The International Labour Organization and Its Contribution to the Protection of the Rights of Indigenous Peoples

Athanasios Yupsanis

doi:10.1017/S006900580001033X

¹ Swepston, Lee “ILO Standards and Globalization,” in Roger Blanpain, ed, Confronting Globalization: The (Quest for a Social Agenda — Geneva Lectures (The Hague: Kluwer Law International, 2005) 11 at 11.Google Scholar The original ILO Constitution was incorporated as Part XIII of the Treaty of Peace between the Allied and Associated Powers and Germany, 28 June 1919, Articles 387-427, online: <http://www.ilo.org/public/english/bureau/leg/download/pArticlexiii-treaty.pdf> [Treaty of Versailles].

² See Zarka-Martres, Monique and Guichard-Kelly, Monique “Decent Work, Standards and Indicators,” in Kucera, David ed, Qualitative Indicators of Labour Standards: Comparative Methods and Applications (Dordrecht: Springer, 2007) 83 at 83.CrossRef Google Scholar

³ Constitution of the International Labour Organization, 1 April 1919, Article 2, online: <http://www.ilo.org/ilolex/english/constq.htm> [ILO Constitution]; see also International Labour Office, International Labour Standards: A Workers’ Educational Manual, 4th edition (Geneva: ILO, 1998) at 11–14.

⁴ Osieke, Ebere Constitutional Law and Practice in the International Labour Organization (Dordrecht: Martinus Nijhoff, 1985) at 52.Google Scholar

⁵ See Valticos, Nicolas “The Role of the ILO: Present Action and Future Perspectives” in Ramcharan, BG ed,Human Rights: Thirty Years after the Universal Declaration (The Hague: Martinus Nijhoff, 1979) 211 at 218.Google Scholar

⁶ ILO Constitution, supra note 3, Article 3(1); Lamarche, Lucie “The Right to Social Security in the International Covenant on Economic, Social and Cultural Rights” in Chapman, Audrey and Russell, Sage eds, Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Antwerp: Intersentia, 2002) 87 at 90.Google Scholar

⁷ ILO Constitution, supra note 3, Article 7(1); Landau, Eve C and Beigbeder, Yves From ILO Standards to EU Law: The Case of Equality between Men and Women at Work (Leiden: Martinus Nijhoff, 2008) at 13.CrossRef Google Scholar

⁸ Hannum, Hurst ed, Documents on Autonomy and Minority Rights (Dordrecht, Boston, London: Martinus Nijhoff, 1993) at 8.Google Scholar

⁹ Heintze, Hans-Joachim “The Protection of Indigenous Peoples under the ILO Convention” in Bothe, Michael Kurzidem, Thomas and Schmidt, Christian eds, Amazonia and Siberia: Legal Aspects of the Preservation of the Environment and Development in the Last Open Spaces (London: Graham and Trotman, 1993) 3310 at 312.Google Scholar

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¹¹ See Thornberry, Patrick Indigenous Peoples and Human Rights (Manchester, UK: Manchester University Press, 2002) at 320;CrossRef Google Scholar Hannum, Hurst Autonomy, Sovereignty and Self-Determination: The Accommodation of Conflicting Rights, revised edition (Philadelphia, PA: University of Pennsylvania Press, 1990) at 77.Google Scholar See also ILO Convention no. 64 Concerning the Regulation of Written Contracts of Employment of Indigenous Workers, 27 June 1939, online: <http://www.ilo.org/dyn/ no.rmlex/en/f?p=1000:12100:0::NO.::P12100_ILO_CODE:C064> [Convention no. 64]; Convention no. 65 Concerning Penal Sanctions for Breaches of Contracts of Employment by Indigenous Workers, 27 June 1939, online: <http://www.ilo. org/dyn/normlex/ en/f?p=1000:12100:0::NO.::P12100_ILO_CODE:C065> [Convention no. 65]; Convention no. 86 Concerning the Maximum Length of Contracts of Employment of Indigenous Workers, 11 July 1947, online: <http:// www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.::P12100_ILO_CODE: C086> [Convention no. 86]; Convention no. 104 Concerning the Abolition of Penal Sanctions for Breaches of Contracts of Employment by Indigenous Workers, 21 June 1955, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000: 12100:0::NO.::P12100_ILO_CODE:C104> [Convention no. 104].

¹² See Tennant, Chris “Indigenous Peoples, International Institutions and the International Legal Literature from 1945-1993” (1994) 16 Hum Rts Q 1 at 27–28.Google Scholar

¹³ See Niezen, Ronald “Recognizing Indigenism: Canadian Unity and the International Movement of Indigenous Peoples” (2000) 42 Comparative Studies in Society and History 119 at 127.CrossRef Google Scholar

¹⁴ International Labour Office (ILO), Indigenous Peoples: Living and Working Conditions of Aboriginal Populations in Independent Countries (Geneva: ILO, 1953). See de Costa, Ravi A Higher Authority: Indigenous Transnationalism and Australia (Sydney: University of New South Wales Press, 2006) at 70,Google Scholar noting that the study “was a development in international thinking on indigenous rights, but maintained a philosophy of uplifting those that did not yet ‘fully share in the national economy and culture.’”

¹⁵ Convention no. 107 Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.:: P12100_ILO_CODE:C107> [Convention no. 107].

¹⁶ See ILO, Recommendation Concerning the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal Populations in Independent Countries, 26 June 1957, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.::P12100_ ILO_CODE:R104> [Recommendation 104].

¹⁷ Hitchcock, Robert K “International Human Rights, the Environment and Indigenous Peoples” (1994) 5 Colo J Int’l Envtl L and Pol’y 1 at 9.Google Scholar

¹⁸ Convention no. 107, supra note 15, Articles 1-27. See Gudmundur Alfredsson, “International Law, International Organizations, and Indigenous Peoples” (1982) 36 J Int’l Affairs 113 at 120; Thornberry, supra note 11 at 327.

¹⁹ See Convention no. 107, supra note 15, Article 1(1)(a). See also Douglas Sanders, “The Re-emergence of Indigenous Questions in International Law” (1983) 1 Can Hum Rts YB 3 at 19; Thornberry, supra note 11 at 327.

²⁰ The convention simply requires governments to “seek the collaboration” of the populations concerned and their representatives in applying its provisions, without clarifying what seeking collaboration entails. See Convention no. 107, supra note 15, Article 5(a). See also Colborn, James W “International Labour Organization Convention Number 169: Celebrate the Differences” (1994) 2 Willamette Bulletin Int’l L and Pol’y 1 at 4.Google Scholar However, while the convention makes no provision for the direct participation of indigenous populations in government decision-making procedures, it has been interpreted by the Committee of Experts on the Application of Conventions and Recommendations (which is charged with reviewing reports submitted by states on their compliance with the commitments they have assumed) as requiring consultation with the peoples concerned in planning and implementing development programs. See Lawrence Barsh, Russel “An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples” (1990) 15 Okla City UL Rev 209 at 212.Google Scholar

²¹ Convention no. 107, supra note 15, Article 2(1). See Stuby, Gerhard “Autochthonous Peoples and Their International Legal Protection — Sixteen Theses,” in Hinz, Manfred O and Gatter, F Thomas eds, Global Responsibility — Local Agenda: The Legitimacy of Modern Self-Determination and African Traditional Authority (Berlin: Lit Verlag, 2006) 203 at 209;Google Scholar Thornberry, supra note 11 at 328.

²² Convention no. 107, supra note 15, Article 2(2)(c). See Behura, NK “ILO Convention: Indigenous and Tribal Peoples — An Analysis,” in Nath Pati, Rabindra and Dash, Jagannatha eds, Tribal and Indigenous People of India: Problems and Prospects (New Delhi: APH Publishers, 2002) 29 at 30.Google Scholar

²³ Convention no. 107, supra note 15, Article 2(4). See Lerner, Natan “The 1989 ILO Convention on Indigenous Populations: New Standards?” in Dinstein, Yoram and Tabory, Mala eds, The Protection of Minorities and Human Rights (Dordrecht: Martinus Nijhoff, 1992) 213 at 223.Google Scholar

²⁴ See Macklem, Patrick “Indigenous Recognition in International Law: Theoretical Observations” (2008) 30 Mich J Int’l L 177 at 194.Google Scholar

²⁵ “Governments at the time thought that the best way to advance the health and well-being of indigenous peoples was through integration and assimilation into mainstream societies.” Simon, Scott “Indigenous Peoples and Hunting Rights,” in Mendes, Errol P and Srighanthan, Sakunthala eds, Confronting Discrimination and Inequality in China: Chinese and Canadian Perspectives (Ottawa: University of Ottawa Press, 2009) 405 at 407.CrossRef Google Scholar See also Horner, Jack Seeking Racial Justice: An Insider’s Memoir of the Movement for Aboriginal Advancement (Canberra, Australia: Aboriginal Studies Press, 2004) at 55,Google Scholar noting that “the tone of the Convention was conservative throughout, for in Europe it was assumed that an enlightened and peaceful ‘integration’ into the national life was the best hope for Indigenous peoples.”

²⁶ Kelly Roy, Bernadette and Alfredsson, Gudmundur “Indigenous Rights: The Literature Explosion” (1987) 13 Transnational Perspectives 19 at 19.Google Scholar

²⁷ See Galey, Margaret E “Indigenous Peoples, International Consciousness Raising and the Development of International Law on Human Rights” (1975) 8 Revue des Droits de l’Homme 21 at 24.Google Scholar

²⁸ “The agents who drafted Convention 107 represented governments and businesses, and included expert anthropologists, but not indigenous people. They debated how fast indigenous peoples would be integrated into national societies, but did not consider the possibility of their continued autonomy.” Bodley, John H The Power of Scale: A Global History Approach (New York: ME Sharpe, 2003) at 260.Google Scholar

²⁹ See Swepston, Lee “Indigenous and Tribal Populations: A Return to Centre Stage” (1987) 126 Int’l Labour Rev 447 at 450.Google Scholar

³⁰ See, eg, Convention no. 107, supra note 15, Article 15(2).

