Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Guatemala (Ratification: 1996)

1. Article 1 of the Convention. The Committee notes from the Government’s report that according to the census of the Maya and rural population, 39 per cent of the total population identifies itself as Mayan. Please state the total population covered by the Convention in Guatemala, bearing in mind that according to the information supplied by the Presidential Committee against Discrimination and Racism in Guatemala (CODISRA) (Annex 5 of the report), "indigenous people currently account for more than half the total population of Guatemala, i.e. some 6 million inhabitants" and include, according to the Agreement on the Identity and Rights of Indigenous Peoples, Mayas, Garifuna and non-Garifuna peoples of African ascendancy and Xinkas.

2. Articles 2 and 33. The Committee notes that in March 2005 an Indigenous Advisory Council (CAI) was set up to enable the Government to receive advice from leaders of ethnic groups. Please provide information on the activities carried out by the CAI and their impact during the period covered by the next report. The Committee also notes the information on the activities of CODISRA and the Guatemalan Indigenous Fund (FONDIGUA). The Committee would be grateful if the Government would state whether there is a governing body whose duties include monitoring the general application of the Convention or some mechanism for coordinating the various bodies involved. Please indicate the measures to ensure that programmes are coordinated, with the participation of the indigenous peoples, at all stages, from planning through to evaluation, in accordance with Article 2, paragraph 1, and Article 33, paragraph 2(a) and (b), of the Convention.

3. Article 3. Non-discrimination. The Committee notes the activities of the Presidential Coordinating Committee on Government Human Rights Policy (COPREDEH) and CODISRA’s Strategic Plan for 2005-25. It notes that according to the Plan, "although the indigenous population makes up most of the country, they are not treated favourably by state policy and state action; on the contrary, they are the object of racial discrimination owing to relations which date back to the colonial production system and which have been reproduced ever since in all state institutions". The Committee appreciates the Government’s willingness to recognize the problem, since an objective evaluation will allow suitable polices and programmes to be devised in order to overcome discrimination. It notes in this connection the yearly action plans and the plan for 2005-10 and requests the Government to provide information on the implementation and impact of the plans, particularly Action Plan 1 on public policy monitoring and one of its component projects "Private enterprise in Guatemala enhances its social responsibility for a productive country free of discrimination and racism".

4. Article 4. With reference to its previous comment concerning the issuing of documents for undocumented indigenous people, the Committee notes that consultancy was provided in only four cases but that the Ombudsperson for Indigenous Women (DEMI) showed interest in reviving the temporary law on personal documents. Please continue to provide information on the number of indigenous people issued with personal documents during the period covered by the next report.

5. Article 6. The Committee refers to its observation and notes that the information on the First National Mining Forum does not mention the concluding observations of the 11 promoters or the ten main conclusions referred to by the Government in its report. Please provide information on the content of the reflections and conclusions and on their follow-up. The Committee refers the Government to the comments made in its observation about the Government’s request to the Office for technical assistance to establish a legal framework for consultation, and hopes that with the Office’s technical assistance and in consultation with the indigenous peoples, the Government will make headway in passing legislation that gives effect to this Article of the Convention and will be in a position to provide information in this regard in its next report.

6. Article 7. Participation. The Committee notes all the information sent by the Government and refers to its observation. It notes with interest Ministerial Agreement No. 402-2004 of the Ministry of Environment and Natural Resources setting up the Maya, Garifuna and Xinca Peoples Unit for Environment and Natural Resources, the Preamble of which refers to Articles 4, 7 and 15 of the Convention. It notes that article 5(g) of the abovementioned Agreement establishes that the Unit’s duties include "promoting and facilitating the organization, participation and effective consultation of indigenous peoples in the sustainable management and use of the environment and natural resources" and that article 5(l) assigns the Unit the duty of "issuing an opinion on issues relating to the Maya, Garifuna and Xinca peoples in the area of environment and natural resources". Please provide detailed information on the activities carried out by the Unit pursuant to articles (g) and (l) above.

