消除种族歧视委员会审议哥斯达黎加的报告（部分翻译）

2015年8月6日

消除种族歧视委员会今日完成审议哥斯达黎加关于落实《消除一切形式种族歧视国际公约》条款的第十九至第二十二次合并定期报告。

外交与宗教事务部副部长阿雷哈德罗•索拉诺•奥尔提斯（Alejandro Solano Ortiz）在介绍报告时表示，哥斯达黎加最近进行了宪法修订，将哥斯达黎加定性为多族裔和多文化的共和国。哥斯达黎加正在为设立打击种族歧视的监察员办事处而努力。《追求无种族主义、种族歧视和仇外心理社会的国家政策》明确反映了哥斯达黎加想要成为一个更为包容的社会、对所有种类的多样性都敏感并追求最高水平社会和谐的意愿。哥斯达黎加政府已正式制定了与土著人民代表的对话；讨论话题包括公共政策、国家发展计划、领土安全、治理和施政能力以及土著人民自治发展的法律。

在随后的讨论中，委员会成员问到了争议性书籍《可可里（Cocorí）》，该书位列学校课程的必读书单，但许多非裔哥斯达黎加人都认为它具有种族主义且带有攻击性。还详细讨论了将土著和非洲裔哥斯达黎加社群纳入国家决策的问题。其他提及的问题包括事先磋商的做法，特别是与国际劳工组织第169号公约相一致，获得水和祖先领土，土地返还，代表土著社群的发展协会以及土著和非洲裔哥斯达黎加妇女的状况。还详细讨论了全国人口普查使用的类别问题。

作为哥斯达黎加国家报告员的委员会专家帕斯托尔•穆里略•马丁内斯（Pastor Murillo Martinez）在总结发言中表示，《可可里》的例子给了哥斯达黎加一个自省并探索自己内心的机会。体育运动中的种族主义是值得关注的另一个问题。事先磋商很重要，特别是在讨论重要基础设施项目时。应充分尊重国际劳工组织第169号公约。

索拉诺•奥尔提斯先生在总结发言中表示，委员会是哥斯达黎加开始打造一个更加公平的社会的完美场所。打击种族主义和仇外心理是最重要的一项任务，法律面前应该人人平等。代表团明白，要做的还有很多。哥斯达黎加政府希望在下一次互动对话中能够表明自己已经正视了现有的挑战。

哥斯达黎加代表团包括来自外交与宗教事务部、哥斯达黎加立法大会、哥斯达黎加外交政策局、总统办公室以及哥斯达黎加常驻联合国日内瓦办事处代表团的代表。

委员会将于今天下午3点召开公开会议，开始审议尼日尔第十五至第二十一次合并定期报告（CERD/C/NER/15-21）。

报告

哥斯达黎加第十九至第二十二次合并定期报告可在此查看：CERD/C/CRI/19-22。

Presentation of the Report

ALEJANDRO SOLANO ORTIZ, Deputy Minister of Foreign Affairs and Religion, said that the recommendations which emanated from the ongoing exercise would be seeds of positive changes in Costa Rican institutional and legislative frameworks. Costa Rica recognized its shortcomings and historic debt towards certain populations as well as some structural deficiencies. The Costa Rican constitution had been recently modified, and the State was now defined as a multi-ethnic and multi-cultural Republic. Efforts were underway on the creation of an Ombudsperson’s office against racial discrimination. Costa Rica was planning to soon ratify the Inter-American Convention against Racism. The topics of racism and racial discrimination had been brought to a wide national debate; the overarching goal was the change of paradigm.

The national policy for a society free of racism, racial discrimination and xenophobia had been in place for 13 years, and reflected the clear desire of the State to become a more inclusive society, sensitive to all kinds of diversities and seeking the highest level of social harmony. The policy focused primarily on the groups at high risk – those of African descent, migrants and refugees. Many of the actions underprivileged population groups were calling for, such as in the areas of health, education and social security, were among the State’s priorities. The seven pillars of the policy were: institutional strengthening, political and civil rights, the right to education and culture, the right to health and social security, the right to dignified work and economic rights, the right to environment and the right to territory. An inter-institutional commission to apply Costa Rica’s international obligations in human rights, created in 2011, was helping coordinate national efforts and was engaged in a constant dialogue with civil society.

