ON THE SITUATION OF
THE RIGHTS OF INDIGENOUS PEOPLES
The human rights of the indigenous individuals and peoples of Guatemala,
who comprise approximately half of the total population, have been the subject
of ongoing attention by the Commission.
The Maya people, the biggest group in terms of numbers, include the
following linguistic communities: Achi’, Akateco, Awakateco, Ch’orti’,
Chuj, Itza, Ixil, Popti’, Q’anjob’al, Kaqchikel, K’iche’, Mam, Mopan,
Poqomam, Pocomchi’, Q’eqchi’, Sakapulteko, Sipakapense, Tektiteko,
Tz’utujil, and Uspanteco.
The indigenous population is also composed of the few survivors of the
old Xinca people, and the Garifuna people, who have indigenous and African roots
and live in the areas near Guatemala's Atlantic Coast.
Because of the composition of its population, Guatemala is a multiethnic,
multilingual, and multicultural State.
The population of Guatemala is largely rural.
of the people live in rural areas; of this number 52 percent
are indigenous. This majority is
more accentuated in the departments that are far removed from the capital.
Indigenous peoples comprise at least half of the urban population.
Historically, the indigenous peoples of Guatemala have been discriminated
against for ethnic reasons, comprise a large percentage of the poor or persons
living in abject poverty and the majority in the departments with the highest
rates of social exclusion. The same
situation exists in poor urban areas. However,
whether they live in rural or urban areas, they maintain an intense level of
activity and social organization, a rich culture, and are continuously adapting
to situations imposed by the exigencies of historical change, while protecting
and developing their cultural identity.
Guatemalan legislation contains a series of specific and disparate
provisions, at the levels of both the Constitution and laws, with respect to
indigenous peoples. The legislative
trend in this area in the past ten years has been the incorporation into the law
of provisions recognizing and protecting indigenous peoples, such as those
related to the protection of indigenous chidden, the promotion of bilingual,
intercultural education, and the creation of institutions to protect and defend
indigenous women, among others.
Guatemala's Constitution recognizes that the State is composed of
different ethnic group and pledges to recognize, respect, and promote their way
of life, customs, and traditions. Specifically,
Articles 66-70 are made up of a section called "indigenous
communities," the first of which states:
of ethnic groups. Guatemala is made
up of various ethnic groups, among them indigenous groups of Maya descent. The
State recognizes, respects and encourages their ways of life, customs,
traditions, social organization, use of indigenous dress by men and women alike,
languages, and dialects.
67 covers the protection of indigenous agricultural lands and cooperatives, and
stipulates that "they shall enjoy special protection from the State, and,
in this regard, assistance shall be provided in the form of credit and
preferential technologies that guarantee all inhabitants a better quality of
life." Article 68 states that
"by means of special programs and appropriate legislation, the State shall
provide state lands to the indigenous communities that need them for their
development." In addition,
Article 69 addresses the moving of workers and their protection, and Article 70
stipulates that "a law shall regulate matters pertaining to the
topics" covered in that section.
In 1997, ILO Convention 169, pertaining to indigenous and tribal peoples
in independent countries, took effect in Guatemala.
This convention is the most relevant international human rights
instrument dealing specifically with rights of indigenous peoples and states
and tribal peoples shall enjoy the full measure of human rights and fundamental
freedoms without hindrance or discrimination. The provisions of the Convention
shall be applied without discrimination to male and female members of these
As the State noted in its comments in response to the draft report, the
pertinent legal framework offers "great potential" for:
broad development of the guarantees needed by indigenous peoples, which includes
their legal system. This comment
seems necessary in light of the fact that the State has been remiss in terms of
fulfillment of those mandates during the past 15 years.
It was not until 2000 that work began in a more committed and earnest
manner within the Reform and Participation Commission, created by the peace
agreements, despite some uncertainty with respect to representation.
B. Conclusions of Recent Reports on
the Impact of the
Armed Conflict on the Human Rights of the Indigenous Peoples
During the period covered by this report, the findings of valuable
reports produced by governmental and non-governmental organizations have been
published. They provide important insight into the impact of the armed
conflict on the human rights of indigenous Guatemalans.
These studies generally bear out, in greater detail, the conclusions of
previous reports of this Commission.
The total number of victims of political violence during this period has
been estimated at over 200,000 in the research and studies done.
This figure covers persons who died or were subjected to forced
disappearance as a result of the armed conflict in Guatemala that took place
been 1962 and 1996.
The vast majority of these victims were Guatemalans of Maya descent.
Guatemalans of Maya descent accounted for 83% of the victims who were
fully identified by the Comisión para el Esclarecimiento Histórico [Commission for
(CEH), during its documentation of the human rights violations and acts of
violence related to armed conflict. During
this process of documentation, the CEH identified 42,275
victims (men, women, and children), 23,671 of whom were victims of arbitrary
execution and 6,159, victims of forced disappearance.
The counter-insurgency policy in Guatemala was, during several periods,
marked by military action that was aimed at destroying entire groups and
communities as such, as well as the geographical displacement of indigenous
communities when they were thought to perhaps be providing assistance to the
guerillas. During the most violent period of armed conflict (1978-1983),
under the presidencies of Generals Romeo Lucas García (1978-1982) and Efraín Ríos
Montt (1982-1983), military operations were concentrated in Quiché,
Huehuetenango, Chimaltenango, Alta and Baja Verapaz, the south coast, and
13. The massacres in the villages of Plan Sánchez and Dos Erres that occurred in 1982 are painful examples of the policy of extermination pursued with respect to the indigenous communities. The extermination of all the inhabitants of villages, whether they were children, women, or the elderly, under the pretext that they were collaborating with the guerillas, shows the utter contempt of persons carrying out such acts for their victims and their integrity as a people. In its report on the admissibility of this case, the Commission states:
The petition which gave rise to the present case denounced the massacre of 268 inhabitants of Plan de Sánchez, Baja Verapaz, by members of the armed forces of Guatemala on July 18, 1982. The petitioners submit that the massacre was perpetrated pursuant to a State policy "designed to defeat the insurgent movement through the strategic eradication of its civilian support base." They contend that the violations were committed on such a scale as to represent massive violations of the American Convention on Human Rights and the relevant dispositions of international humanitarian law, and constitute crimes against humanity and genocide.
