Committee on the Elimination of Racial Discrimination reviews the report of El Salvador

8 August 2019 - The Committee on the Elimination of Racial Discrimination today concluded its consideration of the combined eighteenth and nineteenth periodic report of El Salvador on measures taken to implement the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

Erick Erwing López Doradea, Director General of Territorial Networks, Ministry of Culture of El Salvador, reaffirmed the commitment to advancing the rights of indigenous peoples and ensuring that El Salvador was, in word and in practice, a multicultural and multi-ethnic State.  In 2017, El Salvador had put in place protection measures and safeguards for preserving cultural assets such as indigenous languages and in 2018 it had adopted the policy for indigenous peoples and the national health policy for indigenous peoples.  Complying with the final resolution of the first World Conference on Indigenous Peoples that had taken place in 2014, El Salvador had adopted the National Plan for Indigenous Peoples (PLANPIES) in 2018, and in the same year, the draft bill on the rights of indigenous peoples had been presented at the Legislative Assembly.  In 2014, article 63 of the Constitution of El Salvador had been reformed thus significantly improving the recognition of the rights of indigenous peoples, while the 2016 Law on Culture established individual and collective rights to the full enjoyment of fundamental rights and freedoms enshrined in the Constitution.  El Salvador was implementing comprehensive policies and territorial action that aimed to strengthen the identity of indigenous peoples, their culture, traditions, languages, and spiritual practices.

In the discussion that followed, Committee Experts welcomed the adoption of the law on indigenous peoples which had, for the first time recognized their existence.  Turning to the shortcomings in the legal anti-discrimination framework, the Experts noted that it was not entirely clear what measures had been put in place to prohibit and bring to an end racial discrimination and to discourage anything that tended to strengthen racial divisions, in line with the provisions laid down in article 2 of the Convention.  The absence of complaints of racial discrimination did not mean that the country was free from racial discrimination – it could point to a lack of trust in the authorities, for example.  Since the 2000s there had been only eight days without murder and El Salvador constantly had the highest number of murders in the world, Experts said with concern and noted that many of the crimes were racially motivated.  In this vein, they inquired about the prosecution of hate crimes and the measures to counter the spread of racist stereotypes and prejudices and to prevent hate speech that targeted indigenous peoples and people of African descent.  The recent population movements had led to discriminatory attitudes towards migrants – what was being done to counter this phenomenon?  Only five per cent of indigenous peoples possessed the land, leading to disproportionately high rates of poverty among the indigenous peoples and people of African descent, including children.

In his concluding remarks, Jose Francisco Cali Tzay, Committee Rapporteur for El Salvador, said that there was a very fine line between a good law and a paternalistic law and urged El Salvador not to fall on the wrong side of that line.

Mr. López Doradea concluded by thanking the Experts for a heart to heart discussion and reassured the Committee of the Government’s commitment to act responsibly towards indigenous peoples and people of African descent, the populations that had been marginalized for too long.

Noureddine Amir, Committee Chairperson, encouraged El Salvador to continue its efforts.  

The delegation of El Salvador consisted of representatives of the Ministry of Culture, Ministry of External Relations, and the Permanent Mission of El Salvador to the United Nations Office at Geneva.

The Committee will issue the concluding observations on the report of El Salvador at the end of its ninety-ninth session on 29 August.  Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.  

Public meetings of the Committee on the Elimination of Racial Discrimination are webcast live at http://webtv.un.org/meetings-events/.

The Committee will resume in public this afternoon at 3 p.m. to start the consideration of the combined eighteenth to twenty-first periodic report of Mexico (CERD/C/MEX/18-21).

Report

The Committee is considering the combined eighteenth and nineteenth periodic report of El Salvador (CERD/C/SLV/18-19).

