Introduction
First of all I would like to re-iterate my gratitude to the Mexican government for inviting me and allowing me to pursue my mission in an independent matter. I would also like to thank OHCHR-Mexico for the support provided.
During my visit, I met with representatives of the Ministry of Foreign Affairs; the National Security Commission; the Ministry of the Interior; the Mechanism for the Protection of Human Rights Defenders and Journalists; the National Commission for the Development of Indigenous Peoples; the Consultative Council of the National Commission for the Development of Indigenous Peoples; the National Council to Prevent Discrimination; the National Council for the Evaluation of the Development Policy; the National Institute for Women; the National Institute of Indigenous Languages; the Ministry of Agrarian, Territorial and Urban Development; the National Commission of Forests; the Ministry of Agriculture, Livestock, Rural Development, Fishing and Alimentation; the Ministry of Environment and Natural Recourses; the National Service of Salubrity, Innocuousness, and Agro-alimental Quality; the Intersectorial Commission of Genetically Modified Organisms; the National Commission of Water; the Federal Prosecutor of the Protection of the Environment; the Ministry of Culture; the Ministry of Finance; the Ministry of Public Education; the Ministry of Social Development; the Ministry of Health; the Ministry of Energy; the Ministry of Tourism; the Ministry of Communications and Transport; the Ministry of Economy; and the National Institute for Anthropology and History
In addition, I held meetings with representatives of the Federal Attorney General’s Office, the National Commission for Human Rights, the National Electoral Institute; the Supreme Court of Justice of the Nation; the Council of the Federal Judiciary; the Electoral Tribunal of the Judicial Power of the Federation and the Superior Agrarian Tribunal. Also, I met with representatives of the State Governments of the States of Chiapas, Chihuahua and Mexico City and with representatives of the Municipality of Tlapa de Comonfort in the State of Guerrero. Unfortunately, I was not able to meet with representatives of the legislative power, despite it having been included in my agenda for the mission.
I regret to mention that the level of substantive engagement and interaction in some of the meetings I had with governmental authorities was at times limited. To the contrary, at the state level in Mexico City, Chihuahua and Chiapas, the dynamic proved to be more productive. Due to the lack of time to have in depth discussion on the many relevant issues, I have sent written questions and I appreciate the answers I am receiving and which I will examine to develop my country report.
I also had the possibility to meet various indigenous representatives in Mexico City, Chiapas, Chihuahua and Guerrero. In total, I had the opportunity to meet more than 200 members of indigenous peoples, half of which were women. They belonged to 23 different indigenous peoples and “pueblos originarios” and travelled from 18 different states. I have the intention to forward a list of the cases which were presented to me and for which I obtain the consent of the people involved, to the Ministry of Foreign Affairs.
I also held meetings with civil society organizations, representatives of the private sector, the UN country team and other relevant actors.
The objective of the visit was two fold: to assess the implementation of the recommendations made by my predecessor Special Rapporteur Rodolfo Stavenhagen in 2003, and to evaluate how Mexico has incorporated its international human rights commitments.
Mexico is an incredibly vast, diverse and complex country. Taking this into account and the limited time available for the official visit, I will focus in this preliminary statement on the main systemic issues and challenges I identified. I will review the considerable amount of information I have received in the coming months as I develop my country report.
Mexico played a leading role in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples (“UN Declaration”) and further, President Peña Nieto reaffirmed Mexico’s commitment to the implementation of this UN Declaration during the 2014 UN World Conference on Indigenous Peoples. I recognize and commend Mexico’s support for the advancement of the indigenous agenda in the international fora, including the support for my mandate. This commitment has to be consistent and should be reflected in the implementation of these standards in Mexico.
Special Rapporteur Stavenhagen recommended a revision of the constitutional reforms related to indigenous peoples in accordance with the principles enshrined in the San Andrés Agreements. In addition, a pending issue repeatedly emphasized by indigenous peoples was the need for constitutional recognition of indigenous peoples as subjects of public law and not as mere subjects of public interest. Indigenous peoples expressed that this is an ongoing reflection of structural discrimination and invisibility that they continue to face to date. This has been observed by CERD in 2012 which expressed its concern at the deeply rooted racial discrimination in Mexico despite a highly developed institutional framework for combatting it.
