3 5
I I I . G O V E R N m E N T R E S P O N S I B I L I T I E S
3.3. SPECIAL mEASURES
In cases where indigenous peoples are in a disadvantaged position, due to lack of recognition
and protection of their right as well as inequalities generated through historical processes of
discrimination and marginalization, there may be a need for special measures to overcome this
situation. This is relected in Article 4 of Convention No. 169:
Convention No. 169, Article 4: 1.
Special measures shall be adopted as appropriate for safeguarding the persons,
institutions, property, labour, cultures and environment of the peoples concerned.
2.
Such special measures shall not be contrary to the freely-expressed wishes of the
peoples concerned. 3.
Enjoyment of the general rights of citizenship, without discrimination, shall not
be prejudiced in any way by such special measures.
In addition to the general provision for special measures in Article 4, a number of speciic
provisions refer to the development of special measures, for example related to protection of lands
Article 14.2 and the environment Article 7.4, employment Article 20, health Article 25s and
education Article 28.
Rather than amounting to “additional” rights or privileges, special measures to protect the
institutions, property, labour, cultures and environment of indigenous peoples are legitimate
and called for under the Convention because their ultimate objective is to ensure that indigenous
peoples enjoy all human rights, in line with everyone else. Special measures are not deemed to be
discriminatory vis-à-vis the non-indigenous part of the population.
1
1 ILO Convention No. 111, which addresses discrimination in employment and occupation, provides that “Special measures
of protection or assistance provided in other Conventions or Recommendations adopted by the International Labour Conference
shall not be deemed to be discrimination” Article 5.1.
International human rights law imposes obligations on states to respect protect and fulill internationally
recognized human rights. The special measures envisaged in the Convention are of particular
importance in this context.
Special measures aiming at the achievement of effective equality - e.g. a quota system to ensure
equal access of indigenous and tribal peoples to civil service employment would have to be ended
once their objective has been achieved. On the other hand, positive measures may be necessary
on a continuing basis, e.g. measures to protect indigenous cultures, environment or lands rights.
Article 27 of the
International Covenant on Civil and Political Rights stipulates
that persons belonging to ethnic religious or linguistic minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own culture,
to profess and practise their own religion, or to use their own language. In its General
Comment No. 23 1994 on article 27, the Human Rights Committee stated: “[A] State
party is under an obligation to ensure that the existence and the exercise of this right
are protected against their denial or violation. Positive measures of protection are, therefore,
required not only against the acts of the State party itself, whether through its legislative,
judicial or administrative authorities, but also against the acts of other persons within the
State party.
The Human Rights Committee also observed that “as long as those measures are aimed
at correcting conditions which prevent or impair the enjoyment of the rights guaranteed
under article 27, they may constitute a legitimate differentiation under the Covenant,
provided that they are based on reasonable and objective criteria”
UN doc. CCPRC21 Rev.1Add.5.
3 6
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
3.4. kEy PROVISIONS fOR ImPLEmENTATION
Kategori