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INDIGENOUS PEOPLES, POSTCOLONIALISM,

AND INTERNATIONAL L AW
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Indigenous Peoples,
Postcolonialism, and
International Law
The ILO Regime (1919–1989)

LUIS RODRÍGUEZ-PIÑERO
D Phil
Senior Research Fellow
Indigenous Peoples Law and Policy Program
Rogers College of Law, The University of Arizona

1
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3
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Rodríguez-Piñero, Luis.
Indigenous peoples, postcolonialism, and international law : the ILO regime,
1919–1989 / Luis Rodríguez-Piñero.
p. cm.
Includes bibliographical references and index.
ISBN-13: 978–0–19–928464–1 (alk. paper) 1. Indigenous peoples—
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To the memories of
Grandfather Paco, Grandmother Elvira and Uncle Javier
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Acknowledgements
This book stems from a doctoral dissertation defended at the Law Department of the
European University Institute (EUI) in Florence. Research for the thesis was made pos-
sible by grants from the Salvador de Madariaga Program, offered by the Spanish
Ministry of Foreign Relations, and from the Program for Foreign Students of the
Mexican Secretary of Foreign Relations. I am grateful to both, and also to the Rogers
College of Law Indigenous Peoples Law and Policy Program (IPLP) at The University
of Arizona, which provided me with a research fellowship position that allowed me to
complete this work. I further wish to acknowledge the institutional support of the
EUI; the International Labour Organisation (ILO) Regional Office for the Americas
in Lima; the Universidad de Sevilla; and the Centro de Investigaciones y Estudios en
Antropología Social (CIESAS) in Mexico City during my periods of residence.
I benefited enormously from the generosity of Remo Becci, director of the ILO his-
torical archives at the organization’s headquarters in Geneva, as well as from the help-
fulness of the ILO Library personnel. I also gratefully acknowledge the advice of Blanca
Esponda, Ricardo Hernández Pulido, Carlos Maldonado, Christian Ramos, Chandra
Roy, and Nicolas Valticos, for leading me through the complex labyrinth of the ILO’s
relationship with indigenous peoples, past and present. Lee Swepston deserves special
credit in this regard for his invaluable help, from the very beginning to the very end of
this project. Miguel Rodríguez-Piñero Sr and Mari Luz Vega supported my research at
the ILO office in Geneva and Lima.
I have been very fortunate to receive guidance from my thesis supervisor, Philip
Alston, as well as from two outstanding additional mentors, S. James Anaya and
Bartolomé Clavero. Words cannot express my gratitude for their intellectual stimulus
and personal support. I have also benefited immensely from exchanging ideas with
Luisa Chiodi, Ruth Martínez, Alicia Rivas, Francesco Strazzari and Hans van der Veen
at the EUI; Stefano Mannoni at Università degli Studi di Firenze; Itziar Ruíz Giménez
and Francisco J. Peñas, and Marta Lorente at Universidad Autónoma de Madrid; Pablo
Gutiérrez at Universidad de Sevilla; François Lartigue and María Teresa Sierra at
CIESAS; Natalia Hernández at Universidad de Deusto; Benedict Kingsbury at New
York University; Joe Bryan at Berkeley University; Carlos Fernández Liesa at
Universidad Carlos III de Madrid; and S. James Anaya, Robert A. Williams Jr, James C.
Hopkins, and Robert A. Hershey at The University of Arizona, IPLP Program. I would
also like to offer my thanks to Fernando Mariño and Francesco Francioni for their
helpful comments as members of my thesis jury, as well as to three anonymous referees
from Oxford University Press.
The final stages of this book have been a collective and near heroic effort, built upon
the graciousness and generosity of the people that were part of my daily life in Tucson,
Arizona. Moira Gracey was an invaluable English language editor. Marina
Hadjioannou, Donald Nicholls, Susanna Rosi and Spring Ulmer gave me their help
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viii Acknowledgements

and heart. I am also grateful to Lenny Alvarado and Anexa Alfred for their technical
support. My gratitude also goes to Luisa Brunori for hosting the Spanish “ciclone”.
My dissertation acknowledgements, including all family and friends, were so long
that my godfather Abelardo called me to order. In any event, I cannot close these
acknowledgements without recognizing the caring support I have received from my
disproportionate list of friends and family members, including my grandmother Lola,
my godmother Merche, and my parents Miguel and Cristina. Alberto and Fernando
were, recurrently, così vicini, così lontani.
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Summary Contents
Contents xi
List of Abbreviations xv

Introduction 1

I. HISTORICAL ORIGINS
1. The Colonial Code: the ILO and ‘Native Labour’ (1919–56) 17
2. The Internationalization of Indigenism: the ILO and
the ‘Indian Problem’ (1936–49) 53
3. The ILO and Applied Anthropology: the Indigenous
Labour Programme (1949–55) 83

II. THE L ANGUAGE OF INTEGRATION

4. From Policy to Law: the Making of the ILO Instruments on

Indigenous, Tribal, and Semi-tribal Populations (1949–57) 115
5. Constructing ‘Indigenous Populations’: Convention
No 107 and the Modern Concept of Indigenousness 145
6. The Language of Integration: ILO Convention No 107 173

III. THE FALL OF INTEGRATION

7. Integration in Practice: the Implementation of

Convention No 107 (1959–89) 215
8. The fall of integration: the Revision of Convention No 107 (1975–88) 257
9. The Language of Rights: Convention No 169 (1989) 291

Conclusion 332
Appendix: selected documents 344

Bibliography 379
Index 399
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Contents
List of Abbreviations xv

Introduction 1
Indigenous peoples: a postcolonial concept 4
The ILO and indigenous peoples: a ‘historical anomaly’ 8
Outline of the book 11
A note on the sources 13

I. HISTORICAL ORIGINS
1. The Colonial Code: the ILO and ‘Native Labour’ (1919–56) 17
The long history of indigenous peoples in international law 18
The emergence of the ILO colonial policy 22
The ILO colonial clause 23
The ILO and the colonial question 24
The ILO and the Permanent Mandates Commission 27
The ILO and slavery 30
The ILO Colonial Code (1926–56) 32
The ILO and classic colonialism (1930–36) 33
The ILO and welfare colonialism (1944–56) 36
The meaning(s) of ‘indigenous’ 38
‘Native labour’ and the classic concept of ‘indigenous’ 40
The definition of ‘indigenous workers’ 43
Decolonization and the emergence of the modern concept of ‘indigenous’ 50

2. The Internationalization of Indigenism: the ILO and the

‘Indian Problem’ (1936–49) 53
American indigenism and the ‘Indian problem’ 54
The ILO’s encounter with the ‘Indian problem’ (1936–39) 59
The Santiago Conference (1936) 59
The Havana Conference (1939) 64
The ILO and the internationalization of Indigenism (1945–49) 66
The ILO’s ‘practical’ approach to the ‘Indian problem’ 67
The Mexico Conference (1946) 72
The Montevideo Conference (1949) 78

3. The ILO and Applied Anthropology: the Indigenous

Labour Programme (1949–55) 83
United Nations development and the internationalization
of the ‘indigenous problem’ 84
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xii Contents

The ILO and applied anthropology: the Committee of

Experts on Indigenous Labour 89
Development and applied anthropology 89
The Committee of Experts and the ILO’s anthropological turn 91
The Andean Indian Programme 98
The international development regime and the onset of the
Andean Indian Programme 100
‘The integral approach’: the outgrowth of the
Andean Indian Programme (1952–62) 103
The Andean Indian Programme, applied anthropology, and
the discourse of integration 108

II. THE L ANGUAGE OF INTEGRATION

4. From Policy to Law: the Making of the ILO Instruments on
Indigenous, Tribal, and Semi-tribal Populations (1949–57) 115
The making of the ILO instruments on indigenous populations:
a ‘humanitarian objective’ 116
The idea of international standards 117
The debate at the International Labour Conference 121
The question of competence and the integral approach 129
Convention versus recommendation: policy versus law 133
Convention No 107 and colonialism: the Belgian Thesis 139

