Human Rights at Work
Indigenous Peoples and International Law
by Lee Swepston ©
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All the ILO Conventions mentioned in this article may be found in the ILOLEX data base, on the ILO site: http://www.ilo.org
Indigenous peoples represent virtually a unique subject in modern international law, in that the groups directly concerned have staged a campaign since the early 1970s to make their situation a subject of international law and programmes - and have done so successfully. At the end of World War II there were no international instruments and no international concern with indigenous peoples, who were considered in many countries at that time to be an obstacle to development. The first international action in this area from the early 1950s to the early 1970s was done in a classic 'top-down' development approach, with the international community knowing best and not consulting those directly concerned.
But by the time the United Nations began its first discussions on the subject in 1972, the indigenous peoples of the world had begun to mobilise themselves, until today they are one of the most active lobbying interests in international organizations, and have managed to force the adoption or adaptation of several international Conventions, operational directives by international financial institutions, and the creation of two specially-dedicated United Nations bodies dealing directly and exclusively with their subject. Thanks in large part to their influence, the accepted development model in the international community is now inclusive and consultative. The situation now is very different from what it was when the UN system was born.
Today there are only two international Conventions dedicated directly to the rights of these peoples, and they have been adopted by the ILO with the close involvement of the rest of the international community. The 1989 ILO Convention, examined in more detail below, overcame the integrationist approach of the Organization's early efforts, and is based on inclusiveness, participation and consultation. The situation of indigenous peoples is of course covered in generally-applicable international human rights law, and the seminal 1990 UN Convention on the Rights of the Child actually includes specific references to indigenous rights.
Attempts are under way at the United Nations and in the Organization of American States to adopt declarations setting out a policy concerning indigenous people, but at this writing both efforts have become bogged down after more than 10 years of work.
A. International instruments
The only international Conventions directly applicable to these peoples are Conventions No. 107 of 1957 and No. 169 of 1989, adopted by the ILO. Besides these, indigenous peoples are covered directly or indirectly by UN human rights conventions.
1. The International Labour Organization
Background and Convention No. 107. The International Labour Organisation was by far the first intergovernmental organization to address indigenous rights. Its involvement is in fact a natural outgrowth of its work on labour and social policy, and this relevance continues to this day. As early as 1921, the ILO began work on the situation of 'native workers' in the colonies of European powers.This was a motivating factor in the adoption of the first of the ILO's fundamental human rights instruments, the Forced Labour Convention of 1930 (No. 29), which gave a more 'labour'-oriented expression to the Slavery Convention of 1926. It was also the beginning of ILO's long-standing task of preparing international regulations concerning the situation of dependent peoples faced with pressure and even assimilation from external cultures. Before the Second World War, the ILO adopted several Conventions relating to indigenous workers, all of them essentially focussed on problems related to labour contracting, conditions of work on plantations, and the like (but all now considered to be outdated).
For a long time the United Nations did not seriously tackle the subject of indigenous rights. When the ILO took up this concern within the UN system after the War, its long experience was a valuable reference. Thus was born the 'Andean Indian Programme', an integrated programme for regional development ultimately involving several countries and the indigenous peoples living there as well as much of the UN system. The ILO functioned as the 'lead agency' in this effort from 1952 to 1972 when the Programme ended.1.
Carrying out the Andean Indian Programme led the ILO to look at the situation of these peoples worldwide, beginning with a detailed study published in 1953 to catalogue the living and working conditions of these peoples around the world2. It was at this stage that the ILO began using the terms 'indigenous and tribal peoples' or 'populations' - terms which at that time were used interchangeably and had not yet acquired the major significance they would later have.3
In the context of the Andean Indian Programme, the other UN system organizations turned to the ILO and asked it to develop an international convention on the subject. The ILO had been adopting conventions on working conditions and on basic human rights well before the United Nations came into being, and it was during this post-war period that the ILO did its most pioneering work on human rights, adopting the standards on freedom of association, forced labour, and non-discrimination that became the basis for the relevant parts of the two human rights Covenants when they were adopted in 1966. During this flurry of human rights activity, the ILO began work on what would become the Indigenous and Tribal Populations Convention, 1957 (No. 107).
