IV. BACKGROUND
There was a clearly discriminatory situation in Guatemala in which extremely stereotyped social, economic, political and cultural roles were assigned to men and women; that situation resulted in subordination of Guatemalan women in virtually all of the areas and at all the levels covered by the articles of the Convention.
-- CEDAW Committee149
Gender and Race in Guatemala
At least half of Guatemala's 11 million inhabitants are Mayan.150 There are twenty-one Mayan ethno-linguistic communities, and two small minority groups: the Xinca and the Garífuna (Afrocaribbeans on the Atlantic coast).151 The Maya have been subjected to violent discrimination, repression, and dispossession since colonization. Although the 1985 Guatemalan Constitution recognizes ethnic diversity and commits the state to respect and promote this diversity, racism is an insidious fact of life for most indigenous Guatemalans.152
Social indices illustrate the disparities in well being between the indigenous and non-indigenous of Guatemala. Although Guatemala has the largest economy in Central America, Guatemalans are among the poorest in Latin America. According to the World Bank, Guatemala has the third highest degree of income inequality among low- to middle-income countries (Brazil and Pakistan are first and second in this category): the poorest one-fifth of the population has only 1.9 percent of the total income.153 Fifty-seven percent of Guatemalans live in poverty, while 27 percent live in extreme poverty.154 Indigenous Guatemalans are the poorest of the poor. Just over 74 percent of indigenous people in Guatemala are poor, compared to 41 percent non-indigenous. An alarming 39 percent of indigenous people are living in extreme poverty, while that figure is 15 percent for non-indigenous.155
Mayan women are particularly disadvantaged. Only 48 percent of indigenous women are literate in Spanish, while 76 percent of ladina women can read and write.156 In contrast, 67 percent of indigenous men and 81percent of ladino men are literate.157 Guatemala has the second lowest total female literacy rate in Latin America, after Haiti, and the worst female to male literacy ratio in the region.158 Health indicators are similarly dismal. While overall fertility is five children per woman-the highest rate in Latin America-Mayan women have an average of 6.2 children.159 Maternal mortality in Guatemala is 190 per 100,000 live births, among the highest in the region.160 The overall under-five mortality rate is sixty-five per 1,000 live births, but there is significant ethnic disparity. Among indigenous children, the under-five mortality rate is seventy-nine per 1,000 live births, while for non-indigenous children, that figure is fifty-six per 1,000 live births.161
Women in the Labor Force
Women's inequality in the workforce mirrors their inequality in the home and society more broadly. The Guatemalan labor code unambiguously prohibits employers from specifying sex, race, ethnicity or civil status in job announcements in most cases, and any differentiation between single and married women and/or women with family responsibilities.162 However, until 1998, the Guatemalan Civil Code gave the male spouse the authority to deny his wife the right to engage in activities outside the home; until 1999, the code stated that women could only work outside the home "when this does not prejudice the interests and care of the children or other attentions in the home."163 These provisions were repealed after the Inter-American Commission on Human Rights determined that they, as well as other provisions, violated articles 1.1, 2, 17 and 24 of the American Convention on Human Rights.
Women's participation in the economically active population (EAP) has increased significantly over the past decade. In 1989-1990, women constituted only 25.5 percent of the EAP,164 while their participation in 1998-1999 was estimated at 35.2 percent. 165 A decade ago, Mayan women represented only 19 percent, while ladina women constituted 27 percent of the EAP. 166 No recent figures are available for comparison. Women are concentrated primarily in the services sector, where they constitute 74 percent. Women are only 17 percent of the industrial workforce, and just 8 percent of the agricultural workforce, according to the latest available statistics.167
The increase in women's participation has occurred primarily in the least guaranteed, least protected sectors of the economy. Indeed, the only sectors in which women predominate are the informal sector, where women constitute 55 percent of the workforce, and paid domestic work, where women constitute almost 98 percent of the workforce.168 As is occurring with women's participation in the workforce all over Latin America, Guatemalan women's participation in the formal sector has increased in manufacturing/industry due to the expansion of the nontraditional export sector, particularly the offshore apparel assembly.169
Guatemalan women with little or no education or vocational training have few options for salaried work. A traditional option has been paid domestic work in private households; a more recent option has been work in the maquilas. In the former case, young women and girls have long traveled from rural villages to work in homes in the capital and other urban areas. Historically, Mayan women have swelled the ranks of the domestic workforce and, even though the government claims they now constitute only half of all domestic workers, continue to be identified with paid domestic help. In the latter case, the advent of the maquila sector in the 1980s meant a boom in factory jobs for women, particularly in the capital and the surrounding area. Women are the majority of maquila workers, due to a combination of employer preference for a female workforce and the appeal for young women of a job that would provide an alternative to domestic and agricultural work.
