PERMANENT MISSION OF GUATEMALA

PRELIMINARY OBSERVATIONS OF THE STATE OF GUATEMALA
ON THE DRAFT AMERICAN DECLARATION ON THE
RIGHTS OF INDIGENOUS PEOPLES

The State of Guatemala has the following preliminary comments on the Draft American Declaration on the Human Rights of Indigenous Peoples, considering that this Declaration is of profound political and social significance for the rights of minorities and indigenous peoples in America and provides for specific measures that the signatory states undertake the moral obligation to promote in order to make the Declaration a reality in each of the states parties.

The State of Guatemala promotes equality among its citizens, without any discrimination whatsoever, establishing within its political constitution specific provisions on indigenous peoples; in the international field, it has ratified such important instruments as Agreement 169 of the International Labour Organisation on Indigenous and Tribal Peoples, which entered into force on June 5, 1997. As part of the peace process, initiated in 1997 and concluded on December 29, 1997, major agreements were signed by the parties (the Government and the Guatemalan National Revolutionary Union), and in particular the Agreement on the Identity and Rights of Indigenous Peoples, which at the current time is the most important frame of reference for state policy on all economic, political, and social aspects of the lives of Guatemala’s indigenous majority.

Guatemala is currently in a process of conciliation, coordination, and participation by all sectors in pursuit of national unity, peace building, and a system without exclusions of any kind, which places the country in a special situation.

The following preliminary observations are the result of an analysis of the draft Declaration conducted as part of a consultation process with various state institutions and in the light of the country’s political constitution, taking into account other closely related instruments, such as the peace accords and ILO Agreement 169. The consultation process with state institutions has still not been completed, so these comments are preliminary in nature.

COMMENTS ON THE DRAFT

ARTICLE IV. LEGAL STATUS

In Guatemala, indigenous peoples do not enjoy legal status. Rather, the legal status of each individual member of an indigenous group is recognized in accordance with domestic law. In order for the legal personality of indigenous peoples to be recognized, individuals must jointly complete the legal formalities required.

The recognition of legal status in respect of indigenous peoples without observing the applicable formalities would be discriminatory towards the non-indigenous population, who themselves would be required to complete such legal formalities to obtain legal status.

Accordingly, the State of Guatemala could not support the adoption of this article.

Article VI.1 provides that indigenous women, men, and children must be permitted to exercise, without discrimination, their civil, political, economic, social, cultural, and spiritual rights. Under Guatemalan legislation, minors (with no distinction as to race or sex) are entitled to enjoy such rights but not to exercise them through certain acts; in other words, they are protected by law and may not exercise certain rights or assume obligations until they are of legal age (eighteen). Consequently, minors do not have legal capacity to exercise political rights.

Accordingly, the State of Guatemala could not support the adoption of this article.

ARTICLE VII. RIGHT TO CULTURAL INTEGRITY

With respect to paragraph 2 of this article, the words "have been dispossessed" leave in doubt whether the provision refers to the past or future. This could result in conflicts concerning the retroactivity of law in the states.

The Political Constitution of the Republic of Guatemala recognizes the rights of indigenous peoples to their cultural integrity, indigenous forms of life, customs, traditions, forms of social organization, institutions, practices, beliefs, values, forms of dress, and languages. A nation’s historical and archeological heritage, as part of the national patrimony, receives protection and special attention from the state, with a view to preserving its characteristics and safeguarding its historic value and cultural objects. Restitution of, or indemnification for, such objects, inasmuch as they form part of the cultural heritage of the nation, cannot occur.

The Agreement on the Identity and Rights of Indigenous Peoples recognizes such cultural rights as the right of the Mayan Garifuna, and Xinca peoples to participate in the preservation and administration of ceremonial temples and centers.

It is recommended that this article be revised so as to exclude the restitution and indemnification provisions and provide that indigenous peoples are entitled to participate in the preservation and administration of the country’s historical and archeological heritage.

ARTICLE IX. EDUCATION

Paragraph 1 could give rise to the inadvisable establishment of an educational system different from the national education system of each state. It must be noted that in Guatemala, under the Executive Branch Act, the Ministry of Education establishes the National Education System. This article would therefore be contrary to Guatemalan legislation.

What would be advisable to establish in the draft Declaration is that the educational system should be adapted to the cultural and linguistic needs of each state, and that indigenous communities should be permitted to participate in the design of their own educational systems. The Agreement on the Identity and Rights of Indigenous Peoples, which forms part of the Firm and Lasting Peace Agreement, in Section G, "Educational Reform," provides that the educational system "must respond to the cultural and linguistic diversity of Guatemala, recognizing and strengthening the indigenous cultural identity, the values and educational systems of the Mayans and other indigenous peoples, access to formal and informal education, including indigenous educational concepts in the national curricula." To that end, the Government undertakes in the Agreement to promote reform of the National Educational System to give it the following characteristics inter alia:

1. "Regional decentralization allows for adaptation to linguistic and cultural needs.