5. Constructing ‘Indigenous Populations’: Convention No 107

and the Modern Concept of Indigenousness 145
‘In independent countries’: the emergence of the modern concept of
‘indigenous’ 146
A ‘never attempted’ definition 150
The Office’s working definitions 152
The consolidation of the terminology 156
The definition of ‘indigenous, tribal, and semi-tribal populations’ 159
The Office’s draft definition 159
The definition of indigenous, tribal, and semi-tribal populations (1957) 163
‘Not yet integrated’ 164
The ‘tribal and semi-tribal criterion’ 167
(Non-indigenous) tribal populations 169
Regarded as ‘indigenous’ 170

6. The Language of Integration: ILO Convention No 107 173

The integration discourse 174
‘Integration’ in the social discourse 175
The indigenist discourse on integration 177
The ILO discourse on integration 179
Convention No 107: the meaning(s) of integration 181
Integration as development 184
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Contents xiii

Integration as acculturation: Convention No 107 and applied anthropology 186

Integration and equality: Convention No 107 and the early human rights regime 193
The programme of protection 199
Policy versus rights 200
The protection of indigenous lands 206

III. THE FALL OF INTEGRATION

7. Integration in Practice: the Implementation of
Convention No 107 (1959–89) 215
Convention No 107 as policy: technical co-operation (1961–71) 216
Technical co-operation and the (re-)universalization of
the ‘indigenous problem’ 219
Convention No 107 and nomadism: integration as sedentarization 224
The fall of integration: integration versus development 228
Convention No 107 as international law: the experience of supervision 233
The ratification of Convention No 107 234
Convention No 107 and the ILO system of supervision 242
The first phase: Convention No 107 as a ‘promotional convention’ (1959–75) 244
The second phase: Convention No 107 and (as) ‘indigenous rights’ (1975–89) 249

8. The fall of integration: the Revision of

Convention No 107 (1975–88) 257
The international context: the United Nations and ‘indigenous rights’ 258
The decision to revise 264
The first calls for revision: the ‘Rens affair’ 265
The Office’s decision 271
Discursive strategies, political contingencies 275
The Governing Body’s decision 283
The Meeting of Experts on the Revision of Convention No 107 284
‘Back to the League of Nations’ 287

9. The Language of Rights: Convention No 169 (1989) 291

The scope of revision: a ‘partial revision’ 292
A ‘partial revision’ 292
The fall of integration 298
The making of Convention No 169: ‘original sin’ 300
Discussions at the International Labour Conference 301
Participation of indigenous peoples 312
Convention No 169: policy versus rights 320

Conclusion 332
The colonial origins of the modern regime on indigenous peoples 332
Indigenous Latin America and contemporary international law 336
The construction of ‘indigenous’ 338
Convention No 169: a new fall into oblivion? 341
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xiv Contents

Appendix: selected documents 344

Recruiting of Indigenous Workers Convention, 1936 (No 50) [Excerpts] 344
Montevideo Plan of Action (1949) 346
Social Policy (Non-Metropolitan Territories) Convention, 1947 (No 82)
[Excerpts] 348
Resolution concerning Aboriginal Tribes and Untouchable Castes (1947) 351
Indigenous and Tribal Populations Convention, 1957 (No 107) 351
Indigenous and Tribal Populations Recommendation, 1957 (No 104) 359
Resolution concerning the Ratification of the Indigenous and Tribal
Populations Convention, 1957 (No 107), and the Revision of
the Social Policy (Non-Metropolitan Territories) Convention,
1947 (No 82) (1960) 366
Indigenous and Tribal Peoples Convention, 1989 (No 169) 366
Resolution on ILO action concerning indigenous and
tribal peoples (1989) 376

Bibliography 379
Index 399
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List of Abbreviations
General
AIP Andean Indian Programme
Bevans Bevans Treaty Series (Treaties and Other International Agreements of the
United States 1776–1949)
BIT Bureau International du Travail (ILO)
CISA Indian Council of South America
CTS Consolidated Treaty Series
ECOSOC Economic and Social Council (UN)
EPTA Expanded Programme of Technical Assistance (UN)
FAO Food and Agriculture Organization
GB Governing Body (ILO)
ICFTU International Confederation of Free Trade Unions
III Inter-American Indian Institute (OAS)
ILC International Labour Conference (ILO)
ILO International Labour Organisation
INI Instituto Nacional Indigenista (Mexico)
IWGIA International Work Group on Indigenous Affairs
LNTS League of Nations Treaty Series
NGO non-governmental organization
OIT Organisation Internationale du Travail (ILO)
Oficina/Organización Internacional del Trabajo (ILO)
RCADI Recueil des Courses de l’Académie de Droit International
RDIC Revue de Droit International et Comparé
TS Treaty Series (US Department of State Treaty Series)
UNDP United Nations Development Programme
UNESCO United Nations Educational, Scientific and Cultural Organization
UNTS United Nations Treaty Series
WFTU World Federation of Trade Unions
WHO World Health Organization

Journals
AJIL American Journal of International Law
Ariz JICL Arizona Journal of International and Comparative Law
ASILP American Society of International Law Proceedings
Austl YBIL Australian Yearbook of International Law
Bull LAR Bulletin of Latin American Research
BYBIL British Yearbook of International Law
Can HRJ Canadian Human Rights Journal
CLA Bull Canadian Legal Aid Bulletin
Corn ILJ Cornell International Law Journal
CWR JIL Case Western Reserve Journal of International Law
DLJ Duke Law Journal
FSU LR Florida State University Law Review
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xvi List of Abbreviations

Ger YBIL German Yearbook of International Law

Harv HRJ Harvard Human Rights Journal
Harv ILJ Harvard International Law Journal
Harv LR Harvard Law Review
HRQ Human Rights Quarterly
ICFTU International Confederation of Free Trade Unions
ICJR International Commission of Jurists: The Review
IJCLL & IR International Journal of Comparative Labour Law and Industrial Relations
ILR International Labour Review
Isr YBHR Israeli Yearbook of Human Rights
JIA Journal of International Affairs
JLAS Journal of Latin American Studies
Margins University of Maryland law journal of race, religion, gender, and class
MU EJL E Law: Murdoch University Electronic Journal of Law
NYU JILP New York University Journal of International Law and Politics
OCU LR Oklahoma City University Law Review
OLR Oregon Law Review
TLCP Transnational Law & Contemporary Problems
UM IALR University of Miami Inter-American Law Review
VJIL Virginia Journal of International Law
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Introduction

In 1926, Mr Joshi, a workers’ delegate to the eighth International Labour Conference

in Geneva, submitted a draft resolution inviting the Governing Body to undertake an
inquiry into the conditions of ‘native’ and ‘coloured’ labour in Africa and America. The
workers’ representative was merely extending the scope of a resolution adopted by the
Conference a year earlier, concerning the collection and publication of information on
the conditions of labour in Asian countries and, ‘more specially’, in the Asian ‘colonies,
protectorates and mandated territories’.¹
What was meant to be a peaceful initiative, with undoubted ‘humanitarian’ intention,
instigated a fiery debate among the delegates at the Conference. Not surprisingly,
opposition to the Indian Workers’ proposal was led by delegates from Africa and
America. Mr Cousins, the South African representative—one of the only three African
members of the International Labour Organisation (ILO)—was the first to take the
floor. He did not deny the harsh conditions of labour of ‘native and coloured’ South
African workers. Rather, he confirmed that ‘distinctions of civilisation, racial instincts
and tribal traditions’ undoubtedly existed, distinctions given by ‘Nature, in her
unerring wisdom’, and which the European coloniser should ‘do well to respect and
cherish’.² In the case of South Africa, the ‘virile races of the Bantu [were] just emerging
from conditions of savagery into the elementary scale of civilisation’, and this explained
precisely why ‘native labour’ was subjected to ‘exceptional’ conditions.³ The different
degree of civilization placed a responsibility on the superior party, Mr Cousins
testified, like a wise father who ‘guides and guards the younger ones until they are
grown’ and ‘can safely be left to guide their own affairs’.⁴
More opposition to the proposed resolution on ‘native labour’ was voiced by the
Latin American republics: ‘dans tout l’Amerique Latine, il n’existe pas de main d’oeuvre
de couleur ni de main d’oeuvre indigène’:⁵ in Latin America there is no such thing as
indigenous labour.⁶ Unlike the colonies, in Latin America there were no differences
between workers: ‘Tous sont des citoyens.’⁷ They all enjoyed ‘the same rights and the
same freedom’.⁸ They all ‘show equal enthusiasm for freedom and equality’.⁹

