Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Nicaragua (Ratification: 1967)

Discussion by the Committee

Government representative, Minister of Labour – On behalf of the State of Nicaragua, I refer to the report on the application of international labour standards of 2022 in which the Committee of Experts takes note of the observations of the International Organisation of Employers (IOE), received on 1 September and 25 October 2021, denouncing acts of persecution, intimidation and repression against José Adán Aguerri Chamorro, Michael Healy and Álvaro Vargas Duarte, and requests Nicaragua to provide comments on whether the reasons for their detention are related in any way to the exercise of their functions as alleged employer leaders.

In this regard, the State of Nicaragua indicates that the detention of José Adán Aguerri Chamorro, Michael Healy and Álvaro Vargas Duarte is not related in any way with the activities undertaken by these persons within the framework of their functions as leaders of the Superior Council for Private Enterprise (COSEP).

The content of a report that is not related to and has nothing to do with the objectives of the Convention is unacceptable, as the persons referred to in the report have been investigated, prosecuted and convicted of criminal acts against the people of Nicaragua in accordance with the current national legislation. The State of Nicaragua continues to refute any type of comments on and interference in internal matters that are prejudicial to its sovereignty and the labour stability of Nicaraguan families. In this regard, it calls on the ILO to move forward in the discussion and seek solutions related to the world of work and the social development of families.

The State of Nicaragua, with reference to the ILO recommendation to amend sections 389 and 390 of the Labour Code, considers that, in accordance with the principle of sovereignty set out in the political Constitution, that is a decision that rests with the people of Nicaragua. The Government of National Unity and Reconciliation, in accordance with the labour legislation, is continuing to strengthen the right to the freedom of unionization of Nicaraguan workers in order to guarantee the full exercise of the establishment of trade unions and their right to organize their activities freely and to formulate their programmes of action, thereby giving effect to the provisions of the national labour legislation, ILO international Conventions ratified by Nicaragua and article 81 of the political Constitution of Nicaragua, under which workers have the right to participate in the management of enterprises through their trade union organizations.

The State of Nicaragua has also been providing timely information, through the corresponding reports to the ILO, on compliance and progress in relation to unionization in all sectors of the national economy.

Finally, we reiterate that the Government of National Unity and Reconciliation has the common objective of restoring the rights of Nicaraguan families, which include the right to labour stability, freedom of association and social peace.

Employer members – We find ourselves in a situation which, in relation to the freedom of the exercise of the rights of association and of expression, has resulted in the arbitrary detention of the highest-level leaders in recent times of the most representative employers’ organization in Nicaragua.

This is a circumstance that requires the attention of the present Committee, not only from the perspective of what happens to employers, but also from the general perspective that we have always had in this house of respecting both workers and employers when they organize for the free exercise of their activities.

I will try and provide explanations and I call on Governments and Worker representatives to understand the reason why the Employers’ group has considered this to be a matter of enormous gravity and in violation of the deepest meaning of the exercise of the freedoms advocated by this Organization.

The Minister of Labour, whom I thank for her participation and her interventions, has indeed referred to the detention of these distinguished persons.

There are also other persons who are currently arbitrarily detained in Nicaragua. In addition to José Adán Aguerri and Michael Healy, they include Álvaro Vargas Duarte and Luis Rivas, member of the Association of Banks of Nicaragua, and Juan Lorenzo Holmann, former President of the Nicaraguan Development Institute (INDE). Five high-level dignitaries are being detained, and José Adán Aguerri has already been convicted to 13 years of imprisonment for acts which, according to the Government representative, have nothing to do with freedom of association. However, I will show that there are very many reasons which lead to the belief that in practice there is such a connection.

It was through a representation made by the IOE last year that a series of very telling details emerged. First, there is the harassment of these representative leaders. The granting of precautionary measures by the Inter-American Commission on Human Rights, by means of a resolution in which José Adán Aguerri and Michael Healy sought precautionary measures, precisely because they found themselves in a situation of enormous risk in the exercise of their activities.

On 3 August 2018, the Inter-American Commission on Human Rights decided to seek precautionary measures. On 17 June 2018, 15 armed persons with their faces covered entered the house of Michael Healy, in Chacatilla y Zopilote, and violently took possession of his property. We start to see facts emerging from that time.

Subsequently, there was an attack in the city of Léon on 3 September 2019 against the then President and Vice-President of COSEP. A group of persons close to the Government then wrote messages and graffiti on COSEP premises, with specific threats relating to the legitimate exercise of its activities. They wrote such messages as “conspirators, bosses of unemployment” and other graffiti.

