COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION Forty-seventh session CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 9 OF THE CONVENTION Concluding observations of the Committee on the Elimination of Racial Discrimination Mexico
353. The Committee considered the ninth and tenth periodic reports of Mexico, consolidated in one document (CERD/C/260/Add.1), at its 1104th and 1105th meetings, held on 2 and 3 August 1995 (see CERD/C/SR.1104 and 1105). Together with the ninth and tenth periodic reports, the Committee also examined the report containing additional information (CERD/C/286), requested by the Committee's decision No. 2 (46) dated 9 March 1995 in accordance with article 9, paragraph 1, of the Convention.
354. The reports were introduced by the representative of the State party, who reaffirmed that the phenomenon of racial discrimination did not exist in Mexico, although the most vulnerable groups in society, such as women, disabled persons, migrant workers and indigenous people, did suffer some forms of discrimination caused by socio-economic factors. Extreme poverty among the latter group was both a cause and a consequence of their economic, social and cultural marginalization and exposed them to discriminatory treatment in both rural and urban areas. It was difficult to quantify the indigenous population. Based on estimates made for strictly statistical purposes and the language criterion according to which indigenous persons are those speaking an indigenous language, there were 7 to 10 million indigenous people in Mexico. He acknowledged that the language criterion alone was inadequate and that the criterion of self-identification, for example, should be considered a fundamental criterion, in conformity with ILO Convention No. 169.
355. He went on to state that it was only since 1991 that Mexico, despite its age-old history as a State, had recognized itself legally as a multi-ethnic and multicultural nation. Until then, and since its accession to independence nearly two centuries previously, the indigenous populations had been regarded at best as peoples to be civilized and to be assimilated culturally. The meagre results of that policy of integrating the indigenous people implemented over several decades had brought it home to the Mexicans that it was a mistake to seek at all costs to build a homogeneous country and deny the deep-seated roots of the Mexican nation. Now that the cultural diversity of the Mexican population was recognized by the Constitution, whose article 4 had been amended to that effect, it was necessary to adjust the whole body of Mexican legislation in order to eradicate all discriminatory practices, particularly in the fields of access to natural resources, the administration of justice, the administrative organization of communities and education.
356. Introducing the additional report requested by the Committee at its forty-sixth session (decision No. 2 (46)) and dealing mainly with the conflict which had broken out in the State of Chiapas in 1994, he explained that the conflict was the painful expression of the despair caused by extreme poverty. He said that, right from the beginning of the conflict, the Federal Government had acknowledged the legitimacy of some of the reasons that had led members of the indigenous communities to rebel; those reasons stemmed from economic and social marginalization and had nothing to do with racism or racial discrimination. The Zapatista National Liberation Army (EZLN) itself had not reported any problems of racial discrimination within the meaning of the Convention. He then described the measures and programmes adopted by the Government for the State of Chiapas, amounting to some $129 million.
357. The members of the Committee thanked the State party for its detailed, frank reports and for submitting additional written information on the situation in the State of Chiapas.
358. Members of the Committee expressed their difference of opinion with the Government on the kind of discrimination suffered by many indigenous people in Mexico, pointing out that it did in fact fall within the scope of articles 2 and 5 of the Convention. The discriminatory nature of policies or practices that perpetuated the marginalization and impoverishment of certain ethnic groups was indeed a form of racial discrimination within the meaning of the Convention.
359. Committee members acknowledged that, by recognizing the specific rights of the indigenous communities, the amendment to article 4 of the Mexican Constitution marked an important step in the transition from a mestizo society to a multi-cultural nation. Without statutes and measures to implement that provision, however, the constitutional reform would be of little practical effect. Members of the Committee also noted that, in many instances, the oppression of the indigenous communities was due less to the absence of legal rules than to the fact that economic interest groups and local politicians pursued their abusive practices to the detriment of indigenous groups with impunity.
360. Members of the Committee noted with interest the steps taken by the Government to improve the economic and social conditions of the indigenous communities, particularly the programmes designed to overcome extreme poverty, such as the National Solidarity Programme and the National Programme for the Development of the Indigenous Peoples. The innovative character of certain approaches was commended. A most interesting new feature, for example, was the programme for the reform of the justice system which takes into account Indian customs in court proceedings. It was felt that this would also improve mutual cultural recognition and consultation among all sectors of society. That programme was to be classified among the measures of positive discrimination provided for in article 1 of the Convention.
361. Committee members drew attention, however, to the lack of information in the report by the State party on the real impact of those programmes. They expressed their concern about allegations from reliable sources about their ineffectiveness and the corrupt practices of certain local officials or powerful landowners. In that connection, members of the Committee stressed the importance of selecting social indicators that would make it possible to decide which sectors merited a priority input of resources and to determine whether the programmes had the expected impact.
