RIGHTS OF INDIGENOUS PEOPLES
On April 6, 2001, the Inter-American Commission on Human Rights
adopted its Fifth Report on the Situation of Human Rights in
Guatemala, in which it presented the State with a series of
In the chapter dealing with “The Rights of Indigenous Peoples” it
served the State of Guatemala with the following recommendations
intended to promote and protect the human rights of indigenous
1. Fulfill all its obligations made in the peace agreements with
respect to indigenous communities and their members and spelled out in
the Agreements on the Identity and Rights of Indigenous Peoples,
Socio-Economic Aspects and Agrarian Reform, and the Strengthening of
Civil Authority and the Function of the Army.
2. Based on the wealth of documentation and evidence that exists,
investigate, prosecute, and punish all persons responsible for the
massacres and violation of the rights of individuals and indigenous
communities to life, integrity, and other human rights which occurred
during the armed conflict.
3. Take the necessary steps and establish rapid and effective
special mechanisms for settling conflicts related to ownership, and
provide guarantees and legal security to the indigenous communities
regarding the ownership of their properties, and provide state lands
to the communities that need them for their development, as set forth
in Article 68 of the Guatemalan Constitution.
Foster respect for the labor rights of indigenous people taking
into account the provisions set forth in ILO Convention 169 and
monitor compliance with labor laws, especially those pertaining to
domestic seasonal migrant workers who move to farms in the south and
on the coast, and impose sanctions on employers who violate provisions
in effect, as required by law.
5. Adopt, as soon as possible, the measures and policies necessary
to establish and maintain an effective preventive health and medical
care system, to which all members of the different indigenous
communities have access, take advantage of the medicinal and health
resources of indigenous cultures, and provide these communities with
resources to improve their environmental health conditions, including
drinking water and sewage services.
6. Develop policies aimed at the qualitative improvement of and
social investment in rural areas in order to guarantee indigenous
peoples equal opportunities and access to primary and secondary
educational services, thereby improving internal efficiency and
reducing illiteracy in these communities.
7. Take positive steps in the educational, legislative, and other
spheres regarding the general population, in order to reduce division
and discrimination towards different ethnic groups in particular, to
achieve equal opportunities, to reduce stereotypes and mistrust, and
to reestablish the right of all Guatemalan citizens to dignity, free
With respect to the IACHR’s first recommendation, regarding
the commitments about indigenous peoples entered into by the State of
Guatemala under the Peace Accords, in September 2001 MINUGUA stated
that these had one of the lowest levels of compliance.
had to redefine its schedule for compliance with the pending
commitments, including those dealing with multicultural issues;
education reforms with bilingual and intercultural components; the
promotion of the use of indigenous languages; regularization of land
titles and of lands held by indigenous communities; combating de
jure and de facto discrimination; legal protection of indigenous communities’
rights; conservation and administration of temples and protection of
ceremonial centers; recognition of customary law; recognition of their
forms of organization; and their participation at the local level and
on the Development Councils.
Several indigenous organizations have also said that the
commitments regarding indigenous rights arising from the signing of
Peace Accords have still not been met. The Agreement on Identity and
Rights of Indigenous Peoples does not represent all the historic
demands and aspirations of Guatemala’s indigenous peoples; it is,
however, a good starting point that has encouraged indigenous
participation, albeit in a nascent fashion, in the debate on Guatemala’s
The failure to meet or make significant progress with the
commitments of the Peace Accords also has an impact on compliance with
the IACHR’s third, fourth, fifth, and sixth recommendations to the
State of Guatemala contained in the year 2000 report. These
recommendations deal with land and labor rights and with the
education, health, and basic services rights of indigenous peoples.
In August 2002, with reference to the International Day of the
World’s Indigenous Peoples, MINUGUA repeated its concern regarding
the serious delays in enforcing the Peace Accord on the Identity and
Rights of Indigenous Peoples and other international instruments,
including the International Labour Organisation’s Convention 169 on
indigenous and tribal peoples in independent countries, Convention 50
on the recruitment of indigenous workers, and Convention 64 on
contracts of employment (indigenous workers), the International
Convention on the Elimination of All Forms of Racial Discrimination,
the Convention on the Elimination of All Forms of Discrimination
against Women, and other sundry conventions and declarations dealing
with the eradication of discrimination. It stated that failure to
comply with those commitments continues to generate levels of social,
political, and economic exclusion that are intolerable in the modern
world and doubtless foment acts of ethnic and cultural discrimination
that undermine the full realization of democracy.
Between April 2001 and November 2002 the government of
Guatemala undertook a number of actions toward implementing the
commitments; however, most of these are initiatives still at the early
stages of negotiation pending full implementation. Irrespective of
this, the Commission applauds the activities to date for expanding the
coverage of the National Bilingual Education Program, whereby teachers
(Kaqchikel, Mam, Q’eqchi’, Q’anjob’al, and Ixil) were given
basic literacy training in their own languages; the consolidation of
the operations of 13 Bilingual Teacher Training Schools in seven Maya
languages; the establishment of six ethnic criminal defense offices,
helping strengthen the multicultural and multilingual component of the
law; and the definition of the concept of sacred places as part of the
work of the commission charged with defining such locations.
