Overcoming Challenges of the ILO’s Convention on Indigenous Rights. A personal perspective

Foreword

In the book “The Indigenous Peoples Convention: difficulties and proposals. My experience in the International Labour Office”, published by Editorial Aranzadi España in September 2022, I explore one of the most original questions that the International Labour Organization (ILO) has tackled: the rights of indigenous peoples.

At the time it was created, during the Paris Peace Conference in 1919, the ILO was assigned the task of protecting the living and working conditions of indigenous populations. After having adopted various standards in relation to indigenous workers and populations, the International Labour Conference adopted the Indigenous and Tribal Peoples Convention, Convention No. 169, in 1989. This Convention has been ratified by 24 countries, while the Indigenous and Tribal Populations Convention, Convention No. 107, adopted in 1957, remains in force in 17 countries.

I am aware that major frustration persists, particularly among indigenous peoples in Latin America, regarding the effective application of Convention No. 169. Many of the difficulties raised during the preparatory work in view of adopting the Convention have not been overcome, and obstacles remain for indigenous peoples to express themselves directly at the ILO level. Discontent has also been voiced by Latin American business representatives, which consider that the Convention hinders the development of economic activities, particularly in the mining sector. Government authorities have indicated that they feel perplexed due to being unable to strike a balance between the views of indigenous communities and conflicting economic interests.

The intention is to share my nearly thirty years’ experience as Legal Officer and Head of Unit within the International Labour Standards Department, where I worked from 1990 until retiring in 2016. I have sought in the book to present a text that mixes memories and personal stories with the kind of analysis that characterizes legal writing.

I wish to highlight that some important questions were not examined in the book. For example, the technical cooperation in which millions were invested to promote indigenous peoples’ rights would have deserved special analysis. Also, indigenous jurisdiction – the customs, customary law or specific institutions of indigenous communities that resolve conflicts within the community by employing ancestral principles – should have been the subject of a careful analysis. However, these two themes, as well as others, did not make it into the book.

And why not?

When I started this project, I intended to cover all questions raised by the Convention. However, some circumstances meant that some themes were left out somewhat arbitrarily. One such circumstance was fatigue, which Héctor Abad defines with a verse by Quevedo: “I am a was, and a will be, and a tired [person]”^[1]. It is safe to say that my process was not the most academically rigorous. Nevertheless, my work may be of  interest as presented in book form and in its digital version available from Amazon and the website of Editorial Aranzadi España.

Disclaimer

For the record, I am the only one responsible for everything written or suggested in this text which is based on publicly accessible documentation and on my own experience and recollections.

I finished writing the book in July 2022 and, before it was published, I was able to take into account the plebiscite rejecting the draft constitution in Chile, in September 2022.

Neither had I foreseen that on February 2023, the Collegiate Criminal Court of the Ucayali High Court of Justice would sentence the six men charged for murdering the indigenous leaders of the Saweto community to 28 years and 3 months in prison. The verdict was reversed in August by the Appellate Court. In this note, I stress the importance to condemn those implicated in the ethnic massacre for the application of the Convention in Peru, the South American country with the largest indigenous population.

Acknowledgement

The support of Arantxa Vicente Palacio, Inmaculada Ballesteros Pastor and Sara Ruano Albertos, professors of labour and social security law at Universidad Jaume I (UJI), Castellón, was essential to the publication of the book. In February 2023, I had the opportunity to present the book in the main hall of the UJI School of Legal and Economic Sciences, which can be seen in this video.

Anna Biondi and Maité Llanos were enthusiastic about the possibility to have a discussion with English speakers of the ideas developed in the book. Issues on indigenous peoples raised by the three sectors represented in the ILO are reflected in this document. The English version was established by Leandro Moura and revised by Franco Amato.

Convention No. 107 (indigenous populations) and Convention No. 169 (indigenous peoples) in summary

Adopted in 1957, Convention No. 107 and Recommendation No. 104 are the first instruments that identified and recognized the social rights of indigenous populations in independent countries. Among the objectives of the instruments adopted in 1957 was improving the living and working conditions of indigenous populations, one of the most vulnerable groups of the countries that emerged from the decolonization process. Convention No. 107 asked governments to adopt “co-ordinated and systematic action for the protection of the populations concerned and their progressive integration into the life of their respective countries” (Article 2, paragraph 1). It also indicated that there should be no “recourse to force or coercion as a means of promoting the integration of these populations into the national community” (Article 2, paragraph 4).

Convention No. 107 contains the seeds of the ‘free, prior and informed consent’ principle: indigenous populations cannot be removed “without their free consent from their habitual territories except in accordance with national laws and regulations for reasons relating to national security, or in the interest of national economic development or of the health of the said populations” (Article 12, paragraph 1).

Recommendation No. 104 included eleven parts and 36 paragraphs that anticipated issues that would be compiled in Convention No. 169.

By adopting Convention No. 169 in 1989, the ILO was able to review approaches considered outdated and propose an innovative solution. The Convention includes provisions on the requirements for prior consultation on legislative and administrative measures that directly affect indigenous peoples (Article 6), and for reinforced consultation in cases of natural resources pertaining to their lands, profit-sharing and fair compensation for damages caused (Article 15). These provisions have afforded indigenous peoples new rights in countries that ratified the Convention.

ILO documentary sources for the study of the Convention

Official information about Convention No. 169 is found on the ILO website. The documents are published in the ILO’s three working languages (English, French and Spanish). Furthermore, the text of Convention No. 169 is also available on the ILO’s website in Arabic, German and Russian, while the text in Portuguese may be accessed on the ILO Office in Brasília’s webpage.

An ILO publication offers a translation of Convention No. 169 into Quechua from Bolivia and Peru, and into Kichwa from Ecuador. Another publication has proposed translations into Araucano, Aymará and Rapa Nui. In Paraguay, the Ministry of Labour has shared the Convention in Guaraní and Nivaclé. It should be noted, however, that there is no official source of information that allows to identify all translation versions of the Convention into indigenous languages.

The reports of the Committee of Experts on the Application of Conventions and Recommendations contain individual observations on the application of the Convention. NORMLEX, the database of the International Labour Standards Department (the Standards Department), also contains direct requests that the Committee of Experts formulates. Updated comments by the Committee of Experts about the application of Convention No. 169 in each of the ratifying countries are found in NORMLEX.

After a session of the International Labour Conference (ILC) where the application of the Convention was discussed, the content of the discussion and conclusions reached by the Committee on the Application of Standards is published in a report of the Conference. The discussion and conclusions can also be found on NORMLEX.

The reports from tripartite committees that dealt with representations about the Convention can be found in the corresponding pages of the meetings of the Governing Body on the ILO website. Representations are procedures that allow employers’ or workers’ organizations to allege, by virtue of article 24 of the ILO’s Constitution, that a country does not comply with a ratified Convention. The reports on art. 24 representations can be found on NORMLEX.

The preparatory work of the Convention was referenced in a thematic page, which gives access to other pertinent documents, like a handbook that the ILO published in 2013 to provide guidance on the Convention.

Ratification prospects 

In 2015, the Governing Body dismissed a specific programme for indigenous peoples and opted instead for an “integrated approach to fight against inequality and discrimination”. Once this approach was established, if my memory does not fail me, the person in charge of the strategy told me, in a precious Lima accent, that ratification of Convention No. 169 would be enthusiastically promoted. Years later, in spite of the apparently good intentions, the Convention received only two new ratifications, both in Europe (Germany and Luxembourg), and the difficulties of application in Latin America still remain.

Bangladesh: ratification stalled

In March 2004, upon turning fifty, I was going through a moment of little empathy towards the leadership of the Sixth Floor, where the Standards Department was located. Furthermore, it seemed unlikely to me that I would be able to do useful work in Latin America.

I therefore sought to advance the work in Asia, and the possibility emerged of organizing activities in Bangladesh. With the support and guidance of Coen Kompier, the Standards Specialist in the Subregion, I made my way to Dhaka, the capital of Bangladesh.

The main reason for the tripartite activity was to stress upon the government authorities and representatives of trade unions and business the importance of the constitutional obligation to submit the instruments adopted by the Conference to Parliament. In this regard, the ILO Constitution requires that international labour conventions and recommendations be submitted to national parliaments as the first step in publicizing the work of the Organization and obtaining the formal ratification of Conventions, if agreed upon by governments.

