Indigenous Minority Rights: Accord for a Firm and Lasting Peace
Agreement on Identity and Rights of Indigenous Peoples (Mexico City, 6 May 1996)
I. Identity of Indigenous Peoples
1. Recognition of the identity of the indigenous peoples is fundamental to the construction of a national unity based on respect for and the exercise of political, cultural, economic and spiritual rights of all Guatemalans.
2. The identity of the peoples is a set of elements which define them and, in turn, ensure their self-recognition. In the case of the Mayan identity, which has shown an age-old capacity for resistance to assimilation, those fundamental elements are as follows:
(a) Direct descent from the ancient Mayas;
(b) Languages deriving from a common Mayan root;
(c) A view of the world based on the harmonious relationship of all elements of the universe, in which the human being is only one additional element, in which the earth is the mother who gives life and maize is a sacred symbol around which Mayan culture revolves. This view of the world has been handed down from generation to generation through material and written artifacts and by an oral tradition in which women have played a determining role;
(d) A common culture based on the principles and structures of Mayan thought, a philosophy, a legacy of scientific and technical knowledge, artistic and aesthetic values of their own, a collective historical memory, a community organization based on solidarity and respect for one’s peers, and a concept of authority based on ethical and moral values; and
(e) A sense of their own identity.
3. The multiplicity of socio-cultural groups of the Maya people, which include the Achi, Akateco, Awakateko, Chorti, Chuj, Itza, Ixil, Jakalteco, Kanjobal, Kaqchikel, Kiche, Mam, Mopan, Poqomam, Poqomchi, Q’eqchi, Sakapulteko, Sikapakense, Tectiteco, Tz’utujil and Uspanteco, has not affected the cohesion of their identity.
4. The identity of the Maya people, as well as the identities of the Garifuna and Xinca peoples is recognized within the unity of the Guatemalan nation and the Government undertakes to promote, in the Guatemalan Congress, a reform of the Guatemalan Constitution to that effect.
II. Struggle Against Discrimination
A. Struggle against de jure and de facto discrimination
1. To overcome the age-old discrimination against indigenous peoples the assistance of all citizens will be needed in the effort to change thinking, attitudes and behaviour. This change must begin with a clear recognition by all Guatemalans of the reality of racial discrimination and of the compelling need to overcome it and achieve true peaceful coexistence.
2. For its part, with a view to eradicating discrimination against the indigenous peoples, the Government shall take the following measures:
(a) Promote in the Guatemalan Congress, the classification of ethnic discrimination as a criminal offence;
(b) Promote a review by the Guatemalan Congress of existing legislation with a view to abolishing any law or provision that could have discriminatory implications for the indigenous peoples;
(c) Widely disseminate information on the rights of the indigenous peoples through education, the communications media and through other channels; and
(d) Promote the effective protection of such rights. To that end, promote the creation of legal offices for the defence of indigenous rights and the installation of popular law offices to provide free legal assistance for persons of limited economic means in municipalities in which indigenous communities are prevalent. Furthermore, the Office of the Counsel for Human Rights and other organizations for the protection of human rights are urged to give special attention to the protection of the rights of the Maya, Garifuna and Xinca peoples.
C. International instruments
International Convention on the Elimination of All Forms of Racial Discrimination
1. The Government undertakes to promote, in the Guatemalan Congress, a bill incorporating the provisions of the Convention in the Penal Code.
2. Since Guatemala is a party to the Convention it undertakes to use all available means aiming at recognition of the Committee on the Elimination of Racial Discrimination, as provided in article 14 of that Convention.
Indigenous and Tribal Peoples Convention, 1989 (ILO Convention No. 169)
3. The Government has transmitted to the Guatemalan Congress, for its approval, Convention No. 169 of the International Labour Organization and will accordingly promote approval of that Convention by the Congress. The parties urge the political parties to facilitate approval of the Convention.
Draft declaration on the rights of indigenous peoples
4. The Government shall promote approval of the draft declaration on the rights of indigenous peoples in the appropriate forums of the United Nations, in consultation with the indigenous peoples of Guatemala.
IV. Civil, Political, Social and Economic Rights
A. Constitutional framework
The Government of Guatemala undertakes to promote a reform of the Constitution in order to define and characterize the Guatemalan nation as being of national unity, multi-ethnic, multicultural and multilingual.