petitioners characterize the area of Rabinal as predominantly inhabited by
members of the Maya population, and described Plan de Sánchez as having had an
entirely Maya-Achi population at the time of the events in question. The
petitioners allege that the military maintained a strong presence in Rabinal in
1982, and that soldiers came to Plan de Sánchez periodically to ask about the
movements of male residents, and to intimidate members of the local population,
particularly those who did not participate in the Civil Self-defense Patrols
(hereinafter "PAC’s"). As
a consequence, they contend that there "was a climate of considerable fear
in the community in the first half of 1982," and the men would sometimes
leave the community to hide from the soldiers.
With respect to the massacre of the inhabitants of Dos Erres village, the
CEH concluded that the sole purpose of the action targeting the village was the
total extermination of the community:
Dos Erres massacre marked a crucial turning point that precipitated the
displacement of many people living in the surrounding areas to other areas of
Petén, while another segment of that population sought refuge in Mexico.
CEH views this case as an illustration of operations aimed at the annihilation
of the civilian population by units of the army, taking the form of the
indiscriminate murder of all its inhabitants, the total destruction of their
dwellings, and in general of all the property of these persons.
case illustrates the extreme cruelty of the Guatemalan Army towards the
defenseless population. There can be no justification whatsoever for the acts of
torture, rape, abortions performed on pregnant women, killings taking the form
of beatings of defenseless children, deadly punishment of the elderly, and the
total destruction of the village. These
events lead to the CEH to the conclusion that the sole purpose of such incidents
as the one investigated was the total extermination of the community.
From colonial times to the present, Guatemala has engaged in
discriminatory and racist practices manifested by a system of violent and
dehumanizing relations, traditionally tied to State actions aimed at maintaining
social exclusion through the perpetuation of conditions characterized by the
concentration of power and productive wealth and opportunities for access to
social services in the hands of a small and privileged sector of the population.
As the CEH has stated, racism, expressed as a doctrine of superiority and
practiced by the Guatemalan State, was one of the causes of armed conflict and
"is a major factor in explaining the particularly brutal and indiscriminate
manner with which military operations were conducted against hundreds of Maya
communities in the western and north-western part of the country, particularly
between 1981 and 1983, when more than half of the massacres and razing of their
land took place."
The disproportionate response to the guerillas is explained by the fact
that the counterinsurgency policy was aimed not only at destroying the social
bases of the guerillas, but also at destroying the cultural values that fostered
cohesion and collective action in the indigenous communities.
The Peace Agreements
In 1990, a process of negotiations aimed at establishing peace in
Guatemala was started. This process culminated in 1996, and was aimed at ending the
violent conflict that took place for more than 34 years.
The parties, i.e., the Government of Guatemala on the one hand, and the
URNG on the other, with the participation of a broadly-based Assembly of Civil
Society, signed twelve agreements.
The more noteworthy ones in terms of their relevance to the indigenous
peoples of Guatemala are: the Agreement on Identity and Rights of Indigenous
Peoples, the Agreement on Socio-Economic Aspects and the Agrarian Situation, and
the Agreement on the Strengthening of Civilian Power and the Role of the Army.
The Agreement on Identity and Rights of Indigenous Peoples begins by
recognizing the identity of the Maya, Xinca, and Garifuna peoples, and expresses
the view that these peoples "have been particularly subject to de
facto levels of discrimination, exploitation and injustice, on account of
their origin, culture, and language and that, like many other sectors of the
national community, they have to endure unequal and unjust treatment and
conditions on account of their economic and social status." The Agreement recognizes:
this historical reality has affected and continues to affect these peoples
profoundly, denying them the full exercise of their rights and political
participation, and hampering the configuration of a national unity which should
adequately reflect the rich and diversified physiognomy of Guatemala with its
wealth of values;
until this problem affecting Guatemalan society is resolved, its economic,
political, social and cultural potential will never be able to develop fully and
neither will it be able to take the place in the community of nations due to it
by virtue of its ancient history and the spiritual grandeur of its peoples;
it will be possible to eliminate oppression and discrimination in Guatemala only
if due recognition is given to all aspects of the identity and rights of the
peoples who have inhabited and continue to inhabit it, all of whom are
components of its present reality and protagonists in its development, in all
Based on this recognition of identity that is "fundamental to the
building of national unity based on respect for and the exercise of political,
cultural, economic and spiritual rights of all Guatemalans," the Government
of Guatemala pledged, by means of these agreements, to take a number of actions
related to the identity of indigenous peoples, combating discrimination,
cultural rights, and civil, political, social, and economic rights, including
customary law, rights related to the lands of indigenous peoples, and
regularization of land holdings.
Since the signing of the Agreement on a Firm and Lasting Peace on
December 29, 1996, the date on which the Agreement on Identity and Rights of
Indigenous Peoples took effect, there has been scant compliance with the
commitments made with respect to these peoples;
difficulties have been encountered, and some progress has been made in certain
areas. This progress includes the
establishment of an Office of the Ombudsman for Indigenous Women, the creation
of a land fund, the formation of joint and special commissions with indigenous
participation, and expanded health
coverage and educational services in indigenous areas.
In its response to the draft report, the State indicated that its poor
record in terms of compliance with the agreements was due to the unilateral and
authoritarian way in which the implementation process had been imposed, and that
the establishment of commissions and funds amounted to little more than the
addressing of goals in a formal rather than substantive manner.