³¹ Ibid, Articles 3(1), 15(1), 17(1).

³² Ibid, Articles 3(2)(a)-(b), 17(3). See Brownlie, Ian Treaties and Indigenous Peoples, edited by FM Brookfield (Oxford: Clarendon Press, 1992) at 64–65;Google Scholar Thornberry, Patrick International Law and the Rights of Minorities (Oxford: Clarendon Press, 1992) at 343–44;Google Scholar Lawrence Barsh, Russel “Indigenous North America and Contemporary International Law” (1983) 62 Or L Rev 73 at 82.Google Scholar

³³ See Nettheim, Garth “‘Peoples’ and ’Populations’ — Indigenous Peoples and the Rights of Peoples,” in Crawford, James ed, The Rights of Peoples (Oxford: Clarendon Press, 1988) 107 at 125–26.Google Scholar

³⁴ Convention no. 107, supra note 15, Article 7(2). See Al Faruque, Abdullah and Begum, Najnin “Conceptualising ‘Indigenous Peoples’ Rights: An Emerging New Category of Third — Generation Rights” (2004) 2 Asia Pac JHR and L 1 at 15; Thornberry, supra note 11 at 331.Google Scholar

³⁵ Convention no. 107, supra note 15, Article 8(b). See generally Bennet, Gordon E “The I.L.O. Convention on Indigenous and Tribal Populations — The Resolution of a Problem of Vires” (1972–73) 46 Brit YB Int’l L 382 at 383.Google Scholar

³⁶ See Bennet, Gordon “The International Law of Aboriginal Rights” (1979) 22 Int’l Comm Jur Rev 37 at 44,Google Scholar noting in relation to rights over natural resources that Article 4 of Recommendation 104, supra note 16, provides simply that indigenous populations shall be treated in the same way as the rest of the national population. See also Swepston, Lee and Plant, Roger “International Standards and the Protection of the Land Rights of Indigenous and Tribal Populations” (1985) 124 Int’l Labour Rev 91 at 97, 99.Google Scholar

³⁷ Convention no. 107, supra note 15, Article 11. See Landman, Lawrence B “International Protection for American Indian Land Rights?” (1987) 5 BU Int’l LJ 59 at 82 Google Scholar; Thornberry, supra note 11 at 333.

³⁸ Convention no. 107, supra note 15, Article 12(1). See Schrijver, Nico Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press, 1997) at 315.CrossRef Google Scholar

³⁹ Convention no. 107, supra note 15, Article 12(1). See Pallemaerts, Marc “Development, Conservation, and Indigenous Rights in Brazil” (1986) 8 Hum Rts Q 374 at 395.CrossRef Google Scholar

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⁴¹ Convention no. 107, supra note 15, Article 12(2)-(3). See Lucas, Eric “Towards an International Declaration on Land Rights” (1984) 33 Int’l Comm Jur Rev 61 at 65.Google Scholar

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⁴³ Gupta, Aman Human Rights of Indigenous Peoples, Volume 2: Comparative Analysis of Indigenous People (New Delhi: Isha Books, 2005) at 37.Google Scholar

⁴⁴ Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent Countries, 27 June 1989, 28 ILM 1382, online: <http://www.ilo.org/dyn/normlex/en/f?p=1000:12100:0::NO.::P12100_ILO_CODE:C169> [Convention no. 169]. See Fodella, Alessandro “International Law and the Diversity of Indigenous Peoples” (2006) 30 Vt L Rev 565 at 585.Google Scholar Convention no. 107 was ratified by twenty-seven states and continues to be in force for seventeen of them (namely Angola, Bangladesh, Belgium, Cuba, the Dominican Republic, Egypt, El Salvador, Ghana, Guinea-Bissau, Haiti, India, Iraq, Malawi, Pakistan, Panama, Syria, and Tunisia). Of the remaining ten, nine (namely Argentina, Bolivia, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Paraguay, and Peru) adhered to Convention no. 169 while Portugal denounced Convention no. 107 without subscribing (at the time of writing) to its successor. See ILO, “Ratifications of C107 – Indigenous and Tribal Populations Convention, 1957 (no. 107),” online: <http://www.ilo. org/dyn/normlex/en/f?p=NO.RMLEXPUB:11300:0::NO.:11300:P11300_INSTRUMENT_ID:312252:NO.>.

⁴⁵ “Although directed integration of the kind contemplated by Convention 107 was viewed as progressive in the 1940s and 50s, in the context of indigenous peoples it is readily apparent that state programmes of this nature have had ethnocidal consequences.” Berman, Howard R “The International Labour Organization and Indigenous Peoples: Revision of ILO Convention no. 107 at the 75th Session of the International Labour Conference, 1988” (1988) 41 Int’l Comm Jur Rev 48 at 49.Google Scholar

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⁴⁹ “Convention no. 107 was framed in terms of members of indigenous populations … Indigenous peoples or groups as such were only secondarily, if at all, made beneficiaries of rights of protection.” Meijknecht, Anna Towards International Personality: The Position of Minorities and Indigenous Peoples in International Law (Antwerp: Intersentia, 2001) at 149.Google Scholar See also Brölmann, CM and Zieck, MYA “Indigenous Peoples,” in Brölmann, C Lefeber, R and Zieck, N eds, Peoples and Minorities in International Law (Dordrecht: Martinus Nijhoff, 1993) 187 at 201.Google Scholar

⁵⁰ See Hinz, MO “Legal Pluralism in Jurisprudential Perspective,” in Hinz, Manfred O and Patemann, Helgard K eds, The Shade of New Leaves — Governance in Traditional Authority: A South African Perspective (Berlin: Lit Verlag, 2006) 29 at 37.Google Scholar

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⁵⁵ See Hannum, Hurst “Minorities, Indigenous Peoples and Self-Determination,” in Henkin, Louis and Hargrove, John Lawrence eds, Human Rights: An Agenda for the Next Century (Washington, DC: American Society of International Law, 1994) 1 at 3–4,Google Scholar noting that “[d]espite its broadly assimilationist approach, Convention no. 107 recognized that special protection for indigenous peoples was necessary and recognized, inter alia, the right of collective indigenous land ownership, the relevance of indigenous customary laws, and the right to be compensated for land taken by the state.”

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⁵⁸ See Morris, Glenn T “International Law and Politics: Toward a Right to Self-Determination for Indigenous Peoples,” in Jaimes, M Annette ed, The State of Native America: Genocide, Colonization, and Resistance (Boston: South End Press, 1992) 55 at 76.Google Scholar

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⁶¹ See Lawrence Barsh, Russel “Revision of ILO Convention no. 107” (1987) 81 AJIL 756 at 761.CrossRef Google Scholar

⁶² Convention no. 169, supra note 44. The convention was adopted by the ILO Conference with 328 votes in favour, one vote against, and forty-nine abstentions. See Anaya, S James Indigenous Peoples in International Law (Oxford: Oxford University Press, 1996) at 52–53, 67, n 92,Google Scholar noting that the single negative vote came from the delegate of the employers’ associations of the Netherlands and that ninety-two of the 328 votes in favour came from government delegates. See also Thornberry, supra note 11 at 340.

⁶³ Convention no. 169, supra note 44, Articles 1–12.

⁶⁴ Ibid, Articles 13–19.

⁶⁵ Ibid, Article 20.

⁶⁶ Ibid, Articles 21–23.

⁶⁷ Ibid, Articles 24–25.

⁶⁸ Ibid, Articles 26–31.

⁶⁹ Ibid, Article 32.

⁷⁰ Ibid, Article 33.

⁷¹ See Wiessner, Siegfried “Rights and Status of Indigenous Peoples: A Global Comparative and International Legal Analysis” (1999) 12 Harv Hum Rts J 57 at 100.Google Scholar

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⁷⁵ Convention no. 169, supra note 44, Article 2(1). See Nettheim, Garth Meyers, Gary D and Craig, Donna Indigenous Peoples and Governance Structures: A Comparative Analysis of Land and Resource Management Rights (Canberra, Australia: Aboriginal Studies Press, 2002) at 18 Google Scholar; see also Marquadt, Stephan “International Law and Indigenous Peoples” (1995) 3 Int’l J on Group Rights 47 at 56,CrossRef Google Scholar who, being very critical of the convention generally, comments that Article 2(1) does not specify the type or degree of participation to which it refers.

⁷⁶ Convention no. 169, supra note 44, Article 2(2)(b). See Lenzerini, Federico “Indigenous Peoples’ Cultural Rights and the Controversy over Commercial Use of Their Traditional Knowledge” in Francioni, and Scheinin, , supra note 74, 119 at 127–28Google Scholar; Thornberry, supra note 11 at 358.

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⁸⁰ Convention no. 169, supra note 44, Article 5(b). See Tucker, Catherine M “Land, Tenure Systems, and Indigenous Intellectual Property Rights,” in Riley, Mary ed, Indigenous Intellectual Property Rights: Legal Obstacles and Innovative Solutions (Walnut Creek, CA: AltaMira Press, 2004) 127 at 131.Google Scholar

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⁸⁴ Convention no. 169, supra note 44, Article 8(2). See Berkey, Curtis G “International Law and Domestic Courts: Enhancing Self-Determination for Indigenous Peoples” (1992) 5 Harv Hum Rts J 65 at 85 Google Scholar; Thornberry, supra note 11 at 359.

⁸⁵ See Lawrey, Andrée “Contemporary Efforts to Guarantee Indigenous Rights under International Law” (1990) 23 Vand J Transnat’l L 703 at 719–20.Google Scholar

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⁸⁷ Miller, Collin “Banishment from Within and Without: Analyzing Indigenous Sentencing under International Human Rights Standards” (2004) 80 NDL Rev 253 at 280.Google Scholar

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⁹⁰ Convention no. 169, supra note 44, Article 10(1).