Maquilas and domestic work are essentially competing for the same class of workers. This fact has been trumpeted by industry promoters to illustrate the benefits of the maquila revolution. A U.S. Agency for International Development (USAID) official in 1991 told an academic researcher that "a common progression from field hand or domestic workers to maquila worker exists where young women may begin as maids but be drawn to maquila factories because of the better pay, conditions, and enhanced freedom."170 Nearly ten years later, a Guatemalan business leader explained to Human Rights Watch that the maquila sector provides women the chance "to go from making tortillas in their homes to domestic work to the maquila to other opportunities...to have a [better] future."171
Domestic work is an old profession in Guatemala. Here, as in the rest of Latin America, domestic service has been an important category of work since the colonial period. The current demand for domestic workers is fairly high and widespread, though subject to fluctuations according to the general state of the economy. At least 2 percent of the economically active population in Guatemala is engaged in paid domestic work.172 In 1967, there were reportedly 61,548 domestic workers; the ILO estimates that now there could be as many as 300,000 in the whole country.173 Not just upper class, but also middle class and even working class families employ some kind of paid domestic help.
Paid domestic work in Guatemala shares characteristics common to the occupation around the world. 174 First, this work is almost invariably performed by women. Second, the work is strongly associated with a particular ethnic group. Third, domestic workers are often migrants, and therefore isolated in their new environment. Fourth, the work is situated within the private sphere, largely unregulated and shielded from public scrutiny. Finally, domestic servants, as a category of workers, enjoy fewer legal protections than other workers. Taken together, these characteristics give rise to increased vulnerability to abuses.
Domestic work is considered to be a natural extension of women's role in society: the maintenance of the home and family. Indeed, nearly 98 percent of all domestic workers in Guatemala are women (the remaining 2 percent of male domestic employees are engaged in tasks identified with masculinity, such as driving cars). Paid domestic workers essentially perform for wages the tasks the woman of the house is socially expected to perform for free. Because it takes place in the home, is performed by women, and is normally non-remunerated, domestic work is considered to be unskilled and menial labor. This devalued status translates into lower pay and fewer guarantees for women who perform such tasks for remuneration.
In Guatemala, domestic work is also identified with a particular ethnic group. Mayan women have always constituted a significant portion of the domestic worker labor force. According to 1999 government statistics, the most recent data available at the time of writing, currently half of all domestic workers in Guatemala are indigenous.175 Organizations working with domestic workers insist that the actual figure is much higher, perhaps as high as 70 percent.176 In the collective imagination, Mayan women are so identified with domestic service that one Guatemalan intellectual explained that, "every Mayan woman is frequently considered to be or to have been a `servant' or is treated or seen as one."177
Most domestic workers migrate from rural villages to work in urban households. Their status as migrants adds another dimension to their dependency on the employer, and their vulnerability to abuses. Uprooted from their communities, often young and with no support network, domestic workers know little about how to navigate urban life or negotiate their employment conditions. Mayan women are at a particular disadvantage. Father Julián Oyeles, the director of Conrado de la Cruz Project (Proyecto Conrado de la Cruz), an organization that provides direct services and education to domestic workers, explained:
When a girl of fourteen arrives to ask for a job, with all her ingenuity, her own world view and language, she encounters great obstacles to communication, a situation which is taken advantage of to lay the foundation and principles of servitude...This young woman's boss will define the salary she earns, the work she does, her working hours, the days she can go out, where she can go and even what language she should speak in the home and how she should dress.178
Domestic workers do not have their own union in Guatemala, nor is any existing trade union doing any kind of organizing among domestic workers.179 Instead, these workers gather together through a handful of nongovernmental and faith-based associations. The Support Center for Household Workers (Centro de Apoyo para las Trabajadoras de Casa Particular - CENTRACAP) was founded in 1991 to improve the plight of domestic workers. In recent years, CENTRACAP has focused its energies on lobbying Congress to pass a special law in favor of domestic workers' rights. San Benito House (Casa San Benito) and Conrado de la Cruz Project are two organizations run by the Catholic Church that provide a variety of direct services to domestic workers. While San Benito House is focused exclusively on domestic workers, of all ages, Conrado de la Cruz specializes in the needs of younger workers, and includes in their programs maquila workers as well as street vendors. All three organizations offer free classes, ranging from literacy to guitar and sewing lessons. These organizations have formed a loose coalition to promote legislative reform on behalf of domestic workers' labor rights.180
Every year, despite the well-known abuses, hundreds, if not thousands, of young Guatemalan women seek employment as domestic workers for the first time. Some who might otherwise have sought jobs in private households, however, are now entering factories instead. The motives for choosing maquilas over domestic service or vice versa are as varied as the women workers themselves. Unfortunately, no matter which they choose, these workers face sex discrimination.
