MODULE: COLLECTIVE RIGHTS AND INSTRUMENTS

NATIONAL AND INTERNATIONAL ONES THAT PROTECT THEM

BROCHURE GUIDE

BAYRON ESTUARDO PAREDES TIUL

Maya Q'eqchi'

Seed, RainWIt is 5,127.

GUATEMALA, MARCH OF THE YEAR 2011.

Institutional base:

Project:

Towards the validity of Individual and Collective Rights

y la aplicación delConvenio169 de la OIT”;

Component 3, Political Participation, Maya Program,

UNITED NATIONS DEVELOPMENT PROGRAMME

UNDP
Total or partial reproduction of this guide brochure is allowed, citing the
source of agreement with the rights of authors and intellectual property protected
legally at the national and international level. The sources consulted are
recommended to expand the information contained in this guide brochure.
The Author
BOARD OF DIRECTORS PROJECT COORDINATOR
NARCISO COJTI MACARIO
VICTOR LEM MASC
PRESIDENT PRINCIPAL INVESTIGATOR
BAYRON PAREDES TIUL
CARLOS RENÉ LACÁN
VICE PRESIDENT EDITING:
MIGUEL ANGEL BALCARCEL
Alfonso Guarque
SECRETARY COLLABORATION:
BRENDA ILIANA CHIROY
MIGUEL ANGEL BALCARCEL
JOSUE FELIPE PAJARITO
TREASURER

MARÍA SOCORRO QUEZADA

VOCAL

30 Calle 7-65 Zona 11, Colonia Granai I

Tels: 2442-1278/79, Telefax: 2476-7590

Correo electrónico: tobneltinamit@[Link]

The United Nations Development Programme, with the

financial support from the Governments of Norway and Denmark, did
possible this publication.

The information contained in this publication is not necessarily

does not reflect the position of the United Nations nor the Program of the
United Nations for Development.

Iximulew, March 2011.

BAYRON ESTUARDO PAREDES TIUL

Former member of the Board of Directors of the Student Association 'El'

Law, University of San Carlos of Guatemala.

University Studies in the Bachelor of Science Degree

Legal and Social Sciences, by the University of San Carlos of Guatemala.

Master's degree studies in Indigenous Law by the University

of San Carlos de Guatemala and the National Autonomous University of
Mexico.

Speaker at the Lascasianas Conference in 2007, at the University

National Autonomous University of Mexico.

Legal Advisor of the Center for the Legal Defense of Rights

the Indigenous Peoples.
 INDEX

Page

NOTES ON HUMAN RIGHTS

AND COLLECTIVE RIGHTS 7

INDIVIDUAL RIGHTS AND RIGHTS

COLLECTIVES 9

INDIGENOUS RIGHTS IN THE CONSTITUTION

Guatemalan 14

INDIGENOUS PEOPLES AS SUBJECTS

RIGHT 17

APPROACH TO COLLECTIVE RIGHTS

FROM THE INDIGENOUS PEOPLES 19

OPERATIONALITY IN THE VIOLATION OF A

COLLECTIVE LAW 23

PLURICULTURALISM AS A SOLUTION 23

Legal Instruments that Protect

THE RIGHTS OF INDIGENOUS PEOPLES 23
 1. NOTES ON HUMAN RIGHTS AND RIGHTS
COLLECTIVES

The history of the world shows that the proclamation of the

individual rights were of great importance for humanity,
however, in our times and in the global context the
the great dilemma is that states and all their institutions must
recognize the collective rights of indigenous peoples,
understood as human rights.

Human rights are those basic and fundamental rights,

which are inherent to every person and derive solely from their
condition of being human, as indicated by Héctor Faúndez Ledesma:
Human rights can be defined as the prerogatives that
Every individual has before the organs of power to preserve their
dignity as a human being, and whose function is to exclude interference from
Status in specific areas of individual life, or ensuring provision
of certain services by the State, to meet their
basic needs that reflect the fundamental demands that
Each human being can formulate to the society of which it is a part.

Now, there are other collective rights that exist.

what to see with particularities of human groups, such as
rights of children and youth, the rights of women or the
rights of indigenous peoples.

These human groups, in addition to having recognition of

the rights that correspond to them individually, have the
national and international recognition of specific rights for
the special condition in society or before the State.

The State has the obligation to respect and protect rights.

humans, and take the necessary measures or provisions to comply
with these obligations. Otherwise, they may be held responsible
for the consequences of a violation of human rights due to your
own action or omission. That is to say, even if a state agent does not
acted directly against human rights in some cases
specifically, the State can be responsible for the consequences
of non-compliance or failure to take administrative actions or
legislative measures for the protection and respect of the rights of groups
specific.

All this within the framework of the Rule of Law, but taking into account

7 u
 it states that subjective rights as such do not respond to
needs of a multicultural State; it is necessary to develop new
criteria with great flexibility that enable the articulation of diversity
in unity, the indigenous diversity with the unity of the territory; this
it undoubtedly poses a challenge at a national level, as it becomes necessary
make constitutional reforms or at least to ordinary laws
substantive and subjective.

Currently, the State is going through a crisis, the concepts

of subjective right and personal right of the person, the right
patrimonial or the right of a person to assets and credits, along with
right of free expression of will, which is the legal act
of consent or declaration of will; are insufficient for
organize that diversity of social relationships existing within
of a community.

