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A Practitioner’s Perspective on the Rights of Indigenous Peoples Since the Adoption of ILO Convention No. 169

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On the eve of the Seventy-Sixth Session of the International Labour Conference, during which the International Labour Organisation (‘ILO’) adopted the text of the revised convention on the rights of indigenous and tribal peoples, ILO Convention No. 169 (‘C169’ or the ‘Convention’), Lee Swepston, then assistant to the Director of the International Labour Standards Department, asked himself whether member states would ‘ratify the revised Convention and bind themselves to observe its requirements’.[1]  Thirty years later, only twenty-three States have ratified the Convention.[2]  Of these, only one ratifying country is in Asia (Nepal) and one in Africa (the Central African Republic).  This sparse support is disappointing given that many more African and Asian states ratified its precursor, Convention No. 107 (‘C107’).

In replacing C107 with C169, the ILO was responding to the emergent indigenous peoples’ movement, which rejected C107 as founded on an out-dated integrationist approach.  In so doing, C169 recognised that indigenous peoples require special protections vis-à-vis the majority population, articulating a new way of understanding the concerns of these communities.  The principles enshrined in C169—which formalised a more expansive view of the rights of indigenous peoples in international law—have informed the way these issues have been subsequently framed and understood by the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) and by regional human rights institutions.  Although many of the concepts and terminology of international human rights law on indigenous peoples derives from the ILO Conventions, much work remains in the realm of C169’s ratification and implementation.

This article examines the lack of support for the Convention in Asia and Africa, and assesses the ways in which practitioners have sought to protect the rights of indigenous communities despite C169’s limited ratification.  First, this article will provide some background on the adoption of C169, its legal and conceptual implications, and explore why countries in Asia and Africa—where a large number of the world’s indigenous and tribal communities reside—have resisted ratifying it.  Second, it will discuss how Minority Rights Group International (‘MRG’), a non-profit organization working to secure the rights of ethnic, religious, and linguistic minorities and indigenous peoples worldwide, has sought to protect the rights of indigenous communities through strategic litigation in Africa.  MRG’s experience shows that, even though the vast majority of African states have failed to ratify C169, a more expansive view of the rights of indigenous peoples has made its way into the jurisprudence of the African human rights system.  This article will conclude by discussing some of the challenges that remain in the area of implementing the rights of indigenous peoples and suggesting further advocacy is needed to encourage the wider ratification of C169.

I. The Sparse Ratification of ILO Convention No. 169

A. The Adoption of ILO Convention No. 169

In the 1980s, the ILO began work to revise and replace its existing convention on the rights of indigenous and tribal peoples, C107, which was adopted in 1957.[3]  Members of the drafting committee recognised that the rise of the global indigenous peoples’ movement in the 1970s called the foundational premise of C107 into question.[4]  The movement rejected the Convention’s outdated integrationist approach, which implied the disappearance of indigenous communities through assimilation into the majority culture.  Instead, activists called for a framework that respected and protected the traditional cultures of indigenous and tribal peoples and recognised their right to self-determination.[5]  With this in mind, the ILO undertook to amend C107 to reflect this conceptual realignment, which required redefining the legal principles adopted to address the vulnerability of indigenous communities around the world.  Doing so re-imagined indigenous peoples as communities deserving of special protections vis-à-vis the majority population and offered a new way of understanding the concerns of these communities.

It was against this backdrop that the ILO began drafting C169 in 1986.  During the ILO conferences that led to its adoption, three significant hurdles emerged around (1) consent (and the extent to which governments have to consult with and seek the agreement of indigenous communities prior to making decisions affecting their livelihoods), (2) use of the term ‘peoples’ to describe indigenous and tribal communities, and (3) use of the word ‘territories’ to refer to the lands they inhabit.[6]  Concerns about the underlying rights that might derive from the inclusion of these terms and the interplay with national law lay at the heart of these objections.

