|
|
[Home] [Help] [Databases] [WorldLII] [Feedback] | |
Murdoch University Electronic Journal of Law |
| Author: | Catherine J Iorns |
| Issue: | Volume 1, Number 1 (1993) |
The Australian Government is presently considering whether or not to ratify International
Labour Organisation Convention No. 169 Concerning Indigenous and Tribal Peoples
in Independent Countries (referred to here as ILO 169 and appended to this
Note). In particular, ATSIC has called for submissions on ratification in order
to report to the Government in light of Aboriginal peoples' opinions. The
issues surrounding ILO 169 are complex and make it hard to say decisively
whether or not it should be ratified. This Note describes some of these issues
and arguments for and against ratification.
1. Background
ILO 169 is only the second international human rights instrument to deal
specifically with the human rights of indigenous peoples. The first
international instrument was ILO Convention No. 107, which was adopted in
1957.(1) At that time governments thought that the best way to protect the
health and well-being of indigenous peoples was to assimilate and integrate
them with other people in their countries. ILO 107 accordingly makes it a duty
of governments to integrate indigenous peoples within their countries.
Indigenous peoples around the world rejected ILO 107 and called for the
adoption of new standards -- standards that would recognise indigenous peoples'
right to exist as separate, distinct peoples. ILO 169 is the result of the
reform of ILO 107. ILO 169 was agreed to by governments in 1989.
But the general rule is that an international convention doesn't become law for
any particular country until that country's government actually ratifies it. When
a government ratifies a convention, it says that it agrees to be bound by the
convention and that all the laws of its country are consistent with the rules
in the convention. For example, in 1975 the Australian government wanted to
ratify the international Convention on the Elimination of Racial
Discrimination. Before it could do so it had to pass the Racial Discrimination
Act 1975 so that it could make sure that Australia's laws conformed to the
rules in the Convention.
The issue to be decided in respect of ILO 169 is whether the Australian government
should ratify it so that the rights contained in ILO 169 become binding on
Australia.
2. Reasons Against Ratification
Various indigenous peoples have rejected ILO 169 because it is not good enough.
They have therefore told governments not to ratify the Convention. Instead,
they want to wait until a better, more comprehensive and philosophically
acceptable statement of indigenous peoples' rights is drawn up. Objections to ILO
169 stem from the process used in order to negotiate the Convention, from the
provisions of the Convention itself, and from its overall philosophy. Some of
these aspects are:
1. The way it was drawn up: The
negotiation of ILO 169 was organised by the ILO, so it took place between
representatives of governments, employers and workers' unions. Indigenous
peoples were not officially represented at the negotiations so they had no
rights to speak or vote on the rules being drawn up. Of the formal meetings
held, indigenous peoples were only invited to fully participate in the workers'
meetings. Indigenous peoples were thus forced to speak to other representatives
outside the official meetings.
2. Self-determination: Article 1(3) holds that indigenous peoples do not have
the right of self-determination in international law. Technically, this only
means that indigenous peoples cannot form their own independent countries. However, self-determination as a principle
embodies the fundamental ideal of the right to determine one's own destiny. Being
denied the international legal right of self-determination thus symbolises
denial of this more fundamental principle. Indigenous peoples object to
governments telling them that they don't have such a fundamental right as
self-determination. Further, in relation to the legal right, even indigenous
peoples who don't want to form their own countries support the right of other
indigenous peoples to do so if they wish.
