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The effect of Convention No. 169 so far
In its 1999 annual report, the ILO's Committee of Experts observed that Convention No. 169 is the most comprehensive instrument of international law for the protection in law and in practice of the right of indigenous and tribal peoples to preserve their own laws and customs within the national societies in which they live. The Convention remains, and is likely to remain for some time to come, the only international legal instrument currently in force and open for ratification that addresses specifically the rights of indigenous and tribal peoples. Since its adoption in 1989, it has had considerable influence at the national, regional and international levels.
At the national level, ratification of the Convention has prompted the establishment, reform, or reinforcement of a number of government agencies responsible for co-ordinating policies relevant to indigenous and tribal peoples, and for monitoring projects and programmes pertaining to these peoples. Examples of such agencies include the National Indian Foundation in Brazil, the National Indian Institute in Mexico, and the General Directorate for Indigenous Affairs in Colombia. It has also been one of the factors behind the revision of national constitutions in several ratifying states, namely in Bolivia, Mexico and Peru.
Convention No. 169 also provides guiding principles for national policies and laws on indigenous peoples, and indigenous peoples' policies of international financial institutions such as the World Bank, and United Nations Specialised Agencies and UN Programmes such as UNDP.
The Committee of Experts has also noted that Convention No. 169 has guided a number of Supreme Court decisions in the Americas (especially in Colombia), illustrating the potential of the Convention to influence the positive law of these countries and ameliorate the relationship of power in the dialogues between national governments and indigenous and tribal peoples. In Norway, a new way of taking advantage of the ILO's supervisory mechanisms has been developed. Based on a suggestion contained in the Report Form for Convention No. 169, the Government of Norway sends its reports to the Saami Parliament for comments. Norway has also asked the ILO to engage in a parallel dialogue with the Saami Parliament, thus enabling Saami representatives to play a formal part in the supervisory process.
The ratification of Convention No. 169 has also been cited as a contributing factor to the settlement of the internal conflict in Guatemala, which, as stated in the preamble of the 1996 Peace Agreement, brought to an end more than three decades of armed confrontation in Guatemala. In its 1999 observation, the Committee of Experts noted the continuing role the ILO is playing in the implementation of this Agreement.
In the Netherlands, ratification of Convention No. 169 was based on the recognition of the positive contribution of the Convention to international standards for the realization of universal human rights, and on the premise that although it did not apply internally, its ratification would serve to guide development policy and assistance.
The influence of Convention No. 169 is also evident in a number of States that have not ratified it but have used it as a basis for examining their national situations as regards indigenous and tribal peoples. For example, the influence of the Convention on the 1997 Indigenous Peoples Rights Act, (Republic Act No. 8371) of the Philippines, is clear. In Finland, a Special Rapporteur was appointed in 1999 to clarify how obstacles to ratification of Convention No. 169 in Finland could be removed, and how the Saami could be guaranteed rights to their natural resources, taking into account existing international standards. In November 2000, the Finnish Ministry of Justice set up a special committee, to examine the question of Saami land rights, culture and traditional livelihoods. A similar reflection is taking place in Sweden.
At the regional and international levels, the Convention has provided guiding principles for a number of standards, as well as the policies of a number of multilateral development and financial institutions. Since the adoption of the Convention, the World Bank, the Asian Development Bank and the European Commission have all developed, or are in the process of developing, policy guidelines specifically concerning indigenous peoples. The Draft Inter-American Declaration on the Rights of Indigenous Peoples, has also been influenced by the Convention, which is recalled in its preamble. In Africa, the recommendations of two seminars on multiculturalism, and peaceful and constructive group accommodation in situations involving minorities and indigenous peoples, reflected the wish of the participants that African States take into account the principles of Convention No. 169 (note 1).
Convention No. 169 has also served as a background instrument informing the deliberations of a number of United Nations treaty bodies. For example, in its consideration of State reports under the International Convention on the Elimination of Racial Discrimination, the Committee on the Elimination of Racial Discrimination has recently paid particular attention to Convention No. 169, highlighting issues of consultation and participation of indigenous peoples in Argentina, and welcoming its ratification of the Convention. The Committee has also encouraged Japan and the United States to use Convention No. 169 as guidance regarding the rights of indigenous peoples, and in respect of securing their Ainformed consent in decision-making processes that affect them (note 2). The United Nations Committee on Economic, Social and Cultural Rights has urged the Government of Finland to finalize its review of legislation concerning the Saami people, with a view to ratifying Convention No. 169 (note 3).
Note 1 - Reports of the First and Second Seminars on Multiculturalism: Peaceful and constructive group accommodation in situations involving minorities and indigenous peoples. Working Group on Minorities of the Sub-Commission on the Promotion and Protection of Human Rights, document numbers E/CN.4/AC.5/2000/WP.3 and E/CN.4/Sub.2/AC.5/2001/3.
Note 2 - Report of the Committee on the Elimination of Racial Discrimination at its Fifty-eighth and Fifty-ninth Sessions, A/56/18, pp 20-21, p.38, p.71, respectively.
Note 3 - Report of the Committee on Economic, Social and Cultural Rights at its Twenty-second, Twenty-third and Twenty-fourth Sessions, Economic and Social Council Official Records, Supplement No. 2, p.75.
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