COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONSIDERS REPORT OF COSTA RICA

The Committee on the Elimination of Racial Discrimination has considered the seventeenth and eighteenth periodic reports of Costa Rica on its implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.

Presenting the report, Christian Guillermet Fernández, Director General for Foreign Policy at the Ministry of Foreign Affairs and Religion of Costa Rica, said that the report presented to the Committee in 2001 had been the point of reference for a number of actions, including the promulgation of a new law on migration and aliens affairs that had been adopted in 2005. That law, however, had been found to have a number of flaws, which were currently being addressed through a draft bill currently under discussion in the Legislative Assembly. A special attorney for indigenous affairs within the Ministry of the Interior had been created, with a view to focusing on the problems of the indigenous population, and a bill had been drafted with the aim of building capacity for judges, in particular with a view to raising their awareness about discrimination issues. In addition, a national employment policy had been elaborated, which paid special attention to youth from traditionally marginalized sectors of society. While it could not be denied that many of the planned measures had not been able to be implemented for various reasons, among them the difficulties surrounding the approval of draft legislation, the Government was working to overcome those problems.

Alexei Avtonomov, the Committee Expert who served as country Rapporteur for the report of Costa Rica, in preliminary concluding observations, said the Committee understood the difficult situation of Costa Rica, in particular from the economic and social point of view, which impacted on the situation of indigenous peoples, Afro-Costa Ricans and other vulnerable groups in the country. The Committee had also noted that racial discrimination in Costa Rica was not the result of intentional discrimination on the part of the Government; in many cases discrimination was a result of historical economic and social situations. Nevertheless, each State's obligation under the Convention was to deal with the historical and economic consequences leading to discrimination. In the light of that, the Committee would try to formulate pragmatic and achievable recommendations to address that situation.

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the continuing concern that discrimination was classed as a misdemeanour in Costa Rica and subject to fines rather than criminal sanctions. With regard to the indigenous population, Experts asked, among others, what was being done to support indigenous languages, to better the situation of indigenous children and women, to ensure indigenous land rights, and to revive traditional medicine. A couple of Experts asked for more details about the "reformed" National Commission on Indigenous Affairs, and expressed concern that it appeared not to have any decision-making powers. The situation of the Afro-Costa Rican population was also the subject of a number of questions, and Experts were concerned to know what measures the Government was undertaking to improve it. Other topics included what measures existed to prevent and punish human trafficking, and what was being done to combat hate speech and incitement to acts of racial violence.

The delegation of Costa Rica also included Laura Thompson, Permanent Representative of Costa Rica to the United Nations Office at Geneva, and other members of the Permanent Mission in Geneva.

The Committee will present its written observations and recommendations on the seventeenth and eighteenth periodic reports of Costa Rica, which were presented in one document, at the end of its session, which concludes on 18 August.

When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to take up the fifteenth to seventeenth periodic reports of New Zealand (CERD/C/NZL/17).

Report of Costa Rica

The seventeenth and eighteenth periodic reports of Costa Rica, submitted in one document (CERD/C/CRI/18), says that Costa Rica has not taken firm and determined steps to promote and give effect to international agreements related to non-discrimination. Many aspects addressed in the instruments have not been properly incorporated into national policies, and there are still no clear public policies to combat discrimination. Despite the fact that it contains no specific definition of discrimination, the Criminal Code does mention a number of closely related offences, such as international crimes, genocide, conspiracy, extolling crime and incitement to hatred. The Government wishes to point out that the Committee’s concerns that racial discrimination is classified as a misdemeanour in Costa Rican law were duly communicated to the Legislative Assembly; nevertheless, the legislature has, to date, not adopted any legal rules in this regard.

One of the institutions at the forefront of efforts to find consensus on public migration policies is the Permanent Forum for the Migrant and Refugee Population, which was established at the request of the Office of the Ombudsman 10 years ago. Currently, the forum is discussing a possible redefinition of its aims, mission and future direction, prompted in particular by reports from State institutions and the Office of the Ombudsman. These bodies have proposed that it should refocus on the original concept, which was that the forum should study and analyse the whole migration phenomenon, of which the migrant population and their human rights are central, but not the only, elements.

