End-of-mission statement of the Special Rapporteur on extreme poverty and human rights, Philip Alston, on his visit to Chile

Santiago de Chile, 24 March 2015

In relation to poverty, Chile is a paradox. It has made extraordinary progress in terms of economic growth, overall development, and poverty reduction. But at the same time, troubling rates of poverty and extreme poverty persist, and inequality levels are extremely high. They are neither sustainable nor acceptable in a society that prides itself upon a strong and deep commitment to respecting human rights for all of its peoples. My task as Special Rapporteur on extreme poverty and human rights is to identify issues and areas in relation to which I believe Chile could do more and better in order to eliminate extreme poverty.

But the ‘bad’ news must not be permitted to overshadow the good news. Since the end of the dictatorship, and especially under the three most recent administrations, Chile has taken giant steps forward in relation to social as well as economic development. It has turned itself from a widely condemned authoritarian state during most of the 1970’s and all of the 1980s into a much-admired model for other states in terms of its economic growth, the rejuvenation and consolidation of its democracy, and the concerted efforts it has made in relation to human rights. And the breadth and depth of the agenda of the Government of President Bachelet for enhancing respect for human rights across the whole society is as impressive as it is daunting.

In my remarks today I will focus on a limited number of areas of principal interest. However, the final report to be presented to the Government and to the United Nations Human Rights Council, will address a wider range of issues, including the rights of children, persons with disabilities, and migrants.

1. Poverty and extreme poverty

The starting point for efforts to eliminate poverty is acknowledging the extent of the challenge. Accurate, disaggregated measures of the key components are essential, as is the adoption of a methodology that is scientifically sound, independently applied, and based on full consultation. While the most recent census was problematic and has been generally discounted as a result, Chile has developed an impressive and innovative national household survey, the CASEN, which in January 2015 published a report presenting a “Modern and Transparent Measurement of Poverty for Chile”, based on data from 2013. In addition to the traditional focus on income poverty, the survey allows for the tracking of multi-dimensional poverty, which is measured by giving equal weight to indicators relating to education, health, work and social security, and housing.

By traditional, income-based, measures Chile has done remarkably well to reduce overall poverty from 38.6% in 1990 to 7.8% in 2013. Extreme poverty has dropped from 13% to 2.5%. But by using the CASEN’s new methodology, 14.4% of the population lived in income poverty in 2013, and 4.5% were in extreme poverty. Statistics do not tell the whole story. Many of those who are not living in poverty, are in fact earning very low incomes and live in precarious situations involving considerable vulnerability to falling into poverty.

I drew several conclusions from my wide-ranging discussions. While Chile has a wide and impressive array of programs aimed at tackling poverty, poverty remains below the radar screen for most policy-makers. There is a risk that the middle class-driven reforms that are currently underway in various sectors might not pay sufficient attention to the situation of those living in poverty and extreme poverty. And reforms are strongly sectoral in nature, giving rise to the risk of isolating issues such as pensions, health care, or education, while giving insufficient attention to the overall picture. This fragmentation of programs along the lines of key ministries is, of course, not unique to Chile, but it needs to be addressed. Three recommendations follow:

(a) There is a need for a specific, integrated plan to tackle both poverty and extreme poverty. Major challenges persist which will not inevitably be addressed by the programs that are currently getting most attention, such as in the areas of education, pension and entitlement reform.

(b) There is a need for more effective coordination mechanisms than currently exist. This is unlikely to be achieved through the efforts of the Ministry for Social Development alone.

(c) The debate about the need for a minimum income approach needs to be revived. The Minimum Ethical Income Program stops considerably short of achieving a true minimum income for all those in Chile living in poverty.

2. Inequality

Chile has the highest level of income inequality after government taxes and transfers among OECD countries. It is also doing badly compared to many other Latin American countries in terms of income inequality. These rates are very problematic and result in a highly segregated society in which separate residential areas, separate schools, and separate employment markets operate to entrench privilege and stifle mobility. Nevertheless, the extent of the consensus within Chilean society on the need to tackle this issue is impressive, especially when contrasted with the tendency in many countries to talk, but not act. It should also be acknowledged that such high levels of inequality are incompatible with full respect for human rights.

