Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 105th Session, May–June 2016)

The Committee notes the discussion held in the Conference Committee on the Application of Standards in June 2016. It also notes the observations made by the Single Confederation of Workers of Honduras (CUTH), received on 8 February 2016, and the Government’s reply to those observations, received on 15 June 2016. The Committee further notes the observations of the Honduran National Business Council (COHEP), supported by the International Organisation of Employers (IOE), as well as the observations of the International Trade Union Confederation (ITUC), both received on 31 August 2016. Finally, the Committee notes the joint observations of the ITUC, CUTH and the Trade Union Confederation of Workers of the Americas (CSA), received on 7 September 2016.

Article 3 of the Convention. Human rights. The Committee notes with deep concern that during the discussion of the application of the Convention in the Conference Committee, various speakers referred to murders, threats and violence against representatives and defenders of the rights of indigenous peoples, as well as the climate of impunity. The Conference Committee urged the Government to ensure the implementation of the Convention in a climate of dialogue and understanding, free from violence. The Government representative indicated that acts of violence are not tolerated and will not be tolerated, particularly against human rights defenders. The Committee notes that in its observations the ITUC quotes the United Nations Special Rapporteur on the rights of indigenous peoples who, in November 2015, expressed her deep concern at the generalized climate of violence and impunity suffered by many indigenous communities in the country. The ITUC deplores the murder of Ms Berta Cáceres, founder of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH), defender of the rights of indigenous peoples, and particularly of the Lenca people. The Committee also notes that in their joint observations the ITUC, CSA and CUTH denounce the climate of violence, threats, murders and systematic persecution of defenders of the rights of indigenous peoples, and refer in particular to the attacks against members of the COPINH, including the murder of two of its members in July 2016, and the threats, intimidation and murders of members of the Lenca and Tolupán communities. The trade unions indicate that these cases are not isolated and reflect a constant and generalized situation, in the absence of specific protection measures for defenders of indigenous peoples. The Committee notes the Government’s information in its report on: (i) the measures taken to investigate some of the murders denounced in the Tolupán indigenous community; (ii) the implementation in 2014–15 of precautionary measures intended to ensure the return to their communities of persons who had left their homes due to acts of harassment; and (iii) the police operations intended to ensure the safety of the communities. The Committee also notes the information provided by the Government on the action taken to identify those responsible for the murder of Berta Cáceres and to bring them to justice.

The Committee firmly urges the Government to continue taking all the necessary measures to provide adequate protection for members of indigenous communities and their representatives against any acts of violence or threats. The Committee requests the Government to continue taking the necessary measures to ensure that the competent authorities conduct investigations of the murders and acts of violence denounced and to provide detailed information on this subject, and on the judicial action taken and the penalties imposed on the perpetrators and instigators of such acts of violence.

Articles 6 and 7. Appropriate consultation and participation procedures. In its previous comments, the Committee requested the Government to provide information on current initiatives to establish appropriate procedures for consultation and participation. The Committee notes that the Conference Committee expressed concern at the lack of progress in relation to the necessary regulatory framework for prior consultation and urged the Government to regulate, without delay, in consultation with the social partners, the requirement to consult indigenous peoples so that such consultations are held in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.

The Committee notes the Government’s indication that in November 2015 a preliminary draft text of a Bill on prior, free and informed consultation of indigenous and Afro-Honduran peoples was prepared within the framework of the Inter-institutional Technical Commission on Convention No. 169, taking as a basis a draft text prepared by the Confederation of Indigenous Peoples of Honduras (CONPAH). The Government indicates that between May and October 2016, the preliminary draft was submitted for consultation with the Tolupán, Tawahka, Miskitu, Nahua, Lenca, Maya Chortí, Pech, English-speaking Afro-Honduran and Garífuna peoples, and their principal representative organizations. This process involved holding 17 workshops in the regions inhabited by the nine Indigenous and Afro-Honduran Peoples (PIAHs) recognized by the Government, respecting their languages, customs and cultures. The agendas of the workshops were agreed upon in consultation in advance so that all of the organizations would be clearly and transparently aware of the procedures in the workshops. The CONPAH was present in 16 workshops providing technical support and legal advice to the PIAHs. The Government indicates that the process was characterized by the absence of some representative organizations of the PIAHs, which have a large number of associations, such as the Fraternal Afro-Honduran Organization and the COPINH. The Government indicates that a bipartite meeting was held with workers’ representatives in January 2016. A meeting was also organized by the Government in October 2016 for employers and workers to inform them of the progress in the preliminary draft Bill and to gather their inputs that would be considered during the systematization process, but it was only attended by employers. Both employers and workers indicated that they would give an opinion when they had before them the outcome of the systematization process. The Government adds that it is engaged in continuous dialogue with the representative organizations of the PIAHs with a view to holding a national meeting with the objective of validating the proposed preliminary draft Bill, which will be improved with the participation of the PIAH and will subsequently be forwarded to the executive and legislative authorities for approval. The Government indicates that this preliminary draft Bill is intended to establish safeguards for the guarantees and full enjoyment of the rights of the PIAHs.