2. Communities and families, as a source of education, play a leading role in defining the academic curricula and schedules and in proposing the appointment and removal of teachers so as to reflect the educational and cultural interests of the community.

3. The philosophical, scientific, artistic, pedagogical, historical, linguistic, and social policy educational concepts of the Mayan and other indigenous peoples are included as a component of the comprehensive educational reform."

ARTICLE X. SPIRITUAL AND RELIGIOUS FREEDOM

With regard to paragraph 3 of this article, the Political Constitution of the Republic of Guatemala provides that objects such as tombs and relics form part of the national cultural heritage, are property of the State, and are under its protection. Accordingly, Article 3 would be contrary to our Constitution, so Guatemala could not support the proposed text.

ARTICLE XV. THE RIGHT TO SELF GOVERNMENT

Paragraph 1 promotes autonomy for indigenous peoples that could give rise to a state within another state, a situation that would certainly affect the rule of law in the states parties. A provision of this type would be contrary to the Political Constitution of the Republic of Guatemala, whose Article 142 provides: "Sovereignty and territory. The state exercises full sovereignty over: (a) national territory, consisting of its soil, subsoil, internal bodies of water, territorial seas–as defined by law–and the air space above these components; . . ."

Accordingly, the State of Guatemala could not support the proposed content for paragraph 1, since it could generate serious distortions for national unity and give rise to radical positions detrimental to the peace process.

It is recommended that this provision be replaced with wording that would provide for the participation of indigenous communities in decisions on matters affecting them, particularly as regards the development process, education, health, culture, and infrastructure. Such wording could stipulate that the state must promote, respect, and recognize the organizational modalities of indigenous communities and create mechanisms enabling them to participate jointly with local authorities in decision-making and the management of resources that indigenous communities need for their development.

ARTICLE XVI. INDIGENOUS LAW

The wording of paragraph 2 should be revised to provide that this law will be applied in all cases where it is not incompatible with the fundamental rights defined by the juridical system of each country or with human rights. This principle is enshrined in Article 8 of Convention 169 of the International Labour Organisation, which provides: "In applying national laws to the peoples concerned, due consideration must be given to their customs or common law. Such peoples shall have the right to maintain their own customs and institutions provided they are not incompatible with the fundamental rights defined by the national juridical system or with fundamentally recognized human rights. Wherever necessary, procedures shall be established to resolve conflicts that might arise in the application of this principle."

The Agreement on the Identity and Rights of Indigenous Peoples, Section IV, Paragraph E, concerning customary law, provides that the government shall undertake to recognize the rights of indigenous communities to manage their internal affairs according to their customary norms "provided they are not incompatible with the fundamental rights defined by the national juridical system or with internationally recognized human rights."

The inclusion of this observation is essential, since it would be inadmissible for indigenous law to be contrary to the fundamental rights of the inhabitants of a state.

ARTICLE XVIII. TRADITIONAL FORMS OF PROPERTY OWNERSHIP AND CULTURAL SURVIVAL. THE RIGHTS TO LAND AND TERRITORIES

In the context of this article, the term "territory" could give rise to difficulties in juridical interpretation in the states. Territory constitutes the physical basis for the Guatemalan State, and the term cannot be used to denote the existence of other geographical boundaries. Under Guatemalan law, the state exercises full sovereignty over national territory, consisting of soil, subsoil, internal waters, territorial seas–as defined by law–and the air space above these components. It is recommended that only the term "lands" be used.

Furthermore, subparagraph 3.i could conflict with legislation in the states parties, particularly as regards the right to property. In the case of Guatemala, the Constitution provides protection for private property, and accordingly, the use and ownership of lands occupied by indigenous peoples before the Guatemalan State was constituted cannot be granted to them if such lands are currently owned by specific persons. A provision of this nature would be contrary to the constitutional guarantee that laws cannot produce effects retroactively, except in the case of criminal law when they are beneficial to the accused.

In practice, this provision would be impossible to enforce in countries such as Guatemala where, prior to the Spanish conquest, the entire national territory was inhabited by indigenous communities.

This provision could become the source of discontent and grave internal conflicts, which, far from promoting national unity, would threaten the society itself.

With regard to paragraph 7 of the same article, in order to avoid contradictions with the states’ domestic law and avoid discrimination against their non-indigenous populations it must be stipulated that indemnification is to be effected in accordance with the laws of each state.

It is recommended that the entire text of this article be revised, so as to include wording requiring respect for all forms of ownership and indemnification in accordance with the laws of each state.

ARTICLE XXI. THE RIGHT TO DEVELOPMENT

With regard to Paragraph 3 of this Article, in order to avoid conflict with the domestic laws of the states and avoid discrimination against the non-indigenous population, it must be stipulated that indemnification be effected in accordance with the laws of each State.