NORDIC
JOURNAL
OF
INTERNATIONAL
LAW
Nordic Journal of International Law 79 (2010) 433–456
brill.nl/nord
ILO Convention No. 169 Concerning Indigenous and
Tribal Peoples in Independent Countries 1989–2009:
An Overview
Athanasios Yupsanis*
Member, Hellenic League for Human Rights; Member, Hellenic Society
of International Law and International Relations
Abstract
On 27 June 1989, by a majority of 328 votes for, one against and 49 abstentions, the International
Labour Conference adopted the Convention No. 169 Concerning Indigenous and Tribal Peoples
in Independent Countries, which came into force on 5 September 1991. Twenty years later, the
Convention remains the only modern international legally binding instrument containing a series
of novel provisions specifically devoted to the rights of indigenous peoples with a view to recognising, protecting and promoting their distinct identity. Despite its shortcomings and its few ratifications (just 20), the Convention has proved to be a significant departure for the defence and
strengthening of indigenous rights at national, regional (especially that of Latin America) and
universal level.
Keywords
indigenous peoples; ILO 169; multiculturalism; land and resource rights; participatory rights
1. Introduction: The ILO and the Indigenous Peoples
The International Labour Organisation (ILO) has been the first international
agency, in the early 1920s, to turn its attention to the protection of the labour
rights of indigenous peoples.1 “This was in large part due to widespread exploitation of their labour, that continues to the present day in certain countries”, as
MacKay notes.2 In the 1950s ILO adopted (1957) the Convention Concerning
*) LL.M., Ph.D. in international law (Aristotle University); e-mail: thayup@yahoo.gr.
1)
H. Hannum, ‘New Development in Indigenous Rights’, 28 Virginia Journal of International Law
(1988) p. 652.
2)
F. MacKay, A Guide to Indigenous Peoples’ Rights in the International Labour Organization
(Forest Peoples Programme, 2002) p. 7, <www.forestpeoples.org/documents/law_hr/ilo_guide_ip_
rights_jul02_eng.pdf>, visited on 6 March 2010; In the late 1930s and mid 1940s the
Organisation adopted a series of conventions on the labour issues and rights of indigenous peoples,
see Convention Concerning the Regulation of Written Contracts of Employment of Indigenous
© Koninklijke Brill NV, Leiden, 2010
DOI 10.1163/157181010X512576
434
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries (Convention No. 107),3 which covered a
broader range of issues and rights. The Convention, which is now closed for ratification but remains in force for those states that ratified it and have not yet
denounced it or adhered to Convention No. 169,4 was for those days a positive,
albeit feeble and diffident, step forward. It remained for 30 years the only international legally binding instrument to focus on the rights (individual rights for
the most part) of indigenous peoples, by calling inter alia for the adoption of
special measures of a temporary nature for the protection of their institutions,
persons, property and labour for as long as the prevailing social, economic and
cultural conditions prevent them from enjoying the benefits of laws of the country to which they belong (Article 3)5 and by recognising individual and collective
rights of ownership to the lands they traditionally occupy (Article 11).6 Its
provisions, however, were shaped by its general frame of reference, which lay in
governments taking coordinated and systematic action to protect their indigenous peoples and progressively integrate them into the life of their countries
(Article 2),7 a formulation, which although ambivalently denounced policies
Workers (No. 64: 1939), <www.ilo.org/ilolex/cgi-lex/convde.pl?C064>, visited on 6 March 2010;
Convention Concerning Penal Sanctions for Breaches of Contracts of Employment by Indigenous
Workers (No. 65: 1939), <www.ilo.org/ilolex/cgi-lex/convde.pl?C065>, visited on 6 March 2010;
Convention Concerning the Maximum Length of Contracts of Employment of Indigenous
Workers (No. 86: 1947), <www.ilo.org/ilolex/cgi-lex/convde.pl?C086>, visited on 6 March 2010;
Convention Concerning the Abolition of Penal Sanctions for Breaches of Contracts of Employment
by Indigenous Workers (No. 104: 1955), <www.ilo.org/ilolex/cgi-lex/convde.pl?C104>, visited on
6 March 2010. For the content and scope of the protection standards of those Conventions see
P. Macklem, ‘Indigenous Recognition in International Law: Theoretical Observations’, 30 Michigan
Journal of International Law (2008) pp. 188–189.
3)
See Convention Concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries (No. 107: 1957), <www.ilo.org/ilolex/cgi-lex/
convde.pl?C107>, visited on 6 March 2010.
4)
See Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ILO Convention No. 169
(International Labour Office, Geneva, 2009) p. 173, <www.ilo.org/wcmsp5/groups/public/---ed_
norm/---normes/documents/publication/wcms_106474.pdf>, visited on 6 March 2010;
Convention 107 was ratified by 27 countries and is still in force in 17 of them, Angola, Bangladesh,
Belgium, Cuba, the Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India,
Iraq, Malawi, Pakistan, Panama, Syria and Tunisia. Nine states, namely Argentina, Bolivia, Brazil,
Columbia, Costa Rica, Ecuador, Mexico, Paraguay and Peru, have adhered to Convention 169,
while Portugal has denounced Convention 107, without (yet) adhering to Convention 169, see
ILO Convention’s No. 107 Ratifications, <www.ilo.org/ilolex/cgi-lex/ratifce.pl?C107> , visited on
6 March 2010.
5)
F. H. Naqvi, ‘People’s Rights or Victim’s Rights: Reexamining the Conceptualization of
Indigenous Rights in International Law’, 71 Indiana Law Journal (1996) p. 705.
6)
L. Swepston and R. Plant, ‘International Standards and the Protection of the Land Rights of
Indigenous and Tribal Populations’, 124 International Labour Review (1985) p. 97.
7)
N. Lerner, ‘The 1989 ILO Convention on Indigenous Populations: New Standards?’, 20 Israel
Yearbook on Human Rights (1990) p. 233.
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
435
of involuntary assimilation,8 was nonetheless construed by state authorities as
a covert invitation to proceed in this manner. This paternalistic approach was
the product of the development discourse of the day, which saw the peoples in
question as ‘less advanced’ (see Article 1(a)) and consequently held that their
‘integration’, which was mostly read as assimilation, into the dominant
‘advanced’ national structures was not only inevitable9 but also in their interest.10
This point of view, which was widely accepted at the time when the Convention was adopted, gradually became the object of harsh criticism, not only from
the indigenous peoples who reject it and demanded the revision of ILO No.
107,11 but also from a rapidly multiplying number of scholars,12 since it was
felt to belittle the culture of the peoples in question, focusing as it did on ‘integration’ in the form of assimilation rather than on protecting their distinctive characteristics and their way of life in general.13 The assimilationist approach thus
began, throughout the 1970s and the early 1980s, to be seen as outdated,14 and
this development, coupled with the pressures exercised by the indigenous
peoples, led the ILO to engage in a partial revision of the Convention in the mid
1980s.15
8)
See Macklem, supra note 2, p. 194, observing that “the Convention distinguishes between
integration and assimilation, stipulating that integration is not to occur by ‘force or coercion’ or by
means of ‘measures tending towards the artificial assimilation’ of indigenous people. Beyond these
provisions, the text offers little insight into the meaning of integration.” Emphasis added.
9)
L. Swepston, ‘Latin American Approaches to the ‘Indian Problem’’, 117 International Labour
Review (1978) p. 181.
10)
As it was characteristically noted, “[t]he problem with this Convention stems from the ethos of
the period in which it was adopted, i.e. at the height of the paternalistic era of the United Nations
system… Essentially, the ILO … did something perfectly acceptable at the time: the Conference
met in Geneva and decided what was best for these underprivileged groups, but they omitted to ask
the underprivileged themselves what they thought of the idea”, emphasis added, L. Swepston,
‘Indigenous and Tribal Populations: A Return to Centre Stage’, 126 International Labour Review
(1987) p. 450.
11)
A. Al Faruque and N. Begum, ‘Conceptualising Indigenous Peoples’ Rights: An Emerging New
Category of Third Generation Rights’, 2 Asia-Pacific Journal on Human Rights and the Law (2004)
p. 15.
12)
See L. Swepston and G. Alfredsson, ‘The Rights of Indigenous Peoples and the Contribution by
Erica Daes’, in G. Alfredsson and M. Stavropoulou (eds.), Justice Pending: Indigenous Peoples and
Other Good Causes: Essays in Honour of Erica-Irene A. Daes (Kluwer Law International, The Hague,
2002) p. 75.
13)
S. Wiessner, ‘Rights and Status of Indigenous Peoples: A Global Comparative and International
Legal Analysis’, 12 Harvard Human Rights Journal (1999) p. 100.
14)
See S.J. Anaya, ‘Indigenous Rights Norms in Contemporary International Law’, 8 Arizona
Journal of International and Comparative Law (1991) pp. 6–7, who remarks that with the exception
of the land rights provisions (which were a positive achievement), the Convention “came to be
regarded as a dinosaur”.
15)
See generally R.L. Barsh, ‘Revision of ILO Convention No.107’, 81 American Journal of
International Law (1987) pp. 756–762.
