COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF EL SALVADOR
The Committee on the Elimination of Racial Discrimination has considered the ninth to thirteenth periodic reports of El Salvador on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Presenting the report, Guillermo Meléndez, Director-General for Foreign Policy at the Ministry of Foreign Affairs of El Salvador, said that the Salvadoran population was not composed of groups with differing racial characteristics. The majority were mestizo, or racially mixed, and there was no black population. The rights of ethnic and linguistic minorities were recognized in the Constitution, which provided that all persons were equal before the law without restriction as to nationality, race, sex or religion. The State also recognized the rights of ethnic and linguistic minorities as an integral part of Salvadoran society by searching for ways to promote their social and work conditions, as well as to promote and protect their culture and language and the Constitution provided for the protection and promotion of indigenous languages, archaeological sites, and culture. The armed conflict that ended in 1992 had taught Salvadorans the need for rules that encouraged coexistence, tolerance, respect and protection for human rights.
In preliminary remarks, Fatimata-Binta Victoire Dah, the Committee Expert who served as country Rapporteur for El Salvador, said that the unease she had experienced in reading the report, which appeared contradictory, had been addressed by the delegation in its responses and that overall there had been a clear manifestation of the State party's determination to live up to its obligations under the Convention. Despite the historical and geographical specificity of the country, the State party should nevertheless take account of all the segments of its population in its Constitution or at least in subsidiary legislation. In addition, El Salvador should consider ratification of ILO Convention 169, even if Constitutional amendments would be needed to do so. Finally, the State party should recognize and make reparation for the massacres that had occurred in the context of the past armed conflict in the country.
The Committee will present its final recommendations on the ninth to thirteenth periodic reports of El Salvador, which were presented in one document, at the end of its session, which concludes on 10 March.
When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the third to fifth periodic reports of Uzbekistan (CERD/C/463/Add.2).
Report of El Salvador
The ninth to thirteenth periodic reports of El Salvador, submitted in one document (CERD/C/4471/Add.1), highlight at the outset that El Salvador's population is a homogeneous, mestizo (racially mixed) society. Consequently there cannot be said to be racial discrimination in El Salvador. There is no black population in El Salvador and nationals of other countries enjoy all the economic, social and cultural rights on the same basis as Salvadoran nationals. The right to equality before the law is provided for in the Constitution, which also enshrines the right of all to work, health care, education and culture. Under the Constitution, All treaties signed by the State constitute laws of the Republic and take precedence over subsidiary legislation. El Salvador is a party to, among others, the International Convention on the Elimination of all Forms of Racial Discrimination (1979), the Convention on the Elimination of All Forms of Discrimination against Women (1981), the International Convention on the Suppression and Punishment of the Crime of Apartheid (1979), the International Convention on the Protection of All Migrant Workers and Members of Their Families, and numerous Conventions of the International Labour Organization. Article 17 of the Criminal Code recognizes the equality of all persons under the law without distinction on grounds of nationality, sex, race or religion, and punishes anyone who does so. According to a study undertaken by the Supreme Court on cases brought before the criminal courts since the implementation of the current legislation, between 1998 and 2004, only three cases were found to relate to discrimination, and these were classed as cases of employment discrimination. Of the three cases, two were rejected and one was dismissed.
Initiatives have been undertaken to promote interaction and involvement between different cultures and races, notably in events of a sporting, cultural, artistic or scientific nature. In 1996 the Salvadoran Institute for the Advancement of Women was established by legislative decree to draw up, give advice on and ensure the implementation of the national policy on women, which is the outcome of a process of national consultation approved by the Council of Ministers. Although there is no specific legislation providing for recognition of indigenous peoples, a number of institutions and laws provide for equal treatment. Indigenous peoples are also represented on the Multisectoral Technical Committee, set up in 2001 to take a global approach to the sociocultural problems of the indigenous peoples of the country. With help from the World Bank and the participation of indigenous representatives, the Committee completed an Indigenous Profile of El Salvador in 2001, which contains information on the history, skills, knowledge, and defining characteristics of indigenous persons in El Salvador, including maps that show the current location of indigenous peoples as well as their land use and incidence of poverty. The Department of Statistics and Censuses plans to include questions of the population's ethnic or racial origin in the upcoming (2006-2007) census.