⁹¹ Ibid, Article 10(2). See Sieder, Rachel “The Judiciary and Indigenous Rights in Guatemala” (2007) 5 Int’l J Constitutional L 211 at 221, n 38.CrossRef Google Scholar See also Humphry, supra note 83, noting that “the high rate of Aboriginal deaths in custody has made it open to question whether imprisonment per se is less cruel and inhuman” than other forms of indigenous punishment which are considered as such by non-indigenous scholars, legislators, and so on.

⁹² Convention no. 169, supra note 44, Article 17(1). See Neate, Graeme “Looking after Country: Legal Recognition of Traditional Rights to and Responsibilities for Land” (1993) 16 UNSWLJ 161 at 168.Google Scholar

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¹⁰⁰ Corntassel, JeffJ “Who Is Indigenous? ’Peoplehood’ and Ethnonationalist Approaches to Rearticulating Indigenous Identity” (2003) 9 Nationalism & Ethnic Politics 75 at 75CrossRef Google Scholar; see also African Commission on Human and Peoples’ Rights, Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities (Banjul, Gambia, Copenhagen: ACHPR, IWGIA, 2005) at 78, where it is noted: “It could be argued that, irrespective of the fact that many African states do not recognize the existence of indigenous people within their territories … Article 1.2 of ILO Convention 169 of 1989 grants rights and protection to people identifying themselves as indigenous in Africa.”

¹⁰¹ Angeles Trujano, Carlos Yescas Indigenous Routes: A Framework for Understanding Indigenous Migration (Geneva: International Organization for Migration, 2008) at 19 Google Scholar; see also Barsh, supra note 20 at 215, observing that: “Indigenous representatives have warned repeatedly … that state power to classify groups as non-indigenous is power to extinguish their legal rights.”

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¹⁰⁴ Venne, supra note 86 at 53, 56, 66.

¹⁰⁵ Convention no. 169, supra note 44, Article 8(2). See Venne, supra note 86 at 60, arguing that: “[i]f the bases for legal systems are rooted in two different needs and concerns there is very little compatibility.”

¹⁰⁶ Eg, Convention no. 169, supra note 44, Articles 1(3), 6(2), 7(1), 15, 16.

¹⁰⁷ Strelein, Lisa “The Price of Compromise: Should Australia Ratify ILO Convention 169?” in Bird, Creta Martin, Gary and Nielsen, Jennifer eds, Majah: Indigenous Peoples and the Law (Leichhardt: Federation Press, 1996) 63 at 85.Google Scholar

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¹¹² Peña Guzmán, Mireya Maritza “The Emerging System of International Protection of Indigenous Peoples’ Rights” (1996) 9 St Thomas L Rev 251 at 257 Google Scholar; Thornberry, supra note 11 at 342–43.

¹¹³ Jackson, Moana “The Face behind the Law: The United Nations and the Rights of Indigenous Peoples” (2005) 8 YB of New Zealand Jurisprudence 10 at 19.Google Scholar

¹¹⁴ See Barsh, Russel Lawrence “Indigenous Peoples in the 1990s: From Object to Subject of International Law?” (1994) 7 Harv Hum Rts J 33 at 44.Google Scholar

¹¹⁵ Michael Halewood, “Indigenous and Local Knowledge in International Law: A Preface to Sui Generis Intellectual Property Protection” (1999) 44 McGill LJ 953 at 958.

¹¹⁶ Wiemers, Serv “The International Legal Status of North American Indians after 500 Years of Colonization” (1992) 5 Leiden J Int’l L 69 at 75.CrossRef Google Scholar

¹¹⁷ Convention no. 169, supra note 44, Article 1(3). See Rodríguez-Piñero, Luis Indigenous Peoples, Postcolonialism, and International Law: The ILO Regime (1919–1989) (Oxford: Oxford University Press, 2005) at 307–8Google Scholar; Thornberry, supra note 11 at 343–44.

¹¹⁸ Eide, Asbjørn, “Rights of Indigenous Peoples: Achievements in International Law during the Last Quarter of a Century” (2007) 4 Gáldu Cála/Journal of Indigenous Peoples’ Rights 40 at 73.Google Scholar

¹¹⁹ See Alfredsson, Gudmundur “Human Rights Challenges in the Arctic,” in Heininen, Laisi and Laine, Kari eds, The Borderless North (Oulu: Thule Institute, University of Oulu, Northern Research Forum, 2008) 150 at 152 Google Scholar; Ulfstein, Geir “Indigenous Peoples’ Right to Land” (2004) 8 Max Planck YB of UN L 1 at 12.CrossRef Google Scholar

¹²⁰ See Moses, Ted “Renewal of the Nation,” in Alfredsson, Gudmundur and Stavropoulou, Maria eds, Justice Pending: Indigenous Peoples and Other Good Causes — Essays in Honour of Erica-Irene A. Daes (The Hague: Martinus Nijhoff, 2002) 57 at 63 Google Scholar, noting that “very few indigenous peoples anywhere in the world are secessionists.” See also Huff, Andrew “Indigenous Land Rights and the New Self-Determination” (2005) 16 Colo J Int’l Envtl L and Pol’y 295 at 320,Google Scholar noting that the insistence of states on invoking chaotic consequences that could ensue on the international stage from the recognition of indigenous peoples’ right to self-determination appears obtuse in view of those peoples’ repeated declarations that secession is not their object. According to Huff, this argument was advanced to cover states’ fears of losing control over natural resources (and their related benefits).

¹²¹ For an illustrative overview of the thesis of many indigenous peoples on the issue of self-determination, see the joint submission of a number of indigenous groups to the Working Group Established in Accordance with UN Commission on Human Rights Resolution 1995/32, “‘General Provisions’ of the Draft U.N. Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/2005/ WG.15/CRP.2 (24 November 2005).

¹²² “In the ILO Convention, a provision was added as paragraph 3 of Article 1 stating: ‘The use of the term “peoples’ in this Convention shall not be construed as having any implications regarding the rights which may attach to the term under international law.’ This has been taken by some — in particular by some representatives of indigenous and tribal peoples — to mean that the ILO Convention denies that those covered by it have the right to self-determination. This is clearly not the case, however; the International Labour Conference simply took the position that the question of self-determination was for the United Nations to resolve, not for the ILO.” International Labour Office, “Comments on the Draft United Nations Declaration on the Rights of Indigenous Peoples,” UN Doc E/CN.4/ 1995/119 (6 February 1995) at paras 14–15 [emphasis added]. See also Niezen, Ronald The Origins of Indigenism: Human Rights and the Politics of Identity (Berkeley, CA: University of California Press, 2003) at 162,CrossRef Google Scholar noting that: “[i]n effect, the ILO, in the interests of realizing a convention that would meet the immediate needs of indigenous peoples, postponed the debate on indigenous self-determination by handing it over to its parent body, the United Nations.”

¹²³ See Cleveland, Patrick “Apposition of Recent U.S. Supreme Court Decisions Regarding Tribal Sovereignty and International Indigenous Rights Declarations” (2000) 12 Pace Int’l L Rev 397 at 409.CrossRef Google Scholar

¹²⁴ As has been noted: “It is interesting that an International Organization is telling over 350 million people that they don’t exist as peoples. It raises the question of whose rights are protected: those of the indigenous peoples or the non indigenous peoples?” Joona, Tanja “ILO Convention no. 169 — A Solution for Land Disputes in the Nordic Countries?” in Heininen, and Laine, , supra note 119, 155 at 162 Google Scholar; Venne, supra note 86 at 56, commenting sarcastically that “[p]erhaps the revised Convention should be called the Convention concerning nonindigenous Peoples in Indigenous Peoples’ Territories and Their Right to Exist in Those Territories.” Strelein, supra note 107 at 70, criticizing the ILO’s thesis that the issue of self-determination is outside the scope of an ILO instrument as a reflection of its inappropriateness as a forum to accommodate indigenous peoples’ concerns.

¹²⁵ See Anaya, James “Indigenous Law and Its Contribution to Global Pluralism” (2007) 6 Indigenous LJ 3 at 6 Google Scholar; see also Barsh, supra note 20 at 215, observing: “Indeed, the convention’s use of the term “peoples,” while deprived of its usual connotation under international law, was accepted as a way of affirming that indigenous peoples have ‘an identity of their own’ and comprise organized societies rather than ‘mere groupings’ of individuals sharing some racial or ethnic characteristics.”

¹²⁶ See Anaya, S James “Indian Givers: What Indigenous Peoples Have Contributed to International Human Rights Law” (2006) 22 Wash U JL & Pol’y 107 at 112.Google Scholar According to Thornberry, the convention’s “commitment to collective rights is remarkable and thoroughgoing.” Thornberry, supra note 11 at 366–67. Rodríguez-Piñero for his part argues that “[f]ramed by the recognition of indigenous peoples as ‘peoples,’ Convention no. 169 takes a decisive stand on the collective nature of indigenous rights, transforming what the earlier convention defined as an object of applied anthropological concern into a collective subject of rights.” Rodríguez-Piñero, supra note 117 at 321. Compare with Donders, who notes that this collective approach does not take “the form of substantive collective rights adjudged to indigenous peoples as such, but instead reflects State obligations towards these peoples. Thus, indigenous peoples are not subjects of these provisions, but their beneficiaries. Donders, Yvonne “The UN Declaration on the Rights of Indigenous Peoples: A Victory for Cultural Autonomy?” in Boerefijn, Ineke and Goldschmidt, Jenny eds, Changing Perceptions of Sovereignty and Human Rights: Essays in Honour of Cees Flinterman (Antwerp: Intersentia,2008) 99 at 113.Google Scholar

¹²⁷ See Henriksen, John B Scheinin, Martin and Ahrén, Mattias “The Saami People’s Right to Self-Determination” (2007) 3 Gáldu Cála / Journal of Indigenous Peoples’ Rights 52 at 59.Google Scholar

¹²⁸ United Nations Declaration on the Rights of Indigenous Peoples, UNGA Res 61/295, UN Doc A/RES/61/295 (13 September 2007), Articles 4, 46(1) [UNDRIP]. See Koivurova, Timo “Sovereign States and Self-Determining Peoples: Carving Out a Place for Transnational Indigenous Peoples in a World of Sovereign States” (2010) 12 Int’l Comm L Rev 191 at 201–3.Google Scholar

