Racism and All Forms of Discrimination and Intolerance
CIVIL SOCIETY CONTRIBUTIONS
Consolidated Document of the Draft Inter-American Convention Against Racism and all Forms of Discrimination and Intolerance (CAJP/GT/RDI-57/07 corr.1)
(Document prepared by the Summits of the Americas Secretariat)
CIVIL SOCIETY CONTRIBUTIONS:
Consolidated Document of the Draft Inter-American Convention Against Racism and all Forms of Discrimination and Intolerance (CAJP/GT/RDI-57/07 corr.1) (Document prepared by the Summits of the Americas Secretariat)
I. INTRODUCTION The Summits of the Americas Secretariat of the General Secretariat of the Organization of American States presents this compendium of contributions to the Working Group to Prepare a Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance of the Committee on Juridical and Political Affairs (CAJP) of the OAS Permanent Council in accordance with the request of the Chair of the Working Group. The presentation of these civil society contributions complies with resolution AG/RES. 2276/07 "Draft Inter-American Convention Against Racism and all Forms of Discrimination and Intolerance", in which the OAS General Assembly instructed the Working Group to continue to receive contributions from representatives of indigenous peoples, entrepreneurs and labor groups, and civil society organizations, in accordance with CP/RES.759 (1217/99) of the Permanent Council: “Guidelines for the Participation of Civil Society Organizations in OAS Activities” and CP/RES. 840, (1361/03) “Strategies for Increasing and Strengthening Participation by Civil Society Organizations in OAS Activities”. Such Permanent Council resolutions were endorsed by the OAS General Assembly in resolutions AG/RES. 1707 (XXX-O/00) and AG/RES. 1915 (XXXIII-O/03), respectively.
The Summits Secretariat disseminated an open call for contributions among those civil society organizations included in the OAS Registry of Civil Society Organizations and those not registered but included in the Summits Secretariat database, requesting their comments on the Consolidated Document of the Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance (CAJP/GT/RDI-57/07 corr.1) and established the deadline of January 29, 2008 for the submission of these contributions. This Secretariat furthermore disseminated electronic communications to remind civil society organizations of the forthcoming deadline and opened a space on the OAS Civil Society Website to publicize the initiative.
The Summits Secretariat received twenty one (21) contributions from civil society organizations. These submissions are presented textually in the language and format in which they were received for the consideration of the Working Group to Prepare a Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance.
II. CIVIL SOCIETY CONTRIBUTIONS
Civil Society Organization: Afroamérica XXI
Elvia Duque, Directora de Relaciones Internacionales
Contribution: Consideramos que el proyecto en su concepto general es adecuado y que el grupo de trabajo ha efectuado un excelente labor, teniendo en cuanta que el tema de discriminación continua siendo actualmente un tema tabú para muchos países en la región, por lo cual reconocemos este invaluable paso para combatir la discriminación en las Américas.
Sin embargo, Afroamérica XXI quisiera presentar las siguientes observaciones para que sean tomadas en cuanta al momento de una nueva discusión en el tema. Estas son:
El proyecto elaborado es amplio en el tema de discriminación. Como es de reconocimiento de los miembros del grupo de trabajo ha habido discusiones y estudios previos (como la conferencia mundial contra el racismo – Durban) que han permito reconocer la existencia de grupos fuertemente discriminados, marginalizados, excluidos y vulnerados, como es el caso de los pueblos afro-descendientes e indígenas en las Américas. Ambos grupos con grandes grupos poblacionales en los diferentes países de la región y pese a esto, estos pueblos continúan cada vez enfrentándose a fuertes discriminaciones. Por ende, consideramos que es necesario que una Futura Convención Interamericana Contra el Racismo y Toda Forma de Discriminación e Intolerancia genere estrategias que permitan a estas comunidades/pueblos el goce de sus derechos fundamentales. Focalizar mas este documento en estas comunidades/pueblos que han sufrido históricamente de fuertes atropellos permitiría avanzar en la lucha contra la discriminación y racismo en nuestras sociedades, además, de generar verdaderos estados democráticos en las Américas.
Es fundamental que el proyecto incluya mecanismos de participación de la sociedad civil en las diferentes etapas de la Convención, principalmente que permita establecer procedimientos básicos en el dialogo con los Estados y el Comité Interamericano para la Prevención, Eliminación y Sanción de Todas las Formas de Discriminación e Intolerancia. La voz de las comunidad/pueblo Afro-descendiente recae actualmente en las organizaciones que las representan por lo que establecer mecanismos de participación permitiría crear una Convención Interamericana Contra el Racismo que sea verdaderamente eficaz y efectiva.
