REPRESENTATION (article 24) - MEXICO - C169 - 2004

Union of Academics of the National Institute of Anthropology and History (SAINAH)

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Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Union of Academics of the National Institute of Anthropology and History (SAINAH)

Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Union of Academics of the National Institute of Anthropology and History (SAINAH)

Decision

The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

Report of the Director-General Third Supplementary Report: Report of the Committee set up to examine the representation alleging non-observance by Mexico of the Indigenous and Tribal Peoples Convention, 1989 (No. 169), made under article 24 of the ILO Constitution by the Union of Academics of the National Institute of Anthropology and History (SAINAH), the Union of Workers of the Autonomous University of Mexico (STUNAM), the Independent Union of Workers of La Jornada (SITRAJOR) and the Authentic Workers' Front (FAT)
I. Introduction
1. In a communication dated 20 August 2001, the Union of Academics of the National Institute of Anthropology and History (SAINAH) made a representation to the International Labour Office under article 24 of the Constitution of the International Labour Organization, alleging that the Government of Mexico had failed to observe the provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
2. In a communication dated 4 September 2001, the Union of Workers of the Autonomous University of Mexico (STUNAM) and the Independent Union of Workers of La Jornada (SITRAJOR) made a representation to the International Labour Office alleging that the Government of Mexico had failed to observe the provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
3. In a communication dated 10 October 2001, the Authentic Workers' Front (FAT) made a representation to the International Labour Office under article 24 of the Constitution of the International Labour Organization, alleging that the Government of Mexico had failed to observe the provisions of the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
4. Mexico ratified Convention No. 169 on 5 September 1990 and the Convention is in force in that country.
5. The provisions of the Constitution of the International Labour Organization concerning the submission of representations are as follows:
Article 24
In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
Article 25
If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
6. The procedure to be followed in the case of representations is governed by the Standing Orders concerning the procedure for the examination of representations under articles 24 and 25 of the Constitution of the International Labour Organization, as revised by the Governing Body at its 212th Session (March 1980).
7. In accordance with article 1 and article 2, paragraph 1, of the Standing Orders, the Director-General acknowledged receipt of the representation, informed the Government of Mexico thereof and brought the representation before the Officers of the Governing Body.
8. At its 282nd Session (November 2001), on the recommendation of its Officers, the Governing Body decided that the first two representations, i.e. those made by SAINAH and by SITRAJOR and STUNAM, were receivable and postponed the setting up of a committee to examine them until its March 2002 session. At its 283rd Session (March 2002), on the recommendation of its Officers, the Governing Body decided that the representation made by FAT was receivable and set up a committee to examine it, composed of Mr. Felipe Costi Santarosa (Government member, Brazil), Mr. Francisco Díaz Garaycoa (Employer member, Ecuador) and Mr. J. Olivio Miranda Oliveira (Worker member, Brazil). Owing to the fact that he had ceased to be a member of the Governing Body, Mr. J. Olivio Miranda Oliveira was replaced by Mr. Kjeld A. Jakobsen (Worker member, Brazil), who, for the same reason, was in turn replaced by Mr. Jesús Urbieta (Worker member, Venezuela).
9. In accordance with article 4, paragraph 1, clauses (a) and (c) of the Standing Orders, the Committee invited the Government to send its observations on the representations and requested the associations which had made the representations to furnish all further information that they wished to make available. The Committee will not list all the additional information and communications received owing to the extensive exchange of correspondence from the beginning of the process up to the present time.
10. The Committee notes that in one communication the Government of Mexico alleged that FAT could not make a representation under article 24 of the Constitution, arguing that it is not a true industrial association of workers within the meaning of article 24. At the request of the Committee, the Office sought information from FAT on its composition and statutes, which was received on 12 November 2002. The Committee concluded that there is no clear evidence that would allow FAT to be classified as an industrial association of workers, as required under article 24. From this conclusion it follows that the communication from FAT does not constitute a representation which may be examined by the tripartite committee. The Committee therefore examined the content of the representations made by SAINAH, STUNAM and SITRAJOR.
11. In communications dated 25 and 30 September 2002 the Government sent its observations on the allegations.
12. The Committee recalls that the application of the Convention by the Government of Mexico has already been examined by the Governing Body. In 1996, the National Trade Union of Education Workers (SNTE) made a representation and in June 1998 the Governing Body adopted the report of the tripartite committee set up to examine it. In 1998, the Radical Trade Union of Metal and Associated Workers made a representation and in November 1999 the Governing Body adopted the report of the tripartite committee set up to examine it.
13. The most recent observations from the Committee of Experts on the Application of Conventions and Recommendations (CEACR) on the application of the Convention in Mexico date from 2001, given that the procedure of monitoring the application in accordance with article 22 of the Constitution was suspended as a result of the representations being examined in this report.
14. The representations refer to the application of various Articles of the Convention. One of them contains substantial allegations regarding the application of the right to consultation, provided for in Article 6 of the Convention, during the process of drawing up the constitutional reforms on indigenous rights and culture promulgated on 14 August 2001. The second of the representations refers to the alleged non-observance of the Convention as a whole and, in particular, of its most important provisions. Both representations thus refer to the content of the reforms as an underlying issue.
II. Examination of the representation on the violation of Article 6 of the Convention (consultation)
A. Allegations made by the complainant organizations
Background
15. The present representation alleges, first of all, violation by Mexico of Article 6 of the Convention in the legislative process leading to the approval of the Decree on Constitutional Reform in the Areas of Indigenous Rights and Culture (Diario Oficial [Mexico's Federal Register], 14 August 2001).
16. The complainants give details of the events which preceded the aforementioned process of constitutional reform, as summarized below. Convention No. 169 was ratified by Mexico in 1990 and entered into force in September 1991. In 1992, before the events referred to in this representation, article 4 of the Mexican Political Constitution was reformed, confirming the multicultural composition of the Mexican nation, which was originally based on its indigenous peoples, and defining some general objectives to be developed in legislation at a later date. The complainants state that this article was not developed, due in part to opposition from the indigenous movement. According to the complainants, this opposition was based on the fact that the indigenous movement considered that its rights were not being properly recognized in the Constitution, and that instead it was being offered mere objectives which did not reflect any of the fundamental demands of the indigenous peoples, such as the recognition that indigenous peoples held legal rights and recognition of their right to autonomy. Section VII of article 27 of the Mexican Political Constitution was also reformed, removing guarantees of imprescriptibility, unattachability and inalienability from cooperative lands (ejidos), one of the most common forms of land ownership among the indigenous peoples of Mexico. The law which regulates article 27 did not regulate section VII of this article.
17. The complainants recall that, in 1994, there was an outbreak of violence in Chiapas. The Zapatista National Liberation Army (EZLN) made its appearance in the same year, demanding a range of rights for indigenous peoples and communities in Chiapas and indigenous peoples in the rest of the constituent states of the nation. In March 1995, negotiations began between the EZLN and the Federal Executive Authority within the framework of the law for dialogue, conciliation and dignified peace in Chiapas.
18. The complainants further state that, at the same time, the National Congress, together with the Ministry of the Interior, called a National Consultation on Indigenous Rights and Participation on 10 October 1995. This, according to the Government, "was a broad national consultation process on rights and indigenous participation, involving almost 12,000 people divided into 30 forums, resulting in around 9,000 suggestions aimed at promoting reforms to the Constitution and the legislation relating to it, as well as [ ] meetings with indigenous communities and peoples involving approximately 11,000 individuals".
19. On 16 February 1996, the San Andrés Larraínzar Agreements, based in large part on Convention No. 169, were signed between the Government and the EZLN. These agreements made provision, among other things, for "the creation of a new legal framework that will establish a new relationship between the indigenous peoples and the State".
20. The constitutional initiative was entrusted by the parties in the conflict to the Commission for Peace and Reconciliation (COCOPA) of the federal legislation which, on 29 November 1996, presented an initiative for constitutional reform based on Convention No. 169 and the San Andrés Agreements. According to the complainants, despite the fact that the initiative did not bring together all the points contained in the San Andrés Agreements, it was accepted by the EZLN and the majority of indigenous organizations but not by the Executive Authority. Negotiations between the EZLN and the Executive Authority, along with consultations between the Executive Authority and various indigenous organizations, have been at a standstill, according to the complainants, since December 1996.
21. The complainants recall that the CEACR noted in 1999 that it was "concerned by the apparent lack of a dialogue between the Government and the indigenous peoples which would contribute to resolving the problems affecting them".
22. On 5 December 2000, after a change of Government, the new President of Mexico presented the initiative on constitutional reform drawn up by COCOPA to the Senate. In January 2001, the Senate began to debate the reform and set up a plural Subcommittee on Constitutional Reform in indigenous matters, comprising the Chamber's own committees on constitutional points, legislative studies and indigenous matters.
23. On 24 February 2001, the March for Indigenous Dignity began and, on 28 March 2004, the EZLN and the Indigenous National Congress (CNI) defended the COCOPA initiative in the Chamber of Deputies of the National Congress.
