Organization of American States Multilateral Treaties
THE STATES PARTIES TO THIS CONVENTION,
CONSIDERING that the inherent dignity and equality of all members of the human family are basic principles of the Universal Declaration of Human Rights, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, and the International Convention on the Elimination of All Forms of Racial Discrimination;
REAFFIRMING the resolute commitment of the member states of the Organization of American States to the complete and unconditional eradication of racism, racial discrimination, and all forms of intolerance, and their conviction that such discriminatory attitudes are a negation of universal values and the inalienable and infrangible rights of the human person and the purposes and principles enshrined in the Charter of the Organization of American States, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Social Charter of the Americas, the Inter-American Democratic Charter, the Universal Declaration of Human Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Universal Declaration on the Human Genome and Human Rights;
RECOGNIZING the duty of adopting national and regional measures to promote and encourage respect for and observance of the human rights and fundamental freedoms of all individuals and groups subject to their jurisdiction, without regard to race, color, lineage, or national or ethnic origin;
CONVINCED that the principles of equality and nondiscrimination among human persons are dynamic democratic concepts that foster the promotion of effective legal equality and presuppose an obligation on the State’s part to adopt special measures to protect the rights of individuals or groups that may be victims of racial discrimination, in any area of human endeavor, whether public or private, with a view to cultivating equitable conditions for equal opportunity and to combating racial discrimination in all its individual, structural, and institutional manifestations;
AWARE that the phenomenon of racism has a dynamic capacity for renewal that enables it to assume new forms whereby it spreads and expresses itself politically, socially, culturally, and linguistically;
TAKING INTO ACCOUNT that the victims of racism, racial discrimination, and other related forms of intolerance in the Americas are, inter alia, people of African descent, indigenous peoples, and other racial and ethnic groups or minorities, or groups that by reason of their lineage or national or ethnic origin are affected by such manifestations;
CONVINCED that certain persons and groups experience multiple or extreme forms of racism, discrimination and intolerance, driven by a combination of factors such as race, color, lineage, national or ethnic origin, or others recognized in international instruments;
TAKING INTO ACCOUNT that a pluralistic and democratic society must respect the race, color, lineage, and national or ethnic origin of every person, whether belonging to a minority or not, and create suitable conditions that will enable that person to express, preserve, and develop his or her identity;
CONSIDERING that the individual and collective experience of discrimination must be taken into account to combat segregation and marginalization based on race, ethnicity, or nationality, and to protect the life plan of those individuals and communities at risk of such segregation and marginalization;
ALARMED by the surge in hate crimes motivated by race, color, lineage, and national or ethnic origin;
EMPHASIZING the basic role that education plays in promoting respect for human rights, equality, nondiscrimination, and tolerance; and
BEARING IN MIND that although the fight against racism and racial discrimination was brought to the forefront in an earlier international instrument, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, the rights set forth therein must be reaffirmed, developed, improved, and protected, in order to consolidate in the Americas the democratic content of the principles of legal equality and nondiscrimination,
AGREE upon the following:
For purposes of this Convention:
1. Racial discrimination shall mean any distinction, exclusion, restriction, or preference, in any area of public or private life, the purpose or effect of which is to nullify or curtail the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Parties.
Racial discrimination may be based on race, color, lineage, or national or ethnic origin.
2. Indirect racial discrimination shall be taken to occur, in any realm of public and private life, when a seemingly neutral provision, criterion, or practice has the capacity to entail a particular disadvantage for persons belonging to a specific group based on the reasons set forth in Article 1.1, or puts them at a disadvantage, unless said provision, criterion, or practice has some reasonable and legitimate objective or justification under international human rights law.
3. Multiple or aggravated discrimination is any preference, distinction, exclusion, or restriction based simultaneously on two or more of the criteria set forth in Article 1.1, or others recognized in international instruments, the objective or result of which is to nullify or curtail, the equal recognition, enjoyment, or exercise of one or more human rights and fundamental freedoms enshrined in the international instruments applicable to the States Parties, in any area of public or private life.
