Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 169) relative aux peuples indigènes et tribaux, 1989 - Honduras (Ratification: 1995)

Autre commentaire sur C169

Observation

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The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2021. It also notes the observations of the Honduran National Business Council (COHEP), received on 31 August 2021, and the Government’s reply.

Follow-up to the conclusions of the Committee on the Application of Standards (110th Session of the International Labour Conference, May–June 2021)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2021, and in particular that in its conclusions it requested the Government to avail itself of ILO technical assistance and urged it to accept an ILO direct contacts mission. In this regard, the Committee notes that, in a communication dated 24 August 2021, the Government confirmed that it accepted a visit to the country by the direct contacts mission, and proposed that it take place in the first months of 2022. The Committee welcomes the willingness demonstrated by the Government in this regard, and hopes that this mission will contribute to finding solutions to the issues raised in relation to the application of the Convention.

Article 3 of the Convention. Human rights. On several occasions, both the Committee of Experts and the Conference Committee, in its conclusions in 2016 and 2021, have expressed deep concern regarding the allegations of murders, threats, forced disappearances and violence of which representatives and members of indigenous and Afro-Honduran peoples have been victims, and requested the Government to conduct, without delay, independent investigations and prosecutions in relation to these allegations, and to indicate the protection measures taken as a consequence of the crimes and threats against members of indigenous and Afro-Honduran peoples.

In its report, the Government indicates that: (1) between 2018 and 2020, the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage received 255 allegations of acts of violence and threats against members of indigenous and Afro-Honduran peoples, including 64 regarding threats, 4 concerning attempted homicide, 3 concerning homicide and 13 regarding murders; (2) at the request of the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage, 15 protection measures were implemented for members and leaders of indigenous communities, and leaders of representative organizations of indigenous peoples; (3) under the National Protection System, between 2018 and February 2021, the Prevention and Context Analysis Unit developed 14 prevention plans and guarantees of non-recurrence, together with the beneficiary communities, and carried out training activities on the Protection Act for defenders of human rights, journalists, social communicators and actors in the justice system; (4) in April 2021, criminal proceedings were initiated against the suspected instigator of the murder of Berta Cáceres (former President of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH), committed in 2014, while the Public Prosecutor’s Office continues its investigation to identify other possible instigators involved in the murder.

The Committee observes the ITUC’s allegations that environmental and human rights defenders continue to face a critical situation, with reference to the murders of indigenous leaders committed in 2018, 2019 and 2020. The ITUC refers specifically to the kidnapping and disappearance of four members of the Garifuna community in El Triunfo de la Cruz, on 18 July 2020, and the murders in December 2020 of José Adán Medina, a member of the Tolupan indigenous community, and Félix Vásquez, an environmental activist from the Lenca community for whom the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage had requested protection measures. The ITUC alleges the lack of protection measures and prevention of acts of violence against environmental and human rights defenders, and the minimal, slow and inconsistent processes for the investigation and prosecution of the perpetrators and instigators of these acts.

The Committee also observes that, on 2 September 2020, the Inter-American Court of Human Rights issued a resolution calling for the adoption of urgent measures in the case of the disappearance of four members of the Garifuna community (the case referred to by the ITUC), and requested the Government to adopt the necessary and appropriate measures to determine the whereabouts of these persons, and to provide effective protection for the rights to life and personal integrity of community leaders from the Garifuna communities of Triunfo de la Cruz and Punta Piedra who are collectively taking action for the defence of the rights of the Garifuna people.

With regard to the proceedings against the alleged perpetrator of the murder of Berta Cáceres, the Committee duly notes that, according to the information available on the official website of the Public Prosecutor’s Office, the Trial Court with national jurisdiction issued a guilty verdict against the chief executive officer of the enterprise Desarrollos Energéticos S.A. (DESA), and found that he had ordered the death of Berta Cáceres as part of a plan to remove any obstacle that interfered with the operations of DESA on the Gualcarque river, which is an ancestral territory of the Lenca indigenous people.

The Committee observes with deep concern that, according to the information provided by the ITUC and the allegations filed with the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage, the members and leaders of indigenous and Afro-Honduran communities continue to face a climate of violence and their physical and psychological integrity remains under threat. The Committee hopes that, in the same way as the perpetrators, the instigators of the murder of Berta Caceres will finally be punished. The Committee recalls that for indigenous and tribal peoples to be able to assert and enjoy the rights set out in the Convention, governments must adopt appropriate measures to guarantee a climate free from violence, pressure, fear and threats of any kind. The Committee firmly urges the Government to continue taking all the necessary measures to: protect the life and physical and psychological integrity of indigenous and Afro-Honduran peoples, and their representatives and leaders; ensure the full and effective exercise of their human rights; and ensure that those responsible are held accountable and the perpetrators and instigators of the crimes committed against these persons, in the context of the peaceful assertion of their rights, are punished (including in the new cases reported by the ITUC). The Committee requests the Government to provide detailed information in this respect, in particular on the protection measures requested by the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage, the investigations carried out following the complaints received, and the legal proceedings in process.

