Convention concerning Indigenous and
Tribal Peoples in Independent Countries
(Note: Date of coming into force: 05:09:1991.)
The General Conference
of the International Labour Organisation,
Having been convened
at Geneva by the Governing Body of the International Labour Office, and having
met in its 76th Session on 7 June 1989, and
Noting the
international standards contained in the Indigenous and Tribal Populations
Convention and Recommendation, 1957, and
Recalling the terms of
the Universal Declaration of Human Rights, the International Covenant on
Economic, Social and Cultural Rights, the International Covenant on Civil and
Political Rights, and the many international instruments on the prevention of
discrimination, and
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 assimilationist orientation of the
earlier standards, and
Recognising the
aspirations of these peoples to exercise control over their own 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, and
Noting that in many
parts of the world these peoples are unable to enjoy their fundamental human
rights to the same degree as the rest of the population of the States within
which they live, and that their laws, values, customs and perspectives have
often been eroded, and
Calling attention to
the distinctive contributions of indigenous and tribal peoples to the cultural
diversity and social and ecological harmony of humankind and to international
co-operation and understanding, and
Noting that the
following provisions have been framed with the co-operation of the United
Nations, the Food and Agriculture Organisation of the United Nations, the
United Nations Educational, Scientific and Cultural Organisation and the World
Health Organisation, as well as of the Inter-American Indian Institute, at
appropriate levels and in their respective fields, and that it is proposed to
continue this co-operation in promoting and securing the application of these
provisions, and
Having decided upon
the adoption of certain proposals with regard to the partial revision of the
Indigenous and Tribal Populations Convention, 1957 (No. 107), which is the
fourth item on the agenda of the session, and
Having determined that
these proposals shall take the form of an international Convention revising the
Indigenous and Tribal Populations Convention, 1957;
adopts the
twenty-seventh day of June of the year one thousand nine hundred and
eighty-nine, the following Convention, which may be cited as the Indigenous and
Tribal Peoples Convention, 1989;
Part I. General Policy
Article 1
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.
2. 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.
3. 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.
Article 2
1. Governments shall
have the responsibility for developing, with the participation of the peoples
concerned, co-ordinated and systematic action to protect the rights of these
peoples and to guarantee respect for their integrity.
2. Such action shall
include measures for:
(a) ensuring that
members of these peoples benefit on an equal footing from the rights and
opportunities which national laws and regulations grant to other members of the
population;
(b) promoting the full
realisation of the social, economic and cultural rights of these peoples with
respect for their social and cultural identity, their customs and traditions
and their institutions;
(c) assisting the
members of the peoples concerned to eliminate socio-economic gaps that may
exist between indigenous and other members of the national community, in a
manner compatible with their aspirations and ways of life.
Article 3
1. Indigenous and
tribal peoples shall enjoy the full measure of human rights and fundamental
freedoms without hindrance or discrimination. The provisions of the Convention
shall be applied without discrimination to male and female members of these
peoples.
2. No form of force or
coercion shall be used in violation of the human rights and fundamental
freedoms of the peoples concerned, including the rights contained in this
Convention.
Article 4
1. Special measures
shall be adopted as appropriate for safeguarding the persons, institutions,
property, labour, cultures and environment of the peoples concerned.
2. Such special
measures shall not be contrary to the freely-expressed wishes of the peoples
concerned.
3. Enjoyment of the
general rights of citizenship, without discrimination, shall not be prejudiced
in any way by such special measures.
Article 5
In applying the
provisions of this Convention:
(a) the social,
cultural, religious and spiritual values and practices of these peoples shall
be recognised and protected, and due account shall be taken of the nature of
the problems which face them both as groups and as individuals;
(b) the integrity of
the values, practices and institutions of these peoples shall be respected;
(c) policies aimed at
mitigating the difficulties experienced by these peoples in facing new
conditions of life and work shall be adopted, with the participation and
co-operation of the peoples affected.
Article 6
1. In applying the
provisions of this Convention, governments shall:
(a) consult the
peoples concerned, through appropriate procedures and in particular through
their representative institutions, whenever consideration is being given to
legislative or administrative measures which may affect them directly;
(b) establish means by
which these peoples can freely participate, to at least the same extent as
other sectors of the population, at all levels of decision-making in elective
institutions and administrative and other bodies responsible for policies and
programmes which concern them;
(c) establish means
for the full development of these peoples' own institutions and initiatives,
and in appropriate cases provide the resources necessary for this purpose.
