236.   On April 6, 2001, the Inter-American Commission on Human Rights adopted its Fifth Report on the Situation of Human Rights in Guatemala, in which it presented the State with a series of recommendations. [61] In the chapter dealing with “The Rights of Indigenous Peoples” it served the State of Guatemala with the following recommendations intended to promote and protect the human rights of indigenous peoples:


1.    Fulfill all its obligations made in the peace agreements with respect to indigenous communities and their members and spelled out in the Agreements on the Identity and Rights of Indigenous Peoples, Socio-Economic Aspects and Agrarian Reform, and the Strengthening of Civil Authority and the Function of the Army. [62]


2.    Based on the wealth of documentation and evidence that exists, investigate, prosecute, and punish all persons responsible for the massacres and violation of the rights of individuals and indigenous communities to life, integrity, and other human rights which occurred during the armed conflict.


3.    Take the necessary steps and establish rapid and effective special mechanisms for settling conflicts related to ownership, and provide guarantees and legal security to the indigenous communities regarding the ownership of their properties, and provide state lands to the communities that need them for their development, as set forth in Article 68 of the Guatemalan Constitution.


4.     Foster respect for the labor rights of indigenous people taking into account the provisions set forth in ILO Convention 169 and monitor compliance with labor laws, especially those pertaining to domestic seasonal migrant workers who move to farms in the south and on the coast, and impose sanctions on employers who violate provisions in effect, as required by law.


5.     Adopt, as soon as possible, the measures and policies necessary to establish and maintain an effective preventive health and medical care system, to which all members of the different indigenous communities have access, take advantage of the medicinal and health resources of indigenous cultures, and provide these communities with resources to improve their environmental health conditions, including drinking water and sewage services.


6.     Develop policies aimed at the qualitative improvement of and social investment in rural areas in order to guarantee indigenous peoples equal opportunities and access to primary and secondary educational services, thereby improving internal efficiency and reducing illiteracy in these communities.


7.     Take positive steps in the educational, legislative, and other spheres regarding the general population, in order to reduce division and discrimination towards different ethnic groups in particular, to achieve equal opportunities, to reduce stereotypes and mistrust, and to reestablish the right of all Guatemalan citizens to dignity, free of discrimination.


237.   With respect to the IACHR’s first recommendation, regarding the commitments about indigenous peoples entered into by the State of Guatemala under the Peace Accords, in September 2001 MINUGUA stated that these had one of the lowest levels of compliance. [63] MINUGUA had to redefine its schedule for compliance with the pending commitments, including those dealing with multicultural issues; education reforms with bilingual and intercultural components; the promotion of the use of indigenous languages; regularization of land titles and of lands held by indigenous communities; combating de jure and de facto discrimination; legal protection of indigenous communities’ rights; conservation and administration of temples and protection of ceremonial centers; recognition of customary law; recognition of their forms of organization; and their participation at the local level and on the Development Councils.


238.   Several indigenous organizations have also said that the commitments regarding indigenous rights arising from the signing of Peace Accords have still not been met. The Agreement on Identity and Rights of Indigenous Peoples does not represent all the historic demands and aspirations of Guatemala’s indigenous peoples; it is, however, a good starting point that has encouraged indigenous participation, albeit in a nascent fashion, in the debate on Guatemala’s current situation. [64]


239.   The failure to meet or make significant progress with the commitments of the Peace Accords also has an impact on compliance with the IACHR’s third, fourth, fifth, and sixth recommendations to the State of Guatemala contained in the year 2000 report. These recommendations deal with land and labor rights and with the education, health, and basic services rights of indigenous peoples.


240.   In August 2002, with reference to the International Day of the World’s Indigenous Peoples, MINUGUA repeated its concern regarding the serious delays in enforcing the Peace Accord on the Identity and Rights of Indigenous Peoples and other international instruments, including the International Labour Organisation’s Convention 169 on indigenous and tribal peoples in independent countries, Convention 50 on the recruitment of indigenous workers, and Convention 64 on contracts of employment (indigenous workers), the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women, and other sundry conventions and declarations dealing with the eradication of discrimination. It stated that failure to comply with those commitments continues to generate levels of social, political, and economic exclusion that are intolerable in the modern world and doubtless foment acts of ethnic and cultural discrimination that undermine the full realization of democracy.


241.   Between April 2001 and November 2002 the government of Guatemala undertook a number of actions toward implementing the commitments; however, most of these are initiatives still at the early stages of negotiation pending full implementation. Irrespective of this, the Commission applauds the activities to date for expanding the coverage of the National Bilingual Education Program, whereby teachers (Kaqchikel, Mam, Q’eqchi’, Q’anjob’al, and Ixil) were given basic literacy training in their own languages; the consolidation of the operations of 13 Bilingual Teacher Training Schools in seven Maya languages; the establishment of six ethnic criminal defense offices, helping strengthen the multicultural and multilingual component of the law; and the definition of the concept of sacred places as part of the work of the commission charged with defining such locations. [65]


242.   With reference to the recommendation about the need to adopt legislative measures aimed at eliminating discrimination against indigenous peoples, on September 11, 2002, the Guatemalan Congress issued Decree 57-2002, adding Article 220-bis to the Criminal Code. [66] This provision imposes fines or prison terms on individuals who through their actions or omissions incur in discrimination, thereby hindering or preventing a person, group of persons, or associations the enjoyment of a legally established right, including customary rights, and it rules that discrimination on language, cultural, or ethnic grounds shall be considered an aggravating factor in the crime committed.


