The criteria used in ILO Convention No. 169
Providing criteria for identification
Indigenous and tribal peoples around the world are not all alike. Because they are peoples of great diversity and the situations in which they live differ widely, it has proven difficult to develop one single formal definition that is acceptable to all.
ILO Convention No. 169 takes a practical and inclusive approach to the issue and provides objective and subjective criteria for identifying the peoples concerned. Thereby, it does not make the attempt to provide a universal definition but chooses to describe the peoples it aims to protect.
Article 1.1 determines that the Convention applies to:
“(a) tribal peoples in independent countries whose social, cultural and economic conditions distinguish them from other sections of the national community, and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations;
(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.”
These are the so-called objective criteria. When a specific group meets the requirements of article 1.1, and identifies itself as an indigenous or tribal people, they can be identified as such. Using the inclusive terminology of both “indigenous” and “tribal” ensures that the Convention is also applicable to, for example, Afro-American communities. Even though these communities were removed from their traditional land in Africa and forced to another continent, they can still be regarded as tribal peoples as they have distinct social and cultural features, customs and traditions.
Identifying who you are – yourself
ILO Convention No. 169 was innovative as it was the first international instrument to recognize the importance of the fundamental right of self-identification: the right of people themselves to determine whether they belong to an indigenous or tribal people or not. This is expressed in article 1.2 of the Convention:
“Self-identification as indigenous or tribal shall be regarded as a fundamental criterion for determining the groups to which the provisions of this Convention apply. “
This means that a person or a people who complies with the criteria given in article 1.1 have the right to identify themselves as indigenous or tribal in reference to a specific group. This applies even if their decision is challenged by a government or by other groups. According to Convention No. 169, self-identification is fundamental.
A wide range of names
Some countries around the world do not speak of “indigenous” or “tribal” peoples but use other local or national terms. Some of these terms have references to where these people live or how they traditionally make their living. In countries in Asia, for example, the language holds expressions like “hill people” or “shifting cultivators”, while some indigenous peoples in Africa are known as “pastoralists” and “hunter-gatherers”.
Over the last decades, most countries and regions have provided such practical interpretations of the concept of indigenous and tribal peoples. In 2003, a Working Group under the African Commission on Human and peoples’ Rights (ACHPR) emphasised the following characteristics of African indigenous peoples:
- Their cultures and ways of life differ considerably from those of the dominant society;
- Their cultures are under threat, in some cases on the verge of extinction;
- The survival of their particular way of life depends on access and rights to their traditional land and resources;
- They often live in inaccessible, geographically isolated regions; and
- They suffer from political and social marginalization and are subject to domination and exploitation within national political and economic structures.