The new crisis directly affects individual rights because

shifts the center from the private order system to the public, that is,
take a step towards individual collective rights. That is why currently, it is
necessary to combine individualistic vision with recognition of
the community structure of indigenous peoples, their authorities
and procedures, that have managed to preserve life, nature and
the knowledge over the years, despite the oppression exerted against the
forms of community organization.

1.1 Classification of human rights

The division of human rights into three generations was

conceived for the first time by Karel Vasak in 1979. Each one
associates with one of the great values proclaimed in the Revolution
French: liberty, equality, fraternity.

a. The rights of the first generation are the rights

civilians and politicians, linked with the principle of freedom.
They are generally considered defense rights or
negatives, which demand the abstention of public authorities and
no interference in the private sphere.

[Link] rights of the second generation are the rights

economic, social and cultural, which are linked to
the principle of equality. They demand for its effective realization
from the intervention of public powers, through

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 public services and benefits. There is some contradiction.
among the rights against the State (first generation)
and the rights over the State (second generation). The
defenders of civil and political rights qualify
frequently to economic, social and
cultural rights as false rights, since the State cannot
satisfying them more than imposing on others their fulfillment,
what would constitute a violation of rights for them
first generation.

For its part, the third generation of rights, emerged in

The doctrine in the 1980s is linked to solidarity.
It unifies its impact on everyone's life, on a scale
universal, so they require for their execution a
series of efforts and cooperations on a planetary level.
It usually includes heterogeneous rights.
such as the right to peace, quality of life, or guarantees
against genetic manipulation, although different
jurists associate these rights with other generations: for
ejemplo, mientras que para Vallespín Pérez la protección
against genetic manipulation would be a right of
fourth generation, for Roberto González Álvarez is a
manifestation, in the face of new threats, of rights of
first generation such as the right to life, liberty, and
physical integrity.

2. INDIVIDUAL RIGHTS AND COLLECTIVE RIGHTS

2.1 INDIVIDUAL RIGHTS:

This is a concept of what is called constitutional law,

born from the liberal conception that emerged from the Enlightenment, which makes
reference to those rights enjoyed by individuals such as
particulars that cannot be restricted by the rulers,
therefore being inalienable, inherent, and imprescriptible.

In 1688 in England, James II, after failing to find support

necessary to reign, left the throne without violence and offered it to
William of Orange. Thus triumphed 'The Glorious Revolution', which
established the Parliamentary Monarchy without a single death and
individual rights were institutionalized which had as
based on the Letter of Tolerance, as well as the First and Second Treatise

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 of Government by John Locke, who is considered as the first to
to mention 'The Individuals Rights', previous and different from the
Human Rights.

Although the process began in England, those who took them to

the final consequences were the North Americans when,
changing the relationship between the government and the citizen, they determined
the role of the government in relation to the protection of Rights
Individuals. And perhaps the most specific aspect of this change was 'the right
in search of happiness,” with the recognition of ethical value
of the private interests as a necessary condition for the
legal and political recognition of Individual Rights.

a) Equivalent in civil law

The Anglo-Saxon concept of individual rights that has influenced the
modern constitutional law can have three equivalents in
continental law

Fundamental
 right, which fully correspond
to those rights born of human essence,
irrevocable, inalienable, and imprescriptible.

Personal
 right is a concept inherent to law
civil, which refers to those rights that are inalienable
and imprescriptible, which only allow enjoyment by its
holders, but which do not necessarily refer to Rights
Civil, Political or Economic Rights of a person. The Law
of Use and Habitation, typical of civil law, is for example
a personal right.

Subjective
 right is the attribution of a claim to a
specific person, the awarding of a credit, that is a
legal obligation to do or not do, for example: z<pay
the price constitutes an obligation for the buyer, and
obtain the price, the equivalent subjective right.

b) Restriction of individual freedom

There are restrictions on individual freedom imposed by the States established in
its respective penal code; restrictions on individual liberty that
p 10
son excesivas podemos considerar como violaciones de los derechos
humans. An example of an intervention (whether legitimate or not) by the
The relationships between boys are represented as follows:
and girls are a problem in our society, predominantly
young. They prefer to marry later in life and the period between
Maturity and marriage are very sensitive. To solve this
We need to investigate the field of secular laws.
social welfare, education (anarchy), and even politics.
This problem cannot be solved merely with laws. We must
to have help from our religious and social thinkers and adapt
the best possible solution."Source: An approach to the President
Jatami and his points of view, Embassy of the Islamic Republic of
Iran, Madrid 1998.

c) Objectivist approach
Ayn Rand, philosopher of Objectivism argues that a group, as such,
he has no rights. The man cannot acquire new rights.
joining a group nor losing the rights one possesses. The principle
individual rights is the only moral basis of all
groups or associations. She argued that since only one man
As an individual, one can possess rights, the expression 'rights'
"of the individual" is a redundancy (which one must use for the
purpose of clarification in today's intellectual chaos), but the
The expression 'collective rights' is a contradiction in terms.
Individual rights are not subject to a public vote; a
the majority does not have the right to cancel the rights of a
minority; the political function of rights is precisely the
protect minorities from the oppression of the majorities (and the majority more
small is the individual.

2.2 COLLECTIVE RIGHTS

The term collective rights refers to the rights of peoples

to be protected from attacks on their interests and identity as
group. The most important of these rights is the right to
self-determination. For some authors, collective rights
they are classified among the rights of the third generation (see rights
humans).

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 The right to self-determination of peoples would have its first
large-scale use in Wilson's fourteen points, with the
that intended to end World War I. The treaty
The Treaty of Versailles (1919) was not an application of that principle, but it was.
there was a referendum on self-determination in different territories
Europeans in the interwar period, (for example, the Saar).

