Guatemala. 10 years after the Peace Accords. Reports on Economic, Social and Cultural Rights

Transcription

1 Guatemala 10 years after the Peace Accords Reports on Economic, Social and Cultural Rights

2 Index INTRODUCTION 3 I. THE 1996 PEACE ACCORDS 4 A. The Accord on a Firm and Lasting Peace 4 B. Evaluation of the Peace Accords 5 2. GENERAL HUMAN RIGHTS SITUATION IN GUATEMALA 7 A. Human rights instruments 7 B. Human rights defenders 8 C. Conclusions SOCIO-ECONOMIC AND AGRARIAN SITUATION 13 A. Development: trade- or human-driven? 13 B. Informal economy 16 C. Maquilas 18 D. Social protection 21 E. Agrarian policies CONCLUSIONS AND RECOMMANDATIONS 26 Social Alert International, Guatemala 10 years after the Peace Accords, Reports on Economic, Social and Cultural Rights, May 2007, N 3. An electronic version of this document is available on-line: Photos: Bart Verstraeten World Solidarity Copying this document is authorised if the source is mentioned. Social Alert International aisbl Chaussée de Haecht Brussels Belgium info@socialalert.org Website: 2

3 Introduction The name Guatemala derives from the Nahuatl word Goathemala, or land of many trees ; it is a Central American country, bordered by Mexico to the Northwest, Belize and the Caribbean Sea to the Northeast, the Pacifi c Ocean to the South, with Honduras and El Salvador to the Southeast. It has an estimated population of 12.6 million1. Guatemala is a multi-ethnic, multicultural and multi-lingual nation. Indigenous people Xinca, Garifuna and Maya account for more than half of the population. The main languages are Spanish and 4 Mayan languages, namely Quiché, Cachiquel, Mam and Qeqchi from which many other Mayan languages are derived. The offi cial language is Spanish. Guatemala is a country of contrasts and contradictions. In the words of the Report of the Historical Clarifi cation Commission: Guatemala lived periods marked by beauty and dignity from the beginning of the ancient Mayan culture to the present day; its name has been glorifi ed through its works of science, art, and culture; by men and women of honour and peace, both great and humble; by its Nobel Laureates for Literature and Peace. However, in Guatemala, pages have also been written of shame and infamy, disgrace and terror, pain and grief: with the outbreak of the internal armed confrontation in 1962, Guatemala entered a tragic and devastating stage of its history, with enormous human, material and moral cost. 2 economic, social and cultural rights (Part III). The analysis starts with the commitments enshrined in the Peace Accords and confronts these with the fi ndings of the mission conducted by Social Alert International from 14 to 29 October Together with the concluding observations, the report formulates recommendations to give a new impetus to the implementation of the Peace Accords. 1 World Bank, Guatemala Data Profi le, World Development Indicators, April Guatemala Commission for Historical Clarifi cation (CEH), Report available at 3 This principle is closely related to the concept of human security, which links the freedom of fear (state security) with the freedom of want (socioeconomic security). Social Alert International and Pax Christi International currently run a project looking at how to improve the level of human security in situations of violent confl ict and human rights denial. In 1996, after 36 years of armed confl ict, the government of President Alvaro Arzú Irigoyen and the Unidad Revolucionaria Nacional Guatemalteca (hereafter referred to as URNG), signed the Peace Accords. The historical importance of the Peace Accords can hardly be overestimated: they are comprehensive in nature and embody the fundamental principle that a fi rm and lasting peace does not only depend on a ceasefi re and demilitarisation, but also requires the structural transformation of a society which is marked by century-old political polarisation and economic, social and cultural exclusion December 2006 marks the tenth anniversary of the Peace Accords. For this occasion, Social Alert International conducted a fi eld mission to Guatemala in order to verify to what extent the State and all other relevant stakeholders have implemented the Peace Accords. The key question is whether the relevant actors have lived up to the operative ceasefi re and demilitarisation as well as the substantive commitments transformation of Guatemala into a democratic State observing the Rule of Law and human rights and fostering human-centred development. Rather than an exhaustive analysis and assessment, this report provides a concise overview of the political, socio-economic and cultural situation in Guatemala what is while assessing it in the framework of the contents of the Peace Accords what should be. Starting with a brief description of the various Peace Accords and their contents (Part I), the report then focuses on two specifi c fi elds of interest: fi rst, the general human rights situation is considered, including the situation of those defending human rights (Part II). Second, the report reviews Guatemala s socio-economic and agrarian policies with a view to assessing the observance of 3

4 1. The 1996 Peace accords A. The Accord on a Firm and Lasting Peace The achievement of a lasting peace in Guatemala is the result of a long process whose origins date back to A landmark event was the conclusion of the Accord on a Firm and Lasting Peace, which was fi nally signed in Guatemala on 29 December 1996 and thereby ended more than three decades of armed confl ict. This Accord on a Firm and Lasting Peace 4 integrates a total of 10 agreements, which were negotiated and signed over the ten years of the peace process. Hereafter, a brief description of the content of these agreements is given. It should be noted that 6 agreements are substantial in nature and the other 4 operational 5. The Accord on a Firm and Lasting Peace mentions specifi cally that the fulfi lment of said accords is a historic commitment that cannot be waived Comprehensive Agreement on Human Rights, signed in Mexico City on 29 March This accord of vital importance is a very comprehensive agreement regarding the protection of human rights and contains a strong commitment against impunity. It additionally acknowledges that it is a humanitarian duty to aid the victims of human rights violations. This assistance is supposed to be provided through civil and socio-economic governmental programmes. 2. Agreement on the Resettlement of the Population Groups Uprooted by the Armed Conflict, signed in Oslo on 17 June It recognises the resettlement of population groups uprooted as a consequence of the armed confl ict, so they can return to their homeland or any other place of choice. Among the objectives of the accord are guaranteeing the full exercise of all their rights and freedoms to the uprooted population as well as socially, economically and politically reintegrating these population groups. The accord also prioritises the fi ght against poverty and destitution in areas particularly affected by the confl ict. 3. Agreement on the Establishment of the Commission to Clarify past Human Rights Violations and acts of violence that have caused the Guatemalan population to suffer, signed in Oslo on 23 June This agreement laid the foundation for the Historical Clarifi cation Commission which was entrusted to document -in objectivity and impartiality all human rights violations which occurred during the armed confl ict, to draft a report with the results of said research and to formulate specifi c measures aimed at favouring peace and reconciliation in Guatemala. 4. Agreement on Identity and Rights of Indigenous Peoples, signed in Mexico City on 31 March It recognises the multi-ethnic, multi-cultural and multi-lingual character of the Guatemalan nation, it recognises and respects the identity and political, economic, social and cultural rights of the Maya, Garifuna and Xinca peoples. It acknowledges that indigenous people have been particularly discriminated and exploited because of their origin, culture and language. It prescribes measures to fi ght against legal and de facto discrimination. It includes an explicit chapter on the rights of indigenous women, which are especially vulnerable since they are prone to a double discrimination: as women and as indigenous people. It further recognises the cultural rights of indigenous people with regards to language, religious and spiritual beliefs, and traditional indigenous clothing. 5. Agreement on Social and Economic Aspects and Agrarian Situation, signed in Mexico City on 6 May This accord acknowledges that a fi rm and lasting peace must be consolidated on the basis of social and economic development and therefore prescribes measures in four thematic sectors: democratisation and participation, social development, the agrarian situation and rural development; and modernisation. In particular, the accord calls for enhanced participation and consensus-building in the socio-economic fi eld, and increased social spending in the areas of education, health, social security, housing and work. Furthermore, it seeks to promote rural development and increased access to land for peasants. At the same time measures are to be adopted to increase the tax base with a view to providing the government with the required funds to implement this socio-economic development agenda. 4

5 6. Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society, signed in Mexico City on September 19 de It reveals the importance of strengthening civilian power (seriously weakened during the armed confl ict) and underlines the importance of citizen participation in governance through organisations, political forces and others, from the local to the national level. The new function of the armed forces is defi ned as the defence of Guatemala s sovereignty and territorial integrity, they shall have no other functions assigned to them, and their participation in other fi elds shall be limited to cooperative activities. The agreement also underlines the new model for a Civil Police, which will be in charge of public order and internal security, defi ning it as a fundamental part of strengthening civilian rule. 7. Agreement on the Definitive Ceasefire, signed in Oslo 4 De cember With this agreement the parties decided to stop all insurgent actions by URNG as well as all counter-insurgent actions by the Guatemalan armed forces. The government reiterates the importance of the process of democratisation and national reconciliation. The URNG will be incorporated in the political and public life of the country. 8. Agreement on Constitutional Reforms and Electoral Regime, signed in Stockholm on 7 December This agreement spells out the constitutional reforms which are deemed necessary to achieve the reconciliation of Guatemalan society within the framework of the rule of law, democratic coexistence, full observance of and strict respect for human rights, and an end to impunity. It underscores the need to agree upon all precise reforms and to adopt or amend ordinary legislation, as necessary, to adapt it to the provisions agreed to by the Parties in the Peace Agreements. It refers specifi cally to the constitutional reforms contained in the Agreement on Identity and Rights of the Indigenous Peoples and those included in the Agreement on the Strengthening of Civilian Power and the Role of the Armed Forces in a Democratic Society. 9. Agreement on the Basis for the Legal Integration of URNG, signed in Madrid on 12 December This agreement sets out the different stages to legally integrate the URNG into public life. This is understood as the process through which their members are to be integrated into the political, economic, social and cultural life with full respect for their dignity, security and fundamental rights. 10. The Agreement on the Implementation, Compliance and Verification Timetable for the Peace Agreements, signed in Guatemala City on 29 December It defi nes the process of implementation, compliance and verifi cation of the peace agreements as a long and complex one in which all sectors of society have to participate. B. Evaluation of the Peace Accords With the exception of the Comprehensive Agreement on Human Rights, which is in force since it was signed in Mexico City on 29 March 1994, all agreements integrated in the Accord on a Firm and Lasting Peace entered into force on 29 December 1996, when the latter was signed 7. The signing of the Peace Agreements was a crucial moment in Guatemala s modern history. They put 36 years of armed confl ict to an end and paved the way for the transformation of the cultural, economic, social and political structures of the country, for the building of a new nation. Despite the fact that these agreements are very comprehensive and include many substantial commitments, the agreements are considered by many as a mere formality because 10 years after they were signed, most of their provisions have not been complied with. In particular compliance with the substantial parts of the Peace Accords remains weak. At various occasions both the United Nations Verifi cation Mission in Guatemala 8 (hereafter referred to as MINUGUA) and the Secretary General of the United Nations expressed concern at the fact that the population barely reap the benefi ts of peace, aside from the ending of the confl ict, since the 4 Hereafter the terms Accord on a Firm and Lasting Peace and Peace Accords are used interchangeably, referring both to the complete set of ten peace accords. 5 Other agreements signed during these 10 years ( ) and which were included in the proceedings to establish a fi rm and lasting peace in Guatemala will not be mentioned here, in order to simplify the framework of the complicated negotiating process and because these (unmentioned) agreements are not integrated into the Accord on a Firm and Lasting Peace. For further reference or detailed information on the agreements mentioned here, please consult: (English version). 6 Accord on a Firm and Lasting Peace: 7 Article 16 of Accord on a Firm and Lasting Peace. 8 At the request of the Government of Guatemala and the URNG, the United Nations General Assembly (A/RES/48/267), on 19 September 1994, established the United Nations Mission for the Verifi cation of Human Rights. Without awaiting the conclusion of the negotiating process, this UN Mission carried out verifi cation and institution-building activities with a view to observing compliance by the parties with the commitments of the Comprehensive Agreement on Human Rights in Guatemala. More than 250 human rights monitors, legal experts, indigenous specialists and police were posted throughout Guatemala, including in its remotest areas. Once the Agreement on the Defi nitive Ceasefi re was signed on 4 December 1996 at Oslo, the Security Council, by its resolution 1094 of 20 January 1997, decided to attach to MINUGUA a group of 155 military observers and requisite medical personnel for a three-month period. Although the expanded mission continued to be known as MINUGUA, its offi cial name was changed to the United Nations Verifi cation Mission in Guatemala in order to refl ect the new mandate. The functions of the observer group were to verify compliance by the Government of Guatemala and URNG with the Agreement on the Defi nitive Ceasefi re, including the formal cessation of hostilities, the separation and concentration of the respective forces and disarmament and demobilization of former URNG combatants. 5