436
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
2. The Multicultural Approach of the ILO Convention Concerning
Indigenous and Tribal Peoples in Independent Countries (No. 169)
The ILO Convention Concerning Indigenous and Tribal Peoples in Independent
Countries,16 which was adopted on 27 June 1989 and came into force on 5
September 1991, is essentially diametrically opposed to its predecessor, in that it
adopts a modern, non-paternalistic, non-assimilative approach, as initially indicated by the dropping of the term ‘integration’ from its title and as further solemnly proclaimed in its Preamble, which on the one hand expressly declares
(paragraph 4) that the earlier assimilationist orientation has been abandoned in
the light of developments in international law since 1957 and on the other recognises (paragraph 5) 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.17 Within this framework the
Convention lays down a series of provisions establishing the right of indigenous
peoples to maintain and develop their societies, among other things urging
governments: a) to develop, with the participation of the peoples concerned,
co-ordinated and systematic action to protect the rights of these peoples and to
guarantee respect for their integrity (Article 2(1)); b) to respect, when adopting
the necessary measures to promote the full realisation of the social, economic and
cultural rights of these peoples, their social and cultural identity, their customs
and traditions and their institutions (Article 2(2)(b));18 c) to recognise and protect their social, cultural, religious and spiritual values and practices (Article
5(a));19 d) to respect the integrity of these values, practices and institutions (Article
5(b)); and e) to have due regard, in applying national laws, to their customary law
(Article 8(1)).20 In relation to this last point the Convention provides that indigenous peoples have the right to retain their own customs and institutions, where
these are not incompatible with fundamental rights defined by the national legal
system and with internationally recognised human rights (Article 8(2)).21
16)
See ‘Convention Concerning Indigenous and Tribal Peoples in Independent Countries
(Convention 169)’, 28 International Legal Materials (1989) pp. 1384–1392.
17)
See The Right to Take Part in Cultural Life – Comments Submitted by the International Labour
Organisation, Day of General Discussion – Right to Take Part in Cultural Life (Article 15(1)(a) of
the Covenant), (UN Doc. E/C.12/40/12), 9 May 2008, p. 3, para. 2(1).
18)
See Protection of the Heritage of Indigenous People, Note by the International Labour Office, (UN
Doc. E/CN.4/1995/120), 6 February 1995, para. 3.
19)
R. Wilson, ‘Environmental, Economic, Social and Cultural Rights of the Indigenous Peoples of
Chiapas, Mexico’, in C.P. Cohen (ed.), Human Rights of Indigenous Peoples (Transnational Publishers,
New York, 1998) p. 224.
20)
R.D. Roy and J.B. Henriksen, Inclusion of Indigenous Peoples’ Rights in the New Constitution of
Nepal, 11 February 2010 (Rev), p. 29, <www.ilo.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_123847.pdf>, visited on 6 March 2010.
21)
E. Stamatopoulou, Cultural Rights in International Law: Article 27 of the Universal Declaration
and Beyond (Martinus Nijhoff Publishers, Boston/Leiden, 2007) p. 43.
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
437
To achieve this aim the Convention includes two sets of norms, one banning
discrimination against indigenous peoples and entrenching their equal enjoyment of human rights (Articles 2(2)(a), 3(1), 20(2), 24)22 and one establishing
a state obligation to adopt special measures – insofar as these are not contrary
to the freely-expressed wishes of the peoples concerned – to safeguard their persons, institutions, property, labour, cultures and environment (Article 4(1) and
(2)).23 These measures, moreover, are not of an temporary nature: that is, they will
not lapse, as is the case for example with Article 3 of Convention No. 107, once
the purpose for which they were adopted, namely the achievement of equality, is
realised, but will remain in force in perpetuity, thus meeting the demands of the
indigenous peoples who have repeatedly stressed that they are not seeking merely
equality but also the possibility of continuing to exist as distinct peoples.24
Other key dimensions of this modern, comprehensive and pluralistic approach
are the emphasis the Convention lays on a) the question of the recognition of a
whole series of rights relating to the participation of indigenous peoples in
matters that affect them,25 b) the question of the recognition and advancing of
indigenous land and resource rights,26 which are commonly acknowledged to
be the homeland of their societies and the heart of their cultures,27 and c) the
question of self-identification as the fundamental criterion for determining the
groups to which the Convention applies (Article 1(2)).28
22)
R. Wolfrum, ‘The Protection of Indigenous Peoples in International Law’, 59 Heidelberg Journal
of International Law (ZaöRV) (1999) p. 372.
23)
J.P. Kastrup, ‘The Internalization of Indigenous Rights from the Environmental and Human
Rights Perspective’, 32 Texas International Law Journal (1997) pp. 113–114.
24)
See G. Nettheim, ‘“Peoples” and “Populations”: Indigenous Peoples and the Rights of Peoples’,
in J. Crawford (ed.), The Rights of Peoples (Clarendon Press, Oxford, 1988) pp. 125–126.
25)
See L. Swepston, ‘A New Step in the International Law on Indigenous and Tribal Peoples: ILO
Convention No 169 of 1989’, 15 Oklahoma City University Law Review (1990) p. 690, who observes
that the Convention contains a series of provisions (Articles 6, 7, 12, 15, 17, 20, 22–23, 25, 27–28,
33) guaranteeing indigenous peoples’ right to be consulted regarding decisions affecting them.
26)
S.J. Anaya, Indigenous Peoples in International Law (Oxford University Press, New York, 1996)
p. 48; L. Elenius, ‘Minority Policy and Postmodern Ethnopolitical Mobilisation at the North
Callote’, in L. Heininen and K. Laine (eds.), The Borderless North (The Thule Institute, University
of Oulu – Northern Research Forum, 2008) p. 136.
27)
As relatively recently held by the Inter-American Court in the Awas case: “Among indigenous
peoples there is a communitarian tradition regarding a communal form of collective property of the
land, in the sense that ownership of land in not centered on an individual but rather on the group
and its community. Indigenous groups, by the fact of their very existence, have the right to live
freely in their own territory; the close ties of indigenous people with the land must be recognized and
understood as the fundamental basis of their cultures, their spiritual life, their integrity, and their economic survival. For indigenous communities, relations to the land are not merely a matter of possession and production but a material and spiritual element which must fully enjoy, even to preserve
their cultural legacy and transmit it to future generations…”, emphasis added, see ‘Inter-American
Court of Human Rights, The Case of the Mayagna (Sumo) Awas Tigni Community v. Nicaragua,
Judgement of August 31, 2001’, 19 Arizona Journal of International and Comparative Law (2002)
p. 430, para. 149.
438
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
One final element of major importance in this new approach is the replacement of the term ‘populations’ used in Convention No. 107 with that of ‘peoples’
in Convention No. 169, a shift of weighty significance, since under international law peoples enjoy the right of self-determination,29 while populations is a
concept without, save in Convention No. 107, an associated set of rights in international law.30 It should be noted, however, that Article 1(3) of Convention No.
169 states that the use of the terms peoples does not imply recognition of any
rights that may attach to the term in international law.31 In any case this restriction does not totally counteract the value of the designation of indigenous peoples as sui generis peoples in the context of an emerging recognition of these
peoples as such.32
3. The Cornerstone of the Convention: The Participatory Rights of
Indigenous Peoples
The tenet that “the spirit of consultation and participation constitutes the cornerstone of Convention No. 169 on which all its provisions are based”33 is a core
feature of the Convention and is expressed in a series of norms, chief of which are
28)
S. Sucharitkul, ‘The Inter-Temporal Character of International and Comparative Law Regarding
the Rights of the Indigenous Populations of the World’, 50 American Journal of Comparative Law
(2002) p. 7. It is noted that the recent UN Declaration on the Rights of Indigenous Peoples does
not define the term indigenous, but essentially adopts (in Articles 9 and 33) the criterion of selfidentification, see United Nations Declaration on the Rights of Indigenous Peoples, GA. Res.
61/29, 2 October 2007, <www.unhcr.org/refworld/docid/471355a82.html>, visited on 6 March
2010. For the discussion relating to the definition of the concept in international law see Note by the
Chairperson-Rapporteur of the Working Group on Indigenous Populations, Ms Erica-Irene Daes, on
Criteria Which Might be Applied When Considering the Concept of Indigenous Peoples, (UN Doc.
E/ CN.4/Sub.2/AC.4/1995/3), 21 June 1995; D. Sanders, ‘Indigenous Peoples: Issues of Definition’,
8 International Journal of Cultural Property (1999) pp. 4–13; J.J. Corntassel, ‘Who is Indigenous?
“Peoplehood” and Ethnonationalist Approaches to Rearticulating Indigenous Identity’, 9
Nationalism and Ethnic Politics (2003) pp. 75–100.
29)
R.L. Barsh, ‘Evolving Conceptions of Group Rights in International Law’, 13 Transnational
Perspectives (1987) p. 7.
30)
S. Wiemers, ‘The International Legal Status of North American Indians after 500 Years of
Colonization’, 5 Leiden Journal of International Law (1992) p. 75.
31)
S. H. Venne, Our Elders Understand Our Rights : Evolving International Law Regarding Indigenous
Rights (Theytus Books Ltd., Penticton, 1998) pp. 90–91.
32)
See S. J. Anaya, ‘Superpower Attitudes Toward Indigenous Peoples and Group Rights’, 93
American Society of International Law Proceedings (1999) p. 255.
