消除种族歧视委员会与非政府组织讨论法国、危地马拉和波斯尼亚和黑塞哥维那的状况

消除种族歧视委员会

2015年4月28日

消除种族歧视委员会在本周审议法国、危地马拉和波斯尼亚和黑塞哥维那的国别报告前，于今天上午听取了来自这些国家的非政府组织代表的发言。

针对法国，非政府组织代表询问了当局计划采取哪些具体措施，以更好地应对种族歧视投诉和将被用来调查所有种族犯罪的刑事政策。代表们对用于规范游民社群迁移的法律表达了关切，也对媒体和某些政治家针对罗姆人的种族主义言论表示关切。他们还谈及在圭亚那违反消除种族歧视公约的问题，包括祖传土地权遭到剥夺，以及土著人民的集体权利未获承认。法国应该让该国对土著人民及其权利的定义符合国际法律、规范与标准，并使公共政策与其相互适应。

危地马拉的非政府组织对旨在消除种族歧视的公共政策缺少落实、土著人民在政治和公共生活中代表性不足、土著法律体系不被承认、缺乏相关机制以保护土著权利捍卫者等问题表达了关切。国家法律并未承认土著人民的概念，种族歧视和种族仇恨未被刑事定罪，而土著社区的事先磋商权利也未得到尊重。危地马拉应该就公共政策对种族歧视的状况开展一项研究，并审查其与《消除一切形式种族歧视国际公约》条款的相符情况。

在波斯尼亚和黑塞哥维那，国家、实体和州级决策过程中的平等缺失和边缘化是一大根本问题，这不仅影响了相关群体参与政治生活，也影响了他们在日常生活中获得社会和经济机会。一个令人关切的问题是，这种歧视性体系会对少数群体回归者和境内流离失所者的状况产生何种影响，这些人仍然等待着长久地回到其出生地的办法。委员会应该提出未与受影响罗姆人社区充分协商即落实住房项目的问题，以及对人权和少数群体权利标准遵守不足的问题，并敦促波斯尼亚和黑塞哥维那修订其反歧视法，改革监察员办公室的运作，以履行其保护所有波斯尼亚人免受歧视的任务。

以下非政府组织在今天的会议上发言：针对法国：人权联盟（Human Rights League）和圭亚那土著民族组织；针对危地马拉：危地马拉寡妇全国协调委员会（CONAVIGUA），玛雅律师和公证人协会（Asociacion de Abogados y Notarios Mayas），Qukumatz协会（Asociacion Qukumatz），玛雅文献与研究中心基金会（CEDIM），全国玛雅融合组织（Convergencia Nacional Maya）；针对波斯尼亚和黑塞哥维那：少数人权利团体国际（Minority Rights Group International）；

委员会接下来将在今天下午3点举行公开会议，开始审议法国的第二十和二十一次合并定期报告（CERD/C/FRA/20-21）。

Discussion on France

Statements by Non-governmental Organizations

Representatives of the Human Rights League inquired about specific measures by the authorities to better deal with complaints about racial discrimination and the criminal policy which would be pursued in investigation of all racial crimes. Concerning the Plan against Racism, Human Rights League disagreed with the intention of the Government to move hate speech from the Law on Freedom of Expression into the Criminal Law, because it would downgrade the seriousness of this crime and infringe on freedom of expression. The Committee should ask France about the law regulating the movement of Traveller communities and the regulations which foresaw their removal from their parking spaces. Certain segments of the society as well as the press and the politicians had undertaken racist speech against the Roma community and there was a certain mixing up of Travellers’ community and Roma. What measures were being taken concerning civil registration of all people living in overseas territories, which was of crucial importance for the enjoyment of other rights such as access to education and health?