Regarding the census, significant progress had been made, keeping in mind previous recommendations by the Committee. Ethnic self-identification was now allowed in the census, and public awareness campaigns had been conducted in several languages. In the 2011 census, 1.1. per cent of the population had identified themselves as of African descent, 2.4 per cent as indigenous and 6.7 per cent as mixed. All Ministries and other State bodies were required by Presidential decree to formulate public policies in line with the Programme of Action for the International Decade of People of African Descent. The aim was to develop inter-sectorial programmes and sustainable policies to promote advancement of the persons of African descent in Costa Rica. The Commission for Access to Justice had developed a plan of action to ensure a non-discriminatory approach and access to justice of Afro-Costa Ricans.

The Costa Rican Government had formalized its dialogue table with the representatives of indigenous peoples. The agenda of the dialogue table developed on public policy, national development plans, territorial security, governance and governability, laws for autonomous development of indigenous people and the analysis of the right of indigenous people of consultation. The dialogue table process was supported by the United Nations System and the Ombudsperson of Costa Rica. Land registries for territories in Buenos Aires de Puntarenas were in the final stage of preparation.

A new migration law, which had entered into force in 2010, had a humanist approach and was in line with the principles of equality, non-discrimination and integration. The migratory policy was meant to contribute to national development through promoting the social and cultural richness of the Costa Rican society. Plans of action were in place to combat trafficking in human beings and further institutional strengthening in that regard. Since 2010, the Office for Integration and Human Development had been looking into ways of promoting policies of integration, as well as providing educational and informational services. The current administration was committed to recognizing the rights of those with different sexual orientation. Same-sex couples living together could now benefit from family allowances and make hospital visits to their partners. A 2015 Executive Decree called on institutions to strengthen training for public servants and revise internal rules and regulations vis-à-vis the treatment of lesbian, gay, bisexual and transgender persons.

Questions by Experts

PASTOR MURILLO MARTINEZ, Committee Member acting as Country Rapporteur, noted that, since its previous report, Costa Rica had recorded significant progress in many regards. Positive steps included public atonement of its past involvement in the Trans-Atlantic slave trade and the adoption of a national policy for a society free of racism. Costa Rica was State party to the International Labour Organization’s Convention 169 and its Government was sincerely committed to the recognition of diversity.

Costa Rica could be moving towards a sliding point in racism and racial discrimination, the alarm bell of which had been rung by the discussion on the book Cocorí. That book reminded many Costa Ricans of the malign state of the human mind which could lead people to mock each other, just over the colour of their skin. A prominent black Member of Parliament had been vilified for asking that the book be removed from the compulsory reading list in the national curriculum. It was an excellent time for the State party to take a deeper look and conduct soul searching on the whole issue of racial discrimination. The Expert recommended that the book Cocori be removed from the national school reading list. He asked for the delegation’s opinion on that.

The Expert provided a historic example of racial speech in a prominent Costa Rican newspaper. The debate was still very much topical, and highlighted the importance of providing fair intercultural education in the State party. He also read several testimonies of persons from the region of Limon, which provided examples of them being mocked and discriminated against on the grounds of skin colour, clothes and language, after they left their region.

There was still a high level of exclusion of indigenous peoples from national decision making, Mr. Murillo Martinez noted. He also asked what the general situation concerning the land rights of indigenous peoples was, whether they were collective territories and which institutions were used to govern those territories. What happened to the hydroelectric project in El Diquis? Had indigenous communities been consulted beforehand?

The Expert also asked what steps had been made of resettlement of those identified as occupants in bad faith of indigenous territories. It seemed that evictions had not been carried out yet.

Could more details be provided on the income per capita among Afro-Costa Ricans and Costa Ricans of mixed race?

What was the legal interpretation of the ILO Convention 169, the Expert inquired. Were prior consultations with local indigenous communities obligatory? Was the State party thinking of a protocol for implementing prior consultations, be it with indigenous, Afro-descendants or other communities in Costa Rica?