Maquila Workers
The emergence of the maquila sector in Guatemala presented an alternative to domestic work to thousands of women. While in the first years, primarily ladina and urban women joined the maquila workforce, indigenous women (and men) from rural areas are now increasingly present in the factories. The maquila boom has thus been applauded as an important source of employment for women, bringing not only economic improvements, but also enhanced freedom and greater opportunities for advancement to their lives. In reality, conditions of employment, while clearly quite different from those in domestic work, continue to be disadvantageous in the maquilas. Human Rights Watch found widespread sex discrimination in the maquila sector, in the form of questions or testing to determine reproductive status, post-hire penalization of pregnant workers, and failure to enforce maternity protections. Some generalized abuses have gender-specific consequences. Although maquilas have the legal obligation to register workers with the national social security system-a public health care system for employees-many maquilas fail to do so, while still discounting the worker contribution. Although factories can be fined and even closed down for this blatantly illegal practice, ineffective monitoring by the social security system itself means that most factories never suffer any consequences. Even when they are affiliated with the system, many workers are unable to get permission from their employers to seek health care. This means that pregnant workers may not receive the prenatal care they need.
While the first piece of legislation to promote export-oriented business was passed in the mid-1960s, the export-assembly industry known as the maquiladora sector did not become firmly established in Guatemala until the mid-1980s.181 Maquilas, as they are referred to in Guatemala, are responsible for the least skilled and most labor-intensive stage of production on the global assembly line. In the apparel industry, the most prevalent in Guatemala, predesigned and precut fabric is assembled in the maquilas, then folded and packaged for shipment, generally for sale in the U.S. market.
In 1989, Congress adopted Decree 29-89 that established the current legal regime for the operation of freestanding maquilas in Guatemala. National and foreign investors enjoy a ten-year tax holiday, and exemption from export and import tariffs on machinery, equipment, raw materials, and semifinished products. In contrast to prior regulations, this decree allows maquilas to subcontract among themselves.182 A separate law passed the same year, Decree 65-89, allows for privately-owned and operated free trade zones where investors enjoy the same incentives and exemptions.183 The vast majority of maquilas in Guatemala are freestanding factories, not located inside any of the nation's free trade zones.
The maquila industry in Guatemala has grown impressively. Apparel exports skyrocketed from U.S. $5.5 million in 1986 to U.S. $407 million in 1999.184 Over seven hundred maquilas were registered under Decree 29-89 with the Ministry of Economy in June 2000.185 The number of maquilas operating in Guatemala can change almost daily. Guatemalan law allows maquila owners to close shop and easily reopen under a new name. Ninety percent of maquilas in Guatemala produce apparel, primarily for the U.S. market.186 The apparel export business group, VESTEX, boasts 255 apparel maquilas as members. The majority, 145, are owned by South Koreans; seventy-seven are Guatemalan-owned; eighteen are U.S.-owned; and eleven are owned by investors of other nationalities.187
At the time of this writing, only one labor union, FESTRAS, is organizing in the maquilas. Previous efforts to form labor unions in the maquila sector have met with devastating resistance from the industry as a whole and, at best, government negligence. Unionization efforts have been countered with mass dismissals, intimidation, indiscriminate retaliation against all workers, and plant closings. Although some unions have been formed in some maquilas, in none of these factories have union members emerged unpunished by management. The only experience of a collective bargaining agreement, at a plant owned by the U.S. apparel company Phillips-Van Heusen (PVH), was terminated when PVH closed the plant, citing economic constraints.188
Three women's rights organizations based in Guatemala City have programs with maquila line operators. The Association of Women in Solidarity (Asociación de Mujeres en Solidaridad - AMES), Women for the Betterment of the Family (Grupo Feminino Pro-Mejoramiento de la Familia - GRUFEPROMEFAM), and the Center for Human Rights Legal Action (Centro de Acción Legal de Derechos Humanos - CALDH) all conduct labor rights education workshops. AMES and GRUFEPROMEFAM have programs devoted to reproductive rights and family planning, and AMES runs a medical clinic providing obstetric and gynecological care. CALDH runs a legal clinic, with one full-time lawyer charged with offering legal advice to women maquila workers and taking cases through the Ministry of Labor system. A special ILO program, the Project for Women Working in the Maquila Sector, also conducts training workshops with maquila employees, on subjects such as labor rights and reproductive health. In keeping with the ILO tripartite structure, the project was designed to target not only workers, but also government officials and employers. In Chimaltenango, the Center for Studies and Support of Local Development (Centro de Estudios y Apoyo al Desarrollo Local - CEADEL) monitors abuses in the maquilas and provides services to youth employed in the factories.