24. On 25 April 2001, the Senate of the Republic approved the report on the draft decree, while making substantial modifications, according to the complainants, to the COCOPA initiative. Specifically, the report added a second and third paragraph to article 1, amended article 2, repealed the first paragraph of article 4, added a sixth paragraph to article 18 and added a final paragraph to the third section of article 115 of the Constitution.
25. This draft was approved by the Chamber of Deputies on 28 April 2001.
26. On 30 April, it was rejected by the EZLN; on 1 May, it was rejected by the CNI; on 11 June, it was rejected by the Millennium Conference of Indigenous Peoples, held in Panama; and on 19 June, 3,000 individuals, organizations and groups signed a document "for the recognition of indigenous rights and culture".
27. In accordance with article 135 of the Mexican Political Constitution, the draft was sent to the legislative authorities of the states and was approved by 16 out of 32 state congresses, being rejected by those states where the highest percentage of the indigenous population is concentrated, among them, Baja California del Sur, Chiapas, Hidalgo, Mexico State, Morelos, Oaxaca, San Luis Potosí, Sinaloa and Zacatecas.
28. On 14 August, the Federal Executive Authority promulgated the contested decree, which, according to the complainants, had a direct effect on the spheres of interest and rights of indigenous peoples by examining questions relating to the right to ownership or possession of land, the use and enjoyment of natural resources on their territories, the right of these peoples to development and the right to participate in and conserve their own institutions.
The concept of violation according to the complainants
29. According to the complainants, the contested process of constitutional reform was begun on 5 December 2000, and includes the drawing up and approval of the report by the Senate on 25 April 2001 and by the Chamber of Deputies on 28 April 2001 and the promulgation of the decree on 14 August 2001.
30. The complainants allege that the process which took place between 5 December 2000 and 14 August 2001 constitutes a single legislative process, independent of previous acts, and claim that, as such, the procedural requirement of consultation with indigenous peoples, which is required whenever a legislative act is passed which may affect them directly, should have been carried out.
31. The complainants, without entering into judgements on the validity or otherwise of the previous consultations, maintain that this act of constitutional reform is independent of the consultation initiatives promoted by the Executive within the framework of the process of dialogue and peace-making in Chiapas begun in 1996 and interrupted in 1998. They argue that the idea of reforming the Constitution was agreed in the San Andrés Agreements (16 February 1996) and was followed by a process of reform which began formally when President Zedillo submitted the initiative to the National Congress on 15 March 1998, but that, as a consequence of the breakdown in negotiations, the initiative was never discussed.
32. When President Fox presented the initiative in 2000 it was, according to the complainants, part of a separate legislative process.
33. The complainants add that the text of the COCOPA initiative had also not been the subject of formal consultations by the Mexican State, in the terms established by the Convention. Although it was the subject of consultation, this was promoted by bodies distinct from the state apparatus and in terms which fell outside the scope of Article 6. The complainants maintain that consultation should be formal and undelegable.
34. According to the complainants, the legislative process leading to the approval and promulgation of the Decree on Constitutional Reform in the Areas of Indigenous Rights and Culture violated Article 6 of the Convention by failing to provide the procedural safeguards established therein with regard to the right of indigenous peoples to be consulted in advance, in good faith and in a form appropriate to the circumstances, at all levels, with the objective of reaching an agreement through their representative institutions.
35. The complainants note that, within the institutional framework of the National Congress, the process of information and public hearings was carried out by the plural Subcommittee on Constitutional Reform in indigenous matters in the period from 12 March to 5 April 2001. According to the complainants, the Subcommittee stated that its objective was to have "a broad-based consultation to hear comments from the different parties involved, such as rural workers' organizations, academics, professors and even the federal State". It goes on to list the various activities carried out by the Subcommittee between 12 March and 5 April 2001: on 17 March 2001, an international seminar on "Constitution and Indigenous Rights" was held, and the committees involved in the Subcommittee held discussions for the analysis of constitutional reform, as a result of the agreement between the chairpersons of the various committees, who agreed to analyse the requests made by social groups for hearings at which to present their points of view. Furthermore, on 4 April, the "Forum on Women and the Law on Indigenous Rights and Culture" was held with the aim of making society in general aware of the situation of indigenous women. The complainants also mention meetings with business organizations and the National Rural Workers' Confederation and lists meetings held with certain indigenous groups.
36. The complainants state that, on 5 April 2001, members of the Subcommittee on Constitutional Reform decided to end the public hearings and proceed with the report. They also note that, according to Senate press bulletins which they quote, the Subcommittee stressed "the importance of public hearings at which numerous groups of indigenous organizations, academics, experts and interested parties had expressed various concerns, which were then taken into account in continuing to draw up the report on the initiatives of the law on indigenous rights and culture". They add that the stenographic records of the Subcommittee are not for public information.
37. The complainants allege that, when the new draft reforms drawn up by the Senate and approved by Congress were submitted to the states, participation of indigenous persons in state congresses was, in general, prevented. They note that, in Puebla, an indigenous representative of ethnic groups from the Sierra Norte was expressly forbidden to take the floor on the grounds that the institutional practice and regulations of Congress did not allow it. A member of the State Congress said that, bearing in mind internal regulations and organic municipal law, it was not possible for an indigenous person to speak from the rostrum. In Michoacán, police cordons were set up by Congress to deny indigenous leaders access and, in some cases, indigenous persons were even prosecuted, for example, in Guerrero, where criminal charges were brought against leaders who were occupying the congress building to stop Congress from sitting. Other congresses were indifferent to indigenous demands to reject the report but claimed that they had taken both indigenous and non-indigenous opinions into account. Such appears to have been the case in Chihuahua, where a petition from 66 Raramuri governors was received asking for the new draft reforms to be rejected, but the response of Congress, according to the complainants, was to question the representativeness of the indigenous governors within the criteria of formal and representative democracy. They state that, in the stenographic records of the session at which the reforms were approved, it was noted that a non-governmental organization expressed its rejection of the reforms, and it was argued in the same records that the organization was wrong to call for rejection. They point out that, in Durango, a document from two indigenous governors in favour of the report was read out. The complainants conclude that in no way can it be considered that the right to prior consultation was upheld, given that in the majority of states there were no proceedings appropriate to the circumstances of these peoples and in some states they were carried out in evident bad faith.
38. The closest thing to consultation took place, according to the complainants, in Chiapas and Oaxaca. In Chiapas, the legislators rejected the report of the National Congress and, in their records, stated that forums for analysis had been held with academic experts on issues of indigenous rights and culture. They state that, on 22, 23, 24 and 25 July, nine consultation forums were held with the participation of approximately 10,000 people, both indigenous and non-indigenous. In the case of the local congress in Oaxaca, it was stated that note was taken of the social rejection directly expressed to the deputies by the Bartolomé Carrasco Centre for Human Rights, the Support Centre for the Oaxaca Popular Movement, the Indian Organization for Human Rights in Oaxaca and numerous local authorities from Oaxaca State.
39. According to the complainants, the various events mentioned, which took place between 12 March and 5 April 2001, did not take account of the consultation process laid down in Convention No. 169. They claim that "at the risk of distorting the right of indigenous peoples to consultation, a conceptual distinction must be made between an act of consultation which conforms to the Convention and any act of nominal consultation, information or public hearing carried out by the public authorities". They maintain that "the flexible formulation of the requirements of Article 6 of Convention No. 169 must not be an obstacle to their effective application".
40. In the opinion of the authors of the representation, neither indigenous peoples nor their representatives were consulted. They state that public reflection on indigenous rights, be it academic or institutional in nature, represents a laudable and necessary effort but does not give a voice directly to the people affected and, as such, is not directly linked to the right of indigenous peoples to consultation under Article 6.
41. They further stress that hearings held in the Senate were more a response to petitions made by persons and organizations participating therein than an active, systematic and structured call for opinions, in accordance with the criterion of representativity, on the part of public authorities. It would have been necessary, in their opinion, to define which were the indigenous peoples who might be affected. They consider that, in the case of a federal constitutional reform, the interested parties are all those Mexican citizens considered to be indigenous in accordance with the criteria laid down in Article 1 of the Convention, i.e. approximately 10 per cent of the population. They state that, in order to be adequate, consultation should be carried out on a basis of objective, reasonable and verifiable representativity criteria and that the size of the population possibly affected must not be used as a pretext for the call for opinions to be carried out in an arbitrary and unreasoned fashion.
42. They also allege that, for the consultation to have been considered adequate, it would have had to have been carried out at all levels, and that the federal authorities should have consulted representative organizations at national level while state authorities consulted indigenous organizations and institutions within their own states. They draw the conclusion that, in analysing the process, it becomes irrefutably apparent that there was no adequate planning for consultations on the part of the public authorities.
43. They further maintain that, from the information available, it cannot be deduced that there was any action aimed at providing information and training for indigenous peoples, communities or representatives on the areas covered by the reforms.