7. Justice system. The Committee notes with interest the various measures taken to apply the relevant provisions of the Convention. It notes the copy of the publication containing 24 cases of judicial decisions taken on the basis of indigenous law in compliance with the Convention. It also notes that the Public Criminal Defence Institute has set up a body, the "Indigenous Ombudsmen Project of the Public Criminal Defence Institute", which so far has ten regional offices, and that in its pursuit of the objectives of the Convention, the abovementioned Institute is promoting judicial pluralism in Guatemala by endeavouring to achieve adequate coordination between the indigenous legal system and the predominant legal system. It also notes that there has been training (with award of diplomas) on the Convention for professionals of the justice system (judges, prosecutors, ombudspersons) in collaboration with the United Nations Development Programme and that in eight departments the Supreme Court of Justice promoted a course (with diploma) on "Indigenous law and application of ILO Convention No. 169 under the judicial legislation in force". In the Committee’s view, the Government’s efforts in the area of justice deserve highlighting as they contribute to combating discrimination and serve as an example of good practice for other countries. The Committee would be grateful if the Government would continue to provide full information on the progress made and the difficulties encountered in applying the relevant provisions of the Convention.

8. Land. The Committee notes the activities of the Land Fund (FONTIERRA), an institution responsible for defining and executing public policy on land access. It also notes that the Agrarian Affairs Secretariat of the Office of the President of the Republic (CONTIERRA) is to set up an agrarian tribunal and train the judges. This institution is currently following up 2,000 land disputes, classified into four groups: occupation, law disputes, disputes regarding extraterritorial limits and cases of land regularization. Another important measure is the Act on land registry information (Decree No. 41-2005), one of the instruments envisaged in the Peace Accords to resolve land ownership problems and provide certainty in law. The above Act provides for the creation of the RIC - a record of information pertaining to land registration which serves to update the National Land Register and formulate policy in this area. The Committee requests the Government to state whether the indigenous peoples were consulted about the above Act and whether they consider that it takes into account their land access problems. It notes from the information supplied in the Government’s report that there appear to be no indigenous representatives on the RIC Governing Board, and suggests that, in view of the register’s importance in settling land disputes, the Government examine the manner in which representatives of indigenous peoples might participate in the Board. The Government is asked to keep the Committee informed on this matter. Please also indicate how indigenous peoples who have no land title but can show traditional occupation can assert these rights, and how the RIC deals with this situation.

9. With regard to its previous direct request on the activities of the Presidential Conflict Resolution Unit (UPRECO), the Committee notes that UPRECO has intervened in a number of areas in recent years, twice in connection with land and water. It also notes the information on the Joint Committee on the Land Rights of Indigenous Peoples (COPART). It would be grateful if the Government would indicate how it ensures coordination of the activities carried out by FONTIERRA, CONTIERRA, RIC, UPRECO, COPART and any other body involved in land issues pursuant to Articles 13 and 14 of the Convention. It would also be grateful if the Government would indicate briefly which provisions give effect to Articles 13 and 14 of the Convention, particularly as regards the identification of lands occupied traditionally and adequate procedures (Article 14(2) and (3) of the Convention, respectively) and how the Convention is applied in practice. Please also provide an assessment of results, progress and difficulties.

10. Article 20. Recruitment and conditions of employment. The Committee notes that, by means of orders, protective measures and registration, the Ministry of Labour’s Department of Labour Migration is taking steps to ensure that the provisions of the Convention are applied to seasonal and indigenous workers in southern Mexico who face problems of irregular recruitment. The special protective measures taken in the area of recruitment and conditions of employment include: (1) identification of recruiters: up-to-date lists are kept and submitted to authorities involved, such as Guatemalan migration delegations and Guatemalan consulates at the border before being submitted to the Guatemala-Mexico bilateral meeting of the Ad Hoc Group on Guatemalan migrant workers; (2) dialogue with Mexican employers: a meeting was held with members of the Regional Agricultural Union of Tacaná Coffee Producers, at which Mexican employers stated their wish to recruit directly in Guatemala and the Ministry of Labour stated that these workers must be registered at local border offices. Another meeting was planned in July 2005, to include mango, banana and other producers as well as coffee growers; (3) improved regularization: three different forms were introduced for (1) workers, (2) women and young migrants and (3) children accompanying their parents. The Committee notes with interest the detailed information sent by the Government and asks it to continue to provide information on developments in the situation, including figures giving an estimate of the number of Guatemalan indigenous workers in Mexico and the number of them whose status is legal. The Committee notes the programmes run by the Social Investment Fund and various state bodies. It also notes that progress has been made in placing labour inspection and indigenous language activities on a regional basis. Please provide information on the main problems encountered in applying this Article to indigenous workers in Guatemala.

