消除种族歧视委员会审议萨尔瓦多的报告（部分翻译）

报告

点此阅读萨尔瓦多第十六次至第十七次合并定期报告：CERD/C/SLV/16-17

Presentation of the Report

RAMON RIVAS, Secretary of Culture of the President’s Office, said El Salvador clearly recognized the presence of indigenous peoples in the Salvadoran territory, and was building on a fair appreciation of the cultural, historical and ethnic heritage of indigenous peoples as part of the development of El Salvador’s cultural identities. Mr. Rivas outlined priorities and challenges faced by the new Government, which was elected two months ago but was already displaying clear signs of commitment towards recognizing all rights of indigenous peoples. A major benchmark in the promotion of public policies was the approval of reform to Article 63 of the Constitution on 12 June by the Legislative Assembly, which recognized indigenous peoples, and the importance of adopting policies to maintain their ethnic and cultural identity, values, and spirituality. One priority was the creation of a programme of recognition and reappraisal of the fundamental rights of indigenous peoples, and another was the implementation of International Labour Organization Convention 169.

A lead policy was the Public Policy for Indigenous Peoples in El Salvador, which had five strategies: social development, economic development, cultural development, environmental development and State management. The social and economic development strands were geared to improving the living conditions of indigenous communities, while taking into account their views. The ultimate approval of the policy would be an important step forward to ensure better value and inclusivity of that sector of the population, said Mr. Rivas. He outlined other ways in which recognition of the value of indigenous peoples had been boosted, such as the drafting of municipal ordinances which covered the rights of the indigenous communities settled in the municipalities of Nahuizalco and Izalco, as well as Cuisnahuat, Panchimalco and Cacaopera. Another advance was the ruling that boys and girls were allowed to be registered with their unique indigenous names.

A new law on the development and social protection of El Salvador was recently approved, which sought to ensure full enjoyment of economic and social rights, via social investment, among all people, but particularly those living in poverty, exclusion and discrimination. Other advances included the doubling of social spending, to 14.8 per cent of the Gross Domestic Product. Mr. Rivas also spoke about the mandate of the General Directorate for Indigenous Peoples, which was located within the Office of the President and which in general supported indigenous peoples in their fight for the recognition of their rights. He also spoke about healthcare reforms aimed to reduce the barriers to accessing services, which included cultural, social and geographic barriers.

Among measures to promote women’s rights were specific programmes directly targeting indigenous women, particularly on issues of land rights? On 22 July the President announced that the Salvadorian Institute for Agrarian Reform would open a Gender Unit to implement programmes for peasant, farmer and indigenous women to give them improved opportunities to own land and access training, the Committee was informed. Educational reform was also described, especially ways to reduce school drop-out of indigenous children, and to promote indigenous languages, such as the Nahuat language which today only had a mother-tongue population of 250 speakers, and was being prioritized in order to ensure its survival and revitalize it. In conclusion, Mr. Rivas emphasized El Salvador’s willingness for a frank and open dialogue and said the Government looked forward to receiving the Committee’s recommendations.

Questions by Experts

PASTOR ELIAS MURILLO MARTINEZ, Committee Expert acting as Country Rapporteur for El Salvador, said El Salvador was moving ahead in its democratic process, as seen in its most recent elections and Presidential inauguration. It was evident that El Salvador still suffered from the consequences of the conflict in the 1980s, as seen in the serious street violence by gangs and the high levels of homicide and other acts of violence.

Since the armed conflict about one third of the population had left the country, he said. A high number of young people and children had left El Salvador for the United States, for reasons including family reunification, the economic crisis and the serious violence.

On the other hand, migrants from Nicaragua and Honduras coming to El Salvador sometimes suffered xenophobia and discrimination which was almost equivalent to racial profiling in the application of police orders and provisions.

The Country Rapporteur spoke of the challenge of conducting a comprehensive review of the report without complete statistics, including the lack of data on persons of African descent. He asked whether El Salvador had criminalized racial discrimination, and for the delegation to explain the status of the law. He also asked about the status of customary indigenous law.

Another Expert also regretted the lack of statistical data on indigenous peoples and persons of African descent. He said it was important to understand the process of combating racial discrimination within the country. Indigenous peoples were now recognized at the constitutional level, and policies were being developed for them, which was very important – but that was just one step in the right direction. Was there any methodology to promote the gathering of better statistical data?