2. The consultations
carried out in application of this Convention shall be undertaken, in good
faith and in a form appropriate to the circumstances, with the objective of
achieving agreement or consent to the proposed measures.
Article 7
1. The peoples
concerned shall have the right to decide their own priorities for the process
of development as it affects their lives, beliefs, institutions and spiritual
well-being and the lands they occupy or otherwise use, and to exercise control,
to the extent possible, over their own economic, social and cultural
development. In addition, they shall participate in the formulation,
implementation and evaluation of plans and programmes for national and regional
development which may affect them directly.
2. The improvement of
the conditions of life and work and levels of health and education of the
peoples concerned, with their participation and co-operation, shall be a matter
of priority in plans for the overall economic development of areas they
inhabit. Special projects for development of the areas in question shall also
be so designed as to promote such improvement.
3. Governments shall
ensure that, whenever appropriate, studies are carried out, in co-operation
with the peoples concerned, to assess the social, spiritual, cultural and
environmental impact on them of planned development activities. The results of
these studies shall be considered as fundamental criteria for the
implementation of these activities.
4. Governments shall
take measures, in co-operation with the peoples concerned, to protect and
preserve the environment of the territories they inhabit.
Article 8
1. In applying national
laws and regulations to the peoples concerned, due regard shall be had to their
customs or customary laws.
2. These peoples shall
have the right to retain their own customs and institutions, where these are
not incompatible with fundamental rights defined by the national legal system
and with internationally recognised human rights. Procedures shall be
established, whenever necessary, to resolve conflicts which may arise in the
application of this principle.
3. The application of
paragraphs 1 and 2 of this Article shall not prevent members of these peoples
from exercising the rights granted to all citizens and from assuming the
corresponding duties.
Article 9
1. To the extent
compatible with the national legal system and internationally recognised human
rights, the methods customarily practised by the peoples concerned for dealing
with offences committed by their members shall be respected.
2. The customs of
these peoples in regard to penal matters shall be taken into consideration by
the authorities and courts dealing with such cases.
Article 10
1. In imposing
penalties laid down by general law on members of these peoples account shall be
taken of their economic, social and cultural characteristics.
2. Preference shall be
given to methods of punishment other than confinement in prison.
Article 11
The exaction from
members of the peoples concerned of compulsory personal services in any form,
whether paid or unpaid, shall be prohibited and punishable by law, except in
cases prescribed by law for all citizens.
Article 12
The peoples concerned
shall be safeguarded against the abuse of their rights and shall be able to
take legal proceedings, either individually or through their representative
bodies, for the effective protection of these rights. Measures shall be taken
to ensure that members of these peoples can understand and be understood in
legal proceedings, where necessary through the provision of interpretation or
by other effective means.
Part II. Land
Article 13
1. In applying the
provisions of this Part of the Convention governments shall respect the special
importance for the cultures and spiritual values of the peoples concerned of
their relationship with the lands or territories, or both as applicable, which
they occupy or otherwise use, and in particular the collective aspects of this
relationship.
2. The use of the term
lands in Articles 15 and 16 shall include the concept of territories,
which covers the total environment of the areas which the peoples concerned
occupy or otherwise use.
Article 14
1. The rights of
ownership and possession of the peoples concerned over the lands which they
traditionally occupy shall be recognised. In addition, measures shall be taken
in appropriate cases to safeguard the right of the peoples concerned to use
lands not exclusively occupied by them, but to which they have traditionally
had access for their subsistence and traditional activities. Particular
attention shall be paid to the situation of nomadic peoples and shifting
cultivators in this respect.
2. Governments shall
take steps as necessary to identify the lands which the peoples concerned
traditionally occupy, and to guarantee effective protection of their rights of
ownership and possession.
3. Adequate procedures
shall be established within the national legal system to resolve land claims by
the peoples concerned.
Article 15
1. The rights of the
peoples concerned to the natural resources pertaining to their lands shall be
specially safeguarded. These rights include the right of these peoples to
participate in the use, management and conservation of these resources.
