Good afternoon. It is a pleasure and an honor to be here. I would like to thank you for inviting me to speak to you today about the text you are drafting of the Inter-American Convention against Racism and All Forms of Discrimination and Intolerance.

I will speak about the text of the Convention in my capacity as the United Nations Independent Expert on Minority Issues. In so doing, I will also rely on my former experiences as an Independent Expert on the Committee on the Elimination of All Forms of Racial Discrimination (CERD), a UN position that I held from 1998-2002. In particular, I would like to suggest some unique opportunities that I see for linking CERD’s work with this parallel regional Convention, which will focus on the multiple forms of discrimination that characterize the complex experience of racism in this hemisphere.

Because much of the discussion to date has focused on the overall value of a new regional Convention to address discrimination and intolerance, I would like to explore more specific approaches that could guide this working group in preparing a first draft of a new Inter-American Convention. In particular, my recommendations today focus on a potential framework for the Convention, as I believe we are now at the stage where concrete textual recommendations will help crystallize the scope of the project that lies before us.
My textual suggestions are grouped into three sections. I will first recommend that the Convention’s preambular paragraphs include broad principles and reaffirmations of the key agreements upon which this Convention is based. Second, I will recommend that the Convention’s operative paragraphs frame broad non-discrimination provisions within the unique context of discrimination, exclusion and violence as it is experienced here in the Americas. These operative paragraphs must consider the contours and impact of specific rights violations, the intended beneficiaries of rights, and corresponding state obligations to create equality for all. And third, I will also recommend that the Convention establish a new institutional mechanism to combat racism, racial discrimination, xenophobia, anti-Semitism and intolerance. Here, then, is my own three-part outline for a draft Convention.

Preambluar paragraphs:

The Convention’s preambular paragraphs should begin by acknowledging our hemisphere’s shared history of conquest, colonization and slavery. The Convention should emphasize that the prevailing discriminatory attitudes of these eras have been fully and robustly rejected. But it is not enough for governments to reject the past. They also have an enduring legal obligation to remedy past injustices through concerted actions and affirmative structures that build equality and diversity at all levels.

The Convention should also establish a modern, twenty-first century legal commitment to social inclusion. In so doing, it should make note of the costs of social exclusion and the benefits of diversity, and provide an explicit reference to the relationship that exists between poverty and discrimination.

The Convention should reaffirm the anti-discrimination guarantees put forth within the Inter-American system, including those in the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (“Protocol of San Salvador”), the American Declaration of the Rights and Duties of Man, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (Convention of Belém do Pará”).

The Convention should reaffirm the global guarantees of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), as well as the authoritative work of CERD. It should invoke the obligations made under the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Convention on the Prevention and Punishment of the Crime of Genocide. It should further reaffirm the anti-discrimination provisions of the International Covenant on Civil and Political Rights, the International Convention on Economic, Social, and Cultural Rights, and the Convention on the Rights of the Child. It should also reaffirm the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities. These texts provide the legal framework for anti-discrimination efforts worldwide, but they must then be adapted to the particularities of the Americas.

Finally, the Convention should also reaffirm the commitments made at the United Nations World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa, and at the Regional Conference for the Americas in Santiago, Chile.


Operative paragraphs:

a) Defining Rights and Obligations:

The Convention should adopt the ICERD’s definition of racial discrimination, namely “any distinction, exclusion, restriction or preference based on race, color, 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.”

The Convention should also take CERD’s General Recommendations as guidance, especially their consideration of contemporary manifestations of racism and of the diverse nature of the groups and individuals that must find protection under a legal text of this nature. These groups and individuals should include indigenous peoples and other minorities, including African descendants. In addition, the Convention should address discrimination based on language, religion, and nationality. The rights of non-citizens must be protected as defined in CERD’s General Recommendation XXX.

The Convention should explicitly guarantee the full panoply of minority and indigenous rights, noting the collective nature of those rights. This holds importance for securing the collective land claims of both indigenous and Afro-descendant groups, for the promotion and protection of issues relating to identity and visibility, and for the informed collective participation of these groups in decisions that affect their rights and resources.

The Convention must also recognize that some persons experience multiple forms of discrimination due in particular to their sex, gender expression, sexual orientation, or as a result of a physical or mental disability. When combined with discrimination based on race, color, descent, national or ethnic origin, language, religion, indigenous or minority status, or nationality, these multiple forms of discrimination are powerful forces for exclusion that leave communities vulnerable to extreme violence and neglect. And much of that violence has become institutionalized – even socially acceptable – due to prevailing stereotypes or cultural beliefs that rob multiply disadvantaged communities of their personality and human dignity.

The Convention must also require states to collect data on socio-economic status, disaggregated by each of the protected categories of individuals and groups to determine who within their societies is suffering more directly from discrimination, exclusion or intolerance. Statistics on hate crimes should also be collected. These obligations to collect disaggregated data shall in no way be considered a violation of the right to equality or non-discrimination, provided the data is collected on the basis of voluntary identifications and not on any other assumptions that allow governments to ascribe identities to particular communities without their consultation or agreement.