A major development since Professor Stavenhagen’s visit was the 2011 constitutional reform which is an important step in furthering Mexico’s international commitments and obligations.
According to its reform of article 1, Mexico’s international human rights obligations are directly applicable and can be invoked in all levels of the federal structure implying that the legislation, public policies and judicial decisions have to respect, protect and promote these international obligations. In the case of indigenous peoples, this includes International Labor Organization Convention 169 on Indigenous and Tribal Peoples, the jurisprudence of the Inter-American Court of Human Rights, and the United Nations Declaration on the Rights of Indigenous Peoples, which reflects the scope and content of indigenous peoples’ rights grounded in the universal human rights instruments of general application. In the following comments, I will point out particular areas that need to be subject to this harmonization.
Current inadequate legal recognition of indigenous peoples as rights-holders and structural discrimination are the thread that underlies all the topics and concerns I will highlight in this statement. These include lands and territories; autonomy, self-determination and political participation; self- identification of indigenous peoples; access to justice violence and impunity; the right to determine development priorities; consultation and free, prior and informed consent; economic, social and cultural rights; and the particular situation of specific sectors of indigenous peoples.
There are some recurrent and cross-cutting issues to be considered in the context of the topics discussed in this preliminary statement. First, there seems to be a lack of consistency in the approach to the identification of indigenous peoples. In this regard, reference could be made to the fact that the concept of self-identification is correctly used by some federal and state institutions such as the ministry of health while others use the criterion of the inclusion in governmental lists in order to recognize a person or community as indigenous. The debate on the ‘pueblos originarios’ and ‘comunidades equiparables’ have to be interpreted in this light as well.
Also, there seems to be a lack of disaggregated data on indigenous peoples in the different governmental institutions, and when they exist, it is not clear how these data are used in the elaboration of public policies or normative instruments to ensure that ‘no-one is left behind’.
Lands, territories and natural resources
Stavenhagen devoted attention to land rights as a central issue in his report. I do also consider this to be a fundamental critical issue that is at the root of many of the human rights problems I observed. International instruments on the rights of indigenous peoples stress the special relationship they have with their lands, territories and natural resources. Despite the recommendations by my predecessor, no real measures have been taken and the land rights regime remains at odds with the relevant international standards.
The agrarian reform creating ejidos, communal lands and private property, as well as, related legal instruments, are not designed to effectively implement international standards related to indigenous peoples’ rights to lands, territories and natural resources. Moreover, it has apparently not been effective in resolving land disputes or overlapping land claims nor has it provided an adequate safeguard to other conflicts related to development projects and other activities promoted by agrarian authorities or outside interests. This agrarian land regime has disregarded indigenous peoples’ own traditional boundary systems, their concept of territories and their forms of organization and representation.
The information I received indicates that indigenous peoples who attempt to obtain land rights recognition through the agrarian systems obtain limited results that do not take into account the indigenous peoples’ rights to lands, territories and natural resources. On the other hand, I have seen that the National Human Rights Commission and judicial decisions have at instances reflected international standards on lands and territories.
The official position seems to suggest, and this has been confirmed in some of my meetings with Federal and state authorities, that the agrarian reform has effectively responded to indigenous peoples’ land rights demands and that no further debate on this issue is necessary. However, the information received during my visit clearly points out that this a critical unresolved issue. In this sense, a more comprehensive response should be based on contemporary international standards on the rights of indigenous peoples, including the Inter-American jurisprudence which provides authoritative guidance on the legal, administrative and policy measures needed to adequately address indigenous peoples’ lands, territorial and natural resource rights. These measures should be developed in full cooperation with indigenous peoples themselves.
Autonomy, self-determination and political participation
The recognition of indigenous peoples’ rights to autonomy and self-determination in Article 2 of the Constitution is a significant advancement. However, as Special Rapporteur Stavenhagen noted, this same article “hems it round with restrictions which make it difficult to implement it in practice.” The information I received during my visit indicates that in practice, the existing legal, political and institutional framework does not allow for the effective recognition and exercise of these rights. Furthermore, the agrarian regime presents limitations to indigenous peoples’ self-government since it established governance structures that do not always reflect indigenous peoples’ own distinct political institutions and very often undermines them.