With reference to the recommendation about the need to adopt
legislative measures aimed at eliminating discrimination against
indigenous peoples, on September 11, 2002, the Guatemalan Congress
issued Decree 57-2002, adding Article 220-bis to the Criminal Code.
This provision imposes fines or prison terms on individuals who
through their actions or omissions incur in discrimination, thereby
hindering or preventing a person, group of persons, or associations
the enjoyment of a legally established right, including customary
rights, and it rules that discrimination on language, cultural, or
ethnic grounds shall be considered an aggravating factor in the crime
The text of the article was criticized by a number of
who, in general terms, stated that the legislature had not
consulted with indigenous organizations about the text of the law, did
not take into account the recommendations that those organizations had
sent to Congress, and did not bring the amendment into line with the
spirit of the Agreement on the Identity and Rights of Indigenous
Peoples, of ILO Convention 169, of the Guatemalan Constitution, and of
the International Convention on the Elimination of All Forms of Racial
Discrimination. This clearly meant that it was a provision of a
general nature that did not pay proper attention to the specific
conditions of indigenous peoples and did not offer mechanisms and
measures for preventing the racism seen in Guatemala against the
Mayas, the Garífunas, and the Xincas.
The Inter-American Commission on Human Rights applauds the
creation of a legal provision punishing discrimination in Guatemala.
It believes, however, that the text should have been arrived at after
consulting with the indigenous peoples of Guatemala. The Commission
has, on repeated occasions, stated that legislative progress in the
field of indigenous peoples’ rights strengthens the protection of
human rights, but it has also said that legislation on its own cannot
guarantee that human rights will be upheld.
On October 9, 2002, the Official Journal of Central America
published Governmental Agreement No. 390-2002, creating the
Presidential Commission on Discrimination and Racism against the
Indigenous Peoples of Guatemala,
composed of five individuals appointed by the President of the
Republic in consultation with the indigenous organizations. The
Commission commends this initiative and hopes that its pursuit of the
goals set will lead to effective measures for the elimination of the
discrimination and racism experienced by indigenous people in
There is no information about other measures adopted by the
Guatemalan government to eliminate discrimination against the country’s
Finally, as regards the IACHR’s recommendation that Guatemala
investigate, prosecute, and punish those guilty for the massacres and
the violations of the right to life, to personal integrity, and to
other human rights suffered by the country’s indigenous peoples
during the armed conflict, the Commission has information indicating
that the perpetrators have been neither prosecuted nor punished.
Significantly, 83 percent of the victims of the armed conflict were
members of the Maya people. In fact, in May 2002, the Commission
lodged an application with the Inter-American Court of Human Rights
against the State of Guatemala for the events of the Plan de Sánchez
In its comments on the follow-up report’s chapter on the
rights of indigenous peoples, the State of Guatemala said that it had
undertaken a series of actions to orient public spending into priority
development areas, promoting the development of small and medium
enterprises; since these are a component in the sustainability of the
development projects and programs being carried out in rural areas, it
encouraged productive activities aimed at creating jobs and increased
incomes for the beneficiary communities.
The State of Guatemala provided the following examples of its
- Purchases of flat and overlock sewing machines, which were used
to set up an assembly plant belonging to people (former combatants)
who were uprooted, relocated, and resettled in the village of San
Miguelito in Génova municipality, department of Quetzaltenango.
- The productive activity underway in the community of San
Antonio Ilotenango, Quiché department, where snowpeas are grown for
- Technical assistance and help in opening up markets for the
cabbage, string-bean, onion, and carrot crops exported from the
village of Ojo de Agua, Cunén municipality, department of Quiché.
In the fields of training and education it reported on the
- Through the Educators for Peace and Development program, 884
teachers had been hired across the country, serving more than 25,000
boys and girls; the awarding of study scholarships, the strengthening
of training in agricultural and industrial areas, and the
implementation of the Minimum School Roof project, which has repaired
the roofs of more than 3,000 schools in the country.
The building of 8,000 schools nationwide over three years of
government, and the erection of perimeter walls, extended school
buildings, refitted classrooms, provision of furniture and equipment
for schools, museums, and cultural centers, with Q149,408,610.88
invested in education since January 2000.
The State of Guatemala also said that between 2000 and 2001,
the National Fund for Peace had worked on the following programs:
- Assistance for the Victims of Human Rights Violations (AVIDEH)
in the areas of education, infrastructure, agricultural supplies and
equipment, health and mental health, productive projects and land,
with total spending to date of USD $1.7 million.
Program for Development and Reconstruction in Quiché
(PRODERQUI) in productive, environmental, and community investments in
204 completed and ongoing projects.
- Program for Reconstruction and Local Development (PDL) in
projects covering health, water and sanitation, education, support for
productive activities, cultural heritage, infrastructure, natural
resource protection and conservation, community and municipal
training, in 72 projects.
