Committee on Economic, Social and Cultural Rights considers report of Chile

Committee on Economic, Social
  and Cultural Rights

10 June 2015

The Committee on Economic, Social and Cultural Rights today concluded its consideration of the fourth periodic report of Chile on the implementation of the provisions of the International Covenant on Economic, Social and Cultural Rights.

Introducing the report, Marcos Barazza Gomez, Minister of Social Development of Chile, said that in just 10 years, Chile had halved the number of people living in poverty, implemented a social protection system focused on the vulnerable, established the system of protection of early childhood, and reformed the pensions.  The recent tax reform would ensure an additional $ 8.3 billion to fund educational and health reform in a quest to overcome the inequality gap.  In 2015, Chile approved the Law on Inclusion to put an end to profit making in publicly funded schools, and established the Ministry for Women and Gender Equality to bolster policies to remove barriers and discrimination that women still felt in all walks of life.  Chile was embarking on a new relationship with indigenous peoples based on the protection and promotion of individual and collective rights; projects on the creation of the Ministry of Indigenous Peoples and the Indigenous Peoples Council would be sent to the Congress by the end of this year.  Further, a bill was being developed to decriminalize abortion in delicate situations involving a vital risk to the life of the mother, congenital malformation of the foetus, and pregnancies resulting from rape.  The National Council for Childhood, created in 2014, was developing the National Policy on Children and Adolescents and the draft Law on Guarantees for Children and Adolescents.

Committee Experts recognized the important political changes in Chile such as the health system reform, introduction of the non-contributory pension system, and the creation of the national human rights institution in accordance with the Paris Principles, but expressed serious concern about deep inequalities in the society which made Chile one of the most unequal countries in the Organization for Economic Co-operation and Development and in Latin America.  Chile had managed to reduce poverty during the period 1990-2006, but poverty reduction measures were limited and not effective in reducing inequality, including among indigenous peoples.  Chile did not recognize the rights of indigenous peoples, which was a source of concern for the Experts who asked about the application of the principle of prior consultation and the mechanism for the restitution of ancestral land and water.  Many laws were still discriminatory because of deeply entrenched gender stereotypes, which called for stronger action on the part of the Government to review all laws, policies and programmes from a gender perspective, and to introduce more special temporary measures.

Responding, the delegation said that the Government was committed to adopting a new Constitution rooted in inclusive and participative processes and consultation with citizens.  There was indeed a significant difference in poverty rates between indigenous and non-indigenous peoples, but this gap was closing; the poverty among indigenous peoples had been reduced from 44 per cent in 2006 to 23.4 per cent in 2013.  The Equal Remuneration Act had been promulgated to address the gender pay gap, but its implementation had been difficult; the Quota Law was being used to ensure the balanced participation of women and men in Parliament, political parties, State run companies and regional administrative entities.  The reform of the pension system had introduced non-contributory pensions: more than one million requests for non-contributory pensions had been made between 2008 and 2013, of which over 80 per cent had been accepted.  The reform of the educational system started in 2014 with a focus on providing free and quality education to all and to eliminate inequality, exclusion and discrimination.  The State had taken over the ownership of the system, profit making by publicly subsidized private schools was prohibited and it was hoped that 93 per cent of State subsidized educational establishments would become free of charge by 2018.

Renato Zerbini Riberio Leao, Committee Expert and Country Rapporteur, said in closing remarks that it was clear from the comprehensive and clear replies provided by the delegation that Chile had a genuine intention to improve the human rights situation in the country.

In concluding remarks, Mr. Barazza Gomez said that more human rights based policies were needed, and that this required a Constitutional change; the constitutional reform process would start in September 2015 with the full participation of citizens.

Waleed Sadi, Committee Chairperson, said in his closing observations that Chile’s ratification of the Optional Protocol would be the most powerful signal marking the intention to observe and respect the rights in the Covenant. 

The delegation of Chile consisted of representatives of the Ministry of Social Development, Supreme Court of Justice, Ministry of Foreign Affairs, Ministry of Health, Ministry of Labour and Social Security, Ministry of Education, National Service for Women, National Institute for Human Rights, and the Permanent Mission of Chile to the United Nations Office at Geneva.

The Committee will release its formal, written concluding observations and recommendations on the report of Chile towards the end of its three-week session, which will conclude on 19 June 2015.