Maquilas and the United States
The United States has played a key role in the development and expansion of the maquila sector in Guatemala. Throughout Mexico, Central America, and the Caribbean, the United States government, through the Agency for International Development (USAID), has promoted nontraditional exports as an engine for growth and industrial development since the 1970s.189 USAID began implementing its export-oriented development assistance in Guatemalan in the mid-1980s, when U.S. aid to Guatemala was reinstated following the election of a civilian president. Since that time, USAID has provided critical financial and technical assistance to the Guatemalan Nontraditional Products Exporters Association (Asociación Gremial de Exportadores de Productos No Tradicionales - AGEXPRONT). In 1990, USAID funded over four-fifths of the organization's budget.190 Throughout the 1990s, USAID continued to provide general, unearmarked funding to AGEXPRONT. In 1999, the agency signed a cooperative agreement with the business group for a total of U.S. $2,252,010 to fund a variety of AGEXPRONT activities, with a primary focus on nontraditional agricultural exports. Current funding does not support any programs with the apparel manufacturing sector.191
Today, the United States is Guatemala's most important trading partner. Total U.S. imports from Guatemala in 1999 were U.S. $2.2 billion, with apparel imports accounting for U.S. $1.2 billion of that total. In 2000, total U.S. imports amounted to U.S. $2.6 billion while apparel imports registered at U.S. $1.5 billion.192
Numerous U.S. companies subcontract apparel production to maquilas in Guatemala, including large, well-known corporations such as The Gap, Liz Claiborne, Inc., Target Corporation, and The Limited. It is extremely difficult to ascertain what labels are being produced at any given time. U.S. companies are under no legal obligation to disclose their outsourcing partners and few maquila workers have the ability to track which labels they are producing. Only a handful of maquilas in Guatemala are owned by U.S. citizens. The last U.S. company to directly manage an assembly plant in Guatemala, the shirt company PVH, closed the plant in December 1999.
Trade Incentives and U.S. Trade Law
The apparel maquila sector is expected to grow significantly in the coming years, due in large part to a new trade arrangement with the United States. In October 2000, President Clinton officially designated Guatemala as a beneficiary country under the Caribbean Basin Trade Partnership Act (CBTPA). The CBTPA, passed by Congress under the Trade and Development Act of 2000 in May 2000, extends duty-free and quota-free treatment on imports of certain apparel items from Guatemala (among other countries) that were previously excluded under another trade act, the Caribbean Basin Initiative (CBI).193 To be eligible, the apparel must be assembled from fabric made and cut in the United States, or fabric made in the United States from U.S.-made yarn.194 Luis Oscar Estrada, the head of VESTEX, estimates that the trade deal will spur the creation of 15,000 new jobs.195
The CBTPA, like all U.S. trade programs, is conditioned on respect for what the United States has identified as internationally recognized worker rights. The United States understands the following rights to fall into that category: freedom of association; the right to organize and bargain collectively; the prohibition on the use of forced or compulsory labor; a minimum age for employment of children; and acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health. These were first included in the 1984 Renewal Act of the General System of Preferences (GSP), and have been part of CBI since 1990.196 The elimination of the worst forms of child labor, the subject of a recent ILO Convention, is also included in the conditionality in CBTPA.
The U.S. list of worker rights is similar to those designated by the ILO as fundamental human rights, except in one crucial aspect: the U.S. does not include "equality of opportunity and treatment." 197 This right is embodied most clearly in ILO Convention No. 111 concerning Discrimination in Employment and Occupation (Discrimination Convention). The ILO recently declared nondiscrimination in employment and occupation one of the four core labor rights. 198 According to a labor rights activist involved in the debate over worker rights language in the GSP Renewal Act, the labor coalition faced at the time a "classic dilemma of legislative compromise."199 Although the Democratic Party controlled the U.S. Congress at the time, the presidency was in the hands of Republican Ronald Reagan. The original draft of the worker rights language in the GSP Renewal Act included nondiscrimination, but Republican members of Congress threatened to have Reagan veto the act if the nondiscrimination language remained.
Strong worker rights language in trade programs can prove an effective tool in leading states to take measures to protect labor rights or face revocation of preferential treatment. The GSP has a formal review mechanism, up until recently only triggered by petitions from concerned groups, by which the Office of the U.S. Trade Representative (USTR) must determine whether a given government is taking appropriate steps to ensure respect for the five internationally recognized worker rights. The CBI has no such formal mechanism, nor does the newer CBTPA.
