CIESIN Reproduced, with permission, from: Heintze, H-J. 1993. The protection of indigenous peoples under the ILO convention. In Amazonia and Siberia: Legal aspects of the preservation of the environment and development in the last open spaces, ed. M. Bothe, T. Kurzidem, and C. Schmidt, 310-27. London: Graham and Trotman.

International Environmental Law and Policy Series

Amazonia and Siberia

Legal Aspects of the Preservation of the Environment and Development in the Last Open Spaces

Edited by

Michael Bothe

Thomas Kurzidem

Christian Schmidt

The Protection of Indigenous Peoples under the ILO Convention

Hans-Joachim Heintze

1. Introduction

It has never been realized by the public as it has been case with the UN or the UNESCO, that the International Labour Organisation (ILO) has, since 1919, assigned an important place to human rights in its fields of competence. The organization has been,,a principal inspiration of the universal and regional texts relating economic and social rights, and to certain civil rights-indig.htmland political rights."[1]

This is especially true in connection with the protection of indigenous peoples. The ILO became active in this field long before the United Nations. There is no mention of this problem in any of the basic UN instruments relating to human rights. In general, and in the special case of indigenous peoples, the following statement about international law is correct:,,The progressive development of international law is a continuing process, and there remain a number of areas in which agreement on more detailed legal regimes is still needed. In some cases this is because international opinion is only just becoming seriously interested in particular problems."[2]

Concerning indigenous peoples the ILO made an important contribution in awakening public interest in that problem. And the ILO is still a pacemaker in the field, as the Convention No. 169 shows. But there is no doubt about a certain competition between the ILO and UN activities in that field. Some experts criticize the ILO, that the Convention 107 on indigenous populations had been a dead letter for many years.[3] Samson, the former Coordinator for Human Rights questions in the ILO explained the position of this organization:

,,I would agree that, had there been no earlier comprehensive standardsetting by the ILO on the subject, it would have been preferable now to leave such action to the UN. Various reasons had, however, led to the ILO being chosen by the UN system as a whole as the forum for adoption of Convention No. 107, and its supplementary Recommendation, in 1957. The ILO had been designated as the lead agency in the Andean Indian Programme, in which other agencies - such as the UN, FAO, WHO and UNESCO - also participated. The ILO had an established framework for the adoption of standards, whereas UN human rights standard-setting at the time was making little headway."[4]

One can ask what the advantage of an international convention for the protection of indigenous peoples is. After the experiences of these peoples, it seems understandable that they feel a need for the greatest possible protection of their human rights and their rights as peoples, in particular with a certain international law personality. From the standpoint of international law it is also obvious that one cannot speak of problems of discrimination of certain groups without mentioning the fate of indigenous peoples.[5] History had demonstrated that indigenous rights cannot be left only to the national legal order.[6] Their claims are ten-fold:

Some of these claims have been recognized by the ILO Conventions. The importance for the theory and practice of international law of that development is that indigenous peoples have a limited capacity as subjects of international law.

2. The ILO Convention No. 107 of 1957

The interest of the ILO in the problems of indigenous peoples resulted from the fact that individuals belonging to indigenous people were very often the victims of prejudices which led to gross exploitation in the labour market. The background has been the lack of appropriate education and vocational training of these individuals as well as a massive discrimination by the ruling societies in the relevant states. This has been the outcome of a historical process of conquest, penetration and marginalization of traditional indigenous societies. The discrimination was accompanied by attitudes of superiority among the Europeans. The result was a gradual destruction of the material and spiritual basis for the maintenance of indigenous societies. Many of indigenous individuals had been deprived of their land and natural resources and had nowhere to go. Therefore, these individuals had very often no other alternative but to accept employment under the worst conditions.

From the perspective of the competence of the ILO there was a task of elimination of discrimination and of integration of indigenous ,,populations" into the societies of the concerned member States.[8] The result of these considerations was the adoption of Convention No. 107, the Convention on Indigenous and Tribal Populations. This was for a long time the only universal Convention which dealt exclusively with the rights of indigenous populations.