3. Consent vs consultation: Article 6(1) only makes governments
"consult" indigenous peoples before making laws that affect
indigenous peoples. Indigenous peoples want governments to have to get
indigenous peoples' consent before passing any such laws. Mere consultation
leaves responsibility for decision-making, including over some indigenous
affairs, with non-indigenous governments and it reinforces the inability of
indigenous peoples to govern themselves. As Sharon Venne comments, this conveys a "paternalistic
attitude, . . . one which considers indigenous peoples incapable of taking care
of ourselves and deciding our own future."(2)
4. Conflicting laws and legal systems: Indigenous peoples argue that, under
Article 8, indigenous customs and institutions can be too easily overridden by
the government in the name of other laws of the country. Article 8(2) also
prioritises internationally recognised human rights over indigenous laws and
value-systems. In light of the fact that international human rights law has, to
date, paid little attention to the situations of indigenous peoples and has not
been able to resolve many of the problems that they face around the world, it
is arrogant of states to assume that international human rights law will be
better for indigenous peoples than their own standards. Sharon Venne criticises
Article 8 as representing a Eurocentric view of the world that places little
value on indigenous systems of laws.(3)
5. Land rights: The land rights articles only recognise rights over land that
indigenous peoples currently use and occupy; they don't recognise any rights
over land that they used to occupy and which were taken from indigenous peoples
through colonisation. The articles don't give a veto over mining. The
relocation provisions (Article 16) in particular are criticised for allowing
relocation of indigenous peoples from their lands (albeit in exceptional
circumstances), even if indigenous peoples don't consent to it.
6. Underlying Philosophy: Despite the fact that the overt language of
assimilation of ILO Convention 107 has been removed, ILO 169 still retains the
paternalism inherent in the former Convention (for example, in Articles 6 and
8). In addition to paternalism, states have openly refused to adopt provisions
that might entail them giving up any of their perceived interests, despite the
historical injustices suffered by indigenous peoples worldwide. Thus, despite
the ostensible aim of the Convention being to accord indigenous peoples rights,
it only does so to a limited degree -- i.e., where they do not conflict too
greatly with state interests. Finally, the rights that have been accorded are
premised on the liberal ideal of equality with other citizens of the state. This
manifests itself in all the provisions, including rights to land and political
participation. Thus, there is no consideration of rights to redress for
historical injustices, or to affirmative action, in such matters. It is the
cumulation of all these aspects -- the underlying philosophies and their
manifestations in the particular provisions -- that causes Sharon Venne to
label the Convention as representing a new language of assimilation.
Arguments in favour of ratification
The primary argument in favour of ratification is that, while ILO 169 may not
be the best, it is better than anything else available. This is because it
actually identifies indigenous peoples' rights which are not specified anywhere
else in international law nor in many countries' domestic laws, either. Therefore,
ratification by a country could give the indigenous peoples in that country
more rights than they have at present. Some examples, as applied to Australia:
1. Article 5 would require the
government to protect Aboriginal peoples' social, cultural, religious and
spiritual values and practices, which would include the protection of
Aboriginal sacred sites.
2. Article 14 would require the
government to recognise the rights of ownership and possession by Aboriginal
peoples over lands which they traditionally use and occupy. This is what the
Mabo High Court decision on native title held. The Convention could mean that
the government would have to respect the High Court decision and not legislate
to override it. Article 14 also provides that the government must safeguard
Aboriginal peoples' rights to have access to lands which they have
traditionally had access to for their subsistence (e.g., for hunting and
gathering food). This could mean that the government has to allow such rights
over pastoral or national park land, for example, if it has traditionally been
used in this way. Governments also have to take steps to identify the lands
which Aboriginal peoples traditionally occupy. This makes it look like the
government has to do more than just allow Aboriginal peoples to do it in court
(e.g., that it must set up a tribunal to determine which lands are
traditionally occupied).
3. Article 16 provides that Aboriginal peoples must not be relocated. But, if
they are relocated, they must be able to return to their traditional lands, or
other lands must be provided for them. A government can only give compensation
if the Aboriginal peoples themselves want that instead. And any other loss or
injury must be fully compensated for.
4. Article 20 requires the government to adopt special measures for the protection
of Aboriginal peoples in relation to employment, if general protection laws
aren't effective.
5. Article 25 provides that health
services must be adequately resourced and should be community based and
culturally appropriate. 25(3) says that preference must be given to the
training and employment of local community health workers.
6. Part VI addresses education, including that Aboriginal children should be
taught in their own language as well as having the opportunity to learn
English.