Guatemala was recently singled out for special scrutiny for labor rights problems. The USTR announced in early October 2000 the unprecedented step of a self-initiated review of Guatemala's standing under the GSP. 200 The focus of the review was on anti-union violence "and other aspects of internationally recognized worker rights."201 The USTR also placed Guatemala under close monitoring with respect to worker rights as part of its designation under the new CBTPA. This undesirable distinction was placed on Guatemala to pressure it further to take steps toward resolving crimes against labor leaders, reforming the labor code, and ensuring respect for intellectual property. 202 On May 31, 2001, the USTR lifted the review without imposing sanctions, citing the adoption of labor code reforms in late April and early May as well as steps taken to address violence against workers.203
Because freedom from discrimination is not included in these U.S. trade programs as an "internationally recognized worker right," there is little opportunity to incorporate concerns about discrimination on the basis of sex in the maquilas into these reviews. H.J. Rosenbaum, then assistant U.S. trade representative, explained, "We must stick to the statute, and the statute is fairly expansive, and we can be somewhat flexible, but now it doesn't have language on discrimination...[Guatemala] is dysfunctional in many respects, [and] we have to be somewhat selective. We recognize the importance of the issue, [but] taking it on as our number one or two priority, that's not going to happen."204 Until U.S. trade acts include meaningful conditionality related to nondiscrimination, they will effectively protect and subsidize practices around the world that blatantly discriminate against women in the labor force.205
Peace Accords
In January 2001, Guatemalans began the fifth year of peace following a devastating thirty-six-year armed conflict in which over 200,000 people were killed or "disappeared," at least 250,000 children were orphaned, and well over one million people were displaced. The peace accords that ended the armed conflict cover a wide range of issues, including human rights, the rights and identity of indigenous peoples, economic reform, the role of the military in a democratic society, the return and reintegration of the displaced, and demobilization of guerrilla combatants and soldiers. The accords continue to constitute an important framework for action for the government, and a frame of reference for civil society. Due to the energetic advocacy of organized women's and indigenous rights groups, the accords contain both general and specific promises to improve the status of both indigenous and non-indigenous women in Guatemala.
The government and the Guatemalan National Revolutionary Unity (Unidad Revolucionaria Nacional Guatemalteca - URNG, its Spanish acronym), the umbrella guerrilla group, signed the Agreement on Social and Economic Aspects and Agrarian Reform (Social and Economic Agreement) in 1996, recognizing that the elimination of discrimination against women is essential for Guatemala's economic and social development and obliging the government to revise national laws and regulations to eliminate discrimination against women in all spheres: economic, social, cultural, and political.206 The government committed itself in particular to "guaranteeing the right of women to work" and "revising labour legislation to guarantee equality of rights and opportunities between men and women."207 The Agreement specifically calls for enacting laws to protect the rights of domestic workers.208
The Agreement on the Identity and Rights of Indigenous Peoples (Indigenous Rights Agreement) recognizes "de facto levels of discrimination, exploitation and injustice" against indigenous people in Guatemala and lays out concrete steps toward eliminating this discrimination.209 In a section devoted to the rights of indigenous women, the parties committed to "promote the dissemination and faithful implementation of the Convention on the Elimination of All Forms of Discrimination against Women," among other steps.210 The Indigenous Rights Agreement specifically commits the government to adopt legislation on sexual harassment.211
The peace process marked a pivotal moment in the growth of both the women's movement and the indigenous rights movement in Guatemala. Older and more recently established organizations in both movements now face the challenges of a post-conflict period. As these groups struggle to find their voices, communication among them is often problematic. Civil society has several governmental interlocutors on women's rights. The National Office on Women (Oficina Nacional de la Mujer - ONAM), created in 1981, is the oldest governmental entity charged with overseeing state policies on women's rights. For years, women's rights advocates have lobbied for the creation of a ministerial-level National Institute for Women, which would effectively replace ONAM as the central oversight body. Instead of this proposed institute, President Portillo created the Presidential Secretariat for Women (Secretaría Presidencial de la Mujer) in May 2000, as an advisory body located bureaucratically within the presidency.212 The Office for the Defense of Women's Rights (Defensoría de los Derechos de la Mujer) has been part of the Human Rights Ombudsman's Office since 1991. It has a general mandate to promote and monitor the implementation of gender equality in all spheres: social, political, economic, and cultural. One of its objectives is to bring national law into full compliance with international human rights norms, as well as implementation of peace accord commitments with respect to women's rights. The Office for the Defense of Indigenous Women's Rights (Defensoría de la Mujer Indígena) was called for in the Indigenous Rights Agreement213 and officially installed as part of the Presidential Commission on Human Rights (Comisión Presidencial de Derechos Humanos) on July 21, 1999. Finally, with respect specifically to working women, the Ministry of Labor has a Working Women's Unit (Sección de Promoción y Capacitación de la Mujer Trabajadora) charged with promoting women's equal participation in the workforce, educating working women about their rights, and fostering understanding within the labor ministry of gender-specific labor rights.
149 Report of the Committee on the Elimination of Discrimination against Women, 13th Session. Concluding Comments of CEDAW after consideration of the initial and second combined periodic reports. United Nations Doc. A/49/38, 12 April 1994, para.78.