Bangladesh had built up a great delay vis-à-vis the submission process. The activity carried out in 2004 did not bear fruit immediately. Bangladesh’s delay with regard to the obligation of submission was overcome in 2018 when the authorities indicated that 42 instruments were submitted to the Parliamentary Standing Committee of the Ministry of Labour and Employment, as noted by the Committee of Experts in an Observation published in 2019.

Indeed, structural difficulties remain in Bangladesh regarding the application of international labour standards. Since Bangladesh became independent and joined the ILO in 1972, the country has been unable to substantially change the profile of its ratifications: Convention No. 107 (Indigenous Populations) remains in force and the ratification of the fundamental Conventions was only progressed in 2022, when Bangladesh ratified Convention No. 138 (Minimum Age) and the Protocol of 2014 to the Forced Labour Convention, 1930.

In April 2013, more than 1,100 workers, mostly indigenous women, lost their lives when the Rana Plaza building collapsed in Dhaka . Following the disaster, the decisive mobilization of ILO field experts motivated the national authorities and representatives of the textile industry to reach an agreement on fire safety and the integrity of buildings in the garment sector that was expanded to the textile sector and it is now also applicable in Pakistan (see International Accord).

Soon after independence, in 1977, in the Chittagong Hill Tracts (CHT), the United People’s Party (Parbatya Chattagram Jana Sanghati Samity, the “PCJSS”) led an insurrection that combated government forces. The Chittagong region borders with India and Myanmar, and is the country’s only mountainous area, with a majority indigenous population. Furthermore, unlike the rest of Bangladesh, the population is mostly Buddhist, although in some districts Muslims form the majority.

The need to protect the communities of the Chittagong region led the ILO to work diligently by means of activities in the conflict zone and comments from the supervisory bodies on Convention No. 107. At the time, two direct contacts missions[2] were undertaken. The second one, in April 1988, went to the conflict zone itself.

Also, in 1987 and 1989, the Conference Committee took note of the Government’s declaration on the situation in the Chittagong region. After a brief tripartite debate, the Conference Committee noted in its conclusions of 1989 that “further steps must be taken such as the effective examination of violations of human rights, the recognition of property of tribal populations and the delineation of tribal lands and the settlement of conflicts and disputes between tribal and non-tribal peoples” (emphasis in the original). At the same time, the Conference Committee took note that the authorities said they would continue cooperating with the ILO.

On 2 December 1997, the government and the PCJSS signed a peace agreement recognizing that the Chittagong region was inhabited by indigenous communities and the necessity of overcoming the ethnic conflict. The Committee of Experts was made aware of the peace agreement on those same days when it was meeting in Geneva. Although the peace agreement brought about great hope that ethnic minority rights would be recognized, successive comments about Convention No. 107 have set out the numerous commitments made in the 1997 peace agreement that remain unfulfilled (see 2023 Observation on Convention No. 107).

After the December 2008 general election that took Sheikh Hasina to the Prime  Minister’s Office, in the National Strategy for Accelerated Poverty Reduction II (2009-2011) (NSAPR) (mentioned in the Observation on Convention No. 107, published in 2014), a commitment was included to adopt a National Indigenous People’s Policy. At this occasion, the authorities also indicated that the application and ratification of Convention No. 169 and of the UN Declaration on the Rights of Indigenous Peoples (2007) would be included in the government’s policy agenda. The 8^th Five Year Plan (July 2020 – June 2025) alludes to the ratification of Convention No. 169 as an area of future action, as mentioned in the 2023 Observation on Convention No. 107.

Panama: another stalled ratification despite my personal efforts

My last task as an ILO official, in May 2016, consisted in responding to a request from a government committee charged with driving the ratification of Convention No. 169 in Panama.

A meeting at the highest level, with a historic view of the ocean

The authorities had every intention of ratifying Convention No. 169, as President Juan Carlos Varela had made clear during his election campaign. However, there remained some concerns about the possibility of interrupting development projects if indigenous peoples’ organizations invoked non-compliance with the Convention and sought to halt the activities. On some occasions, relations between the government authorities and indigenous communities were not simple. For example, the meeting documents sent from ILO headquarters in Geneva to hand out to meeting participants were held up by customs. All the efforts to have them released failed.

At a meeting hosted by Isabel Saint Malo, Vice-President of the Republic and Minister of Foreign Affairs, various members of the Cabinet asked questions and took part in the discussion. As for me, I insisted that Panama had adhered regularly to more modern international labour conventions, as in the case of the Maritime Labour Convention, 2006 (MLC, 2006). Without the important merchant fleet that flies the Panamanian flag, the MLC, 2006 might not have come into force at the international level. Equally, the ILO might not have been able to take pride from the fact it promoted decent work among seafarers, and sustainability and safety at sea and on ships.

During President Varela’s administration, in June 2015, two conventions were ratified (Convention No. 144 regarding tripartite consultation and Convention No. 189 regarding domestic workers) without the introduction of changes to national legislation or practices. In these two cases, ratification consolidated existing practices in Panama.

Indigenous communities’ territorial rights were established in the Constitution of Panama. When one recognizes an indigenous identity, one does not renounce other identities that an individual or collective has in contemporary society, which entails the existence of a plurality of identities^[3]. Convention No. 169 must be understood as an opportunity to recognize the plurality of our identities, without an indigenous identity implying pre-eminence over other identities and the other rights, duties and responsibilities that each individual and each collective has in a democratic society.

For its part, Convention No. 169 did not oppose any model of development, and neither did it privilege the identity of indigenous communities over those of the rest of the social entities that constitute a country. By organizing the consultations that the Convention requires, projects’ success is assured as much for indigenous communities as for the business sector and the rest of society. Indigenous communities could not veto the implementation of projects if the consultations required by the Convention were held.

Convention No. 169 should be understood as an instrument for social dialogue. The consultations with indigenous communities that the Convention requires are to be held to support projects’ development. Judicialization is a widespread feature of indigenous peoples’ complaints in Latin America.

In Panama, there was a tradition of social dialogue and of consulting indigenous peoples.

The conditions under which indigenous communities could present representations before the ILO aroused some concern among participants. However, the indigenous peoples’ organizations do not have access to the ILO supervisory bodies, unless they go through the social partners. In the preceding years, there had been greater participation by employers’ organizations, which had been especially careful to respect the established tripartite procedures.

The receivability of a representation does not allow the ILO Governing Body to invite a government to suspend activities on the ground. Anticipating such fears, since 2019, the ILO has promoted new rules that aim to resolve representations by means of the so-called “voluntary conciliation”.

Advance warning was given that, upon ratification of Convention No. 169, social partners would be able to present their own opinions about the way in which the Convention is applied. There was also an insistence on the fact that the Ministry of Labour should carry on with its habitual diligence in the preparation of reports. It was also worth consulting with social partners and indigenous peoples’ representative organizations when preparing the Convention’s draft reports.

The Vice-President of the Republic thanked us for the explanations provided and invited us to leave for the meeting to continue. She later mentioned that our explanations had cleared up doubts about certain aspects of the Convention and created the best prospects for ratification of the Convention.

At that moment, one had the feeling that the country would advance rapidly toward ratification of Convention No. 169, owing to the imminent promulgation of Law No. 37. It was known that the President would promulgate that law, which the Assembly had adopted in 2016, establishing prior, free and informed consultation and consent for indigenous peoples. The fourteen provisions of Law No. 37 have been in force since 30 June 2017, and introduce the requirements of Convention No. 169 in the national legislation.

Nevertheless, Convention No. 107 (Indigenous Populations) of 1957, ratified in June 1971, remains in effect in Panama, and Convention No. 169 has yet to be ratified.

In the Observation on Convention No. 107 adopted in 2019, the Committee of Experts welcomed ”the Government’s efforts to establish a legal and institutional framework in accordance with the objectives of Convention No. 169”. However, in the Direct Request published in 2022, the Committee of Experts noted the Government’s concerns relating to “significant incompatibilities” between Convention No. 169, constitutional provisions and the national legislation that justified the authorities’ prudence in not ratifying the Convention, at least for now.

An anomalous situation persists in Panama with a convention that no longer conforms with the reality of the country (Convention No. 107) remaining in force, instead of concluding the necessary steps to ratify Convention No. 169.

Europe: Belgium/France

Convention No. 107 still remains in force for Belgium,  is the only Benelux country that has not yet ratified Convention No. 169. Convention No. 169 has been applicable to Netherlands, in Europe, since February 1998, as well as in Luxembourg since June 2018. It should be noted, however, that the Convention has not been declared applicable to communities living in Aruba, the Caribbean Part of the Netherlands, Curaçao and Sint Maarten depriving the communities leaving in those territories of the protection of the Convention.