In addition to providing rights that indigenous peoples (and their
representatives and advocates) can point to in order to be upheld in Australia,
the support for the Convention that ratification provides has wider
implications. First, it helps indigenous peoples in other countries argue that ILO
169 should be upheld in their countries, also. Many indigenous peoples
worldwide suffer violations of the Convention, including, for example continual
dispossession of their lands and resources. Support for the Convention could
help lead to elimination of such violations. Second, many indigenous peoples
also face much worse violations of other human rights instruments, including
forced sterilization of indigenous women and other genocidal practices. Support
for ILO 169 identifies indigenous peoples as proper subjects of human rights
protection and indicates support for their integrity as peoples; it thus leads
indirectly to greater condemnation, and hopefully elimination, of violations of
their other human rights.
Third, support for ILO 169 helps develop the law in this area. The development
of international law is a slow process, typically because so many different
countries, all with different interests and attitudes, have to agree on the
creation of any new laws. While ILO 169 is not appropriate as the definitive
statement on the rights of indigenous peoples, it is better than the previous
statement, and a step towards even better ones. Such a step is helped by
ratification and use of the Convention. This is not only as the existing,
insufficient, rights get applied, but as they get expanded in their application.
That is, as their use becomes more accepted, more and more liberal and
expansive interpretations will be able to be made of them, thus releasing some
of them from the restrictions currently intended.(4) A further type of
development of international law is also enabled: that of the codification of
customary international law. For example, James Anaya has argued that ILO 169
codifies the emerging norm of cultural self-determination.(5) This supports an
even wider right than is written into the provisions of the Convention itself,
and is not subject to the same interpretative restrictions as the text. Thus,
support for the Convention itself will also lead to support for rights that go
beyond it.
Conclusion
The advantages and disadvantages outlined here do fairly represent the kinds of
matters that must be considered before deciding whether or not to ratify ILO
169. However, they are only examples and are not exhaustive. In considering
whether or not Australia should ratify ILO 169 the Convention itself must be
examined carefully and then the following decisions must be made:
1. Whether Aboriginal peoples are already entitled to the rights in ILO 169. If
not, whether they would benefit from entitlement to such rights.
2. If Aboriginal peoples would benefit from the application of ILO 169 :
(a) whether it is nonetheless better to forgo the rights in the Convention in
favour of making a principled stand that the world's governments haven't gone
far enough in recognising the rights that indigenous peoples have been fighting
for. This is the "all or nothing" argument and makes the point that
half way is not enough, particularly when that half is achieved on the wrong
philosophical basis. In this case, the government should be advised not to
ratify ILO 169.
(b) The alternative is to accept these rights now, hoping that they will make
some differences in the lives of Aboriginal peoples, while at the same time
arguing for the adoption of a new convention containing more rights and based
on more acceptable philosophical premises. This would entail advising the
government to ratify ILO 169, but only as a minimum measure.
3. Whether or not Aboriginal peoples in Australia would benefit directly from ILO
169 itself, it is also necessary to consider whether it is worth ratifying ILO
169 in order to encourage the application of the Convention for the benefit of
other indigenous peoples worldwide and to help the future development of
international human rights protection for indigenous peoples.
If readers have submission that they would like to make on ratification of ILO
169 they may make them to Michael Davis, International Issues and Human Rights
Section, ATSIC, PO Box 17, Woden, ACT 2606, Australia. Phone (+61-6) 289-3364. Fax:
(+61-6) 285-3677.
NOTES
1. 328 U.N.T.S. 247 (1959).
2. Sharon Venne, "The New Language of Assimilation: A Brief Analysis of
ILO Convention 169," 2:2 Without Prejudice 53 (1990), at 60.
3. Idem.
4. This argument is made by Russell Barsh, "An Advocate's Guide to the
Convention on Indigenous and Tribal Peoples," 15 Oklahoma City University
Law Review 209 (1990) and by Lee Swepston, "A New Step in the
International Law on Indigenous and Tribal Peoples: The ILO Convention 169 of
1989," 15 Oklahoma City University Law Review 677 (1990).
5. S. James Anaya, "Indigenous Rights Norms in Contemporary International
Law," 8 Arizona Journal of International and Comparative Law 1 (1991).