B. Local indigenous communities and authorities
1. Recognition is accorded to the importance the Maya and other indigenous communities have had and continue to have in the political, economic, social, cultural and spiritual spheres. Their cohesion and dynamism have enabled the Maya, Garifuna and Xinca peoples to preserve and develop their culture and way of life, despite the discrimination to which they have been subjected.
2. Bearing in mind the constitutional commitment of the State to recognize, respect and promote these forms of organization which are peculiar to the indigenous communities, recognition is accorded to the role of the community authorities that were constituted in accordance with the customary norms of the communities, in the management of their affairs.
3. Recognizing the role of the communities, within the framework of municipal autonomy, in exercising the right of indigenous peoples to determine their own development priorities, particularly in the fields of education, health, culture and the infrastructure, the Government undertakes to strengthen the capacity of such communities in this area.
4. To this end, and in order to promote the participation of the indigenous communities in the decision-making process in all matters which affect them the Government shall promote a reform of the Municipal Code.
5. That reform shall be promoted in accordance with the conclusions adopted by the commission on reform and participation, established in section D, paragraph 4, of this part in the following areas, within the framework of municipal autonomy and the legal provisions granting indigenous communities the right to manage their internal affairs in accordance with their customary norms, as mentioned in section E, paragraph 3, of this part:
(a) Definition of the status and legal capacity of indigenous communities and their authorities constituted in accordance with traditional norms;
(b) Definition of the modalities concerning respect for customary law and all matters related to the habitat in the discharge of municipal functions, taking into consideration, where necessary, the situation of linguistic, ethnic and cultural diversity of the municipalities;
(c) Definition of the modalities for promoting the equitable distribution of government expenditure, including the percentage of the State’s general budget of regular revenue which is transferred annually to the municipalities, among the communities, indigenous or non-indigenous, that make up the municipality, strengthening the capacity of those communities to manage resources and to be the instruments of their own development; and
(d) Definition of the modalities for communities to join together in the defense of their rights and interests and the conclusion of agreements for the design and implementation of communal and regional development projects.
Taking account of the advisability of having a regional administration based on far-reaching decentralization and deconcentration, the pattern of which reflects economic, social, cultural, linguistic and environmental criteria, the Government undertakes to regionalize the administration of the educational, health and cultural services of the indigenous peoples on the basis of linguistic criteria; in addition, it undertakes to facilitate the effective participation of community representatives in the management of education and culture at the local level in order to guarantee efficiency and relevance.
D. Participation at all levels
1. It is recognized that the indigenous peoples have been excluded from the decision-making process in the country’s political life, so that it is extremely difficult, if not impossible, for them freely and fully to express their demands and defend their rights.
2. In this connection, it is reaffirmed that the Maya, Garifuna and Xinca peoples have the right to create and manage their own institutions, to control their development and to have a genuine opportunity freely to exercise their political rights. It is also recognized and reaffirmed that the free exercise of these rights gives validity to their institutions and strengthens the unity of the nation.
3. Consequently, it is necessary to institutionalize the representation of indigenous peoples at the local, regional and national levels and to ensure their free participation in the decision-making process in the various areas of national life.
4. The Government undertakes to promote legal and institutional reforms to facilitate, regulate and guarantee such participation. It also undertakes to plan such reforms with the participation of representatives of the indigenous organizations through the establishment of a joint commission on reform and participation, made up of representatives of the Government and of the indigenous organizations.
5. Without limiting its mandate, the commission may consider reforms or measures in the following areas:
(a) Mandatory mechanisms for consultation with the indigenous peoples whenever legislative and administrative measures likely to affect the Maya, Garifuna and Xinca peoples are being considered;
(b) Institutional forms of individual and collective participation in the decision-making process, such as advisory, consultative or other bodies that ensure a permanent dialogue between organs of the State and the indigenous peoples;
(c) Institutions representing the indigenous peoples which defend the interests of the indigenous peoples at the regional and/or national level and which have statutes that ensure their representativity and powers that guarantee the adequate defence and promotion of those interests, including the power to make proposals to the executive and legislative bodies; and
(d) Guarantee of free access by indigenous peoples to the various branches of public service, promoting their appointment to posts within the local, regional and national government administrations whose work most directly concerns their interests or whose activities are limited to predominantly indigenous areas.
E. Customary law
1. The traditional norms of indigenous peoples have been and continue to be an essential element for the social regulation of the life of the communities and, consequently, for the maintenance of their cohesion.
