ILO Convention No. 169 in Asia: progress and challenges

ABSTRACT

The article attempts to sketch the influence of ILO Convention No. 169 in Asia, almost thirty years after its adoption. Whereas Nepal ratified the ILO Convention No. 169 in 2007, the principles of the Convention have been used, in practice, to promote the recognition of indigenous peoples’ rights in connection also with other ILO Conventions, notably the ILO Discrimination (Employment and Occupation) Convention, 1958 (No. 111), one of the ILO eight fundamental Conventions, and the ILO Indigenous and Tribal Populations Convention, 1957 (No. 107), the ‘predecessor’ of Convention No. 169. The article describes the developments that have occurred in the recognition and protection of indigenous peoples’ rights in Nepal since its ratification of Convention No. 169 and then presents the experience of two countries, namely Bangladesh and Cambodia, which have not ratified Convention No. 169, but for which the Convention has still been used as a reference framework for the promotion of indigenous peoples’ rights. Convention No. 169, like UNDRIP, is an instrument of great importance for the region, even more so in the context of the design and implementation of national strategies under the 2030 Agenda for Sustainable Development and the Paris Agreement on Climate Change.

KEYWORDS:

• Asia
• indigenous peoples
• ILO Convention No. 169
• human rights
• SDGs

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Stefania Errico is currently an Honorary Research Fellow at Coventry University, Centre for Agroecology, Water and Resilience (CAWR). She has been working on indigenous peoples' issues in different capacities for the last fifteen years, including as Legal Officer of the International Labour Standards Department of the International Labour Organization (ILO) and as Technical Officer of the ILO's Programme to Promote ILO Convention No. 169 on indigenous and tribal peoples (PRO169) and its Gender, Equality and Diversity Branch.

Notes

1 Asia Indigenous Peoples Pact (AIPP), Traditional Livelihoods and Indigenous Peoples (Chiang Mai, Thailand: AIPP, 2010).

2 AIPP, Traditional Livelihoods and Indigenous Peoples; UN, Indigenous Peoples in the Asian Region (New York: UN Department of Public Information, 2014).

3 UN, Report of the Special Rapporteur on the rights of indigenous peoples. Consultation on the Situation of Indigenous Peoples in Asia, UN Doc. A/HRC/24/41/Add.3, 2013; UN, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people. General Considerations on the Situation of Human Rights and Fundamental Freedoms of Indigenous Peoples in Asia, UN Doc. A7HRC/6/15/Add.3, 2007.

4 See for example, UN Doc. A/HRC/24/41/Add.3, 2013.

5 AIPP, Traditional Livelihoods and Indigenous Peoples.

6 Christian Erni, ‘The Concept of Indigenous Peoples in Asia’, in The Concept of Indigenous Peoples in Asia. A Resource Book, ed. Christian Erni (Copenhagen: IWGIA, 2008), 325. See further, UN Doc. A/HRC/24/41/Add.3, 2013

7 AIPP and International Work Group for Indigenous Affairs (IWGIA), Who We Are. Indigenous Peoples in Asia (Chiang Mai, Thailand: AIPP/IWGIA, 2010); ILO, Indigenous Peoples and Climate Change: From Victims to Change Agents Through Decent Work (Geneva: ILO, 2017).

8 AIPP, Traditional Livelihoods and Indigenous Peoples.

9 Ibid.

10 Overseas Development Institute (ODI), Chronic Poverty Report 2014–2015 (London: Overseas Development Institute, 2014).

11 See, in this regard, World Bank, Poverty. Voices of the Poor (Washington, DC: World Bank, 2000).

12 For an overview of the situation of indigenous peoples’ rights in Asia, see Stefania Errico, The Rights of Indigenous Peoples in Asia: A Human Rights-Based Overview of National Legal and Policy Frameworks Against the Backdrop of Country Strategies for Development and Poverty Reduction (Geneva: ILO, 2017).

13 If looking more broadly at the Asia and Pacific region, it should be recalled that Fiji ratified ILO Convention No. 169 in 1998.

14 Myanmar and Thailand have not ratified Convention No. 111. Malaysia denounced that Convention in 1990.

15 ILO, Rules of the Game (Geneva: ILO, 2014).

16 Lee Swepston and Manuela Tomei, A Guide to ILO Convention No. 169 on Indigenous and Tribal Peoples (Geneva: ILO, 1995), v.