11. Articles 21 to 23. Vocational training. The Committee notes that on 12 February 2004 the Government signed with the International Labour Office a letter of understanding concerning the project "Education for work, employment and rights of indigenous peoples" (ETEDPI). It notes that under the above letter of understanding, work was undertaken with communities in which there are integrated projects covering both tourism and the conservation of community resources. It also notes the progress made in the area of community tourism. Please continue to provide information on the results of this and any other projects carried out pursuant to these Articles of the Convention.

12. Social security and health. The Committee notes from the Government’s report that the Guatemalan Social Security Institute is based on Article 100 of the Constitution which lays down social security as a right for anyone, without distinction as to race, belief or economic status, who works for an employer that is officially registered with a social security regime. The Committee also notes that according to the World Bank report Indigenous peoples, poverty and human development in Latin America: 1994-2004, in Guatemala health coverage for the non-indigenous population is 18 per cent, and 5 per cent for the indigenous population. According to the Government, the Ministry of Public Health’s policy focuses on decentralizing the health service network so as to provide care through simple methods using municipal associations and health promoters. Please indicate any measures taken - and the results obtained - to extend the health coverage of the members of indigenous groups, bearing in mind that Article 25, paragraph 4, of the Convention requires the provision of health services to be coordinated with other social, economic and cultural measures in the country.

13. The Committee also notes from the above report that the prevalence of malnutrition among Latin America’s indigenous people is one of the core factors underpinning poor human development outcomes and that in Guatemala the rate of stunting among indigenous children is 58 per cent, higher than either Yemen or Bangladesh, and almost twice the rate for non-indigenous children. Considering the urgency of the matter, please indicate the measures taken, with participation by indigenous peoples, to remedy this situation.

14. The Committee also takes note of a report by the Prosecutor’s Office for Human Rights entitled "Mining and Human Rights". The Committee is concerned at the assessment in the report of the consequences for water, the environment, and the population of the prospecting carried out by the Montana-Glamis company and the use of cyanide in open cast mining. The Committee requests the Government to carry out the necessary studies, with the participation of the indigenous peoples concerned, to guarantee the health of these peoples and a healthy environment.

15. Education. The above World Bank report indicates that Guatemala has the lowest absolute levels of indigenous education, averaging just 2.5 years of schooling at the close of the decade, whereas the average for the non-indigenous population in Guatemala is 5.7 years. The report points out that well-designed, implemented and rigorously evaluated programmes can nevertheless produce significant returns. It cites, as an example, students of bilingual schools in Guatemala’s national bilingual programme, who have higher attendance and promotion rates, and lower repetition and drop-out rates. Bilingual students also attain higher scores on all subject matters, including command of Spanish. The Committee also notes from the Government’s information that in 2004, literacy was undertaken in 17 Mayan languages and that from 1997 to the present date, 200,000 persons from different ethnic groups were made literate. It also notes the Government’s endeavour to develop bilingual education, and requests it to pursue its efforts to improve education in terms both of quality and of the number of years’ schooling, in order to reduce the education gap between indigenous and non-indigenous people. Please continue to provide information on this matter.

16. Article 32. Please provide information on any international agreements concluded to facilitate contacts between indigenous and tribal peoples across borders, particularly with Mexico.

17. Part VIII of the report form. The Committee is of the view that the Convention is essentially an instrument for promoting dialogue and participation, and reminds the Government that this part of the report form, approved by the Governing Body, states that "although such action is not required, the government may find it helpful to consult organizations of indigenous or tribal peoples in the country, through their traditional institutions where they exist, on the measures taken to give effect to the present Convention, and in preparing reports on its application". The Committee would be grateful if the Government would state whether such consultation is envisaged.