Despite challenging negotiations around these issues during the drafting process, the parties reached a consensus—which included use of the terms ‘peoples’ and ‘territories’ and the duty to meaningfully consult indigenous and tribal communities—and adopted the final text of C169 on 27 June 1989.  Although it represented an important step toward the recognition of indigenous peoples’ rights under international law, the standard-setting exercise was far from over.  In many respects, it was only the beginning.  Some indigenous rights activists criticised the Convention for not going far enough.[7]  Others defended the compromise that was reached, arguing that the text of C169 needed to retain enough flexibility to encourage its wide ratification.[8]  Ultimately, supporters of the Convention recognised that to become effective it needed to be ratified and the standards themselves widely accepted and applied by members of the international community.

B. Failure to Ratify ILO Convention No. 169 in Asia and Africa

Although ‘the basic concepts and the very vocabulary of international human rights on indigenous and tribal peoples derives from’ the ILO Conventions, today, much work remains in the realm of ratification and implementation.[9]  Only twenty-three countries have ratified C169, the majority of which are located in Latin America.  Only one country in Asia (Nepal) and one in Africa (the Central African Republic) have ratified C169.  This is disappointing given that many more ratified its precursor, C107: Bangladesh, India and Pakistan in Asia, and Angola, Egypt, Ghana, Guinea-Bissau, Malawi and Tunisia in Africa.

Although it is hard to know precisely why African and Asian states have chosen not to ratify C169, the views expressed during the ILO drafting sessions, as well as during subsequent discussions leading to the adoption of the UNDRIP provide some insight.

In the first instance, some countries that ratified C107 clung to its integrationist approach.  The representative for Bangladesh, for example, stated that

the existing provisions of Convention No. 107 were sufficiently comprehensive.  He expressed concern that any attempt to introduce radical changes in the focus and orientation of the Convention would have detrimental effects on territorial integrity and conflict with existing constitutions and legal systems of many countries, and could discourage many countries from ratifying it.[10]

A second, and perhaps more intractable sticking point, involved an ongoing debate surrounding the applicability of the term ‘indigenous peoples’ in Asia and Africa.[11]  In submissions during the C169 drafting sessions, China flatly denied that any indigenous populations lived in their country.[12]  The Indian representative reiterated that:

(T)he tribal peoples in India were not comparable in terms of their problems, interest and rights, to the indigenous populations of certain other countries.  For this reason, attempts to set international standards on some of the complex and sensitive issues involved might prove to be counter-productive.[13]

Opposition to the relevance of the concept of ‘indigenous peoples’ in Asia stems from disagreements over how the term is defined and the underlying rationale used to justify the special protections afforded to communities that are considered ‘indigenous’.[14]  China, India, Bangladesh, Myanmar, and Indonesia have consistently expressed strong objections to the notion that ‘indigenous peoples’ live in their territories.[15]  Under this view, ‘the concept of ”indigenous peoples” is so integrally a product of the common experience of European colonial settlement as to be fundamentally inapplicable to those parts of Asia that did not experience substantial European settlement’.[16]

States also voiced trepidation about the inclusion of the terms ‘peoples’ and ‘territories’ in the Convention, which were seen as conferring rights that threatened the integrity of the sovereign state.[17]  During the drafting sessions, some governments feared that use of the term ‘peoples’ instead of populations could give rise to secessionist aspirations.[18]  India, for example ‘felt that the Committee should carefully consider the impact that the use of ‘peoples’ could have in countries beset with the problems of integration.'[19]  In discussing land rights, use of the word ‘territories’ in relation to the ancestral lands of indigenous and tribal peoples elicited similar concerns about the territorial integrity of states.[20]

Overlapping concerns exist in Africa, where states have consistently argued that all African peoples be technically considered indigenous insofar as they are descendants of populations that inhabited the continent before European colonization.[21]  During the adoption of the UNDRIP, African states maintained that ‘indigenous peoples’ lacked a clear definition, creating ‘tensions among ethnic groups and instability within sovereign states’ in a region recently recovering from ethnic conflict.[22]  They also argued that including the term ‘self-determination’ threatened the territorial integrity and political unity of African countries.[23]

