The Foundations of Modern International Law on Indigenous and Tribal Peoples

The Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development through Supervision. Volume I: Basic Policy and Land Rights

Series:

The International Labour Organization is responsible for the only two international Conventions ever adopted for the protection of the rights and cultures of indigenous and tribal peoples. The Indigenous and Tribal Populations Convention, 1957 (No. 107) and the Indigenous and Tribal Peoples Convention, 1989 (No. 169) that revised and replaced Convention No. 107, are the only international Conventions ever adopted on the subject, and Convention No. 169 is the only one that can now be ratified. This volume, and its companion to be published at a later date, make clear that the basic concepts and the very vocabulary of international human rights on indigenous and tribal peoples derives from these two Conventions. The adoption in 2007 of the UN Declaration on the Rights Of Indigenous Peoples (UNDRIP), and the ongoing discussions in the international human rights community about the relative merits, impact and legal validity of the UN and ILO instruments, make it all the more important to understand how Convention 169 was adopted. The author of this unique study was responsible for many years for the supervision of both Conventions in the ILO’s supervisory machinery, and was intimately involved in the adoption of the 1989 instrument, as well as in international discussions on the subject of indigenous and tribal peoples.

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Biographical Note

Lee Swepston is the Former Senior Advisor on Human Rights of the International Labour Office (ILO), and is now a teacher (University of Lund, Sweden and Raoul Wallenberg Institute, inter alia) and consultant. He attended the University of North Carolina at Chapel Hill and took his Juris doctor degree at Columbia University in New York. He joined the ILO in 1973, where his posts included being Regional Adviser on International Labour Standards in Africa, Human Rights Coordinator and Chief of the Equality and Employment Branch. He has written numerous books and articles on various aspects of human rights and international labour law, forced labour and child labour, freedom of association, discrimination, HIV and AIDS, migrant workers and indigenous and tribal peoples. A textbook on international labour law and human rights is under preparation, as is the second volume of the present book.

From 1973 until 2004 he was responsible in the ILO for the supervision of the Indigenous and Tribal Populations Convention, 1957 (No. 107) and for participating for the ILO in international discussions on this emerging issue. He was also responsible in the ILO for the adoption of the Indigenous and Tribal Peoples Convention, 1989 (No. 169) and for its supervision for the first 15 years after its adoption. He remains concerned with promoting the implementation and further ratification of the Convention.

Table of contents

Introduction
Part I: Introductory materials
A. Contents of this volume
B. How the ILO adopts standards
1. Tripartism; 2. Adoption process; 3. Voting in the ILO Conference
C.Supervision of the Application of ILO Standards
1. Regular supervisory mechanism; 2. Complaint Procedures
D. Citation of materials in this volume
Part II: Adoption of the Articles of the Convention
Chapter 1: Why the ILO? The motivation and competence of the ILO
1. Adoption of Convention No. 107; 2. Adoption of Convention No. 169; 3. Concluding remarks on the ILO’s mandate and motivation
Chapter 2: Article 1 of Convention No. 169 – Coverage
A. Before Conventions Nos. 107 and 169
B. Article 1 of Convention No. 107
C. Article 1 of Convention No. 169
a. The 1986 Meeting of Experts; i. Peoples or populations; ii. Indigenous and tribal; iii. Tribal and semi-tribal; b. The International Labour Conference;
i. 1988 Session; ii. 1989 Session
D. Development through supervision
a. Interpretation requested by Switzerland; b. How to identify who is covered; c. The importance of having a legal personality; d. The importance of self-identification; e. Coverage beyond ‘indigenous’; f. Changes in governments’ manner of identification
Chapter 3: Article 2 of Convention No. 169 - Basic policy and orientation
A. Convention No. 107
B. Convention No. 169 – a new approach
iii. The Meeting of Experts; iv. The 1988 discussion; v. The 1989 discussion
C.Development through supervision
Chapter 4: Article 6 of Convention No. 169 – Consultation
A. Convention No. 107
B. Convention No. 169
i. The Meeting of Experts; ii. The 1988 discussion; iii. The 1989 discussion
C. Development through supervision
Chapter 5: Article 7 of Convention No. 169 – participation, development and the environment
1. The Meeting of Experts; 2. The 1988 discussion; 3. The 1989 discussion; 4. Development through supervision
Chapter 6: Land Rights - Articles 13 to 19 of Convention No. 169
A. Introduction
B. Before the standards
C. Convention No. 107 - introduction
D. From C107 to C169
1. Article 13 of Convention No. 169: Lands and territories and the spiritual relationship; 2. Article 14 of Convention No. 169: Rights of ownership and possession; a. Article 11 of C107; b. Adoption of Article 14 of Convention No. 169; i. Multiple use and nomads; ii. Adequate procedures to resolve land claims; iii. Adoption of Article 14 as a whole; 3. Article 15 of Convention No. 169: Natural resources; 4. Article 16 of Convention No. 169: Removal from their lands; a. Article 12 of Convention No. 107; b. Adoption of Article 16 of Convention No. 169; 5. Article 17 of Convention No. 169: Transmission of rights; a. Adoption of Article 13 of Convention No. 107; b. Adoption of Article 17 of Convention No. 169; 6. Article 18 of Convention No. 169: Penalties for unauthorized intrusion; 7. Article 19 of Convention No. 169: National agrarian programmes; a. Adoption of Article 14 of Convention No. 107; b. Adoption of Article 19 of Convention No. 169
E. Development of the land rights provisions through supervision
1. Information gathering; 2. Consultation over land rights; 3. Invasions of indigenous territory; 4. Demarcation of territories; 5. Natural resources; 6. The involvement of religious institutions
Appendices:
Appendix I: Indigenous and Tribal Peoples Convention, 1989 (No. 169
Appendix II: Indigenous and Tribal Populations Convention, 1957 (No. 107)
Appendix III: How the ILO adopts standards
Appendix IV: Major documents consulted and citation in this volume
Appendix V: Interpretation of Convention No. 169