COMMITTEE ON THE
OF RACIAL DISCRIMINATION
CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 9 OF THE CONVENTION
Concluding observations of the Committee on the
Elimination of Racial Discrimination
The third, fourth,
fifth, sixth, seventh and eighth periodic reports of El Salvador, submitted
in one document (CERD/C/258/Add.1), were considered by the Committee at
its 1108th and 1109th meetings, held on 4 and 7 August 1995 (CERD/C/SR.1108
The reports were
introduced by a delegation from the State party, which stated that El Salvador
was committed to the preservation of indigenous culture. The State representative
further explained that 12 years of civil war had impeded his country's submission
of reports to the Committee during that time. He assured the Committee that
his country was eager to renew a constructive dialogue with the Committee
and would henceforth submit reports in a timely manner.
declared that the country had changed in only a few years. The peace process
that had begun with the signing of the Peace Accord of 1992 was irreversible.
It was reinforced by the change from a military to a civilian police force
and the establishment of the Office of the Procurator for the Protection
of Human Rights. The State had also benefited from the presence of the United
Nations Observer Mission in El Salvador (ONUSAL) and the technical cooperation
programmes of the Centre for Human Rights. In the latter connection, El
Salvador had received a human rights needs assessment mission from the Centre
as part of its technical cooperation programmes in which a member of the
Committee had participated.
With respect to
human rights treaties, the representative explained that El Salvador had
ratified the ILO Discrimination (Employment and Occupation) Convention,
1958 (No. 111), the Indigenous and Tribal Populations Convention, 1957 (No.
107) and other regional and international human rights treaties. With respect
to the Convention, however, the representative stated that in El Salvador
the phenomenon of racial discrimination did not exist. All persons in El
Salvador enjoyed equal rights, including indigenous people. At the same
time, he acknowledged that there was no precise demographic data on indigenous
persons, but such persons were few and lived in small groups in dispersed
settlements. The Government had programmes that aimed to preserve and diffuse
the indigenous languages.
Members of the
Committee expressed appreciation for the resumption of the dialogue between
the Committee and El Salvador. Mention was made of the need to evaluate
the report in the context of the civil war from which the State party was
emerging and expressed appreciation for its efforts reflected in both the
report and the core document. Members agreed that the El Salvador of today
was different from the El Salvador of only four years before and took note
of the fact that, as part of the dialogue between the Government and the
Frente Farabundo Martí para la Liberación Nacional, an agreement on human
rights was signed in 1990 at San José, containing the rights recognized
by El Salvador in its Constitution and within the framework of the human
rights instruments of the United Nations and the Organization of American
States. The agreement would be monitored by a human rights verification
concern that the report was incomplete and not in compliance with the Committee's
guidelines for the preparation of State reports. A member noted that paragraphs
6 to 49 of the report repeated the same information contained in the core
document, which meant that the report itself consisted only of paragraphs
1 to 5 and 50 to 60. There was no information on the situation of indigenous
persons, who, according to the last census in 1930, and taking into account
the estimated death toll from the 1932 uprising, should have numbered approximately
50,000 after the uprising. Although many of their descendants had been assimilated
into the mainstream society, there continued to exist small indigenous populations
that maintained their traditional lifestyles. These communities had limited
access to employment and educational opportunities, limited possession of
land titles and bank credit and other forms of economic opportunities. The
fact that the report failed to recognize the existence of these indigenous
communities, and that these communities had been extremely marginalized,
constituted a violation of the Convention and were matters of concern. Consequently,
the Committee member could not accept the assumption underlying the statement
in the report that "in view of the fact that Salvadoran society does
not have any problem of ethnic populations, the Government of El Salvador
considers it irrelevant and unnecessary to refer to the operative part of
the Convention ...".
A member referred
to article 201 of the Constitution, which provided that "no educational
establishment may refuse or admit students on the grounds of the nature
of the union of their parents or guardians or of social, racial, or political
difference". He asked whether such a provision still existed, why there
was no report thereon, what it meant in practice, whether it could be invoked
in court and whether there were any court rulings in that respect.
With respect to
article 1, paragraph 4, of the Convention, a member drew attention to the
fact that there was no indication in the Constitution concerning the implementation
of the provision.
With regard to
article 4 of the Convention, it was further indicated that the core document
referred to several institutions that were established for the protection
of human rights, including the Presidential Commissioner for Human Rights
and the Office of the Procurator for the Protection of Human Rights. A detailed
explanation was requested of their functions, mandates, activities and relationships
with the judiciary and Parliament. The delegation was also asked about the
possibility of invoking the Convention in courts of law and noted that while
the requirements of article 4 (a) of the Convention appeared to be met by
article 406 of the Criminal Code, article 4 (b) of the Convention had not
been implemented. A question was posed whether there had been any improvement
in the situation of communities of former refugees repatriated from neighbouring
countries, which apparently faced obstacles posed by the military with regard
to supplies and freedom of movement.
A member drew
attention to the fact that there was also no indication in the Constitution
concerning the implementation of the guarantees contained in article 2 of
the Convention, including whether the rights to life, personal security
and ownership of property were enjoyed in practical terms.