A representative of the Organization of Indigenous Nations of Guyana spoke about the violations of the Convention on the Elimination of Racial Discrimination in Guyana, including the denial of the right to ancestral land and the lack of recognition of the collective rights of indigenous peoples. Further, French law and practices violated the inherent rights of the indigenous peoples and were not in line with the Committee’s recommendations to recognize and implement differentiated rights of those right holders. France should bring its definition of indigenous peoples and their rights in line with international law, norms and standards, and adapt public policies toward them. The consultation process on the system of areas of collective usage rights and the concessions must be improved and the current inconsistencies be corrected. Mining should be banned on the land of the communities and the health and education services should be adapted to local cultures.

Questions by Committee Experts

A Committee Expert asked about the position of non-governmental organizations concerning the system of collection of data along ethnic lines in order to determine the situation of each ethnic group in the country and the level of enjoyment of rights. Another Expert recalled the recommendations of the Committee to States concerning the criminalization of hate crimes, which should maintain the balance between the freedom of expression and the banning of hate speech. Experts asked for specific examples of the collective rights of indigenous peoples in French Guyana and whether there were specific rights claimed by the indigenous peoples.

Responses by Non-governmental Organizations

The French Constitution did not allow differentiating between different population groups in its territory, and non-governmental organizations favoured developing an anonymous academic study into the situation of specific groups; an academic approach would enable better knowledge about the situation and would also avoid the risk of creating specific ethnic divisions and ghettos. On the Plan against Racism, the representatives called on the Government to speed up investigations into hate crimes, and expressed concern that transferring the offence of hate speech into the Criminal Law would put it at the same level as theft, for example. Also, hate speech would come under the jurisdiction of criminal courts which were notoriously slow.

Concerning collective rights, non-governmental organizations said that 90 per cent of the territory of French Guyana belonged to France; the indigenous peoples were tolerated there and enjoyed a specific legal regime which did not allow them to fully enjoy their human rights. For example, they were not allowed to use the natural resources of their own territory because France prohibited it under the pretext of protecting flora and fauna. The small stipend provided to indigenous peoples was not sufficient to compensate for the loss of those natural resources. Paradoxically, the use of natural resources was allowed to forestry services but not to the indigenous peoples. With regard to individual rights, the representative said that the right to land was denied and that this led to poverty among indigenous peoples.

In follow up questions, Committee Experts remarked that ghettos already existed in France and stressed that, unless a proper system of measuring the problem was devised, the ongoing situation with regard to racial discrimination in France could not be addressed. Both Travellers and Romani experienced discrimination, they stressed and asked about concrete examples of discrimination against indigenous women. Another Expert said that racism was alive in France and asked about how civil society reacted locally to ensure that the impact of what was said in the media did not harm the implementation of laws, including the Convention on the Elimination of All Forms of Racial Discrimination, and whether civil society was able to mitigate the impact of racial discrimination at the local level. What remedies could the non-governmental organizations suggest to counter racist acts and discourse in France, particularly in the election context?

Responding to the questions and comments raised by the Experts, NGO representatives agreed that ghettos already existed and stressed that the new Anti-Discrimination Plan did not take into account the socio-economic background of racism and racist speech and the rejection of others. In terms of research on the situation of ethnic groups, a problem was not only to implement the data collection and point to the problem, but how the Government would address those issues. On the situation of Travellers and Roma: Travellers were French citizens while Roma were Romanian or Bulgarian citizens who immigrated to France – this meant that they were treated differently under the law. In terms of concrete examples of discrimination experienced by indigenous women, the NGOs said that Muslim women experienced the worst forms of discrimination and rejection, including multiple forms of discrimination.

In a further series of questions and comments, Committee Experts noted that the collection of data along ethnic lines by the State was not permissible under the French Constitution and asked where the line was in terms of what was permitted and what not. What should be the best policy answer to racism in policy discourse?

A voluntary and anonymous census in French Guyana was needed in order to define the situation of indigenous peoples there. There was no legal basis for the collective rights of indigenous peoples, who were only tolerated in French Guyana. The French Constitution prohibited the recognition of ethnic groups from having specific rights; up to now, it was important to ensure anonymity in data collection to ensure more free participation and response to questions. Ethnic statistics were a tool which was very useful if used by the universities; its use by the State carried a danger of ethnic profiling. The response by the authorities to racist speech was slow and must be improved.