Presentation of the Report

ERICK ERWIN LÓPEZ DORADEA, Director General of Territorial Networks, Ministry of Culture of El Salvador, presented the efforts his country had undertaken to fulfil its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, notably concerning the recognition of indigenous peoples and in the advancement of their rights.  The Government was firmly committed to ensuring that El Salvador was, in word and in practice, a multicultural and multi-ethnic State.  In 2017, El Salvador had put in place protection measures and safeguards for preserving cultural assets such as indigenous languages and in 2018 it had adopted the policy for indigenous peoples and the national health policy for indigenous peoples.  Complying with the final resolution of the first World Conference on Indigenous Peoples that had taken place in 2014, El Salvador had adopted the National Plan for Indigenous Peoples (PLANPIES) in 2018, and in the same year, the draft bill on the rights of indigenous peoples had been presented at the Legislative Assembly.  In 2014, article 63 of the Constitution of El Salvador had been reformed thus significantly improving the recognition of the rights of indigenous peoples, while the 2016 Law on Culture established individual and collective rights to the full enjoyment of fundamental rights and freedoms enshrined in the Constitution.

On the international stage, too, El Salvador had made significant progress related to the rights of indigenous peoples.  In 2010, before this Committee, the country had recognized the Committee’s competence to receive and examine communications from individuals or groups that fell under its jurisdiction and who were alleged victims of violations committed by the State.  At the first World Conference on Indigenous Peoples, El Salvador had been chosen to be part of a group of six countries tasked with the elaboration of an Action Plan for Indigenous Peoples, aiming to improve the recognition, respect and promotion of indigenous peoples’ rights.  Such an action plan had been launched in December last year in El Salvador.  What was more, the current administration was going through an institutional overhaul that would provide comprehensive monitoring services to various segments of the population, with an emphasis on indigenous women, and women of African descent.  Through comprehensive policies, the Government thus sought to carry out territorial actions that would strengthen indigenous peoples’ identity, as well as their traditions, languages, and spiritual practices, amongst others.

The administration of President Nayib Bukele had created the Office of Social Well-Being, which sought to comprehensively fulfil the basic needs of the population.  In that context, five strategies had been elaborated on social, economic, and cultural development, on environmental sustainability, and on public governance.  Turning to the people of African descent, the Head of the Delegation said the Government would work on intangible cultural heritage and ensure that places of remembrance related to slavery were included in the United Nations Educational, Scientific and Cultural Organization’s Slave Route.  El Salvador was in debt of not only to indigenous peoples but also people of African descent, he acknowledged and said that the Government would establish a strategy based on awareness-raising and dialogue to eradicate discrimination in all its forms.

Questions by the Country Rapporteur

JOSE FRANCISCO CALI TZAY, Committee Rapporteur for El Salvador, recalled that El Salvador was the smallest country in America and that its population had dropped from over eight million to just above six million in 2019.  Wondering whether this decline was due to migratory movements towards the United States, he requested the delegation to provide exact population figures.

The Country Rapporteur welcomed the adoption of the law on indigenous peoples which had, for the first time recognized their existence, and then recalled the concerns by the Human Rights Committee related to the lack of a legal framework to combat discrimination. He asked how this shortcoming would be addressed and wondered whether the definition of racial discrimination should be brought in line with the Convention and included in the Constitution rather than in a municipal ordinance.  Was the population aware of the bodies they could turn to submit complaints of racial discrimination - the absence of complaints related to racial discrimination did not mean there was no racial discrimination but could be due to a lack of trust in the authorities, he remarked.

The delegation was asked which body was responsible for the implementation of the national action plan on the rights of indigenous peoples and why the law on the rights of indigenous peoples stemmed from the Ministry of Culture rather than Congress.  It was surprising that this Ministry was responsible for matters related to the rights of indigenous peoples and people of African descent since the issues involved were not merely cultural, commented Mr. Cali Tzay.  Stressing the right of indigenous peoples to be consulted on matters that concerned them, the Rapporteur asked how the country defined consultation and who it was consulting with.  Had civil society organizations and indigenous peoples been consulted on the report submitted to the Committee?