33)
See Report of the Committee Set Up to Examine the Representation Alleging Non-Observance by
Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (No.169), made under Article 24 of
the ILO Constitution by the Confederation Ecuatoriana de Organizaciones Sindicales Libres
(CEOSL), Document: GB. 277/18/4, Document: GB. 282/14/2, Geneva, 14 November 2001,
para. 31, <www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng&document=66
&chapter=16&query=Ecuador%40ref&highlight=&querytype=bool&context=0>, visited on
6 March 2010; see also A. Xanthaki, and D. O’Sullivan, Research on Best Practices for the
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
439
the provisions of Articles 6 and 7, which – according to the International Labour
Office – are the key to interpreting and implementing the Convention.34 Thus,
Article 6(1)(a) provides that “[i]n applying the provisions of this Convention
governments shall: consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may
affect them directly,”35 while under Article 6(2) these consultations must be
undertaken in good faith and “in a form appropriate to the circumstances, with
the objective of achieving [the] agreement or consent [of the peoples concerned]
to the proposed measures.”36 This latter provision, and more specifically the
phrasing “with the objective of achieving agreement or consent to the proposed
measures,” raised questions in certain governments as to the scope of their obligations, since it was interpreted as establishing a right of indigenous peoples to veto
the measures referred to in the first paragraph of Article 6; the International
Labour Office, however, made it clear that the intended meaning of the provision
was not that these consultations must necessarily lead to the agreement or
consent of the indigenous peoples but merely that they should be conducted
on that footing (regardless of whether or not this objective is achieved).37 In any
case, the obligation to hold consultations is not an empty, formalistic commitment for governments, but imposes real and substantive negotiations with
the peoples concerned;38 this conclusion is supported by the teleological reading of the Convention and the whole framework of its adoption, given that not
only the Preamble and the body of the text but also the travaux preparatoires
make it clear that the whole purpose of its stipulations is to provide for the
effective participation of the indigenous peoples in decisions concerning them.39
Implementation of the Principles of ILO Convention No 169 – Good Practices of Indigenous Political
Participation: Maori Participation in New Zealand Elective Bodies, (Case Study: 5, 2007) p. 22,
< www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/
wcms_125632.pdf>, visited on 6 March 2010.
34)
See A. Xanthaki, ‘Indigenous Rights in the Russian Federation: The Case of Numerically Small
Peoples of the Russian North, Siberia, and the Far East’, 26 Human Rights Quarterly (2004) p. 85.
35)
D.C. Baluarte, ‘Balancing Indigenous Rights and a State’s Right to Develop in Latin America:
The Inter-American Rights Regime and ILO Convention 169’, IV Sustainable Development Law
and Policy (2004) p. 10.
36)
L. Sargent, ‘The Indigenous Peoples of Bolivia’s Amazon Basin Region and ILO Convention
No 169: Real Rights or Rhetoric?’, 29 University of Miami Inter-American Law Review (1998)
pp. 477– 478.
37)
See B. Clavero, ‘The Indigenous Rights of Participation and International Development Policies’,
22 Arizona Journal of International and Comparative Law (2005) pp. 45–46.
38)
See S.J. Anaya, M. Gracey and L. Alvarado, The Rights of Pygmy People in the Republic of Kongo –
International Legal Context (Rainforest Foundation UK, 2005) pp. 22–23.
39)
See L. Swepston, ‘The ILO Indigenous and Tribal Peoples Convention (No.169): Eight Years
After Adoption’, in C.P. Cohen (ed.), Human Rights of Indigenous Peoples (Transnational Publishers,
New York, 1998) p. 23, who notes that while the Convention does not grant a right of veto it does
require real and substantive dialogue; Sargent, supra note 36, p. 479.
440
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
This interpretation also finds expression in the decisions of the tripartite ILO ad
hoc committees which, in a series of cases relating to non-observance of the
Convention, noted that “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.”40 More specifically, these committees have found 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 conducting merely for information purposes cannot be considered as consistent
with the terms of the Convention (emphasis added). 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 environmental impact studies.41
Article 7 further strengthens the possibility of indigenous peoples’ participation in decisions that concern them. Article 7(1) recognises their right to decide
their own priorities for the process of development as it affects their lives, beliefs,
institutions, spiritual well-being and the lands they occupy or otherwise use, and
to exercise control, to the furthest extent possible, over their own economic, social
and cultural development.42 This article also acknowledges their right to participate in the formulation, implementation and evaluation of plans and programmes for national and regional development that may affect them directly.43
It continues, finally, by requiring governments to ensure that, whenever appropriate, studies are carried out, in co-operation with the peoples concerned, to assess
the social, spiritual, cultural and environmental impact on them of planned
40)
See 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, Document: GB. 277/18/1, Document: GB. 282/14/4, Geneva, 14
November 2001, para. 61, <www.ilo.org/ilolex/cgi-lex/pdconv.pl?host=status01&textbase=iloeng
&document=70&chapter=16&query=(Colombia)+%40ref&highlight=&querytype=bool&conte
xt=0>, visited on 6 March 2010.
41)
See 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), Document: GB. 276/17/1,
Document: GB. 282/14/3, Geneva, 14 November 2001, para. 90, <www.ilo.org/ilolex/cgi-lex/
pdconv.pl?host=status01&textbase=iloeng&document=48&chapter=16&query=Colombia%40
ref&highlight=&querytype=bool&context=0>, visited on 6 March 2010.
42)
G. Triggs, ‘Australia’s Indigenous Peoples and International Law: Validity of the Native Title
Amendment Act 1998’, 23 Melbourne University Law Review (1999) p. 389.
43)
J.M. Van Dyke, C. Di Amore-Siah and G. W. Berkley-Coats, ‘Self-Determination for Non-SelfGoverning Peoples and for Indigenous Peoples: The Cases of Guam and Hawaii’, 18 University of
Hawaii Law Review (1996) p. 636.
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441
development activities, specifying that the results of these studies are to be
considered as fundamental criteria for the implementation of those activities
(Article 7(3)).44
4. Land and Resource Rights
Land rights, including those pertaining to natural resources, are particularly
important for the preservation and development of the identity of the peoples
under consideration, and here the Convention No. 169 goes much farther than
Convention No. 107. In Article 13(1) it recognises the special importance for the
cultures and spiritual values of indigenous peoples of their relationship with
the lands and/or territories that they occupy or otherwise use, and in particular
the collective aspect of this relationship, and calls governments to respect it.45
This mention of the special importance of land to indigenous peoples acquires
material substance in recognition of their rights of ownership and possession of
the lands they traditionally occupy (Article 14(1)).46 This is further consolidated
by requiring governments to take steps as necessary to identify (demarcate) the
lands that the peoples concerned traditionally occupy – a provision that did not
exist in Convention No. 107 – and to guarantee effective protection of indigenous rights of ownership and possession (Article 14(2)), by establishing inter alia
adequate penalties for unauthorised intrusion upon or use of their lands (Article
18).47 The Convention further stipulates – and here it enters new territory both
in relation to its predecessor and in general scale – that measures shall be taken in
appropriate cases to safeguard the right of indigenous peoples to use lands that are
not exclusively occupied by them but to which they have traditionally had access
for their subsistence and traditional activities (Article 14(1)).48 Completing the
framework of protection in this domain is the requirement that adequate procedures be established within national legal systems to resolve land claims by indigenous peoples (Article 14(3)), a provision that allows the peoples concerned to
44)
See ILO Convention on Indigenous and Tribal Peoples, 1989 (No.169): A Manual, (International
Labour Office, Geneva, 2003) p. 23, <www.ilo.org/public/libdoc/ilo/2003/103B09_345_engl
.pdf>, visited on 6 March 2010.
45)
A. de Jonge, ‘The Human Rights of Indigenous Peoples in Papua New Guinea’, in C.P. Cohen
(ed.), Human Rights of Indigenous Peoples (Transnational Publishers, New York, 1998) p. 136.
46)
C. Brölmann and M.Y. Zieck, ‘Indigenous Peoples’, in C. Brölmann, R. Lefeber and N. Zieck
(eds.), Peoples and Minorities in International Law (Martinus Nijhoff Publishers, Dordrecht, 1993),
pp. 206–207.
47)
K.E. Bravo, ‘Balancing Indigenous Rights to Land and the Demands of Economic Development:
Lessons from the United States and Australia’, 30 Columbia Journal of Law and Social Problems
(1997) pp. 537–538.
48)
S.J. Anaya, ‘Maya Aboriginal Land and Resource Rights and the Conflict Over Logging in
Southern Belize’, 1 Yale Human Rights and Development Law Journal (1998) p. 29.