¹²⁹ “The Convention does, however, aim to create the conditions necessary for ‘self-management’ by indigenous peoples, defined with reference to the pre-amble’s call for ‘control over their own institutions,’ which is apparently synonymous with at least some degree of ’self government.’” Fromherz, Christopher J “Indigenous Peoples’ Courts: Egalitarian Juridical Pluralism, Self-Determination, and the United Nations Declaration on the Rights of Indigenous Peoples” (2008) 156 U Pa L Rev 1341 at 1366.Google Scholar Along the same lines, Alfredsson observes that “even if the ILO Convention does not employ the term ‘autonomy,’ it is in fact dealing with group control over functions which have traditionally been delegated to autonomous regimes and which are necessary for maintaining group identity and culture.” Alfredsson, Gudmundur “Indigenous Peoples and Autonomy,” in Suksi, Markku ed, Autonomy: Applications and Implications (The Hague: Kluwer Law International, 1998) 125 at 127.Google Scholar Thornberry holds that “[i]n as far as self-determination is increasingly understood to contain an internal aspect, it may be that certain aspects of self-determination can be read into Convention 169 — notably in the area of participation rights and self-government.” Thornberry, supra note 11 at 344. According to Xanthaki, the convention “seems to contain the possibility of cultural autonomy.” Xanthaki, Alexandra “Indigenous Cultural Rights in International Law” (2000) 2 Eur JL Ref 343 at 348.Google Scholar Barsh argues that “[a]lthough the new convention does not refer explicitly to a right to self-determination, self-government, or autonomy, it plainly achieves the same result indirectly. It guarantees respect for indigenous ‘institutions’ generally and refers to a wide variety of specific rights of collective action.” Barsh, supra note 20 at 215. Ulfstein notes that “the Convention provides for extensive rights of participation in decision making, which is an important part of internal self-determination.” Ulfstein, supra note 119 at 12. For a view holding that Convention no. 169 grants “no effective rights of autonomy,” see Keal, Paul European Conquest and the Rights of Indigenous Peoples: The Moral Backwardness of International Society (Cambridge: Cambridge University Press, 2003) at 116.CrossRef Google Scholar

¹³⁰ See UN Secretariat of the Permanent Forum on Indigenous Issues, “Contribution of the ILO,” International Workshop on Free, Prior and Informed Consent and Indigenous Peoples (New York, 17–19 January 2005), UN Doc PFII/2005/ WS.2/4, para 2 [Contribution of the ILO].

¹³¹ Kawashima, Saeko “The Right to Effective Participation and the Ainu People” (2004) 11 Int’l J on Minority & Group Rights 21 at 28–29.Google Scholar

¹³² Xanthaki, Alexandra “Indigenous Rights in the Russian Federation: The Case of Numerically Small Peoples of the Russian North, Siberia, and Far East” (2004) 26 Hum Rts Q 26 74 at 85.CrossRef Google Scholar

¹³³ Convention no. 169, supra note 44, Article 6(1)(a). See Marks, Greg “Avoiding the International Spotlight: Australia, Indigenous Rights and the United Nations Treaty Bodies” (2002) 2 Hum Rts L Rev 19 at 50.Google Scholar

¹³⁴ ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Ecuador of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), made under Article 24 of the ILO Constitution by the Confederación Ecuatoriana de Organizaciones Sindicales Libres (CEOSL), 14 November 2001, ILO Doc (GB.277/18/1):(GB.282/14/4) at para 44 [Ecuador Report].

¹³⁵ Convention no. 169, supra note 44, Article 6(2). See Swepston, Lee “The ILO Indigenous and Tribal Peoples Convention (no. 169): Eight Years after Adop-tion,” in Cohen, Cynthia Price ed, Human Rights of Indigenous Peoples (Ardsley, NY: Transnational Publishers, 1998) 17 at 23.Google Scholar

¹³⁶ “The Committee recalls that in the discussion concerning the adoption of Article 6 of the Convention on prior consultation, a representative of the Secretary-General stated that in drafting the text the Office had not intended to suggest that the consultations referred to would have to result in the obtaining of agreement or consent of those being consulted, but rather to express an objective for the consultations.” Ecuador Report, supra note 134 at para 39.

¹³⁷ See Barelli, Mauro “Free, Prior and Informed Consent in the Aftermath of the UN Declaration on the Rights of Indigenous Peoples: Developments and Challenges Ahead” (2012) 16 Int’l JHR 1 at 6 Google Scholar; Heinämäki, Leena “Protecting the Rights of Indigenous Peoples -Promoting the Sustainability of the Global En-vironment?” (2009) 11 Int’l Comm L Rev 3 at 36.CrossRef Google Scholar

¹³⁸ See Venne, supra note 86 at 58–59, arguing that “consultation” “is used as an alibi to say that they did ask us, but there is no requirement to implement our position” and further concluding that it is better “to ignore the consultation game and & insist on consent as a prerequisite to any project that affects our life & Anything short of this minimum will be rejected.” See also Thornberry, supra note 11 at 349, noting that from the perspective of some indigenous peoples, the Convention “did not properly recognize the crucial requirement of indigenous consent.”

¹³⁹ See Strelein, supra note 107 at 77, criticizing the notion that the consent of indigenous peoples may not be required where decisions directly affect them as illustrative of “the paternal statist approach of Convention 169.”

¹⁴⁰ Barsh, supra note 20 at 219-20. See also Colborn, supra note 20 at 5.

¹⁴¹ Tahvanainen, Annika “The Treaty Making Capacity of Indigenous Peoples” (2005) 12 Int’l J Minority & Group Rights 397 at 414 [emphasis in original].CrossRef Google Scholar See also ILO, Report of the Committee Set up to Examine the Representation Alleging Non-Observance by Colombia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), Made under Article 24 of the ILO Constitution by the Central Unitary Workers’ Union (CUT) and the Colombian Medical Trade Union Association, 14 November 2001, ILO Doc (GB.277/18/1):(GB.282/14/4) at para 61 [Colombia Report], noting that “[i]n the opinion of the Committee, while Article 6 does not require consensus to be obtained in the process of prior consultation, it does provide that the peoples concerned should have the possibility to participate freely at all levels in the formulation, implementation and evaluation of measures and programmes that affect them directly.”

¹⁴² See, eg, Colombia Report, supra note 141 at para 90, where “[t]he Committee considers that the concept of consultation with the indigenous communities that might be affected with a view to exploiting natural resources must encompass genuine dialogue between the parties, involving communication and understanding, mutual respect and good faith, and the sincere desire to reach a consensus. A meeting conducted merely for information purposes cannot be considered as being consistent with the terms of the Convention. Furthermore, according to Article 6, the consultation must be ‘prior’ consultation, which implies that the communities affected are involved as early on as possible in the process, including in environmental impact studies.”

¹⁴³ Convention no. 169, supra note 44, Article 6(1)(b) [emphasis added]. See Pritchard, Sarah “Native Title from the Perspective of International Standards” (1997) 18 Australian YB of Int’l L 127 at 162.Google Scholar

¹⁴⁴ Ulfstein, supra note 119 at 15. See also Strelein, supra note 107 at 80, commenting that “[t]his kind of participation, which enshrines the ‘majority rules’ syndrome, fails to accommodate marginalised groups. Similarly, the argument that all individuals should be treated equally does not accept preferential rights that must be recognized in order to rectify historical and current marginalisation by the democratic majority.”

¹⁴⁵ See Venne, supra note 86 at 59, observing that “[i]n many instances, our people have become involved in the administrative framework of the government. The result has been that our own people become the tools of assimilation … When an indigenous person is elected within the political framework of the non-indigenous system, an onus is placed on that person to follow ‘the rules of the game’, a game which has historically involved our dispossession … This is not a solution for us. For to be included in their way is the ultimate goal of assimilation.” See also Strelein, supra note 107 at 80.

¹⁴⁶ See Barsh, supra note 20 at 220, n 46.

¹⁴⁷ Convention no. 169, supra note 44, Article 7(4). See Shelton, Dinah “Human Rights, Environmental Rights and the Right to Environment” (1991) 28 Stan J Int’l L 103 at 127.Google Scholar

¹⁴⁸ Convention no. 169, supra note 44, Article 7(2). See Myntti, Kristian “The Right of Indigenous Peoples to Participate in Development Projects” (2002) 8 Human Rights & Development YB 225 at 245.CrossRef Google Scholar

¹⁴⁹ Convention no. 169, supra note 44, Article 7(1). See Thornberry, Patrick “Minority and Indigenous Rights at ’the End of History’” (2002) 2 Ethnicities 515 at 526 CrossRef Google Scholar; Alfredsson, Gudmundur “Minimum Requirements for a New Nordic Sami Convention” (1999) 68 Nordic J Int’l L 397 at 405.CrossRef Google Scholar

¹⁵⁰ Convention no. 169, supra note 44, Article 7(1). See Macklem, Patrick “Indigenous Rights and Multinational Corporations at International Law” (2001) 24 Hastings Int’l and Comp L Rev 475 at 479.Google Scholar

¹⁵¹ Convention no. 169, supra note 44, Article 7(3) [emphasis added]. See Metcalf, Cherie “Indigenous Rights and the Environment: Evolving International Law” (2003–04) 35 Ottawa L Rev 101 at 112.Google Scholar

¹⁵² ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Bolivia of the Indigenous and Tribal Peoples Convention, 1989 (no. 169), Made under Article 24 of the ILO Constitution by the Bolivian Central of Workers (COB), March 1999, ILO Doc (GB.272/8/1):(GB.274/16/7) at para 39 [Bolivia Report].

¹⁵³ Convention no. 169, supra note 44, Article 7(3). See Quane, Helen “The Rights of Indigenous Peoples and the Development Process” (2005) 27 Hum Rts Q 652 at 669.CrossRef Google Scholar

¹⁵⁴ See Venne, supra note 86 at 60; Joona, supra note 124 at 162.

