, a new focus of the ILO’s work
in this area is on the documentation of good practices for the
implementation of the principles of Convention No. 169, in order to
enable key actors to benefit and learn from broader experiences in their
work. The ILO is gradually making a series of
good practice studies available, related to the main provisions of Convention No. 169
http://www.ilo.org/indigenous/Conventions/no169/lang--en/index.htm