- Community Development program (DECOPAZ), in support of
democratic processes and peaceful coexistence, promoting respect for
the population’s civic and cultural values, strengthening community
self-governance, projects in the fields of health, education,
productive activities, with an investment to date of Q348 million.
- Regional offices in support of reintegration, support for the
peace process, institutional strengthening, productive projects,
infrastructure and education, in 366 projects.
As a part of the efforts intended to promote intercultural
awareness in education, the Ministry of Education has worked to
develop a bilingual, intercultural program. During
2002, recognition and respect were still given to cultural and
linguistic diversity and to the values of the country’s four
indigenous peoples, as a way to strengthen national unity and
development and to overcome the hurdles of prejudice, discrimination,
and exclusion. Several actions were carried out in this connection,
including the printing and distribution of 378,000 bilingual texts in
K’iché, Kaqchikel, and Mam. In addition, in order to make the
transformation of the curriculum a reality, consultation workshops
were held with different agencies in order to ensure the cultural and
linguistic relevance of a national core curriculum.
Seventeen child education schools were established, which will
train preschool and primary level teachers (both monolingual and
bilingual in Maya and Spanish), thus expanding education coverage in
twelve of the country’s departments. The total number of students
covered by bilingual education during 2002 was 177,975: 88,865 at the
preschool level and 89,110 at the primary level (preliminary figures).
The State of Guatemala also described the establishment of a
Negotiating Panel comprising public officials and members of the
national peasant coordination to discuss the country’s agrarian
problems and its rural development; the Panel’s purpose is to
analyze and propose comprehensive solutions to agrarian problems in
With respect to indigenous participation, the State of
Guatemala noted that indigenous people enjoy full participation on the
Joint Commission on Reforms and Participation, a product of the Peace
Accords. This Commission has been working on matters such as creating
consultation mechanisms for indigenous peoples, the outcome of which
is to be a law on that matter, and the implementation of the Urban and
Rural Development Councils, with emphasis on the participation of
indigenous peoples in the adoption of local development decisions.
Likewise, the State explained that the Municipal Code will allow the
indigenous inhabitants and their authorities full involvement in the
development of their municipalities.
Finally, the State of Guatemala reported that the Ministry of
Labor and Social Prevision’s ILO Convention 169 Unit has been
holding seminars and workshops to promote the rights of indigenous
peoples, based on the ILO’s international conventions, and that this
has allowed indigenous organizations to contribute and participate in
areas such as the following:
The establishment of an intersectoral commission for the
implementation, analysis, and application of Convention 169, made up
of indigenous organizations and public officials directly involved in
complying with and enforcing ILO Convention 169.
- The first diploma course on “Indigenous Law and Convention
169,” to be organized jointly by the Ministry of Labor and Social
Prevision and the National Public Administration Institute (INAP). The
course is aimed at influential public officials and leaders of
indigenous organizations and political parties, and aims at
establishing a policy of permanent training to foment a culture of
multiethnic participation and to sensitize public officials in order
to eliminate the discrimination, racism, and exclusion that exists
within government offices.
- Ministerial Agreement 525 of November 15, 2002, from the
Ministry of Culture and Sport, authorizing ceremonies to be conducted
in places sacred to Maya peoples so they can pursue their spirituality
in the company of their spiritual guides or Ajq’ijab. In connection
with this, the State reports that some indigenous organizations
believe that requiring these spiritual guides to have an ID card to
prove their status undermines their right to their world view;
however, the State of Guatemala says that the requirement can be
explained because the protected sites are universal heritage sites and
therefore their use must be controlled and responsibilities observed,
which does not affect either Convention 169 or the Agreement on the
Identity and Rights of Indigenous Peoples.
The Commission appreciates the information that the State of
Guatemala provided on the follow-up report’s chapter dealing with
the rights of indigenous peoples, and it acknowledges the State’s
initiatives in the fields of intercultural education, participation by
indigenous peoples, support and promotion of rural productive
activities, and, in particular, its actions toward eliminating the
discrimination, racism, and exclusion in government offices that, as
the State itself recognizes, has been occurring.
Irrespective of the above, the Commission believes that the
recommendations it made to the State of Guatemala in 2001 with the aim
of promoting and protecting the human rights of indigenous peoples
require greater efforts if they are to be implemented effectively,
particularly those related to compliance with the Peace Accords,
prosecuting and punishing those responsible for the massacres of Maya
people that took place during the armed conflict, and ensuring
effective respect and recognition for the human rights of indigenous
peoples, including their economic, social, and cultural rights.
RIGHTS OF THE CHILD
In its Fifth Report on the Situation of Human Rights in
Guatemala, the IACHR offered the Guatemalan State the following
recommendations as regards the human rights of the country’s
1. Adopt the necessary legislative and other steps necessary to
give effect to its obligation to provide children with the special
measures of protection required under Article 19 of the American
Convention, as well as to its specific obligations under the
Convention on the Rights of the Child. In particular, the Commission
recommends that the State take urgent action to modify the Code of
Minors of 1979 through effectuating the entry into force, without
further delay, of the new Code of Childhood and Youth.
