| C169 Indigenous and Tribal Peoples Convention |
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C169 Indigenous and Tribal Peoples Convention, 1989
Convention concerning Indigenous and Tribal Peoples in Independent Countries (Note: Date of coming into force: 05:09:1991); Convention: C169; Place: Geneva; Session of the Conference: 76; Date of adoption: 27.06.1989; See the ratifications for this Convention (On OIL Website)
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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;
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.
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.
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.
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.
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
Recommendations:
R104: Indigenous and Tribal Populations Recommendation,
1957 (On OIL
Website)
Revised:
C107: This Convention revises the Indigenous and Tribal
Populations Convention, 1957 (On OIL Website)
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