1 7 7
x I V. C O N V E N T I O N N O . 1 6 9 : R AT I f I C AT I O N , I m P L E m E N TAT I O N , S U P E R V I S I O N A N D T E C H N I C A L A S S I S TA N C E
prevail over conlicting national law. In some cases, the Convention is considered to have a status similar
to that of the country’s Constitution e.g. Colombia in others the Convention prevails over national
legislation e.g. Nepal and Costa Rica.
4
Article 91 of the Nepal 1990 Treaty Act In case of the provisions of a treaty to which
the Kingdom of Nepal or HMG has become a party following its ratiication accession,
acceptance or approval by the Parliament conlict with the provisions of current laws, the
latter shall be held invalid to the extent of such conlict for the purpose of that treaty, and the
provisions of the treaty shall be applicable in that connection as Nepal laws.
5
Article 7 of the Constitution of Costa Rica Public treaties, international agreements and
concordats duly approved by the Legislative Assembly shall have a higher authority than
the laws upon their enactment or from the day that they designate.
6
Even where the Convention, once ratiied forms a part of the national law, it will still be necessary to
develop speciic measures to apply the Convention, for instance:
To enact legislation or regulations regarding •
those provisions of the Convention which are not suficiently provided for or operationalised
in the given national context; To eliminate any conlict between the
• provisions of the Convention and earlier
national laws and practices; To develop and implement coordinated and
• systematic government action as envisaged
under the Convention; To establish relevant institutions and
• mechanisms, particularly those concerning
consultation, participation and consent; To provide information and guidance
•
4 For further information on the legal status of the Convention in ratifying States see: Application of Convention NO. 169 by national and
international courts in Latin America - A Case book, ILO 2009. 5 http:www.unhcr.orgrefworldtype,LEGISLATION,,NPL,3ae6b51724
,0.html 6 http:www.constitution.orgconscostaric.htm
concerning the requirements of the Conventions to the public authorities
concerned see also section 3.1 on systematic and coordinated action.
In its General Observation on Convention No. 169 2008, the Committee of Experts
underlines that: “[T]he Convention refers to three interrelated processes: coordinated and
systematic government action, participation and consultation. […] Articles 2 and 33 of
the Convention,
read together, provide that governments are under an obligation to
develop, with the participation of indigenous and tribal peoples, coordinated and
systematic action to protect the rights and to guarantee the integrity of these peoples.
Agencies and other appropriate mechanisms are to be established to administer
programmes, in cooperation with indigenous and tribal peoples, covering all stages from
planning to evaluation of measures proposed in the Convention.”
In some other countries, ratiied international treaties do not become automatically part of the national
law. In such a case, the country is required to give effect to its international obligations through
separate legislation. Among the countries having ratiied the Convention, this is the case, for instance,
in Norway and in Fiji see section 14.7 on the use of Convention No. 169 in national courts.
14.5. ACCOmPANyING ImPLEmENTATION: THE PROCESS Of REGULAR SUPERVISION
One speciic feature of the ILO normative system is that ratifying States have to report periodically on the
measures taken to give effect to the Convention and on any problems encountered. This is an obligation
under the ILO Constitution. Ratiication of an ILO Convention is thus the beginning of a process of
dialogue and cooperation between the government and the ILO. The purpose is to work together to
make sure national legislation and practice are in line with the provisions of the Convention.
1 7 8
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
One year after the entry into force of the Convention, the government has to send its irst report on the
implementation of the Convention to the ILO. The one-year interim period is to give the government
time to make sure national law and practice are in agreement with the Convention. After this, the
normal reporting period for Convention No. 169 is every ive years. However, if the situation needs to
be followed closely, the ILO supervisory bodies may request a report outside the regular reporting cycle.
In accordance with the ILO Constitution, the government has to submit a copy of its report to
the most representative workers’ and employers’ organizations to enable them to make comments on
the report, if any. These organizations may also send their comments directly to the ILO.
The government’s irst report following the entry
into force of the Convention should cover all the provisions of the Convention and answer each
of the questions set out in the comprehensive Report Form
. Governments are asked to report on legislation, rules and regulations that give
effect to the Convention as well as on the scope of application of the Convention, including which
groups of the national population it covers. In this sense, the irst report of the government can serve
as a baseline against which future progress in implementation is assessed.
Subsequent reports can then normally be limited to provide information on:
New legislation or other measures affecting •
the application of the Convention; Replies to questions in the report form on
• the practical application of Convention for
example statistics, results of inspections, judicial or administrative decisions as well
as comments received from workers and employers organizations;
Replies to any comments previously received
• from the ILO supervisory bodies.
The supervisory bodies often request additional reports beyond the regular reports due every ive
years. There is thus an on-going dialogue between the governments concerned and the ILO supervisory
bodies regarding implementation. The ILO bodies undertaking the regular supervision
of the application of ratiied Conventions are the Committee of Experts on the Application of
Conventions and Recommendations CEACR; Committee of Experts and the Committee on the
Application of Standards CAS of the International Labour Conference.
The Committee of Experts consists of 20 independent experts, who meet annually in Geneva
in November and December. The Committee’s mandate is to examine the reports submitted by
ILO member States on the measures taken to give effect to ratiied Conventions and it assesses the
conformity of the country’s law and practice with its obligations under the Convention. In this task, the
Committee also relies on information received from workers’ and employers’ organizations, as well as
relevant publicly available information, e.g. oficial United Nations reports.
The Committee of Experts engages in a process of ongoing dialogue with the government, which can
be very effective in identifying implementation and information gaps and suggesting measures and
mechanisms for improved implementation. Following each examination of reports, the Committee may
address comments to the government concerned to guide and strengthen the implementation. Due
to the complexities of Convention No. 169, it is one of the Conventions that has generated extensive
comments from the ILO supervisory bodies for many countries. The comments of the Committee of
Experts come in two forms:
“Observations”, which are the Committee of •
Experts’ public comments on the application of ILO Conventions; and
“Direct requests”, which are sent directly to •
the government in question, and generally ask for more information on speciic subjects.