France: the Human Rights Consultative Committee favours ratification of the Convention

New Caledonia and French Polynesia (like Gibraltar and Islas Malvinas/Falkland Islands) are on the list of territories examined annually by the United Nations within the framework of the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the General Assembly in 1960^[4].

An opinion of the National Human Rights Consultative Committee, published in February 2017, recommended France’s adherence to the Convention^[5]. This opinion proposed that France apply the Convention exclusively to the Amazonian indigenous peoples living in the department of French Guyana (a French territory bordering on Brazil and Surinam) and to the Kanak people in New Caledonia.

In any case, in French Guyana, which borders Brazil, there are indigenous communities to which the Convention might apply. In Brazil, various communities from the Oiapoque municipality (Amapá state) and the Yanomani and Yekwana peoples (Amazonas and Roraima states) adopted their respective consultation protocols in 2019.

In New Caledonia, the authorities organized three referendums (November 2018, October 2020 and December 2021) for the population to give its verdict regarding the territory’s self-determination. A significant share of Kanak voters abstained from the last referendum. For now, New Caledonia remains under French sovereignty and Convention No. 169 does not apply.

In France, as in the rest of Europe, the Roma communities should be protected by the Convention.

The Roma communities in the Convention

Brazil and Colombia consider the Roma community to be one of the communities specifically protected by the Convention. In Europe, however, at least for now, the countries that ratified the Convention (Denmark, Germany, Luxembourg, Netherlands, Spain, Sweden) have not considered the Roma communities among those protected by the Convention. The Roma community in Europe amounts to 10-12 million people, of whom six million are European Union citizens^[6].

In 2001, in an official Memorandum^[7], the Office responded to a question from the Swiss government, that wanted to know whether the “itinerant populations/travelling people”, such as the Yenish or the Roma communities, should be considered among the communities protected by the Convention. The Office developed an argument favourable to “itinerant populations” falling within the scope of Convention No. 169. According to the Office, Article 1, paragraph 2, of the Convention, makes awareness of one’s indigenous or tribal identity a fundamental criterion in determining whether a community falls within the scope of its provisions. On the other hand, the Convention makes no provision for the possibility of excluding a community if its representatives express the wish to be considered an indigenous or tribal people. If an itinerant community has regularly occupied some specific grounds, that site should be considered a territory covered by Article 14 of the Convention.

Proposals for improving reporting requirements for ratifying countries

            Reports presented by governments contain information and documents meant for examination by the Committee of Experts, and, in general, are considered confidential documents. However, copies of the reports must be circulated among the social partners. In the case of Norway, the authorities shared the reports with representatives of the indigenous peoples on its territory.

November 2018 Reforms: a six-year cycle and asynchronous presentation of reports

On grounds of simplifying the administrative work of the ILO, in November 2018, the Fundamental and Governance Conventions were considered for a reporting cycle of three years. For other Conventions, designated as “technical”, a six-year cycle was established.

Consequently, since 2019, the ILO’s centenary year, requests for reports from countries that ratified Convention No. 169 have been divided as follows: A-B (Argentina, Bolivia, Brazil), C-F (Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji), G-K (Germany, Guatemala, Honduras), L-N (Luxembourg, Mexico, Nepal, Netherlands, Nicaragua, Norway), O-S (Paraguay, Peru, Spain), T-Z (Venezuela).

The asynchronous alphabetical order does not correspond to any legal criterion. The cycle initiated in 2019 made the ILO lose its overall vision on the manner in which Convention No. 169 is applied. The new criteria prevent the ILO to have a full and coherent analysis of the situation over a certain period for all the countries that ratified Convention No. 169.

Also, the alphabetical grouping does not facilitate a reading of how the system functions. Two alphabetical groups contain more than half the countries that ratified the Convention (C-F, eight countries, L-N, six countries). These two groups do not come after each other, since they are separated by the G-K group, made up of three countries. Even so, there is an unnecessary exposure for Venezuela as the sole member of the T-Z group.

In any event, the system continues to bring about unforeseeable situations, as can be seen from the information about the reports received that should have been addressed by the Committee of Experts during its November/December 2023 Meeting (see here).

In my opinion, there is nothing better than the traditional system of requests and simultaneous presentation of reports in order to attain a quality of dialogue between the supervisory bodies and the countries that ratified Convention No. 169.

Increasing transparency by making reports public

The Office considers it should remain strict with its practice of not releasing reports it receives from governments. The Standards Department publishes the date when government reports are received. However, comments made by the Committee of Experts do not indicate the period covered by the information that governments conveyed in the reports. This prevents the reader from knowing which authorities were in charge at the time the information was submitted, when reviewing the comments of the Committee of Experts.

At any rate, government documents, before or after being sent to the ILO, circulate among various national bodies (Ministry of Labour, administrative authorities responsible for indigenous affairs, Ministry of Foreign Affairs). In order to comply with the consultation process required by the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), the most representative employers’ and workers’ organizations must receive the draft reports.

In order to prevent distortions and promote transparency, on two occasions (2010 and 2011) the Ministry of Social Development of Chili shared on its website the reports presented to the Committee of Experts, although unfortunately the website links are no longer available^[8].

In practice, there is little chance of keeping documents secret following widespread physical and electronic circulation. Furthermore, once documents are examined by the Committee of Experts, the texts sent remain valuable for a specialized audience. Therefore, the Governing Body should seek tripartite agreement for it to be possible, on a specialized website, to share and access government reports and other documents related to the application of Convention No. 169, including judicial decisions and draft legislation.

Governments and social partners should be those most interested in disseminating information, thus lending greater credibility to the ILO’s supervisory system. Indigenous peoples’ organizations would also have the opportunity to present their observations focusing on matters dealt with by the supervisory bodies.

In any case, making reports public would be a concrete measure meant “to further enhance transparency”, (…) “respond to the changing patterns of the world of work” and contribute to an “authoritative and effective”, supervisory mechanism, as proposed by Part IV A of the meritorious Centenary Declaration for the Future of the Work.

Other suggestions

The regular contacts that national authorities responsible for preparing reports have with the Standards Department and ILO teams in the field allow national administrations to acquire the necessary experience to prepare thorough reports on ratified conventions.

There should be an insistence that reports be submitted to the Office during the period from June 1 to September 1 of each year. Regrettably, the Office itself, as well as employers’ and workers’ organizations, have become used to thinking that the information must reach the Office “on September 1, at the latest”. Governments, social partners and indigenous peoples’ organizations should start preparing the documentation that is to be provided in the report well ahead of time. National administrations should be able to produce the reports gradually, without leaving it to the last hour of September 1 to send the documents to the ILO’s Headquarters in Geneva.

•  Conflict levels before the Committee of Experts would be reduced if – as the specific report form for Convention No. 169 requires – the representative organizations of indigenous peoples communities had the opportunity to access draft reports about Convention No. 169.

•  Respond exhaustively and concretely to the points raised in the comments of the Committee of Experts.

•  Use compact language to capture the attention of an international body and refer to the official documents available; avoid mentioning minor disagreements that tend to be known only by local interlocutors.

•  Highlight any new legislation that was adopted.

•  Avoid making public any draft legislation not previously submitted for due consultation with the representative organizations of indigenous peoples.

•  Differentiate between the legislation currently in force and draft legislation or regulations that have not passed the Legislative Branch or promulgated by the Executive Branch.

•  Make the position of employers’ and workers’ representative organizations public, and with precision.

•  Share draft reports with employers’ and workers’ representative organizations, inviting them to respond within a certain time frame (30 days after receiving them, for example).

•  Government authorities must respond punctually to the issues raised by the social partners.

•  Include judgments by local and higher courts that illustrate the application of the Convention during the period covered by the report.

Improving the impact of the Committee of Experts on the Application of Conventions and Recommendations

• Indicate in the comments the manner in which the guidance provided by the Committee of Experts has contributed to the development of indigenous peoples’ rights in the country and to solving pending conflicts.
• In a specific paragraph of the comments, identify which indigenous peoples’ communities were consulted according to the authorities, and clarify whether it would have been necessary to include the observations of the communities mentioned in the preparation of the report.
• Identify the authorities responsible for the different consultations specified in the comments.
• Consider the parliamentary time frames and electoral periods that structure the internal workings procedures of countries that ratified the Convention.
• Indicate in the comments whether specific regulations regarding consultations on natural resources must be adopted/modified, and the way to ensure indigenous communities’ participation in the benefits (Article 15, paragraph 2).
• The Office should make available to the public the social partners’ observations and  documentation sent by governments to foster a process of emulation among all stakeholders, thus improving the quality of reports and of the work of the  Committee of Experts.
• When the Committee of Experts declares that it notes “the information provided by the Government, which answers the points raised in its previous direct request, and has no further matters to raise in this regard” and comments are suspended, the Office should make available the Government’s report on the ILO website to allow for a better understanding of the content of the reply.