The State indicated:
progress made in a few areas is the same as that pointed out earlier in the
context of political and administrative recommendations and draft laws within
the commissions established under the Peace Agreements, and those in which some
respect is beginning to be shown for indigenous customs, and in cases where
prior consultation is taking place with communities.
With respect to the joint and special commissions created by the State
and indigenous organizations, problems related to internal disagreements among
indigenous leaders have made it difficult for them to function, and, as a
result, valuable proposals have fallen by the wayside.
In addition, as a number of indigenous representatives have pointed out
to the Commission, the Government has sometimes failed to respect indigenous
customs within those commissions and failed to agree to prior consultation by
indigenous leaders with their communities prior to their participation in
decisions that have an impact on their constituencies.
One of the main commitments made by the State during the peace process
was to work towards amendment of the Guatemalan Constitution so that it
recognizes the existence of the different indigenous peoples who live in
Guatemala and accords them guarantees and rights at the constitutional level,
which are clearly spelled out in the agreements.
Although this process was implemented, it failed to achieve its
objectives, as is discussed below.
The commitments made in the peace agreements required, ultimately, a
change in racist and discriminatory practices in Guatemalan society.
The Commission is aware that in
order to implement this, profound economic, social, and cultural change is
required. This requires ongoing and
joint effort between the State, economic and social agents, and indigenous
peoples. It also recognizes that
the Guatemalan Government has made efforts in this area in recent years, but
that these have not been enough and have failed to involve the different sectors
of society, in particular indigenous peoples.
The foregoing notwithstanding, mention should be made of the increased
participation of indigenous leaders in local governments.
This process of democratic stabilization was seen in 1998, when one-third
of the municipal mayoral offices in Guatemala had a mayor who identified himself
as being indigenous.
Moreover, in the November 1999 elections, 16% of the representatives
elected were indigenous, a significant increase compared to the paltry 5% in
1993. Despite this, indigenous
peoples are still underrepresented in local and national governments given the
ethnic composition of Guatemala.
Also, the signing of the agreements has provided greater guarantees and
respect for the exercise by indigenous peoples and their organizations of the
right to assemble, associate, and express themselves freely, which are essential
to the exercise of their rights and the honoring of the commitments made in the
peace agreements, which have been described by the current President as
agreements of the State, and which he has pledged publicly to continue to
However, from the vantage point of organizations, the level of compliance
with the Agreement on Identity and Rights of Indigenous Peoples, in terms of the
modification of public policies of the State towards the indigenous people, has
been zero. They state, for example,
practices of the State, the definition of institutions, its philosophy,
doctrine, distribution of public expenditure, political pragmatism, as well as
the adoption of laws, continue to favor one small social, economic, and ethnic
group only. Therefore, widespread
and intense discrimination and racism as a state policy, continue.
is true that the eradication of discrimination will take a very long time,
perhaps generations; however, to date, political will on the part of the State
and its leaders is singularly lacking.
The Constitutional Reforms Attempted in May 1999
In the peace agreements, the Government pledged to encourage the
Guatemalan Congress to amend the Constitution of Guatemala.
In clause 12 of the Agreement on Firm and Lasting Peace, it was agreed
that: "the constitutional
amendments contained in the peace agreements constitute the substantive and
fundamental basis for reconciliation of the Guatemalan society, within the
framework of the rule of law, democratic coexistence, and the full observance
and strict respect for human rights."
On October 26, 1998, the Guatemalan Congress approved the draft
that were designed to achieve the restructuring of the Guatemalan State and
implementation of the peace agreements. Fifty
amendments were submitted for approval of the people by means of a referendum
held on May 16, 1999. The ballot
contained four general questions on the amendments on which a vote was to be
cast; the first on the nation and social rights, the second on the legislative
branch, the third on the executive branch, and the fourth on the judicial
With regard to indigenous peoples, the draft provided for amendment of
Articles 1, 66, 70, and 143 of the current Constitution, recognizing that the
Guatemalan nation is multicultural, multiethnic, and multilingual.
It also provided for express recognition of the Maya, Xinca, and Garifuna
people, for respect for and protection of their way of life, social
organization, customs and traditions, languages, dialects, different forms of
spirituality, and right to wear their traditional dress.
It further provided for express recognition of the traditional
authorities of indigenous communities, and respect for access to their sacred
places. Article 70 of the draft
amendments states that when provision is made for measures that are likely to
have a direct impact on indigenous peoples, they shall be directly consulted
through the mechanisms to be established by a specific law.
There was a high rate of abstention in the referendum on these
amendments. On the question of the nation and social rights, which included the
amendments regarding the indigenous peoples, there were 327,854 votes in favor
of the amendment and 366,591 against. In
the case of the other questions, a majority of votes was also cast against the
The departments of Chimaltenango, Quiché, Baja and Alta Verapaz, and Petén,
the ones most affected during the armed conflict, voted in favor of the
amendments, inasmuch as they were hoping for change as a result of the peace
agreements. However, the rate of abstention in these departments was
higher than the national average. It
was estimated that 10% of registered voters participated, as a result of such
factors as a lack of information, trust, and organization.
Against this backdrop of high abstention at the national level, the
largest number of votes opposing the amendments came from Guatemala City and
provided the margin needed for their rejection.
The rejection of the amendments can be attributed to the historical
abstention from participation in electoral processes in Guatemala, a phenomenon
that is heightened by a lack of representativity, educational capacity, and
mobilization on the part of the political and social actors who favored the
amendments. However, the decisive
factor was the failure on the part of the Government to provide information on
the proposed amendments, given the exclusion of broad social sectors from
political life in Guatemala and the importance of their inclusion in this
democratizing activity. Because of
the weak educational campaign on the part of the State, a campaign of
misinformation regarding the content of the amendments was carried out, which
led to confusion among the people regarding the content and effects of these
amendments. The thrust of this
campaign was that the constitutional amendments pertaining to indigenous peoples
would create a state within a state, would violate the principle of equality,
dignity, and rights for all Guatemalans, and would, through recognition of the
languages of the Mayas, Xincas, and Garifunas, destroy national unity.