243.   The text of the article was criticized by a number of indigenous organizations [67] who, in general terms, stated that the legislature had not consulted with indigenous organizations about the text of the law, did not take into account the recommendations that those organizations had sent to Congress, and did not bring the amendment into line with the spirit of the Agreement on the Identity and Rights of Indigenous Peoples, of ILO Convention 169, of the Guatemalan Constitution, and of the International Convention on the Elimination of All Forms of Racial Discrimination. This clearly meant that it was a provision of a general nature that did not pay proper attention to the specific conditions of indigenous peoples and did not offer mechanisms and measures for preventing the racism seen in Guatemala against the Mayas, the Garífunas, and the Xincas. [68]


244.   The Inter-American Commission on Human Rights applauds the creation of a legal provision punishing discrimination in Guatemala. It believes, however, that the text should have been arrived at after consulting with the indigenous peoples of Guatemala. The Commission has, on repeated occasions, stated that legislative progress in the field of indigenous peoples’ rights strengthens the protection of human rights, but it has also said that legislation on its own cannot guarantee that human rights will be upheld.


245.   On October 9, 2002, the Official Journal of Central America published Governmental Agreement No. 390-2002, creating the Presidential Commission on Discrimination and Racism against the Indigenous Peoples of Guatemala, [69] composed of five individuals appointed by the President of the Republic in consultation with the indigenous organizations. The Commission commends this initiative and hopes that its pursuit of the goals set will lead to effective measures for the elimination of the discrimination and racism experienced by indigenous people in Guatemala.


246.   There is no information about other measures adopted by the Guatemalan government to eliminate discrimination against the country’s indigenous peoples.


247.   Finally, as regards the IACHR’s recommendation that Guatemala investigate, prosecute, and punish those guilty for the massacres and the violations of the right to life, to personal integrity, and to other human rights suffered by the country’s indigenous peoples during the armed conflict, the Commission has information indicating that the perpetrators have been neither prosecuted nor punished. Significantly, 83 percent of the victims of the armed conflict were members of the Maya people. In fact, in May 2002, the Commission lodged an application with the Inter-American Court of Human Rights against the State of Guatemala for the events of the Plan de Sánchez massacre.


248.   In its comments on the follow-up report’s chapter on the rights of indigenous peoples, the State of Guatemala said that it had undertaken a series of actions to orient public spending into priority development areas, promoting the development of small and medium enterprises; since these are a component in the sustainability of the development projects and programs being carried out in rural areas, it encouraged productive activities aimed at creating jobs and increased incomes for the beneficiary communities.


249.   The State of Guatemala provided the following examples of its actions:


-        Purchases of flat and overlock sewing machines, which were used to set up an assembly plant belonging to people (former combatants) who were uprooted, relocated, and resettled in the village of San Miguelito in Génova municipality, department of Quetzaltenango.


-        The productive activity underway in the community of San Antonio Ilotenango, Quiché department, where snowpeas are grown for international trade.


-        Technical assistance and help in opening up markets for the cabbage, string-bean, onion, and carrot crops exported from the village of Ojo de Agua, Cunén municipality, department of Quiché.


250.   In the fields of training and education it reported on the following actions:


-        Through the Educators for Peace and Development program, 884 teachers had been hired across the country, serving more than 25,000 boys and girls; the awarding of study scholarships, the strengthening of training in agricultural and industrial areas, and the implementation of the Minimum School Roof project, which has repaired the roofs of more than 3,000 schools in the country.


-         The building of 8,000 schools nationwide over three years of government, and the erection of perimeter walls, extended school buildings, refitted classrooms, provision of furniture and equipment for schools, museums, and cultural centers, with Q149,408,610.88 invested in education since January 2000.


251.   The State of Guatemala also said that between 2000 and 2001, the National Fund for Peace had worked on the following programs:


-        Assistance for the Victims of Human Rights Violations (AVIDEH) in the areas of education, infrastructure, agricultural supplies and equipment, health and mental health, productive projects and land, with total spending to date of USD $1.7 million.


-        Program for Development and Reconstruction in Quiché (PRODERQUI) in productive, environmental, and community investments in 204 completed and ongoing projects.


-        Program for Reconstruction and Local Development (PDL) in projects covering health, water and sanitation, education, support for productive activities, cultural heritage, infrastructure, natural resource protection and conservation, community and municipal training, in 72 projects.