There was then an attack in the city of Léon in 2020 against the President of COSEP. On 25 March 2021, Michael Healy, President of COSEP, on a business trip to examine the system of industrial production and crops, and Mateo Daniel Capitanich, Ambassador of Argentina to Nicaragua, who was among others accompanying him, were the victims of verbal aggression and persecution by civil agents close to the Government.

There were also attacks by the Government and the President’s family against employers affiliated to COSEP. And there were acts related to lands being taken over by groups close to the Government, with the purpose of directly intimidating and repressing the private sector affiliated to COSEP. Private lands were seized and invaded in violation of the political Constitution of Nicaragua.

Similarly, in addition to the detention of these employer leaders of COSEP, and specifically the five that I have named, there have been campaigns of vilification and persecution of COSEP and its leaders. A campaign to vilify José Adán Aguerri, the former President of COSEP, has been carried out since 11 June 2021 on account of his activities.

There are a series of graffiti, which I will not detail, but which are well known to the Office through the complaint that we have made.

There are other aspects that we consider it important to highlight relating to limitations on enjoying the benefits of international cooperation. More specifically, Act No. 1040 on the regulation of foreign agents, which is not only of concern to an organization such as the one representing Nicaraguan employers, is applicable to any organization which in any form is in receipt of resources from abroad. It can be applied to non-governmental organizations, and also to unions. There are gigantic restrictions in this respect, which have been referred to by rapporteurs from international organizations as being contrary to international decisions and standards.

There is accordingly a long series of facts referred to by these special rapporteurs, although I only wish to refer to the manner in which they address the matter in their conclusions, in which they indicate that the Act gives rise to serious and fundamental problems of compatibility with the obligations of Nicaragua under international law, as it raises issues with international law in general and human rights in particular.

They urged the Government of Nicaragua to amend Act No. 1040 and to open a public space for discussion and to guarantee that the legislation is in conformity with international standards and the human rights set out therein.

Similarly, on 26 February 2021, the Inter-American Court of Human Rights issued decisions relating to the matters covered by this legislation in which, in particular, it indicated that the Act that had been approved would impose undue restrictions on persons and associations and might be prejudicial to freedom of association, the right to privacy and freedom of expression.

Views have also been expressed by international and Nicaraguan organizations, which we have set out in detail in our representation.

Finally, we wish to note that there are other aspects relating to the report of the Committee of Experts, including matters relating to strikes, to which we will not refer for the reasons that are well known.

Worker members – This is the first time that we are discussing the application of this Convention by the Government of Nicaragua in the Committee and Nicaragua ratified this Convention in 1967 which is now 55 years ago, a little more than half a century.

We take note with concern of the allegations of arrests and detention of three employer leaders in June and October 2021 and we note that the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights have condemned the detention of the employer leaders and have urged the Government to release them immediately.

The Committee of Experts has expressed deep concern regarding the arrest and detention of the leaders. The Committee of Experts has also stated repeatedly that respect for fundamental freedoms, including the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial, are essential to the exercise of freedom of association.

We must state that respecting the authority, interpretations, observations and requests of the Committee of Experts is a cornerstone of the effective operation of the supervisory system and, in this regard, we must emphasize that the Committee of Experts has recalled that the right to freedom of association is emptied of all meaning if there is no respect for fundamental human rights, the rule of law and civil liberties. We reiterate that detaining employer and worker leaders for activities related in any way to the exercise of their functions as leaders is contrary to the Convention. The Committee of Experts has repeatedly made this observation regarding the Convention.

We urge the Government of Nicaragua to provide the Committee of Experts with all material information regarding the charges brought against leaders, the legal or judicial proceedings instituted and the outcome of such proceedings.

We note from the report of the Committee of Experts that there are pending observations regarding the need to amend sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration when 30 days have elapsed since the calling of a strike. The Committee of Experts has insisted on the need to amend these provisions. The Committee of Experts is clear that the imposition of compulsory arbitration to end a strike, outside the cases in which a strike may be limited, is contrary to the right of workers to organize freely their activities and formulate their programmes.

We respect the observations and interpretation of the Committee of Experts and urge the Government to take the necessary measures to amend sections 389 and 390 of the Labour Code. This is in order to ensure that compulsory arbitration is only possible in cases where strikes may be limited, such as in cases of conflict within the civil service relating to officials exercising authority on behalf of the State in essential services, in the strict sense of the term, or in the event of an acute national crisis.

We urge the Government to provide information on any developments in this regard to the Committee of Experts as requested.

We also note with satisfaction that the Government of Nicaragua has rolled out various initiatives aimed at promoting the right to organize, guaranteeing workers’ rights to freedom of association, removing obstacles through the registration of trade unions, promoting the organization of own-account workers and providing training for trade union leaders.