44. They state that neither do the various hearings and public debates which were held allow one to draw the conclusion that they were intended to generate a consensus. If one accepts that consultation, as defined in the Convention, presupposes a process of dialogue and negotiation, it seems evident, according to the complainants, that in particular the hearings held by the Subcommittee on Constitutional Reform, at which certain people expressed a range of concerns regarding the reforms, cannot be understood to have been an act of consultation within the meaning of the Convention. These hearings had neither the continuity in time and substance nor the previous information and necessary debates to reach an agreement.
45. According to the complainants, it is sufficient to link the faults of the consultation process in this specific case with the incomplete application of the provisions of the Convention within the Mexican legal and institutional system, an obligation imposed by both Article 2 and Article 6 of the Convention.
46. Furthermore, the complainants believe that the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), should be applied with the aim of interpreting, clarifying and integrating the concept of consultation, fundamentally with respect to the criteria of representativeness and form.
B. The Government's observations
Observations on the background
47. In its summary, the Government of Mexico states that it fulfilled its obligation under Article 6 of Convention No. 169 with regard to the requirement to consult the peoples concerned whenever consideration is being given to legislative or administrative measures which may affect them directly, before and during the procedure of approving the constitutional reform on indigenous rights and culture.
48. As regards the claim that the 1992 reform to article 4 of the Constitution was opposed by the indigenous movement, the Government states that the complainants do not specify to which indigenous movement they are referring, nor how, when or where the opposition was made. It also states that they are incorrect to say that this article had not been applied in legislation, since Mexican legislation has made significant advances in the area of indigenous rights and culture on the basis of this reform. Furthermore, with the reform of 14 August 2001, the text of this article is contained in article 2 of the Constitution of Mexico, of which indigenous rights and culture form an integral part, which establishes that indigenous peoples and communities shall be recognized in the constitutions and laws of the constituent states of the Federation.
49. With reference to the reform of article 27 of the Constitution of Mexico, published in the Diario Oficial on 6 January 1992, it notes that the reform allows the privatization of lands held by cooperatives and communities, if the indigenous communities so decide, and also establishes ownership and integrity of the land. This paragraph is regulated by agrarian law, which stipulates that only the general assembly of the community has the power to decide whether the lands or the cooperative or the community should become private property.
50. It states that the reform thus responds to the principal indigenous demands and, leaving aside the rights acquired by third parties or persons belonging to the community, establishes the use and enjoyment of natural resources in the places in which indigenous people live or which they occupy, except where these form part of strategic areas.
51. The Government also provides detailed information on the various laws promulgated on the basis of article 4 of the Constitution.
52. Referring to the background to the constitutional reform contested by the complainants, the Government states that, initially, the National Congress, together with the Ministry of the Interior, called a National Consultation on Indigenous Rights and Participation on 10 October 1995, involving almost 12,000 people in 30 forums, which yielded 9,000 suggestions for promoting reforms within the constitutional framework, and that this demonstrates the willingness of the Government of Mexico to encourage participation of indigenous peoples in taking decisions on issues which affect them and that, in spite of some problems encountered along the way, it has endeavoured to keep the channels of dialogue and conciliation open.
53. With regard to COCOPA, the Government reports that it has had several meetings with members of COCOPA with the aim of maintaining permanent communication with the Committee and continuing its activities intended to create a favourable climate for dialogue and peace with justice in Chiapas. The Government states that it has laid the foundation to begin confronting directly the situation of marginalization that affects indigenous peoples and communities in Chiapas, for which purpose it has obtained promises of collaboration and cooperation from the state government in order to create peace in the state.
54. The Government states that the COCOPA initiative was taken up and converted into a proposal for constitutional reform which the President of the Republic, Mr. Vicente Fox, sent to the Chamber from which it originated on 5 December 2000 and that, in the explanation of purpose, the President states that "the COCOPA initiative is a demonstration of a common goal of achieving peace and reconciliation, along with recognizing the autonomy of indigenous peoples".
55. Concerning the complainants' use of a quotation from the CEACR observations on the "apparent lack of a dialogue", the Government observes that it responded promptly to this observation, at the 88th Session of the International Labour Conference (June 2000), recalling the permanent mechanisms for dialogue between the Government and indigenous peoples, and that it stated on that occasion that "those mechanisms allow the planning and application of public policies, the resolution of conflicts and attention to be paid to the demands of indigenous peoples".
56. The Government states that the San Andrés Agreements were the result of the first negotiations between the Government of Mexico and the EZLN. The legal course for these Agreements was through the initiative to reform the Constitution of Mexico drawn up by COCOPA, the content of which was eventually agreed by both parties. This concluded the proposal signed by both sides, which is contained in the document entitled "Joint proposals that the federal Government and the EZLN agree to remit to the national debating and decision-making bodies in accordance with paragraph 1.4 of the rules of procedure".
57. The Government further states that, in employing the phrase "joint proposals", both parties were conscious of the fact that, because of the sovereignty of the bodies to which the proposals were to be submitted, the proposals were not binding and, as such, were merely suggestions which both parties could submit to the processes of national debate and decision-making so that they might be taken into account. It goes on to state that it is quite clear that both parties are subject to the sovereignty of the National Congress, or to the permanent constitutional body, since the San Andrés Agreements bind the federal Government, as the representative of the three authorities of the nation, but that, in order for the proposals to have the force of law, it was necessary for the Federal Legislative Authority to adopt them as its own and incorporate them into national legislation.
58. The Government states that the President of the Republic, conscious of his commitment in the area of indigenous rights and culture, presented to the National Congress on 5 December 2000 an initiative for reforms to the Constitution based on the COCOPA draft.
59. Referring to the process of constitutional reform in the true sense, and to the March for Indigenous Dignity cited by the complainants, which began on 24 February 2001 and, after which, on 28 March, the EZLN and the CNI defended their position in the Chamber of Deputies of the National Congress, the Government states that the fact that the EZLN and the CNI were able to defend the COCOPA initiative in the Chamber of Deputies constitutes consultation at the highest institutional level, by means of which representatives of national ethnic groups and the EZLN had the opportunity to have their views heard by the Federal Legislative Authority before the reform to the Constitution of Mexico was approved.
60. Following analysis, the reform was approved unanimously by the Senate of the Republic on 25 April 2001, and was ratified by the Chamber of Deputies on 28 April 2001.
61. The Government considers that it is incorrect to state that the report substantially modifies the COCOPA initiative and incorporates only part of the San Andrés Agreements. It maintains that the initiative approved by the Senate of the Republic altered the form of the initiative drawn up by COCOPA for technical constitutional reasons, which affected various articles considered in the initiative but, despite this, gave effect to the San Andrés Agreements.
62. The Government states that, if political parties and state governors complain of irregularities in the form of the approval process, they can bring constitutional monitoring proceedings before the Supreme Court of Justice, a fact which proves that there are legal channels in the constitutional state to allow constitutional disputes to be resolved.
Observations on the concept of violation according to the complainants
63. The Government maintains that the process of reforming the Constitution of Mexico with regard to indigenous rights and culture began before the San Andrés Agreements were signed in 1995. It adds that the social process of recognition is much longer and more complex than the legal process in which it culminates and formalizes the wish of indigenous peoples to introduce their rights into the Constitution. It goes on to state that it cannot be considered that the act of reforming the Constitution of Mexico is independent of the consultation initiatives promoted by the Executive, within the framework of the process of dialogue and peace-making in Chiapas begun in 1996 and interrupted in 1998, since they all demonstrate efforts by various sections of society to see the problem in different ways and try to solve it. It adds that, if the proposal presented by the Federal Executive on 5 December 2000, known as the COCOPA Act, is considered to be the only way of solving the problem, then this would lead to an impasse.
64. According to the Government, the initiative to reform the Constitution of Mexico drawn up by COCOPA could be interpreted as fulfilling the requirement for consultation within the meaning of ILO Convention No. 169, since this initiative reflected a consensus reached in the San Andrés Agreements and had the explicit support of the majority of the country's indigenous organizations.
65. The Government affirms that the text of the COCOPA initiative was the subject of formal consultation on the part of the Mexican Government in the manner stipulated by the Convention, since the National Consultation on Indigenous Rights and Culture gave rise to the consultations which resulted in the San Andrés Agreements and found their legal channel in COCOPA. It indicates that the consultations were promoted both by bodies outside the state apparatus and by the Mexican Government, and that the EZLN and the CNI agreed that the initiative fulfilled their expectations.
66. With regard to the process of reform begun on 5 December 2000, the Government states that consultations began on 12 March and that press bulletin 2001/140 of 15 April 2001 did not say that the consultations would finish on 5 April 2001, as the complainants maintain. The bulletin did announce that members of the plural Subcommittee on Constitutional Reform in indigenous matters would meet on 10 April with the aim of compiling a document containing all the points on which differences existed between parliamentary groups, in order to make progress in drawing up a report on the initiatives of the Act on indigenous rights and culture. The Government lists a series of hearings held between 15 March and 4 April and gives the following information relating to them: it states that, at the hearing held between the Subcommittee and the National Rural Workers' Confederation, some persons of indigenous origin were present and some of them took the floor, including, for example, an indigenous representative of Puebla who requested assistance so that lawyers would be better able to defend indigenous peoples. The Subcommittee also held meetings with indigenous people from Chiapas, Mexico State, Oaxaca, Puebla, San Luis Potosí and Veracruz, among others. On 29 March, a representative of the Indigenous Council of Puebla, an indigenous Nahuatl, two indigenous Totonacas, an indigenous Otón and a woman from the Organization of Women United for Development in Chiapas spoke at a public hearing. On 4 April indigenous Mixtecs, Tacuates, Triquis and Zapotecs, the chairperson of the Oaxaca State Council for Indigenous Peoples and Communities and a member of the Organization for Women of Tacuate Communities spoke at a hearing. The Government states that the purpose of compiling the conclusions of these consultations and hearings was to hear points of view that would enrich the debate, in order to report on human rights and indigenous culture initiatives.