-        Community Development program (DECOPAZ), in support of democratic processes and peaceful coexistence, promoting respect for the population’s civic and cultural values, strengthening community self-governance, projects in the fields of health, education, productive activities, with an investment to date of Q348 million.


-        Regional offices in support of reintegration, support for the peace process, institutional strengthening, productive projects, infrastructure and education, in 366 projects.


252.   As a part of the efforts intended to promote intercultural awareness in education, the Ministry of Education has worked to develop a bilingual, intercultural program. During 2002, recognition and respect were still given to cultural and linguistic diversity and to the values of the country’s four indigenous peoples, as a way to strengthen national unity and development and to overcome the hurdles of prejudice, discrimination, and exclusion. Several actions were carried out in this connection, including the printing and distribution of 378,000 bilingual texts in K’iché, Kaqchikel, and Mam. In addition, in order to make the transformation of the curriculum a reality, consultation workshops were held with different agencies in order to ensure the cultural and linguistic relevance of a national core curriculum.


253.   Seventeen child education schools were established, which will train preschool and primary level teachers (both monolingual and bilingual in Maya and Spanish), thus expanding education coverage in twelve of the country’s departments. The total number of students covered by bilingual education during 2002 was 177,975: 88,865 at the preschool level and 89,110 at the primary level (preliminary figures).


254.   The State of Guatemala also described the establishment of a Negotiating Panel comprising public officials and members of the national peasant coordination to discuss the country’s agrarian problems and its rural development; the Panel’s purpose is to analyze and propose comprehensive solutions to agrarian problems in the country.


255.   With respect to indigenous participation, the State of Guatemala noted that indigenous people enjoy full participation on the Joint Commission on Reforms and Participation, a product of the Peace Accords. This Commission has been working on matters such as creating consultation mechanisms for indigenous peoples, the outcome of which is to be a law on that matter, and the implementation of the Urban and Rural Development Councils, with emphasis on the participation of indigenous peoples in the adoption of local development decisions. Likewise, the State explained that the Municipal Code will allow the indigenous inhabitants and their authorities full involvement in the development of their municipalities.


256.   Finally, the State of Guatemala reported that the Ministry of Labor and Social Prevision’s ILO Convention 169 Unit has been holding seminars and workshops to promote the rights of indigenous peoples, based on the ILO’s international conventions, and that this has allowed indigenous organizations to contribute and participate in areas such as the following:


-        The establishment of an intersectoral commission for the implementation, analysis, and application of Convention 169, made up of indigenous organizations and public officials directly involved in complying with and enforcing ILO Convention 169.


-        The first diploma course on “Indigenous Law and Convention 169,” to be organized jointly by the Ministry of Labor and Social Prevision and the National Public Administration Institute (INAP). The course is aimed at influential public officials and leaders of indigenous organizations and political parties, and aims at establishing a policy of permanent training to foment a culture of multiethnic participation and to sensitize public officials in order to eliminate the discrimination, racism, and exclusion that exists within government offices.


-        Ministerial Agreement 525 of November 15, 2002, from the Ministry of Culture and Sport, authorizing ceremonies to be conducted in places sacred to Maya peoples so they can pursue their spirituality in the company of their spiritual guides or Ajq’ijab. In connection with this, the State reports that some indigenous organizations believe that requiring these spiritual guides to have an ID card to prove their status undermines their right to their world view; however, the State of Guatemala says that the requirement can be explained because the protected sites are universal heritage sites and therefore their use must be controlled and responsibilities observed, which does not affect either Convention 169 or the Agreement on the Identity and Rights of Indigenous Peoples. [70]


257.   The Commission appreciates the information that the State of Guatemala provided on the follow-up report’s chapter dealing with the rights of indigenous peoples, and it acknowledges the State’s initiatives in the fields of intercultural education, participation by indigenous peoples, support and promotion of rural productive activities, and, in particular, its actions toward eliminating the discrimination, racism, and exclusion in government offices that, as the State itself recognizes, has been occurring.


258.   Irrespective of the above, the Commission believes that the recommendations it made to the State of Guatemala in 2001 with the aim of promoting and protecting the human rights of indigenous peoples require greater efforts if they are to be implemented effectively, particularly those related to compliance with the Peace Accords, prosecuting and punishing those responsible for the massacres of Maya people that took place during the armed conflict, and ensuring effective respect and recognition for the human rights of indigenous peoples, including their economic, social, and cultural rights.




259.   In its Fifth Report on the Situation of Human Rights in Guatemala, the IACHR offered the Guatemalan State the following recommendations as regards the human rights of the country’s children:


1.     Adopt the necessary legislative and other steps necessary to give effect to its obligation to provide children with the special measures of protection required under Article 19 of the American Convention, as well as to its specific obligations under the Convention on the Rights of the Child. In particular, the Commission recommends that the State take urgent action to modify the Code of Minors of 1979 through effectuating the entry into force, without further delay, of the new Code of Childhood and Youth.