This seminal Convention, adopted with the active participation of the rest of the UN system, remained unique in international law until the adoption of its replacement Convention by the ILO in 1989, and the two together are the only comprehensive international statements in binding instruments of the rights of these peoples and of States' obligations towards them. Convention No. 107 covers basic policy and administration, protects customary laws, contains vital protections for the land rights of these peoples, and provides for special measures in matters concerning labour, social security, health, vocational training and general education in order to achieve equal treatment. Considering that it was adopted in 1957, it went very far in recognizing the rights of minorities to maintain distinct identities within the States in which they live.
Before the entry into force of Convention No. 69 which closed the door to further ratifications of Convention No. 1074, it had been ratified by 27 States. Its lifetime in guiding national and international policy was limited, although it remains in force for some countries5. In later years, changing international perceptions prevented ratification by some more progressive countries which might otherwise have wished to apply its protective provisions.
Convention No. 107 contained a fundamental flaw, however, which became increasingly evident as the United Nations belatedly began work on this subject. It took a patronizing attitude towards indigenous and tribal peoples - for instance, referring to them as 'less advanced' - and it promoted eventual integration as a solution to problems associated with their continued existence. It presumed that they would eventually disappear as separate groups once they had the opportunity to participate fully in national society, and to benefit from economic development.
In spite of its integrationist approach, Convention No. 107 exercised a very positive influence in many countries. The supervisory machinery of the ILO helped focus attention on serious abuses against these peoples. In some cases it was a major factor in the correction of abuses; in others, an additional element of creating international attention and pressure aimed at their continued survival and well-being. It also provided direction for a number of ILO technical assistance activities, particularly in Latin America, setting the stage for the much more active programmes now in place. Without Convention No. 107, there would never have been any international Convention on the subject, and probably Convention No. 169 would never have been adopted.
Convention No. 169. Since the middle of the 1970s when the UN debate began (see below), there was growing criticism of Convention No.107 by academics, by other international organizations, by non-governmental organizations and not least by the emerging organizations of the indigenous peoples themselves, for the reasons cited above6.The ILO Governing Body responded by convening a Meeting of Experts in Geneva in September 1986, to advise on whether and how Convention No. 107 should be revised.
The Meeting of Experts was essentially tripartite as is true in general for ILO meetings, meaning that it was composed mostly of delegates from employers' and workers' organizations as well as governments. In a break from tradition, however, the ILO Governing Body also appointed two experts from non-governmental organizations to represent the interests of indigenous peoples. One expert came from the World Council of Indigenous Peoples, the oldest and at that time largest international indigenous organization, and the other from Survival International, the pre-eminent indigenist NGO in the field. If this seems to lack respect for indigenous aspirations seen from today's perspective, at that time it was quite a radical idea for a forum beginning to draft an international treaty, and was the first time indigenous representatives had been appointed as experts in any international meeting of this kind. Other indigenous representatives, also for the first time, were observers in this meeting.
This meeting prefigured the battles of ideals and of aspirations that were to become familiar to those working in standard-setting in this area. The participants were unanimous in saying that Convention No. 107 had to be revised, and agreed without dissent that the integrationist and patronizing language had to be removed and replaced with an attitude of dignity and respect. Significant agreement was reached in many other respects as well, by identifying a number of fundamental principles that eventually found their way into the revised Convention. Where it failed to agree was in relation to the solutions to some of the problems.
These solutions were fought out in lively debates at the ILO Conference in 1988 and 1989, during the formal drafting process leading to the adoption of the Convention No. 169. This was by no means easy, and many of the same battles continue in the working group of the UN Commission on Human Rights on the UN draft Declaration. Critics on both ends of the spectrum of views consider that the Convention either goes much too far in providing for autonomy and for the rights of a defined group within the national context, or that it does not go nearly far enough because it does not grant full decision-making power and the right of self-determination to indigenous & tribal peoples7.