The next public meeting of the Committee will be at 3 p.m. this afternoon when it will start its consideration of the initial report of Uganda (E/C.12/UGA/1).
 
Report
 
The fourth periodic report of Chile can be read here: (E/C.12/CHL/4).
 
Presentation of the Report
 
MARCOS BARAZZA GOMEZ, Minister of Social Development of Chile, said that in just 10 years, Chile had successfully reduced the number of people living in poverty by half and doubled social expenditure during the 1990-2000 period.  Since 2002, Chile had been progressively implementing the social protection system with a focus on the vulnerable; it had established the system of protection of early childhood Chile Grows with You, and reformed the pensions.  Even if the Constitution did not incorporate economic, social and cultural rights, those rights were justiciable.  The Government aimed to overcome the inequality gap, which required a reform of the education system and the strengthening of the health system.  The resources for the reform would come from the recently approved tax reform which would ensure the availability of an additional $ 8.3 billion for social expenditure.  The Law on Inclusion had been approved in May 2015 which had put an end to profit making in publicly funded schools, while the Ministry for Women and Gender Equality had been created in 2015, to bolster policies to remove barriers and discrimination that women in all walks of life still felt.  During 2015, a legislative process would begin to establish an Under-Secretary for Disability.  Chile was embarking on a new relationship with indigenous peoples based on the protection and promotion of individual and collective rights and had conducted consultations on the creation of the Ministry of Indigenous Peoples and the Indigenous Peoples Council; both projects would be sent to Congress for discussion during the last quarter of 2015.  In addition, Chile had allocated an impressive budget in 2015 for the purchase and restitution of land, the highest since the entry into force of the Indigenous Law of 1993. 

Making progress in gender equality was another priority, and measures to increase the participation of women in public life had been agreed.  A draft Law was presently being developed which would allow abortions in three delicate situations: vital risk to the life of the mother, congenital malformations of the foetus, and pregnancies resulting from rape (until 12 weeks of gestation or 18 weeks for girls aged 14 or under).  The Law on Civil Union Agreements would enter into force in October 2015 and would regulate legal aspects of living together of heterosexual and same-sex couples.   The National Council for Childhood that was created in 2014 was developing a National Policy on Children and Adolescents and the draft Law on Guarantees for Children and Adolescents.  The Second National Survey of Disability was being developed, which was key in defining a comprehensive strategy and the elaboration of the national plan for social inclusion for persons with disabilities.  The challenges in overcoming poverty were medium and long term, and required maintaining and improving benefits of low-income families, and in 2014 another measure had been added to the existing monetary transfers, that of Permanent Family Contribution, which had benefitted 3.3 million families.  The Winter Bonus had been restored benefitting two million pensioners. 

Chile had made progress in building a social protection system which ensured access to public services and goods for more people and families, constituting the basis on which to build public policies in the coming years.  The greatest challenge was to continue increasing the coverage and quality of services, reduce inequalities and further expand the institutions and spaces allowing full enjoyment of human rights.  The progress in building a democratic and social state of rights created a concrete demand for a new Constitution, and this process would start in September 2015 and would be open to all citizens.

Questions from Experts

RENATO ZERBINI RIBERIO LEAO, Committee Expert acting as Country Rapporteur, took note of important political changes in Chile which included health system reform, introduction of a non-contributory pension system, the creation of the Environmental Ministry, and the creation of the national human rights institution in accordance with the Paris Principles.  What budget had been adopted to support this institution and how was its independence ensured?  Chile should consider including economic, social and cultural rights into the Constitution during the upcoming revision process.  The Committee was concerned about the non-recognition of indigenous peoples as well as about the implementation of the principle of prior consultation, corruption, mining, privatization of the education sector, the almost total ban of abortion, discrimination and gender inequality. 

Chile had managed to reduce poverty during the period 1990-2006, but found it difficult to maintain that level since, said another Expert and noted that Chile was among the most unequal countries in the Organization for Economic Co-operation and Development and in Latin America.  Was Chile aware of the deep inequalities and what measures were being taken to address it?  Was discrimination on socio-economic status prohibited, and if not, why not?

There was a two-tier system in almost all State policies, including in education and in health, and it appeared that there was a strong commitment to use economic growth for social progress; however, inequalities were growing.  How did Chile perceive the role of the State to protect: what was the regulatory framework for Chilean companies working abroad, and how did Chile make sure that its obligations under the Covenant were protected in free trade agreements?  There was a constitutional process to recognize indigenous peoples, but the process was at a standstill in the Congress since 2009 – what was the state of play?

