Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Honduras (Ratification: 1995)

Protection of the rights of the Misquito people. Conditions of employment, social security and health of Misquito divers. The Committee notes the observations of the Single Confederation of Workers of Honduras (CUTH), sent to the Government in September 2011, and the Government’s reply, received in October 2012. The CUTH supplemented its communication with documentation from the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage, the Fund of the Centre for Justice and International Law and the Inter-American Development Bank. The CUTH expresses concern that diving is undertaken without proper conditions of safety by Misquito fishers, largely in the Department of Gracias a Dios. Misquito divers fishing for crayfish and prawns use old equipment which is not maintained, lack any relevant training and work on average for 12 to 17 hours a day on the high seas, with diving periods of more than five hours. The CUTH indicates that diving in such inadequate conditions has serious health implications, decompression sickness being the most common occupational disease. The CUTH also reports that Misquito divers have no social security cover, and no access to medical treatment or to administrative or judicial remedies. The CUTH emphasizes that the situation of Misquito divers is a clear example of discrimination and vulnerability. These workers should enjoy the protection afforded by the Convention as members of indigenous peoples whose life and integrity is constantly under threat from the consequences of diving for deep water fish and as members of a geographically isolated and historically marginalized indigenous peoples. In its reply, the Government states that all health and education services have been provided for the Misquito indigenous peoples in the Department of Gracias a Dios. The Ministry of Labour and Social Security supplied a diving manual translated into the Misquito language and addresses workers’ claims filed in the Puerto Lempira regional office, to which the Misquito people has access. The Committee notes that workers have access to a bilingual (Misquito–Spanish) labour inspector. It also notes that Executive Decree No. PCM-003-2012, published in March 2012, established an inter-institutional committee to address and prevent the problems of dive-fishing. The committee consists of eight government offices and its duties include, coordinating activities in order to deal comprehensively with the problems of dive-fishing and their effects on the family and the community. The Government adds that the Ministry of Labour and Social Security, in the course of reinforcing the General Directorate of Social Welfare, is to appoint labour prosecutors in the regional offices to deal with Misquito workers’ claims free of charge and monitor the training of occupational safety and health inspectors.

The Committee recalls that Article 20(4) of the Convention requires particular attention to be paid to the establishment of adequate labour inspection services in areas where workers belonging to the peoples concerned undertake wage employment, in order to ensure compliance with Part III of the Convention. In Article 20(1), the Convention provides for the Government, in cooperation with the peoples concerned, to adopt special measures to ensure the effective protection, with regard to recruitment and conditions of employment, of workers belonging to indigenous peoples. In this regard, education and training programmes may be established for indigenous communities on health and safety measures with respect to diving. The Committee requests the Government to provide more specific information in its next report on the number of Misquito workers engaged in underwater fishing, the inspections carried out and their results. The Committee invites the Government to provide further information on the coverage of Misquito divers by the social security scheme (Article 24) and the availability of adequate health services to treat Misquito divers in the event of occupational accident and disease (Article 25). Please also indicate the manner in which the cooperation of the Misquito people is ensured in the planning and administration of health services (Article 25(2)).

Communication from the International Organisation of Employers (IOE). The Committee notes that the IOE has submitted observations in August 2012 on the application in law and practice of Articles 6, 7, 15 and 16 of the Convention concerning the requirement of consultation. In this regard, the IOE raises the following issues: the identification of representative institutions, the definition of indigenous territory and the lack of consensus of indigenous and tribal peoples, and the importance for the Committee to be aware of the consequences of the issue in relation to legal security, financial costs and certainty of both public and private investment. The IOE refers to the difficulties, costs and negative impact that the failure by States to comply with the obligation of consultation can have on the projects undertaken by both public and private enterprises. Among other effects, the IOE observed that the erroneous application and interpretation of the requirement of prior consultation can be a legal obstacle and lead to business difficulties, harm the reputation of enterprises and result in financial costs. The IOE also states that the difficulties to comply with the obligation of consultation may have an impact on the projects that enterprises may wish to carry out with a view to creating a conducive environment for economic and social development, the creation of decent and productive work and the sustainable development of society as a whole. The Committee invites the Government to include in its next report any comments that it deems appropriate on the observations made by the IOE.

Parts VII and VIII of the report form. The Committee invites the Government, in preparing its next report, due in 2013, to consult the social partners and indigenous organizations on the measures taken to give effect to the Convention. It hopes that in 2013 the Government will submit a report containing specific information on the issues raised in the 2008 observation and direct request and on the results obtained by the measures taken to give effect to each provision of the Convention.