Making the Most of ILO Convention 169
The International Labor Organization (ILO), a specialized agency of the United Nations, adopted its Convention on Indigenous and Tribal Peoples, 1989 (No. 169) amidst a growing momentum for the recognition of indigenous peoples' right to self-determination and decolonization. The convention's failure to address these issues directly disenchanted many indigenous organizations with the ILO as a whole. Efforts shifted to the drafting of the Declaration on the Rights of Indigenous Peoples in the hope that this UN instrument would go farther. In the meantime the ILO convention has been neglected, despite ratification by several important countries (Norway, Bolivia, Colombia, Costa Rica and Mexico) and expressions of interest in ratification by other Andean and Asian governments. ILO staff conducted national seminars on the convention in Argentina, Bolivia, Guatemala, and India, launched aid projects for indigenous communities in Mexico and Sri Lanka, and helped organize a needs-assessment conference of circumpolar peoples in Siberia.
A close examination of the actual terms of the convention, in the context of the ILO's unique human-rights procedures, suggests that far greater ratification and practical use of Convention 169 is warranted, particularly in countries eligible for multilateral aid.
Long before the United Nations took an interest in the rights of indigenous peoples, the International Labor Organization identified the dispossession of Latin American Indians as a "labor" problem and adopted a convention to protect indigenous peoples as land-owners and workers. The Convention on Indigenous and Tribal Populations, 1957 (No. 107) was the first international human-rights treaty to recognize indigenous peoples as a distinct concern. Ratified by 28 countries, mainly in Latin America and south Asia, it provided the only specific international mechanism for indigenous land disputes for nearly thirty years. Indigenous people themselves made little use of it, however, because the internationalization of the indigenous movement had barely begun.
By the 1980's, indigenous peoples' own organizations had become an influential presence at international meetings, and they took a fresh look at the work of the ILO. In 1988 their partial revision of the 1957 convention rejected its emphasis on the gradual "integration" of indigenous peoples into national life and persuaded ILO officials to "re-orient" the convention closer to their "aspiration" for self-determination by securing their right to exercise "as much control as possible over their own social, economic and cultural development". Negotiations on a new convention in 1988-1989 focused on collective political and territorial rights, resulting in a particularly heated controversy over whether indigenous nations should be referred to in the text as "peoples", implying their right to exercise self-determination under the United Nations Charter. Although "peoples" was adopted, the question of self-determination was ultimately deferred to other United Nations organs (on the theory that the ILO lacked the authority to interpret provisions of the UN Charter).
This disappointment left many indigenous organizations uncertain about the merits of the new convention as a whole. North American and Australian organizations have not encouraged the ratification of the convention by their national governments. There has been wide support for ratification in Latin America, however, partly reflecting the more urgent need to forestall the colonization and destruction of Amazonia, Mayapan, Araucania, and other relatively intact Indian territories.
HOW DOES THE ILO WORK?
The ILO was organized in 1919 as an entity of the League of Nations in the climate of social revolution that followed the collapse of European empires in the First World War. Apart from copyright and postal unions, it was the first international agency, and the first intergovernmental organization devoted to human rights. Aimed at helping maintain industrial peace, the ILO was also an experiment in international democracy. Its Constitution recognizes three "social partners" - Government, Employers and Workers. Governing bodies of the ILO are accordingly divided into three aisles or groups, each with its own voting representatives from ILO member states. This arrangement gives Workers, who are the object of the ILO conventions and development-assistance programs, a formal voice in decision-making. Workers are represented by national trade union associations, such as the AFL-CIO in the United States and CLC in Canada. Like a political party, they take positions as a group and enforce party discipline in most voting.
ILO procedures for the drafting, adoption, and implementation of conventions are different from those of the United Nations. Drafting a new convention ordinarily takes only two or three years, compared to a decade or longer in the United Nations. The ILO secretariat drafts a working text based on comments and suggestions from the three social partners, and revisions are proposed and voted individually during one or two three-week negotiating sessions. If a coalition of Workers and some Governments emerges it can simply out-vote the Employers and more conservative Governments. While indigenous people participated in the ILO Convention 169 drafting sessions as non-voting observers, they were also able to make proposals and exercise an indirect vote through the Workers Group. By comparison, United Nations conventions are prepared by working groups of governments. Non-governmental organizations can participate in these discussions, but drafting decisions are made by a consensus of the governmental participants alone.
Once adopted, a convention becomes a legally binding only on those states which ratify it. In the UN, there are no adverse consequences for states that fail to ratify a new convention. Under article 19(5) of the ILO Constitution, however, if a state does not ratify a convention within one year, it must submit a report to the ILO giving its reasons for this "delay". Additional reports may be requested "at appropriate intervals" thereafter. Hence the ILO regards the non-ratification of a convention as a potential human-rights violation, and monitors the activities of non-ratifying as well as ratifying states.
There are also significant differences in enforcement procedures. Each UN human-rights convention creates a new "treaty body" made up of individual legal experts elected by the ratifying states. These small committees review progress reports periodically submitted by the state parties, but with two exceptions they do not have authority to act on individual complaints. The ILO has one review body, the Committee of Experts on the Application of Conventions and Recommendations, for all of its conventions. Like other ILO bodies the Committee of Experts is tripartite, with individual members selected by Governments, Employers and Workers. Ratifying states must submit annual progress reports to the Committee; in addition, complaints of non-observance can be made by any ILO member state or by an "industrial association" of workers. The Committee may question government representatives verbally at its meetings, request written explanations, offer ILO technical assistance for complying with the convention in question, and include a critical assessment of the government's conduct in its annual report. Disputes over the observance of a convention can be referred to a commission of inquiry, and from there to the International Court of Justice. Often the government concerned simply accepts the offer of remedial ILO aid, which frequently is provided directly to workers organizations.