In terms of the process of Constitutional revision that would start in September, an Expert asked about the mechanism which would ensure the participation of citizens in this process and what steps were being taken to recognize economic, social and cultural rights in the new Constitution and make then justiciable.  The head of the national human rights institution was summoned by the Parliament to account for a decision she had taken; was this practice in line with the Paris Principles?

Concerning the issue of indigenous peoples, a Committee Expert asked the delegation to describe the mechanism in place to ensure the restitution of ancestral land, and the process of prior consultation with indigenous communities,  

The draft Law on Migration had been introduced to the Congress in 2013; at which administrative stage was it at the moment?

Many laws were still discriminatory because of deeply entrenched gender stereotypes, which called for stronger action on the part of the Government to review all laws, policies and programmes from a gender perspective, and to introduce more special temporary measures.  Chile was an extremely and deeply unequal society, also due to the lack of social mobility and in which social inequality and exclusion was legitimized.  One of the sectors in which this was most obvious was the education sector.  Chile was now trying to reform an authoritarian Constitution in a piecemeal fashion.

WALEED SADI, Committee Chairperson, stressed the obligation of States parties to make economic, social and cultural rights justiciable and the best way to do it was to ratify the Optional Protocol.

In the 1970s, the whole world had been looking at Chile while it was embarking on the process of privatization, but this process had not been very successful in ensuring social protection.  Chile had to recently reform the pension system because the contributions from the private systems were not sufficient to ensure a sustainable system.  The State was the ultimate guarantor of economic, social and cultural rights and the delegation was asked, if it had a chance, would Chile still opt for the same path.  What were the unemployment rates in the country, and also the rate of long-term unemployment?  Almost 40 per cent of all workers were not regulated with any form of labour legislation: what was the size of the informal economy, what percentage of the workforce did it employ and how was it covered with social protection?  What was the level of social transfers and how did they relate to the cost of living; what mechanism was in place to ensure that conditionality did not lead to exclusion and to ensure that the burden did not fall on women?

Response by the Delegation

Committee Experts commented that there appeared to be two Chiles, one with measures for social rights and another one with inequality, segregation and class warfare in which it was difficult for citizens to be fully included.  Chile had made significant progress in implementing policies of human rights and reducing inequality, but had not been  very successful in changing institutions.  Starting in 2011, the new cycle of socio-economic change addressed the society vs. individual economic, social and cultural rights, the tax reform, and the Constitution and its reform.  The origin of the current Constitution was not legitimate, which limited the power of the State and economic, social and cultural rights. 

The Government was committed to adopting a new Constitution rooted in an inclusive process which enabled citizens to participate.  The President would soon announce the creation of a mechanism which would enable a participative debate on the new Constitution and on economic, social and cultural rights, particularly inequality.  It was true that there were high levels of inequality in Chile.  The difference between the income of the ten percent of the poorest and the ten percent of the richest was nearly 30 per cent, although this difference dropped to 17 per cent when Government measures were taken into account.  The tax reform was the first measure undertaken to address inequality, and additional income was being used for health, education and pension provision.

To date, 36 consultations had been undertaken with indigenous peoples, including on the setting up of the Ministry of Indigenous Peoples and the National Council of Indigenous Peoples, which had laid the foundation for the submission of bills planned for the last quarter of 2015.  The 2015 budget earmarked $ 197 million for land and water restitution and more than $ 20 million were in the pipeline to finance consultations.

The Constitution did not provide a complete catalogue of rights of guarantees and did not protect all the rights, and some of them only in some aspects.  Despite the weaknesses of the Constitution in this respect, the judiciary understood that their main duty was to protect the dignity of those in their jurisdiction and saw the protection of economic, social and cultural rights as their main task.  An amendment to article 5 of the Constitution allowed the application of the provisions of international treaties ratified by Chile in the national legislation, thus invoking the economic, social and cultural rights from the Covenant.

Many measures had been undertaken in order to create a society free of discrimination, and the law put in place protection mechanisms, while courts could void discriminatory measures and levy fines.  Gender was defined in the law as a ground for discrimination.  Categories of grounds for discrimination were not exhaustive and were open-ended.  The Electoral Law had been promulgated last January and promoted measures to achieve gender parity in the candidates’ lists, while the President herself was committed to increase women’s participation in public life and in leadership positions.