APPENDIX
INTERNATIONAL LABOUR CONFERENCE
Convention 169
CONVENTION CONCERNING INDIGENOUS AND TRIBAL PEOPLES IN INDEPENDENT COUNTRIES
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International
Labour Office, and having met in its 76th Session on 7 June 1989, and
Noting the international standards contained in the Indigenous and Tribal
Populations Convention and Recommendation, 1957, and
Recalling the terms of the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and the many
international instruments on the prevention of discrimination, and
Considering that the developments which have taken place in international law
since 1957, as well as developments in the situation of indigenous and tribal
peoples in all regions of the world, have made it appropriate to adopt new
international standards on the subject with a view to removing the
assimilationist orientation of the earlier standards, and
Recognising the aspirations of these peoples to exercise control over their own
institutions, ways of life and economic development and to maintain and develop
their identities, languages and religions, within the framework of the State in
which they live, and
Noting that in many parts of the world these peoples are unable to enjoy their
fundamental human rights to the same degree as the rest of the population of
the States within which they live, and that their laws, values, customs and
perspectives have often been eroded, and
Calling attention to the distinctive contributions of indigenous and tribal
peoples to the cultural diversity and social and ecological harmony of
humankind and to international co-operation and understanding, and
Noting that the following provisions have been framed with the co-operation of
the United Nations, the Food and Agriculture Organisation of the United
Nations, the United Nations Educational, Scientific and Cultural Organisation
and the World Health Organisation, as well as of the Inter-American Indian
Institute, at appropriate levels and in the respective fields, and that it is
proposed to continue this co-operation in promoting and securing the
application of these provisions, and
Having decided upon the adoption of certain proposals with regard to the
partial revision of the Indigenous and Tribal Populations Convention, 1957 (No.
107), which is the fourth item on the agenda of the session, and
Having determined that these proposals shall take the form of an international
Convention revising the Indigenous and Tribal Populations Convention, 1957;
adopts this twenty-seventh day of June of the year one thousand nine hundred
and eighty-nine the following Convention, which may be cited as the Indigenous
and Tribal Peoples Convention, 1989:
Part I. General Policy
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.
Article 2
1. Governments shall have the responsibility for developing, 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.
2. Such action shall include measures for:
(a) ensuring that members of these peoples benefit on an equal footing from the
rights and opportunities which national laws and regulations grant to other
members of the population;
(b) promoting the full realisation of the social, economic and cultural rights
of these peoples with respect for their social and cultural identity, their
customs and traditions and their institutions;
(c) assisting the members of the peoples concerned to eliminate socio-economic
gaps that may exist between indigenous and other members of the national
community, in a manner compatible with their aspirations and ways of life.
Article 3
1. Indigenous and tribal peoples shall enjoy the full measure of human rights
and fundamental freedoms without hindrance or discrimination. The provisions of
the Convention shall be applied without discrimination to male and female
members of these peoples.
2. No form of force or coercion shall be used in violation of the human rights
and fundamental freedoms of the peoples concerned, including the rights
contained in this Convention.
Article 4
1. Special measures shall be adopted as appropriate for safeguarding the
persons, institutions, property, labour, cultures and environment of the
peoples concerned. 2. Such special measures shall not be contrary to
the freely-expressed wishes of the peoples concerned.
3. Enjoyment of the general rights of citizenship, without discrimination,
shall not be prejudiced in any way by such special measures.
Article 5
In applying the provisions of this Convention:
(a) the social, cultural, religious and spiritual values and practices of these
peoples shall be recognised and protected, and due account shall be taken of
the nature of the problems which face them both as groups and as individuals;
(b) the integrity of the values, practices and institutions of these peoples
shall be respected;
(c) policies aimed at mitigating the difficulties experienced by these peoples
in facing new conditions of life and work shall be adopted, with the
participation and co-operation of the peoples affected.
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
decision-making 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
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. The improvement of the conditions of life and work and levels of health and
education of the peoples concerned, with their participation and co-operation,
shall be a matter of priority in plans for the overall economic development of
areas they inhabit. Special projects for development of the areas in question
shall also be so designed as to promote such improvement.