The tripartite discussions on the Convention at the International Labour Conference (ILC): an assessment

The cases related to the Convention that were discussed at the ILC (Central African Republic, Honduras, Mexico, Paraguay, Peru) are almost exclusively from Latin America, which might suggest that indigenous and environmental protests are a phenomenon exclusive to the region. Until a higher and more geographically balanced level of ratifications of the Convention is achieved, the ILC’s Committee on the Application of Standards will continue examining mainly the indigenous peoples’ protests that occur in Latin America.

The 2009 and 2010 discussions on Peru focused on the Group of Employers at the Conference Committee’s concern with respect to the possibility that the Committee of Experts´ observations would request and obtain the suspension of economic activities as a consequence of the lack of prior consultation required by the Convention. The business sector managed to make the Conference Committee compel the Committee of Experts to abstain from requesting that governments suspend measures that may affect decisions taken by mining firms. If there are doubts about the legality of the measures taken by the national enterprises, it is up to national jurisdictions to put appropriate measures in place.

The Group of Employers tried to replicate this victory over the Committee of Experts in relation to Convention No. 169 – achieved with the consent of the government sector – with regard to other themes, particularly when employers’ organizations at the ILO opposed considering the right to strike to be included in Convention No. 87 (Freedom of Association). On this matter (right to strike in Convention No. 87), the business sector did not obtain substantial support from governments.

In June 2014, at the Conference Committee, there was a consensus to deal with the humanitarian catastrophe of the Aka and Mbororo ethnic groups in the Central African Republic, differently from the heated discussion of June 2009 on the Baguazo protest in the Peruvian Amazon. The murder of Berta Cáceres did not affect the ILC debates held in June 2016 and 2021 on the application of the Convention in Honduras.

Proposals to optimize representations

On 23 November 2020, a ceremony was streamed via Facebook on the submission of a representation to the ILO from the indigenous people Shuar Arutam in the Ecuadorean Amazon. Though declared admissible at a March 2021 meeting of the Governing Body, the examination of the representation is still pending (March 2024).

Securing the secretariat of a tripartite committee that examines a representation always was a source of concern for the Standards Department teams. Whenever a tripartite committee was constituted, it was necessary to prepare an internal document summarizing the parties’ arguments, including a draft set of conclusions and recommendations. There was a time when so much care had to be devoted to the preparation of internal documents that it was inconceivable that they might be sent to the distinguished members of the committees without the guardians of the Constitution from the Office of the Legal Adviser having carefully reading the text to make sure it was of the highest quality. More recently, the Standards Department managed to avoid the need for the Office of the Legal Adviser’s blessing in order to prepare the documents, which are shared directly with the members of the tripartite committee and then with the Governing Body.

Establish a website where there is a public record of ongoing representations and of how the recommendations and conclusions of the tripartite committees are being followed up. Upon completion of the representation procedure, publish on the ILO website the full documentation received by the tripartite committees (documentation presented by social partners and the corresponding replies from governments).  Ask the government authorities, the complainant organizations and the other social partners to become involved in following up the conclusions of the representations.

The adoption of the report of the tripartite committee concludes the proceedings before the Governing Body. In almost all representations, at the specific request of the Governing Body, the Committee of Experts remains in charge of the follow-up of the pending issues raised in the representation. Consequently, observations and direct requests related with the progress of the follow-up of a representation need to be clearly identified in the comments of the Committee of Experts. ´

Until the appropriate national authorities comply with all the terms set out in the report of a tripartite committee, the Committee of Experts and the rest of the Organization (the Standards Department and field offices) must insist that the government respect the conclusions and recommendations that were approved under articles 24 and 25 of the ILO Constitution.

The reforms introduced in 2019 with respect to the representation’s procedure have not been effective, at least in relation to Convention No. 169. Faced with a representation by a trade union concerned about the rights of the Newar people, the ILO opted to avoid pursuing the representation and suspended the procedure on the Convention in Nepal. Hence, human rights mechanisms take on a leading role and the ILO loses its credibility vis-à-vis indigenous peoples.

When national social partners decide that what matters is lodging a representation before the ILO, the Office should abstain from suggesting that the best path is a conciliation, which necessarily implies continuing to instigate stress at the local level. As correctly conceived over a hundred years ago, the Organization should make itself aware of the conflict that led to the representation, and prevent the controversy from becoming even more complicated in the field. Instead of promoting a supposedly voluntary conciliation and leaving the Office in the thankless position of observer, it should take on fully the role of a mediator.

A never-ending drama for the Saweto community: a shame for the Peruvian authorities and the ILO

On 1 September 2014, Edwin Chota Valera, Jorge Ríos Pérez, Leoncio Quintisima Meléndez and Francisco Pinedo were murdered on a boat landing on the Putaya River. They were leaders of a small community, the Alto Tamaya Saweto native community in the Ucayali Region. At the time of the crime, they were on their way to the community of Apiwtxa, in the State of Acre (Brazil), to coordinate their complaints of illegal logging in the border area.

In February 2023, the Collegiate Criminal Court of the Ucayali High Court of Justice sentenced five defendants to 28 years and three months in prison for the murderers of the indigenous leaders of the Saweto community. The Ucayali High Court proudly published a press release announcing the verdict (see here).

However, on 29 August 2023, the Criminal Appeals Court resolved to annul the sentence condemning the five persons prosecuted and ordered that a new court should render a new sentence (see here).

On 11 April 2024, during a public hearing, a new decision corroborated that Hugo Soria Flores and José Estrada Huayta and the brothers Josimar and Segundo Atachi Félix murdered the indigenous leaders. The sentence issued by another Collegiate Criminal Court condemned them to 28 years and three months in prison. But the murderers are still free because the ongoing appeals process. The Government of Peru proudly published a press release announcing the verdict and omitting the fact the murderers are free (see here).

Immediately after the murders, exactly on 14 October 2014, the Saweto community delivered an initial petition demanding that the ILO restore the indigenous peoples’ rights enshrined in Convention No. 169. This first contact with the ILO was completed two weeks later – on 27 October 2014 – with the formal submission of a representation made by the most representative trade union organizations at the regional and international levels, the Trade Union Confederation of the Americas (TUCA) and the International Trade Union Confederation (ITUC), supported by the Autonomous Confederation of Peruvian Workers (CATP).

The aim of the representation was to get the ILO to request the Peruvian authorities to conduct a “proper investigation into the violation of the right to life of the indigenous community’s leaders” and obtain “payment of compensation not only to the families of the 18 children who lost their fathers, but also to the indigenous community for the loss of its leaders”.

Ten years later, on 14 June 2024, the Committee on the Application of Standards held in Geneva a specific discussion based on the 2023 Observation formulated by the Committee of Experts on the application of Convention No. 169, which included a point on the Saweto case. The discussion was initiated by the statement of Daniel Ysaú MAURATE ROMERO, Minister of Labour and former Minister of Justice, who contributed to the confusion by omitting to state that the perpetrators of the murderers are still free due to the ongoing appeals process.

In the discussion, the Workers spoke-person, and other workers representatives, made the point on the persistent immunity in the case of the murder of the leaders of Saweto, against the requests made to the Peruvian authorities by the ILO supervisory mechanism since 2016.

In its conclusions of 2024, a decade after the murders, the Committee on the Application of Standards urged the Government of Peru to “undertake expeditious investigations into the allegations of violence and incitement to violence and ensure that the perpetrators and instigators of the murders of indigenous leaders in Alto Tamaya-Saweto are prosecuted and punished as a matter of utmost urgency” (see pages 55-56 of the report). 