Presentation of Report
GUILLERMO MELÉNDEZ, Director-General for Foreign Policy at the Ministry of Foreign Affairs of El Salvador, presenting the report, said that the Salvador population was not composed of groups with differing racial characteristics. The majority were mestizo, and there was no marked difference between white and indigenous peoples. El Salvador's society was one in which the traditions, legends and customs recalling its indigenous past had survived, along with indigenous crafts and dances. The indigenous peoples fell into three ethnic indigenous groups, Pipil, Lenca and Cacaopera, each with their own characteristics and languages. The history and geography of the country, however, differed significantly from Mexico, Guatemala and Honduras. In those countries the characteristics of the indigenous peoples were marked, which was not the case in El Salvador where, owing to many reasons of history and geography, the indigenous population was not distinguishable physically from the rest of the population. There was no black population in El Salvador, owing to its lack of a Caribbean coastline. According to the research presented in his book, El Salvador, by British anthropologist Alistair White, African genes were found to have become so diffuse in Salvadoran society that it was rare to see a Salvadoran of clearly African appearance. Indeed, out of a total population of 1,420,968, only 72, or 0.0 per cent, were black. For that reason questions about the black population were no longer included on the country's census.
The legacy of the armed conflict that had ended in 1992 was to teach Salvadorans the need for rules that encouraged coexistence, tolerance, respect and protection for human rights as well as the strengthening of democratic values, Mr. Meléndez said. The Government recognized the need to translate those values into comprehensive policies and strategies in the light of the situation in the country and the Salvadoran population's desire for reform.
The rights of ethnic and linguistic minorities were recognized in the Constitution, which provided, in article 3, that all persons were equal before the law without restriction as to nationality, race, sex or religion. The State also recognized the rights of ethnic and linguistic minorities as an integral part of Salvadoran society by searching for ways to promote their social and work conditions, as well as to promote and protect their culture and language, he observed. Article 62 of the Constitution provided that the indigenous languages spoken in the country formed part of its cultural heritage and should be preserved, disseminated and respected. Article 63 declared that the artistic, historical and archaeological legacy of the nation was part of its patrimony and provided for its protection. In that regard, a fifth primer to teach the Nahuatl language had recently been brought out and funds had been provided to print 1,000 such primers.
Equality under the law was also incorporated in the Criminal Code, and breach of that right was a punishable offence, Mr. Meléndez said. Salvadoran legislators had placed particular emphasis on discrimination in the labour sphere, including on the basis of race, and Article 38 of the Constitution provided for equal remuneration for work of equal value, without distinction as to race, gender, religion or nationality.
El Salvador had launched a values training programme run by the Ministry of Education with the aim of developing and strengthening values training within the education system, at all levels and in its various forms and areas, as well as encouraging the education community to become involved in developing activities and experiences to help promote the daily application of moral values, which could and should be shared in society. In addition, the "Book of Values" was published, which contained a compilation of articles already published in the press in conjunction with the programme, and which treated themes such as solidarity, tolerance-equality, honesty, respect, and justice, among others.
With regard to statistics on indigenous persons, he said, a 2004 housing survey included the question, "With regard to your heritage, customs and traditions, do you consider yourself to be an indigenous person?" The recognition of indigenous people was based on self-identification.
