Committee on the Elimination of Racial Discrimination examines report of Ecuador

8 August 2012

The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined twentieth to twenty-second periodic report of Ecuador on how that country is implementing the provisions of the Convention on the Elimination of All Forms of Racial Discrimination.

Introducing the report, Maria Fernanda Espinosa Garcés, Minister of Heritage of Ecuador, said it was only through the strictest adherence to human rights that Ecuador would be able to become a truly democratic and sustainable State where all men and women enjoyed true equality. Unfortunately the greed of capitalism had brought the planet to an unprecedented and unsustainable crisis where capital actually enjoyed more rights than human beings. Everything in Ecuador was staked upon an economy that redistributed wealth and helped everyone to live free and equal in dignity, regardless of their race or gender. In 2008 Ecuador adopted a new Constitution which promoted the indigenous concept of ‘wellbeing’ and included the rights to water, shelter, habitat, housing, health, education, employment and social security. It had made unprecedented efforts to tackle poverty. Combating racial discrimination in all forms was a long-term task, but Ecuador was well on its way to achieving it.

During the discussion, Experts congratulated Ecuador on presenting a comprehensive report and on its commitment in taking into account the concluding recommendations and observations of the Committee in its legislation. The delegation was asked about discrimination faced by Afro-Ecuadorians, racism in the media, the identity of the Montubio people and about compensation for indigenous groups who had lost their habitat when drilling for oil had taken place. Measures to change public attitudes of xenophobia towards Colombian refugees were raised, as were efforts to effectively prosecute crimes of racial discrimination in courts. The bilingual education system, the status of WikiLeaks founder Julian Assange to whom Ecuador had apparently given asylum, and violent clashes between protestors and the police were also discussed.

Ms. Epinosa Garcés, speaking in initial concluding remarks on Tuesday, 7 August, said Ecuador had the only Constitution in the world that recognized the rights of nature and it was forging a new relationship between society, the economy and the environment. It was only by building an inclusive society with a fair economy that avoided exacerbated consumerism that true equality could be found.

In preliminary concluding observations, Joey Francisco Calitzay, Country Rapporteur for Ecuador, said the Committee had a clearer understanding of what Ecuador was doing to counter racial discrimination on the ground but still had pending concerns about issues including the lack of a definition of indigenous and of State jurisdiction, a lack of clarity with respect to Roma people, who were seen as foreigners and not as members of Ecuadorian society, and about the cases of racial discrimination that had been brought to the courts, particularly cases against public officials.

Luis Gallegos Chiriboga, Permanent Representative of Ecuador to the United Nations Office at Geneva, concluded that many of the issues raised by the Committee were being discussed both in the legislative body and in wider society. The new, innovative 2008 Constitution provided a way for Ecuador to bring about a new form of ‘Ecuadorianess’ encompassing mutual respect, social peace and democracy that could hopefully be emulated by other countries throughout the world.

The delegation of Ecuador consisted of representatives of the Ministry of Heritage, the Ministry of Social Development, the Department of Human Rights and Social Affairs, the Directorate of the Multinational Plan Against Racial Discrimination, the Department of Social Movement and Participation, and the Permanent Mission of Ecuador to the United Nations Office at Geneva.

The Committee will issue its concluding observations and recommendations on the report of Ecuador towards the end of its session, which concludes on 31 August.

The next public meeting of the Committee will be at 3 p.m. on Wednesday, 8 August, when it will consider the combined sixth to eighth periodic report of Tajikistan (CERD/C/TJK/6-8).

Report of Ecuador

The combined twentieth to twenty-second periodic report of Ecuador can be read via the following link: CERD/C/ECU/20-22.

Presentation of the Report

MARIA FERNANDA ESPINOSA GARCÉS, Minister of Heritage of Ecuador, said it was only through the strictest adherence to human rights that Ecuador would be able to become a truly democratic and sustainable State where all men and women enjoyed true equality. Unfortunately the greed of capitalism had brought the planet to an unprecedented and unsustainable crisis where capital actually enjoyed more rights than human beings. Ecuador called upon the Committee to spearhead an analysis of the current capitalist, global financial crisis from a human rights perspective. Everything in Ecuador was based upon an economy that redistributed wealth and helped everyone to live free and equal in dignity, regardless of their race or gender. In 1966 Ecuador acceded to the Convention on the Elimination of Racial Discrimination, and since its revolution in 2007 it had taken firm action to eliminate racial discrimination. A new Constitution was adopted in 2008 which promoted the indigenous concept of ‘wellbeing’, or ‘Sumak Kawsay’, in Quichua, a concept that included the rights to water, shelter, habitat, housing, health, education, employment and social security. The promotion of wellbeing had helped eliminate discrimination faced by indigenous peoples, particularly through the Constitutional recognition of the right to water.