The Government’s agendas in the fiscal, educational, and electoral arenas are all intended in part to address the problem of inequality. But it is widely acknowledged that fiscal reforms alone are not sufficient to reduce the Gini coefficient, and it will be some years before the benefits of the education reforms are apparent in terms of reducing inequality. The question then is what more can be done now to lessen inequality?

The education agenda is immense and complex. I would only say in this context that special attention needs to be given to ensure that those living in poverty are able to draw the full benefits of the reforms. This will not happen unless full account is taken of the many obstacles that will still lie in their way even once the main reforms have been implemented. Educational desegregation will not lead to societal desegregation in the absence of a range of other equally targeted measures in other sectors.

A new approach is needed to promoting equality and addressing discrimination. The 2012 Anti-Discrimination Law was a major step forward, but there is still much to be done to bring Chile in line with its international obligations. The definition of discrimination is too narrowly drawn. The principle of equality between men and women is not reflected. Consistent references are made to achieving ‘equity’ but this is very different from the goal of substantive equality. The decision to omit provisions relating to affirmative action or temporary measures deprives the law of much of its potential impact. In the public mind, the law seems to be almost synonymous with discrimination against LGBTI persons because of its association with the killing of Daniel Zamudio. It is thus desirable that a more systematic approach be adopted to promoting a broad and affirmative notion of non-discrimination, and strengthening the institutional arrangements designed to give substance to the provisions of the law.

Chilean labor law also contributes very significantly to the maintenance of inequality. There are major obstacles intentionally placed in the way of meaningful collective bargaining, and the scales are consistently tilted in favor of employers. The right to strike is also unduly restricted. Proposals currently being considered by the Congress would be an important step in addressing these problems, although some trade union representatives consider them to be insufficient. Current unionization rates of around 14% represent a radical diminution from the pre-Pinochet era, and are very low by comparison with other OECD countries.

Gender discrimination also remains a major problem in the labor market. Female participation in the labor market remains low, especially in relation to the lower income deciles, where the ‘NINI’ phenomenon (neither working nor studying) is prevalent. Several recommendations seem especially important:

(a) Chilean legislation should do more than just recognize the principle of equal pay for the same work, but also recognize the principle of equal pay for work of equal value. As long noted by the ILO and the CEDAW Committee, more effective mechanisms are needed in order to implement this principle (under Act No. 20.348).

(b) Women’s work opportunities are severely undermined by the phenomenon of adolescent pregnancy, which remains at very high rates in Chile, especially in the poorest areas of Chile. The challenge goes well beyond the current debate about access to abortion, as important as that may be. A more sustained effort needs to be made to acknowledge and promote sexual and reproductive rights, as a matter of human rights as well as a necessary complement to labor market reforms.

(c) Women remain overwhelmingly responsible for care-giving in Chilean society. This situation guarantees low rates of participation in the formal labor market by those carers. In addition to programs designed to shift more of the burden for care on to the male population, there needs to be greater investment in community care facilities, and consideration of measures to give economic recognition to the work done by unpaid care workers.

3. Constitutional reform and the language of rights
Post-dictatorship Chile has warmly embraced the language of human rights. There is, however, much to be done before it can be said that human rights provide the foundations upon which social and economic policy rest. Too many Chileans still seem to equate human rights with the crimes of the dictatorship. In fact, the international obligations accepted by Chile extend far beyond issues such as disappearances, torture, killing, and arbitrary arrest. A thriving democracy needs to pay attention to the quality of political participation and the ability of people to influence the shape of the society in which they live. And economic, social and cultural rights must be acknowledged as full-fledged human rights, not just matters of social policy.

The existing Chilean Constitution has some social rights provisions concerning health, education, and social security, but the formulations do not generally conform to international standards and the methods of implementation envisaged are relatively open-ended and non-empowering. While considerable progress has been made in relation to treating education as a human right, as well as in elaborating the parameters of the right to health, much remains to be done. Three recommendations follow:

(a) The constitutional reform process should ensure that the full range of economic, social and cultural rights are recognized in a revised constitution.

(b) The rights of specific groups such as women, children, persons with disabilities, LGBTI persons and others should be specifically recognized.

(c) The rights of Chile’s indigenous peoples should be recognized.