Como representante de una coalición nacional Afro-descendiente Colombiana al examinar en el capitulo II de los Derechos Protegidos en su articulo 5, consideramos que puede ser contraproducente por la falta de claridad al describir que estará a disposición de los Estados la pertinencia de reconocer o no los derechos colectivos del pueblo Afro-descendiente. El reconocimiento de los derechos colectivos del pueblo Afro-descendiente no puede observarse como condicionado a la voluntad estatal o de entidades privadas, estas conductas permiten que este pueblo continúe siendo discriminado y violentado en sus derechos fundamentales.
Reconociendo que el racismo y la discriminación son conductas asumidas y aceptadas por las sociedades incluso en muchos casos por las mismas victimas, es preciso que el proyecto estudie la necesidad de fomentar en los Estados la creación de instancias que permitan a las victimas de racismo y discriminación a acceder a educación, empleo y servicios de salud, entre otros. Además de desarrollar campanas educativas publicas para combatir el racismo, discriminación e intolerancia. Estas campanas podrían ser un fuerte paso para educar a las sociedades de lo negativo de estos actos y la importancia de tener una diversidad étnica y cultural.
El proyecto describe que estas medidas especiales dirigidas a grupos focalizados discriminados para generar condiciones de igualdad, no constituyen discriminación, sin embargo, no creemos que esta sola descripción este fomentando en los Estados la necesidad de crear instancias que fomenten las condiciones de equidad necesarias en los países.
A pesar que el proyecto presentado promueve que los estados prevengan, eliminen y sancionen las manifestaciones de racismo, discriminación e intolerancia, consideramos que el proyecto debe de incidir más y fomentar en los Estados la creación de instancias especializadas para procesar casos de racismo, discriminación e intolerancia tanto a nivel público como en la esfera privada. Para aquellos países que cuenten actualmente con estas instancias el proyecto debe de ir dirigido a mecanismo de evaluación de sus funciones. Estas instituciones deben de brindar a sus funcionarios entrenamientos en el tema de racismo y discriminación para garantizar que cumplan sus objetivos.
Por ultimo, consideramos que el Comité Interamericano para la Prevención, Eliminación y Sanción de Todas las Formas de Discriminación e Intolerancia debe solicitarle a los estados informes en el tema cada dos o tres años.
Civil Society Organization: Amnesty International
Ian Seiderman, Senior Legal Advisor
London, United Kingdom
Contribution: The comments made on the specific provisions of the Draft Convention are made on the basis of the English version of the text. Amnesty International notes serious discrepancies between the English and Spanish translations (see for examples Article 6), including both editorial mistakes and variations in contents.
A) Amnesty International welcomes the progressive and inclusive approach taken in Article 1.1. The organization also believes that in order not to include a lower standard to that of Article 2 of the UN Declaration on the Rights of Indigenous Peoples1 (UN Declaration) and the Draft American Declaration on the Rights of Indigenous Peoples (American Draft Declaration), Article 1.1 should include “indigenous origin or identity” as a prohibited basis for discrimination. The UN Declaration clearly includes a reference to indigenous identity and the American Declaration in its current draft states that “[i]ndigenous persons and communities have the right to belong to the indigenous peoples, in accordance with the identities, traditions, customs, and systems of those peoples.”2 Amnesty International further welcomes the inclusion of sexual orientation and especially – “gender identity and expression” – in the draft Convention. However, “gender” and “gender identity” are different concept and must not be subsumed into one generic term.
The organization further believes that it is important to add “regular or irregular migrant status” in order to provide protection for migrant in an irregular situation. The term “nullify or curtail” in the same paragraph could be replaced by “impair”, which is a formulation common in public international law instruments and jurisprudence. The draft should also include “asylum seekers” in addition to refugee status. We consequently suggest that the paragraph should be amended to read:
“Discrimination shall mean any distinction, exclusion, restriction, or preference based on race, color, heritage, national or ethnic origin, [indigenous origin or identity], nationality, sex, [gender], age, sexual orientation, gender identity and expression, language, religion, opinions of any kind including political opinions, social origin, socioeconomic status, [regular or irregular migrant status], refugee [or asylum seeker], or displaced status, birth, stigmatized infectious-contagious condition, genetic trait, disability, debilitating psychological distress, or any other social condition whose purpose is to [impair] the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Party, in any area of public or private life.”