With regard to the migrant population, Mr. Murillo Martinez enquired about the treatment of Panamanian migrant workers who came to Costa Rica on a yearly basis to work in the fields.

Just one of the 21 cases of racism and racial discrimination in the Constitutional Court had resulted with a conviction.
What were the consequences of recognizing foreigners as indigenous individuals? What was the individual status of such persons? Were they first seen as foreigners or as indigenous? More details were sought about procedures of naturalization.

Was there recognition of customary law when it came to indigenous peoples, the Expert asked. Were there efforts in place to preserve indigenous languages?

Questions were asked about efforts undertaken to improve water supplies in indigenous territories. The issue of the restitution of land to indigenous peoples also needed to be looked into.

The formula of racism employed by the State party seemed to be incomplete, an Expert noted.

The right to lodging would be in contradiction with property regime, the State party’s report stated. That dilemma ought to be solved.

The Expert asked which languages were used for teaching in indigenous areas.

Did Costa Rica have an official religion, another Expert asked. If so, were other cultures and religions held in the same esteem?

Implementation of international human rights instruments ought to be supported, commented the Expert.

The 2011 census data needed to be updated. The terminology offered to those surveyed should be broader and include more categories, rather than simply “black” and “white/mestizo”. Another Expert suggested introducing further distinction between the existing categories.

More information was sought about the Cocorí book. Could the delegation provide the context in which debates on the book were taking place? Another Expert touched upon the offensive nature of the book Cocorí. Context changed over time, which was why perhaps it was timely to look into the need to keep that book on the mandatory reading list. In June 2015, the subject of Cocorí had come up at the meeting of chairpersons of human rights treaty bodies in San José, the capital of Costa Rica. A copy of the book was available in the Committee, in case some members wished to view it, she noted.

Could more details be provided on the competencies of the Ombudsperson to fight racial discrimination, and what would the Office’s relation with the national human rights institution be?

An Expert asked what obstacles there were in bringing the Criminal Code in line with the Convention.

Another Expert noted that Costa Rica had an honourable record of human rights among Latin and Central American countries.

The rate of migration seemed to have fallen, but the majority of foreign citizens were reported to have reached Costa Rica since 2011 – could that inconsistency be clarified? Were there any major distinctions between Nicaraguans and Costa Ricans?

Had some of the weaknesses identified by the Ombudsperson been addressed, an Expert inquired. Why had the bill on the rights of indigenous people not been approved after being considered by the Parliament for 20 years?

The issue of the racial bias in the Constitutional Court was also raised; only one complaint on racial discrimination submitted had received a favourable response.

The Expert also brought up the right to work of indigenous and Afro-Colombian persons.

Another Expert asked about the work of indigenous development associations. Some concerns had been expressed about their organization, which did not reflect the reality of indigenous communities. They were also reported to include only non-indigenous members. In reality, they seemed to be putting obstacles to the realization of rights by indigenous peoples.

The Expert said that 37 per cent of deaths of indigenous people were due to preventable causes, as the Ministry of Health had reported. There was thus an urgent need to resolve the challenge of enjoyment of health by indigenous people. An entity called CONASPI – a national health institution for indigenous people - had been created. What did that entity effectively do?

An Expert expressed his understanding that the Creole language was being spoken less and less and was in danger of disappearing. A question was asked about measures taken to protect Creole languages spoken in the Caribbean area.

The Constitutional Court reportedly did not apply international human rights treaties. Complaints made to it over Cocorí were a case in example, when the Court had decided to apply national laws rather than international conventions. Would the Court be using international treaties in its future workings? Did indigenous peoples in Costa Rica have rights consistent with the Universal Declaration of Human Rights? Did they invoke that Declaration when claiming their rights?

There were reports that some people had undergone skin colour changing operations and died in the process, an Expert noted. Was being black or mulato in Costa Rica considered a problem?

Another Expert praised the clarity of the State party’s report, but wanted to hear more about the work of the inter-institutional commission. What did the sub-committee mentioned in the report deal with? Who was the member of the permanent advisory body for consultations with the civil society? Was that body also connected to the inter-institutional commission, and could it provide effective protection or would it simply issue opinions?

