ILO Convention 169

What is the International Labour Organization Convention 169 (1989)?

The International Labour Organization (ILO) is an agency of the United Nations dedicated to improving working conditions of the citizens of its member states. In 1957, the ILO developed and ratified Indigenous and Tribal Populations Convention, 1957 (No. 107), an international instrument dedicated to improving the living conditions of Indigenous peoples worldwide. In 1989, ILO Convention 107 was revised and renamed Indigenous and Tribal Peoples Convention, 1989 (No. 169). Convention 169 recognizes Indigenous peoples’ right to self-determination within a nation-state, while setting standards for national governments regarding Indigenous peoples’ economic, socio-cultural and political rights, including the right to a land base. The convention is law within the nation-states that have ratified it.

The Convention consists of 44 articles organized in ten categories that outline the minimum standards of the rights of Indigenous peoples. These 44 articles, among other things, recognize “the aspirations of [Indigenous] peoples to exercise control over their own institutions, ways of life and economic development and to maintain and develop their identities, languages and religions, within the framework of the States in which they live.” The Convention guarantees Indigenous peoples the right to participate in decision-making on activities that may impact their own societies and territories, such as natural resource extraction, while maintaining the integrity of their societies, territories, and cultures. The Convention further recognizes the right to Indigenous peoples to prioritize their own development needs (Article 7). The Convention calls upon the government to uphold these rights and to recognize Indigenous peoples’ unique historical and socio-economic position within the state and their integral connection to their territories, and protects them against displacement. The Convention further guarantees the rights of Indigenous peoples to equal and fair employment opportunities (Articles 20-23), rights to health care (Article 25), and education (Article 27), including education in one’s own language (Article 28).

Read ILO Convention 169 here: http://www.ilo.org/ilolex/cgi-lex/convde.pl?C169

Since the mid-twentieth century, world leaders have attempted to develop international legislation to protect Aboriginal rights. These instruments have not been without problems and controversies—many experts, for instance, now view the ILO conventions as yet another form of paternalism toward Indigenous peoples. However, these instruments remain important tools for achieving recognition and protection of Aboriginal rights, and paved the way for the adoption, in 2007, of the U.N. Declaration on the Rights of Indigenous Peoples.

Development of ILO Convention 169

By 1985, Indigenous groups, leaders and other recognized experts had questioned the assimilationist and ethnocentric tone of Convention 107, and, as a result, the ILO assembled a Committee of Experts to revise it. The Committee’s proceedings in the late 1980s included meetings with Indigenous delegates, but Committee members, principally non-Indigenous government and business representatives,  had the final say on the Convention’s content.

The Convention, therefore, represents a compromise between Indigenous groups, businesses and governments. For example, during its redrafting, Indigenous groups argued for the inclusion of the terms “consent and control” in reference to Indigenous peoples’ input on activities that might impact their rights, but government and business representatives did not agree and offered instead the terms “consultation and participation.” These changes in terminology are potentially problematic, as Gerard Schulting points out, for these concepts “still assume outside initiatives coming from the government and not from Indigenous peoples themselves.”1 Further, the process of what constitutes meaningful consultation is left vague, an issue which has arisen in Canadian contexts—see, for example, the Supreme Court decisions Taku River Tlingit (2004) and Haida Nation (2004).

While the new Convention generally gives greater recognition to the agency of Indigenous peoples and calls for Indigenous participation in the decision-making processes that affect their lives, it limits Indigenous participation in political, social and economic matters to a system controlled by state governments and corporations. For example, under Convention 169, governments must consult Indigenous peoples on any changes in policy or legislation that would affect them, including resource extraction or alienation of their lands, but it does not give Indigenous peoples the right to veto such projects,” and as such, Gerard Schulting points that“ many Indigenous representatives feel that their lack of veto power allows governments too much freedom to do as they please.”2

Current Role of the Convention

Only 21 nations have ratified Convention 169, fewer than those that ratified its predecessor, ILO Convention 107. The decrease in signatories can be partially attributed to Convention 169’s inclusion of Indigenous peoples’ right to self-determination. Many nation-states are apprehensive of such provisions, arguing that Indigenous autonomy undermines their own sovereignty and governance. Most of the nations that have ratified Convention 169 are in Latin America, where enforcement is weak.3 Non-signatories such as Canada and the United States cite the international community’s inability to enforce these international instruments among their reasons for refusing to ratify them.

Despite its weaknesses, many Indigenous leaders consider Convention 169 a significant step toward achieving respect for Indigenous peoples’ human rights, improving standards of living,  recognizing Indigenous self-determination, and committing nation-states to these ends.

Convention 169 replaces Convention 107 in the countries that have ratified it. Every five years, the ILO reports on the Conventions’ implementation. ILO Convention 169 paved the way for the U.N. Declaration on the Rights of Indigenous Peoples, which was adopted in 2007.

by Erin Hanson

Recommended resources

Websites

International Labour Organization: http://www.ilo.org

Convention No. 169: http://www.ilo.org/indigenous/Conventions/n0169/lang—en/index.htm

The ILO and Indigenous & Tribal Peoples: http://www.ilo.org/indigenous

Pro 169 Training Tool Box on Indigenous People’s Rights: http://pro169.org/

This site’s many resources are primarily geared toward Indigenous leaders’ promoting the use of Convention 169 in their communities.

Books & articles

International Labour Organization. “Monitoring Indigenous and Tribal Peoples’ Rights Through ILO Conventions: A compilation of ILO supervisory bodies’ comments 2009-2010.” International Labour Organization, 2010. Available online: http://www.ilo.org/indigenous/Resources/Publications/lang–en/docName–WCMS_126028/index.htm

Schulting, Gerard. “ILO Convention 169: Can it help?” http://saiic.nativeweb.org/ayn/schulting.html

Swepston, Lee.A New Step in the International Law on Indigenous and Tribal Peoples: ILO Convention No. 169 of 1989,” Oklahoma City University Law Review, Vol. 15, No. 3, Fall 1990. 696-710.

—- “The Adoption of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), Law and Anthropology, Vol. 5, 1990. 221-235.

Swepston, Lee and Manuela Tomei. “The ILO and Indigenous and Tribal Peoples,” in L. van de Fliert, Ed. Indigenous Peoples and International Organizations. Nottingham: Spokesman, 1994.

—-  Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169. Geneva: International Labor Office, 1995.

Endnotes

1 Schutling, Gerard. “ILO Convention 169: Can it help?” http://saiic.nativeweb.org/ayn/schulting.htm

2 Schutling.

3 Rachel Seider, ed., Multiculturalism in Latin America: Indigenous Rights, Diversity and Democracy (New York: Palgrave Macmillan, 2002), 4.