150 The number of indigenous people in Guatemala is subject to considerable debate. Much depends on how surveys or studies define indigenous identity: use of traditional dress and/or language, geographic origin, self-identification, etc. The Guatemalan state has changed its own criteria. The 1981 census found that only 41.8 percent of the population was indigenous. In 1998-1999, that figure was 48.6 percent. Many observers argue the real figure is probably somewhere between 50 to 60 percent. Even then-president Jorge Elías Serrano stated in 1991 that 60 percent of Guatemala's population descended from the Maya civilization.
151 The Mayan communities, in alphabetical order, are: Achí, Akateko, Awatateko, Ch'orti', Chuj, Itza, Ixil, Keqchikel, K'iche', Mam, Mopán, Pocomchi', Poqomam, Popti', Q'anjob'al, Q'eqchi', Sakapulteko, Sipakapense, Tektiteko, Tz'utujil, and Uspanteko.
152 Constitution of the Republic of Guatemala of May 31, 1985, Article 66. The Constitution entered into force on January 14, 1986. Garífuna, the Afrocaribbean population of Guatemala, are also subject to considerable racism.
153 World Bank, "Country Brief: Guatemala," May 1999, http://www.wb.org/html/extdr/regions.htm (April 13, 2000).
154 United Nations Development Programme (UNDP). Guatemala: La fuerza incluyente del desarrollo humano. Informe de Desarrollo Humano 2000 (Guatemala: The inclusive force of human development. Human Development Report 2000) (Guatemala City: UNDP, 2000), p. 43. Other reports place this figure much higher. The Economic Commission for Latin America and the Caribbean (ECLAC/CEPAL) estimates that 69 percent of the population in Guatemala lives below the poverty line. ECLAC/CEPAL, Notas de CEPAL. Número especial: Panorama Social de América Latina 1999-2000 (Special edition: Social Panorama of Latin America 1999-2000), September 2000, No.12, p.4.
155 Ibid, p. 43. A 1994 study found, rather, that almost 87 percent of indigenous people in Guatemala live in poverty, compared to 54 percent of non-indigenous people. G. Psacharopoulos and H.A. Patrinos, Los pueblos indígenas y la pobreza en América Latina: un análisis empírico (Indigenous peoples and poverty in Latin America: an empirical analysis), Estudios sociodemográficos en pueblos indígenas, Serie E, No. 40 (LC/DEM/G.146), Santiago de Chile, División de Población, Centro Latinoamericano y Caribeño de Demografía (CELADE), 1994.
156 UNDP, La fuerza incluyente (The inclusive force), p. 125.
157 Ibid.
158 UNDP, Human Development Report 2000 (New York: Oxford University Press, 2000), pp.257-258.
159 Instituto Nacional de Estadística (INE) (National Statistics Institute). Encuesta Nacional de Salud Materno Infantil 1998-1999 (National Maternal-Infant Health Survey 1998-1999) (Guatemala City: INE, July 1999). Ladina, or non-indigenous, women have an average of 4.3 children.
160 United Nations Fund for Children (UNICEF), "Country Statistics," http://www.unicef.org/statis (August 28, 2000).http://www.unicef.org/statis
161 UNDP, Human Development Report 2000, p. 111.
162 Guatemalan Labor Code, Article 151 (a) and (b). The article allows for exceptions based on the "nature" of the job. Employers in these cases must receive prior authorization from the Labor Inspectorate and the National Office on Women. The Guatemalan Constitution also proscribes discrimination based on marital status (Article 102(k)). Notwithstanding these prohibitions, Human Rights Watch researchers consistently found job announcements that were sex specific in their requirements in the three major national daily newspapers.
163 Guatemalan Civil Code, Articles 114 and 113, respectively. The Constitutional Court of Guatemala upheld these and other articles in a 1993 decision, arguing that they were not discriminatory against women: "In marriage there is a role for each of the spouses, those that are determined by the State within the traditional Guatemalan values and the diversity of conceptions, customs and national beliefs in relation to marriage. The State has regulated the institution [of marriage] with precise norms to give certainty and legal security to each of the spouses." Constitutional Court, Case No. 84-92 (June 24, 1993), Gaceta de la Corte de Constitucionalidad. .
164 Facultad Latinoamericano de Ciencias Sociales (FLACS0) (Latin American Faculty of Social Sciences), "Mujeres Latinoamericanas en Cifras" (Latin American Women in Statistics), http://www.eurosur.org/FLACSO/mujeres/guatemala/trab.htm (January 27, 2000).
165 INE. Encuesta Nacional de Ingresos y Gastos Familiares 1998-1999 (National Survey of Family Income and Expenditures), p.38. This figure includes workers age seven and above. Another source claims that there has been an eight percent annual growth in women's participation in the workforce between 1990 and 1998. UNDP, La fuerza incluyente, (The inclusive force), Graph 3.10, p.55.
