ILO 169: Legal Memorandum on Compliance Mechanisms

Posted November 18th, 2009 by liz
in

FROM: POLLY GRACE [LEGAL EXTERN]
DATE: SEPTEMBER 11 2009
RE: INTERNATIONAL COMPLIANCE MECHANISMS FOR ILO 169

This memo is concerned with the International Labour Organization’s (ILO) Convention No. 169, June 27 1989 on Indigenous and Tribal Peoples. I understand that several Amigos have enquired about specific mechanisms for enforcing the Convention in an international forum; and this memo seeks to respond to this enquiry. The memo outlines the basic principles of the Convention and international mechanisms for its enforcement.

ILO CONVENTION NO. 169 ON INDIGENOUS AND TRIBAL PEOPLE

Convention No. 169 is in force, and has been ratified by 20 States [http://www.ilo.org/ilolex/cgi-lex/ratifce.pl?C169]. The basic principles contained in the Convention include non-discrimination towards Indigenous and Tribal peoples (art. 3, 4, 20); special measures to safeguard the persons, institutions, property, labour, cultures and environment of these people (art. 4); recognition of the cultural identities of indigenous and tribal people; consultation and participation of indigenous and tribal people on issues that affect them; (art. 6) and the right of indigenous and tribal people to decide priorities for development (art. 7).

State parties that have ratified the Convention are responsible for developing co-ordinated action and ensuring appropriate mechanisms exist to protect the rights of indigenous and tribal peoples (art. 3, 33). The primary focus of the Convention is on consultation and participation, and, according the ILO website, it is intended to operate as a tool to stimulate dialogue between governments and indigenous and tribal peoples.

COMPLIANCE MECHANISMS

Supervision and compliance with ILO conventions are governed by the ILO Constitution. The ILO Governing Body and the Committee of Experts on the Application of Conventions and Recommendations are jointly responsible for overseeing the application of the Constitution and supervising the implementation of conventions. Under the supervision and compliance system, direct complaints to the Governing Body or Committee of Experts can only be brought by workers’ or employers’ organisations.

Upon ratification of Convention 169 state parties have one year to ensure domestic legislation and policy comply with the Convention. At the end of this period, the Convention becomes legally binding and state parties are subject to the supervision of the Committee of Experts. State parties are required to report to the Committee of Experts every five years regarding the implementation of the Convention, although interim reports may be requested more regularly when there are perceived issues of concern. Reports must indicate whether domestic laws are in compliance with the Convention and identify mechanisms that are being used to ensure the Convention is also implemented on a practical level. After reviewing a report, the Committee of Experts can request further information, or will publish observations addressing a state party’s compliance.

The ILO supervisory system does not allow individuals or indigenous organisations to directly file complaints about convention violations. However, where there is an alleged violation of the Convention by a state party, workers’ or employers’ organisations can submit a complaint on behalf of indigenous people to the Governing Body of the ILO. Complaints for violation of the Convention are made under Article 24 of the ILO Constitution in the form of a Representation. According to ILO Standing Orders, a Representation must:

a)      be in writing;

b)      come from an industrial association of employers or workers;

c)      make specific reference to art. 24 of the ILO Constitution;

d)     concern a Member of the ILO;

e)      refer to a convention to which the Member against which it is made is a party; and

f)       indicate in what way the Member has failed to observe, within its jurisdiction, the Convention.

(http://training.itcilo.org/ils/ils_procedures/training_materials/english...)

Upon receiving the Representation, the Governing Body designates a tripartite committee to examine it, and provides a copy to the relevant state party which is given an opportunity to reply to the allegations. After investigating the Representation, the Tripartite Committee submits a report, containing its conclusions and any recommended course of action for the state party, to the Governing Body. The Governing Body may then publish the report and/or ask the Committee of Experts to monitor the situation and ensure the state party implements the recommendations of the Tripartite Committee. Article 24 Representations involving Convention 169 have been brought against many countries including, Argentina, Bolivia, Brazil, Colombia, Denmark, Ecuador, Guatemala, Mexico and Peru. (A list of Representations made under Article 24 is available at: http://www.ilo.org/ilolex/english/repframeE.htm; but note these are not limited to Convention No. 169 Representations).

Although indigenous people do not have standing to directly bring a Representation, they can informally send information to the ILO related to legislation, policy or court decisions that are allegedly in violation of the Convention. The ILO indicates that for these purposes, the actual texts of legislation or court decisions are regarded as independent, verifiable information, as opposed to subjective written submissions which can be filed by workers’ or employers’ organizations. (For further information see http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---normes/documents/p..., page 3; and http://www.pro169.org/res/materials/en/convention169/Leaflet%20on%20ILO%....

INTERACTION WITH OTHER INTERNATIONAL TREATIES AND BODIES

The provisions of Convention 169 are directly compatible with the United Nations Declaration on the Rights of Indigenous People, and the two instruments are regarded as mutually enforcing. However, the Declaration does not provide any mechanisms to monitor its implementation, although UN agencies are expected to support the realization of its provisions.

CONCLUSION

Despite the recent introduction of the UN Declaration on the Rights of the Indigenous People, ILO Convention No. 169 remains important as the only legally binding international instrument on the rights of indigenous and tribal people. The Convention contains provision for supervision, complaint – though not directly by indigenous people – and enforcement. Indigenous people can use the Convention by bringing complaints through employers’ or workers’ organisations; or by directly submitting materials to the ILO that evidence a violation of the Convention. Through these mechanisms the Convention can operate to support indigenous participation in decision making and bring international scrutiny to domestic processes.