4. Racism consists of any theory, doctrine, ideology, or sets of ideas that assert a causal link between the phenotypic or genotypic characteristics of individuals or groups and their intellectual, cultural, and personality traits, including the false concept of racial superiority.
Racism leads to racial inequalities, and to the idea that discriminatory relations between groups are morally and scientifically justified.
All the theories, doctrines, ideologies, and sets of racist ideas described in this article are scientifically false, morally reprehensible, socially unjust, and contrary to the basic principles of international law; they therefore seriously undermine international peace and security and, as such, receive the condemnation of the States Parties.
5. Special measures or affirmative action adopted for the purpose of ensuring equal enjoyment or exercise of one or more human rights and fundamental freedoms of groups requiring such protection shall not be deemed racial discrimination provided that such measures do not lead to the maintenance of separate rights for different groups and are not continued once their objectives have been achieved.
6. Intolerance is an action or set of actions or expressions that denote disrespect, rejection, or contempt for the dignity, characteristics, convictions, or opinions of persons for being different or contrary. It may manifest itself as marginalization and exclusion of vulnerable groups from participation in any sphere of public or private life or violence against them.
Every human being is equal under the law and has a right to equal protection against racism, racial discrimination, and related forms of intolerance in any sphere of life, public or private.
Every human being has the right to the equal recognition, enjoyment, exercise, and protection, at both the individual and collective levels, of all human rights and fundamental freedoms enshrined in their domestic law and in international law applicable to the States Parties.
Duties of the State
The states undertake to prevent, eliminate, prohibit, and punish, in accordance with their constitutional norms and the provisions of this Convention, all acts and manifestations of racism, racial discrimination, and related forms of intolerance, including:
i. Public or private support provided to racially discriminatory and racist activities or that promote intolerance, including the financing thereof.
ii. Publication, circulation or dissemination, by any form and/or means of communication, including the internet, of any racist or racially discriminatory materials that:
a. Advocate, promote, or incite hatred, discrimination, and intolerance.
b. Condone, justify, or defend acts that constitute or have constituted genocide or crimes against humanity as defined in international law, or promote or incite the commitment of such acts.
iii. Violence motivated by any of the criteria set forth in Article 1.1.
iv. Criminal activity in which the victim’s property is chosen intentionally based on any of the criteria set forth in Article 1.1.
v. Any repressive action based on any of the criteria set forth in Article 1.1 rather than on the person’s behavior or on objective information identifying the individual as having been engaged in criminal activity.
vi. Restricting, in an undue or unreasonable manner, the exercise of the individual rights of ownership, administration, and disposal of property of any kind based on any of the criteria set forth in Article 1.1.
vii. Any distinction, exclusion, restriction, or preference applied to persons, because of their status as victims of multiple or aggravated discrimination, the purpose or result of which is to deny or impair the equal recognition, enjoyment, exercise, or protection of rights and fundamental freedoms.
viii. Any racially 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, particularly those applicable to minorities or groups that are in vulnerable situations and subject to racial discrimination.
ix. Any restriction or limitation on the use of the language, traditions, customs, and culture of persons in public or private activities.
x. Preparing and introducing teaching materials, methods, or tools that portray stereotypes or preconceptions, based on any of the criteria set forth in Article 1.1 of this Convention.
xi. Denying access to public or private education, to fellowships, or to educational loan programs, based on any of the criteria set forth in Article 1.1 of this Convention.
xii. Denying access to any social, economic, and cultural rights, based on any of the criteria set forth in Article 1.1 of this Convention.
xiii. Conducting research or applying the findings of research into the human genome, particularly in the fields of biology, genetics, and medicine, aimed at human selection or cloning that prevails over respect for human rights, fundamental freedoms, and human dignity, generating any form of discrimination based on genetic characteristics.
xiv. The restriction or limitation, based on any of the criteria set forth in Article 1.1 of this Convention, of the right of every person, to access and sustainably use water, natural resources, ecosystems, biodiversity, and ecological services that are part of each state’s natural heritage, protected by the relevant international instruments and their own national laws.
xv. The restriction of access to public and private places with access to the public, for the reasons set forth in Article 1.1 of this Convention.