¹⁵⁵ See UN Economic and Social Council, Report of the Secretary-General on the Preliminary Review by the Coordinator of the International Decade of the World’s Indigenous Peoples on the Activities of the United Nations System in Relation to the Decade, 25 June 2004, UN Doc E/ 2004/CRP.12 at 39; Ecuador Report, supra note 134 at para 31; Contribution of the ILO, supra note 130 at para 2.

¹⁵⁶ See Eide, Asbjørn “Good Governance, Human Rights, and the Rights of Minorities and Indigenous Peoples,” in Hans-Otto Sano and Gudmundur Alfredsson, eds, Human Rights and Good Governance: Building Bridges (The Hague, London, New York: Martinus Nijhoff, 2002) 47 at61.Google Scholar

¹⁵⁷ See Prasad, Viniyanka “The UN Declaration on the Rights of Indigenous Peoples: A Flexible Approach to Addressing the Unique Needs of Varying Populations” (2010) 9 Chicago J Int’l L 297 at 312 Google Scholar; Thornberry, supra note 11 at 351.

¹⁵⁸ See ILO, Report of the Committee Set up to Examine the Representation Alleging non-Observance by Peru of the Indigenous and Tribal Peoples’ Convention, 1989 (no. 169), made under Article 24 of the ILO Constitution by the General Confederation of Workers of Peru (CGTP), 1998, ILO Doc /.270/16/4):GB.273/14/4) at para 32 (b), where the committee makes the following recommendation to the Governing Body: “b) to remind the Government of 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, and that when communally owned indigenous lands are divided and assigned to individuals or third parties, this often weakens the exercise of their rights by the community or the indigenous peoples and in general they may end up losing all or most of the land, resulting in a general reduction of the resources that are available to indigenous peoples when they own their land communally” [emphasis added].

¹⁵⁹ “The relation of an indigenous community with its land must be recognized and understood as the fundamental basis of its culture, spiritual life, integrity and economic survival. For such peoples their communal nexus with the ancestral territory is not merely a matter of possession and production, but rather consists in material and spiritual elements that must be fully integrated and enjoyed by the community, so that it may preserve its cultural legacy and pass it on to the future generation.” Case of theMoiwana Community (Suriname) (2005), Inter-Am Ct HR (Ser C) no. 124 at para 131.

¹⁶⁰ Convention no. 169, supra note 44, Article 13(1). See Holder, Cindy L and Corntassel, Jeff J “Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights” (2002) 24 Hum Rts Q 126 at 148 CrossRef Google Scholar; Thornberry, supra note 11 at 351.

¹⁶¹ Convention no. 169, supra note 44, Article 14(1). See Lustig, Doreen andKingsbury, Benedict “Displacement and Relocation from Protected Areas: International Law Perspectives on Rights, Risks and Resistance” (2006) 4 Conservation and Society 404 at 409 Google Scholar; Thornberry, supra note 11 at 352, noting that “[i]n the Convention perspective, land rights are not granted by the State, which must rec-ognize them as a matter of international obligation arising from traditional occupation.”

¹⁶² See Allen, Stephen “Looking beyond the Bancoult Cases: International Law and the Prospect of Resettling the Chagos Islands” (2007) 7 Hum Rts L Rev 441 at 476–77.Google Scholar

¹⁶³ See Barsh, supra note 20 at 225.

¹⁶⁴ See Venne, supra note 86 at 61; Joona, supra note 124 at 162.

¹⁶⁵ Convention no. 169, supra note 44, Article 14(1). See Eide, Asbjørn “Legal and Normative Bases for Saami Claims to Land in the Nordic Countries” (2001) 8 Int’l J on Minority & Group Rights 127 at 143.CrossRef Google Scholar

¹⁶⁶ Convention no. 169, supra note 44, Article 14(1). See Manus, Peter “Sovereignty, Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law” (2005) 23 Wis Int’l LJ 553 at 595.Google Scholar

¹⁶⁷ This issue was, however, addressed in Recommendation 104, supra note 16, albeit in the context of the integrationist approach of the late 1950s. See Gilbert, Jérémie “Nomadic Territories: A Human Rights Approach to Nomadic Peoples’ Land Rights” (2007) 7 Hum Rts L Rev 681,Google Scholar noting that this reference to nomadic peoples is “a welcome development within international law” (at 695–96) and in this regard the convention “stands as the leading treaty on the issue” (at 697).

¹⁶⁸ Convention no. 169, supra note 44, Article 14(2). See Xanthaki, Alexandra “Land Rights of Indigenous Peoples in South-East Asia” (2003) 4 Melbourne J Int’l L 467 at 477 Google Scholar; Rodríguez-Piñero, supra note 117 at 324.

¹⁶⁹ UNDRIP, supra note 128. See Gilbert, Jérémie “Indigenous Rights in the Making: The United Nations Declaration on the Rights of Indigenous Peoples” (2007) 14 Int’l J on Minority & Group Rights 207 at 226 CrossRef Google Scholar, noting that “[t]he Declaration remains vague by affirming that ’states shall give legal recognition and protection to these lands, territories and resources’ but does not provide for a clear obligation to demarcate indigenous lands.”

¹⁷⁰ Convention no. 169, supra note 44, Article 14(2). See Yukich, Kelley C “Aboriginal Rights in the Constitution and International Law” (1996) 30 UBCL Rev 235 at 253.Google Scholar

¹⁷¹ Convention no. 169, supra note 44, Article 18. See Spiry, Emmanuel “From ‘Self-Determination’ to a Right to ‘Self-Development’ for Indigenous Groups” (1995) 38 German YB Int’l L 129 at 149 Google Scholar; Rodríguez-Piñero, supra note 117 at 324.

¹⁷² Convention no. 169, supra note 44, Article 14(3). See Koivurova, Timo “Jurisprudence of the European Court of Human Rights Regarding Indigenous Peoples: Retrospect and Prospects” (2011) 18 Int’l J on Minority & Group Rights 1 at 21.Google Scholar

¹⁷³ See Anaya, S James “The Native Hawaiian People and International Human Rights Law: Toward a Remedy for Past and Continuing Wrongs” (1994) 28 Ga L Rev 309 at 348,Google Scholar observing that the use in Article 14(1) of the wording “traditionally occupy” in the present tense, and the deliberate rejection of the past tense, implies that there needs to be a link in the present time between the people concerned and their lands in order for the latter to be covered by this provision. In his view, it is possible for the mechanisms called for in Article 14(3) to be applied to traditionally occupied indigenous lands of which the traditional occupants were arbitrarily deprived in the past. See also Thornberry, supra note 11 at 358.

¹⁷⁴ Convention no. 169, supra note 44, Article 17(2). See Engle, Karen The Elusive Promise of Indigenous Development: Rights, Culture, Strategy (Durham, NC: Duke University Press, 2010) at 178,Google Scholar noting sarcastically that one should read “if ever"” instead of “whenever.”

¹⁷⁵ Convention no. 169, supra note 44, Article 17(3). See Bravo, Karen E “Balancing Indigenous Rights to Land and the Demands of Economic Development: Lessons from the United States and Australia” (1997) 30 Col JL & Soc Probs 529 at 537–38.Google Scholar

¹⁷⁶ Convention no. 169, supra note 44, Article 15(1). See Lindqvist, Johanna “Reindeer Herding: A Traditional Indigenous Livelihood” (2009) 6 Macq J Int’l & C Envtl L 83 at 100–1Google Scholar; Thornberry, supra note 11 at 356.

¹⁷⁷ Convention no. 169, supra note 44, Article 15(2). See Triggs, Gillian “Australia’s Indigenous Peoples and International Law: Validity of the Native Title Amendment Act 1998 (CTH)” (1999) 23 Melbourne UL Rev 372 at 389 Google Scholar; Thornberry, supra note 11 at 356.

¹⁷⁸ Convention no. 169, supra note 44, Article 15(2) [emphasis added]. See Ferch, Michael L “Indian Land Rights: An International Approach to Just Compensation” (1992) 2 Transnat’l L & Contemp Probs 301 at 323.Google Scholar

¹⁷⁹ Anaya, S James “Indigenous Peoples’ Participatory Rights in Relation to Decisions about Natural Resources Extraction: The More Fundamental Issue of What Rights Indigenous Peoples Have in Lands and Resources” (2005) 22 Ariz J Int’l & Comp L 7 at 10.Google Scholar See also Stamatopoulou, Elsa “Indigenous Peoples and the United Nations: Human Rights as a Developing Dynamic” (1994) 16 Hum Rts Q 58 at 74 CrossRef Google Scholar; Huff, supra note 120 at 305, noting that “[w]hile Article 15 requires a framework of consultation and, if possible, participation and compensation, signatory States clearly retain ultimate authority over the disposition of resources within indigenous territories.”

¹⁸⁰ Venne, supra note 86 at 62.

¹⁸¹ Ulfstein, supra note 119 at 27; see also Swepston, supra note 47 at 704.

¹⁸² UNDRIP, supra note 128. See Tramontana, Enzamaria “The Contribution of the Inter-American Human Rights Bodies to Evolving International Law on Indigenous Rights over Lands and Natural Resources” (2010) 17 Int’l J on Minority & Group Rights 241 at 247.CrossRef Google Scholar

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¹⁸⁵ Convention no. 169, supra note 44, Article 16(2). See Swepston, Lee and Tomei, Manuela “The International Labour Organization and Convention 169,” in Lydia van de Fliert, ed, Indigenous Peoples and International Organizations (Nottingham, UK: Spokesman Books, 1994) 56 at 59.Google Scholar See also Swepston, supra note 47 at 705, 707, noting that the representatives of indigenous peoples during the negotiations asked that their consent constitute an absolute precondition for relocation away from their lands, a demand, however, that was rejected on the grounds that there were cases where relocation was imperative (eg, because of some natural disaster, epidemic, and so on) regardless of the will or consent of the people concerned.

