|
INTERNATIONAL
LABOUR ORGANIZATION |
Convention
concerning Indigenous and Tribal Peoples in Independent Countries (Note: Date
of coming into force: 05:09:1991.)
Description:(Convention)
Convention:C169
Place:Geneva
Session of the Conference:76
Date of adoption:27:06:1989
Subject classification: Indigenous and Tribal Peoples
See the
ratifications for this Convention
Display the document in: French
Spanish
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 States 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 their
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 the 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 term 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 the 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) that 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
measures 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. PROVISIONS
Article 36
This Convention revises the Indigenous and
Tribal Populations Convention, 1957.
Article 37
The formal ratifications 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 ratifications
have been registered with the Director-General.
2. It shall come into force twelve months
after the date on which the ratifications 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.
Cross references
references
Conventions: C107:Indigenous
and Tribal Populations Convention, 1957
Recommendations:R104:Indigenous
and Tribal Populations Recommendation, 1957
Revised: C107:This
Convention revises the Indigenous and Tribal Populations Convention, 1957