Defending indigenous rights in a globalized world
Last year, Germany ratified the Indigenous and Tribal Peoples Convention (ILO 169), a treaty created under the auspices of the International Labour Organization (ILO). ILO 169 is the key international treaty codifying the rights of indigenous peoples. In countries that have indigenous populations, ratifying the convention is often either a major political achievement or a politically sensitive topic. For example, in Finland, a member state of the European Union (EU) that is well-known for its commitment to human rights, international law, and the rule of law, and that is home to thousands of indigenous Sámi, the question of whether ILO 169 should be ratified has been debated for decades. Efforts have been made to bring a ratification underway, but for different political reasons, this has never happened.
ILO 169 was adopted in 1989 and it very much reflects the state of international law at the time. Since around the 1970s, indigenous peoples have played a bigger role in the development of international legal norms related to the protection of the rights of indigenous peoples. This has happened through international human rights litigation, especially in the context of Article 27 of the International Covenant on Civil and Political Rights (ICCPR), but also in the context of the European Convention on Human Rights (ECHR), as well as through the participation in international fora, for example, the Arctic Council (AC) or in the United Nations Permanent Forum on Indigenous Issues (UNPFII).
ILO 169, which aims to protect indigenous peoples, has to be seen in the broader framework of the international treaties that have been created by the ILO. This not only refers to the specific tripartite complaint mechanism allowed for under Article 37 paragraph 2 of the Constitution of the ILO (ILOC) and the opportunity of dispute resolution at the International Court of Justice (ICJ) under Article 37 paragraph 1 ILOC, but also to the overall approach behind the convention. ILO 169 largely replaces an earlier ILO convention, the 1957 Indigenous and Tribal Populations Convention (ILO 107). ILO 107 was aimed at integrating indigenous persons into the dominant societies. The choice of words, “populations” instead of “peoples” reflects the origins of ILO 107 in the late colonial era because it was adopted prior to the adoption of the ICCPR and the International Covenant on Economic, Social, and Cultural Rights (ICESCR) in 1966, both of which emphasize “peoples”. The rights of peoples in the ICESCR and the ICCPR have for decades been understood to apply to all peoples, including to indigenous peoples. Today, in 2021, we are as far from 1989 as 1989 was from 1957. Yet, ILO 169 is still seen as the key international treaty related to the rights of indigenous peoples.
In 2007, the General Assembly of the United Nations adopted the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP). To a large degree, the non-binding UNDRIP reflects the existing customary international law, which did not stop evolving after 1989. In many ways, ILO 169 might be considered to have been overcome by events (OBE). ILO 169 remains important as the only legally binding international treaty that protects the rights of indigenous peoples. But ratifying it now is not without risks. Customary international law binds all countries that do not persistently object to it. Indeed, it could be argued that by ratifying ILO 169 now, governments might be tempted to claim that they only would have to adhere to the lower standards of the convention and could disregard customary international law. This would be incompatible with the essence of the idea of the rule of law in international relations because customary international law is also binding. There may be a hierarchy of norms in international law, but this hierarchy depends on the content of norms more than on their form. While it is likely that a norm that is widely respected or even amounts to jus cogens will also be codified in the form of a treaty in one way or another, doing so is not legally necessary in order to ensure that such a norm is binding because it is already binding as customary international law. This simple aspect of international law, which is reflected in Article 38 of the Statute of the International Court of Justice (ICJS), sometimes seems to be forgotten by governments. Customary international law already creates legal obligations. The added benefit provided by ratifying ILO 169 is that the door is opened to the ILO’s complaint mechanisms with regard to those obligations that are covered by ILO 169. Obligations contained in customary international law but not in ILO 169 might not be as easy to enforce, but they are nevertheless legal obligations. Like UNDRIP, customary law norms might also be useful in interpreting obligations under ILO 169. In so far, even though ILO 169 is an international treaty from a different era, ratifying it now can provide real benefits for indigenous peoples. ILO 169 might not be the most up-to-date treaty anymore and it might seem to be overcome by events, but it is not useless. Given the difficulties of indigenous litigants to defend their rights in the European Court of Human Rights (ECtHR), especially when compared to the track record of the Inter-American human rights system, creating an additional pathway to international human rights litigation makes sense from the perspective of human rights. Therefore, ratifying ILO 169 in 2021 can be considered a meaningful choice on the part of a state. The ratification by Germany is particularly noteworthy because the number of new ratifications in recent years had been very low. Germany is the 24th country to ratify ILO 169 and the first since Luxemburg ratified the international treaty in 2018. Prior to that, the last ratifications were those by the Central African Republic and Nicaragua in 2010.
Germany does not have within its territory any groups that would qualify as indigenous within the meaning commonly used in contemporary international law. There are a number of national minorities in Germany that enjoy specific rights, these are the Sorbs in eastern parts of the country, the Frisian community near the North Sea, the Sinti and Roma communities, and the Danish national minority in the far north of the country. In Germany, national minorities hardly gain much attention. In September 2021 there might have been a bit more attention due to the fact that a representative of a political party representing the Danish national minority was elected to the Federal Parliament for the first time in decades, but in general, indigenous rights questions are not a major political topic there. Why then did Germany ratify ILO 169 at this time?