¹⁸⁶ Convention no. 169, supra note 44, Article 16(2) [emphasis added]. See Cohen, Roberta and Deng, Francis M Masses in Flight: The Global Crisis of Internal Displacement (Washington, DC: Brookings Institution Press, 1998) at 91.Google Scholar

¹⁸⁷ Convention no. 169, supra note 44, Article 16(3) [emphasis added]. See Asiema, Joy K and Situma, Francis DP “Indigenous Peoples and the Environment: The Case of the Pastoral Maasai of Kenya” (1994) 5 Colo J Int’l Envtl L & Pol’y 149 at 152.Google Scholar

¹⁸⁸ Convention no. 169, supra note 44, Article 16(4). See Sturgeon, Leslie “Constructive Sovereignty for Indigenous Peoples” (2005) 6 Chicago J Int’l L 455 at 457.Google Scholar

¹⁸⁹ Convention no. 169, supra note 44, Article 16(4).

¹⁹⁰ Ibid, Article 16(5). See Baluarte, David C “Balancing Indigenous Rights and a State’s Right to Develop in Latin America: The Inter-American Rights Regime and ILO Convention 169” (2004) 4 Sustainable Development L & Pol’y 9 at 11.Google Scholar

¹⁹¹ Venne, supra note 86 at 63.

¹⁹² Ibid.

¹⁹³ Ibid.

¹⁹⁴ Barsh, supra note 20 at 227.

¹⁹⁵ Swepston, supra note 47 at 706.

¹⁹⁶ Lenzerini, Federico “Sovereignty Revisited: International Law and Parallel Sovereignty of Indigenous Peoples” (2006) 42 Tex Int’l LJ 155 at 179.Google Scholar

¹⁹⁷ Swepston, supra note 47 at 697–98.

¹⁹⁸ American Convention on Human Rights, 22 November 1969, OASTS no. 36 (entered into force 18 July 1978) [ACHR].

¹⁹⁹ “Thus, the ‘indigenisation’ of the general right to property was based on more specific instruments on the rights of indigenous peoples. From this perspective, the Inter-American Court’s progressive approach seems to indicate that the most positive development regarding the content of human rights discourse in relation to indigenous peoples comes from the ILO Convention 169 and the UN and OAS Declarations.” Gilbert, supra note 169 at 211. See also Fitzmaurice, Malgosia “The New Developments Regarding the Saami People of the North” (2009) 16 Int’l J Minority & Group Rights 67 at 69–70.Google Scholar See further discussion of these developments below, text accompanying notes 253–71.

²⁰⁰ See Barsh, supra note 20 at 213, 234.

²⁰¹ See Alfredsson, Gudmundur and Ferrer, Erika Minority Rights: A Guide to United Nations Procedures and Institutions (London: Minority Rights Group International, Raoul Wallenberg Institute of Human Rights and Humanitarian Law, 1998) at 15.Google Scholar

²⁰² Convention no. 169, supra note 44, Article 26 [emphasis added]. See Beiter, Klaus Dieter The Protection of the Right to Education by International Law (Leiden: Martinus Nijhoff, 2006) at 310 CrossRef Google Scholar; Thornberry, supra note 11 at 361–62.

²⁰³ Convention no. 169, supra note 44, Article 27(1) [emphasis added]. See Kastrup, Jose Paulo “The Internationalization of Indigenous Rights from the En-vironmental and Human Rights Perspective” (1997) 32 Tex Int’l LJ 97 at 115 Google Scholar; Thornberry, supra note 11 at 362, observing that “[t]he provision represents the most demanding requirement for an indigenous or minority-sensitive educational programme generated by an international treaty.”

²⁰⁴ Convention no. 169, supra note 44, Article 27(2) [emphasis added]. See ILO, ILO Convention on Indigenous and Tribal Peoples, 1989 (no.169): A Manual, revised edition (Geneva: ILO, 2003) at 12, where it is noted that “the transfer of responsibility should take place only when indigenous and tribal peoples decide it is the right time for them to assume management and control of these issues. However once this is done, governments cannot simply walk away and avoid any further responsibility. They have to maintain an overview of the activities to make sure that they are running smoothly, and that they are properly financed.” Thornberry notes that “there is no properly comparable provision in other international instruments.” Thornberry, supra note 11 at 363.

²⁰⁵ Convention no. 169, supra note 44, Article 27(3) [emphasis added]. See Den Vosch, Marian Van and Genugtenq, Willem Van “International Legal Protection of Migrant Workers, National Minorities and Indigenous Peoples — Comparing Underlying Concepts” (2002) 9 Int’l J on Minority & Group Rights 195 at 216.Google Scholar

²⁰⁶ Strelein, supra note 107 at 72. Thornberry argues that this provision “contrasts vividly with the bleak negation of any State financial responsibility for such institutions in the FCNM [Framework Convention for the Protection of National Minorities, 10 November 1994, ETS no. 157] and the more guarded freedom to seek public contributions in the OSCE Copenhagen Document.” Thornberry, supra note 11 at 363. See also Barsh, supra note 20 at 230, observing that “in any event, states would bear fiscal responsibility for language education.”

²⁰⁷ Convention no. 169, supra note 44, Article 28(1) [emphasis added]. See UNESCO, Education in a Multilingual World: UNESCO Education Position Paper (Paris: UNESCO, 2003) at 23; Thornberry, supra note 11 at 363.

²⁰⁸ See de Varennes, Fernand Languages, Minorities and Human Rights (The Hague: Martinus Nijhoff, 1996) at 266.CrossRef Google Scholar

²⁰⁹ Ibid.

²¹⁰ Convention no. 169, supra note 44, Article 28(1). See Hannikainen, Lauri “The Status of Minorities, Indigenous Peoples and Immigrant and Refugee Groups in Four Nordic Countries” (1996) 65 Nordic J Int’l L 1 at 20–21.Google Scholar

²¹¹ See Schimmel, Noam “Indigenous Education and Human Rights” (2007) 14 Int’l J on Minority and Group Rights 425 at 430.CrossRef Google Scholar

²¹² Convention no. 169, supra note 44, Article 29. See Cohen, Cynthia Price “International Protection of the Rights of the Indigenous Child” (1995) 7 St Thomas L Rev 557 at 559.Google Scholar

²¹³ Frost, Lynda “The Bilingual Education of Indigenous Children in Nicaragua under the 1987 Autonomy Statute: The Effective Limits of Legal Change” (1995) 3 Int’l J Child Rts 51 at 58.Google Scholar

²¹⁴ Convention no. 169, supra note 44, Article 28(2). See Hastings, WK “International Law and Education in a Minority Language,” in Wodak, Ruth and Corson, David eds, Language Policy and Political Issues in Education, volume 1 (Dordrecht: Kluwer Academic, 1997) 367 at 72 Google Scholar; Thornberry, supra note 11 at 364.

²¹⁵ Convention no. 169, supra note 44, Article 31. See Thornberry, Patrick and Gibbons, Dianne “Education and Minority Rights: A Short Survey of Inter-national Standards” (1997) 4 Int’l J on Minority & Group Rights 115 at 139.CrossRef Google Scholar

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²¹⁸ Baer, Lars-Anders “The Rights of Indigenous Peoples: A Brief Introduction in the Context of the Sámi” (2005) 12 Int’l J on Minority & Group Rights 245 at 252.CrossRef Google Scholar

²¹⁹ See Guruswamy, Lakshman Roberts, Jason C and Drywater, Catina “Protecting the Cultural and Natural Heritage: Finding Common Ground” (1999) 34 Tulsa LJ 713 at 730,Google Scholar noting however that “although the Convention does not expressly address cultural property protection, it has been interpreted as a safeguard for the heritage of indigenous peoples.”

²²⁰ McClellan, Traci L “The Role of International Law in Protecting the Traditional Knowledge and Plant Life of Indigenous Peoples” (2001) 19 Wis Int’l LJ 249 at 261.Google Scholar

²²¹ In the words of one critic, “Convention no. 169 contains few clear norms and virtually no sanctions.” Geer, Martin A “Foreigners in Their Own Land: Cultural Land and Transnational Corporations: Emergent International Rights and Wrongs” (1998) 38 Va J Int’l L 331 at 367.Google Scholar

²²² “Many of the provisions in the Convention are qualified by terms such as ‘as appropriate,’ ‘as necessary,’ ‘whenever practicable’ or ‘to the extent possible.’ These terms provide flexibility to the Convention, although critics say that they may have the effect of limiting or obscuring the obligations of ratifying Governments.” Joona, Tanja “The Political Recognition and Ratification of ILO Convention no. 169 in Finland, with Some Comparison to Sweden and Norway” (2005) 23 Nordic J Human Rights 305 at 311.Google Scholar

²²³ See Suagee, Dean B “Human Rights of Indigenous Peoples: Will the United States Rise to the Occasion?” (1997) 21 Am Indian L Rev 365 at 368.Google Scholar

²²⁴ Convention no. 169, supra note 44, Article 34. See Graver, Hans Petter and Ulfstein, Geir “The Sami People’s Right to Land in Norway” (2004) 11 Int’l J on Minority & Group Rights 337 at 347CrossRef Google Scholar; Thornberry, supra note 11 at 365–66. Regarding the issue of the Convention’s “flexibility,” see Jones, Peris and Langford, Malcolm “Between Demos and Ethos: The Nepal Constitution and Indigenous Rights” (2011) 18 Int’l J on Minority & Group Rights 369 at 375.Google Scholar

²²⁵ Nettheim, Garth “‘The Consent of the Natives’: Mabo and Indigenous Political Rights” (1993) 15 Sydney L Rev 223 at 233.Google Scholar

²²⁶ See 'Barsh, Russel Lawrence “Indigenous Peoples and the UN Commission on Human Rights: A Case of the Immovable Object and the Irresistible Force” (1996) 18 Hum Rts Q 782 at 789–90.Google Scholar See also Rodríguez-Piñero, supra note 117 at 319, commenting that Convention no. 169 was virtually ignored by indigenous representatives involved in the drafting of UNDRIP.

