23 May 2016
“Ladies and Gentlemen,
I am now concluding my official visit to Argentina conducted from 16 to 23 May at the invitation of the Government. During the past ten days, I held meetings in Buenos Aires, the Province of Buenos Aires, Salta and Formosa. I met with Government representatives, both at the Federal and provincial levels, members of the legislative and judicial branches, as well as representatives of civil society, non-governmental organizations, indigenous and migrants’ communities, Afro-argentines as well as victims of discriminatory practices and other relevant groups and actors. I have also been granted access to the penitentiary facility of Ezeiza where I met with prison authorities as well as detainees.
I would like to thank the Federal Government of Argentina for the invitation and cooperation as well as openness in the preparation and conduct of my visit. I would like to thank all my interlocutors for insightful discussions.
I came to Argentina to observe for myself and to get a better understanding of the situation by listening to all relevant stakeholders to assess progress made, to identify remaining challenges to the elimination of racism, racial discrimination and xenophobia; and to engage constructively with the Government on effective ways of surmounting obstacles to the effective implementation of laws, policies and measures in place. Ultimately the aim of my visit is to formulate a set of recommendations to help the Government in effectively addressing racism, racial discrimination and xenophobia, so as to foster an inclusive society which today more than ever is key especially within the framework of the new sustainable development agenda of leaving “no one behind”.
I would like to underline that I undertook my visit without any preconceived ideas and was keen to hear the views, concerns and experiences of all relevant stakeholders in the areas pertaining to my mandate.
During my visit to Argentina, I have paid special attention to the situation of indigenous peoples, peoples of African descent, migrants from the region and beyond as well as, people of Jewish descent and others such as LGBTI and women migrants whose vulnerability is increased due to intersecting factors. My visit has taken place at a moment when Argentina is starting a new political chapter which also represents an opportunity to redefine priorities while programming for the years to come. However, it also means that a thorough and clear assessment is needed on what has been achieved in the past few years and remaining challenges, both at the federal and provincial levels in implementing the 2005 national plan against discrimination as well as the recommendations made by the UN Human rights system including CERD (2010) the latest UPR (2012) and those made by the SR on indigenous issues. Therefore, I really hope that my preliminary observations can be a starting point for the Government to take much needed immediate actions.
Key legislative, institutional and policy achievements
I welcome the stated commitment by the Secretariat of "Human Rights and Cultural Pluralism" to prioritise inclusion and multi-culturalism in the human rights agenda extending the human rights focus beyond memory, justice and reparation to a more comprehensive human rights approach including equal access to rights for all as guaranteed by the Constitution.
Argentina has developed a comprehensive legal framework for the elimination of racial discrimination including constitutional provisions guaranteeing equality in the enjoyment of rights for all inhabitants, whether Argentine or foreign. Act 23.592 establishes discrimination in general, and racial discrimination in particular as civil offences since 1988 and further stipulates that racial hatred and racial persecution are aggravating circumstances in criminal offences. It further identifies participation in racist organizations and propaganda, as well as incitement to persecute or hate on racial grounds as criminal offences (Act No. 23.592, art. 3). This framework could be further strengthened by defining discrimination in general as a criminal offence. In this regard, I welcome current legislative discussion to enhancing the law.
I would also like to highlight the existing framework addressing issues pertaining to specific vulnerable groups such as the indigenous peoples under the soon expiring Act 26.554 prolonging law 21.160 ordering the emergency survey of the ownership of lands traditionally occupied by indigenous communities to avoid forced evictions and Act 23.302 establishing the National Institute for Indigenous Affairs INAI whose stated aim is to ensure that indigenous peoples can exercise full citizenship in compliance with constitutional rights: as well as law 26.206 establishing bilingual inter-cultural education. I also welcome efforts made to acknowledge the existence of Afro-Argentines through a series of symbolic measures. I further note that legal protection has been extended to refugees and asylum seekers as a direct result of the implementation of the 2005 national plan against discrimination.
Argentina’s internationally recognised progressive migration law recognizes migration as a fundamental inalienable right, and aims at ensuring that non-discriminatory procedures and criteria are applied in conformity with the rights and guarantees established by the Constitution and international treaties; and further stresses that migrants should enjoy the same rights as nationals. However, the law is not sufficiently known to the general population and civil servants who has led to the denial of basic rights such as access to housing, and access to healthcare or justice in some cases. Moreover, the absence of a formal plan for the integration of migrants is lacking and these populations often have to rely on civil society and other organisations for their integration which increases their vulnerability.