166 FLACSO, "Mujeres Latinoamericanas en Cifras" (Latin American Women in Statistics).
167 Women in Development Network (WIDNET), "Statistics - Latin America and the Caribbean: Labour," http://www.focusintl.com/statr4a4.htm (January 27, 2000).
168 UNDP, La fuerza incluyente (The inclusive force), p.55. The Guatemalan governmental statistical institute's yearly National Survey of Family Income and Expenditures, on which these figures are based, considers all employees of businesses with fewer than five workers to be part of the informal sector. This definition mirrors that adopted by the ILO: the formal sector is composed of those employed in businesses with over five workers, as well as independent and technical professionals.
169 The Economic Commission for Latin America and the Caribbean (ECLAC) found that women's participation in the labor force throughout the region has increased significantly in the past decade, but that this growth has been primarily in insecure jobs rather than high-quality employment. ECLAC/Women and Development Unit, The challenge of gender equity and human rights on the threshold of the twenty-first century (Santiago, Chile: ECLAC, May 2000), p. 25.
170 Petersen, Maquiladora Revolution, p.45.
171 Human Rights Watch interview, Marco Antonio Rosales, director, Guatemalan Nontraditional Products Exporters Association (Asociación Gremial de Exportadores de Productos No Tradicionales) (AGEXPRONT), Guatemala City, June 21, 2000.
172 UNDP, La fuerza incluyente (The inclusive force), p.54. The UNDP calculated this figure using data from the governmental Encuesta Nacional de Ingresos y Gastos Familiares 1998-1999 (National Survey of Family Income and Expenditures 1998-1999). The total economically active population in Guatemala for that time period was 4, 207, 946. Two percent of this figure is 84,159.
173 International Labor Organization (ILO). The Employment and Conditions of Domestic Workers in Private Households, (Geneva: ILO, March 1970), D.11 1970, mimeograph; Sean Loughna and Gema Vicente, Population issues and the situation of women in post-conflict Guatemala (Geneva: ILO, 1997), p. 34. The much higher estimate for the number of domestic workers may reflect the fact that the government does not have a system in place for registering these workers and therefore the actual number of people performing these jobs may be much higher than estimated in the governmental survey and by the UNDP.
174 For a more in-depth discussion, see Tanya Lovell Banks, "Toward a Global Critical Feminist Vision: Domestic Work and the Nanny Tax Debate," 3.J. Gender Race & Just. 1, (Fall 1999), p. 4.
175 UNDP, La fuerza incluyente (The inclusive force), p.55. UNDP calculation based on government statistics.
176 Human Rights Watch telephone interview, Imelda Hernández, director, CENTRACAP, Guatemala City, November 3, 2000.
177 Amanda Pop Bol, "Racismo y Machismo: Deshilando la opresión," ("Racism and Machismo: Unraveling Oppression") in Morna Macleod and M. Luisa Cabrera Pérez-Armiñan, eds., Identidad: Rostros sin Máscara. Reflexiones sobre Cosmovisión, Género y Etnicidad (Identity: Faces without Masks. Reflections on Cosmovision, Gender and Ethnicity) (Guatemala City: Editorial Maya Nojib'sa, 2000), p.129.
178 "Domestic Workers Build Self-respect in Sunday Workshops," CERIGUA Weekly Briefs #28, July 20, 1998.
179 A survey of fifty-seven national centers and 160 trade unions conducted by the ILO found that few prioritize organizing atypical workers. The main problems these unions cited were: legal barriers, threat of reprisals by hostile employers, lack of awareness of atypical workers of the benefits of unionization, resistance from `core' union members, and the cost of member drives. ILO/Gender Promotion, "The Role of Trade Unions in Promoting Gender Equality and Protecting Vulnerable Women Workers. First Report of the ILO-ICFTU Survey," http://www.ilo.org/public/english/employment/gems/workers/index.htm (September 26, 2000).
180 Two other organizations, Casa San José and Casa María, also belonged to the coalition when it was first established in 1998.
181 Four pieces of legislation governed the operation of maquilas in Guatemala before the current regime was established in 1989: Decree 443 (1966), Decree 30-79 (1979), Decree 80-82 (1982), and Decree 24-84 (1984).
182 For a detailed discussion, see Petersen, Maquiladora Revolution. This arrangement makes monitoring extremely difficult.
183 According to the Ministry of Economy, in 2000 there were eleven free trade zones registered under Decree 65-89, with a total of fifty-five maquilas. Human Rights Watch interview, Nora González M., director, Department of Industrial Policy, Ministry of Economy, Guatemala City, June 21, 2000. The vast majority of maquilas, therefore, operate outside these zones. Human Rights Watch researchers met with workers in maquilas registered under Decree 29-89.
