UNDRIP and ILO Convention 169
Two international documents set out the rights of indigenous peoples. You will learn what each says, how they differ, and what force they have.
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Human rights law protects every individual. Indigenous peoples argued for decades that this was not enough, because the harms they faced were collective: the loss of a people's land, language and government. Two documents now address those collective rights. One is a treaty of the International Labour Organization. The other is a declaration of the United Nations General Assembly.
ILO Convention 169
The International Labour Organization, or ILO, is the United Nations agency for work and workers. It became involved early in the twentieth century through its concern for indigenous labourers. In 1989 it adopted the Indigenous and Tribal Peoples Convention, numbered 169. A convention is a treaty: a country that ratifies it, meaning formally agrees to be bound, must bring its laws into line and report on progress.
- Governments must consult the peoples concerned, through their own institutions, on measures that affect them.
- Peoples have the right to decide their own priorities for development.
- Rights of ownership over lands they traditionally occupy must be recognised.
- Customs and customary law must be respected where compatible with human rights.
- Self-identification is a fundamental test of who is covered.
The weakness of Convention 169 is its reach. Only about two dozen countries have ratified it, most of them in Latin America, along with a few in Europe and Nepal in Asia. Countries with large indigenous populations, including India, the United States, Canada, Australia and Russia, have not. India remains a party to the older Convention 107 of 1957.
The United Nations Declaration
The United Nations Declaration on the Rights of Indigenous Peoples, known as UNDRIP, was adopted on 13 September 2007. It had taken more than twenty years to negotiate, and indigenous representatives took part directly in the drafting, which was unusual. The vote was 144 countries in favour and four against, with eleven abstaining.
What the Declaration says
- Indigenous peoples are equal to all other peoples and have the right to self-determination.
- They have the right to autonomy or self-government in their internal and local affairs.
- They have rights to the lands, territories and resources they have traditionally owned or used.
- They may not be forcibly removed from their lands.
- States should consult them to obtain their free, prior and informed consent before adopting measures or approving projects that affect them.
- They have the right to maintain and revive their languages, cultures and spiritual traditions, and to run their own schools.
Treaty and declaration compared
- A treaty, adopted in 1989
- Legally binding on states that ratify
- Ratified by about two dozen states
- Speaks of consultation and participation
- A declaration, adopted in 2007
- Not a treaty, so not binding in itself
- Supported by the great majority of states
- Speaks of self-determination and consent
Does a declaration matter?
A declaration does not bind states in the way a treaty does. It still carries weight. It records what almost all governments have agreed are the minimum standards. Courts refer to it when interpreting national law. The Inter-American Court of Human Rights and other bodies have drawn on it. Companies, banks and development agencies write its standards into their own policies.
Some countries have gone further and written the Declaration into domestic law. Bolivia adopted it as national law in 2007. The Canadian province of British Columbia passed a law in 2019 requiring its legislation to be brought into line with the Declaration. Each such step turns a statement of principle into something that can be enforced in a court.
The institutions
Three United Nations bodies deal with these rights. The Permanent Forum on Indigenous Issues, created in 2000, meets each year in New York and advises the wider system. A Special Rapporteur, an independent expert, investigates and reports on the situation in particular countries. An Expert Mechanism advises the Human Rights Council. The United Nations also marks 9 August each year as the International Day of the World's Indigenous Peoples.
The gap between paper and practice remains wide. Reports to these bodies every year describe evictions, attacks on community leaders and projects approved without consent. The two documents do not end such abuses. They give peoples a shared standard to point to, and a language of rights that governments have themselves accepted.