We note with interest that, as a result of these initiatives, between 2018 and 2021, 111 new trade union organizations were formed affiliating 3,902 workers, and 2,884 trade union organizations were updated that grouped together 222,370 workers. The Worker members welcome the efforts deployed by the Government and the results achieved and urge the Government to continue to implement initiatives and carry out activities for the promotion of freedom of association and the effective recognition of the right to organize.

Worker member, Nicaragua – Once again, I am surprised to be in this Committee dealing with a case that involves my country, Nicaragua. I am surprised because the case raised by the Employers, of a political nature rather than a labour issue, concerns a political matter that has nothing to do with this Committee.

In Nicaragua, there is full freedom to organize within the framework, as in any country, of the standards and laws which govern society. Any person, irrespective of their social position, who commits a crime is liable to prosecution as a punishment, in accordance with the provisions of national laws.

The persons referred to in this case form part of the ideologists of a failed coup attempt which involved murders, kidnappings and torture through tranques de la muerte (death roadblocks). We can forgive, but not forget.

These people who are being put forward as innocent saints are responsible for the negative impact on the national economy which resulted in a loss of over US$27,000 million and the laying off in the private sector of 250,000 workers. We cannot forget this.

The persons bringing this case support their allegations with false claims divulged through tools of disinformation which are under the orders of those who consider themselves to be the guardians of the world. This is a subject on the political agenda of the North American administration which is applying the misnamed sanctions and which are resulting in a negative impact on the employment of Nicaraguan workers. For this reason, the claims of the Employer spokesperson must be disregarded.

Since 2007, the Government, through the Ministry of Labour, has placed emphasis on dialogue, agreement and consensus, thereby promoting the settlement of disputes in negotiation forums. This model, which has been given constitutional ranking, was broken by those who are now complaining through their evil anti-patriotic acts and who took the path of destruction and exclusion by renouncing all forms of dialogue, negotiation and consensus.

We workers, with the Government, under the presidency of Daniel Ortega, are subject to economic transformations, enjoy full freedom of trade union action, benefit from the negotiation of collective agreements, negotiate wage increases and follow up occupational safety and health issues through the committees established for that purpose.

We consider that this Committee must address and discuss labour issues, and not issues that are of the nature of political interference. The role of this Committee must not be undermined and it must not be converted into an instrument for interference in the sovereignty and internal affairs of our country.

Today we have re-embarked upon the path to economic growth despite the attempted coup, the pandemic, the devastating effects of two category five hurricanes and the misnamed economic sanctions imposed by the American administration and the European Union. Overcoming the negative impacts on our economy is a result of the efforts of workers, employers and the Government to return to the path of alliance, dialogue and consensus.

As recognized by the Committee of Experts, Nicaragua has provided the information requested by the Office in good time. We know this because we participate in the process of the preparation of the reports through the consultations undertaken by the Ministry of Labour. We are moving forward with a firm and sure step towards total economic recovery, even though external factors are battering our economy and limiting more rapid progress.

We reiterate that there is no reason whatsoever for bringing the case of Nicaragua before this Committee, and there are no justifying grounds or convincing arguments in support of the case. The very fact of bringing in subjects unrelated to the Convention shows that we are right that Nicaragua should not have been responding to false claims in the Committee, and I recall that the Convention does allow us to talk about strikes, even though the Employers do not like it.

Government member, France – I have the honour to speak on behalf of the European Union (EU) and its Member States. The candidate country, Montenegro, and the European Free Trade Association country, Norway, Member of the European Economic Area, as well as Georgia and Ukraine, align themselves with this statement.

The EU and its Member States are committed to the promotion, protection, respect and implementation of human rights, including labour rights and the right to organize and freedom of association.

We actively promote the universal ratification and implementation of fundamental international labour standards, including this Convention. We support the ILO in its indispensable role of developing, promoting and supervising the application of ratified international labour standards and of fundamental Conventions in particular.

The EU and Nicaragua have had a close relationship. Some of the objectives of the Association Agreement signed between the EU and Central America were to develop a privileged political partnership based on values, principles and common objectives, in particular the respect for and the promotion of democracy and human rights, sustainable development, good governance and the rule of law, and to contribute to inclusive and sustainable economic development, full and productive employment and decent work.

We are deeply concerned by the further deterioration of human rights, including labour rights and living standards in Nicaragua.

We are gravely concerned that, since 2018, the Nicaraguan Government has engaged in the systematic imprisonment, harassment and intimidation of those seeking to stand as presidential candidates, opposition leaders, student and rural leaders, journalists, human rights defenders and business representatives, including through acts of persecution, intimidation and repression against leaders of COSEP and the business sector affiliated with COSEP, as well as the arbitrary detention of employers’ leaders without warrants or due legal process. Respect for fundamental freedoms, such as the safety and physical integrity of persons, the right to protection against arbitrary arrest and detention, and the right to a fair trial by an independent and impartial tribunal are fundamental to the achievement of the rights enshrined in the Convention.