The term "industrial associations" has traditionally been applied to trade unions, but can also include indigenous peoples' organizations that directly represent communities of farmers, fishermen, trappers or other kinds of artisanal workers. Either alone or in cooperation with Workers representatives, then, indigenous organizations have access to the Committee of Experts to challenge state parties' non-observance of ILO Convention 107 and 169. They also have the possibility, through challenging the non-ratification or non-observance of Convention 169 of obtaining direct ILO technical and financial assistance.
WHAT DOES THE CONVENTION REQUIRE?
Convention 169 does not refer to the right to self-determination, but requires state parties to base their relationships with indigenous peoples on cooperation and, for some purposes, good-faith negotiations and consent. Taken together, these provisions very nearly approximate the right to self-determination, though falling short of secession and independence.
States that ratify Convention 169 agree to respect "the integrity of the values, practices and institutions" of indigenous peoples, and to support the `full development of these peoples' own institutions". "Special measures" for the protection of indigenous peoples "shall not be contrary to the freely-expressed wishes of the peoples concerns. "This means that states must obtain indigenous consent to any existing or proposed laws that distinguish between indigenous peoples and other persons, such as Canada's Indian Act or Australia's Native Title Act. Any other measures that "may" affect indigenous peoples directly must be preceded by consultations with the "representative institutions" of the peoples concerned, undertaken "in good faith... with the objective of achieving agreement or consent to then proposed measures." Laws or programs adopted to implement the convention itself must be developed in "co-operation" with indigenous peoples, which implies the need to obtain their consent.
The convention recognizes that indigenous peoples own those lands "which they traditionally occupy," including natural resources and the "total environment," and have the right to continue their traditional uses of other lands. While the convention accepts the fact that, in most countries, minerals are owned by the state, it forbids any mining without prior consultations, including co-operative impact assessment, with the peoples concerned, as well as compensation for any injury and sharing of any revenues. In any case, indigenous peoples retain the general right "to exercise control, to the extent possible, over their own economic, social and cultural development," and can not be removed from their lands without their "free and informed consent." As long as indigenous peoples control their own development, and can refuse to be removed, it is difficult to see how minerals can be extracted from the indigenous lands without some from of agreement.
Other important provisions of the convention require the settling of historical land claims; strengthening of traditional subsistence activities such as hunting, fishing and trapping; providing support for community-controlled education, employment, and health programs; ensuring fluency and literary in indigenous languages; protecting workers from coercive recruitment and hazardous working conditions; and negotiating international agreements to enable indigenous peoples to maintain contacts and co-operation with each other across national borders. The convention also requires states to combat prejudices among their non-indigenous citizens including "ensur[ing] that history textbooks and other educational materials provide a fair, accurate and informative portrayal of [indigenous] societies and cultures."
HOW CAN THE CONVENTION BE USED?
Taken together, the terms of Convention 169 require a commitment to good faith negotiations, co-operation and consent in the relations between states and indigenous peoples, as well as complete respect for indigenous peoples' right to maintain their own institutions and laws within their own territories. Although there are weak points in these requirements, state practices will be assessed on a case-by-case basis by the Committee of Experts. One-third of the Committee members must be Workers, who tend to be sympathetic to indigenous peoples, and may be indigenous themselves. Thus, for example, whether consultations preceding legislation had been conducted in "good faith" under Article 6 of the convention would be determined by the Committee of Experts on a challenge by the indigenous peoples affected.
In its 1993 report, the Committee took five governments to ask for non-observance of Convention 107. In the case of Bangladesh, the Committee requested the postponement of a land-ownership survey in the Chittagong hills until steps had been taken "to resolve land claims by tribals" who had been forced by encroaching settlers to flee to India. The Committee also asked whether measures had been taken "to involve" indigenous peoples in ongoing negotiations with India over the return of tribal refugees. With respect to Brazil, the Committee underscored the "serious problems" of invasion of Yanomami lands and urged Brazil to take immediate action to prevent land encroachments, and to provide the Yanomami with adequate health and environmental funding. India was criticized for failing to provide adequate lands and infrastructure for the tribal peoples displaced by the Sardar Sarovar hydropower project. Paraguay was chastised for failing to establish a national ministry to protect Indian lands from encroachments, and was offered technical aid to design one. Columbia was asked to explain how it intended to make the transition from Convention 107 to Convention 169, a process which will legally require Indian collaboration.
These kinds of issues cannot be raised directly, or by indigenous peoples themselves, through the UN human Rights Committee or Committee of the Elimination of Racial Discrimination (CERD). The issue of land rights can be brought under these UN mechanisms only indirectly, as an example of discrimination, and the Human Rights Committee has recently held that indigenous peoples do not have distinct collective rights to self-government under the International Covenants of Human Rights. A further issue is representation and participation: the members of the UN committee are elected by state parties, and their meeting to discuss complaints are closed. Relatively few states with indigenous peoples have accepted the competence of the Human Rights Committee or CERD to act on individual complaints, moreover.
CHIAPAS: A TEST CASE
An important test of the ILO procedures will soon arise, in fact, in connection with the Zapatista uprising in southern Mexico, which is highlighting land claims and the exploitation of Indian workers in the plantation sector. Mexico was one of the first governments to ratify Convention 169, and will be one of the first to face criticism by the Committee of Experts, if Mayan peasant organizations or plantation-workers unions choose to bring their concerns to the ILO. Indigenous organizations elsewhere should watch the results carefully.
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