Published online by Cambridge University Press: 09 March 2016
From its very inception, the International Labour Organization (ILO) has been a pioneer in addressing indigenous peoples’ issues, albeit initially from a culturally biased, integrationist perspective. Its contributions have progressed from the preparation of studies on the working conditions of indigenous peoples in the 1920s, to the elaboration of recommendations and conventions on indigenous labour rights in the early 1940s and 1950s, and most recently to the adoption of legally binding instruments recognizing a broader range of indigenous rights, such as those pertaining to land and resources, which are at the top of indigenous peoples’ agendas. This article reviews and assesses these developments with a particular focus on ILO Convention nos. 107 (1957) and 169 (1989). The author concludes that, setting aside its initially assimilationist orientation, the ILO has made invaluable contributions in partial satisfaction of indigenous demands and has succeeded in establishing a solid floor of basic, minimum prerequisites for the safeguarding of the dignity and rights of these most disadvantaged, both historically and presently, peoples.
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120 See Moses, Ted “Renewal of the Nation,” in Alfredsson, Gudmundur and Stavropoulou, Maria eds, Justice Pending: Indigenous Peoples and Other Good Causes — Essays in Honour of Erica-Irene A. Daes (The Hague: Martinus Nijhoff, 2002) 57 at 63 Google Scholar, noting that “very few indigenous peoples anywhere in the world are secessionists.” See also Huff, Andrew “Indigenous Land Rights and the New Self-Determination” (2005) 16 Colo J Int’l Envtl L and Pol’y 295 at 320,Google Scholar noting that the insistence of states on invoking chaotic consequences that could ensue on the international stage from the recognition of indigenous peoples’ right to self-determination appears obtuse in view of those peoples’ repeated declarations that secession is not their object. According to Huff, this argument was advanced to cover states’ fears of losing control over natural resources (and their related benefits).
121 For an illustrative overview of the thesis of many indigenous peoples on the issue of self-determination, see the joint submission of a number of indigenous groups to the Working Group Established in Accordance with UN Commission on Human Rights Resolution 1995/32, “‘General Provisions’ of the Draft U.N. Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/2005/ WG.15/CRP.2 (24 November 2005).
122 “In the ILO Convention, a provision was added as paragraph 3 of Article 1 stating: ‘The use of the term “peoples’ in this Convention shall not be construed as having any implications regarding the rights which may attach to the term under international law.’ This has been taken by some — in particular by some representatives of indigenous and tribal peoples — to mean that the ILO Convention denies that those covered by it have the right to self-determination. This is clearly not the case, however; the International Labour Conference simply took the position that the question of self-determination was for the United Nations to resolve, not for the ILO.” International Labour Office, “Comments on the Draft United Nations Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/ 1995/119 (6 February 1995) at paras 14–15 [emphasis added]. See also Niezen, Ronald The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, CA: University of California Press, 2003) at 162,CrossRefGoogle Scholar noting that: “[i]n effect, the ILO, in the interests of realizing a convention that would meet the immediate needs of indigenous peoples, postponed the debate on indigenous self-determination by handing it over to its parent body, the United Nations.”
123 See Cleveland, Patrick “Apposition of Recent U.S. Supreme Court Decisions Regarding Tribal Sovereignty and International Indigenous Rights Declarations” (2000) 12 Pace Int’l L Rev 397 at 409.Google Scholar
124 As has been noted: “It is interesting that an International Organization is telling over 350 million people that they don’t exist as peoples. It raises the question of whose rights are protected: those of the indigenous peoples or the non indigenous peoples?” Joona, Tanja “ILO Convention no. 169 — A Solution for Land Disputes in the Nordic Countries?” in Heininen, and Laine, , supra note 119, 155 at 162 Google Scholar; Venne, supra note 86 at 56, commenting sarcastically that “[p]erhaps the revised Convention should be called the Convention concerning nonindigenous Peoples in Indigenous Peoples’ Territories and Their Right to Exist in Those Territories.” Strelein, supra note 107 at 70, criticizing the ILO’s thesis that the issue of self-determination is outside the scope of an ILO instrument as a reflection of its inappropriateness as a forum to accommodate indigenous peoples’ concerns.
125 See Anaya, James “Indigenous Law and Its Contribution to Global Pluralism” (2007) 6 Indigenous LJ 3 at 6 Google Scholar; see also Barsh, supra note 20 at 215, observing: “Indeed, the convention’s use of the term “peoples,” while deprived of its usual connotation under international law, was accepted as a way of affirming that indigenous peoples have ‘an identity of their own’ and comprise organized societies rather than ‘mere groupings’ of individuals sharing some racial or ethnic characteristics.”