2. In conjunction with the strengthening of the legal framework,
that it strengthen the capacity of the judiciary to respond to
violations of the rights of children with prompt and effective
investigation, prosecution and punishment, through additional training
for personnel assigned to such cases and through the oversight
necessary to ensure that the cases are processed and progress in
accordance with the principles of due process.
3. Establish mechanisms for interinstitutional coordination among
the institutions of the State directly responsible for implementing
and enforcing the rights of the child and the nongovernmental
organizations working in this sphere.
4. Allocate the human and material resources necessary to give
priority to the basic needs and rights of children; in particular,
that it develop additional means to provide social services aimed at
ensuring access to nutrition, clothing, and shelter sufficient for
their proper development.
5. Strengthen the regime of labor law to ensure that the illegal
hiring of minors for work which is inconsistent with their age,
health, and development is met with effective, severe sanctions that
6. Strengthen the labor inspection regime in place to protect the
rights of vulnerable workers such as children, and to enforce the
prohibition of hazardous and abusive labor conditions.
Redouble efforts to ensure that every child between the ages of
7 and 12 has access to at least 3 years of primary education; and to
give further priority to the development of bilingual education in the
appropriate geographic regions of the country.
8. Take immediate steps to create a commission to establish the
fate of children and adults who were disappeared during the conflict.
Work with the nongovernmental sector to amplify the services
available to deal with the psychosocial effects of the conflict and
all its sequelae in children, families, and communities.
10. Develop the legal responses and services necessary to respond
to the specific needs of children in situations of neglect and abuse,
which are distinct from those of children at risk for reasons of
11. Amplify the responses that apply in the case of children at
risk for reasons of delinquency so that the best interests of the
child and the goals of rehabilitation and productive reincorporation
into society are utilized as primary considerations in
12. With respect to adoption specifically, that it take the
measures necessary to achieve the entry into force of an adequate
legislative framework so as to ensure that the best interests of the
child are a primary consideration in all decisions taken, to assure
the free and informed consent of the parent or parents, and to
guarantee legality, clarity, and transparency in the applicable
Give serious consideration to the ratification of the Hague
Convention on Protection of Children and Cooperation in Respect of
Take further steps to promote awareness of and respect for the
rights of the child among children, parents, teachers and, in
particular, State officials with responsibility for designing and
implementing policies that affect children and their families.
With regard to the first recommendation in Chapter XII, the
IACHR notes that the Guatemalan State has adopted some initiatives to
give effect to Article 19 of the American Convention on Human Rights
and the other rights that stem from the Convention on the Rights of
the Child. However, the IACHR would like to point out that the country
continues to follow the 1979 Code of Minors and has not resolved the
practical problems arising from the indefinite postponement of the
entry into force of the Code of Childhood and Youth adopted in 1996.
The IACHR notes with interest the presentation of a new project, known
as the Code of Consensus, in October 2002, and it urges the State to
finally resolve, as soon as possible, the problem of the
incompatibilities between Guatemalan domestic law and the
international commitments that it has assumed as regards the human
rights of children and young people. It also recognizes the importance
of the production of different educational materials. Nevertheless, it
recommends systematic and thorough training for all justice workers
who come into contact with children and young people, to ensure that
in the cases they deal with, full attention is paid to the rights and
guarantees enshrined in the Constitution and in the regional and
universal treaties that Guatemala has signed; this will remain of
particular relevance until domestic law is brought into line with
established international standards for children’s human rights.
With reference to the second recommendation, in addition to the
absence of legal reforms, the IACHR draws attention to the absence of
completed trials, with the proper attribution of responsibilities, in
cases involving violations of children’s human rights. The IACHR
therefore recommends that the Guatemalan State assign a team of
officials the task of investigating cases in which children’s rights
are violated and of bringing them before the courts within a
reasonable time. It also recommends that the implementation of a
nationwide training plan for officials and magistrates responsible for
enforcing the law as it affects children and young people. This plan
should include permanent evaluation mechanisms and its course
materials should cover the problems arising from the failure to bring
domestic law into line with the international commitments assumed by
the country (e.g., direct enforcement of treaties, etc.) and
approaches for eliminating discriminatory and violent practices
against specific, vulnerable sectors of the underaged population.
Finally, it should also establish an observatory for children’s
human rights, involving both the governmental and nongovernmental
sectors, charged with supervising the observance of those rights
throughout the country.
As regards the third recommendation, the IACHR points to
several coordination efforts between different government sector
agencies and different nongovernmental organizations.
Nevertheless, it notes that as yet there are no efficient agencies for
managing interconnections between the governmental and nongovernmental
sectors at either the national or local levels. The IACHR urges the
Guatemalan State to carry out the institutional reforms necessary for
this interinstitutional coordination to become a reality within the
shortest time possible.