The Office of the Ombudsman has been a key player in efforts to improve living conditions for indigenous peoples, and has made efforts to meet and to respond to their needs and priorities. The Ombudsman expressed in no uncertain terms in its 2005 annual report that “no steps have been taken to recover land for indigenous communities, which is one of the principal, as yet, unmet obligations of the Costa Rican State”. It also states that “along with the State’s failure to ensure the recovery of land located in the indigenous territories, in examining the land recovery programme of the National Commission on Indigenous Affairs, it was discovered that this institution had been openly managing a piece of property until January 2005”. The report points out that this situation is an infringement of the Indigenous Act. In its reply, the National Commission on Indigenous Affairs stated that it was in the process of transferring the property, but that it had encountered legal obstacles in doing so and was requesting the Indigenous Development Association to defray the cost of the notary fees. At the time this report was prepared, the property transfer was in the process of being transacted.

Presentation of Report

CHRISTIAN GUILLERMET FERNÁNDEZ, Director General for Foreign Policy at the Ministry of Foreign Affairs and Religion of Costa Rica, said that Costa Rica attached high priority to the presentation of periodic reports to treaty bodies, as could be seen by the fact that it was one of the few States that was up to date in the presentation of its national reports. The fight against racial discrimination remained one of the biggest challenges for society today. The twenty-first century, marked by globalization, had already seen multiple manifestations of that scourge. It was not a phenomenon exclusive to developed or developing countries – it was a global phenomenon. For that reason, it was a matter calling for the joint commitment of all national societies and the international community to work together.

Mr. Guillermet Fernández noted that progress had been made in a number of areas since Costa Rica had presented it last report. Costa Rica had used the tool of reports to treaty bodies, and had, quite humbly, taken the opportunity to review and reform its public policies in the area of human rights in that context. Indeed, Costa Rica's reports were conscientiously prepared so as not only to highlight advances, but also to point out weaknesses. Costa Rica believed in the process and considered it a valuable tool for bettering the lives of its inhabitants.

The report Costa Rica had presented in 2001 had been the point of reference for a number of actions, Mr. Guillermet Fernández said, including the promulgation of a new law on migration and aliens affairs which was adopted in 2005. That law, however, had been found to have a number of flaws, which were currently being addressed through a draft bill currently under discussion in the Legislative Assembly. There had also been the creation of a special attorney for indigenous affairs within the Attorney General's Office, with a view to focusing on the problems of the indigenous population. There was also a draft law to build capacity for judges, with a view to raising their awareness about discrimination issues. In addition, a national employment policy had been elaborated, which paid especial attention to youth from traditionally marginalized sectors of society. While it could not be denied that many of the planned measures had not been able to be implemented for various reasons, among them the difficulties surrounding the approval of legislation, the Government was working to overcome those problems.

In terms of measures to assist indigenous peoples, the National Development Plan of Jorge Manuel Dengo 2006-2010 was firmly fixed as the focal point of social policy, with the sectoral objective of reducing inequalities or gaps in levels of social development; the identification of geographical gaps or gaps between various groups; the creation of benchmarks to ensure that the basic needs of the population were being met; and to confront the social exclusion faced by indigenous peoples and other vulnerable groups in society. It also sought to develop an insectoral plan to ensure better access of the indigenous population to services and programmes.