The UNDRIP drafting committee ultimately overcame the scepticism expressed by African states with the help of activists in the International Working Group on Indigenous Affairs (‘IWGIA’) and the Indigenous Peoples of Africa Coordinating Committee (‘IPACC’), who lobbied intensely to persuade African states to sign onto the UNDRIP.[24]  Activists had been working closely with the African Commission on Human and Peoples’ Rights’ (‘ACHPR’) and relied on its support during the UNDRIP adoption process.[25]  The fruits of that advocacy are evident in a report by ACHPR Working Group of Experts on Indigenous Populations/Communities (‘ACHPR’s Working Group’) that concluded that ‘the African Charter recognises collective rights, formulated as ‘peoples’ rights’’ and that these rights allow indigenous communities to ‘claim protection under Articles 19-24’ as a people.[26]  In May 2007, the ACHPR issued an advisory opinion holding that many of the principles articulated in the UNDRIP were compatible with, and already covered by the African Charter.[27]

While each country has its own historical, political, and social context that informs debates over indigeneity, C169 defines indigenous peoples in a flexible way that makes self-identification as indigenous or tribal the ‘central criterion’ for determining the groups to which the Convention applies.[28]  Accordingly, countries in Asia and Africa that resist the applicability of the notion of ‘indigenous peoples’ in their territories are likely to avoid ratifying a legally binding instrument that allows groups that self-identify as indigenous or tribal to access the special protections enshrined in the Convention.  In contrast to the sparse ratification of C169, the UNDRIP was adopted with almost universal support by the General Assembly in 2007 because unlike C169, it is not a binding instrument.  This salient difference might help explain why countries that voted in favour of the UNDRIP have not ratified C169.  Approval of the UNDRIP does not obligate states to adopt and apply the standards it contains; ratifying C169 does.

I. Litigating indigenous Rights’ Cases in Africa: A Practitioner’s View

From a practitioner’s point of view, the sparse ratification of C169 has limited its utility from an advocacy perspective.  MRG’s focus on strategic litigation on behalf of indigenous communities in Africa means that C169 and the redress mechanisms available under it are not accessible to the communities our organization represents.  Moreover, the lack of meaningful models of implementation post-ratification in the twenty-three countries that have ratified C169 hampers the work of litigating on behalf of indigenous peoples in those countries.

Nevertheless, the principles enshrined in C169—which formalised a more expansive view of the rights of indigenous peoples in international law—and the conceptual shift harkened by its adoption, have informed they way these issues have been framed and understood by the United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’)[29] and by regional human rights bodies.[30]  C169 has also served as persuasive authority in human rights advocacy on behalf of indigenous people, even if most states are not bound to uphold it.  In its pleading before the African Commission, for example, MRG has cited C169 to establish self-identification as a central criterion in determining whether a group is indigenous, as well as the content and scope of consultation obligations.

MRG’s experience before the ACHPR and the African Court of Human and Peoples’ Rights (‘the Court’) confirms the African human rights system’s willingness to adopt an expansive view of the rights of indigenous peoples under the African Charter.  Two cases in particular have set important precedents that recognise indigenous and tribal peoples’ collective rights to their ancestral lands in Africa.  These cases also establish that restricting access to indigenous peoples’ lands breaches a series of inter-related rights under the African Charter.

The first case involves the Endorois in Kenya, an indigenous community evicted from their ancestral lands following the creation of the Lake Bogoria National Reserve in the 1970s.  In the first decision of its kind, the ACHPR recognised indigenous peoples’ collective rights to their traditionally owned land in Africa.  The Commission further found that by restricting the Endorois’ access to ancestral lands, Kenya had violated several rights under the African Charter, including their right to development.[31]  The ACHPR’s decision is ground-breaking because it held that Kenya had breached the African Charter by failing to seek the Endorois’ free, prior and informed consent or to adequately compensate them for the eviction.  It thus established, for the first time, that governments must engage their people in their development policies.[32]