Argentina has also established a number of institutions aiming at promoting human rights and anti-discrimination such as the INADI that is in charge of implementing the national plan against discrimination, raising awareness and conducting research and surveys on the issue as well as receiving individual complaints. I would like to express my appreciation of the recent swift actions by INADI in coordination with relevant government agencies in addressing neo-nazi violence and anti-Semitic expressions. I also welcome the recent developments in combatting discrimination and hate speech in sports.
I would also like to acknowledge the mandate of the Human rights secretariat under the Ministry of Justice and Human Rights as we as the Federal Council of Human Rights which brings together all the human rights secretariats of the 23 provinces and the city of Buenos Aires.
I note with appreciation the existence of independent monitoring bodies such as the National Ombudsperson, the Federal Prison Monitoring Office as well as the Observatory of Discrimination in Radio and Television which are excellent practices that should be strengthened and fully supported. In this regard I encourage the prompt designation of a National Ombudsperson.
However, I have found that as elsewhere in the world, discriminatory practices often target the poor and in effect the most vulnerable who belong to minority groups including indigenous peoples, Afro-Argentines, and migrant communities. This is sometimes referred to in Argentina as the offence of “wearing a face”.
Despite existing comprehensive legal and institutional framework, effective implementation is lacking and significant challenges persist. In particular, the situation of indigenous peoples in certain areas of the country is appalling as they live in extreme poverty, isolation from others and without access to basic services. While most minorities remain invisible in all spheres of society, the situation is particularly critical and most urgent with regards to indigenous peoples. They are denied access to basic needs such as drinkable water, adequate housing, quality health care, employment opportunities and appropriate and quality education. There are mostly excluded from mainstream social and political life. Indigenous peoples are absent in key decision making positions, even in bodies specifically dedicated to their issues. The methods of consultation with this population are not in adequacy with their culture and understanding of life. Access to land titles remains challenging and new provisions need to rapidly be adopted to protect communities from being evicted with the expiration of law 26.554 in 2017. The system of registration of community land needs to be simplified and adequate assistance provided in the process.
The multicultural bilingual education measure, which is positive, has however experienced limitations in its implementation, perceived as unidirectional by its beneficiaries and further concerns have been raised about the lack of training of teachers assigned to interact with indigenous communities resulting in stigmatization and bias of indigenous children in schools. The very little number of indigenous teachers also remains problematic. Lack of access to adequate healthcare services and facilities, the generally limited number of trained doctors that understand indigenous culture has contributed to the acute condition of maternal and infant health in rural areas. In other places, including urban centers, some healthcare and service providers have failed to extend services to areas largely populated by migrant communities. I have heard of ambulances, postal services or private service providers refusing to operate in certain communities contributing to de facto segregation of certain population groups and their further stigmatization. This stigmatization is also reinforced by the stereotyped portrayal of certain groups, and even nationalities by popular Media. There is therefore a need to reinforce the representation of minority groups in the Media in a non-stereotypical manner and in this regard to support and sustain the Mandate of the Media Observatory that has developed a good practice in engaging in constructive dialogue with all stakeholders.
Most alarming are the reported trends of repression, in several parts of the country, against the mobilization by indigenous groups to claim their rights; and the reprisals against indigenous civil rights defenders and leaders as well as members of their families. These reprisals have also targeted non-indigenous defenders of minority rights including migrants. I therefore call on the Federal Government and provincial authorities to take immediate measures to offer the necessary protections and due process of law for civil rights defenders who are subjected, along with their families, to judicial harassment and persecution by security forces throughout the country; and to open special transparent investigations of suspicious deaths of such minority human rights defenders.
I have heard reports of police profiling and violence against migrants from neighboring countries and beyond and that those acts remain unpunished and investigations of such crimes are seldom conduct; otherwise that the cases are closed without comprehensive investigations or interviewing of concerned parties. The reported systematic police violence against street sellers from Senegal is also of concern.
Access to justice for vulnerable groups starting with indigenous peoples but also migrants and Afro-descendants remains a significant challenge. Difficulties in accessing justice are linked to language barriers, limited awareness of the law, difficulties in finding adequate judicial counsel especially for indigenous peoples, and most alarmingly at times the impossibility to register claims with judicial clerks.