El Salvador had incorporated hate crimes into the Penal Code in 2015, the Rapporteur said and pointed out that since the early 2000s there had been only eight days without a murder in the country and the country constantly had the highest number of murders in the world.  Many of those crimes were racially motivated – how many victims were indigenous peoples and people of African descent?  He further inquired about the prosecution of hate crimes and about measures taken to counter the spread of racist stereotypes and prejudices and to prevent hate speech that targeted indigenous peoples and people of African descent.

Poverty disproportionately affected indigenous peoples and people of African descent insisted the Country Rapporteur and then noted with concern that only five per cent of indigenous peoples possessed the land.  Why was El Salvador not a party to the International Labour Organization’s Convention 169 relative to indigenous and tribal peoples?  Children affected by poverty were not mentioned in the report, even though they were extremely vulnerable to forced labour and human trafficking.  Was there an action plan to address the water crisis in indigenous communities?

The migratory flows had generated a whole raft of discriminatory attitudes towards migrants, said Mr. Cali Tzay and asked the delegation about measures taken to address this situation.  Did the State party plan to take measures towards an intercultural approach to the provision of healthcare services?

Questions by Committee Experts

GUN KUT, Committee Rapporteur for Follow-up to Concluding Observations, recalled that the Committee had adopted its concluding observations on the report of El Salvador in August 2014, in which it had identified three issued for follow-up.  The follow-up report, unfortunately, had not been submitted, Mr. Kut said and reiterated the importance the Committee attached to the follow-up procedure.

Other Committee Experts asked about the plans to ratify the International Labour Organization’s Convention 169 and the Convention on the Reduction of Statelessness and inquired about the legal status of international treaties in domestic legal order.

Which actions had been carried out under the Law on Culture to protect the culture and customs of indigenous peoples?  The Experts also asked about the policies on education in African languages for people of African descent and whether doctors who practised in rural areas spoke indigenous languages.

Noting that the rhetoric of the Government had changed in the past few years, an Expert said it was still not clear what measures had been put in place to prohibit and bring to an end racial discrimination and to discourage anything that tended to strengthen racial divisions, in line with the provisions laid down in article 2 of the Convention.  The report lacked information on the policies enacted to address discrimination against people of African descent and the delegation was asked to outline the specific plans regarding the International Decade for People of African Descent.

Abortion was an issue of concern, notably for the populations with which this Committee was dealing, noted the Experts and asked for statistics on indigenous women who had been criminalized for undergoing an abortion.  Also, they requested information on the special courts for women and the Government’s general policy vis-à-vis non-citizens, as well as an explanation and a definition of “intercultural health services”.

The delegation was asked whether indigenous women could freely marry who they wanted and whether the fund for victims of trafficking had been created.

Replies by the Delegation

ERICK ERWIN LÓPEZ DORADEA, Director General of Territorial Networks, Ministry of Culture of El Salvador, in response to Committee’s questions and comments said that the official population figures stood at 6,642,770 million - and not eight million as cited by the Committee – and over 90 per cent of the people self-identified as indigenous.  While statistics on indigenous peoples and people of African descent were available, they were quite general and broken down statistics and disaggregated population data were needed to ensure the effectiveness of policies.

Addressing questions raised concerning the definition of racial discrimination, he said it was important to point out that, in line with article 3 of the Constitution of El Salvador, all persons were equal before the law and should not be subject to restrictions based on nationality, race, sex, or religion.  In article 63, El Salvador recognized indigenous peoples and committed to adopting policies to preserve their ethnic and cultural identity, worldview, values, and spirituality.

As an international treaty, the International Convention on the Elimination of Racial Discrimination had the status of law in the country; in case of a conflict between a treaty and other laws, the former prevailed.  Because international conventions made an integral part of the domestic legal order, the national legislation did not need to repeat definitions already continued in international instruments.  El Salvador had ratified the Convention in 1979 and had not entered any reservations.