In 1948, the United Nations General Assembly proclaimed

(for 48 votes in favor, none against and 8 abstentions) the
Universal Declaration of Human Rights, and from then on
has been adopted by each of the States. All rights
specified in the statement were based on the individual,
such as the right to non-discrimination, to freedom of movement,
privacy, to the marriage by free consent of the spouses, to
fair and favorable conditions at work, to participation in the
cultural life, equal protection under the law, etc.

Nevertheless, the United Nations Charter (signed on June 26

from 1945 and in force since October 24 of the same year) includes
explicitly the concept of the self-determination of peoples
in article 1, dedicated to the principles of the Organization, and the
Article 55, within Chapter IX, on International Cooperation
economic and social. Self-determination also inspired the
treatment given to colonial territories. Articles 73 to 91,
that correspond to Chapter XI (Declaration concerning territories
no self-employed), XII (International administration regime
trustee) and XIII (Trustee Board) include the
regime of these territories.

This is a controversial topic, particularly when it comes to rights

collectives clash with individual rights. As
with all the other classes of rights, it is debated whether the rights
Collectives really exist, and if they do exist, what are they?
really (besides that of self-determination).

Another controversy arises from the qualification of certain rights.

social actions such as strikes or collective bargaining, which for some
collective rights, while for the more widespread opinion
they are individual rights exercised collectively.

In the case of Spain, the right to autonomy is the only right

collective that recognizes the Constitution of 1978, and its subject is the
nationalities and regions. The only sovereign people in it is the
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Spanish town, being the towns of Spain protected entities
by the Spanish Nation in the exercise of human rights, its
cultures and traditions, languages and institutions.
2.3 Definition of individual rights

Individual rights are those rights that individuals enjoy

individuals as individuals.

They are basic rights for all individuals, regardless of their gender,
people, language, religion. They are universal rights. Furthermore, these
rights are enshrined in the fundamental charters or Constitutions
of all democratic countries and are addressed to the
person. In the international arena, we can confirm this in the
Universal Declaration of Human Rights and the Covenants
International Covenant on Civil and Political Rights.

2.4 Definition of collective rights

Collective rights are those rights that seek to

recognition of a community reality, they refer to the
rights of a people, which in this case would be the legal subject.
They also seek the protection, preservation, development, and promotion.
of the towns, taking into account the economic and social aspects
and cultural.

2.5 Subject of collective rights

The main characteristic of collective rights is their ownership.

diffuse. That is to say, there is no individual person to whom I can
to be accredited as the holder of rights.

Collective rights are rights without a subject, because we cannot

find someone who can acquire and integrate a collective heritage.
For example, consumer rights, which do not refer to a
particular person, but to a community; the right to an environment
ecologically balanced or the right to cultural goods.

In individual law, each person is the holder of rights.

in the case of collective rights, these cannot be appropriated.
to transfer or alienate because these rights are not integrated
in the heritage of each one.

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 3. INDIGENOUS RIGHTS IN THE CONSTITUTION
Guatemalan1

The issue of indigenous rights in our Constitution is very

complex, as for some the theme was adequately addressed and
for indigenous peoples it is deficient, but it is important to clarify
or to know the intentions of the people responsible for it.
drafting, preparation and approval.

In that sense, the National Constituent Assembly, on February 13

from 1985, in its ordinary session number 40, approved the wording of
Article 70 of the Political Constitution of the Republic of Guatemala,
that in its final text says: Specific Law: A law will regulate what is related
to the subjects of this section.

In the final discussion, prior to the approval of this article, participated

two deputies, Licenciado Alejandro Maldonado Aguirre and Doctor
Jorge Skineer Klee, both from conservative parties. The first of
the aforementioned said: the idea in presenting this article was that it
a statute of the indigenous people will be drafted, with the purpose of codifying everything
what refers to the protection of the ethnic groups in Guatemala, their encouragement and
Promotion. For its part, Skineer argued that in today's world, there is
creating a trend in the sociology of all social sciences in
general, and even in politics, where the fourth world is starting to be discussed,
we know what the first, the second, and the third are, the non-aligned, and
they talk about a fourth world, about a population in the submerged world,
submerged under the other cultures and populations; these are the Laplanders
from Finland, the indigenous people of Guatemala, Bolivia, Peru, the aborigines
from Australia, the indigenous people of Brazil. These voiceless people, these people to
who we make citizens, to whom we grant a nationality,
and that we force them to live a life that is foreign to them, they deserve
that they are now given the recognition of an existence, here nothing has
changed, we do not have a mandate for social reform, but it is just
a recognition, is a beautiful, delayed position, it should have
has been done a long time ago, Regarding a law that is the article
What is being discussed here, I believe, is necessary; a statute will have to be made.
and this matter will need to be studied in depth; here it is barely outlined
the routes.2

1 This part was taken from the book Indigenous Peoples and Collective Rights, specifically from the second part: 'What-
Development of Article 70 or Constitutional Reform?, written by Sergio Fernando Morales Alvarado, May 2006, pages
109-124.
2 Indigenous Peoples and Collective Rights, p. 114, section written by Lic. Sergio Fernando Morales Alvarado,
Guatemala, May 2006.

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It is plausible to verify the intention of the Constitutional legislator.
from 85, but in practice it can be verified that they have not been achieved
overcome the problems of the past; in addition, they are still used
some misconceptions even surpassed by lower laws

hierarchy, for example, indigenous peoples are regarded as

ethnic groups whose customs are recognized, respected, and promoted.
State, but fails to acknowledge its quality as a collective subject and the
the fact of having special fundamental rights.