442
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
claim recognition of their rights to, and compensation for, lands of which they
were unfairly deprived in the past by those who occupied and exploited them.49
Another key provision, again novel and progressive, is that calling for special
safeguards for the rights of indigenous peoples to the natural resources pertaining
to their lands, which specifies, in the spirit of the benchmark norms of Articles 6
and 7, that these rights include the right of indigenous peoples to participate in
the use, management and conservation of these resources (Article 15(1)).50
Furthermore, Article 15(2) requires governments, in cases where the state retains
the ownership of sub-surface resources or rights to other resources pertaining to
the lands of indigenous peoples, to establish or maintain procedures through
which they will consult these peoples before undertaking or permitting any programmes for the exploration or exploitation of such resources, with a view to
ascertaining whether and to what degree their interests would be prejudiced. In
addition, the peoples concerned should wherever possible participate in the
benefits of, and receive fair compensation for, any damages sustained as a result
of such activities.51
Article 16 addresses an equally important issue, namely that of the involuntary
displacement of indigenous peoples. It begins with a general prohibition against
the removal of indigenous peoples from the lands they traditionally occupy
(Article 16(1)), but does permit their relocation, as an exceptional measure, in
cases where this is considered necessary. Such relocation, however, requires their
free and informed consent;52 otherwise, if it is not possible to obtain their consent, it can take place only following appropriate procedures established by
national laws and regulations, including public inquiries where appropriate,
which provide an opportunity for the effective representation of the peoples concerned (Article 16(2)).53 In a further innovation compared to Convention No
107, the newer Convention requires that, whenever possible, indigenous peoples
shall have the right to return to their traditional lands as soon as the grounds for
relocation cease to exist (Article 16(3)).54 When such return is not possible, as
49)
S.J. Anaya, ‘The Native Hawaiian People and International Human Rights Law: Toward a
Remedy for Past and Continuing Wrongs’, 28 Georgia Law Review (1994) p. 348.
50)
S.J. Anaya, ‘Indigenous Peoples’ Participatory Rights in Relation to Decisions About Natural
Resource Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in
Lands and Resources’, 22 Arizona Journal of International and Comparative Law (2005) p. 10.
51)
A. Huff, ‘Indigenous Land Rights and the New Self-Determination’, 16 Colorado Journal of
International Environmental Law and Policy (2005) p. 305.
52)
R.L. Barsh, ‘An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples’,
15 Oklahoma City University Law Review (1990) p. 227.
53)
M.L. Ferch, ‘Indian Land Rights: An International Approach to Just Compensation’, 2
Transnational Law and Contemporary Problem (1992) p. 323.
54)
J.W. Colborn, ‘International Labour Organization Convention Number 169: Celebrate the
Differences’, 2 Willamette Bulletin of International Law and Policy (1994) p. 7; see also Brölmann and
Zieck, supra note 46, pp. 207–208, who note that, given the historic precedent of the irreversible
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
443
determined by agreement or, in the absence of such agreement, through appropriate procedures, the Convention requires that these peoples be provided in all
possible cases with lands of quality and legal status at least equal to that of the
lands previously occupied by them, and suitable to provide for their present needs
and future development. It also envisages the possibility of compensation in
money or in kind, if the peoples concerned so prefer (Article 16 (4)), and stipulates that all persons thus relocated be fully compensated for any resulting loss or
injury (Article 16(5)).55
5. Other Provisions of the Convention
In addition to the participatory rights that characterise the Convention and the
set of land rights that constitute the principal safeguard for what lies at the heart
of indigenous cultures, the Convention also contains a series of provisions giving
indigenous peoples the possibility of running their own affairs. Typical examples
are Articles 25(1), requiring governments to ensure that adequate health services
are made available to the peoples concerned, or provide them with resources to
allow them to design and deliver such services under their own responsibility and
control, so that they may enjoy the highest attainable standard of physical and
mental health,56 and 27(2), requiring the competent authorities to ensure the
training of members of these peoples and their involvement in the formulation
and implementation of education programmes, with a view to the progressive
transfer of responsibility for the conduct of these programmes to these peoples.57
This principle is also reflected in Article 22(3), which provides that, where feasible and if they so decide, indigenous peoples shall progressively assume responsibility for the organisation and operation of special training programmes.58
Finally, no less important are the provisions relating to education and language
matters, which stipulate, inter alia, that the children of the peoples concerned
catastrophic impact of the ‘development’ on the lands from which indigenous peoples were forcibly
removed in the past, it is to be feared that the provision of Article 16 (3) will be meaningless.
55)
See F. Lenzerini, ‘Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous
Peoples’, 42 Texas International Law Journal (2006) p. 179; Swepston, supra note 25, p. 708; ILO
Convention No.169: A Manual, supra note 44, p. 45.
56)
Y. Arai-Takahashi, ‘The Right to Health in International Law: A Critical Appraisal’, in R. Martin
and L. Johnson (eds.), Law and the Public Dimension of Health (Cavendish Publishing Limited,
2001) p. 154.
57)
G. Alfredsson, ‘Minimum Requirements for a New Nordic Sami Convention’, 68 Nordic Journal
of International Law (1999) p. 405; Swepston, supra note 25, p. 712; ILO Convention 169: A
Manual, supra note 44, pp. 12, 60, 66.
58)
See C.J. Iorns, ‘Australian Ratification of International Labour Organization Convention No.
169’, 1 Murdoch University Electronic Journal of Law (1993), <www.murdoch.edu.au/elaw/issues/
v1n1/iorns111.html>, visited on 6 March 2010; ILO Convention 169: A Manual, supra note 44,
pp. 12, 54.
444
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shall, wherever practicable, be taught to read and write in their own indigenous
language or in the language most commonly used by the group to which they
belong (Article 28(1)),59 and require governments to take measures to preserve
and promote the development of indigenous languages (Article 28(3))60 and to
ensure that members of indigenous peoples have the opportunity to acquire
education at all levels on at least an equal footing with the rest of the national
community (Article 26).61 Another provision worth noting is that of Article 32,
which requires governments to take appropriate measures, including by means of
international agreements, to facilitate cross-border contacts and co-operation
between indigenous and tribal peoples.62
6. Criticism of the Convention and Counter-Arguments
Turning now to a general appraisal of the Convention, an initial observation is
that, focusing on what they consider its weak points, certain scholars and a fair
number of indigenous peoples have been very critical of it. Specifically, as regards
the procedural aspect of the revision process, it has been noted that the possibility
for indigenous peoples to take part in the preparatory works and help shape the
form and content of Convention No. 169 was poor,63 in contrast to the right of
meaningful consultation and effective participation for the peoples concerned
which is proclaimed in the text of the Convention and enshrined in a series of its
provisions.64
59)
C.P. Cohen, ‘International Protection of the Rights of Indigenous Children’, in C.P. Cohen
(ed.), Human Rights of Indigenous Peoples (Transnational Publishers, New York, 1998) p. 55.
60)
K.D. Beiter, The Protection of the Right to Education by International Law (Koninklijke Brill NV,
Leiden, 2006) p. 312.
61)
See generally F. Coomans, ‘Content and Scope of the Right to Education as a Human Right and
Obstacles to its Realization’, in Y. Donders and V. Volodin (eds.), Human Rights in Education,
Science and Culture: Legal Developments and Challenges (Ashgate – UNESCO, 2007) p. 193.
62)
See H. Rasmussen, Research on Best Practices for the Implementation of the Principles of ILO
Convention No. 169 – Oqaatsip Kimia: The Power of the Word (Case Study: 11, 2008) p. 24, <www
.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_118118
.pdf>, visited on 6 March 2010, where reference is made to Greenland’s numerous contacts, cooperation and joint activities with other indigenous peoples through, for instance, its involvement
with the Arctic Council and the Nordic Council; Barsh, supra note 52, p. 230; ILO Convention No.
169: A Manual, supra note 44, p. 69.
63)
See E. Stamatopoulou, ‘Indigenous Peoples and the United Nations: Human Rights as a
Developing Dynamic’, 16 Human Rights Quarterly (1994) p. 66; see also, Swepston’s counter-reply
that the appeal made to governments to consult any representative indigenous organisation in their
countries was a unique move in ILO’s history, supra note 25, p. 685. On the meaningful participation and active role of the Sami of the Nordic countries in the revision process of ILO 107, see
H. Minde, ‘Sami Land Rights in Norway: A Test Case for Indigenous Peoples’, 8 International
Journal on Minority and Group Rights (2001) p. 117.
64)
J. Debeljak, ‘Indigenous Rights: Recent Developments in International Law’, 28 International
Journal of Legal Information (2000) p. 268.
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
445
As regards the substance of the rights and the scope of the protection they
afford, the criticisms focus primarily on the question of self-determination,
describing the designation of indigenous as ‘peoples’ as worthless, since any
potential legal implications of the term are expressly denied by the phrasing of
Article 1(3).65 The ILO, however, insisted that the wording of Article 1(3) does
not imply a denial of the right of self-determination but was a tactical manoeuvre
referring the matter to the competent international forum, that is, the United
Nations (UN).66 Another widely criticised point in the Convention was the
phrasing of the provision relating to the right of consultation enshrined in Article
6, which its critics say imposes a merely formalistic procedural obligation on
governments to consult the peoples concerned, without requiring the real
consent of those peoples (right of veto), before taking measures affecting them
directly, thus offering a wide margin for a narrow interpretation of the Convention
that allows states to retain control over the indigenous peoples living within their
territory.67 In the same frame, another point that aroused also a great discontent
was the failure to give indigenous peoples a right of veto over natural resources
exploration and exploitation of their lands (Article 15), despite arguments that
meeting this demand would inevitably reduce the chances of ratification of the
Convention, since all states have an interest in managing natural resources, which
they would not be prepared to jeopardise by adhering to it.68 In fact, even in the
present compromised formulation, several states still find it hard to adhere to the
Convention due to its land and resource rights provisions. For example, even
countries with high human rights profiles, like Finland and Sweden,69 have not
yet ratified the Convention, despite repeated recommendations from many UN
65)
With regard to the ‘great disappointment’ of indigenous peoples to the formulation of Article
1(3) of Convention No. 169 see the Explanatory Note Concerning the Draft Declaration on the Rights
of Indigenous Peoples, by Erica-Irene A. Daes, Chairperson of the WGIP, (UN Doc. E/CN.4/
Sub.2/1993/2/Add.1), 19 July 1993, para. 4.