Regarding the fourth recommendation, the IACHR has been
informed of cases of entire communities whose children suffer from
chronic malnutrition, a circumstance that was accentuated by the
drought in the year 2002.
The Commission therefore urges the Guatemalan State to comply with the
Fifth Report’s fourth recommendation and allocate the human and
material resources necessary to guarantee the children of Guatemala
their basic rights to life and nutrition. In addition, the IACHR has
been informed of repeated cases of violence against children who live
or spend much of their days on the streets.
It thus urges the Guatemalan State to provide these children with
shelter programs that do not restrict their freedom of movement; to
investigate and punish those guilty of violence against street
children; to develop programs to enroll those children in schools and
to ensure they receive health care appropriate to their age, gender,
and general physical condition; to develop programs to strengthen
their families; and, finally, to develop policies aimed at eliminating
the reasons for which these children live on the streets and suffer
all kinds of abuses, mistreatment, violence, and oppression. Thus, in
accordance with the National Action Plans adopted following the World
Summit for Children, the Commission believes it is of crucial
importance that the Guatemalan State implement, without further delay,
a Plan of Action on behalf of its children and young people who live
on the streets.
In connection with the fifth and sixth recommendations in the
Fifth Report, Guatemala has taken an important step forward with its
October 11, 2001, ratification of Convention 182 banning the worst
forms of child labor. It has also pursued a significant number of
initiatives aimed at abolishing child labor and upholding the right of
protection against all forms of labor abuses and exploitation.
Nevertheless, the Commission points out that child labor persists as
one of the main violations of children’s human rights found in the
country. For that reason, the IACHR recommends a complete and
substantial effort to bring the law into line with Conventions 138 and
182, and the creation of effective mechanisms to enforce those
provisions and severe sanctions to punish their violation. The
Commission suggests the creation of school inclusion programs for
these children; and, if so required by the community in question, for
these programs to take account of the cultural characteristics of the
attending children, employment programs for their parents, education
scholarship programs, etc. Finally, a national awareness campaign
about the harmful effects of child labor could be launched.
As regards the seventh recommendation, the State of Guatemala
is urged to make all material and human efforts to ensure basic
education for all children of school age, in compliance with the
provisions of the Protocol of San Salvador and the Convention on the
Rights of the Child, and to develop specific programs that pay due
attention to children with special learning needs. Finally, the
Commission believes the State must adopt the measures necessary to
guarantee the right to education of children from indigenous peoples
in a way that respects their cultural characteristics.
With respect to the eighth recommendation, the Commission
understands the delicate nature of the matter and applauds the
Guatemalan State’s efforts to coordinate with civil society in order
to discover the whereabouts of the children who were kidnapped,
disappeared, or abducted during the armed conflict. Likewise, since
the passage of time has such a particular effect on children, the
Commission believes it is vitally important that a National Commission
be set up as soon as possible, composed of representatives of both the
government and civil society, with broad powers for demanding
information and the task of determining exactly what happened with
each and every child who disappeared or whose identity was swapped
during the conflict.
Regarding the ninth recommendation, the Commission has seen
isolated initiatives intended to deal with the psychological and
social effects of the conflict and its aftermath among children, their
families, and their communities. Nevertheless, along the same lines as
in the third recommendation, the IACHR recommends interinstitutional
coordination between governmental and nongovernmental sectors in order
to establish a national policy on these matters with the necessary
resources and correct technical tools. Similarly, since some
experiences have already proven successful, the IACHR recommends that
the State monitor and assess all the existing programs and implement
and disseminate the best practices that exist in the country in this
area, regardless of whether they are carried out by state employees or
With reference to the tenth recommendation, the Commission
insists on the terms of the first recommendation, which aims at
bringing the legal and institutional system for the protection of
children into line with Guatemala’s international commitments. In
this regard, the Commission repeats its comments about the numerous
violent attacks this year against street children, and notes that to
date it has received no information about a reply from the Guatemalan
State commensurate with the seriousness of these public reports.
With reference to the eleventh recommendation, the Commission
commends certain initiatives to introduce specific guarantees into the
specialized justice system governed by the 1979 Code of Minors.
However, the Commission points out that until Guatemala introduces a
law that establishes a special system of responsibility for
adolescents accused of crimes, full observance of the array of
substantive rights and procedural guarantees recognized to all
individuals under the Guatemalan Constitution, the American
Convention, and, particularly as regards young people, the Convention
on the Rights of the Children will continue to be a pending task for
all the boys and girls entering that special system for “minors.”
Similarly, Guatemala should develop programs for adolescent offenders
based on international standards for preventing juvenile crime; these
should work for the social rehabilitation of adolescents found guilty
of crimes, offer a range of specific punishments, and only resort to
detention in a specialized facility for the most serious criminal
offenses, for the shortest time possible, and always for a specified
In connection with recommendations 12 and 13, the IACHR would
like to note the submission of draft legislation to Congress, in
August 2002, that duly reflects international adoption rules. It also
applauds the signature of The Hague Convention on Protection of
Children and Cooperation in Respect of Intercountry Adoption.