In a second case, MRG, together with the Centre for Minority Rights Development (‘CEMIRIDE’) and the Ogiek Peoples’ Development Program (‘OPDP’), challenged the eviction of the Ogiek, another indigenous community in Kenya, who had lived in the Mau forest since time immemorial.  When the ACHPR referred the case to the Court, it became the first indigenous rights case decided by the Court.  In its historic judgment, the Court recognised that the Ogiek are an indigenous people, concluding that self-identification is among the factors relevant to determine whether a community is indigenous.[33]  The judgment also recognised the special relationship indigenous peoples have to their ancestral lands and held that the African Charter protects both individual and collective property rights.  The Court stated that the preservation of the Mau forest could not justify the lack of recognition of the Ogiek’s indigenous or tribal status nor the denial of the rights associated with that status.  It also explicitly confirmed that the Ogiek could not be held responsible for the depletion of the Mau Forest nor could it justify their eviction or the denial of access to their land to exercise their right to culture.[34]  This judgment is therefore hugely relevant to other forest-dwelling indigenous communities in Africa that have been evicted from their lands in the name of conservation.

Despite significant progress in defining and expanding the scope of indigenous and tribal peoples’ rights and applying them through UN and regional human rights bodies, much work remains in the realm of implementation.  Although MRG was able to obtain a favourable decision in the Endorois case, the Commission’s recommendations were never adequately implemented by Kenya.  To avoid the implementation problems associated with the Endorois decision, MRG has taken proactive steps to ensure that the African Court’s judgment is adequately implemented in the Ogiek case.  MRG and OPDP are collaborating with the Attorney General’s office in Kenya on this front.  The Kenyan government has established a task force that aims to drive the implementation of the judgment forward.  Although this is the second task force the Kenyan government has set up to implement the judgment, MRG is cautiously optimistic that this task force will be more effective than the first.  In the interim, the Ogiek are awaiting the Court’s judgment on reparations, which will address, inter alia, their request for an order requiring restitution of their ancestral lands.

 

I. Conclusion

MRG’s experience litigating land rights cases on behalf of indigenous and tribal communities in Africa shows that, despite the sparse ratification of C169, advocacy on behalf of a more expansive view of the rights of indigenous peoples has made its way into the jurisprudence of the African human rights system.  While much work remains in the realm of implementation, these judgments further develop the international legal standards that apply to indigenous communities around the world and are an important (and complimentary) part of the standard-setting exercise the ILO has been engaging in since it first began to address the working conditions of indigenous peoples in the 1930s.

Today, the small number of states that have ratified C169 and the lack of meaningful implementation models in the twenty-three countries that have limit its utility from a strategic litigation perspective.  The international community and the ILO must therefore continue encouraging countries in Asia and Africa to ratify the Convention.  Doing so will extend the protections of the only binding international treaty on the rights of indigenous and tribal peoples to millions of indigenous peoples in Africa and Asia today.  In Africa, the ILO should consider enlisting the ACHPR, as well as indigenous rights and civil society organizations, to encourage further ratification of C169 in a manner similar to the strategy adopted to overcome regional opposition to the UNDRIP before its adoption.

Unions too must play a role in advocating ratification.  In the only African country to have ratified C169, the Central African Republic, trade unions were active in raising the situation of indigenous peoples at the ILO in the 1990s.  Two unions—Confédération Syndicale des Travailleurs de la Centrafrique (CSTC) and the Union Syndicale des Travailleurs de Centrafrique (USTC)—have been active in subsequent workshops and discussions.[35]  Such support is often sadly lacking.  The Confédération Syndicale du Burundi (COSYBU) is on record at the ILO in 2012 denying that indigenous peoples exist in the country.[36]  Burundi is however home to the Batwa people, a highly marginalised indigenous community that has inhabited the forests of Central Africa since time immemorial.

 

 

Footnotes:

[1]        Lee Swepston, Indigenous and Tribal Peoples and International Law: Recent Developments, 30 Current Anthropology 259 (1989), p. 263.

[2]        ILO Convention No. 169 is in force in Argentina, Bolivia, Brazil, the Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Luxembourg, Mexico, Nepal, the Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela.

[3]        The ILO Governing Body called a Meeting of Experts in 1986 to advise it on the revision Convention No. 107 and decided to include it on the agendas of the 1988 and 1989 ILO Conferences.  2 Lee Swepston, The Foundations of Modern International Law on Indigenous and Tribal Peoples: The Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development Through Supervision (2018), p. 6.