6 living and working conditions of broad sectors of the population did not improve at all 9. Many factors can explain the negative overall status of compliance with the Peace Accords but the following two are regularly put forward. First of all, there has been a controversy surrounding the legal nature of the Peace Accords. Since the Peace Accords spell out broad principles for a far-reaching economic, social and political reform, a number of constitutional amendments were required. Yet, the power to amend the constitution lies with the Congress according to article 280 of the Political Constitution stating that constitutional amendments have to be approved by a two-thirds majority in the congress. Since the government cannot bind the legislative in the exercise of its constitutional powers, the Peace Accords were for a long time considered mere political agreements and not binding laws 10. Secondly and as a result of this perception, the Government, Congress, political parties and the business sector all at different stages and to varying degrees- have abandoned the institutional development measures which lie at the heart of the peace agreements 11. The private sector, especially the most reactionary elements of the landowners and industrialists, organised in the Co-ordinating Committee of Agricultural, Commercial, Industrial and Financial Associations (CACIF), never embraced the Peace Accords and repeatedly opposed government and congressional efforts to raise the tax rate 12. Political parties have been divided over the implementation of the Peace Accords. Accordingly, Congress has left many laws pending in the legislative pipeline 13. The government though bears the main responsibility for not fully achieving the objectives of the Peace Accords. Independent of the legal nature of the Peace Accords, the government had to assume the responsibility to reform the constitution. According to the Peace Accords, 12 important amendments were to be made to the constitution. The necessary legislation should have been passed during the fi rst 90 days of implementation. However, it was only in late 1998 that Congress agreed on a list of amendments, which then had to be approved in a referendum on 16 May In addition to the 12 original amendements, a number of others not directly linked to the Peace Accords were added, so that the referendum concerned altogether 50 constitutional amendements. Moreover, the political discussion that preceded the referendum was long, confusing, and anything but clear, and hence undermined the original intent. All this added to the remarkably low voter turnout -under 19% of those legible to vote- and thus to the negative result of the constitutional referendum 14. Furthermore, successive governments have been reluctant to reduce the role of the military in civilian affairs, although the army was a strong peace resister; and they failed to increase the tax revenues needed for major social investments 15. Only nine years after the conclusion of the Peace Accords, Congress adopted a new law, the so-called Ley Marco, which explicitly recognises the legal character of the Peace Accords! Following the adoption of the law in August 2005, a National Council for the Peace Accords was established which has to give a new incentive to and promote legal and political reforms in line with the substance of the Peace Accords 16. A new start 9 Final Report of MINUGUA on Fulfi lment of the Peace Accords in Guatemala, Guatemala, 30 August 2004, 61; Report of the Secretary General, United Nations Verifi cation Mission in Guatemala, General Assembly, Doc A/58/262, 58th Session, 08 August 2003, 34; Report of the United Nations Verifi cation Mission in Guatemala (MINUGUA) for the Consultative Group Meeting for Guatemala, Guatemala, 18 January 2002, p G. Rainer, The United Nations and the establishment of a new model of governance for Central America : the case of Guatemala, Max Planck Yearbook of United Nations Law, Vol. 2, 1998, p General Assembly, 14th Report on Human Rights of MINUGUA, Doc A/58/566, 58th Session, 10 November 2003, H. Salvesen, o.c., p S. Jonas, Of Centaurs and Doves: Guatemala s Peace Process, Boulder, CO & Oxford, Westview, 2000, p A. Dionorah, The Consulta Popular: A Vote Divided by Geography, in Cynthia J. Arnson (ed.), The Popular Referendum (Consulta Popular) and the Future of the Peace Process in Guatemala. Latin America Program, Woodrow Wilson Center for Scholars, November 1999, pp H. Salvesen, o.c., p Article 3-6 Ley Marco on compliance with the Peace Accords, Decreto , 3rd August

7 2. General human rights situation in Guatemala In order to give a concise overview of the human rights record of Guatemala, it is useful to look at both theory and practice. As regards the theory, an interesting indicator is the ratifi cation of human rights instruments. Turning to practice, a reference is made to the situation of human rights defenders. A. Human rights instruments Part of the answer to the question whether Guatemala is committed to respect, protect and fulfi l human rights can be derived from its position vis-à-vis human rights instruments. One of the landmark agreements concluded in the long negotiating process leading to the signing of the Accord on a Firm and Lasting Peace, is the Comprehensive Agreement on Human Rights. The agreement was signed on 29 March 1994 and was immediately followed by the establishment of MINUGUA, the United Nations Mission for the Verifi cation of Human Rights. The agreement is indeed comprehensive, taking into account the different commitments spelled out. Without being exhaustive, reference can be made to 17 : The general commitment of the government of Guatemala to adhere to the principles and norms designed to guarantee and protect the full observance of human rights; The commitment to strengthen institutions for the protection of human rights such as the Public Prosecutor s Offi ce; The commitment to take fi rm action against impunity; The commitment to combat illegal security forces and clandestine groups; The commitment to take special measures to protect those persons or entities working in the fi eld of human rights. The recognition that compensation for and/or assistance to victims of human rights violations is a humanitarian duty. Rights in the area of Economic, Social and Cultural Rights, ratifi ed by Guatemala on 5 October 2000; - Inter-American Convention on the Forced Disappearance of Persons, ratifi ed by Guatemala on 25 February 2000; At the international level: - Optional Protocol to the Convention on All Forms of Discrimination against Women, ratifi ed by Guatemala on 7 September 2000; - International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ratifi ed by Guatemala on 7 September 2000 ; And the list of ratifi ed instruments is longer. Moreover, not only within the United Nations system or the Organisation of American States has Guatemala become party to human rights instruments. At the level of the International Labour Organisation, Guatemala has ratifi ed all 8 fundamental labour conventions. 17 Comprehensive Agreement on Human Rights, 29 March 1994 In this way, the agreement served two functions. On the one hand, with the end of the confl ict ahead, it reiterated and confi rmed Guatemala s commitment to a number of international and regional human rights instruments which it had already ratifi ed. Examples are: At the regional level: American Convention on Human Rights, ratifi ed by Guatemala on 25 May 1978; At the international level : - International Convention on the Elimination of All Forms Discrimination against Women, ratifi ed by Guatemala on 12 August 1982; - International Covenant on Economic, Social and Cultural Rights, ratifi ed by Guatemala on 19 May 1988 ; - International Covenant on Civil and Political Rights, ratifi ed by Guatemala on 6 May 1992; On the other hand, the strong wording of the agreement paved the way for Guatemala to ratify still more important human rights instruments. Examples are: At the regional level: - Additional Protocol to the American Convention on Human 7

8 These conventions were identifi ed by the ILO as fundamental, because they cover subjects that are considered fundamental to the world of labour: freedom of association and the right to collective bargaining; the elimination of all forms of forced or compulsory labour; the prohibition of child labour; and the elimination of discrimination in respect of employment and occupation. These core labour standards were reiterated in the 1998 ILO Declaration on Fundamental Principles and Rights at Work. In short, Guatemala seems committed to respect, protect and fulfi l human rights considering the impressive number of human rights instruments ratifi ed. However, ratifi cation is just one indicator of human rights commitment. B. Human rights defenders In order to assess this commitment to human rights from a practical point of view as well, this section documents the problems which human rights defenders face in Guatemala. Chapter VII of the Comprehensive Agreement on Human Rights deals with the protection of human rights defenders and reads as follows: 1. The Parties agree that all acts which may affect the safeguards of those individuals or entities working for the promotion and protection of human rights are to be condemned. 2. Accordingly, the Government of the Republic of Guatemala shall take special measures to protect those persons or entities working in the fi eld of human rights. Furthermore it shall investigate, in a timely and exhaustive manner, any complaint it may receive relating to acts or threats that may be directed at them. 3. The Government of the Republic of Guatemala reiterates the commitment to safeguard and protect effectively the work of individuals and entities engaged in upholding human rights. At present though, international, regional as well as national human rights organisations report on the deteriorating situation of human rights defenders in Guatemala. The acts of intimidation and harassment as well as attacks against physical integrity have increased considerably in the last years. According to data from Amnesty International, the main human rights organisations in Guatemala have suffered almost without exception serious abuses. And these violations are rarely investigated, its perpetrators rarely convicted 18. For the purpose of this report, human rights defenders can be categorised in two types 19 : Defenders of truth are human rights defenders that conduct research related to human rights violations which occurred during the armed confl ict and/or initiate legal proceedings. The attacks single-target the victims, witnesses, attorneys, human rights activists and forensic experts. Defenders of social justice are defenders who participate in the promotion of economic, social, cultural rights, such as trade unionists, peasant and indigenous organisations. 1. Defenders of Truth a. Historical Clarification Commission The Historical Clarifi cation Commission (HCC) was established pursuant to the Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer. It was mandated to clarify objectively and impartially the human rights violations and acts of violence that were committed during the armed confl ict and to prepare a report containing its fi ndings as well as specifi c recommendations. The recommendations could not have judicial or legal effect. The Work of the Commission was hampered by three factors: fear, funding and time. Most people in Guatemala would not testify before the Commission and its investigating staff, for many perpetrators of atrocities during the confl ict remained at liberty. This fear for reprisals made the collection of reliable data and testimonies hard. Budgetary problems also delayed the fi nal establishment of the Commission and this in turn reduced the time available to the Commission to complete its investigations 20. In spite of these obstacles, the HCC booked signifi cant results. The public presentation and subsequent publishing of the report of the Commission on 25 February 1999 constituted a major achievement. The Commission concluded that over people disappeared or were executed, and about one million people were displaced during the years of the confl ict 21. The report provided a comprehensive explanation of the causes of the armed confl ict and the extensive violence. In unexpectedly strong language, the Report attributed 93% of the human rights violations to the state and 3% to the guerrilla forces and stated that the indigenous population accounted for 83% of the victims. It described governmental policy at the height of the confl ict as a policy of genocide. Amongst others, it recommended that further investigations and judicial proceedings take place. Out of the 84 recommendations made by the Commission, the government complied with only a few, which raises doubts over the political will of the authorities to keep the peace process high on the agenda and to restore the dignity of the confl ict s victims 22. Unfortunately, the Commission could not attribute responsibility for abuse of power or human rights violations to any individual but only to state institutions 23. These elements may explain in part why so many defenders of truth are actively trying to investigate the atrocities committed during the confl ict. b. Defenders of Truth Like the HCC, the defenders of truth have to operate in a society conditioned by fear, where people do not speak out for fear of reprisals. Unlike the Clarifi cation Commission though, these human rights defenders live with the imminent risk of being intimidated, harassed and attacked. The objective of these attacks is mainly to intimidate the defenders of truth to deter them from conducting their research, which intends to clarify the human rights violations and determine the responsibility of the members of the armed forces or state offi cials. 8

