A/HRC/39/17/Add.3
the rights of indigenous peoples, such as the Forests Act, the Hydrocarbons Act and the
General Electricity Act.6
Development of jurisprudence
23.
The Special Rapporteur notes that some progress has been made with regard to
jurisprudence on the rights of indigenous peoples as a result of rulings by the Constitutional
Court that international human rights standards form part of the constitutional corpus. A
number of judgments have recognized the right to collective ownership and the role of the
indigenous authorities and systems of justice. Relevant cases include those of the
Indigenous Municipality of Chichicastenango in Quiché, the indigenous community of
Chuarrancho in Guatemala, the eight Q’eqchi’ communities of Sierra Santa Cruz, El Estor
and Livingston in Izabal, the Cho’orti’ communities of Camotán in Chiquimula, the Guild
of San José Poaquil in Chimaltenango, the Mam community of Comitancillo in San Marcos
and the Ixil community of Nebaj in Quiché.
24.
It should be noted that, in various rulings referred for consultation, international
standards were correctly included in the courts’ reasoning but not in the measures set out in
the ruling and there are clear gaps in the implementation of legislation to monitor
compliance with treaties and to ensure that any action taken is reasonable. These
discrepancies do not provide indigenous peoples with the necessary legal security for their
rights, nor do they help to resolve the basic problems that gave rise to claims. An additional
difficulty is the repeated failure to comply with the rulings that are handed down.
Institutional framework and public policies
25.
Guatemala has a number of State institutions dealing with indigenous peoples, some
established on the basis of the Peace Agreements, such as the Office for the Defence of
Indigenous Women’s Rights and the Presidential Commission on Discrimination and
Racism against Indigenous Peoples. In 2017, the Public Prosecution Service and the
judiciary established the Indigenous Peoples’ Secretariats and there is the Indigenous
Peoples Committee in the Congress. In addition, 34 public institutions have set up
“indigenous windows”. According to information received, indigenous institutions were
allocated only 0.12 per cent of the national budget in 2017.
26.
Representatives of these institutions provided information on the work that they do.
A number of them operate on an inadequate legal basis, which leaves them dependent on
the goodwill of whatever government is in power, with little political weight and a shortage
of staff and funding. After two decades of existence, it is worth asking whether the
existence of so-called indigenous institutions is not perpetuating the segregation of
indigenous issues in State activity and the tendency to see them as marginal.
27.
Guatemala has adopted various public policies, strategies and programmes aimed at
indigenous peoples or directly affecting them in a number of different areas. The National
Compensation Programme was adopted in 2003 to compensate victims of the armed
conflict. The State policy on coexistence and the elimination of racism and racial
discrimination was approved in 2006. There is a project to foster and safeguard Garifuna
culture, but it was drawn up without Garifuna participation and has no budget. Meanwhile,
Bill No. 4335 on the establishment of a Garifuna development institute is awaiting
approval.
28.
In view of the fact that the indicators show an increase in poverty among indigenous
people, alongside a rise in inequality and the hoarding of land, it is clear that these actions
have not produced effective results. Indigenous organizations have stated that, on the
whole, measures and programmes have been designed without proper participation by
indigenous people and do not respect their right to their own development models or fit in
with their own visions. Moreover, they have no political relevance and lack sufficient
funding.
6
6
A/HRC/18/35/Add.3, paras. 22, 23, 55 and 56.
GE.18-13268