ILO Finds Asian Countries Inconsistently Protect Indigenous Peoples’ Rights
The International Labour Organization (ILO) has identified trends in national policy in Asia that deny indigenous peoples certain rights, such as to property and to consultation, in a recent human rights-based review of the region’s domestic laws. See ILO, The right of indigenous peoples in Asia, Human rights-based overview of national legal and policy frameworks against the backdrop of country strategies for development and poverty reduction (2017). While an indigenous peoples’ movement has emerged in the region – where a majority of the world’s indigenous peoples live – the report found that national and regional institutions often fail to recognize their rights. See id. at 1, 9-10. Specifically, the report found inconsistent recognition of the status of indigenous peoples; inconsistent consultation between governments and indigenous communities; land and natural resource insecurity; and unequal access of indigenous populations to education, employment, and social services. See id. at pgs. 3, 9, 20, 21 27-28, 30, 40, 54-55. The States examined for the report – Bangladesh, Cambodia, India, Indonesia, the Lao People’s Democratic Republic, Malaysia, Nepal, the Philippines, Thailand, and Viet Nam – should, the report recommended, ensure increased coordination between indigenous communities and other domestic, regional, and international stakeholders. See id. at 59-61. This report complements a previous ILO report on the situation of indigenous peoples in the labor force in Asia and the Pacific in 2015. See ILO, Indigenous Peoples in the World of Work in Asia and the Pacific: A Status Report (2015).
Identification & Recognition
A preliminary challenge observed in the report is the inconsistent conceptualization of the status of indigenous peoples, as some governments have not recognized the definitions provided by international instruments like the UN Declaration on the Rights of Indigenous Peoples (UNDRIP). See ILO, The right of indigenous peoples in Asia, Human rights-based overview of national legal and policy frameworks against the backdrop of country strategies for development and poverty reduction, at 9. Generally, the report notes, the concept of indigenous peoples is sometimes narrowly understood in the context of European colonization, resulting in the idea that indigenous peoples are simply those who are non-European. See id. at 10. Indigenous peoples in Asia, however, understand their status to derive from their “distinct lifestyles, cultures, customs and community-centric social and political institutions,” which are tied to their histories and territories. See id. at 11-12.
According to the report, indigenous peoples are those who share common traits in the context of placing special importance in a particular area of land, enjoying a distinct culture, holding shared experiences of marginalization or discrimination, and engaging in self-identification as indigenous peoples. See id. at 10-11. The report notes that ILO Convention No. 169 distinguishes between indigenous peoples and tribal peoples. The former being peoples who were inhabiting a territory when colonization or conquest occurred and have distinct cultural and political customs and institutions. The latter are not defined by their existence at the time of colonization but that they have a distinct culture and regulate themselves or through special laws. See id. at 11.
Recognition of indigenous peoples varies within the region. For example, Nepal, the Philippines, and Cambodia’s domestic laws closely align with the internationally accepted definition of indigenous peoples as they take into account cultural integrity and uniqueness, collective identity, and special ties to land. See id. at 12, 18-20. Nepal, in particular, ratified ILO Convention No. 169. See id. at 19.
Other countries, like India, Bangladesh, Indonesia, and Malaysia, the report noted, have some form of recognition of peoples but may do so inconsistently or in way that does not fully meet the international standard often due to holdover definitions and terms from the colonial area. See id. at 13. The Bangladeshi Constitution, for instance, recognizes tribal groups and other ethnic communities based on uniqueness of culture, but also refers to a “backward section of citizens.” Further, specific indigenous peoples enjoy recognition in special legislation in Bangladesh while others are only referenced in land administration legislation, resulting in unequal protection and recognition among peoples. See id. at 14. The report also notes that “scheduled tribes” in India are identified unofficially through factors such as “primitive traits” and “backwardness.” See id. at 14.
The report put forth several recommendations to address this challenge, including seeking regional consensus of the concept of indigenous peoples, engaging key stakeholders to promote inclusive development, and fostering a dialogue regarding strategies that consider the rights of indigenous women and indigenous persons with disabilities. See id. at 20.
Participation & Consultation
As the report notes, the mechanisms available for indigenous populations’ participation in and consultation with governments also varies within the region. See id. at 21. Some methods of participation recognize and give responsibilities within the country’s political structure to indigenous peoples’ institutions at the state and local levels, such as in Cambodia and Indonesia. Other countries have broader self-governing arrangements at the local and regional level, as is the case in Bangladesh, India, Malaysia, or the Philippines. See id. at 27. In some instances, State and indigenous bodies coexist at the local level. See id. Several States use quotas for indigenous members in elective roles and commissions as a means of ensuring indigenous peoples’ participation.
