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Letter to President Lucio Gutiérrez of Ecuador

Human Rights Watch congratulates you as you assume Ecuador's presidency. We are heartened that you have publicly declared your commitment to the protection of human rights and hope that such a commitment will include a focus on the rights of workers. We urge you, in particular, to initiate meaningful labor law reforms, improve labor law enforcement, and increase protection for labor rights throughout the country.

Human Rights Watch is an independent, nongovernmental organization that conducts investigations of human rights abuses in some seventy countries around the world. Human Rights Watch was founded in 1978 and today includes regional and thematic divisions, among them the Americas Division and the Business and Human Rights Program. In April 2002, Human Rights Watch published a report documenting labor rights abuses in Ecuador's banana sector, Tainted Harvest: Child Labor and Obstacles to Organization on Ecuador's Banana Plantations.

As you know, the previous administration in Ecuador recently took several positive first steps towards upholding workers' rights. In October 2002, ex-Minister of Labor Martín Insua Chang decreed a new "System for the Inspection and Monitoring of Child Labor." In the fall of 2002, the National Committee for the Progressive Elimination of Child Labor established a special banana sector committee to facilitate the implementation of the July 2002 banana industry agreement on child labor. And on January 3, 2003, the new Code for Children and Adolescents was published in the Official Register, raising the minimum age of employment to fifteen, increasing the maximum fine for violating child labor laws, and providing for the closure of facilities that repeatedly violate those laws. In October, the former administration also made labor-rights related commitments prior to receiving tariff benefits under the Andean Trade Promotion and Drug Eradication Act (ATPDEA), which requires the U.S. government to consider whether a potential beneficiary country "provide[s] internationally recognized worker rights."

In the view of Human Rights Watch, however, existing measures will be insufficient to address the problem of child labor in Ecuador. Similarly, ATPDEA commitments, unless interpreted broadly and rigorously implemented, will have little practical impact on improving conditions for Ecuador's workers.

Human Rights Watch strongly encourages your administration to go beyond previous initiatives and adopt the reforms necessary for the immediate elimination of harmful child labor and the progressive elimination of all child labor-an ATPDEA commitment. We urge you to ensure that the System for the Inspection and Monitoring of Child Labor provides for the hiring of new child labor inspectors, at least one for each province as required by Ecuadorian law, rather than the transfer of existing inspectors. Additional funding should be allocated to ensure that the System has sufficient resources to complete its functions, including gathering, processing, and updating data on child labor. Similarly, the National Committee for the Progressive Elimination of Child Labor's banana sector committee, which according to ex-Minister of Labor Insua has only four inspectors to monitor over 5,000 plantations, requires more inspectors for meaningful implementation of the banana industry's agreement. As enforcement of child labor laws improves, it is also imperative that rehabilitative mechanisms for displaced child workers be established and effectively administered.

To these ends, Human Rights Watch recommends that your administration adopt a strategy for the progressive elimination of child labor that includes not only enforcing the increased penalties for violating child labor laws but requires that a portion of the fines collected be dedicated to rehabilitation of former child workers; the implementation of the provisions of the Constitution and Code for Children and Adolescents that mandate free and compulsory education for all children under fifteen; and a meaningful increase in programs for social protection for at-risk children and displaced child workers, such as scholarships and health and food subsidies.

So that these children's parents, whose meager incomes exacerbate the problem of child labor, and all Ecuadorian workers can exercise their right to organize and bargain collectively for higher wages and better working conditions, Human Rights Watch urges your administration to take the necessary steps to give effect to Ecuador's obligations under International Labor Organization (ILO) Convention 87 concerning Freedom of Association and Protection of the Right to Organize and ILO Convention 98 concerning the Right to Organize and Collective Bargaining. Human Rights Watch urges your administration to uphold its ATPDEA commitment to review the consistency of Ecuador's labor laws with the country's obligations under ILO conventions, particularly in the area of freedom of association. Human Rights Watch has documented that Ecuadorian labor laws governing the right to organize fall significantly short of international standards. For example, in large part due to weak labor protections and even weaker enforcement of existing laws, workers in Ecuador's banana sector are the victims of severe anti-union discrimination, which is reflected in a union affiliation rate of less than 1 percent-a banana worker affiliation rate far lower than that of Colombia or any Central American banana-exporting country.

