Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

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

1. With reference to its observation, the Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, in the report dated 1 September 2003 and in the communication to the Office dated 9 June 2003. It also notes the information provided by the Government in the report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64), and the attachments to these reports. The Committee notes the report provided by the Government to the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, and the content of the reports submitted by the Special Rapporteur to the 59th Session of the United Nations Commission on Human Rights. The Committee also notes the legislative texts provided by the Government with its reports.

2. The Committee is also examining the reports on Conventions Nos. 50 and 64, in the context of the application of the present Convention, thereby complying with its obligation to analyse the implementation of these instruments by the Government. Conventions Nos. 50 and 64 were adopted in relation to the situation of indigenous workers in dependent territories and the Governing Body has decided that these instruments are no longer up to date. As proposed at the time by the Governing Body, the Committee requests the Government to consider denouncing these Conventions when the occasion arises (in 2006 for Convention No. 50 and 2009 for Convention No. 64).

3. Article 4 of the Convention. The Committee recalls that the report of the United Nations Verification Mission in Guatemala (MINUGUA) indicated that serious problems are caused by the fact that members of the indigenous communities, and particularly women and those in rural areas, are undocumented. The Committee notes the information provided by the Government in reply to its previous comments, according to which the Office of the Ombudsman for Indigenous Women (DEMI) and organizations such as the Office of the Ombudsman for the Maya, CONVAIGUA and CERJ are contributing to obtaining documents for indigenous persons. It also notes that a legal extension has been accorded and that instructions have been provided to civil registrars on this important issue. The Committee requests the Government to provide information in its next report on the number of indigenous persons who have been issued with personal documents since the entry into force of Decree No. 22-2002.

4. Article 7. The Committee notes the information provided by the Government in its report indicating that indigenous peoples are consulted concerning their social, economic, political and cultural development, including the preservation of the environment, in joint commissions. The Committee notes the Government’s reply to the comments on the first report made by the Council of Mayan Organizations of Guatemala (COMG) referring to the lack of coordinated planning for development and the absence of studies on its impact on indigenous peoples. It also notes the information that, in accordance with the Decentralization Act, the new Ministry of the Environment, and still more recently the Ecological Consultative Council, promote the participation of indigenous peoples in matters relating to their development. The Committee further notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), referring to the lack of criteria and awareness of the impact on environmental conservation of, among other factors, the deforestation of 90,000 hectares a year and the fact that, according to studies carried out in 1999, only 5 per cent of the potentially irrigable lands are irrigated. The Committee notes with interest the information provided in the Government’s report on the annulment of a contract which in the view of indigenous organizations was damaging to the environment and it trusts that the Government will adopt measures for the preservation of the environment, particularly in areas inhabited by or used by the various indigenous communities. The Committee would be grateful if the Government would continue to provide information on this matter.

5. Article 8. The Committee would be grateful if the Government would provide with its next report copies of judicial decisions or accords concluded through mediation and conciliation giving effect to the right of indigenous peoples to manage their own affairs in accordance with their customs or customary laws. Recalling the concern expressed in this regard by MINUGUA, to which the Committee referred in previous comments, the Committee hopes that the Government will continue to provide information on the progress achieved in this respect.

6. Article 11. The Committee notes the Government’s statement concerning the prohibition in law of forced labour and the inspections of workplaces with a view to combating forced labour. The Committee once again refers to its comments in relation to Convention No. 29.

7. Article 12. The Committee notes with interest that measures are being adopted in the context of the Supreme Court of Justice to achieve an ethnic and bilingual composition of officials whose functions are directly related to indigenous peoples. The Committee requests the Government to continue providing information in its next report on the progress achieved in this respect in the various regions in facilitating the access to justice of members of indigenous communities who wish to protect the rights guaranteed by this Convention and in strengthening the regional activities undertaken by the DEMI and by public institutions such as the National Civil Police. The Committee would be grateful if the Government would provide a copy of the first report of the DEMI on situations and rights of indigenous women. The Committee also notes the information concerning the measures adopted in the context of the Office of the Attorney-General, particularly concerning the establishment of an Office of the Public Prosecutor for indigenous peoples. The Committee requests the Government to provide more detailed information on the composition and functions of the above body.

8. The Committee notes the information provided by the Government in its last report on the establishment by various organizations of the Mayan people of a tribunal to promote awareness against racism. The Committee requests the Government to provide copies of the complaints filed with the above tribunal which are related to the rights protected by the Convention, and any related ruling that is adopted.

9. Articles 13 to 19 (lands). The Committee notes the indication by the Special Rapporteur, referring to the reports of MINUGUA, that the commitments made by the Government under the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) to guarantee the land rights of indigenous peoples have had to be rescheduled owing to lack of compliance. The Committee notes that these commitments related to the regularization of land tenure and guarantees of the rights of indigenous people to the use and management of their lands and resources, as well as the restitution of communal land or compensation for dispossession, and the acquisition of land for the development of indigenous communities. The Committee also notes that the Special Rapporteur recommended that the Government recognize and take measures to support the maintenance by indigenous peoples of their own economic system, including subsistence agriculture.

10. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 indicating that there is no legal guarantee or certainty concerning the use, tenure and ownership of land in rural areas. The Committee notes the information provided by the Government in the report to the Special Rapporteur concerning the action taken to allow access to land by members of indigenous communities and to resolve disputes in this connection. In this regard, the Committee requests the Government to provide information on the activities undertaken by the Presidential Conflict Resolution Unit (UPRECO). It also notes the information concerning the submission to the Congress of the Republic by the recently established Secretariat for Agrarian Affairs of various Bills for the regularization of land tenure, the establishment of an Agrarian Attorney’s Office and on unused and communal land. The Committee also notes the information received in the Government’s last report on Government Agreement No. 248-2003 on the establishment of a Joint Commission on the Land Rights of Indigenous Peoples (COPART) to promote conflict resolution. The Committee would be grateful if the Government would keep it informed in its next report of the progress achieved in this important area, including information on the various issues raised by the Committee in paragraph 17 of its direct request in 2001.

11. With reference to its previous comments, the Committee requests the Government to indicate whether measures have been adopted to increase the number of official administrators of the 124 areas that have been declared protected and which are inhabited by indigenous communities.

12. Article 20. The Committee notes the information provided by the Government in its report on the application of Convention No. 50 according to which most of the men and women living in rural areas, who account for 60.6 per cent of the total population, live in conditions of extreme poverty. It also notes with concern the information provided by the Government in its report for the Special Rapporteur on the grave situation of indigenous persons displaced and unemployed as a result of the coffee crisis, which was reiterated by the Government in its reports on the application of Conventions Nos. 50 and 64. In relation to these matters, the Committee refers once again to the comments made by the COMG and the Central Organization for Rural and Urban Workers on the grave exploitation of indigenous workers in agriculture, domestic work and manufacturing. The Committee requests the Government to continue providing information in its next report on the measures envisaged to improve the conditions of employment and the living conditions of indigenous communities, and the impact of these measures.

13. The Committee notes the information provided by the Government in its report on the application of Convention No. 64 indicating that it is currently formulating specific regulations on the hiring of indigenous agricultural workers. The Committee trusts that the Government is holding adequate consultations with the representative bodies of indigenous communities on the content of these regulations. It also hopes that the regulations on the hiring of indigenous agricultural workers will take into account its previous comments on the application of Convention No. 64, particularly with regard to the need to undertake a medical examination when concluding a contract of employment (Article 7) and on the guarantees which have to be given for the transport of repatriated workers (Articles 12, paragraph 1, and 15). The Committee hopes that the Government will send a copy of the above regulations with its next report.

14. The Committee notes the information provided by the Government that the Indigenous Peoples Unit of the Ministry of Labour and Social Insurance concluded an agreement with the Committee for the Decade of the Mayan People for the establishment of a degree course and the provision of training to attorneys and labour inspectors to promote the application of the Convention. The Committee once again refers to its comments on the application of the Labour Inspection (Agriculture) Convention, 1969 (No. 129), in which it reminded the Government of the need to adopt measures for the training of labour inspectors. The Committee requests the Government to provide detailed information on the progress achieved in the regionalization of labour inspectorates with ethnic and linguistic components and the training of labour inspectors. It also requests it to provide statistics on the number of inspections carried out and violations reported, with particular emphasis on the recruitment and conditions of employment of agricultural workers.

15. Articles 21, 22 and 23. The Committee notes the information provided by the Government in the report to the Special Rapporteur on the activities of the National Institute of Technical and Productive Training (INTECAP), the support provided for the expansion of small and micro-enterprises and the Credit Revolving Fund Programme. The Committee trusts that the Government will provide further information in its next report on the measures adopted in consultation with the communities concerned, with a view to vocational training and the promotion of handicrafts and rural-based industries, which form part of their subsistence economy.

16. Article 25. The Committee reiterates its previous comment requesting the Government for additional information on the measures envisaged to provide adequate health coverage in the areas inhabited by indigenous peoples, taking into account the linguistic and cultural conditions of the community, particularly with regard to traditional care, and promoting the training and employment of workers from local communities in assistance centres.

17. Articles 26 to 30. The Committee notes the Government’s indication that the Joint Reform and Participation Commission began work in 2002 on the regionalization of linguistic criteria for the administration of education, health and cultural services, and the information provided on the activities launched in the context of the National Literacy Programme. The Committee requests the Government to continue providing information in future reports on the impact of the activities undertaken in relation to the literacy rate of members of indigenous communities, as well as the progress achieved in the field of bilingual literacy at all educational levels, particularly in rural areas, and for the inclusion of themes which take into account the cultural and historical heritage of indigenous traditions.

18. The Committee notes the information provided by the Government in the report submitted to the Special Rapporteur concerning the examination of a new project to allocate 26 radio frequencies. It also notes the plan to launch, with the support of the Academy of Mayan Languages, a radio campaign in Mayan languages to promote and provide information on the new legislation in the various indigenous communities. The Committee trusts that the Government will continue to provide information on these matters in its next report.

19. Article 32. The Committee notes the information provided by the Government concerning the adoption of measures relating to the movement of migrant workers at the border. The Committee trusts that the Government will continue to provide information on the activities undertaken in this field.