The aim of this Convention was the adoption of general international standards for the protection of indigenous populations, the improvement of their living and working conditions and ,,their progressive integration into their respective national communities".[9]

The main idea of the document was, therefore, that governments undertake measures not only to protect but also to progressively integrate the indigenous populations into the wider societies (Article 2).

The authors of the Convention, however, saw some limits of this integration. It should not be a form of ,,artificial assimilation" (Article 2, paragraph 2 c). The limits were the respect of:

The intention of a ,,moderate integration" becomes very obvious when reading Article 4 b of the Convention. According to that provision, the governments shall take into account ,,the danger involved in disrupting the values and institutions of the said populations unless they can be replaced by appropriate substitutes which the groups concerned are willing to accept."

3. Limited Consequences of Convention No. 107

Without any doubt, this Convention was a considerable success in directing international public opinion towards the often dramatic problems faced by indigenous populations. Also from the standpoint of international law, which is primarily a law of the relations between sovereign states, this Convention was a further step for the creation of a human rights protection system not only for the individuals but also for collective human rights.[10]

However, for various reasons the Convention won only limited support. Typical is the case of Norway, a country with its own indigenous people within its territory:

,,When the question of accession was taken up in Norway in 1958, the government, with the support of the Storting, was of the opinion that there were no population groups in Norway such as those dealt with in the treaty, and that there was therefore no reason to go into the question of Norwegian ratification. The Convention has not been subsequently ratified by any of the other Nordic countries either."[11]

Although the Convention had been ratified by 27 States by the end of 1981,[12] the effects were rather poor. This cannot be a surprise, because many concerned states - like Norway - hesitated to participate. But this is perhaps not the most important reason. More important seems to be the general problem of the relationship between a state and the protection of human rights in general vis-à-vis the individual and especially vis-à-vis groups. Eide describes the situation very convincing:

,,We live in a world composed of states. The role of the state in regard to its inhabitants varies considerably from one political system to another. But everywhere it is, to some extent, Janus-faced. It has two faces. Some see the good face of the state, as a protector, a mediator and at times as an instrument of welfare. Those who experience the state in this way, consider it to be 'their' state, a state which they influence and utilize to solve common problems. But some also see the bad face of the state. They see it as an instrument for control and repression, of socialization into the dominant values of society. They see it as an agency of the strong against the weak, and those who see it this way do not consider the state to be 'theirs', even though they must accept to live under the sway of its authority."[13]

Especially the indigenous peoples have the experience of the ,,bad face" of the state. This is primarily a consequence of their understanding of the function and the task of a ,,state", which was established without their support in ,,their" territories. This tension becomes obvious in the impressive Declaration of the Indigenous People of the Dene, which provides a typical example of their standpoint:

,,The Dene find themselves as a part of a country. That country is Canada. But the government of Canada is not the government of the Dene. This government was not the choice of the Dene, they were imposed upon the Dene."[14]

Therefore it was clear that the indigenous peoples were not interested in integration in such a ,,state". However, a great number of them were integrated or assimilated in societies against their will, sometimes with military force and political pressure. In cases where treaties between indigenous peoples and the colonizers exist,[15] they were very often violated and broken. One of the most complicated tasks for every codification in this field ,,is the consideration of methods of protection and guaranteeing the respect for these rights of indigenous peoples as well as to develop systems for interfacing between nation-states and the indigenous peoples' institutions."[16]

4. The Challenge of the Revision of Convention No. 107

In the 1980s the problem of the revision of Convention No. 107 appeared on the agenda of the ILO. This was due to two developments. The first was the very active work and the important influence of non-governmental organizations[17] of indigenous peoples, working at the national and international level:

,,Indigenous NGOs have major advantages in dealing with mechanisms of the international fora: first, they possess an enormous moral and ethical imperative; second, the process involved in international fora operate dynamically over relatively long periods of time as do traditional forms of decision making; and third, the necessary capacity for compromise and eventual consensus is well established in indigenous traditions."[18]