362. Referring to the various bodies set up at the federal level to promote and protect the rights of indigenous peoples, members of the Committee acknowledged that the measures taken by them were undeniably important, but wondered whether the fact that there were so many of them did not entail a risk of bureaucratization and duplication. It was essential to ensure smooth coordination between the various bodies. Committee members also wished to know whether members of the indigenous communities took part in the management of those institutions in positions of responsibility.
363. Members of the Committee raised a question that was of fundamental importance for the indigenous populations, that of land, which was crucial to their subsistence, but also to their identity. There was evidence that the administrative measures taken by the Mexican Government were insufficient to guarantee fair and equitable treatment of members of indigenous communities in the process of land distribution. For decades, landowners had been illegally dispossessing the indigenous peoples of their lands. The Indians had been gradually driven from the fertile lands along the Pacific coast towards the central highlands and finally to the rainforest in the east, which was ill suited to agriculture. Members of the Committee noted that the Mexican Government had long been accused by human rights organizations of doing nothing to put an end to the land-related violence in rural areas, regarding it as inevitable. Committee members also observed that the indigenous communities in Mexico viewed the recent amendment to article 27 of the Constitution and the promulgation of the new agrarian law in 1992 as a further threat to their already fragile economic activities and to their identity. Moreover, the economic situation of the indigenous communities seemed to have deteriorated since Mexico's signing of the North American Free Trade Agreement (NAFTA). Members of the Committee requested more information on the practical effects of the 1992 constitutional reform and on the Government's response to EZLN demands with regard to land.
364. Turning to the question of the conflict in the State of Chiapas, members of the Committee, welcoming the Government's efforts to find a political rather than a military solution to the conflict, wished to know what measures had been taken to put an end to the activities of the paramilitary groups still present there, whether the detainees who had not yet been released had benefited from fair and equitable legal procedures and whether the civilians and the military personnel responsible for the disappearances, arbitrary executions and torture had been arrested and brought to justice.
365. On the subject of article 4 of the Convention, members of the Committee noted that there was a continuing misunderstanding between the Committee and the Mexican Government, which maintained that no specific legislation was needed to implement that article because the question of the indigenous people was never seen in terms of racial discrimination. That position did not meet the requirements of the Committee, which considered that specific measures must be adopted, even when there was no evidence of racist phenomena in a country, if only to prevent racial or ethnic discrimination and for educational purposes.
366. With regard to article 5 of the Convention, members of the Committee noted that, as the Mexican Government itself acknowledged with great candour, the indigenous populations were still in fact subject to discrimination in many areas, such as education and training in general, the right to their own language and culture, health, access to a nutritious and balanced diet, access to land ownership, access to infrastructure like the road network and other means of communication and access to justice. Committee members again pointed to the inadequacy of the steps taken and the lack of clear information on their impact. They requested the State party to provide more details on the implementation of article 5 of the Convention in the next periodic report.
367. On the subject of article 6 of the Convention, it was noted that, although it appeared that the Convention could be invoked directly before the courts in a case of racial discrimination, nothing had been said about the kind of sentences that might be handed down by the judge in such a case.
368. The information provided on article 7 of the Convention was noted with great interest by the Committee, which considered that the prospects afforded by the steps already taken were most promising. It was felt that since Mexico's cultural heritage was unique it should be cultivated, developed and made widely known. Encouraging the Government to continue with the dissemination of the ancestral culture of the indigenous population, the Committee recommended that the State party should associate the indigenous communities of other countries with such events, as had already been done with Bolivia, in order to foster a sense of cultural solidarity.
369. Replying to Committee members' questions and comments, the representative of the State party explained that the amendment to article 27 of the Constitution had been justified by the fact that there was no longer enough land available for distribution and that the amendment had not affected the existing social guarantees in agrarian matters, including the ban on large estates.
370. The representative affirmed the Government's will to leave no violation committed during the events in the State of Chiapas unpunished and offered to inform the United Nations Centre for Human Rights of the proceedings of inquiries conducted and sentences handed down in that connection. He also specified that all the rebels detained had been released as of July 1994 and invited the members of the Committee to read the report of the International Committee of the Red Cross, which had been present in Chiapas during the 18 months following the outbreak of the conflict.
371. The representative also informed the Committee that one of the points on which agreement had been reached with the EZLN, the revision of the Penal Code, was in the process of being implemented.
372. Lastly, the representative assured the members of the Committee that the next periodic report of Mexico would contain more information on the implementation of article 5 of the Convention.
Concluding observations
373. At its 1124th meeting, held on 16 August 1995, the Committee adopted the following concluding observations:
(a) Introduction
374. The submission by the State party of a detailed and frank periodic report, prepared in accordance with the Committee's revised guidelines for the preparation of reports, and of additional written information on the situation prevailing in the State of Chiapas, requested by the Committee's decision 2 (46) on 29 March 1995 during its 46th session is welcomed. Appreciation is also expressed for the supplementary information provided orally by the delegation of the State party.
