Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

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

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the observations of the Honduran National Business Council (COHEP) received in 2018, in September 2019 and on 1 October 2020. The Committee notes that the International Organisation of Employers (IOE) supported the 2018 observations of the COHEP and, in September 2019, sent General observations on the application of the Convention. The Committee notes the Government’s replies in this regard. The Committee also notes the observations of the General Confederation of Workers (CGT) and the Workers’ Confederation of Honduras (CTH), received on 5 October 2020, and the Government’s reply to those received on 30 October 2020.

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

Article 3 of the Convention. Human rights. In its previous comments, the Committee noted with deep concern, as did the Conference Committee in its conclusions of 2016, the information regarding murders, threats and violence against representatives and defenders of the rights of indigenous peoples, as well as the climate of impunity. The Government was firmly urged to take the necessary measures to provide adequate protections for members of indigenous communities and their representatives against any acts of violence or threats, to investigate the reported murders and acts of violence and provide information in that respect.

In its report, the Government refers in general terms to the security and protection measures taken by the General Directorate of the Protection System (DGSP) in relation to several indigenous and rural communities, including police measures and measures for the installation of infrastructure and technology for human rights defenders in their own communities. The Government also refers to the adoption of preventive measures in the form of training for local authorities and awareness-raising activities on the importance of the work of defenders of indigenous peoples. In this respect, the Committee notes that, among the special prosecutors, in 2018, the Office of the Special Prosecutor for the Protection of Human Rights Defenders, Journalists, Media Representatives and Justice Officials was established.

The Committee notes with regret that the Government has not provided more detailed information on the specific measures adopted in relation to the investigations conducted and the legal proceedings in process concerning the acts of violence, including murder, against representatives and defenders of indigenous peoples. In this respect, the Committee notes in relation to the murder of Ms Berta Cáceres (former president of the Civic Council of Popular and Indigenous Organizations of Honduras (COPINH)), to which it referred in its previous observation, that, according to information from the judicial authorities and the Public Prosecutor’s Office, on 29 November 2018, the First Chamber of the Trial Court with national jurisdiction found guilty seven citizens as co-perpetrators of the murder. The Committee also notes that, in December 2019, the Special Prosecutor for Crimes against Life requested that a case be opened against a citizen accused of instigating the murder of Ms Berta Cáceres.

The Committee notes that, in his 2019 report, the Special Rapporteur on the situation of human rights defenders in Honduras recognizes persons defending the rights of indigenous peoples as one of the specific groups of human rights defenders who are at risk. The Rapporteur notes that the threats made against indigenous peoples are essentially linked to their efforts to defend their land and natural resources, fight racism and discrimination and claim their economic, social and cultural rights and their right to access to justice. He indicates that indigenous activists of the Lenca, Maya, Tolupán, Garifuna, Nahua, Pech Tawahka and Misquito peoples frequently face death, prosecution, stigmatization, judicial harassment and discrimination for fighting for the rights of their peoples and observes that, “The vast majority of murders and attacks targeting rights defenders go unpunished; if investigations are launched at all, they are inconclusive.” (A/HRC/40/60/Add.2).

In its supplementary information provided in 2020, the Government indicates that the DGSP has improved the Matrix for the evaluation of collective and individual risks and the identification of risks through constant monitoring. Through the Matrix, the characteristics of the population are determined and technical safety schemes implemented. The Prevention and Contextual Analysis Unit (UPAC), which forms part of the National Prevention Mechanism, has also developed four prevention plans which analyse the situation and set out prevention measures for certain indigenous communities, including the Lenca community in the Department of La Paz, the Tolupán people of Montana de la Flor in the Department of Francisco Morazán and the Garifuna communities of the Department of Cortés. The Government adds that between 2017 and 2018, the Office of the Public Prosecutor received 18 complaints of crimes against the life of members of indigenous and Afro-Honduran peoples, following which judicial action was taken in six cases, with six convictions. A total of 45 complaints were also received of threats, leading to judicial action in two cases and two convictions. The Government further reports that, as a consequence of the violent deaths of members of indigenous and Afro-Honduran peoples (a murder in Warunta, in the municipality of Ahuas, Department of Gracias a Dios, and multiple murders in the community of Santo Tomás, Gualcinse, Department of Lempira), as well as threats against members of the Lenca people in La Iguala, Department of Lempira, and in the Department of La Paz, the Special Prosecutor for ethnic matters and cultural heritage has called for the implementation of protection measures.