¹ The text of the adopted resolution read: ‘The seventh session of the International Labour
Conference expresses the hope that the International Labour Office will continue to collect and
publish all available information regarding the conditions of labour in Asiatic countries; and also
request the Governing Body of the International Labour Office, in consultation with the governments
concerned, to undertake, so far as is possible, a documentary inquiry into the conditions of labour
in those countries, more specially in China, India, Japan, Persia and Siam and in the colonies, protec-
torates and mandated territories in Asia.’ Resolution (No 6) concerning an enquiry into conditions of
labour in Asiatic countries, submitted by Mr Joshi, Indian Workers’ Delegate. See ILC International
Labour Conference, Seventh session (Geneva, 1925): Record of Proceedings (1925) II; 837.
² ibid, 261. ³ ibid, 262. ⁴ ibid.
⁵ Statement by Mr Sabrosso, Brazilian government representative, ibid. ⁶ ibid, 263.
⁷ ibid. ⁸ ibid, 267. ⁹ ibid, 268.
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2 Introduction

While the Indian Workers’ proposal was not adopted,¹⁰ a similar debate was repeated
twenty years later, in 1946 at the International Labour Conference, held this time
at the ILO’s exile in Montreal. On this occasion, the South African workers’ delegate
presented a resolution regarding drafting minimum standards of social policy applicable
to ‘indigenous populations in independent countries’.¹¹ By this time, international
awareness regarding the negative effects of colonialism was rapidly changing, and three
items on the Conference’s agenda dealt with regulation of the conditions of labour
in the colonies, which would eventually take the form of five international colonial
conventions.¹² According to the workers’ delegate, the ‘social problems of indigenous
populations of independent countries’ should also receive ‘prompt and careful’
attention,¹³ just like those of ‘indigenous peoples of the dependent territories on the
African Continent’.¹⁴ This time, the resolution was passed.¹⁵
The resolution was again opposed by Latin American states. But, unlike before, the
existence of ‘indigenous populations’ in those countries was not denied. In the words of
Mr Yllanes Ramos, the Mexican employers’ representative, there were indeed ‘indigenous
populations’ whose ‘problems’ were ‘serious’ and deserved careful study.¹⁶ But there was a
fundamental distinction between ‘their’ African indigenous populations and ‘our’ American
indigenous populations. The former had a problem of ‘citizenship’, of ‘self-determination’;
the latter, a problem of ‘social retardation’. This is why the standards being drafted for
colonial peoples were not applicable in the Americas. Indian ‘backwardness’ was just a
matter of ‘nutrition’, ‘the use of alcohol’, ‘the problems of clothing’, ‘diseases’, and, first and
foremost, a ‘problem of education’.¹⁷ There was no need for legal standards, Yllanes
argued: ‘It is not always a matter of adopting Conventions.’¹⁸

¹⁰ Statement by Mr Sabrosso, Brazilian government representative, 267. Interestingly, the reason

why the resolution was tabled by the Indian Workers’ delegate was that the ILO’s Governing Body had
already established an ad hoc committee of experts in charge of conducting a ‘native labour enquiry’.
This committee was none other than the Committee of Experts on Indigenous Labour, the ILO’s
colonial think-tank, responsible for defining the organization’s colonial policy in the inter-war period.
See infra Ch 1, nn 74–77.
¹¹ Statement by Mr Sachs, South African workers’ delegate, ILC, International Labour Conference,
29th session (Geneva, 1946): Record of Proceedings (1946) 191.
¹² Statement by Mr Sachs, South African workers’ delegate, ibid. ¹³ ibid. ¹⁴ ibid, 192.
¹⁵ The resolution, as finally adopted, reads:
Whereas a Draft Convention concerning minimum standards of social policy in dependent territories
has been under consideration by the International Labour Organisation,
Whereas conditions of indigenous populations of independent territories offer special problems
which, while differing from those prevailing in dependent territories, nevertheless should receive
prompt and careful consideration,
Whereas the provisions of the proposed Convention on dependent territories cannot be applied
to indigenous populations in the independent territories because of the different aspects of the prob-
lems facing the two categories of territories,
The Conference decides to ask the Governing Body of the International Labour Organisation to
consider the desirability of placing on the agenda of a forthcoming session of the International Labour
Conference discussion of the social problems of indigenous populations of independent countries.
Resolution (No 14) concerning Minimum Standards of Social Policy Applicable To Indigenous
Populations In Independent Territories, submitted by Mr Sachs, Worker’s delegate, Union of South
Africa, ibid, at Appendix XII.
¹⁶ Statement by Mr Yllanes Ramos, Mexican employers’ delegate, ibid, 194. ¹⁷ ibid.
¹⁸ ibid, 195.
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Introduction 3

Some fifty years later, in June 1998, an e-mail message circulated among indigenous
peoples’ organizations and advocacy groups. The message, sent by the Union of Huichol
(Wixarrika) Indigenous Communities of Jalisco (Mexico), asserted that ‘the ILO has
made valuable efforts to provide for [indigenous] peoples’ collective rights with an
enforceable legal instrument’.¹⁹ The message further announced that the Union of
Huichol Communities had filed a representation (one of the ILO complaint pro-
cedures) against Mexico before the organization, alleging violations of its Indigenous
and Tribal Peoples Convention, Convention No 169.²⁰ ‘[A]lthough the Government
has shown its willingness to establish a new kind of relationship with the indigenous
communities of the country, based on justice and equality’, contended the complaint,
‘reality shows that indigenous peoples are still marginalized and excluded from polit-
ical and economic decisions’.²¹ ‘Faced with a lack of political will on the part of the
Government’, the indigenous organization ‘decided to seek the ILO’s assistance in
requiring compliance with Convention No. 169’.²²
The above are fragments of a problematic history of the relationship between an
international organization, the ILO, and the complex concept of indigenousness. These
stories show a continuity of vocabulary and institutional setting, but also important dis-
continuities regarding meanings, political contexts, normative assumptions, and even
actors. The very term ‘indigenous’ appears associated with shifting power/knowledge
configurations, contingently connected to conflicting notions of ‘civilization’, ‘develop-
ment’, and human rights. Many of these discontinuities are related to dramatic,
broader changes experienced by international law itself throughout the twentieth
century—from a time when it served as a major instrument for legitimizing European
colonial expansion and domination overseas to a time when it has become an import-
ant tool for indigenous peoples’ continuous struggle for survival and recognition as
members of distinct cultural and political communities.
Any contemporary reflection on the rights of indigenous peoples requires perforce
reference to the ILO’s historical work on ‘indigenous’ issues, and its most refined
outcome, Convention No 169. Adopted in 1989, Convention No 169 is a revision of
an earlier instrument, the 1957 Convention No 107.²³ To date, the two ILO conven-
tions are the only international treaties dealing specifically with indigenous peoples.
Convention No 169 has gained such a central position in the contemporary defence of
indigenous peoples’ rights at the international and domestic levels that nobody seems