2. In cases in which
the State retains the ownership of mineral or sub-surface resources or rights
to other resources pertaining to lands, governments shall establish or maintain
procedures through which they shall consult these peoples, with a view to
ascertaining whether and to what degree their interests would be prejudiced,
before undertaking or permitting any programmes for the exploration or
exploitation of such resources pertaining to their lands. The peoples concerned
shall wherever possible participate in the benefits of such activities, and
shall receive fair compensation for any damages which they may sustain as a
result of such activities.
Article 16
1. Subject to the
following paragraphs of this Article, the peoples concerned shall not be
removed from the lands which they occupy.
2. Where the
relocation of these peoples is considered necessary as an exceptional measure,
such relocation shall take place only with their free and informed consent.
Where their consent cannot be obtained, such relocation shall take place only
following appropriate procedures established by national laws and regulations,
including public inquiries where appropriate, which provide the opportunity for
effective representation of the peoples concerned.
3. Whenever possible,
these peoples shall have the right to return to their traditional lands, as
soon as the grounds for relocation cease to exist.
4. When such return is
not possible, as determined by agreement or, in the absence of such agreement,
through appropriate procedures, these peoples shall be provided in all possible
cases with lands of quality and legal status at least equal to that of the
lands previously occupied by them, suitable to provide for their present needs
and future development. Where the peoples concerned express a preference for
compensation in money or in kind, they shall be so compensated under
appropriate guarantees.
5. Persons thus
relocated shall be fully compensated for any resulting loss or injury.
Article 17
1. Procedures
established by the peoples concerned for the transmission of land rights among
members of these peoples shall be respected.
2. The peoples concerned
shall be consulted whenever consideration is being given to their capacity to
alienate their lands or otherwise transmit their rights outside their own
community.
3. Persons not
belonging to these peoples shall be prevented from taking advantage of their
customs or of lack of understanding of the laws on the part of their members to
secure the ownership, possession or use of land belonging to them.
Article 18
Adequate penalties
shall be established by law for unauthorised intrusion upon, or use of, the
lands of the peoples concerned, and governments shall take measures to prevent
such offences.
Article 19
National agrarian
programmes shall secure to the peoples concerned treatment equivalent to that
accorded to other sectors of the population with regard to: (a) the provision
of more land for these peoples when they have not the area necessary for
providing the essentials of a normal existence, or for any possible increase in
their numbers;
(b) the provision of
the means required to promote the development of the lands which these peoples
already possess.
Part III. Recruitment
and Conditions of Employment
Article 20
1. Governments shall,
within the framework of national laws and regulations, and in co-operation with
the peoples concerned, adopt special measures to ensure the effective
protection with regard to recruitment and conditions of employment of workers
belonging to these peoples, to the extent that they are not effectively
protected by laws applicable to workers in general.
2. Governments shall
do everything possible to prevent any discrimination between workers belonging
to the peoples concerned and other workers, in particular as regards:
(a) admission to
employment, including skilled employment, as well as measures for promotion and
advancement;
(b) equal remuneration
for work of equal value;
(c) medical and social
assistance, occupational safety and health, all social security benefits and
any other occupationally related benefits, and housing;
(d) the right of
association and freedom for all lawful trade union activities, and the right to
conclude collective agreements with employers or employers' organisations.
3. The measures taken
shall include measures to ensure:
(a) that workers
belonging to the peoples concerned, including seasonal, casual and migrant
workers in agricultural and other employment, as well as those employed by
labour contractors, enjoy the protection afforded by national law and practice
to other such workers in the same sectors, and that they are fully informed of
their rights under labour legislation and of the means of redress available to
them;
(b) that workers
belonging to these peoples are not subjected to working conditions hazardous to
their health, in particular through exposure to pesticides or other toxic
substances;
(c) that workers
belonging to these peoples are not subjected to coercive recruitment systems,
including bonded labour and other forms of debt servitude;
(d) that workers
belonging to these peoples enjoy equal opportunities and equal treatment in
employment for men and women, and protection from sexual harassment.
4. Particular
attention shall be paid to the establishment of adequate labour inspection
services in areas where workers belonging to the peoples concerned undertake
wage employment, in order to ensure compliance with the provisions of this Part
of this Convention.