Discussion on Guatemala

Statements by Non-governmental Organizations

A representative of Coordinadora Nacional de Viudas de Guatemala (CONAVIGUA) expressed concern about the lack of implementation of public policies to eliminate racial discrimination in Guatemala and the lack of special measures. Indigenous peoples were underrepresented, there was no recognition of the indigenous legal system, the right to priori consultation was not respected, and there was still no protection mechanism for defenders of indigenous peoples’ rights. The State had not carried out a census so statistics about the Guatemalan population were not available. The national law did not recognize the concept of indigenous peoples, and racial discrimination and racial hatred were not criminalized. Indigenous peoples were not considered to be a part of the society, and rural and indigenous lifestyles were considered backward and ugly. Racial hatred was widespread in the press and in the discourse by some Government officials.

A representative of Asociacion Qukumatz recommended that the State carry out a study on the impact of public policies on the state of racial discrimination, examine its compliance with the provisions of the Convention on the Elimination of All Forms of Racial Discrimination, and criminalize racial discrimination. The Committee should provide its support to indigenous peoples so that they could defend Mother Earth and continue to fight for her rights. The rights of communities to prior consultations must be respected.

Questions by Committee Experts

Indigenous peoples were a majority in Guatemala, but were under-represented in the Congress, noted Committee Experts, and asked what could be done to address this deficit and to exercise the right to vote. What was the view of the non-governmental organizations on the criminal law in Guatemala and the Decree 57 on racial discrimination, and what was the role of non-governmental organizations in monitoring the implementation of peace accords?

Responses by Non-governmental Organizations

At the moment, only 29 indigenous persons were deputies in the National Congress and this low level of political participation was due to the historical practice of Guatemalan political parties of vote buying. Indigenous communities were being co-opted into the political parties: only one of the 29 deputies in the Congress was faithful to his or her community, while others supported the agenda of the ruling political party they were members of. The Committee should call upon Guatemala to urgently adopt the Political Party Reform Act. Discrimination was criminalized, but the offence was commutable and dealt with by the justice of peace rather than by courts of first instance. It was worrying that the State did not provide an appropriate criminal legal framework which would properly criminalize this offence and ensure appropriate sentence; the same situation was with femicide – seven years after the law had been adopted, the framework allowing its implementation was still not in place. Although indigenous institutions had been in place, including the Office of the Ombudsmen of indigenous peoples, they had been weakened, and non-governmental organizations requested the Committee to ask Guatemala to strengthen indigenous institutions, and the capacity of indigenous communities and indigenous women in the implementation of the peace agreement. Equally, there must be efforts to define and enable the work of the Commission for Truth and Justice in addressing the crimes of genocide committed during the conflict.

In a further series of questions and comments, Committee Experts asked about court cases involving violence in Totonicapán in 2012 in which eight indigenous persons had lost their lives, and how the Protocol for prior consultation had been put together.

The facts of the case were still being verified, said the representatives of non-governmental organizations and there were no convictions in the case; the impartiality of the judicial system was at stake as it was obvious that the facts were instrumentalized to cast indigenous peoples and their leaders in bad light. The Constitutional Court had recognized the right of indigenous peoples to prior consultation, and the municipal codes contained the procedures of prior consultation; nevertheless, the State did not respect this right and did not consult with indigenous peoples. The fact that consultations were not taking place had given rise to conflicts in the country; indigenous peoples were conducting consultations themselves and in more than 80 such consultations had rejected the extractive industry and agro-business in their indigenous territories. The concern was that the State did not consider those consultations binding and the Committee should ask Guatemala to establish a consultative process which would ensure the participation of indigenous peoples and not only extractive industries.