The Convention should recognize that in certain circumstances guarantees of non-discrimination alone are insufficient to address deeply entrenched societal inequalities. Therefore, the Convention should reaffirm states’ obligations, as elaborated by the ICERD, to take affirmative measures to secure the adequate advancement of certain groups or individuals when such measures are necessary to ensure the equal enjoyment of human rights and fundamental freedoms. This shall not be deemed racial discrimination so long as the measures do not establish separate rights for different groups and so long as they are discontinued once they are no longer necessary.

b) Establishing a Commission:

The Convention should establish a Commission Against Racial Discrimination, comprised of both representatives of OAS Member States and independent experts. The Commission’s task should be to combat racism, racial discrimination, xenophobia, anti-Semitism and intolerance throughout the region of the OAS, and from the perspective of the promotion and protection of human rights. The Commission’s mandate should cover all necessary measures to combat violence, discrimination, prejudice and inequality faced by each of the protected categories of individuals and groups. The Commission should carry out this work by promoting and protecting civil, cultural, economic, political, and social rights, and by considering the effects of multiple forms of discrimination.

This Commission should be modeled on the European Commission against Racism and Intolerance (ECRI) and the European Monitoring Centre on Racism and Xenophobia (EUMC).

The Commission should carry out a variety of functions, which may entail a country focus, work on general themes, or broad promotional activities which could be undertaken in conjunction with civil society. It should monitor all forms and manifestations of racial discrimination in countries and with respect to trends across the region. For example, the Commission and its secretariat should monitor evidence of discrimination in employment, housing, land ownership and use, access to credit, infrastructure, and educational achievements. Trends should be identified with respect to racist crimes, bias in the criminal justice system and access to justice.

The Commission should issue periodic reports on its factual findings and analyses, along with general policy recommendations. It should make suggestions and proposals to countries and should have the capacity to provide technical assistance to implement the recommendations of the Commission as well as those of CERD and other relevant bodies. It should also provide technical assistance to countries in preparing their periodic reports to CERD.

The Commission should undertake country visits to monitor racial discrimination throughout the region. All OAS Member States should issue standing invitations for Commission visits.

With respect to its thematic work, the Commission should study themes which are particularly important in combating racism, xenophobia, anti-Semitism and intolerance, as well as effective approaches on specific issues, such as criminal justice, national legislation, the internet, counter terrorism, and racism in the political discourse.

The collection of reliable, objective and comparable data should be one of the core functions of the Commission and its secretariat. Collection of data broken down by protected categories of individuals and groups is crucial to shaping sound policies against racism and racial discrimination and promoting equal opportunities. The Commission should consult on this issue with international agencies, NGOs, national universities and specialized bodies dedicated to combating racism and racial discrimination. It should undertake a mapping exercise giving an overview of the existing legal and practical framework for data collection in the OAS Member States.

The Commission should identify best practices both from within countries in the region and more broadly, and it should disseminate this information to the widest possible audience. It should promote awareness of the problem of discrimination, and should serve as a resource for individuals whose rights have been violated. It should engage with civil society whenever appropriate.
I would like to pause here to offer two important distinctions. First, I would like to stress that this Commission would not have a mandate to receive individual petitions regarding specific cases of human rights violations. This function has been expertly carried out by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. The proposed Commission under this new Convention would not duplicate this function.

Second, in my view, based on several years of work in reviewing state compliance reports under the ICERD, the proposed Commission should not require that Member States file compliance reports. Instead, it should strengthen reporting opportunities under the existing human rights reporting mechanisms of the ICERD.

The new Commission must also mainstream a gender analysis in all areas of its work. This will be crucial, as discrimination, violence and exclusion are experienced differently by women and men, girls and boys. ICERD has adopted useful recommendations to help countries identify and report on the gendered nature of racial discrimination.

Commission members should be elected by the General Assembly of the Organization of American States. The Commission’s independent experts should be appointed on the basis of their high moral authority and expertise or research in the fields of racism, racial discrimination, xenophobia, anti-Semitism and intolerance. These experts should serve in their individual capacities, and should be independent and impartial in fulfilling their mandates. The members of CERD from OAS member countries should sit on the Commission in an ex officio capacity. The Commission should be comprised of an equal number of men and women with careful consideration given to the overall diversity of the body.

The Commission should be staffed by a secretariat, the Anti-Racism Monitoring and Advice Unit, of a size and professional character that is adequate to accomplish the Commission’s work.

In conclusion, I hope this intervention today provides an opportunity for us to stop and think about the broad framework and particular textural references that are needed if this Convention is to become a meaningful and efficient mechanism for addressing the unique manifestation of discrimination and intolerance in the Americas. This drafting committee must include broad principles and reaffirm the key texts upon which the new Convention is based. Significant work is also needed to clarify definitions, identify beneficiaries of rights, and outline corresponding state obligations within the Americas. And the establishment of a new institutional mechanism to combat racism, racial discrimination, xenophobia, anti-Semitism, and intolerance should also be established and its powers defined in the text of the Convention as a means of entrenching the rights and obligations contained in the document.

Thank you very much for inviting me to appear before you today and to share my views on this important matter.