<h2>THE 1989 ILO CONVENTION ON INDIGENOUS POPULATIONS: NEW STANDARDS?*</h2>

THE 1989 ILO CONVENTION ON INDIGENOUS POPULATIONS: NEW STANDARDS?*

By Natan Lerner**

I. INTRODUCTION

No attempt to deal with the problems of race, discrimination and related matters in international law could be complete without consideration of the position of indigenous populations or peoples.[1] The subject is closely connected to such issues as minority rights, group rights in general, self-determination and self-government, affirmative action, forced assimilation, and other crucial topics of modern international law.

While in past centuries international lawyers paid some attention to the problem of indigenous populations from a humanitarian viewpoint,[2] it was only recently that positive international law in this respect was drafted. Traditional international law, mainly inter-State law, did not regard aboriginal populations as subjects of international law. They were not considered to be colonial peoples, as this term was understood in the United Nations era, and entitled to self-determination, as this right is interpreted in international law today. It was only after recognition of the notion of group rights in recent instruments, and after active lobbying by spokesmen for indigenous groups, that steps were taken to introduce the subject into positive legislation, albeit not to the extent desired by the interested groups.[3]

A short overview of the changing approach over the last century may be useful.[4] Both the Berlin (1884--85)[5] and the Brussels (1889--90) Conferences on Africa [6] dealt with the necessity of improving the conditions and well-being of the aborigines, or native tribes. At the end of World War I, a doctrine was developed based on the idea of "trusteeship". Article 22 of the League of Nations Covenant [7] dealt with "peoples not yet able to stand by themselves under the strenuous conditions of the modern world" and saw in their "well-being and development" a "sacred trust of civilisation". Under Article 23, members of the League "undertake to secure just treatment of the native inhabitants of territories under their control".

The trend during the League of Nations period was not to recognize any collective or group rights of these populations. A British-American arbitration panel affirmed that tribes were not legal units of international law and that the agreements concluded with aboriginal groups were not treaties according to international law, but unilateral acts pertaining to domestic law.[8] The Permanent Court of International Justice did not recognize any international personality of the aboriginal tribes.[9] Article 1 of the United Nations Charter and Article 1 of both 1966 Covenants (on Civil and Political Rights, and Economic, Social and Cultural Rights) proclaim self-determination as a right belonging to peoples, but the notion of people was not elaborated.[l0] Third World countries advanced the so-called "salt water" or "blue water" principle, recognizing the right to self-determination only to territories colonized by invaders from abroad. This was the spirit of UN General Assembly resolutions and declarations on decolonization. Disruption of the territorial integrity of States was ruled out.

Neither the Universal Declaration of Human Rights, the Covenants, nor the UN Convention on Racial Discrimination refers specifically to indigenous populations. The same is also true of the European and American human rights instruments. The International Labour Organisation (ILO) was an exception to this trend.

The practical aspect of this discussion and its relevance to hundreds of millions of persons cannot be ignored. It is estimated that indigenous populations, aborigines, and tribal peoples, today include some 300 million human beings.[11] The majority of them live in Asia and the Americas, and some in the Polar region and Northern Europe. The subject is of great importance and has generated legislative and jurisprudential activity.[l2] In Africa it seems difficult to determine which populations or groups should be considered indigenous.[l3]

II. DEFINITION

Defining indigenous populations is difficult. When international bodies discussed the subject, they frequently became embroiled in political controversies. Several States objected to the use of the term "indigenous" with regard to parts of their populations. Latin American States showed great sensitivity with regard to the definitional problems. On the other hand, representatives of indigenous organizations claimed the exclusive right to define the term "indigenous".

Jose R. Martinez Cobo, Special Rapporteur of the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, accepting the principle of self-perception as fundamental, defines indigenous populations as follows: [l4]

indigenous communities, peoples and nations [15] are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories, or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.