2.    In conjunction with the strengthening of the legal framework, that it strengthen the capacity of the judiciary to respond to violations of the rights of children with prompt and effective investigation, prosecution and punishment, through additional training for personnel assigned to such cases and through the oversight necessary to ensure that the cases are processed and progress in accordance with the principles of due process.


3.    Establish mechanisms for interinstitutional coordination among the institutions of the State directly responsible for implementing and enforcing the rights of the child and the nongovernmental organizations working in this sphere.


4.     Allocate the human and material resources necessary to give priority to the basic needs and rights of children; in particular, that it develop additional means to provide social services aimed at ensuring access to nutrition, clothing, and shelter sufficient for their proper development.


5.     Strengthen the regime of labor law to ensure that the illegal hiring of minors for work which is inconsistent with their age, health, and development is met with effective, severe sanctions that are enforced.


6.     Strengthen the labor inspection regime in place to protect the rights of vulnerable workers such as children, and to enforce the prohibition of hazardous and abusive labor conditions.


7.     Redouble efforts to ensure that every child between the ages of 7 and 12 has access to at least 3 years of primary education; and to give further priority to the development of bilingual education in the appropriate geographic regions of the country.


8.     Take immediate steps to create a commission to establish the fate of children and adults who were disappeared during the conflict.


9.     Work with the nongovernmental sector to amplify the services available to deal with the psychosocial effects of the conflict and all its sequelae in children, families, and communities.


10.   Develop the legal responses and services necessary to respond to the specific needs of children in situations of neglect and abuse, which are distinct from those of children at risk for reasons of delinquency.


11.   Amplify the responses that apply in the case of children at risk for reasons of delinquency so that the best interests of the child and the goals of rehabilitation and productive reincorporation into society are utilized as primary considerations in decision-making.


12.   With respect to adoption specifically, that it take the measures necessary to achieve the entry into force of an adequate legislative framework so as to ensure that the best interests of the child are a primary consideration in all decisions taken, to assure the free and informed consent of the parent or parents, and to guarantee legality, clarity, and transparency in the applicable procedures.


13.   Give serious consideration to the ratification of the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption.


14.    Take further steps to promote awareness of and respect for the rights of the child among children, parents, teachers and, in particular, State officials with responsibility for designing and implementing policies that affect children and their families.


260.   With regard to the first recommendation in Chapter XII, the IACHR notes that the Guatemalan State has adopted some initiatives to give effect to Article 19 of the American Convention on Human Rights and the other rights that stem from the Convention on the Rights of the Child. However, the IACHR would like to point out that the country continues to follow the 1979 Code of Minors and has not resolved the practical problems arising from the indefinite postponement of the entry into force of the Code of Childhood and Youth adopted in 1996. The IACHR notes with interest the presentation of a new project, known as the Code of Consensus, in October 2002, and it urges the State to finally resolve, as soon as possible, the problem of the incompatibilities between Guatemalan domestic law and the international commitments that it has assumed as regards the human rights of children and young people. It also recognizes the importance of the production of different educational materials. Nevertheless, it recommends systematic and thorough training for all justice workers who come into contact with children and young people, to ensure that in the cases they deal with, full attention is paid to the rights and guarantees enshrined in the Constitution and in the regional and universal treaties that Guatemala has signed; this will remain of particular relevance until domestic law is brought into line with established international standards for children’s human rights.


261.   With reference to the second recommendation, in addition to the absence of legal reforms, the IACHR draws attention to the absence of completed trials, with the proper attribution of responsibilities, in cases involving violations of children’s human rights. The IACHR therefore recommends that the Guatemalan State assign a team of officials the task of investigating cases in which children’s rights are violated and of bringing them before the courts within a reasonable time. It also recommends that the implementation of a nationwide training plan for officials and magistrates responsible for enforcing the law as it affects children and young people. This plan should include permanent evaluation mechanisms and its course materials should cover the problems arising from the failure to bring domestic law into line with the international commitments assumed by the country (e.g., direct enforcement of treaties, etc.) and approaches for eliminating discriminatory and violent practices against specific, vulnerable sectors of the underaged population. Finally, it should also establish an observatory for children’s human rights, involving both the governmental and nongovernmental sectors, charged with supervising the observance of those rights throughout the country.


262.   As regards the third recommendation, the IACHR points to several coordination efforts between different government sector agencies and different nongovernmental organizations. [71] Nevertheless, it notes that as yet there are no efficient agencies for managing interconnections between the governmental and nongovernmental sectors at either the national or local levels. The IACHR urges the Guatemalan State to carry out the institutional reforms necessary for this interinstitutional coordination to become a reality within the shortest time possible.