It was also noted
that no information was provided with respect to the implementation of article
5 of the Convention.
With respect to
article 6, concern was expressed that politically motivated acts of violence
continued to take place with impunity, since they were rarely followed by
an official investigation. In view of that situation, members expressed
grave concern over the adoption of the Amnesty Law and the failure to exclude
those who had violated human rights from serving in the military, the national
police, the judiciary or other branches of Government. They also commented
on the lack of information in the report on developments in the human rights
situation since the signing of the 1992 Peace Accord, whereas the Committee
had received information from other sources according to which past violators
of human rights enjoyed impunity and that violations had been committed
by the new civilian police. It was asked whether any specific plans were
in place for reparations, compensation and other action to guarantee that
human rights violations would not be repeated. Specific information was
requested regarding the implementation of the right to effective remedy,
as provided for in article 6 of the Convention.
with article 7, it was also pointed out that while the report asserted that
under the 1983 Constitution international treaties had force of law and
could be invoked in court, it was not in the juridical culture of El Salvador
to invoke international treaties. It was asked whether this was not an indication
of poor dissemination of information. One member emphasized the importance
of training law enforcement officials, on which the views of the Committee
were elaborated in its General Recommendation 13. The question was asked
what actions had been taken towards such training and what influence such
training had on the protection of human rights in the State party.
requested concerning migratory movements, particularly of refugees, both
from the State party in other countries and those seeking refuge in the
State party from other countries. It was suggested that the State party
undertake a study of its obligations under articles 2 to 7 of the Convention.
Other members expressed the view that the civil war was all the more reason
for stronger international supervision of the situation in the State party.
One member requested further explanation of article 406 of the Penal Code
and requested information on what would happen in October when ONUSAL was
to withdraw from the territory of the State party.
Members of the
Committee also requested that the State party accept the amendment to article
8, paragraph 6, of the Convention regarding financing of the Committee and
to submit its instrument of acceptance to the Secretary-General at an early
date. Some members recommended that the State party consider making a declaration
of acceptance of article 14 to recognize the competence of the Committee
to receive individual communications.
One member described
his participation in a needs assessment mission to the State party at the
end of May and early June. The mission was organized by the Centre for Human
Rights and took place within the framework of its technical cooperation
programmes. He explained that the independent expert on the human rights
situation in El Salvador had recommended that the Commission end the process
of monitoring and embark on the provision of advisory services. Advisory
services were recommended with respect to the consolidation of the parliamentary
process, reform of the organs of control over society, including the security
forces and civil police, development of new laws and definition of the future
role of the Procurator for Human Rights with regard to minorities. The member
explained that the mission was in response to the State's request for technical
assistance, that the information obtained during the mission was currently
being analysed by the Centre and that a report would be available when that
analysis was concluded.
In response to
the questions and comments of the members of the Committee, the representative
of the State party stated that the civil war had impeded the fulfilment
of its obligations under the Convention. He confirmed that the article prohibiting
racial discrimination had been maintained in the 1983 Constitution.
explained that the statement in the report that El Salvador had no significant
indigenous populations was due to methodological difficulties in identifying
and assessing the situation of indigenous persons. He stated that the characteristics
used elsewhere to identify ethnic groups, such as special clothing, religious
traditions or the use of native languages, were not evident in El Salvador.
He further explained that an intensive process of assimilation had been
taking place since the Spanish conquest. The civil war served to further
scatter the indigenous communities with the effect that they were now very
difficult to trace and had become, in that sense, invisible.
stated that the Government was aware that indigenous populations existed
and was making a concerted effort to preserve indigenous cultures and languages.
More attention would be paid to the process called transculturation as well
as to appropriate methods of identifying indigenous persons, perhaps with
the assistance of the Centre for Human Rights. He pledged that a report
would be submitted to the Committee in 1996 describing developments in those
With respect to
article 4, the representative further stated that the provision in the Criminal
Code which defined as an offence the incitement to hatred against specific
groups had not been altered. He agreed to provide information on the number
of cases involving that provision after consulting the authorities. There
were no court cases invoking the Convention to date, but training for judges
and lawyers on the use of international law was being provided by the Supreme
In response to
questions regarding the role of the public security forces in relation to
articles 6 and 7 of the Convention, the representatives explained that a
new Ministry of Public Security had been established in June 1995 and that
the training of police was undertaken by the new Public Security Academy.
It was hoped that new disciplinary regulations for the National Civil Police
would be approved within the month. Further, action had been taken to accelerate
the investigation of 117 cases of serious offences.
movements, the representatives informed the Committee that approximately
200,000 persons had left the country to seek refuge in neighbouring countries.
All had returned under a voluntary repatriation plan, which was recognized
as successful by the United Nations High Commissioner for Refugees. However,
there were about 500,000 persons who had been internally displaced as a
result of the conflict, which undoubtedly affected some indigenous communities,
in addition to a number of refugees from Honduras currently in El Salvador.