The second development was the new understanding of the right of self-determination after the process of decolonization and elaboration of the 1970 Declaration on Friendly Relations.[19] This document provides a cornerstone of the modern approach to the concept of self-determination. After this it became clear, that ,,integration should be the result of the freely expressed wishes of the territory's peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes impartially conducted and based on universal adult suffrage. The United Nations could, when it deems it necessary, supervise these procedures."[20]

Closely connected with this understanding of the principle of self-determination was the international engagement in the struggle against discrimination. On several occasions the UN General Assembly commented in connection with its struggle against discrimination also upon on the well being and prosperity of indigenous peoples.[21] It shows the growing interest of the community of States in this subject that the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities appointed José R. Martinez Cobo as Special Rapporteur for a Study of the Problem of Discrimination against Indigenous Populations in the early 1970s. This study, completed in 1983, is an important overview of the national and international situation of indigenous peoples.[22]

In the light of these developments in the 1970s it was clear for the ILO that there was a need for a modernization of some of the aspects of the Convention No. 107 which deal with self-determination, integration and prohibition of discrimination. On the other hand, some of the original articles have been reinforced by these developments:

,,While the Convention has been criticized for its emphasis on integration and assimilation, it contains significant provisions, for example Article 11 which stipulates that '(t)he right of ownership, collective or individual, of the members of the populations concerned over the lands which these populations traditionally occupy shall be recognized."'[23]

The World Council of Indigenous Peoples (WCIP) played a leading role in initiating the revision. During its Third Assembly, held in Canberra in April 1981, WCIP presented a draft. The basic approaches were fundamentally different from the ILO idea of integration. This became clear with the wording of Article 1:

,,All peoples have the right to self-determination. By virtue of that right indigenous peoples may freely determine their political status and freely pursue their economic, social and cultural development."

Article 3 goes on as follows:

,,One manner in which the right of self-determination can be realized is by the free determination of an Indigenous People to associate their territories and institutions with one or more states in a manner involving free association, regional autonomy, home rule or associate statehood as self governing unite. Indigenous People may freely determine to enter into such relationships and to alter those relationships after they have been established."

This draft has been a challenge for the traditional understanding of international law as a law which deals primarily with the relationship between sovereign states.[24] On the other hand this proposal was of a certain influence for the modernization of the ILO itself.[25] The Organization became aware that its integrationist approach was unacceptable to the indigenous peoples.

Under this impression the cooperation with the UN Working Group on Indigenous Populations was intensified. This Working Group was proposed by the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities[26]and was created in 1982 with the following mandate:

,,- review developments pertaining to the promotion and protection of human rights and fundamental freedoms of indigenous populations, including information requested by the Secretary-General annually from governments, specialized agencies, regional inter-governmental organizations and non-governmental organizations in consultative status, particularly those of indigenous peoples, to analyze such materials, and to submit conclusions to the Sub-Commission, bearing in mind the report of the Special Rapporteur of the Sub-Commission;

- give special attention to the evolution of standards concerning the rights of indigenous populations, taking account of both the similarities and the differences in the situations and aspirations of indigenous populations throughout the world."[27]

The Working Group was at this time drafting a Universal Declaration of Indigenous Rights, which was strongly influenced by the developments in the ILO. However, it also played an active role in the process of revision. But the legal difference between the tasks of the two bodies must be emphasized: A declaration should include general goals and objectives, but a convention is a legal instrument which creates binding obligations for the ratifying states.

