Litigating Indigenous Peoples' Rights in Africa: The Impact of Convention 169

Abstract

8 | International Union Rights | 25/4 FOCUS | INDIGENOUS PEOPLES & UNIONS Litigating Indigenous Peoples’ Rights in Africa: The Impact of Convention 169 Thirty years after the adoption of ILO Convention No. 169 (C169), only twenty-three States have ratified it. Only one ratifying country is in Asia (Nepal) and one in Africa (Central African Republic). This sparse support is disappointing given that many more ratified its precursor, Convention No. 107: Bangladesh, India, and Pakistan in Asia, and Angola, Egypt, Ghana, Guinea-Bissau, Malawi, and Tunisia in Africa. In replacing C107 with C169, the ILO was responding to the emergent indigenous peoples’ movement, which rejected C107 as founded on an out-dated integrationist approach. In so doing, C169 re-imagined indigenous peoples as communities deserving of special protections vis-à-vis the majority population and presented a new way of understanding these communities’ concerns. The principles enshrined in C169 — which formalised a more expansive view of the rights of indigenous peoples in international law — and the conceptual shift harkened by its adoption, have informed the way these issues have been subsequently framed and understood by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and by regional human rights institutions. Although many of the concepts and terminology of international human rights law on indigenous peoples derives from the Conventions, much work remains in the realm of C169’s ratification and implementation. This article examines the lack of support for the Convention in Asia and Africa, and assesses the ways in which practitioners have sought to protect the rights of indigenous communities despite C169’s limited ratification. In particular, this article will focus on the experience of Minority Rights Group (MRG), a non-profit organisation working to secure the rights of ethnic, religious, and linguistic minorities and indigenous peoples worldwide. MRG’s experience litigating land rights cases on behalf of indigenous and tribal communities in Africa shows that a more expansive view of the rights of indigenous peoples has made its way into the jurisprudence of the African Human Rights system. Although C169 has informed the way African human rights bodies have interpreted the rights of indigenous peoples under the African Charter of Human and Peoples’ Rights (African Charter), its narrow ratification base and the lack of meaningful implementation models in the countries that have ratified the Convention limit its utility from a strategic litigation perspective. States’ reticence to ratify C169 Although it is hard to know precisely why the majority of African and Asian States have chosen not to ratify C169, particular concerns were voiced in discussions at the ILO, as well as in discussions leading to the adoption of the UNDRIP. The most intractable sticking point involves an ongoing debate surrounding the applicability of the term ‘indigenous peoples’ in Asia and Africa1. In submissions during the C169 drafting sessions, China flatly denied that any indigenous populations lived in their country2. The Indian representative reiterated that, ‘the tribal peoples in India were not comparable in terms of their problems, interest and rights, to the indigenous populations of certain other countries. For this reason, attempts to set international standards on some of the complex and sensitive issues involved might prove to be counter-productive’3. Some governments particularly feared that use of the term ‘peoples’ instead of ‘populations’ could give rise to secessionist aspirations. The representative for India ‘felt that the Committee should carefully consider the impact that the use of “peoples” could have in countries beset with the problems of integration’4. Similar objections were raised to the use of the word ‘territories’ in relation to the ancestral lands of indigenous and tribal peoples. Notably, some of the countries that had ratified C107 simply clung to its integrationist approach. During the C169 drafting sessions, for example, the representative for Bangladesh stated that ‘the existing provisions of [C107] were sufficiently comprehensive. He expressed concern that any attempt to introduce radical changes in the focus and orientation of the Convention would have detrimental effects on territorial integrity and conflict with existing constitutions and legal systems of many countries, and could discourage many countries from ratifying it’5. While each country has its own historical, political, and social context that informs debates over indigeneity...