For the past five years unprecedented efforts had been made to tackle poverty, via comprehensive social policies. Economic growth grew at a rate of 7.8 per cent in 2011, while Ecuador’s gross domestic product was in 2010 the highest in Latin America, at 13.8 per cent. As a result of the sale of State oil, more efficient tax collection and a reduction in tax evasion, Ecuador was able to ensure quality economic growth rooted in fair economic policies. Social investment had also significantly increased, while overall poverty had been reduced from 37.6 per cent in 2006 to 28.6 per cent in 2011. A national census that allowed self-identification for the first time was another success, and showed that of a total population of over 14 million people, 21 per cent were in the category of ethnic groups; seven per cent were indigenous, 7.4 per cent were Montubio and 7.2 per cent were Afro-Ecuadorian. There were over 50,000 refugees living in Ecuador – the majority from Colombia, but many from Haiti and other countries - but the majority had been assimilated into society and the economy.

Ecuador had eradicated the sub-human living conditions of domestic helpers, many of whom were Afro-Ecuadorian women, by decreeing a minimum salary that matched the national average and making it mandatory for employers. Thousands more health clinics had been opened. Upon launching a five-year Multinational Plan Against Racial Discrimination, based on civil society proposals, the Ministry of Heritage had declared that every day was a day against racial discrimination. An example of a seemingly minor reform that had had a huge impact on tackling racist discrimination was the substantial promotion and publication of new books, including short stories, anthologies and poetry by black Ecuadorians, particularly women writers, which gave that group more of a voice in society. Today many more Afro-Ecuadorians worked in the public sector; for example until recently there was not one Afro-Ecuadorian in the diplomatic service, but today over 70 Ecuadorian diplomats came from the Afro-Ecuadorian, indigenous and Montubio populations. Combating racism in all of its forms was a long-term task that required specific action and a strong legal framework. There would be no genuine peace, freedom and justice until all forms of racial discrimination were eradicated, and Ecuador was well on its way to achieving this.

Questions from the Experts

JOEY FRANCISCO CALITZAY, Committee Member acting as Country Rapporteur for the Report of Ecuador, said Ecuador had a rich history of over 10,000 years with a long trading history, and he welcomed the strides made by Ecuador in recognizing its cultural diversity. The Rapporteur expressed the Committee’s pleasure in the report which outlined legislative efforts to implement the Convention, as seen in the preamble to the new Constitution. While Spanish was the national language of the State, the status and use of other indigenous languages reflected its diversity. However, the definition of racial discrimination was not quite in line with the Convention; did it cover all areas of public life? Who were the Montubio people? On reading the report the Committee members were puzzled as to the identity of the Montubio people, although they knew of other indigenous groups in Ecuador. Could information be provided on their history and cultural identity?

The Rapporteur referred to reports of the lynching of Afro-Ecuadorians victims in urban areas, and asked for more information. Had any cases of racial discrimination gone before a court, and if so, could the Committee have details about them? If no cases had gone before the court, why were people not pressing charges? What sanctions were applied to those found guilty of xenophobic crimes? Amnesty International had published a report documenting violent clashes between protesting indigenous peoples and law enforcement officers, which led to some indigenous leaders being killed. Could the delegation clarify? Could the delegation provide more information on what was being done to protect and help refugees from Colombia? In previous reports the Committee raised concerns about education, asking what was meant by bilingual-cultural education, and would still like more information about that.

The high representation of women in the delegation was welcomed by an Expert who congratulated Ecuador on providing a very rich and comprehensive report that clearly reviewed progress made since the last review of July 2008. The Expert was particularly impressed by the range of efforts taken by Ecuador, which he said were genuine strides forward. The adoption, in October 2008, of a new Constitution which did much to promote the inter-cultural aspects of its society showed how committed the Government of Ecuador was in taking into account the concluding recommendations and observations of the Committee, something that should be underscored.

Another Expert praised the oral presentation that instead of summarizing the report added new information on Ecuadorian policy and was truly helpful to the Committee. Some people thought that one had to be Marxist to make such a link between culture, human rights and capitalism, but in reality culture existed in real economic situations. The Expert said he and the Committee felt challenged by the delegation to undertake a study on the crisis of capitalism evidenced by their question about capitalism’s part in cultural crises around the world.