It is always important to review legal concepts as the category

of ethnic groups of the Political Constitution of the Republic of
Guatemala leaves indigenous peoples out of protection of the
International Covenant on Civil and Political Rights that guarantees in
Article 1.1 the right to self-determination of peoples, thus
as to freely dispose of their wealth and natural resources.
But the flexibility of international regulations is important because
in some claims of indigenous peoples, in matters of
spirituality, lands, territories, and natural resources have provided
its fruits in front of the State of Guatemala.

One should not lose sight of what is stated in article 70 of the constitution.
well, it is the key that closes the collective rights of the peoples
indigenous people, because it indicates that it cannot be regulated beyond the topics
What does that third section dedicated to indigenous communities address?3
This metaphorically is a lock to all aspirations of
the indigenous peoples, which hinders social and economic development,
political and cultural, culminating in the mandate for the preparation of
a protectionist law that denies the collective rights of the
Article 66. Protection of ethnic groups. Guatemala is made up of various ethnic groups, including...
the indigenous groups of Mayan descent. The State recognizes, respects, and promotes their ways of life, customs,
traditions, forms of social organization, the use of indigenous clothing in men and women, languages and dialects.

Article 67. Protection of lands and indigenous agricultural cooperatives. The lands of the cooperatives, communities
indigenous peoples or any other forms of communal or collective land tenure, as well as the heritage
family and popular housing will enjoy special protection from the State, credit assistance, and preferential technical support.
that guarantee their possession and development, in order to ensure all inhabitants a better quality of life. The communities-
indigenous lands and others that have territories that historically belong to them and that they have traditionally managed
In a special way, they will maintain that system.

Article 68. Lands for indigenous communities. Through special programs and appropriate legislation, the State
It will provide state lands to the indigenous communities that need them for their development.

Arículo 69. Transfer of workers and their protection. Labor activities that involve the transfer of workers
Migrant workers outside their communities will be subject to protection and legislation that ensures adequate conditions.
of health, safety and social security that prevent the payment of salaries not in accordance with the law, the disintegration of those
communities and in general all discriminatory treatment.

Article 70. Specific law. A law will regulate matters related to this section.

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 indigenous peoples.

But in front of this lock, it is necessary to find the key that

allow the development of indigenous peoples, this makes it necessary
integrate the constitutional articles 2, 4, 46, and 44; in this case
Article 2 states that: It is the duty of the State to guarantee
inhabitants of the Republic life, liberty, justice, security
peace and the integral development of the person; in that same sense, the
Constitutional Court, in the case 12-86, gazette number
page 3, indicates when referring to the duties of the State that it is its...
obligation to guarantee not only freedom but also other values,
how they are about justice and the integral development of the person, for the
which must adopt the measures that in its opinion are appropriate according to
they demand the needs and conditions of the moment, which can be
not only individuals but also social ones.

Article 4 of the Constitution states that all human beings

they are free and equal in dignity and rights. This implies that,
denying the condition of a people to the indigenous people in Guatemala is a
an act that attacks their dignity and therefore, this article must
prevail and with it the recognition of the existence of the peoples
Maya, Garifuna, and Xinca, in the same way that he recognizes them.
the Agreement on Identity and Rights of Indigenous Peoples. This
Recognition of fact allows for the interpretation of the existence of groups.
different in Guatemala, however the Constitutional Court
in an advisory opinion made by the Congress of the Republic
Regarding Convention 169, in the year 1995 it expressed the following:

In accordance with Article 66 of the Constitution, the State

Guatemala must recognize, respect, and promote the forms of
life, customs, traditions, forms of social organization, the use
of indigenous costumes, whose purpose is to maintain the factors that tend to
to conserve its identity, understood as the set of
elements that define them and, at the same time, make them recognize themselves as
The ILO Convention 169 deals with indigenous peoples and
tribal in independent countries; Guatemala is characterized by
sociologically as a multiethnic, multicultural country and
multilingual within the unity of the State and the indivisibility of
its territory, therefore by subscribing, approving, and ratifying the Agreement
about this subject, develop complementary aspects within
of its internal legal system... Guatemala has signed,
approved and ratified several legal instruments previously
international recognition, promotion, and defense of the
human rights of the inhabitants in general and of which

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 the indigenous peoples are also nominally recipients,
however, taking into account that although it is true that the
the rules of the democratic game are formally equal for everyone,
there is an evident real inequality of indigenous peoples with
relationship to other sectors of the inhabitants of the country, for which the
The agreement was designed as a legal mechanism specifically
aimed at removing some of the obstacles that prevent these
peoples the real and effective enjoyment of the other members of the
society. Guatemala is recognized and characterized as a
Unitary state, multiethnic, multicultural, and multilingual, composed
that unit within territorial integrity and the diverse
sociocultural expressions of indigenous peoples, which
they still maintain the cohesion of their identity, especially those from
Maya descent.14

The category of peoples, extensively developed in the Convention

The 169 of the International Labour Organization must be taken into
it counts in our country, as it involves legal instruments of the
United Nations system, taking into account what is stated in the
Article 46 of the Constitution states: the general principle is established.
that in the field of human rights treaties and conventions
accepted and ratified by Guatemala have precedence over the
internal law.