Part IV. Vocational
Training, Handicrafts and Rural Industries
Article 21
Members of the peoples
concerned shall enjoy opportunities at least equal to those of other citizens
in respect of vocational training measures.
Article 22
1. Measures shall be
taken to promote the voluntary participation of members of the peoples
concerned in vocational training programmes of general application.
2. Whenever existing
programmes of vocational training of general application do not meet the
special needs of the peoples concerned, governments shall, with the
participation of these peoples, ensure the provision of special training
programmes and facilities.
3. Any special
training programmes shall be based on the economic environment, social and
cultural conditions and practical needs of the peoples concerned. Any studies
made in this connection shall be carried out in co-operation with these peoples,
who shall be consulted on the organisation and operation of such programmes.
Where feasible, these peoples shall progressively assume responsibility for the
organisation and operation of such special training programmes, if they so
decide.
Article 23
1. Handicrafts, rural
and community-based industries, and subsistence economy and traditional
activities of the peoples concerned, such as hunting, fishing, trapping and
gathering, shall be recognised as important factors in the maintenance of their
cultures and in their economic self-reliance and development. Governments
shall, with the participation of these people and whenever appropriate, ensure
that these activities are strengthened and promoted.
2. Upon the request of
the peoples concerned, appropriate technical and financial assistance shall be
provided wherever possible, taking into account the traditional technologies
and cultural characteristics of these peoples, as well as the importance of
sustainable and equitable development.
Part V. Social Security
and Health
Article 24
Social security
schemes shall be extended progressively to cover the peoples concerned, and
applied without discrimination against them.
Article 25
1. Governments shall
ensure that adequate health services are made available to the peoples
concerned, or shall provide them with resources to allow them to design and
deliver such services under their own responsibility and control, so that they
may enjoy the highest attainable standard of physical and mental health.
2. Health services
shall, to the extent possible, be community-based. These services shall be
planned and administered in co-operation with the peoples concerned and take
into account their economic, geographic, social and cultural conditions as well
as their traditional preventive care, healing practices and medicines.
3. The health care
system shall give preference to the training and employment of local community
health workers, and focus on primary health care while maintaining strong links
with other levels of health care services.
4. The provision of
such health services shall be co-ordinated with other social, economic and
cultural measures in the country.
Part VI. Education and
Means of Communication
Article 26
Measures shall be
taken to ensure that members of the peoples concerned have the opportunity to
acquire education at all levels on at least an equal footing with the rest of
the national community.
Article 27
1. Education
programmes and services for the peoples concerned shall be developed and
implemented in co-operation with them to address their special needs, and shall
incorporate their histories, their knowledge and technologies, their value
systems and their further social, economic and cultural aspirations.
2. The competent authority
shall ensure the training of members of these peoples and their involvement in
the formulation and implementation of education programmes, with a view to the
progressive transfer of responsibility for the conduct of these programmes to
these peoples as appropriate.
3. In addition,
governments shall recognise the right of these peoples to establish their own
educational institutions and facilities, provided that such institutions meet
minimum standards established by the competent authority in consultation with
these peoples. Appropriate resources shall be provided for this purpose.
Article 28
1. Children belonging
to the peoples concerned shall, wherever practicable, be taught to read and
write in their own indigenous language or in the language most commonly used by
the group to which they belong. When this is not practicable, the competent
authorities shall undertake consultations with these peoples with a view to the
adoption of measures to achieve this objective.
2. Adequate measures
shall be taken to ensure that these peoples have the opportunity to attain
fluency in the national language or in one of the official languages of the
country.
3. Measures shall be
taken to preserve and promote the development and practice of the indigenous
languages of the peoples concerned.
Article 29
The imparting of
general knowledge and skills that will help children belonging to the peoples
concerned to participate fully and on an equal footing in their own community
and in the national community shall be an aim of education for these peoples.
Article 30
1. Governments shall
adopt measures appropriate to the traditions and cultures of the peoples
concerned, to make known to them their rights and duties, especially in regard
to labour, economic opportunities, education and health matters, social welfare
and their rights deriving from this Convention.
2. If necessary, this
shall be done by means of written translations and through the use of mass
communications in the languages of these peoples.