The revolutionary process in Ecuador and its significant strides forward in implementing the Convention must be recognized, commented one Expert. In its report Ecuador referred to 18 indigenous peoples and 14 different indigenous nationalities, in addition to Afro-Ecuadorians and the Montubio group. Could the delegation clearly explain the differences between those groups, and why communities living in inaccessible areas were referred to differently?

Exploitation of underground resources should not violate people’s right to the surface area of their land, an Expert said in a comment on cases of discrimination against indigenous people. Special measures to deal with discrimination towards indigenous people had been recommended, particularly regarding monetary compensation for indigenous people living in areas where drilling for oil had taken place. Had the State party considered other methods of compensation, such as offering those people the option to move to similar territories held by the State, in order to preserve the identity of their indigenous groups? What about deforestation in Ecuador? The Minister for Heritage was very well placed to preserve and defend the cultural heritage and rights of indigenous peoples.

Experts referred to the case of Julian Assange, the WikiLeaks founder, to whom Ecuador was apparently providing asylum. Was that true, and was Julian Assange currently in Ecuador? It was important as WikiLeaks was a symbolic case that was having an incredible effect in the global human rights domain.

The delegation had said that a third of the territory of Ecuador was in the hands of indigenous peoples or nations. In that case, an Expert asked, could the State function effectively in the other two thirds? An Expert asked about the customary law of indigenous peoples and asked whether they used community courts. He noted references to the crimes of genocide and ethnocide in Ecuador, and asked how the State party specifically addressed and defined them. Referring to the Colombian refugees, an Expert asked about opinion polls that showed that Ecuadorians held very negative attitudes towards them. He applauded the State party on its decision not to keep Colombian refugees in camps, but asked what was being done to change public attitudes towards asylum seekers and to tackle xenophobia.

The Committee had previously expressed concerns about negative portrayals of minority groups in the media, but noted that the draft law on the subject took a more coercive approach with disciplinary sanctions against the media if it violated anti-discrimination legislation. That law targeted a very broad definition of ‘media’ and contained aspects that went well beyond the Convention, it could on the other hand represent micro-management by the State and censorship: were those issues part of the organic debate surrounding the drafting of that new law?

Response by the Delegation

Ecuador’s global and national plan to fight discrimination was based on the pluri-national plan for ‘good living’. The right to participation was held as very important in Ecuador, as was the right to prior consultation, in particular with respect to planned marketing and exploitation of non-renewable resources on the lands of indigenous people that could affect their culture and identity. Under previous Governments, contracts for oil exploitation had been given without prior consultation. Already an Executive Decree had established mechanisms for social participation, for example concerning proposed mining projects, where local prior-consultation committees could be set up to review possible consequences of the project. Today two draft bills on prior-consultation were currently before the Executive Office, and things were changing. For example, it had been ruled in the well-known Sarayaku case that was referred to by the Committee that compensation would be paid to the Sarayaku people. The Office of the Defender of the People was concerned about private actors and companies pressurizing Ecuadorian people, whether through their interest in oil or in expanding the agricultural areas. An inter-sectional approach to strengthen the rights of indigenous peoples in that regard was needed.

The new 2008 Constitution outlawed any arbitrary or forced displacement as a result of oil drilling or other extraction: people had a human right not to be displaced from their territory. The Constitution ruled that if such displacement occurred, people would be ensured protection and compensation from the authorities. The Texaco case, in which Texaco’s extensive oil extraction in the Ecuadorian Amazon caused serious ecological problems, great population displacement and extensive pollution to indigenous lands which led to widespread illness such as cancers, had led to the implementation of much stronger compensation laws. For example, so-called ‘community compensation’ was provided for environmental damage. The Constitution also provided for special access to indigenous communities that could form their own territorial constituencies to ensure the preservation of their culture.

The Office of the Defender of the People believed it was necessary to promote policies and systems to protect people whose displacement was not only caused by natural disasters but by human consequences. The Office had identified a high concentration of Afro-Ecuadorians living in cities, who particularly suffered from the poor provision of basic services; four in every 10 Afro-Ecuadorian households were in poor condition and had poor sanitation. Since 2001 the Office of the Defender of the People had been promoting diverse policies and projects to improve housing, employment, health and education access for those groups.

Furthermore, the indigenous population had the lowest access to education of any group in Ecuador. There was a link between a person’s access to education and to housing and type of eventual employment. The Afro-Ecuadorian, Montubian and indigenous populations had the highest illiteracy rates in Ecuador, and the lowest secondary tier education attendance, which directly affected their employability. Helping previously excluded groups gain access to university would help give them wider options in the future.