The Committee notes the disagreement expressed by the COHEP in its observations concerning the process of formulating the preliminary draft Bill, which only included participation by Government institutions and certain indigenous peoples, without the social partners being invited. Employers and workers were not taken into consideration, either in the development of the preliminary draft text, or in the consultations and discussions held on it. The COHEP indicates that it supports the adoption of a law on free and informed prior consultation drafted in accordance with the Convention and sent out for consultation with all the social partners. It adds that dialogue and consultation processes with indigenous communities in the areas of direct and indirect impact of projects during their development stage and prior to the execution of construction works are carried out through open forums, which are legal procedures envisaged in the Municipalities Act. According to the COHEP, such consultation is considered to constitute social dialogue on the project in relation to the environmental authority, through reports which record the compromises reached.

The Committee notes that the ITUC, CSA and CUTH, in their joint observations, consider that the current legislation does not offer guarantees of compliance with a process of due consultation with indigenous communities. The trade unions refer to decisions by the Inter-American Court of Human Rights, which emphasize the failure of Honduras to comply with the right to prior consultation. They consider that the adoption of regulations to give effect to the Convention in a genuine framework of dialogue, consultation and participation of the representative organizations of indigenous peoples is an urgent necessity. The trade unions observe in this regard that certain indigenous leaders of representative organizations withdrew from the consultation process on the draft legislation promoted by the Government, and that there are currently two Bills before the Congress.

The Committee urges the Government to establish appropriate consultation and participation procedures in accordance with the Convention and to take the necessary measures to ensure that indigenous peoples are consulted and are able to participate in an appropriate manner through their representative bodies in the formulation of these procedures, so that they can express their opinions and influence the final outcome of the process. The Committee trusts that the Government will encourage the development of a framework in which all of the parties concerned continue to make the necessary efforts to engage in constructive dialogue through procedures which enjoy their confidence. Until new appropriate procedures are adopted, the Committee requests the Government to provide detailed information on the consultation processes held in relation to measures that are likely to affect indigenous peoples, and on any complaints made by representatives of indigenous populations relating to violations of their rights, including to the Office of the Special Prosecutor for Ethnic Groups and the Cultural Heritage.

Articles 20, 24, and 25. Protection of the rights of the Misquito people. With reference to its previous comments on the need to ensure effective protection in relation to the conditions of employment and contracts of Misquito divers, the Committee welcomes the detailed information provided on the measures adopted within the framework of the Inter-Institutional Commission to Address and Prevent the Problem of Dive-fishing (CIAPEB). The Committee notes, for example: the development of care protocols for victims of dive-fishing with a view to ensuring that they receive comprehensive care from the health and social welfare services; the development of productive projects for the creation of new employment opportunities for disabled dive-fishers and their families; the holding of information meetings in the Department of Gracias a Dios; the inspections carried out on vessels engaged in underwater fishing, prior to the fishing season, with the objective of ensuring compliance with the minimum requirements set out in the General Regulations on Safety and Health in Underwater Fishing. The Committee requests the Government to continue providing information on the impact of the measures adopted to improve the protection and conditions of work of Misquito dive-fishers. The Committee also requests the Government to indicate whether measures have been adopted or are envisaged to regulate this activity, and on the manner in which the Misquito people has been consulted in this regard.

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