²²⁷ See Kirby, Michael “Protecting Cultural Rights: Some Developments,” in Wilson, Margaret and Hunt, Paul eds, Culture, Rights and Cultural Rights: Perspectives from the South Pacific (Wellington: Huia, 2000) 145 at 149.Google Scholar

²²⁸ Posey, Darrell Addisson “Can Cultural Rights Protect Traditional Cultural Knowledge and Biodiversity?” in Nieć, Halina ed, Cultural Rights and Wrongs (Paris: UNESCO, Institute of Article and Law, 1998) 42 at 47.Google Scholar

²²⁹ See Barelli, Mauro “The Interplay between Global and Regional Human Rights Systems in the Construction of the Indigenous Rights Regime” (2010) 32 Hum Rts Q 951 at 955,CrossRef Google Scholar n 16, observing that “the poor ratification record had inevitably undermined the global impact of ILO no. 169,” since the majority of indigenous peoples find themselves unable to rely on its legal framework. Compare UN Commission on Human Rights, “Human Rights and Indigenous Issues: Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, Mr. Rodolfo Stavenhagen, submitted pursuant to Commission Resolution 2001/57,” 4 February 2002, UN Doc E/CN.4/2002/97 at para 16, where the special rapporteur argues that “while Convention 169 has received only a limited number of ratifications up to now, it is rapidly becoming a vibrant instrument for use by both States and indigenous organizations.” Convention no. 169 has been ratified (as of 15 February 2012) by Argentina, Bolivia, Brazil, the Central African Republic, Chile, Colombia, Costa Rica, Denmark, Dominica, Ecuador, Fiji, Guatemala, Honduras, Mexico, Nepal, the Netherlands, Nicaragua, Norway, Paraguay, Peru, Spain, and Venezuela. See “Ratifications of C169 — Indigenous and Tribal Peoples Convention, 1989 (no. 169),” online: <http://www.ilo.org/dyn/no.rmlex/en/f?p=NO.RMLEXPUB: 11300:0::NO.:11300:P11300_INSTRUMENT_ID:312314:NO.>.

²³⁰ See International Labour Office, Indigenous and Tribal Peoples’ Rights in Practice: A Guide to ILO Convention no. 169 (Geneva: ILO, 2009) at 179.

²³¹ Hurst Hannum, “Human Rights” in Joyner, supra note 54, 131 at 149.

²³² Clavero, Bartolomé “The Indigenous Rights of Participation and International Development Policies” (2005) 22 Ariz J Int’l and Comp L 41 at 46.Google Scholar

²³³ See Yupsanis, Athanasios “ILO Convention no. 169 Concerning Indigenous and Tribal Peoples in Independent Countries 1989–2009: An Overview” (2010) 79 Nordic J Int’l L 433 at 448.CrossRef Google Scholar

²³⁴ ILO Constitution, supra note 3.

²³⁵ Ibid, Article 22. See Swepston, Lee “The International Labour Organization and Human Rights: Access to the ILO,” in Alfredsson, Gudmundur et al, eds, International Human Rights Monitoring Mechanisms: Essays in Honour of Jacob Th. Möller, 2nd edition (Leiden: Martinus Nijhoff, 2009) 291 at 294.CrossRef Google Scholar

²³⁶ ILO Constitution, supra note 3, Article 23(2). See de Wet, Erika “Governance through Promotion and Persuasion: The 1998 ILO Declaration on Fundamental Principles and Rights at Work,” in von Bogdandy, Armin et al, eds, The Exercise of Public Authority by International Institutions—Advancing International Institutional Law (Heidelberg: Springer, 2010) 377 at 396.Google Scholar

²³⁷ See Gravel, Eric and Charbonneau-Jobin, Chloé The Committee of Experts on the Application of Conventions and Recommendations: Its Dynamic and Impact (Geneva: ILO, 2003) at 13.Google Scholar

²³⁸ Wolf, Francis “Human Rights and the International Labour Organization,” in Meron, Theodor ed, Human Rights in International Law: Legal and Policy Issues, volume 2 (Oxford: Clarendon Press, 1984) 273 at 284.Google Scholar

²³⁹ ILO Constitution, supra note 3, Article 26(1). See Howse, Robert and Langille, Brian A with Burda, Julien “The World Trade Organization and Labour Rights: Man Bites Dog,” in O’Leary, Virginia and Warner, Daniel eds, Social Issues, Globalisation and International Institutions: Labour Rights and the EU, ILO, OECD and WTO (Leiden: Martinus Nijhoff, 2006) 157 at 194.CrossRef Google Scholar

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²⁴¹ ILO Constitution, supra note 3, Article 28. See Nielsen, Henrik Karl “The Supervisory Machinery of the International Labour Organization” (1995) 64 Nordic J Int’l L 129 at 138–39.CrossRef Google Scholar

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²⁴³ ILO Constitution, supra note 3, Article 25. See Ketley, Harriet “Exclusion by Definition: Access to International Tribunals for the Enforcement of the Collective Rights of Indigenous Peoples” (2001) 8 Int’l J on Minority & Group Rights 331 at 343.CrossRef Google Scholar

²⁴⁴ Pitty, R “Indigenous Peoples, Self-Determination and International Law” (2001) 5 Intl J Human Rights 44 at 58.CrossRef Google Scholar

²⁴⁵ See ILO Convention on Indigenous and Tribal Peoples, 1989 (no. 169): A Manual, supra note 204 at 78; Joona, supra note 99 at 225.

²⁴⁶ See International Labour Office, Eliminating Discrimination against Indigenous and Tribal Peoples in Employment and Occupation: A Guide to ILO Convention no. III (Geneva: ILO, 2007) at 26.

²⁴⁷ See Roy, Chandra and Kaye, Mike The International Labour Organization: A Handbook for Minorities and Indigenous Peoples (London: Minority Rights Group International, Anti-Slavery International, 2002) at 8, 25,Google Scholar noting that it is vital for indigenous peoples to develop and foster good relations with workers’ and employers’ organizations, since they play a key role in monitoring the implementation of ILO Conventions.

²⁴⁸ Anaya, S James “Divergent Discourses about International Law, Indigenous Peoples, and Rights over Lands and Natural Resources: Toward a Realist Trend” (2005) 16 Colo J Int’l Envtl L & Pol’y 237 at 246.Google Scholar

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²⁵⁰ Brady, Jennifer E “The Huaorani Tribe of Ecuador: A Study in Self-Determination for Indigenous Peoples” (1997) 10 Harv Hum Rts J 291 at 309.Google Scholar

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²⁵² See Anaya, S James Moira Gracey, and Leonardo Alvarado, The Rights of the Pygmy People in the Republic of Congo: International Legal Context (London: Rainforest Foundation, 2005) at 19, n 84.Google Scholar

²⁵³ Case of the Mayagna (Sumo) Awas Tingni Community (Nicaragua) (2001), Inter-Am Ct HR (Ser C) no. 79; also reported as Inter-American Court of Human Rights, “The Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgement of August 31, 2001” (2002) 19 Ariz J Int’l & Comp L 395.

²⁵⁴ ACHR, supra note 198, Article 21; American Declaration of the Rights and Duties of Man, OAS Res XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, Doc OEA/Ser.L/V/II.82/doc.6 rev.1 at 17 (1992), Article 23 [American Declaration]. See Mello, Mario, “Recent Advances in the Justiciability of Indigenous Rights in the Inter-American System of Human Rights” (2006) 4 Sur-Int’l J Human Rights 31 at 35.Google Scholar

²⁵⁵ Case of the Yakye Axa Indigenous Community (Paraguay) (2005), Inter-Am Ct HR (Ser C) no. 125 at para 2 [Yakye Axa case].

²⁵⁶ ACHR, supra note 198, Articles 1(1), 4, 8, 21, 25. See Tinta, Mónica Feria The Landmark Rulings of the Inter-American Court of Human Rights on the Rights of the Child: Protecting the Most Vulnerable at the Edge (Leiden: Martinus Nijhoff, 2008) at 284–85.CrossRef Google Scholar

²⁵⁷ Convention no. 169, supra note 44, Article 14(3).

²⁵⁸ Yakye Axa case, supra note 255 at paras 95–96.

²⁵⁹ Ibid at para 127.

²⁶⁰ Ibid at para 130. See also Góngora-Mera, Manuel Eduardo Inter-American Judicial Constitutionalism: On the Constitutional Rank of Human Rights Treaties in Latin America Through National and Inter-American Adjudication (San José, Costa Rica: Inter-American Institute of Human Rights, 2011) at 224.Google Scholar

²⁶¹ Yakye Axa case, supra note 255 at para 135. See also Pasqualucci, Jo M “International Indigenous Land Rights: A Critique of the Jurisprudence of the Inter-American Court of Human Rights in the Light of the United Nations Declaration on the Rights of Indigenous Peoples” (2009) 27 Wis Int’l LJ 51 at 80.Google Scholar

²⁶² Yakye Axa case, supra note 255 at para 136.

²⁶³ Ibid at paras 150-51. See also Inter-American Commission of Human Rights, Indigenous and Tribal Peoples’ Rights over Their Ancestral Lands and Natural Resources: Norms and Jurisprudence of the Inter-American Human Rights System, 30 December 2009, Doc OEA/Ser.L/V/II/doc.56 (2009) at para 147.

²⁶⁴ See Ching-Soto, Lilly G “Reparations in the Inter-American System of Human Rights: An Analysis of the Jurisprudence on Collective Cases of Indigenous Peoples and the Economic, Social and Cultural Aspects of Their Reparations” (2010) 10 Revista do Instituto Brasileiro des Direitos Humanos 219 at 223–24.Google Scholar

²⁶⁵ ACHR, supra note 198, Articles 1(1), 2, 4, 5, 8, 21, 25.

²⁶⁶ Case of the Sawhoyamaxa Indigenous Community (Paraguay) (2006), Inter-Am Ct HR (Series C) no. 146 [Sawhoyamaxa case]. See Raisz, Anikó “Indigenous Communities before the Inter-American Court of Human Rights: New Century, New Era?” (2008) 5 Miskolc J Int’l L 35 at 46.Google Scholar

²⁶⁷ Sawhoyamaxa case, supra note 266 at para 2.