El Salvador recognized human rights as a fundamental pillar of public policy and its commitment to human rights could be seen in the ratification of several international conventions, including the Convention against Torture; International Covenant on Economic, Social and Cultural Rights; Convention on the Elimination of all Forms of Discrimination Against Women; International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; and the Convention on the Rights of the Child.  El Salvador had also held the presidency of the Human Rights Council in 2017.

The Human Rights Advocate, created under the Peace Accords, was an entirely independent institution whose mandate was defined by Parliament, which also nominated the officeholder.  The Advocate had been involved in the preparation of the report submitted to the Committee in 2018 and was involved in the implementation of the legal framework on racial discrimination.

Regarding the International Labour Organization Convention 169 on indigenous and tribal peoples, the Head of the Delegation reassured the Committee that the current Government would work with relevant bodies to raise the awareness on the Convention and to accelerate its ratification.  The legislative branch was currently reviewing the Convention.

As a result of the armed conflict in El Salvador, over 100,000 had died or had disappeared between 1980 and 1992.  In July 2016, in a landmark decision in the struggle for human rights in El Salvador, the Constitutional Court had found that the Amnesty Law was unconstitutional, which should enable the victims to claim their rights via the justice system.  Supported by the Office of the United Nations High Commissioner for Human Rights, the Attorney General had created a specialized unit to investigate human rights violations committed during the internal armed conflict. 

A victim register had been created to identify direct and indirect victims and register 10 million US dollars had been paid out as a victim compensation and reparation, as called for by the judgement by the Inter-American Court of Human Rights.  Earlier this year, following the submission of an application for habeas corpus, the Supreme Court had handed down a decision concerning the 1932 massacre, thus opening the way to justice and reparations for this highly regrettable chapter of Salvadoran and Latin American history. 

A sub-section had been added to the draft bill on nationality which would allow refugees, asylum-seekers, and stateless people to seek permanent residence or nationality.  The Law on Culture, especially article 28, set out the obligation of the State to adopt public policies that recognized indigenous peoples and made them visible.  Three municipal ordinances provided a legal institutional framework for the participation of indigenous peoples in decision-making processes that might affect them and would strengthen the participation of indigenous peoples at the municipal level.  

Moving on to land issues, Mr. López Doradea said that between June 2009 and May 2017, 73,000 writs of ownership had been given to farmers - including to 30,000 women farmers - through a land transfer programme.  In April 2014 a reform had been conducted which had led writs of ownerships to be provided as family assets.  

The secondary legislation on abortion was directly related to article 1 of the Constitution which recognized the protection of human beings as the ultimate goal of the State.  Life begun at the moment of conception.  Ensuring the wellbeing of each human being was the responsibility of the State.  Criminalization of abortion was an issue of particular concern to indigenous women.  A Supreme Court judgement on the issue had opened the possibility of launching a debate.

There were 19 decentralized Prosecutor’s Offices in the country.  The General Prosecutor acted as Minister of Justice but was not the main advisor to the Government.  It was chosen by the Legislative Assembly; he had complete autonomy and was not accountable to any other body. 

There was no prohibition for indigenous women to marry; they could freely marry any person, indigenous or not.  The Ministry of Culture had developed a training workshop on the rights of indigenous women.  

Freedom of association and religious freedom were guaranteed by articles 4 and 25 of the Constitution, respectively.  While preparing the report, the Government had held consultations with civil society and workshops with indigenous peoples. 

The public policy for indigenous peoples had a section on access to water.  The Ministry of Health had been entrusted with implementing the Water Security Plan in rural areas, which notably aimed to guarantee access to high-quality water in high amount.  The Government offered a theoretical and practical workshop on water quality, while the Ministry for Environment and Natural Resources had created a coordination and dialogue table to engage with indigenous communities on this matter.  The participants in the mechanism had elaborated a climate change strategy which contained measures to ensure water security.