In the view of the Commission, the agreements reached during the peace
negotiations, if incorporated into the Constitution and implemented, would
provide an important educational, political, and legal tool for combating the
discrimination and segregation that has such a debilitating effect on the
Guatemalan nation and state. For
this reason, it is hoped that civil society and political actors will continue
discussion and efforts aimed at their incorporation at the constitutional,
legislative and all institutional levels. In
that regard, the Commission is pleased that the current President has reaffirmed
that these agreements set forth "State policies" and that he is
willing to implement them in the most widespread and expeditious manner
Legislative Instruments since1996
Despite the difficulties encountered in terms of progress with indigenous
rights at the constitutional level, in recent years, a number of legal
provisions have been enacted that are particularly relevant to the exercise of
the rights of the indigenous peoples of Guatemala.
This entire body of legal provisions strengthens pre-existing
constitutional provisions, in particular Articles 58, 66 - 70, 71, 76, and 143
of the Constitution. These very
important provisions enshrine principles that can be developed in the
legislative sphere, and which, if implemented on a sustained basis, can lead to
improvement in the situation of indigenous populations and the Guatemalan
In this regard, the Commission reiterates that a favorable legislative
framework is not enough to achieve, in practical terms, respect for and
protection of the human rights of individuals and peoples.
This must be accompanied by state policies and actions that are aimed at
developing and enforcing domestic and international legal provisions.
As the State indicated in its comments, this institutional framework must
spell out policies and actions to be carried out not only by the government but
also by the nation, with the genuine participation of all peoples, which would
generate public policies in this area.
The main provisions enacted in Guatemala in recent years regarding the
rights of indigenous peoples are as follows:
1. Establishment of a General Bureau
for Bilingual and Intercultural Education (DIGEBI)
The first part of the provision stipulates that the Guatemalan State is
composed of a multiethnic, multilingual, and multicultural society.
Article 3 states that the philosophy of bilingual education is based on
the coexistence of different cultures and languages in the country, and oriented
toward strengthening unity in a context of cultural diversity in Guatemala.
2. ILO Convention 169 concerning
Indigenous and Tribal Peoples in Independent Countries
The ratification of this instrument is especially important in light of
the fact that Article 46 of the Guatemalan Constitution stipulates that human
rights treaties and conventions ratified by Guatemala, such as Convention 169,
will take precedence over domestic law. It
should be borne in mind that the ILO expressly stated that this Convention is an
international human rights instrument.
Law on the Dignity and Integral Promotion of Women
Article one of this legislative provision states that the law is based on
recognition of the fact that Guatemala is a multicultural and multilingual
nation and on the constitutional provisions of respect for freedom, equality,
human life and equality before the law.
Article two defines discrimination against women as any distinction,
exclusion, or restriction based on gender, ethnicity, and religion, among
others, that is designed to interfere or actually interferes with or suppresses
recognition, enjoyment, or exercise of their social and individual rights
enshrined in the Guatemalan Constitution and other laws, regardless of their
marital status, and based on equality between men and women, human rights, and
fundamental freedoms in the political, labor, economic, ecological, social,
cultural, and civil or any other sphere.
Article 9 stipulates that the State shall guarantee all women national
education under equal conditions, at all phases of the educational process, and
shall foster respect for and appreciation of their cultural identity, while
safeguarding the unity of the nation. Section
c of this provision stipulates that the national educational system has an
obligation to offer indigenous students the option of attending school in the
clothing and attire that reflect their cultural heritage.
In addition, Articles 19, 20, 23, and 27 spell out a number of provisions
pertaining to indigenous peoples in relation to the implementation of specific
mechanisms in the areas of culture and the mass media, and in the economic,
political, and law enforcement spheres.
Establishment of the Office of the Ombudsman for Indigenous Women
The mission of this Office is to address "the special situations of
vulnerability, defenselessness, and discrimination against indigenous women.
To that end, it shall take action aimed at the defense and full exercise
of their rights."
Economic, Social, and Cultural Rights of Indigenous Peoples
The Commission regrets the fact that it has to reiterate in this report
the comments made in the chapter on economic and social rights of its 1993
report regarding the discriminatory and deplorable living conditions of the poor
in Guatemala, comprised, for the most part, of indigenous Guatemalans. Virtually
all indigenous peoples live below the poverty line, a situation that has an
impact on educational services, health, literacy, sanitation services,
employment, and the status of women and children.
According to United Nations reports, 90% of the rural population in
Guatemala live in poverty, and 69% in abject poverty.
It should be noted that the economy of Guatemala is based on agriculture.
According to the Guatemalan Ministry of Agriculture, Livestock, and Food,
96% of rural farmers in Guatemala, who, for the most part are indigenous, farm
only 20% of the land. This sector
is described as functioning below or at the subsistence level; in other words,
production is generally low and barely enough to meet the needs of families. This prompts the temporary migration of large sectors of the
population from the highlands to the coast to work in companies involved in the
export of agricultural products.
Companies involved in the export of agricultural products are located
largely on the very fertile lands and plains of the coast and in areas between
the mountain and the coast. They
provide a source of low and temporary income for landless farmers and persons
whose production is below the subsistence level.
Each year, during the harvesting period, several hundred thousand
indigenous workers go to those areas, where they generally toil in working
conditions that are illegal and receive salaries that are below the legal
minimum wage. Living and housing
conditions are abysmal, and their attempts to join unions are attacked.