The Indigenous Affairs Unit of the National Council for Culture and Arts was established in 1955 to work for the recognition of and to provide support to Salvadoran indigenous peoples and organizations with a view to the dissemination and promotion of their culture and it had adopted measures to promote the cultural rights of indigenous peoples. The most important work carried out since 1988, Mr. Meléndez observed, consisted in preserving and disseminating the Nahuatl language. Indigenous peoples were also represented on the Multisectoral Technical Committee, set up in 2001 to take a global approach to the sociocultural problems of the indigenous peoples of the country. With help from the World Bank and the participation of indigenous representatives, the Committee completed an Indigenous Profile of El Salvador in 2001, which contained information on the history, skills, knowledge, and defining characteristics of indigenous persons in El Salvador, including maps that showed the current location of indigenous peoples as well as their land use and incidence of poverty.
In 2002, the Indigenous Affairs Unit of the National Council for Culture and Arts initiated efforts to work with indigenous women, and in June 2002, it held the First National Meeting of Indigenous Women in El Refugio, La Palma and Chalatenango, in which 150 people participated. A National Council charged with integrating persons with disabilities was established in 1993 and a national policy and plan of action on the subject was being drafted.
El Salvador acceded to the International Convention on the Protection of All Migrant Workers and Members of Their Families in March 2004 and work was being carried forward to implement its provisions. Among others, El Salvador had signed agreements for the dignified, secure and orderly repatriation of Savaldoran migrants with Mexico and Guatemala, as well as accords to protect the victims of illicit traffic in persons with those countries, and the Government was elaborating plans of action in connection with those agreements.
Challenges for El Salvador remained, Mr. Meléndez said. Progress in the protection of vulnerable populations needed to be made to bring them up to the level of the general population, and days of sensitization and capacity-building in national bodies needed to be undertaken. The Ministry of Education had to include indigenous culture and language within the regular curriculum. The Indigenous Affairs Unit of the National Council for Culture and Arts, in the light of the Profile of Indigenous Peoples, had to work to incorporate indigenous themes in public policy. Work remained to be undertaken with indigenous peoples and communities on the theme "Development with identity", in which projects to develop a better understanding of identity would be incorporated within the General Assemblies of Indigenous Funds. Policies targeting indigenous peoples in the areas of agriculture, education, economics, public health and statistics were also needed. And, finally, the Multisectoral Committee still had to follow-up the recommendations made in the Profile of Indigenous Peoples.
Oral Questions Raised by the Rapporteur and Committee Experts
FATIMATA-BINTA VICTOIRE DAH, the Committee Expert who served as Country Rapporteur for El Salvador, said that because indigenous people were held to be indistinguishable from other groups in Salvadoran society, as stated in the country report, that had led to a lack of sufficient statistics on that segment of the population. There were no disaggregated statistics and that made it impossible to gauge progress in the area.
Some paragraphs of the country report appeared to contradict others, she said, and references in the report to such things as the Organization of Indigenous Communities, indigenous hospitals, and indigenous education, were not comprehensible in view of the statement, also in the report, that there were no racially different groups in El Salvador and therefore it was not necessary to take special measures to address indigenous issues. That spirit of contradiction dominated the report, and led the Rapporteur to feel a sense of unease.
It was unacceptable that the report stated that since the population of El Salvador was not composed of groups with differing racial characteristics, it could not be said that there was racial discrimination in the country. A similar analysis in the previous country report, submitted in 1995, was rejected by the Committee in its conclusions. Also, according to the State party, indigenous peoples were not considered as being a vulnerable group, which included only women, children, the disabled, and the elderly.
If there were no acts of discrimination on a racial or ethnic basis in El Salvador as the report stated, the Country Rapporteur asked, what about the massacres of 20 years ago whose shadows appeared to hang over Salvadoran society until today?
Convention 169 of the ILO had not been ratified by the State party, which meant that there was no information on the topic of consultations between indigenous peoples and government authorities on decisions that affected them. Nevertheless, the Rapporteur requested data on indigenous consultations concerning mining concessions that had been granted on indigenous land.
With regard to migrants, more details were needed. What was the situation of migrants from Central America that wished to acquire El Salvadoran nationality and what were the statistics on those that migrated through the country en route to the United States?
The report stated that international treaties had precedence over domestic law under the Constitution. The Country Rapporteur observed that among those was the International Convention on the Elimination of all Forms of Racial Discrimination.
