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Indigenous and Tribal Peoples Convention, 1989 (No. 169) - Honduras (RATIFICATION: 1995)

Other comments on C169

Observation

Direct Request

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The Committee notes the observations of the Honduran National Business Council (COHEP), received on 31 August 2023. It also notes the observations of the Authentic Trade Union Federation of Honduras (FASH), received on 7 November 2023. The Committee requests the Government to provide its comments in this regard.

Follow up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109 th Session, May – June 2021)

The Committee notes that the Committee on the Application of Standards (Conference Committee) in its conclusions requested the Government to: (a) ensure the implementation of the Convention in a climate of social dialogue and understanding, free from violence and intimidation; (b) conduct, without delay, independent investigations and proceedings against perpetrators of criminal acts against indigenous and Afro-Honduran peoples and their representatives; (c) establish appropriate consultation and participation procedures in line with the Convention; (d) implement without delay the Convention in law and practice, based on the extensive consultations held with the social partners, and in accordance with Article 6 of the Convention, on the requirement to consult indigenous peoples; (e) continue to take effective measures to improve the conditions of work of Misquito dive-fishers; and (f) ensure the awareness of rights and access to justice of indigenous and Afro-Honduran peoples. The Conference Committee called upon the Government to accept an ILO direct contacts mission (hereinafter, the mission).

The Committee notes that the mission was undertaken in May 2022 and that it addressed the subjects of violence and impunity, consultation and participation, the situation of the Misquito people and lands. The Committee notes that the mission heard with deep concern the description by the representatives of indigenous and Afro-Honduran peoples of their situation of abandonment, exclusion and marginalization, aggravated by the historical structural weaknesses of the State, including in areas from which it is absent, which is prejudicial to respect for the rights of these peoples. The mission took note that the new Government authorities have expressed their full will to establish a climate of respect for the rights set out in the Convention and to fulfil the undertakings given to the mission in the areas referred to above. The Committee welcomes the will expressed by the Government in this regard and hopes that the implementation of the mission’s recommendations, as well as the comments set out below, will contribute to finding solutions to the difficulties raised in relation to the application of the Convention.

Article 3 of the Convention. Human rights. The Committee observes that, within the context of the mission, the competent authorities recognized and expressed their commitment to combating the situation of violence, the weakness of systems of protection and the lack of an adequate judicial response. The mission recommended the implementation without delay of exhaustive investigations, prosecutions and the imposition of penalties on both the instigators and the perpetrators who are guilty of acts of violence against indigenous and Afro-Honduran peoples; the strengthening of the justice system, and particularly the Special Prosecutor for the Protection of Ethnic Minorities and the Cultural Heritage, with the allocation of sufficient personnel and resources to fulfil its mandate (it also recommended that the prosecutors, with specific knowledge of the situation of indigenous and Afro-Honduran peoples, can also investigate or participate in investigations into crimes against the lives of indigenous and Afro-Honduran peoples); and the strengthening of the national protection system, with the guarantee of universal access and rapid and effective responses for members of indigenous and Afro-Honduran peoples who are at risk.

The Committee notes the provision by the Government in its report of statistics on complaints filed with the Special Prosecutor for the Protection of Ethnic Minorities and the Cultural Heritage between 2021 and 2023, showing, among the various crimes, that in 2021 there were 26 threats, one murder and seven injuries; in 2022, there were 11 threats, three murders and two injuries; and in 2023, there were 15 threats. The Committee observes that murders and injuries were not reported in 2022 and 2023.

The Committee emphasizes that the absence of convictions against those guilty of acts of violence results in de facto impunity, which aggravates the climate of violence and insecurity, and which is extremely prejudicial to the exercise of the rights of indigenous peoples. The Committee also recalls the importance of prosecutions being completed rapidly, as slow justice can become justice denied. Under these conditions, the Committee urges the Government to take measures to give effect to the recommendations of the mission. The Committee also firmly urges the Government in relation to the specific acts of violence that it noted in its previous comment, to: (1) investigate them, establish responsibilities and punish those responsible for the kidnapping and disappearance of four members of Garifuna community of El Triunfo de la Cruz on 18 July 2020, and the murder in December 2020 of José Adán Medina, a member of the Tolupán indigenous community, and Félix Vásquez, an environmental activist of the Lenca community; and (2) identify and punish the instigators of the murder of Berta Cáceres (former President of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH)).