The report concluded that overall consultation mechanisms present in the region fail to satisfy international standards. It ultimately recommended increased participation of indigenous peoples to prevent further marginalization and to promote social cohesion, with an emphasis on equal participation of indigenous women. See id. at 28. The report also noted it is better to engage in consultations with indigenous peoples’ own institutions than fill a quota regarding their representation in government. See id. at 27.
Land & Natural Resources
According to the report most of the indigenous population in Asia depends on land and natural resources to survive, but indigenous peoples in the region often experience land dispossession and loss of access to natural resources. See id. at 29-30. Overall, regional domestic laws, the report found, do not recognize the collective nature of the right to land and natural resources or apply them inconsistently. See id. at 40. The lack of effective rights to land coupled with inadequate consultation and participation in development decision making have caused displacement of indigenous peoples, limited access to vital resources, increased poverty, increased food insecurity, and the deterioration of traditional institutions and cultures. See id. In addition to a failure to recognize land rights, States often fail to adequately identify the territory to which indigenous peoples have a right, leaving them out of consultation and participation. See id. at 31.
The report identifies the need for States to recognize the collective right of indigenous peoples to land and their rights under customary law, where applicable. Several countries, the report noted, do not sufficiently coordinate standards under State law and customary law so that even where indigenous peoples’ right to land is recognized under customary law, in practice they are denied the right. See id. at 40.
Public Policies on Cultural, Social, and Economic Rights
Finally, the report examined public policies in the region and found that most of the countries included in the report developed national poverty reduction strategies that acknowledged the economic and social situation of indigenous peoples, including Bangladesh, Cambodia, Nepal, the Philippines, and Viet Nam. See id. at 54. The report found that every country has invested in education and culture, including by providing bilingual education, teaching indigenous languages, and ensuring equal access to education for indigenous children; these measures help combat discrimination, language barriers, and other obstacles to education for indigenous populations. See id. The report noted that countries tended not to focus on health and social protection policies for indigenous populations and that lack of official birth certificates or other identity documents posed particular problems for these groups to receive social services. See id. at 55.
Recommendations included raising awareness and including indigenous peoples in official data to better inform policy responses. See id. Additionally, the report noted that improving rural development should be a key policy objective to promote the indigenous population’s rights, and ensuring the right to work would help guarantee inclusivity and sustainability. See id.
In addition to those already mentioned, the report provided recommendations on combatting climate change, access to social services, and ratification of the ILO Convention. According to the report, countries should approach the 2030 Agenda for Sustainable Development and the Paris Agreement on climate change as opportunities to include a focus on indigenous peoples. See id. at 59. Additionally, measures to improve indigenous peoples’ access to public services to ensure the enjoyment of economic, social, and cultural rights must be strengthened, the report suggested, through community-based surveys and collaboration with indigenous peoples. See id. at 60. Finally, the report recommends ratification of ILO Convention No. 169. See id. at 61.
Indigenous Peoples’ International Human Rights
There is no singular definition of indigenous peoples in international law; however, several elements have become widely accepted as critical factors, including, self-identification as indigenous or tribal; distinct social, economic, and political systems; distinct language and culture; and a strong tie to territories and natural resources. See OHCHR, Indigenous Peoples and the United Nations Human Rights System Fact Sheet No. 9/Rev.2, (2013), 2-3.
The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries, 1989 (No. 169), and ILO Convention on the Rights of Indigenous, Tribal and Semi-Tribal Populations in Independent Countries, 1957 (No. 107) are international instruments that specifically address indigenous peoples’ rights. Additionally, indigenous peoples’ rights are protected through other international human rights instruments, including the International Covenant on Civil and Political Rights (ICCPR); International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (CERD); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); the International Convention on the Rights of Persons with Disabilities (CRPD); and the Convention on the Rights of the Child (CRC).
These international instruments protect the rights to self-determination; indigenous lands, territories, and resources that have been traditionally owned, occupied, or used by indigenous communities; health; education; employment; housing; and equality and non-discrimination, among others. See OHCHR, Indigenous Peoples and the United Nations Human Rights System Fact Sheet No. 9/Rev.2, 4-9.
The UN Permanent Forum on Indigenous Issues, the Expert Mechanism on the Rights of Indigenous Peoples, and the Special Rapporteur on the rights of indigenous peoples are international bodies that oversee compliance with international legal standards as they relate to indigenous peoples, make recommendations on indigenous peoples’ rights, or provide advice on indigenous issues.
The ILO’s 2015 report on indigenous peoples in Asia, Indigenous Peoples in the World of Work in Asia and the Pacific: A Status Report, provided country profiles of Australia, Bangladesh, Cambodia, India, Indonesia, Lao People’s Democratic Republic, Malaysia, Nepal, New Zealand, Pakistan, Philippines, Sri Lanka, Thailand, and Viet Nam.
For more information on the United Nations Special Rapporteur on the rights of indigenous peoples or on economic, social and cultural rights, visit IJRC’s Online Resource Hub.