263.   Regarding the fourth recommendation, the IACHR has been informed of cases of entire communities whose children suffer from chronic malnutrition, a circumstance that was accentuated by the drought in the year 2002. [72] The Commission therefore urges the Guatemalan State to comply with the Fifth Report’s fourth recommendation and allocate the human and material resources necessary to guarantee the children of Guatemala their basic rights to life and nutrition. In addition, the IACHR has been informed of repeated cases of violence against children who live or spend much of their days on the streets. [73] It thus urges the Guatemalan State to provide these children with shelter programs that do not restrict their freedom of movement; to investigate and punish those guilty of violence against street children; to develop programs to enroll those children in schools and to ensure they receive health care appropriate to their age, gender, and general physical condition; to develop programs to strengthen their families; and, finally, to develop policies aimed at eliminating the reasons for which these children live on the streets and suffer all kinds of abuses, mistreatment, violence, and oppression. Thus, in accordance with the National Action Plans adopted following the World Summit for Children, the Commission believes it is of crucial importance that the Guatemalan State implement, without further delay, a Plan of Action on behalf of its children and young people who live on the streets.


264.   In connection with the fifth and sixth recommendations in the Fifth Report, Guatemala has taken an important step forward with its October 11, 2001, ratification of Convention 182 banning the worst forms of child labor. It has also pursued a significant number of initiatives aimed at abolishing child labor and upholding the right of protection against all forms of labor abuses and exploitation. Nevertheless, the Commission points out that child labor persists as one of the main violations of children’s human rights found in the country. For that reason, the IACHR recommends a complete and substantial effort to bring the law into line with Conventions 138 and 182, and the creation of effective mechanisms to enforce those provisions and severe sanctions to punish their violation. The Commission suggests the creation of school inclusion programs for these children; and, if so required by the community in question, for these programs to take account of the cultural characteristics of the attending children, employment programs for their parents, education scholarship programs, etc. Finally, a national awareness campaign about the harmful effects of child labor could be launched.


265.   As regards the seventh recommendation, the State of Guatemala is urged to make all material and human efforts to ensure basic education for all children of school age, in compliance with the provisions of the Protocol of San Salvador and the Convention on the Rights of the Child, and to develop specific programs that pay due attention to children with special learning needs. Finally, the Commission believes the State must adopt the measures necessary to guarantee the right to education of children from indigenous peoples in a way that respects their cultural characteristics.


266.   With respect to the eighth recommendation, the Commission understands the delicate nature of the matter and applauds the Guatemalan State’s efforts to coordinate with civil society in order to discover the whereabouts of the children who were kidnapped, disappeared, or abducted during the armed conflict. Likewise, since the passage of time has such a particular effect on children, the Commission believes it is vitally important that a National Commission be set up as soon as possible, composed of representatives of both the government and civil society, with broad powers for demanding information and the task of determining exactly what happened with each and every child who disappeared or whose identity was swapped during the conflict.


267.   Regarding the ninth recommendation, the Commission has seen isolated initiatives intended to deal with the psychological and social effects of the conflict and its aftermath among children, their families, and their communities. Nevertheless, along the same lines as in the third recommendation, the IACHR recommends interinstitutional coordination between governmental and nongovernmental sectors in order to establish a national policy on these matters with the necessary resources and correct technical tools. Similarly, since some experiences have already proven successful, the IACHR recommends that the State monitor and assess all the existing programs and implement and disseminate the best practices that exist in the country in this area, regardless of whether they are carried out by state employees or private agents.


268.   With reference to the tenth recommendation, the Commission insists on the terms of the first recommendation, which aims at bringing the legal and institutional system for the protection of children into line with Guatemala’s international commitments. In this regard, the Commission repeats its comments about the numerous violent attacks this year against street children, and notes that to date it has received no information about a reply from the Guatemalan State commensurate with the seriousness of these public reports.


269.   With reference to the eleventh recommendation, the Commission commends certain initiatives to introduce specific guarantees into the specialized justice system governed by the 1979 Code of Minors. However, the Commission points out that until Guatemala introduces a law that establishes a special system of responsibility for adolescents accused of crimes, full observance of the array of substantive rights and procedural guarantees recognized to all individuals under the Guatemalan Constitution, the American Convention, and, particularly as regards young people, the Convention on the Rights of the Children will continue to be a pending task for all the boys and girls entering that special system for “minors.” Similarly, Guatemala should develop programs for adolescent offenders based on international standards for preventing juvenile crime; these should work for the social rehabilitation of adolescents found guilty of crimes, offer a range of specific punishments, and only resort to detention in a specialized facility for the most serious criminal offenses, for the shortest time possible, and always for a specified term.


270.   In connection with recommendations 12 and 13, the IACHR would like to note the submission of draft legislation to Congress, in August 2002, that duly reflects international adoption rules. It also applauds the signature of The Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption. Similarly, it insists on the need for the country to establish, as promptly as possible, a legal framework that regulates adoption as an exceptional measure for protecting a child and guaranteeing his or her right to a family; that prevents children from being separated from their families on account of the shortage of material resources within the family nucleus; that pays due attention to strengthening those ties, whenever possible; and that also gives priority to the right to community coexistence, identity, and nationality, all within the framework of a process that guarantees legality and transparency.