3. Governments shall 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 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 co-operation with the peoples concerned,
to protect and preserve the environment of the territories they inhabit.
Article 8
1. In applying national laws and regulations to the peoples concerned, due
regard shall be had to their customs or customary laws.
2. These peoples shall 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. Procedures
shall be established, whenever necessary, to resolve conflicts which may arise
in the application of this principle.
3. The application of paragraphs 1 and 2 of this Article shall not prevent
members of these peoples from exercising the rights granted to all citizens and
from assuming the corresponding duties.
Article 9
1. To the extent compatible with the national legal system and internationally
recognised human rights, the methods customarily practised by the peoples
concerned for dealing with offences committed by their members shall be
respected.
2. The customs of these peoples in regard to penal matters shall be taken into
consideration by the authorities and courts dealing with such cases.
Article 10
1. In imposing penalties laid down by general law on members of these peoples
account shall be taken of their economic, social and cultural characteristics.
2. Preference shall be given to methods of punishment other than confinement in
prison.
Article 11
The exaction from members of the peoples concerned of compulsory personal
services in any form, whether paid or unpaid, shall be prohibited and
punishable by law, except in cases prescribed by law for all citizens.
Article 12
The peoples concerned shall be safeguarded against the abuse of their rights
and shall be able to take legal proceedings, either individually or through
their representative bodies, for the effective protection of these rights. Measures
shall be taken to ensure that members of these peoples can understand and be
understood in legal proceedings, where necessary through the provision of
interpretation or by other effective means.
Part II. Land
Article 13
1. In applying the provisions of this Part of the Convention governments shall
respect the special importance for the cultures and spiritual values of the
peoples concerned of their relationship with the lands or territories, or both
as applicable, which they occupy or otherwise use, and in particular the
collective aspects of this relationship.
2. The use of the terms “lands” in Articles 15 and 16 shall include the concept
of territories, which covers the total environment of the areas which the
peoples concerned occupy or otherwise use.
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.
Article 16
1. Subject to the following paragraphs of this Article, the peoples concerned
shall not be removed from the lands which they occupy.
2. Where the relocation of these peoples is considered necessary as an
exceptional measure, such relocation shall take place only with their free and
informed consent. Where their consent cannot be obtained, such relocation shall
take place only following appropriate procedures established by national laws
and regulations, including public inquiries where appropriate, which provide
the opportunity for effective representation of the peoples concerned.
3. Whenever possible, these peoples shall have the right to return to their
traditional lands, as soon as the grounds for relocation cease to exist.
4. When such return is not possible, as determined by agreement or, in the
absence of such agreement, through appropriate procedures, these peoples shall
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, suitable to
provide for their present needs and future development. Where the peoples
concerned express a preference for compensation in money or in kind, they shall
be so compensated under appropriate guarantees.
5. Persons thus relocated shall be fully compensated for any resulting loss or
injury.
Article 17
1. Procedures established by these peoples concerned for the transmission of
land rights among members of these peoples shall be respected.
2. The peoples concerned shall be consulted whenever consideration is being
given to their capacity to alienate their lands or otherwise transmit their
rights outside their own community.
3. Persons not belonging to these peoples shall be prevented from taking
advantage of their customs or of lack of understanding of the laws on the part
of their members to secure the ownership, possession or use of land belonging
to them.
Article 18
Adequate penalties shall be established by law for unauthorised intrusion upon,
or use of, the lands of the peoples concerned, and governments shall take
measures to prevent such offences.
Article 19
National agrarian programmes shall secure to the peoples concerned treatment
equivalent to that accorded to other sectors of the population with regard to:
(a) the provision of more land for these peoples when they have not the area
necessary for providing the essentials of a normal existence, or for any
possible increase in their numbers;
(b) the provision of the means required to promote the development of the lands
which these peoples already possess.
Part III. Recruitment and conditions of employment
Article 20
1. Governments shall, within the framework of national laws and regulations,
and in co-operation with the peoples concerned, adopt special measures to
ensure the effective protection with regard to recruitment and conditions of
employment of workers belonging to these peoples, to the extent that they are
not effectively protected by laws applicable to workers in general.