Articles 6 and 7. Appropriate consultation and participation procedures. The Committee notes that the mission: (1) noted with concern that the indigenous and Afro-Honduran peoples still do not have a formal dialogue mechanism with the authorities in which they can express their demands, priorities and concerns on a regular basis; (2) observed that all the parties emphasized the importance of the establishment a legal consultation framework in accordance with the Convention; (3) took note positively of the commitment made by the Government to establish a technical working group so that the Inter-Institutional Commission for the Affairs of Honduran Indigenous Peoples can draw up preliminary draft legislation on prior, free and informed consultation; and (4) trusted that the Government would take the necessary measures to fully integrate from the beginning the representatives of indigenous and Afro-Honduran peoples in this process and for the preliminary draft legislation to be the subject of full consultations with the representatives of indigenous and Afro-Honduran peoples.

The Committee notes the Government’s indications that: (i) in accordance with the commitments made as a result of the mission’s visit, the Secretariat of Labour and Social Security (SETRASS) agreed with the United Nations Development Programme (UNDP) the development of a project for a comprehensive strategy of training and the promotion of interaction with indigenous and Afro-Honduran peoples with a focus on rights and social participation (April-December 2023). The objective of the project is to support the policy of a dialogue strategy to establish and develop the mechanism for the implementation of free, prior and informed consultation with the indigenous and Afro-Honduran peoples, and to define forms of participation both with the representatives of the indigenous and Afro-Honduran peoples and with State institutions with responsibilities and functions in areas related to the application of the Convention; (ii) the operational support of the UNDP is supplemented by the assistance provided by the ILO for the development of two products, namely: Product 1: Enabled the process of institutionalized social dialogue with the indigenous and Afro-Honduran peoples for the development of a plan of action for the implementation of Convention No. 169; Product 2: Strengthened the capacities of the SETRASS for the promotion of interaction mechanisms for the resolution of disputes relating to lands; and (iii) through the specific activities of both products, it is intended to give effect to several of the mission’s recommendations, some of which are directly related to the creation of mechanisms through which the indigenous and Afro-Honduran peoples can express their demands and priorities to the authorities.

The Government adds that: (1) the Secretariat for Social Development (SEDESOL) indicated that the Secretariat for Human Rights has worked on the legal analysis to control the compliance with the Convention of the proposed preliminary draft legislation on free, prior and informed consultation; (2) in the analysis, it was found that the implementation of the draft legislation would constitute progress in relation to human rights through the presence of a mechanism to guarantee consent and prior, free and informed consultation; (3) it was emphasized that the draft text was drawn up in 2014–15, for which reason various modifications are required; (4) the Office of the Public Prosecutor, through the Special Prosecutor for the Protection of Ethnic Minorities and the Cultural Heritage, indicated that action has been taken in the courts against officials for not having practiced prior, free and informed consultation with the members of communities in which projects are being undertaken that affect their lands, territories and natural resources; (5) in 2021, public servants were trained through the modular updating course on the role of prior, free and informed consent in the reduction of disputes in the mining sector, and since 2022 an inter-institutional dialogue mechanism has been developed and strengthened through the National Forum for the Prevention and Treatment of Social Conflict; and (6) through this mechanism, work has been undertaken on the strengthening of capacities relating to the importance of reinforcing and engaging in processes of consultation and prior, free and informed consent through existing channels.

The Committee notes the indication by the COHEP that: (1) since the ratification of the Convention, no measures have been taken to establish a serious and responsible consultation mechanism, and the social partners have not been consulted on that subject; (2) the consultations that have been undertaken have been carried out in accordance with the Act on open councils of 1919, which called for the holding of popular consultations with the population at the municipal level, which implies that consultations have not been held with the indigenous and Afro-Honduran peoples in accordance with the Convention and the draft legislation drawn up in 2018 was not subject to appropriate consultations; (3) the process of drawing up new draft legislation on consultation in accordance with the Convention should be the priority of the Secretariat of Labour and Social Security and it is important that before the text is forwarded to the National Congress it is referred to the Economic and Social Council for consultation and approval by the social partners; and (4) no action or initiative by the present Government is known for the establishment of an inter-institutional dialogue forum with indigenous and Afro-Honduran peoples.