Finally, the Rapporteur thanked the delegation for elaborating and clarifying a number of issues that were unclear in the country report, and for opening up the way to further discussion.
One Expert, also addressing the State party's neglect of the Committee request for quantifiable data on the indigenous population, said that this issue was especially important given reports from other sources that had found that that group suffered from extreme poverty and social marginalization. It should be noted, he said, that no other State party to the Convention claimed that there were no cases of racial discrimination in their territory. Even if the report of El Salvador, in denying that such discrimination existed in the country, were speaking in a general vein, other sources of information indicated that the situation on the ground was in stark contrast to that claim. Also, the report itself belied the statement that there were no racial or ethnic differences, by enumerating the various initiatives and policies to address indigenous peoples.
Another Committee Expert wondered what the psychological and other impacts were for the indigenous peoples of El Salvador, given the Government's refusal to officially recognize them as a distinct group within the country. Regarding the study undertaken by the Human Rights Ombudsperson and the work to investigate cases of discrimination against migrant workers, what had been the outcome of that study?
The explanation given for the lack of a Black population in El Salvador was attributed to its lack of an Atlantic coastline, the Rapporteur noted. Under that logic, however, the presence of white persons in the country would also be inexplicable. The Committee would like to have a better explanation of the situation. What were the Government's criteria for assessing whether someone was indigenous or black, for example.
Assimilation was not prohibited by human rights standards, but it must not be forced or against the will of the group concerned, a Committee Expert observed. The question the Committee wanted cleared up was what channels of communication had the State provided for the expression of that will. It appeared that the State's position in this case was one of neutrality, but that may not be sufficient as a lack of position tended to favour assimilation.
Regarding the legal rights of indigenous peoples and their access to justice, a Committee Expert asked what provisions had been made to provide for special interpreters or bilingual judges for indigenous peoples. What did the delegation mean by saying that the indigenous languages were on the way to disappearing given that the report said that the Government had the responsibility to promote and protect indigenous languages, and there were many other such references to the State party's recognition of its obligation to preserve indigenous culture, including languages. Those assertions appeared to be in contradiction.
Were indigenous people allowed to practice communal ownership and exploitation of land? Also, there had been cases in which indigenous leaders were murdered by armed forces that had occurred during the armed conflict that ended in 1992. The Committee had previously recommended that those cases be followed up and one Expert asked what progress had been made to date in that regard.
Response by Delegation to Oral Questions
The delegation said that, with regard to recognition of the indigenous people, if they had not been specifically recognized by the report, the intention had been to recognize them implicitly. The Government did not deny their existence, but those populations had historically been declining in numbers and their populations had been so dispersed that they had blended in. They did not have distinct features or clothing, as in other Central American countries, to set them apart. Often, indigenous peoples in El Salvador did not even know more than a few words of an indigenous language. In addition, the process of technological development and globalization had exacerbated the situation with the result that the indigenous groups had been absorbed, and melted into those of the others in the country.
The lack of statistics to review the indigenous population in El Salvador was recognized by the Government. The total per cent of indigenous peoples, however, was cited in the Profile on Indigenous Peoples to be 10 to 12 per cent. Housing, environmental, health-care and other social policies, the delegation observed, targeted the population as a whole and not indigenous peoples specifically. All groups, in the light of their political preferences, enjoyed the right to participate in the party system and to stand for office. That avenue was open to the indigenous peoples as well, and there were no constraints on their participation in the political life of the country.
There was no Black population in El Salvador, as had been previously explained. If the Country Rapporteur was disatisified with the delegation's explanation as to how that absence had come about, the fact remained. While some Blacks had recently immigrated to the country, they had chosen to keep the nationality of their parents.
