ACCOmPANyING ImPLEmENTATION: THE PROCESS Of REGULAR SUPERVISION
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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.
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The Committee of Experts’ observations are included in its annual report to the
International Labour Conference, which meets in June. This report is discussed by the
Committee on the Application of Standards CAS, which comprises representatives of
governments, employers and workers. The CAS’s main task is to examine the application
of ratiied Conventions by a number of countries ”individual cases” on the basis of
the observations issues by the Committee of Experts.
As an outcome of such individual cases, the CAS adopts conclusions addressed to the ILO Member
State examined.
Indigenous peoples do not have direct access to submitting reports to the ILO supervisory bodies.
However, indigenous peoples can ensure that their concerns are taken into account in the regular
supervision of ILO Conventions in several ways:
By sending veriiable information directly to •
the ILO on, for example, the text of a new policy, law, or court decision.
By making alliances with trade unions, and •
through them, raising issues of concern. As a consequence of the tripartite setup of the
ILO, employers’ and workers’ organizations can submit reports on the application of an
ILO convention at any time, irrespective of when a report on that convention is due. This
can be done by any workers’ or employers’ organization, which can be based anywhere
and not necessarily in the country concerned. By drawing the attention of the ILO to relevant
• oficial information from other UN supervisory
bodies, fora or agencies, including the UN Special Rapporteur on the situation of
human rights and fundamental freedoms of indigenous people and the UN Permanent
Forum on Indigenous Issues.
Finally, as in the case of Norway, indigenous peoples and states can seek innovative ways to provide
indigenous peoples with direct access.
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Norway: Innovative arrangements for reporting under Convention No. 169
In 1993, the Government of Norway submitted its irst report to the ILO concerning
Convention No. 169. The Sami Parliament in Norway disagreed strongly with certain
sections of the governmental report, in particular the section addressing land
and resource rights. The Sami Parliament submitted a written response to the
Government, relecting the substantive disagreement between the Government
and the Sami Parliament on the status of implementation of Convention No. 169,
and requested that the views of the Sami Parliament be incorporated into the report
or annexed to the governmental report. However, the Government of Norway rejected
this request, and the views of the Sami Parliament were not forwarded to the ILO.
Governmental oficials informed the Sami Parliament that the government was not in
a position to forward the Sami Parliament’s report to the ILO, because the government
found it to be too critical towards the views of the Government.
This problem was closely linked to the diverging interpretation and understanding
of the core land rights provisions of the Convention: The Government and the
indigenous Sami Parliament in Norway differed in their understanding of the
substantive content of Article 14 of the Convention. The Government interpreted its
obligations under Article 14 to be limited to ensuring a strongly protected usufruct right
to lands and natural resources for the Sami, whereas the Sami Parliament believed the
State is obliged to recognize and protect Sami rights of ownership and possession, as
well as usufruct rights.
The Sami Parliament informed the ILO about this situation. The ILO Committee of
Experts raised concerns that the report did not contain any information about the views
of the Sami Parliament. This was most likely the result of the Sami Parliament initiative.
This incident motivated the Government of Norway and the Sami Parliament to reach an
agreement, under which the Government will send its reports on Convention No. 169 to the
Sami Parliament for comments, and transmit the Parliament’s comments to the ILO as part
of its oficial report.
In this context, the Committee of Experts stated that; “The Committee welcomes
warmly the dialogue between the Government and the Sami Parliament on the application of
the Convention. It notes that this corresponds to the approach suggested in point VIII of the
report form, and looks forward to continuing this exchange of information and views. It
considers that this can best be carried out in the context of the regular reporting on the
implementation of the Convention.”
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In April 2003, the Government submitted a proposal for a Finnmark Act – on land and
resource rights - to the Norwegian National Parliament the Storting. The proposal
was strongly criticised by Sami institutions, in particular the Sami Parliament, for not
meeting the international legal requirements for recognition and protection of Sami rights,
and the obligation to consult the Sami
7 Document No. ilolex 061995NOR1691.
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whenever consideration is given to legislative measures which may affect them directly.
The Sami Parliament prepared its own independent reportassessment of the
proposed Finnmark Act for the ILO. In accordance with the earlier agreement
between the Government and the Sami Parliament, the report was oficially submitted
to the ILO Committee of Experts.
The concluding observations of the ILO Committee of Experts concluded that
the Finnmark Act – as proposed by the Government in 2003 – was incompatible with
Norway’s obligations under ILO Convention No. 169.
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The Committee stated that the process lack of consultations and the
substance are inextricably intertwined in the requirements of the Convention and in
the conlict concerning the governmental proposal.
As a result of these observations, the National Parliament of Norway entered into a direct
dialogue with the Sami Parliament regarding the contents of the Act. This dialogue process
concluded with the adoption of a radically revised and amended Finnmark Act by the
National Parliament in June 2005 – fully endorsed by the Sami Parliament.
The observations of the Committee of Experts directly inluenced the outcome
of the legislative process in two ways:
8 Concluding observations and recommendations from the ILO Committee of Experts on the Application of Conventions
and Recommendations CEACR of 2003, responding to the periodic report from the Government of Norway, concerning
the implementation of Convention No. 169: ILO CEACR, 2003.
a it convinced the Norwegian National Parliament that an adoption of legislation with
direct impact on Sami land rights, without conducting appropriate consultations with
the Sami Parliament, would be a violation of Norway’s international obligations; b
it inluenced the substantive negotiations between the National Parliament and the
Sami Parliament. This example shows that the development
of a distinct procedure pertaining to Convention No. 169 - allowing indigenous
peoples’ organizations to report directly on the implementation of Convention No.
169 formally or otherwise - signiicantly contributes to and strengthens the
supervisory mechanisms.
The procedure adopted by Norway has been welcomed by the Committee of Experts as
a practical expression of the consultation required under Convention No. 169 as well as
of point VIII of the report form for Convention No. 169, which states that “governments
may ind it helpful to consult organizations of indigenous or tribal peoples in the country,
through their traditional institutions where they exist, on the measures taken to give effect
to the present Convention, and in preparing reports on its application. In so far as this
is not already stated in the report, please indicate whether such consultations have
been carried out, and what the result has been”.
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9 Norway example cited in John Henriksen: Key Principles in Implementing ILO Convention No. 169, ILO, 2008.
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