[4]        See International Labour Office, Seventy-fifth Session 1988, Report VI(1): Partial revision of the Indigenous and Tribal Populations Convention (No. 107), pp. 13-19, 27-31 [hereinafter, ILO Report VI(1) (1988)].

[5]        Rather than political emancipation, here, self-determination connotes the right to remain as distinct, autonomous societies with significant control over their own destinies and the right to participate in decisions affecting their livelihoods.  See ILO Report VI(1) (1988), pp. 13-19; see also International Labour Conference, Provisional Record, Seventy-Sixth Session (1989), Appendix 25, Fourth item on the agenda: Partial revision of the Indigenous and Tribal Populations Convention, 1957 (No. 107), pp. 25/2, 25/6-25/7 [hereinafter, ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25]; Lee Swepston, Indigenous and Tribal Peoples and International Law: Recent Developments, 30 Current Anthropology 259 (April 1989), pp. 261-262.

[6]        See International Labour Conference, Provisional Record, Seventy-sixth Session, Appendix 31, Thirty-fourth sitting, Report of the Committee on Convention No. 107: Submission, Discussion and Adoption, 26 June 1989, p. 31/1 [hereinafter ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 31].

[7]        In particular, representatives from indigenous communities maintained that the Convention (1) unnecessarily limited the rights of indigenous communities as peoples under international law; (2) denied indigenous consent by only requiring consultation of indigenous communities rather than their prior agreement to measures affecting them; (3) recognised indigenous customs and institutions only to the extent they were not incompatible with national law; (4) included an unacceptably ambiguous definition of the term ‘lands’ that could be used to curtail the territorial rights of indigenous communities; (5) only recognised land rights based on present, and not past, occupation; and (6) did not sufficiently protect the ancestral lands of indigenous communities from natural resource exploitation.

[8]        See ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, pp. 25/2-25/4, 25/17, 25/21; ILO Conference, Provisional Record, Seventy-sixth Session, Appendix 31, p. 31/14.

[9]        2 Lee Swepston, The Foundations of Modern International Law on Indigenous and Tribal Peoples: The Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development Through Supervision (2018), Introduction.

[10]        ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, p. 25/3, para 12.

[11]        The non-recognition of indigenous peoples continues to be an issue, particularly in countries in Asia and Africa that deny the existence of or fail to officially recognise indigenous and tribal peoples living in their territories.  See United Nations Permanent Forum on Indigenous Issues, Report of the seventeenth session (16-27 April 2018), para. 9.

[12]        International Labour Conference, Seventy-sixth Session 1989, Report IV (2A), Partial Revision of the Indigenous and Tribal Populations Convention 1957 (No. 107), p. 3.

[13]        ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, p. 25/3, para. 12.

[14]        See generally Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int’l L. 414 (1998).

[15]        Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int’l L. 414 (1998), pp. 416-419.

[16]        Benedict Kingsbury, Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int’l L. 414 (1998), p. 418.

[17]        See generally ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, pp. 25/1-25/8, 25/16-25/23.  African states have voiced similar concerns in the context of the adoption of the United Nations Declaration of Indigenous Peoples’ Rights (‘UNDRIP’).  See infra note 25.

[18]        ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, pp. 25/2-25/8.

[19]        Moreover, India also did not consider ‘the term ‘peoples’ to be relevant to the tribal situation in his country.’  ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, p. 25/3.

[20]        See generally ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, p. 25/16-25/23.  In particular, the Indian representative expressed that ‘in view of the scarcity of land in his country, it would not be possible in all cases for his Government to dispossess the non-tribals of lands which the tribal populations had traditionally occupied. He considered that the wording of Convention No. 107 should be retained in this regard. In order to avoid the concept of nationhood, he felt that the word ‘territories’ should be replaced by ‘areas’’ emphasizing that ‘use of the term ‘territories’ without a qualification would not be acceptable’.  He also noted that ‘territories’ did not apply to the situation of the tribal peoples in India.  ILO Conference, Provisional Record, Seventy-sixth Session (1989), Appendix 25, pp. 25/3, 25/22.