This conclusion of June 2024 is softer than the statement made in June 2016, when the ILO Governing Body published a 70-page report in English, French and Spanish showing that the authorities of the Regional Government of Ucayali facilitated a climate of impunity that led to the 1 September 2014 massacre. That report was signed by Carlos Flores, an astute Venezuelan diplomat and two Colombian social representatives: Union leader Myriam Luz Triana and Dr. Alberto Echavarría Saldarriaga (1957-2023), the top lawyer from the Employers. And the pertinent paragraphs of the report adopted in June 2016, less than two years after the murders, read as follows:

269. The Committee deeply regrets the murder of Mr Edwin Chota Valera, Mr Jorge Ríos Pérez, Mr Leoncio Quinticima Meléndez and Mr Francisco Pinedo, leaders of the Alto Tamaya–Saweto indigenous community, on 1 September 2014; such acts call for stern action by the authorities. The Committee requests the Government to provide the Committee of Experts with detailed information on the steps taken to identify those responsible and punish the guilty.

270. The Committee condemns violence and is saddened by all the deaths and injuries mentioned in this report. It hopes that disputes will be resolved solely through social dialogue.

The persistent impunity for the murderers of the indigenous leaders of Saweto is a shame for the Peruvian authorities and the ILO itself.

Standards review: the Governing Body breaks the “close link” between the abrogation of old conventions and the promotion of Convention No. 169

The ILO adopted four Conventions and two Recommendations concerning the working conditions of indigenous workers in dependent territories:

• the Recruiting of Indigenous Workers Convention, 1936 (No. 50);
  • the Employment Contracts (Indigenous Workers)Convention, 1939 (No. 64);
  • the Penal Sanctions (Indigenous Workers) Convention, 1939 (No. 65);
  • the Maximum Duration of Written Contracts for Indigenous Workers Recommendation, 1939 (No. 58) and the Labour Inspectorates (Indigenous Workers) Recommendation, 1939 (No. 59);
  • the Contracts of Employment  (Indigenous Workers) Convention, 1947 (No. 86), which incorporates the provisions contained in Recommendation 58 concerning the maximum duration of written contracts for indigenous workers;
  • the Abolition of Penal Sanctions (Indigenous Workers) Convention, 1955 (No. 104).

Convention No. 50 received 33 ratifications and was denounced by Belgium, Mauritius and Somalia.

Convention No. 64 received 31 ratifications and was also denounced by Belgium, Mauritius and Somalia.

Convention No. 65 received 33 ratifications and was denounced by Mauritius.

Convention No. 86 received 22 ratifications and was denounced by Australia.

Convention No. 104 received 26 ratifications.

Recommendation No. 59 (Labour Inspectorates, Indigenous Workers) was adopted three months before the outbreak of World War II and withdrawn in June 2002. Recommendation No. 58 (Maximum Duration of Written Contracts for Indigenous Workers) was withdrawn in June 2004.

In June 2018, the five Conventions on indigenous workers in dependent territories were abrogated. Four of the five Conventions – Conventions Nos 50, 64, 65 and 104 – reached a higher number of ratifications than the number of ratifications attained until that date by Convention No. 169.

Convention No. 86 of 1947 was in force in 22 countries when it was abrogated in June 2018. At that time, Convention No. 107 of 1957 had reached the same number of ratifications as Convention No. 169, which totalled 23 ratifications in force on 5 June 2019, only.

At its February/March 1977 session, the Governing Body set up a “Working Party on International Labour Standards”, whose main task was to establish the categories into which the Conventions and Recommendations should be classified, identify the instruments that needed to be revised, and select topics that might require new standards. A French distinguished delegate Gabriel Ventejol (1919-1987) chaired this working party, which reconvened in November 1984. In November 1995, the work of the working party on standards revision policy began and in February 2016, the Standards Review Mechanism Tripartite Working Group (SRM TWG) was established.

So far, specifically regarding the indigenous issue, the SRM TWG has managed to make the Organization break the “close link” that had existed between actions that tended to discard standards considered outdated and the active promotion of more recent standards.

Indeed, nothing seems to indicate that the Organization’s decisions regarding the abrogation of the five older Conventions gave due consideration to the absence of a formal invitation to ratify Convention No. 169 to the 34 countries in which these five Conventions on indigenous workers in dependent territories were in force. The 34 countries were: Bahamas, Barbados, Burundi, Cameroon, Eswatini, Grenada, Guyana, Islamic Republic of Iran, Jamaica, Japan, Kenya, Lesotho, Liberia, Libya, Malaysia, Mauritius, Morocco, Niger, Nigeria, New Zealand, Democratic Republic of Congo, United Kingdom (British territories of Anguilla, Bermuda, British Virgin Islands, Guernsey, Isle of Man, Jersey, Montserrat, and St. Helena), Rwanda, St. Lucia, Seychelles, Sierra Leone, Singapore, Somalia, Thailand, United Republic of Tanzania, Trinidad and Tobago, Uganda, Yemen and Zambia.

The five older Conventions – together with Convention No. 107 and Convention No. 169 – account for 155 ratifications by 58 countries, as illustrated by the tables below.

Most of these ratifications were registered in Africa (61), the Caribbean (27), Asia (13), Arab States (15), South America (13), Central America (11), Oceania (9), and Europe (6). The 155 ratifications of the older conventions, in force in the domestic legislation of the countries mentioned, could have been a basis for discussion between the social partners and other stakeholders in those countries to consider the ratification of Convention No. 169, as required by Article 5, c) and e), of the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144).

Ratifications per convention – regions

Africa Asia Caribbean Central America Europe Oceania Arab States South America

The profile of ratifications of Convention No. 169 shows two significant distortions. On the one hand, 24 countries have ratified Convention No. 169 – a very small number taking in account its importance to many countries. Convention No. 107 was ratified by 27 countries, a ratification target that would seem difficult to attain for Convention No. 169.

Ratifications of Convention No. 169 are distributed unevenly, with most of the ratifications in Latin America (14), six in Europe (Denmark, Germany, Luxembourg, Netherlands, Norway and Spain), one in Africa (Central African Republic), one in Asia (Nepal), one in the Caribbean (Dominica), and one in Oceania (Fiji).

However, ratifications of Convention No. 107 – and ratifications of older Conventions on indigenous workers – are more evenly distributed geographically. There are indigenous communities in vulnerable situations living in the 34 countries where the Conventions abrogated by the ILO are in force. To deprive certain indigenous communities in vulnerable situations of the protections offered by the older Conventions on indigenous workers is inconvenient to say the least.

Ratifications in force of Conventions on indigenous workers, C107 and C169

Africa Asia Caribbean Central America Europe Oceania Arab States South America

Reiterating a complex question

The decisions of the Standards Review Mechanism have broken the “close link” (see document GB.265/8/2, 265^th Session, March 1996, paragraph 24, d) ii)), between actions tending to discard standards considered outdated and the active promotion of more recent Conventions that the Organization had put in place in previous rounds.

The Organization acted hastily in abrogating older Conventions on indigenous workers in dependent territories without having issued a precise invitation to ratify Convention No. 169 to the 34 countries in which those older Conventions were in force. Indeed, it is not enough to promote the ratification of Convention No. 169 among the 17 countries where Convention No. 107 is in force – the Organization should ensure that those 34 countries that have commitments to indigenous workers in dependent territories also adhere to Convention No. 169.

Given the limited success of calls to ratify Convention No. 169 among the countries that have kept Convention No. 107 in force (I am thinking of Belgium, Bangladesh and Panama), the abrogation of Convention No. 107 is a legally reckless and politically unjustified initiative due to the lack of protection it implies for ethnic minorities that still benefit from the coverage granted by Convention No. 107 in the context of high-level conflicts.

The Convention in (post)conflict situations: brief notes

In the early 1990s, the fall of the Berlin Wall hinted that the ILO’s mandate – to achieve social justice with universal peace – would soon be fulfilled. At least in Europe, the possibility of a return to war seemed to be ruled out. However, the bloody dismemberment of the former Yugoslavia was a premonition of the discontent that would lead to the Russian invasion of Ukraine.

I experienced some important events on the premises of the ILO building on a hillside in Geneva. For example, in September 1993 – on a screen installed in the office of the head of the press service, Miguel Schapira (born in General Roca, Rio Negro Province, Argentina; died in Paris in May 2021 at the age of 69) – in the company of colleagues from different backgrounds, we watched the broadcast from the gardens of the White House of the signing of the Declaration of Principles that was to lay the foundations for peace in the Middle East.

On Tuesday, September 11, 2001, from the office of the Staff Union President, where we enjoyed a splendid view of the U.S. Mission’s facilities, we attempted to hold a telephone call with our colleagues in New York to get first-hand news of what had happened in Manhattan. David Dror correctly prophesied that we were at the beginning of a new era.