We call for the immediate and unconditional release of Michael Edwin Healy Lacayo, Álvaro Javier Vargas Duarte, Luis Rivas, José Adán Aguerri Chamorro and other employers’ leaders, as well as all other political prisoners, and for the annulment of all legal proceedings against them, including their sentences. The arrest of employers’ leaders for reasons related to the exercise of their functions is a serious violation of freedom of association.

Not only did the Government deprive the people of Nicaragua of the civil and political right to vote in a credible, inclusive, fair and transparent election in November 2021, but it is also continuing to fall short of its own commitments on human rights and fundamental freedoms. Moreover, the Nicaraguan people continue to be deprived of freedom of expression, association and peaceful assembly. Dissenting voices are silenced, more than 200 civil society organizations have been outlawed on flimsy grounds for political reasons, and state repression is unrelenting. We call on the Nicaraguan Government to bring an end to this repression and restore full respect for human rights, including labour rights, including by allowing the return of international organizations to the country.

In addition, we fully support the calls made by the Committee of Experts urging the Government of Nicaragua to review other unacceptable restrictions on freedom of association, including through the amendment of sections 389 and 390 of the Labour Code, which are currently in violation of the right of workers’ organizations to organize their activities in full freedom, as well as Act No. 1040 on the regulation of foreign agents. While taking note of the initiatives reported by the Government of Nicaragua for the promotion of the right to organize, we still observe serious violations of the Convention and the fundamental right to freedom of association in law and practice.

The EU will continue to monitor the situation closely and support the people of Nicaragua in their legitimate aspiration for democracy, respect for human rights, including labour rights, and the rule of law.

Government member, United Kingdom of Great Britain and Northern Ireland also speaking on behalf of Canada – The United Kingdom and Canada unequivocally condemn the human rights abuses and violations taking place in Nicaragua. Under President Ortega and Vice-President Murillo, the Nicaraguan authorities are repeatedly and systematically violating international human rights standards and failing to live up to their own country’s Constitution. The international community has a duty to hold the Nicaraguan authorities to account for their actions.

The United Kingdom and Canada regret that the ILO reports that no verifiable progress has been made since the report of the Committee of Experts. In particular, in relation to freedom of association, collective bargaining and industrial relations, the United Kingdom and Canada regret that the Nicaraguan authorities are continuing to carry out acts of persecution, intimidation and repression against multiple actors in the business sector.

The United Kingdom and Canada note that the Nicaraguan authorities have still failed to provide any precise information or documentation about the charges brought against employer leaders, the legal or judicial proceedings instituted against them, or the outcomes of the proceedings. The Nicaraguan Administration has also yet to provide comments on the Act regulating foreign agents, and the allegation that it places unacceptable restrictions on freedom of association.

The United Kingdom and Canada have repeatedly called for Nicaragua to fulfil its international obligations, including by respecting the human rights of all its citizens and bringing an end to all repression in the country. We have been vocal in condemning the Government’s constraint of political liberty and have urged the authorities to release immediately and unconditionally all those arbitrarily detained, including political and business leaders, trade unionists, journalists, students, human rights activists and those who participated in peaceful protests, and to cease their intimidation of civil society.

We call on Nicaragua to uphold its obligations regarding this Convention to respect and ensure that workers and employers are able to exercise their freedom of association rights free from fear, violence, arbitrary arrest and detention. We therefore strongly support the ILO in its request for further and more specific information from the Nicaraguan authorities on the right to organize, the promotion of collective bargaining and on collective agreements.

The Chairperson – I see that the Government of Nicaragua has raised a point of order.

Government representative, Minister of Labour – The point of order that we wish to raise is as follows: the subject matter is clear, and these statements that we have listened to, that we have heard, have absolutely nothing to do with the subject of the Convention, namely freedom of association.

Nicaragua has demonstrated, and provided information on, its additional progress in the area of freedom of association in the country. All economic sectors in Nicaragua, both public and private, have the right to freedom of association, and these statements are totally outside the legal order and are not in the spirit of the Convention, and much less of the ILO Constitution and Standing Orders.

We therefore request moderation and a return to the subject under discussion, namely freedom of association.

Government member, Bolivarian Republic of Venezuela – We have noted the Nicaraguan Government’s explanation that the individuals involved in this case were detained because they had been prosecuted for acts covered and sanctioned in national legislation and that are unrelated to their activities as employers.