Conditions in some plantation farms were rather deplorable, an Expert noted and added that they ought to be rapidly improved. If there were no concrete plans with tangible deadlines, those were frequently not implemented.

More information would need to be provided on the El Diquis hydropower plant, the Expert noted.

Deep concern was expressed about the situation of migrant workers, some of whom were facing very difficult circumstances in coffee plantations.

Replies by the Delegation

The delegation said that 4.3 million inhabitants had been registered in the 2011 census, out of whom 83.6 per cent had described themselves as white or mestizo. Information would be sought on why those two were placed in the same category.

Costa Rica was not a secular State, and Catholicism was its official religion. A new concordat was being negotiated with the Vatican, which would usher a number of constitutional changes in the future. A dialogue between the State, through the Ministry of Foreign Affairs and Religion, and various churches was held. Christian marriages also had to be registered on civil records, as Catholic priests also acted as civil registrars.

On the questions related to the Cocorí book, the delegation informed that it was not a new controversy. Discussions had been going on for a while among political and academic circles. In 1996, the Constitutional Court had rejected the request by an elementary school student to eliminate the book from the school curriculum; it had nonetheless been removed as compulsory reading. In 2003, another plaintiff had brought up the case, arguing the elimination of the book had infringed the freedom of speech. It had subsequently been found that reading of the book by children and young adults could have led to abusing and bullying. In 2015, the controversy had re-emerged, when an Afro-descendant group raised the issue of the book’s inclusion in school curricula, even as non-mandatory reading. Several Afro-Costa Rican Members of the Parliament had asked the Ministry of Culture to eliminate the budget for a musical theatre show which was based on the book, which had been done subsequently. The case on the book’s removal was still, once again, pending in the Constitutional Court. The current Minister of Education had promised to take immediate measures to combat racism and racial discrimination in the school system.

The Legislative Assembly had created a special committee for human rights in 2010, a delegate explained. Compliance with international human rights had thus been given a central legislative dimension. With the adoption of the latest constitutional reform, Costa Rica had been defined as democratic, free, independent, multi-ethnic and pluri-cultural State. It was recognition of different heritages of the modern-day Costa Rica.

There had been difficulties in reaching consensus on agreeing on the draft law on the autonomous development of indigenous peoples. Discussions would continue. Five different laws on punishing racial discrimination were being currently discussed in the legislative. The Ministry of Labour and Social Security would be in charge of inclusion of Afro-Costa Rican population in the labour market.

A future Ombudsperson’s Office against racial discrimination was currently discussed and should be established to work 24 hours a day on protecting the rights guaranteed to indigenous and Afro-Costa Ricans. A draft law on declaring August as the historic month of Afro-descendants in Costa Rica was currently under discussion. The Inter-American Convention against Racism, Racial Discrimination and Connected Forms of Intolerance had also been approved by Costa Rica.

Regarding the implementation of international human rights treaties in Costa Rica, the delegation said that the highest monitoring body was the Constitutional Court. International conventions were supra-constitutional in nature and could be implemented without going through the ratification procedure. The cases in the Constitutional Court had been overturned due to the lack of evidence.

The delegation noted that the Minister of Education had decided to allow children whose hair was styled in dreadlocks to attend school.

There was a subcommittee on the indigenous peoples with the goal of granting access to justice to indigenous persons, a delegate informed. There were no special courts dealing exclusively with indigenous people. Cultural experts, as well as interpreters and translators, were regularly involved in judicial processes, as needed. Justice tribunals existed country-wide in order to address people’s needs everywhere. The Agrarian Procedural Code included provisions for access to justice for indigenous populations.

As regard the land tenure, customs held by indigenous peoples were taken into consideration, in line with the ILO Convention 169. People had the right to appeal against evictions, which could not be carried out if they were still looked at by judicial authorities. On the basis of the ILO Convention 169, one was deemed as indigenous if descending from the population to which the country had belonged at the time of a conquest or colonization.