Could the delegation speak about the planned 2015 census? How would it categorize the population? How would the State party manage to identify all indigenous peoples in the country if there would not be a question on ethnicity in the census? Also, would there be a question on language?

Had there been any cases of a person being prosecuted for racial discrimination, an Expert asked. Aside from criminal prosecutions, had any civil case been lodged by a party who felt that they had been discriminated upon and asked for redress from a court on civil or constitutional grounds

Turning to freedom of expression, an Expert said there was an idea that abuse of freedom of expression should not be criminalized but should be left for civil claims. He asked about freedom of religion as well.

Today El Salvador was at peace, and the Committee wanted to help it to find its roots and its cultural heritage, said an Expert, as the Presidential plan being implemented sought to do. He also asked about education, including history and cultural education, and education of indigenous children.

Did the Convention enjoy primacy over national law, an Expert asked. She also enquired about the definition of racial discrimination in domestic law, and asked what the term “nationality” meant – did it refer to citizenship or to ethnic origin?

An Expert commended the delegation for being made up more than 50 per cent of women. He asked about women’s rights in El Salvador, and particularly the rights of indigenous women who sometimes suffered from double discrimination, firstly because they were women, and secondly because they were indigenous. What was being done about that?

An Expert recalled his memories of the very serious civil war in El Salvador in the early 1980s, which he said was not a white versus indigenous war but more appeared to be a ‘right’ versus ‘left’ war, a kind of revolutionary uprising to change the regime of the time. The Expert raised the El Mozote massacre, which took place in and around the village of El Mozote, in Morazán department, El Salvador, on December 11, 1981. Another Expert asked about the ruling of the Intra-American Court of Human Rights on the massacre, and questions as to whether it was a genocide.

An Expert asked about the programmes to revitalize and maintain the Nahuat indigenous language, which was commendable, but asked how that was feasible when it was the mother tongue of only 250 people in the country. Everybody in the country needed to be able to speak the ‘language of all’ not just a language imposed upon them by others. If the language was going to increase fragmentation, it might not be for the best. They were at a time where the whole world was becoming more fragmented, which was not necessarily for the best. Perhaps it was better to think about how to better unite the country, and indeed countries of Latin America as a whole.

El Salvador had emerged from political crisis to achieve stability, democracy and great things, said the Chairperson of the Committee. The Committee must ensure it highlighted the positive aspects in El Salvador as well as its challenges. The Committee would like to know how El Salvador intended to continue with constitutional reform for its multi-ethnic, multi-lingual State. The Government clearly had political will – how did it intend to make the most of that political will to make an explicit declaration acknowledging the competence of this Committee?

The report talked about setting up a National Commission for Reparations for the events that occurred in the civil war. It was 16 years until the centenary of the denial of the rights of indigenous people and indigenous identity in El Salvador, in 1932. That could be a good time to set up the National Commission, the Chairperson said.

The Chairperson also returned to the issue of discrimination against migrants from Nicaragua and Honduras, for example reports that they were forbidden from going to markets by local rules which could not be changed by the central Government. That was despite the fact that the Constitution of El Salvador recognized that if Central Americans wanted to be El Salvadorians then they would be treated as such, he noted.

Response by the Delegation

The Head of the delegation said that in Guatemala, Costa Rica, Honduras, Nicaragua and Panama, the situation of indigenous peoples was different – they were spread out differently – that was because of El Salvador’s history and its demographics. Furthermore, El Salvador was a very small country – 20,000 square kilometres approximately.

Turning to the forthcoming census planned to take place in 2017, a delegate said it was assumed to be virtually impossible to develop a policy for indigenous peoples unless you knew how many lived in the country. The Government was fully aware that the 2007 census was seriously flawed. One problem was the question of ‘self-definition’ in that census. The next census would enable data that helped to shape policies and translate into reality the good intentions of both civil society and the Government.

There were a significant number of people of African descent living in El Salvador, said the delegate, and the last census did not give a clear picture of how many; neither did it locate that group of people in a particular place in the country. So it was virtually impossible for the Government and civil society to develop effective strategies and policies to support those people. The planned 2017 census would properly cover both people of African descent and indigenous communities, including their number and location.

International treaties were laws of the Republic of El Salvador. It was laid down in the constitution, which stated in black and white that all international treaties were enshrined in domestic legislation as soon as they were ratified, a delegate confirmed.