Migration had many causes – both domestic and external - and should be addressed comprehensively.  Programmes were in place to support the return and labour reinsertion of migrants and to address their other needs.  El Salvador was a signatory to the 2018 Global Compact for Safe and Orderly Migration and was working with countries in the Northern Triangle and with Mexico to address the most pressing needs of migrants.  El Salvador had been a leader in this area, presenting various resolutions to the Human Rights Council and had strengthened its consular network to ensure the protection of migrants.  Furthermore, it was working on eliminating some of the root causes of migration by increasing its level of development.

Currently, only one indigenous language, Nawat, was currently in use and its speakers were mostly elderly adults living in the West of the country.  Because all native Nawat speakers also spoke Spanish, comprehensive health care services were delivered in Spanish, while some programmes in childcare centres were offered in both languages.  The Government was taking active measures to protect the Nawat language and to integrate other languages than Spanish.

The Ministry of Culture carried out academic research on indigenous peoples which had been published in journals and it encouraged young indigenous researchers to conduct research on their communityies, including by supporting the publishing of their research in scientific journals.  The Ministry also worked closely with indigenous peoples, assisting in organizing meetings with the Ministry of Justice and Public Security, to inform them of the needs of indigenous peoples.  The current administration would monitor the security situation of indigenous peoples and ensure their protection. 

Mr. López Doradea explained that “culturally appropriate housing” was, from an indigenous worldview a habitat that was in harmony with the environment and conducive to a lifestyle based on sustainability.  This was a view of housing that facilitated the social integration of families based on the traditions and customs of indigenous communities.  

Questions by Committee Experts

JOSE FRANCISCO CALI TZAY, Committee Rapporteur for El Salvador, asked about the law that allowed a person in El Salvador to invoke the Convention before courts and about training on the provisions of the Convention for civil servants, law enforcement officers, and the judiciary.  On access to land and land ownership, the Rapporteur remarked that not all those who had received land were indigenous peoples and asked the delegation to inform on the percentage of indigenous peoples among the land recipients, initiatives in place to foster land ownership by indigenous peoples, and the statistics on land ownership by persons of African descent.  Was any research available on the reasons why people, notably those of African descent, refrained from using health care services?

Other Experts asked about complaints received by the National Human Rights Institution and the outcomes and the representation of people of African descent and indigenous peoples in the police and government.

Replies by the Delegation 

ERICK ERWIN LÓPEZ DORADEA, Director General of Territorial Networks of the Ministry of Culture, said that the 1992 Peace Accords provided for the establishment of the Office of the Human Rights Advocate, which was responsible for monitoring of the human rights situation in the country, proposing reforms to ensure human rights progressed, expressing opinions on draft laws affecting the enjoyment of human rights, and promoting the respect of human rights.  This Office could receive any complaints regarding violations of human rights of the population in general.

The land in El Salvador was split up by youth gangs, which had made it difficult to move around.  The Government was designing interventions to meet the social needs of the indigenous communities, notably those related to youth and education.  But, first, the Government had to make security-related interventions as insecurity issues were greatly affecting indigenous communities.  The Ministry of Culture worked with all State bodies in a coordinated manner to implement the National Policy for Indigenous Peoples.

El Salvador was in the process of setting up a training school for public officials that would strengthen human rights capacities and raise the awareness and the knowledge on the rights of indigenous peoples and people of African descent.  The curriculum of the legal training school, where judges and law enforcement officers were trained, covered human rights and peace as fundamental values.

Concluding Remarks

JOSE FRANCISCO CALI TZAY, Committee Rapporteur for El Salvador, in his concluding remarks thanked the delegation for its openness and availability.  There was a very fine line between a good law and a paternalistic law, he said and urged El Salvador to ensure that it did not fall on the wrong side of that line. 

NOUREDDINE AMIR, Committee Chairperson, in his conclusion thanked the delegation and encouraged El Salvador to continue its efforts.  

ERICK ERWIN LÓPEZ DORADEA, Director General of Territorial Networks, Ministry of Culture of El Salvador, concluded by thanking the Experts for a heart to heart discussion and reassured the Committee of the Government’s commitment to act responsibly towards indigenous peoples and people of African descent, the populations that had been marginalized for too long.

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