¹⁹ E-mail message issued by the Unión de Comunidades Indígenas Huicholas de Jalisco, Mexico,
addressed to ‘our indigenous brothers of other countries’, received on 20 November 1998 (on file with
the author).
²⁰ ILO Convention concerning Indigenous and Tribal Populations in Independent Countries,
1989 (No 169), adopted by the 76th session of the International Labour Conference on 24 June 1989
(entry into force: 2 September 1991).
²¹ Report of the Committee Set Up to Examine the Representation Alleging Non-Observance by
Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No 169), Made Under Article 24 of
the ILO Constitution by the Trade Union Delegation, D-III-57, Section XI of the National Trade
Union of Education Workers (SNTE), Radio Education, ILO Doc GB 272/72, Governing Body
( June 1998) para 11. ²² ibid, para 14.
²³ ILO Convention concerning the Protection and Integration of Indigenous and Other Tribal and
Semi-Tribal Populations in Independent Countries, 1957 (No 107), ILC, 40th session, 26 June 1957
(entry into force: 2 June 1959) (hereinafter, ‘Convention No 107’)
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4 Introduction

to be concerned any longer with the Convention’s controversial origins, when the
‘ILO’s involvement with the subject of indigenous and tribal populations [was]
questioned at every stage of the process’.²⁴ More importantly, ILO involvement in the
protection of indigenous rights tends to be regarded as a natural fact requiring no
further explanation. However, the existence of an instrument like Convention No 169
within a body such as the International Labour Organisation poses a number of
obvious questions. Why did the ILO, a highly technical, bureaucratic, specialized
organization, concerned primarily with labour issues, end up drafting international
legal standards concerning indigenous peoples? What does an organization such as the
ILO have to do with indigenous issues? And what does it mean by ‘indigenous’ in the
first place?
This book explores the history of the ILO’s activities in relation to indigenous/
tribal²⁵ workers/populations/peoples.²⁶ The book begins in 1919, the year in which
the ILO was created under the aegis of the League of Nations, and progresses to 1989,
when Convention No 169 was adopted—a period in which the ILO has been a leading,
and at times the only, actor in the international community in this realm. This longue
durée approach permits an investigation of the changing conceptual meanings and
normative discourses that shaped the ILO’s historical concern for indigenous peoples.
And, in so doing, the book attempts to shed light on the historical process through
which indigenous peoples were constructed as distinct objects of modern international
law, setting the foundations of the contemporary international regime on indigenous
rights.

Indigenous Peoples: a Postcolonial Concept

‘Indigenous’, ‘indigenous peoples’, and ‘indigenous rights’ are now commonly used
terms in contemporary international legal discourse.²⁷ But, while the indigenous

²⁴ See L. Swepston, ‘A New Step in the International Law of Indigenous and Tribal Peoples’ (1990)
15(3) OCU LR 677, 680. On the controversy concerning the revision of Convention No 107, tack-
ling issues of indigenous representative and inter-agency competition, see H.H. Berman, ‘The ILO
and Indigenous Peoples: Revision of Convention 107’ (1988) 41 ICJR 48; L. Swepston, ‘Reply to
Howard Berman by Lee Swepston’ (1988) 42 ICJR 46; S. Venne, ‘The New Language of Assimilation:
A Brief Analysis of ILO Convention 169’ (1990) 53(2) Without Prejudice 60.
²⁵ Since 1957, the ILO policy concerning indigenous peoples has referred to these groups as
‘indigenous and tribal’ populations, as a strategy to broaden the scope of application of its standards
and overcome political opposition from postcolonial states to the term ‘indigenous’. The tandem
indigenous/tribal is found in the definition included in both Convention No 107 and Convention No
169. See infra Ch 5 (on the definition of indigenousness in the ILO 1957 instruments on indigenous
populations). In keeping with the consolidated usage in the UN and other international bodies, this
book refers solely to ‘indigenous’ peoples/populations.
²⁶ The terms ‘populations’ and ‘peoples’ have gained a particular saliency in the contemporary dis-
cussion on indigenous issues, and while Convention No 107 uses the former, Convention No 169
opts for the latter. See infra Ch. 9 nn 79–85 and accompanying text. This book uses both indifferently,
generally to signal the terms used in the specific period.
²⁷ A specific concern for indigenous peoples is now typically found in the standard discussion on
human rights from an international legal perspective. See, eg R.B. Lillich and H. Hannum,
International Human Rights: Problems of Law, Policy and Practice (3rd edn, 1995) 332–7; F.M. Mariño
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Introduction 5

rights discourse is a recent construct in modern international law, ‘indigenous’ is not a

new word in international legal parlance. A ‘humanitarian’ concern for the fate of
‘indigenous’ peoples has had a presence in Western legal thought since the beginning
of the long history of colonial expansion overseas, helping to bridge the moral gap
existing between the idealistic principles of ‘civilisation’ and the brutish practice of
colonial conquest, ultimately contributing to legitimize that conquest.²⁸ Grounded on
the same social evolutionist and Eurocentric assumptions that underlie the notion of
trusteeship, the classic concept of indigenousness denoted the lowest position in the
scale of ‘civilisation’, a normative location that simultaneously entailed a duty to ‘civilize’
on the part of the civilized and the ejection of ‘indigenous’ peoples to the margins of
international law, away from any entitlements under the positivist sovereignty
regime.²⁹ It is under this normative framework, for instance, that the legal artefact of
the ‘native worker’ (travailleur indigène) could be coined by colonial powers and
confirmed by international law in order to justify the forceful, ruthless exploitation of
the colonial workforce. ‘Civilization’: the standard and the trust were constitutive
parts of international law that justified and promoted colonialism, and the notion of
‘indigenous’ was central in this effort.³⁰
The fall from grace of the international norm of colonialism and its ‘civilisatory’
assumptions, brought fundamental changes to international law that redefined the
terms of the relationship between colonizer and colonized and, as a consequence, to the
very idea of indigenousness.³¹ Pressed by the intensification of the global anti-colonial
struggle, the colonial form became relevant for international law, fostering in the
trusteeship doctrine a distinction between colonial countries subject to the procedures
of the UN international trusteeship system, and postcolonial countries formally
excluded from this international scrutiny.³² It is in this context that the meaning of the

Menénedez, C. Fernández Liesa and C. Díaz Barrado, La Protección Internacional de las Minorías
(2001) 24–6; H.J. Steiner and P. Alston, International Human Rights in Context: Law, Politics, Morals
(2nd edn, 2000) 1301–4; R. Wallace and K. Dale-Risk, International Human Rights: Texts and
Materials (2nd edn, 2001) 104–31; D. Weissbrodt, J. Fitzpatrick and F. Newman, International
Human Rights: Law, Policy and Process (3rd edn, 2003) 579–82, 600–4.
²⁸ On reflections on the status of indigenous peoples in the early modern era, see generally
G.C. Mark, ‘Indigenous peoples in International Law: The Significance of Francisco de Vitoria
and Bartolomé de las Casas’ (1992) 13 Austl YBIL 1; A. Pérez Luño, La polémica sobre el Nuevo
Mundo: Los clásicos españoles en la Filosofía del Derecho (2nd edn, 1995). For a critical appraisal of the
work of Las Casas from a perspective of indigenous rights, see B. Clavero, Genocidio y Justicia: La
Destrucción de las Indias, ayer y hoy (2002).
²⁹ For an insightful analysis of ‘dynamics of difference’ in nineteenth-century international law,
see A. Anghie, ‘Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century
International Law’ (1999) 40 Harv. ILJ 1.
³⁰ On the colonial production of indigenous subjectivity, see generally D. Scott, ‘Colonial
Governmentality’ (1995) 43 Social Text 191; M. Mamdami, Citizen and Subject: Contemporary Africa
and the Legacy of Late Colonialism (1996).
³¹ See generally S.J. Anaya, Indigenous Peoples in International Law (2nd edn, 2004) 39–42 (an
analysis of the changes in international law after World War II and their impact on the legal status of
indigenous peoples.)
³² This rule is what became known as the ‘Blue Water’ or ‘Salt Water’ Doctrine. Advanced in a num-
ber of UN resolutions, the doctrine explicitly limited the application of Chap XI of the UN Charter
(regulating the international trusteeship system) to overseas territories subject to conditions of formal
colonialism. See ibid, 34; B. Clavero, Derecho indígena y cultura constitucional en América (1994) 61–2.
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6 Introduction