66)
“[T]he International Labour Conference simply took the position that the question of selfdetermination was for the United Nations to resolve, not for the ILO”, see Comments on the Draft
United Nations Declaration on the Rights of Indigenous Peoples, Note by the International Labour
Office, (UN Doc. E/CN.4/1995/119), 6 February 1995, para. 15; Swepston, supra note 25, p. 694.
It should be noted that the recent UN Declaration on the Rights of Indigenous Peoples finally
recognizes them as peoples entitled to the right of self-determination, albeit in its internal dimension, that is various forms of autonomy/self-government, see T. Koivurova, ‘From High Hopes to
Disillusionment: Indigenous Peoples’ Struggle to (Re)gain Their Right to Self-Determination’,
15 International Journal on Minority and Group Rights (2008) pp. 10–11.
67)
See A. Lawrey, ‘Contemporary Efforts to Guarantee Indigenous Rights Under International
Law’, 23 Vanderbilt Journal of International Law (1990) p. 719; Clavero, supra note 37, pp. 45–46;
MacKay, supra note 2, pp. 16, 18.
68)
L. Swepston and M. Tomei, ‘The International Labour Organization and Convention 169’, in
L. van de Fliert (ed.), Indigenous Peoples and International Organizations (Spokesman, Nottingham,
1994) p. 59; Swepston, supra note 25, p. 697.
69)
See the comments made by Alfredsson that “the Nordic record is not without shortcomings
as to indigenous rights. An outdated ‘Nation-State’ concept almost by definition reduces group
members to second class citizens. The incorporation of human rights conventions into national
446
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
human rights treaty bodies to do so,70 because they face difficulties in recognising
land and resource rights to the Sami of their territory.71 This issue in fact has
delayed considerably72 the elaboration of the draft Nordic Sami Convention,73 a
comprehensive attempt for a contemporary treaty between Nordic countries to
law is the exception rather than the rule. ILO Convention No. 169 has not yet been ratified by
Finland and Sweden”, supra note 57, p. 411.
70)
See Concluding Observations of the Committee on the Economic, Social and Cultural Rights: Finland
(UN Doc. E/C.12/FIN/CO/5), 16 January 2008, para. 20, where the Committee “urges the State
party to find an adequate solution to the question of ownership and use of land in the Sami homeland in close consultations with all parties concerned, including the Sami Parliament, and then to
ratify ILO Convention No. 169 … as a matter of priority”; Concluding Observations of the Committee
on the Elimination of Racial Discrimination: Finland (UN Doc. CERD/C/FIN/CO/19), 13 March
2009, para. 14, where the Committee “renews its appeal to the State party to find an adequate settlement of the land dispute together with the Sami people and its recommendations that it adheres
to ILO Convention No. 169 as soon as possible”; Concluding Observations of the Committee on the
Economic, Social and Cultural Rights: Sweden (UN Doc. E/C.12/SWE/CO/5), 1 December 2008,
para. 15, where, “the Committee, while welcoming the initiative of a Nordic Sami Convention,
reiterates its concern that the Sami land rights have not yet been resolved” and also “reiterates its
regret that the State party has not yet ratified ILO Convention No. 169”, urging it to do so;
Concluding Observations of the Committee on the Elimination of Racial Discrimination: Sweden (UN
Doc. CERD/C/SWE/CO/18), 23 September 2008, para. 21, where the Committee is “concerned
that the State party has deferred its ratification of International Labour Organization (ILO)
Convention No. 169 (1989)” and encourages it to “proceed expeditiously towards the goal … of
ratifying ILO Convention No. 169”.
71)
See Reports Submitted by States Parties Under Article 9 of the Convention/Fifteenth Periodic Report
of States Parties Due in 1999 – Addendum: Finland (UN Doc. CERD/C/363/Add.2), 16 May 2000,
para. 12, where it is stressed that “the ratification of the Convention is hindered because no progress
on the issue of the land rights of the Sami has been made”. Regarding Finnish government’s aims at
contributing to the settlement of Sami land title see Considerations of Reports Submitted by State
Parties Under Article 40 of the Covenant – Fifth Periodic Report: Finland (UN Doc. CCPR/C/
FIN/2003/5), 24 July 2003, paras. 16–30; Fifth Periodic Reports Submitted by States Parties Under
Articles 16 and 17 of the Covenant: Finland (UN Doc. E/C.12/FIN/5), 8 February 2006, paras.
60–79; Swedish government on its part has expressed its intention to become party to ILO 169 as
soon as possible, although only after a clarification of Sami rights to land and water is being achieved,
see Fifth Periodic Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant –
Addendum: Sweden (UN Doc. E/C.12/SWE/5), 6 September 2006, para. 13; Concluding
Observations of the Human Rights Committee: Sweden (UN Doc. CCPR/C/SWE/CO/6), 7 May
2009, para. 20, where the Committee urges the state party to “ensure the fair and expeditious resolution of claims concerning land and resources made by the Sami people, by introducing appropriate legislation in consultation with the Sami communities”; see also L.-A. Baer, ‘The Rights of
Indigenous Peoples – A Brief Introduction in the Context of the Sami’, 12 International Journal on
Minority and Group Rights (2005) p. 261, noting that “Sweden claims to be in the process of ratifying ILO Convention no. 169 … but is far from succeeding in preparations for its actual
implementation”.
72)
See M. Åhrén, ‘The Saami Convention’, in M. O. Varsi (ed.), The Nordic Sami Convention:
International Human Rights, Self-Determination and Other Central Provisions, Gáldu Čála / Journal
of Indigenous People’s Rights No. 3 (2007) p. 27.
73)
The Draft Convention, which consists of 51 articles, “contains provisions on Sami land
and resource rights, on the Sami Parliaments and the rights to self-government, and Sami
cultural rights”, see Information Provided by the Government of Norway on the Implementation of
the Concluding Observations of the Committee on the Elimination of Racial Discrimination
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
447
protect Sami rights across state boundaries, that was finally completed by the
Nordic Expert Group – jointly appointed in 2002 by the governments and Sami
Parliaments in Finland, Norway and Sweden with the mandate to draft such an
instrument – in 2005 and submitted to the three concerned governments and
also to the Sami Parliaments, albeit its adoption is still pending as it is currently
under consideration in all three countries.74
Another major focus of criticism was Article 8(2), on the right of indigenous
peoples to retain their own customs and institutions, where these are not incompatible with fundamental rights defined by the national legal system and with
internationally recognised human rights. The qualification to this provision
reflects, in the view of certain critics, the thinking and interests of early colonial
texts, such as a 1580 ruling by the Spanish crown that allowed the indigenous
peoples of the Americas to manage their own affairs according to their own practices and institutions, insofar as these were not contrary to the “precepts of our
sacred religion or laws promulgated by the crown”.75
Further concerns were raised by the fact that some of the Convention’s provisions are couched in terms that are particularly vague and broad, creating uncertainty as to the intended thrust of their application,76 a state of affairs that was
perhaps aggravated by (the very realistic) Article 34, which provides that the
nature and scope of the measures to be taken to give effect to the Convention
shall be determined in a flexible manner, having regard to the conditions characteristic of each country.77 Critics of the Convention also objected to its failure to
(UN Doc. CERD/C/NOR/CO/18/Add.1), 11 December 2007, para. 14; for the text of the Draft,
see ‘Draft Nordic Sami Convention’, in J.B. Henriksen (ed.), Sami Self Determination – Scope and
Implementation, Gáldu Čála / Journal of Indigenous People’s Rights No. 2 (2008) Appendix 3,
pp. 169–178.
74)
C. Smith, ‘Sami Rights in a Nordic Convention’, in J.B. Henriksen (ed.), Sami Self-Determination:
Scope And Implementation, Gáldu Čála / Journal of Indigenous People’s Rights No.2 (2008) p. 135,
noting that the Sami Parliaments and the Sami Council have endorsed the Draft Convention,
whereas the governments are still in the process of reviewing it; see also Resolution on the Draft Nordic
Saami Convention (Rovaniemi, 29–31 October 2008), <www.saamicouncil.net/?deptid=2167>,
visited on 6 March 2010, where the 19th Saami Conference welcomes the consensus proposal of
the expert group on the Draft Nordic Saami Convention, expressing although its concern for
Finland’s, Norway’s and Sweden’s incapacity to take adequate action on the Draft, even though
three years have passed since its tabling, and urging the three governments and Saami Parliaments
to without further delay constitute a negotiation group that facilitates a speedy adoption of the
Convention.