271.   Finally, in connection with the fourteenth recommendation, the IACHR would like to insist on the need to educate children and adults–mothers, fathers, and officials from different branches of the government–in a culture that respects the human rights of boys and girls based on the principles of nondiscrimination, nonviolence, the primacy of childhood, dialogue, and joint responsibility.


272.   In its comments on the report, the State submitted information about the recommendations drawn up by the Commission in its Fifth Report on the Situation of Human Rights in Guatemala. In connection with the first recommendation, the State submitted information describing a number of initiatives intended to help guarantee certain economic, social, and cultural rights of children. One of these is compliance with Governmental Agreement 310-2000, Article 1 of which defines the following lines of action: building houses and rural community shelters; building and equipping schools, government buildings, community facilities, and sports fields; educational and recreational programs; provision of sheet metal, accessories, and material for construction projects in rural areas; food assistance program; support for Peace Projects, the Edupaz program, Agricultural Promoters, and programs carried out in conjunction with friendly countries and international finance agencies.


273.   It also explained that in the second half of 2001 and first half of 2002, Congress enacted four laws with a political and social impact that specifically strengthen actions dealing, either directly or indirectly, with children.


274.   The Social Development Law, a 2001 decree, sets the institutional framework whereunder the State is to permanently monitor and report on the social conditions prevailing amongst the population, assume the task of improving such social indicators as mother-and-baby mortality, and provide attention to vulnerable groups through social protection networks, all in accordance with multiculturally aware guidelines and respect for human dignity.


275.   Decree 12-2002, the Municipal Code, is actually a new code and not merely a series of amendments. Its Article 36, dealing with how Municipal Councils’ committees are to be organized, stipulates that certain committees are to be obligatory, including those responsible for education, intercultural bilingual education, culture and sport, human rights and peace, and family matters, women, and children. These committees support actions in favor of the children of different indigenous groups, encourage the strengthening of human rights in a decentralized fashion, and allow the creation and consolidation of the Municipal Councils of Children and Young People referred to in the Code of Childhood and Youth. [74]


276.   The Law on Urban and Rural Development Councils, Decree 11-2002, promotes community participation and the design of development policies at different levels, and it follows up on the implementation of policies, plans, programs, and development projects for their incorporation into policies, plans, programs and development projects at the regional, departmental, and municipal levels. Among the multiple functions given to these councils at each level (national, regional, departmental, municipal, and community), it is those at the community level, set up and strengthened in compliance under the Peace Accords, that guarantee the organized participation of the most remote communities in putting forward and resolving their problems and needs.


277.   The State noted that it has worried about how to harmonize laws that are obsolete and unconstitutional, yet still current, with international legislation, such as the Convention and a Code of Childhood and Youth, which has been approved but is not in force. It also referred to the drafting and distribution of a manual for justice officials. In turn, the Supreme Court of Justice has set up several minors’ courts around the country, where the advantage is that the judges deal solely with such cases, thus complying with the requirement of specialized justice set forth in the Constitution.


278.   With respect to the problem of the Code of Childhood and Youth, the State explained that between the issuing of Decree 78-96 and September 2002, a series of incidents had occurred, making the Code of Childhood and Youth one of its most controversial laws. It believes that the controversy over this law has been a beneficial and valuable experience for civil society and the State of Guatemala, in that it encouraged wide-ranging discussions and, ultimately, stirred up a degree of awareness in support of the Convention. It added that in light of the controversy, Congress deferred the enactment of this law intended to protect children and young people.


279.   To give the different groups that had expressed disagreements with certain articles the opportunity to speak, by means of Decree 12-99 Congress set up a Follow-up Commission on the Code of Childhood and Youth. Under this decree a range of
bodies–including the Social Movement for the Rights of Guatemalan Children and Youth, the Episcopal Conference of Guatemala, the Defense Office for Children and Youth of the office of the Ombudsman for Human Rights, the Latin American Council of Churches, and the Evangelical Alliance of Guatemala–submitted a new version of the Code reflecting the agreements they had reached.


280.   Finally, as a precedent for current and future legal inquiries into the status of the Convention on the Rights of the Child under the Guatemalan legal system, the Constitutional Court issued a ruling upholding the preeminence of international law over ordinary legislation, based on Article 46 of the Guatemalan Constitution, when dealing with human rights related matters.


281.   In connection with recommendations 5 and 6, the State explained that Decrees 13 and 18-2001, issued by Congress, had given the Ministry of Labor and Social Prevision powers to sanction breaches of the labor laws. It reported that during 2002, a total of 4,000 resolutions containing sanctions were issued and Q545,000 in fines was collected by the Administrative Sanctions Section of the General Labor Inspectorate. It added that in compliance with ILO Convention 182, ratified by the State of Guatemala in Governmental Agreement 347-2002, the National Commission for the Eradication of Child Labor was established. It was installed on November 29, 2002, with the participation of different governmental and non governmental sectors and representatives of international organizations.