In terms of the draft migration legislation referred to in its previous report, that had been the subject of an intense debate in the Legislative Assembly, Mr. Guillermet Fernández observed. Among its critics during that debate had been the then-presidential candidate, the current President Oscar Arias Sanchez. Since his election, the President had charged the relevant government organs to accord priority to the total reform of the General Law on Migration and Aliens. The new Administration had been working to build consensus for a draft bill, and months had been devoted to consultations with various human rights expert groups on this subject, including the Ombudsman's Office, the Permanent Forum for the Migrant and Refugee Population, the Catholic Church, and academic institutions, non-governmental organizations and other civil society groups. As a result of that process, the Permanent Forum had put forward a draft bill incorporating many of the recommendations made. Among other things, the draft legislative reform contemplated maximum time limits for administrative detention, as well as imposing an obligation for any reasons for an extension of that time limit to be spelled out, while maintaining the right to personal freedom and due process. It also provided for sanctions or penalties relating to cases of trafficking in persons.

Responding to a request by the Committee to indicate whether the concerns of indigenous peoples had been taken into account in the negotiations carried out on a free trade agreement with the United States, Mr. Guillermet Fernández noted that, in that regard, a formal process of consultation and participation had been initiated by the Government with the private sector and other sectors of society with the goal of widely disseminating information about the discussions; carrying out a comprehensive consultation on each and every item; increasing the number of businesses and other actors that were consulted; and improving the channels of communication and consultation at the inter-institutional level. In that regard, the Ministry of Foreign Trade established a number of informational tools and forums for consultation that sought to inform civil society about the negotiations, including a web page, a permanent focal point, and publications and pamphlets. There had also been a strategy to reach rural areas on this topic, which targeted schools, student representatives, and heads of families. In this context, the Minister of Trade and his team also undertook roving visits throughout the most remote regions of the country, including the indigenous areas of Bribri and Talamanca. The "Mesa Nacional Indigena" had participated in one of the forums discussing this subject. In July 2005, in accordance with its obligations under ILO Convention No. 169, to consult indigenous peoples on issues affecting them, a methodology for consulting indigenous peoples was formulated. A definitive calendar has now been established for those consultations, which were taking place between 22 June and 26 August this year.

In conclusion, Mr. Guillermet Fernández said Costa Rica was convinced that the role of the treaty bodies in the promotion and protection of human rights was essential. However, noting the movement and the work being undertaken towards treaty body reform, Costa Rica agreed that it was necessary to have a more rational approach, one which lessened the reporting burden on smaller countries. Costa Rica therefore supported all efforts leading to the rationalization and streamlining of the reporting process.

Oral Questions Raised by the Rapporteur and Experts

ALEXEI AVTONOMOV, the Committee Expert serving as country Rapporteur for the report of Costa Rica, said Costa Rica was one of the early signatories to Convention, and it complied with its reporting obligations to the Committee. Costa Rica had also ratified all the other international human rights instruments, except for the Convention on the Rights of Migrant Workers. Another important treaty was ILO Convention No. 169 on indigenous peoples, which had been recognized as being fully in force since its adoption by Costa Rica in 1993. In addition, there was a 1997 law that organized the territories of indigenous peoples, and spelled out their rights, including to lands, in conformity with the ILO Convention.

Costa Rica was also a party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and to the United Nations Convention against Transnational Organized Crime, Mr. Avtonomov observed. Nevertheless, Costa Rica had not yet ensured the implementation of the anti-discrimination provisions contained in the international instruments to which it was a party, and there was a lack of incorporation of the provisions of those instruments in domestic laws, as well as a lack of clear public policies against discrimination. In that connection, it was recognized that Costa Rica's periodic report was a very frank document, which addressed many of the problems in the country.

In terms of the criteria used to describe the make up of the Costa Rican population in the 2001 census, Mr. Avtonomov said it might be necessary to define culture in a more inclusive way, that was, by values associated with indigenous peoples, Afro-Costa Ricans, or those of Chinese origin.

Mr. Avtonomov was concerned about the issue of discrimination in the area of employment. It appeared that at banana plantations, for example, indigenous workers did not enjoy the same rights as other non-indigenous workers in that sector, and he would appreciate more information on that situation.

