Indigenous and Tribal Peoples and the ILO 2016
Product of conquest and subjection Indigenous and tribal peoples today often in a situation of domination by others Situations vary but many discriminated against, economic situations not integrated into wide society. Situation often, though not always, similar to that of informal economy.
Origins of ILO interest ILO began working on native peoples in 1920s and 1930s: C29 and the Native Labour Code First international standards regulating kinds and degree of exploitation, including forced labour, conditions of work foreshadowed decolonization C29: allowing forced labour under limited conditions, limited time Latin American members asked ILO to examine indigenous populations in their countries end-1930s.
Andean Indian Programme Multi-organization programme led by ILO 1952 1972 6 Andean nations big impact on indigenous, positive and negative Developed approach of looking at lifestyle rather than only ancestry: indigenous and tribal
Both ILO and UN looked at situation of indigenous/tribal in 1950s and 1960s, but no UN action. ILO meetings of experts, but action petered out with end of Andean Indian Programme. International development attention, always top down, turned to agrarian reform and away from special situations.
Convention No. 107 (1957) First int l Convention on subject Adopted by ILO with UN system WHY THE ILO? Ratified by 27 countries (still binding on 14: Africa + + India/Bangladesh/Pakistan) Good protections (lands, human rights), but Integrationist approach Revised by C. 169 (= replacement ratification) DON T FORGET C107!
Modern approach to indigenous rights since 1971 Martinez Cobo report launched in UN Sub- Commission 1971 completed 1982 UN Working Group established 1981 World Conference on Human Rights 1993 Meeting of Experts in ILO 1986 - ILO revised C 107 in 1989 (C169) ILO and UN established what became Inter- Agency Support Group in 1990
World Bank from mid-1980s, now IFC and AIIP as well Permanent Forum 2001 Special Rapporteur 2001 UN system development guidelines UN Declaration (finally!) in 2007 EMRIP 2007 World Conference IP September 2014
ILO Fields of Action International standards Supervision of application Promotional activities Assistance to governments Assistance to indigenous communities Participation in international deliberations
ILO Assistance Project to Promote C. 169 (Asia, Africa, Americas), now integrated into system-wide action Poverty alleviation Capacity building Discrimination, forced labour under Fundamental Rights Declaration Child labour under IPEC
Became part of United Nations Indigenous Peoples Partnership (UNIPP), an inter-agency initiative launched by ILO, OHCHR, UNDP, UNICEF and UNFPA Launched in May 2011 and put into practice through six joint country-based projects (in Bolivia, Nicaragua, Cameroon, Central African Republic, Republic of Congo and Nepal) as well as one regional project in South-East Asia. But activities suspended for now. UN Development Guidelines on IP
ILO Standards Indigenous and Tribal Populations Convention, 1957 (No. 107) revised by --- Indigenous and Tribal Peoples Convention, 1989 (No. 169) Other standards protecting indigenous peoples as workers (see below)
Convention No. 107 called into question as paradigm of development changed And ITPs formed their own NGOs UN system/ngo awareness plus internal doubts made ILO aware it was facing abandonment or replacement of C107 Expert meeting 1986 decided to recommend revision.
Convention No. 169 (1989) Only int l Convention specifically on indigenous peoples open to ratification Adopted with UN system, indigenous participation ILO expected this to be short-term solution Ratified by 22 countries (most recent: Central African Republic, Nicaragua) New ratification campaign Basis of all ILO action and UNIPP action with UNDRIP
C. 169 (cont d) Article 1 1. This Convention applies to: (a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.
2. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. 3. The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.
Consultation Article 6 1. In applying the provisions of this Convention, governments shall: (a) 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;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decisionmaking in elective institutions and administrative and other bodies responsible for policies and programmes which concern them; (c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
Article 7 - Participation 1. The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development. In addition, they shall participate in the formulation, implementation and evaluation of plans and programmes for national and regional development which may affect them directly. 2.
3. Governments shall ensure that, whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of these studies shall be considered as fundamental criteria for the implementation of these activities. 4. Governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories they inhabit.
Land and resource rights Article 14 1. The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect.
2. Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy, and to guarantee effective protection of their rights of ownership and possession. 3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
Article 15 1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.
2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.
C. 169 (cont d) Special labour protection (Art. 20) To give under-protected workers the same rights as other workers. Indigenous control over education, health Contacts across borders Coordinated govt administration
Other standards A number of ILO standards protect indigenous peoples as workers: e.g., Non-discrimination C. 111 Forced labour C. 29 Others including wage protection, safety and health, migrant workers, labour inspection And UN standards increasingly found applicable - Covenants et al. American regional courts and Inter-American Court increasingly relying on C169 and UN Declaration as binding law, even when they are not really.
ILO supervision: regular and revealing Committee of Experts on the Application of Conventions and Recommendations Conference Committee calls some governments to account in public e.g., Honduras 2016, Central African Republic 2014
Current questions Argentina: Follow-up representation, participation and consultation land rights Brazil: follow representation, consultation land, logging, resources, vulnerable communities Chile (representation 2016): Rights to consultation Colombia: TU comments, coordinated action, climate of violence, consultation, resources.
Guatemala: representation, consultation, encroachment, mining Mexico: representations, traditional occupations, primacy of indigenous title, forced sterilization, consultation Paraguay: lack of info, labour abuses (Mennonites inter alia), land, resources Peru: Conference discussion, progress on consultation
Others: Chile, Nepal, Costa Rica, Nepal, Ecuador, Dominica, Venezuela, Honduras...
Complaints procedures Complaints systems applicable, a number filed Art. 24 representations (ILO complaints procedure) against Chile, Denmark, Bolivia, Colombia, Ecuador, Mexico, Peru, et al. Findings in most cases: lack of consultation, land rights not respected, abuses rampant
Findings from supervision Most governments are reporting Governments often asking for help Indigenous peoples making alternative reports, or. Trade unions making comments on behalf of indigenous peoples Measures being taken or attempted in a number of countries
But - consultations and participation lacking Even serious governments are having trouble getting procedures together Many serious abuses continue, labour et al. Loss of lands, resources Growing tendency on part of indigenous and tribal peoples to assert their interests, to organize, to protest.