282.   The State of Guatemala noted that it had assumed the commitment of addressing the problems of child labor in 1990, by ratifying the Convention on the Rights of the Child and ILO Convention 138 on the minimum age for admission to employment, and again, in 1996, by signing a memorandum of understanding with the ILO to develop a National Plan for the Eradication of Child Labor and to implement the International Program on the Elimination of Child Labor (IPEC). In connection with this, the Ministry of Labor and Social Prevision held a tripartite consultation in 1999, the result of which was the National Plan for the Prevention and Elimination of Child Labor and the Protection of Working Adolescents, which covers six axes: education, health, promoting adult employment, protection, research and social mobilization, and monitoring.


283.   In compliance with Chapter II, Social Development, Section E, subsection D, of the Agreement on Socioeconomic Issues and the Agrarian Situation, dealing with labor laws, labor inspection services have been decentralized and increased through Ministerial Agreement No. 182-2000 of May 4, 2000. This contains the Labor Ministry’s Administrative Decentralization Regulations, intended to strengthen oversight of compliance with domestic law and with the international labor treaties that Guatemala has ratified.


284.   The State claims that it is very difficult to measure the participation of Guatemalan children and adolescents in economic activities, because those activities are both illegal and invisible. Many of them are hazardous to health and expose children and youngsters to a series of work-related risks, such as long working hours, tension, and difficult conditions; they also hinder their attendance at school, denying them the ability to become competitive job-seeking adults on account of their lack of training and education.


          285.   The National Statistics Institute (INE) conducted a survey of family incomes and expenditures in 1998-1999. The results indicated that at least 821,875 boys and girls aged between 7 and 14 worked, accounting for 34.1 percent of all Guatemalan children in that age bracket; as for adolescents aged between 14 and 18, the 1994 population census gave a total of 644,569, equal to 70 percent of the total group.


          286.   At present a monitoring effort is being carried out jointly by the Labor Ministry and the Child Worker Unit, UNICEF, and IPEC/ILO. This will help empower local agents, such as community leaders and teachers, who will develop programs of action and the baselines to be used in assessing these programs’ impact and the qualitative results obtained by the team of monitors that is working to bring about a change of attitudes in the community.


          287.   With respect to dangerous work involving children, the Labor Ministry’s Social Protection Directorate has been ordered to create a National Network to tackle the problem of children employed in dangerous productive processes.


288.   The State also noted that the government was particularly interested in and concerned about effectively addressing the different problems faced by the country’s children and youths and the commercial sexual exploitation of boys, girls, and adolescents. This interest was expressed during the official presentation of the Plan of Action that the Secretariat of Social Welfare of the president’s office gave to the social cabinet, at which representatives of several ministries stated their willingness to support the issue from the realm of their particular jurisdictions.


289.   With reference to the twelfth recommendation, the State explained that the institution of adoption is provided for in Article 54 of the Constitution, which stipulates that the State is to recognize and protect adoptions. The adoption process is regulated by the Civil Code, Articles 228 to 251. In addition, in 1997 the Regulatory Law for the Notarial Processing of Matters of Voluntary Jurisdiction was enacted, which slightly modified the procedure for adoptions by authorizing their processing before a lawyer and a notary; thus, when an adoption is legalized using this method, it does not require a family judge to hear the case and issue a resolution.


290.   The civil society and the State are currently working together on drafting a law to regulate adoptions. The work has been supported by the chairman of the congressional Committee for Minors and the Family and coordinated by the Secretariat of Social Welfare of the president’s office.


291.   The State finally points out that at present, government agencies and nongovernmental organizations are working to draw up a legal framework that will provide domestic and international adoptions with greater legal force and certainty.


292.   With regard to the eighth and ninth recommendations, the State indicated that it is currently working with civil society to draw up a work proposal with the Mental Hygiene League to address a certain number of cases involving disappeared children. It should be noted that the process by which the State and nongovernmental organizations have come together on such sensitive issues has been gradual but that the government firmly intends to continue building bridges of communication to enable them to combine their efforts on these matters. It also reported that the mental health group operating within the Ministry of Public Health, together with other groups of NGOs, runs programs that carry out community psychosocial readaptation efforts among sectors of the population affected by the armed conflict. At present, through their mental health programs, the Mental Hygiene League and the Ministry of Health are covering a number of municipalities where they provide psychotherapeutic help, and ECAP is working with the victims of the armed conflict.  

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[61] OEA/Ser.L/V/II.111. Doc.21 rev.