In general, the international standard-setting concerning indigenous peoples has been a very slow process; but nevertheless, there is such a process.[28] This process is going on in different organs and organizations of the UN system, but it is a process with a high degree of unity. There is no conflict between either the procedures or the substance of the ILO Convention and the standards which the UN intends to adopt. The ILO standards are ,,designed to be minimum standards, in the sense that they are intended to establish a floor under the rights of indigenous and tribal peoples and, in particular, to establish a basis for government conduct in relations to them."[29]

5. The Convention No. 169 on Indigenous and Tribal Peoples

The revision of the Convention No. 107 began in 1986. After a meeting of experts the ILO decided to start this process. It was finished in 1989. In all the debates the NGOs of indigenous peoples took part. Nevertheless there were a lot of criticism concerning the procedure of drafting by these organizations:

,,...the results of the ILO initiative to update Convention No.107 (1957) by means of a new instrument (i.e. Convention No. 169) were received by a number of indigenous organizations with dismay and bitterness stemming from what they considered the very much restricted nature of their participation in the deliberations at the Conference and from actual contents of the new Convention."[30]

On the other hand, the result of the codification process has been accepted by the community of states with success: the vote for the adoption was 128 to 1 (Netherlands) and 49 abstentions.[31] This seems important, because other activities in this sphere ,,are received with apprehension by some Governments, which regret what in their view is undue attention to matters of relatively minor overall importance and pertaining, after all, to their domestic jurisdiction."[32]

These contradictions become understandable in connection with the main points of discussion.

A. ,,Peoples" versus ,,Populations" and ,,Minorities"

The most important and obvious difference one can note is that the Convention No. 169 refers to peoples and not to populations like the Convention 107. The legal consequences of this change are important. From the point of view of international law it should be emphasized that a population has nearly no juridical significance in international law. In general it is a group of individuals which may be of relevance for the domestic law of a state. An exception may be a population which consists of ethnic or religious groups of at least several thousand individuals,[33] established over a long period of time in a particular area and which is affected by expulsion and transfer.[34]

,,Peoples" is a term which is often used in international law, but there is no definition of that expression. In the case of indigenous peoples the description of their character as a people is rather clear:

,,Indigenous communities, peoples and nations 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 part 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 a basis of their ethnic identity, in accordance with their own cultural patterns, social institutions and legal system."[35]

In the practical definition great importance has been attached to objective elements (ancestry, culture, language etc.) and subjective elements (self-identification and acceptance).

The consequences of the acceptance of the character of peoples for the indigenous are far-reaching. Peoples have the right to self-determination. This right is one of the basic principles of international law:

,,The rights of important groups such become particularly prominent in connection with the principle or rights, of self-determination, vi., the right of cohesive national groups ("people") to choose for themselves a form of political organization and their relation to other groups. The choice may be independence as a state, association with other groups in a federal state, or autonomy or assimilation in a unitary state."[36]

The definition of the right to self-determination makes understandable that the discussion over the term ,,peoples" versus ,,population" was extensive. There was also no doubt, that the opposition to the term ,,peoples" emanates from the fear of the states that if indigenous peoples were recognized as peoples they would assert their own right to self-determination. This right is a human right which is applicable to all peoples, as it is included in both UN Human Rights Covenants:

,,All peoples have the rights to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.".[37]

Because of these far-reaching consequences some states considered indigenous peoples as ,,ethnic minorities"[38] and dealt with them in accordance with Article 27 of the International Convenant on Civil and Political Rights.[39] This Article reads:

,,In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."

The wording of Article 27 shows that international law does not treat minorities as entities. Instead the rights are given to individuals. The contradiction is obvious, because these rights can only be practiced together with other individuals belonging to the same group. The background of this contradiction has been that the community of states hesitated to give minorities an international personality:

,,Such international personality, it was feared, might have given a minority the capacity to vindicate its rights before a competent international institution."[40]

Especially under these conditions Article 27 does not meet the needs of indigenous peoples. It is true that indigenous peoples are not always in a minority position. In some countries, indeed, ,,they may constitute the majority, so while it is appropriate to discuss them here they may only be minorities in the sociological sense of the term."[41] It should also be mentioned that Article 27 represents an international minimum standard, which is only indirectly relevant to the indigenous situation.[42] The Working Group identified the following points as important:

These rights are collective in nature. It is true that the development of a theory of collective human rights is not yet very advanced.[43] But this cannot mean that the enjoyment of these rights by the indigenous peoples may be reflected. Thus, Falk is right when writing:

,, ...we cannot approach the challenge of the relationship with indigenous people as long as it remains an abstraction that can be lumped with other categories of injustice. Instead it has a specific history or series of histories, that is bound up with our modernizing, development civilization. Unless that history is acknowledged and understood, it will be very difficult to make an appropriate response."[44]

The acceptance of these collective human rights of indigenous peoples is one of the acts of ,,understanding".