Questions from Experts

A Committee Expert asked about measures to address domestic violence and about their effectiveness, and the intention to prohibit corporal punishment.

Another Expert inquired about linkages between public food programmes and little farmers, or campesinos, who needed markets for their produce, and whether there was a body that integrated several sectors, such as health, nutrition, tax, in order to promote a healthy diet in a holistic fashion.

In terms of specification of domestic violence, an Expert noted that “habitual ill treatment” was a requirement for criminalization, and asked about the definition of “habitual” and why the requirement was there in the first place.  When would the new legislation on abortion enter into force?  Could the delegation comment on forced sterilization of women and girls with disabilities and the measures taken, and on the operations conducted on intersex children without parental consent?

There were reports about an increase in child labour over the past five or six years; was this true and if so what measures were employed to counter this?  There was a lack of social housing for vulnerable and marginalized groups, particularly in rural and urban disadvantaged areas.  Was there a legal framework on forced evictions that complied with international standards and what measures were taken to ensure that protection was afforded to the large number of people living in slums who were vulnerable to forced evictions?  Poverty reduction measures were limited and not effective in reducing inequality; what targeted measures were being adopted to reduce poverty among indigenous peoples?  About 50 per cent of health expenditures in Chile were family expenditures, indicating deep inequalities in the health care system. 

The privatization of the education system had led to the situation in which the public schools, which were less resourced and equipped, were attended by the children of lower socio-economic status, while private schools were reserved for better off children.  This restricted social mobility and led to discrimination and exclusion.  Could the delegation comment on the Law on Education for Indigenous Peoples, and on the maintenance of indigenous peoples?  

WALEED SADI, Committee Chairperson, said that the cohesion of the country would be jeopardized with the two-tier system in education.

Response by the Delegation

Responding to the questions related to the rising rates of poverty in the country, a delegate said that the poverty line had been updated, while a new multidimensional concept of poverty would be introduced, in line with the legal definition of poverty and the right to an adequate standard of living.  There was a significant decrease of poverty between 2006 and 2013 in all regions and among the population of all ages.  The poverty among indigenous peoples had been reduced from 44 per cent in 2006 to 23.4 per cent in 2013.  There was indeed a significant difference in the poverty rate between indigenous and non-indigenous peoples, but the gap was closing.  Chile was looking into introducing a new poverty measuring system which would be in line with the 2015-2030 United Nations objectives on sustainable development.  Cash transfers were provided to low-income families provided that their children were in school and attended regular health checks. 

The number of households without access to safe water had been reduced through a number of programmes and initiatives, from over 50 per cent in 1990 to 8.1 per cent in 2011.  Chile had suffered several years of severe drought which had jeopardized the provision of drinking water; a Commission had been appointed by the President to develop a new water policy which would consider the right to water as a human right.  There had been a 40 per cent reduction in the number of persons living in camps and slums, from 775,000 persons in 1992 to 459,000 persons in 2013; Chile had been on track to achieve the Millennium Development Goal in this regard, but had been set back by the 2010 earthquake. 

The Equal Remuneration Act had been promulgated to address the gender pay gap, but its implementation had been difficult; a pilot programme was in place to promote the employment of women in non-traditional sectors, such as construction and mining.  The More Capable programme looked into training 300,000 women over a four-year period, providing them with education and higher education, and assisting them with job seeking.  The rights of women were being incorporated into collective bargaining measures.  The Gender Equality Commission was led by the Ministry of Women and coordinated action on the rights of women in general.  The Quota Law was being used to ensure the balanced participation of women and men in Parliament, political parties, State run companies and regional administrative entities.  The draft Law on Social Protection Floors was currently before Parliament.

The reform of the pension system had introduced non-contributory pensions: more than one million requests for non-contributory pensions had been made between 2008 and 2013, of which over 80 per cent had been accepted.  The impact of the pension reform was significant for women as it improved the number of those who received pension benefits. 