17 For examples, suffice to browse the webpage of the Asian Indigenous Peoples Pact (AIPP), the regional umbrella organisation of Asian indigenous peoples, founded by the indigenous peoples’ movements in 1988 and comprising 47 member organisations.

18 IWGIA, The Indigenous World (Copenhagen: IWGIA, 2018).

19 Please note that the experience of the Philippines will be discussed in a separate Chapter.

20 Swepston and Tomei, A Guide to ILO Convention No. 169.

21 ILO, Report VI (1). Partial Revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), International Labour Conference, 75th session, 1988, 32. See also the debate captured in the Report VI (1) Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries (Geneva: ILO, 1956).

22 See, for example, Committee of Experts on the Application of Conventions and Recommendations (CEACR), Individual observation, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Peru, Adopted 2008, published 98th ILC session, 2009.

23 Swepston and Tomei, A guide to ILO Convention No. 169.

24 Erni, The Concept of Indigenous Peoples in Asia.

25 For examples, reference is made to Errico, The Rights of Indigenous Peoples in Asia, 9 ff.

26 Association of Southeast Asian Nations (ASEAN), ASEAN Human Rights Declaration and Phnom Penh Statement on the Adoption of the ASEAN Human Rights Declaration (Jakarta: ASEAN Secretariat, 2013).

27 Benedict Kingsbury, ‘Indigenous Peoples in International Law: a Constructivist Approach to the Asian Controversy’, The American Journal of International Law 92, no. 3 (1998): 414–57, 433.

28 Kingsbury, ‘Indigenous Peoples in International Law’; Javaid Rehman and Harriet Hoffler, ‘Indigenous Peoples: An Introduction to the Socio-Legal Framework with a Special Focus on the Declaration on the Rights of Indigenous Peoples and South Asia’, European Yearbook of Minority Issues 8 (2009): 337–65.

29 The modern concept of ‘indigenous peoples’ covers peoples who, in spite of their diversity and the variety of their historical experiences, share some common characteristics, namely: occupation and use of a specific territory and special attachment to it, as it has a fundamental importance for their collective physical and cultural survival as peoples; cultural distinctiveness, which may include the aspects of language, social organisation, religion and spiritual values, modes of production, laws and institutions; an experience of subjugation, marginalisation, dispossession, exclusion or discrimination; and self-identification, and also recognition by other groups, or by State authorities, as a distinct collectivity. See UN Doc. E/CN.4/Sub.2/AC.4/1996/2; African Commission on Human and Peoples’ Rights (ACHPR), Report of the African Commission’s working group of experts on indigenous populations/communities, 28th ordinary session, 2005.

30 Errico, The Rights of Indigenous Peoples in Asia.

31 Government of the Philippines, Statement delivered at the 70th session of the UN General Assembly, November 19, 2015, https://www.un.org/en/ga/.

32 SUHAKAM (Human Rights Commission of Malaysia). Report of the National Inquiry into the Land Rights of Indigenous Peoples. Kuala Lumpur: SUHAKAM, 2013.

33 Government of Malaysia, Statement delivered at the 70th session of the UN General Assembly, October 19, 2015, https://www.un.org/en/ga/.

34 The Policy refers to ‘chuncheat daoem pheak tech’, literally ethnic nationalities or minorities, which has been considered as equivalent to the international concept of ‘indigenous peoples’. On this, see International Fund for Agricultural Development (IFAD), Country Technical Note on Indigenous Peoples’ Issues. Kingdom of Cambodia (Rome: IFAD, 2012); Jannie Lasimbang and Chingya Luthui, ‘Cambodia: New Laws for a New Approach in the Northeast Provinces’, in Bridging the Gap. Policies and Practices on Indigenous Peoples’ Natural Resource Management in Asia, ed. Helen Leake (Chiang Mai, Thailand, UNDP-RIPP and AIPP: 2007), 111–75; Erni, The Concept of Indigenous Peoples in Asia.

35 ILO, Indigenous and Tribal Peoples’ Rights in Practice. A Guide to ILO Convention No. 169 (Geneva: ILO, 2009).

36 IWGIA, The Indigenous World.

37 ADB, Safeguards Policy Statement. (Manila: Asian Development Bank, 2009); Asian Infrastructure Investment Bank (AIIB), Environmental and Social Framework (Beijing: Asian Infrastructure Investment Bank, 2016).