By the time I retired in 2016, Russia had completed the annexation of Crimea and opened a front in Donbass, without those developments having affected in any way the privileged relations that the ILO maintained with Moscow. Confrontations on the periphery of the Russian Federation – Transnistria, Armenia/Azerbaijan, Georgia – were given little attention, at least from the angle of international labour standards, following by default the Moscow perspective without heeding local sensitivities.

In order to avoid criticizing President Putin, the ILO addressed its criticism to the Minsk autocrat, neglecting what those in charge in Moscow were doing.

Before the Ukraine invasion, the conflict in Syria led to the displacement of millions of people, making wars and their consequences still present in Europe.

Violence against minorities in Iraq and Syria, two countries where Convention No. 107 is in force, should have made it easier for the normative approach to play a central role in securing the rights of ethnic minorities and other affected communities in ongoing conflicts.

The ratification and implementation of Convention No. 169 was one of the commitments made by all parties to end the civil wars in Guatemala and Nepal. In addition, in Mexico, when conflict broke out in Chiapas, the Convention was used to reach an agreement on indigenous rights.

In Guatemala and Nepal, ratification of the Convention was part of the package agreed upon to restore peace in countries affected by civil war, with a very strong effort by the UN Secretariat to secure the agreements. In Colombia, the framework proposed by the Convention has been the most important tool with which to protect indigenous communities. The situation of indigenous communities in the Central African Republic, the only country in Africa to ratify the Convention, was discussed in an appropriate tripartite debate at the Conference.

Colombia is a sophisticated example of a country where the Convention assisted the parties involved in a conflict to establish peace. Convention No. 169 is the only ILO instrument explicitly mentioned in the 310-page Final Agreement to End the Conflict and the Construction of a Stable and Lasting Peace in Colombia that ended the standoff with the Revolutionary Armed Forces of Colombia – People’s Army (FARC-EP) in November 2016. The Final Agreement contains a Chapter on Ethnic perspectives that establishes a specific approach for interpreting and implementing the Final Agreement and guarantees the right to prior free and informed consultation respecting constitutional and international standards.

Convention No. 169 is also the only international instrument that was cited in the Constitution rejected in the plebiscite of 4 September 2022, in Chile. The 28^th transitory provision of the rejected Constitution had provided for an Indigenous Territorial Commission […] “composed of representatives of all Indigenous peoples and nations, determined by their representative organizations, through a process of indigenous participation organized in accordance with Article 7 of Convention No. 169 of the International Labour Organization”. The Indigenous Territorial Commission was in charge of the implementation of Article 79 on lands, territories and resources of the rejected Constitution.

The protection of indigenous communities and ethnic minorities continues to be a burning issue globally today.

Ethnic identity

Personal digression

When I retired from the ILO, the Department of Labour and Social Security Law of University Jaume I of Castellón, Spain, offered me the opportunity to resume the academic activity that I had begun as assistant professor of constitutional law at the National University of Buenos Aires Faculty of Law and continued at the Centre for European Studies of the Catholic University of Louvain – UCL, Belgium.

When I left Argentina in August 1976, I landed in Belgium and, for two years, I lived in the city of Louvain, where the last Law courses were taught before the facilities moved to the Louvain-la-Neuve campus. In the very small Kingdom of Belgium, two distinct entities emerged barely thirty kilometres apart – the very old city of Louvain, dedicated to teaching in Flemish, and the new Louvain, dedicated to teaching in French. For decades, Belgium has been attempting compromises to keep the different linguistic communities under one constitutional system, which is often modified.

My mentor at UCL was Professor Etienne Cerexhe, a man very committed to the European construction, with a Christian Democrat affiliation. The Cerexhe family took me into their family circle. They all seemed passionate about the conversations about soccer that I had with his son Benoît and were extremely supportive of my success in my studies. Benoît Cerexhe is today an important political leader and still knows more about soccer than I do.

In Buenos Aires, I had seen an advertisement in the newspaper of the Institute for the Integration of Latin America – INTAL, an entity of the Inter-American Development Bank, inviting participants for a seminar on economic integration processes. Upon learning of my interest in studying in Europe, a Chilean official at INTAL suggested that I write to Professor Cerexhe, who promptly responded and supported me in obtaining a scholarship from the University and then a grant to pursue my doctorate, which was an extremely generous contribution from the AGCD, the Belgian Agency dealing with cooperation.

As I said on the day of the thesis defence, it was Professor Joe Verhoeven who suggested the research topic to me, which dealt with the legal aspects of the Generalized System of Preferences.

As decisive as the welcome I got at the University was meeting Latin American families who had taken refuge in Belgium. I was able to move from a discussion on the different nuances of Chilean politics to the reasons for following the struggle of Camilo Torres – who had spent some years in Louvain – in the Colombian jungle. For those who wanted to concentrate on legal studies, the echoes of political discussions helped the academic elaboration not to stray too far from reality.

It turned out that when I settled in Spain I was very surprised to find, as I had been when I arrived in Belgium, another constitutional crisis – the Catalan process.

The precise point of contact between the Catalan process and the matters developed in my book appears in one of the most important books I have read in recent years. It is Philippe Sands’ book entitled “East-West Street, On the origins of “genocide” and “crimes against humanity”^[9]. In his book, Sands shows that the Catalan desire to be recognized as a minority that could aspire to a state of its own was discarded when the League of Nations was created.

When writing his book, Sands drew on the history of his own family who, like Sir Hersch Lauterpacht’s family, were originally from Lemberg, the capital of the Austro-Hungarian Empire’s Galicia (now Lviv, Ukraine). Raphael Lemkin also studied Law at the University of Lemberg.

Both Lauterpacht and Lemkin, like other witnesses of the time, attempted to draw a legal consequence from the events that led to a massacre of Jews that took place in Lemberg in November 1918, shortly before delegations began gathering in Paris to establish the League of Nations and the ILO. These events, along with many others, have been the basis of the concepts of crime against humanity and genocide conceived by Sir Hersch and Raphael Lemkin, two “Lemberik” jurists.

It is thus understandable that in the last opportunity I had to visit Ukraine, in April 2019, I visited Lemberg and other towns in Galicia. My intention was to get to know the landscapes and localities where several generations of Jews had lived before emigrating to other European countries and the Americas. While I was organizing the tour, Robert Badinter – the Minister of Justice who succeeded in abolishing the death penalty in France, presided over the Constitutional Council of the French Republic, and was also a member of the French Senate – published a book titled Idiss^[10] dedicated to his maternal grandmother. In his writing, he recounts family memories of the towns of Bessarabia, Edinet and Telenesti, where his grandmother and father were born. My trip included those localities, which allowed me to see how the Jewish communities had lived in those landscapes – fertile, irrigated, wooded and meditative, had they not been incessant battlefields.

A synopsis of my walk can be found in a video recalling many of the stories of my own tribe, the Jews of the Russian Empire who anticipated the persecutions that would torment them in Europe and moved to and settled in Argentina. If the one-hour video is too long and the history books tedious, I suggest reading Replay, a book published by videogame creator Jordan Mechner. Replay is a graphic memoir recounting his own family’s story of war, exile and new beginnings.

From the Russian Empire to Argentina. Ukraine.

The map below shows the localities where my Elkin and Lerner ancestors were born and raised. Solomon Nusim Elkin, son of David Elkin and Etty Yarusky, was born in Zeguifka/Dzyhivka. Emilia Blank, daughter of Simon Blank and Clara Gurman, was born in Yampol/Yampil. Solomon and Emilia settled with her in-laws in Chernivtsi/Klein Chernovits, and from there went to Argentina. My great-grandfather Shloime Jaim Lerner and my maternal grandfather Simon were born in Chechelnik/Chichelnik. Balta was the city of the intrepid Indij,the family of Emilia, my maternal grandmother. Balta and Chichelnik are the names of the towns engraved in the marble of the tombs built in the Jewish Cemetery, very close to the City of Buenos Aires.

One of the great dames of Brazilian 20^th century literature, Clarice Lispector (1920-77), was also born in Chichelnik – evidently pronounced in my Buenos Aires family with a strong double “che” sound.

Upon arriving in Argentina, the Lerner family settled in San Miguel de Tucumán, where they set up a sugar business.