In light of article 1 of the Constitution, the concepts of self-determination and autonomy are to be interpreted and implemented according to international standards. In this sense, attention should be given to the recognition of indigenous peoples’ right to self-government, the right to elect their own authorities according to their own procedures and the use of their own normative and juridical systems.
I have received information of some instances in which, as a response to the above, indigenous peoples themselves are developing and strengthening their own systems of autonomy and self-government. An example of this, is the election of municipal authorities according to indigenous usages and customs. Some of these efforts have been recognized by federal and state authorities, which is a good practice, such as the electoral tribunal’s decisions on the case of Cherán, Michoacan. Indigenous peoples’ efforts and initiatives in the areas of autonomy and self-government need to be further recognized, promoted and accommodated within the overall political structure of the country.
In addition to self-government, indigenous peoples have the right to participate fully if they so choose in the political life of the country. I have seen some positive advancements that could facilitate indigenous peoples’ political participation in this regard, such as the possibility to register independent candidates, efforts to increase access to birth certificates and official registration to allow participation in the federal, state and municipal elections, and a call to political parties to include indigenous candidates within their lists. However, many obstacles remain to ensure full political participation of indigenous peoples. Information was received on persisting practices of undue pressures on indigenous peoples to influence their votes during electoral processes.
The right to determine development priorities
Another aspect of self-determination is the right to freely pursue economic, social and cultural development. The UN Declaration enshrines the right of indigenous peoples to “determine and develop priorities and strategies for exercising their right to development”. Many indigenous peoples mentioned that their development priorities and strategies were not considered in the current legal and policy framework related to economic development. Moreover, far from having a positive impact on the economic situation of indigenous peoples, data shows that poverty among indigenous peoples remains disproportionately high compared to the non-indigenous population. In this regard, data from CONEVAL indicates that while 71.9 percent of the indigenous population lives in poverty or extreme poverty, the number for the non-indigenous population is 40.6 percent.
In recent years, there has been an increasing concern about mega-projects promoted by the Government and related issues of consultation and free, prior and informed consent. In its 2015 report on the human rights situation in Mexico, the Inter-American Commission on Human Rights cited figures that up until 2013, there were approximately 2,600 mining concessions in Mexico, many of them located on indigenous lands without prior consent. Additionally, it received information that 35 percent of the national territory had been affected by more than 29,000 mining, hydroelectric and wind power concessions – 17 percent of them within indigenous territories. Thus, it identified violence related to mega-projects authorized on indigenous lands and territories without prior consultation and consent as one of the major human rights violations that indigenous peoples in Mexico face1.
Moreover, during its 2016 visit to Mexico, the Working Group on Business and Human Rights also found that a recurrent theme in the complaints it received referred to “inadequate consultation with individuals and communities affected by major development projects” which, along with inadequate levels of transparency, has generated “a high level of distrust among different stakeholders”.
During my visit, I heard consistent complaints about economic development projects that were not adequately consulted and have led to land dispossession, environmental impacts, social conflicts and criminalization of indigenous community members opposing them. These include mining, oil and gas, hydroelectric, wind, solar, infrastructure, tourism and agro-industrial projects. Repeated concerns were expressed about the 2013 energy reform and the establishment of special economic zones on indigenous lands.
In my view, there is a need for a real dialogue in equal terms between governmental authorities and indigenous peoples about the definition of the concept of development that can lead to joint decision-making about development in indigenous territories. This is the only way to ensure the achievement of the UN Sustainable Development Goals leaving no one behind and pursuing a transformative agenda.
Consultation and free, prior and informed consent
The implementation of the duty to consult indigenous peoples was another recurring concern. I was informed of recent normative developments incorporating consultation requirements. These include certain institutional protocols, judicial decisions and secondary legislation, such as in the energy reform.