38 ILO, Indigenous and Tribal Peoples’ Rights in Practice.

39 UN Doc. A/HRC/12/34/Add.3, 2009, para. 14.

40 Ibid.; Devasish Roy, ‘Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal: Prospects and Challenges of the 2015 Constitution’ (ILO, unpublished, 2016), as referred to in Errico, The Rights of Indigenous Peoples in Asia; CEACR, Direct request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal. Adopted 2014, published 104th ILC session, 2015; CERD, Concluding Observations on Nepal, UN Doc. CERD/C/NPL/CO/17-23, 11 May 2018.

41 IWGIA, The Indigenous World.

42 Roy, ‘Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal’, 5.

43 Nepal Ratifies ILO Convention on Indigenous and Tribal Peoples’ Rights. Press Release, https://www.ilo.org/asia/media-.centre/news/WCMS_BK_PR_215_EN/lang--en/index.htm.

44 The text of the ‘12-point understanding reached between the Seven Political Parties and Nepal Communist Party (Maoists)’ of 2005 is available in English at: https://peacemaker.un.org/sites/peacemaker.un.org/files/NP_051122_12%20Point%20Understanding.pdf. It should be noted that this agreement was criticised by some indigenous groups because it failed to address their demands for autonomy. For a brief account of the post-conflict process, see Shakar Limbu, ‘Nepal: Country Profile’, in The Concept of Indigenous Peoples in Asia. A Resource Book, ed. Christian Erni (Copenhagen: IWGIA, 2008), 411–15.

45 Concerns about the lack of meaningful participation of indigenous peoples in the drafting process of the new Constitution were regularly raised by the UN Committee on the Elimination of Racial Discrimination (CERD) under the Early-Warning Measures and Urgent Procedures. See the relevant communications available at: https://www.ohchr.org/EN/HRBodies/CERD/Pages/EarlyWarningProcedure.aspx. See also UN Doc. CERD/C/NPL/CO/17-23, 2018.

46 CEACR, Direct request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal, Adopted 2015, published 105th ILC session, 2016.

47 The preamble to the Constitution makes generic reference to the discrimination and oppression perpetrated upon the people of Nepal. See further, Roy, ‘Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal’, 16.

48 Ibid.

49 Ibid., 11.

50 For an overview of the situation of land ownership in Nepal and the historical processes leading to land dispossession suffered by indigenous peoples see UN Doc. A/HRC/12/34/Add.3, 2009. As a result of land loss and other patterns of marginalisation, indigenous people became, in some instances, bonded workers in private farms and wealthier households (Ibid.).

51 CEACR, Direct request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal, Adopted 2015, published 105th ILC session, 2016.

52 Roy, ‘Inclusion of Indigenous Peoples’ Rights in the New Constitution of Nepal’, 33.

53 CEACR, Direct request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal, Adopted 2015, published 105th ILC session, 2016.

54 UN, Report of the Working Group on the Universal Periodic Review. Nepal. UN Doc. A/HRC/31/9, 23 December 2015, para. 121.9.

55 Ibid., para. 18.

56 IWGIA, The Indigenous World, 375.

57 IWGIA, The Indigenous World; UN Doc. CERD/C/NPL/CO/17-23, 2018.

58 IWGIA, The Indigenous World.

59 Lawyers’ Association for Human Rights of Nepalese Indigenous Peoples (LAHURNIP) 2017. SC issued. Post by LAHURNIP, August 14, 2017, https://www.lahurnip.org/news-details/86.html.

60 IWGIA, The Indigenous World.

61 The Decent Work Country Programmes (DWCPs) are the main vehicle for delivery of ILO support to countries and represents ILO’s contribution to UN country programmes. They are aligned with national development priorities, strategic priorities of the ILO and the United Nations Development Assistance Framework, and reflect the priorities identified by the ‘tripartite constituents’, i.e. the government, employers’ and workers’ organisations.

62 See n. 61 above.

63 See CEACR, Direct Request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal. Adopted 2012, published 102th ILC session; 2013; CEACR, Direct Request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal. Adopted 2013, published 103th ILC session; 2014; CEACR, Direct Request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal. Adopted 2014, published 104th ILC session, 2015; CEACR, Direct Request, Indigenous and Tribal Peoples Convention, 1989 (No. 169), Nepal. Adopted 2015, published 105th ILC session; 2016.

