Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

1. The Committee notes the communication of the Government, dated 4 January 2007, containing its comments on the observations made by the Independent Union of Workers of La Jornada (SITRAJOR) concerning the report adopted by the Governing Body in March 2004 on the representations made by the Union of Academics of the National Institute of Anthropology and History (SAINAH), the Trade Union of Workers of the National Autonomous University of Mexico (STUNAM) and the Independent Union of Workers of La Jornada (SITRAJOR) (GB.289/17/3). It also notes a communication received on 3 September 2007 from the Mexican Union of Electricians (SME), which was forwarded to the Government on 17 September 2007.

2. Communication of the Government of Mexico. Background. The communication was provided in the context of the follow-up to the report of the Governing Body of March 2004 (GB.289/17/3). Pursuant to the recommendations contained in the Governing Body report, in 2004 the Committee requested the authors of the representation to provide the information requested in point (g) of paragraph 139 of the abovementioned report (forced sterilization). In 2006, the Committee noted the reports of the Commission for the Defence of Human Rights (CODDEHUM-GUERRERO) and of the National Human Rights Commission, provided by SITRAJOR, which referred to complaints, investigations, observations and recommendations regarding cases in which members of public health institutions, both state and federal, were alleged to have carried out vasectomies on indigenous men and placed intrauterine devices in indigenous women as a birth control method without their free, informed and shared consent, in the States of Guerrero and Oaxaca. It also noted the report on a specific local study alleging that the health system for indigenous communities is precarious, and referring to the inhumane and discriminatory treatment of indigenous persons in health-care centres, and the practice of forced contraception of women by tying their fallopian tubes without their consent. It noted the report of the Committee on the Elimination of Racial Discrimination (CERD) on the 15th periodic report of Mexico (CERD/C/473/Add.1), dated 19 May 2005, which refers to the same issue.

3. The Committee notes the Government’s indication in its communication dated 4 January 2007 that the SITRAJOR communication provides certain documentary evidence with the objective of creating the impression that there is an intentional practice of sterilization by the authorities, which cannot be substantiated. The Government adds that the “Report on forced or involuntary sterilizations in a community” does not indicate its authorship, documentary source, date, or the community or location in which the alleged facts occurred, which undermines its validity. It further indicates that the paper prepared by the country Rapporteur for the report of Mexico to the CERD, of 15 February 2006, which indicates that the practice of forced sterilization of indigenous people has undoubtedly existed in Mexico (paragraph 29), is based on paragraphs 153, 154 and 155 of the document CERD/C/473/Add.1 and, in the view of the Government, these paragraphs do not provide a basis for inferring that forced sterilization actually exists. The Government referred to information from the Office of the Attorney-General of the Republic (PGR), that no substantiated record of such acts has been found, nor has any investigation been carried out based on complaints of alleged abuses against the peoples of these communities on the grounds of sexual and reproductive health practices (reports are attached by the delegations from Oaxaca and Guerrero of the Office of the Attorney-General dated October 2006).

4. The case of Oaxaca. With regard to the allegations of the placing of intrauterine devices against the will of the person concerned, the National Human Rights Commission issued recommendation No. 46/2002 in which it called for the following: (i) administrative responsibilities to be established and the Public Prosecutor’s Office informed; and (ii) the personnel of the Mexican Social Security Institute (IMSS) to be instructed to train family planning staff on informed consent. With regard to the first point, in accordance with the Federal Act on public servants, there is a period of prescription of three years for the imposition of penalties and, as the alleged offences occurred on 7 January 2000 and the internal supervisory authority was notified on 10 March 2003, the IMSS was barred from taking any action within its own responsibilities. With regard to the second recommendation concerning training, the Government attaches materials relating to the training provided on family planning and reproductive health and indicates that the fourth report of the National Human Rights Commission indicates that recommendation 46/2002 has been given full effect.

5. The Guerrero case. With reference to the communication from SITRAJOR alleging that vasectomies were carried out on 14 men from Ojo de Agua, Ocotlán, La Fátima and El Camaleón, the Committee notes recommendations Nos 041/99 and 035/2004 of the Committee for the Defence of Human Rights of Guerrero which call for: (1) the conducting of an investigation; (2) the compensation of those affected; and (3) the issuing of instructions to the personnel of the health secretariat so that family planning policies are in compliance with the Convention.