On the issue of restitution of lands, the Constitutional Court had decided that indigenous peoples could negotiate their lands only with other indigenous peoples; non-indigenous people could not take over those areas. A high level of protection was thus provided. Judicial authorities provided for in situ proceedings in the areas where indigenous peoples lived.

Guidelines had been given to judicial authorities on access to justice for migrant workers, asylum seekers and refugees. Obligations existed for judicial authorities to provide preferential treatment in ensuring fair access to services for those with disabilities, the elderly, minors, and indigenous peoples. Major steps forward were being taken forward in addressing crimes committed against indigenous people and vice versa, taking into consideration supranational human rights norms.

The delegation said that progress had been made with regard to nationalization. Permanent residency in the country and speaking Spanish were among prerequisites for becoming citizens with full rights.

It was informed that, according to the 2011 census, Nicaraguans accounted for a large majority of foreigners living in Costa Rica. There was an inflow of economic migrants in a circular manner; those were mostly from Nicaragua and worked in agriculture. Nationally, migrants represented nine per cent of the population.

As regards the El Diquis project, the delegation said that operations in the area had been suspended, taking into consideration recommendations by the Special Rapporteur on the rights of indigenous peoples. Consultations with the indigenous people were now being directly coordinated by the Office of the President.

Four indigenous languages existed in Costa Rica, and the Ministry of Culture was undertaking efforts to ensure their preservation. Efforts were also underway to preserve and promote the use of the Creole language.

The delegation provided some disaggregated statistical data, as requested. A delegate said that the life expectancy of white and mestizo persons was one year longer than that of Afro-descendants, which was described as moderate. Literacy in Costa Rica stood at 96 per cent, with a slight gap between urban and rural areas. Afro-descendant men had higher rates of unemployment than Afro-descendant women; rates of poverty among those of African origin were higher than the whites and mestizos.

Indigenous and Afro-Costa Rican women continued to be matter of priority, due to their particular vulnerabilities. One of the ways to assist those groups was through training programmes, offered centrally and in a regionalized format. Some of those women were triple disadvantaged – for being women, indigenous and living in poverty. Interpreters in indigenous languages were provided for those women in courts.

In addressing healthcare for minority populations, the delegation informed that a series of specific actions had been identified, such as including intercultural approaches when providing health services. Comprehensive healthcare system including traditional medicine used by the indigenous communities was also being developed.

Regarding the census, the delegation said that the “white/mestizo” category had been used together to cover those with double identities. Indigenous persons in a constant process of migration across Panama-Costa Rica border were seen primarily as indigenous. Special conditions were provided for their protection.

Follow-up Questions by Experts

On the issue of the Cocorí book, an Expert opined that it was only necessary to eliminate the book as mandatory reading for minors. It would have been easier to make a decision by the Ministry of Education than to go through repeated court processes.

Another Expert expressed doubts whether the Committee should start getting involved with the domestic issues as the Cocorí book. Different people could be offended by different pieces of literature, which did not necessarily make them racist.

The recognition of traditional jurisdiction and customary law was very important, the Expert noted and asked whether there was monitoring of significant contradictions between two jurisdictions. Without follow-up and monitoring of customs, it was impossible to resolve all the problems.

Another Expert asked for a clarification on the percentage of those who self-identified as Black. Was the percentage of the population a criterion defining legislative initiatives on affirmative action?

Had the national policy for a society free of racism, racial discrimination and xenophobia, which was a very comprehensive document, been adopted by law? There were no references to the budget in the document, though.

What consultations had been held in the State party on hydroelectric projects, in line with the ILO Convention 169? Were they sufficiently wide ranging?

Replies by the Delegation

The Cocorí book was still very much on the national agenda and had polarized Costa Rican society. Written more than 60 years earlier, it had been used for education of generations in the country. The writer himself had never intended to write a piece of work which would promote racism, but in writing it, in the historic context, he may have invoked some stereotypes. The Government condemned any act of violence, incitement of violence or offence or denigration of certain groups due to their ethnic or racial origins.

The adoption of the law on autonomous development of indigenous peoples, which was currently being debated, would mark a true headway. Courts using customary law did so complimentarily to Roman/Germanic law. There was no palpable contradiction which could jeopardize their implementation. The ILO Convention 169 recognized the access of indigenous people to their land. The justice system in community tribunals sometimes used important aspects such as due process, to ensure that the decisions taken were right decisions.