Similarly, it insists on the need for the country to establish, as
promptly as possible, a legal framework that regulates adoption as an
exceptional measure for protecting a child and guaranteeing his or her
right to a family; that prevents children from being separated from
their families on account of the shortage of material resources within
the family nucleus; that pays due attention to strengthening those
ties, whenever possible; and that also gives priority to the right to
community coexistence, identity, and nationality, all within the
framework of a process that guarantees legality and transparency.
Finally, in connection with the fourteenth recommendation, the
IACHR would like to insist on the need to educate children and adults–mothers,
fathers, and officials from different branches of the government–in
a culture that respects the human rights of boys and girls based on
the principles of nondiscrimination, nonviolence, the primacy of
childhood, dialogue, and joint responsibility.
In its comments on the report, the State submitted information
about the recommendations drawn up by the Commission in its Fifth
Report on the Situation of Human Rights in Guatemala. In connection
with the first recommendation, the State submitted information
describing a number of initiatives intended to help guarantee certain
economic, social, and cultural rights of children. One of these is
compliance with Governmental Agreement 310-2000, Article 1 of which
defines the following lines of action: building houses and rural
community shelters; building and equipping schools, government
buildings, community facilities, and sports fields; educational and
recreational programs; provision of sheet metal, accessories, and
material for construction projects in rural areas; food assistance
program; support for Peace Projects, the Edupaz program, Agricultural
Promoters, and programs carried out in conjunction with friendly
countries and international finance agencies.
It also explained that in the second half of 2001 and first
half of 2002, Congress enacted four laws with a political and social
impact that specifically strengthen actions dealing, either directly
or indirectly, with children.
The Social Development Law, a 2001 decree, sets the
institutional framework whereunder the State is to permanently monitor
and report on the social conditions prevailing amongst the population,
assume the task of improving such social indicators as mother-and-baby
mortality, and provide attention to vulnerable groups through social
protection networks, all in accordance with multiculturally aware
guidelines and respect for human dignity.
Decree 12-2002, the Municipal Code, is actually a new code and
not merely a series of amendments. Its Article 36, dealing with how
Municipal Councils’ committees are to be organized, stipulates that
certain committees are to be obligatory, including those responsible
for education, intercultural bilingual education, culture and sport,
human rights and peace, and family matters, women, and children. These
committees support actions in favor of the children of different
indigenous groups, encourage the strengthening of human rights in a
decentralized fashion, and allow the creation and consolidation of the
Municipal Councils of Children and Young People referred to in the
Code of Childhood and Youth.
The Law on Urban and Rural Development Councils, Decree
11-2002, promotes community participation and the design of
development policies at different levels, and it follows up on the
implementation of policies, plans, programs, and development projects
for their incorporation into policies, plans, programs and development
projects at the regional, departmental, and municipal levels. Among
the multiple functions given to these councils at each level
(national, regional, departmental, municipal, and community), it is
those at the community level, set up and strengthened in compliance
under the Peace Accords, that guarantee the organized participation of
the most remote communities in putting forward and resolving their
problems and needs.
The State noted that it has worried about how to harmonize laws
that are obsolete and unconstitutional, yet still current, with
international legislation, such as the Convention and a Code of
Childhood and Youth, which has been approved but is not in force. It
also referred to the drafting and distribution of a manual for justice
officials. In turn, the Supreme Court of Justice has set up several
minors’ courts around the country, where the advantage is that the
judges deal solely with such cases, thus complying with the
requirement of specialized justice set forth in the Constitution.
With respect to the problem of the Code of Childhood and Youth,
the State explained that between the issuing of Decree 78-96 and
September 2002, a series of incidents had occurred, making the Code of
Childhood and Youth one of its most controversial laws. It believes
that the controversy over this law has been a beneficial and valuable
experience for civil society and the State of Guatemala, in that it
encouraged wide-ranging discussions and, ultimately, stirred up a
degree of awareness in support of the Convention. It added that in
light of the controversy, Congress deferred the enactment of this law
intended to protect children and young people.
To give the different groups that had expressed disagreements
with certain articles the opportunity to speak, by means of Decree
12-99 Congress set up a Follow-up Commission on the Code of Childhood
and Youth. Under this decree a range of
Finally, as a precedent for current and future legal inquiries
into the status of the Convention on the Rights of the Child under the
Guatemalan legal system, the Constitutional Court issued a ruling
upholding the preeminence of international law over ordinary
legislation, based on Article 46 of the Guatemalan Constitution, when
dealing with human rights related matters.
In connection with recommendations 5 and 6, the State explained
that Decrees 13 and 18-2001, issued by Congress, had given the
Ministry of Labor and Social Prevision powers to sanction breaches of
the labor laws. It reported that during 2002, a total of 4,000
resolutions containing sanctions were issued and Q545,000 in fines was
collected by the Administrative Sanctions Section of the General Labor
Inspectorate. It added that in compliance with ILO Convention 182,
ratified by the State of Guatemala in Governmental Agreement 347-2002,
the National Commission for the Eradication of Child Labor was
established. It was installed on November 29, 2002, with the
participation of different governmental and non governmental sectors
and representatives of international organizations.
