4 9
I V.  I N D I G E N O U S   I N S T I T U T I O N S
4.1. RETAINING AND DEVELOPING INDIGENOUS CUSTOmS, TRADITIONS AND
INSTITUTIONS
Indigenous	peoples’	right	to	retain	and	develop their	own	social,	economic,	cultural	and	political
institutions is a fundamental right under international human rights law. The existence of such institutions
is	also	a	core	element	in	the	description	of indigenous	peoples.	Article	11	of	Convention
No.	169	identiies	indigenous	peoples	as	those who	have	retained	some	or	all	of	their	own	social,
economic,	cultural	and	political	institutions, irrespective	of	their	legal	status	see	section	1.1.
The	existence	of	distinct	social,	economic,	cultural and	political	institutions	is	an	integral	part	of	what
it	means	to	be	an	indigenous	people	and	is	largely what	distinguishes	indigenous	peoples	from	other
sections	of	the	national	population.	International human	rights	provisions	on	indigenous	peoples’
rights	thus	encompass	the	promotion	and	protection of	indigenous	peoples’	collective	right	to	maintain,
control	and	develop	their	own	social,	economic, cultural	and	political	institutions	–	including	their
practices,	customs,	customary	law	and	legal systems. Such institutions are also vital to ensuring
consultation	with	and	participation	of	indigenous peoples	in	decision-making	processes	that	affect
them	see	section	5. Respect	for	indigenous	peoples’	institutions	is
integral to
Convention	No.	169,	as	stipulated
in	a	series	of	provisions: Article 21. [Government action shall include
measures	for]: 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
Article 41.
Special	measures	shall	be adopted	as	appropriate	for	safeguarding	the
persons,	institutions,	property,	labour,	cultures and	environment	of	the	peoples	concerned.
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; Article 61.
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;
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.
Article 82.
These	peoples	shall	have	the	right to retain their own customs and institutions
where	these	are	not	incompatible	with fundamental rights […]
5 0
I N D I G E N O U S     T R I B A L   P E O P L E S ’   R I G H T S   I N   P R A C T I C E   –  A   G U I D E  T O   I L O   C O N V E N T I O N   N O .  1 6 9
In	some	instances,	the	term	“institutions”	is	used	to refer	to	physical	institutions	or	organizations,	while
in other instances it may have a broader meaning that	includes	indigenous	peoples’	practices,
customs,	and	cultural	patterns.		The	preamble	of the UN Declaration on the Rights of Indigenous
Peoples	recognizes	the	inherent	inter-connectivity between	indigenous	peoples’	institutions,	traditions
or	customs.	The	Declaration	recognizes	“the urgent	need	to	respect	and	promote	the	inherent
rights	of	indigenous	peoples	which	derive	from their	political,	economic,	and	social	structures	and
from	their	cultures,	spiritual	traditions,	histories	and philosophies,	especially	their	rights	to	their	lands,
territories	and	resources”	UN	Declaration	Preamble: para.	7
Speciically,	with	regards	to	indigenous institutions,	the
UN	Declaration	on	the	Rights of	Indigenous	Peoples	stipulates	that:
Article 5: Indigenous	peoples	have	the	right
to maintain and strengthen their distinct political,	legal,	economic,	social	and	cultural
institutions … Article 18:
Indigenous	peoples	have	the right	to	[…]	maintain	and	develop	their	own
indigenous decision-making institutions. Article 20:
Indigenous	peoples	have	the right	to	maintain	and	develop	their	political,
economic and social systems or institutions. Article 34:
Indigenous	peoples	have	the right	to	promote,	develop	and	maintain	their
institutional structures and their distinctive customs,	spirituality,	traditions,	procedures,
practices	and,	in	the	cases	where	they	exist, juridical	systems	or	customs,	in	accordance
with international human rights standards.
Indigenous	peoples’	cultures	and	traditions	are dynamic	and	responsive	to	the	realities	and
needs	of	their	time.	They	present	a	vast	spectrum of differentiated institutions and organizational
forms.	Some	have	retained	traditional	legal,	social, administrative	and	governance	systems,	while
others	have	adopted	or	been	forced	to	adopt	new institutions and organizational forms.
Sometimes,	indigenous	societies	are	perceived	as being	static	and	homogenous,	thereby	wrongly
implying	that	if	they	changed	or	adopted	new organizational forms they would become less
“indigenous”.	However,	in	reality	indigenous	societies are multifaceted and dynamic.
The	provisions	of	Convention	No.	169	should	not be understood as being restricted only to traditional
institutions,	but	rather	also	apply	to	current	practices of	indigenous	peoples’	economic,	cultural	and	social
development.	In	other	words,	indigenous	peoples’ cultural	adaptations	and	technological	development
should	not	reduce	or	impair	the	applicability	of	these provisions.	This	also	implies	that	indigenous	peoples
are	entitled	to	establish	contemporary	institutions, if traditional institutions are no longer adequate to
meet their needs and interests.
4.2. PRACTICAL APPLICATION: RESPECT fOR INDIGENOUS INSTITUTIONS