375. It is noted that the State party has not made the declaration provided for in article 14 of the Convention, and some members requested that the possibility of such a declaration be considered.
(b) Positive aspects
376. The legislative and other measures adopted by the government in favour of the indigenous population, in accordance with article 2 of the Convention, are welcomed. It is noted with satisfaction in particular that the amendment to article 4 of the Constitution in January 1992 represents a fundamental shift in the State party's policy towards indigenous peoples, since it states that the Mexican nation has a multicultural composition originally based on its indigenous peoples and recognizes, for the first time since Mexico's independence, special constitutional rights for the indigenous people living on its territory.
377. As regards the Chiapas conflict, it is noted with satisfaction that in January 1994, the government decided to take steps to seek a political rather than a military solution, unilaterally declared a cease-fire, decreed a general amnesty and established the National Commission for Comprehensive Development and Social Justice for Indigenous Peoples.
378. The efforts made by the State party to set up a bilingual-bicultural education system in favour of the indigenous groups are welcomed.
379. The amendment of articles 18 to 22 of the Constitution intended to expand the constitutional rights of accused persons in criminal proceedings of indigenous origin, as well as the ongoing revision of the Penal and Criminal Procedure Codes, are also noted with satisfaction.
(c) Principal subjects of concern
380. The situation of extreme poverty and marginalization of the majority of the indigenous population in Mexico is a matter of concern. Such a situation has complex causes, some of them stemming from the impact of the encounter of civilizations, as well as the consequences of the recent internationalization of the economy for social policies in Mexico. It has been and still is the responsibility of the Government to improve the economic and social situation of the indigenous population of Mexico.
381. Concern is expressed at the lack of information in the State party's reports on the actual implementation of constitutional and legal measures, and on the impact of the various policies and programmes adopted by Mexico in applying the provisions of the Convention.
382. Particular concern is expressed that the State party does not seem to perceive that pervasive discrimination being suffered by the 56 indigenous groups living in Mexico falls under the definition given to racial discrimination in article 1 of the Convention. The description of their plight merely as an unequal participation in social and economic development is inadequate.
383. Concern is also expressed that too little attention is given by the State party to the effects on the economic situation of the indigenous communities, of adherence to the North American Free Trade Agreement and of the related 1992 constitutional and legislative reform of the land ownership system.
384. While the achievements of the National Indigenous Institute are commended, note is taken of the insufficient coordination between the various institutes and commissions which are charged with protecting the rights of the indigenous communities in Mexico, as well as their bureaucratic functioning.
385. Concern is expressed that the State party still has not implemented the provisions in article 4 of the Convention.
386. Concern continues regarding the serious discrimination indigenous peoples have to face in respect of the enjoyment of their civil, political, economic, social and cultural rights. Particular concern is expressed at the inequitable treatment of indigenous people in the process of land distribution, including restitution, and at the violent and illegal resolution of many land disputes, at the amendment to article 27 of the Constitution, and at the lack of support given to the bilingual-bicultural education system.
(d) Suggestions and recommendations
387. It is not clear how the Convention is incorporated into the Federal and State legal systems nor whether the provisions of the Convention can be directly invoked before the courts.
388. The Committee recommends that the State party pursue its efforts to analyse the root causes of the socio-economic marginalization faced by the indigenous population of Mexico and continue its attempts to harmonize indigenous customs with the positive legal order.
389. The Committee draws the attention of the State party to the necessity of adopting indicators to evaluate the policies and programmes aimed at the protection and promotion of the indigenous peoples' rights.
390. The Committee recommends that the State party review the functioning of and the coordination between the various institutions in charge of the protection of the indigenous people's rights.
391. The Committee reaffirms that the provisions of article 4, paragraphs (a) and (b), of the Convention are of a mandatory character as stated in general recommendation XV (32) of the Committee and recommends that the State party implement each of the obligations.
392. The Committee wishes the Government of Mexico to provide, in its next report, detailed information on the implementation of article 5 of the Convention.
393. The Committee strongly recommends that the State party find a fair and equitable solution for the distribution, including restitution, of lands. As far as land disputes are concerned, all necessary steps should be taken to ensure that the rule of law is applied without improper interference in particular by powerful landowners.
394. The Committee strongly recommends that the State party make an increased effort in promoting affirmative measures in the field of education and training.
395. The Committee recommends that the Mexican Government ensure that violations of indigenous peoples' human rights be investigated, and that the victims receive compensation.
396. Welcome is expressed for the proposal, made orally by the delegation, of providing the United Nations Centre for Human Rights with regular and detailed information in that respect.
397. The Committee recommends that the State party ratify the amendments to article 8, paragraph 6, of the Convention, adopted by the fourteenth meeting of States parties.
398. The Committee recommends that the State party's eleventh periodic report, due on 22 March 1996, be an updating report.