Although my father was born in a small town in the Province of Entre Ríos, a short distance from the place where David Efrón, the ILO specialist on indigenous issues who participated in the elaboration of Convention No. 107, was born, my grandfather Elkin was not a farmer. Rather, he was self-employed and made a living from informal work as a peddler, taking his merchandise to people’s homes and offering them purchases on credit.

With few exceptions, it was very hard to access any kind of formal education in the Russian Empire, but in Argentina my family, as well as millions of others immigrants, were all able to benefit from free and compulsory public education.

My mother, Renée Lerner, was the first woman in her family to finish primary and secondary education. Many women of her generation went to university, but unfortunately my grandfather was opposed to such progress. My grandfather was not, however, a conservative person. In December 1946, the year Perón won the elections and began his first term in office, grandfather Simon was elected President of the Argentine Israelite Mutual Association (AMIA), thanks to the support of the non-Zionist left. During his presidency, in April 1948, a delegation from Argentina went to Warsaw and brought back ashes from the Ghetto that were deposited in a local cemetery^[11].

Although I had considered disclosing my family’s background in the book, I hesitated to do so until President Putin’s military aggression spurred me to share my Jewish Ukrainian origins. My background has allowed me to understand what has happened to indigenous peoples throughout history when an overbearing person comes along and invents a narrative to deny his neighbours’ identity.

Among other consequences of the Russian invasion, the alleged “genocide” of Russians in Ukraine led to a very rapid hearing and decision by the International Court of Justice condemning the abusive use of the notion of genocide and trying to make hostilities cease. I did not expect that the next case on genocide would be against Israel submitted by South Africa.

I have been reluctant to express any ideas on the Middle East during my service in the ILO. It was never envisaged that I would go on mission to Israel though the closest I arrived was on mission to Beirut. At one point, a colleague from HR suggested I could be posted in Beirut, an option that I quickly refused. 

However, it was for me a privilege to be on mission in Islamic countries, like Afghanistan and Bangladesh; as well as to perform numerous activities in the Maghreb. I was aware of the importance to use words in Arabic in the comments of the Committee of Experts to clearer some concepts drafted in English or French.

With the assistance of a colleague in Cairo, the 2010 General Survey on employment instruments was translated and published in Arabic a rare case of translation of a document of more than 200 pages that not concerned the Fundamental instruments. I had been proudly meeting dozens of times Arab delegates and invited by the Labour Attaché to the Mission of Qatar in Geneva, which I passed routinely in my daily walk from home to the ILO.

I am happy to say that I pushed and obtained, the ratification by Israel of Convention No. 181 in 2012 (Convention No. 96 was in force during the British Mandate. In spite of my efforts, Egypt is still bound by Convention No. 96 and Cairo has not yet ratified Convention No. 122). It seems that the Israeli counterpart is still afraid about the cost of the translation of the long text of the Maritime Labour Convention, 2006 into Hebrew to be submitted to the Knesset, Israel is still bound by old Convention No. 147.

I add a very sad “s” and keep the conclusion of this chapter as drafted in July 2022:

Without any clarity on how the conflict[s] will end one day, my work, as well as my motivation to go to the Office every day, has been to contribute to the implementation of social and economic policies that might prevent a rehash of the circumstances that forced my ancestors to leave a continent due to a lack of respect for their Jewish identity. I have worked daily for peace and justice for all the peoples and individuals of which humanity is comprised.

Population censuses and legal tenure of indigenous lands in Latin America

Population and Legal Tenure of Indigenous Lands

Indigenous population (percentage)    Legally tenured land/total surface area (percentage)

The recognition of indigenous peoples’ right to ownership and possession of the lands they traditionally occupy, as provided for in the Convention’s Part II on Land, has a concrete impact on the area in hectares allocated to indigenous communities.

Given the consequences of applying the Convention’s requirements on the property rights of the countries that have ratified it, there is an unexpected impact of (international) labour law on civil rights (identity and property).

However, very few international labour Conventions have had as profound an impact on the practical exercise of private property rights as the one derived from the Convention. The ILO’s famous Maritime Labour Convention, 2006 (MLC, 2006), confirms the rights of shipowners to their ships and ensures social protection for some 1.6 million seafarers worldwide. In Chile, the Mapuche community alone – about 1.7 million people – is larger than all the distinguished workers who fall within the scope of the MLC, 2006.

The ILO should help to disseminate and enhance the excellent information on the legal titling of land, particularly in Paraguay, where an indigenous confederation maintains an information system that allows consultation and cross-checking of official sources and data from other interested parties. In Panama, government documentation has been prepared in consultation with indigenous communities, which explains the high-level process of land titling in a country that has nevertheless not ratified Convention No. 169.

The data processed and presented by ECLAC on indigenous demographics and titling in Colombia, Honduras, Nicaragua and Paraguay are also excellent.

The Committee of Experts could share the cartographic data mentioned in their comments in order to pinpoint the localities and understand the interest of the 27 hectares of cultural significance in Araucanía (Chile, 2018 Direct Request) and of the 23 hectares in the Honduran Moskitía (Honduras, 2021 Direct Request).

ECLAC teams should take note of the comments of the Committee of Experts. Given the long tradition of both ECLAC and the ILO of contributing to structuring public policies in Latin America, the two organizations should share available documentation and seek a joint vision on indigenous issues.

Methods to apply the consultation requirements

Thinking about the legislative experience of 15 Latin American countries (Argentina, the Plurinational State of Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Guatemala, Honduras, Mexico, Nicaragua, Panama, Paraguay, Peru and the Bolivarian Republic of Venezuela) regarding indigenous peoples’ consultation, three main approaches to establishing prior consultation procedures were identified:

Legislation = mandatory texts adopted by the legislative bodies and other relevant government bodies that become effective once promulgated and published in the official gazette/information sites.

 Protocols = official texts that are usually consulted and negotiated between government authorities and representatives of indigenous peoples’ organizations. Protocols are officially distributed and are considered binding between the parties that participate in their formulation.

Institutions = a legislative text identifies a government body responsible for ensuring that the consultations required by the Convention are carried out. The government body usually publishes a document (e.g., a manual/guide) containing guidance on how to conduct the consultation.

In some countries, indigenous communities have developed their own consultation instruments called “consultation protocols” (Brazil), “protocol of good practices” (Chile) or “autonomous protocols” (Colombia), which establish the criteria that they themselves consider that authorities and companies should comply with when seeking a relationship with communities^[12]. In these protocols, there are provisions or comments that insist that ratification of Convention No. 169 means applying the requirements of prior consultation established in Article 6 of the Convention.

Access to the legislative texts and protocols is available from a another post of this blog: https://natanelkin.com/2017/01/14/metodos-para-aplicar-la-consulta-previa/

Concluding reflections

The ILO’s mandate to achieve universal peace with social justice has been upended by the Russian aggression in Ukraine. I very much doubt that anyone would have imagined this cataclysm at the time of the adoption of the Indigenous and Tribal Peoples Convention in 1989.

In fact, the Convention was the result of an intense discussion with the active participation of some Latin American countries and was voted on a few months before the fall of the Berlin Wall. The recognition of indigenous identity met the need in Latin America for indigenous peoples to have a full place in their countries’ law and practice, consistent with the democratic aspirations of the time.

Also, in Europe, after the dissolution of the Soviet Union there was a national resurgence of those countries that had had a brief legal existence between the two continental wars of the XX^th century. This optimistic situation led the business sector to welcome the defeat of Bolshevism, although this defeat did not prevent the persistent rise of unemployment. Moreover, the banking and monetary crisis of 2008 led to generalized austerity policies in the European Union, which explains the disorientation of the ILO’s standards and supervisory mechanism, conceived for times when there was full confidence that the spread of universal principles would automatically lead to social progress.

Notwithstanding the prosperity achieved in the European Union in the three decades after the Convention was adopted, the differences in the economic and social development of the North and the South of the planet persisted and worsened, with a consequent exacerbation of extremist impulses, in contradiction with the peaceful recognition of ethnic identities underpinning the Convention.

The Convention is conceived as an opportunity to recognize the plurality of our identities, without primacy of one indigenous identity over other identities and the other rights, duties and responsibilities that each individual and each collective has in a democratic society. I borrowed the concept of plurality of identities from Amartya Sen and tried to use these ideas in the talks I held in Panama to achieve ratification of the Convention. The analogous concept of the plurality of human action by Hannah Arendt was highlighted in relation to indigenous identity in the documents of the Bolsa Família Programme in Brazil.