How consultation has been conceived and implemented in Mexico so far has been the subject of concern, particularly with regards to consultations carried out in certain mining, energy, extractive, infrastructure and agricultural projects. It has been repeatedly pointed out that consultation processes have not been prior in nature since decisions authorizing these activities have already been made. In addition, different actors pointed out difficulties such as the lack of clarity on who should be consulted, who the indigenous representative authorities are and the level of capacity and resources of the institutions in charge of consultation processes. Other problems brought to my attention are the lack of trust and mutual understanding between the parties, the lack of an effective intercultural dialogue, and the lack of access to full and culturally adequate information about the activities and measures proposed. Past development projects that have impacted indigenous peoples have also contributed to this lack of trust. The information received indicates that the ineffective implementation of consultation processes has contributed to divisions and conflicts within indigenous communities.
The lack of clarity and consistency in consultation processes has lead to public debates on the topic and initiatives at the federal and state levels to develop a law on prior consultation. I would like to stress that even in the absence of national domestic legislation in this regard, Mexico is already obligated to consult indigenous peoples about any activity or legislative and administrative measure that could affect them, according to the standards contained in the ILO Convention 169, the Inter-American jurisprudence and the UN Declaration. The enactment of specific legislation is not the only mechanism to implement the right to consultation and consideration should also be given to the fact there is not a single model of consultation, as each indigenous people has its own authorities and decision-making processes. I encourage indigenous peoples, State and other actors to also discuss other options, including the development by indigenous peoples of their own protocols as to how the State should engage with them. In any case, the particular mechanism or mechanisms through which the State is to engage with indigenous peoples about any measure or activity that could affect them, should itself be the result of processes of dialogue and consultation according to international standards.
In addition, I would also like to reiterate previous comments and observations I have made about substantive aspects of the principles of consultation and consent. This includes emphasizing the nature of consultation and consent as safeguards of indigenous peoples’ substantive rights recognized in the aforementioned international legal sources and instruments applicable to Mexico. Regarding consent, this would be required when a measure, plan or program could have significant impacts on indigenous peoples' lands, territories, natural resources, cultures and other substantive rights. In addition, any decision taken without the consent of an indigenous people should be subject to review by a judicial or other type of competent body in order to ensure that the State can prove that the measure meets international standards regarding permissible restrictions on human rights and that the substantive rights and survival of an indigenous people are not affected2.
Violence, impunity and access to justice
I would like to touch upon two vital aspects related to access to justice of indigenous peoples: the recognition of their own juridical systems and their access to the ordinary justice system.
Indigenous peoples’ justice systems are recognized in the Mexican Constitution under the term ‘usos y costumbres’. As discussed in my meetings with judicial and other authorities, there is still no adequate harmonization and coordination of indigenous and State ordinary jurisdictions to make that recognition effective. According to Mexican authorities, impunity in the country is as high as 98-99 percent. Impunity adds to the suffering of the victims of human rights violations and eliminates the incentives for the perpetrators to respect the law. Effective recognition of indigenous jurisdiction could help in fighting this serious problem.
There have been advances in the recognition of different forms of indigenous justice systems, such as community police, indigenous tribunals and other conflict resolution systems, as was recommended by Special Rapporteur Stavenhagen.
However, this recognition has been made on an ad hoc basis and differs from state to state. I strongly recommend that there is an in depth discussion between the Judiciary, relevant Mexican authorities and indigenous peoples with a view to develop such harmonization. This would include mechanisms to ensure that indigenous peoples´ exercise of their justice systems does not result in their criminalization.
Access to the ordinary justice system was identified as a serious problem by Special Rapporteur Stavenhagen in his 2003 report. I was informed of various initiatives and programs instituted by Government institutions meant to facilitate access to justice. This includes measures adopted by the justice system to improve due process rights of indigenous individuals who are defendants before the State criminal justice system, such as the provision of interpreters in indigenous languages. I was also informed about the efforts developed by the Federal Public Defender´s Office, the National Human Rights Commission and some State justice institutions providing attention to indigenous individuals in prison, anthropological expert advice, and liberation of indigenous prisoners in pre-trial detention. This is a good practice that should be strengthened and provided with all the necessary human and financial resources.
Problems related to access to justice are also present with respect to cases of extreme violence against indigenous peoples often related to land and territorial issues. Numerous cases of serious human rights violations of indigenous peoples from different states in the country have been brought to my attention during my meetings, most of which remain unresolved. These include allegations of massacres, killings, enforced disappearances, rape, torture and forced displacement which have been attributed to actions by individuals, organized crime, paramilitary groups, law enforcement officials and the military, often in the context of development projects affecting their lands and resources.