2. The Government recognizes that both the failure of national legislation to take account of the customary norms which govern life in the indigenous communities and the lack of access by indigenous peoples to the resources of the national judicial system have resulted in the denial of rights, in discrimination and in marginalization.
3. To strengthen the security before the law of the indigenous communities, the Government undertakes to promote, before the legislative organ and with the participation of indigenous organizations, the development of rules of law which would recognize the right of the indigenous communities to manage their own internal affairs in accordance with their customary norms, provided that the latter are not incompatible with the fundamental rights defined by the national legal system or with internationally recognized human rights.
4. In cases where the intervention of the courts is required, and in particular in criminal matters, the competent authorities should take fully into account the traditional norms governing the communities.
To this end, the Government undertakes to take the following measures:
(a) Propose, with the participation of representatives of indigenous organizations, legal provisions calling for the inclusion of cultural expertise and the development of mechanisms which would permit the community authorities to indicate the customs which constitute their set of internal norms; and
(b) Promote, in coordination with Guatemalan universities, professional associations and indigenous organizations, a continuing program for judges and officers of the court (Ministerio Público) on the culture and identifying features of the indigenous peoples and, in particular, an understanding of the norms and mechanisms which govern their community life.
5. To ensure the access of indigenous peoples to the resources of the national legal system, the Government undertakes to promote free legal advisory services for those with limited economic resources and reiterates its obligation to make court interpreters available to the indigenous communities, free of charge, thus ensuring the application of the principle that no one may be judged without having had the assistance of interpretation into his own language.
6. The Government, in cooperation with indigenous organizations, national universities and competent professional associations, shall promote the systematic and in-depth study of the values and procedures of the traditional system of norms.
F. Rights relating to land of the indigenous peoples
1. The rights relating to land of the indigenous peoples include both the communal or collective and the individual tenure of land, 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 title, protection, recovery, restitution and compensation for those rights.
2. The 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 "Social and economic issues and the agrarian question", as one of the considerations to be taken into account in connection with the reform of the land tenure structure.
3. However, 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 their development.
4. Recognizing 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 concerned.
Regularization of the land tenure of indigenous communities
5. The 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.
Land tenure and use and administration of natural resources
6. The Government shall adopt or promote the following measures:
(a) Recognize and guarantee the right of access to lands and resources which are not occupied exclusively by communities but to which the latter have historically had access for their traditional activities and their subsistence (rights of way, such as passage, wood-cutting, access to springs, etc., and use of natural resources) and for their spiritual activities;
(b) Recognize and guarantee the right of communities to participate in the use, administration and conservation of the natural resources existing in their lands;
(c) Secure the approval of the indigenous communities prior to the implementation of any project for the exploitation of natural resources which might affect the subsistence and way of life of the communities. The communities affected shall receive fair compensation for any loss which they may suffer as a result of these activities; and
(d) Adopt, in cooperation with the communities, the measures necessary for the protection and preservation of the environment.
Acquisition of land for the development of indigenous communities
8. The Government shall take the necessary measures, without detriment to peasant smallholdings, to discharge its constitutional mandate to provide State lands for the indigenous communities which need them for their development.
Legal protection of the rights of indigenous communities
9. In order to facilitate the defense of the aforementioned rights and to protect the communities effectively, the Government undertakes to adopt or promote the following measures:
(a) Develop legal rules recognizing the right of indigenous communities to administer their lands in accordance with their customary norms;
(b) Promote an increase in the number of courts dealing with land cases and expedite procedures for the settlement of those cases;
(c) Urge faculties of law and the social sciences to strengthen the agrarian law component of the curriculum and include a knowledge of the relevant customary norms;
(d) Establish competent legal advisory services to advise on land claims;
(e) Provide the indigenous communities with the services of interpreters, free of charge, in respect of legal matters;
(f) Promote the widest dissemination, within indigenous communities, of information about land rights and the legal recourses available; and
(g) Eliminate any form of discrimination against women, in fact or in law, with regard to facilitating access to land, housing, loans and participation in development projects.
10. The Government undertakes to give the fulfillment of the undertakings set out in this section F the priority which the situation of insecurity and urgency that characterize the land problems of the indigenous communities deserves. To that end, the Government shall, in consultation with the indigenous peoples, establish a joint commission on the rights relating to land of the indigenous peoples to study, devise and propose more appropriate institutional arrangements and procedures. The commission shall be composed of representatives of the Government and of indigenous organizations.