75)
See S. Speed and J.F. Collier, ‘Limiting Indigenous Autonomy in Chiapas, Mexico: The State
Government’s Use of Human Rights’, 22 Human Rights Quarterly (2000) pp. 881–882, who remark
sarcastically that in today’s world ‘religious precepts’ have been replaced by the concept of ‘internationally recognised human rights’ and ‘the laws of the Crown’ by national legislation. Their position, however, is not that indigenous peoples should not respect human rights, but that they must
have the possibility of negotiating their concept and content in terms of their own social and cultural context so that these rights will stop being an imposition of Western values.
76)
See Kastrup, supra note 23, pp. 113–114.
77)
G. Ulfstein, ‘Indigenous Peoples’ Right to Land’, 8 Max Planck Yearbook of United Nations Law
(2004) p. 13.
448
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
make comprehensive provision for the cultural and intellectual property rights
of indigenous peoples,78 or – to phrase it in a manner more appropriate to their
view – their cultural heritage.
Taken collectively or individually, these observations led some scholars to
adopt a more or less negative attitude towards the Convention,79 even going so far
as to put under the microscope the motives behind the ILO’s decision to revise
Convention No. 107, since, as they said, the whole matter lay outside its jurisdiction.80 In this regard, though, it should be noted that a revision of Convention
No. 107 had been requested by the UN,81 and that the ILO itself deemed this to
be necessary, both to eliminate its integrationist bias and to give greater emphasis
to the need to respect the identity of indigenous peoples and to strengthen specific elements of its protection system, including those relating to land rights and
natural resources.82
The Convention’s greatest weakness, however, notwithstanding the – to a certain degree expected – compromises, seems to be its failure to give indigenous
peoples direct access to its monitoring mechanisms, a defect that is due to the
general structures of the ILO, which neither provides for individual ‘communications’ / petitions nor permit unions other than workers’ or employers’ associations
to make use of the procedures for monitoring the application of its Conventions,83
e.g. by submitting comments on government reports on performance of the
country’s obligations, under Article 23 of the ILO Constitution, directly to ILO,84
or by making ‘representations’ under Article 24 of the abovementioned
Constitution concerning non-observance of these obligations.85 This fact, indeed,
78)
A. Xanthaki, ‘Indigenous Cultural Rights in International Law’, 2 European Journal of Law
Reform (2000) p. 347.
79)
See S. Marquadt, ‘International Law and Indigenous Peoples’, 3 International Journal on Group
Rights (1995) pp. 56–57; Brölmann and Zieck, supra note 46, pp. 208–209; Venne, supra note 31,
pp. 90, 92.
80)
See H. Berman, ‘The International Labour Organization and Indigenous Peoples: Revision of
ILO Convention No.107 at the 75th Session of the International Labour Conference 1988’, 41
International Commission of Jurists (The Review) (1988) p. 49; Naqvi, supra note 5, p. 711.
81)
See ‘Response to Review 41 Article on Convention 107: Reply to Howard Berman by Lee
Swepston’, 42 International Commission of Jurists (The Review) (1989) pp. 44–45.
82)
See ‘Response to Review 41 Article on Convention 107: Extract From a Letter by Klaus Samson
to the ICJ’, 42 International Commission of Jurists (The Review) (1989) p. 44; Swepston, supra note
25, p. 689.
83)
See ‘Remarks by Howard Berman’, 81 American Society of International Law Proceedings (1987)
p. 282; Swepston, supra note 39, p. 30; Brölmann and Zieck, supra note 46, pp. 211–212; Anaya,
supra note 26, pp. 161–162.
84)
H.K. Nielsen, ‘The Supervisory Machinery of the International Labour Organization’, 64 Nordic
Journal of International Law (1995) p. 131.
85)
See N. Valticos, ‘Once More About the ILO System of Supervision: In What Respect is Still a
Model?’, in N. Blokker and S. Müller (eds.), Towards More Effective Supervision by International
Organizations – Essays in Honour of Henry G. Schermers (Dordrecht/Boston/London, 1994)
pp.108–109.
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
449
made the pan-Sami organisation of the Nordic countries, the Sami Council, to
argue – shortly after Norway’s ratification of the Convention in 1990 – that the
ILO should be open to receiving reports from indigenous peoples, in particular
concerning the implementation of specific “indigenous conventions”. “The idea
was rejected by all three ILO parties because it would require amendments to the
ILO Constitution, a lengthy and complicated process requiring the endorsement
of ILO member states”.86 Nevertheless, it is worth noting that the government of
Norway agreed, in the light of concerns raised by the ILO Committee of Experts
and pressures exercised from the Sami Parliament, to send its reports on
Convention No. 169 to the Sami Parliament for comments, and to transmit the
Parliament’s comments to the ILO as a part of its official report.87 It is, however,
doubtful whether this innovative example of good will implementation meets
with comparable general acceptance in the practice of states parties. Also, it is a
fact that even progressive governments change policies or lose power to more
conservative ones.88 This does not mean that indigenous peoples have no avenues
for ensuring that their concerns are taken into account in the regular supervision
of ILO No. 169, e.g. by sending verifiable information on the text of a new policy,
law or court decision89 (but not comments on the government’s report) directly
to the ILO or by making alliances with trade unions, and through them, raising
issues of concern.90 Still, it seems that the hopes of the indigenous peoples for
effective implementation of Convention No. 169 must rely mainly on the social
awareness and political solidarity of local workers’ organisations,91 or on the good
86)
See J.B. Henriksen, Research on Best Practices for the Implementation of the Principles of ILO
Convention No. 169: Key Principles in Implementing ILO Convention No. 169, (Case Study: 7, 2008)
pp. 79 – 80 <www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/
wcms_118120.pdf>, visited on 6 March 2010.
87)
See International Workshop on Free, Prior and Informed Consent and Indigenous Peoples –
Contribution of the ILO (UN Doc. PFII/2005/WS.2/4), 17–19 January 2005, para. 14; A Guide to
ILO Convention No. 169, supra note 4, p. 180.
88)
“In Norway, for example, we have a situation where the second largest political party, the
Progress Party (Fremskrittspartiet), is endeavoring to close down the Sami Parliament, to revoke
the Reindeer Husbandry Act, to terminate Norway’s obligations under ILO Convention No. 169
and to prevent Finland, Norway and Sweden from forming a New Nordic Convention… This
proves that in Norway too there is no guarantee of continued positive development with respect to
Sami policy…”, see ‘Part I Analysis – 2.3. The Question of Secession’, in J.B. Henriksen (ed.), Sami
Self–Determination: Scope And Implementation, Gáldu Čála / Journal of Indigenous People’s Rights No.
2 (2008) p. 24.
89)
See Leaflet on Indigenous and Tribal Peoples – No. 1: The ILO Standards and Supervisory System,
p. 3, <www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_
100661.pdf>, visited on 6 March 2010, where it is stressed that texts of laws and court decisions are
considered as verifiable, objective information (emphasis in the text).
90)
See A Guide to ILO Convention No. 169, supra note 4, p. 179.
91)
See H. Ketley, ‘Exclusion by Definition: Access to International Tribunals for the Enforcement
of the Collective Rights of Indigenous Peoples’, 8 International Journal on Minority and Group
Rights (2001) p. 343; Brölmann and Zieck, supra note 46, p. 211; Anaya, supra note 26, p. 162.
450
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
faith of progressive (in the area of human rights) governments, like the Norwegian
one cited above, a state of affairs however that is not particularly satisfactory,
especially considering that indigenous are peoples who, without exaggeration,
have been fighting for dignity and self-determination for centuries. It is, however,
worth noting that since 1998 several workers’ organisations in states that
have adhered to Convention No 169 (e.g. Mexico, Peru, Colombia, Bolivia,
Denmark and Ecuador) have been submitting ‘representations’ alleging their
governments’ failure to implement its provisions effectively,92 which at least
partially balances this inherent structural defect regarding the lack of explicit
provision for indigenous peoples to participate directly in the application of the
Convention in question.
7. The Positive Aspects of Convention No. 169 and its Overall Contribution
Despite its acknowledged inadequacies and weaknesses, it cannot be denied
that Convention No. 169 satisfactorily incorporates part of the demands of
the indigenous peoples, making it the first international convention to focus
directly and expressly on the preservation and development of their identity.93
One important factor in this positive shift is the abandonment of the previous
Convention’s individualistic orientation and the concomitant proclamation of a
series of rights vesting to indigenous peoples per se94 (e.g. Articles 3(1), 7(1), 8(2),
14(1), 15(1), 16(1)), a radical development that corresponds to the real collective structures and needs of the peoples concerned. The related emphasis on the
right of self-identification (Article 1(2))95 is an equally novel and important
element, while the extensive recognition of a set of collective rights to ancestral
lands and the natural resources pertaining to those lands also represents an
advance over Convention No. 10796 and breaks new ground in relation to international human rights instruments. As eminent scholars have pointed out, the
92)
See General Report of the Conference Committee on the Application of Conventions and
Recommendations, Ninetieth Session, Geneva 2002, ILC90 – PR28 – 290 – En.Doc, p. 28/20, para.
75, <www.ilo.org/public/english/standards/relm/ilc/ilc90/pdf/pr-28p1.pdf>, visited on 6 March
2010, where it is stressed that the majority of representations under Article 24 of the ILO
Constitution concerned the Convention No. 169.
93)
E.-I. Daes, ‘The International Protection of Indigenous Peoples at the Regional and Global
Levels’, in K. Koufa (ed.), XXV Thesaurus Acroasium (2001) p. 42.
