The Inter-American Commission on Human Rights congratulates the member States for resolutely pressing forward on an issue of vital importance, namely effective promotion of equality and elimination of racism, discrimination, xenophobia, and intolerance. They are essential to the enjoyment of human rights and to the consolidation of the rule of law and democracy in the hemisphere. Article 9 of the Inter-American Democratic Charter provides that the “elimination of all forms of discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the Americas contribute to strengthening democracy and citizen participation.”

International jurisprudence and practice have elevated this principle of non-discrimination on racial grounds to special status within international law. The International Court of Justice held that the prohibition of racial discrimination constituted an obligation erga omnes.1/ One year later, the International Court held that to “enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, color, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the Purposes and Principles of the Charter” of the United Nations.2/ The Inter-American Court of Human Rights, for its part, has recently ruled that norms prohibiting any kind of discrimination are erga omnes or jus cogens, and that given their peremptory nature they must be observed by all States.

To further the objectives of the regional human rights system and honor the principle of efficacy, these guarantees must be enforced. They must not be mere rhetoric or form; international instruments require that the guarantees be executed and enforced. All this on the understanding that the action of protection, in the ambit of the international law of human rights, does not seek to govern the relations between equals, but rather to protect those ostensibly weaker or more vulnerable.3/

The Commission is cognizant of the fact that despite efforts made by the international community and the governments, racism and racial discrimination continue to be a root cause of human rights violations. Discrimination begets an array of disadvantages and violence. For the individual these disadvantages and violence can spell personal tragedy; for a group, they can mean marginalization. But for a nation, they can be an obstacle to the eradication of poverty and weaken the efficacy of the institutions of democratic government. Therefore, the regional system must adopt practical, effective and innovative measures to protect the human rights of those who suffer any form of discrimination.

The Regional Conference of the Americas held in preparation for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance reasserted our governments’ awareness that “in spite of the efforts made by States in the region, racism, racial discrimination, xenophobia and related intolerance still persist in the Americas and continue to be causes of suffering, disadvantage and violence, as well as of other serious human rights violations, which must be fought by all available means as a matter of the highest priority.”4/ The region of the world where wealth distribution is most uneven is Latin America and the Caribbean.5/

From this standpoint of renewed interest in combating racial discrimination, the Commission gives its support to advancing laws in the area of human rights that will expand the scope of internationally recognized protection, and is in favor of establishing a convention against racial discrimination in the inter-American system, as this would strengthen the global and regional strategy in this area.
 
Adoption of regional instruments that reiterate or elaborate on the provisions of international instruments is nothing new. The American Convention on Human Rights itself was approved three years after the International Covenant of Civil and Political Rights. The Inter-American Convention to Prevent and Punish Torture followed the same path, and the San Salvador Protocol was adopted after the International Covenant of Economic, Social and Cultural Rights.
 
In fact, in the international system for protection of human rights, the existence of parallel, complementary laws on the same subject is commonplace. With these laws, one is not superimposed over the other, but rather they reflect certain regional characteristics, strengthen the protection of rights, and amplify verification mechanisms, in accordance with the inherent features of the regional system.

The Commission thus believes that a new Inter-American Convention will provide the American States with a new legal tool to address these complexes issues. In my presentation today, I would like to briefly share with you some thoughts on the process for the elaboration of the new Convention.


1. ELEMENTS TO INFORM THE DISCUSSIONS

The fight against racial and other forms of discrimination are, as I mentioned earlier, at the core of all international mechanisms. Thus, in the last 40 years there is a wealth of documents, treaties, case law dealing with different aspects of these practices. This body of human rights documents should represent the starting point of any discussion in this matter.

In particular, it is important to take into account the inter-American treaties with the specific purpose of addressing particular types of discrimination, in special the Inter-American Convention for the Prevention, Elimination and Punishment of all Forms of Violence against Women and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities jurisprudence. In second term, the practice and case law of the Commission and the Court should also be taken into account. The two bodies of the system had developed important jurisprudence on the principles of equality and non-discrimination.

The documents produced within the United Nations system, such as the Final Declaration and Programme of Action of the Third World Conference against Racial Discrimination, Racism, Xenophobia and Related Intolerance, the Declaration emanating from the Regional Conference of the Americas held in preparation for the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance6/ provide the most actual consensus of the international and regional communities in this area.

Another important source to draw upon should be the more than twenty international instruments that deal with different types of discrimination as well as the analyses conducted by the United Nations’ various committees, particularly their general comments.7/
 
Finally, our countries have been experimenting and adopting legislation and policies to deal with racial discrimination, promote real equality, creating institutional mechanism, adopting different public policies. All these experiences should inform the deliberations of this Working Group. It is necessary to learn form these experiences what are their strengths and weaknesses. Some of them could be reflected in the new regional Convention.
 

2. THE PARTICIPATION OF THE DIRECT BENEFICIARIES.

Mr. Chairman, the Commission believes that the discussions on the draft convention should remain as open as possible, to ensure the benefit of different opinions, and especially the views of civil society organizations with experience in the area. The Commission believes that the voice of the main victims of racial discrimination in the hemisphere should occupy an important place.



3. THE DEFINITION OF DISCRIMINATION AND SCOPE OF THE NEW CONVENTION

In order to cover the several different forms of discrimination, the new Convention should at least follow the model of the International Convention for the Elimination of All Forms of Racial Discrimination (CERD). CERD defines racial discrimination as:

any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 

Given that the purpose of the new Convention is to cover new issues or those that are particular to our region, the Commission believes, based on its experience, that the new Convention should specify the need to combat discrimination in particular areas, including criminal justice, the media, education, public accommodations, speech and expression, and the workplace.