I was informed that it is particularly difficult for indigenous peoples affected by these gross human rights violations to access the ordinary justice system for several reasons including, among others, the physical distance from justice administration institutions, language barriers, lack of adequate legal assistance, lack of economic resources to adequately pursue a case, fears of reprisals if a complaint is filed, and the lack of appropriate protection mechanisms. I was informed of a “black number” (cifra negra) of cases which are not reported to the authorities and which have to be taken into account.
I have also perceived the lack of trust of indigenous peoples in the ordinary justice system, linked to the lack of implementation of favorable judicial decisions and the lack of adequate reparations and guarantees of non recurrence.
Problems with justice are also present in the agrarian tribunal system. Complaints were received about the time taken by Agrarian Courts to decide on cases brought by indigenous peoples for the demarcation and recognition of their lands as ejidos, which have been a source of intra and inter-community conflicts. In this regard, Special Rapporteur Stavenhagen had recommended that the “Agrarian justice should also be reviewed as it affects the collective rights of the indigenous communities and peoples, bearing in mind traditional methods of land use and customary forms of solving conflicts and disputes.”
Given the difficulties indigenous peoples face in access to justice, the legal writ of amparo has been an important mechanism repeatedly used by indigenous peoples to protect their fundamental human rights. However, this mechanism presents limitations as it is only case-specific and, despite the high number of similar cases presented, this has not resulted in a comprehensive solution to the land rights issues faced by indigenous peoples.
I also recognize the importance of the support civil society organizations provide to indigenous peoples in instituting legal actions for the protection of their human rights. I consider it to be unacceptable that they are subject to any kind of stigmatization, harassment or attacks for performing this role.
I am glad that Mexico has adopted a Mechanism for the protection of human rights defenders and journalists. In this regard, and consistent with the comments made this year by the Special Rapporteur on the situation of human rights defenders, Michel Forst, I would also like to underline the need to consider culturally adequate and collective protection measures in the case of indigenous peoples.
Economic, social and cultural rights
The information received during the visit indicates that indigenous peoples face huge challenges and particular obstacles for the effective enjoyment of their economic, social and cultural rights. There are many elements that contribute to this situation, but some of the key factors include the historical and structural discrimination, the conditions of multi-dimensional poverty, and the lack of sufficient and culturally adequate basic services, among others.
Official statistics from 2015 indicate that 55.5 percent of the indigenous population resides in municipalities considered to be of “high” or “very high” levels of marginalization. 87.5 percent of indigenous municipalities (where indigenous population amounts to 70 percent or more of the population) present conditions considered to be of high or very high levels of marginalization3.
With regards to education, the same statistics indicate that 16.6 percent of the indigenous population older than 15 years had not obtained any formal school instruction, contrasting with the 6 percent for the overall population. Similarly, only 14.6 percent of the indigenous population had obtained advanced secondary education, and 7 percent a higher education level, compared to a 21.9 percent and 18.2 percent respectively for the overall population4.
In terms of health, I received various complaints with regards to the lack of adequate facilities and doctors in indigenous communities. Although it appears that efforts are made to increase the health coverage and ensure a culturally adequate perspective, challenges remain to be addressed. The recognition of and support to traditional medicinal systems, including indigenous midwives, could help in filling this implementation gap.
Various actors raised concerns about significant budget cuts that particularly affect institutions addressing indigenous peoples’ issues and indigenous peoples themselves, and stressed that some of the governmental programs were not designed taking into account the worldviews and specificities of indigenous peoples and were reflecting a “handout” (asistencialista) perspective.
Specific groups
Internally Displaced Indigenous Peoples
The situation of violence, and the general context of impunity which also affects indigenous peoples has also caused a great number of forced displacements. Information received in all States visited confirms that the presence of organized crime, “caciques”, or other armed groups has caused a climate of violence, impunity, social and cultural disintegration, ultimately leading to a large number of displacements of entire indigenous families and communities to live in urban areas or with other indigenous communities. Cases of displacement in the framework of land related conflicts, as well as direct and indirect impact of megaprojects were also brought to my attention.