Even in the most dramatic circumstances, to sustain a war economy or to attain prosperity, as Albert Thomas in France and Walter Rathenau in Germany demonstrated on their respective sides during the European conflict of 1914-1918, policy makers, trade union representatives and those who assume the entrepreneurial risk seek to coordinate their efforts. Tripartite consultations in general, and indigenous consultation in particular, make it possible to assume that a correct procedure has been followed to obtain a correct result that is procedurally fair. If tripartite consultations and indigenous consultation are the correct procedure, when consultations are carried out correctly that is, results corresponding to the objectives of social justice set forth in international labour standards will be achieved.

However, some of the consultations required by the Convention may not fit a regulatory mould. An example of this are the many institutional difficulties experienced by countries that have ratified the Convention when adopting agreements based on legislative or administrative measures that directly affect indigenous peoples. It has not been simple, in any country, to bring together all the interested parties to negotiate consensual regulations. For legislative and administrative consultation, the political forces represented in parliaments and the institutions representing indigenous peoples must be involved. Parliamentary life is varied and different in each country, and the institutions representing indigenous peoples are also diverse, which explains why, to date, there are few examples of lasting consultation regulations after major political changes.

The Convention has a function of organizing rights to land and natural resources in a context of balanced development. Although the research has identified progress in terms of territorial recognition, the countries that have advanced in regulating indigenous consultation – Chile, Peru, Colombia, Ecuador, Mexico, Panama and Paraguay – are still experiencing difficulties in resolving pending issues. It is worth noting that in Colombia and Guatemala, the Judiciary had established the rules to balance the consequences of having taken initiatives in so many cases in which prior consultation was not that prior.

Although it may seem redundant, I would like to insist that tripartite consultations, like indigenous consultation, require acting in good faith, with sufficient advance notice and giving all parties involved the opportunity to exchange their views so as to reach mutually acceptable positions.

In Bolivia, Brazil, Colombia, Guatemala, Honduras, Mexico, Nicaragua, Panama and Peru, indigenous titled areas account for over ten percent of the country’s total area, which is a result of the Convention’s application. In Argentina, Costa Rica, Paraguay and Venezuela, indigenous titled areas represent only a few percent of the total area of the country. Equally, the indigenous population identified in the census is relatively small in these countries. In Latin America, indigenous lands are not located in the vicinity of the Polar Circle but are intertwined with other territories that are of interest for the countries’ economic development.

In some cases, national constitutions have recognized the possibility for indigenous communities to exercise political autonomy over their own territories. It is not the same to be the holder of territories with political autonomy in Bolivia, Colombia, Ecuador, Mexico, Nicaragua and Panama as it is to be the holder of land without political autonomy in Argentina, Brazil, Chile, Costa Rica, Guatemala, Honduras, Paraguay and Peru.

It is regrettable that the ILO technical units were not more present during the 2009 Amazonian protests in order to mitigate a serious and traumatic social confrontation. It should also be noted that in 2013, when the Rana Plaza building collapsed in Dhaka (Bangladesh), leaving around 1200 mostly indigenous women workers dead, the determined mobilization of the specialists of the competent team motivated national authorities and representatives of the textile industry to finalize an agreement on fires and building integrity in the garment sector that remains and was expanded to Pakistan.

In some cases, one is left with the impression that the focus remains on situations of violence where conflicts with indigenous communities have degenerated. Neither the ILO supervisory mechanism’s quiet attitude nor the silence of the Office contributes to dissipating the climate of violence in the Querida Amazonia. Only when impunity ends in the Amazon and those guilty of the murders and environmental crimes, as well as the public entities that share responsibility, are condemned, will the commitments of the international labour standards of peace with social justice be fulfilled.

A few proposals before finishing

There is much to be done at the ILO to give the issues covered by the Convention the importance they deserve, and the following are a few proposals:

• Return to the simultaneous request for reports on Conventions Nos 107 and 169. By re-establishing the criteria that worked perfectly until 2018 and before the pandemic, the Committee of Experts could hold simultaneous discussions with all the parties involved in the effective application of the Convention. To those in the Secretariat who will surely complain that they have too much work, we could remind them that the reports on Conventions Nos 107 and 169 are fewer than 50, i.e., a drop in the annual ocean of files. The reports on indigenous peoples’ Conventions should be dealt with on a scheduled and efficient basis, once every six years, except in exceptional circumstances.

• The sooner secrecy is abandoned and government reports and the observations of social partners are shared, the more the supervisory mechanism will be strengthened. The digitalization of files should facilitate the sharing of valuable documentation that the ILO supervisory mechanism receives concerning the Convention.

• The Office should make a major effort to obtain the ratification of Convention No. 169 by the seventeen countries that still have Convention No. 107 in force. In the Benelux countries, only Belgium has not ratified Convention No. 169, but mysteriously maintains Convention No. 107 in force. Germany and Luxembourg are the two most recent European countries that ratified Convention No. 169, joining Denmark, Netherlands, Norway and Spain.

• A General Survey on Convention No. 169 is still pending. Requesting reports from all ILO Members on the difficulties of implementation and the prospects for ratification of Convention No. 169, as well as the corresponding tripartite discussion of the General Survey at the Committee on the Application of Standards, is the most appropriate institutional means available to the Organization for gathering information on the reasons why countries have not ratified Convention No. 169. In addition, a tripartite discussion of a General Survey would be an opportunity to present the different positions and perhaps resolve whether the legal orientations promoted by the business sector correspond to a satisfactory application of Convention No. 169.

• If the refusal to proceed with a General Survey on indigenous peoples’ Conventions persists, the Governing Body could convene a tripartite meeting of experts from the 17 countries in which Convention No. 107 remains in force in order to learn about the difficulties of moving forward with the ratification of Convention No. 169.

• With the active participation of indigenous peoples’ organizations, create a fund to compensate indigenous victims of violence and abuses, noted by the supervisory mechanism. The fund could also be used to compensate possible damages caused by economic activities in an equitable manner (Article 15, paragraph 2, of Convention No. 169).

Coupled with Recommendation No. 205, the Convention should also play an important role in the ILO’s proposals for restoring peace in Europe (and elsewhere).

---

[1] Abad Faciolince, H., Lo que fue presente (Diarios 1985-2006), Alfaguara, 2020. Sonnet by Francisco de Quevedo, ¡Ah de la vida!

[2] “Direct contacts missions (…) consist of sending a representative of the ILO Director-General to a country involved in a supervisory procedure with a view to seeking a solution to the difficulties encountered in relation to the application of ratified Conventions or compliance with the recommendations of the supervisory bodies. (…) The representative of the Director-General may be an ILO official or an independent person appointed by the Director-General (magistrates of supreme courts, professors, a member of the Committee of Experts, etc) and her or his mission consists of ascertaining the facts, as well as examining on the spot the possibilities for resolving the problems in question. The representative of the Director-General and the composition of the mission have to give all the necessary guarantees of objectivity and impartiality and, following the completion of the mission, a report has to be submitted to the corresponding supervisory body.” Handbook of procedures relating to international labour Conventions and Recommendations (2019), pages 54 and 55, https://www.ilo.org/global/standards/information-resources-and-publications/publications/WCMS_697949/lang–en/index.htm.

[3] The concept of plurality of identities is taken from Amartya Sen, What Clash of Civilizations? Why religious identify isn’t destiny, March 2006.

[4] General Assembly Resolution 1514 (XV) of December 14, 1960. The list of territories can be found at: http://www.un.org/es/decolonization/nonselfgovterritories.shtml

[5] http://www.cncdh.fr/fr/actualite/avis-sur-la-place-des-peuples-autochtones-dans-les-territoires-doutre-mer-de-france

[6] See the European Commission website http://ec.europa.eu/justice/discrimination/roma/index_en.htm about the Roma, and full information about the Roma and Sintis provided by the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Co-operation in Europe (OSCE) http://www.osce.org/odihr/roma.

[7] Published in the Official Bulletin, Vol. LXXXIV, 2001, Series A, No. 1.

[8] Although the reports cannot be visualized, this hyperlink remains on archive.org: https://web.archive.org/web/20170712165410/http://www.conadi.gob.cl/index.php/component/content/article?layout=edit&id=253.

[9]. Weidenfeld & Nicolson, 2017.

[10]. Badinter, R. Idiss, 2018.

[11]. https://natanelkin.com/2021/06/17/simon-lerner-presidente-de-amia-1947-1948/

[12]. The International Work Group for Indigenous Affairs (IWGIA) published a compilation of autonomous protocols for prior indigenous consultation in October 2020.