9 The CICIACS Convention: a lack of will of the authorities: In early January 2004, the newly elected government signed a Convention with the United Nations for the creation of a Commission for the Investigation of Illegal Groups and Clandestine Security Forces (CICIACS) 25. The approval of this convention was key to improving the diffi cult situation of human rights defenders and justice operators, and sought the support of all state institutions to halt the operations of illegal groups and clandestine security forces. Although these groups are engaged in all kinds of criminal activities such as summary executions, drug traffi cking and corruption, they have largely escaped judicial proceedings because of their coercive methods and ties to high-level political, judicial and law enforcement offi cials. Therefore, the Convention would constitute an important step in ending impunity and restoring people s faith in justice. However, a media campaign against this convention, the scarce support of the executive power and the Congress, and the ruling of the Constitutional Court declaring the convention unconstitutional ended the historic opportunity of ratifying the agreement. In early 2006, the government modifi ed the project with the United Nations and, regardless of the opinion of civil society 26, returned it to the UN. On 12 December 2006, the United Nations and the government of Guatemala signed the agreement to establish the International Commission Against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala - CICIG). Whereas the original CICIACS-agreement would have given the commission itself the right to initiate criminal prosecutions in the country, the CICIG-agreement eliminates this possibility. The UN-led commission will assist the Guatemalan public prosecutors offi ce, the supreme court and the national civilian police in investigating the criminal activities of illegal gangs and clandestine security groups. Then it is up to the national competent authorities to prosecute. The commission will have an initial two-year mandate. It is hoped that this time the agreement will be ratifi ed by Congress. Despite pledges for a speedy treatment, Congress sent the agreement once again to the Constitutional Court for constitutional review beginning of March It must be borne in mind, however, that the Comprehensive Agreement on Human Rights expressly calls for action against illegal security forces and clandestine groups 27. Any attempt to obstruct the establishment of the investigation commission constitutes another violation of the Peace Accords and would once more demonstrate the lack of political will to end impunity in Guatemala. This awareness must have inspired the European Parliament as well, which in a Resolution dated 15 March 2007 calls on the Congress of Guatemala to ratify the CICIG convention as soon as possible 28. Aggressions follow a certain pattern. First, the person is intimidated by threats: the person is informed about being watched, in an attempt to stop their investigation. To increase the pressure, intimidations are followed by illegal raids in offi ces of human rights organisations or the homes of the human rights defenders, where valuable material is stolen. If the latter persist in their investigation, they often endure attacks against their lives and physical integrity through kidnappings, beatings, forced disappearances and murder Amnesty International, Guatemala: Memorandum to the government of Guatemala: Concerns of Amnesty International regarding the current situation of human rights, April 2005, available at 19 This distinction is taken from the source mentioned hereafter but is differently defi ned for the purpose of this report; Movimiento Nacional por los Derechos Humanos, Situación de Defensores y Defensoras de Derechos Humanos, Informe 2004, Guatemala, January 2005, p See for more information on the work of the Commission: C. Tomuschat, Clarifi cation Commission in Guatemala, in Human Rights Quarterly, Johns Hopkins University Press, Volume 23, 2001, ; 21 Historical Clarifi cation Commission, report available at 22 Jan-Michael Simon, La comision para el esclarecimiento historico, verdad y justica en Guatemala, to consult at 23 H. Salvesen, Guatemala: fi ve years after the Peace Accords The challenge of implementing peace, International Peace Research Institute, Oslo, March 2002, p The case of Myrna Mack Chang is a clear example of the modus operandi of the state vis-à-vis human rights defenders. She was victim of an extrajudicial execution in 1990 on the initiative of State offi cials. In 2003 the Inter-American Court for Human Rights held the State of Guatemala responsible for her execution: It is established that this case the extrajudicial execution of Myrna Mack Chang was the result of an operation of military intelligence of the Presidential General Staff, which intended to hide the facts and secure the impunity of the perpetrators, and to that end, tolerated by the state, it resorted to all types of resources, including harassment, threats and murder of those who collaborated with justice... (Myrna Mack Chang vs. Guatemala, Ruling of 25 November 2003, Series C N 101, 216) ; For more information, please consult or myrnamack.org.gt/. 25 Procuradoria General de los Derechos Humanos, Informe Anual Circunstanciado 2006, p Interview with the coordinator of the Unit of Protection to Human Rights Defenders of the National Movement for Human Rights. 27 Section IV, article Resolution of the European Parliament of 15 March 2007 on the murder of deputies of the Central American Parliament, other murders, threats to human rights defenders and, impunity in Guatemala, P6_TA-PROV(2007)

10 Numerous acts of violence are committed by illegal groups and clandestine security organisations with connections to organised crime and state structures, particularly military intelligence services. This link with the military, political and judicial elite of the country institutionalises impunity since the perpetrators are not brought to justice. It was only in 2004 that the fi rst steps were taken to combat illegal and clandestine security groups with the signing of the CICIACS Agreement between the UN and Guatemala (see boxed text). In short, human rights defenders seeking to clarify the many human rights violations which took place during the armed confl ict, face two important problems. First of all, their investigations are obstructed as they become the target of intimidations and violence. Secondly, the government neither offers adequate protection (preventive) nor guarantees judicial prosecution of those responsible (repressive). Both fi ndings contravene relevant provisions of the Peace Accords and undermine the authority of the State. 2. Defenders of Social Justice The recognition of economic, social and cultural rights was fi rmly entrenched in the Peace Accords. In particular, the Agreement on Socio-Economic Aspects and the Agrarian Situation prescribed reforms in the areas of education, health, social security, work and land. This agreement further urged for improved participation by vulnerable and marginalised groups in policy-making. Nonetheless, the current socio-economic panorama in Guatemala is well below the expectations of change refl ected in the Peace Accords 29, negatively affecting the enjoyment of economic, social and cultural rights. Poverty: poverty and destitution indexes are still showing an increase. The latest data show 56% of the population under the poverty line, and 21.5% living in conditions of extreme poverty. Poverty and destitution affect especially the indigenous and rural population 30. Food security: according to data from the UN Special Rapporteur on the Right to Food, hunger and malnutrition are widespread in Guatemala. The country has the worst indicators of chronic malnutrition in infants 31 in Latin America and in several poor communities in the country there have been cases of starvation 32. Health: the quality of and access to medical care is still very defi cient. Infant mortality rates, currently around 33 per 1000 are also the highest in Latin American and the Caribbean. Around 59% of the households have a very limited access to health centres. Either they have to travel for more than an hour, or health centres are insuffi ciently supplied and understaffed 33. Education: Although the drop-out rate has improved over time, they are still high and a great number of children living in poverty or destitution, who leave school before the sixth grade 34. The illiteracy rate is high, standing at 25.19% of ove r 15 year olds 35. Illiteracy rates are higher in rural areas and especially among indigenous women. Employment: The unemployment rate is around 4.4% 36. The fact that most people have work, however, does not say anything about the quality of their work. In fact, 75.4% of the economically active population (EAP) works in informal activities. For 95% of the indigenous population, informal employment is the only source of work 37. The underemployment rate stands at 30%

11 Since the signing of the Peace Accords, the implementation of economic, social and cultural rights as well as the participation of vulnerable groups in policy design has increasingly become the focus of attention of human rights defenders. Unfortunately, this human rights activism resulted also in a signifi cant increase in attacks and violence against defenders of justice, such as indigenous and peasant leaders, trade unionists and women s rights advocates. An authoritative report by the National Movement for Human Rights and Front Line states that in the period , attacks against human rights defenders have risen, with a dramatic increase in Evolution of attacks per year Source: Unidad de Proteccion a Defensores y Defensoras de Derechos Humanos - MNDH The graph below shows that the number of attacks against defenders of civil and political rights defenders of truth- is slowly increasing since The defenders of economic, social and cultural rights including indigenous rights, on the contrary, have experienced a steep rise in the number of acts of violence against them since Evolution of attacks per year and per type of human rights defender Civil and Political Rights Economic, Social and Cultural Rights Indigenous rights Other Governmental Total Source : Unidad de Proteccion a Defensores y Defensoras de Derechos Humanos - MNDH The fi gures for 2006 confi rm this upward trend of attacks against defenders of social justice: between January and December 2006, the National Movement for Human Rights 40 registered 278 acts of violence against human rights defenders, which is an increase of 19.4% compared to Unless otherwise indicated, data for this socio-economic assessment are taken from the following sources: - World Bank, Guatemala Data Profi le, World Development Indicators, April 2006; - National Survey on Living Conditions ENCOVI, Instituto Nacional de Estadística de Guatemala, available at - Hacia el Cumplimiento de los Objetivos de Desarollo del Milenio en Guatemala, Secretaria de Planifi cacion de Programacion de la Presidencia, Guatemala, July 2006, pp. 279; - Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, Informe 2006, CIIDH-DEZCGUA-CONGCOOP, Guatemala, November 2006, pp Guatemala Poverty Assessment Programme (GUAPA), Evaluation of Poverty in Guatemala, Part 1, Chapter 2 Magnitude and causes of poverty: The problem: poverty and social indicators 31 Chronic malnutrition in infants in Guatemala has gone from 46.4% in 2000 to 49.3% in 2002, see html. 32 J. Ziegler, UN Special Rapporteur on the Right to Food, Mission to Guatemala, E/CN.4/2006/44/Add. 1, p Guatemala Poverty Assessment Programme (GUAPA), Evaluation of Poverty in Guatemala, Chapter 8 Health; malnutrition and poverty, 2003, p Guatemala Poverty Assessment Programme (GUAPA), Evaluation of Poverty in Guatemala, Chapter 7 Education and Poverty, 2003, p Comité Nacional de Alfabetización (CONALFA ) Comportamiento del analfabetismo en Guatemala International Labour Organisation, Offi ce for Latin America and the Caribbean, Labour Panorama National Survey of Employment and Income (ENEI), Instituto Nacional de Estadistica, 2004, 38 Economic Commission for Latin America and the Caribbean (ECLAC) Economic Study for Latin America and the Caribbean Front Line and the National Movement for Human Rights, Attacks Against Human Rights Defenders , Front Line, Dublin, 2006, p The National Movement for Human Rights is a national coalition of organisations fi ghting for social justice and respect for human rights. The Human Rights Defenders Protection Unit was established as an ad hoc service of the National Human Rights Movement to monitor, accompany and protect defenders in all sectors. 11