94)
S.J. Anaya, ‘Indian Givers: What Indigenous Peoples Have Contributed to International Human
Rights Law’, 22 Washington University Journal of Law and Policy (2006) p. 112; Berman, supra note
80, p. 54; Macklem, supra note 2, p. 195.
95)
M.M. Shaw, ‘The Definition of Minorities in International Law’, 20 Israel Yearbook on Human
Rights (1990) p. 41.
96)
F. Bermudez, ‘Indigenous Peoples and International Law: The Case of Ecuador’, 10 Saint Thomas
Law Review (1997) p. 184.
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451
Convention contains the seeds of potential self-government97 (although the
term itself occurs nowhere in the text), which could lead, via a dynamic interpretation of its terms coupled with pro-active campaigning on the part of the indigenous peoples, to the establishment of substantive and effective autonomous
institutions.
On the other hand one could doubt the Convention’s practical contribution to
the protection of indigenous peoples’ rights by pointing out its few ratifications98
(just 20),99 an unpleasant fact which is due to several factors. Firstly, there is a
general tendency in several states to avoid adhering to legally binding international instruments recognising rights to subgroups of their territories, e.g. minorities, indigenous and tribal peoples, etc., for the fear of jeopardising their national
cohesion and unity.100 This hesitation even appears in relation to the adoption of
non legally binding, albeit of political and moral force, instruments – such as the
UN declarations – that assert rights to states’ subgroups, as shown by the recent
example of the UN Declaration on the Rights of Indigenous Peoples, the elaboration and adoption of which took nearly 25 years to be achieved due to heated
debates and painful negotiations over a variety of issues, mainly that of the content and scope of indigenous right to self-determination, the affirmation of their
collective rights and especially of their land and resource rights and their right to
consent (veto) to decisions that affect them and the issue of definition / (self-)
97)
See Indigenous Peoples’ Sovereignty Over Natural Resources: Preliminary Report of the Special
Rapporteur, Erica-Irene Daes, submitted in accordance with Sub-Commission Resolution 2002/15,
(UN Doc. E/CN.4/Sub.2/2003/20), 21 July 2003, para. 20; Daes, supra note 93, p. 42, where
Ms. Daes stresses that the Convention recognises inter alia a right to self-government; Barsh, supra
note 52, p. 215; Swepston, supra note 39, p. 22; Alfredsson, supra note 57, p. 405; for an opposite
view, see Berman, supra note 80, p. 55, who argues that it is not possible to deduce any right of selfgovernment from the provisions of the Convention No. 169.
98)
S.M. Stevenson, ‘Indigenous Land Rights and the Declaration on the Rights of Indigenous
Peoples: Implications for Maori Land Claims in New Zealand’, 32 Fordham International Law
Journal (2008–2009) p. 319.
99)
Convention No. 169 has been ratified by Argentina, Bolivia, Brazil, Colombia, Costa Rica,
Denmark, the Dominican Republic, Ecuador, the Fiji Islands, Guatemala, Honduras, Mexico, The
Netherlands, Norway, Paraguay, Peru, Venezuela, Nepal and Spain, see Convention’s ILO No. 169
Ratifications <www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169>, visited on 6 March 2010.
100)
See Alfredsson’s remarks that “States are notoriously reluctant towards the rights of indigenous
peoples and minorities, in particular towards group – specific standards and procedures which are
needed to bring about equality in law and in fact”, supra note 57, p. 398; see for example Ad Hoc
Committee for the Protection of National Minorities, CAHMIN 95 (16, 23 May 1995), pp. 6–7,
paras. 24, 27, where the state-nominated experts of the Ad Hoc Committee for the Protection of
National Minorities (CAHMIN), which was set up by the Council of Europe Committee of
Ministers in 1993, with the mission inter alia to draft a protocol complementing the European
Convention on Human Rights (ECHR) in the cultural field by provisions guaranteeing individual
rights, in particular for persons belonging to national minorities, opposed the introduction of a
right of everyone to his/her own cultural identity to the then planned additional protocol to ECHR,
on the grounds that it might cause tensions within societies and encourage cultural activism, ethnonationalism and tribalism along with various centrifugal forces.
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identification.101 Secondly, specific circumstances prevail in each geographical
area and country that prevent the adoption of the Convention. In Africa, for
example, where no state has adhered to the Convention, several governments
deny the existence of indigenous peoples in their states, on the grounds that the
term is not applicable to their territories since the whole population is native to
the land (“all Africans are indigenous”) and so no distinction between indigenous
and exogenous (non-indigenous) is feasible.102 The same argument is also made by
many Asian governments,103 like those of China and India,104 which deny on an
analogous reasoning the existence of indigenous peoples in their territories,
despite the fact that the majority of the planet’s indigenous lives there. In other
areas, where the existence of indigenous peoples is not denied, e.g. in the Nordic
region, issues such as indigenous land and resource rights still impede, as it was
mentioned, the ratification of the Convention by Finland and Sweden,105 countries otherwise with a high human rights profile.
Nonetheless, the few ratifications notwithstanding, the Convention has indeed
played an important role in promoting the rights of indigenous peoples on the
international level,106 by: i) positively influencing, directly and indirectly, the climate and orientation of procedures conducted before international and regional
101)
On the Declaration see I. Bellier, ‘The Declaration of the Rights of Indigenous Peoples and the
World Indigenous Movement’, 14 Griffith Law Review (2005) pp. 227–246; M. Davis, ‘Indigenous
Struggles in Standard – Setting: The United Nations Declaration on the Rights of Indigenous
Peoples’, 9 Melbourne Journal of International Law (2008) pp. 439–471; R.T. Coulter, ‘The U.N.
Declaration on the Rights of Indigenous Peoples: A Historic Change in International Law’, 45
Idaho Law Review (2008–2009) pp. 539–553.
102)
See Report of the African’s Commission Working Group of Experts on Indigenous Populations /
Communities (2005), p. 60, <iwgia.synkron.com/graphics/Synkron-Library/Documents/publica
tions/Downloadpublications/Books/AfricanCommissionbookEnglish.pdf>, visited on 6 March
2010; see also J. Ngugi, ‘The Decolonization – Modernization Interface and the Plight of Indigenous
Peoples in Post-Colonial Development Discourse in Africa’, 20 Wisconsin International Law Journal
(2001–2002) p. 323.
103)
See B. Kingsbury, ‘“Indigenous Peoples” in International Law: A Constructivist Approach to
the Asian Controversy’, 92 American Journal of International Law (1998) pp. 417–418, 433–435.
104)
See R. Singh and G. Kaur, ‘Human Rights of Indigenous Peoples: A Reflection of Reality’,
1 Asia- Pacific Journal of Social Sciences (2009) p. 120.
105)
See E. Wang, Diversifying Identity, Diversifying Strategy – Revisiting the Sami of Sweden (University
of Vermont, 2007) p. 3, <www.uvm.edu/~shali/Saami.pdf>, visited on 6 March 2010, who comments that “[s]ince 2005, Sweden has made scant progress toward expanding the rights of Sami.
The national government still has not sign ILO Convention 169, nor has it passed any of its own
laws to provide Sami rights over their traditional lands. The Samitinget (Sami Parliament), disseminates the view that Sweden essentially considers that the resulting ownership transfer of lands currently held by the state, or non-Sami would be ‘too expensive’”.
106)
See A. Xanthaki, ‘Indigenous Rights in International Law over the Last 10 Years and Future
Developments’, 10 Melbourne Journal of International Law (2009) p. 29, who notes that “[i]n addition although the Convention has not in general attracted many signatories because of its progressive character, it has continued to provide important ammunition for indigenous claims around the
world…”; for a view holding that the impact of the Convention in the framework of the international legal order is “scarce”, see Lenzerini, supra note 55, p. 179.
A. Yupsanis / Nordic Journal of International Law 79 (2010) 433–456
453
organisations for the adoption of related texts for the recognition and promotion
of indigenous rights (e.g. UN Declaration on the Rights of Indigenous Peoples,
Organization of American States (OAS) Draft Declaration on the Rights of
Indigenous Peoples),107 ii) serving as a point of departure for the Inter-American
Court’s landmark decision in the Awas case,108 and iii) constituting the basis for
a series of ‘concluding observations’ and recommendations of international
human rights treaty bodies including the considerably more advanced (than
Convention No. 169) but not legally binding 1997 Committee on the Elimination
of Racial Discrimination (CERD) General Recommendation XXIII on Indigenous
Peoples.
The Convention has also had a significant impact in the field of domestic law,
since it has inspired, to one degree or another, constitutional reforms/amendments and legislation in favour of indigenous peoples in countries in, chiefly,
Latin America.109 For example, recent Latin American constitutions explicitly
prohibit the resettlement of indigenous peoples or make this admissible only with
their express consent (e.g. Article 64 (2) of the 1992 Constitution of Paraguay,
etc.), in accordance with the requirements set out in Article 16 of ILO No. 169.110
Also, the Convention has served as a guide for a number of progressive decisions
of several supreme courts in the same region.111 In Colombia alone, for example,
the Constitutional Court has passed judgment on more than 40 cases in which
the Convention was invoked.112 Further, the Convention has been influential
107)
See Memorandum Submitted by the International Labour Office, (UN Doc. E/CN.4/
Sub.2/2001/24), 17 July 2001, p. 22, para. 74.
