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PERMANENT COUNCIL OF THE OEA/Ser.G ORGANIZATION OF AMERICAN STATES CAJP/GT/RDI-11/05 26 October 2005 COMMITTEE ON JURIDICAL AND POLITICAL AFFAIRS Original: English

Working Group to Prepare a Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance

PRESENTATION BY MS. CYNTHIA MOREL, LEGAL OFFICER, MINORITY RIGHTS GROUP INTERNATIONAL

(Presented in the meeting of the Working Group held on October 20, 2005) PRESENTATION BY MS. CYNTHIA MOREL, LEGAL OFFICER, MINORITY RIGHTS GROUP INTERNATIONAL

(Presented in the meeting of the Working Group held on October 20, 2005)

Invisibility in the Americas: Minority Rights and the Inter-American Convention Against All Forms of Discrimination and Intolerance

ACKNOWLEDGEMENTS

I would like to extend my sincere thanks to Mr. Silvio Albuquerque, Chair of the Working Group, for inviting me to speak at this meeting. I consider it an important opportunity to take part in these discussions, and a privilege to share the panel with the distinguished Dr. Clare Roberts and the Honourable Dr. Douglas Martins de Souza.

I would also like to thank the Government representatives, who by their presence here today, show their commitment to combating racial discrimination in the Americas.

Finally, I would like to thank Global Justice, the Inter-American Dialogue, CEJIL and all other actors of civil society who have shown leadership on the issue of racial discrimination in the Americas, and to whose work I add my modest contribution.

INTRODUCTION

The promotion and protection of the rights of persons belonging to minorities ‘contribute to political and social stability and peace’.1/ It is also vital to achieving effective development. Development work that fails to understand the particular situation and rights of minorities risks further marginalizing them, or making their situation worse, like for example through displacement and loss of land, or the entrenchment of discrimination.

Non-discrimination is a vital element of the protection of minorities, hence the importance of the draft convention under discussion. MRG nonetheless argues that anti-discrimination law alone is not sufficient to address the deeply rooted forms of discrimination, and virtual invisibility of minorities such as afro-descendant communities in the Americas.

While the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) of 1965 did not contain any explicit provisions on minorities, the UN CERD Committee has nonetheless since acknowledged the need of addressing concerns of minorities such as the Roma through its General Recommendations.2/

1. General Assembly Resolution on the Effective promotion of the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, UN Doc. A/RES/58/182, 2003. 2. See General Recommendation on Discrimination Against Roma, General Recommendation XXVII (2000). See also General Recommendation XXIII on Indigenous Peoples. (1997) - 2 -

Other UN instruments affording special protection to minorities include the International Covenant on Civil and Political Rights (ICCPR) of 1966,3/ and also the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (1992). It is important to emphasize that while these instruments make important steps in tackling discrimination through minority rights, none of the related supervisory bodies’ decisions are binding upon states.

The opportunity before us enables us to incorporate at the regional level what CERD in 1965 did not, and to ensure that effective monitoring and implementation mechanisms are in place. Incorporating a minority rights dimension into the wider framework of the proposed Convention is an opportunity to go beyond simply addressing the individual experience of non-discrimination, by using an established body of law that is designed to promote and protect the collective identity of communities against forced assimilation – or in the case of the Americas in particular, forced invisibility.

Failure to speak at some level of the situation of communities such as that of the Afro-Descendants in its collective dimension compromises our ability to effectively challenged the historical, socio and political structures that enabled the discrimination and invisibility to persist from past centuries through to present times.

Who is a minority?

No official definition of minorities exist, though we can generally speak of the following:

1. any ethnic, linguistic or religious group within as state;

2. in a non-dominant position in the state in which they live;4/

3. consisting of individuals who possess a sense of belonging to that group;

4. determined to preserve and develop their distinct ethnic identity;

5. discriminated against or marginalized on the grounds of their ethnicity, language or religion.

In addition to objective criteria such as cultural distinctiveness, the subjective criteria of self- identification is of central importance.

Moreover, the individual’s right to opt out of the minority group – that is, to not identify him/herself as forming part of a minority group - is absolute. In other words, minority rights guarantee that individuals should be able to make a free choice about their identity without being penalized for it.

Finally, with respect to whether or not minorities based on sexual orientation or disability would fit within the internationally recognized definition of minorities, it must be said that the protection

3. Article 27 of the ICCPR states: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. 4. To reinforce the argument that the concept of ‘non-dominance’ is of far greater authority than that of numbers is the example of South Africa. During apartheid, despite being significantly inferior in their numbers, Afrikaaners have never consisted of a minority, in the legal sense of the term in international law. - 3 -

afforded by minority rights has not until now been extended to these groups. While many would argue that normative standards acknowledging these grounds as discriminatory, it is nonetheless legitimate to debate and explore whether the draft Convention could provide scope for expanding the traditional understanding of minority rights.

Main parameters of minority rights:

Characteristics of minority rights, which would ideally be protected in the proposed Convention through the incorporation of an article or through the mainstreaming of certain principles, include the following:5/

1. protecting a minority’s existence (i.e. preventing genocide and forced assimilation);

2. promoting identity (both the right of individuals to choose which ethnic, linguistic or religious groups they wish to be identified with, and the right of those groups to affirm and protect their collective identity);

3. ensuring effective non-discrimination, including ending indirect discrimination; and

4. ensuring effective participation of members of minorities in the decisions that affect them. This includes participating equitably in the benefits of development.