67. The Government claims that Article 6(2) of Convention No. 169 stipulates only that the consultations held in application of the Convention should be carried out in good faith and in a form appropriate to the circumstances, and that, under Article 34, the nature and scope of the measures to be taken to give effect to this Convention should be determined in a flexible manner, having regard to the conditions characteristic of each country.
68. It adds that the Convention does not stipulate that, if a violation of Article 6 occurs, then this action becomes invalid in formal legal terms and is considered an attack on the substantive recognized rights of indigenous peoples.
69. According to the Government, the Federal Legislative Authority considered that the most representative organizations of the indigenous movement were the CNI and the EZLN, followed by academics and people who dedicate themselves to indigenous issues. This demonstrates that the Government explored all means of consultation with groups which, as SAINAH states, represent the national indigenous movement, in terms of both numbers and sway of opinion and always based on the objective criteria contained in the Act on planning and the National Development Plan. It adds that the report was the result of an in-depth legislative process which was participated in not only by deputies and political parties but also by government departments, state governments and indigenous groups from around the country.
70. It further points out that the essence of the term "consultations", as used in Convention No. 169, does not imply that the Government should blindly adopt proposals from indigenous groups. It goes on to state that, since the consultation referred to in Article 6 of the Convention is not binding on the body which adopts the legislative measure, it is clear that it does not constitute an essential element affecting the integration of the will of the body appointed to reform or amend the country's Constitution.
71. The Government claims that the Convention does not state that consultations should be undertaken on the basis of objective, reasonable and verifiable representativity criteria, as SAINAH states.
72. With regard to the allegation that the federal authorities should carry out consultations in good faith with representative organizations at national level while state authorities should carry out consultations within the boundaries of their own states, the Government maintains that this claim has no substance whatsoever, since both the Legislative and Executive Authorities held individual meetings with national ethnic groups, and in some states, for example Chiapas, consultations were held both with individual ethnic groups and with the population in general.
73. The Government also maintains that the consultations followed the same general criteria as when society is consulted to legitimize a draft regulation, without discriminating against any member of society.
74. It adds that, notwithstanding the fact that Mexican legislation does not provide specific institutional frameworks to regulate the terms of consultation and define objective and reasonable representativity criteria, the consultations were carried out in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures, as laid down in Article 6 of Convention No. 169.
75. It observes that neither national law nor international human rights bodies (including the ILO's supervisory mechanisms for international labour standards) have so far drawn up criteria defining effective consultation with indigenous peoples and that Convention No. 169 itself provides the Government of Mexico with the means to determine, with some flexibility, the measures adopted to apply the Convention, taking into account conditions characteristic of the country.
76. Regarding the allegations that indigenous people were not properly informed, the Government points out that information has been circulated since the San Andrés Agreements.
77. As regards the allegations relating to not endeavouring to achieve agreement, the Government quotes the report, which states that various points of view were heard, and makes reference to the prevailing heterogeneity between the more than 60 linguistic groups living in Mexico and their demands for health services, education, housing, food, support for agriculture and related marketing and supply, demand for greater representation and participation of indigenous peoples, and statements on the discrimination suffered by indigenous peoples, in particular women.
78. It concludes by stating that there was not only an exchange of information but also a debate on ideas and a dialogue, and that the search for an agreement on the reform in question required a continuous process; it included an effective debate and dealt with specific reform measures.
79. With regard to the complainants' opinion on the application of Convention No. 144, the Government believes there is no link between the two Conventions that would make an additional application possible.
80. Furthermore, it points out that the Mexican constitutional system explicitly recognizes the supremacy of the Constitution of Mexico over international treaties and that treaties must consequently conform to the provisions of the Constitution in order to have validity within the Mexican legal system.
C. The Committee's conclusions
81. The Committee notes the extensive documentation presented by both the complainants and the Government.
82. It notes that the present representation alleges violation by Mexico of Article 6 of the Convention in the legislative procedure leading to the approval of the Decree on Constitutional Reform in the Areas of Indigenous Rights and Culture (Diario Oficial, 14 August 2001). Article 6 states:
1. In applying the provisions of this Convention, governments shall:
(a) consult the peoples concerned, through appropriate procedures and in particular through their representative institutions, whenever consideration is being given to legislative or administrative measures which may affect them directly;
(b) establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them;
(c) establish means for the full development of these peoples' own institutions and initiatives, and in appropriate cases provide the resources necessary for this purpose.
2. The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures.
83. The constitutional reforms in question constitute legislative measures within the meaning of Article 6 and, as such, fall unquestionably within the scope of this Article of the Convention, which was in force in Mexico at the time the process began. At the same time, as the Government points out, neither the Convention nor the preparatory work provides detailed indications as to the form and extent of the consultations which must be undertaken whenever consideration is being given to legislative or administrative measures which may affect the peoples concerned directly. Paragraph 1(a) of Article 6 merely stipulates that the procedures must be "appropriate" and must be carried out "through their representative institutions", whilst paragraph 2 states that "The consultations carried out in application of this Convention shall be undertaken, in good faith and in a form appropriate to the circumstances, with the objective of achieving agreement or consent to the proposed measures". Paragraph 1(b) of this Article further states that, in applying the provisions of this Convention, governments shall "establish means by which these peoples can freely participate, to at least the same extent as other sectors of the population, at all levels of decision-making in elective institutions and administrative and other bodies responsible for policies and programmes which concern them".
84. According to the complainants, the contested process of constitutional reform began on 5 December 2000, concluded with the promulgation of the decree in question on 14 August 2001 and constitutes a unitary legislative process, independent of previous acts. They maintain that, as such, the procedural requisite of consultation with the indigenous peoples should have been carried out, which is required whenever consideration is being given to legislative measures which may affect them directly. The complainants feel that the consultation which took place before 5 December 2000 cannot be considered as the application of Article 6 of the Convention.
85. For its part, the Government maintains that the process of reforming the Constitution of Mexico with regard to indigenous rights and culture began before the San Andrés Agreements were signed in 1996, and that the social process of recognition is much longer and more complex than the legal process in which it culminates and formalizes the wish of indigenous peoples to introduce their rights into the Constitution. It states that, if the proposal presented by the Federal Executive on 5 December 2000, known as the COCOPA Act, is considered to be the only way of solving the problem, then this would lead to an impasse. It further notes that, in its view, the initiative to reform the Constitution of Mexico drawn up by COCOPA could be interpreted as fulfilling the requirement for consultation within the meaning of Convention No. 169, since this initiative reflected a consensus reached in the San Andrés Agreements and had the explicit support of the majority of the country's indigenous organizations.
86. The Committee observes that, already in 1992, reforms to section VII of article 27 and to article 4 of the Constitution gave rise to allegations of non-observance of the Convention from indigenous peoples. It notes that the outbreak of violence in 1994 was followed by a process of dialogue and negotiation between the EZLN and the Government, which led to the signing of the San Andrés Larraínzar Agreements on 16 February 1996. It further notes that both parties recognize that COCOPA was delegated to draw up an initiative on constitutional reform, which was presented by COCOPA on 29 November 1996. The Government of Mexico presented this initiative to the National Congress on 5 December 2000. Previously, another draft had been presented in 1998 by President Zedillo but, according to the complainants, this initiative was never dealt with, due to a breakdown in dialogue.
87. The Committee observes that, from 1992 until the present time, relations between the Government and indigenous peoples have been extremely complex, with an undercurrent of conflict at times manifest, at times latent, and on some occasions even violent. The Committee notes the efforts made by the Government and the organizations which participated in this process to have a dialogue and arrive at satisfactory solutions, but it cannot ignore the difficulties arising from this process and the various interruptions to communication between the parties, which did not help to create an atmosphere of trust. It has also noted the breakdown in dialogue prior to the contested legislative process.
88. The Committee does not consider, as the complainants argue, that the process of consultation, which ended with the constitutional reforms, began only on 5 December 2000, with the presentation of the COCOPA initiative to the National Congress. In the opinion of the Committee, after examining the present representation, the application of Article 6 since the dialogue began between the Government and the EZLN should be examined.
Appropriate procedures
89. In the opinion of the Committee, the appropriate procedure is that which creates favourable conditions for achieving agreement or consent to the proposed measures, independent of the result obtained. That is to say, the expression "appropriate measures" should be understood with reference to the aim of the consultation, namely to achieve agreement or consent. It is not necessary, of course, for agreement or consent to be achieved.
