Honduras and the UN Committee for the Elimination of Racial Discrimination
By: José Francisco Ávila:
New York, (April 23, 2019) - The Garifuna USA Coalition, Inc., a 501 (c) (3) Tax Exempt non-partisan non-profit organization based in New York City, hereby declares its solidarity with Congresswoman Dr. Johana Bermúdez, who yesterday (April 22), met with the honorable Karla Cuevas, Minister of the Secretary of Human Rights with the objective of reviewing the Recommendations of the United Nations’ Committee on the Elimination of Racial Discriminationto the Honduran State to coordinate actions to continue advancing on this issue.
Honduras participated in Geneva on November 28 and 29, in the examination of the 6th to 8th periodic reports before the Committee for the Elimination of Racial Discrimination (CERD). The State had the opportunity to present its advances to improve the living conditions of the indigenous and Afro-Honduran peoples. Although according to the official statement, Honduras achieved positive support before the Committee for the Elimination of Racial Discrimination.
Concluding observations on the combined sixth to eighth periodic reports of Honduras, adopted by the Committee at its ninety-seventh session (26 November to 14 December 2018), reflect the following areas of concern and recommendations:
Concerns and recommendations Implementation of the Convention
6. While the Committee notes that the Convention has force of law in the State party and that, according to the delegation, the Convention has been invoked in some legal proceedings by the Office of the Special Prosecutor for Ethnic Groups and Cultural Heritage, it regrets the failure to provide concrete information and specific examples of its application by the courts (arts. 1 and 6).
7. The Committee recommends that the State party take appropriate steps, such as training, to ensure that judges, prosecutors and lawyers are familiar with the provisions of the Convention and are able to apply them in relevant cases. The Committee requests that the State party include, in its next periodic report, specific examples of cases in which the Convention has been applied by domestic courts.
Compilation of data
8. While the Committee takes note of the action taken by the State party to compile statistical data, it regrets the failure to provide comprehensive information on the living conditions and the socioeconomic status of persons belonging to indigenous peoples, including Afro-Hondurans (art. 2 (1)).
9. The Committee recommends that the State party continue its efforts to compile reliable, up-to-date and comprehensive statistics on the population’s demographic composition and socioeconomic situation, disaggregated by ethnic origin, gender, age, departments, and urban and rural areas, including the most remote areas. It also urges the State party to continue its efforts to develop human rights and socioeconomic indicators that enable it to assess and implement the necessary adjustments in terms of the sustainability, scope and impact of public policies on behalf of segments of the population that are vulnerable to racial discrimination, and to assess the implementation of the Convention vis-à-vis the groups that make up society.
10. The Committee takes note of the amendments to the Criminal Code. However, it remains concerned by the fact that the legal provisions on racial discrimination do not encompass all the components of articles 1 and 4 of the Convention (arts. 1 and 4).
11. The Committee recommends that the State party review its legislation in order to ensure that the definition and prohibition of racial discrimination encompass all the components of article 1 of the Convention, and address acts of direct and indirect discrimination in all areas of law and public life. It also recommends that the State party ensure that its criminal legislation is fully in line with article 4 of the Convention. The Committee refers the State party to its general recommendations No. 14 (1993) concerning article 1 (1) of the Convention and No. 29 (2002) concerning discrimination based on descent.
Office of the National Commissioner for Human Rights
12. While the Committee takes note of the steps taken to enhance the independence and increase the budget of the Office of the National Commissioner for Human Rights, it is concerned that, among other things, the procedure for the selection and appointment of the Commissioner is still insufficiently broad, transparent and participatory, and the resources allocated to the Office remain inadequate for the full implementation of its mandate (art. 2).
13. The Committee urges the State party to step up its efforts to ensure that the Office of the National Commissioner for Human Rights is in full compliance with the principles relating to the status of national institutions for the promotion and protection of human rights (Paris Principles) and pays due regard to the recommendations of the Sub-Committee on Accreditation of the Global Alliance of National Human Rights Institutions.
14. The Committee takes note of the information provided during the dialogue on action taken to revitalize the National Commission against Racial Discrimination, Racism, Xenophobia and Other Related Forms of Intolerance. It remains concerned, however, that the Commission is not yet operational. It also regrets that the Ministry for Indigenous and Afro-Honduran Peoples has been converted into a Directorate of the Ministry of Development and Social Inclusion, since this restricts its scope and decision-making authority.
15. Bearing in mind its previous recommendations (CERD/C/HND/CO/1-5, paras. 11 and 12), the Committee recommends that the State party step up its efforts to revitalize the National Commission against Racial Discrimination, Racism, Xenophobia and Other Related Forms of Intolerance as an institution that combats racial discrimination, ensuring its full autonomy, broad representation of indigenous and Afro-Honduran peoples, and access to sufficient human, technical and financial resources to ensure its full functioning. The Committee encourages the State party to consider restoring the status of the Directorate for Indigenous and Afro-Honduran Peoples to that of a Ministry, ensuring that it is broadly representative of the indigenous and Afro-Honduran peoples.
16. The Committee is concerned that the indigenous and Afro-Honduran peoples in the State party face persistent structural discrimination, which is reflected in the inequality gap in the exercise of human rights between these peoples and the rest of the population. While the Committee takes note of the data provided by the delegation concerning the results of the implementation of the Better Life Platform, it is concerned at the high rates of poverty and social exclusion that continue to affect the indigenous and Afro-Honduran peoples, particularly those living in rural and remote areas (arts. 1, 2 and 5).