The Commission has verified time and time again the weakness of the State
apparatus for protecting the rights of domestic migrant workers, who, for the
most part, are indigenous.
The indigenous population is based in the highlands, where the land is
not fertile, is overworked, and is
used for small-scale farming. Despite
this, small and mid-level farmers produce more than a quarter of the coffee in
Central America and 35% of non-traditional exports.
of farmers by type and percentage of agricultural land farmed:
Type of farmers % of the total number of farmers % of farmland
subsistence level 3.85
Insufficient food, abject poverty, and the absence of preventive health
policies are the cause of health problems among the indigenous population in
Guatemala. The main causes of
disease and health problems of the indigenous peoples are linked to the
environmental health conditions in the communities and the working conditions of
paid agricultural workers.
Eighty percent of doctors in Guatemala are located in the metropolitan
region. In the rural areas where
the majority of the population lives and the groups at highest risk are
concentrated, care is provided by nursing assistants, rural health workers,
midwives, and community health volunteers.
The Commission is pleased to note that the Guatemalan Ministry of
Education is making an effort to develop policies at the national level aimed at
expanding the coverage and quality of education and modernizing the institutions
of the sector.
A report published by the Education for All Program in Guatemala states
that "education is a primary factor in achieving social development and
primary education continues to be the area that receives the most support.
However, this same report states that, in 1998, of
656,721 children who were at the age for pre-primary, nursery, and
bilingual education, only 37.4% attended such schools at the national level, and
in the rural areas, this figure stood at only 31%.
Primary education coverage increased significantly between 1989 and 1998
(net rate of 8.5%), with greater uniformity being seen at the national level.
Middle school education continues to be provided largely in the
department that covers the capital, where there is a 65% enrolment in the basic
education program, and 86% in the diversified program.
According to the Report entitled "Rostro
Rural del Desarrollo Humano [The Rural Face of Human Development],"
in 1998, the rate of illiteracy at the national level stood at 31.7% for persons
over age 14, and in rural areas, at 40%. Although it fell by 7% between 1994 and 1998, it continues to
be one of the highest in the Hemisphere. The
same report indicates that obstacles to literacy and basic education resulting
from rural life (problems with access and population dispersion) have been
greater than those linked to cultural and linguistic gaps.
In the view of the Commission, although the State has taken actions aimed
at expanding the coverage and quality of education in Guatemala, these have not
been enough to have an impact on the general situation -- particularly in light
of the discrimination against the indigenous peoples in rural areas -- as
promised by the State in the peace agreements and in the development program of
the present Government.
Right to Ownership of Indigenous Lands
As the Agreement on Economic Aspects states:
is in need of judicial reform related to agriculture and institutional
development in the rural sector so that an end can be put to the lack of
protection and dispossession from which small farmers, and in particular
indigenous peoples, have suffered, so as to permit full integration of the rural
population into the national economy and regulate land use in an efficient and
environmentally sustainable manner in accordance with development needs. To this
end, and taking into account in all cases the provisions of the Agreement on
Identity and Rights of Indigenous Peoples….
The indigenous population is structured on the basis of its profound
relationship with the land, which, in the case of Guatemala, means a significant
portion of the territory where indigenous peoples have lived and worked since
ancestral times. However, as
indicated earlier, the majority of productive land in Guatemala is owned by a
small group of non-indigenous people. In
1988, the pastoral letter of the Bishop of Guatemala reflected the clamor for
one can deny the great inequality that currently exists with respect to
landholding. The agrarian problem
in Guatemala is currently seen from the perspective of the big landholders
versus the small landholders, outside of which is the vast majority of farmers
who do not own any land.
The unequal distribution of land is compounded by the current legal
uncertainty regarding the property rights, particularly those of the indigenous
communities, which makes them especially vulnerable and open to conflicts and
violation of rights. In most
instances, the indigenous communities have property titles that are not
recognized under common law, that are at odds with other titles, or that have
not been fully registered and recognized. Added
to these difficulties is the fact that in some instances, the courts are unaware
of the rights derived from their ancestral ownership and use, and do not
recognize custom-based indigenous legal provisions.
This blocks or considerably limits their ability to assert these rights,
as well as recognition of ancestral possession of their lands.
In this regard, consideration should be given to the following provisions
that are in effect in Guatemala:
Convention 169 (Article 14):
The rights of ownership and possession by the peoples concerned of the lands
which they have traditionally occupied shall be recognized. In addition,
measures shall be taken in appropriate cases to safeguard the right of the
peoples concerned to use lands not exclusively occupied by them, but to which
they have traditionally had access for their subsistence and traditional
activities. Particular attention shall be paid to the situation of nomadic
peoples and mobile farmers in this respect.
Governments shall take steps as necessary to identify the lands that have been
traditionally occupied by the peoples concerned, and to guarantee effective
protection of their rights of ownership and possession.
Adequate procedures shall be established within the national legal system to
resolve land claims by the peoples concerned.
Protection of indigenous lands and agricultural cooperatives.
Lands held cooperatively by the indigenous communities or any other form
of communal or collective land holding by farmers, as well as family property
and communal dwellings shall receive special protection from the State, which
shall provide assistance in the form of credit and preferential technologies
that protect their ownership and development, in order to guarantee all
inhabitants a better quality of life.
and other communities that own lands which, historically, have belonged to them
and traditionally have been subject to a special
form of administration shall maintain that system.