The short answer is, that the opposition made the, now former, government honour its own promises. The ratification of ILO 169 had been included in the 2017 coalition agreement that provided the framework for the fourth Merkel government. This coalition agreement was concluded just months after the members of parliament (MPs) from the parties that formed the government between 2017 and 2021, Merkel’s conservative Cristian-Democratic Union (CDU), its Bavarian sister party, the Christian Social Union (CSU), and the Social-Democratic Party of Germany (SPD), had rejected a parliamentary motion by the Green MPs to ratify ILO 169. In early 2021, the Green party polled well enough to field a candidate for chancellor for the first time in their party’s history and the September 2021 elections were seen as a match between the Greens and the CDU/CSU, with the most likely outcome being a coalition between both parties, albeit more likely with the CDU/CSU retaining the leadership of the government (the eventual election results were different, resulting in a SPD-led coalition with the Greens and the Liberal Party). In this situation shortly before the 2021 elections, the Greens demanded the ratification of ILO 169. Eventually, all parties except the far right agreed to this proposal, highlighting – just before the election – a willingness to cooperate across party lines, at least on topics of social concern that did not lead to immediate costs or demands for action.
The absence of indigenous peoples from the territory of Germany does not mean that indigenous rights would be irrelevant - their relevance only has a different shape than, for example, in countries such as Finland, Sweden, or Canada. Germany has a population of over 84.1 million people and plays a diminished but still important role in the global economy. No other country is as dependent on globalization as Germany. Economic and industrial activities have impacts elsewhere, be it through long-distance effects of environmental pollution and climate change or through local effects, for example through extractive industries. In today’s globalized world, responsibility for human rights, including indigenous rights, does not end at one’s doorstep or at national borders. States’ can use their regulatory power, e.g. over corporations, to ensure that corporations in their country do not violate human rights, including indigenous rights, either directly or through subsidiaries, contractors or business partners in other countries. It is therefore an important signal that the EU’s largest member state has ratified this treaty.
The symbolic effect of this ratification, unfortunately, was lost somewhat as the ratification was hardly communicated by the outgoing government. Unlike in the case of the ratification of ILO Convention 183 which aims at protecting women in the workforce in September 2021, Germany’s Federal Labour Ministry did not even issue a press release upon the ratification of ILO 169, although the Federal Foreign Office’s special representative for human rights policy and humanitarian assistance, Bärbel Kofler, mentioned the ratification during a short statement on the occasion of the Day of Indigenous Peoples, a year after she, too, had called for the ratification of ILO 169. While the parliamentary materials that document the discussions that eventually led to the adoption of ILO 169 are publicly available, the official silence on the part of the outgoing government is disappointing. This silence might be explained by the fact that this might have been seen as a political victory for the Green party at a time when it was widely assumed that CDU/CSU and Greens would form the next government after the elections in September 2021 (at the time of writing in mid-October 2021, coalition negotiations are underway between the SPD, the Greens and the Free Democratic Party (FDP), a nominally liberal party that in recent years has moved considerably to the political right), although the ratification was approved by MPs from all factions, with the exception of the far-right Alternative für Deutschland (AfD). There might, however, be two explanations for this missed opportunity for political marketing that deserve further attention: racism remains a widespread problem in many parts of German society, and a measure that might be seen as only benefitting foreigners might not have been a popular political choice shortly before an election. If this were the case, it would exhibit a lack of courage. On the other hand, is Germany still struggling with its own (all too often ignored) colonial history, including the genocides committed in Namibia early in the 20th century. Because of the limitations imposed by intertemporal international law, meaning that the legal norms in force at a specific point in time apply to events at that time, and due to the wide gaps in the legal protection against government injustices at the time of the genocides against the Herero and Namaqua peoples, the descendants of the survivors do not have an international legal basis for compensation claims against Germany. The lack of an international legal basis would not have prevented Germany from creating, in domestic legislation, a legal basis for compensation. This has not happened. Subsequent German governments have denied compensation but instead provide development aid to Namibia. This development aid is often justified by benefiting all Namibians instead of only members of selected ethnic groups. In this way, any payments made by Germany to Namibia cannot be construed as compensation payments. German governments have rejected compensation claims on numerous occasions, not only with regard to the genocides in Namibia but also concerning atrocities committed during World War II (WW II) (such as the massacre in Distomo or in connection with claims by Italy) and violations of international humanitarian law in later conflicts, for example, the 1999 Operation Allied Force. The concept of intertemporal international law provides legal certainty and might close the door to compensation for victims of actions that occurred prior to the emergence of modern International Human Rights Law. Today, compensation for contemporary violations of International Humanitarian Law is being discussed and Article 41 ECHR specifically includes a compensation requirement. With the ECHR being applicable also beyond the borders of the states that have ratified it, as well as in armed conflicts, compensation for contemporary human rights violations abroad has been the law already for decades.
Ratifying ILO 169 makes it easier for indigenous communities abroad to hold Germany to account in case of future human rights violations. It is an addition to the existing system of protection. Its practical relevance might be limited but this ratification is more than a mere symbol. Unlike in Finland, where international treaties are ratified after it has been ensured that domestic legislation is in line with the international obligations the country is about to accept (an approach that ensures that Finland is not in violation immediately upon ratification), it is common in Germany to ratify an international treaty and to create domestic legislation. Germany follows a mixed dualist-monist approach: international treaties are being implemented through national legislation while general principles of international law (not to be confused with the general principles of law mentioned in Article 38 ICJS) are automatically part of the federal law under Article 25 sentence 1 of the constitution of the Federal Republic of Germany, the Basic Law. Such general principles of international law are located in the hierarchy of norms on a level between the constitution and acts of parliament (Article 25 sentence 2 Basic Law), they have immediate effect and create rights and obligations (Article 25 sentence 2 Basic Law). ILO 169 has been implemented through an act of parliament. Given the track record of Germany when it comes to human rights violations abroad in the post-WWII era, it seems likely that it will be up to indigenous litigants to make the best use of this new tool.