64 See, for example, CEACR, Individual Observation. Tunisia. Adopted 2010, published 100th ILC session, 2011.

65 CEACR, Individual Observation. Indigenous and Tribal Populations Convention, 1957 (No. 107), Bangladesh. Adopted 2015, published 105th session, 2016. It should be recalled that Bangladesh abstained during the vote on the adoption of UNDRIP at the UN General Assembly in 2007.

66 IWGIA, The Indigenous World.

67 Kingsbury, ‘Indigenous Peoples in International Law’.

68 Devasish Roy, The ILO Convention on Indigenous and Tribal Populations, 1957 (No. 107) and the Laws of Bangladesh: A Comparative Review (Dhaka: ILO, 2009).

69 Ibid.

70 Erni, The Concept of Indigenous Peoples in Asia.

71 Roy, The ILO Convention on Indigenous and Tribal Populations, 1957 (No. 107) and the Laws of Bangladesh.

72 For an overview, please see, among others, the information available on the ILO webpage, as well as the information on Bangladesh provided regularly by the ILO in its report to the UN Permanent Forum on Indigenous Issues available at https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html.

73 More information on the DWCP can be found at www.ilo.org/dhaka/country/lang--en/index.htm.

74 Members of the Caucus are elected members of the Parliament, and not themselves representatives of indigenous peoples. This condition has, sometimes, given rise to conflicts of interest between the political agendas of their respective parties and indigenous peoples’ agendas. See Abhilash Tripura, ‘Indigenous Peoples’ Participation in Decision-Making: Experience from the Parliamentary Caucus on Indigenous Peoples in Bangladesh’ (ILO, unpublished, 2015), as referred to in Errico, The Rights of Indigenous Peoples in Asia.

75 Ibid.

76 ILO, Giving Globalization a Human Face. ILC 101st session (ILO: Geneva, 2012).

77 Cambodia ratified Convention No. 111 in 1999.

78 IWGIA, The Indigenous World.

79 Lasimbang and Luthui, ‘Cambodia: New Laws for a New Approach in the Northeast Provinces’.

80 See supra note 34.

81 No specific procedure has so far been established to ensure that indigenous peoples are consulted and participate in decision-making that affects them. See ILO, ‘Cambodia and the Rights of Indigenous Peoples. A Legal Analysis’ (unpublished, 2015), as referred to in Errico, The Rights of Indigenous Peoples in Asia.

82 For an overview, please see, among others, the information available on the ILO webpage, as well as the information on Cambodia provided regularly by the ILO in its report to the UN Permanent Forum on Indigenous Issues available at https://www.un.org/development/desa/indigenouspeoples/unpfii-sessions-2.html.

83 CEACR, Direct Request. Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Cambodia. Adopted 2009, published 99th session, 2010. In its latest comments on C111, the CEACR requested the Government to provide information, among others, on: the measures taken to ensure that indigenous peoples can engage in their traditional occupations if they so choose and have access without discrimination to the material goods and services necessary to carry out these occupations, including land and other natural resources; and the measures taken to accelerate the protection of indigenous peoples’ land rights pending the registration of collective title under the Land Law, including information on any interim protective measures adopted. See Direct Request. Discrimination (Employment and Occupation) Convention, 1958 (No. 111). Cambodia. Adopted 2015, published 105th session, 2016.

84 130–31; 135.

85 As of May 2017, 124 indigenous communities had been recognised as such by the Ministry of Rural Development and 109 had been recognised as legal entities by the Ministry of Interior. See UN, Report of the Special Rapporteur on the Situation of Human Rights in Cambodia. UN Doc. A/HRC/36/61, 27 July 2017.

86 UN, Report of the Working Group on the Universal Periodic Review. Cambodia. UN Doc. A/HRC/26/16, 25 June 2014, para. 118.135.

87 Errico, The Rights of Indigenous Peoples in Asia; ILO, Including Indigenous Peoples in Poverty Reduction Strategies. A Practice Guide Based on Experiences from Cambodia, Cameroon and Nepal (Geneva: ILO, 2008).

88 The strategy is available at https://www.ilo.org/gb/GBSessions/GB325/pol/WCMS_412809/lang--en/index.htm.