Convention No. 169 in practice
Changing constitutions and bringing peace
Until now, ILO Convention No. 169 has been ratified by 19 countries. The impact of the Convention on legislation and daily administration in these countries varies, but for some, its ratification has led to major changes in the governance system. Among these are Mexico and Bolivia, who after ratification in the early 1990s, decided to revise their constitutions in the spirit of the Convention and to recognise the existence of indigenous peoples and the multi-ethnic nature of the State.
In Nepal, the Convention had a crucial role in the peace agreement that ended the civil war that had ravaged the country for 10 years. The ratification of the Convention was one of the pre-conditions for the Maoist rebels to sign the peace-agreement with the government and in September 2007, the ratification of Convention No. 169 became a reality in Nepal. Thereby, the process in Nepal mirrors the peace process in Guatemala in 1996, where the ratification of Convention No. 169 was an integral part of the Peace Accords.
Making international law national
By ratifying an ILO Convention, states agree to be bound by the rules laid down in its provisions. This means that governments promise to make the Articles of the Convention part of their national law.
Altogether, the ILO has adopted 187 Conventions on various issues such as working conditions, maternity protection, discrimination, freedom of association, child labour and so-on. Unlike other international treaties, ILO Conventions generally cannot be ratified with reservations, but have to be accepted in their entirety. This also goes for Convention No. 169.
After having decided to ratify a Convention, a state sends a letter to the ILO informing it of the decision. The ILO will then officially register the ratification and inform other member states. The Convention in question then becomes binding on that state one year after the ratification. This means that within this year, the country must adjust its laws to ensure they are in concordance with the provisions of the Convention. Two years after ratification, the country must send its first report on implementation to the ILO. Hereafter, the normal reporting period for Convention No. 169 is every five years, but if there are concerns regarding the implementation, more frequent reports are requested.
Implementation on the ground is a challenge
However, real implementation of the provisions of the Convention does not only lie in the paperwork. For both governments and indigenous peoples, it can be a big challenge to translate the provisions of the Convention into a living reality. In most countries, the full implementation of the Convention requires the redress of centuries of discrimination, which has influenced not only the governance system, laws, institutions and practices of the States but often also the mind-set of decision-makers. Another challenge is the complexity of the issues at hand; in countries with 50 distinct peoples or more it can, for example, prove very difficult to secure every single group their rights to practice their own customs, their language and their traditional occupation, not to mention their right to political participation. At the country level, it has become evident that a focus on good practices and lessons learned from practical implementation is crucial for achieving a constructive dialogue. Some of the key means to promote such dialogue is training and capacity-building of both government and indigenous institutions.
Influence beyond ratification
However, the importance of Convention No. 169 goes beyond the number of actual ratifications. Its provisions have influenced numerous policy documents, debates and legal decisions at the regional and international levels, as well as national legislation and policies.
The momentum for promoting indigenous peoples´rights has been further reinforced through the adoption by the UN General Assembly in 2007 of the United Nations Declaration on the Rights of Indigenous Peoples. The provisions of Convention No. 169 are fully compatible with those of the Declaration and the implementation challenges related to these two instruments is thus one and the same.