Article 31
Educational measures
shall be taken among all sections of the national community, and particularly
among those that are in most direct contact with the peoples concerned, with
the object of eliminating prejudices that they may harbour in respect of these peoples.
To this end, efforts shall be made to ensure that history textbooks and other
educational materials provide a fair, accurate and informative portrayal of the
societies and cultures of these peoples.
Part VII. Contacts and
Co-operation across Borders
Article 32
Governments shall take
appropriate measures, including by means of international agreements, to
facilitate contacts and co-operation between indigenous and tribal peoples
across borders, including activities in the economic, social, cultural,
spiritual and environmental fields.
Part VIII. Administration
Article 33
1. The governmental
authority responsible for the matters covered in this Convention shall ensure
that agencies or other appropriate mechanisms exist to administer the
programmes affecting the peoples concerned, and shall ensure that they have the
means necessary for the proper fulfilment of the functions assigned to them.
2. These programmes
shall include:
(a) the planning,
co-ordination, execution and evaluation, in co-operation with the peoples
concerned, of the measures provided for in this Convention;
(b) the proposing of
legislative and other measures to the competent authorities and supervision of
the application of the measures taken, in co-operation with the peoples
concerned.
Part IX. General
Provisions
Article 34
The nature and scope
of the measures to be taken to give effect to this Convention shall be
determined in a flexible manner, having regard to the conditions characteristic
of each country.
Article 35
The application of the
provisions of this Convention shall not adversely affect rights and benefits of
the peoples concerned pursuant to other Conventions and Recommendations,
international instruments, treaties, or national laws, awards, custom or
agreements.
PART X. PROVISIONS
Article 36
This Convention
revises the Indigenous and Tribal Populations Convention, 1957.
Article 37
The formal
ratifications of this Convention shall be communicated to the Director-General
of the International Labour Office for registration.
Article 38
1. This Convention
shall be binding only upon those Members of the International Labour
Organisation whose ratifications have been registered with the
Director-General.
2. It shall come into
force twelve months after the date on which the ratifications of two Members
have been registered with the Director-General.
3. Thereafter, this
Convention shall come into force for any Member twelve months after the date on
which its ratification has been registered.
Article 39
1. A Member which has
ratified this Convention may denounce it after the expiration of ten years from
the date on which the Convention first comes into force, by an act communicated
to the Director-General of the International Labour Office for registration.
Such denunciation shall not take effect until one year after the date on which
it is registered.
2. Each Member which
has ratified this Convention and which does not, within the year following the
expiration of the period of ten years mentioned in the preceding paragraph,
exercise the right of denunciation provided for in this Article, will be bound
for another period of ten years and, thereafter, may denounce this Convention
at the expiration of each period of ten years under the terms provided for in
this Article.
Article 40
1. The
Director-General of the International Labour Office shall notify all Members of
the International Labour Organisation of the registration of all ratifications
and denunciations communicated to him by the Members of the Organisation.
2. When notifying the
Members of the Organisation of the registration of the second ratification
communicated to him, the Director-General shall draw the attention of the
Members of the Organisation to the date upon which the Convention will come
into force.
Article 41
The Director-General
of the International Labour Office shall communicate to the Secretary-General
of the United Nations for registration in accordance with Article 102 of the
Charter of the United Nations full particulars of all ratifications and acts of
denunciation registered by him in accordance with the provisions of the
preceding Articles.
Article 42
At such times as it
may consider necessary the Governing Body of the International Labour Office
shall present to the General Conference a report on the working of this
Convention and shall examine the desirability of placing on the agenda of the
Conference the question of its revision in whole or in part.
Article 43
1. Should the
Conference adopt a new Convention revising this Convention in whole or in part,
then, unless the new Convention otherwise provides-
(a) the ratification
by a Member of the new revising Convention shall ipso jure involve the
immediate denunciation of this Convention, notwithstanding the provisions of
Article 39 above, if and when the new revising Convention shall have come into
force;
(b) as from the date
when the new revising Convention comes into force this Convention shall cease
to be open to ratification by the Members.
2. This Convention
shall in any case remain in force in its actual form and content for those
Members which have ratified it but have not ratified the revising Convention.
Article 44
The English and French
versions of the text of this Convention are equally authoritative.