South African proposal to extend international protection to ‘indigenous populations

in independent countries’ can be understood—and also the response of the Mexican
delegate: this was not a subject for an international convention.³³
Decolonization produced a conceptual redefinition of the notion of ‘indigenous’ in
international law, which became gradually dispossessed of its formal colonial meaning.
The modern notion of indigenousness refers to distinct human groups encapsulated
within postcolonial nation-states, ‘the living descendants of pre-invasion inhabitants
of lands now dominated by others’.³⁴ Constructed through the normalization techniques
of social science, ‘indigenous’ became a technical category that identified specific target
groups for the purposes of international developmental policies, within a conceptual
and normative framework that identified the persistent existence of indigenous
peoples within postcolonial states as a ‘problem’ inherited from colonialism.
Firmly rooted in the strong individualistic version of equality typical of the post-war
era, the ‘integrationist’ paradigm that characterized the first international regime on
indigenous peoples in the period from the 1940s to the 1960s was not without a polit-
ical agenda. The anxious assertion of equality, and the motto ‘we are all citizens’, reflect
a particular political model of ‘universal citizenship’ that recognized no legal space
between the state and the individual, and which acknowledged no public implications
of cultural difference.³⁵ Moreover, ‘integration’ was coupled to a concern for homo-
geneity of the polity as a precondition for governance, an attempt to transplant the
ideal European model of the nation-state that in the postcolonial context became a
furious motor of assimilation policies.
During the last three decades, the interaction between an emerging international
indigenous movement and the modern international human rights regime led to an
overall reformulation of the normative parameters of the integrationist paradigm,
resulting in an increasing recognition of indigenous peoples as distinct subjects of
rights under international law. Indigenous peoples have been the subject of an interna-
tional year³⁶ and two successive international decades.³⁷ Indigenous rights have been
advanced by and reflected in a number of international standard-setting processes,³⁸

³³ The Mexican employers’ position was fully consistent with the basic tenets of official
Indigenism, the prevailing paradigm of social research and government policies in Latin America
during most of the twentieth century. Indigenism theorized about the reasons for the so-called ‘indigen-
ous problem’, prescribing the methods to solve it. See infra Ch 2 (an analysis of the interaction
between the ILO and American Indigenism during the 1930s and 1940s).
³⁴ Anaya, Indigenous Peoples in International Law (supra n 33) 3.
³⁵ See infra Ch 6, nn 129–56 (an analysis of the paradigm of ‘universal citizenship’ as reflected in
the ILO 1957 instruments on indigenous populations).
³⁶ UN General Assembly Res 46/128, UN Doc SG/SM/4878/Rev.1 (10 December 1992).
³⁷ UN General Assembly Res 50/157, UN Doc A/Res/50/157 (21 December 1995).
³⁸ UN Human Rights Commission Res 1982/19 (10 March 1982), ECOSOC Res 1982/34
(7 May 1982) (establishing a working group under the Sub-Commission on Prevention of
Discrimination and Protection of Minorities, responsible, inter alia, for promoting the adoption of
international standards in the area of indigenous peoples); UN Human Rights Commission
Resolution 1995/32 (3 March 1995) (establishing an ad hoc, inter-sessional, open-ended working
group under the commission, responsible for discussing the draft universal declaration on the rights of
indigenous peoples); OAS General Assembly Res AG/RES 1022 (XIX–0/89) (18 November 1989)
para 13 (requesting the Inter-American Commission on Human rights to prepare a draft instrument
relative to the rights of ‘Indian peoples’); AG/RES 1610 (XXIX–0/99) (7 June 1999) (establishing a
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Introduction 7

and have been affirmed and elaborated by a growing number of international human
rights bodies.³⁹ The protection of indigenous rights has even fostered changes in the
structure of the UN system to adjust international policies to indigenous peoples’ dis-
tinct concerns and conditions.⁴⁰ As pointed out by one author, the international law
on indigenous peoples constitutes ‘[o]ne of the most dynamic areas of international
law today’.⁴¹ Furthermore, the issues raised by indigenous peoples have contributed to
redrawing the boundaries of our contemporary understanding of international law and
human rights generally.⁴²
These normative developments have begotten a more or less defined set of prin-
ciples, norms, rules, and decision-making procedures: an international regime that
shapes normative expectations concerning the content and scope of the rights of
indigenous peoples.⁴³ Founded on self-determination and other commonly accepted
principles of international human rights law, indigenous peoples’ rights are affirmed
and safeguarded by a sui generis regime that covers areas related to non-discrimination,
indigenous cultures, indigenous land and resource rights, social welfare, and govern-
ment.⁴⁴ In his ground-breaking work on indigenous peoples in international law,
Professor S. James Anaya contends that the ‘new common ground’ concerning
the minimum standards of behaviour by state and non-state actors with regard to
indigenous peoples, reinforced by actual performance consistent with these standards,
is constitutive of international customary law.⁴⁵
Adopted in 1989 as a result of the process of revision of Convention No 107, which
had become the target of growing criticism because of its integrationist undertones,
Convention No 169 is both a reflection of the normative consensus concerning the
content of indigenous peoples’ rights under international law and a key catalyst of that
consensus. Unlike other ILO instruments, Convention No 169 pays only perfunctory
attention to issues of labour, while focusing instead on contemporary indigenous
peoples’ issues, such as indigenous land and resource rights; indigenous customary law
and political systems; and the principles of participation and consultation—a central
component of indigenous self-government.⁴⁶ With a major impact in international

working group of the Permanent Council to discuss the Proposed American Declaration on the Rights
of Indigenous Peoples).
³⁹ See generally S.J. Anaya, Indigenous Peoples in International Law (supra n 33) 151–82;
P. Thornberry, Indigenous Peoples and Human Rights (2003) 116–339 (discussing cases concerning
indigenous peoples before the UN, ILO and OAS human rights reporting and complaint procedures).
See also The Mayagna (Sumo) Awas Tingni Community v Nicaragua (Merits and Reparations) judgment
of 31 August 2001, I/A Court HR (Series C) No 79 (2001). On the Awas Tingni case, see S.J. Anaya
and C. Grossman, ‘The Case of Awas Tingni v. Nicaragua: A New Step in the International Law of
Indigenous Peoples’ (Spring 2002) 19 Ariz JICL 1.
⁴⁰ See ECOSOC Res 2000/22 (28 July 2003) (establishing the Permanent Forum on Indigenous
Issues as a subsidiary organ of the Economic and Social Council).
⁴¹ See S.J. Anaya, ‘Introduction’ in S.J. Anaya (ed) International Law and Indigenous Peoples (2003) xi.
⁴² See generally S.J. Anaya, ‘Indigenous Peoples and International Law Issues’ (1998) 92 Amer Soc.
ILP 96, 98–99.
⁴³ See S. Krasner, International Regimes (1992) 2 (defining international regimes as ‘principles,
norms, rules, and decision-making procedures around which actor expectations converge in a given
issue area’). ⁴⁴ See Anaya, Indigenous Peoples in International Law (supra n 33) 97–109.
⁴⁵ ibid, 49–58. ⁴⁶ ibid, 97–129.
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8 Introduction

and domestic law, Convention No 169 is considered to ‘reflec[t] a new and still
developing body of customary international law’ concerning the rights of indigenous
peoples.⁴⁷ Following Convention No 169, the ILO is now an inexcusable reference in
international legal talk concerning indigenous peoples.