Lands for indigenous communities. By
means of special programs and appropriate legislation, the State shall provide
state lands to the indigenous communities that need such lands for their
Furthermore, one of the commitments made by the State in the peace
agreements, ratified by the current President as State agreements, pertains to
the need to develop legislative and administrative measures for the recognition,
titling, protection, claims, return, and compensation for the land rights of
rights relating to the land of the indigenous peoples include both communal or
collective and individual land
tenure, rights of ownership and possession and other real rights, and the use of
natural resources for the benefit of the communities without detriment to their
habitat. Legislative and administrative measures must be developed to ensure
recognition, the awarding of titles, protection, recovery, restitution and
compensation for those rights.
lack of protection of the rights relating to land and natural resources of the
indigenous peoples is part of a very wide-ranging set of problems resulting,
inter alia, from the fact that both the indigenous and the non-indigenous
peasants have had difficulty in having their rights legalized through the
acquisition of title and land registration. When, in exceptional cases, they
have been able to have their rights legalized, they have not had access to legal
mechanisms to defend them. Since this problem is not exclusive to the indigenous
population - although the latter has been particularly affected - it should be
dealt with in the context of "socio-economic aspects and the agrarian
question", as one of the considerations to be taken into account in
connection with the reform of the land tenure structure.
the situation with regard to the particular lack of protection and plundering of
indigenous communal or collectively held lands merits special attention within
the framework of this agreement. The Guatemalan Constitution establishes the
obligation of the State to give special protection to cooperative, communal or
collectively-held lands; recognizes the right of indigenous and other
communities to maintain the system of administration of the lands which they
hold and which historically belong to them; and lays down the obligation of the
State to provide State lands for the indigenous communities which need them for
the special importance which their relationship to the land has for the
indigenous communities, and in order to strengthen the exercise of their
collective rights to the land and its natural resources, the Government
undertakes to adopt directly, when that is within its competence, and to
promote, when that is within the competence of the legislative organ or the
municipal authorities, the following measures, inter alia, which shall be
implemented in consultation and coordination with the indigenous communities
Government shall adopt or promote measures to regularize the legal situation
with regard to the communal possession of lands by communities which do not have
the title deeds to those lands, including measures to award title to municipal
or national lands with a clear communal tradition. To that end, an inventory of
the land tenure situation shall be drawn up in each municipality.
In the case of landholding and the use and management of natural
resources, the Government pledged to recognize and guarantee access to lands and
resources that are not exclusively occupied by the communities but to which they
have traditionally had access for their traditional activities and used for
subsistence purposes (easements, passage, grazing, spring water access, etc.,
and use of natural resources) and for their spiritual activities;
to recognize and guarantee the right of communities to participate in the
use, management, and conservation of the natural resources on their lands; to
obtain the approval of the indigenous communities before undertaking any project
involving natural resource exploration that can affect the subsistence and way
of life of the communities; to grant the communities affected equitable
compensation for any damages that they may suffer as a result of these
activities; and to adopt, in conjunction with the communities, the measures
necessary to protect and preserve the environment.
With regard to the return of communal lands and compensation for rights
and in recognition of the particularly vulnerable situation of the indigenous
communities arising from the fact that historically they have been the victims
of plunder of their lands, the Government pledged to institute proceedings to
settle the communal land claims of communities, to return these lands to them or
to provide them with compensation, and, in particular, to adopt or work towards
the following measures: to suspend supplementary titles to properties being
claimed by the indigenous communities; to suspend statutes of limitation for any
proceedings related to the plunder of indigenous communities; and, in instances
where statutes of limitations have already expired, to establish procedures for
compensating the communities that have been the victims of plunder with lands
acquired for that purpose. In
addition, it pledged to take the measures necessary, while ensuring that such
action did not affect ownership by small farmers, to implement the
constitutional mandate of providing state lands to the indigenous communities
that need them for their development.
In order to protect the rights of indigenous communities and to provide
proper protection to these communities, the Government pledged to adopt or to
work towards implementation of the following measures: to develop legal
provisions permitting indigenous communities to administer their lands in
accordance with their custom-based practices; to strive to increase the number
of courts that can handle land matters and to streamline procedures for settling
these cases; to urge the faculties of law and social sciences to strengthen the
agrarian law component of their curricula, including information on custom-based
provisions in this area; to establish the pertinent legal advisory services to
settle land claims; to provide, free of cost, the services of interpreters to
the indigenous communities for legal matters; to make an effort to circulate, as
widely as possible, information within the indigenous communities on agrarian
rights and available legal resources; and to eliminate all forms of de facto or de jure
discrimination against women in terms of access to land, housing, and credit,
and participation in development projects.
There has been virtually no fulfillment by the State of these
commitments. The legislation
necessary for granting the indigenous communities due legal protection of their
lands has not been enacted and they have not been provided with state lands.
Efforts have been made, through CONTIERRA,
to provide legal advice and assistance to farmers, agricultural workers, and/or
their organizations in the area of conflict resolution.
This has reduced the tension in the land cases in which it has been
involved, particularly in Petén.
However, because of the high level of conflict surrounding the land issue
as a result of the absence of a national registry, the plunder experienced by
the indigenous communities, and the depletion of their lands, the Guatemalan
State must make a greater effort to achieve the objectives set forth in the
In this regard, MINUGUA has stated in its verification report on the
situation regarding land commitments that:
absence of legislation permitting full recognition of the right of the
indigenous communities to keep their land management system and the failure of
the State to fulfill its obligation enshrined in the Constitution to provide
state lands to the communities that need them for their development and to
guarantee their right to participate in the use, management, and conservation of
the natural resources on their lands, have led to serious social conflict.
In addition, communal or collectively owned lands run the risk of being
considered municipal lands or, even worse, uncultivated lands.
In addition, the Government pledged to develop legal instruments that
permit indigenous communities to manage their lands in accordance with their
With regard to regularizing the status of lands, the only action taken
has been the decentralization of information and even this effort has been
deficient. Those deficiencies are
jeopardizing the historical recording of land adjudications in a country with the
highest level of rural occupation in the Americas and where the majority of the
rural population is indigenous and lives in organized communities.