Doubtless the recognition of the collective character of indigenous rights by the using of the term ,,peoples" represents an important success for the protection of indigenous rights and an existing development in international law. But the success is bigger in theory than in practice, because the ILO added as a result of the fear of self-determination a qualifier to the term ,,peoples". Article 1 paragraph 3 reads:

,,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."

Therefore there has been a necessity to explain this understanding of self-determination. Obviously it is used similar to some domestic legal orders, e.g. in Canada. The already-mentioned Declaration of the Dene is illustrative:

,,What we the Dene are struggling for is the recognition of the Dene Nation by the governments and peoples of the world. And while there are realities we are forced to submit to such as the existence of a country called Canada, we insist on the right to self-determination as a distinct people and the recognition of the Dene Nation ....What we seek then is independence and self-determination within the country of Canada. This is what we mean when we call for a just land settlement of the Dene Nation."[45]

This Declaration makes clear that there is a need to demystify the concept of self-determination in connection with the indigenous peoples. In this case it does ,,not mean statehood or independence or any sort of secession,"[46] but rather ,,self-development."[47]

It should be underlined that the positions of the indigenous peoples vary greatly from country to country.[48] However, in general it seems - and the ILO Convention supports this view - that there is a strong connection between the aspirations of indigenous peoples and concepts of autonomy:

,,Autonomy and self-government are determined primarily by the degree of actual as well as formal independence enjoyed by the autonomous entity in its political decision-making process. Generally autonomy is understood to refer to independence of action on the internal or domestic level, as foreign affairs and defence normally are in the hands of the central or national government, but occasionally power to conclude international agreements concerning cultural or economic matters also may reside with the autonomous entity."[49]

In the light of many problems with separatist movements in the whole world the concept of autonomy is of primary importance. The solution of the ILO seems therefore reasonable. It is regrettable that representatives of indigenous peoples do not share this opinion and consider the ILO Convention as a failure to recognize the indigenous world view:

,,In Convention 169, the term 'peoples' has been qualified to have no significance in international law. We do not accept this decision of the ILO. We still maintain our right to call ourselves people. Furthermore, we have the right to self-determination to determine our own international status."[50]

B. The Rights of Indigenous Peoples

The Convention contains a comprehensive catalogue of the rights of indigenous peoples. The starting point is Article 2, a kind of general clause of the whole document:

,,Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity."

Article 2 creates obligations of the government, primarily enabling the participation of indigenous peoples in the development of human rights protection. It is clear from the text that there is a need for positive action on the part of the States. The aim of this activity is formulated in sub-paragraph 2(c), ,,to eliminate socioeconomic gaps that may exist between indigenous and other members of the national community."

This obligation is a consequence of the principle of non-discrimination, which sometimes means to undertake affirmative action measures to overcome consequences of former discrimination. But the demand of non-discrimination, equality under the law and equal protection of the law are not particular to indigenous peoples. There are many reasons for the position that non-discrimination is a principle of customary international law[51] with ius cogens character.[52]

This principle is emphasized and developed in the UN Charter, the Universal Declaration of Human Rights and the International Covenants on Human Rights. The most notable expression of this principle one can find in the UN International Convention on the Elimination of All Forms of Racial Discrimination. It is interesting, that the participating States of that Convention explain in their state reports to the Committee on the Elimination of Racial Discrimination (CERD) their policy concerning indigenous peoples.[53]

The reports show that it is very common to protect indigenous peoples by the principle of non-discrimination. Therefore the criticism of some representatives of indigenous organizations, who fear a new kind of assimilation, seems to be a misunderstanding:

,,First, it is assumed that we want to be on an equal footing with the non-indigenous peoples; secondly, that the national laws and regulations constitute the proper system to ensure our rights; and thirdly, that our status within the socioeconomic order is one which we find a need to correct. This last assumption carries with it the racial prejudice that our lifestyle is inferior and unacceptable by implying a need to abandon our lifestyle to adopt the non-indigenous socio-economic system."[54]

That these fears in connection with this norm of the Convention are without any basis becomes obvious with the wording of Article 4, paragraph 2:

,,Such special measures shall not be contrary to the freely-expressed wishes of the peoples concerned."