126 See Anaya, S James “Indian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law” (2006) 22 Wash U JL & Pol’y 107 at 112.Google Scholar According to Thornberry, the convention’s “commitment to collective rights is remarkable and thoroughgoing.” Thornberry, supra note 11 at 366–67. Rodríguez-Piñero for his part argues that “[f]ramed by the recognition of indigenous peoples as ‘peoples,’ Convention no. 169 takes a decisive stand on the collective nature of indigenous rights, transforming what the earlier convention defined as an object of applied anthropological concern into a collective subject of rights.” Rodríguez-Piñero, supra note 117 at 321. Compare with Donders, who notes that this collective approach does not take “the form of substantive collective rights adjudged to indigenous peoples as such, but instead reflects State obligations towards these peoples. Thus, indigenous peoples are not subjects of these provisions, but their beneficiaries. Donders, Yvonne “The UN Declaration on the Rights of Indigenous Peoples: A Victory for Cultural Autonomy?” in Boerefijn, Ineke and Goldschmidt, Jenny eds, Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Antwerp: Intersentia,2008) 99 at 113.Google Scholar
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130 See UN Secretariat of the Permanent Forum on Indigenous Issues, “Contribution of the ILO,” International Workshop on Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc PFII/2005/ WS.2/4, para 2 [Contribution of the ILO].
131 Kawashima, Saeko “The Right to Effective Participation and the Ainu People” (2004) 11 Int’l J on Minority & Group Rights 21 at 28–29.Google Scholar
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135 Convention no. 169, supra note 44, Article 6(2). See Swepston, Lee “The ILO Indigenous and Tribal Peoples Convention (no. 169): Eight Years after Adop-tion,” in Cohen, Cynthia Price ed, Human Rights of Indigenous Peoples (Ardsley, NY: Transnational Publishers, 1998) 17 at 23.Google Scholar
136 “The Committee recalls that in the discussion concerning the adoption of Article 6 of the Convention on prior consultation, a representative of the Secretary-General stated that in drafting the text the Office had not intended to suggest that the consultations referred to would have to result in the obtaining of agreement or consent of those being consulted, but rather to express an objective for the consultations.” Ecuador Report, supra note 134 at para 39.
137 See Barelli, Mauro “Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead” (2012) 16 Int’l JHR 1 at 6 Google Scholar; Heinämäki, Leena “Protecting the Rights of Indigenous Peoples -Promoting the Sustainability of the Global En-vironment?” (2009) 11 Int’l Comm L Rev 3 at 36.CrossRefGoogle Scholar
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139 See Strelein, supra note 107 at 77, criticizing the notion that the consent of indigenous peoples may not be required where decisions directly affect them as illustrative of “the paternal statist approach of Convention 169.”
140 Barsh, supra note 20 at 219-20. See also Colborn, supra note 20 at 5.
141 Tahvanainen, Annika “The Treaty Making Capacity of Indigenous Peoples” (2005) 12 Int’l J Minority & Group Rights 397 at 414 [emphasis in original].CrossRefGoogle Scholar See also ILO, Report of the Committee Set up to Examine the Representation Alleging Non-Observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), Made under Article 24 of the ILO Constitution by the Central Unitary Workers’ Union (CUT) and the Colombian Medical Trade Union Association, 14 November 2001, ILO Doc (GB.277/18/1):(GB.282/14/4) at para 61 [Colombia Report], noting that “[i]n the opinion of the Committee, while Article 6 does not require consensus to be obtained in the process of prior consultation, it does provide that the peoples concerned should have the possibility to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly.”
142 See, eg, Colombia Report, supra note 141 at para 90, where “[t]he Committee considers that the concept of consultation with the indigenous communities that might be affected with a view to exploiting natural resources must encompass genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus. A meeting conducted merely for information purposes cannot be considered as being consistent with the terms of the Convention. Furthermore, according to Article 6, the consultation must be ‘prior’ consultation, which implies that the communities affected are involved as early on as possible in the process, including in environmental impact studies.”
