English translation from the official periodical of RAIPON “Мир коренных народов - живая арктика” (Indigenous Peoples’ World - Living Arctic) No. 11-12, 2002


Prospects of ILO Convention No. 169 concerning indigenous and tribal peoples in independent countries being ratified by the Russian Federation

Olga Murashko

The Northern Affairs and National Minorities Committee of the Federation Council convened a roundtable to discuss the above subject on 22 November 2002. Representatives of the Federation Council and the State Duma of the Federal Assembly of the Russian Federation, the Constitutional Court of the Russian Federation, regional authorities and social organizations, including the Association of Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation participated in the roundtable discussions.

It is worth mentioning that this was not the first time the question of ratifying Convention No. 169 of the International Labor Organization (ILO) has been discussed in this country.

ILO Convention 169 (1989) was the result of the revision of an earlier Convention (No. 107)―“Concerning Indigenous and Tribal Populations”―adopted in 1957. Twenty-seven countries ratified that convention. Official representatives of the USSR as a member state of the ILO participated in the discussion and adoption of ILO Convention 107.

The basic policy guidelines of Convention 107, which assumed that decision-making affecting the development of indigenous peoples should lie with the state rather than with indigenous peoples themselves, concerned the creation of conditions for the integration of indigenous peoples into contemporary industrial society. As indigenous peoples became aware of their rights, with their organizations playing an increasingly active part internationally, this paternalistic approach started to raise questions. From 1986 the process of revision of the concept outlined in Convention 107 gained momentum. The text of ILO Convention 169 (1989) included the following principal provisions:

• Traditional ways of life have their cultural values and it is essential to assist the conservation of these values;
• States should provide for the participation of indigenous peoples and their organizations in the decisions pertaining to their interests.
• Though land rights had already been defined in Convention 107, Convention 169 outlined indigenous peoples’ rights to the lands traditionally occupied by them to a greater degree. These principles included: recognition of the collective or individual ownership of the lands which indigenous peoples have traditionally possessed; protection from being involuntarily moved from the lands which they have traditionally occupied; observance of traditional systems of land ownership allocation and use of primordial lands in accordance with indigenous peoples’ customs (Articles 11, 12, and 13 of Convention 107).
  

Official representatives of the USSR (from the Ministry for Foreign Affairs and the Ministry of Labor) took part in all the sessions, which discussed, paragraph-by-paragraph, the text of each and every article of the Convention. They voted for all its rules and participated in the signing of the final document in June 1989. This is all documented in the minutes published by the ILO Administrative Council.

Subsequently, however, ratification of Convention 169 in this country failed to occur. At first, the issue of its ratification failed to enter the agenda of the USSR Supreme Soviet. Then, the question of the Convention’s ratification was put off during the Parliamentary hearings at the State Duma in 1994 until the adoption of corresponding laws on indigenous peoples’ rights. Formally, the ratification of ILO Convention 169 was hampered in Russia by the lack of the right of private ownership of land and the lack of special laws with respect to indigenous peoples’ rights.

Nowadays, after the right of private ownership of land has been introduced in the Russian Federation and following the adoption, starting in 1999, of three federal laws on the rights of indigenous numerically small peoples, it would seem that these formal grounds have fallen away and that it is just the time to reconsider the question of Russia’s ratification of ILO Convention 169.

At the roundtable of November 22 dealing with the prospects of this convention’s ratification a legal discussion flared up again on the subject of correspondence between provisions and terminology of Convention 169, on the one hand, and the Russian legislation, on the other. It should be noted that the lack of correspondence pointed out by some lawyers was immediately brushed off by other lawyers as groundless. In conclusion, the ILO representative emphasized justifiably that the articles of the ILO Convention were worded in such a way that every member state had the right to realize the fundamental principles of the convention in compliance with its own national legislation.

The final recommendations of the roundtable suggested setting up before the end of 2002 an interdepartmental working commission to identify agreement between legal terminology of the basic Russian legislation and the terminology of ILO Convention 169; carrying out the required process of discussion and negociation with the ILO representatives; preparing and examination of essential amendments to the legislation of the Russian Federation bearing in mind the prevailing conservation of state ownership of the lands of Territories of Traditional Nature Use and their use in the form of collective rights of indigenous numerically small peoples, free-of-charge, unlimited, and excluding the possibility of transfer of these rights.

It was suggested at the roundtable to recommend the President of the Russian Federation to submit ILO Convention No. 169 for ratification by the State Duma of the Federal Assembly of the Russian Federation when the interdepartmental commission’s activities are completed.