1. The Preliminary Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance prepared by the Working Group Chair is an attempt to build a text that reflects important concepts brought to the Group‘s attention by representatives of member states and civil society, academics, and staff of the OAS and the United Nations throughout the Group’s first year of activities. This is a comprehensive, maximalist text also intended to incorporate suggestions put forth by specialists in the field, based on informal consultations by the Group Chair over recent months, and elements of the Declaration and Plan of Action of the December 2000 Santiago Regional Conference, signed by the 34 OAS member states.

2. The preliminary draft consists of 13 preambular paragraphs and 26 articles divided into six chapters:

Definition and Scope of Application;
Acts and Manifestations of Racism, Discrimination, and Intolerance
Protected Rights;
The Duties of States;
Mechanisms for Protection;
General Provisions

3. The document’s preamble refers to the history behind the future Convention and to its central aims. Its main features are:

a. Reaffirmation of general principles of international human rights law and of international common law, such as the inherent dignity of every human being and equality and nondiscrimination among human beings;
b. Introduction of the obligation to adopt affirmative action measures or policies in support of individuals or groups who have been objects of discrimination, so as to promote equitable conditions of equal opportunity and fight discrimination in its individual, structural, and institutional manifestations;
c. Recognition of the existence of multiple or aggravated forms of racism, discrimination, and intolerance according to a combination of factors;
d. Expansion upon the bases of discrimination listed in existing instruments for the protection of general and specific human rights, by incorporating, among others, the following factors: race, color, ethnicity, sex, age, sexual orientation, language, religion, status as migrant, refugee, or displaced person, birth, stigmatized infectious or contagious condition, and disability;
e. Recognition of the status of Afro-descendents, indigenous peoples, migrants and members of their families, racial, ethnic, sexual, cultural, religious, and linguistic minorities, and others, as victims.

4. The chapter “Definition and Scope of Application” defines concepts central to the future Convention: racism, discrimination, direct and indirect discrimination, intolerance, and life plan. In the preparation of these concepts, there was an attempt, emphasized in the preliminary document submitted by the Government of Colombia, to avoid referring to inalterable characteristics that could render the definitions static. Such references would prevent the definitions from extending to future new forms of discrimination that could not be foreseen, given changing realities and the passage of time.

5. The development of the concept of indirect discrimination and its explicit condemnation in the text of the Inter-American Convention are crucial to addressing the de facto marginalization and invisibility of victims of racism, discrimination, and intolerance in the Hemisphere. Although the notion of indirect discrimination is implied in the wording of Article 1(1) of the United Nations International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the definition proposed for the Inter-American Convention is more complete and objective in describing a commonly ignored aspect of discrimination.

6. An innovation of the preliminary draft is its definition of “special protective measures,” also known as positive discrimination measures. It recognizes the legality of their application and their importance to promoting substantive (de facto) equality for individuals and groups that are victims of discrimination. The special measures, expressed as affirmative action policies instituted by the state or by private parties to promote the rights of individuals or groups subjected to discrimination–in any field of human activity, whether private or public–are understood as a valuable instrument for overcoming discriminatory barriers to the full enjoyment of rights by human beings. The groups that should have access to special positive discrimination measures are those that are at a permanent disadvantage by virtue of non-voluntary conditions that prevent their access to truly equal opportunity.

7. The introduction of the concept of special positive discrimination measures recognizes structural disadvantages among different individuals and groups in a given society, and that states are obliged to take them into account in formulating government activities and policies. The compulsory nature of such special measures is the new element of the preliminary draft as compared to the United Nations Convention of 1965.

8. The proposed text also includes the concept of “life plan” (applied to the specific circumstances of acts or manifestations of racism, discrimination, and intolerance). The aim is to consolidate, in the future regional human rights treaty, an important principle established, developed, and enshrined in the jurisprudence of the Inter-American Court of Human Rights. The concept of “life plan” – cited in the judgments in cases such as Villagrán Morales v. Guatemala (November 19, 1999) and Moiwana Village v. Suriname (June 15, 2005) – had to do with what the Court called “full self-actualisation of the person concerned,” by virtue of certain violations of human rights (paragraph 147 of the Judgment on Reparations in the case of Loayza Tamayo v. Peru).

9. As for the scope of application of the rights and duties envisaged in the future Inter-American Convention, the preliminary draft proposes that its provisions extend to both the private and public spheres. The concern with expanding the scope of application of the Convention is a response to the perception that different aspects of discrimination occur in private spheres (such as the job market), affecting different spheres of the social, political, economic, and cultural life of a state. In the inter-American human rights system, two conventions (the Convention of Belém do Pará, Articles 1, 2.1, 3, and 8.c, and the Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities, Article 3) extend the scope of coverage to the private arena. The 1965 United Nations Convention did not address this subject.

10. Chapter II of the preliminary draft deals with acts and manifestations of racism, discrimination, and intolerance. The purpose of this chapter is to list, but not exhaustively, discriminatory practices that are designed to hinder or nullify the recognition or exercise of human rights and equal opportunity. The chapter uses the same approach as did the Mexican legislator in drafting the April 2003 Federal Law to Prevent and Eliminate Discrimination. The preliminary draft Inter-American Convention lists a number of discriminatory practices, of which most, although they fit squarely into the general definition of discrimination set forth in Chapter I, are different in that they are contemporary.