The ILO and Indigenous Peoples:

a ‘Historical Anomaly’

The International Labour Organisation is a rara avis in the UN family of organizations

and specialized agencies, in several ways. To start with, the ILO is a strange beast in his-
torical terms. Founded by the Treaty of Versailles with the broad mandate to ‘secure
and maintain fair and humane conditions of labour of men, women and children’,⁴⁸
the organization is a historical remnant of the League of Nations system, preceding the
United Nations and thus the contemporary human rights regime. The long history of
the International Labour Organisation makes it a unique witness to the important
normative developments within the international system over the last eighty years.
A second exceptional characteristic of the ILO is its tripartite structure, which allows
for the participation of state, employers’ and workers’ representatives on a relatively
equal basis in the organization’s decision-making processes, standard-setting activities,
and supervision of those standards.⁴⁹ Tripartite representation is provided for in
the organization’s two main decision-making bodies: the Governing Body, the ILO’s
‘executive power’, responsible for the organization’s functioning and agenda;⁵⁰ and the
International Labour Conference, the ‘legislature’ responsible for discussion,
adoption, and (in part) supervision of international labour standards.⁵¹
The ILO is predominantly, but not exclusively, a factory of international legal
standards aimed at creating ‘humane conditions of labour’.⁵² Historically marked by

⁴⁷ See S.J. Anaya, ‘Indigenous Rights Norms in Contemporary International Law’ (1991) 8 Ariz
JICL 1, 10.
⁴⁸ See Covenant of the League of Nations, Treaty of Peace between the Allied Powers and Germany,
Part I, Versailles, 28 June 1919 (entry into force: 10 April 1920) 225 CTS 195 (1919) art 23(a) (here-
inafter, ‘ILO Constitution’).
⁴⁹ The literature on the ILO is very extensive. Some of the classic works of reference are R.W. Cox,
‘ILO: Limited Monarchy’ in R.W. Cox and H.K. Jacobsen (eds) The Anatomy of Influence: Decision
Making in International Organization (1974) 102; E. Haas, Beyond the Nation-State: Functionalism
and the International Labour Organisation (1964); V.-Y. Ghebali, The International Labour
Organisation: A Case Study on the Evolution of UN Specialised Agencies (1989); G.A. Johnston, The
International Labour Organisation: Its Work for Social and Economic Progress (1970). On the organiza-
tion’s history see generally J.-M. Bonvin, L’Organisation Internationale du Travail: Étude sur une agence
productrice de normes (1998); W.C. Jenks, Social Justice in the Law of Nations: The ILO Impact After
Fifty Years (1970); D.A. Morse and D. Morse, L’origine et l’évolution de l’OIT et son rôle dans la
communauté mondiale (1969); J.T. Shotwell, The Origins of the International Labour Organization (1934).
⁵⁰ ILO Constitution, (supra n 50) art 7. ⁵¹ ibid, arts 3–6.
⁵² See Constitution of the International Labour Organisation, 9 October 1946 15 UNTS 35, pre-
amble para 2. On the ILO’s international labour standards, see generally H. Bartolomei de la Cruz,
G. Van Potobsky, and L. Swepston, The International Labour Organisation: The International
Standards System and Basic Human Rights (1996); N. Valticos and G. Von Potobsky, International
Labour Law (2nd edn, 1995).
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Introduction 9

normative surplus, the International Labour Code is a vast accumulation of dozens of

formally binding conventions⁵³ and ‘soft-law’ recommendations,⁵⁴ covering a wide
variety of issues ranging from the ‘fundamental principles and rights of work’ to highly
technical issues such as seafarers’ working conditions of work and asbestos safety.
Adopted in 1957, Convention No 107 and Recommendation No 104 were the first
international instruments specifically addressing the situation of ‘indigenous and
tribal’ peoples within the wide International Labour Code. Rapidly forgotten within
an organization in which indigenous issues were peripheral to areas of institutional
interest and technical expertise, these instruments would surely have fallen into obliv-
ion had they not been ‘rediscovered’ in the context of the emergence of the indigenous
rights movements in the early 1970s.
The adoption of Convention No 107 and its subsequent revision in the form of
Convention No 169 within an organization with the ILO’s mandate and expertise is
itself a ‘historical anomaly’,⁵⁵ a contemporary incongruity that can only be explained
through history. Writing in the early 1980s, Douglas Sanders described the official
history of the ILO’s involvement in the issue of indigenous peoples as follows:
From as early as 1921 the International Labour Organization has had a special interest in
indigenous populations. In 1936, the ILO drafted Convention No. 50 on the Recruiting of
Indigenous Workers. In 1939, it drafted Convention No. 64 on Contracts of Employment
(Indigenous Workers) together with Recommendation No. 58 on the same subject. In the same
year it drafted Convention No. 65 on Penal Sanctions (Indigenous Workers) and
Recommendation No. 59 on Labour Inspectorates (Indigenous Workers). In April 1946,
the third conference of the American State members of the ILO passed a resolution asking the
Governing Body of the ILO to establish a committee of experts on the social problems of the
indigenous populations of the world. The committee of experts was established and met for
the first time in January 1951 in Bolivia. Their recommendations led to the Andean Indian
Programme established under United Nations auspices in 1953 and involving four specialized
agencies. In 1953, the ILO published a book: Indigenous Peoples: Living and Working Conditions
of Indigenous Populations in Independent Countries. In 1957, the ILO drafted Convention No.
107 on the Protection and Integration of Indigenous and Other Tribal and Semi-Tribal
Populations in Independent Countries, together with Recommendation No. 104 on the same
subject.⁵⁶
This description has been reproduced by generations of scholars and ILO officials as a
kind of palimpsest continually written and rewritten, its original meaning erased by
reuse. This palimpsest played a key legitimizing role in the International Labour
Office’s initiative to revise Convention No 107—a decision which, despite growing
condemnation of the convention, was far from undisputed—thus also providing a

⁵³ ibid, art 5(5)(d) (upon ratification of an international labour convention, member states ‘will
take such action as may be necessary to make effective the provisions of such Convention’).
⁵⁴ ibid, art 5(5)(d) (‘apart from bringing the Recommendation before the . . . competent authority
or authorities, no further obligation shall rest upon the Members’).
⁵⁵ See V. Leary, La utilización del Convenio No. 169 de la OIT para proteger los derechos de los pueb-
los indígenas (1999) 17 (author’s translation).
⁵⁶ See D. Sanders ‘The Re-Emergence of Indigenous Questions in International Law’ 3 Can HRJ
3, 71 (1983) (citing material from Martínez Cobo’s then unpublished Study on Discrimination Against
Indigenous Populations).
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10 Introduction

continuous historical legitimization for the revised instrument.⁵⁷ But the official history
of the ILO’s policy on indigenous peoples leaves a number of important questions
unanswered.
The existing literature does not help much to solve those queries, despite a true ‘lit-
erature explosion’ in the field.⁵⁸ By reason of both the novelty and urgency of the issue,
the existing literature on the rights of indigenous peoples is, by and large, prospective.⁵⁹
It aims at opening theoretical spaces and discussions concerning the complex issues of
indigenous collective rights within the existing human rights framework, and comple-
menting current developments in a rapidly moving field of international law. In more
recent years, a number of studies have started to focus on the broader international
political and institutional context of the contemporary indigenous rights regime,
focusing generally on the emergence and consolidation of this regime within the UN
system during the 1970s and 1980s.⁶⁰ In the existing literature on indigenous peoples’
rights in international law, the ILO’s historical and current activity in this field is
generally taken for granted.
Despite its fundamental role in shaping the modern international regime on
indigenous rights, the ILO has been mostly overlooked by existing international legal