The States Parties undertake to adopt the special policies and affirmative actions needed to ensure the enjoyment or exercise of rights and fundamental freedoms of persons or groups that are subject to racism, racial discrimination, and related forms of intolerance for the purpose of promoting equitable conditions for equal opportunity, inclusion, and progress for such persons or groups. Such measures or policies shall not be considered discriminatory or incompatible with the purpose or intent of this Convention, shall not lead to maintaining separate rights for different groups, and shall not be continued beyond a reasonable period or after that objective has been achieved.
The States Parties undertake to formulate and implement policies the purpose of which is to provide equitable treatment and generate equal opportunity for all persons in accordance with the scope of this Convention, including policies of an educational nature, labor or social measures, or any other kind of promotional policies and the dissemination of legislation on the subject by all possible means, including the mass media and the internet.
The States Parties undertake to adopt legislation that clearly defines and prohibits racism, racial discrimination, and related forms of intolerance, applicable to all public authorities as well as to all individuals or natural and legal persons, both in the public and in the private sectors, particularly in the areas of employment; participation in professional organizations; education; training; housing; health; social protection; exercise of economic activity; access to public services and other areas; and to repeal or amend any legislation that constitutes or produces racism, racial discrimination, and related forms of intolerance.
The States Parties undertake to ensure that the adoption of measures of any kind, including those on security matters, does not discriminate directly or indirectly against persons or groups on the basis of any of the criteria mentioned in Article 1.1 of this Convention.
The States Parties undertake to ensure that their political and legal systems appropriately reflect the diversity within their societies in order meet the legitimate needs of all sectors of the population, in accordance with the scope of this Convention.
The States Parties undertake to ensure that the victims of racism, racial discrimination, and related forms of intolerance receive equitable and non-discriminatory treatment, equal access to the justice system, expeditious and effective proceedings, and fair compensation in the civil or criminal sphere, as applicable.
The States Parties undertake to consider as aggravating those acts that lead to multiple discrimination or acts of intolerance, i.e., any distinction, exclusion, or restriction based on two or more of the criteria set forth in Articles 1.1 and 1.3 of this Convention.
The States Parties undertake to conduct research on the nature, causes, and manifestations of racism, racial discrimination, and related forms of intolerance in their respective countries, at the local, regional, and national levels, and to collect, compile, and disseminate data on the situation of groups or individuals that are victims of racism, racial discrimination, and related forms of intolerance.
The States Parties undertake, in accordance with their internal legislation, to establish or designate a national institution that shall be responsible for monitoring compliance with this Convention, and shall inform the OAS General Secretariat of this institution.
The States Parties undertake to promote international cooperation to exchange ideas and experiences; and to execute programs aimed at achieving the objectives of this Convention.
Protective Mechanisms and Monitoring of the Convention
In order to monitor the implementation of the commitments assumed by the States Parties to this Convention:
i. Any person or group of persons, or nongovernmental entity legally recognized in one or more member states of the Organization of American States may submit to the Inter-American Commission on Human Rights petitions containing reports or complaints of violations of this Convention by a State Party. In addition, any State Party, when depositing its instrument of ratification of, or accession to, this Convention, or at any time thereafter, may declare that it recognizes the competence of the Commission to receive and examine communications in which a State Party alleges that another State Party has committed violations of the human rights established in this Convention. In such case, all the relevant procedural rules contained in the American Convention on Human Rights as well as the Statutes and the Rules of Procedure of the Commission shall be applicable.
ii. States Parties 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.