But what is stated in article 44 of the Constitution must be taken into account.
Which indicates: The rights and guarantees granted by the Constitution
do not exclude others that, although not explicitly mentioned in it, are
inherent to the human person. The social interest prevails over the interest
Particular. The laws and government provisions will be null ipso jure.
or of any other order that diminish, restrict, or distort the
rights that the Constitution guarantees.

That is to say, it should not be understood that individual rights have

that forcibly conflicts with the collective rights of peoples
indigenous.

4. INDIGENOUS PEOPLES AS SUBJECTS OF LAW

It is important to highlight the evolution that has occurred in written form

recognition of the collective and specific rights of the peoples
indigenous people, especially in Guatemala, when we find
evidenced in the Thesis of Miguel Angel Asturias titled 'Sociology'
4 Gazette No. 37, pages 9 and 13, of the Constitutional Court, case file 199-95

17 U
 "Guatemalan": the social problem of the Indian, Guatemala, December
from 1923, a basis of how the State and Guatemalan society
they considered the indigenous peoples: Now to teach the peoples
a new doctrine and a new art of war; now to elaborate laws
and advice in defense of the Aboriginal, which, it can truly be said,
envy the luck of the beasts. .... Until when this difference?
The Indian represents a past civilization and the mestizo, or ladino, who
we call it, a civilization that is coming. The Indian makes up the majority of
our population lost its vigor in the long time of slavery
to which he was subjected, is not interested in anything, used to it as
it is that whoever passes first takes away what he has, even the woman,
the children represent the mental, moral, and material plight of the country, it is
humble, is dirty, dresses differently and suffers without blinking. The
Ladino forms one third, lives a different historical moment,
with bursts of ambition romanticism, aspires, yearns and is, in
last result, the living part of the Guatemalan nation; brave
a nation that has two-thirds of its population dead to intelligent life.

That is why it is important to specify that the rights of the peoples

Indigenous people do not arise from a concession or delegation by the State,
I am aware of their original condition. In some countries, it is intended that the
collective rights are absorbed by individual rights,
using silence as a tactic in the face of complaints
community.

Collective property is distributed in small and individualized portions.

bienes, de manera tal, que los indígenas no son titulares de derechos
as a people. Similarly, individual rights are omitted.
that are born in communities, such as cultural rights,
regarding social organization and language. Rights that
They can only exist if collective rights exist.

However, with the emergence of diffuse rights or

intangibles such as the right to development, or the environment,
It was necessary to redefine public law that goes through
organize not only the structure of the State but also create new ones
forms of action by the State.

From these new paradigms, a new generation arises

rights: the rights of the community that interfere, alter and
they modify the legal relationship of the subject with the object of their right;
the so-called intangible or diffuse rights.

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With the emergence of these new rights of diffuse ownership,
that they cannot appropriate individually, they find a space
recognition of the collective rights of indigenous peoples.

5. APPROACH TO COLLECTIVE RIGHTS OF THE

INDIGENOUS PEOPLE5

The collective rights of indigenous peoples exist without the need

that they are declared. However, it is necessary first
the end of its recognition and articulation with Western law
para crear un sistema unitario nacional dentro de la diversidad.

There are five essential values that shape rights.

collectives of indigenous peoples; The Right to Difference,
the Right to Dignity, the Right to Self-Determination, the
Right to Equality and the Right to Ethnodevelopment.

5.1 The right to difference

a) Right to be tolerated

b) Right to cultural diversity

Recognition of the cultural value of indigenous peoples

The right to difference refers to the fact that every human being is unique.
is irreplaceable. Each person has their own characteristics that make them
they define it and make it unrepeatable, despite having as a denominator
common to belong to the human species. The recognition of
respect for one's own personality as part of human dignity
it constitutes the right to be different.

In the same way, indigenous peoples belong to the

universal community. However, they have their own characteristics
what differentiates them from each other, such as their worldview, their practices
daily lives and their culture, for example, as peoples have the right to
recognition of that difference.

The right to collective difference includes: the right to be

tolerated, to cultural diversity and the recognition of value
culture of indigenous peoples.

5 Indigenous Peoples and Collective Rights, second part: 'Development of Article 70 or Constitutional Reform?'
written by Sergio Fernando Morales Alvarado, May 2006, pages 109-124.

19 O
 5.2 The right to dignity

a) Right not to be discriminated against either in reality and/or formally

b) Right not to be exploited

c) Right to legal personality, subject of rights and

obligations. The indigenous people as a collective subject
of rights and obligations.

d) Right to identity. The right to identify oneself as

member of a group and the group's right to determine
the person or group of people that are included within
of its population.

e) Right to nationality: The right to be recognized

as a member of a country and having the possibility to exercise
their civil and political rights.

Right to a name

g) Right to legal certainty

Every human being possesses a value, a dignity, which is realized

within a community. What this social space represents
it also acquires a respect or appreciation, because only in
she is the realization of the person.

Respecting the dignity of indigenous peoples means acknowledging

the following collective rights: the right not to be discriminated against
neither real nor formally, the right not to be exploited, the right
a legal personality, that is, to be a subject of rights and
obligations, the right to identity, to nationality, to name
and to legal security.

5.3 The right to self-determination

a) Right to autonomy

Right to choose their system of government

Right to choose their rulers

Right to your own right

qP 20
 Right to their social, cultural, and political organization
economic

b) Right to freedom

Freedom of choice

Freedom of organization

It is the right of every people to freely determine their status

political, economic, and social. Self-determination underpins the
autonomy rights that translate into the possibility of choosing their
system of government, choose their own representatives and establish
its own social, cultural, political, economic, and legal organization;
and the right to freedom of choice and organization.