⁵⁷ See ILO, International Labour Conference, 75th session (Geneva 1988): Partial Revision of the
Indigenous and Tribal Populations Convention, 1957 (No 107), Report VI(1) (1987) 3 (the Office’s
report to the 1988 International Labour Conference, describing the ILO’s historical concern for
indigenous peoples ‘[s]ince its creation in 1919’).
⁵⁸ See B.K. Roy and G. Alfredsson, ‘Indigenous Rights: The Literature Explosion’ (1987) 13(1)
Transnational Perspective 19–24.
⁵⁹ To date, the number of monographs dealing with indigenous peoples in international law is still
small. See S.J. Anaya, Indigenous Peoples in International Law (supra n 33); G. Bennett, Aboriginal
Rights in International Law (1978); I. Brownlie, Treaties and Indigenous Peoples (1991); F. Mackay, Los
Derechos de los Pueblos Indígenas en el Sistema Internacional. Una Fuente Instrumental para las
Organizaciones Indígenas (1999); N. Rouland, S. Pierre-Caps and J. Poimarède, Droit des minorités et
de peuples autochtones (1996); Thornberry (supra n 41). Some of the scholarly articles of reference on
the subject, old and new, are Anaya, ‘Indigenous Rights Norms in Contemporary International Law’
(supra n 49); R.L. Barsh, ‘Indigenous Peoples in the 1990s: From Objects to Subjects of International
Law’ (1990) 7 Harv. HRJ 33, 45; Barsh, ‘Current Developments: Indigenous Peoples: An Emerging
Object of International Law’ (1989) 80 AJIL 369; Barsh, ‘Indigenous North America and
Contemporary International Law,’ (1983) 62 OLR 73; B. Clavero, ‘El proyecto de declaración inter-
nacional: derechos indígenas y derechos humanos’ in Derecho Indígena 184 (Magdalena Gómez (co-
ord), 1997); I.-E. Daes, ‘Some Considerations on the Right of Indigenous Peoples to
Self-Determination’ (1993) 3 TLCP 1; R. Falk, ‘The Rights of Peoples (In Particular Indigenous
Peoples)’ in J. Crawford (ed) The Rights of Peoples (1988) 17; H. Hannum, ‘New Developments in
Indigenous Rights’ (Spring 1998) 28 VJIL 649; B. Kingsbury, ‘ “Indigenous Peoples” in International
Law: A Constructivist Approach to the Asian Controversy’ (1998) 92 AJIL 414; Kingsbury, ‘Reconciling
Five Competing Conceptual Structures of Indigenous Peoples’ Claims in International and Comparative
Law’(2001) 34 NYU JILP 189; Sanders (supra n 23); R. Stavenhagen, ‘Los derechos de los indígenas:
algunos problemas conceptuales’ (1992) 15 Revista del IIDH 138; L. Swepston, ‘Indigenous and Tribal
Populations: A Return to Center Stage’ (1977) 126(4) ILR 447; S. Wiessner, ‘Rights and Status of
Indigenous Peoples: A Global Comparative and International Legal Analysis’ (1999) 12 Harv. HRJ 57;
R.A. Williams ‘Encounters on the Frontiers of International Law’ (1990) 27 Buff. LR 669 (1990).
⁶⁰ See, eg A. Brysk, From Tribal Village to Global Village: Indian Rights and International Relations in
Latin America (2003) 188–283; B.R. Howard, Indigenous Peoples and the State (2003) 144–71;
D. Sanders, ‘The Legend of Deskaheh: Indigenous Peoples as International Actors’ in Cynthia Cohen (ed)
Human Rights of Indigenous Peoples (1998) 73; R. Niezen, The Origins of Indigenism: Human Rights and the
Politics of Identity (2003); F. Wilmer, The Indigenous Voice in World Politics: Since Time Immemorial (1996).
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Introduction 11

literature—in part a reflection of the decay of the organization’s policy in this realm.
While there is a voluminous body of literature on the convention focusing on the
specific domestic contexts,⁶¹ no substantial scholarly book-length work has been
published on the convention from an international legal perspective. Articles published
on the subject in specialized journals and edited volumes—mostly published either by
ILO officials or in the wake of the convention’s adoption—typically aim to provide
ready-to-use descriptions and interpretations of the convention, with little inclination to
theoretical construction nor, for that matter, historical inquiry.⁶² With few exceptions⁶³
the history of the ILO and indigenous peoples lies in an amorphous mass of primary
documentary sources. This mass of source documents includes: a whole set of interna-
tional legal documents; a vast number of reports produced by the Office throughout the
decades; a wealth of documentation located in the organization’s historical archives; and
many other secondary sources. It is thus a history that cries out to be written.

Outline of the Book

This book is in three parts. Part I examines the historical origins of the ILO’s policy on
indigenous peoples. It starts from the organization’s early activities in the field of ‘native
⁶¹ See M. Gómez, Derechos Indígenas. Lectura Comentada del Convenio 169 de la Organización
Internacional del Trabajo (1995); J.A. González Galván, ‘El Convenio 169 de la Organización
Internacional del Trabajo sobre derechos de los pueblos indígenas y las obligaciones de México con su
ratificación’ (septiembre–diciembre 1999) 96 Boletín Mexicano de Derecho Comparado 857; F. López
Bárcenas, Convenio 169 de la OIT: Su validez y problemas de aplicación en nuestro país (1996); J.-E.
Ordóñez Cifuentes (ed), ‘Análisis interdisciplinario del Convenio 169 de la OIT’ (2000) IX Jornadas
Lascasianas; M. Papadópolo, El nuevo enfoque internacional en materia de derechos de los pueblos indí-
genas en Guatemala (1995); L. Sargent, ‘The Indigenous Peoples of Bolivia’s Amazon Basin Region
and ILO Convention No 169: Real Rights or Rhetoric?’ (1998) 29 UM IALR 475.
⁶² See, eg R.L. Barsh, ‘Making the Most of Convention No. 169’ (Spring 1994) 18(1) Cultural
Survival 45; id, ‘An Advocate’s Guide to the Convention on Indigenous and Tribal Peoples’ (1990)
209 OCU LR 15; id, ‘Revision of Convention No. 107’ (1987) 81 AJIL 756; R.B.K. Burman,
‘“Indigenous” & “Tribal” Peoples and the UN & International Agencies’ (1995) Rajiv Gandhi
Institute for Contemporary Studies Papers 27. J.R. Hernández-Pulido, ‘Revisión del Convenio sobre
Poblaciones Indígenas y Tribuales, 1957 (núm. 107): Puntos pendientes de resolver’ (1988) 48
Anuario Indigenista 99; S. Leckie ‘Indigenous peoples, Recent Developments in the International
Labour Organization’ (1988) 16 Studie- en Informatiecentrum Mensenrechten 22; N. Lerner, ‘The
1989 ILO Convention on Indigenous Populations: New standards?’ in Y. Dinstein and M. Tabory
(eds) The Protection of Minorities and Human Rights (1992) 213; L. Swepston, ‘The ILO Indigenous
and Tribal Peoples Convention (No 169): Eight Years After Adoption’ in Cynthia Price Cohen (ed)
Human Rights of Indigenous Peoples (1988) 17; Swepston, ‘A New Step in the International Law of
Indigenous and Tribal Peoples’ (supra n 26); L. Swepston and M. Tomei, ‘Indigenous and Tribal
Peoples’ in L. van de Fliert (ed) Indigenous Peoples and International Organisations (1994).
⁶³ With possibly the sole exception of Chris Tennant’s analysis of the literature on international
institutions concerned with indigenous peoples for the period 1945–93, no scholarly piece has thus far
been written on this specific subject. However, Tennant’s study focuses more on the changing interna-
tional discourse than on placing these discourses within their historical context. See C. Tennant,
‘Indigenous Peoples, International Institutions, and the International Legal Literature’ (1994) 16 HRQ
1. Particular mention should also be made of Jef Rens’ posthumous 1987 monograph on the Andean
Indian Programme, a compilation of material produced by the Office throughout the plan’s life which
should be considered more as a primary source than as a work of scholarly analysis. See J. Rens, Le
Programme andine: Contribution de l’OIT à un project-pilote de cooperation technique multilatérale (1987).
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12 Introduction