Therefore, given the arguments of the Government of Nicaragua, it should be noted that criminal acts set out and sanctioned in national legislation are not covered by the Convention. We recall that Article 8 of the Convention establishes, clearly and categorically, that freedom of association shall be exercised in compliance with the laws of each country, and that therefore workers and employers and their respective organizations, like other persons or organized collectivities, shall respect the law of the land in their activities.

We welcome the existence, as indicated by the Nicaraguan Government, of broad collaboration between the business association and the Government to strengthen its National Plan to Combat Poverty. We cannot overlook the creation, between 2018 and 2021, of 111 new trade union organizations in Nicaragua with over 3,900 members, and the updating of more than 2,800 trade union organizations, covering 222,370 workers.

As always, we call on the supervisory bodies to distance themselves from political considerations since, if they go beyond the limits in their comments, that will undermine their seriousness and credibility and harm the ILO’s objectives. This is something that we have affirmed in other forums, and we are concerned at the constant drift in these labour cases towards unnecessary political matters.

The Government of the Bolivarian Republic of Venezuela hopes that the Committee’s conclusions will be objective and balanced, with the aim of allowing the Government of Nicaragua to continue making progress and strengthening compliance with the Convention.

Worker member, Argentina – There are two elements to the case under examination. The first relates to the failure of the Government of Nicaragua to comply with the request of the Committee of Experts for detailed information on the reasons for the detention of the leaders of an employers’ organization.

The Government contends that the detentions are for criminal reasons, while the employers’ complaint indicates they are motivated by their activities as employers in opposition to the Government. The Committee of Experts has logically requested more information so that it can examine the matter.

In our view, it is necessary for the Government to respond to the request of the Committee of Experts without delay and provide further information, including the official judicial report, to give us the necessary information to examine the facts with a better understanding of the events.

The Workers’ position is clear: we want truth and justice, always, absolutely always. For this reason, all the information must be clarified by suitable means, and then, with the information in our hands, we will issue an opinion.

All of us here agree that these events are rooted in the 2018 crisis and its subsequent effects. That was a multidimensional conflict that had an impact on the economy, institutions and society in general. The restoration of peace requires a process of dialogue in which all sectors must work together. The social partners, governments and international bodies must cooperate to restore peace and harmony to the Nicaraguan people. We in the labour movement are playing our part in Nicaragua and the region to contribute to this difficult process, and we urge the Employers to do the same, and the Office to provide special support.

The second part of the case addresses technical aspects of labour standards and relates to sections 389 and 390 of the Labour Code, which provide that collective disputes shall be referred to compulsory arbitration once 30 days have elapsed since the calling of the strike. In our view, this provision must be amended in consultation with the social partners. While the Government argues that the regulation has fallen into abeyance, and that it has almost been repealed through lack of use in practice, it must nevertheless be revoked so that it does not become a latent threat.

Lasting peace can be established only through social justice, in accordance with our principles. Let us therefore work together to achieve lasting peace in Nicaragua as part of a process of economic development with an equitable distribution of income.

Government member, Plurinational State of Bolivia – This is a very important issue for my country, the Plurinational State of Bolivia, which respects the trade union freedoms set out in our Constitution, and all women and men workers therefore enjoy the right to organize in trade unions under the trade union principles of unity of union democracy and political pluralism, self-sustainability, solidarity and internationalism. In this regard, we have listened carefully to the information provided in relation to the protection of the right to freedom of association and the efforts that are being made by the Government of Nicaragua for that purpose.

We have taken note of and welcome the efforts made and we encourage the adoption of measures to continue strengthening this aspect.

We emphasize in this regard the establishment of over 100 new trade union organizations since 2021 and the official information that over 4,000 workers have joined unions. We also note the cooperation that is being mobilized between the chamber of employers and the Government for the implementation of the National Plan to Combat Poverty.

In contrast, we refute references to specific cases that have nothing to do with the implementation of the Convention and which endeavour to use dialogue bodies for political purposes, thereby making it difficult to engage in constructive dialogue for the benefit of all those involved. In this regard, we encourage the Committee to continue working with the Government for the implementation of its obligations deriving from the Convention within the framework of respect for its sovereignty and non-interference in the internal affairs of the country.

My delegation reiterates its solidarity and support for the fraternal people of Nicaragua.

Worker member, Bolivarian Republic of Venezuela – We reject the arguments put forward by the Employers, because this is a political issue, and is not a purely labour matter. Each country applies its own legislation when crimes are committed.

Nicaragua is subject to constant pressure and interference from external powers, which is limiting the entrepreneurship, development and economic growth of the Nicaraguan people.

Through the Bolivarian Alliance for the Peoples of Our America, we note that workers in Nicaragua enjoy all trade union rights. There are no grounds for determining that this principle has been violated.