Elaborating on this description, Martinez Cobo points out that the above-mentioned historical continuity may consist, inter alia, of one or more of the following factors:

(a) Occupation of ancestral lands;

(b) Common ancestry with the original occupants of these lands;

(c) Culture in general, or specific manifestations such as religion, a tribal system, membership in an indigenous community, dress, means of livelihood and life-style,

(d) Language; and

(e) Residence.

The group or community should enjoy the "sovereign right and power" to decide who belongs to it, without external interference. Accordingly, "on an individual basis, an indigenous person is one who belongs to these indigenous populations through self-identification as indigenous (group consciousness) and is recognized and accepted by these populations as one of its members (acceptance by the group)."[16]

The 1957 ILO Convention (No. 107) concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations of Independent Countries[17] ratified by very few States deals with:

tribal or semi-tribal populations in independent countries whose social and economic conditions are at a less advanced stage than the stage reached by other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions and by special laws or regulations. (Article 1(a))

Also described as indigenous are those populations regarded as such:

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 and which, irrespective of their legal status, live more in conformity with the social, economic and cultural institutions of that time than with the institutions of the nation of which they belong. (Article (1)(b))

A UN Secretariat document proposed to define as "indigenous" those groups that have a historical continuity with pre-invasion and precolonial societies and which "consider themselves distinct from other sectors of the societies now prevailing in those territories".[l8] The emphasis on the historical element is useful to distinguish indigenous populations from minorities in general---a controversial issue. Indigenous populations existed in the respective territories prior to their settlement by some groups which became dominant. Spokesmen for indigenous groups have frequently advanced the argument that where there has not been consent on their part to be incorporated into another people, the indigenous group remains entitled to exercise its right to self-determination, regardless of geography.[l9]

The 1989 ILO Convention adopts self-identification as a fundamental criterion for determining the groups to which it applies (Article 1(2)). The Convention distinguishes between "tribal peoples" and "peoples" in independent countries. "Tribal peoples,' are those:

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 (Article 1(a)).

Indigenous "peoples" are those who are regarded as such:

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. (Article l(b)).

The definition in the new ILO Convention produced considerable controversy, as was to be expected.[20] It was argued that the text used terms in senses which were different from those used in international law. Several governmental representatives expressed definite preference for the word "populations" rather than "peoples".[2l] The adoption of the text was made possible by adding paragraph 3, which states that:

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.

It remains to be seen if the qualification contained in Article 1(3) will be considered sufficient by those who object to the use of terminology likely to be construed as implying rights leading to secession. During the debate on the Article, it was made clear that the right of indigenous groups to self-determination is only within the framework of national States and that any implications regarding self-determination in international law were outside the area of competence of the ILO.[22]

III THE UNITED NATIONS FRAMEWORK

The first formal step taken by the United Nations to deal with the problem of indigenous populations was the controversial General Assembly Resolution 275 (III), of 11 May 1949, asking the SubCommission on Prevention of Discrimination and Protection of Minorities to study the condition of indigenous Americans. As pointed out by a specialized observer, this Resolution, strongly objected to by the United States of America, "was prompted more by the Cold War and the prospective development of the South American interior than by studied concern for the welfare of indigenous communities."[23]

In 1971, the Economic and Social Council, by Resolution 1589 (L), authorized the Sub-Commission to undertake a study of the problem of discrimination against indigenous populations. The Sub-Commission appointed Ambassador Martinez Cobo to prepare the study. Completed in 1983, it recommended the adoption of a declaration, eventually to lead to a convention, and stated some relevant principles.