108)
See J. Gilbert, ‘Indigenous Rights in Making: The United Nations Declaration on the Rights of
Indigenous Peoples’, 14 International Journal on Minority and Group Rights (2007) p. 211, who
notes that “the judges pointed out that the decision relied on the Court’s ‘evolutionary’ approach to
international human rights law, relying primarily on the ILO Convention 169…”; see also
‘Concurring Opinion of Judge Sergio Garzia Ramirez in the Judgement on the Merits and
Reparations in the “Mayama (Sumo) Awas Tigni Community Case”’, 19 Arizona Journal of
International and Comparative Law (2002) pp. 450–451; on the Awas case see S.J. Anaya and
C. Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of
Indigenous Peoples’, 19 Arizona Journal of International and Comparative Law (2002) pp. 1–15.
109)
See R. Grote, ‘The Status and Rights of Indigenous Peoples in Latin America’, 59 Heidelberg
Journal of International Law (ZaöRV) (1999) pp. 526–527, who comments that the influence of the
Convention is visible in the Constitutions of Colombia (1991), Paraguay (1992), Bolivia (1994)
and Ecuador (1998).
110)
Ibid., p. 515.
111)
See Memorandum Submitted by the International Labour Office, supra note 107, p. 22, para. 75,
where it is argued that this development illustrates “the capacity of the Convention to influence the
positive law of these countries and to help modify the relations of power … between the indigenous
and … national governments”.
112)
See Application of Convention No. 169 by Domestic and International Courts in Latin America:
A Case Book (International Labour Office, Geneva, 2009) p. 9 (note 11), <www.ilo.org/wcmsp5/
groups/public/---ed_norm/---normes/documents/publication/wcms_123946.pdf>, visited on 6
March 2010. This casebook contains summaries of judicial decisions from ten countries in Latin
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even in Southeast Asia, an area where no state has adhered to it, serving as a
model in the drafting of such legislation as the Indigenous Peoples’ Rights Act
1997 (Philippines) and the Land Law 2001 (Cambodia).113 This latter act, for
example, follows the spirit of Articles 13 and 14(2) of the Convention recognising to indigenous communities rights of collective ownership on their lands
(Article 26) and providing for their demarcation (Article 25), respectively.114
Finally, in the European region, the Convention played an important role both in
Norway – which was the first country to ratify it – itself, in the shaping of national
legislation, and in the broader Nordic context, in the elaboration and formation
of the draft Nordic Sami Convention. In the former case it has been stressed that
Norway has been strongly influenced by ILO 169 in its dealings with the Sami,115
inter alia by signing in 2005 an agreement with the Sami Parliament on procedures for consultations between State authorities and the Sami Parliament, aimed
at strengthening the influence of the Sami Parliament in decision making processes affecting the Sami, a development that is based on the Sami provision in the
Norwegian Constitution but also on ILO’s 169 requirements for consultations,
in particular as proclaimed in Article 6 of the Convention.116 In this spirit and as
a direct result of the consultation processes the National Norwegian Parliament
adopted the Finnmark Act (“the act relating to legal relations and management of
land and natural resources in the county of Finnmark”) in 2005, which recognises that the Sami people and others, through long use of land and water, have
acquired rights to land and natural resources in Finnmark. The Finnmark Act
established the Finnmark Estate, an independent body that now owns all the land
that used to lie to the State (this constituted about 95 per cent of the land in
Finnmark County) and is governed by a board where half of the members have
been appointed by the Sami Parliament and the other half by the Finnmark
County.117 In all, it has been argued that the Finnmark Act, which was welcomed
America, highlighting how the courts have relied on Convention 169, thus being a very useful tool
for the study of the influence of the Convention in the judicial practice of Latin American states
that have adhered to it.
113)
See A. Xanthaki, ‘Land Rights of Indigenous Peoples in South-East Asia’, 4 Melbourne Journal
of International Law (2003) p. 469.
114)
Ibid., p. 477.
115)
See T. Fenge and B.W. Funston, Arctic Governance: Traditional Knowledge of Arctic Indigenous
Peoples from an International Policy Perspective, (December 2009) p. 18, <img9.custompublish.com/
getfile.php/1092554.1529.rpcpqrspuy/Traditional+Knowledge+Paper+Fenge+Funston+Dec
+2009.pdf?return=www.arcticgovernance.org>, visited on 6 March 2010.
116)
R.D. Roy and J.B. Henriksen, Relevant Constitutional Provisions in Other Countries and
Safeguards on Indigenous Peoples’ Right in Other Laws – Addendum, 10 February 2010, p. 7, <www
.oit.org/wcmsp5/groups/public/---ed_norm/--normes/documents/publication/wcms_123851
.pdf>, visited on 6 March 2010; Henriksen, supra note 86, pp. 22–23, 46.
117)
See Information Received from Governments: Norway (UN Doc. E/C.19/2010/12/Add.6),
18 February 2010, para. 14.
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455
by the Sami Parliament, is much closer to meeting the requirements of ILO 169
than the government’s 2003 proposal, which lacked any Sami input.118 In this
context, it should be also noted that according to Section 3 of the Finnmark Act
its provisions shall apply with the limitations that follow from the ILO 169,119 so
that the Convention takes precedence over the Act in cases of inconsistency.
Another example of the impact of ILO 169 on the Norwegian legislation is that
of the Reindeer Husbandry Act of 2007, which reintroduced the siida, the traditional Sami reindeer husbandry system/institution, as a significant legal entity, a
development which was to a large extent influenced and justified by international
norms, like Article 5(b) of the ILO Convention No. 169.120 The Convention has
also been used by the courts as it is illustrated by the well known Svartskogen
judgement of the Supreme Court, which referring inter alia to the ILO 169, held
that the population of an area – most often a Sami population – acquires collective rights of use after prolonged use.121 Finally, in the latter case it has been noted
that generally speaking Chapter IV (Articles 34–40) of the Draft Nordic
Convention on Sami land and water rights draws from the corresponding articles
of ILO 169, e.g. as in the case of Article 34(1), which proclaims collective and
individual Sami ownership rights to the lands and waters they have traditionally
used, thus echoing Article 14(1) of ILO 169.122
In conclusion, it may be argued that the Convention has been a valuable
instrument for promoting the case of indigenous peoples by establishing
118)
See J.B. Henriksen, Research on Best Practices for the Implementation of the Principles of ILO
Convention No. 169 – The Finnmark Act (Norway) A Case Study (Case Study: 3, 2008) p. 80, <www
.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/publication/wcms_118116
.pdf>, visited on 6 March 2010; for a critical view of the Act regarding its ‘numerous unclear issues’
and its inconsistencies with Article 14 of the ILO No. 169 Convention see T. Joona, ‘ILO
Convention No. 169 – A Solution for Land Disputes in the Nordic Countries?’, in L. Heininen and
K. Laine (eds.), The Borderless North (The Thule Institute, University of Oulu – Northern Research
Forum, 2008) pp. 157–158.
119)
Smith, supra note 74, p. 145; A Guide to ILO Convention No. 169, supra note 4, p. 103.
120)
See A Guide to ILO Convention No. 169, supra note 4, pp. 53–54; Henriksen, supra note 86,
pp. 46– 47.
121)
Smith, supra note 74, p. 145.
122)
See M. Scheinin, ‘Sami Self-Determination – A Nordic Perspective of Indigenous Peoples’
Right to Self-Government’, in J. B. Henriksen (ed.), Sami Self Determination – Scope and
Implementation, Gáldu Čála / Journal of Indigenous People’s Rights No. 2 (2008) p. 60; Åhrén, supra
note 72, pp. 27– 30; see however G. Alfredsson, ‘Human Rights Challenging in the Arctic’, in
L. Heininen and K. Laine (eds.), The Borderless North (The Thule Institute, University of Oulu –
Northern Research Forum, 2008) p. 152, noting that by recognising individual as well as group
land rights this provision seems to fall short of Article 14 ILO 169, which “extends land rights to
the groups only so as to prevent the splitting up of indigenous lands which in turn would harm their
pursuit of identity and culture”, emphasis added; see also Concluding Observations of the Committee
on the Elimination of Racial Discrimination (UN Doc. CERD/C/NOR/CO/18), 19 October 2006,
para. 17, where the Committee is concerned that the Finnmark Act does not address the special
situation of the East Saami People; for the response of Norway see CERD/C/NOR/CO/18/Add.1,
supra note 73, paras. 3–13.
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fundamental (and legally binding)123 minimum standards124 of protection, the
further entrenchment of which, in scope and content, must now rely on the willingness of the countries forming the international community to recognise,
respect and promote the rights of these long-suffering and most disadvantaged
peoples.
123)
Article 38(1) of the Convention states that it is binding on those members of the ILO whose
ratifications have been registered with the Director-General of the Organisation.
124)
See Leaflet No 8 – The ILO Indigenous and Tribal Peoples, p. 2, <www.ohchr.org/Documents/
Publications/GuideIPleaflet8en.pdf>, visited on 6 March 2010; E/CN.4/Sub.2/2001/24, supra
note 107, p. 22, para. 73.