6. The Committee notes that the Government provides information on numerous reproductive health activities and programmes and, in particular, the signing of a letter of intent aimed at the strengthening of inter-institutional collaboration for the reproductive health of the indigenous population.

7. Articles 2 and 3 of the Convention. The Committee emphasizes that forced sterilization constitutes a serious violation of the Convention. The Committee draws the Government’s attention to its obligation under Article 2 of the Convention to guarantee respect for the integrity of indigenous peoples and their rights. This requires the immediate adoption of effective measures to investigate and punish rapidly these acts, when they occur. The Committee, therefore, requests the Government to provide information on any measures adopted in cooperation with indigenous peoples to prevent these intolerable practices as alleged in this case, and, where appropriate, to identify and punish those responsible, and to guarantee remedies for victims.

8. Articles 2, 25(2) and 33. Coordinated and systematic action with the participation of indigenous peoples and cooperation in health services. The Committee recalls that, in accordance with Article 25(2) of the Convention, “health services shall, to the extent possible, be community-based. These services shall be planned and administered in cooperation with the peoples concerned and take into account their economic, geographic, social and cultural conditions as well as their traditional preventive care, healing practices and medicines.” Moreover, Articles 2 and 33 refer to coordinated and systematic action in cooperation with the peoples concerned in the policies and programmes affecting them. For many years, the Committee has been reiterating the need to institutionalize the participation of indigenous peoples in policies which affect them, in accordance with Articles 2 and 33, as an essential framework for the proper application of the other provisions of the Convention. The Committee requests the Government to promote community-based health services for indigenous peoples with their full participation and to provide information in this respect. The Committee requests the Government, with the representative organizations of indigenous peoples, to strengthen consultation and participation bodies so that they can effectively participate in the public policies which affect them, from their design to their evaluation. It particularly requests the Government to include indigenous peoples in reproductive health programmes at the national and local levels so that these complex questions can be addressed and resolved in the country through the bodies and procedures prescribed by the Convention. The Committee asks the Government to keep it informed on this subject.

9. Communication from the Mexican Union of Electricians (SME). The Committee notes the allegations contained in this communication of violations of the rights of consultation and participation of indigenous peoples in the case of the hydroelectric project “Presa La Parota”. The Committee will examine this communication in detail at its next session, together with any comments that the Government may consider it appropriate to make. When making comments, please indicate in particular the manner in which, when giving effect to Article 15(2) of the Convention in this case, account was taken of the provisions of Article 13(2) of the Convention.

10. The Committee requests the Government in its next report, in addition to its comments on the issues addressed by the Committee in this observation, to reply to the comments made by the Committee in 2005 and 2006. The Committee requests the Government to accord special attention to the comments made by the Committee to follow up the recommendations of the Governing Body in relation to three representations: (1) the Governing Body report adopted in March 2004 (GB.289/17/3): the Committee expects the Government to address the issues of consultation, constitutional reform and land rights, as well as other matters raised in the allegations by SITRAJOR; (2) the Governing Body report adopted in June 2006 (GB.296/5/3): the Committee is awaiting the Government’s first report on the follow-up measures taken in relation to the recommendations made by the Governing Body; and (3) the Governing Body report adopted in June 1998 (GB.272/7/2): the Committee examined a communication in 2005 from the National Union of Education Workers (SMTE) alleging failure to comply with the recommendations made by the Governing Body in the above report, which essentially relate to the lands of the Huichol. The Committee requests the Government to provide detailed information on these matters.

11. Noting that a large proportion of the representations and communications addressed by the Committee refer to consultation and participation, the Committee requests the Government to provide information on the specific measures adopted to set up appropriate bodies and machinery for consultation and participation, to seek solutions that are inclusive of the various interests at stake on the basis of dialogue, to prevent the recurrence of disputes relating to the issue of consultation and participation and to keep the Committee informed in this respect.