With reference to the seven persons found guilty of the murder of Bertha Cáceres, the Government indicates that four of them were sentenced to imprisonment for 50 years and the other three for 30 years. The trial of the person accused of instigating the crime (the former Executive President of Desarrollos Energéticos S.A. (DESA)) is still pending.

The Committee takes due note of this information on the initiatives to provide protection to the members of indigenous and Afro-Honduran peoples who are the victims of threats. In this regard, the Committee requests the Government to provide information on the protection measures adopted at the request of the Special Prosecutor for ethnic matters and cultural heritage as a consequence of the violent deaths and threats against members of indigenous and Afro-Honduran peoples, with an indication of the types of measures and the persons benefiting.

The Committee urges the Government to continue taking the necessary measures to foster a climate free from violence in which the physical safety and psychological well-being of members of indigenous communities and their representatives are sufficiently protected, and the full and effective exercise of their human and collective rights is guaranteed, as well as their access to justice. While noting and welcoming the conviction of the perpetrators of the murder of Ms Berta Cáceres, the Committee urges the Government to take the appropriate measures to ensure that the instigators are held accountable and penalized. The Committee requests the Government to continue providing detailed information on the other complaintsof acts of violence and threats against indigenous peoples and Afro-Hondurans and their representatives in the context of claiming their economic, social and cultural rights; as well as the investigations and proceedings initiated.

Articles 6 and 7. Appropriate consultation and participation procedures. The Committee recalls that, along with the Conference Committee in 2016, it urged the Government to take the necessary steps to establish appropriate consultation and participation procedures in accordance with the Convention and ensure that peoples covered by the Convention are consulted and are able to participate in an appropriate manner in the formulation of such procedures. The Committee noted that, between May and October 2016, workshops were held with the nine indigenous and Afro-Honduran peoples for dialogue on a preliminary draft Bill on prior, free and informed consultation with indigenous peoples and that the process was marked by the absence of representative organizations, such as the Fraternal Afro-Honduran Organization (OFRANEH) and the COPINH.

In its 2019 report, the Government indicates that, following the consultation process on the draft Bill, a national workshop was organized with the participation of the organizations of the populations concerned, which submitted a draft with the contributions of eight of the nine indigenous and Afro-Honduran peoples (the Lenca peoples withdrew from the process). The OFRANEH and the COPINH also did not participate in the dialogue. The Government indicates that, since that time, it has remained open to any organization that wishes to express its opinion on the revised draft Bill on consultation and adds that, on 14 July 2018, it also held a meeting with the Confederation of Indigenous Peoples of Honduras (CONPAH), which brings together all the indigenous and Afro-Honduran peoples. At that meeting, it was reported that the Government had referred the draft Bill to the National Congress, which subsequently established a Special Advisory Committee on the Consultation Act. The Government also reports that it has benefited from the technical comments of the International Labour Office.

In the supplementary information provided in 2020, the Government reports on the action taken during the state of emergency (declared on 16 March 2020) to disseminate the precise and detailed content of the Bill to the sectors involved, obtain technical opinions and seek cooperation in the process of its dissemination, consultation and adoption. The Government indicates that a map of indigenous and Afro-Honduran institutions is being prepared to be ready when the process of consultation commences for the adoption of the Bill. The Government observes that the state of emergency has involved restrictions on freedom of movement and the right of assembly, as a result of which it is not possible to begin a consultation process with all indigenous and Afro-Honduran peoples. While outreach meetings have been held through video conferences with certain representatives of indigenous peoples, not everyone could participate. The Government also provides information on the consultation processes undertaken by the State: the consultation process with the Miskito Territorial Council of DIUNAT on the implementation of Solar Power Project 90 and with the Miskito Territorial Councils on the oil extraction project on the Miskito coast.