A Non-Governmental Organization (NGO) Conference on Discrimination against Indigenous Peoples of the Americas took place in Geneva in 1977, adopting a Declaration whose main purpose was to claim status under international law. The same year, the World Council of Indigenous Peoples met in Sweden. The following year, the World Conference to Combat Racism and Racial Discrimination endorsed some of the rights claimed by indigenous peoples.[24] The VIIIth Inter-American Indian Congress took place in Merida, Mexico, in 1980, and the NGO Conference on Indigenous Peoples and the Land was held in Geneva, in 1981. In 1984, the World Council of Indigenous Peoples met in Panama, and adopted a Declaration of Principles of Indigenous Rights.[25]

Against the background of these developments, the Sub-Commission recommended the creation of a Working Group on Indigenous Populations, "to review developments" and to submit its conclusions to the Sub-Commission, giving special attention to the evolution of standards concerning the rights of indigenous populations.[26]

The Working Group started in 1982, opening its meetings to representatives of indigenous groups and organizations. In 1984, the SubCommission, by Resolution 1984/35 B, urged the Working Group to prepare "standards on the rights of indigenous populations" and to consider the drafting of a body of principles, of indigenous rights. A resolution of the Sub-Commission in 1985 (1985/22) refers for the first time to a draft declaration. The Working Group discussed the definitional question and was addressed by governmental and indigenous representatives from different regions. The Working Group adopted a liberal policy regarding participation of spokesmen for indigenous groups, regardless of their formal status.

The view that a special instrument on the rights of indigenous populations was needed gained increasing support. Indigenous spokesmen argued that existing principles in human rights law were inadequate to deal with their aspirations, particularly with regard to land rights and natural resources. In an attempt not to run into controversial issues, some generally agreed upon preliminary principles were prepared by the Working Group, for comment by governments and NGOs. These principles may become a basis for a future declaration and perhaps a convention. They do not include the difficult problems such as land rights and autonomous institutions. The principles submitted, which actually do not differ much from other accepted norms regarding minorities, recognize the following rights of indigenous populations:

1. The right to the full and effective enjoyment of the fundamental rights and freedoms universally recognized in existing international instruments, particularly in the Charter of the United Nations and the International Bill of Human Rights. 2. The right to be free and equal to all other human beings in dignity and rights, and to be free from discrimination of any kind. 3. The collective right to exist and to be protected against genocide, as well as the individual right to life, physical integrity, liberty, and security of person. 4. The right to manifest, teach, practice and observe their own religious traditions and ceremonies, and to maintain, protect, and have access to (sacred) sites for these purposes. 5. The right to all forms of education, including the right to have access to education in their own languages, and to establish their own educational institutions. 6. The right to preserve their cultural identity and traditions, and to pursue their own cultural development. 7. The right to promote intercultural information and education, recognizing the dignity and diversity of their cultures.[27]

The suggested principles did not incorporate controversial claims advanced by indigenous groups, such as the right to self-determination; the exclusion of jurisdiction asserted by States over indigenous nations or peoples, except in accordance with their freely expressed wishes; the right to permanent control and enjoyment of historical territories; and the right to restitution of lands.[28] Some indigenous organizations based their claims on the ground that discovery, conquest, or settlement, and unilateral legislation "are never legitimate bases for States to claim or retain the territories of indigenous nations or peoples."[29]

The list of principles submitted avoided these controversial issues, which were unlikely to be settled.[30] Some of the same issues were also discussed in the framework of the ILO, in connection with the preparation of the 1989 Convention.

IV. THE ILO FRAMEWORK

Since its inception, the International Labour Organisation has shown great interest in the problems of indigenous populations. A Committee of Experts on Native Labour was established in 1926, and several early Conventions dealt with the problems mentioned. These included Conventions No. 29 (1930), on Forced Labour; No. 50 (1936), on Recruitment of Indigenous Workers; No. 64 (1939), on Contracts of Employment (Indigenous Workers), and No. 65 (1939), on Penal Sanctions (Indigenous Works).[31] An important study on the living conditions of indigenous and tribal populations was Indigenous Peoples,[32] published in 1953, following several studies and consultations arranged by the ILO.[33].