2. Governments shall do everything possible to prevent any discrimination
between workers belonging to the peoples concerned and other workers, in
particular as regards: (a) admission to employment, including skilled
employment, as well as measures for promotion and advancement;
(b) equal remuneration for work of equal value;
(c) medical and social assistance, occupational safety and health, all social
security benefits and any other occupationally related benefits, and housing;
(d) the right of association and freedom for all lawful trade union activities,
and the right to conclude collective agreements with employers or employers'
organisations.
3. The measures taken shall include measures to ensure:
(a) the workers belonging to the peoples concerned, including seasonal, casual
and migrant workers in agricultural and other employment, as well as those
employed by labour contractors, enjoy the protection afforded by national law
and practice to other such workers in the same sectors and that they are fully
informed of their rights under labour legislation and of the means of redress
available to them;
(b) that workers belonging to these peoples are not subjected to working
conditions hazardous to their health, in particular through exposure to
pesticides or other toxic substances;
(c) that workers belonging to these peoples are not subjected to coercive
recruitment systems, including bonded labour and other forms of debt servitude;
(d) that workers belonging to these peoples enjoy equal opportunities and equal
treatment in employment for men and women, and protection from sexual
harassment.
4. Particular attention shall be paid to the establishment of adequate labour
inspection services in areas where workers belonging to the peoples concerned
undertake wage employment, in order to ensure compliance with the provisions of
this Part of this Convention.
Part IV. Vocational training, handicrafts and Rural Industries
Article 21
Members of the peoples concerned shall enjoy opportunities at least equal to
those of other citizens in respect of vocational training measures.
Article 22
1. Measures shall be taken to promote the voluntary participation of members of
the peoples concerned in vocational training programmes of general application.
2. Whenever existing programmes of vocational training of general application
do not meet the special needs of the peoples concerned, governments shall, with
the participation of these peoples, ensure the provision of special training
programmes and facilities.
3. Any special training programmes shall be based on the economic environment,
social and cultural conditions and practical needs of the peoples concerned. Any
studies made in this connection shall be carried out in co-operation with these
peoples, who shall be consulted on the organisation and operation of such
programmes. Where feasible, these peoples shall progressively assume responsibility
for the organisation and operation of such special training programmes, if they
so decide.
Article 23
1. Handicrafts, rural and community-based industries, and subsistence economy
and traditional activities of the peoples concerned, such as hunting, fishing,
trapping and gathering, shall be recognised as important factors in the
maintenance of their cultures and in their economic self-reliance and
development. Governments shall, with the participation of these people and
whenever appropriate, ensure that these activities are strengthened and
promoted.
2. Upon the request of the peoples concerned, appropriate technical and
financial assistance shall be provided wherever possible, taking into account
the traditional technologies and cultural characteristics of these peoples, as
well as the importance of sustainable and equitable development.
Part V. Social security and health
Article 24
Social security schemes shall be extended progressively to cover the peoples
concerned, and applied without discrimination against them.
Article 25
1. Governments shall ensure that adequate health services are made available to
the peoples concerned, or shall 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.
2. Health services shall, to the extent possible, be community-based. These
services shall be planned and administered in co-operation with the peoples
concerned and take into account their economic, geographic, social and cultural
conditions as well as their traditional preventive care, healing practices and
medicines.
3. The health care system shall give preference to the training and employment
of local community health workers, and focus on primary health care while
maintaining strong links with other levels of health care services.
4. The provision of such health services shall be co-ordinated with other
social, economic and cultural measures in the country.
Part VI. Education and means of communication
Article 26
Measures shall be taken to ensure that members of the peoples concerned have
the opportunity to acquire education at all levels on at least an equal footing
with the rest of the national community.
Article 27
1. Education programmes and services for the peoples concerned shall be
developed and implemented in co-operation with them to address their special
needs, and shall incorporate their histories, their knowledge and technologies,
their value systems and their further social, economic and cultural
aspirations.