12 Nearly 170 attacks targeted people defending economic, social and cultural rights 41. These defenders equally experience the fear and impunity that characterise life in Guatemala and can be best illustrated by looking at the immense diffi culties which trade unions face in their daily work. The Committee of Experts on the Application of Conventions and Recommendations 42 of the ILO repeatedly criticised the government of Guatemala for its hostile approach to trade unions. The ILO Committee criticised the restrictions for the establishment of trade unions. According to the Labour Code, the majority (50+1) of workers of an industrial sector must agree to the establishment of an industrial union. To be elected union leader, the Labour Code requires that one is of Guatemalan origin and works in the enterprise or sector concerned. Secondly, those active in trade unions, as leaders or members, are regularly the victims of acts of violence, which remain uninvestigated 43. Trade unionists are intimidated, harassed and even murdered. Most recently, the Central General de Trabajadores de Guatemala lost some of their members with the brutal assassinations of Pedro Zamora, Secretary General of the Guatemalan Dock Workers Union (STEPQ-CGTG) as well as Walter Aníbal Ixcaquic Mendoza and Norma Sente de Ixcaquic, afi liated to the National Front of Street Vendors of Guatemala (FESTRI-CGTG) 44. Not surprisingly, less than 2% of all workers in Guatemala join trade unions. This further debilitates the bargaining power of trade unions which rely on a strong base to negotiate and push for change 45. C. Conclusions On paper, Guatemala seems committed to respect, protect and fulfi l human rights. The reality is different though, taking into account the risks which human rights defenders run. A little progress was made shortly after the end of the confl ict, when MINUGUA was present in the country. Since 2000 and in particular 2005, the process of consolidating the Rule of Law and observance of human rights has been characterised by a setback. Both governmental and non-governmental bodies agree that the situation of human rights has deteriorated in the last years in Guatemala 46. Although Guatemalan laws formally guarantee the exercise of human rights and access to justice to denounce their violation, there is no credible state policy of fi ghting against these violations. Insecurity increases every day in Guatemala; according to the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, Dr. Philip Alston, more than murders are committed every year. There are more violent deaths now than during the armed confl ict 47. The lack of political will to deal with the longstanding issues of impunity and a weak judicial system allows most attacks against human rights defenders to go unchallenged. In that regard, the importance of the Agreement between the United Nations and the State of Guatemala on the establishment of an International Commission against Impunity in Guatemala (CICIG) must be emphasised. It is a historical opportunity for the ruling elite of Guatemala to reaffi rm their commitment to the Comprehensive Agreement on Human Rights and to Express their political will to end impunity. Only with a state policy of protection and compensation to the victims, and of punishment to those who commit human rights violations will the situation be counteracted and the effectiveness of the rule of law will be guaranteed. 41 Movimiento Nacional por los Derechos Humanos, IMPUNIDAD: QUIÉNES SON LOS RESPONSABLES?, Informe de situación 2006, Guatemala, January 2007, p The Committee of Experts on the Application of Conventions and Recommendations is an independent body composed of legal experts charged with examining the application of ILO Conventions and Recommendations in ILO Member States; hereafter referred to as ILO Committee of Experts. 43 ILO Committee of Experts, Application of International Labour Standards 2006 Part I A, ILC 95th Session, Geneva, p ; ILO Committee of Experts, Application of International Labour Standards 2005 Part I A, ILC 93th Session, Geneva, p See website of the ITUC: 45 For an interesting account of the freedom of association in Guatemala and the problems for trade unions: Central General de Trabajadores de Guatemala, Libertad Sindical en Guatemala, Guatemala, Julio 2005, pp Annual Report of the Inter-American Commission de Derechos Humanos 2003, chapter IV Guatemala, Inter-American Commission on Human Rights, available at Human Rights Watch, Human Rights Testimony to the U.S. Congressional Human Rights Caucus Update on Guatemala, available at 47 P. Alston, Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Report on Mission to Guatemala, A/HRC/4/20/Add.2, 19 February 2007, p

13 3. Socio-economic and agrarian situation Whereas peace accords normally only provide for a ceasefi re, demobilisation and political participation and in some way address past human rights violations, the Guatemalan Peace Accords also contain an impressive development agenda. The Peace Accords recognise that poverty, extreme poverty, discrimination and political marginalisation have impeded and distorted the country s economic, social and cultural development and therefore represented a source of confl ict and instability. The accord that contains by far and large the most detailed programme for economic and social reform, legal and state reform and increased participation is the Accord on Social and Economic Aspects and the Agrarian Situation of 6 May In what follows, the report documents certain socio-economic developments in Guatemala and places them in the larger framework of the structural reforms prescribed by the Accord on Social and Economic Aspects and the Agrarian Situation. Starting with the general development model implemented in Guatemala, the focus then shifts to specifi c issues such as the informal economy, the maquila industry, the agrarian sector and the area of social protection. A. Development: trade- or human-driven? Section II of the Accord on Social and Economic Aspects and the Agrarian Situation carries the promising title Social Development. The section reads as follows: 14. The State is responsible for promoting, guiding and regulating the country s socio-economic development so as to ensure economic effi ciency, increased social services and social justice in an integrated manner and through the efforts of society as a whole. [...] 16. The State has inescapable obligations in the task of correcting social inequities and defi ciencies, both by steering the course of development and by making public investments and providing universal social services. Likewise, the State has the specifi c obligations, imposed by constitutional mandate, of ensuring the effective enjoyment, without discrimination of any kina, of the right to work, health, education and housing as well as other social rights. [...] 20 In response to the population s urgent demands, the government undertakes to: a. increase social investment signifi cantly, especially in the areas of health, education and employment; b. restructure the budget so as to increase social expenditure; c. give priority to the neediest sectors of society and the most disadvantaged areas of the country. [ ] The excerpt demonstrates that the Government of Guatemala opted for a human-centred and social development model. The text of the Accord clearly seeks to strike a good balance between steady economic growth and a progressive social policy which aims at the well-being of all segments of the population. 1. Structural Adjustment Policies The text of the Accord, however, stands in stark contrast to the present socio-economic reality of Guatemala, which ranks 118th out of 177 countries in the Human Development Index of the UNDP % of the population lives in poverty. Over 75% of the working population has to make a living in the informal economy. Undernourishment is rampant affecting 23% of the population. The adult illiteracy rate amounts to 25.9%. And whereas many households have no, or limited access to public health services, Guatemala only invests 2.1% of its GDP in the public health sector 49. Guatemala s bad social and economic performance is inevitably linked with the implementation of Structural Adjustment Programmes. Structural adjustment programs (SAPs) are a package of economic and institutional measures designed to solve macroeconomic problems in developing countries by reducing government intervention in the economy, correcting the borrowing country s defi cits and opening the country s economy to the global market. The economic and institutional measures serve as the conditionalities of the loans received under these programmes. These programmes were initially designed and funded by the World Bank and the International Monetary Fund (IMF), and later, also adopted by other major international fi nancial institutions (IFIs). Through these conditionalities, these institutions exert great infl uence on the type of political, economic and social reforms. When the Peace Accords were signed, the international fi nancial community met in a Consultative Group meeting hosted by the Inter-American Development Bank in Brussels in January 1997 and pledged $1.9 billion in loans and donations to Guatemala for the implementation of the Peace Accords. A large proportion of these funds came from the Inter-American Development Bank and the World Bank in the form of loans (as much as 60%), many with conditions attached 50. The most important conditions include: privatisation of stateowned companies, reduction of public spending, privatisation of state services; trade liberalisation. The underlying idea is that opening the market by removing tariffs and other trade barriers and by reducing the role of the State in the social and economic sphere will lead to increased trade and investment; and economic growth will ultimately serve the country s development. 48 Human Development Report 2006, UNDP, p. 283 and onwards. 49 Human Development Report 2006, UNDP, p. 283 and onwards; see also earlier Chapter II, Section B J. Ruthrauff, The Guatemala Peace Process and the Role of the World Bank and the Inter American Development Bank, Center for Democratic Education, USA, at 13

14 By implementing this economic model of development, Guatemala has not brought about the socio-economic changes which the country structurally needs. Poverty and extreme poverty are widespread. Public investment in social services such as health, education and housing is insuffi cient to the extent where the accessibility and quality of these services are seriously compromised. The deregulation of the labour market resulted in less labour protection for the workers, especially in the increasing number of export processing zones. Moreover, the privatisation of state-owned enterprises cost thousands of civil servants their job, most of them now making a living in the informal economy 51. Vulnerable groups, particularly indigenous people, are still excluded from the social, economic and political dynamics of the country, both individually and collectively, which proves detrimental to their well-being and development. In recent years, inequality, marginalisation and social exclusion have increased 52. In short, the implemented reforms have not responded to the needs of so many Guatemalans, and have even aggravated the social situation 53. While the government of Guatemala opted for structural adjustment, the people needed sustainable and equitable socio-economic development, as promised in the Peace Accords. 2. CAFTA: Central American Free Trade Agreement The recognition of the negative effects of structural adjustment 54 does not mean that the neoliberal paradigm has been challenged. On the contrary, the idea of trade liberalisation boosting economic growth which in turn improves the working and living conditions of people also fi nds expression in free trade agreements. The objective of a free trade agreement is to create a free trade area between countries in which trade barriers, such as tariffs, quotas and preferences are reduced and/or eliminated with a view to promoting unhindered trade of goods and services. The faltering negotiations towards the construction of a single free trade zone in the Americas, also known as FTAA (Free Trade Area of the Americas) 55, left the door open to sub-regional free trade negotiations. As a result, the Central American Free Trade Agreement, also known as CAFTA, was negotiated between the United States and fi ve Central American countries: Guatemala, El Salvador, Honduras, Costa Rica and Nicaragua. In 2005, the Dominican Republic entered the negotiations and since then the agreement is known as DR-CAFTA. Guatemala adopted DR-CAFTA in March 2005 and it entered into force between the USA and Guatemala on 1 July In an assessment of DR-CAFTA, the World Bank argues that this is an important issue, not only because the U.S. is these nations major trading partner, but also because the treaty holds the potential of increasing trade and investment in the region, which in turn is key to lifting economic growth and improving the welfare of the people of Central America and the DR, including those living in poverty 56. But while this free trade agreement puts the emphasis unequivocally on trade and trade liberalisation, it is hard to see how it will benefi t the poor and vulnerable in Guatemala. A comparison with the North American Free Trade Agreement (NAF- TA), after which DR-CAFTA is modelled, can illustrate how the treaty can impact on the Guatemalan workforce. NAFTA has been in force between the USA, Canada and Mexico since 1 January 1994 and has been a disaster for small farmers and working people in Mexico the share of stable, salaried, full-time jobs has decreased dramatically; the resulting void has been fi lled by informal employment or simple unemployment. 2. at the same time, underemployment and work in low-pay, a lowproductivity job has grown rapidly. 3. at some point, the salaries of salaried workers have fallen by 25%; the average income of self-employed has declined by 40%. 4. many jobs have been created in the maquila sector. However, the sector is known for its notorious disrespect for workers rights which are deliberately downscaled in this sector. Bijschrift The same risks are imminent in DR-CAFTA. That may explain why DR-CAFTA was elaborated and negotiated without the effective participation of civil society in Guatemala. Workers and peasants organisations, representing sectors which will be especially affected by this free trade agreement, were not appropriately consulted. On the contrary, when social organisations mobilised against DR-CAFTA, the response of the government was violent and repressive 58. Furthermore, the government of Guatemala refused to hold a referendum to judge support for the treaty. The rejection of a referendum clearly violates Article 173 of the Constitution which stipulates that political decisions of special importance will be subject to popular consultation. The rejection also contravenes article 6 of ILO Convention 169 which prescribes the consultation of indigenous communities in matters that affect them. As will be shown, their livelihoods will 14