11. Chapter III deals with the rights of victims of racism, discrimination, and intolerance. The right to equal treatment and nondiscrimination, enshrined in the chapeau of Article 3, provides the basis for the preliminary draft. The document reaffirms the premise that the international human rights protection system was established, and operates, on the basis of equality among all human beings, which is incompatible with any discriminatory practice. Recognition of the “right to positive discrimination” of individuals or groups subjected to discrimination is proposed. All the other rights listed in Chapter III are related, directly or indirectly, to these founding principles and rights. Most are included in other international and regional instruments for the protection of general and specific human rights. This is a common practice in regional instruments (as in the Convention of Belém do Pará) and international instruments for the protection of specific human rights (as in the ICERD, which reaffirms various rights enshrined in the Universal Declaration). It was thought important to reaffirm them in the future Inter-American Convention, not only to reinforce their value as component principles of the right to equality among all human beings, but also to place them in the specific context of fighting racism, discrimination, and intolerance in the Hemisphere. Specific reference to the rights of each of the groups subjected to discrimination in the Americas was avoided. The choice was, rather, to enshrine a number of general rights, applicable to all individuals or groups subject or vulnerable to discrimination.

12. The chapter on duties is directly linked to the preceding chapter, since, in the field of human rights, the correspondence between rights (individual and collective) and the duties of states must be absolute. Initially, it outlines the overall duties of states to issue general prohibitions against all kinds of discrimination; refrain from any discriminatory act or practice; and adopt policies to prevent, punish, and eradicate such practices. It then outlines specific obligations for the various rights enshrined in the document and the various facets or characteristics of manifestations of discrimination in the region.

13. The effort was made, in preparing this chapter of the preliminary draft, not to reinforce the erroneous idea that racism, discrimination, and intolerance can be dealt with and eliminated simply by their prohibition under law and the state’s guarantee of access to justice and fair reparations for victims. Basically, that has been the central strategy for fighting racial discrimination of the principal United Nations human rights instruments. Although it is essential to criminalize manifestations of discrimination and intolerance and safeguard the right to judicial guarantees, these initiatives alone cannot eradicate, or even substantially reduce, a society’s racist and discriminatory practices. For that reason, the draft Inter-American Convention assigns an important role to a series of initiatives in the fields of education, government policies to promote equal opportunity, and international cooperation.

14. Another important element in the chapter on duties is that it does not recognize any contradiction between the principle of overall protection against discrimination and the formulation of policies or special legal protection measures for specific individuals or groups (Afro-descendents, indigenous peoples, migrants, women, homosexuals, children, the elderly, religious minorities, etc.) Such protections, expressed in national policies to promote equal opportunity, provide guidance on legal provisions, making them more effective by indicating what segments of society require special or different protection. Furthermore, they in no way compromise the principle of isonomy, or equality of all before the law; rather, they improve upon it.

15. The draft text also introduces two duties new to international or regional human rights treaties, in the area of protection for victims of discrimination:

a. Inversion of the burden of proof of alleged acts or practices of racism, discrimination, and intolerance (Article 6.xiv of the draft). This involves incorporating into the future Convention the concept set forth in Race Directive 43/2000 of the Council of Europe, dated June 29, 2000, which reads: “The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought”; and
b. Enactment of law defining hate crimes as those perpetrated for reasons of race, ethnicity, religion, gender, sexual orientation, or physical or mental disability and similar forms of discrimination, and punishing such practices in the criminal and civil arenas.

16. Chapter V deals with follow-up mechanisms for the future Convention. The new instrument’s efficacy in fighting racism and all forms of discrimination and intolerance requires a body to follow up on the obligations assumed by the states and depends upon the functions to be entrusted to that body. The document proposes that this role be given primarily to the Inter-American Commission on Human Rights and secondarily, when applicable, to the Inter-American Court of Human Rights, following the good practice of inter-American human rights protection instruments (the sole exception being the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities). This option has the advantage of averting a proliferation of treaty-monitoring bodies (a deplorable practice of the United Nations system) and of working with the reality of the inter-American human rights system in terms of its ongoing lack of financial and human resources.


17. The functions of the Convention’s primary follow-up mechanism would be:

a. Examination of periodic reports submitted by states;
b. Preparation of annual and special reports on any aspect of the state’s compliance with the provisions of the Convention;
c. Study and processing of individual petitions alleging violations of the Convention by a state party;
d. Receipt and examination of state allegations of violations, according to the provisions of Article 45 of the American Convention on Human Rights;
e. On-site investigations;
f. Adoption of early warning measures and emergency procedures; and
g. Replies to queries regarding effective application of the Convention.

18. The preliminary draft’s general provisions are those found in similar regional instruments for the protection of specific human rights. As for the entry into force of the future Convention, the instrument would become effective on the 30th day after deposit of the second instrument of ratification. The same formula can be found in the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, the Convention of Belém do Pará, and the Inter-American Convention on the Elimination of All Forms of Discrimination against Persons with Disabilities.

19. Those are the major characteristics of the preliminary draft Convention which the Chair of the Working Group has the honor of submitting to the member state delegations for their consideration. The preliminary draft, which retains principles, rights, and obligations enshrined in international human rights instruments and, at the same time, updates and broadens the scope of protection for victims of racism, discrimination, and intolerance in the Hemisphere, represents an important contribution to progress on the topic in the OAS framework and the beginning of the negotiation process for the future regional legal instrument. The Chair of the Working Group is certain that, without a concrete draft Convention, we would risk greatly drawing out our deliberations on this topic of such importance (which have already lasted five and a half years), losing momentum and frustrating those directly interested in the success of the process: the victims of racism, discrimination, and intolerance in the Americas.