Other Committee Experts raised questions and asked for further information on subjects pertaining to, among other things, the continuing concern that discrimination was classed as a misdemeanour in Costa Rica and subject to fines. With regard to the indigenous population, Experts noted, among others, the need for a policy on the situation of indigenous people that incorporated a gender perspective. It was also asked what was being done to support indigenous languages, to better the situation of indigenous children, and to revive traditional medicine. Several Experts were concerned about was happening with the "reformed" National Commission on Indigenous Affairs, it appeared to be the subject of an ongoing dispute. The report had stated that the reformed Commission was refocusing its attention on its primary objective "to improve the institution’s public image and to ensure it complies fully with the provisions of the law governing it, which assign to it the task of coordinating the activities of governmental and non-governmental institutions". Experts were concerned that that definition of the Commission's mandate meant that the body was only an advisory one, and did not have the ability to take decisions. An Expert wanted to know more about the special attorney for indigenous affairs and the activities of that office.

Specifically in terms of indigenous land issues, an Expert was concerned by the statistics in the report that showed that the majority of indigenous people lived outside of the indigenous territories. He had the impression that indigenous people were actually being squeezed out of their ancestral lands. Another statistic cited was that only 1 out of every 10 hectares of land in the indigenous territories was in conformity with the law, and that there were non-indigenous families in control of land parcels of over 5,000 hectares, which revealed a trend towards the concentration of indigenous land in the hands of non-indigenous peoples. Specifically in terms of legal rights to land, an Expert wondered if indigenous peoples had the right to use their own language in the courtroom in cases involving land disputes.

One Expert wondered why civil society had not introduced legislation to harmonize domestic legislation with Costa Rica's obligations under the Convention; another Expert wondered why the Executive had not done so.

On the issue of Afro-Costa Ricans, Experts asked, among others, whether there was a difference between the terms "Afro-Costa Rican" and "Black", as both terms had been used in the report. Also, why had there been no provision in the Census for people to categorize themselves as mestizo, or mixed. An Expert wondered what specific measures the Government was undertaking to better the situation of the Afro-Costa Rican population.

Response by Delegation to Oral Questions

Responding to oral questions put by Experts, the delegation acknowledged the reality that had been commented on so extensively by Experts – there were some vulnerable groups that had been left behind in the comprehensive development model Costa Rica had elaborated. The Government now wished to concentrate on raising the living standards of those vulnerable groups, whether they were indigenous women, Afro-Costa Ricans, or others.

Addressing questions about why the 2000 Census had not contained more options for identification of ethnicity, the delegation noted that this had been the first time that a census had been permitted to ask whether someone considered themselves to be part of an indigenous group, or Afro-Costa Rican. That was a departure from previous practice, as it had been held that the Constitutional guarantees to equality precluded the Government's ability to gather statistics on ethnicity. However, it had been recognized that, rather than promoting equality, a lack of statistics on ethnicity had meant that some groups were rendered invisible. It was hoped that in future censuses, more detailed information would be sought regarding ethnicity, but the 2001 census already represented a big advance. Regarding terminology, the term "black" had been used at times to refer to Afro-Costa Ricans, because it had been determined that that was how they themselves wished to be called.

As to the fact that discriminatory acts were treated as misdemeanours in Costa Rican law, the delegation said that the Legislative Assembly was now processing a bill for a new Penal Code. In that draft law, the penalty for discriminatory acts was increased. It was important to note that the Legislative Assembly had always had representation from all minority groups in the country; for the current four-year mandate, there were 7 deputies from areas where the majority were of African origin, as well as deputies with various religious affiliations. The Government was quite aware of the problem of the discrepancy between the Convention and the current Criminal Law, and the delegation would draw it to the attention of the Legislature with regard to the bill before them at the moment.

Furthermore, the delegation continued, as had been evidenced in the decisions of the Constitutional Court in amparo cases, the Convention was invoked as a basis for judgements, and some important instances of that had been set out in the report.