On the definition of “racial discrimination”, the term was tackled in El Salvadoran legislation. The law on equality, unfairness and eradication of discrimination against women, and the law on the right to live a life free of violence were proof of this. The first law also referred to racial discrimination against women. All discrimination of women was illegal in El Salvador. Some Committee Members said El Salvador ought to have a dedicated law criminalizing racial discrimination against indigenous peoples. A delegate said that was a good suggestion, which the Government would take note of. However, the Government was first seeking to ensure the laws it had were implemented in the country.

The law of El Salvador forbid all forms of racial discrimination. Currently, there were no complaints filed of racial discrimination.

The Government wanted to give the land to indigenous peoples that they were due by law, but first it had to identify the land to be transferred, identify the family groups and the individuals concerned and other confirmations.

A delegate recalled how the dictatorship of El Salvador starting in the 1930s not only led to the disappearance of indigenous peoples but the disappearance of the cultural wealth of the Salvadoran indigenous community. That difficult period lasted for 60 years before ending when the guerrilla fighters signed the peace agreement. The openness seen since 1992 had allowed indigenous peoples to express themselves with much greater visibility. The Government had to change from a participative democracy to a representational democracy, which gave a voice not only to indigenous peoples but also women, children and members of the lesbian, gay, bisexual, transgender and intersex communities.

Although the Government accepted it had made some mistakes, it had political will to improve the situation for indigenous peoples, women, children, people with disabilities and the elderly, the Head of the delegation said. The Government was on the right path and day by day was building a country where indigenous peoples would enjoy their full range of human rights.

Turning to other advances, a delegate said one of the most important was health reform. Until 2009 there was no free healthcare. Minimum wage in El Salvador was about US$800 per month. Before 2009 you could pay a voluntary contribution for a medical check-up. But in 2009 free healthcare – and free education – were introduced in the country. Small health centres had been set up in the furthest reaches of the country; as despite being small there had been places that had no access to healthcare. Also, the Government worked to develop a form of medicine that combined modern and traditional methods, encompassing the traditional knowledge of plant-based medicines from the indigenous communities. Now an “inter-cultural health system” was being embedded in law.

Sanitation was another area that had received investment, particularly to remedy the unequal distribution of drinking water throughout the country, said a delegate. Until recently access to sanitation and drinking water was discriminatory, but that was being corrected, hand in hand with improved infrastructure. Policy on the treatment of sewage water was also being reformed.

A delegate turned to the case of the 1981 El Mozote massacre, and also referred to historic policies to exterminate indigenous peoples. Following the ruling of the Intra-American Court of Human Rights, a Commission was established in 2012. In 2010 the then President begged forgiveness for all of the suffering, in particular a 1932 massacre, but also other massacres that occurred during the conflict. Much was being done in particular to give moral reparations. Monuments had been built with another in the pipeline. One monument was a wall with all the names of those who died in the conflict written on it. The 2015 budget was envisaged to provide some financial compensation to descendants of victims

The education system had also undergone significant reform. Education was now free from elementary through to secondary school levels. Free school uniforms, text-books and shoes were provided to elementary pupils, and the President had recently decreed that they should also be provided for free to secondary level pupils. Those provisions were for all Salvadoran children, including indigenous peoples. The Government was working to improve the collection of disaggregated data, and lessons learned were being applied following the mistakes made in the 2007 census. There were special educational programmes which had been developed specifically for rural areas.

On the economy, a delegate said that like many countries, El Salvador had a deficit of budgets for social spending, and had sold some State assets, making several privatizations. Now the Government was in debt, but was focusing on job creation, particularly for the youth, for women and for indigenous peoples. Giving land was not enough; technical assistance, micro-credit and training had to be provided.

Ratification of International Labour Organization Convention 169 (which deals specifically with the rights of indigenous and tribal peoples) was a priority. El Salvador was mid-way through ratification proceedings, and was currently at a consultation phase with State authorities. Furthermore, in May 2014 El Salvador ratified the Rome Statute, a delegate noted, while the Tobacco Convention had also been submitted for ratification, as had the Convention on the Rights of Persons with Disabilities. Political will was there to ratify and accede to all of those instruments and more.

On migrant populations, a delegate started by recalling that El Salvador was a small country in Central America, which had similar customs to its neighbouring countries. There was no State policy to discrimination against brotherly peoples from Nicaragua, Guatemala, Honduras or any other neighbouring country. There were cases of Hondurans coming to El Salvador for free health care, a delegate noted.