4. Indigenous Rights

The rights of indigenous peoples are the Achilles Heel of Chile’s human rights record in the twenty-first century. The matters of contention are complex and wide-ranging, and the solutions will not be straightforward. But there seems all too little preparedness to tackle them in other than a superficial way. Yet if the government is serious about its commitment to ending extreme poverty and reducing inequality, indigenous policy must be one of the most important elements in such efforts.

The fact that the state does not have a clear picture of the number of its indigenous citizens is symptomatic. It also impedes effective policy design and targeting and raises questions about consultation. In the 2002 census, the figure was 4.6%. The disputed 2012 census yielded a figure of around 11%, and the 2013 CASEN survey suggested 9.1%. It is not contested, however, that poverty rates are especially high among indigenous peoples in Chile. In 2013 the income poverty rate was almost double that of the non-indigenous population (23.4% against 13.5%). In terms of multidimensional poverty the indigenous rate is 31.2%. In other words, almost one-third of the entire indigenous population lives in poverty according to that measure.

The response by the Chilean state to what is widely acknowledged as a problem of exclusion, marginalization, and discrimination has been piecemeal and especially reluctant to address the major issues of concern. As a result, Chilean policies have been strongly criticized by a broad range of international bodies. My colleague, Ben Emmerson, the Special Rapporteur on counter-terrorism and human rights surveyed these challenges in a compelling analysis last year, and I do not need to repeat here what he said.

Suffice it to say that no serious effort to eliminate extreme poverty in Chile can succeed without a concerted focus on the situation of indigenous peoples. Based on my discussions with a wide range of actors I would make the following specific recommendations:

(a) The indigenous peoples of Chile should be recognized in the Constitution, as should their rights.

(b) The Government should conform to its obligations under ILO Convention 169 which it ratified in 2008. In the view of the ILO and most other observers, this is not currently the case.

(c) The position of the Government according to which the provisions of the UN Declaration on the Rights of Indigenous Peoples are not legally binding is simplistic and unhelpful. The Declaration represents an international consensus on an appropriate framework for dealing with these issues and its provisions must be taken into account in policy formulation.

(d) The 2017 census should include a question that permits the respondent to self-identify as indigenous.

(e) Unless there is a major increase in the financial resources allocated, any proclaimed intention to resolve the land issue will remain entirely unconvincing. And addressing that issue is central to the elimination of indigenous poverty.

(f) The responsible ministry (currently the Ministry of Social Development) should prepare, in consultation with the relevant groups, a comprehensive strategy for the elimination of indigenous poverty. At present, there seems to be no such integrated strategy.

(g) The proposal to create a Ministry for Indigenous Affairs is extremely important. Given the timetable envisaged by some, there would seem to be a serious risk that inadequate attention will be paid to the need for the new Ministry to have a structure and functions that are very different from those of other ministries. Meaningful consultation with indigenous peoples is indispensable in arriving at an appropriate design, as a procedure for ensuring the right to free, prior and informed consent.

(h) The lack of any representative in Congress of indigenous origin and only 7 Mapuche mayors in the entire country, despite the fact that around 10% of the population are indigenous, reflects the almost complete lack of political participation of indigenous groups and is therefore highly problematic. A formula should be sought which will enable an appropriate level of representation.

(i) The handful of corporations that dominate the extractive, forestry and agricultural industries on the lands claimed by the indigenous people should adopt a set of human rights policies that conform, as a minimum, to the requirements of the UN’s Guiding Principles on Business and Human Rights.

5. Institutions

There is an excellent word in Spanish whose English equivalent is used only very rarely and even then without particular significance. It is “institucionalidad.” It refers, of course, to the institutional arrangements that are needed to underpin the rule of law (estado de derecho) and human rights. It has been used repeatedly in my meetings with Chileans and the emphasis is a natural extension of the affection of Chileans for laws. Various parts of this statement have alluded to the need to create effective institutions. But perhaps the most important overarching proposal is one to create a new sub-secretariat within a revamped Ministry of Justice and Human Rights. There is a deep need for an entity with the responsibility, authority, funds and resources to coordinate government-wide human rights policies. The process seems, however, to have stalled and it is desirable that a message be sent from the highest level of Government that this is a priority.

Once created, the new Ministerial structure should ensure that economic, social and cultural rights are an integral part of its mandate.