V. Joint Commissions
With regard to the composition and functioning of the commission on education reform referred to in part III, section G, paragraph 5, the commission on reform and participation referred to in part IV, section D, paragraph 4, and the commission on rights relating to land of the indigenous peoples referred to in part IV, section F, paragraph 10, the parties agree as follows:
(a) The commissions shall be composed of an equal number of representatives of the Government and representatives of indigenous organizations;
(b) The number of members of the commissions shall be established in consultations between the Government and the Maya sectors of the Assembly of Civil Society;
(c) The Maya sectors of the Assembly of Civil Society shall convene the Maya, Garifuna and Xinca organizations interested in participating in the said commissions for them to designate indigenous representatives to them;
(d) The commissions shall adopt their conclusions by consensus;
(e) The commissions shall base their operation on the mandates set out in this agreement; and
(f) The commissions may request the advice and cooperation of national and international organs relevant to the discharge of their mandates.
VII. Final Provisions
1. In accordance with the Framework Agreement, the Secretary-General of the United Nations is requested to undertake the verification of the implementation of this agreement, and it is suggested that, in planning the verification mechanism, he should take into account the views of indigenous organizations.
2. The aspects of this agreement which relate to the human rights recognized in the legislation of Guatemala and in the treaties, conventions and other international instruments in that area to which Guatemala is a party, shall have immediate force and application. It is requested that the verification should be carried out by the United Nations Mission for the Verification of Human Rights and of Compliance with the Comprehensive Agreement on Human Rights in Guatemala (MINUGUA).
3. This agreement shall form part of the firm and lasting peace agreement and, except as otherwise provided in the previous paragraph, shall enter into force at the time of the signing of the latter agreement.
4. This agreement shall be disseminated as widely as possible both in Spanish and in the principal indigenous languages. To this end, international financial cooperation is requested.
Agreement on Constitutional Reforms and the Electoral Regime (Stockholm, 7 December 1996)
I. Constitutional Reforms
A. Constitutional reforms contained in the Agreement on Identity and Rights of Indigenous Peoples
4. This Agreement provides for constitutional recognition of the identity of the Maya, Garifuna and Xinca peoples and, from that standpoint, of the need to define and characterize the Guatemalan State as being one of national unity and multi-ethnic, multicultural and multilingual in nature. It is not just a matter of recognizing the existence and identity of various ethnic groups, as article 66 of the Constitution currently does, but of recognizing that the very make-up of society, without prejudice to the unity of the nation and the State, is characterized in that way; this also entails recognizing the specific nature of indigenous people's spirituality as an essential component of their world view and of the transmission of their values, and granting official constitutional recognition to indigenous languages as one of the mainstays of national culture and as a vehicle for acquiring and transmitting indigenous people's world view, knowledge and cultural values.
Identity of the Maya, Garifuna and Xinca peoples
5. Sponsor in the Congress of the Republic express constitutional recognition of the identity of the Maya, Garifuna and Xinca peoples, within the unity of the Guatemalan nation.
In compliance with the agreements, Guatemala ratified International Labor Organization Convention 196 on Indigenous and Tribal Peoples.1
The general situation of widespread discrimination against indigenous peoples, particularly with regard to the justice system, did not change much during the initial periods of the implementation of the agreements.2
The Agreement on the Implementation, Compliance and Verification Timetable for the Peace Agreements stipulated that the constitutional reforms related to the rights of indigenous peoples should be presented to the Congress of the Republic for ratification by 15 April, but the Follow-up Commission rescheduled the deadline for 15 May. The Guatemalan government presented the draft constitutional amendments to the Congress on 15 May, thus technically fulfilling the terms of the agreements.3
The Government created the Joint Commission for Reform and Participation in September 1997.4
- 1. “Report of the United Nations Verification Mission in Guatemala (MINUGUA) for the Consultative Group Meeting for Guatemala,” United Nations Verification Mission in Guatemala – MINUGUA, January 18, 2002.
- 2. “Seventh Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/52/330), September 10, 1997.
- 3. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/51/936), June 30, 1997.
- 4. “The Indigenous Peoples of Guatemala: Overcoming Discrimination in the Framework of the Peace Agreements, Verification Report," United Nations Verification Mission in Guatemala (MINUGUA), September 2001.
All 50 constitutional amendments submitted by the Government were approved by the Congress in October 1998. The constitution mandated that they then be submitted to the people for a referendum, scheduled for May 1999.5
- 5. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/54/526), November 11, 1999.