The main contribution of the ILO in this area was, of course, the 1957 Indigenous and Tribal Populations Convention (No. 107), complemented by non-binding Recommendation No. 104 of 1957,[34] and revised in 1989. As spokesmen of indigenous organizations and specialists have pointed out frequently, the 1957 instruments no longer reflect the views of the interested parties. Three decades ago, the prevailing trend was integrationist, while, following a "radical change in attitudes", current policies are based on the "respect for the identities and cultures of these peoples, with any integration being solely a matter of choice".[35]

Convention No. 107, as stated, defined indigenous and other tribal or semi-tribal populations. The Convention aimed, in the terms of its Preamble, at "the protection of the populations concerned, their progressive integration into their respective national communities, and the improvement of their living and working conditions", a purpose reiterated in Article 2, which, however, excluded "measures tending towards the artificial assimilation of these populations" from the policies of national integration, (Article 2(c)). It also excluded recourse to force or coercion as a means of promoting integration (Article 2(4)).

Special measures of protection of the indigenous populations are permitted by Article 3, provided that these measures do not create or prolong a state of segregation, are temporary and are applied only to the extent that such protection is necessary.

The 1957 Convention contains provisions intended to ensure the preservation of indigenous group identity. The populations concerned shall be allowed to retain their "own customs and institutions where these are not incompatible with the national legal system or the objectives of integration programs". This shall not exempt members of these populations from their rights and duties as citizens.[36] The methods of social control practiced by the populations concerned shall be used as far as possible---and to the extent consistent with the interests of the national community and with the national legal system---for dealing with crimes or offences committed by their members. These methods will also be borne in mind in regard to penal matters.[37]

Under Article 10, the degree of cultural development of the populations concerned shall be taken into account in imposing penalties. Their members shall be especially safeguarded against improper preventive detention.

Critics of the Convention stressed that it did not give satisfaction to indigenous aspirations, particularly in connection with land rights, considered by their spokesmen as a necessary condition to enable them to continue their traditional life-styles. Article 11 of the Convention recognizes "the right to ownership, collective or individual" of the land by members of the indigenous population. Article 12 provides that the populations concerned shall not 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 interests of national economic development or of the health of the said populations". These exceptions have been considered too far-reaching, because they may allow policies leading to the annulment of indigenous rights. However, it has also been pointed out that Article 12 "implicitly accepts that the rights of ownership already accrue to indigenous populations, and are not ceded to them through the action of nation states".[38] In case of removal, full compensation for any resulting loss or injury is prescribed.

Under Article 13, the customs of the populations concerned regard-ing procedures for the transmission of rights of ownership and use of land shall be respected, within the framework of national laws and regulations. National agrarian programmes shall secure to the indigenous populations treatment equivalent to that accorded to other segments of the national community.[39]

The Convention contains provisions on recruitment and conditions ' of employment, vocational training, social security and health, education and use of language. All discrimination between indigenous workers and other workers should be prevented (Article 15), and special training facilities should be provided so long as the stage of cultural development of the indigenous populations requires them (Article 17). The "cultural heritage" of the populations in the sphere of handicrafts and rural industries should be developed (Article 18).

Educational programmes should be adapted to the stage that the populations have reached in their social, economic and cultural integration into the national community (Article 23). Indigenous children should be taught to read and write in their mother tongue, and appropriate measures should be taken to preserve the mother tongue or the vernacular language. Transition from the mother tongue or vernacular language to the national or official languages of the country should take place in a "progressive" way (Article 23). Article 25 calls for the adoption of educational measures with the object of eliminating prejudices in respect to indigenous populations.

Article 28 provides that the nature and scope of the measures taken to give effect to the Convention shall be determined in a "flexible manner", having regard to the conditions characteristic of each country.

Convention 107 was at the time of its adoption a compromise reflecting the prevailing trends. Recommendation No. 104, which is not binding and was adopted on the same day under an identical heading went a little further, calling for ensuring land reserves, special policies for semi-nomadic groups, equality of treatment with other members of the national population in relation to the ownership of underground wealth, and restrictions on the lease or mortgaging of lands owned by indigenous persons to persons or bodies not belonging to these populations (Article 2).

Article 3.10 calls for payment of wages only in legal tender, prohibiting payments in the form of alcoholic beverages or drugs, or in taverns or stores, as well as any interference with the personal liberty of workers. Migration of indigenous workers should be discouraged (3914)). Article 9 deals with measures in the field of language to facilitate integration.