While welcoming the commitments made by the Government in line with the mission’s recommendations, the Committee observes that consultation processes do not appear to have been undertaken with indigenous and Afro-Honduran peoples. The Committee trusts that the implementation of the project referred to by the Government, with UNDP support, for the establishment of a comprehensive strategy for training and the promotion of interaction mechanisms with indigenous and Afro-Honduran peoples will result in the development and establishment of a mechanism for full, free and informed consultation with indigenous and Afro-Honduran peoples. The Committee recalls the great importance of the legislative framework proposed for prior consultation being subject to a process of full, free and informed consultation with all indigenous and Afro-Honduran peoples. In this regard, it encourages the Government to develop a social dialogue mechanism through which it can share with the social partners the proposal for a legal framework for consultation agreed with the indigenous and Afro-Honduran peoples.

Until such a consultation framework is adopted, the Committee recalls the requirement for the Government to made every effort to consult the peoples covered by the Convention in relation to any legislative or administrative measures which may affect them directly and once again requests the Government to provide information on the consultation processes carried out and their outcomes.

Articles 8 and 12. Access to justice. The Committee observes that the mission recommended the Government to take measures to ensure the presence of an adapted system in all regions to ensure the effective access of indigenous and Afro-Honduran peoples to justice. In this regard, the Government provides information on the on-site visits made by the Secretariat of State in the Human Rights Office to approach communities whose rights have been violated with the objective of identifying violations of rights, threats and situations of risk, providing support and protection, analysing the objectives and challenges for their effective protection, and developing state responses with the competent authorities (for example, the visit to the Garifuna community of Punta Gorda in light of their forced transfer; to the Maya-Chortí community of Azacualpa, La Unión and Copán in light of threats and the criminal charges against their defenders; support and capacity-building for the Negro English-speaking community of Crawfish Rock on the national system for the protection of human rights). The Government also refers to the legal analyses by the Secretariat on controlling compliance with the Convention, particularly in relation to forced transfers, draft legislation and development projects.

The Committee notes the reference in the COHEP’s observations to the preliminary observations of the Inter-American Commission on Human Rights on its visit to Honduras (in April 2023), according to which there is a generalized lack of trust in the institutions of the justice system and there is insufficient human rights training of justice operators from ethnic and racial perspective.

The Committee requests the Government to continue to take measures to facilitate the access to justice of indigenous and Afro-Honduran peoples and to develop capacity-building programmes for indigenous and Afro-Honduran peoplesso that they are aware of their rights and the means of asserting them; and the competent authorities to continue undertaking on-site visits with a view to approaching communities whose rights have suffered violations and providing them with legal support and personal protection when they are subject to threats. The Committee also requests the Government to provide information on the training activities undertaken for the police and judicial authorities on the scope of the rights of indigenous peoples guaranteed by the Convention.

Article 14. Lands. The Committee notes that the mission observed with concern that, in addition to their historical claims, which have still not been resolved, the indigenous and Afro-Honduran peoples are also confronted with the occupation of their lands by third parties, including drug traffickers. Disputes relating to lands are not only at the root of various situations of conflict and violence, but have also resulted in criminal action against defenders of indigenous and Afro-Honduran peoples. The mission emphasized that land recognition and clarification measures and the establishment of land titles are important means of reducing conflicts in this respect. The mission encouraged the Government to continue taking measures in response to the claims of indigenous and Afro-Honduran peoples and indicated that in order to address the issue of lands more effectively, it is necessary to: take measures to clarify the areas of competence of State institutions at the national and local levels in relation to issuing land title; ensure improved coordination between such institutions; and allocate the necessary budgets to them for the clarification of land-related issues for indigenous and Afro-Honduran peoples.

The Committee notes the Government’s indication that 14 technical forums have been established at the national level to respond to problems related to the lands occupied by indigenous and Afro-Honduran peoples and that a protocol has been developed on addressing situations of conflict and forced transfers with the objective of shedding light on and taking articulated follow-up action in cases of transfers.

The Committee notes with concern the indication that land disputes give rise to violence affecting indigenous and Afro-Honduran peoples. In the same way as the mission, the Committee emphasizes the importance of coordinating and clarifying the areas of competence of State institutions in relation to the delivery of land titles for indigenous and Afro-Honduran peoples. The Committee urges the Government to intensify its efforts to ensure the effective protection of the rights of ownership and possession of indigenous and Afro-Honduran peoples over the lands which they traditionally occupy and to provide information on the processes of clarifying and issuing titles to lands.