Recognizing the decision-making possibility of a people is to break the

unity, but to build it with respect, tolerance, and justice. Unity
it is at risk, as long as it comes from imposition and not from a
consensus.

5.4 The right to equality

a) Right to justice - balance between dignity and rights -

b) Equal, individual and/or collective access to jurisdiction

of the State.

All indigenous peoples have the right to formal equality

and real. That is, to enjoy equal promotion opportunities and
development, as well as protection and legal guarantee, that is to say,
security or legal protection against a danger or risk.

The right to equality represents recognizing the right to justice.

as well as equal, individual and/or collective access to jurisdiction
of the State.

5.5 The right to ethnic development

a) Right to integrity and cultural development

Right to the language and to be educated in it

Right to myths and beliefs

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 Right to knowledge

Right to religion

Right to the original resources of their culture

material, including archaeological sites, artifacts,
designs, technology, and works of art.

b) Right to social development

Access to different levels of representation

politics, government, and administration.

c) Right to political development

Territorial rights

Environmental rights

Food rights

Own pharmacology

Right to art

Right to crafts

d) Right to economic development

Right to well-being

Right to control and use natural resources

renewable and non-renewable.

Right to a compensatory tax quota

Right to land

Right to individual or community access

of the earth

The paths of indigenous peoples to well-being in its components

social, cultural, political and economic. The right to ethnodevelopment
it represents recognizing the right to cultural integrity and development
what it implies: right to the language and to be educated in it, right

qw 22
to myths and beliefs, rights to knowledge, to religion, and to the
original resources of their material culture, as well as the right to
social development, which involves access to different levels of
political representation, government and administration; the law
to the political development referring to territorial rights,
environmental, food, pharmacological, to art and crafts
and finally, the right to economic development that is related to
with the right to well-being and to land.

[Link] IN THE VIOLATION OF A RIGHT

COLLECTIVE

To identify a fact that violates collective rights,

It should be noted that violation is any act of action or omission.
arbitrary that prevents, diminishes, or restricts the protected right,
relacionado con derechos fundamentales que guardan íntima
relationship with the life and dignity of the indigenous person, or with the
collective life of indigenous peoples, situations that entail
sense and cultural identity, collective belonging, creations
collectives, for example: clothing, language, spirituality,
the social organization, the customs.

7. PLURICULTURALISM AS A SOLUTION

Pluriculturality is a proposal that aims to integrate both.

systems: individual and collective rights. The recognition
of two subjects differentiated from each other but both with rights that
they can and must be distinguished.

8. LEGAL INSTRUMENTS THAT PROTECT THE

RIGHTS OF INDIGENOUS PEOPLES

8.1 POLITICAL CONSTITUTION OF THE REPUBLIC OF GUATEMALA:

As mentioned earlier, it should not be forgotten that the Magna Carta

It contemplates a key that opens the lock established in article 70.
from that same legal instrument; it is made up of several articles
among which the following stand out:

Article 2. Duties of the State. -Integral Development-

Article 4. Freedom and equality

Article 44. Inherent rights of the human person

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 Article 46. Preeminence of international law

8.1.1 Other minimum rights legally protected in the constitution

a) To cultural identity, arts. 58 and 66

b) To the freedom of religion, art. 36

c) To the protection of handicrafts and indigenous industries, art. 72

d) Of the migrant indigenous worker, art. 69

e) From possession of communal lands, art. 67

8.2 CONVENTION NO. 169 ON INDIGENOUS PEOPLES

The Convention 169, on Indigenous and Tribal Peoples in countries

independent from the International Labour Organization,
constitutes one of the first international legal instruments
that recognizes collective rights of indigenous peoples and for
It marked a milestone in the international context.

In June 1996, the State of Guatemala ratifies it, thanks to

the reivindicative struggle of indigenous peoples with the support of
some sectors of society, it is important to point out that many of
the claims of the struggle for land, territory and resources
the natural resources of indigenous peoples are based on this instrument
international; among the rights included in this regulation
international, are found:

8.2.1 Prior consultation

This is one of the most significant proposals of this

instrumento legal, situación que ha generado mucha problemática,
Well, the State supports megaprojects funded by powerful entities.
national and international capitals, that are executed on lands
and territories of Indigenous peoples; which has caused
displacements, sales with defects, threats, and even
deaths; all of this violating international regulations.

In accordance with what is established in the Agreement, the government has

the obligation to consult indigenous peoples before making
a decision; that is, a 'Prior Consultation'. It must promote dialogue
and discussion through the active participation of the authorities,

qr 24
leaders, main, etc. It also establishes that "the consultations
they must be carried out through appropriate procedures.

8.2.2 Appropriate procedures

- That the information on the topic to be addressed must be acquired with

anticipation for full understanding.

- That the information must be available, clear, and complete

- That it can be understood with knowledge of the cause, this means

to say, that there is accurate and sufficient information
reasonable to know the possible consequences that may
generate the proposed measures.

- That the information be provided, if it is oral, in the language of the

community or with a reliable translation.

- That can be actively expressed without discrimination, with

right to express opinions and make proposals.

- There must be understanding from the different ways of seeing the

life.

8.2.3 With whom to consult

The consultation must be carried out by the State, with the authorities.
named and recognized by the people or the community, so that the
the decision must be legitimate. The consultation should not be with just one leader
or with the directive of an organization or community, unless the
the leader or the mentioned board is authorized by the community
to address the case, being fully informed of what is happening
discussing. It must be carried out in the community's own system,
always considering that consensus is the basis of discussions
and the active and broad participation of community members.