It is in this sense, that Article 6 provides:

,,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."

The underlying idea of the rule is that of cooperation between all concerned groups in society. However, the meaning of the term ,,consult" from the legal point of view is not that clear. The explanation of the Convention is that ,,consultation" shall be undertaken ,,in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the to the proposed measures."

The practice shows that the content of the term ,,consultation" is very often not satisfying. One can expect, at least, that it involves discussion between the parties in an attempt to reach an understanding. But the reality is different. Venne mentioned an example:

,,In Canada, the federal government customarily will mail letters to the chiefs, notifying them of new administrative or legislative changes, often without allowing them enough time to conduct an appropriate and thorough analysis of these changes. If the chiefs do not answer these letters within a certain limit, the government proceeds. When we complain about these changes, we are told that the letter itself was the only form of consultation."[55]

It is important for indigenous peoples to have the right to decide their own priorities for the process of development as it affects their lives (Article 7) and to retain their own customs and institutions.

Part II deals with the land. This issue has long been a principal claim of indigenous peoples. The developments in the last decades - the integration of the world system of production and consumption - have increased the pressure on the remaining land of indigenous peoples.[56]

,,Since the Second World War the number of incursions into indigenous peoples land has escalated worldwide. Once thought of as barren wastelands of little economic and political value, indigenous territories have now been identified as areas of vital national and even international importance ...With no untroubled or unconverted regions to retreat to, the native inhabitants have been forced to accept these invasions reluctantly, or else fight back "[57]

Considering also the special relationship between indigenous peoples and the land - the land is for such peoples not merely a possession and a means of production, but part of the spiritual life and therefore connected with many ,,deep-seated implications"[58] - it is understandable that this problem is of primary importance. Articles 13 and 14 recognize the land rights of indigenous peoples. Problems may be raised in relationship to the subsoil resources. Governments ,,shall establish or maintain procedures through they shall consult these peoples" in cases of exploitation. This norm is indeed not very exact: indigenous representatives reflect it as ,,truly shameful", because it enshrines the ,,concept of terra nullus".[59]

6. Conclusion

It may be asked if it makes sense to codify all the different kinds of human rights in international instruments. Sometimes criticism is understandable. But in relation to indigenous peoples, history has demonstrated tragically the need of international protection. Therefore the activities of the ILO are an important advance in acceptance of this obligation by the community of States. It is true that the Convention No. 169 does not meet all expectations,[60] but it creates a public forum for discussion of the problems of this kind of human rights. The activities of the Working Group on Indigenous Populations should be viewed in a similar light. It is to be hoped that the Universal Declaration on Indigenous Rights will be ready soon and that 1992, the Year of Indigenous Peoples[61] will be a very successful starting point for the full implementation of indigenous rights.

1 N. Valticos, The International Labour Organizabin, in: K. Vasak/Ph. Alson (ed.), The International Dimension of Human Rights, Westport/Paris 1982, p. 363.

2 N. Singh, The United Nations and the Developrnent of International Law, in: A. Roberts/B. Kingsbury, United Nations, Divided World, Oxford 1988, p.189.

3 H. Berman, The International Labour Organization and Indigenous Peoples: Revision of ILO Convention No. 107 at the 75th Session of the International Labour Conference, 1988, in: International Commission of Jurists, The Review, No. 41/1988, p. 48.

4 K. Samson, Response to Review 41 article on ILO Convention 107, in: International Commission of Jurists, The Review, No. 42/1989, p. 43.