The Committee notes that, in its 2019 observations, the COHEP reiterates its support for the adoption of an Act on prior, free and informed consultation, developed in accordance with the Convention and following dialogue with all the social partners. In its supplementary observations of 2020, the COHEP indicates that in February 2020 it participated in a meeting with the Legislative Steering Committee of the National Congress, where it was able to express its position concerning the Bill, and indicated in particular that the Act should only regulate matters related to the Convention; that consultation is not binding, as the final decision lies with the State; and that if the Act is not adopted, there would be no foreign or national investment in projects involving the development of communities due to the legal insecurity resulting from the legislative void. The COHEP adds that it has requested the Government to consult the representatives of the most representative organizations of workers and employers. Furthermore, in response to the 2020 observations of the CGT and the CTH indicating that there has been no discussion of the subject of the Convention in the Economic and Social Council (CES), the Government indicates that, within the framework of the CES, a Technical Tripartite Committee was established to discuss the Bill on prior, free and informed consultation, in which only the employers and the Government provided credentials for their representations. The Government adds that working meetings were held to analyse, discuss and draw up the Bill before its referral to the National Congress.

The Committee takes due note of the information provided and encourages the Government to continue taking the necessary measures with a view to the establishment of appropriate procedures for consultation with peoples covered by the Convention on any legislative or administrative measures likely to affect them, in accordance with the Convention. In this respect, the Committee considers it of the utmost importance that the Act adopted is the result of a process of full, free and informed consent with all the indigenous and Afro-Honduran peoples and therefore urges the Government 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. Until the adoption of the Act, the Committee once again requests the Government to continue providing detailed information on the consultation processes held in relation to measures that directly affect indigenous peoples.

Articles 20, 24, and 25. Protection of the rights of the Misquito people. In its previous comments, the Committee requested 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 and on the possibility of regulating dive-fishing. The Government indicates that is has been developing comprehensive compensation actions that go beyond the individual compensation of those affected by dive-fishing and aim to benefit the entire Misquito community. These compensation procedures are developed in collaboration with the victims (divers with disabilities) and the representative organizations of the Honduran Misquito population so as to guide the State in the implementation of projects that genuinely meet their needs. In relation to measures adopted in the field of health, the Government refers to: a cooperation agreement to provide comprehensive health services to the population engaged in dive-fishing activities with priority given to divers suffering from decompression sickness; a project to establish a centre for hyperbaric and diving medicine to provide preventive, therapeutic and rehabilitative medical care to divers with sequelae; and the commissioning of a water ambulance. The Government also indicates that: 33 scholarships for primary, secondary and university education have been granted to the children of divers with disabilities or deceased divers (148 scholarships for boys, girls and young persons and scholarships for higher education for 500 young persons between 2016 and 2019); a project for the construction of social housing is being carried out in various municipalities of the Gracias a Dios department; a fund has been established for the execution of different productive projects, in consultation with the Misquito population; and a total of 177 labour inspections have been carried out on dive-fishing boats which led to the reduction of occupational risks and improved productivity.

The Committee notes that the United Nations Committee on the Elimination of Racial Discrimination, in its concluding observations of 2019, expressed concern regarding the situation of Misquito divers, who continue to be the victims of precarious working conditions, without adequate occupational safety measures, and the increase in the number of divers who are victims of accidents due to underwater fishing (CERD/C/HND/CO/6-8). The Committee also notes that, during its visit to the Mosquitia region, the Inter-American Commission on Human Rights (IACHR) observed concerning scenes of poverty, unemployment, a lack of health and energy services and a dearth of water sources and sanitation.

The Committee welcomes the comprehensive approach adopted by the Government in relation to the situation of Misquito divers, which seeks to grant comprehensive compensation to the victims of dive-fishing and improve the living and working conditions of the members of the Misquito community. The Committee encourages the Government to continue taking special measures in this respect, indicating the results achieved and the challenges that remain in improving the working conditions of Misquito divers, the inspection of those conditions and the living conditions of the Misquito population. Please indicate the manner in which the members of the Misquito population participate in the formulation, application and evaluation of such measures.

The Committee is raising other matters in a request addressed directly to the Government, which reiterates the content of its previous request adopted in 2019.