17. Based on its general recommendations No. 32 (2009) concerning the meaning and scope of special measures in the Convention and No. 34 (2011) concerning racial discrimination against people of African descent, the Committee urges the State party:
- To ensure the effective implementation of the Public Policy against Racism and Racial Discrimination for the Comprehensive Development of Indigenous and Afro-Honduran Peoples 2016–2022, inter alia through the adequate allocation of human, technical and financial resources, the creation of effective mechanisms for coordination between different authorities responsible for its implementation at the national and local levels, and the full participation of indigenous and Afro-Honduran peoples;
- To ensure the effective implementation of social programs for poverty reduction, taking into account inequality gaps and the specific needs of indigenous and Afro-Honduran peoples in order to achieve a marked reduction in poverty and levels of inequality that affect them, taking into account the Sustainable Development Goals;
- To adopt special measures or affirmative action to terminate the structural racial discrimination faced by indigenous and Afro-Honduran peoples in the State party.
18. The Committee takes note of the delegation’s information to the effect that, prior to the adoption of the bill on the right of indigenous and Afro-Honduran peoples to prior consultation, which is currently before the National Congress, the process of dialogue will be expanded in response to the concerns that have been expressed by some sectors. However, the Committee is concerned that, in addition to the need for a broad and representative consultation process on the bill, there are concerns regarding shortcomings in its content, such as the definition of its scope, the mechanisms foreseen for its implementation, the stages of the consultation process and the concept of consent. It is also concerned that the drafting of the bill was not based on an appropriate process of consultation and participation of indigenous and Afro-Honduran peoples. The Committee is also seriously concerned that investment projects are implemented in the territories of indigenous or Afro-Honduran peoples in a manner that does not fully respect their right to be consulted with a view to obtaining their free, prior and informed consent (arts. 2 and 5).
19. The Committee urges the State party:
- To develop and adopt, in consultation with the indigenous and Afro- Honduran peoples, an appropriate procedure and methodology that guarantees their right to be consulted regarding any legislative or administrative measure that may affect their rights, with a view to obtaining their free, prior and informed consent, and that also takes into account the traditions and cultural characteristics of each people;
- Prior to the discussion and adoption of the bill on prior consultation that is currently before the National Congress, to carry out a thorough review of the bill, in the light of internationally recognized standards, and to guarantee the active, full and transparent participation of all indigenous and Afro-Honduran peoples;
- To guarantee due respect for the right of indigenous and Afro-Honduran peoples to be consulted with a view to obtaining their free, prior and informed consent regarding economic development, energy, tourism and infrastructure projects as well as projects involving the exploitation of natural resources that may affect their territories and resources; the State party should also ensure that such consultations are conducted in a systematic and transparent manner, with due representation of the affected peoples;
- Without prejudice to the proposed regulations, to guarantee the right to prior consultation in accordance with the terms set forth in the Indigenous and Tribal Peoples Convention, 1989 (No. 169), of the International Labour Organization (ILO), as well as other internationally recognized standards;
- To take due account of the recommendations made by the Special Rapporteur on the rights of indigenous peoples concerning prior consultation.
Lands, territories and natural resources
20. While the Committee takes note of the steps taken to grant land titles to indigenous and Afro-Honduran peoples, it is concerned about the lack of effective mechanisms to protect their rights to their lands, territories and resources. The Committee is concerned about the serious social conflicts concerning the possession and use of lands and territories that arise between indigenous or Afro-Honduran peoples and third parties that occupy or are interested in exploiting the natural resources in such territories (arts. 2 and 5).
21. The Committee recommends to the State party:
(a) That it establishes an appropriate and effective mechanism, in coordination with the judicial and agricultural authorities and other relevant institutions, that enables ancestral lands and territories to be claimed and restored, and ensure that it has adequate human, technical and financial resources;
(b) That it guarantee protection of the rights of indigenous peoples to possess, use, develop and control their lands, territories and resources in full security, including through an appropriate process of territorial regularization, legal recognition and legal protection, in accordance with international standards;
(c) That it step up its efforts to give full effect to the judgments of the Inter- American Court of Human Rights in the cases of the Garífuna Punta Piedra Community and the Garífuna Triunfo de la Cruz Community.
Development of economic projects
22. The Committee is seriously concerned about the impact of the development of energy, extractive, tourism, agro-industrial and infrastructure projects on the territories and resources of indigenous and Afro-Honduran peoples, as well as on their traditional ways of life and subsistence.
23. Given that the protection of human rights and the elimination of racial discrimination are an essential component of sustainable economic development, and mindful of the role played by both the State party and the private sector in that regard, the Committee urges the State party:
- To ensure that, as part of the prior consultation process, independent and impartial entities conduct studies on the social, environmental and cultural impact that economic development projects and projects involving the exploitation of natural resources may have on the territories of indigenous and Afro-Honduran peoples, and ensure that indigenous and Afro-Honduran peoples duly participate in order to protect their traditional ways of life and subsistence;
- To specify, in consultation with the indigenous and Afro-Honduran peoples whose territories and resources are affected, mitigation measures, compensation for damages or losses suffered, and participation in the benefits obtained from such activities.
We hope that the honorable Karla Cuevas, Minister of the Secretary of Human Rights and the government of President Juan Orlando Hernández, will commit to solving the Concerns and recommendations in the concluding observations on the combined sixth to eighth periodic reports of Honduras, approved by the Committee at its 97th session (November 26 - December 14, 2018).