Progress through supervision of Convention No. 169

ABSTRACT

When the Indigenous and Tribal Peoples Convention (No. 169) was adopted in 1989 it was a major breakthrough in the international law on the human rights of indigenous and tribal peoples. The fact that it entered into the ILO's supervisory system was equally significant, and this has resulted in real advances in indigenous rights and international practice and law. The effects of this supervision are the subject of this article.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Lee Swepston is a Former Senior Adviser on Human Rights, International Labour Office. He was directly responsible for work in the Office leading to the adoption of Convention No. 169, and was responsible for staff work on its supervision for some years afterward. Recent publications include The Foundations of Modern International Law on Indigenous and Tribal Peoples: The Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development Through Supervision. Volume 1: Basic Policy and Land Rights (2014); Volume 2: Human rights and technical subjects, (Brill/Nijhoff, 2018).

Notes

1 ILO, Rules of the Game: A Brief Introduction to International Labour Standards (Geneva: International Labour Office, 2014).

2 The Committee of Experts is composed of 20 independent jurists from around the world, and meets annually. See Rules of the Game, op cit.

3 A distinguishing feature of the ILO is that it is composed of representatives of organisations of employers and of workers as well as governments, and that these non-governmental constituents play a role equal to that of governments in all decisions at the ILO.

4 The ILO speaks of indigenous and tribal peoples in order to make it clear that not all the peoples living in situations associated with indigenous peoples are literally ‘indigenous’ in the sense of having had earlier occupancy than the now-dominant cultures. Many have a presence no earlier than other cultures in the same country – India is an example – or are later arrivals, such as the garifunas or maroons of Central America who are descended from escaped slaves. The ILO’s concern is with the social situation of those it covers rather than only with historical precedence, which in many cases is a source of controversy.

5 In addition to these Portugal ratified C107 so that it would apply to its then-colonies of Angola, Guinea-Bissau and Mozambique. However, since C107 is not applicable to colonies, the Convention was never applicable to Portugal. Angola and Guinea-Bissau confirmed on independence that they would remain bound by C107, but Mozambique did not.

6 The author was in charge of the ILO’s equality branch at the time, and immediately following the end of apartheid a parliamentary committee came to the ILO in Geneva for two weeks, in order to study how non-discrimination laws were framed and applied in other countries. The information it generated was fed into the national law-making efforts.

7 In an observation adopted in 2009, the ILO Committee of Experts noted:

The Committee notes with satisfaction that following the Committee’s comments, the Storting’s Standing Committee on Justice held formal consultations with the Sami Parliament and the Finnmark County Council to discuss the draft legislation in question and received several rounds of written comments from these bodies. The final draft legislation prepared by the Standing Committee on Justice was unanimously endorsed by the Sami Parliament and a large majority of the Finnmark County Council and adopted by the Storting in June 2005 as the Act relating to the legal relations and management of land and natural resources in the county of Finnmark. (the “Finnmark Act”)

8 They can be consulted at http://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:50010:0::NO::P50010_ARTICLE_NO:24.

9 Reproduced in the 2012 observation to Argentina on C169, and repeated in a number of other comments on governments’ reports.

10 Roy, Raja Devashish, The ILO Convention on Indigenous and Tribal Populations, 1957 (No. 107), and the Laws of Bangladesh: A Comparative Analysis, 2009, available on the ILO web site.