The ILO Convention No. 111: an alternative means of protecting indigenous peoples’ rights?

ABSTRACT

Adopted in 1958, and in force for 175 states, Convention No. 111 Discrimination (Employment and Occupation) (‘C111’) is one of the ILO’s eight ‘fundamental’ conventions. Containing only five substantive articles, on its face, it does not appear to provide much scope for protecting indigenous peoples’ rights. Yet, via the lens of eliminating discrimination against indigenous peoples’ traditional occupations, it may provide viable means for indigenous peoples to seek protection for land, resource and other rights normally associated with Convention No. 169 (‘C169’). This nexus between traditional occupations and indigenous land rights has been recognised by the International Labour Office and by the ILO Committee of Experts on the Application of Conventions and Recommendations (‘CEACR’). While the ILO Governing Body has yet to receive a Representation pursuant to Article 24 of the ILO Constitution and alleging violations of indigenous peoples’ rights in relation to C111, this is likely to change soon as a Representation is presently being prepared by an indigenous community in Sumatra, Indonesia. The prior observations of the CEACR provide a strong foundation for submitting such a Representation.

KEYWORDS:

• ILO 111
• indigenous peoples
• traditional occupations
• discrimination
• land rights

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Fergus MacKay is Senior Counsel at the UK-based NGO, the Forest Peoples Programme. He has 25 years of experience supporting indigenous peoples in all regions of the world to assert and defend their rights before domestic and international bodies. This includes litigating a number of cases before United Nations treaty bodies and the Inter-American Commission and Court of Human Rights, including the landmark judgments in Saramaka People v. Suriname (2007) and Kaliña and Lokono Peoples v. Suriname (2015).

Notes

1 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), El Salvador 2008/2009; and CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Democratic Republic of Congo 2013/2014.

2 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), El Salvador 2008/2009.

3 ILO, ‘Newsletter 2007: Indigenous and Tribal Peoples – Theme: Discrimination’, 7.

4 Eliminating Discrimination Against Indigenous and Tribal Peoples in Employment and Occupation. A Guide to Convention No. 111, PRO169 and the Equality team (Geneva: ILO Office, 2007), 14; CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Uganda, 2014/2015.

5 Eliminating discrimination against Indigenous and Tribal peoples, Ibid, 14.

6 Ibid, 16; CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Uganda, 2014/2015.

7 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Botswana 2011/2012.

8 Eliminating Discrimination Against Indigenous and Tribal Peoples in Employment and Occupation. A Guide to Convention No. 111, PRO169 and the Equality team (Geneva: ILO Office, 2007), iii & 2.

9 CEACR, Direct Request, Central African Republic, 2011/2012. In the same Request, the CEACR also recommend that the State ‘take the necessary measures to ensure protection against discrimination and the promotion of equality of opportunity and treatment of indigenous peoples … with respect to the exercise of their traditional activities’.

10 CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Central African Republic 2013/2014.

11 CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Namibia, 2013/2014.

12 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Botswana 2011/2012; CEACR (2014) Direct Request, Liberia, 2013/2014.

13 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), El Salvador 2008/2009.

14 Aryal, K. and E. Kerkhoff, The Right to Practice Shifting Cultivation as a Traditional Occupation in Nepal: A Case Study to Apply ILO Conventions Nos. 111 (Employment and Occupation) and 169 (Indigenous and Tribal Peoples) (Geneva: ILO, 2008), 12.

15 ILO, ‘Newsletter 2007: Indigenous and Tribal Peoples – Theme: Discrimination’, 7.

16 CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Uganda, 2014/2015.

17 CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), El Salvador 2008/2009. See also CEACR, Direct Request concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Cambodia, 2013/2014’, Recalling the importance of access to land and natural resources for indigenous people to engage in their traditional occupations, the Committee requests the Government to provide information of the following: (i) the measures taken under the abovementioned policies 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 resources’; and CEACR, Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Democratic Republic of Congo 2013/2014,where the CEACR ‘requests the Government to take practical measures to allow indigenous peoples access, on equal footing with other members of the population … to resources which enable them to carry out their traditional and subsistence activities, particularly to land’.