15 be seriously affected. Therefore, on 23 February 2006, a formal complaint was lodged by a number of social organisations challenging the constitutionality of DR-CAFTA 59. And the approval of this free trade agreement is indeed a decision of special importance. One major problem is the asymmetric relation between the economies of the USA and Guatemala. Previously, Central-American governments already benefi ted from unilateral trade preferences. Based on the assumption that the two countries must become equal trading partners, DR-CAFTA immediately eliminates all tariffs on 80% of American agricultural and industrial goods, with the remainder phased out over the next few years 60. However, equal competition is not possible between the two countries. One example may illustrate this: considering that U.S. agriculture production subsidies amount to $180 billion for the period of and that most Guatemalan farmers cannot rely on this kind of aid, it is likely that DR-CAFTA will put many small and medium-sized agricultural producers, micro-enterprises and subsistence farmers out of business. Indigenous and peasant communities will be hit hardest since their livelihoods mostly depend on agriculture. As a result, poverty as well as food insecurity will increase in these communities 61. A second critical issue is the protection of labour rights. The Labour Advisory Committee 62, in an advice for the highest U.S. authorities, stated that in the context of Central America where laws fall far below international standards and governments and employers are actively hostile towards unions the labour chapter of DR-CAFTA will encourage rampant workers rights violations to continue. [ ] There is simply no political will in Central America to bring labour laws into compliance with international standards 63. In fact, the Committee admits that the agreement [DR-CAFTA] repeats many of the same mistakes of the North American Free Trade Agreement [NAF- TA], and is likely to lead to the same deteriorating trade balances, lost jobs, and workers rights violations that NAFTA has created 64. The wording alone of DR-CAFTA s labour chapter raises serious concerns as regards the importance of fundamental labour standards within the framework of this free trade agreement. Article 16.8 reads as follows: Each Party shall strive to ensure (emphasis added) that such labour principles and the internationally recognized labour rights 65 are recognized and protected by its law. In fact, it is generally acknowledged that the U.S. Generalised System of Trade Preferences (GSP) 66 constitutes a higher standard as regards fundamental labour rights compared to DR-CAFTA. The GSP, which no longer applies to the region since the entry into force of DR-CAFTA, sanctioned the non-compliance with international labour standards with the withdrawal of trade benefi ts, and was for a long time the only tool to create the political will in Guatemala to reform weak labour laws F. Judson, El ajuste y las agendas nacionales centroamericanas, revista ECA (estudios centroamericanos) N , Julio-Agosto de 1998, Universidad Centroamericana José Simeon Cañas, at 52 Comité para la Eliminación de la Discriminación Racial, Compilación de observaciones fi nales del Comité para la Eliminación de la Discriminación Racial sobre países de América Latina y el Caribe ( ), Regional Representation of the High Commissioner for Human Rights for Latin America and the Caribbean, Chile, June 2006, p Juan Manuel Gigli Neoliberalismo y ajuste estructural en América Latina, available at: 54 B. Mudho, Independent Expert on the Effects of Structural Adjustment Policies and Foreign Debt, Effects of structural adjustment policies and foreign debt on the full enjoyment of human rights, particularly economic, social and cultural rights, Report E/CN.4/2003/10, Commission on Human Rights, 59th Session, 2002, pp. 24. The negative effects of structural adjustment inspired the international fi nancial institutions to review their lending policies. A new policy instrument, the poverty reduction strategy papers (PRSP), emerged, which seeks to improve country-ownership, participation of domestic stakeholders and propoor results in the development of poverty reduction strategies. At present, Guatemala is not a benefi ciary of the lending facility. For more information, see also: IMF and World Bank, Review of the PRSP Experience, An Issues Paper, Washington D.C., 2002, pp The effort to unite the economies of the Americas into a single free trade area began at the Summit of the Americas, which was held in December 1994 in Miami, USA. The Heads of State and Government of the 34 countries in the region except for Cuba- agreed to construct a Free Trade Area of the Americas, or FTAA, in which barriers to trade and investment will be progressively eliminated. After 4 years of preparatory work ( ), the FTAA negotiations were formally launched in April 1998 at the Second Summit of the Americas in Santiago, Chile, and are still going on. The latest draft of the FTAA Agreement dates from 21 November 2003 and is available on the offi cial website of ALCA-FTAA: 56 DR-CAFTA: Challenges and Opportunities for Central America, World Bank, Central America Department, 28 June 2005, p For a detailed analysis of the Mexican labour market, see Alcalde Arturo, Graciela Bensusán, Enrique de la Garza, Enrique Hernández Laos, Teresa Rendón, and Carlos Salas, Trabajo y Trabajadores en el México Contemporáneo, México, D.F. Miguel Ángel Porrúa, 2000; Carlos Salas, The impact of NAFTA on wages and incomes in Mexico, in Economic Policy Institute, Briefi ng Paper, NAFTA at seven, Washington, 2001, p ICFTU, Annual Survey of Violations of Trade Union Rights 2006, Brussels, p. 150; M. A. Rodriguez, Analisis Critico del TLC Impactos y Consecuencias, CEIBA, Guatemala, Diciembre 2006, p C. Barreda, DR-CAFTA Imposition and Poverty in Guatemala, in Monitoring Report: DR-CAFTA in Year One, A report by the StopCAFTA Coalition, 12 September 2006, p. 20, consult at 60 U.S. Chamber of Commerce, Article on the Dominican Republic - Central America Free Trade Agreement at 61 J. Ziegler, UN Special Rapporteur on Right to Food, Mission to Guatemala, E/CN.4/2006/44/Add. 1, p. 20; Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, CIIDH-DESCGUA-CONGCOOP, Guatemala, Informe 2006, p Under United States law, Section 2104(e) of the Trade Act of 2002 (TPA) requires that advisory committees provide the President, the U.S. Trade Representative (USTR), and Congress with advisory reports before the President enters into a trade agreement. The Labour Advisory Committee must deliver an advisory opinion as to whether such free trade agreements provide for equity and reciprocity within the area of labour and workers rights. 63 Report of the Labour Advisory Committee for Trade Negotiations and Trade Policy on the U.S. Central America Free Trade Agreement, Washington D.C., U.S.A, p Ibidem, p Reference is made to the labour standards enshrined in the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-Up, 1998; Article 16.8 CAFTA. 66 The U.S. Generalized System of Preferences (GSP), a program designed to promote economic growth in the developing world, provides preferential duty-free treatment for 3,400 products from 134 designated benefi ciary countries and territories, including 43 least-developed benefi ciary developing countries; See also U.S. Generalised System of Trade Preferences Guidebook, Offi ce of the United States Trade Representative, Washington D.C., February Report of the Labour Advisory Committee for Trade Negotiations and Trade Policy on the U.S. Central America Free Trade Agreement, Washington D.C., U.S.A, p. 10; Interview with the Executive Committee of CGTG, 16 October 2006, Guatemala Ciudad 15

16 In Guatemala, the ruling elite was well aware of the negative effects this free trade agreement would have. In fact, to obtain the votes for ratifi cation of the treaty, the President and the legislators reached an agreement that a number of complementary laws would be passed to mitigate the most harmful effects of DR- CAFTA on the poor, before the treaty would go into effect. In the end though, the agreement was not honoured, and the majority of proposed laws remains outside the parliamentary agenda 68. The conclusion is straightforward: DR-CAFTA will be detrimental to the poor and vulnerable segments of the population, if the agreement is not complemented by a strong and comprehensive social agenda 69. Fragile economic sectors such as agriculture must be protected. More investments must be made in education to reinforce the skills of the workforce. In light of the repeated appeals of the ILO Committee of Experts to the government of Guatemala to stop the anti-union repression 70, the labour chapter of DR-CAFTA must be strengthened with a compliance monitoring mechanism. With the decision of the European Union at the Vienna Summit of 13 May 2006 to initiate negotiations with Central America regarding an Association Agreement including the creation of a free trade zone, it is critical that these considerations will be incorporated in the upcoming negotiations. B. Informal economy As in many other developing countries, the informal economy is the rule rather than the exception in Guatemala. The National Survey on Employment and Income (ENEI) of 2004 found that 75.4% of the Economically Active Population (EAP) works in informal activities. In rural areas, informal work is the source of income for nearly 90% of the people 71. Women are more active in the informal economy than men. This survey defi nes informality as housekeeping, construction workers or day labourers, non-paid relative workers, employers with establishments with less than six workers, salary workers in establishments of six workers or less and freelancers 72. According to one study, 70% of the informal workers purchase their products through wholesale or retail salespersons. This describes informal workers as tradespeople, not as producers. Only 5% of the workers obtained their merchandise on their own 73. This explains the rich diversity of goods available in the streets and markets of Guatemala, where vendors either set up a stall or walk around with their goods on offer. In its 2006 report, the Offi ce of the Human Rights Ombudsman speaks of a serious social situation threatening the country. In our opinion, this trend towards precarious employment must be reversed by more social dialogue, which requires the free functioning of trade unions. Still, this sector of the economy gradually grows, for several reasons: Migration: both the armed confl ict and natural disasters (earthquake in 1976 and hurricanes in the last years) have generated migration fl ows from the rural areas to the urban centres. For those who make it to the cities, the informal economy is the only option to earn an income. Privatisation of public services: waves of privatisation (customs, electricity, telecommunications) have led to massive lay-offs. Additionally, the government no longer hires new permanent staff, but contracts people on a limited term, through the so-called 029 contracts. These are temporary contracts that allow to employ someone for a year or less, without even including the worker in the social security system. This labour precariousness forces people to seek other sources of income, such as the informal economy. DR-CAFTA : in light of the analysis presented above, this free trade agreement might entail thousands of small and medium enterprises to go out of business leaving an even higher number of people jobless. They have no choice but to continue their commercial activities in the informal economy. Regulations: the government does not invest enough in the creation of decent jobs, or in a proper legal framework that responds to the needs of the workers in the informal economy. A system with very high operational costs and meagre benefi ts, a system that does not take the interests of the majority into consideration, stands no chance of successfully regulating or transforming the activities of the informal economy 74. Although the informal economy is a key sector of the Guatemalan economy, producing 35% of the GNP 75, their workers are exposed to a series of grave problems. The main problem is undoubtedly the threat of forced evictions (desalojos). The streets, squares and parks of the historical and commercial districts of the cities constitute the natural space for the informal economy workers to develop their activities. Each day, they come to the city centre and set up their stalls on their spot. In Guatemala City there are avenues, streets and squares where street vendors have occupied the same spot for over 40 years. Recently, local authorities have been developing policies to recover the historical city centre, in order to restore its appearance and appraise it as a space for the citizens. As a consequence, street vendors must be removed from the public spaces in the historical city centre. In general, the police and army, which execute the eviction orders of the authorities, resort to excessive force. Merchandise is confi scated, stalls are dismantled and vendors, often women, young or elder people, are harassed and threatened. When they seek to recover their merchandise back from the police, workers usually discover that all or part of it is missing 76. In an interview with the representative of the General Direction of the Historical Centre of Guatemala City, Social Alert International emphasised that the interests of the informal economy workers must be taken into consideration as a priority. Instead of forcing people out, a social dialogue must be promoted to reconcile the rights and duties of the workers in the informal economy and the authorities with respect to public spaces. There are alternative solutions such as the registration of those informal businesses which are conveniently located, with payment of rental fees for the space. The municipality could also invest in the construction of markets that are accessible for consumers. In such a scenario, the state could provide these vendors with low interest credits so that they can buy their own stand. Any of these solutions must be discussed and negotiated with the trade unions. Secondly, the workers of the informal economy have no legal status, which keeps them from developing their business normally 77. They do not receive the benefi ts of services or economic infrastructure of the state. Additionally, they have no representation before the authorities, and therefore, they do not have a space to defend their interests or to negotiate access to public services. As a consequence, workers in the informal economy are not eligible for credits to develop or strengthen their commercial activities. Without legal status, banks refuse to grant loans, because the amounts requested are low nor can they give legal guarantees. 16