Proposals for the adoption of a new Convention, more in agreement with the recently developed principles concerning indigenous populations, have been advanced on several occasions. Mention should be made, in this respect, of the UNESCO Meeting of Experts on Ethno-Development and Ethnocide in Latin America, that took place in San Jose, in 1981,[40] and the meeting, in September 1986, in Geneva, of a group of experts convened by the International Labour Office.[41]

V. THE 1989 ILO CONVENTION

The trends inspiring the above mentioned proposals were incorporated to a significant extent into the new Convention---No. 169, which is a partial revision of the 1957 Convention---and adopted by the International Labour Conference at its seventy-sixth Session. The final text of the Convention was prepared by the Committee on Convention No. 107.

The changes in the title and the Preamble of the new Convention are indicative of its prevailing spirit. The word "integration" was eliminated from the Preamble, and so was the reference to the Declaration of Philadelphia. Instead, the need to adopt "new international standards . . . with a view to removing the assimilationist orientation of the earlier standards" is stressed (paragraph 5 of the Preamble).

The Preamble recognizes the aspirations of the indigenous 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" (paragraph 6). It also calls attention to the "distinctive contributions of indigenous and tribal peoples to the cultural diversity and social and ecological harmony of humankind . . ." (paragraph 7).

Reference has already been made to the way the new Convention defines indigenous populations, in Article 1. Article 2 strengthens the wording of the corresponding Article in the 1957 Convention. Governments shall have the responsibility--not merely the primary responsibility--to develop, with the participation of the peoples concerned, action to protect their rights, stressing the need for respect for their social and cultural identity, their customs and traditions and their institutions. Such action shall ensure equality in rights and opportunities, full realization of the social, economic and cultural rights of the concerned peoples, and assistance in the elimination of socio-economic gaps. Article 3 forbids discrimination and coercion. Sexual discrimination is mentioned in particular.

Article 4, corresponding to Article 3 of the 1957 instrument, deals with special measures for safeguarding the "persons, institutions, property, labour, cultures and environment of the peoples concerned", provided that such measures are not contrary to their freely-expressed wishes. Article 5 corresponds to former Article 4 and aims at ensuring recognition and protection of the social, cultural, religious and spiritual values and practices of the interested populations, both as groups and as individuals. The word "integration" was eliminated from the text.

New Articles 6 and 7 strengthen considerably the role of the indigenous peoples with regard to measures that may affect them. According to Article 6, the peoples concerned should be consulted, through their representative institutions, with regard to legislative or administrative measures affecting them, and they should participate at all levels of decision-making regarding policies and programmes that concern them. Their own institutions and initiatives should be fully developed.[42]

Article 7 proclaims that 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 upon which they dwell or otherwise use,[43] and to exercise control, to the extent possible, over their economic, social and cultural development. The improvement of the conditions of life and work, and the level of health and education of the populations concerned shall be a matter of priority. Governments shall take measures, in cooperation with the peoples concerned, to protect and preserve the environment of the territories such peoples inhabit.[44]

In applying national legislation to the peoples concerned, due regard shall be had for their customs or customary law, which they shall have the right to retain, except where these are incompatible with fundamental rights defined by the national legal system and with internationally recognized human rights (Article 8(1) and 8(2)). This will not prevent members of these peoples from exercising the rights and assuming the duties corresponding to all citizens (Article 8(3)).[45]

Articles 9 and 10 deal with offences committed by members of indigenous peoples and their punishment. The customs of these peoples in regard to penal matters shall be taken into consideration. Other methods of punishment should be preferred to confinement in prison. Article 11 prohibits exaction of compulsory personal services. Article 12 contains safeguards in matters of legal proceedings.

Articles 13 to 19---Part II, to which more than 100 amendments were submitted----deal with land, a subject of special importance for the cultures and spiritual values of the indigenous groups.[46] A special Working Party discussed these articles, not always reaching agreement. Their adoption was made possible after the chairman proposed that the Committee should deal with these articles as a "package" text, with the exception of Article 17(2) on the transfer of land.