B) Amnesty International welcomes a broad approach to indirect discrimination; however, the principle of legality must be respected at all times. The concept and the incurred responsibility should therefore be defined in greater detail. The organization further believes that the term “reasonable objective or justification” should be replaced by “compelling” in order to express a higher threshold for justification of differential treatment. The latter part of Article 1.1 here extracted would consequently read:
“This concept also includes indirect discrimination, which shall be taken to occur, in any realm of public and private life, when an apparently neutral provision, criterion, or practice cannot be readily complied with or carried out by persons belonging to a specific group, or puts it at a disadvantage, unless the provision, criterion, or practice has some [compelling] objective or justification.”
C) In reference to Article 1.2 and the definition of racism, Amnesty International suggests that “That” is substituted with “This” reading:
“[This] concept includes structural racism, which refers to a system in which public policies, institutional practices, cultural representations, and other standards generally reinforce inequality among different racial groups.”
Amnesty International welcomes the inclusion of special measures in Article 1.4, for the purpose of adequate advancement of the enjoyment or exercise of one or more human rights and fundamental freedoms.
Article 2 sets out the definition of “intolerance” separately from the definitions of “discrimination” and “racism” contained in Article 1. It is not clear if the drafters have intended to include the element of racism under the concept of intolerance, and therefore have excluded the references to “racism” in Articles 7, 14, 17.iv of the Draft Convention.
For clarity, Amnesty International suggests that Article 2 is inserted as a sub-paragraph under Article 1 and that the term “racism” is inserted in the following articles to maintain consistency.
Amnesty International recommends that Article 7 reads: “The States [Party] undertake to prevent, eliminate, and punish, in accordance with their constitutions and the provisions of this Convention, all acts and manifestations of [racism,] discrimination and intolerance that are based, inter alia, on the criteria set forth in Article 1.1.”
Article 14 should also be amended to include research on the “nature, causes, and manifestations of [racism,] discrimination or intolerance in their respective countries, at the local, regional, and national levels, and to collect, compile, and disseminate data on the situation of groups that are victims of discrimination and intolerance.”
The Inter-American Committee for the Prevention, Elimination, and Punishment of [Racism and] All Forms of Discrimination and Intolerance (Articles 15 and 17.iv ff) should be amended in the same line for consistency.
Article 5 of the Draft Convention refers to the collective rights of indigenous peoples and when pertinent to persons of African descent that are indispensable for their survival as peoples. Amnesty International welcomes the affirmation of Indigenous Peoples’ rights in the draft Convention and the identification of the widespread discrimination faced by Indigenous Peoples and the subsequent urgent need for protection. The organization acknowledges that international protection of Indigenous Peoples’ rights, including the right to be free from discrimination, is in the midst of a positive evolution as marked by the adoption of the UN Declaration on the Rights of Indigenous Peoples by the United Nations General Assembly on 13 September 2007.
The American Draft Declaration, in its Article XI3 also contains a specific paragraph on special guarantees against racism, racial discrimination, xenophobia, and related forms of intolerance. It would therefore be important that these guarantees are taken into account in the drafting of the present Convention.
Amnesty International recommends that the Working Group links up with the Working Group to Prepare the Draft American Declaration on the Rights of Indigenous Peoples to ensure consistency.
Article 6 refers to various acts and manifestations of racism, discrimination, and intolerance that must be considered discriminatory and subsequently should be prohibited by States.
In subparagraph 6.iii we suggest that the term “crimes under international law” is inserted to cover all such crimes in addition to crimes against humanity and genocide.
“Publication, circulation, or dissemination, by any means of communication, including the Internet, of materials that deny, condone, or justify acts that constitute [crimes under international law, including] genocide or crimes against humanity;”
Amnesty International also suggests that a reference to the victim’s “family” is inserted in Article 6.v, reading:
“Hate crimes, understood as criminal activity in which the victim or the victim’s [family or] property is chosen intentionally based on any of the criteria set forth in Article 1.1;”
Amnesty International believes that the wording “multiple or aggravated victim status” in Article 6.viii of the English version (Article 6.x in the Spanish version), should be replaced by “subjection to” multiple or aggravated “forms of discrimination”. We suggest that the paragraph be amended to read:
“Any distinction, exclusion, restriction, or preference applied to persons, because of their [subjection to] multiple or aggravated [forms of discrimination], the purpose or result of which is to deny or impair the equal recognition, enjoyment, exercise, or protection of rights and fundamental freedoms.”
In Article 6.ix of the English version (Article 6.vii of the Spanish version), Amnesty International suggests that the broad and inclusive provisions of Article 1.1 is referred to in this paragraph. Consequently the paragraph would read:
“Any discriminatory restriction on the enjoyment of the human rights enshrined in applicable international and regional instruments and in the jurisprudence of international and regional human rights courts, [that applies to any of the criteria set forth in this Convention];”
Article 27 of the International Covenant on Civil and Political Rights4 refers to “ethnic, religious and linguistic minorities”. Amnesty International consequently recommends that “religion” is added to the list in Article 6.x. of the English version (Article 6.viii of the Spanish version).