The referendum for the full package of constitutional amendments occurred on 16 May 1999. With low turnout, voters denied the proposed amendments related to the redefinition of the nation and the formal recognition of indigenous peoples and their rights, along with all other proposed amendments. As provisions for improved rights and protections for indigenous peoples were featured prominently in the referendum, this outcome indicated that the country was far from reconciled after the formal end of the civil war.6
The Follow-up Commission developed plans to implement commitments on the recognition and rights of indigenous people through new legislation rather than constitutional reforms.7
When the Commission for the Follow-up of the Peace Agreements agreed to move the final deadline for compliance from 2000 to 2004, it confirmed that most of the stipulations related to the rights of indigenous peoples were still pending. One important concern was the disenfranchisement of indigenous persons, especially women in rural communities, from political participation. A continued lack of documentation (even after the Temporary Law of Personal Documentation was passed in October 2000) was one concrete obstacle, but many other less tangible factors contributed to the social marginalization of indigenous communities and kept them from becoming more involved in elections, civil administration and the justice system.8
The Government faltered in its implementation of policies related to rural development. Including measures to codify the land rights of indigenous communities. The agricultural policy the Government set for 2000-2004 lacked guarantees for multiculturalism or procedures to ensure indigenous peoples would be involved in decisions about their own development.9
The provisions in the Agreements for indigenous communities to own and manage their land were still not honored. While indigenous practices traditionally worked well for the sustainable use of natural resources, the Government's backward and ineffective rural development policies undermined both indigenous rights and a sustainable ecology.10
By September 2001, only the Ministry of Education had recognized the right of indigenous persons to wear their traditional attire. However, the Ministry of Education had so far failed to implement comprehensive intercultural and bilingual education programs or improve indigenous communities' access to education at the levels stipulated by the agreements. Furthermore, the judicial system had largely failed to adapt to guarantee equal access and equal rights for indigenous persons, and the provisions in the agreement to facilitate indigenous communities' access to communications media had not been implemented either.11
- 10. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/55/973), June 1, 2001.
- 11. “The Indigenous Peoples of Guatemala: Overcoming Discrimination in the Framework of the Peace Agreements, Verification Report," United Nations Verification Mission in Guatemala (MINUGUA), September 2001.
The Social Security Institute did not as yet extend services to indigenous people.12
The extended timetable for the implementation of the Agreements was yet unfulfilled. The Government made no effective moves to address the root causes of the armed conflict or seek reconciliation with the victims of the Armed Forces' past genocidal actions.13
Congress passed legislation reforming the penal code to criminalize racial and other forms of discrimination, and to enfranchise the indigenous population in local level government and public services.14
- 12. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/55/1003), July 10, 2002.
- 13. “Thirteenth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/57/336) August 22, 2002.
- 14. “United Nations Verification Mission in Guatemala: Report of the Secretary-General,” United Nations General Assembly (A/59/746), March 18, 2005; “Information Received from Governments: Guatemala,” United Nations Economic and Social Council, Permanent Forum on Indigenous Issues (E/C.19/2010/12/Add.8), March 3, 2010.
In its final human rights report, MINUGUA gave an overwhelmingly negative evaluation of the Government's actions for indigenous persons: “The isolation and discrimination faced by Guatemala's indigenous peoples—half the country's population—have not visibly changed since 1997... Indigenous populations, particularly women, remain disproportionately poor, suffer high rates of illiteracy and health and social problems, largely as a result of lack of access to health care, education, decent housing, employment and social services."15
- 15. “Fourteenth Report on Human Rights of the United Nations Verification Mission in Guatemala,” United Nations General Assembly (A/58/566) November 10, 2003, Paragraph 21.
The Government failed to comply with ILO Convention No. 169, which requires consultation with indigenous peoples in all legislative or administrative measures that might impact them.16
- 16. “Report of the High Commissioner for Human Rights on the Situation of Human Rights in Guatemala,” United Nations Economic and Social Council (E/CN.4/2006/10/Add.1), February 1, 2006.
Ten years after it was signed, the Agreement on Identity and Rights of Indigenous Persons had the lowest degree of implementation of all the agreements. Racial discrimination remained a predominant problem in Guatemalan society.17
- 17. Ibid.
After facing discriminatory practices in previous elections, approximately one million Guatemalans, many of them indigenous persons, were able to register to vote for the first time.18
On 12 October 2009 (Columbus Day), approximately 20,000 indigenous citizens participated in protests against the Government's failure to protect indigenous rights.19