The Committee of Experts has noted the compliance and progress made in relation to collective agreements in Nicaragua and the provision of information by the Government. The issues mentioned are surmountable and do not appear to constitute a barrier to understanding between the parties.

We therefore stand in solidarity with the country’s working class and its people, and we hope that they will continue to make progress towards solutions to the problems that have arisen.

Government member, Cuba – My delegation has taken note of the information provided by the Government of Nicaragua in relation to its national laws and the Convention. The information provided by the Government contains details regarding the exercise of freedom of association in the country.

It should be emphasized that the Nicaraguan Government has maintained communication and cooperation with the Committee of Experts, thus honouring its commitments to the Organization.

Cuba has on several occasions expressed its rejection of the use of ILO supervisory mechanisms to channel allegations of a political nature. We consider that the policies of support to workers implemented by the Government of Nicaragua, a founding Member of the ILO where over the past four years 119 new trade union organizations have been established and 3,902 workers have joined them, must be analysed impartially.

Finally, we reiterate the importance of continuing to promote tripartism and social dialogue in each country in order to promote the spirit of dialogue and cooperation. We hope that the conclusions of the Committee on this debate will be objective, technical and balanced on the basis of the information provided by the Nicaraguan authorities.

Government member, Sri Lanka – The Government of Sri Lanka welcomes the commitment of the Government of Nicaragua to ensure the implementation of the provisions of this Convention. Sri Lanka commends the constructive engagement of the Government of Nicaragua with the Committee of Experts. Sri Lanka holds that country-specific initiatives should be based on the universal principles of the sovereignty and equality of all States and with due regard for the laws and institutions of the country concerned. We encourage the Committee to engage in a constructive dialogue with the Government of Nicaragua in respect of the matters raised.

Worker member, Cuba – We consider that the representatives of the Employers’ group have presented a case that is not related to the full exercise of the right to freedom of association of the Nicaraguan employers who are under investigation for alleged crimes, since freedom of association not only involves other types of freedoms recognized in national legislation, but also has limits in terms of respect for legal process, the Constitution and laws of Nicaragua.

Nicaragua is a sister country in our region that is constantly attacked, threatened and blockaded by imperial policies that cause it to suffer sanctions which damage its economy and the working population, for which reason no social partner can take it upon themselves to destabilize social peace and the well-being of Nicaraguans.

On the other hand, we consider relevant the position taken by the Government of Nicaragua with respect to the exercise of freedom of association and collective bargaining as the strategic principles of the ILO, as the observations contained in the report of the Committee of Experts do not constitute in practice an obstacle to the development of effective social dialogue at the national level or the resolution of the problems that arise in this case.

Nicaragua is a sovereign State that defends the fundamental principles and rights at work of both workers and employers, and which strives for sustainable human development and greater social justice for all.

Interpretation from Chinese: Government member, China – We have read attentively the report of the Committee of Experts and its observations on the application of the Convention by the Government of Nicaragua. We thank the representative of the Government for her presentation.

We have noted that the Government has always attached importance to and protected freedom of association and organization. Over the years, the Government has committed to creating a relationship of trust among the members of different unions, promoting and protecting their freedom of association, simplifying the registration procedures for trade unions and offering various training opportunities to trade union leaders. These measures have greatly promoted trade union development. Between 2018 and 2021, 111 trade union organizations were created, joined by 3,902 workers; and 2,884 trade union organizations were completed, covering 222,370 workers. We have also noted that through round table dialogues the Government settles labour disputes between the public and private sectors and this has achieved positive outcomes.

We believe that the review of this case should focus on the status of implementation of the Convention by Nicaragua. The primary mandate of this Committee is to review the status of application of ratified Conventions by Member States, not to interfere in their internal affairs. It is necessary to stress that all governments shoulder the responsibility of maintaining the rule of law and social order and protecting the safety of their citizens in their respective countries.

Unlawful and criminal activities are prohibited in any country. However, if someone violates the law when exercising their rights and affects the lawful rights and interests of other citizens, they shall be sanctioned by law.

We trust that this Committee, when formulating its conclusions, will uphold objectivity and impartiality and reflect the real situation on the ground and progress made by the Government in implementing the Convention in order to encourage them to do better in this regard.

Interpretation from Russian: Government member, Russian Federation – The Russian Federation shares the views of the Government of Nicaragua on freedom of association. We think that the accusations against the Government are unfounded. They do not reflect the actual situation relating to the application of the provisions of the Convention in the country where trade union organizations have the right to associate.

Government representative, Minister of Labour – I have listened with great attention to the interventions by the representatives of the Committee, and in the first place I ask very respectfully that the interventions by the representative of the United Kingdom and the representative of the EU are not included in the report. I consider them to be harmful and not in accordance with the spirit of the discussion in this Conference.

