Convention Concerning Indigenous and Tribal Peoples in Independent Countries

 

Article 8

1. In applying national laws and regulations to the peoples concerned, due
regard shall be had to their customs or customary laws.

2. These peoples shall have the right to retain their own customs and
institutions, where these are not incompatible with fundamental rights defined
by the national legal system and with internationally recognised human rights.
Procedures shall be established, whenever necessary, to resolve conflicts which
may arise in the application of this principle.

3. The application of paragraphs 1 and 2 of this Article shall not prevent
members of these peoples from exercising the rights granted to all citizens and
from assuming the corresponding duties.

Article 9

1. To the extent compatible with the national legal system and
internationally recognised human rights, the methods customarily practised by
the peoples concerned for dealing with offences committed by their members shall
be respected.

2. The customs of these peoples in regard to penal matters shall be taken
into consideration by the authorities and courts dealing with such cases. Article 10

1. In imposing penalties laid down by general law on members of these
peoples account shall be taken of their economic, social and cultural
characteristics.

2. Preference shall be given to methods of punishment other than
confinement in prison.

Article 11

The exaction from members of the peoples concerned of compulsory personal
services in any form, whether paid or unpaid, shall be prohibited and punishable
by law, except in cases prescribed by law for all citizens.

Article 12

The peoples concerned shall be safeguarded against the abuse of their rights
and shall be able to take legal proceedings, either individually or through
their representative bodies, for the effective protection of these rights.
Measures shall be taken to ensure that members of these peoples can understand
and be understood in legal proceedings, where necessary through the provision of
interpretation or by other effective means.

PART II. LAND

Article 13

1. In applying the provisions of this Part of the Convention governments
shall respect the special importance for the cultures and spiritual values of
the peoples concerned of their relationship with the lands or territories, or
both as applicable, which they occupy or otherwise use, and in particular the
collective aspects of this relationship.

2. The use of the term “lands”in Articles 15 and 16 shall include the
concept of territories, which covers the total environment of the areas which
the peoples concerned occupy or otherwise use.

Article 14

1. The rights of ownership and possession of the peoples concerned over the
lands which they traditionally occupy shall be recognised. In addition,
measures shall be taken in appropriate cases to safeguard the right of the
peoples concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and traditional
activities. Particular attention shall be paid to the situation of nomadic
peoples and shifting cultivators in this respect.

2. Governments shall take steps as necessary to identify the lands which the
peoples concerned traditionally occupy, and to guarantee effective protection of
their rights of ownership and possession.

3. Adequate procedures shall be established within the national legal system
to resolve land claims by the peoples concerned.

Article 15

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.

Article 16

1. Subject to the following paragraphs of this Article, the peoples
concerned shall not be removed from the lands which they occupy.

2. Where the relocation of these peoples is considered necessary as an
exceptional measure, such relocation shall take place only with their free and
informed consent. Where their consent cannot be obtained, such relocation shall
[*1388] take place only following appropriate procedures established by
national laws and regulations, including public inquiries where appropriate,
which provide the opportunity for effective representation of the peoples
concerned.

3. Whenever possible, these peoples shall have the right to return to their
traditional lands, as soon as the grounds for relocation cease to exist.

4. When such return is not possible, as determined by agreement or, in the
absence of such agreement, through appropriate procedures, these peoples shall
be provided in all possible cases with lands of quality and legal status at
least equal to that of the lands previously occupied by them, suitable to
provide for their present needs and future development. Where the peoples
concerned express a preference for compensation in money or in kind, they shall
be so compensated under appropriate guarantees.

5. Persons thus relocated shall be fully compensated for any resulting loss
or injury.

Article 17

1. Procedures established by the peoples concerned for the transmission of
land rights among members of these peoples shall be respected.

2. The peoples concerned shall be consulted whenever consideration is being
given to their capacity to alienate their lands or otherwise transmit their
rights outside their own community.

3. Persons not belonging to these peoples shall be prevented from taking
advantage of their customs or of lack of understanding of the laws on the part

of their members to secure the ownership, possession or use of land belonging to
them.

Article 18

Adequate penalties shall be established by law for unauthorised intrusion
upon, or use of, the lands of the peoples concerned, and governments shall take
measures to prevent such offences.

Article 19

National agrarian programmes shall secure to the peoples concerned treatment
equivalent to that accorded to other sectors of the population with regard to:

(a) the provision of more land for these peoples when they have not the area
necessary for providing the essentials of a normal existence, or for any
possible increase in their numbers;

(b) the provision of the means required to promote the development of the lands
which these peoples already possess.

 

Author: international

Mentioned in these Entries

Convention Concerning Indigenous and Tribal Peoples in Independent Countries.