143 Convention no. 169, supra note 44, Article 6(1)(b) [emphasis added]. See Pritchard, Sarah “Native Title from the Perspective of International Standards” (1997) 18 Australian YB of Int’l L 127 at 162.Google Scholar
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145 See Venne, supra note 86 at 59, observing that “[i]n many instances, our people have become involved in the administrative framework of the government. The result has been that our own people become the tools of assimilation … When an indigenous person is elected within the political framework of the non-indigenous system, an onus is placed on that person to follow ‘the rules of the game’, a game which has historically involved our dispossession … This is not a solution for us. For to be included in their way is the ultimate goal of assimilation.” See also Strelein, supra note 107 at 80.
146 See Barsh, supra note 20 at 220, n 46.
147 Convention no. 169, supra note 44, Article 7(4). See Shelton, Dinah “Human Rights, Environmental Rights and the Right to Environment” (1991) 28 Stan J Int’l L 103 at 127.Google Scholar
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154 See Venne, supra note 86 at 60; Joona, supra note 124 at 162.
155 See UN Economic and Social Council, Report of the Secretary-General on the Preliminary Review by the Coordinator of the International Decade of the World’s Indigenous Peoples on the Activities of the United Nations System in Relation to the Decade, 25 June 2004, UN Doc E/ 2004/CRP.12 at 39; Ecuador Report, supra note 134 at para 31; Contribution of the ILO, supra note 130 at para 2.
156 See Eide, Asbjørn “Good Governance, Human Rights, and the Rights of Minorities and Indigenous Peoples,” in Hans-Otto Sano and Gudmundur Alfredsson, eds, Human Rights and Good Governance: Building Bridges (The Hague, London, New York: Martinus Nijhoff, 2002) 47 at61.Google Scholar
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158 See ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Peru of the Indigenous and Tribal Peoples’ Convention, 1989 (no. 169), made under Article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP), 1998, ILO Doc /.270/16/4):GB.273/14/4) at para 32 (b), where the committee makes the following recommendation to the Governing Body: “b) to remind the Government of the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories, or both as applicable, which they occupy or otherwise use, and in particular the collective aspects of this relationship, and that when communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the community or the indigenous peoples and in general they may end up losing all or most of the land, resulting in a general reduction of the resources that are available to indigenous peoples when they own their land communally” [emphasis added].
159 “The relation of an indigenous community with its land must be recognized and understood as the fundamental basis of its culture, spiritual life, integrity and economic survival. For such peoples their communal nexus with the ancestral territory is not merely a matter of possession and production, but rather consists in material and spiritual elements that must be fully integrated and enjoyed by the community, so that it may preserve its cultural legacy and pass it on to the future generation.” Case of theMoiwana Community (Suriname) (2005), Inter-Am Ct HR (Ser C) no. 124 at para 131.
161 Convention no. 169, supra note 44, Article 14(1). See Lustig, Doreen andKingsbury, Benedict “Displacement and Relocation from Protected Areas: International Law Perspectives on Rights, Risks and Resistance” (2006) 4 Conservation and Society 404 at 409 Google Scholar; Thornberry, supra note 11 at 352, noting that “[i]n the Convention perspective, land rights are not granted by the State, which must rec-ognize them as a matter of international obligation arising from traditional occupation.”
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164 See Venne, supra note 86 at 61; Joona, supra note 124 at 162.
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174 Convention no. 169, supra note 44, Article 17(2). See Engle, Karen The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC: Duke University Press, 2010) at 178,Google Scholar noting sarcastically that one should read “if ever"” instead of “whenever.”
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207 Convention no. 169, supra note 44, Article 28(1) [emphasis added]. See UNESCO, Education in a Multilingual World: UNESCO Education Position Paper (Paris: UNESCO, 2003) at 23; Thornberry, supra note 11 at 363.
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230 See International Labour Office, Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ILO Convention no. 169 (Geneva: ILO, 2009) at 179.
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254 ACHR, supra note 198, Article 21; American Declaration of the Rights and Duties of Man, OAS Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, Doc OEA/Ser.L/V/II.82/doc.6 rev.1 at 17 (1992), Article 23 [American Declaration]. See Mello, Mario, “Recent Advances in the Justiciability of Indigenous Rights in the Inter-American System of Human Rights” (2006) 4 Sur-Int’l J Human Rights 31 at 35.Google Scholar
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257 Convention no. 169, supra note 44, Article 14(3).
