ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries in United States

ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries

The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International Labour
Office, and having met in its 76th Session on 7 June 1989, and
Noting the international standards contained in the Indigenous and Tribal
Populations Convention and Recommendation, 1957, and
Recalling the terms of the Universal Declaration of Human Rights, the
International Covenant on Economic, Social and Cultural Rights, the
International Covenant on Civil and Political Rights, and the many international
instruments on the prevention of discrimination, and
Considering that the developments which have taken place in international law
since 1957, as well as developments in the situation of indigenous and tribal
peoples in all regions of the world, have made it appropriate to adopt new
international standards on the subject with a view to removing the
assimilationist orientation of the earlier standards, and
Recognising the aspirations of these peoples to exercise control over their own
institutions, ways of life and economic development and to maintain and develop
their identities, languages and religions, within the framework of the 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 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
[*1388] 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 coordinated 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. 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 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.