18 Report No. 40/04, Maya Indigenous Communities of the Toledo District, Case 12.053 (Belize), Inter-Am. Com. H.R. (12 October 2004), para. 117.

19 CEACR, ‘Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Ethiopia’, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (Geneva: International Labour Office, 2018), 363; CEACR, ‘Observation concerning Discrimination (Employment and Occupation) Convention, 1958 (No. 111), Australia’, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (Geneva: International Labour Office, 2018), 340.

20 Eliminating discrimination against Indigenous and Tribal peoples in employment and occupation. A Guide to Convention No. 111, PRO169 and the Equality team (Geneva: ILO Office, 2007), 13.

21 CEACR, ‘Direct Request concerning Convention 111, Burundi in Ethiopia’, Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC.107/III(A), (Geneva: International Labour Office, 2018), 356.

22 Eliminating Discrimination Against Indigenous and Tribal Peoples in Employment and Occupation. A Guide to Convention No. 111, PRO169 and the Equality team (Geneva: ILO Office, 2007), 12.

23 Bernard Ominayak, Chief of the Lubicon Lake Band vs. Canada, Report of the Human Rights Committee, 45 UN GAOR Supp. (No.43), UN Doc. A/45/40, vol. 2 (1990).

24 J. Lansman et al. vs. Finland, UN Doc. CCPR/C/58/D/671/1995; General Comment No. 23 (50) (art. 27), adopted by the Human Rights Committee at its 1314th meeting (fiftieth session), UN Doc. CCPR/C/21/Rev.1/Add.5 (6 April 1994); Apirana Mahuika et al. v. New Zealand, CCPR/C/70/D/547/1993 (15 November 2000), para. 9.5.

25 Angela Poma Poma v. Peru, CCPR/C/95/D/1457/2006 (24 April 2009), para. 7.6.

26 Carmen Garcia Fernandez, ‘Benzoin, a resin produced by styrax trees in North Sumatra Province, Indonesia’, Forest Products, Livelihoods and Conservation, Vol. I, Asia, ed. Koen Kusters and Brian Belcher (Bogor: Center for International Forestry Research, 2004), 148–9.

27 Ibid, 149.

28 Decision No. 35/PUU-X/2012, (‘Traditional Forest Community Case’), Const. Court., 16 May 2013 (declaring provisions of the 1999 Forestry Law unconstitutional because the State was constitutionally obligated to recognise and respect the customary law land rights of indigenous peoples. The Forestry Law, however, is based on the illegitimate declaration of State ownership of all forest lands, including lands traditionally owned by indigenous peoples, which in turn allows for the granting of concessions by the State to companies to take over and exploit indigenous peoples’ constitutionally protected customary lands).

29 Concluding Observations of the Committee on the Elimination of Racial Discrimination: Indonesia, CERD/C/IDN/CO/3, 15 August 2007, para. 17.

30 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Indonesia, E/C.12/IDN/CO/1, 19 June 2014, para. 38

31 Concluding Observations of the Committee on the Elimination of Racial Discrimination: Indonesia, CERD/C/IDN/CO/3, 15 August 2007, para. 17.

32 Concluding Observations of the Committee on the Rights of the Child: Indonesia, CRC/C/IDN/CO/3-4, 10 July 2014, para. 19.

33 Concluding Observations of the Committee on the Elimination of Discrimination Against Women: Indonesia, CEDAW/C/IDN/CO/6-7/R.1, 27 July 2012, para. 45–6.

34 Concluding Observations of the Committee on Economic, Social and Cultural Rights: Indonesia, E/C.12/IDN/CO/1, 19 June 2014.

35 Concluding Observations of the Committee on the Elimination of Racial Discrimination: Indonesia, CERD/C/IDN/CO/3, 15 August 2007, para. 17.