It is also of concern that the linkage between discrimination and denial of basic services is not usually made by the judicial system. The absence of minority groups at the highest positions in the judicial system represents a significant challenge to groups subjected to racial discrimination, in particular indigenous peoples and migrants. I was also informed that in some areas of the country, judges may be complicit in discriminatory practices and reprisals against minority activists. In this regard, it is urgent that the Government undertakes a monitoring of cases filed by minority groups regarding access to basic rights to ensure that discriminatory elements are duly assessed. I also urge the Supreme courts to give the outmost attention to possible discriminatory aspects in reviewing cases brought forth by individuals pertaining to minority groups, especially indigenous peoples who are often denied judicial responses at the provincial level.
Education is a fundamental means of eradicating prejudice, discrimination, stigmatization and for fostering mutual understanding and coexistence. However, it is of great concern that there is not an integrated comprehensive human rights education program aimed at fighting bias and promoting mutual understanding. Moreover, steps to duly recognize the historical contribution of marginalized groups, including indigenous peoples in the educational curriculum are yet to materialize which further contributes to their invisibility but also stigmatization. In this regard, I invite the Government to officially launch the Decade of People of African Descent nationally and promote specific activities designed with the community and aimed at recognizing and establishing the past and present contribution of Afro-argentine in Argentina.
The INADI has engaged in awareness raising efforts to address the stigmatization and stereotyping of refugees, migrants and people of African descent. This work needs to be strengthened especially as regards indigenous peoples. I also welcome the information regarding the significant increase in registration of individual complaints by INADI in the past few months and encourage the institution to reach out to the most remote areas of the country and to pay special attention to indigenous peoples in addition to other vulnerable groups including people of African-descent, migrants and those subjected to cross-cutting vulnerabilities such as LGBTI and women pertaining to minority groups.
Although the INAI is mandated to implement the policy on indigenous peoples and to foster communities’ participation in the design and implementation of State policies that affect them; many of my interlocutors have pointed out that the institution has failed to satisfy its objectives of promoting the respect for traditional forms of organization in decision making process, strengthening ethnic and cultural identities, and creating the basis for comprehensive, sustained development that is compatible with conservation of the environment in the territories where indigenous peoples live. The representation of indigenous peoples at decision making levels within INAI itself is of particular concern; INAI seems to also lack the adequate funding to carry out its mission and is too remote from the communities it is supposed to serve. The mandate of the INAI therefore needs to be strengthened to give it more strong decision making powers and to expand its reach in the provinces. Overall, there here is a need to shift the inclusion policy of indigenous peoples from that of social assistance and welfare to one of rights and justice through State policy in all sectors. A multi-sectorial coordination of this policy from the highest levels of government, in consultation with provincial authorities, is key to a successful implementation both at federal and provincial levels.
The level of implementation of the 2005 national plan against discrimination, which is also a good practice, needs to be thoroughly assessed and new objectives defined with the active participation of concerned groups who should also be duly involved in the monitoring of progress made. In this regard, the lack of reliable data and statistics remains problematic, and it is necessary that the National Statistical Institute designs, in coordination with all Ministries and specialized institutions, protocols for the systematic collection of reliable, comprehensive disaggregated data on a wide range of indicators. Data is key in measuring levels of discrimination, identifying gaps and designing adequate polices as has been stated by the 2030 sustainable development agenda.
I also call upon the Argentine government to establish affirmative action measures to ensure the effective representation of all minority groups in highest decision making positions, and in particular in positions of influence such as in education including university level, judiciary, legislatures and executive positions. This is particularly urgent for indigenous peoples as the current modes of their participation have largely failed to provide them with the voice and visibility necessary to remedy their long history of exclusion and marginalization. The current condition of indigenous peoples cannot wait and requires immediate attention from the highest levels of national and Federal governments.
In conclusion, I would like to appreciate the stated commitment of the new administration to tackle the issue of discrimination. Argentina has many good practices that already provide the example of what is possible. However much remains to be done for the realization of the rights of historically discriminated and marginalized groups. I am also concerned about some recent executive decisions to discontinue some of the existing programs aiming at advancing minority rights in certain sectors. While appreciating the difficulties posed by the economic situation in the country, it is important to stress the importance of maintaining the measures aimed at protecting those that are most vulnerable. I welcome the new national human rights plan and encourage the Federal Government to publicize it and to promote the awareness of its content among the relevant officials and the general population. Finally, the country’s efforts in providing human rights training to various sectors of Government should be strengthened especially among service providers, law enforcement and those in the justice system.
I will be developing a more comprehensive and detailed report with specific recommendations and further urge the Government to fully and effectively implement the recommendations made by CERD, UPR as well as the UN Special Rapporteur on indigenous issues which are yet to be fulfilled.