In some of the provisions, such as Article 15, dealing with natural resources, and Article 16, regarding relocation, the term "lands" includes the concept of "territories" which covers the total environment of the areas which the peoples concerned occupy or otherwise use "[47]

The rights of ownership and possession over the lands which the peoples concerned traditionally occupy shall be recognized. Measures shall be taken to safeguard the right to use lands not exclusively occupied by such peoples, but to which they have traditionally had access. The situation of nomadic peoples and shifting cultivators will be particularly considered (Article 14). The rights to the natural resources pertaining to the lands concerned shall be safeguarded. When the State retains the ownership of mineral or sub-surface resources or rights, procedures for consultation will be established (Article 15). The peoples concerned shall not be removed from the lands that they occupy. Their "free and informed consent" will be necessary for their relocation as an exceptional measure, when necessary. Appropriate procedures will be established to that effect, including the right to return to their traditional lands, as soon as the grounds for relocation cease to exist. When this is not possible, equivalent land or appropriate compensation shall be provided (Article 16).

Provisions regarding protective measures for the transfer of lands, the capacity to alienate lands, and related matters, are included in Article 17, which created great difficulty. Paragraph 2 of this Article was adopted after the rejection of an amendment and a sub-amendment concerning the use of the term "territories". Article 18 provides punishment for unauthorized intrusion or use of the lands. Article 19 deals with national agrarian programmes which should secure equality in treatment for the indigenous groups.

Part II, as finally adopted, is a compromise, made possible by reciprocal concessions from the representatives of governments, employers and workers. In some cases, national constitutional provisions are likely to clash with proposed articles or amendments. Latin American Governments particularly confront serious difficulties, as pointed out during the discussion. Canada, India, the USSR and Portugal also made public their reservations to several articles.

Recruitment and conditions of employment, including special measures to ensure effective protection, are the subjects detailed in Article 20. Discrimination is again prohibited and other protective measures spelled out.

Part IV (Articles 21--23) refers to vocational training, handicrafts and rural industries; Part V (Articles 24 and 25), to social security and health; Part VI (Articles 26 to 31), to education and means of communication. The fostering of the indigenous languages is dealt with in Article 28. Article 31 calls for measures to eliminate prejudices.

Contacts and cooperation between indigenous populations across borders should be facilitated by appropriate measures.[48]

Two ratifications will be sufficient to bring the new Convention into effect, twelve months after the date of their registration with the Director-General. Denunciation of the Convention is possible after ten years of its coming into force. Otherwise, States parties will be bound for successive periods of ten years. The adoption of Article 36 means that Convention No. 107 would be closed to further ratifications when the new Convention comes into force. The former Convention would remain in force for those countries which had ratified it, until they ratified the new Convention.[49]

VI. NATIONAL LEGISLATION

It is beyond the scope of this article to deal with legislation regarding indigenous populations in individual countries, some of which have incorporated provisions in this respect in their constitutions.[50] Certain countries have created a special status for the aborigines absolving them from a number of obligations but, at the same time, restricting their exercise of given rights on a temporary basis. This situation is described by Martinez Cobo as capitis diminutio.[51] Of course, general legislation on non-discrimination and equality before the law is always applicable.

State policies on indigenous populations, as expressed not only in legal provisions but in practice, include a diversified spectrum, depending on criteria relating to subjects such as assimilation, integration, segregation, and pluralism. Historical developments must be kept in mind, and indigenous activism in recent years has to be considered against the historical background.

Governmental practice has been of special importance in areas such as health, housing and related services, education and cultural life, mainly in rural areas, involving problems of access and personnel, as well as of contents, degree of respect for autochthonous values, and promotion of indigenous languages. There seems to be increasing acceptance of the need to recognize the plurilingual and pluricultural nature of countries with indigenous populations.[52]

The coordination of legal systems, particularly with regard to family law and property rights, has become a pressing problem in many countries. Policies implying affirmative action are relevant in areas such as education and labour, particularly with regard to traditional occupations. Exploitational practices have been denounced, with a view to their replacement by accepted international standards. Some legislation has incorporated special provisions on land rights, individual and collective.