90. The consultation process which culminated in the Executive Authority's presentation of the COCOPA initiative to the Congress on 5 December 2000 was carried out in application of the San Andrés Agreements. In the opinion of the Committee, this was a process which took a great deal of time and effort and demonstrated the determination of all parties to reach a consensus. The Committee will refer below to the criterion of representativity required by Article 6, having made clear that the complexity of the consultations held, the time taken and the agreements reached reflect the Government's will to achieve agreement or consent to the proposed measures during the dialogue that led to the COCOPA initiative being presented to the National Congress.
91. In considering the draft reforms, the legislative authority held much more limited consultations with the indigenous peoples.
92. In this regard, the Committee notes that, once the initiative had been presented to the Congress, the Subcommittee held a series of hearings, activities and consultations between 12 March and 4 April 2001. In the opinion of the Committee, without questioning the legitimacy of the legislative process, the small amount of time allocated by the Congress to reach a decision on the reforms limited the possibilities for obtaining a consensus.
93. The methods employed involved a system of hearings for indigenous persons and other sectors on request. In this regard, the Committee notes that, according to the explanation of purpose of the draft decree presented by the unified committees on constitutional points, indigenous matters and legislative studies to the Honourable Plenary Assembly of the Senate of the Republic, the Subcommittee proceeded to undertake a series of public hearings involving various sectors related to the present reform. Points of view were heard from indigenous organizations, experts on the issue, academics and people with responsibility in the process of negotiating peace in Chiapas, and the Minister of the Interior appeared before the unified committees. On 23 March, the Chamber of Deputies invited members of the unified committees involved in this report to come to its building for a meeting of committees at which the points of view of the EZLN and the Indigenous National Congress would be heard, relating to their opinions on constitutional reform in the area of indigenous rights and culture.
94. The Committee observes that these hearings were only carried out once with each sector, person or organization, and that this was not a process in which persons or organizations who had the opportunity to be heard were able, as well as being heard, to have a genuine exchange where there was the continuity and time for there to be at least the possibility of reaching an agreement. Even in the case of the CNI and the EZLN, which, according to the Government, enjoy national representativity, the Committee notes that they were only listened to on one single occasion, on 23 March 2001, which would seem insufficient in order for there to be the possibility of reaching an agreement.
95. The characteristics described by the complainants of the manner in which the consultations envisaged under Article 6 of the Convention should be carried out certainly constitute a model which it would be desirable to apply, but the requirements contained in the Convention do not enter into such detail. The Committee understands that, whilst there was full consultation in accordance with Article 6 of the Convention in drawing up COCOPA's proposals, during the deliberations in the Senate the opportunities for representatives of indigenous peoples to exercise an influence over the outcome of the debates were significantly reduced. This stems fundamentally from the brevity of the hearings process. The Committee further notes that this is a legislative procedure which does not usually provide for the inclusion of consultations of the kind envisaged by Article 6.
96. With regard to the ratification of the draft constitutional reforms by state legislative authorities, there are yet more doubts as regards the climate of dialogue. The Committee has noted the rapid pace of the constitutional reforms and that the states with a majority indigenous population voted against them.
Representativity
97. Article 6.1(a) of the Convention also establishes that, when consulting the peoples concerned, governments shall do so "in particular through their representative institutions".
98. After a difficult consultation process, the Government and the EZLN signed the San Andrés Larraínzar Agreements on 16 February 1996.
99. In the framework of the consultations, the Government indicated that the federal legislative power considered the most representative organizations of the indigenous movement to be the CNI and the EZLN, followed by academics and public figures dedicated to indigenous problems.
100. The Committee does not question the good faith of the Government in consulting the EZLN, which takes on even greater meaning in the circumstances in which this took place, given that these consultations occurred in the framework of a conflict between the EZLN and the Government. This is in keeping with the provisions of Article 34 of the Convention, whereby: "The nature and scope of the measures to be taken to give effect to this Convention shall be determined in a flexible manner, having regard to the conditions characteristic of each country."
101. This does not imply questioning the representativity of said organizations, a question that the Committee did not examine. The Committee observes that the Government refers to the EZLN and the CNI as the "most representative organizations of the indigenous movement", while the Convention refers to the "representative institutions of the indigenous peoples".
102. In view of the diversity of the indigenous peoples, the Convention does not impose a model of what a representative institution should involve, the important thing is that they should be the result of a process carried out by the indigenous peoples themselves. But it is essential to ensure that the consultations are held with the institutions that are truly representative of the peoples concerned. As the Governing Body has already established in a previous case, "... the principle of representativity is a vital component of the obligation of consultation. (...) it could be difficult in many circumstances to determine who represents any given community. However, if an appropriate consultation process is not developed with the indigenous and tribal institutions or organizations that are truly representative of the communities affected, the resulting consultations will not comply with the requirements of the Convention." (Endnote 1)
103. In addition, the hearings before Congress allowed members of the indigenous communities to express their views, but it does not appear that attempts were made to carry out systematic consultations with representative organizations (institutions).
104. With respect to the eventual application of Convention No. 144 as a stopgap to Article 6 of Convention No. 169, the Committee agrees with the Government that formally it is not possible to apply this Convention; however, it also considers that the spirit of dialogue and negotiation of Convention No. 144 would contribute to a broader application of Article 6 of Convention No. 169.
Summary
105. The Committee has had to analyse the long process that led to the adoption of the constitutional reforms. It notes the Government's efforts during the process of dialogue, which ended on 5 December 2000 with agreement being reached as to the content of the proposed reforms. It believes that during this process the Executive Authority applied Article 6 of the Convention, having regard to the conditions of each country, as laid down in Article 34 of the Convention. It also notes that the way in which the process was conducted before Congress and the state legislatures could have been more in keeping with the intent of the Convention if the criteria used to determine representativity, the form of participation in hearings and the methodology used had been more clearly established. It shares the Government's view that there is still no broad judicial practice that includes more detailed criteria of the conditions to be met by consultations of this scope in order for them to be appropriate. It notes the difficulty represented by consultations of general scope, as is the case for a constitutional reform, and of national application, which in this case also affect approximately 10 million indigenous peoples. Likewise, it notes that the consultations carried out before Congress and the states led to feelings of frustration and exclusion on the part of the indigenous peoples. It is also aware that the differences in values, ideas, times, reference systems, and even in ways of conceiving consultation between the interlocutors add to the complexity of the task. In that connection, the establishment in Mexico of clear criteria as to the form of consultations and as to representativity could have made it possible to obtain more satisfactory results for both parties. Furthermore, it acknowledges that both the National Congress and the state legislatures were not unaware of the opinions of the indigenous peoples with respect to the reforms, but were not obliged to accept them. It would have been helpful if they had established a mechanism to try to achieve agreement or consent concerning the measures proposed.
106. It was clear throughout the process of the adoption of the Convention, and it has been reaffirmed by the supervisory bodies, that consultation does not necessarily imply that an agreement will be reached in the way the indigenous peoples prefer. Everything appears to indicate that the views of the complainants as to what would constitute full consultation would, to all appearances, have given rise to a more complete set of consultations, which is why it is appropriate to recall them here as pertinent proposals as to how consultations should be carried out in other similar situations. Nevertheless, the Committee cannot conclude that such a list of "best practices" is actually required by the Convention, even though they would have constituted an excellent way of applying fully the principles established in Article 6.
107. Finally, the Committee considers that the climate of confrontation, violence and lack of mutual trust stopped the consultations from being conducted more productively. It is imperative in all consultations to establish a climate of mutual trust, but all the more so with respect to indigenous peoples, given their lack of trust in state institutions and their feeling of marginalization, both of which have their origins in extremely old and complex historic events, and both of which have yet to be overcome.
D. The Committee's recommendations
108. In adopting this report, the Committee is aware of the importance of the subject for the Government, and of the complexity of the requirement to carry out consultations with respect to constitutional reforms in a country with a large indigenous population spread over various geographical areas. It hopes that its recommendations will help the Government and the indigenous peoples to strengthen dialogue and, using the appropriate procedures, to achieve long-term solutions. The Committee requests the Governing Body to approve this report and, in the light of the conclusions contained in paragraphs 81-107:
(a) to urge the Government to make additional and ongoing efforts to overcome the feeling of exclusion that is so apparent in the complainants' allegations;
(b) to request the Government that, when developing, specifying or implementing constitutional reforms through legislative or administrative measures, whether at federal level or at the level of the various states, it ensure that Article 6 is fully applied in the process of adoption of such measures and that in applying that Article:
(i) it establish clear representativity criteria;
(ii) it take into account as far as possible the proposals made by the complainants as to the characteristics that consultations should have to be effective;
(iii) it determine a consultation mechanism which is adapted, as far as the method it uses is concerned, to the objective of achieving agreement or consent concerning the means proposed, irrespective of whether this is achieved or not;
(iv) it take into account, when determining the consultation mechanism, values, ideas, times, reference systems, and even ways of conceiving consultation, with indigenous peoples;
(c) to request the Government to inform the Committee of Experts in detail, in the reports submitted under article 22 of the Constitution of the ILO relating to this Convention, of developments in the questions on which the representation is based and concerning compliance with the Committee's recommendations.