8.2.4 Good Faith Consultation

The inquiry must be made with clear, prior information.

complete, understandable, with the willingness to approach, understand,
respect the procedures and perspectives of everyone, as well as give to
to know the benefits and consequences that the action may generate
that one wants to carry out.

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 There must be respect and honesty in the proposals, something very
It is important that every consultation must reach an agreement. If it is achieved
reaching an agreement means that the consultation was made in good faith, still
when this agreement signifies the non-execution of the work or action
what was intended, considering it harmful to the interests of the peoples
indigenous peoples. On the other hand, the acceptance of the parties to put in
the action marches, the project, the plan also means that it has
made a good faith inquiry and consent has been obtained from
the community.

8.3 SOME ARTICLES OF CONVENTION 169, WHICH REGULATE

THE COLLECTIVE RIGHTS OF INDIGENOUS PEOPLES

8.3.1 Right to consultation

Consult indigenous peoples whenever it is anticipated.

legislative or administrative measures likely to affect them
directly.

Consult the indigenous peoples in order to determine if their interests

of those towns would be affected, and to what extent, before
to undertake or authorize any prospecting program or
exploitation of existing resources on their lands. Article 6,
numeral 1, literal a) Artículo 15, numeral 2

8.3.2 Right to Political Participation

Participate freely, to the same extent as other sectors of

the population, and at all levels in decision-making and
elective institutions and administrative bodies, and of another kind
responsible for policies and programs that concern them. Article 6,
number 1, literal b)

8.3.3 Right to decide on their development

Right to decide their own development priorities, if it affects their

lives, beliefs, institutions, and spiritual well-being and to the lands that
they occupy or use. Article 7, numeral 1

8.3.4 Right to participation in development

Participation and cooperation in improving conditions

of life, of work, of health and education. Article 7, numeral 2

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8.3.5 Right to apply indigenous customary law

When applying national legislation, consideration must be given to

their customs or their customary law. Article 8, numeral 1,
Article 9, numeral 1, Article 10, numeral 2

8.3.6 Right to understand and be understood in procedures

legal

Measures must be taken to ensure that members of

these towns can understand and make themselves understood in
legal proceedings, providing them with interpreters if necessary
and other effective means. Article 12

8.3.7 Right to preserve their customs and institutions

Right to preserve their own customs and institutions that

be incompatible with fundamental rights. Article 8,
numeral 2, Article 9, numeral 2

8.3.8 Right to their own religious and spiritual practices

Right to have their religious and spiritual practices recognized.

protected, thus respecting the integrity of their values and practices.
Article 5, a and b

8.3.9 Right of ownership and possession over lands

The interested peoples' right of ownership must be recognized.

and possession of the lands they traditionally occupy. Article
14, numeral 1

8.3.10 Right to respect and protection of ancestral and natural heritage

Governments must respect the special importance that for

the cultures and spiritual values of the interested peoples are important
its relationship with the lands or territories, or with both. Article 13,
number 1

8.3.11 Right to participate in the use, administration, and conservation

of natural resources

Right of indigenous peoples to existing natural resources

in their lands, as well as participate in the use, management and

27 qu
 conservation. Article 15, paragraph 1

8.3.12 Right to participate in the benefits of resource exploitation

existing in indigenous lands

The interested towns must participate whenever possible.

in the benefits generated by such activities (exploitation of
resources), and receive fair compensation for any
damage that they may suffer as a result of those activities. Article
15, numeral 2

8.3.13 Right to respect for the modalities of transferring rights over

the earth

The modalities of transmission of land rights between

the members of the interested peoples, established by such
towns must be respected. Article 17, numerals 1 and 3

8.3.14 Right to effective protection in contracting matters

employment conditions

Governments must adopt, within the framework of their national legislation

and in cooperation with the interested peoples, special measures
to guarantee workers belonging to the peoples
indigenous people effective protection, access to employment, equal pay
for work equality, medical and social assistance, right of association;
for seasonal, temporary, and migrant workers. Article 20,
numerales 1, 2 y 3

8.3.15 Right not to be discriminated against in social security matters

Social security regimes must be extended

progressively to the indigenous peoples and apply them without
any discrimination. Article 24

8.3.16 Right to health and use of traditional medicine

Health services should, as far as possible, take into account

account, prevention methods, practical healing and medications
traditional. Article 27, numeral 1, Articles 29 and 31

8.3.17 Right to an adequate education

That education meets their needs and encompasses their history, their

qi 28
knowledge and techniques, their value systems and aspirations
social, economic and cultural. Article 27, numeral 1, Articles
29 and 31

8.3.18 Right to bilingual education

Whenever feasible, children in the villages should be taught.

interested in reading and writing in their own indigenous language. Article
28, numeral 1

8.4 UNITED NATIONS DECLARATION ON THE

RIGHTS OF INDIGENOUS PEOPLES

The United Nations Declaration on Human Rights

Indigenous Peoples was approved on September 13, 2007, by the
UN General Assembly, fulfilling a historical demand of
indigenous peoples from around the world.

In the voting, 143 countries voted in favor, 4 against.

Australia, Canada, New Zealand and United States of North
America) and there were 11 abstentions (Azerbaijan, Bangladesh, Bhutan,
Burundi, Colombia, Georgia, Kenya, Nigeria, Federación Rusa, Samoa
and Ukraine).

The adoption of the Declaration was achieved as a result of 22 years.

of consultations and dialogue between governments and indigenous peoples of all
the regions of the world, whose population is estimated at more than 370
millions of people.