In addition to these parameters, three other main issues should be highlighted as being of general importance for the protection of minorities:

1. addressing land and property issues (particularly when identity is bound up with a particular place);6/

2. education (i.e. ensuring an education system where everyone’s religion, language and culture is respected); and

3. gender issues (for example, where women within minorities suffer double discrimination)

RECOGNITION AND POSITIVE ACTION

Minority rights thus not only require (a) recognition, but also (b) positive action. Positive actions can include a range of special measures ranging from affirmative action to ensuring the recording of fully accurate population census and producing desegregated data.

Key concern relating to the issue of definitions 5. Note that the wording of Article 27 requires improvement beyond the current wording which provides for passive non-interference. A new provision would need to make it clear that these rights often require action, including positive measures and encouragement of conditions for the promotion of their identity (Art 1 UNDM), and specified measures by the State (Art 4 UNDM). 6. The Inter-American Court has recently ruled in favour of such an approach in Moiwana Village v Suriname, where an afro-descendent community had their collective right to property recognized. An earlier development in this regard was established through the Mayagna (Sumo) Awas Tingni Community v. Nicaragua case, for the benefit of indigenous peoples. - 4 -

Despite states’ unanimous adoption of the Santiago plan of action, which makes reference in express terms to the need to protect ‘racial and ethnic minorities’ under Chapter IV, 7 and reiteration of the term ‘minorities’ throughout the subsequent Summit Plan of Action (Quebec 2001), there is a tendency in much of the current literature to exclusively speak of “vulnerable communities” or “marginalized groups”.

To do so is to deny the body of law that has been developed in relation to minority rights, and thus its valuable application and implementation in the Inter-American context. The term “vulnerable or marginalized groups” has no standing in international law, and therefore relying solely on those terms risks denying rights to communities needy of broader protection.

The myth of minority rights as a purely European term

Minorities exist in all countries of the world. Stark denial of this fact has often shown to be throughout history one of the root causes of a wide range of tensions ranging from civil unrest to ethnic strife and genocide. In the context of the Americas, it has led to invisibility.

As previously stated, the use of the term minorities has already been adopted by governments of the Americas in the context of Santiago (1998). It is also worthwhile noting that the UN Declaration on Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities was adopted unanimously at the General Assembly, including all represented States of the Americas.

Moreover, the African Commission on Human and Peoples Rights has recently adopted an official report dealing with minority and indigenous communities.8/ In no Continent could the issue of minorities be more complex. Nigeria alone counts over 250 ethnic groups within its borders.

These elements should be taken into consideration when pondering whether to cast aside the application of minority rights on the grounds of it being too complex or of too little relevance in the Americas. Invisibility, which was able to persist for so many years under the guise of a ‘racial

7. Chapter IV - Eradication of poverty and discrimination; “Eliminaremos todas las formas de discriminacion contra las mujeres, las comunidades indigenas, las minorias raciales y etnicas marginalizdas, y otros grupos vulnerables”. [Emphasis added]. Further language on minorities was reiterated in the Plan of Action from the Summit of the Americas (Quebec City). For example: Under Chapter 3 (Justice, Rule of Law and Security of the Individual): “Promote the exchange of national experiences and best practices on the use of police profiling with a view to preventing biased detentions, which tend to affect mostly minorities and the poor”; “Promote concrete measures to prevent hostile actions against minorities in the Hemisphere, as well as the violent activities of local, regional and international movements that support and foster racist ideologies and terrorist practices to reach their goals”. Under Chapter 5 (Civil Society): “Promote participation of all minority groups in forging a stronger civil society”. Under Chapter 11 (Labor and Employment): “Recognizing that (…) true prosperity can only be achieved if it includes protecting and respecting basic rights of workers as well as promoting equal employment opportunities and improving working conditions for people in all countries in the region, with special attention to those in the informal sector, to people belonging to ethnic and religious minorities (…)”. Under Chapter 13 (Education): “Recognizing that (…) it is essential that quality education is available to all, including girls and women, rural inhabitants, persons with disabilities, indigenous, and persons belonging to minorities (…)”. [Emphasis added]. 8. Report of the African Commission on Human Rights Working Group on Indigenous Populations/Communities. (2005) - 5 -

democracy’ in the Americas can be challenged more successfully with the additional tools of minority rights protection, rather than focusing on the individual experience of discrimination alone.

Many who identify themselves as mestizos in addition to many falling outside of this group accept or ignore that they have been fully assimilated into the dominant culture. However, for those for whom it is not too late, the ability to protect their identity and way of life remains vital. The tools afforded by minority rights should therefore be available to them if this Hemisphere is genuinely committed to tackling inequality and exclusion.

A key to social cohesion and full realization of human rights for all

01c71b259556c6edfebd2f2e587205b3.doc - 6 -

In sum, preventing discrimination, though vital for minorities, is not sufficient.9/ Minority rights, which extend beyond traditional understandings of anti-discrimination, address the issues of those who may not want to be treated the same as others, specifically if that means losing their identity.

Contrary to the myth that minority rights are divisive, minority rights should be understood as a tool to ensure integrated societies, meaning societies where different religious, linguistic and ethnic groups including Afro-Descendant communities are able to live together and communicate in one society. The overriding consideration should be for the establishment of conditions to allow groups, and individuals within those groups, to continue to express their identities and to enjoy their human rights equally within the rest of the population.

In the Inter-American context, as previously stated, it is an opportunity to tackle deep-rooted racial discrimination in a collective dimension, focusing on the issues beyond the individual experience of discrimination.

Cynthia Morel

Legal Officer Minority Rights Group International London, UK

October 20, 2005

9. The creation of the Sub-Commission for the Prevention of Discrimination and the Protection of Minorities following the adoption of the UDHR is indicative of this need.

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