5 See N. Lerner, The 1989 ILO Convention on Indigenous Populations: New Standards?, in: Israel Yearbook on Human Rights, Vol. 20, Dordrecht 1990, p. 223.

6 See H.. Berman, Are Indigenous Populations Entitled to International Juridical Personality?, in: 79 ASIL Proceedings 1985, p. 193.

7 G. Nettheim, Peoples and Populations: Indigenous Peoples and the Rights of Peoples, in: J. Crawford (ed.), The Rights of Peoples, Oxford 1988, p. 117.

8 See A. Eide, Indigenous Populations and Human Rights, in: PRIO Paper 11/83, pp. 21.

9 Text of the preamble.

10 The concept of collective rights is still under discussion. See the overview by M. Galenkamp, Collective Rights: Much To Do About Nothing? A Review Essay, in: 9 Netherlands Quarterly of Human Rights 1991, p. 291 et seq.

11 K. Sverre, Indigenous Populations and Human Rights: The International Problem from a Nordic Point of View, in: J. Broested (ed.) Native Power - The Quest for Autonomy and Nationhood of Indigenous Peoples, Bergen 1985, p. 188.

12 After the entering into force of its successor (Convention No. 169), Convention No. 107 was no longer open to further ratifications. However, it will remain in force for those States which have ratified it, unless they ratify the new Convention on the same topic. According to the general international law of treaties the ratification of the new convention will involve an automatic denunciation of the old one.

13 A. Eide, Indigenous Populations and Human Rights: The United Nations Efforts at Mid-way, in J. Broested (ed.) Native Power, Op. cit. (note 8), p. 196 et seq.

14 M. Davies, Protection of tbe Identity of Aboriginal Peoples with Particular Reference to Canada, in: 54 Nordisk Tidsskrift for International Ret 1985, p. 25.

15 From the standpoint of international law some of these treaties have a very interesting legal character because they accept the ,,sovereignty" of indigenous peoples about their land. Therefore the Subcommission on Prevention of Discrimination and Protection of Minorities appointed by M.A. Martinez as a Special Rapporteur. He submitted his preliminary report of the ,,Study on treaties, agreements and other constructive arrangements between States and Indigenous populations" in 1991. (UN Doc. E/CN.4/Sub.2/1991/33).

16 H.F. Burgess, Remarks, in: International Human Rights Standards-Setting: The Case of Indigenous Peoples; in: 81 ASIL Proceedings 1987, p. 279.

17 See D. Weissbrodt, The Contribution of International Nongovernmental Organizations to the protection of Human Rights, in: T. Meron (ed.), Human Rights in International Law: Legal and Policy Issues, Oxford 1984, p. 403.

18 A. Simpson, The Role of Indigenous Nongovernmental Organizations in Developing Human Rights Standards Applicable to Indigenous Peoples, in: 81 ASIL Proceedings 1987, p. 285.

19 GA Res. 2625 (XXV).

20 R. C. White, Self-Determination: Time for a Re-Assessment?, in: 27 Netherlands International Law Review 1980, p. 150.

21 See e.g. the Resolutions 37/46, and 38/21.

22 UN Doc. E/CN.4/Sub.2/1986/Add.4.

23 G. Alfredsson, Indigenous populations, Protection, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 8 (1985), p. 312.

24 See K. Ipsen, Völkerrecht (3rd ed.), Munich 1990, p. 6 et seq.

25 The Organization is still being faced with these tasks. The main question is always that of how far the organization can go in regulation or deregulation. See ILO News No. 22-91.

26 UN-Doc. A/CN.4/Sub. 2/Res. 2 (XXXIV) of 8 September 1981. The Resolution was authorized by ECOSCOC in its Resolution 1982/34.

27 UN Doc. E/CN.4./Res. 1982/34.

28 See UN Doc. HR/GENEVA/1989/SEM.1/BP.3.

29 Statement of Mr. Swepston before the UN Working Group on Indigenous Populations; in: Without Prejudice, Vol. 2 (1989), p. 69.