Concerning migration and refugees, the delegation said there was a serious refugee problem in the north of the country. Over 56,000 Colombian refugees had been received on Ecuadorian territory. Those refugees were entitled to the same State services as were provided to Ecuadorians. Refugees received free healthcare, and refugee children were entitled to free education, at a cost of over $70 million for 2010 to 2011 to the State. However, there was much work to do to protect victims who sought refuge from conflict in Colombia, as well as refugees coming from Guatemala.

The Government always clearly condemned and penalized crimes of discrimination against refugees and foreigners, particularly discrimination published by the Ecuadorian media. The media was always keen to blame Colombians for crime, but the Government had worked hard to demonstrate that crime was not due to foreigners and that there was no link there.

Drug trafficking was another problem exacerbating the refugee and asylum seeker situation. Cocaine was not cultivated in Ecuador and there were no huge plantations as seen in Colombia. Nevertheless Ecuador was suffering from being caught in the drug trafficking trade which went from Colombia and Peru to consumers in Europe and North America. Until drug consumption in Europe and North America was reduced, the problems affecting Ecuador, a country caught in the middle, could not be solved.

The right to self-determination, or self-identification, was very important in Ecuador and the freedom to do so was provided for in the Constitution. Ecuador wanted to ensure that its peoples, or nationalities, could use that right to identify themselves with their own traditions and practices. While people had options to classify themselves as white, indigenous, Montubios, Afro-Ecuadorian and so on, the census also gave people an option of ticking a box called ‘other’ as well, as some people – perhaps immigrants or from another ethnicity – preferred to do that.

A delegate turned to issues surrounding the so-called ‘un-contacted people’.
Un-contacted people were nomadic people or tribes, who had chosen not to have any contact with society. Their mobility was studied and the Government had set aside particular territories for them, where any exploitation of natural resources was forbidden. A monitoring system had been set up in those territories under the auspices of four Ministries in order to safeguard protection measures and in particular to ensure that no companies, particularly timber companies or hydro-carbon extraction companies, could act there. Recent results from the monitoring system led the Government to decide there was no need to increase the size of the territories.

The situation of the un-contacted people was fascinating. The Government did not have disaggregated data on those groups nor did it know how many people belonged to them, as they had not counted them because there had not been any contact with them. Great respect was held for their way of life and it was crucial to preserve that and protect them. The Government did try to monitor some of their movements, such as their hunting patterns, in order to better protect them, but it was a very sensitive process.

Another example of protecting indigenous people was the case a few years ago when doctors from the United States came to Ecuador and took blood and DNA samples from an indigenous community. Those doctors returned to the United States and sold the samples of blood and DNA to other organizations, which obviously had a profound effect on the indigenous group concerned. The Ombudsman had taken up that case.

Civil society participation was very important, and civil society organizations were represented on State Councils on a rotating basis. The National Assembly provided for the representation of various indigenous groups, Montubios and so on, and those groups had actively submitted proposals to the National Assembly. The overall State budget was $26 billion, and five per cent of the 2012 national budget had been set aside to counter discrimination. In addition, the Afro-Ecuadorian Commission had drafted appropriate instruments.

Turning to the definition of ‘racial discrimination’, the entire content of the Convention on the Elimination of Racial Discrimination was part and parcel of Ecuadorian law, a delegate confirmed. The Constitution provided for human rights treaties to have Constitutional level in law, and therefore to be immediately and directly applied. The Constitution applied that one could not justify an act on the basis of there being a gap in the law, and that could not be used as an excuse for racist behaviour.

There were measures to protect people from racial discrimination, in addition to Constitutional mechanisms such as habeas corpus. Crimes described as ‘hate crimes’ carried a penalty of between one to 16 years in prison if the victim was murdered. Between 2009 and today, 320 cases of racial discrimination had been brought to court. Many of those cases went at least to the initial stage of the court process, three led to guilty verdicts, and ten cases led to acquittal. None of the people found guilty of crimes of racial discrimination had yet been sentenced. The Government recognized that that was inadequate, which was why the Penal Code was currently under revision.