Articles 6 and 7. Appropriate consultation and participation procedures. The Committee noted previously the development of a draft regulatory framework respecting the prior, free and informed consultation of indigenous peoples, and the submission by the Government of a draft Bill to the National Congress, which subsequently established a special commission to examine the Bill on consultation. The Committee requested the Government to ensure that the peoples covered by the Convention are consulted and are able to participate in an appropriate manner in the development of the regulatory framework for consultation.

The Government indicates that, due to fact that the state of emergency declared in the context of the COVID-19 pandemic remains in force throughout the country, it has not been possible to initiate the consultation process with all indigenous and Afro-Honduran peoples. However, the Committee notes the Government’s reiterated indication that, with the aim of resuming the activities in the congressional commission, outreach meetings were held through video conferences with certain representatives of indigenous peoples, although not everyone could participate.

The Committee observes that the ITUC refers again to the rejection by some representatives of indigenous and Afro-Honduran peoples of the action taken by the Government in relation to the draft Bill on prior, free and informed consultation, both concerning the 2016 outreach workshops (due to the inadequate representation of indigenous and Afro-Honduran communities) and in the context of the preparation of a new draft for submission to the Congress which was not consulted or disseminated to the communities.

The Committee considers it of the utmost importance that the regulatory framework for prior consultation is subject to a full, free and informed consultation process with all indigenous and Afro-Honduran peoples, and urges the Government to take all the necessary measures to ensure that indigenous and Afro-Honduran peoples, through their institutions, are able to participate in this consultation process in a manner that is appropriate to the circumstances and, so that they can express their opinions and have an influence on the final outcome of the process. Pending the adoption of the law, the Committee recalls the obligation of the Government to consult the peoples covered by the Convention in relation to any legislative or administrative measure that may affect them directly, and once again requests the Government to provide information on the consultation processes held and their outcomes.

Articles 20, 24 and 25. Protection of the rights of the Misquito people. The Committee previously welcomed the comprehensive approach adopted to grant comprehensive compensation to the victims of dive-fishing and their families and to improve the living and working conditions of the members of the Misquito community. Both the Committee of Experts and the Conference Committee in 2021 requested the Government to continue adopting effective measures in this respect.

The Committee notes the information provided by the Government on: (1) the adoption in October 2020 of the Occupational Safety and Health Regulations for Dive-Fishing and an action plan for its implementation. The purpose of the Regulations is to develop and apply legal, technical and administrative measures for the prevention of employment accidents and occupational diseases on fishing vessels and during work related to the activity of underwater dive-fishing; and (2) the updating of the Pluriannual Strategic Plan of the Inter-Institutional Commission for Problem Prevention and Assistance in Dive-Fishing (CIAPEB) for the period 2020-2025 and the activities carried out with the participation of the Misquito people between 2015 and 2019 for the implementation and evaluation of the plan. The Committee observes that the Strategic Plan 2020-2025 aims, inter alia, to: improve the development of human capital and social development within the Misquito population; contribute to the improvement of the livelihoods of the families of disabled divers and of active divers; improve access to justice for the Misquito population; and strengthen the capacities of local organizations and State institutions to promote respect for human rights and the rights of indigenous peoples.

The Committee observes the view of COHEP that these measures demonstrate that significant progress has been made, and that it is the responsibility of the Secretariat of Labour and Social Security, through the Labour Inspection Directorate and the other government institutions involved, to ensure strict compliance with both the regulations and the Strategic Plan, and to guarantee decent recruitment and employment conditions for Misquito divers. While the ITUC recognizes that the Government has implemented several health and compensation measures for Misquito divers, it expresses concern at the deplorable situation that they continue to face, with precarious working conditions without adequate occupational safety measures.

The Committee observes that, in its decision in the case of the Miskito (Lemoth Morris and others) v. Honduras, of 31 August 2021, the Inter-American Court of Human Rights approved the amicable settlement agreement reached between the parties, in which the Government and the representatives of victims agreed on comprehensive reparations for victims through a series of measures (such as restitution and satisfaction measures, financial measures, and guarantees of non-recurrence).

The Committee encourages the Government to continue taking measures to improve the working conditions of Misquito divers, including through prevention and capacity-building activities, and for the labour inspectorate to ensure the effective application of the legal framework regulating dive-fishing. The Committee requests the Government to provide detailed information on the measures taken in the context of the implementation of the Strategic Plan 2020-2025, and particularly to improve the development of human capital and social development in the Misquito population.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2023.]