The Declaration emphasizes the rights of indigenous peoples of

maintain and strengthen your own institutions, cultures, and traditions
and pursue their own development in accordance with their needs
and aspirations. It establishes minimum standards for the respect of the
human rights of indigenous peoples and to combat the
discrimination and marginalization.

The document, which consists of 46 articles, addresses rights.

individuals and collectives, the cultural and identity, as well as the
referring to education, health, employment, language among others.

Explicitly encourages harmonious and cooperative relationships

between States and Indigenous Peoples and promotes full and effective
participation of the latter in all matters that concern them.

29 qo
 Recognizes the right to self-determination of Indigenous Peoples
and autonomy or self-government in their internal affairs. Furthermore,
guarantees the equality of rights between indigenous men and women.

The Declaration also highlights the guarantees to property.

from ancestral lands and the resources that have traditionally been
possessed, occupied or used, as well as the preservation of the environment
environment. Excludes the development of military activities on the lands
or territories of indigenous peoples (except in cases of threat
important to the public interest, or at their request), and defends the
right to maintain relationships between indigenous individuals of the same or another group

people, divided by international borders.

Vicky Tauli-Corpuz, president of the Permanent Forum on Issues

Indigenous people described the decision as "a major victory". In their...
speech before the General Assembly, the Filipino indigenous woman recalled that
It is the first UN Declaration that has been developed together with
the same subjects of the rights. 'It will be remembered on September 13'
as an international day of human rights for peoples
indigenous peoples of the world, the day when the United Nations and its States
members, along with the indigenous peoples, reconciled with the
painful stories from the past, and they decided to walk towards the future
about the path of human rights.

The vigorous opposition to the Declaration issued by the U.S.

Australia, Canada, and New Zealand, countries with a large population
indigenous, provoked outrage among the indigenous peoples of
world. The opposition of these countries was mainly directed at the
recognition of various rights, including self-determination,
the rights to land, territories and resources, to Consent
Prior Free and Informed (interpreted as the right of veto), it
referring to Intellectual Property and the recognition of the right
customary, in contrast to national laws.

After obtaining prior approval in June 2006, in the

Human Rights Council, the Declaration did not reach consensus
necessary in the Assembly, mainly due to concerns
from various African countries. A consultation initiative driven by
Mexico, Peru, and Guatemala achieved their adhesion with these countries.
(except for the three African countries that abstained), but
with the inclusion of nine amendments, among others one that clarifies that
nothing in the Declaration shall be interpreted "in the sense that it authorizes
or promotes any action aimed at undermining or diminishing,
qp 30
totally or partially, the territorial integrity or the political unity of
Sovereign and independent states.
8.5 INTERNATIONAL INSTRUMENTS THAT GUARANTEE THE
COLLECTIVE RIGHTS OF INDIGENOUS PEOPLES

a) Full rights and freedoms, Universal Declaration (art.

2), International Covenant on Economic, Social and Cultural Rights
Cultural (art. 2) and International Covenant on Civil Rights
and Politicians (art. 2)

b) Equal pay for equal work, Universal Declaration

(art. 23) and International Covenant on Economic Rights,
Social and Cultural (art. 7)

c) Education for understanding, tolerance, and friendship,

Universal Declaration (art. 26), International Covenant on
Economic, Social and Cultural Rights (art. 13) and
Convention on the Fight Against Discrimination
in the Sphere of Education (art. 5)

d) To engage in teaching activities and establish their own schools,

Convention Relating to the Fight Against Discrimination
in the Sphere of Teaching (art. 5)

e) To use the indigenous language in court, International Covenant on

Civil and Political Rights (art. 14)

f) To belong to ethnic, religious, or linguistic groups and

inherent rights to this ownership, International Covenant
of Civil and Political Rights (art. 27) and Convention on the
Derechos del Niño (art. 30)

g) Not to be discriminated against on the grounds of race or ethnic origin,

International Convention on the Elimination of All
Forms of Racial Discrimination (arts. 1 and 2), Convention on
the Rights of the Child (art. 2) and Inter-American Convention
to Prevent, Punish and Eradicate Violence against
Woman (art. 6)

h) Protection against genocide and ethnocide, Convention

for the Prevention and Punishment of the Crime of Genocide (arts.
1 and 2)

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BIBLIOGRAPHY

- Agreement on the Identity and Rights of Indigenous Peoples

- Brief catalog of Collective and Specific Rights of

The Indigenous Peoples of Guatemala Legally Protected
and Legally, Indigenous Peoples' Advocate, PDH,
2004.

- Political Constitution of the Republic of Guatemala

- Convention 169, on Indigenous and Tribal Peoples

- Worldview, Collective Rights, and Own Legal System

of Indigenous Peoples, Training Module for
Justice Operators. Tobnel Tinamit, Legal Defense
Indigenous.

- Document Indigenous Peoples and Collective Rights,

Systematization and Popular Notebooks, Organization
International Labor Organization, Strengthening Project
the Legal Capacity of Indigenous Peoples of America
Central. Tobnel Tinamit - Legal Defense -

- The International Law of Human Rights, Draft

of the Draft American Declaration on Rights
of Indigenous Peoples. Document of the Organization of
American States – OAS -

- Rujunamil Ri Mayab Amaq, Specific Rights of the People

Maya, Council of Maya Organizations of Guatemala -
COMG-

- Guatemalan Sociology: The Social Problem of the Indian

Guatemala, March 2011.

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