On statistics, the delegation explained that the latest census had shown that there were 7.8 per cent Afro-descendants in Costa Rica. The delegation would consult with the Member of Parliament who had proposed changes to census rules, and revert. The category “white/mestizo” reflected how most Costa Ricans felt.

In response to the question on consultations, a delegate said that one territory had decided to walk away from the dialogue table, which was regrettable, but the Government had to respect their decision. That territory had expressed its preference for a more direct channel of communication with the authorities. The dialogue format was very innovative in nature and the Government would like to see it flourish.
Proposals for the affirmative action had indeed been based on the 2011 census, the delegation confirmed.

Follow-up Questions by Experts

Another Expert said that nobody was proposing the Cocorí book should be banned – the question was whether or not the book should be compulsory reading for children.

Was the jurisdiction of indigenous peoples limited to civil cases, or did it also include criminal cases? Were fundamental principles of it checked by the Constitutional Court?
Another Expert noted that there were often notable differences between customary law and indigenous judicial systems. Specialized education for indigenous people focused on their rights to preserve their linguistic identity was raised by an Expert. In which language were they educated?

Was the decision by the Minister of Education to allow for children having dreadlocks in school final, or would the courts have another say? It seemed difficult to adopt a new law on culture. How would the authorities go about that? How were development associations reconciled with some of the indigenous communities which did not want them, an Expert inquired. How many judges of African descent were there, another Expert asked.

Replies by the Delegation

The delegation said that there was dichotomy between free speech and the use of the Cocorí book as the reading material. No one had indeed proposed banning of the book, but just its teaching to young children.

Indigenous territories were legally represented by their development associations, but they did not cover the entirety of populations. In addition, the authorities had working relations with indigenous women’s and youth groups, which had their own networks, but sometimes did not have legal representation.

The issue of the legitimacy of the El Diquis hydropower plant project was a significant challenge, said a delegate.

Indigenous jurisdictions were exceptional jurisdictions for civil matters, limited in their scope. They were present through the entirety of the territory. Personnel working in those jurisdictions needed to be trained. Often times, those courts dealt with daily, ordinary matters.

The delegation reiterated that four indigenous languages were supported by the Government; two of them were being currently being brought back and fostered through governmental measures. An indigenous education department existed within the Ministry of Education, but it was not an easy process as the number of teachers in those languages was currently low. Progressively, bilingual programmes were being developed.

A State policy was now in place to promote the use of the Creole language, not as the language of schooling, but as a part of the identity of the Afro-Costa Rican community.

The national policy on cultural rights incorporated an intercultural approach, a delegate stated. The policy specifically referred to indigenous communities. Consultations had been carried out largely in line with the ILO guidelines. Culture was also a specific chapter in the national policy for a society free of racism, racial discrimination and xenophobia. The policy had been approved by law and had earmarked funds.

The Constitutional Court claimed that it was incompetent in the issue of the student with dreadlocks. The Minister of Education had the power to decide on the guidelines in her sector.

Concluding Remarks

PASTOR MURILLO MARTINEZ, Committee Member acting as Country Rapporteur, said that the Cocorí case had given the Costa Rican State an opportunity to for introspection and soul searching. Racism in sport was another issue to which attention ought to be paid. Prior consultation was important, especially when discussing major infrastructural projects. The ILO Convention 169 ought to be thoroughly respected. He said the delegation had provided the Committee with a great deal of information, which it hoped would assist it in preparing comprehensive concluding observations.

ALEJANDRO SOLANO ORTIZ, Deputy Minister of Foreign Affairs and Religion, said that the Committee was a perfect place for Costa Rica to start building a fairer society. Each of its inhabitants was the country’s most important asset. Combating racism and xenophobia was a paramount task, and everyone ought to be equal before the law. On the basis of the rich interactive dialogue, the delegation was aware that a lot remained to be done. The Government hoped that in the next interactive dialogue it would be able to demonstrate that it had faced the existing challenges. Self-improvement was always work in progress.

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