III. Examination of the representation on the violation of the most important provisions of the Convention
A. Allegations made by the complainant organizations
109. The Independent Union of Workers of La Jornada (SITRAJOR) made a representation for the non-observance of the most important provisions of Convention No. 169, and requested a special investigation into the incompatibility of Convention No. 169 with the constitutional reforms adopted on 14 August 2001 and, according to the complainants, with legislative, administrative and other provisions adopted by the authorities. It also requested that a commission of inquiry be set up as it considers that in Mexico there is a situation of non-observance of all the provisions in the Convention. The representation contains 18 sections. In addition, the complainants sent additional information and considerable correspondence. The Committee will not refer to each and every one of the points made as their volume, diversity, and even nature, exceed, in the Committee's view, the capacity of a tripartite committee set up to examine a representation made under article 24. However, it will indicate some of the principal issues raised.
General framework of discrimination
110. First of all, the complainants describe a general context of non-observance of the Convention and in this respect they refer, inter alia, to documentation received, and/or prepared, by the United Nations Committee on the Elimination of Racial Discrimination (CERD) relating to Mexico, and the documents submitted by the Chairperson-Rapporteur of the Working Group on Indigenous Populations on her visit to Mexico from 28 January to 14 February 2000. (United Nations documents E/CD.4/Sub.2/2000/40 and E/CN.4/Sub.2/2000/CRP.1.) In the first document mentioned, the Rapporteur said she was deeply concerned over the militarization of indigenous areas, especially in Oaxaca, Chiapas and Guerrero, and the increasing use of the military for police functions. She indicated that the situation provoked outbreaks of violence, an atmosphere of fear and gross violations of human rights, including the right to life and physical and mental integrity, the right not to be subjected to torture or to cruel, inhuman or degrading treatment and the right to be free from arbitrary arrest and detention. She went on to express her conviction that social issues should be solved through a democratic and genuinely participatory dialogue.
111. The complainants also refer to economic indicators on the situation of the indigenous peoples. They state, for example, that according to a survey carried out by the National Indigenous Institute (INI) "less than a third of the indigenous population is employed; 500,249 indigenous persons are not paid for their work; 481,331 earn less than the minimum wage per month and 270,000 earn between one and two very low wages or mini- wages". They refer to and append the statement made by the Special Ambassador for Human Rights and Democracy on agenda item 15, "indigenous issues", during the 57th Session of the United Nations Commission on Human Rights (April 2001). On that occasion, the Special Ambassador stated that, while the average national illiteracy rate in Mexico was 10 per cent, for indigenous peoples it was 45 per cent; while the average number of homes without drinking water in Mexico was 15 per cent, for indigenous peoples it was 60 per cent. They also allege that some indigenous communities have complained about the quality of seeds, tools, fertilizers, insecticides and fungicides that are distributed to them and that in some states food aid and some services intended for indigenous families are conditional on membership of a specific political party. According to the complainants, these facts demonstrate that there is widespread discrimination against indigenous peoples in Mexico.
Lands
112. The complainants refer extensively to the question of lands. They essentially allege that land thefts and the ensuing conflicts are frequent, and that practically all indigenous lands are subject to restrictions or to "ongoing legal proceedings" with persons outside the community who have appropriated part or all of the lands legally recognized as indigenous lands. They also note that when some communities, following years of bureaucratic red tape, have obtained judicial opinions or decisions in their favour, these are not enforced.
113. Particular reference is made to a case relating to the problem of land and forced labour in the Zolontla community, in the Municipality of Ixhuatlán de Madero, State of Veracruz, whose members made a judicial claim in 1943 for the lands that had allegedly been stolen from them. In 1974, a "local cacique", in the words of the complainants, allegedly lent money to the community for a school, in exchange for them working for him without pay. When the indigenous people calculated that they had paid their debt, and refused to continue working for that person, they were flogged to make them work; one municipal agent who had not taken people to work for free was even shot dead. They state that, in these circumstances, they continued working without pay and, moreover, were prohibited from working outside these lands. Since 1994, they have again tried to reclaim the lands and a member of the community was murdered in 1995. In 1998, the community tried to reclaim its lands and start a settlement and, in 1999, it was evicted by the police and the army and, up until January 2001, the situation had not changed.
114. A number of articles published in the newspaper La Jornada, the trade union of which is one of the complainants submitting the representation, were sent to the Committee. They refer to the murder, in May 2001, of 26 workers at a sawmill. These murders occurred in the area of Agua Fría, in the Municipality of Textitlán, State of Oaxaca. According to these articles, the murders were related to the agricultural conflicts, poverty and marginalization of an extremely poor indigenous region. The majority of these conflicts were based on issues linked to land boundaries, dispossession or invasion. These issues had already been resolved legally in many cases, but the sentences handed down by the agricultural courts had not been implemented. Moreover, they state that the disputes over lands were intensifying as a result of the increasing population, the demand for land and the symbiotic relationship between indigenous peoples and the land. They indicate that similar situations of violence had occurred previously on many occasions. The violence that occurred at Agua Fría was an example of what had already happened and what might continue to happen if effective solutions to the issue of land in the area were not implemented.
Rights and justice
115. The complainant organizations have, in other paragraphs, referred at length to the difficulties that indigenous peoples face in gaining access to justice as a result of the bureaucratic procedures of the relevant institutions. They also refer to a continuing situation of impunity and a lack of transparency in legal proceedings. They quote the statement made by the Special Ambassador of Mexico before the United Nations Commission on Human Rights in April 2001, which states that "if, anywhere, we face difficulties in obtaining justice, the situation of the indigenous communities is even more serious; unfortunately, in Mexico, indigenous peoples have been imprisoned because they have not had adequate translation into their languages to clarify their situation, or because they had no money to pay a reduced bond, or because they did not have basic legal advice".
Forced sterilizations
116. According to the complainants, forced sterilizations of indigenous men and women have taken place on occasion. They state that receiving assistance from certain programmes the Education, Health and Food Programme (PROGRESA) and the Rural Capitalization Programme (PROCAMPO) is conditional on sterilization or the women having to take fake vitamins in front of the people distributing assistance. They maintain that if the products that they must take are really vitamins, they would not force the women to take them in the presence of those distributing assistance. They state that the failure of the health programmes for indigenous peoples is due to the fact that in some communities the women hide when the programme representatives arrive. They also refer to male sterilization (vasectomies) in the State of Guerrero, which are carried out in exchange for assistance. They indicate that the men that complained did not do so because of the vasectomy, but because they had not been given the promised assistance in exchange for undergoing this operation. They indicate that employees on the assistance programmes gave 50 pesos to all those who had accepted to undergo a vasectomy and they handed over this money publicly in order to find more volunteers.
Indigenous children
117. With regard to the situation of indigenous children, the complainants state that the presence of soldiers and military operations has led to substantial displacement in indigenous areas and that indigenous children who have migrated to the cities encounter enormous difficulties in continuing their schooling normally. They refer to the results of an investigation carried out in Sinaloa in 1994. They state that visits carried out in 1999 and 2000 showed that the information from the first investigation continued to be relevant. They state that, in Sinaloa, 25 per cent of agricultural day labourers are younger than 14, 30 per cent are not registered or have no documents, 95 per cent do not have holidays, 80 per cent do not have a rest day, 50 per cent have been working for three years or longer and 100 per cent are not paid when they are sick. They state that, according to the Miguel Agustín Projuárez Human Rights Centre, in 1999, there were even children of 5 years old working in family groups.
Indigenous migrant workers
118. Moreover, the complainants refer to the situation of migrant workers within the country. They state that two highly marginalized areas such as Guerrero and Oaxaca provide the greatest number of migrants and that between 35 and 40 per cent of them are indigenous people. They state that, according to the Miguel Agustín Projuárez Human Rights Centre, these workers, who are mainly indigenous people, are deceived, exploited and reduced to conditions close to slavery and that, in general, the day labourers with the lowest salaries are indigenous migrants who are illiterate and have had very little schooling.
B. The Government's observations
General framework of discrimination
119. The Government maintains that the use of documentation from the United Nations in the framework of a Convention and specific proceedings of the ILO is not appropriate.
120. The Government states that, when the conflict broke out, the EZLN invaded a total of 978,777 hectares in the Cañadas region: 85 per cent of this land was collectively owned, 10 per cent privately owned and 5 per cent under other types of ownership. These invasions set off violent reactions and demands that the Government impose order and ensure the legitimate owners of the land, among them indigenous peoples, their right to use and develop the lands. The Government states that this is the reason for the militarization of the indigenous areas of Chiapas. It indicates that, at the beginning of the current administration, from 1 December 2000, the President of the Republic ordered the army to withdraw military troops from the Chiapas conflict zone, suspend patrols, cancel low- flying aircraft surveillance in the area and order the withdrawal and closure of the following seven military installations: Amador Hernández, Jolnachoj, Roberto Barrios, La Garrucha y Cuxuljá, Guadalupe Tepeyac and Río Euseba and, on 26 March 2001, the last two institutions were transformed into development centres for indigenous communities.