258 Yakye Axa case, supra note 255 at paras 95–96.
259 Ibid at para 127.
260 Ibid at para 130. See also Góngora-Mera, Manuel Eduardo Inter-American Judicial Constitutionalism: On the Constitutional Rank of Human Rights Treaties in Latin America Through National and Inter-American Adjudication (San José, Costa Rica: Inter-American Institute of Human Rights, 2011) at 224.Google Scholar
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263 Ibid at paras 150-51. See also Inter-American Commission of Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 30 December 2009, Doc OEA/Ser.L/V/II/doc.56 (2009) at para 147.
264 See Ching-Soto, Lilly G “Reparations in the Inter-American System of Human Rights: An Analysis of the Jurisprudence on Collective Cases of Indigenous Peoples and the Economic, Social and Cultural Aspects of Their Reparations” (2010) 10 Revista do Instituto Brasileiro des Direitos Humanos 219 at 223–24.Google Scholar
265 ACHR, supra note 198, Articles 1(1), 2, 4, 5, 8, 21, 25.
266 Case of the Sawhoyamaxa Indigenous Community (Paraguay) (2006), Inter-Am Ct HR (Series C) no. 146 [Sawhoyamaxa case]. See Raisz, Anikó “Indigenous Communities before the Inter-American Court of Human Rights: New Century, New Era?” (2008) 5 Miskolc J Int’l L 35 at 46.Google Scholar
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273 Alejandro Papic Domínguez Con Comunidad Indigena Aymara Chusmiza v Usmagama, no. 2840-2008, 25 November 2008 (Supreme Court of Chile).
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278 General Forestry Act, Act 1021 of 2006 (Colombia).
279 Decision C-030/08, 23 January 2008, Case File D-6837 (Constitutional Court of Colombia).
280 The “Constitutional Block” doctrine holds that human rights conventions ratified by the ColombianState are part of the Constitution and should be used to determine the constitutionality of lower-ranking acts or laws. According to this doctrine, Convention no. 169 has, in Colombia, a constitutional status and is obligatory for legislators, administrative officers, and judges. See Suárez Franco, Ana María “Unconstitutionality Declaration of the Forestry Law in Colom-bia” (2008) 3 Right to Food Quarterly 10 at 10.Google Scholar
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298 See Kenya National Commission on Human Rights, Submission to the Committee on the Elimination of Racial Discrimination in Response to the Periodic Report of Kenya (June 2011) at 13, online: <http://www2.ohchr.org/english/bodies/cerd/docs/ngos/KNCHR_Kenya_CERD79.pdf>.
299 See Lemeiguran, supra note 297 at 325–26, 344.
300 UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Third Periodic Report of States Parties: Kenya, UN Doc CCPR/C/KEN/3 (13 January 2011) at para 203.
301 Lemeiguran, supra note 297 at 365–66.
302 Ibid at 367. See also International Labour Organization and African Commission on Human and Peoples’ Rights, Kenya: Constitutional, Legislative and Administrative Provisions Concerning Indigenous Peoples (Geneva: International Labour Office, 2009) at 26.
303 Lemeiguran, supra note 297 at 386–87.
305 “The cross-sectoral Strategy on Cooperation with Indigenous Peoples in Latin America and the Caribbean is a binding guideline adopted by the Federal Ministry for Economic Cooperation and Development (BMZ) for the formulation of development co-operation (DC) in Latin America and the Caribbean by official bilateral implementing agencies … Its principles are derived directly from the provisions of ILO Convention (no. 169) Concerning Indigenous and Tribal Peoples in Independent Countries.” Federal Ministry for Economic Cooperation and Development (Germany), Development Education and In-formation Division, “Development Cooperation with Indigenous Peoples in Latin America and the Caribbean (Strategies 141)” (2006) at 4, online: <http:// www.bmz.de/en/publications/type_of_publication/strategies/konzept141.pdf>.
306 See Valenta, Lisa “Disconnect: The 1998 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil” (2003) 38 Tex Int’l LJ 643 at 659.Google Scholar See also Oguamanam, Chidi “Indigenous Peoples and International Law: The Making of a Regime” (2004) 30 Queen’s LJ 348 at 364 Google Scholar; Rodríguez-Piñero, supra note 117 at 328, noting that “Convention 169 is now widely regarded as an important foundation of indigenous peoples’ rights in international law, and most indigenous organizations now actively promote the ratification of the convention.”
307 Heintze, supra note 9 at 310. As Thornberry also notes, “[t]he ILO can claim much of the credit for bringing rights of indigenous peoples — as such, and not as derivatives of other rights or applications of them — into the forefront of contemporary discussion.” Thornberry, supra note 11 at 320.
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