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and exchange of experiences. In many cases, the ILO, through its International Labour Standards
Specialists and technical cooperation programmes, provides assistance and technical input to such
activities see section 14.11.
ILO Conventions, unlike other international treaties, cannot be ratiied with reservations. Some
Conventions allow ratifying States to limit or modify the obligations of a Convention e.g. by way of a
declaration explicitly permitted or required under the Convention, but this is not the case with
Convention No. 169. Therefore, it is important that governments, indigenous peoples, traditional
ILO constituents workers and employers as well as other stakeholders are fully informed about
all the provisions of the Convention as well as the implications of ratiication. Moreover, this is
important for generating ownership of the post- ratiication implementation process; and by involving
these principal actors, their participation in the implementation of the Convention is usually better
guaranteed.
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Ratiication of Convention No. 169 by Nepal
Nepal ratiied Convention No. 169 in September 2007. The ratiication followed
a long process of promotion, dialogue, research, exchange of experiences, training
and capacity-building of different actors, including indigenous representatives,
political parties, bureaucrats, international organizations, civil society organizations,
trade unions, employers organizations, academics and media persons. Several
national workshops provided opportunities for leading national politicians and indigenous
representatives to discuss the Convention’s relevance for Nepal’s highly diverse, complex
and unequal society. The discussions took place during the height of the 10-year long
armed conlict, in which Nepal’s indigenous peoples were disproportionately involved both
as combatants and as civilian causalities, owing to their history of social, political,
economic and geographic exclusion. Given the political context in the country in which
exclusion of certain groups was fuelling the Maoist-inspired civil war, the ILO facilitated
the exchange of experiences from Guatemala, where the Convention was ratiied in 1996
as an integral part of the Peace Accords. An agreement between the all-party government
and the Nepalese Federation of Indigenous Nationalities NEFIN in August 2007 led to
the eventual ratiication. Subsequently, the ratiication of Convention No. 169 came to
play an important part in the peace process in Nepal, becoming a major precondition
for the indigenous movement to support the elections and the Constituent Assembly
process. The implementation of the Convention is still ongoing in Nepal, but
already the Convention has formed the basis for claims for meaningful consultation
and participation in the constitution making process. It is also hoped that the principles
of the Convention, will go on to provide a comprehensive framework for addressing key
questions related to indigenous peoples in Nepal’s new state structure.
Each country has its own national procedures for the ratiication of international treaties, which
varies according to the constitutional set-up of the county. The procedure is usually initiated by the line
ministry responsible for the issues covered by the Convention. Once a government decides in favour
of ratifying Convention No. 169, the approval of the parliament or other legislative body may have to be
sought. Once this is obtained, the body or organ competent to do so under the national procedure
signs the so-called
instrument of ratiication. Once the national process is concluded, the
government sends the instrument of ratiication to the ILO informing it of its decision to ratify and be
bound by the Convention. When it receives this instrument, the ILO registers the ratiication and
informs other member States. It is only through registration by the ILO that the ratiication becomes
effective on the international plane.
One year after the registration of ratiication, the Convention enters into force in the country
concerned, i.e. it becomes binding on the country under international law.
14.4. ImPLEmENTATION IN GOOD fAITH
Under international law, treaties in force for a country must be implemented in good faith.
2
Also, the ILO Constitution states that ILO members must make
provisions of ratiied Conventions effective.
3
This means that the government must take all measures
necessary to apply the provisions of the Convention in law and in practice through the adoption and
effective implementation of appropriate legislation, regulations and policies. It is also necessary to put in
place the administrative arrangements, mechanisms or institutions needed to ensure that the State’s
obligations under the Convention are complied with.
The legal status of the Convention within the national legal system varies from country to country see
section 14.7. In the majority of countries that have ratiied the Convention so far, ratiied treaties are
an integral part of the national law. Under these systems, the provisions of the Convention often
2 Vienna Convention on the Law of Treaties 1969, Article 26. 3 Article 195d of the Constitution of the ILO.
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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.
