UNITED
NATIONS INTERNATIONAL LABOUR ORGANISATION
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 assimilationists 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
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
at 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
o 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 protectio 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 harbor
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. FINAL 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 yers 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.