Chile had embarked on the process on business and human rights last year, and was developing a National Action Plan on Human Rights and Business which would be coordinated by the Ministry of Foreign Affairs.  The development of this plan had been proposed by the Council of Social Responsibility.  The National Institute of Human Rights firmly adhered to the Paris Principles and was accredited with Status A.  The budget enjoyed by the institution had been doubled last year compared to previous years.  Chile was considering the ratification of the Optional Protocol to the International Covenant

Violence against women remained one of the priorities for the Government which invested in prevention, protection and improvement of the legal framework.  There were different mechanisms to lodge a complaint and report incidence of domestic violence.  There were some areas of weakness in the legislation concerning habitual abuse; the President was committed to enacting a new law on violence which would enlarge the notion of domestic violence to include also non-physical manifestations of violence against women.  The Bill on decriminalization of abortion in specific circumstances had been tabled and was currently being discussed.

The child protection programme Chile Grows with You had been established in 2007 to overcome inequalities and to move towards a universal system of guarantees for children and young people.  The National Council for Childhood had been set up with the main task to study all legislation and policy in the country and develop childhood policy.  The Ministry of Health was working on the new Law on Mental Health to ensure the protection of all persons with intellectual disability from forced sterilization.  In June this year, a law had been enacted on funding of medicines for high cost treatment.  All hospitals were obliged to carry emergency contraceptives.

Questions from Experts

The delegation spoke about measures to address gender inequality, but most were future measures, noted an Expert in follow up questions, and asked the delegation to provide the definition of “equal” in the equal pay for equal work principle, and to describe its stance on the privatization of the social protection system and the perception of the State of its own role in ensuring economic, social and cultural rights. 

Response from the Delegation

Educational reform started in 2014; it was a Presidential priority and its main focus was on providing universal, free and quality education to tackle inequality and exclusion.  Historically, the education system was composed of public and private schools, with a very strong State control, but from 1980s the focus had been on the private schooling and deregulation.  The reform tackled this model which had become entrenched in the society. 

The Law on Exclusion and Non-discrimination established the legal framework of the educational system and ensured the State’s ownership of the system again.  Indigenous languages and culture were recognized and it was compulsory to teach indigenous language with schools where more than 20 per cent of students were indigenous.  Different measures were being put in place to ensure the equal treatment of lesbian, gay, bisexual, transgender and intersex children in schools, including through teaching on gender identity in the curriculum, preventing bullying and others.

The education reform looked at education as an absolute right and a social asset.  In terms of the progress made so far, Law 2845 on Social Inclusion had been adopted to eliminate exclusion and discrimination on socio-economic grounds and to prohibit profit making in publicly subsidized private schools.  Expulsion of students for poor performance was prohibited and schools were seen as a social good.  All schools receiving public subsidies would become free of charge; it was hoped that in 2018 93 per cent of State subsidized educational establishments would become free of charge.  Education management would become centralized and would come under the State’s authority.  A pilot project had been set up in 2014 to assess quality in educational institutions and ascertain their support needs, and new teacher policies were being developed.  Measures were being taken to ensure progressive moves to free higher education within the next six years.

The problem of pensions was a deep seated one, and the contributions to the pension system were low.  The Chilean population was growing older, with greater life expectancy for both women and men, and there were more pensioners than people in employment.  The whole system needed an overhaul.  Chile was depositing an instrument of ratification of the International Labour Organization Convention 189 concerning decent work for domestic workers at 4 p.m. today at the International Labour Organization in Geneva.

The courts integrated the Committee’s general comments and observations, and had also recognized the progressive nature of economic, social and cultural rights, and the principle of non-regression. 

Concluding Remarks

RENATO ZERBINI RIBERIO LEAO, Committee Expert acting as Country Rapporteur, said that this had been an open and frank dialogue.  It was clear from the comprehensive and clear replies provided by the delegation that Chile had a genuine intention to improve the human rights situation in the country.

MARCOS BARAZZA GOMEZ, Minister of Social Development of Chile, said that the implementation of human rights based polices had contributed to understanding the role of the State in socio-economic policies, and it was clear that it was going further away from the neo-liberal approach which put the State in a subsidiary position in this regard.  More human rights based policies were needed, but this required a Constitutional change and reform process, which would start in September 2015 with the full participation of citizens.

WALEED SADI, Committee Chairperson, said that the intention of Chile to ratify the Optional Protocol to the International Covenant would be the most powerful signal on the intention to observe and respect Covenant rights.  Since Chile was embarking on the process of Constitutional reform, the Committee’s concluding observations were timely and it was hoped they would be taken on board in this process.

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