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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
No. 169. Constitution, art. 5 2: Colombia:
• International treaties have force of law
upon ratiication, human rights conventions have the same rank as the Constitution Constitution, arts. 53
and 93, para. 1; Costa Rica:
• International treaties have force of
law upon ratiication and their rank is higher than national law Constitution, art. 7;
Denmark: •
International treaties do not have force of law upon ratiication;
Dominica:
• International treaties do not have force
of law upon ratiication; Ecuador:
• International treaties have the force of
law upon the ratiication and have a higher rank than ordinary laws. Treaties on human rights which
recognize rights that are more favorable than those contained in the Constitution will prevail over any
other legal norm or any act of the public authorities Constitution, Articles 417, 424 and 425;
Fiji:
• International treaties do not have force of law
upon ratiication; Guatemala:
• International treaties have force of law
upon ratiication, human rights conventions prevail in domestic order Constitution, art. 46;
Honduras:
• International treaties have force of
law upon ratiication and their rank is higher than national law Constitution, arts. 16 and 18;
México:
• International treaties have force of law
upon ratiication and their rank is higher than national law Constitution, art. 133;
Nepal:
• International treaties have force of law upon
ratiication and prevail over conlicting national law 1990 Treaty Act, sec. 9;
Netherlands:
• International treaties are directly
applicable and their rank is the same as the Constitution Constitution, art. 94;
Norway:
• International treaties do not have force of
law upon ratiication Constitution, art. 110; Paraguay:
• International treaties have force of
law upon ratiication and their rank is higher than national law Constitution, 137, para. 1 and 141;
Peru:
• International treaties have the force of law
upon ratiication. Human rights treaties have the same rank as the Constitution Constitution, Articles
3, 55 and Fourth inal and transitory provision; Spain:
• International treaties have force of law upon
ratiication and their rank is higher than national law Constitution, art. 96, para. 1;
Venezuela:
• International treaties have force of law
upon ratiication, human rights conventions have the same rank as the Constitution Constitution, arts 22
and 23.
14.8. ENTRy INTO fORCE AND RETROACTIVITy
Convention No. 169 contains a provision, stipulating that it comes into force 12 months after the
registration of its ratiication by the ILO. Until the Convention comes into force, it has no effect in
international law.
ILO Convention No. 169: Article 383
establishes that: “this Convention shall come into force for any Member twelve
months after the date on which its ratiication has been registered.”
In its analysis of the application of the Convention, the ILO Committee of Experts has reafirmed on
several occasions that the Convention cannot be applied retroactively. However, on several
occasions, the Committee has also stated that if the consequences of decisions taken prior to its entry
into force continue to affect the indigenous peoples in question, the Convention would be applicable with
respect to such consequences.
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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