In fact, the Convention takes a broad approach to the rights of indigenous and tribal peoples. It carries on the earlier ILO practice of referring to indigenous and tribal peoples, and includes a wide statement of coverage, thus avoiding the destructive discussions about precise definitions being used by some to try to prevent the UN draft Declaration from applying to Asia and Africa. Its central Articles refer to the need to respect the continued existence and ways of life of indigenous and tribal peoples, and to involve them fully in taking decisions that concern them. It provides that these peoples have rights to lands traditionally occupied by them, and for the first time in international law states that they also have rights to the natural resources connected with those lands. It also covers a range of other situations, and is intended to guarantee to these peoples the greatest degree of autonomy and self-government attainable in the situations in which they live.
Convention No. 169 has, as of early 2003, been ratified by 17 countries8 with a number of others examining its ratification. Interestingly, it has fuelled study of the situation of these peoples in countries which previously denied their existence - for instance, in Central African Republic, Vietnam, Laos, Cambodia and Thailand most recently. ILO supervision has also helped to keep attention on indigenous rights and to provide another source of protection, for instance in Colombia where a long series of court judgements relying directly on the Convention has helped define indigenous rights in national law.
The Convention has been resorted to by indigenous organizations from a number of countries9 using the ILO's representation procedure under article 24 of the Constitution.10 These complaints have mostly concentrated on the lack of consultation by governments in using lands occupied or owned by indigenous peoples, or when designing and implementing development projects concerning them. The ILO bodies examining them have systematically found that consultations procedures were lacking, misused and inadequate, and have asked governments to give real effect to the Convention's principles in this respect. In another series of representations now pending, the recent legislative and constitutional changes by Mexico, affecting indigenous rights, are being challenged under the Convention, but these are still being examined.
Other ILO Conventions. Those using ILO standards to protect the rights of indigenous and tribal peoples often forget that man other ILO Conventions can be used to protect indigenous people as workers. This is particularly true of the human rights standards such as those protecting against forced labour (ILO Conventions Nos. 29 and 105), discrimination in employment and occupation (No. 111) and child labour (Nos. 138 and 182) - indigenous people are always among the most vulnerable members of any country in which they live, and thus subject to exploitation and abuse as are all other disadvantaged workers. Nor does this rely only human rights protections, as the interests of indigenous workers can also be protected through invoking other ILO standards on such matters as safety and health, protection of wages, or labour inspection.
2. United Nations instruments
Indigenous peoples, like all persons, enjoy the human rights laid down in the United Nations' human rights instruments. Professor Patrick Thornberry has detailed these protections in a new book11, which merits close study.
The International Covenant on Civil and Political Rights> contains no specific articles on indigenous rights, but does have provisions on two particularly important subjects for indigenous peoples - collective rights (self-determination) and minority rights (Article 27). The Human Rights Committee which supervises the implementation of the Covenant frequently deals with the rights of indigenous peoples in ratifying States, and these peoples' rights have also been examined in complaints under the Optional Protocol allowing individual complaints on the application of the Covenant.
As concerns self-determination, the Covenant provides (as does the Covenant on Economic, Social and Cultural Rights, in identical terms) that all peoples have the right of self-determination, by virtue of which they 'freely determine their political status and freely pursue their economic, social and cultural development'. At the risk of over-simplifying what is a very complex debate, there is no general agreement on how this provision applies to indigenous peoples. One thing is clear: these words have made the adoption of the word 'peoples' in international instruments referring to the indigenous a very problematic affair, as governments express the fear that they may inadvertently be recognizing a right to secession by their indigenous citizens if they describe them as peoples.12 Generally speaking, international law is unsettled on whether indigenous communities can be defined as peoples, and if so what would be the content and the extent of their right of self-determination - with views ranging from local autonomy to political independence. Some States that are happy to use the term in their internal legislation to refer to varying degrees of autonomy, are far more reserved about allowing it to be included in international documents.