[21]        African Commission on Human and Peoples’ Rights and the International Work Group for Indigenous Affairs, Indigenous Peoples in Africa: The Forgotten Peoples (2006), pp. 11-12.  See also Hanne Verber & Espen Wæhle, ‘ . . . Never Drink from the Same Cup’: An Introduction in  . . . Never Drink from the Same Cup’: Proceedings of the Conference on indigenous Peoples in Africa (Copenhagen, Hanne Verber, Jens Dahl, Fiona Wilson & Espen Wæhle eds., 1993), pp. 9-19 (noting that ‘[t]he concept of indigenous people, as applied to the African setting, is a complicated and much debated one.  But this is mostly so from the perspective of decision-makers and those dealing with international human rights issues, and less so when seen by those who themselves claim to be indigenous.  When Europeans conquered Africa a large number of self-governing peoples, as well as other groups already subject to forms of African domination or slavery, were turned into dependent tribes or ethnic groups.  When Europeans were forced to relinquish political control, the artificial colonial boundaries became the borders of post-colonial states.  Changing the meaning of these political entities also changed the roles and positions that people within these entities had vis-à-vis each other.  Indigenous communities now became politically subordinate to an African political elite drawn from the more powerful communities within the state boundaries.’).  See also Gunnvor Berge, Reflections on the Concept of Indigenous Peoples in Africa: The Case of the Taureg in  . . . Never Drink from the Same Cup’: Proceedings of the Conference on indigenous Peoples in Africa (Copenhagen, Hanne Verber, Jens Dahl, Fiona Wilson & Espen Wæhle eds., 1993), pp. 235-236; Renee Sylvain, Indigenous Peoples in Africa in Oxford Research Encyclopaedia of African History (2017); Benedict Kingsbury Indigenous Peoples in International Law: A Constructivist Approach to the Asian Controversy, 92 Am. J. Int’l L. 414 (1998), p. 416.

[22]        Draft Aide Memoire, African Group, United Nations Declaration on the Rights of Indigenous Peoples, 9 November 2006, Sections 2.0-3.0.

[23]        Draft Aide Memoire, African Group, United Nations Declaration on the Rights of Indigenous Peoples, 9 November 2006, Sections 2.0-3.0.

[24]        Renee Sylvain, Indigenous Peoples in Africa in Oxford Research Encyclopaedia of African History (2017), pp. 9-12.

[25]        IWGIA and IPACC have been working closely with the ACHPR since at least 1999, advocating for the recognition that indigenous and tribal peoples exist in Africa and a more expansive view of their rights under the African Charter.  See Renee Sylvain, Indigenous Peoples in Africa in Oxford Research Encyclopaedia of African History (2017), pp. 6-8.  Despite some initial scepticism, evidence of that advocacy is apparent in the more expansive view of the rights of indigenous and tribal peoples endorsed by the ACHPR’s Working Group of Experts on Indigenous Populations/Communities.  In 2005, it concluded that ‘irrespective of the fact that many African states do not recognise the existence of indigenous people within their territories and some take the view that the concept of indigenous people is not applicable in Africa, Article1.2 of ILO Convention 169 of 1989 grants rights and protection to people identifying themselves as indigenous in Africa’ and that the ‘principle of self-identification as expressed in ILO Convention 169 . . . is a key principle that should also guide the further deliberations of the African Commission’.  Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Adopted by the African Commission on Human and Peoples’ Rights at its 28th ordinary session (2005), pp. 112-113 [hereinafter, ACHPR’s Working Group Report, 2005].  The ACHPR has since recognised that one of the three constitutive elements of the concept of ‘indigenous peoples’ is self-identification.  African Commission on Human and Peoples’ Rights, Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declarations on the rights of Indigenous Peoples, adopted by the African Commission on Human and Peoples’ Rights at its 41st Ordinary Session, 2007, para 12 [hereinafter, Advisory Opinion on UNDRIP].