2. The competent authority shall 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 as appropriate.
3. In addition, governments shall recognise the right of these peoples to
establish their own educational institutions and facilities, provided that such
institutions meet minimum standards established by the competent authority in
consultation with these peoples. Appropriate resources shall be provided for
this purpose.
Article 28
1. Children belonging to the peoples concerned 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. When this is not
practicable, the competent authorities shall undertake consultations with these
peoples with a view to the adoption of measures to achieve this objective.
2. Adequate measures shall be taken to ensure that these peoples have the
opportunity to attain fluency in the national language or in one of the
official languages of the country.
3. Measures shall be taken to preserve and promote the development and practice
of the indigenous languages of the peoples concerned.
Article 29
The imparting of general knowledge and skills that will help children belonging
to the peoples concerned to participate fully and on an equal footing in their
own community and in the national community shall be an aim of education for
these peoples.
Article 30
1. Governments shall adopt measures appropriate to the traditions and cultures
of the peoples concerned, to make known to them their rights and duties,
especially in regard to labour, economic opportunities, education and health
matters, social welfare and their rights deriving from this Convention.
2. If necessary, this shall be done by means of written translations and
through the use of mass communications in the languages of these peoples.
Article 31
Educational measures shall be taken among all sections of the national community,
and particularly among those that are in most direct contact with the peoples
concerned, with the object of eliminating prejudices that they may harbour in
respect of these peoples. To this end, efforts shall be made to ensure that
history textbooks and other educational materials provide a fair, accurate and
informative portrayal of the societies and cultures of these peoples. Part
VII. Contacts and co-operation across borders
Article 32
Governments shall take appropriate measures, including by means of
international agreements, to facilitate contacts and co-operation between
indigenous and tribal peoples across borders, including activities in the
economic, social, cultural, spiritual and environmental fields.
Part VIII. Administration
Article 33
1. The governmental authority responsible for the matters covered in this
Convention shall ensure that agencies or other appropriate mechanisms exist to
administer the programmes affecting the peoples concerned, and shall ensure
that they have the means necessary for the proper fulfilment of the functions
assigned to them.
2. These programmes shall include:
(a) the planning, co-ordination, execution and evaluation, in co-operation with
the peoples concerned, of the measures provided for in this Convention;
(b) the proposing of legislative and other measures to the competent
authorities and supervision of the application of the measure taken, in
co-operation with the peoples concerned.
Part IX. General provisions
Article 34
The nature and scope of the measures to be taken to give effect to this
Convention shall be determined in a flexible manner, having regard to the
conditions characteristic of each country.
Article 35
The application of the provisions of this Convention shall not adversely affect
rights and benefits of the peoples concerned pursuant to other Conventions and
Recommendations, international instruments, treaties, or national laws, awards,
custom or agreements.
Part X. Final provisions
Article 36
This Convention revises the Indigenous and Tribal Populations Convention, 1957.
Article 37
The formal ratification of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 38
1. This Convention shall be binding only upon those Members of the
International Labour organisation whose ratification have been registered with
the Director-General.
2. It shall come into force twelve months after the date on which the ratification
of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 39
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-General of the International
Labour office for registration. Such denunciation shall not take effect until
one year after the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years, and thereafter, may
denounce this Convention at the expiration of each period of ten years under
the terms provided for in this Article.
Article 40
1. The Director-General of the International Labour office shall notify all
Members of the International Labour Organisation of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organisation.
2. When notifying the Members of the Organisation of the registration of the
second ratification communicated to him, the Director-General shall draw the
attention of the Members of the Organisation to the date upon which the
Convention will come into force.
Article 41
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance with
Article 102 of the Charter of the United Nations full particulars of all ratifications
and acts of denunciation registered by him in accordance with the provisions of
the preceding Articles.
Article 42
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report on
the working of this Convention and shall examine the desirability of placing on
the agenda of the Conference the question of its revision in whole or in part.
Article 43
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides -
(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the provisions
of Article 39 above, if and when the new revising Convention shall have come
into force;
(b) as from the date when the new revising Convention comes into force this
Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and
content for those Members which have ratified it but have not ratified the
revising Convention.
Article 44
The English and French versions of the text of this Convention are equally authoritative.