[62] Agreement on Identity and Rights of Indigenous Peoples, signed in March 1995; Agreement on Social and Economic Aspects and Agrarian Situation, signed in 1996; Agreement on Strengthening of Civil Authority and the Function of the Army, signed in September 1996, between the Government of the Republic of Guatemala and the Guatemalan National Revolutionary Unit (URNG), with the participation of a Civil Society Assembly.

[63] The United Nations Verification Mission in Guatemala (MINUGUA) began work in November 1994. In December 1996, following the signing of the Agreement for Firm and Lasting Peace, MINUGUA was charged with verifying compliance with all the Peace Accords that then came into effect.

[64] In: The Situation of Indigenous Peoples in Guatemala. Document submitted at the hearing before the IACHR, October 14, 2002.

[65] Government of Guatemala. Progress Report June to July 2002. Follow-up Matrix of Issues Identified by the Consultative Group, February 2002. Guatemala, August 12, 2002.

[66] Decree No. 57-2002 of the Guatemalan National Congress, published on October 9, 2002. Article 220-bis of the Criminal Code. Discrimination: Discrimination shall be taken as meaning any distinction, exclusion, restriction, or preference based on gender, race, ethnicity, language, age, religion, economic status, illness, disability, civil status, or any other grounds, reason, or circumstance that impedes or hinders with respect to a person, group of persons, or associations the enjoyment of a legally established right, including customary rights, pursuant to the Constitution of the Republic and to international human rights treaties.

Any person who through action or inaction incurs in the behavior described in the previous paragraph shall be punished with a prison term of between one and three years and a fine of between 500 and 3,000 quetzals.

The penalty shall be increased by one third:

a)  When the discrimination stems from language, cultural, or ethnic reasons.

b)  For any person who in any way and through any medium disseminates, supports, or encourages discriminatory ideas.

c)  When the action is by a public employee or official in the exercise of that position.

d)  When the action is by a private citizen while providing a public service.

[67] Maya organizations that expressed their rejection of the procedure and content of the antidiscrimination text adopted by Congress: CONAVIGUA, Political Association of Maya Women, Maya Defense Office, SAQBE’ Maya Center, Rigoberta Menchú Foundation, Maya Decade, Council of Maya Organizations (COMG), Coordinating Office of Indigenous and Campesino Organizations (CONIC), XELJU’ Civic Committee, Defense Office for Indigenous Women (DEMI), Coordinating Office of the Xinca People of Guatemala (COPXING). In: The Situation of Indigenous Peoples in Guatemala. Document submitted at the hearing before the IACHR, October 14, 2002. See also: Prensa Libre, September 12 and 13, 2002.

[68] Information Bulletin No. 1, Year 1, week of October 16-26, 2002, Tzujnel, Tob’nel, K’astajnel, Maya Defense Office, Guatemala, C.A.

[69] The Presidential Commission on Discrimination and Racism against the Indigenous Peoples has the following functions: (a) Advising and assisting different State agencies and officials, as well as private institutions, in the development of effective mechanisms to combat discrimination and racism against indigenous peoples in Guatemala. (b) Designing public policies that guarantee an absence of discrimination and racism against indigenous people, and following up on their implementation. (c) Monitoring policies within private agencies, and suggesting guidelines to be adopted for tackling the problem of discrimination in a positive fashion. (d) Serving as a liaison between indigenous peoples’ organizations and the executive branch of government vis-à-vis discrimination and racism. (e) Keeping a register of reports of incidents involving racism and discrimination, and forwarding them to the competent agencies. (f) Presenting the President of the Republic with six-monthly reports about progress with how the rights of indigenous peoples are being respected and exercised; these reports are to be made public. (g) Drawing up reports on indigenous affairs that the State of Guatemala is required to submit to international organizations. (h) Promoting public awareness campaigns against discrimination. (i) Managing and administering national and international cooperation for performing its duties. (j) Coordinating actions at the national level with organizations of indigenous peoples interested in the work of the government Commission charged with defining policies and actions in the international arena relating to the rights of indigenous peoples. (k) Other such functions as the President of the Republic may assign it. Governmental Agreement No. 390-2002, October 9, 2002.

[70] The Commission was told by indigenous organizations that this government agreement has been criticized because its content was not consulted with the Commission for the Definition of Sacred Places and that its Articles 1 and 9 usurp the responsibilities of Maya spiritual guides. Press release from the National Council of Sacred Places, which comprises the Oxlajuj Ajpop National Conference of Ministers of Maya Spirituality of Guatemala, the Association of Maya Priests of Guatemala, the Council of Elders, the Kaquljá Foundation, and the Kaqchikeles Confederation of Ajq’ijab Leaders. November 22, 2002.

[71] The Social Movement on behalf of Children, different subject-specific intersectoral coordination offices, etc.

[72] Press report .

[73] In a note dated November 11, 2002, the IACHR expressed its concern to the State and asked it for information on the measures it had adopted to protect children and young people who live on the streets.

[74] Code of Childhood and Youth. Articles 92 to 95; although these legally have been placed on hold, some Municipal Councils have in fact already been set up.