[26]        ACHPR’s Working Group Report, 2005, pp. 112-113.

[27]        The ACHPR’s Advisory Opinion concluded that the concerns of African states regarding (1) the definition of indigenous peoples, (2) the issue of self-determination, (3) the issue of land ownership and exploitation of resources, (4) the establishment of distinct political and economic institutions, and (5) the issue of national and territorial integrity were overblown.  In so doing, the Commission found that many of the rights and protections enshrined in the Declaration were compatible with (and already covered by) the African Charter.  See Advisory Opinion on UNDRIP.

[28]        Article 1 of C169 provides:

  1. This Convention applies to:

(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;

(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

  1. Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply.
  2. The use of the term peoples in this Convention shall not be construed as having any implications as regards the rights which may attach to the term under international law.

The Committee on the Elimination of Racial Discrimination has also provided that identification of an individual as belonging to a particular ethnic or racial group shall ‘be based upon self-identification by the individual concerned.’  Committee on the Elimination of Racial Discrimination, General Recommendation No. 8, Membership of Racial or Ethnic Groups Based on Self-identification, U.N. Doc. A/45/18 (1991), p. 79.  See also Report of the Committee on the Elimination of Racial Discrimination, Seventieth Session (19 February-9 March 2007), Seventy-first Session (30 July-17August 2007), U.N. Doc. A/62/18 (2007), para 328 (inviting the Democratic Republic of Congo, which denied the existence of indigenous peoples in its territory, to ‘take into account the way in which such groups perceive and define themselves’ in accordance with General Recommendation No. 8).

[29]        The depth and seriousness of the discussions that led to the adoption of the ILO conventions ‘provided the basis—though it was not often acknowledged in open session—for the adoption of UNDRIP.’  2 Lee Swepston, The Foundations of Modern International Law on Indigenous and Tribal Peoples: The Preparatory Documents of the Indigenous and Tribal Peoples Convention, and Its Development Through Supervision (2018), Introduction.

[30]        For an overview of how the Inter-American system on human rights has implemented principles derived from C169, see generally International Labour Organisation, Application of Convention No. 169 by Domestic and international Courts in Latin America (2009), pp. 23-35.  See also Renee Sylvain, Indigenous Peoples in Africa in Oxford Research Encyclopaedia of African History (2017), p. 8.

[31]        This is the first time an international human rights body has recognised the right to development.

[32]        See generally Centre for Minority Rights Development (Kenya) and Minority Rights Group (on behalf of Endorois Welfare Council) v. Kenya, African Commission of Human and Peoples’ Rights, Communication No. 276/03, 29 November 2009.  See also Lucy Claridge, Minority Rights Group Briefing: Landmark Ruling Provides Major Victory to Kenya’s Indigenous Endorois, 26 August 2010, available at https://minorityrights.org/publications/landmark-ruling-provides-major-victory-to-kenyas-indigenous-endorois-august-2010/.

[33]        Here, the Court drew inspiration from the definition set out in the 2005 report by the African Commission’s Working Group of Experts on Indigenous Populations/Communities cited above at note 29.  See African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017, para. 105.

[34]        See generally African Commission on Human and Peoples’ Rights v. Republic of Kenya, Application No. 006/2012, Judgment, 26 May 2017.  See also Lucy Claridge, Minority Rights Group Briefing: Victory for Kenya’s Ogiek as African Court Sets Major Precedent for Indigenous Peoples’ Land Rights, 8 August 2017, available at https://minorityrights.org/publications/victory-kenyas-ogiek-african-court-sets-major-precedent-indigenous-peoples-land-rights/.

[35]        See Francesca Thornberry, Working Conditions of Indigenous Women and Men in Central Africa: An Analysis Based on Available Evidence (International Labour Office Working Paper No. 2, 2017), p. 15.

[36]        Direct Request, Committee of Experts on the Application of Conventions and Recommendations, Observations from the Trade Union Confederation of Burundi (COSYBU) on Contracts of Employment (Indigenous Workers) Convention No. 64, adopted 2012, published 102nd ILC Session Report (2013), available at https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ ID:3080708.

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