In the view of the Commission, this point is extremely important given
the fact that democratic stability has given rise to renewed interest by
companies and individuals outside the indigenous communities in exploiting their
lands and natural resources. Legal
uncertainty and the fact that the State has been slow to recognize and enforce
indigenous rights with respect to their lands and resources are not only
creating conditions that are conducive to conflict arising from individual
violation of rights, but are also endangering the fragile system of democracy
that is beginning to take root in Guatemala, after so many years of fratricidal
In light of the foregoing analysis, the Commission recommends that the
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
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.
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.
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.
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.
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 of discrimination.
It should be acknowledged that, with respect to recommendations 4 and 5
specifically, the State indicated in its comments on the draft report that:
that regard, the lack of progress in terms of legislation that benefits
indigenous peoples is acknowledged. The
recommendations of the Commission, which stress the adoption of rapid and
effective mechanisms for guaranteeing the right to indigenous property and the
provision of lands to indigenous communities, respect for labor rights,
preventive health and medical care, and social investment that guarantees equal
opportunities and reduced discrimination and exclusion, are fully accepted.
See, in particular, the 1985,
1993, and 1994 special reports, which can be accessed on the Commission's
Source: BEST Project 520-0374, USAID-Guatemala.
UNDP, The rural face of human development [El
rostro rural del desarrollo humano].
Article 3, first part.
See the list of IACHR reports related to the situation of human rights in
Guatemala in the introduction, supra,
notes 3 and 4.
CEH, Guatemala: Memory of Silence.
Established by means of the Oslo Agreement of June 23, 1994, signed by the
Government of the Republic of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) in order to shed
light in an objective, equitable, and impartial manner on the human rights
violations and violence linked
to the armed confrontation that took place between the time that this
confrontation started (1962) and the signing of the Agreement on Firm and
Lasting Peace (1996).
This figure represents only those cases identified by the CEH.
In the 1983 special report on Guatemala, the Commission recommended that the
Guatemalan State investigate and punish, to the full extent of the law, the
perpetrators of the massacres of indigenous peoples, which occurred in the
rural areas of the country during the armed conflict. This recommendation was repeated in subsequent special
reports and in Annual Reports that addressed the situation of human rights
in Guatemala. The 1994 Annual
Report of the Commission stated that impunity produces consequences that go
beyond the rights of victims, and creates a climate that affects the
security of citizens, promotes corruption, and is incompatible with the rule
IACHR, Report No. 31/99, Case 11,763, Plan Sánchez Massacre, Guatemala,
March 11, 1999.
CEH, Guatemala: Memoria del Silencio.
75% of the best land in Guatemala is concentrated in the hands of less than
1% of farmers. MINUGUA, La situación de los compromisos relativa a la tierra en los acuerdos
de paz, May 2000.
Framework Agreement for Resumption of Negotiations Between the Government of
Guatemala and the URNG (January 1994);
Global Human Rights Agreement (March 1994); Agreement for the
Resettlement of Populations Uprooted by the Armed Conflict (June 1994);
Agreement on the Establishment of the Commission for the Historical
Clarification of Human Rights Violations and Acts of Violence which have
Brought Suffering to the Guatemalan People (June 1994); Agreement on
Identity and Rights of Indigenous Peoples (March 1995); Agreement on
Socio-Economic Aspects and the Agrarian Situation (May 1996); Agreement on
the Strengthening of Civilian Power and the Role of the Army (September
1996); Agreement on the Definitive Cease-fire (December 1996); Agreement on
Constitutional and Electoral Reform (December 1996); Agreement on the Basis
for the Reincorporation of the URNG into Legality (December 1996); Agreement
on the Timetable for the Implementation, Fulfillment and Verification of the
Peace Agreements (December 1996); Agreement on Firm and Lasting Peace
Agreement on Identity and Rights of Indigenous Peoples, 1995.
MINUGUA stated on August 8, 2000 that "Five years after the signing of
the Agreement on Identity and Rights of Indigenous Peoples, a high level of
non-compliance with the commitments made in the substantive agreements can
be noted. The Mission expresses
its regret over the fact that no follow-up to the work of the joint
commissions has taken place and that its proposals have not been
implemented. Recognition of
indigenous identity as a condition for national unity continues to be
necessary, and the measures leading to an end to historical discrimination
and to the recognition of indigenous cultural expression as the cornerstone
of Guatemalan culture continue to be a topic of discussion.
Within the context of the political, economic, and social rights of
indigenous peoples, it can be stated that this is a central topic of
Guatemalan political debate. However,
a reasonably satisfactory level of compliance has not been achieved.
This situation is cause for grave concern in a country where the
indigenous presence is essential to its development and political and
economic stability in the medium and long term.”
Joint commissions were established for the Official Recognition of
Languages, Educational Reform, Spirituality and Sacred Places, Reform and
Participation, and Rights Related to the Lands of Indigenous Peoples.
The Commission should note that expanded health coverage and educational
services in the indigenous areas has not taken place in a context of respect
for indigenous customs and culture, but rather, using the standards of the ladinos
(non-indigenous), something that is in keeping with the approach of
Guatemalan Government entities of taking action without the consultation or
participation of the populations concerned, particularly the indigenous
UNDP, El rostro rural del desarrollo
Analysis document, Office of the Ombudsman for Maya Affairs, March 29, 2000.
Reforms consulted with respect to indigenous peoples.
Current constitutional provision:
Article 1. Protection
of persons. The Guatemalan
State is organized so as to protect persons and families; its supreme goal
is to achieve the common good.
Draft constitutional reform:
Article 1. Human
beings and the nation. The
Guatemalan State is organized so as to protect human beings and the family;
its supreme goal is to achieve the common good.
The Guatemalan nation is one single nation; within its
unity and territorial integrity, it is multicultural, multiethnic, and
Current constitutional provision:
Article 66. Protection of ethnic groups.