As to why the Executive had not brought legislative amendments itself, the delegation said that it had to be understood that there was one topic that had held up all others in the Costa Rican Legislature – the ratification of the Free Trade Agreement. Since President Arias Sanchez took power that had been a priority issue. The agreement had been signed in 2004, but the Legislative Assembly had still not ratified it. The President was now calling for a referendum. The result of all this was to paralyse legislative action in the country, because ratification of the Free Trade Agreement called for the enactment of a number of related laws. The referendum was scheduled for 7 October. It was hoped that after that, it would be possible to return to the legislative agenda concerning the Convention.

With regard to double discrimination, the delegation agreed that indigenous women were susceptible to such discrimination, in particular in the labour sphere. The Special Attorney of Indigenous Affairs, in particular, was tasked with addressing such issues.

On indigenous health, the delegation said that the rate of infant mortality was indeed higher in indigenous areas. That, however, had not been the result of discrimination, but was related to the remoteness of those areas and the attendant difficulties of delivering health services. There was a plan for the reduction of infant mortality and to improve perinatal health among indigenous people 2006-2010.

The delegation underscored that the President had recently undertaken a tour of the indigenous areas and had made a point of saying it was a great shame that fellow Costa Ricans were living in such conditions. There was social investment in those areas. An inter-ministerial effort had been launched on the basis of a $ 15 million budget surplus, targeted at major investment in education and health to address the situation of indigenous peoples. There were basic sanitary and health assistance mobile teams, which worked on preventive health issues by providing information on family planning, providing vaccinations, and other efforts. All those activities were taken in consultation with traditional medicine, and the policy had been developed with a gender approach.

In terms of education, there was an overall problem and lack of infrastructure in this area, not just in indigenous areas, the delegation said. There was a big effort under way to assign greater priority and more funds to build educational infrastructure. There were also specific projects to recover and encourage the use of indigenous languages, and a project targeting education infrastructure for indigenous and Afro-Costa Rican communities through a World Bank loan that was currently the subject of consultations with the communities involved. Moreover, there was a programme to combat the drop out rate, and progress had been achieved in bilingual education, among others, through a focus at educational institutions on the training of bilingual teachers. In partnership with the company Intel, a remote schooling project was also being carried out.

Further Oral Questions Posed by Experts

In a further round of questions, an Expert wondered how people of mixed race were considered in Costa Rica. Also, what impact had the conclusions and recommendations of the Black Parliament of the Americas had on Costa Rican laws or policies? An Expert wondered what was meant by the bill on the "restoration of human dignity to indigenous peoples"? There were many things that could be restored – such as land and property– but dignity was not one of them.

An Expert was concerned that Costa Rica had not fulfilled its obligations with regard to the Trafficking Protocol to which it was a party. That Protocol required not just the criminalization of trafficking, it also called for parties to formulate a plan of action. In that connection, did Costa Rica have any measures in place to address the situation of domestic workers, in particular female domestic workers, who were particularly vulnerable to exploitation?

An Expert wondered about what was being done to combat hate speech and incitement to acts of racial violence.

Replies by the Delegation

Responding to those questions and others, with regard to the bill on restoring dignity to indigenous peoples, the delegation wished to make it clear that that bill had been put forward by the Libertarian Party and involved terms related to their particular philosophy. The implication was that indigenous people did not have their dignity because they were governed by collective rights and did not have private land rights.

In terms of trafficking, the revision of the aliens and migration law sought to criminalize trafficking, the delegation said. But the Migration and Aliens Office, under the Ministry of Interior, was playing a very active role in this area. Recently, Costa Rica had hosted an experts meeting attended by a number of Latin American countries on trafficking. Also, in the border areas there was an awareness-raising campaign in place that targeted airports and banks or Western Union offices through the medium of brochures, posters and others to get the message across.

Regarding the Black Parliament, a deputy from the previous parliamentary session, and a member of the Afro-Costa Rican community, had attended the Black Parliament and been involved in organizing events to promote awareness about the community. There was also a National Black Day, which helped to draw attention to this population. As to the appellation "mestizo", the 2000 census did not provide a category of mixed, but it did have a space for "none of the above". Many people had put themselves in the "none of the above" category because they were afraid to face discrimination if they identified themselves as indigenous or Afro-Costa Rican.