121. The Government also indicates that it has taken various measures to encourage political and institutional action for indigenous peoples in Mexico, such as the creation, through the Presidential Decree of 4 December 2000, of the Representative Office for the Development of Indigenous Peoples. This office is tasked with building cross-cutting, intersectoral, participatory and multicultural mechanisms for institutional action by the Federal Executive for the indigenous communities. It also mentions the establishment of the Council for the Development of Indigenous Peoples, the Multicultural Education, Language and Culture Programme and the Intersectoral Programme for Indigenous Women. Moreover, the Office for the Development of Indigenous Peoples has encouraged the inclusion of specialized units for indigenous peoples in various dependencies and bodies. It also states that for 2002 approximately 15,108 million pesos is being spent on development for indigenous peoples, which represents an increase of 34 per cent on the previous year. It provides comprehensive information on the activities budget for each programme.
Lands
122. The Government expresses its concern with the general character of the allegations relating to this issue. It points out that, during the 1995-2000 period, unprecedented governmental action was carried out in Chiapas. It states that the federal Government, through the Ministry of Agricultural Reform and with the support of the Government of the State of Chiapas, established an inter-institutional agricultural round table, which heard 2,100 cases, negotiating the acquisition of 249,937 hectares for 61,102 families. It states that the 2001-06 Sectoral Agricultural Programme established the basis for the regularization and judicial organization of land, and, in 2001, 452,000 documents in the framework of the Programme for Certification of Cooperative Rights and Title to Land were submitted, title was granted to 186,000 hectares of national land and 270,000 hectares were authorized for agricultural and livestock development.
123. With regard to the 26 murders in Agua Fría, the Government states that, on 31 May 2001, in the area known as Agua Fría, in the Santiago Textitlán jurisdiction, in the Municipality of Sola de Vega, State of Oaxaca, 26 people from the Santiago Xochiltepec community, in the same municipality, were murdered when they approached the community in a truck after having finished a week of daily labour in the La Cofradía sawmill, in the San Pedro el Alto Zimatlán jurisdiction, State of Oaxaca. The Government states that the Office of the Prosecutor-General in the State of Oaxaca immediately launched an operation to capture those responsible for these deeds and 16 people were detained. In its official bulletin of 5 June 2002, the Office of the Prosecutor-General of the Republic stated that the Justice Department of the Federation, with headquarters in Oaxaca, had remanded before the competent court 13 of the 16 people detained for alleged crimes relating to carrying weapons and that this was linked to the previous inquiry of the Justice Department for aggravated homicide and other charges. It states that the events that took place at Agua Fría are being taken in hand by the authorities and that the matter is still going through the courts.
124. The Government emphasizes that both federal and state authorities are concentrating on resolving the issue of land boundaries and provides information on the mechanisms that have been developed to regulate the issuing of authorizations for forestry operations in the areas bordering the communities, in particular between the communities of Santiago Xochiltepec and Santo Domingo Teojomulco, and, in general, to provide support for the indigenous communities of Oaxaca in social development, obtaining indigenous rights and public security.
Rights and justice
125. The Government states that article 2(B) of the Constitution provides that the Federation, the states and the municipalities shall establish institutions and shall determine the policies necessary to ensure the rights of indigenous peoples and the comprehensive development of their peoples and communities, and that these shall be drawn up and implemented jointly with them and such is the case with the National Development Plan for Indigenous Peoples 2001-06. With regard to the administration of justice, the Government states that the provision of justice in indigenous issues has made important progress. This progress can be seen in the Federal Code for Criminal Proceedings, the Federal Act to Prevent and Punish Torture, the Federal Act of the Office of Public Defender, the regulation on federal centres for social readaptation and the Act of the National Committee for Human Rights. With regard to the issue of impunity, the Government refers to the existing legal resources and, in particular, to article 6 of the Act of the National Committee for Human Rights.
Forced sterilizations
126. The Government states that it imposes no conditions for the assistance offered by social development programmes and that, should a person believe that his or her right to decide freely, responsibly and in an informed manner on the number of children that he or she wants has been infringed, he or she may lodge a complaint with regard to this with the National Committee for Human Rights.
Indigenous children
127. The Government states that, on 29 May 2000, the Diario Oficial published the act for the protection of the rights of children and adolescents, which contains federal provisions to protect minors and to prevent them being exploited. In this framework, the adoption of a national programme for the rights of children and adolescents is planned and this will involve various social sectors. Moreover, it provides detailed information on other legislative provisions for children. It also refers to various programmes to support children, among which is the national programme for agricultural day labourers. Since 1995, coverage has increased, which has meant that 1,165,518 children were helped over the 1995-99 period. In the framework of this programme, the PROCEDER plan has been established to contribute to the children of agricultural day labourers being able to exercise their rights and to discouraging child labour. This plan is based on the difficulties that children have in exercising their fundamental rights. It was begun in the second semester of 2001 in the States of Sinaloa, Nayarit, Baja California Sur, San Luis Potosí and Morelos, and is currently being extended to other states where there are significant numbers of agricultural day labourers and their families. Finally, the Government refers to the National System for the Integral Development of the Family (DIF), which, since 1990, has focused greater attention on the issue of children living and working in the street. The DIF has implemented various programmes and, since 2001, has been busy with the programme aimed at prevention, awareness, discouragement and elimination of urban- peripheral child labour. With regard to the minor children of migrant workers, it states that the federal Government, through the DIF system, ensures access to the basic levels of well- being of this category of children that is affected by the labour mobility of their parents and by their early inclusion in agricultural labour.
Indigenous migrant workers
128. The Government states that in article 2(B)(VII.I) of the Constitution reference is made to establishing "social policies to protect indigenous migrants, both on national territory and abroad, through actions to ensure the labour rights of agricultural day labourers". With the aim of meeting the demands for hiring and employing conditions, in particular wage and maternity protection for indigenous agricultural day labourers, medical services and employment conditions for indigenous migrant workers, the Ministry of Labour and Social Security is taking part in drawing up an inter-institutional agreement presided over by the Office of Indigenous Affairs of the President's Office. It is planned to develop a network system and employability plan for agricultural day labourers and indigenous communities. Source areas and recipient areas for agricultural day labourers can be identified throughout the country. The plan will meet the needs of the population in both areas, aiming to increase the employability of these people through training in safety and health and in labour activities, support for transfer from recipient areas and development of productive projects aimed at keeping indigenous peoples in their communities during times when there is no employment. The Government also refers in detail to the National Plan for Agricultural Day Labourers (PRONJAG), which aims to help improve the living and working conditions of the day labourer population. During 2000, PRONJAG operated through 50 federative bodies, providing support to 753,285 people, of whom approximately 42.1 per cent are indigenous. On 21 April 2002, the federal Government implemented the Intersectoral Programme for Agricultural Day Labourers, in which various public bodies participate to put an end to uncoordinated efforts and to introduce a comprehensive focus. This programme seeks to improve working conditions and to support the development of the productive capacities of workers in their areas of origin, to discourage child labour and to contribute to the exercise of rights relating to health and social protection, among others. With the implementation of this social policy instrument, the bases have been established to allow a policy to help rural workers to be drawn up. This was implemented in its initial phase in the main source and recipient bodies and, in 2003, will be extended to other states.
C. The Committee's conclusions
129. The Committee notes the detailed communications sent both by the Government and by the complainant organizations. It takes due note that the complainant organizations state that the representation is a result of non-observance of all provisions in the Convention and, indeed, that the allegations cover the majority of the provisions of the Convention. In this respect, the Committee has made an effort to summarize the main points of the representation; but it believes that it is not for this Committee to monitor the global application of the Convention, as this is a long-term process. The Committee believes that monitoring the global application of the Convention is part of the work of the CEACR. Therefore, the Committee will not examine each of the allegations in depth but will look at the main points which, in its opinion, the CEACR should examine as a follow-up to this representation.
130. The documentation of the United Nations bodies comes from bodies responsible for supervising treaties such as CERD, or bodies established by the Charter, such as the Working Group on Indigenous Populations, and can be taken into account as indicative of the general framework. In effect, the ILO collaborates with United Nations bodies on specific issues, although the ILO supervisory bodies are responsible for its own instruments. It should be recalled that the issue of indigenous rights has been the subject of close collaboration between the ILO and the other organizations in the United Nations system since the 1950s. Therefore, the Committee believes that it can refer to these documents to explain the context in which the application of the Convention or some of its provisions takes place and, in the same way, it hopes that the results reached by the supervisory bodies of the ILO will be taken into account by the United Nations organizations.
131. With regard to the general framework of discrimination existing in Mexico against indigenous populations, the Committee notes that the economic indicators show, in effect, that as the Government itself recognizes the socio-economic situation of indigenous populations in Mexico is inferior to that of the population in general. The Committee believes that this requires a particular effort by the Government to end this situation. Moreover, this is the task that the Government itself undertook when it ratified Convention No. 169.