Regarding the peasant uprising of 1932 and the crisis of the 1980s, those events were not owing to actions that directly targeted indigenous peoples or peasants. Historians had determined that they were due, rather, to socio-economic conditions, most importantly the world depression and the consequent drop in coffee prices. The armed conflict of the 1980s had not been concentrated in indigenous areas, but had to do with a political power struggle that had spread to urban and rural areas. The Truth Commission, established by the United Nations to investigate and establish the facts of the 1980s crisis, confirmed that. Not just indigenous or rural populations were affected. Rather, the entire society was affected socially, economically and politically and suffered the adverse consequences of that time.
El Salavador had been unable to date to ratify ILO Convention 169, owing to a contradiction between that Convention and number of provisions in the Salvadoran Constitution. Substantial reforms would have to be undertaken before Convention 169 could be adopted. Nevertheless, the delegation confirmed, the possible adoption of that Convention was currently being studied by the Government.
With respect to migrants from Guatemala, Nicaragua and Honduras, there was a proposal that would give them a year to regularize of their migratory status and it was currently being considered.
Responding to the charge that El Salvador had held itself apart from other countries regarding the application of the Convention, the delegation said that irrespective of the progress that had been made by El Salvador in the sphere, the country did not regard itself as a unique case to which the Convention had no application. The Government recognized its obligations under that instrument. For example, under the Convention archaeological sites were protected.
With regard to the mother tongue of indigenous peoples, the delegation noted that the Constitution recognized Spanish as the national language. The delegation did not believe that linguistic assistance in indigenous languages was provided within the justice system. In any case, all of the indigenous languages were on the road to disappearing. Few indigenous language speakers remained. That was part of the overall trend in the society towards assimilation and racial mixing. That mixing also had an effect on indigenous culture, which was increasingly blended in with that of the rest of the population as well. Steps were being taken to promote indigenous languages, the delegation noted, but those efforts were of recent date, stemming from the 1992 peace accords. Article 62 of the Constitution provided for the protection and promotion of indigenous languages. Several projects in that connection had been mentioned in the presentation of the report, mainly regarding the Nahuatl language.
El Salvador had a land property registry and land ownership laws. Today, in accordance with Salvadoran law, indigenous peoples were subject to the same laws of land ownership as everyone else. In the past, there had been a redistribution of land that took place in the country, where many of the large landholdings were reformed into cooperatives owned by the peasants, among them indigenous peoples, to be worked for the benefit of the rural population. That redistribution, however, had unexpected effects, the delegation said. Large agricultural producers went into a slump. The peasants or indigenous peoples who had acquired land under the reform began selling it back to the large groups so that the large landholders built up their holdings again. In some cases, State lands had been illegally handed over to certain people, and the State was trying to recover those areas. Also, some land had been ceded by the Government to peoples who were affected by the recent natural disasters, such as hurricanes and earthquakes.
The delegation said there had been cases of discrimination against children in the State party, manifested in the cases of abandonment and the phenomenon of street children, child abuse, sexual abuse, child labour and children who were infected with HIV/AIDS. The total number of such cases was 4,900, some of which referred to social discrimination.
Preliminary Remarks
FATIMATA-BINTA VICTOIRE DAH, the Committee Expert who served as Country Rapporteur for Guatemala, said that she welcomed the interactive, constructive dialogue between the delegation and the Committee, which had enriched the Committee's understanding of the report. The unease she had experienced regarding the report, as a result of perceived contradictions therein, had been addressed by the Committee in its responses. Overall, there had been a clear manifestation of the State party's determination to live up to its obligations under the Convention.
Conscious of the country's geographic and historical particularity, as a small country emerging from the effects of a long armed conflict, the Committee would nevertheless regard it as a qualitative step forward if the State party would take account of all the segments of its population in its Constitution or, failing that, through subsidiary legislation, she said. In addition, ratification of certain instrumental instruments should be considered, including Convention 169 of the ILO, notwithstanding the existing Constitutional difficulties. Though it might be difficult to do so, the Salvadoran Constitution could be amended. Also, recognition of the massacres that had occurred in the context of the past armed conflict and reparation for the victims of those events was needed.
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