iii. Any State Party may, when depositing its instrument of ratification of, or accession to, this Convention, or at any time thereafter, declare that it recognizes as binding, as a matter of law and without any special agreement, the jurisdiction of the Inter-American Court of Human Rights on all matters relating to the interpretation or application of this Convention. In such case, all relevant procedural rules contained in the American Convention on Human Rights as well as the Statutes and Rules of Procedure of the Court shall be applicable.
iv. An Inter-American Committee for the Prevention and Elimination of Racism, Racial Discrimination, and All Forms of Discrimination and Intolerance shall be established and shall be comprised of one expert appointed by each of the States Parties who shall execute his or her functions in an independent manner and shall monitor the commitments undertaken in this Convention. The Committee shall also be responsible for monitoring the commitments undertaken in the Inter-American Convention Against All Forms of Discrimination and Intolerance with respect to the states that are parties thereto.
The Committee shall be established when the first of the Conventions comes into force and its first meeting shall be convened by the General Secretariat of the OAS as soon as the tenth instrument of ratification of either Convention has been received. The first meeting of the Committee shall be held at the Headquarters of the Organization three months after its convocation 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 the Convention which establishes the Committee.
v. The Committee shall be the forum for the exchange of ideas and experience, as well as for examining progress made by the States Parties in implementing this Convention and any circumstance or difficulty affecting the extent of compliance therewith. Said Committee may recommend to the States Parties that they adopt the appropriate measures. For this purpose, the States Parties undertake to submit a report to the Committee, within one year of its first meeting, with respect to fulfillment of the obligations contained in this Convention. The reports that the States Parties submit to the Committee shall also contain disaggregated data and statistics on groups in situations of vulnerability. Thereafter, the States Parties 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.
Article 16. Interpretation
1. No provision of this Convention shall be interpreted as restricting or limiting a domestic law of any State Party that affords protections and guarantees equal to or greater than those established in this Convention.
2. Nothing in this Convention shall be interpreted as restricting or limiting international human rights conventions that afford equal or greater protections in this regard.
Article 17. Depository
The original instrument of this Convention, of which the English, French, Portuguese, and Spanish texts are equally authentic, shall be deposited with the General Secretariat of the Organization of American States.
Article 18. Signature and Ratification
1. This Convention is open to signature and ratification by all member states of the Organization of American States. After its entry into force, this Convention shall be open to accession by all states that have not signed it.
2. This Convention is subject to ratification by the signatory states in accordance with the procedures set forth in their constitutions. The instruments of ratification or accession shall be deposited with the General Secretariat of the Organization of American States.
Article 19. Reservations
The States Parties may enter reservations to this Convention when signing, ratifying, or acceding to it, provided that such reservations are not incompatible with the aim and purpose of the Convention and relate to one or more specific provisions thereof.
Article 20. Entry into Force
1. This Convention shall enter into force on the thirtieth day following the date on which the second instrument of ratification of, or accession to, the Convention is deposited with the General Secretariat of the Organization of American States.
2. For each state that ratifies or accedes to the Convention after the second instrument of ratification or accession has been deposited, the Convention shall enter into force on the thirtieth day following deposit by that state of the corresponding instrument.
Article 21. Denunciation
This Convention shall remain in force indefinitely, but any State Party may denounce it through written notification addressed to the Secretary General of the Organization of American States. The Convention shall cease to have force and effect for the denouncing state one year after the date of deposit of the instrument of denunciation, and shall remain in force for the other States Parties. Such denunciation shall not exempt the State Party from the obligations imposed upon it under this Convention in respect of any action or omission prior to the date on which the denunciation takes effect.
Article 22. Additional Protocols
Any State Party may submit for the consideration of the States Parties gathered during the General Assembly draft protocols in addition to this Convention, with a view to gradually including other rights within its system of protection. Each protocol shall determine the manner of its entry into force and shall be applied only among the States Parties to it.