132. The Committee also notes the programmes formulated by the Government to improve the situation of indigenous peoples. Therefore, the Committee asks the Committee of Experts to continue to request information from the Government on the practical results of the various programmes promoted to achieve equality for indigenous peoples. The Committee believes that increasing the number of isolated plans is not sufficient to achieve an effective inclusion policy. It is not entirely clear where the complementary nature and coordination between the programmes described by the Government lies. The Committee recalls that Article 2 of the Convention provides that Governments shall have the responsibility for developing, with the participation of the peoples concerned, coordinated and systematic action to protect the rights of these peoples and to guarantee respect for their integrity. It provides that:
Such action shall include measures for:
(a) ensuring that members of these peoples benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population;
(b) promoting the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions;
(c) assisting the members of the peoples concerned to eliminate socio-economic gaps that may exist between indigenous and other members of the national community, in a manner compatible with their aspirations and ways of life.
133. The Committee believes that full and effective application of Article 2 is key to overcoming the deep-seated and enduring inequality that affects indigenous peoples. Therefore, it requests the Government that, when establishing the various development plans and programmes for the peoples concerned, it ensures that these fall within a framework of coordinated and systematic action, with the full participation of the indigenous peoples, and it also requests that the CEACR be kept informed in this respect.
134. With regard to the allegations on lands, the Committee expresses its concern about facts such as the murder of 26 indigenous people in Agua Fría. It hopes that the Government will inform the CEACR of the outcome of the investigations in this respect and of the legal sentences imposed on those who carried out the murders. It also hopes that the Government will provide information on the allegations relating to the problems of land and forced labour in the Zolontla Community, in the Municipality of Ixhuatlán de Madero, State of Veracruz. Moreover, the Committee is concerned about possible recurrences of these situations, given the existing hostility with regard to possession and ownership of land. The Committee notes the actions taken by the Government in the framework of the Sectoral Agricultural Plan and the Plan for Certification of Cooperative Rights and Title to Land. It is fully aware of the difficulties of reconciling rights established by the Convention in the area of lands, and, in particular, those established in Articles 13-15 of the Convention, with the provisions of the Civil Code and other provisions arising out of this. However, it believes that only full application of these Articles, including the establishment of adequate procedures within the national legal system to resolve land claims by the peoples concerned, may prevent the recurrence of violent incidents such as those referred to. Therefore, it hopes that the Government will provide information on: (a) how these procedures work in practice, including information on their duration; (b) the way in which the rights of ownership and possession over the lands which the peoples concerned traditionally occupy are recognized in these procedures; and (c) the measures taken to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities.
135. With regard to the allegations of forced sterilization, the parties have contradictory positions, and the Committee does not have sufficient information to draw any conclusions. It considers, nevertheless, that the fact that these allegations have been made highlights the climate of suspicion and distrust created by the existing hostility with regard to the issue of indigenous rights in the country, and emphasizes the need for the Government to investigate these allegations and to punish severely all those who might be implicated in such actions.
136. With regard to the allegations on the situation of indigenous children and internal indigenous migrant workers, the Committee notes both the allegations and the observations of the Government. The Committee believes that, in this regard, the comments made in paragraph 132 relating to Article 2 of the Convention are valid: that is to say that, faced with the existing socio-economic inequalities, it is necessary for the Government to develop, "with the participation of the indigenous populations, coordinated and systematic action to eliminate socio-economic gaps that may exist between indigenous and other members of the national community, in a manner compatible with their aspirations and ways of life" (Article 2(1)). In this respect, it hopes that the Government will ensure full application of Article 20, which provides, in paragraph 1, that "governments shall, within the framework of national laws and regulations, and in cooperation with the peoples concerned, adopt special measures to ensure the effective protection with regard to recruitment and conditions of employment of workers belonging to these peoples, to the extent that they are not effectively protected by laws applicable to workers in general", and recalls that paragraph 3 of this Article provides that:
... the measures taken shall include measures to ensure:
(a) that workers belonging to the peoples concerned, including seasonal, casual and migrant workers in agricultural and other employment, as well as those employed by labour contractors, enjoy the protection afforded by national law and practice to other such workers in the same sectors, and that they are fully informed of their rights under labour legislation and of the means of redress available to them;
(b) that workers belonging to these peoples are not subjected to working conditions hazardous to their health, in particular through exposure to pesticides or other toxic substances;
(c) that workers belonging to these peoples are not subjected to coercive recruitment systems, including bonded labour and other forms of debt servitude;
(d) that workers belonging to these peoples enjoy equal opportunities and equal treatment in employment for men and women, and protection from sexual harassment.
137. The Committee hopes that the Government will provide the Committee of Experts with information on these points and, in particular, on the participation of indigenous peoples in the adoption of such measures and the outcome of their implementation.
138. The Committee believes that, while this representation contains some allegations of non- observance in specific concrete instances, in general it refers to existing socio-economic inequalities, which the Government recognizes and states that it is taking measures to address. However, the Committee believes that there are problems in the application of the Convention that are not based solely on socio-economic differences. In accordance with the Convention, the Government has an obligation, for example, to halt and to prevent the continual loss of indigenous lands, particularly when this is done by individuals or because of delays in judicial proceedings. It also has an obligation to ensure that the legal, administrative and judicial frameworks adopted to implement the constitutional reforms do not reduce the degree of protection. The fact that the majority of issues that have been noted arise from government authorities not under the control of federal authorities constitutes in itself an indication that the Government has, in terms of the Convention, an obligation to increase its efforts to protect the indigenous peoples of the country. The Committee notes that the federal Government has made real efforts in this direction and it encourages it to continue and to strengthen this work.
D. The Committee's recommendations 139. In adopting this report, the Committee is aware that the extent and the general nature of the allegations have given rise to an unprecedented situation, which requires particular treatment. The Committee hopes that the measures proposed will allow global and long- term monitoring, which will help in the implementation of policies that will allow the structural causes of the socio-economic differences affecting the indigenous peoples of Mexico to be overcome through coordinated and systematic action, with the full participation of the peoples concerned. The Committee recommends that the Governing Body approve the present report and, in the light of the conclusions in paragraphs 129-138 that:
(a) it request the CEACR to examine all information submitted in the context of these representations in the monitoring of the Convention in accordance with articles 22 and 23 of the Constitution, and to request further information if it considers this necessary;
(b) it request the Government, when establishing the various development plans and programmes for the peoples concerned, to ensure that these fall within a framework of coordinated and systematic action, with the full participation of the indigenous peoples, and that it also request it to keep the CEACR informed in this respect;
(c) it express its concern to the Government about the murder of 26 indigenous workers in the area of Agua Fría and it requests information be communicated to the Committee of Experts on the outcome of the investigations and the sentences imposed;
(d) it request from the Government additional information on the allegations relating to the problems of land and forced labour in Zolontla, in the Municipality of Ixhuatlán de Madero, State of Veracruz;
(e) it urge the Government to look for appropriate solutions to the issue of land in order to avoid a repetition of the situation in Agua Fría, and that it request that the Government inform the CEACR: (i) of the functioning in practice of the procedures to resolve the land disputes of the peoples concerned; (ii) of the way in which these procedures recognize the rights of ownership and possession over the lands traditionally occupied by the peoples concerned; and (iii) of the measures taken to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities;
(f) it request the Government to send information on the application in practice of the plans aimed at improving the situation of indigenous day labourers and, in particular, of indigenous children and internal migrants, as well as on the application of Article 20 of the Convention to these categories of workers;
(g) it request both the claimants and the Government to provide information to the CEACR with regard to claims lodged with the courts on alleged forced sterilization and, as appropriate, to provide information on the outcome of the investigations carried out as a result of these claims.
IV. Content of the reforms
140. In its representation, SITRAJOR refers to the content of the constitutional reforms, indicating that they have caused alarm among indigenous organizations because they consider that in general they contravene the fundamental provisions of the Convention, in particular with respect to lands, territories and natural resources. The complainants request the Governing Body and the Committee of Experts on the Application of Conventions and Recommendations to carry out an investigation on the compatibility of the constitutional reforms with Convention No. 169.
141. The Committee considers it appropriate, taking into account the general nature of the complainants' request, to ask the Committee of Experts to carry out this analysis. The Committee of Experts has already raised questions in this regard in its comments in 2001, asking the Government for information on the following questions: definition of indigenous peoples; self-identification, ethno-linguistic criteria; the rights of indigenous peoples to lands, territories and natural resources; and the power granted to federal entities to define who indigenous peoples are in their states. As indicated above, the Committee of Experts' examination was interrupted by the submission of the present representation. The Committee therefore suggests to the Governing Body:
(a) that it request the Committee of Experts to carry out a thorough study of the compatibility of the constitutional reforms with Convention No. 169; and
(b) that it request the Government to present a detailed report to the Committee of Experts in 2004 in reply to the 2001 comments.
142. The Committee recommends that the Governing Body adopt the present report, in particular the recommendations contained in paragraphs 108, 139 and 141, and that it declare the present procedure closed.
Geneva, 19 March 2004.
Point for decision:
Paragraph 142.
Endnote 1
GB.282/14/2.