17 Thirdly, the lack of relations between the state and the actors of the informal sector has led to a total marginalisation. Through the media, public authorities have been constantly depicting the informal economy as a source of instability and criminality. On many occasions, trade unions and other social movements have stated that workers in the informal economy have no responsibility for the high rates of violence and criminality in the country. On the contrary, due to the lack of policies for a sustainable and inclusive development, or creation of decent jobs for all, many people choose to work in the informal economy instead of joining organised crime. In the debate on the informal economy, it is usually said that the workers of the informal economy have chosen to work so. It must be noted though that the state has a responsibility as well, whose policies contribute to the expansion of this sector. In Guatemala, politicians have not taken into consideration the needs of those who work in the informal economy. And although it is the least productive sector, the large majority of workers is active in it. In reality, there is need for social dialogue between the authorities and the informal sector, in order to develop a legal, economic and social framework, which may contribute to the regulation and transformation of the informal economy Ibidem, p. 19; M. A. Rodriguez, Analisis Critico del TLC Impactos y Consecuencias, CEIBA, Guatemala, Diciembre 2006, p Which is also recognised by the abovementioned World Bank report : DR-CAFTA: Challenges and Opportunities for Central America, World Bank, Central America Department, 28 June 2005, p Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC 95 th Session, 2006, p ; See also Chapter II, section B Instituto Nacional de Estadistica de Guatemala, Encuesta Nacional de Empleo e Ingresos 2004: 72 The Executive Committee of FESTRI Trade Union Federation of Independent Workers-, which is part of the CGTG, takes a similar approach to defi n- ing the informal economy in an interview with Social Alert International on 17 October Centro de Investigaciones Economicas Nacionales, Economia Informal: Superando los Barreras de un Estado Excluyente, CIEN, Guatemala, Mayo 2006, p J. R. Diaz Palacios, Carta Económica Economía Informal en Guatemala : la Regla, no la Excepción, CIEN, Guatemala, December 2005, p Centro de Investigaciones Economicas Nacionales, Economia Informal: Superando los Barreras de un Estado Excluyente, CIEN, Guatemala, May 2006, p Interview with the Executive Committee of FESTRI Trade Union Federation of Independent Workers- on 17 October Private businesses must be registered at the Registro Mercantil (Business Register) and obtain a commercial licence. 78 Similarly, see also: Centro de Investigaciones Económicas Nacionales, Economía Informal: Superando los Barreras de un Estado Excluyente, CIEN, Guatemala, May 2006, p

18 C. Maquilas 1. Maquilas in Central America Maquilas are mostly foreign- companies located in developing countries where they enjoy a special fi scal and economic status. With their activity they somehow contribute to the manufacturing of a product for export. They are merely a link in the global supply chain because they never manufacture the fi nal product or service and depend entirely on the provision of basic materials and on the market that will absorb their output. Maquilas started to emerge in developing countries in the 1970s and their numbers increased enormously due to globalisation 80. Maquilas are often multinationals which produce at a much lower cost compared to their country of origin. They seek to minimise production costs transferring some activities of industrialised countries to peripheral countries (delocalisation) especially to those areas where they fi nd cheap labour. The governments of the Central American republics receive these maquilas with open arms, providing all types of tax exemptions with the sole purpose of reducing unemployment rates. These companies also take advantage of the fl exibility of Central American governments with regards to fundamental social and labour standards. Therefore, labour is very precarious with salaries under the legal minimum, long working hours without compensation, absolute lack of trade union representation The case of Guatemala During the 1980s, the traditional export products (coffee, sugar, banana) had already lost importance and alternative products were being sought. This led the government to draft legislation which would favour the set up of maquilas. In 1989, Congress passed Decree , establishing the present legal framework for the establishment of maquilas. These companies were submitted to a very favourable tax regime. As long as the goods produced by the maquilas are exported outside Central America, these companies benefi t from: A total exemption of export taxes, for a 10-year period (Article 12); A tax exemption, including VAT, on the import of raw materials and machinery (Article 12). Through Decree 29-89, the legislator sought to promote foreign capital investment, domestic production and export activities. And indeed, the economic results are impressive. Guatemala is home to the greatest number of maquilas in Central America. The number of maquilas stands at 645, 43% of which corresponds to the textile sector; 19% to agriculture; 9% to manufacture 83. Apparel exports grew enormously from 5.5 million US$ in 1986 to 630 million US$ in Currently, maquilas provide jobs for workers, the majority are women 85. Maquilas in Guatemala are mainly owned by Korean and US capital 86. The CGTG is one of Guatemala s trade unions that offers its services not only to salaried workers, but also to workers of the informal economy. Within CGTG, the Federation of Independent Workers (FESTRI) organises essentially street vendors who work in public spaces. Currently, FESTRI has 25 affi liated unions from Guatemala City, Antigua, Chichicastenango, Panajachel, Esquipulas, Santa Lucia, Coban and Retalhuleu, comprising almost affi liates. In Guatemala City, FESTRI has established the Union of the 6th Avenue, which has today 350 due-paying members, but it actually represents almost 450 vendors who work on the 6th Avenue and its surroundings. Sixth Avenue is a main axis in Guatemala City, where each day, around 800 vendors set up their stalls. The name 6th Avenue has become a synonym of the struggle for the recognition of better working conditions in the informal economy. And there have been positive results. The town hall now recognises the Union of the 6th Avenue and negotiates with it. Additionally, the trade union has obtained a formal authorisation of the municipal authorities which allows all vendors of the 6th Avenue to use their vending spot for the moment. In spite of this authorisation, however, there is no doubt that in the long term, municipal policy aims at removing all informal stalls from the streets of the city centre. It is also true that the Union of the 6th Avenue is negotiating with the authorities about the construction of markets for these vendors. On several occasions the authorities have promised that public market spaces would be made available, whose stands would be sold primarily to the informal economy workers. Nonetheless, some questions remain: Will there be enough space for all vendors? Who will grant loans to vendors for the purchase of stands? Will these markets have a convenient location, considering vendors depend on numerous, frequent passers-by? The CGTG also seeks to respond to the fi nancial needs of the workers in the informal economy. A rotation fund was created, where workers can request small loans or micro credits from Q1.000 to Q The fund is administered by the workers of the informal economy themselves, who decide who should receive a loan and under which conditions. Lenders and benefi ciaries know each other. Under this pressure, all loans granted so far have been fully repaid. Organising the workers of the informal economy provoked repression against leaders and members of trade unions. In 2004 Julio Rolando Roquec, who was then Secretary-General of FESTRI, was shot. So far the investigations into his death have not produced any results. In February 2007, both Walter Aníbal Ixcaquic Mendoza and Norma Sente de Ixcaquic, who belonged to the National Front of Vendors of Guatemala, an organisation affi liated to the Federation of Independent Workers (FESTRI) and CGTG, were killed

19 However, the human and social cost is appalling. Since the law on the maquilas does not provide anything about workers rights, employers should respect the respective clauses of the Political Constitution of Guatemala and the Labour Code 87. The following examples show that the reality is totally different 88. a. Working hours These are endless in the maquilas. Work usually starts around 07:30 am and lasts approximately 10 to 16 hours. In order to achieve the production goals, workers are forced to work overtime, which are rarely paid, in violation of the Article 102 subparagraph g) of the Constitution and Article 121 of the Labour Code. Those who demand their right to overtime pay risk retaliation. b. Health and Safety at Work Workers do not have the minimum safety conditions at work, such as masks when handling toxic substances. Consequently many workers suffer from work-related diseases. Most of the maquilas do not have suffi cient restrooms. Health is not a concern in maquilas. These facts constitute a violation of Article 197 subparagraph i) and j) of the Labour Code. c. Guatemalan Institute of Social Security 89 In case of work-related diseases or accidents, the workers are supposed to receive from their employer a work certifi cate, which would allow them to receive free health care in health cen- 79 CLADEHLT, Denunciation N 322, 30 November 2004; ICFTU, Annual Survey of Violations of Human Rights 2005, Brussels, p. 123; see also Les Républiques Maquilas Les zones franches en Amérique Centrale, Oxfam Solidarité, Brussels, 1998, p Ibidem, p Decree of the Congress of the Republic of Guatemala: Ley de fomento y desarrollo de la actividad exportadora y de maquila: gob.gt/portal/ (superintendencia de administración tributaria-legislación/legislación aduanera 83 Centro Internacional para Investigaciones en Derechos Humanos, with data from the Ministry of the Economy: Maquilas.pdf 84 VESTEX, Statistics of the Guatemala Apparel and Textile Industry: ).pdf 85 Human Rights Watch, From the Household to the Factory Sex discrimination in the Guatemala Labor Force, HRW, New York, 2002, p VESTEX, Statistics of the Guatemala Apparel and Textile Industry. 87 Political Constitution of the Republic of de Guatemala, May 31, 1985; Labour Code, Decree N 1441, December 2, Most of the information provided comes from an interview with Mr Victoriano Zacarias, the Secretary General of FENATRA -Federacion Nacional de Trabajadores- and from a visit of Social Alert International to the premises of the maquila Giant Trading SA in Guatemala-City. 89 The Instituto Guatemalteco de la Seguridad Social (IGSS) is obliged by the Constitution (Art. 100) to implement the social security regime, fi nanced by the state, employers and workers. 19

