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Thailand Law Journal 2009 Spring Issue 1 Volume 12

Those Articles mention the rights of natural resources of all peoples. Even though such Articles do not directly use the words indigenous peoples, there is no reason that indigenous peoples are not covered under the words all peoples. In other words, all peoples mean indigenous peoples as well. In this respect, the meaning of all peoples in both the ICCPR and the ICESCR sections concerned with the protection of indigenous resources, are clearly indicated to include indigenous peoples.

D The International Labour Organization (ILO)
Some scholars claim that the ILO Convention is the only legally binding instrument of international law with respect to indigenous peoples.48 The protection of indigenous peoples is clearly mentioned in ILO Convention No.169.49 The protection of indigenous peoples is clearly stated in Article 5(a) ‘The social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals’.

Article 3(1) of this Convention also states that:

Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples.50
 
At this stage, there is no doubt that the meaning of peoples as mentioned in human rights instruments apply to indigenous peoples as well.

Moreover, Article 15 of this Convention also mentioned rights in natural resources:

1.The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources.

2.In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities.51

Traditional knowledge is not explicitly referred in this Convention.52 This is because the definition of traditional knowledge is still controversial. Nevertheless, ILO Convention No.169 has been ratified by 17 states53 and is legally binding as treaties international law. It is considered to be the first international instrument which recognises self-identification of indigenous and tribal peoples as a fundamental criterion.54

E The United Nations Declaration on the Rights of Indigenous Peoples
The United Nations Declaration on the Rights of Indigenous Peoples55 is the latest and the most relevant instrument that recognised the rights of indigenous peoples. The rights include; the rights of self-determination,56 the individual and collective rights,57 the rights to practise and vitalize the cultural traditions and customs,58 rights in educations and labour,59 rights concerning political, economic and social systems,60 and rights in health and traditional medicines.61 The important rights of indigenous peoples in this context are the rights to resources or traditional resources and the protection of those rights.62

48. Stoll and Hahn, above n 25 of Part, 20-1.

49. Ibid. See also The International Labour Organization Convention No.169 concerning Indigenous and Tribal Peoples in Independent Countries, Adopted on 27 June 1989 by the General Conference of the International Labour Organization at its seventy-sixth session, (entered into force 5 September 1991), available at < http://www.unhchr.ch/html/menu3/b/62.htm> at 26 January 2007.

50. Ibid. Article 3(1)

51. Ibid. Article 15

52. Stoll and Hahn, above n 25 of Part I, 22.

53. The 17 states are Norway, Mexico, Colombia, Bolivia, Costa Rica, Paraguay, Peru, Honduras, Denmark, Guatemala, The Netherlands, Fiji, Ecuador, Argentina, Venezuela, Dominican and Brazil. See A Guide to ILO Convention No.169 < http://www.oit.org/public/english/standards/norm/egalite/itpp/convention/index.htm> at 26 January 2007.

54. Ibid. The ILO Convention No. 169 Article 1(1).

55. This Declaration was drafted by the Working Group on Indigenous Populations, established by ECOSOC Resolution 1982/34. Finally, the United Nations Declaration on the Rights of Indigenous Peoples adopted by the General Assembly resolution 2006/2 of 29 June 2006 (adopted by a recorded vote of 30 votes to 2, with 12 abstentions). See also the Office of the United Nations High Commissioner for Human Rights (2006) <http://www.ohchr.org/english/issues/indigenous/groups/groups-02.htm> at 26 January 2007.

56. Ibid Article 3.

57. Ibid Article 7.

58. Ibid Article 11, 12 and 13.

59. Ibid Article 14 and 17.

60. Ibid Article 20 and 21.

61. Ibid Article 23, 24 and 25.

62. Ibid Article 26, 27 and 29. This Declaration uses the words ‘traditional ownership’ and ‘resources, including those which were traditionally owned or otherwise occupied or used.’

This article is published with the kind permission of Panumas Kudngaongarm, Professor, Ph.D. Candidate, School of Law, the University of New England, Australia. (Lecturer, School of Law, Sukhothai Thammathirat Open University, Thailand.). This article was presented at the Inaugural Conference of the Asian Society of International law: International Law in Asia-Past, Present and Future.

 

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