Chile has been a highly responsible international citizen in terms of its consistent high-quality engagement with human rights monitoring bodies. The one area in need of significant reform concerns the way in which international recommendations are dealt with at the national level. The new Ministry could take the lead in ensuring systematic and coordinated follow-up to such recommendations.

6. LGBTI rights

The 2012 Anti-Discrimination Law was a landmark in recognizing the right not to be discriminated against on the basis of sexual orientation or gender identity. But deep discrimination cannot be eliminated by legislative fiat alone and there is a need for concerted government policies to reinforce the legal commitment through education, resource commitment, and policy changes. This is of particular importance in view of the fact that LGBTI persons, and especially transgender people, are likely to be living in poverty because of the extent of the discrimination they suffer. Based on the information provided to me, I would make the following specific recommendations:

(a) Accurate statistics are highly desirable in this area. Future CASEN surveys and the census should offer an alternative beyond the male/female binary option.

(b) The registration of a change in gender identity should not require time-consuming, expensive, and potentially problematic processes of judicial approval. Other states permit individuals to register their own status at civil registries.

(c) The government should set up a specialized institution to examine, in consultation with the groups concerned, the full range of social and other policies that need to be reformed to take account of the specific needs of LGBTI persons and to ensure equal treatment. Examples of problem areas include housing for transgender persons, the responsibility of an agency like SERNAM for dealing with transgender women, and the facilities and medical treatments made available in prisons. In general, all social programs should take account of sexual orientation and gender identity implications.

7. Specific visits
I visited Bajos de Mena, a social housing project in Santiago that is often described as a ‘ghetto.’ There I met people who were clearly living in sub-standard conditions. This neighborhood, which is home to around 120,000 people, lacks most basic government services like a hospital, fire station, police station and schools. Part of Bajos de Mena (Villa San Guillermo) is built on top of a former landfill and various families I spoke to complained of explosions caused by the underground buildup of methane gas and a high rate of illnesses among residents of the neighborhood. Neighborhood leaders claim to have repeatedly requested authorities to undertake thorough a survey of the health status of the population, but no comprehensive and systematic survey has been done. I urge the local and national authorities to undertake such a survey as a matter of urgency.

I also visited Campamento San Francisco, the largest ‘campamento’ in the Metropolitana region. According to the NGO Un Techo Para Chile, there were 676 campamentos in Chile in 2014, housing a total of 32,533 families, or well over 100,000 people. Those living in San Francisco have no running water with which to cook or shower or for sanitation purposes, and many use wood for heating and cooking, which creates a strong fire risk. The residents complained of the poor care they receive when they go to health centers, where they often have to wait for hours and their complaints are often not taken seriously. Parents are worried about the poor quality of the education their children receive, as reflected in low test scores. The people I spoke to felt strongly that they were being denied access to the basic governmental services and assistance provided to better-off groups and that this denial undermines their opportunities and those of their children to be able to escape from living in poverty through their own efforts and merit. It is difficult to accept that in a society as well off as Chile, such slum areas cannot be eliminated through appropriate measures to respond to the needs and rights of the affected individuals.

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Details of the mission

The Special Rapporteur visited Chile from 16 to 24 March 2015. He is grateful to the Government of Chile for having invited him to visit the country, and he is very appreciative of the level of cooperation received from the Government, civil society, academia, international organizations, and those with whom he met who are living in poverty. During his time in Chile, the Special Rapporteur visited Santiago and its outskirts, including San Francisco campamento and Bajos de Mena. He also visited Temuco and a municipal school in Boyeco of La Araucanía region.

During the course of his visit, the Special Rapporteur met with President Michelle Bachelet, the President of the Senate, members of Congress, the Minister for Social Development, the vice-Minister of Finance, the vice-Minister of Justice, the vice-Minister for Health, the Minister Director of the National Women’s Service (SERNAM), the National Director of National Indigenous Development Corporation (CONADI), and many other officials. In addition, highly productive meetings were held with the Deputy Executive Secretary and a range of technical experts from ECLAC. The Special Rapporteur is especially grateful to the staff of the National Institute for Human Rights and of the various non-governmental organizations who played a vital role in arranging various opportunities to meet and speak with persons living in poverty. Finally, the UN Resident Coordinator and his team, as well as officials of OHCHR, UNDP, UNESCO, UNFPA, UNICEF, ILO, FAO, the World Bank and WHO also provided advice and information.