The State of Guatemala noted that it had assumed the commitment
of addressing the problems of child labor in 1990, by ratifying the
Convention on the Rights of the Child and ILO Convention 138 on the
minimum age for admission to employment, and again, in 1996, by
signing a memorandum of understanding with the ILO to develop a
National Plan for the Eradication of Child Labor and to implement the
International Program on the Elimination of Child Labor (IPEC). In
connection with this, the Ministry of Labor and Social Prevision held
a tripartite consultation in 1999, the result of which was the
National Plan for the Prevention and Elimination of Child Labor and
the Protection of Working Adolescents, which covers six axes:
education, health, promoting adult employment, protection, research
and social mobilization, and monitoring.
In compliance with Chapter II, Social Development, Section E,
subsection D, of the Agreement on Socioeconomic Issues and the
Agrarian Situation, dealing with labor laws, labor inspection services
have been decentralized and increased through Ministerial Agreement
No. 182-2000 of May 4, 2000. This contains the Labor Ministry’s
Administrative Decentralization Regulations, intended to strengthen
oversight of compliance with domestic law and with the international
labor treaties that Guatemala has ratified.
The State claims that it is very difficult to measure the
participation of Guatemalan children and adolescents in economic
activities, because those activities are both illegal and invisible.
Many of them are hazardous to health and expose children and
youngsters to a series of work-related risks, such as long working
hours, tension, and difficult conditions; they also hinder their
attendance at school, denying them the ability to become competitive
job-seeking adults on account of their lack of training and education.
The National Statistics Institute (INE) conducted a survey of
family incomes and expenditures in 1998-1999. The results indicated
that at least 821,875 boys and girls aged between 7 and 14 worked,
accounting for 34.1 percent of all Guatemalan children in that age
bracket; as for adolescents aged between 14 and 18, the 1994
population census gave a total of 644,569, equal to 70 percent of the
present a monitoring effort is being carried out jointly by the Labor
Ministry and the Child Worker Unit, UNICEF, and IPEC/ILO. This will
help empower local agents, such as community leaders and teachers, who
will develop programs of action and the baselines to be used in
assessing these programs’ impact and the qualitative results
obtained by the team of monitors that is working to bring about a
change of attitudes in the community.
With respect to dangerous work involving children, the Labor
Ministry’s Social Protection Directorate has been ordered to create
a National Network to tackle the problem of children employed in
dangerous productive processes.
The State also noted that the government was particularly
interested in and concerned about effectively addressing the different
problems faced by the country’s children and youths and the
commercial sexual exploitation of boys, girls, and adolescents. This
interest was expressed during the official presentation of the Plan of
Action that the Secretariat of Social Welfare of the president’s
office gave to the social cabinet, at which representatives of several
ministries stated their willingness to support the issue from the
realm of their particular jurisdictions.
With reference to the twelfth recommendation, the State
explained that the institution of adoption is provided for in Article
54 of the Constitution, which stipulates that the State is to
recognize and protect adoptions. The adoption process is regulated by
the Civil Code, Articles 228 to 251. In addition, in 1997 the
Regulatory Law for the Notarial Processing of Matters of Voluntary
Jurisdiction was enacted, which slightly modified the procedure for
adoptions by authorizing their processing before a lawyer and a
notary; thus, when an adoption is legalized using this method, it does
not require a family judge to hear the case and issue a resolution.
290. The civil society and the State are currently working
together on drafting a law to regulate adoptions. The work has been
supported by the chairman of the congressional Committee for Minors
and the Family and coordinated by the Secretariat of Social Welfare of
the president’s office.
The State finally points out that at present, government
agencies and nongovernmental organizations are working to draw up a
legal framework that will provide domestic and international adoptions
with greater legal force and certainty.
With regard to the eighth and ninth recommendations, the State
indicated that it is currently working with civil society to draw up a
work proposal with the Mental Hygiene League to address a certain
number of cases involving disappeared children. It should be noted
that the process by which the State and nongovernmental organizations
have come together on such sensitive issues has been gradual but that
the government firmly intends to continue building bridges of
communication to enable them to combine their efforts on these
matters. It also reported that the mental health group operating
within the Ministry of Public Health, together with other groups of
NGOs, runs programs that carry out community psychosocial readaptation
efforts among sectors of the population affected by the armed
conflict. At present, through their mental health programs, the Mental
Hygiene League and the Ministry of Health are covering a number of
municipalities where they provide psychotherapeutic help, and ECAP is
working with the victims of the armed conflict.
OEA/Ser.L/V/II.111. Doc.21 rev.
