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
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;
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;
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.
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.
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
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.
Such action shall include measures for:
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;
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;
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
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.
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
Special measures shall be adopted as appropriate for
safeguarding the persons, institutions, property, labour, cultures and
environment of the peoples concerned.
Such special measures shall not be contrary to the
freely-expressed wishes of the peoples concerned.
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:
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;
the integrity of the values, practices and institutions
of these peoples shall be respected;
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
In applying the provisions of this Convention,
governments shall:
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;
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;
establish means for the full development of these
peoples' own institutions and initiatives, and in appropriate cases provide the
resources necessary for this purpose.
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
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.
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.
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.
Governments shall take measures, in co-operation with the
peoples concerned, to protect and preserve the environment of the territories
they inhabit.
Article 8
In applying national laws and regulations to the peoples
concerned, due regard shall be had to their customs or customary laws.
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.
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
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.
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
In imposing penalties laid down by general law on members
of these peoples account shall be taken of their economic, social and cultural
characteristics.
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.
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.
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
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.
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.
Adequate procedures shall be established within the
national legal system to resolve land claims by the peoples concerned.
Article 15
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.
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
Subject to the following paragraphs of this Article, the
peoples concerned shall not be removed from the lands which they occupy.
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.
Whenever possible, these peoples shall have the right to
return to their traditional lands, as soon as the grounds for relocation cease
to exist.
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.
Persons thus relocated shall be fully compensated for any
resulting loss or injury.
Article 17
Procedures established by the peoples concerned for the
transmission of land rights among members of these peoples shall be respected.
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.
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:
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;
the provision of the means required to promote the
development of the lands which these peoples already possess.
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.
Governments shall do everything possible to prevent any
discrimination between workers belonging to the peoples concerned and other
workers, in particular as regards:
admission to employment, including skilled employment,
as well as measures for promotion and advancement;
equal remuneration for work of equal value;
medical and social assistance, occupational safety and
health, all social security benefits and any other occupationally related
benefits, and housing;
the right of association and freedom for all lawful
trade union activities, and the right to conclude collective agreements with
employers or employers' organisations.
The measures taken shall include measures to ensure:
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;
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;
that workers belonging to these peoples are not
subjected to coercive recruitment systems, including bonded labour and other
forms of debt servitude;
that workers belonging to these peoples enjoy equal
opportunities and equal treatment in employment for men and women, and
protection from sexual harassment.
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.
Members of the peoples concerned shall enjoy opportunities
at least equal to those of other citizens in respect of vocational training
measures.
Article 22
Measures shall be taken to promote the voluntary
participation of members of the peoples concerned in vocational training
programmes of general application.
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.
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
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.
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.
Social security schemes shall be extended progressively to
cover the peoples concerned, and applied without discrimination against them.
Article 25
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.
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.
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.
The provision of such health services shall be co-ordinated
with other social, economic and cultural measures in the country.
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
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.
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.
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
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.
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.
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
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.
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.
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.
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.
These programmes shall include:
the planning, co-ordination, execution and evaluation,
in co-operation with the peoples concerned, of the measures provided for in this
Convention;
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.
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.
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
This Convention shall be binding only upon those Members
of the International Labour Organisation whose ratifications have been
registered with the Director-General.
It shall come into force twelve months after the date on
which the ratifications of two Members have been registered with the
Director-General.
Thereafter, this Convention shall come into force for any
Member twelve months after the date on which its ratification has been
registered.
Article 39
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.
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
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.
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
Should the Conference adopt a new Convention revising
this Convention in whole or in part, then, unless the new Convention otherwise
provides-
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;
as from the date when the new revising Convention comes
into force this Convention shall cease to be open to ratification by the
Members.
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.