The organization also recommends that the “vulnerable” in “vulnerable groups” is deleted. We suggest that the paragraph reads:
“Any restriction or limitation of the use of the language, traditions, customs, [religion] and culture of persons or groups who are members of minorities or […] groups [protected by Article 1.1], in public or private activities;”
Article 6.xiii of the English version (Article 6.xi of the Spanish version), refers to the denial of access to economic, social and cultural rights. The term “all” is ambiguous and should therefore be deleted.
The Article should also include a reference to “adequate food, water and sanitation, to education, and to equal participation in cultural life” in order to reflect the emerging recognition of these rights, according to the ICERD read with the International Covenant on Economic, Social and Cultural Rights (ICESCR).
[Any distinction on the basis of any of the prohibited grounds identified in Article 1.1 in the equal enjoyment of] social, economic, and cultural rights, including [but not limited to] the right to work, to [adequate] housing, to social security, to [the highest attainable standard of physical and mental] health [to adequate food, water and sanitation, to education, and to equal participation in cultural life] [or any other human right or fundamental freedom protected by international law];
Article 7 should specify that the duties relate to States “Parties”. Amnesty International reads the current article to include the prevention, elimination and sanctioning of all acts and manifestations of discrimination and intolerance. It is important to note that not all “acts and manifestations” may constitute a criminal offence or incur individual responsibility. The wording should convey a broader notion of responsibility than that of a criminal nature. We would therefore recommend that the paragraph reads:
“The States [Parties] undertake to prevent, eliminate, and [hold accountable], in accordance with their constitutions and the provisions of this Convention, all acts and manifestations of discrimination and intolerance that are based, inter alia, on the criteria set forth in Article 1.1.”
Amnesty International also recommends that a reference be included to other international treaties that establish state responsibility for prevention and punishment of acts contrary to international law.
In addition, a paragraph should be added to Chapter IV, requiring that: [States parties ensure that the Convention is given domestic legal effect, through necessary legislative, administrative, judicial or other measures, to prevent acts and manifestations of discrimination and intolerance.]
I) Amnesty International welcomes the inclusion of special differential or preferential measures. However, we believe that it is important to state clearly that such measures should be “targeted to the assessed need and be proportional”. Therefore, we recommend that Article 8 reads:
“The States Party undertake to adopt the special differential or preferential measures and policies needed to ensure the enjoyment or exercise of rights and fundamental freedoms of persons or groups that are subject to racism, discrimination, or intolerance for the purpose of promoting equitable conditions for equal opportunity, inclusion, and progress for such persons or groups. Such measures or policies [should be targeted to the assessed need and be proportional and] shall not be considered discriminatory or incompatible with the purpose or intent of this Convention, [sic] shall not lead to maintaining separate rights for different groups, and shall not be continued beyond a reasonable period or after their objective has been achieved.”
J) Article 12 refers to compensation. Amnesty International has noted that this provision that should include remedy and reparations, only refers to one form of reparation namely compensation.
Amnesty International did raise this issue in our first set of comments (AI Index: TIGO IOR 63/2006.001 of 31 July 2006 enclosed) as this formulation falls short of existing international standards. The UN Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, adopted by the General Assembly in 2005, provides for the following components, recognized under general international law, of which some or all may be necessary for full and effective reparations. These include: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.5 Amnesty International considers that it is important to expand the provision to “cover full and effective reparations, including restitution, fair and adequate compensation, rehabilitation, satisfaction and guarantees of non-repetition.” We recommend that the Article reads:
“The States Party undertake to ensure that the victims of racism, discrimination, and intolerance receive equitable treatment, equal access to the justice system, expeditious and effective proceedings, and [full and effective reparations, including restitution, fair and adequate compensation, rehabilitation, satisfaction and guarantees of non-repetition] in the civil or criminal sphere, as applicable. In addition, they shall adopt the legislative measures necessary to ensure that the burden of proof will be reversed and the defendants will have to show that procedures and practices have been adopted that ensure equitable and non-discriminatory treatment.”
Article 17 refers to various mechanisms to monitor the implementation of the commitments assumed by the States Party to this Convention. Amnesty International believes that this Article should mention “obligations” instead of “commitments” to emphasize the legal obligations derived from the treaty. The suggested wording reads:
“In order to monitor the implementation of the [obligations] assumed by the States Party to this Convention:”
In Article 17.ii, the Draft Convention suggests that State parties may “consult the Commission on questions related to the effective application of this Convention.”