labour’ in the early 1920s and moves on to the adoption of the organization’s first
international legal standards on indigenous populations in the late 1950s. The analysis
is divided into three closely intertwined and overlapping historical moments. The first
chapter aims to answer why an organization such as the ILO first became concerned
with the issue of ‘native labour’, and why this concern turned into a specific issue on the
organization’s agenda of international social reform. The chapter traces the organiza-
tion’s first steps in this area back to the international trusteeship doctrine developed by
nineteenth-century positivist international law, later crystallized in the Covenant of
the League of Nations. The chapter describes the construction over two decades of a
theory of implicit competence in this realm, eventually leading to the drafting of a
‘Colonial Code’: a set of international labour standards specifically aimed at disciplin-
ing colonial states’ policies towards their populations. This chapter further contends
that the ILO’s Colonial Code constitutes the framework for a conceptual evolution of
the notion of ‘indigenous’ in international law, from the ‘classic’ to the ‘modern’
concept operating in current discourse.
The Colonial Code consolidated the organization’s formal competence in ‘indigen-
ous’ affairs, at a historical moment when the difference between the status of colonial
peoples and indigenous groups living in independent countries was irrelevant in inter-
national law. Chapter 2 analyses a parallel origin of the ILO’s concern for indigenous
peoples in the framework of the organization’s regional policy in the Americas. This
chapter pays particular attention to the organization’s encounter with American
Indigenism, a highly influential political and intellectual movement responsible for
placing the ‘Indian problem’ on the social reform agenda in Latin America. The
chapter further examines how the organization’s interaction with Indigenist theories,
actors, and institutions had a pervasive effect on the articulation of the ILO’s own
discourse on ‘indigenous’ peoples.
Chapter 3 explores the transition from the original American framing of the
organization’s policy in this area to a policy of universal scope, from the late 1940s to
the mid-1950s. This transition took place in the framework of the internationalization
of the ‘indigenous problem’ within the wider context of the emerging international
development regime. Cloistered in the common rubric of the ‘Indigenous Labour
Programme’, this period is marked by three distinguishable achievements: the creation
of the Committee of Experts on Indigenous Labour, which set the main guidelines for
the organization’s activity in this realm; the first systematic, comparative research on
indigenous peoples by an international institution, epitomized in the publication of
the influential Indigenous Peoples (1953); and, at the beginning of the famed Andean
Indian Programme, a gigantic, multi-agency developmentalist effort aimed at
the ‘integration’ of indigenous peoples in the Andean region. These activities mark the
penetration of applied anthropology in the organization’s work, an example of the
emergence of the social science discourse in the work of the international organization
and, by extension, in modern international law.
Part II analyses the ILO’s 1957 standards on indigenous populations from a
diachronic perspective. Chapter 4 seeks to answer the question of why the ILO’s his-
torical concern on indigenous populations led to the adoption of the first international
legally binding standards in this area of law. The chapter puts forth the theory that the
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Introduction 13

first entry of indigenous peoples in modern international law was guided more by
‘humanitarian’, developmentalist concerns than by a genuine commitment on the part
of states to subject their policies concerning indigenous peoples to international
scrutiny or, for that matter, to recognize international obligations and to affirm the
rights of these peoples. Chapter 5 attempts to analyse the ILO 1957 standards on
indigenous populations within the historical-intellectual context in which they
were drafted, seeking to understand the normative basis of the first recognition of
indigenous peoples in modern international law. The chapter examines the discourse
of ‘integration’ framing these standards as a reflection of the normative and political
anxieties of the time in which they were drafted, and how this discourse was ultimately
rooted in the assumption that indigenous cultures should be changed to foster the
unchallenged objectives of ‘development’ and nation-building. Finally, Chapter 6
focuses specifically on the definition of ‘indigenous, tribal and semi-tribal populations’
enshrined in article 1 of Convention No 107 and Recommendation No 104, the first
international legal definition of indigenous peoples, and a definite starting point for
the consolidation of the modern concept of ‘indigenous’ in international law.
The last part of the book deals with the process that led to the gradual fall of the
‘integrationist’ paradigm, and to the adoption of Convention No 169 in a context of
growing condemnation of the earlier convention. Chapter 7 discusses the implemen-
tation of Convention No 107, from the moment of its entry into force in 1959 to the
threshold of its eventual revision in 1989, in the form of Convention No 169. This
chapter tackles implementation from a twofold perspective, entailing an examination
of the ILO’s operational activities and supervision by the organization’s competent
bodies. The history of the convention’s implementation is a story of the fall of the organ-
ization’s enlightened utopia of ‘integration’, but also a history of the instrumentalism
of the convention in the international protection of indigenous peoples’ rights.
Since the mid-1970s, the emergence of the international indigenous movement has
proved to be a major factor in the reformulation of the terms of the international
discourse on indigenous peoples. Chapter 8 describes the gradual articulation of the
modern international regime on indigenous rights within the UN framework, which
provides the context for the revision of Convention No 107, a highly controversial
process firmly steered by the organization’s Secretariat motivated by bureaucratic con-
siderations. The inherent contradictions of this process gave rise to thorny discussions
at the International Labour Conference, in which indigenous peoples themselves took
an active—and highly critical—stand. Chapter 9 analyses the main features of the new
Convention No 169, a far-from-perfect text that has, however, proved fundamental in
the articulation of the contemporary international regime on the rights of indigenous
peoples.

A Note on the Sources

Finally, it is necessary to include a note about the sources. This book draws extensively
on a number of primary sources found at the ILO’s historical archives and main library,
located in the organization’s headquarters in Geneva. These sources were reviewed
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14 Introduction

during various research stays in the period from 1998 to 2000. The author further
conducted research in the archives and library of the organization’s Regional Office for
the Americas, in Peru, from September to October 1999. According to the rules
governing the ILO historical archives, public research is open for archival material
older than 25 years. Concerning the more recent materials used in the development of
this book, including the relevant files regarding the revision of Convention No 107,
the author was granted a special permission by the Office’s Director-General. Again in
accordance with the archives’ rules, the material subsequent to 1974 may be not
quoted directly. The ILO archives are a meticulously kept collection of materials
regarding the different activities undertaken by the organization since its inception.
Research for this book has involved consulting numerous archival files for the period
1919–89, including not only those related to the organization’s public activities, but,
most importantly, the Secretariat’s internal work and communications with relevant
governments. References to these materials are based on the organization’s own filing
system. In addition, this book relies on a number of published and unpublished reports
produced by the Office throughout this period. In the case of unpublished reports,
they are cited according to the ILO’s official document number. Unless expressly
indicated, unpublished reports are found in the ILO’s main library in Geneva.
The ILO’s working languages are English, French, and Spanish, and therefore, the
organization’s language policy is one of systematic translation of most official materials.
Normally the rule followed in this book has been to use the official documents as
translated into the English language, particularly in the case of authoritative texts by
the various ILO bodies. This rule has been occasionally adjusted to take into account
instances where the official translation into English does not present an accurate
version of the original document, particularly in cases in which the terminology is key
to the discussion. This has been the case with a number of statements of delegates at
international or regional labour conferences. In some other instances, the official
translation into English was simply not available, as in reports produced by the
Secretariat in relation to indigenous policy in the Americas. In those cases, as in regards
to any non-official translation of quoted text, the translation by the author is expressly
indicated.