Human Rights Watch encourages your administration to push for legislation to remedy these shortcomings. In particular, Human Rights Watch recommends that labor law reforms be enacted that explicitly prohibit employers from interfering in the establishment or functioning of workers' organizations; require reinstatement of workers fired for engaging in union activity and payment of lost wages during the period of wrongful dismissal; prohibit anti-union discrimination in hiring and establish adequate penalties to deter employers from engaging in this or any other anti-union discrimination; allow subcontracted workers to organize and bargain collectively with the person or company that, in practice, has the power to dictate their employment terms and conditions; limit the percentage of subcontracted workers in any workplace to 20 percent; and reduce the minimum number of workers required to form a union from thirty to the previous minimum of fifteen. If these amendments are adopted and effectively enforced, workers in Ecuador will be significantly closer to being able to exercise their right to organize.

One of last year's most troubling examples of anti-union activity in Ecuador occurred on the Los Alamos banana plantations owned by the Noboa Corporation. Since workers began organizing in February 2002 and, to a greater extent, after they declared a strike in March and implemented that strike declaration in May, they have been the victims of systematic anti-union conduct. Workers have suffered retaliatory dismissals, threats and intimidation to withdraw support for unions and negotiating demands, and employer interference in the establishment and functioning of workers' organizations. They have also been the victims of gross acts of anti-union violence; on May 16, at least nine striking workers were shot and injured and many more were dragged from their homes by armed thugs.

Ecuador made an ATPDEA-commitment to establish a high-level commission to examine the police response to the striking Los Alamos workers, the conduct of the parties to the arbitration and reconciliation process that addressed the labor conflict, and the procedures for handling strikers' complaints of labor law violations. Human Rights Watch urges your administration to ensure that the high-level commission is not only established but undertakes its mission diligently and seriously. If violations of Ecuadorian law are suspected, the commission should turn those matters over to the proper authorities for their immediate investigation and, if appropriate, sanction. If improper procedures were followed by government agents, the necessary steps should be taken to ensure that the offending agents face proper consequences and that the victims of improper conduct are compensated.

Lastly, Human Rights Watch calls on your administration to undertake a comprehensive criminal investigation of the anti-union violence committed against the Los Alamos workers on May 16. Anyone found responsible for the violence should be prosecuted. We note that the previous investigation, which was undertaken and turned over to a criminal judge in October 2002, was sorely inadequate. That investigation overlooked one of the two incidents of violence; examined the case of the injured policeman but not the injured workers; named sixteen accused, though worker reports allege that roughly two hundred men were involved; and failed to include information from workers, strongly suggesting that none were interviewed. Unless another investigation is initiated, those who may have contracted the perpetrators of the violence as well as all but sixteen of those perpetrators will enjoy impunity, and the sixteen accused will face charges for only a fraction of the illegal activities of May 16, enjoying impunity with respect to the others. As a condition for receiving ATPDEA benefits, Ecuador committed to continue to investigate and take further action with respect to this case. Human Rights Watch urges your administration not only to facilitate the advancement of the case underway but to open a new, meaningful investigation of the events.

Given your long-standing commitment to Ecuador's workers, the poor, and the disenfranchised, we are confident that your administration will place respect for labor rights among its highest priorities and will seriously consider adopting the aforementioned recommendations for the improvement of workers' rights. We are hopeful that your administration will make significant progress in this area and look forward to discussing these matters further during your term.

Sincerely,

/s/

José Miguel Vivanco
Executive Director

Cc: Minister of Labor and Human Resources

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