With respect to
the withdrawal of ONUSAL, the representative responded that the withdrawal
was a decision of the Security Council reflecting the belief that the peace
process had become irreversible and now rested with the people and Government
of El Salvador to continue. A respected expert in human rights had been
appointed as Procurator for the Protection of Human Rights; her office functioned
with full powers to promote and protect human rights as provided for in
article 194 of the Constitution and its implementing legislation. It had
already begun to receive complaints of human rights violations, a function
previously performed by ONUSAL. The Committee's observations had been noted
and efforts would be made to include all the information requested by the
Committee in the next periodic report.
At its 1124th
meeting, held on 16 August 1995, the Committee adopted the following concluding
of the third to eighth periodic reports of El Salvador, which were combined
in a single document, is welcomed. Appreciation is expressed for the opportunity
to re-establish the dialogue between the Committee and the State party since
the consideration of the combined initial and second periodic report in
1984, as well as for the constructive nature of the discussion. Appreciation
is also expressed for the oral answers which the delegation provided to
questions raised by members of the Committee.
The new era of
peace and democratization that has recently been established in the State
party following 11 years of civil war is a welcome development, as is the
signing of the Agreement on Human Rights in July 1990. The Agreement establishes
a basis for certain rights and freedoms being overseen by a human rights
verification mission. This development will reinforce action against racial
It is noted with
satisfaction that several institutions have been established with constitutional
and legal authority to defend human rights, specifically the Office of the
Procurator for the Protection of Human Rights, the Presidential Commissioner
for Human Rights, the Department of Human Rights within the Supreme Court
of Justice and the Commission on Justice and Human Rights under the Legislative
Note is taken
of the fact that, under the Constitution of 1983, international treaties,
including the International Convention on the Elimination of All Forms of
Racial Discrimination, are granted a higher status than domestic law and
may be invoked in the courts.
The State party's
request for advisory services and technical cooperation from the Centre
for Human Rights is noted with appreciation. In this connection, it is also
noted that the programme which has been organized for El Salvador contains
important elements, including the strengthening of human rights institutions
and education and training for officials involved in the protection of human
subjects of concern
It is regretted
that the possible deficiencies raised in connection with the second periodic
report have not been corrected in the present submission, particularly the
lack of information regarding the protection of specific rights and action
taken under the specific articles of the Convention and the reports' general
non-conformity with the guidelines of the Committee for the preparation
of State party reports. These problems continue to impede its ability to
monitor the fulfilment of the State party's responsibilities under the Convention.
of the State party that, because there are no physical distinctions between
the indigenous population and the population as a whole, and because the
number of indigenous persons is insignificant, no racial discrimination
exists in the State, is not acceptable. The Government's failure to acknowledge
the existence of persons of indigenous ethnic origin makes it difficult
for the Committee to evaluate the implementation of the Convention.
It is regretted
that no references to the rights of indigenous persons are made in the Constitution,
including their right to participate in decisions affecting their lands,
culture, traditions and the allocation of natural resources.
Deep concern is
expressed at the lack of effort by the authorities to collect information
regarding the situation of indigenous ethnic and other minorities which
could serve as an indication of the practical implementation of the Convention,
particularly when there appears to be clear evidence that the indigenous
minorities live in conditions of extreme economic marginalization.
recommends that the State party actively foster a legal culture that effectively
protects human rights by disseminating as widely as possible information
on the international human rights treaties to which it is party, among the
authorities responsible for the protection of human rights as well as among
the general public.
suggests that the State party take steps to ensure effective coordination
between the institutions established in the areas of human rights and requests
detailed information in the next periodic report on the legal functions
of these institutions, in particular the Procurator for the Protection of
Human Rights, their activities undertaken so far and the relationships with
each other and with the judiciary and Parliament. It specifically requests
information in the ninth periodic report of the State party on the actual
and envisaged roles of these institutions in the protection of the rights
of indigenous and other minorities.
recommends that reliable quantitative and qualitative information be systematically
collected and analysed to evaluate progress in the elimination of racial
discrimination and to monitor closely the situation of marginalized persons
and groups. It recommends that detailed demographic information be submitted
in the next periodic report on the categories of persons enumerated in article
1 of the Convention and in conformity with paragraph 8 of the Reporting
Guidelines. The Committee specifically recommends that information be included
in that report on the present situation of indigenous people, which at the
time of the last census in 1930 numbered approximately 50,000.
recommends that the State party request, as part of the technical cooperation
programme currently being implemented in conjunction with the Centre for
Human Rights, assistance with the collection of relevant information on
the economic and social situation and the legal status of individuals belonging
to ethnically distinguished groups in El Salvador, and with the preparation
of reports to be submitted to the treaty bodies. It suggests that the State
party undertake a thorough review of its obligations under, and its own
compliance with, articles 2 to 7 of the Convention. It suggests that technical
assistance may also be requested from the Committee in connection with such
recommends that the State party ratify the amendments to article 8, paragraph
6, of the Convention, adopted by the fourteenth meeting of States parties.
recommends that the State party's ninth periodic report, due on 30 December
1996, be a comprehensive report.