As to who were the vulnerable groups, the delegation said that those at the lower end of the socio-economic scale were clearly more vulnerable. Also in this group were those in remote areas. Unfortunately, there was no infrastructure that provided equal treatment for all areas of the country. In addition to having very mountainous areas, there was a lot of jungle in Costa Rica which was almost impenetrable. Given the climate – with a rainy season of three to four months – it was virtually impossible to access the mountainous areas at certain times of the year. It was not just the indigenous who suffered from that situation, it also included a large number of whites.

Regarding refugees and the asylum process, the delegation said that Costa Rica was the second country in Latin America for hosting refugees. Only Ecuador hosted more. There were 13,000 people with refugee status in Costa Rica – 10,000 of whom were from Colombia – and 230 applications for refugee status were received every day. Asylum rights were enshrined in the Constitution. At one point, the right to asylum had been abused – with 100 to 200 refugee applications approved per day by officials who were being paid; investigations were under way into that situation. Now, a movement was afoot to more stringently review cases to ensure that national standards were met in determining refugee status.

Responding to numerous queries concerning the National Commission on Indigenous Affairs, the delegation noted that the Commission had originally been set up in 1973. At that time, it had an entirely different composition than it did now – including representatives of government ministries and agencies dealing with development and education, water and electricity. Now the Commission was made up of one delegate from each integrated development association, which were bodies that legally represented indigenous communities and acted as governments in each indigenous reserve. That meant that now the National Commission was made up exclusively of indigenous representatives. But there were still problems of representativeness, as not all of the integrated development associations had selected a delegate to represent them at the Commission.

Turning to the mandate of the National Commission, the delegation said that it was tasked with ensuring respect for the rights of indigenous communities, and to serve as a liaison with the inter-American organization of indigenous peoples, among others. It was true that the Autonomous Development of Indigenous Peoples Bill, if adopted, would change the mandate of the National Commission.

As to self-determination, the delegation pointed out that Costa Rica had been very involved in elaborating and had taken a very strong position in favour of the adoption of the United Nations Declaration on the Rights of Indigenous People. Costa Rica was also very involved on this issue at the inter-American level. Moreover, the Constitution, in article 1, fully acknowledged the rights of indigenous peoples, in line with ILO Convention No. 169 and the Universal Declaration of Human Rights.

Addressing indigenous land issues, the delegation stressed that the legal framework for land specifically provided for ownership rights in indigenous preserves. Property, in accordance with indigenous law, belonged to indigenous communities. Those communities could acquire rights and enter into relations of all sorts. However, as the land was often difficult to access, abuses had occurred and had been hard to redress. Deeds that had not respected the laws had been issued. No indigenous lands had been expropriated or could be expropriated by law. The Constitutional Court had specifically recognized that, but the decision had not been implemented as yet. The real problem lay with individuals, and the State needed to intervene in this matter.

The delegation noted that the Autonomous Development of Indigenous Peoples Bill, if adopted, would provide for any indigenous land that had been illegally sold or otherwise alienated by non-indigenous people to be immediately restituted, without further proceedings, and would not require any compensation to be paid.

Preliminary Concluding Observations

In preliminary concluding observations, ALEXEI AVTONOMOV, the Committee Expert who served as country Rapporteur for the report of Costa Rica, thanked the delegation for the productive and open dialogue, as well as the cooperative spirit they had shown.

The Committee understood the difficult situation of Costa Rica, in particular from the economic and social point of view, which impacted on the situation of indigenous peoples, Afro-Costa Ricans and other vulnerable groups in the country. The Committee had also noted that racial discrimination in Costa Rica was not the result of intentional discrimination on the part of the Government; in many cases discrimination was a result of historical economic and social situations. Nevertheless, each State's obligation under the Convention was to deal with the historical and economic consequences leading to discrimination. In the light of that, the Committee would try to formulate pragmatic and achievable recommendations to address that situation. It was the job of the Committee to be useful to States parties.

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