Discussion on Bosnia and Herzegovina

Statement by Non-governmental Organization

A representative of Minority Rights Group International said that in Bosnia and Herzegovina, the fundamental issue was the lack of equality in the participation in political life and many citizens were effectively deprived of any possibility to run for seats and to elect people of their choice because of their ethnic identity or affiliation. The non-Constituent people who did not identify as Serbs, Croats or Bosniaks were not allowed to stand for certain high offices; Constituent peoples too were victims of similar limitations when they lived in the “wrong” administrative entity. This issue of marginalization in the decision-making process at national, entity and cantonal levels was a fundamental one as it had an impact not only on their participation in political life, but also on access to social and economic opportunities in day-to-day life. The electoral system had been successfully challenged before the European Court of Human Rights, in the Finci and Zornic cases, which had judged the system discriminatory and urged Bosnia and Herzegovina to reform its constitution and its legislation. Another concern was the impact of this discriminatory system on the situation of minority returnees and internally displaced persons, which were still waiting for solutions for sustainable return to their places of origin. For many of them, going back would mean becoming de facto minority and second-class citizens.

Minority Rights Group International drew the attention of the Committee to the situation faced by Roma communities, who still lived in inadequate housing conditions, often in informal and illegal settlements that lacked security, infrastructure and access to basic services and employment opportunities. The Committee should raise the issue of the implementation of housing projects without adequate consultation of the affected Roma communities, and the lack of conformity with human rights and minority rights standards. Concerning the flaws in the legal and institutional framework put in place to prevent and combat ethnic and religious discrimination, the Minority Rights Group called on the Committee to urge the newly elected Government in Bosnia and Herzegovina to amend its anti-discrimination law and resolve the issues which made it difficult for minorities to use it to claim their rights. Further, the Office of the Ombudsman could be a much more effective tool at the disposal of discriminated groups, and could be more proactive in defending their rights and challenging discrimination. This would require a reform of the functioning of the Office, and appropriate financial and staffing resources for the Office to fulfil its mandate of protection of all Bosnians against discrimination.

Questions by Committee Experts

Committee Experts referred to the Finci case of 2008 and, noting that the problem was that the three Constituent peoples could not agree how to solve the case, asked whether the solution should come from Europe. Bosnia and Herzegovina simply did not work because of the division of its people in religions and ethnicities, and the Committee should insist on Constitutional amendments; the problem was that the people from Bosnia and Herzegovina were unable to engender any change because they were constrained and blocked by those divisions put in place by the Dayton Agreement, put in place by the international community to stop the conflict.

Responses by Non-governmental Organization

Minority Rights Group International recognized the complexity of the situation in Bosnia and Herzegovina, where the three major political parties which represented the Constituent peoples tended to keep the status quo. The European Union and the Council of Europe had made repeated appeals for the implementation of the Finci rulings, which stated that population groups could not be excluded from public life on the basis of ethnic origin. The Dayton Agreement had perpetuated ethnic divisions: it carved the country along the ethnic lines and created territories with majorities and minorities; it did bring an end to the conflict but was not a sustainable solution for the country. Very few people felt “Bosnian”, but it was interesting to note that there were civil movements of people who refused to self-identify with one of the majority ethnic groups.

An Expert said that the Committee should insist that Bosnia and Herzegovina implement the International Convention on the Elimination of Racial Discrimination, rather than to ask it to amend the Constitution and the Dayton Agreement, which was not possible at the moment. The Committee should ask Bosnia and Herzegovina to get rid of discrimination in the area of housing, employment, and education, and to get rid of segregation, particularly with regard to Roma.

The daily discrimination and the issue of segregated schools were fundamental issues, agreed the representative of Minority Rights Group International, urging the Committee to call on Bosnia and Herzegovina not to exclude whole populations on the grounds of their ethnic origin. The Office of the Ombudsmen replicated the tripartite ethnic division of the country and its reform could ensure more effectively addressing of cases of discrimination in the country.
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