Concerning demonstrations, a delegate explained that Ecuador protected the human right to social resistance, which naturally must fall within a non-violent framework. Nobody was deprived of freedom on the basis of sabotage or terrorism. A delegate referred to a specific case of demonstrations by indigenous people over access to water sources, which led to the death of one protestor called Professor Bosco Wisum. A full criminal investigation into his death took place, which determined that Professor Wisum died as a result of a bullet which came from a hunting rifle used by the Shuar people who were protesting. The trajectory of that bullet was that it was not possible for it to have been fired by the police. Nobody was imprisoned as a result of that case, although the case was currently undergoing an appeal process.

Regarding the Roma people, who were nomadic, a delegate explained that they had formed their own association which was recognized by the Government, and via that were informing the State of their needs, which the Government was currently working to address.

In answer to an Expert’s request for a clearer definition of Montubios, a delegate answered that they were simply a group of people who self-identified as Montubio. They lived in a sub-tropical area of the country, and had a common spirit, identity and ancestral customs distinct from other social groups. They wore distinct clothing, and were often peasants living on the Ecuadorian coast. Any further requests for clarification by the Committee could be answered at a later time, the delegation assured.

Follow-Up Questions

In a series of follow-up questions from Committee Experts, the delegation was asked again about hate crimes, including allegations of lynching against Colombian refugees and about refugees coming to Ecuador from Guatemala. The background of the Quito People was also enquired about.

Experts also asked questions about the difference between indigenous justice and regular justice, and definitions of those. Measures to protect domestic workers were also referred to, with one Expert asking in particular what legal protection such workers now had.

Response by the Delegation

In response to a question about the Quito People, the delegation referred back to the Inca period in Ecuador’s history, where Quito people were displaced from the Andean Mountains by the Incan empire.

It was true that the heavy refugee population coming in from Colombia had been accompanied by widespread violence. Many of those refugees were people who were used to wielding weapons, and that intimidated and scared the Ecuadorian population.

There was a very lively debate in Ecuador about hate crimes. Many people believed the Government was trying to penalize their thoughts through hate crime legislation, when in fact it wanted to penalize acts of hatred.

A delegate agreed that the distinction between ordinary and indigenous justice was a very important issue, which was currently under debate in Ecuadorian society and in the National Assembly. So far, it was seen that indigenous justice dealt with civil matters and ordinary justice with penal matters, but it was difficult to say more until clear definitions had been agreed.

Ecuador was currently looking at ratifying the International Labour Organization Convention on the rights of domestic workers. Much work had been done for that group, and the Government was studying the relevant international legislation.

Concluding Remarks

MARIA FERNANDA ESPINOSA GARCÉS, Minister of Heritage of Ecuador, speaking in initial concluding remarks on Tuesday, 7 August, said Ecuador had the only Constitution in the world that recognized the rights of nature and it was forging a new relationship between society, the economy and the environment. An example that illustrated Ecuador’s aim of building a new society was the new Ministry for Cultural and Natural Heritage, which had been founded not to create more bureaucracy but to bring the concept of inherited heritage into public policy and to connect culture and nature in a legal framework. The concept of wellbeing meant living well in the context of one’s cultural and historic heritage. Any project that may effect collective rights, whether oil exploitation, genetic resources, access to traditional knowledge or other environmental projects, had to go through a prior consultation process using the Constitutional Framework. Those measures were connected to the elimination of racial discrimination because it was only by building an inclusive society with a fair economy that avoided exacerbated consumerism that true equality could be found.

JOEY FRANCISCO CALITZAY, Committee Member acting as Country Rapporteur for Ecuador, in preliminary concluding observations, thanked the delegation for their thorough report and the sincerity of their replies. The Committee had a clearer understanding of what Ecuador was doing to counter racial discrimination on the ground, and it was clearly committed to fighting racism. However, the Committee still had pending concerns that needed to be addressed, specifically the lack of a definition of indigenous and of State jurisdiction. There was still a lack of clarity with respect to Roma people, who often suffered from discrimination. The report would suggest that Roma people were seen as foreigners and not as members of Ecuadorian society. The Rapporteur also voiced serious concern about the number of cases of racial discrimination that had been brought to the courts but not prosecuted, particularly cases against public officials accused of acts of racial discrimination.

LUIS GALLEGOS CHIRIBOGA, Permanent Representative of Ecuador to the United Nations Office at Geneva, said the presentation of their report was not only an obligation but an opportunity to share Ecuador’s willingness to tackle racial discrimination. Many of the issues raised by the Committee were being discussed both in the legislative body and in wider society. The new, innovative 2008 Constitution provided a way for Ecuador to bring about a new form of ‘Ecuadorianess’ encompassing mutual respect, social peace and democracy that could hopefully be emulated by other countries around the world.

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