30 UN Doc. E/CN.4/sub.2/1991/33, para. 80.

31 See the text in: 28 ILM 1989, p. 1382 et seq.

32 UN Doc. E/CN.4/sub.2/1991/33, para. 80.

33 A.-M. de Zayas, Population, Expulsion and Transfer, in: R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 8 (1985), p. 438.

34 See O. Kimminich, Das Recht auf Heimat, Bonn 1989, p. 65 et seq.

35 J. R. Martinez Cobo, Study of the Problem of Discrimination against Indigenous Populations, UN-Doc. ECN.4/Sub.2/1986/7/Add.4, p. 2 et seq.

36 I. Brownlie, Principles of Public International Law (3rd ed.), Oxford 1983, p. 593.

37 In: Human Rights - A Compilation of International Instruments, Geneva 1988, p. 18.

38 See J. Sundberg, Customary law in Sweden and the Lapp Minority, in: 27 Netherlands International Law Review 1980, p. 263 et seq.

39 Even experts of the Human Rights Committee consider indigenous peoples as ,,minorities". In the report of the Committee it is stated: ,,With reference to Article 27 of the Covenant, information was sought on the national minorities existing in Costa Rica, particularly the Indians and on their numbers..." (UN-Doc. A/35/40, p. 79, para. 352).

40 L. B. Sohn, The Rights of Minorities, in: L. Henkin (ed.), The International Bill of Rights, New York 1981, p. 274.

41 J. Humphrey, No Distant Millennium: The International Law of Human Rights, Unesco 1989, p. 57.

42 See UN-Doc. E/CN.4/Sub.2/1988/24, p. 19, para. 72.

43 See UNESCO, New reflections on the concept of people's rights,in: 11 Human Rights Journal, 1990, p. 441 et seq.

44 R. Falk, The Rights of Peoples (In Particular Indigenous Peoples), in: J. Crawford (ed.), The Rights of Peoples, Oxford 1988, p. 21.

45 M. Davies, op. cit. (note 14), p. 25 et seq.

46 UN Doc. E/CN.4/Sub.2/1988/24, para 76.

47 R. L. Barsh, United Nations Seminar on Indigenous Peoples and States, in: 83 AJIL 1989, p. 602.

48 See E. Gayim, The United Nations Law on Self-Determination and Indigenous Peoples, in: 51 Nordisk Tidsskrift for International Ret 1982. p. 64.

49 H. Hannum/R.B. Lillich, The Concept of Autonomy in International law, in: 74 AJIL 1980, p. 860.

50 S. Venne, The New Language of Assimilation: A Brief Analysis of ILO Convention 169, in: Without Prejudice, Vol. 2 (1989), p. 57.

51 This was the opinion of the High Court of Australia in Koowarta v. Bjelke-Petersen (1982), 39 ALR 417, 455-6.

52 See L. Hannikainen, Peremptory Norms in International Law, Helsinki 1988, p. 467.

53 Examples are:

54 S. Venne, op. cit. (note 50), p. 57.

55 S. Venne, op. cit. (note 50), p. 58.

56 See R. Stavenhagen, Background Paper 3 for the UN Seminar on the Effects of Racism and Racial Discrimination on the Social and Economic Relations Between Indigenous Peoples and States, Geneva 1989, p. 6.

57 Independent Commission on International Humanitarian Issues, Indigenous Peoples - A Global Quest for Justice, London 1987, p. 23.

58 J. R. Martinez Cobo, op. cit. (note 35), p. 16, pala 197.

59 See S. Venne, op. cit. (note 50), p.62.

60 See the criticism of the Indigenous Peoples Preparatory Meeting Relating to the International Labours Organization's Convention Concerning Indigenous and Tribal Peoples in Independent Countries, Geneva, 28 July 1989. In this rather militant document one can read that the revision process was ,,paternalistic and racially discriminatory" and ,,that the ILO is a most inappropriate forum to detemmine the rights of indigenous peoples." See in: S. Venne, op. cit. (note 50), Appendix 1.

61 This is the year of the 500th anniverary of the establishment of the historic contact between indigenous peoples of America and the Europeans.