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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
Convention No. 169 came into force in Mexico in 1991. In 1998, a complaint
was raised under Article 24 of the ILO Constitution, alleging among other things that
the government had not provided the affected communities with the promised quantity
of land to be awarded in compensation for the eviction from their lands due to the
construction of a dam, ordered in 1972. The Committee established to analyse the case
observed the Government’s declaration that it “cannot be alleged that the decrees issued in
1972, 1973 and 1974 for the construction of the dam violate the provisions of Convention
No. 169, as that Convention only came into force for Mexico in September 1991. This
being the case, the Committee considers that the provisions of the Convention may not be
applied retroactively, particularly as regards questions of procedure including the types
of consultations which would have been required at the time of taking these decisions
if, hypothetically, the Convention had been in force. However, the effects of the decisions
that were taken at that time continue to affect the current situation of the indigenous
peoples in question, both in relation to their land claims and to the lack of consultations
to resolve those claims. The Committee therefore considers that the Convention
does currently apply with respect to the consequences of the decisions taken prior to
its entry into force.”
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14.9. fLExIBILITy IN THE ImPLEmENTATION
The diversity of indigenous peoples and the general situation of the countries that have ratiied Conven-
tion No. 169 is enormous, for example with regards to the percentage of indigenous population, geo-
graphical characteristics and the overall develop- ment situation of the concerned countries. Further-
more, the Convention speciies the need to develop measures of implementation in consultation with the
concerned indigenous peoples and in accordance
10 Governing Body, 276
th
Session, November 1999, Representation under article 24 of the ILO Constitution, Mexico, GB.276163, para. 36.
with their own priorities for development. There- fore, it is not possible to apply a uniform approach
to implementation of the Convention; the process needs to be carefully designed and developed by
the concerned governments and indigenous peoples and tailored to the particular circumstances.
ILO Convention No. 169 in Article 34 provides for the necessary lexibility of
the nature and scope of measures of implementation:
Article 34:
The nature and scope of the measures to be taken to give effect to this
Convention shall be determined in a lexible manner, having regard to the conditions
characteristic of each country.
Article 34 does not limit the obligation of ratifying States to make effective all the provisions of the
Convention. However, the measures to this end shall be determined in a lexible manner, taking into
account the particular circumstances. It is also important to recall that no limitations on
the obligations of an ILO Convention other than those speciically provided for in the instrument are
possible i.e. no reservations.
14.10. POSSIBILITy Of SEEkING CLARIfICA- TION ON PROVISIONS Of ILO CONVENTIONS
It is primarily up to concerned governments to judge whether or not their national law and practice are
or can be compatible with the standards laid down in international labour conventions, subject – in the
event of ratiication – to the procedures established by the ILO for the review of reports relating to the
application of ratiied Conventions. ILO constituents have the possibility of seeking
clariications regarding the meaning of particular provisions of ILO Conventions by requesting an
informal opinion from the International Labour Ofice. Because the Constitution of the ILO confers no
special competence upon the Ofice to interpret Conventions, it must limit itself to providing
information enabling the constituents to assess the appropriate scope of any given provision of
a Convention. In this process, the Ofice takes
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into account any relevant elements that may have emerged from the ILO’s preparatory work and the
comments of its supervisory bodies.
14.11. ILO TECHNICAL COOPERATION AND ADVISORy SERVICES
The International Labour Standards Depart- ment of the International Labour Ofice in Geneva
together with the ILO standards specialists in the regions work to give all kinds of training, explana-
tions, advice and assistance on matters relating to the ratiication and application of international labour
Conventions. These services are offered both in response to
speciic requests received from governments or employers’ or workers’ organizations and through
routine advisory missions and informal discussions initiated by the Ofice. Matters which may be dealt
with include the comments of the supervisory bodies and measures they might call for; new legislation;
and government reports to be drafted. The constituents may also send draft legislation to the
ILO for comment and advice. The International Labour Standards Department
also has a special technical cooperation programme on indigenous and tribal peoples, which
provides assistance to governments, indigenous organisations and other partners:
the Programme to Promote ILO Convention No. 169 PRO 169,
which aims at promoting the rights and improving the socio-economic situation of indigenous and tribal
peoples.
PRO 169 is based within the International Labour Standards Department and has ield coordinators in
a number of ILO ofices. PRO 169 works on a wide range of thematic as well as international, regional
and country-speciic issues. PRO 169 combines a lexible demand-driven approach, responding to
emerging needs and opportunities with longer-term strategic initiatives at regional and country-level.
In Africa, comprehensive research on the situation of indigenous peoples is undertaken in collaboration
with the African Commission on Human and Peoples’ Rights and country-level activities in
Cameroon
, Kenya and Namibia are addressing policy reform, capacity-building of government
and indigenous partners as well as local economic development.
In Asia, the focus is on dialogue and conlict resolution as well as policy reform and capacity-
building of indigenous and government partners. In September 2007, a major achievement was reached
as
Nepal ratiied Convention No. 169 as part of the current peace and state reform process.
In Latin America , PRO 169 is increasingly
responding to needs and requests for technical cooperation related to the implementation of
Convention No. 169 , identiied through the ILO
supervisory bodies. More information is available at http:www.ilo.org
indigenous or through email: pro169ilo.org
14.12. ILO INfORmATION RESOURCES
The ILO’s website on indigenous and tribal peoples issues http:www.ilo.orgindigenous,
contains a series of information resources, manuals, guidelines and information about ILO programmes
and projects on indigenous peoples’ rights. The Programme to Promote ILO Convention No.
169 PRO169 has established a
training website,
which provides a series of materials for conducting training on indigenous and tribal peoples’ rights,
including videos, power point presentations and background materials http:www.pro169.org.
ILOLEX http:www.ilo.orgilolex is the
ILO’s trilingual database Spanish, French and English,
which provides information about ratiication of ILO Conventions and Recommendations, comments
of the Committee of Experts, Representations, Complaints, interpretations of ILO Conventions, and
numerous related documents. In ILOLEX, you can search for information about a speciic Convention
andor a particular country. ILO’s database APPLIS provides information on
the application of International Labour Standards. The ILO Handbook of procedures relating
to international labour Conventions and Recommendations revised edition 2006, offers
detailed information on issues such as ratiication and supervision.
The website of the International Labour Standards Department is a comprehensive source
of information regarding the ILO standards system and related activities http:www.ilo.orgnormes