VII. CONCLUSIONS

New trends have been influencing international and national measures concerning indigenous populations. These trends are closely connected to the discussion on the legal position of groups in society. It may be too early to reach definite conclusions on the degree of support that such trends will obtain. Commenting on a decision taken recently by the United States Supreme Court, Aviam Soifer writes that the application of the "lowest common denominator approach---all citizens have only the rights of every citizen---ignores history and destroys special, communal claims that are particularly compelling in the case of Native Americans ..."[53] The search for appropriate legislation regarding indigenous populations, reflecting real social needs and legitimate aspirations, is generally relevant to the evolving attitude regarding group rights in today's international life. As Leon Sheleff rightly states, "one of the most vexing issues confronting a modern changing word" is how to make compatible "the customs of tribal societies and small isolated communities, within the network of nation-States . . . with their dual insistence on national loyalties, on the one hand, and individual rights on the other."[54]

If constitutional and international law succeeds in elaborating an agreed-upon catalogue of rights that a group is entitled to enjoy as such, it may satisfy a significant part of the claims advanced by indigenous populations. These include the protection of their right to existence as an entity; the-recognition of the right to non-discrimination, combined with the right to the preservation of the identity of the group; the adoption of programmes based on affirmative action; and the promotion of adequate institutions at the local, national and international levels, where appropriate. These are all measures beyond controversy, likely to respond constructively to many of the needs and desires of indigenous populations. In addition, solutions must be found for other expectations of indigenous groups, related to such issues as collective property of lands and natural resources, the right to impose duties on members of the group, and the nature of the relationship between the group or the tribe and its individual members. More difficult questions, including the recognition of the legal personality of the group and, when relevant, the right of some groups to self-determination, will probably arouse considerable discussion, to a great extent in connection with the new ILO Convention.

* This paper is a chapter of a book in preparation on Group Rights and Discrimination In International Law.

** Dr. Jur, Visiting Associate Professor, Faculty of Law, Tel Aviv University.

1 The use of the terms "populations" or "peoples" reflects differences in the nature of the rights recognized in their regard, as we shall see in the discussion on definitions.

2 The so-called "Spanish School of International Law", and particularly its founder, Francisco de Vitona, should be mentioned in this connection. Vitona's Relectio prior da indis recenter inventis (Spanish text in Relaciones Teologicas, Madrid, 1934) presents ideas related to the rights and status of the Indian populations in Spanish America.

3 See, for instance, a letter by David Ahenakew, National Chief of the Assembly of First Nations, Canada, in 61 Can. B. Rev. 912--21 (1983). He claims that the Indians of Canada are "nations", and that the status of "community", or "group" or "minority" is not applicable to them. "We have never relinquished"--he writes---"our total sovereignty to any other power on earth".

4 For a comprehensive overview, see R L. Barsh, "Indigenous North America and Contemporary International Law", 62 O.L. Rev. 73--125 (1983).

5 See Final Act, 165 Parry's T.S. 486 (1885).

6 See General Act,82 B.F.S.P. 379.

7 7Hudson, World Court Reports 10 (1934,1969).

8 Barsh (supra note 4) mentions in this respect the 1926 decision on the Cayuga Indians by a British-American arbitration panel. He also quotes from A.H. Snow's report commissioned by the US State Department published in 1921.

9 Cf.: Island of Palmas arbitration case 2 R. Int'l Arb. Awards 829 and the decision in Status of Eastern Greenland, (1933) P.C.I.J. Ser. A/B, No.53.

10 See Article 1(2) of the UN Charter. On the notion and rights of "peoples", see The Rights of Peoples (J. Crawford ed, 1982). The 1989 Indigenous and Tribal Peoples Convention adopted the term, with qualifications.