20 tres of the Guatemalan Institute of Social Security (IGSS). Very often, however, employers do not provide these certifi cates and force workers to continue working. This is also true for pregnant women. As regards the payment of contributions to the social security scheme, the employer deducts 8% of each worker s salary and adds his own 14-percent share. Although workers contributions are effectively deducted from the worker s salary, the employer does not transfer these contributions including his own to the IGSS. This means that the worker cannot claim any form of social security. These practices are clear violations of Article 102, subparagraph k) of the Constitution and Articles 151, 152 and 153 of the Labour Code. d. Company shutdown At the end of the 10-year period of tax exemptions, managers shut down operations of the maquilas without prior notice to the workers and without paying the necessary compensation, in violation of Article 102, subparagraph o) of the Constitution. While workers are left on the street without a job, the same manager opens another factory under a different name, in another location, and resumes production with other workers. Hence, these new maquilas benefi t again from a 10-year period of tax exemptions. In the maquilas, where workers organise in trade unions, the management no longer waits for the exemption period to expire, but it closes the factory overnight. If necessary, materials and machinery are transported during the night to another location, where the new factory is set up 90. e. Freedom of association and collective bargaining When workers organise in trade unions, they become the target of retaliation and threats, or they are simply fi red without any explanation, which violates ILO Convention 97 91, Article 102, subparagraph q) of the Constitution and Article 206 of the Labour Code. As stated before, the ILO Committee of Experts as well as the Committee on the Application of Standards of the International Labour Conference 92 insisted that the freedom of association can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of trade unions. Both bodies therefore repeatedly urged the Government of Guatemala to ensure compliance with this principle in maquilas as well 93 and to promote and encourage voluntary negotiation between employers or employers organizations and workers organizations 94. f. Labour inspection Working conditions in maquilas are precarious. In case their fundamental rights are violated, workers can resort to the labour inspection. This is a technical department of the Ministry of Labour in Guatemala, with wide competences 95. However, the very functioning of the Labour Inspection faces several obstacles. This department lacks the necessary human and technical resources to guarantee compliance with labour rights. In fact, it has only 5 inspectors for the entire maquila sector, which is composed of hundreds of companies 96. Additionally, a ruling of the Constitutional Court has restricted the powers of labour inspectors, stipulating that they are not authorised to impose fi nes or administrative measures against companies that do not respect labour rights. The only alternative left is to fi le a case before labour courts, but procedures are extremely slow 97. Also, very few workers are willing to testify, due to fear of ending up on the black lists of the maquilas, which would prevent them from fi nding a job in other maquila companies. As is the case with other state agencies in Guatemala, corruption undermines the good performance of the inspections. Most of the time, complaints or denunciations submitted by the workers, trade unions, or the ILO do not result in any kind of administrative or judicial proceedings, which raises doubts over the impartiality of inspectors and fosters a culture of impunity. The National Federation of Workers (FENATRA) of the CGTG strives to organise workers in the maquilas. But the situation is diffi cult, because the political climate and the employers attitude are not favourable to trade unionism. Both leaders and members of trade unions are constantly threatened, imprisoned, and even murdered. On Sundays, the only day off for the workers of the maquilas, FENATRA organises assemblies where workers discuss their problems, seek the opinion of leaders of FENATRA and consider strategies to defend their rights. Social Alert International attended the assembly of the workers of CIT International and Confección La Fé, two Korean maquilas which stopped production in August and September 2006 respectively, leaving over workers without a job, most of which did not even collect their last paycheque. On behalf of these workers, FENATRA requested the competent court to issue an arrest warrant, so the directors of these factories could not leave the country. SAE International still operates, but the workers have not received any overtime pay in two years. Their Assembly decided to consult an attorney to determine whether there is a chance to claim this payment. The workers assembly of Giant Trading SA was more pessimistic, because there is fear that the factory might close down soon. On Saturday, October 14, 2006, part of the machinery was removed during the night. Many workers spend their nights now sleeping on cardboard boxes in front of the factory, hoping to hinder the removal of other machinery. The CGTG has begun negotiations with the owner, so lay-offs can be done according to the law. 20

21 g. Vulnerable groups in the context of maquilas The majority of the maquilas hire young women, who based on the cultural context, are more obedient and have a greater affi nity with that type of work 98. Birth control of women is part of the active policies of the maquilas. Thus, before being hired women are asked if they are pregnant, and then forced to undergo a pregnancy test that they must pay for themselves. Women who become pregnant while employed are entitled to prenatal health care, to maternity leave and breastfeeding rights 99. If they are members of IGSS, workers can receive prenatal and reproductive health care free of charge. However, many workers complain that they are not registered with IGSS even though their employee contribution is being deducted from their salaries. Others who are registered fi nd it often diffi cult, if not impossible, to obtain the necessary work certifi cate and the permission for time off to visit the IGSS facilities 100. Sometimes, women who become pregnant are fi red 101. At present, maquilas prefer to start production in rural areas close to the villages in order to hire indigenous women 102, because these women are traditionally more skilled in manufacturing textile products. A social change has thus occurred: many indigenous women have abandoned their traditional jobs as housemaids where they suffered all types of harassment- in favour of jobs in the maquilas where they also suffer all types of abuses, the difference being that unfair treatment is more visible in maquilas. Discrimination suffered by indigenous women in maquilas is twofold, based on their ethnicity and their gender. For example, indigenous women are searched more intensely when leaving the premises of the company because they are thought to hide things under their traditional cortes or Mayan skirts 103. Concluding, it has to be acknowledged that maquilas are an important source of employment in Guatemala. But it is employment that comes at a high price. Workers rights are constantly and blatantly violated, with women especially affected. Moreover, the work involved is low-skilled, there is no transfer of technology or knowledge and even the raw materials which are assembled in maquilas are imported. Obviously, the added value of maquilas for the development of Guatemala cannot be rated very high. A. Social protection 1. Social Security Social security must guarantee that people momentarily or permanently unable to gain an income, can still meet their needs, providing to this end fi nancial benefi ts or certain services. Similarly, the Agreement on Socioeconomic and Agrarian issues establishes that social security constitutes a mechanism of human solidarity in order to contribute to social well-being and lays the foundation for stability, economic development, national unity and peace 104. The Guatemalan Institute of Social Security (IGSS) is the institution in charge of managing social security 105. The IGSS currently covers the following risks: illness, maternity and occupational accidents (also known as EMA programme) as well as disability, old age and survival (also known as IVS programme). The IGSS is supported through a combination of employer, employee and state contributions. Workers registered with IGSS, receive its services free of charge. Whereas the Accord on Socioeconomic and Agrarian Aspects clearly stipulates that measures need to be adopted with a view to extending the coverage of IGSS as well as to improving the quality and the effectiveness of its services, the proper functioning of IGSS is seriously hampered. a. Limited scope as regards beneficiaries In accordance with the Organic Law 106 of the IGSS, all Guatemalan citizens who are an active part of the production process must be part of the social security system. Employers with more than three employees have the obligation to register those workers with IGSS 107. While it should cover all workers, IGSS covers only a small part of the economically active population (EAP), which implies that great part of the population is not covered. 90 Les Républiques Maquilas Les zones franches en Amérique Centrale, Oxfam Solidarité, Brussels, 1998, p ILO Freedom of Association and Protection of the Right to Organise Convention (C87) of 9 July 1948, ratifi ed by the Republic of Guatemala on February 13, The Committee on the Application of Standards is a permanent Committee of the International Labour Conference which is organised yearly by the International Labour Offi ce; the Committee supervises the application of Conventions and Recommendations at the national level by reviewing the reports of governments as well as the observations of the ILO Committee of Experts. 93 International Labour Conference, Report of the Committee on the Application of Standards, Part II, 93rd Session, June 2005, p According to some numbers, there are only 2 unions in the maquila sector and there appear to be only two collective agreements, cited in : ILO Committee of Experts, Application of International Labour Standards 2005, Report III (Part IA) Geneva, 2005, p Art , Labour Code ; Decree No 1441, December 2, ILO Committee of Experts, Application of International Labour Standards 2006, Report III (Part IA), Geneva, 2006, p Ibidem, p Human Rights Watch, From the Household to the Factory Sex discrimination in the Guatemala Labor Force, HRW, New York, 2002, p Article Labour Code. 100 Derechos Humanos de la Mujeres en Guatemala, Diagnóstico, Instituto de Derechos Humanos de la Universidad de San Carlos, Guatemala, 2006, p ; Human Rights Watch, o.c., p Ibidem, p Human Rights Watch, o.c., p Human Rights Watch, o.c., p Article 24, Accord on Social and Economic Aspects and the Agrarian Situation. 105 Article 100, Constitution de Guatemala; Offi cial website: Organic Law of the Guatemalan Institute for Social Security, Decree N 295, 30 October Article 102 Labour Code. 21

22 One reason for the limited coverage is the high number of people active in the informal economy. As stated before, 75.4% of the EAP works in informal activities. Currently, there are no plans that would allow the incorporation of workers of the informal economy into this social security system 108. Another reason is the growing precarisation of employment. In the maquila industry, employers refuse either to register their workers with IGSS or to deliver the required work certifi cate which workers need to access the services of the IGSS 109. More and more, employers use other forms of contracting workers, such as temporary work, in order to avoid the enrolment-obligation 110. Even the government started contracting staff on a temporary basis by means of contract 029 which expressly places these workers outside the scope of IGSS. b. Limited scope as regards territory On the other hand the IGSS programmes do not have nationwide coverage. Both maternity coverage (1953), and common disease coverage (1968) were created originally for the department of Guatemala and only after some time were they extended to the rest of the country. However, the departments of Petén, Santa Rosa and El Progreso were left out of the coverage. Coverage for accidents and the programme for incapacity, old age and survival enjoy national coverage 111. c. Limited funding Lack of funding is by far and large the most debilitating factor for IGSS. Article 100 of the Political Constitution establishes that the type of fi nancing of the IGSS shall be made through the payment of contributions by employers, workers and the state. In principle, the state must pay 2 quotas, both as employer, and the quota established in the constitution; but it usually does not pay this contribution. The state owed around 10 billion quetzal. Similarly, the private sector owes in employer contributions 500 million quetzal and autonomous and decentralised entities owed a total of 150 million quetzal 112. The IGSS does have an inspectorate, charged with verifying whether employers comply with their obligations 113, but it shares many problems with the Labour Inspectorate: limited staff, inadequate resources, problematic procedures, corruption. The victims of its weak enforcement capacity are the working men and women of Guatemala. 2. Public Health System In Guatemala, health care is also available in the large network of public health centres. This network consists primarily of hospitals, health centres, health posts and community centres but is mainly concentrated in urban areas. In addition, the lack of up-todate equipment, medicines and staff in the public health sector is alarming, which provoked a sector-wide strike between June and October These problems inevitably affect the povertystricken, mostly rural and indigenous communities hardest. Since the public sector covers only 45% of the population, the government implemented a system to extend the coverage. Under the Integrated System of Attention for Health (SIAS), the government contracts NGOs as health service-providers. These NGOs receive a fl at fee for every service provided. However, the services are mostly limited to a basic package. The staff working for these NGOs are mainly volunteers with no or limited training in health care. Furthermore, the State does not control or assess the quality and effectiveness of the services provided. This way of subcontracting health care to the private non-profi t sector is highly questionable in the light of Article 12 ICESCR, which obliges the Government of Guatemala to provide the highest attainable standard of health to its citizens. 22