Guatemala is made up of various ethnic groups, among them indigenous
groups of Maya descent. The State recognizes, respects and encourages their
ways of life, customs, traditions, social organization, use of indigenous
dress by men and women alike, languages and dialects.
Draft constitutional reform:
Article 66. Identity
and spirituality of indigenous peoples.
The State recognizes, respects, and protects the right to identity of
the Maya, Garífuna, and Xinca people; their ways of life, social
organization, customs, and traditions; use of indigenous dress by men and
women alike, and their different forms of spirituality, languages, and
dialects, and their right to pass these on to their descendants.
For these purposes and under the terms of the final paragraph of
Article 203 of this Constitution, the State recognizes the traditional
authorities of the indigenous communities, and that priority shall be given
to the unity of the Nation, territorial integrity, and the indivisibility of
the Guatemalan State. It also
recognizes, respects, and protects their right to use, conserve, and develop
their art, science, and technology, as well as the right of access to the
sacred places of these peoples, under the terms and conditions set forth in
Current constitutional provision:
70. Specific law.
A law shall regulate matters pertaining to the topics covered in this
70. Specific laws.
A law shall regulate matters pertaining to the topics covered in this
situations where provision is made for administrative measures that are
likely to have a direct impact on indigenous peoples, these peoples shall be
consulted through mechanisms to be established through another specific law.
143. Official language.
The official language of Guatemala is Spanish.
Native dialects are part of the cultural heritage of the Nation.
The following are official State languages: Spanish, throughout
national territory, and the indigenous languages established by law.
Their actual scope of application shall be established in accordance
with technical, linguistic, and territorial criteria.
State recognizes, respects, and promotes the following indigenous languages:
Achi', Akateko, Awakateko, Chalchiteko, Ch'orti', Chuj, Itzá, Ixil, Popti',
Kaqchikel, K'iche', Mam, Mopan, Poqoman, Poqomchi, Q'anjob'al, Q'eqchi',
Sakapulteko, Sipakapense, Tekiteko, Tz'utujil, Uspanteko, Garifuna, and
In its comments on the draft report, the State asserted that:
does not agree that this abstention was the result of a weak information
campaign by the Government, inadequate work by the State to educate the
population, or the inability of the political actors to mobilize the people.
The decisive factor, it should be noted, was that these political actors,
because of their leadership position on the one hand, and status as former
insurgents on the other, exploited the topic and stripped the process of
legitimacy by generating suspicion and apathy among the population, factors
that lead to abstention.”
the State "holds the view that formal and legal mechanisms remain
necessary, provided, of course, that the entities responsible for proposing
and approving them are aware of practices related to multiculturalism, in
order to achieve genuine and positive results that serve to shape these
legal mechanisms." In this
regard, the State concluded by indicating that "instead of discussions,
action should be taken if there is a desire to begin a meaningful process
that favors recognition of the rights of the indigenous peoples.
Government Decision 726-95. Presidency
of the Republic, published in the Diario
de Centro América, February 8, 1996.
Ratified on June 5, 1996 and in effect in Guatemala since June 1997.
Decree 7-99, published in the Diario
de Centro América, April 9, 1999.
The objectives of the law are: (a) to promote the comprehensive development
of women and their participation at all levels of economic, political, and
social life in Guatemala, (b) to foster the development of basic rights that
relate to the promotion and dignity of women and are enshrined in the
Guatemala's Constitution, international human rights conventions on women,
and plans of action resulting from international conferences on women, with
responsibility for such action being assigned to public and private
institutions, as appropriate.
Government Decision 525-99, Presidency of the Republic, published in the Diario
Centro de América on July 20, 1999.
In its 1993 Annual Report, the Commission noted that very wide gaps existed
in terms of effective enjoyment of economic, social, and cultural rights in
Guatemala and that in effect, large sectors of the populations were being
discriminated against, in particular, Guatemalans of Maya descent. It also indicated that the indivisibility of those rights
from civil and political rights was particularly manifest in the case of
Guatemala. Inequality in the
distribution of income, essential services, and ownership of land, and the
lack of respect for the property of farmers and Maya people were the areas
in which this problem was most acute.
The two representative forms of agriculture that exist in Guatemala are:
agriculture for export purposes and for subsistence and domestic market
In its 1994 Annual Report, the Commission noted the widespread violation of
labor laws in Guatemala, particularly in the rural areas, with no effective
administrative or judicial entities to ensure enforcement of the law or the
peaceful settlement of disputes. Also,
in its 1996 Annual Report, the Commission stated that despite the fact that
the law stipulated a minimum wage (which was insufficient), this provision
was not always observed, particularly in rural areas.
In addition, provisions related to health and labor safety were
considered inadequate and even so, were not observed. At that time, the United Nations Commission on Economic,
Social, and Cultural Rights stated that it was “deeply concerned over the
clear and manifest violation of labor law, the disturbing information
provided regarding the impunity of employers, and non-compliance with
provisions related to the minimum wage, working conditions, and
unionization, particularly because this situation impacts persons employed,
for the most part, in the agricultural sectors.”
MINUGUA, La situación de los
compromisos relativos a la tierra [Status of land commitments].
Respiratory illnesses, malnutrition and anemia, gastrointestinal illness and
malaria. IDIES, 1995.
Pan American Health Organization, Health
Profile 1999 (2000).
Ministry of Education, "Education for All Program,” 1999.
UNDP, Guatemala, 1999.
UNDP, Guatemala, 1999.
Agreement on Socio-Economic Aspects and Agrarian Situation.
Agreement on Identity and Rights of Indigenous Peoples, 1995.
Presidential office established in 1997 to provide assistance with legal
matters and the settlement of land-related conflicts.
MINUGUA, The situation regarding the
commitments concerning land in the peace agreements.