Perspective on Convention 169, its significance to Inuit and some troubling developments

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Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Dalee Sambo Dorough (Inuit-Alaska) is International Chair of the Inuit Circumpolar Council and former Associate Professor at University of Alaska Anchorage. Engaged for over 34 years at the UN, ILO, OAS and other international fora, she is a former Expert Member and Chairperson of the UNPFII and specialises in international Indigenous human rights law as well as political and legal relations between States and Indigenous peoples. She holds a PhD from University of British Columbia, Faculty of Law (2002) and a Master of Arts in Law & Diplomacy from The Fletcher School at Tufts University (1991). Current areas of research include Arctic Indigenous peoples’ human rights, Arctic policy and Arctic related issues. She is also co-Chair of the International Law Association Committee on Implementation of the Rights of Indigenous Peoples.

Notes

1 Preamble of the Constitution of the International Labour Organization.

2 Indigenous and Tribal Populations Convention, 1957 (No. 107), International Labour Organization, entered into force June 2, 1959, 328 U.N.T.S. 247.

3 Indigenous and Tribal Peoples Convention, 1989 (No. 169), International Labour Organization, adopted Geneva, 76th ILC session 27 June 1989 (entered into force 5 September 1991).

4 See the listing under the heading UNIVERSAL HUMAN RIGHTS INSTRUMENTS at https://www.ohchr.org/EN/ProfessionalInterest/Pages/UniversalHumanRightsInstruments.aspx.

5 International Labour Conference, Provisional Record, 76th Session, Geneva, 1989, No. 25, para 42.

6 Erica-Irene Daes, ‘Striving for Self-Determination of Indigenous Peoples’, in In Pursuit of the Right of Self-Determination: Collected Papers and Proceedings of the First International Conference on the Right of Self-Determination, Geneva 2000, eds. Y.N. Kly and D. Kly (Atlanta, GA: Clarity Press, 2001), 50, at 52.

7 International Labour Organization, ILO standards and the UN Declaration on the Rights of Indigenous Peoples: Information note for ILO staff and partners’, http://www.ilo.org/indigenous/Resources/Publications/WCMS_100792/lang--en/index.htm, at 2. … ‘UNDRIP is a Declaration adopted by the General Assembly of the United Nations. … A Declaration adopted by the General Assembly reflects the collective views of the United Nations which must be taken into account by all members in good faith. Despite its non-binding status, the Declaration has legal relevance. For instance, it may reflect obligations of States under other sources of international law, such as customary law and general principles of law. Differences in legal status of UNDRIP and Convention No. 169 should play no role in the practical work of the ILO and other international agencies to promote the human rights of indigenous peoples through advocacy, capacity building, research or other means. Crucial for the technical and promotional work of the UN system is the commitment of governments wishing to benefit from such assistance to promote and protect indigenous peoples’ rights … The provisions of Convention No. 169 and the Declaration are compatible and mutually reinforcing. The Declaration’s provisions deal with all the areas covered by the Convention. In addition, the Declaration addresses a number of subjects that are not covered by the Convention.’ For further clarity, footnote provides: n. 4: It is recognised under the jurisprudence of the International Court of Justice that Declarations adopted by the General Assembly can be used as evidence of existing customary international law or of general principles of law. It has also been recognised that Declarations have served as a basis for the development of new customary norms over time. Which provisions are binding upon States as a matter of law must be examined on a case-by-case basis.

8 American Declaration on the Rights of Indigenous Peoples, AG/RES. 2888 (XLVI-O/16), adopted without vote by Organization of American States, General Assembly, 46th sess., Santo Domingo, Dominican Republic, 15 June 2016.

9 See American Declaration on the Rights of Indigenous Peoples, preambular para 8: ‘BEARING IN MIND the progress achieved at the international level in recognising the rights of indigenous peoples, especially the 169 ILO Convention and the United Nations Declaration on the Rights of Indigenous Peoples.’

10 2011 Report of the Committee of Experts on the Application of Conventions and Recommendations (articles 19, 22 and 35 of the Constitution), Report III (Part 1A), General Report and observations concerning particular countries, p. 783.

11 General Assembly, Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc. A/RES/70/1 (25 September 2015) (adopted without a vote), at 3 (Declaration), paras 3 and 4.