Articles 20, 24 and 25. Protection of the rights of the Misquito people. The Committee notes that, as it indicated in previous comments, the mission received testimony concerning serious accidents, sometimes fatal, which had occurred during dive-fishing activities, the difficult conditions of work faced by dive-fishers and the inadequate assistance received by injured dive-fishers and their families. The mission received information from the Government on progress in relation to: (1) the training of 11 labour inspectors in subjects of concern to dive-fishers and fishers so that they can inspect their conditions of work in port and on the high seas; (2) the organization of courses on safe dive-fishing for fishers and employers; and (3) the recruitment of a labour prosecutor to provide assistance to the Misquito people in relation to access to justice. The mission urged the authorities to make every effort without delay to: (1) ensure the effective operation of the labour inspection services, not only in port but also on the high seas; (2) ensure that dive-fishers have formal contracts so that they can have access to their labour rights and social protection; (3) take measures to ensure the provision to injured dive-fishers of compensation or benefits which cover their needs; (4) provide training to dive-fishers on safe fishing methods; (5) reinforce the Inter-Institutional Commission for Problem Prevention and Assistance in Dive-Fishing (CIAPEB) so that it can ensure the implementation of the regulations and address the demands of dive-fishers; and (6) make available a sufficient number of hyperbaric chambers, with specialized personnel for their correct use, located in easily accessible areas.

The Committee notes the Government’s recognition that the Misquito people has suffered marginalization, discrimination and violence as a result of the absence of the State, the failure to implement comprehensive public policies, and the low level or absence of enforcement and protection of their labour rights, which has resulted in precarious working conditions with a serious deterioration in their environment and opportunities for economic and social development, and serious consequences for their mental and physical health. During the mission, the authorities of the SETRASS reaffirmed their commitment to the implementation of practical measures to take into special consideration the needs and situation in practice of the Misquito people and guarantee their labour rights. With a view to reducing the gap that currently separates indigenous and Afro-Honduran peoples from access to decent work, the SETRASS set out a series of commitments with a view to improving the labour conditions of the Misquito people through short-term action in the fields of inspection, occupational health and safety and social welfare. The SETRASS, through the Subsecretariat for Labour Relations, undertook an initiative in April 2023 for the strengthening of the labour situation of the Honduran Misquito area, and particularly in the area of the municipality of Puerto Lempira. A work team participated in the initiative composed of the General Directorates of labour inspection, employment, social welfare and the Office of the Labour Prosecutor, which worked to strengthen the presence and broaden the framework of action by the SETRASS in the region so that it can provide the Misquito people and the population in general with access to a broad range of services that are normally located in the central headquarters or in the nearest regional offices, such as in Ceiba and Trujillo. The team held meetings with Government institutions and members of the community in Puerto Lempira and Kaurika to establish alliances and take common action: including, for example, training on the implementation of occupational safety and health regulations in underwater dive-fishing, the discussion on decompression sickness and the implementation of socio-economic studies on a sample of two dive-fishing families, one of an injured dive-fisher and one of the family of an active dive-fisher in the community.

With reference to labour inspection activities, the Government makes reference to the following: the establishment of joint procedures with the personnel of the hospital of Puerto Lempira for the referral of cases of employment accidents of dive-fishers for further attention and the calculation of compensation payments by the SETRASS; the assessment of two dive-fishers who had suffered from inadequate decompression for the delivery of the respective medical diagnosis; accompanying normal inspections by labour inspectors from Puerto Lempira to approve the action taken and the documentation required in each of the cases set out in the Labour Inspection Act; the establishment of channels of communication and procedures for use between the Puerto Lempira and La Ceiba offices for the inclusion of the local office in Roatán in the investigation of administrative complaints by workers. The Government adds that a public pardon was issued as part of the action to give effect to the ruling in the case of the Misquitos v. Honduras and the recognition was coordinated of responsibility for violations of the human rights of 42 Misquito indigenous persons. Work is also being undertaken on socio-economic measures for the provision of cash transfers to dive-fishers with disabilities and their family members and the establishment of offices for disabled Misquito dive-fishers.

The Committee welcomes the recognition by the Government of the importance of taking measures to remedy the difficult situation faced by the Misquito people and the need to take specific measures, particularly to ensure that Misquito dive-fishers benefit from labour rights, as indicated by the mission. The Committee encourages the Government to continue to take measures to improve the working conditions of Misquito dive-fishers, including through the reinforcement of the presence and activities of the labour inspection services.

Finally, the Committee encourages the Government to continue having recourse to ILO technical assistance in relation to all the matters raised.

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