.Indigenous Rights and United Nations Standards Part 4 doc

goes far beyond the reluctant language of ILO No. 107 and is very similar

to the emphasis that the ILO No. 169 has adopted.

Convention No. 169

In the years following the adoption of Convention No. 107, more and

more voices were raised supporting its revision.79 Martinez Cobo, one of

the pioneers of the revision stated in his study:

More suitable and precise substantive provisions and more practical and effec￾tive procedural principles are needed. Particularly in substantive terms, stress

must be placed on ethno-development and independence or self-determination,

instead of on ‘integration and protection’.80

Cobo supported the policies of pluralism, self-sufficiency and self￾management for indigenous peoples. These policies and the revision of

the Convention were also widely supported in the United NationsWorking

Group of Indigenous Populations as well as in a number of conferences

concerning indigenous rights. The NGO Conference on Discrimination

against Indigenous Populations in the Americas concluded in 1977 that:

international instruments, particularly ILO Convention 107, [should] be revised

to remove the emphasis on integration as the main approach to indigenous

problems and to reinforce the provisions in the Convention for special measures

in favour of indigenous peoples ...81

On 26th June 1989, the International Labour Conference adopted

the Convention concerning Indigenous and Tribal peoples in Inde￾pendent Countries (Convention No. 169), which came into force on

5th September 1991.82 The Convention, so far ratified by seventeen

states,83 represents a partial revision of Convention No. 107 and

incorporates the major changes in perceptions on indigenous issues

that have gained international support.

Procedure of the revision

After consultation at the 1986 Meeting of Experts, the ILO Governing

Body decided in November 1986 to include in the agenda of the

75th Session (1988) of the Conference the first discussion of the revision

of Convention No. 107. Before then, the Office had to prepare a report

on different countries and a questionnaire that would be submitted

to governments and should be returned at least eighteen months

before the discussion.84 The ILO advised the governments to consult

THE ILO CONVENTIONS 67

indigenous and tribal populations in their countries, when preparing

replies to the questionnaire. Although this was not a formal require￾ment of the procedure, it was considered ‘desirable’, since ‘one of the

major objectives of the proposed revision of the Convention was to

promote consultation with these populations in all activities affecting

them’.85 The ILO also invited indigenous representatives to participate

as observers in the Meetings of Experts as well as in the revision of the

Convention at the 1988 General Conference. A second report based on

the replies received by the governments, was submitted to the 1988

session of the Conference together with the proposed conclusions for

the first discussion of the revision of Convention No. 107. A committee

was established by the Conference to discuss the revisions and to pro￾duce a preliminary set of conclusions. Based on the first Conference

discussion and the replies received, a convention was drafted and circu￾lated to governments. Comments by governments, in consultation with

indigenous organisations, were then summarised and submitted to the

1989 session of the Conference, along with a further draft of the revised

Convention. At this second discussion, a final draft was concluded and

adopted by 328 votes in favour, 1 against and 49 abstentions.86

Concerns were raised about a lack of effective participation of indige￾nous peoples in the General Conference.87 Only international NGOs

were allowed to attend during the discussions of the revision, with

national and community indigenous organisations excluded. Moreover,

indigenous participation was not formal, but was restricted to indige￾nous expressions of views without an active role in the formulation of

the document.88 Indigenous peoples were not happy; during the 1987

session of the UN Working Group on Indigenous Populations a consen￾sus resolution by indigenous representatives was presented that

expressed ‘grave concern’ about the content of the questionnaire that

would form the basis of a draft revision.89 The lack of indigenous

participation has been one of the main reasons why indigenous peoples

have not taken advantage of ILO Convention No. 169 as much as they

could in view of its positive language.

Basic orientation of Convention No. 169

In the 1986 Meeting of Experts to discuss the revision of Convention No.

107, the International Labour Office noted the main reason of its revision:

in the light of developments since the adoption of the Convention in 1957 –

most particularly, the views which are frequently expressed by organisations

68 INDIGENOUS RIGHTS AND UNITED NATIONS STANDARDS

of indigenous peoples themselves at the national and international levels,

the basic orientation towards integration should be removed from the

Convention. Recognition should be given to indigenous and tribal populations

to determine the extent and pace of the economic development affecting them,

to maintain lifestyles different from those prevailing for the remainder of

national populations, and to retain and develop their own institutions, lan￾guages and cultures independently of the dominant societal groups.90

The Meeting unanimously concluded that the integrationist language of

Convention No. 107 was outdated and that the application of this

principle was ‘destructive in the modern world’:91

In practice, [integration] had become a concept which meant the extinction of

ways of life which are different from that of the dominant society. The inclusion

of this idea in the text of the Convention has also impeded indigenous and tribal

peoples from taking full advantage of the strong protections offered in some parts

of the Convention, because of the distrust its use has created amongst them.92

Accordingly, the word ‘integration’ was deleted from the Preamble.

Instead, paragraph 4 of Convention No. 169 reads:

Considering that the developments which have taken place in international law

since 1957, as well as developments in the situation of indigenous and tribal

peoples in all regions of the world, have made it appropriate to adopt new

international standards on the subject with a view to removing the assimila￾tionist orientation of earlier standards ...

The specific ‘developments in the situation of indigenous peoples’

seems largely to refer to the rise since the 1970s of the international

indigenous movement that has crystallised common indigenous aspira￾tions and claims93 and has internationalised indigenous affairs.94A second

principle that was agreed to run through the revised Convention

concerned economic development. The Meeting of Experts agreed that

the top-down approach, where ‘the national government decided what

was best for all inhabitants of the country, including indigenous pop￾ulations, and imposed its own concepts without discussion or consulta￾tion’95 could not be maintained. Since the adoption of Convention No.

107, there had been increasing recognition that development had to

involve the persons affected at all levels of decision making and imple￾mentation. The Preamble of Convention No. 169 recognises the aspira￾tions of indigenous peoples ‘to exercise control over their institutions,

ways of life and economic development and to maintain and develop

their identities, languages and religions, within the framework of the

States in which they live.96

THE ILO CONVENTIONS 69