²⁶⁸ See Suárez Franco, Ana María “Effectively Realizing ESCR: The Sawhoyamaxa Decision of the Inter-American Court of Human Rights” (2007) 2 Right to Food Quarterly 2 at 2.Google Scholar

²⁶⁹ Sawhoyamaxa case, supra note 266 at para 117.

²⁷⁰ Ibid at paras 119-120. See also De Schutter, Olivier “The Green Rush: The Global Race for Farmland and the Rights of Land Users” (2011) 52 Harv Int’l LJ (2011) 503 at 536, n 129.Google Scholar

²⁷¹ See Courtis, Christian “The Right to Food as a Justiciable Right: Challenges and Strategies” (2007) 11 Max Planck YB UN L 317 at 333.CrossRef Google Scholar

²⁷² Grote, Rainer “The Status and Rights of Indigenous Peoples in Latin America” (1999) 59 Heidelberg J Int’l L 497 at 526–27Google Scholar; Rodríguez-Piñero, supra note 117, noting that “indigenous policies in Latin America gave way to a new paradigm of ’multicultural constitutionalism’” (at 326) and that “Convention 169 is, in many respects, a Latin America indigenous code” (at 338). For a detailed analysis, see ILO International Standards Department, Application of Convention no. 169 by Domestic and International Courts in Latin America: A Casebook (Geneva: ILO, 2009). See also Courtis, supra note 108 at 64–67, 70–75.

²⁷³ Alejandro Papic Domínguez Con Comunidad Indigena Aymara Chusmiza v Usmagama, no. 2840-2008, 25 November 2008 (Supreme Court of Chile).

²⁷⁴ See Bassi, Michelle Platt Ethical Issues of Water Resource Management in a Changing Climate: Equity and Legal Pluralism in Chile (MA Thesis, Department of International Studies and the Graduate School of the University of Oregon, 2010) at 77–80 [unpublished].Google Scholar

²⁷⁵ McGraw, George S “Defining and Defending the Right to Water and Its Minimum Core: Legal Construction and the Role of National Jurisprudence” (2011) 8 Loyola University Chicago Int’l L Rev 127 at 182, n 347.Google Scholar

²⁷⁶ See Altschuller, Sarah A Lehr, Amy and Spears, Suzanne A “Corporate Social Responsibility” (2010) 44 Int’l Lawyer 213 at 228.Google Scholar

²⁷⁷ Ibid.

²⁷⁸ General Forestry Act, Act 1021 of 2006 (Colombia).

²⁷⁹ Decision C-030/08, 23 January 2008, Case File D-6837 (Constitutional Court of Colombia).

²⁸⁰ The “Constitutional Block” doctrine holds that human rights conventions ratified by the ColombianState are part of the Constitution and should be used to determine the constitutionality of lower-ranking acts or laws. According to this doctrine, Convention no. 169 has, in Colombia, a constitutional status and is obligatory for legislators, administrative officers, and judges. See Suárez Franco, Ana María “Unconstitutionality Declaration of the Forestry Law in Colom-bia” (2008) 3 Right to Food Quarterly 10 at 10.Google Scholar

²⁸¹ See de León, Eugenia Ponce “Colombia’s New Forest Law Rejected” (2008) 36 Arborvitae 5 at 5.Google Scholar

²⁸² See Republic of Colombia, Constitutional Court, Presidency, “Press Release no. 1 (Press Release translated by ELAW and AIDA from the original Spanish version issued by the Colombian Constitutional Court)” (23 January 2008), online: <http://www.elaw.org/system/files/Constitutional+Court+consultation+ Forestry+Act.pdf >.

²⁸³ Crawford, Colin “Environmental Benefits and the Notion of Positive Environmental Justice” (2011) 32 U Pennsylvania J Intl L 3911 at 927.Google Scholar

²⁸⁴ Case3878-207, 21 December 2009 (Constitutional Court of Guatemala).

²⁸⁵ See Indigenous Peoples Issues and Resources, “Guatemalan Constitutional Court States that ILO Convention 169 has Constitutional Status,” online:<http://indigenouspeoplesissues.com/index.php?option=com_content andview=Articleandid=3990:guatemalan-constitutional-court-states-that-ilo -convention-169-has-constitutional-statusandcatid=30andItemid=63>.

²⁸⁶ See Courtis, Christian “Notes on the Implementation by Latin American Courts of the ILO Convention no. 169 on Indigenous Peoples” (2011) 18 Int’l J on Minority & Group Rights 433 at 457–58.Google Scholar

²⁸⁷ See Miller, Michael J “Biodiversity Policy Making in Costa Rica: Pursuing Indigenous and Peasant Rights” (2006) 15 J Environment & Development 359 at 375–76.Google Scholar

²⁸⁸ See Brondo, Keri Vacanti and Woods, Laura “Garifuna Land Rights and Eco-tourism as Economic Development in Honduras’ Cayos Cochinos Marine Protected Area” (2007) 3 Ecological & Environmental Anthropology 2 at 8.Google Scholar

²⁸⁹ See Vrdoljak, Ana Filipa “Self-Determination and Cultural Rights,” in Francioni, and Scheinin, , supra note 74, 41 at 73, n 195.Google Scholar

²⁹⁰ See Susanne Vars, Láilá “Political Aspects of the Sami’s Right to Self-Determination” (2008) 2 Gáldu Cála / J Indigenous Peoples’ Rights 62 at 69.Google Scholar

²⁹¹ A Daes, Erica-Irene “An Overview of the History of Indigenous Peoples: Self-Determination and the United Nations” (2008) 21 Cambridge Rev Int’l Affairs 7 at 11.CrossRef Google Scholar

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²⁹³ Cal vAttorney General, Claim no. 171 of 2007, Supreme Court of Belize (18 October 2007) (2007) 46 ILM 1022 at para 2.

²⁹⁴ See Genugten, Willem van “Protection of Indigenous Peoples on the African Continent: Concepts, Position Seeking, and the Interaction of Legal Systems” (2010) 104 AJIL 29 at 52.CrossRef Google Scholar

²⁹⁵ Cal v Attorney General, supra note 293 at para 130. See also Campbell, Maia S and Anaya, S James “The Case of the Maya Villages of Belize: Reversing the Trend of Government Neglect to Secure Indigenous Land Rights” (2008) 8 Hum Rts L Rev 377 at 398.Google Scholar

²⁹⁶ Cal v Attorney General, supra note 293 at para 136. See also Doyle, Cathal “Indigenous Peoples and the Millennium Development Goals — ’Sacrificial Lambs’ or Equal Beneficiaries?” (2009) 13 Int’l JHR 44 at 52–53.Google Scholar

²⁹⁷ Lemeiguran v Attorney General, [2008] 3 Kenya LR 325 [Lemeiguran].

²⁹⁸ See Kenya National Commission on Human Rights, Submission to the Committee on the Elimination of Racial Discrimination in Response to the Periodic Report of Kenya (June 2011) at 13, online: <http://www2.ohchr.org/english/bodies/cerd/docs/ngos/KNCHR_Kenya_CERD79.pdf>.

²⁹⁹ See Lemeiguran, supra note 297 at 325–26, 344.

³⁰⁰ UN Human Rights Committee, Consideration of Reports Submitted by States Parties under Article 40 of the Covenant: Third Periodic Report of States Parties: Kenya, UN Doc CCPR/C/KEN/3 (13 January 2011) at para 203.

³⁰¹ Lemeiguran, supra note 297 at 365–66.

³⁰² Ibid at 367. See also International Labour Organization and African Commission on Human and Peoples’ Rights, Kenya: Constitutional, Legislative and Administrative Provisions Concerning Indigenous Peoples (Geneva: International Labour Office, 2009) at 26.

³⁰³ Lemeiguran, supra note 297 at 386–87.

³⁰⁴ Pentassuglia, Gaetano “Towards a Jurisprudential Articulation of Indigenous Land Rights” (2011) 22 EJIL 165 at 190.CrossRef Google Scholar

³⁰⁵ “The cross-sectoral Strategy on Cooperation with Indigenous Peoples in Latin America and the Caribbean is a binding guideline adopted by the Federal Ministry for Economic Cooperation and Development (BMZ) for the formulation of development co-operation (DC) in Latin America and the Caribbean by official bilateral implementing agencies … Its principles are derived directly from the provisions of ILO Convention (no. 169) Concerning Indigenous and Tribal Peoples in Independent Countries.” Federal Ministry for Economic Cooperation and Development (Germany), Development Education and In-formation Division, “Development Cooperation with Indigenous Peoples in Latin America and the Caribbean (Strategies 141)” (2006) at 4, online: <http:// www.bmz.de/en/publications/type_of_publication/strategies/konzept141.pdf>.

³⁰⁶ See Valenta, Lisa “Disconnect: The 1998 Brazilian Constitution, Customary International Law, and Indigenous Land Rights in Northern Brazil” (2003) 38 Tex Int’l LJ 643 at 659.Google Scholar See also Oguamanam, Chidi “Indigenous Peoples and International Law: The Making of a Regime” (2004) 30 Queen’s LJ 348 at 364 Google Scholar; Rodríguez-Piñero, supra note 117 at 328, noting that “Convention 169 is now widely regarded as an important foundation of indigenous peoples’ rights in international law, and most indigenous organizations now actively promote the ratification of the convention.”

³⁰⁷ Heintze, supra note 9 at 310. As Thornberry also notes, “[t]he ILO can claim much of the credit for bringing rights of indigenous peoples — as such, and not as derivatives of other rights or applications of them — into the forefront of contemporary discussion.” Thornberry, supra note 11 at 320.

³⁰⁸ See Xanthaki, Alexandra “Indigenous Rights in International Law over the Last Ten Years and Future Developments” (2009) 10 Melbourne J Int’l L 27 at 29.Google Scholar

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The International Labour Organization and Its Contribution to the Protection of the Rights of Indigenous Peoples

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