Agreement on Identity and Rights of Indigenous Peoples, signed in
March 1995; Agreement on Social and Economic Aspects and Agrarian
Situation, signed in 1996; Agreement on Strengthening of Civil
Authority and the Function of the Army, signed in September 1996,
between the Government of the Republic of Guatemala and the
Guatemalan National Revolutionary Unit (URNG), with the
participation of a Civil Society Assembly.
The United Nations Verification Mission in Guatemala (MINUGUA) began
work in November 1994. In December 1996, following the signing of
the Agreement for Firm and Lasting Peace, MINUGUA was charged with
verifying compliance with all the Peace Accords that then came into
In: The Situation of Indigenous Peoples in Guatemala. Document
submitted at the hearing before the IACHR, October 14, 2002.
Government of Guatemala. Progress Report June to July 2002.
Follow-up Matrix of Issues Identified by the Consultative Group,
February 2002. Guatemala, August 12, 2002.
Decree No. 57-2002 of the Guatemalan National Congress, published on
October 9, 2002. Article 220-bis of the Criminal Code.
Discrimination: Discrimination shall be taken as meaning any
distinction, exclusion, restriction, or preference based on gender,
race, ethnicity, language, age, religion, economic status, illness,
disability, civil status, or any other grounds, reason, or
circumstance that impedes or hinders with respect to a person, group
of persons, or associations the enjoyment of a legally established
right, including customary rights, pursuant to the Constitution of
the Republic and to international human rights treaties.
person who through action or inaction incurs in the behavior
described in the previous paragraph shall be punished with a prison
term of between one and three years and a fine of between 500 and
penalty shall be increased by one third:
the discrimination stems from language, cultural, or ethnic reasons.
any person who in any way and through any medium disseminates,
supports, or encourages discriminatory ideas.
the action is by a public employee or official in the exercise of
the action is by a private citizen while providing a public service.
Maya organizations that expressed their rejection of the procedure
and content of the antidiscrimination text adopted by Congress:
CONAVIGUA, Political Association of Maya Women, Maya Defense Office,
SAQBE’ Maya Center, Rigoberta Menchú Foundation, Maya Decade,
Council of Maya Organizations (COMG), Coordinating Office of
Indigenous and Campesino Organizations (CONIC), XELJU’ Civic
Committee, Defense Office for Indigenous Women (DEMI), Coordinating
Office of the Xinca People of Guatemala (COPXING). In: The Situation
of Indigenous Peoples in Guatemala. Document submitted at the
hearing before the IACHR, October 14, 2002. See also: Prensa
Libre, September 12 and 13, 2002.
Information Bulletin No. 1, Year 1, week of October 16-26, 2002,
Tzujnel, Tob’nel, K’astajnel, Maya Defense Office, Guatemala,
The Presidential Commission on Discrimination and Racism against the
Indigenous Peoples has the following functions: (a) Advising and
assisting different State agencies and officials, as well as private
institutions, in the development of effective mechanisms to combat
discrimination and racism against indigenous peoples in Guatemala.
(b) Designing public policies that guarantee an absence of
discrimination and racism against indigenous people, and following
up on their implementation. (c) Monitoring policies within private
agencies, and suggesting guidelines to be adopted for tackling the
problem of discrimination in a positive fashion. (d) Serving as a
liaison between indigenous peoples’ organizations and the
executive branch of government vis-à-vis discrimination and racism.
(e) Keeping a register of reports of incidents involving racism and
discrimination, and forwarding them to the competent agencies. (f)
Presenting the President of the Republic with six-monthly reports
about progress with how the rights of indigenous peoples are being
respected and exercised; these reports are to be made public. (g)
Drawing up reports on indigenous affairs that the State of Guatemala
is required to submit to international organizations. (h) Promoting
public awareness campaigns against discrimination. (i) Managing and
administering national and international cooperation for performing
its duties. (j) Coordinating actions at the national level with
organizations of indigenous peoples interested in the work of the
government Commission charged with defining policies and actions in
the international arena relating to the rights of indigenous
peoples. (k) Other such functions as the President of the Republic
may assign it. Governmental Agreement No. 390-2002, October 9, 2002.
The Commission was told by indigenous organizations that this
government agreement has been criticized because its content was not
consulted with the Commission for the Definition of Sacred Places
and that its Articles 1 and 9 usurp the responsibilities of Maya
spiritual guides. Press release from the National Council of Sacred
Places, which comprises the Oxlajuj Ajpop National Conference of
Ministers of Maya Spirituality of Guatemala, the Association of Maya
Priests of Guatemala, the Council of Elders, the Kaquljá
Foundation, and the Kaqchikeles Confederation of Ajq’ijab Leaders.
November 22, 2002.
The Social Movement on behalf of Children, different
subject-specific intersectoral coordination offices, etc.
Press report .
In a note dated November 11, 2002, the IACHR expressed its concern
to the State and asked it for information on the measures it had
adopted to protect children and young people who live on the
Code of Childhood and Youth. Articles 92 to 95; although these
legally have been placed on hold, some Municipal Councils have in
fact already been set up.