Such a situation is particularly worrying and calls for an urgent action by the State, in accordance with international standards including the Guiding Principles on Internal Displacement, to ensure that all internally displaced people have the right to an adequate standard of living. This includes culturally adequate basic services. In addition, the Mexican State has the duty and responsibility to establish conditions, as well as to provide the means, to allow internally displaced persons to return voluntarily, in safety and with dignity.
Unfortunately, in many of the cases brought to my attention, displacement has been prolonged and efforts to ensure the return of displaced families and communities were insufficient. Although some Government institutions recognized this situation of displacement, there does not seem to be a comprehensive coordinated policy and response to the phenomenon. I would like, however, to stress the recent recommendation No. 39/2017 of the National Human Rights Commission regarding forced internal displacement in the State of Sinaloa that recognises this complex issue which provides an important first step in the official recognition of this problem.
Children and youth
I am also particularly worried by the situation of indigenous children and youth, in such a context of extreme poverty, violence and impunity. This raises many concerns, including malnutrition, infant mortality and human trafficking.
In different States visited, I received complaints linked to the forced enrolment of children and youth by organized crime. Given the absence of law enforcement and other state institutions in remote indigenous communities in zones affected by organized crime and drug production and trafficking, the choice left to the youth is to join these groups or to be tortured, disappeared or killed.
Migrants
I would also like to stress, although very briefly, the preoccupying situation of indigenous day labourers as well as the situation of indigenous migrants, either working in or passing through the Mexican territory. They are often confronted with multiple forms of discrimination, tend to be invizibilized in their live and work, are afraid and unable to access complaint mechanisms, and are disproportionately vulnerable to discrimination, exploitation and marginalization. This requires a wholistic and adequate response.
Women
The situation of women would deserve a longer analysis, however, I like to stress in my preliminary findings that in each state visited, I had a private meeting with indigenous women, who shared their main concerns. These include feminicide, intra-communal violence against women, maternal death, obstetric violence, forced child marriage, discrimination in access to lands and the lack of inclusion in traditional and formal decision making processes.
Conclusion
I would like to conclude by saying that in view of the above, an implementation gap persists both related to the recommendations made by Special Rapporteur Stavenhagen and the UN Declaration. The Mexican Government should recognize its responsibility for the problems described above and take decisive steps to show its real commitment to fulfill the rights of indigenous peoples. This could create the necessary conditions for a sustained and inclusive dialogue with indigenous peoples addressing all these outstanding issues and provides an opportunity to establish trust and create a new relationship between indigenous peoples and the State based on equality, respect and non-discrimination.
I would like to express my continued commitment to provide technical support to the Mexican authorities.
I would like to end by thanking indigenous peoples who have received me in their territories and those that travelled far to share their stories with me. I am inspired by your strength and determination in continuing to defend your rights and those of others.
Notes:
1. IACHR, The Human Rights Situation in Mexico, OEA/SER.L/V/II/. (31 December 2015), [“IACHR Mexico Report”], paras. 252-3.
2. See, “Consultation and consent: Principles, experiences and challenges”, Presentation by the UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz, for the International Colloquium on free, prior and informed consultation: International and regional standards and experiences (Mexico City, 8 November 2016). Available at: http://unsr.vtaulicorpuz.org/site/index.php/en/statements/166-consultation-and-consent; Comentarios de la Relatora Especial de las Naciones Unidas sobre los derechos de los pueblos indígenas en relación con el Anteproyecto de Ley Marco de consulta libre, previa e informada a los pueblos indígenas y afrohondureños (Honduras), 22 December 2016, pp. 18-20. Available at: http://unsr.vtaulicorpuz.org/site/images/docs/special/2016-honduras-unsr-comentarios-anteproyecto-ley-consulta-sp.pdf.
3. CDI, Indicadores socioeconómicos de los pueblos indígenas de México, 2015, Coordinación General de Planeación y Evaluación, p. 18. Available at: https://www.gob.mx/cms/uploads/attachment/file/239921/01-presentacion-indicadores-socioeconomicos-2015.pdf.
4. Ibid.