184 AGEXPRONT/VESTEX mimeograph, given to Human Rights Watch on June 21, 2000.
185 Directorio de Empresas Calificadas bajo el Decreto 29-89 (Directory of Qualifying Businesses under Decree 29-89), Department of Industrial Policy, Ministry of Economy mimeograph, June 21, 2000.
186 Human Rights Watch interview, Nora González M., director, Department of Industrial Policy, Ministry of Economy, Guatemala City, June 21, 2000. One of the factories mentioned in this report, Ventas Unidas, S.A., produces Pierre Cardin for the local market only; it does not export Pierre Cardin clothing to the United States or anywhere else.
187 AGEXPRONT/VESTEX mimeograph, given to Human Rights Watch on June 21, 2000. The influx of South Korean capital in the early to mid-1980s was decisive in the development of the sector. According to Petersen, a combination of domestic labor unrest, increased foreign competition, and U.S. import quotas on Korean-manufactured apparel in mid-1980s spurred South Korean capital to seek investment opportunities abroad. Guatemala was a good choice because the two countries had good diplomatic relations and the apparel industry was underdeveloped (Petersen, Maquiladora Revolution, pp. 143-145). Although labor rights violations have been documented throughout the industry, many Guatemalans believe that South Koreans commit the worst abuses. A researcher into the early years of the maquila boom noted that the presence of Korean factories had already "set off a wave of racist sentiment among both Guatemalan workers and business leaders." (Petersen, Maquiladora Revolution, p.8). In the year 2000, when Human Rights Watch conducted its research, this sentiment remained widespread not only among workers, but also government officials, labor rights activists, and women's rights activists. South Koreans are stereotyped as ignorant and disrespectful of Guatemalan culture, cruel and verbally abusive, and the conditions in South Korean maquilas are perceived to be more dehumanizing than in factories operated by other nationalities.
188 See Human Rights Watch, Corporations and Human Rights: Freedom of Association in a Maquila in Guatemala, (New York: Human Rights Watch, 1997).
189 Petersen, Maquiladora Revolution, pp.20-36.
190 Ibid., p.26
191 Communication (email) from Thomas Kellermann, Guatemala desk officer, USAID, received as attachment March 12, 2001.
192 United States Census Bureau/Foreign Trade Division, "FT900 - U.S. International Trade in Goods and Services," http://www.census.gov/foreign-trade/www (March 5, 2001).
193 Office of the United States Trade Representative (USTR). Press Release: "USTR Announces AGOA/CBI Country Designations." October 2, 2000. There are twenty-three other Latin American and Caribbean countries designated under the CBTPA.
194 Trade and Development Act of 2000 (H.R. 434), Title II, Subtitle B, Sec.211.
195 Luis Enrique González Pérez, "Incluyen a Guatemala en beneficios de la ICC" (Guatemala is included in CBI benefits"), Siglo Veintiuno, October 3, 2000.
196 General System of Preferences Renewal Act, Pub. L. No. 98-573, Section 502(a)(4), Stat.3018 (1984). The GSP is a worldwide trade act; Caribbean Basin Economic Recovery Act, amended by Customs and Trade Act of 1990, 19 U.S.C, Sections 2701-2706 (West. Supp.1991).
197 For an in-depth discussion, see Karen F. Travis, "Women in Global Production and Worker Rights Provisions in U.S. Trade Laws," Yale Journal of International Law 17 (Winter, 1992): 173-194.
198 1998 Declaration on Fundamental Principles and Rights at Work. The other core principles are freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labor, and the effective abolition of child labor.
199 Human Rights Watch telephone interview, Lance Compa, Ithaca, New York, October 11, 2000.
200 "Caribbean Basin Trade Partnership Act: Customs Procedure Designation," Office of the United States Trade Representative (USTR) Press Release, October 5, 2000.
202 USTR press release, "USTR Announces," October 2, 2000.
203 "USTR Concludes Review of Guatemala's Labor Practices and Trade Preferences Under U.S. Law," Office of the United States Trade Representative (USTR) press release, May 31, 2001.
204 Human Rights Watch interview, H.J. Rosenbaum, assistant U.S. trade representative, Washington, D.C., November 28, 2000.
205 The absence of a nondiscrimination condition also means that there is no leverage to examine discrimination based on race, religion, language, political or other opinion, national or social origin, property, birth or other status.
206 Agreement on Social and Economic Aspects and Agrarian Reform (Social and Economic Agreement), signed May 6, 1996, Article 13(h).
207 Ibid., Article 13(e) and (e)(ii).
208 Ibid., Article 13(e)(iv).
209 Agreement on Identity and Rights of Indigenous Peoples (Indigenous Rights Agreement), signed March 31, 1995, preamble.
210 Ibid., Section II, B, 1(c).
211 Ibid., Section II, B, 1(a).
212 Governmental Accord No. 200-2000, Guatemala, May 17, 2000.
213 Indigenous Rights Agreement, Section II, B, 1 (b).