The Government of National Unity and Reconciliation welcomes the support for our country expressed by the various delegates and nations in this Committee. The State of Nicaragua once again resolutely refutes the content of a report that does not correspond to the spirit of the Convention and we also refute any comments or interference in internal affairs that are prejudicial to sovereignty, to our sovereignty, and the stability of working Nicaraguan families, as it should be pointed out that the Convention clearly provides in Article 8 that, in exercising their rights, employers’ and workers’ organizations shall respect the law of the land.

Finally, we reiterate that our Government will continue with the implementation of labour laws, thereby strengthening the right to freedom of association, labour stability, freedom of enterprise, social peace and tripartism.

We ask that the interventions by France, on behalf of the EU, the United Kingdom and Canada are not included in the record as they refer to these matters that are not related to the Convention, as we consider them to be matters that must not be addressed in this Committee.

Moreover, it is important, and also very worrying for us, that the representative of the Employers who is legally accredited to participate and speak at this 110th Session of the Conference has been excluded. We therefore consider that this decision is not respectful and is prejudicial to our family, our men and women workers.

I wish to ask for authorization for the Employer representative to be heard and to speak with all due respect and legitimacy since, as we said, he is duly accredited to participate with full credentials under the ILO Constitution and Standing Orders.

Employer members – I thank very much the distinguished Minister of Labour for her presence in the Committee, but at the same time we are bound to express our deep concern that detailed information has not been provided concerning the detention of the leaders I referred to in order to clarify whether or not it is related to freedom of association. The mere fact that a government says that it is not related is not sufficient. Indeed, on the contrary, this attitude by a government when appearing before this Committee leaves much to be desired.

The attitude displayed by the Government of Nicaragua precisely reflects the unwillingness to listen to arguments that are different from its own line of thought. We see this in relation to the interventions by Governments in this Committee that it has asked to be removed from the record.

And, in particular, by the fact that it wishes to impose an Employer representative.

We have not registered any speaker, and there are many who wish to intervene in this case, and I am precisely the spokesperson for all of them, for all employers, and particularly for the spokesperson that you wish to include on behalf of the Employers: first, he is not registered with this Committee; and second, there is a formal process in the Employers’ group at this Conference in relation to the representativity that he claims on behalf of Employers.

So here is also a specific indicator of this attitude.

There is a law, Act No. 1055, with a single section, which I will not read out in full, which speaks of the defence of the rights of the people, and provides that Nicaraguan nationals who call for, exalt or applaud the imposition of sanctions against the State of Nicaragua and its citizens or any act that is prejudicial to the highest interests of the nation, shall be considered traitors against the fatherland and shall be liable to exclusion from public office and elected office and shall be liable to criminal prosecution.

However, Act No. 1040 on the regulation of foreign agents, in section 14, also provides that natural persons or associations of Nicaraguan or other nationality who act as foreign agents shall, under penalty of legal sanctions, refrain from intervening in matters, activities or issues relating to domestic or foreign policy.

Nicaraguans cannot speak of domestic policy, such is the restriction of thought that exists in Nicaragua.

With respect to Article 8 of the Convention, to which the Minister referred, she forgot to mention the second paragraph, which provides that: “The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.” In Nicaragua, the law is being used to undermine the freedoms of employers, but we call on workers to understand that the same can happen to them if they do not follow the ideological lines set by the Government.

In 1989, which was the last occasion on which this case was examined by the Committee, the Employer spokesperson said that it had been examined almost every year since 1981, and it seems as though it was yesterday, with the same Government and the same current President.

The leaders of employers’ organizations, and particularly COSEP, have been systematically detained, gagged, imprisoned and murdered.

Thirty years later the same is continuing to happen. This is an extremely serious matter.

Freedom of association totally lacks meaning when civil liberties do not exist. The rights conferred upon workers’ and employers’ organizations are based on respect for civil liberties, such as the safety of the person and freedom from arbitrary arrest and detention.

The detention of employers’ leaders for reasons related to legitimate advocacy constitute a serious violation of their rights and of freedom of association.

We want to begin by calling on the Government to facilitate social dialogue in the presence of the ILO. It is fundamental to rebuild processes of trust and to follow the pathways for putting forward the claims of the social actors.

We ask this of all States, but in particular we are making this request to Nicaragua.

We demand the immediate release of Michael Healy, Álvaro Vargas Duarte, José Adán Aguerri, Luis Rivas and Juan Lorenzo Holmann. We also call for the repeal of Act No. 1040 on the regulation of foreign agents and Act No. 1055 on the defence of the rights of the people to independence, sovereignty and self-determination, which restrict the exercise of freedom of association and freedom of expression.