Regarding local laws affecting migrants, such as street sellers, a delegate explained that El Salvador had separation of powers between the judicial, legislature and executive, and it also had 262 municipalities with their own authority. So in any municipality the municipal council could issue orders which could go against central Government policy. The municipalities were trying to tidy things up in their cities and so issued orders on markets and street sellers that were against Government policy.

In 1992 there was a judicial decision where 1,000 square kilometres of Salvadoran territory was lost, and many El Salvadorans lost their homes. The Government had made an effort to identify those people and support them to claim all of their entitlements. There was much more to do to ensure that migrants from other countries were protected, a delegate said, but recalled that a human rights-based approach to migrants' rights was adopted in 2009 hand in hand with cross-cutting social solutions.

On the Nahuat indigenous language, a delegate said indeed only 250 spoke the language, but even if only 10 people spoke it the Government would still look at the issue. Language was crucial to enable people to define their identity. It was crucial that people who spoke Nahuat, and other indigenous languages, kept a hold of their language. Therefore the Government took the drive to reactivate the language, to give it a new lease of life, very seriously. For example, the national hymn of El Salvador was also sung in Nahuat. Many people in El Salvador would prefer to be seen as “non-indigenous”, a delegate commented, so it was up to the Government to support indigenous peoples and settle the debt owed to them.

Questions by Experts

How was the Convention disseminated throughout the country? The Committee recommended that Article 14 of the Convention, which allowed the submission of individual complaints to the Committee once domestic channels had been exhausted, be widely promoted throughout the country.

The Committee was concerned about possible legislative gaps on the sanctioning of racism, an Expert said. In fact domestic legislation did not cover all of the possible crimes envisaged. El Salvador’s legislation was preventative, it acted as a sort of ‘protective cover’, he said. Did municipal authorities have to apply the provisions of international treaties that El Salvador was party to?

An Expert returned to the case of the 1981 El Mozote massacre taken up by the Inter-American Court of Human Rights, and asked the State party for more information about the impact of the Intra-American Court ruling on victims.

Another Expert asked about complaints of cases of discrimination, and said the fact that there were no cases before the courts did not mean there were no cases of racial discrimination in El Salvador. Rather, it could highlight the lack of information in the population about complaints mechanisms or compensation mechanisms, or a lack of trust in the judiciary. How had information on existing mechanisms been disseminated? Such a task could be a function of a national human rights institution, he added.

An Expert asked about social security, social benefits and payments for the people of El Salvador, and whether any specific provisions were in place for indigenous peoples.

In his report following his country visit to El Salvador in 2011, United Nations Special Rapporteur on Indigenous Peoples James Anaya made critical comments about the staffing and budget of the National Council for Indigenous Peoples, an Expert said. What was the response to that?

Response from the Delegation

El Salvador had been gripped by conflict since the fifteenth century, since the Spanish first arrived in the country, said a delegate. He recalled how 1853 saw a major uprising by the indigenous peoples against Spanish rule. The history of El Salvador was marked by about 500 years of conflict, extermination and discrimination, which inevitably led to problems today. Because of the inequalities which had existed over the decades there had been problems with mental health, in particular among indigenous peoples, the delegate said.

Continuing to speak about the mental health of indigenous peoples, the delegate said counselling was a cultural problem: very few people chose to visit a psychologist to receive counselling, he added. A Salvadoran had a particular spirit, for example if an earthquake happened or a volcano erupted one day, people would return to work the next. However, people accumulated trauma, and the Ministry of Health was working to deal with that, as seen in neighbouring countries of Nicaragua and Cuba, to help the former revolutionaries. There were failsafe systems to deal with the mental health of indigenous peoples, he added.

The delegate also returned to the 1981 El Mozote massacre, and said the Ministry of Foreign Affairs had launched an ongoing dialogue between the State and the victims and their representatives with a view to formulating a reparation plan, including identifying the deceased and surviving victims of the massacre and their relatives and providing them with medical and psychosocial care, creating spaces for asserting the dignity of victims and facilitating the return of displaced victims.

A delegate said that the ruling of the Inter-American Court of Human Rights in 2012 took a positive view of the recognition of and apologies by the President of El Salvador to the victims and survivors of the EL Mozote massacre and all other massacres upon the twentieth anniversary of the signature of the Peace Accords, on 16 January 2012. In its judgement the Court held El Salvador “internationally responsible” for the massacres committed in the village of El Mozote and nearby places. Following that, the National Commission on Reparations for the Victims of Human Rights Violations in the context of the Internal Armed Conflict was founded in 2012.

