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

1. The Committee notes the information provided in the Government’s report received in the Office on 31 August 2002, the report dated 1 September 2003 and the communication transmitted to the Office on 9 June 2003. It also notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), and the annexes to the above report. The Committee also 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 report prepared by the Special Rapporteur for the 59th Session of the United Nations Commission on Human Rights, held in February 2003. The Committee further notes the legislative texts provided by the Government with its reports, and particularly Government Agreement No. 258-2003 establishing the National Compensation Programme.

2. The Committee also notes the detailed report on the application of the Convention sent by the Trade Union of Workers of Guatemala (UNSITRAGUA) in September 2003, and requests the Government to provide its comments thereon with its next report.

3. Article 2 of the Convention. The Committee notes the intense legislative activity, particularly over the past two years, on the rights of indigenous peoples and their development. The Committee notes with interest the reform of the Penal Code (Decree No. 57-2002) penalizing discrimination on grounds, among others, of race and ethnic group; the adoption of the Act promoting educational activities against discrimination (Decree No. 81-2002) implementing non-discrimination programmes in teaching and the activities of the Ministry of Culture and Sport; and the adoption of the Act respecting national languages (Decree No. 19-2003) guaranteeing and protecting the languages of the Maya, Garífuna and Xinka peoples. It also notes the reforms to the Municipal Code by Decree No. 12-2000, particularly with regard to the recognition of indigenous authorities and their customary laws. The Committee would be grateful if the Government would provide information on the manner in which the new legislative structure relating to indigenous peoples will be made known to the public in general. It also requests the Government to provide a general evaluation, in so far as possible, on the impact of the new legislation on the application of the provisions of the Convention.

4. The Committee notes with interest the information provided by the Government concerning the establishment of an Indigenous Affairs Commission in the Supreme Court and the creation of the Presidential Commission on Discrimination and Racism against Indigenous Peoples in Guatemala (Government Agreement No. 390-2002). It also notes the restructuring of the Guatemalan Indigenous Fund (FODIGUA), as well as the adoption of Ministerial Agreement No. 525-2002 of the Ministry of Culture respecting sacred sites. The Committee would be grateful if the Government would provide a copy of this Agreement with its next report and provide information that is as detailed as possible on the activities of the above commissions and the Fund for the achievement of their respective objectives.

5. The Committee takes special note of the information provided by the Government in its report to the effect that the measures adopted have not yet been sufficient to eliminate the inequality, marginalization and exclusion of indigenous peoples. It also notes the Government’s indication that, although the authorities justify the measures taken against racism and exclusion on the basis of the principle of equality, this principle is not given effect in law or practice. The Committee welcomes the attitude shown by the Government when it charges racists of failing to recognize that a people that has been subjected for 300 years requires effective mechanisms to strengthen it and create the conditions for its development in a manner which gives effect to the principle of equality. While recognizing that, despite the efforts made, these ideals cannot be achieved easily and in the short term, the Committee encourages the Government to continue its efforts to convert these aspirations into reality, based on the strict application of the programmes adopted and their follow-up as necessary.

6. The Committee notes the information provided in the report of the Special Rapporteur indicating that the measures adopted by the Government have had little effect in combating the political, economic, social, occupational, educational and cultural discrimination suffered by indigenous communities. The same opinion was expressed previously in the report of the United Nations Verification Mission in Guatemala (MINUGUA) in 2001, which was examined in detail in the Committee’s previous observation. The Committee expresses the very firm hope that the Government will be in a position to provide information in its next report on the positive impact of the legislative measures and various initiatives it has taken to promote tolerance in civil society and to provide a basis for the effective participation of indigenous peoples in the adoption of decisions in the areas referred to by the various parts of the Convention, as well as for the implementation of the Peace Agreements, and particularly the Agreement on the Identity and Rights of Indigenous Peoples (AIDPI) and in relation to the socio-economic and agrarian situation.

7. Article 6. The Committee takes due note of the information contained in the Government’s report indicating that, although an ideal mechanism has not been established for consultation with indigenous peoples, the Government’s policies are not prejudicial to these peoples. The Committee notes in this respect the information provided by the Government indicating that the representation of the Government and indigenous peoples has been increased in the Joint Reform and Participation Commission to strengthen its plurality and increase the participation of women. It also notes that the Commission is currently formulating draft legislation on consultation mechanisms with indigenous peoples. The Committee trusts that the Government will be in a position to report the adoption of this legislation in its next report and to provide details of the degree of representativeness achieved, taking into account the existence of the numerous indigenous communities. With reference to the information provided in the Government’s last report, the Committee would be grateful if it would provide information in its next report on the progress achieved in the establishment of a consultative body for the Mayan people.

8. The Committee notes with interest that, through the Joint Reform and Participation Commission, proposals made by the representatives of indigenous peoples have been incorporated into the Decentralization Act, the Act respecting urban and rural development councils and the Municipal Code. The Committee requests the Government to provide information in its next report on the number and nature of the consultations held with indigenous peoples under section 26 of Decree No. 11-2002, which amended the Act respecting urban and rural development councils.

9. Article 20. The Committee notes the information provided by the Government in its report on the application of the Recruiting of Indigenous Workers Convention, 1936 (No. 50), which it is examining in the context of the present Convention. It notes that a special recruitment contract has been developed to guarantee the rights of indigenous workers in relation to labour recruiters. It also notes the information concerning the forms used by the Association of Employment Advisers to prevent abusive practices in the hiring of temporary Guatemalan migrant workers. The Committee requests the Government to continue providing information on the measures adopted or envisaged to control abusive practices in the recruitment of indigenous workers for agricultural activities which occur, according to the Government, both in Guatemala and in the south of Mexico and Belize. Please also indicate any measures to prevent chiefs and other indigenous authorities acting as recruiting agents or exerting any pressure on workers who may be recruited, or who receive pay or any other special consideration for assisting in recruitment. The Committee notes that comments on the application of Convention No. 50 were included in the communication by UNSITRAGUA.

10. A more detailed request is also being addressed to the Government on certain points.

[The Government is asked to report in detail in 2005.]