It is unclear how an advisory opinion would relate vis a vis the Inter-American Court of Human Rights, the supreme organ of interpretation of the American Convention of Human Rights (Article 64) and related treaties. Amnesty International believes that the draft should clarify how the mentioned consultative functions coincide or relate to those of the Inter-American Court of Human Rights. Preference should be given to consultative competence of the Court in accordance with other OAS treaties. However, this preference should not limit the Commission’s functions relating to recommendations to States Parties on human rights questions. It should furthermore not limit the Commission’s role as an advisor to the political bodies of the OAS and its Member States, or in carrying out its functions on technical cooperation. The paragraph should be amended to read:
“[Without prejudice to the provisions and powers of the Inter-American Court of Human Rights on the consideration and issuance of Advisory Opinions as provided in the American Convention on Human Rights t]he States Party may consult the Commission on questions related to the effective application of this Convention. They may also request the Commission’s advisory assistance and technical cooperation to ensure effective application of any provision of this Convention. The Commission will, to the extent that it is able, provide the States Parties with the requested advisory services and assistance.”
M) Amnesty International notes that Article 15 refers to the creation of a national institution that shall be responsible for monitoring compliance with this Convention. Amnesty International welcomes the initiative on the establishment of national monitoring institution to assess states compliance with the Convention. We further note that this institution’s representative will also be the states’ representative to the Inter-American Committee for the Prevention, Elimination, and Punishment of [Racism and] All Forms of Discrimination and Intolerance (the Committee) established by Article 17 iv.
In relation to Articles 15 and 17.iv, it is important to establish criteria on selection of representatives for the monitoring mechanisms. The effectiveness of the national institutions and the Committee depends on the appointment of independent and highly qualified members, serving in their personal capacity, with strong commitment to human rights. All states should therefore refrain from nominating candidates who hold positions in the executive or administrative branch of government and who are, or appear to be, in a conflict of interest with the work of the Committee. Member States should also propose women candidates in the nomination process.
It is important that the principles of transparency expressed in Article 4, 6, 26 and 27 of the Inter-American Democratic Charter6 are considered in the creation of the monitoring mechanism not only to strengthen accountability of member states’ policies and the evaluation of member states compliance with the future Convention, but also so as to enable civil society organizations to make better informed contributions and to increase participation.
The Member States should actively involve civil society organizations to participate in the nominations process, including by assisting states in obtaining applications from highly qualified candidates and providing information on how the applicants meet the requirements of the post. The process could be similar to that of the public roster used by the UN for nominations to the appointments of mandate holders for the Special Procedures.
Interested stakeholders from civil society should also be able to access State reports and Committee information and to send and present information to the Committee in public sessions. The principles of transparency and access to information shall be present at all times during the monitoring process.
Article 17.iv. and v. should consequently be amended to read:
“iv. An Inter-American Committee for the Prevention, Elimination, and Punishment of [Racism and]All Forms of Discrimination and Intolerance shall be established and shall be comprised of [independent and highly qualified] experts from each of the States Party, [serving in their personal capacity, with strong commitment to human rights]. [States Parties should also give due consideration to adequate gender representation in the nominations process.] The first meeting of the Committee shall be convened by the Secretary General of the OAS as soon as the tenth instrument of ratification has been received, and the first meeting shall be held at the headquarters of the Organization three months later for the purpose of declaring its establishment, approving its Rules of Procedure and its Working Method, and electing its officials. That meeting shall be presided over by the representative of the country that deposits the first instrument of ratification of this Convention.”
“v. The Committee shall be the forum for the exchange of ideas and experience, as well as for examining progress made by the States Party in implementing this Convention and any circumstance or difficulty affecting the extent of compliance therewith. Said Committee may recommend to the States Party that they adopt the appropriate measures. For this purpose, the States Party undertake to submit a report to the Committee, within one year of its first meeting, with respect to performance of the obligations contained in this Convention. The reports that the States Party submit to the Committee shall [be public and] contain disaggregated data and statistics on vulnerable groups. Thereafter, the States Party shall submit reports every four years. The General Secretariat of the OAS shall give the Committee any support it requires for the performance of its functions.”
In relation to Article 21, Amnesty International considers that no reservations should be included in human rights treaties. The current trend in international law is not to include provisions allowing for reservations, see for example the Optional Protocol to the Convention on the Elimination of Discrimination against Women, the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Statute of the Rome Statute of the International Criminal Court.7
The organization further firmly believes that, in relation to Article 23 on denunciation, it is inappropriate that a State which has ratified or acceded to a treaty is permitted to denounce it or withdraw from it.8