National case law as well the Inter-American system’s discrimination provisions deal most clearly with laws that are discriminatory on their face, but less clearly or convincingly with laws that are applied discriminatorily. Nevertheless, our experience shows that many groups that are marginalized from legal and social structures suffer from laws or practices that are neutral in their faces but that clearly have a strong negative and disproportionate impact on such groups or that are applied in a discriminatory manner. Thus, the new Convention should state clearly that practices whose purpose or effect is discriminatory are banned.

In the same manner, the new Convention should at least exclude from the permissible distinctions those grounds included in Article 1 of the American Convention on Human Rights. The Convention in its first article requires that States Parties:

respect the rights and freedoms in the Convention and ensure the exercise of these rights without discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other provision.

Thus, the new Convention at least should state that discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth or any other provision are not permissible.

The new instrument should focus on the prevention, punishment and eradication of all forms of discrimination. In that sense, it should cover any form of discrimination whether in the public or the private sphere, following the model of Article 1 of the Convention of Belém do Pará.

The Convention should also have strong substantive provisions in terms of the duties of States parties. The new Convention could spell out these obligations and give specific guidance as to what types of measures states can implement. In this way, the Convention could encourage States to improve their domestic legal systems insofar as they address questions of discrimination. Some examples of those provisions are:

* Refrain from engaging in discrimination
* Apply due diligence to prevent, investigate and impose penalties for acts of discrimination
* Adopt legislation and administrative measures to prevent, punish and eradicate any form of discrimination
* Take all appropriate measures to amend, modify or repeal existing laws and regulations or customary practices that are discriminatory
* Establish fair and effective legal procedures for victims of discrimination, including a timely hearing and effective access to such procedures
* Promote minority businesses
* Engage in prevention activities
* Promote local institutions to combat discrimination, such as Ombudsman or National Commissions
* Adoption of national plans to promote equality and combat discrimination.


4. THE INCLUSION OF SUPERVISORY MECHANISMS
 
As we have said on previous occasions, as important as having advance substantive norms is the provision of enforcement mechanisms that could support States in their endeavors to fully implement the new Convention.

First, it would be important to create a reporting system in the sense that State parties to the new Convention would periodically report to the Commission on their initiatives to implement the Convention. The Commission would review those reports and make its conclusions and recommendations. Similar to some of the new human rights instruments, there should be a provision that other pertinent bodies of the OAS such as Inter-American Commission on Women or the Inter-American Council for Integral Development cold be invited to provide specific information.

In this regard it is imperative that the instrument empowers the Commission to supervise compliance with its precepts, in a manner similar to what was approved by the OAS in the Convention of Belém do Pará, the Convention on Forced Disappearance, and the San Salvador Protocol. It is important that the new instrument grant victims of discrimination the right to present individual petitions, and that it strengthen the procedural capacity of individuals, and expand the protection of specially protected rights.
 
Finally, it is essential that new Convention keeps some of the traditional tools used by the Commission such as on site visits and precautionary measures that are important activities for the technical cooperation between the IACHR and States.


5. CONCLUSION

To conclude, the IACHR must underscore the fact that the societies in our countries are an amalgam combining a diversity of cultures and origins. That amalgam was achieved in spite of the dissimilar circumstances attending the various groups that had a hand in shaping what the Americas are today: indigenous peoples, European colonizers, immigrant workers, and Africans brought and exploited as slaves. Theirs was not always a happy union, and certainly not an egalitarian one. The disparities that still persist are far from the minimum acceptable degree of equality. Discrimination and discriminatory practices often degenerate into patterns of behavior that violate human rights, especially the rights to equality, to non-discrimination and to dignity. The new Convention presents the OAS with an opportunity to enhance efforts to combat the many faces of discrimination and promote more egalitarian societies. The adoption of the new Convention will doubtless help eradicate discrimination. The Commission hopes that this presentation constitutes one more contribution to this common enterprise.

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1. International Court of Justice, Barcelona Traction, Light and Power Co., ICJ Reports 1970.
2. International Court of Justice, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), ICJ Reports 1970, 3 at 70.
3. IACHR, The right to information on consular assistance in the framework of the guarantees of the due process of law. Advisory Opinion OC-16/99, October 1, 1999, Concurring opinion of Judge Antônio A. Cançado Trindade, paragraph. 23.

4. A/CONF.189/PC.2/7, April 24, 2001.
5. The Economic Commission for Latin America and the Caribbean (ECLAC) found that the income distribution picture in Latin America and the Caribbean did not improve during the 1990s; the richest 10% of households increased their share of total income in the region during that period, and the poorest 40% of households were those hardest hit by the region’s economic crises. ECLAC concluded that the income distribution profile of most Latin American countries continued to be one of sharp inequalities. ECLAC, Social Panorama of Latin America, 2000-2001, pp. 17 et seq. and 67 et seq.

6. A/CONF.189/PC.2/7, April 24, 2001.
7. See, for example, the Committee on Economic, Social and Cultural Rights, General Comment No. 6, The economic, social and cultural rights of older persons; Committee for the Elimination of Racial Discrimination, General Recommendation VIII concerning the interpretation and application of article 1, paragraphs 1and 4 of the Convention; General Recommendation XIV on article 1, paragraph 1 of the Convention, paragraph 2; General Recommendation XXVII on Discrimination against Roma, paragraph 28; Committee for the Elimination of Discrimination against Women, General Recommendation No. 5, Temporary Special Measures; General Recommendation No. 18, Disabled Women; General Recommendation No. 23, Political and Public Life; Human Rights Committee, General Comment No. 18, Non-discrimination; General Comment No. 28, Article 3 (Equality of Rights between Men and Women).