23 E. Agrarian policies In Guatemala, more than 60% of the population depends for their subsistence on rural activities. In rural areas in Guatemala, land has a double dimension. It has an economic role because it is the main vehicle to develop income-generating activities. Moreover, it is a cultural, even spiritual, asset for indigenous communities. Land also constitutes a strategic instrument for rural and local community development. 1. Access to land However, Guatemala in one of the world s most unequal countries as to distribution of land. This inequity is clearly manifested in the fact that 92.06% of small agricultural producers only work on 21.86% of the territory, while 1.86% of commercial producers occupy 56.59% of the territory 115. Additionally, 72% of the country s fertile land is idle, which worsens the high concentration of ownership of productive land. The distribution of lands in Guatemala is ineffi cient and unproductive. The Peace Accords prescribe a comprehensive land reform through the promotion of ownership rights (via regularisation/ deed granting, land and ownership registry) and the access to land through market-assisted agrarian reform. To this effect a number of specifi c state agencies were created. The most important one, FONTIERRAS, was established to facilitate access to land for poor farmers who have no or insuffi cient land. The fund offers credit to peasants to buy idle state lands or private fi ncas sold on the market, while simultaneously providing technical assistance to its benefi ciaries to make acquired lands productive. However, studies show that FONTIERRAS fails to be an effi cient land access mechanism for farmers with no or insuffi cient land 116. The property listing of FONTIERRAS generally consists of poor quality land. As regards the negotiation over prices between landowners and potential benefi ciaries, the role of FONTIERRAS has been very weak as a mediator and it did not provide suffi cient capacity-building for the farmers involved in the process. Finally, farmers did not receive appropriate technical assistance to make the lands productive. As regards the regularisation of land, FONTIERRAS also falls short of its obligation to expropriate land which was illegally transferred to state and army offi cials during the armed confl ict. Today, land remains highly concentrated, and many historical claims of indigenous communities and even claims of refugees and people displaced by the confl ict are still not resolved Fincas The unequal land distribution in Guatemala is the result of a long history of land expropriation from indigenous people. Land expropriation started with the Spanish Conquest, but accelerated in the 1800s, with the aim of consolidating the land into large fi ncas or latifundios for commercialised large-scale coffee production. Subsequently, many indigenous communities were forced to work on the plantations. For a long time, they were the permanent workers or rancheros of the fi nca, who live and work on the estate, together with their families. In many instances, the owner of the estate provided for housing, health services and for schooling for the peasants children 118. In recent years though, the situation of the rancheros has deteriorated considerably. Since the global coffee crisis, coffee prices in Guatemala have plummeted because Asian countries, especially Vietnam, have begun producing large amounts of coffee at lower prices. Coffee plantations throughout Guatemala have since halted production, resulting in massive dismissals without compensations or other benefi ts. The crisis has also been used to introduce temporary work in the fi ncas. Workers are increasingly employed on a temporary basis ranging from two weeks to two months in the harvesting season. The peasants enjoy no labour or social protection but have no other option. Many indigenous peasants in the highlands (altiplano) do not hold suffi cient good arable land and migrate during the harvest to the fi ncas in the midlands (bocacosta). The infl ux of these seasonal migrant workers gives the fi nqueros (landowners) yet another argument to downscale the rights of the rancheros. For example, fi nqueros no longer pay per day but on the basis of productivity. At the time of the mission, the minimum salary for peasants was fi xed at 46Q (quetzales) a day. Finqueros regularly pay Q4 or Q5 per cuerda 119 cleaned; this means that workers need to work ten or twelve cuerdas to earn the minimum 108 Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, CIIDH-DESCGUA-CONGCOOP, Guatemala, 2005, p See earlier Chapter II, Section C Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, o.c., CIIDH-DESCGUA-CONGCOOP, Guatemala, 2006, p Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, CIIDH-DESCGUA-CONGCOOP, Guatemala, 2006, p EURO = 10.2 Quetzal; Situacion de los Derechos Economicos, Sociales y Culturales en Guatemala, CIIDH-DESCGUA-CONGCOOP, Guatemala, 2005, p Article 50, Organic Law IGSS. 114 Social Alert International interview with the Executive Committee of CGTG, 16 October 2006; Guatemala s National Institute of Statistics (Instituto Nacional de Estadistica), Agrarian Census B. Garoz, A. Alonso y S. Gauster, Balance de la aplicación de la política agraria del Banco Mundial en Guatemala , CONGCOOP, Guatemala, October 2005, p J. Ziegler, UN Special Rapporteur on the Right to Food, Mission to Guatemala, E/CN.4/2006/44/Add. 1, p Social Alert International interview with the staff of the Movimiento de Trabajadores Campesinos (MTC) de San Marcos, 23 October Cuerda is the most frequently used measure for land in Guatemala; 1 cuerda = 400m². 23

24 income, although a farmer can only clean three or four cuerdas a day 120. Landowners also avoid paying other legal entitlements by dismissing workers repeatedly to keep them on non-permanent contract status. Persistent discrimination against indigenous peoples is refl ected in an extremely high wage gap between indigenous and non-indigenous workers 121. One way to halt the exploitation of the rural workforce is to organise these workers. Within CGTG, FEDECAMPO -Federacion Campesina y Popular- organises some farmers in the South, the West and the North of Guatemala. The affi liates of FEDECAMPO include both salaried and not-salaried peasants; the former are those working on the large fi ncas, the latter are those working their own land and selling their products either by themselves or to an intermediary. With the organisation of salaried farmers, FEDECAMPO has become a menace to the fi nca owners. Union leaders are harassed by fi nca administrators, foremen and local authorities or simply dismissed. It also occurs that children of unionised workers are no longer allowed to attend the school of the fi nca 122. As a result, land occupations increase as communities desperately search for ways to enforce their rights. The response of the government has been forceful, involving the use of extrajudicial executions, excessive force and the burning of crops and homes 123. In the department of San Marcos, situated in the west of Guatemala, the MTC Movimiento de Trabajadores Campesinos- provides assistance to the dismissed fi nca workers. Amongst others, the MTC set up legal aid associations which give legal advice to dismissed peasants. It also organises people on the different fi ncas, seeking to reconcile the rancheros and the seasonal workers. This is not an easy task as both groups have at fi rst sight opposing interests and are even set up against each other by the landowners. However, by reconciling and jointly organising them, these workers are in a stronger position to enforce better working conditions. 3. Mining exploitation Recently, gold and silver mining started in the department of San Marcos. The open air extraction is environmentally hazardous because cyanide, which is used in the process, is dumped in rivers. This will cause severe pollution of the drinking and irrigation water of the local indigenous communities. For the operation of the mine, trees are cut down at a large scale, which causes soil erosion. The combination of polluted ground water and soil erosion makes the land in the surrounding areas unfertile and unproductive. The main concern though is that the indigenous people living in the surrounding areas were never consulted prior to the start of the mining. This clearly violates Article 6 and 15 of the Indigenous and Tribal Peoples Convention of the ILO 124, ratifi ed by Guatemala on 5th June ILO Convention 169 states that indigenous people should be consulted in matters that may affect them ; in the case of mineral or sub-surface resources, even if the State holds the property, the indigenous people living on these lands must be consulted to see whether their interests would be prejudiced by the exploitation of these resources. In order to assist the local indigenous population, the MTC organised sessions to inform and consult the people about the mining activities. On the basis of ILO Convention 169 and following indigenous customary law, they also organised a vote in two municipalities, Sipacapa and San Miguel Ixtahuacan, in which the mining was nearly unanimously rejected. Despite these efforts, the government granted a 25-year concession to Glamys Gold Ltd, the Canadian mining company, on the basis of the domestic mining law, Decree But soon denunciations followed. The local communities organised a demonstration against the project; again the authorities responded with excessive violence, leaving two people dead 126. The MTC and Madre Selva, an environmental organisation, decided to launch a complaint with the Constitutional Court, be- 24

25 cause the domestic mining law disregards international human rights law, in particular ILO Convention 169. According to the Article 46 of the Constitution of Guatemala, ratifi ed human rights conventions prevail over domestic law. This complaint, if successful, may open the door to claims for adequate compensation for the damages to their lands and health. It must be noted that also at the international level both the Committee for the Elimination of Racial Discrimination and the UN Special Rapporteur on Indigenous Populations denounced the granting of mining licences by the Ministry of Energy and Mines without prior consultation of the indigenous communities. The Special Rapporteur stated expressly that exploitation of underground natural resources has affected the indigenous people in a discriminatory way Social Alert International interview with a peasants organisation on Finca Las Delicias, 25 October 2006; this organisation occupied part of the fi nca as a protest against their unfair dismissal. 121 J. Ziegler, o.c., p Social Alert International interview with Mr José Pablo, Deputy Secretary-General of FEDECAMPO, 18 October 2006; J. Ziegler, o.c., p Amnesty International, Guatemala: Memorándum al Gobierno de Guatemala: Preocupaciones de Amnistía Internacional con respecto a la situación actual de derechos humanos, April 2005, available at Hereafter referred to as ILO Convention Law on Mining, Decree of 17 July J. Ziegler, o.c., p Comité para la Eliminación de la Discriminación Racial, Observaciones Finales Guatemala, CERD/C/GTM/CO/11, 15 May 2006, p. 5; R. Stavenhagen, Informe del Relator Especial sobre la situación de los derechos humanos y las libertades fundamentales de los indígenas, A/HRC/4/32, 27 de Febrero 2007, p

26 4. Conclusions and recommandations The signing of the Peace Accords paved the way for the transformation of the socio-economic, political and cultural structures of Guatemala. That was the hope and the belief of a nation. While the armed confl ict between the army and the insurgents did come to an end, a new war is waging between gangs (maras) and criminal organisations. There are now more killings per day than there were during the dark days of the armed confrontation. Although these groups are engaged in all kinds of criminal activities such as summary executions, drug traffi cking and corruption, they have largely escaped judicial proceedings because of their ties to high-level political, judicial and law enforcement offi - cials. Impunity is institutionalised. The development agenda of the Peace Accords was impressing. After ten years, though, the results are not felt by the people. While the political and economic elite bears the fruits of trade liberalisation, the large majority has to make a living in the rural areas where land is in the hands of a few or simply unproductive; in the unregulated and marginalised informal economy; in the maquilas which are notorious for their inhumane working conditions. Trade unionists, peasant workers, indigenous leaders and women s rights activists resist this consistent pattern of social injustice. But the situation of human rights defenders in Guatemala is indicative of the broader human rights problems in the country. Death threats, fears of imminent extrajudicial executions and assassinations of human rights defenders are alarmingly common. Few attacks against human rights defenders are investigated and even fewer result in convictions. Social injustice is institutionalised. To the Congress of Guatemala Increase the taxation levels substantially. Within a reasonable period of time, tax revenues must amount to 15% of the GDP. Allocate the additional tax income to social investment especially in the areas of health, education and employment. Ratify the Agreement on the International Commission Against Impunity signed between the UN and Guatemala on 12 December Reinforce the judicial system by increasing the allocation of resources. Guatemala is aware of its problems. Many of the solutions are detailed in the Peace Accords. People at all levels know the options available. The question is not just what should be done but more whether the ruling elite has the will to do so. In the light of the fi ndings of this report, Social Alert International makes the following recommendations. To the Government of Guatemala Respect and actively protect the role that human rights defenders, such as trade unionists, peasant workers, indigenous leaders and women s rights activists, play in a society based on the Rule of Law. Strengthen the capacity of the inspectors at the Ministry of Labour as well as the IGSS. The inspectorates must be competent to impose sanctions to ensure compliance with labour and social regulations. Devise the legislation necessary to mitigate the impact of DR- CAFTA on the poor and the vulnerable. Invest in social economy initiatives in order to create decent work for those that will be hardest hit, especially indigenous and peasant communities as well as small businesses. 26

27 To the International Labour Organisation Promote social dialogue and collective bargaining, in particular in maquilas. Where necessary, provide technical support to facilitate dialogue. Implement a Decent Work Country Programme in Guatemala, which specifi cally deals with the issue of evictions (desalojos) of informal economy workers as well as with the precarious working conditions on the fi ncas. Assist the Government to bring the national mining policy in line with ILO Convention 169 and the international human rights standards contained therein. To the European Union Include in the Association Agreement which is being negotiated between the European Union and Central America a clause which allows for the establishment of a supervisory enforcement mechanism in case the parties to this free trade agreement violate the ILO core labour standards. Channel more development aid directly to civil society organisations. To the Government of the United States Strengthen the labour chapter in DR-CAFTA. The agreement must allow for the imposition of sanctions on employers who do not respect the core labour standards. To the Management and Owners of Maquilas Respect the rights of the working force, as they are detailed in the ILO Conventions, the Political Constitution of Guatemala and the Labour Code. Ensure that workers can freely join trade unions and engage in collective bargaining with the trade unions. 27

28 Social Alert International dedicates this report to the CGTG and to all the brothers and sisters it lost in its enduring struggle for social justice in Guatemala, in particular Pedro Zamora, Secretary General of the Guatemalan Dock Workers Union STEPQ, and Walter Anibal Ixcaquic Mendoza and Norma Sente de Ixcaquic, members of the Frente Nacional de Vendedores de Guatemala (FESTRI), who were brutally assasinated early

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