The final ruling of the Intra-American Court said there must be compensation and reparations for the victims. It was not a matter of political will but a budgetary problem preventing that from being done, but the President had asked for funds to be made available for that.

A delegate spoke about land rights for indigenous peoples, emphasizing that it was indeed a Government priority. There had been great progress on the granting of land titles to indigenous peoples, although the need for programmes and new policies aimed specifically at indigenous peoples was seen. According to the Salvadorian Institute for Agrarian Reform, the Government had granted 34,325 ownership titles to peasants in the last three years, compared to 34,000 titles granted during the preceding 20 years. It aimed to grant 50,000 titles. Ownership titles granted the beneficiary access to basic water supply and lighting services for their houses, and to technical assistance from the Ministry of Agriculture and Livestock. The Institute was also rolling out new programmes to support in particular indigenous women and help give them more opportunities to own land.

Regarding the dissemination of the Convention, a delegate agreed with the Committee, and also spoke about internal recommendations that a Standing Committee be established to bring together all institutions working on the field of the Convention, to monitor implementation on an ongoing basis. Then when a Special Rapporteur visit was received or a report was submitted, there was a body that could bring about systematic responses and follow-up for all issues related to international human rights treaties.

A municipal order did not have primacy over an international treaty, a delegate clarified. The Government maintained the hierarchy of legislation, starting with the constitution, and tried to avoid any conflict with the constitution or with international treaties. The work that mayors and other municipal authorities carried out had to be considered, but on the whole municipal autonomy mainly referred to employment. All mayors and municipal councils had to use the constitution to draw up municipal orders on all topics, including indigenous peoples, she emphasized.

A delegate agreed that no complaints did not mean there were no discrimination cases, and said they were trying to overcome barriers to making complaints. With the background of war and conflict, traditionally people tried to avoid making complaints, but now that culture was changing. Currently there were no complaints about racial discrimination, despite there being legislation in place to criminalize it.

Concluding Remarks

RAMON RIVAS, Secretary of Culture of the President's Office and Head of the Delegation, asked the Chairperson if a delegate of El Salvadoran civil society attending today’s review could take the floor to make concluding remarks.

JOSE FRANCISCO CALI TZAY, Chairperson of the Committee, replied that the request was extraordinary and unprecedented for the Committee, but as he saw no objections from Members of the Committee, the representative could take the floor.

BETTY PEREZ, representative of the National Council of Indigenous Peoples of El Salvador, thanked the Committee, and in particular the delegation of El Salvador and the Permanent Mission of El Salvador in Geneva for their support and time given to civil society. The indigenous peoples of El Salvador had gone through very difficult times, including several massacres over the years, but they were brave, they were determined and they wanted to overcome them. Since 2009 the El Salvadoran State had affected difficult changes in the country, often against strong opposition from right-wing elements of the Government. People from the ‘right’ did not want to recognize indigenous peoples and issues of land and natural resources were crucial. Great progress had been made in meeting the aim of recovering indigenous identity. The indigenous peoples groups of El Salvador hoped to continue to strengthen that progress together with the support of the Government, who was responsible. In the words of the President, to be strong was to walk together, concluded Ms. Perez.

PASTOR ELIAS MURILLO MARTINEZ, Committee Member acting as Country Rapporteur for El Salvador, said the Committee expected that the Government would actively involve communities and non-governmental organizations in the plans for its 2017 census, and that the results would not only benefit El Salvador’s next report, but be even more far-reaching. He commended the recognition of the physical existence of indigenous peoples in El Salvador, which was at the heart of United Nations goals. He also commended the granting of land title deeds to indigenous peoples, but was wary of the granting of collective land rights.

Challenges faced included tackling xenophobia towards migrants, and strengthening the Commission for Reparations. Central Government had to more clearly tell municipal councils what they could include in their local orders. The Committee would like to know more about women in indigenous communities, who were particularly vulnerable. The Committee would also like to see better dissemination of its concluding observations among all sectors of El Salvador communities, in order to improve their implementation.

RAMON RIVAS, Secretary of Culture of the President's Office and Head of the Delegation, thanked the Committee for the positive dialogue and their much appreciated expertise. He also thanked civil society for their valuable partnership, the issues they raised and their essential perspective of key issues. El Salvador had significant problems to solve but was determined to improve the lives of indigenous peoples, people of African descent and all other communities and bring news of positive change to the Committee in the next report.

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