Finally, it is necessary for a high-level mission to visit the country and observe the situation directly. In conclusion, in view of the elements that we have heard, and particularly the Government’s reply, it is necessary for the conclusions on this case to be included in a special paragraph.

Worker members – The Worker members have taken note of the information and of the responses provided by the Government and we have also listened carefully to all the speakers and their valuable interventions. A frank and open discussion with parliamentary language is essential for the good functioning of our supervisory system. As we expressed in our opening speech, our group takes note with concern of the allegations of the arrest and detention of three employer leaders and the necessity for freedom of association, which includes respect for civil liberties, the rule of law and respect for due process.

We urge the Government to provide all the information requested by the Committee of Experts in this regard, including the legal or judicial proceedings instituted and their outcome. We also urge the Government to amend the labour law to ensure that the right to strike is fully respected in line with the Convention and the observations of the Committee of Experts and, in particular to: amend sections 389 and 390 of the Labour Code; and also amend Act No. 1040 on the regulation of foreign agents, adopted on 15 October 2020; and address the allegations that several sections therein place unacceptable restrictions on freedom of association.

Regarding the efforts deployed by the Government to protect and promote the right to organize, we note with interest the results achieved between 2018 to 2021 and we urge the Government to continue to implement initiatives and carry out activities for the promotion of unionization and the protection of the right to form and join unions.

The Chairperson – The Government member of the United Kingdom as asked to be able to exercise the right of reply to the intervention by the Government of Nicaragua.

Government member, United Kingdom – The United Kingdom thanks Nicaragua’s Minister of Labour and other distinguished delegates for their comments throughout this discussion. The United Kingdom would like to respectfully request that the statement by the United Kingdom and Canada be recorded in full for the benefit of the Committee. The statement was fully in line with the remit of the Committee and this discussion regarding Nicaragua’s compliance with the Convention.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed. 

The Committee deplored the persistent climate of intimidation and harassment of independent workers’ and employers’ organizations.

The Committee noted with concern the allegations of the arrest and detention of employer leaders.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to:

- immediately cease all acts of violence, threats, persecution, stigmatization, intimidation or any other form of aggression against individuals or organizations in connection with both the exercise of legitimate trade union activities and the activities of employers’ organizations, and adopt measures to ensure that such acts are not repeated;

- immediately release any employer or trade union member who may be imprisoned in connection with the exercise of the legitimate activities of their organizations, as is the case of Messrs Michael Healy, Álvaro Vargas Duarte, Jose Adán Aguerri, Luis Rivas and Juan Lorenzo Holmann;

- promote social dialogue without further delay through the establishment of a tripartite dialogue round table, under the auspices of the ILO, that is presided over by an independent chairperson who has the trust of all sectors, that duly respects the representativeness of employers’ and workers’ organizations in its composition and that meets periodically;

- repeal Law No. 1040 on the regulation of foreign agents, the Special Law on Cybercrimes, and Law No. 1055 on the Defence of the Rights of the People to Independence, Sovereignty and Self-determination for Peace, which limit the exercise of freedom of association and freedom of expression.

The Committee recommends that the Government avails itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and practice.

The Committee also recommends that the Government accept a direct contacts mission to complete a fact-finding mission with full access related to the situation of violation of trade union rights of workers’ organizations and of employers’ organizations’ rights as soon as possible to allow the ILO to assess the situation.

The Committee requested the Government to submit a report to the Committee of Experts by 1 September 2022 communicating information on the application of the Convention in law and practice, in consultation with the social partners.

Government representative, Minister of Labour – The Government of Nicaragua has listened carefully to the conclusions of the Committee on the individual case of Nicaragua concerning the alleged violation of the Convention.

First, the State of Nicaragua reaffirms its total disagreement with the Committee’s decision not to allow the duly accredited Employer representative of Nicaragua to speak at the 110th Session of the International Labour Conference.

Furthermore, the Government of Nicaragua requested on 6 June 2022 an amendment to the draft minutes of the discussion of the case of Nicaragua in relation to certain inappropriate language used by the representatives of France on behalf of the EU, and of the United Kingdom and Canada. This request was not taken into account by the Committee.

It is very striking that the conclusions include references to intimidation and harassment of workers’ organizations, which are totally false, particularly since at no time were any accusations made by the Nicaraguan workers’ organizations or the Worker spokesperson.

In conclusion, and in light of the above, the Government of Nicaragua once again totally rejects the conclusions adopted by the Committee as being politicized, interfering and disrespectful, and not in keeping with the real situation. Moreover, the conclusions bear even less relation to the content and spirit of the Convention, which Nicaragua has been complying with and reporting on in a timely manner to the International Labour Organization.