Article 27 of the Covenant provides that 'In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.' Although indigenous representatives have in the main preferred to argue that they are covered by provisions and instruments on indigenous rights, they do of course also fall under this provision. And indeed, the active use of this provision by indigenous groups has contributed greatly to the development of understanding of minority rights in the international community.
The International Covenant on Economic, Social and Cultural Rights is the other main UN instrument on human rights. While it contains the same Article as the civil and political rights Covenant on self-determination, it does not have an article on minorities. Nevertheless, as it applies to all persons, and as indigenous peoples are often those most in need of economic, social and cultural rights, it is a particular valuable tool for them. The situation of indigenous peoples is regularly referred to ratifying States in their reports, and by the Committee on Economic, Social and Cultural Rights in examining its application.
The International Convention on the Elimination of all Forms of Racial Discrimination is also relevant. As Thornberry states,13 'The broad range of human groups included under the rubric of racial discrimination clearly includes indigenous peoples, even if they are not specifically mentioned.' In 1997 the Committee on the Elimination of Racial Discrimination, which supervises the Convention implementation, issued its General Recommendation XXIII (51)14, noting that discrimination against indigenous peoples falls under the Convention, and that discrimination against them is a matter of concern to it. The rich jurisprudence of this committee as concerns indigenous peoples is well worth consulting.
The UN Convention on the Rights of the Child is the only general human rights convention that contains a specific provision on indigenous rights, in addition being applicable to indigenous peoples generally. Article 30 states that 'In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.' The Committee on the Rights of the Child has scheduled a day of discussion on indigenous children for 19 September 2003, which at this writing has not yet occurred.
The United Nations: Martinez Cobo and the Working Group
Eventually, the United Nations woke up to the plight of indigenous peoples and the frequent violations of their rights. It is not yet fully awake, but it keeps moving along slowly towards the adoption of new standards and monitoring mechanisms, thanks largely to the indigenous peoples themselves and the lobbying efforts of their organizations. The support of a few experts and non-governmental organizations has been most helpful, that of Erica Daes in particular, but governments have remained reluctant partners at best.15
A number of indigenous organizations have actively engaged in international lobbying, such as the World Council of Indigenous Peoples (WCIP), the Indian Law Resource Center, the International Indian Treaty Council, the Inuit Circumpolar Conference (ICC), the Nordic Sami Council and many others. NGO conferences in Geneva and elsewhere led the way in addressing the need for and urging action by the United Nations on behalf of indigenous peoples.16
A study on discrimination against indigenous peoples was commissioned by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities17 in 1971, and completed in 1982. It was carried out in the name of a Special Rapporteur of the Sub-Commission, Jose Martinez Cobo of Ecuador, but was written for the most part by Augusto Willemsen Diaz, a Guatemalan staff member of what was then the UN Centre for Human Rights, a predecessor of the Office of the High Commissioner for Human Rights. The findings of this massive report were unambiguous, and they are still very valid: discrimination against indigenous peoples is rampant, and urgent action is needed to address the situation18.
As the major outcome of the Martinez Cobo study, the Working Group on Indigenous Populations was established in 1982. The Working Group still exists, though it is now considered to be under threat because of the establishment of the Permanent Forum on Indigenous Issues (see below). Under the leadership of Asbjorn Eide of Norway in its earliest years, and then of Erica Daes until she stepped down in 2000, it has provided an open and active forum for promoting indigenous rights, and has been the primary focus for indigenous activism in the international bodies ever since it was established. As many as 1.000 indigenous representatives and other NGOs have gathered annually in Geneva for its sessions each July. In addition to drawing attention to indigenous issues, the WGIP has also produced, under Mme Daes' guidance, the vitally important draft United Nations declaration on the rights of indigenous peoples - which has now been before the UN Commission on Human Rights for ten years.
Footnotes: Clicking on the footnote number will take you back to your place in the report.
1See ---- Rens, 'Le programme andin', Brussels: Bruylant, 1987; and Lee Swepston, 'Indigenous and Tribal Peoples and International Organizations: New Perspectives' in Transnational Perspectives, vol. 13, no. 1, 1987, pp. 15-18.
2Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries, Geneva: ILO, 1953 (long out of print). The Andean Indian Programme is the only time the UN system ever attempted such an approach on this scale.
3Except in the title of the UN Working Group and the UN Voluntary Fund which facilitates indigenous participation in meetings of the Working Group, the term 'indigenous populations' has nowadays been replaced by 'indigenous peoples'.
4In accordance with general ILO practice and article 38(2) of Convention No. 169.
5At this writing, early in 2003, C. 107 is still binding on 18 countries: Angola, Bangladesh, Belgium, Cuba, Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bisau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Portugal, Syrian Arab Republic and Tunisia. Of these, only those countries indicated by italics admit to having populations covered by the Convention, and take part in ILO supervision.
6See, for example, the ILO document 'Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107)', International Labour Conference, 1988, Report VI(1), from p.18.
7In this context, one may refer to article 1, paragraph 3, of the Convention which stipulates that 'The use of the term 'peoples' in this Convention shall not be construed as having any implication as regards the rights which may attach to the term under international law'. As concerns autonomy in the ILO Convention No. 169 although the text does not expressly use the term, see Gumundur Alfredsson, 'Autonomy and Indigenous Peoples' in Markku Suksi (editor), Autonomy: Applications and Implications, The Hague: Kluwer Law International, 1998, pp. 125-137.
8Argentina, Brazil, Bolivia, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Netherlands, Norway, Paragruay, Peru and Venezuela. The three countries listed in parentheses ratified during 2002, and the Convention is to enter into force for them in the course of 2003.
9Bolivia, Colombia, Denmark, Ecuador, Mexico and Peru.
10ILO procedures do not allow non-governemntal organizations such as indigenous communities to file complaints, but in all such instances the indigenous communities have enlisted the assistance of trade union organizations to make representations for them.
11Thornberry, Patrick, Indigenous Peoples and Human Rights, Manchester University Press, 2002 - see especially pp. 116 to 243 (Global instruments on human rights), pp. 244 to 319 (Regional insturments on human rights).
12The ILO was able to use the terms only by specifying in Article 1(3) of Convention No. 169 that its use of 'peoples' did not pre-empt the need for the United Nations to decide what that term means.
13Thornberry, op. cit., p. 209.
14HRI/GEN/1/Rev.5, 18 August 1997.
15For the early history of these efforts at the international level, see Russell Barsh, 'Indigenous North America and Contemporary International Law' in Oregon Law Review, vol. 62, 1983, pp. 73-92; Roxanne Dunbar Ortiz, Indians of the Americas and Self-Determination, London: Zed Books, 1984, Robert T. Coulter, The Evolution of International Human Rights Standards: Implications for Indigenous Populations of the Americas, Washington D.C.: Indian Law Resource Center, June 1984; Asbjörn Eide, 'United Nations Action on the Rights of Indigenous Populations' in Ruth Thompson (editor), The Right of Indigenous Peoples in International Law. Selected Essays on Self-Determination, Native Law Centre, University of Saskatchewan, 1987, pp. 11-33; and Hurst Hannum, 'New Developments in Indigenous Rights' in Virginia Journal of International Law, vol. 28, no. 4, 1988, pp. 649, 678. For a long series of other references see Bernadette Kelly Roy and Gudmundur Alfredsson, 'Indigenous Rights: The Literature Explosion' in Transnational Perspectives, vol. 13, no. 1, 1987, pp. 19-24.
16See, for example, International NGO Conference on Discrimination Against Indigenous Populations in the Americas and International NGO Conference on Indigenous Peoples and the Land, detailed reports from large gatherings held in Geneva in 1977 and 1981.
17Now the Sub-Commission for the Promotion and Protection of Human Rights.
18Study of the Problem of Discrimination against Indigenous Populations in UN Document E/CN.4/Sub.2/1986/7 and Addenda 1-4. Volume V of the Study, entitled Conclusions, Proposals and Recommendations, was issued separately with UN sales number E.86.XIV.3.
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