the Afro-descendant population in the Americas

international journal on human rights- Dec/2018 -MENUPOR - ENG - ESP search issue28 ESSAYS Essays AFRO-DESCENDANTS AS SUBJECTS OF RIGHTS IN INTERNATIONAL HUMAN RIGHTS LAW Roberto Rojas Dávila The historical process of recognition and its challenges + ARTICLESLETTER TO THE READERS Sur 28 – Letter to the Readers ART Sea of Verses Rhuann Fernandes “Não me aguarde na retina” Diane Lima THE SUR FILE ON RACE AND HUMAN RIGHTS Structural racism and the criminalisation of abortion in brazil Lívia Casseres The Massacre of Black Brazilians in the War on Drugs Nathália Oliveira, Eduardo Ribeiro Putting Racial Equality onto the Global Human Rights Agenda E. Tendayi Achiume The only Black woman at the social justice philanthropy dinner party Nicolette Naylor Racialising the debate on human rights Thula Pires Race Matters Mariana Berbec-Rostas, Soheila Comninos, Mary Miller Flowers, Sue Gunawardena-Vaughn, Michael Heflin, Nina Madsen Black Women Under Fire Juliana Borges The role of white people in the fight against racism Denise Carreira The challenge of overcoming institutional barriers to end racial discrimination in the workplace Maryluz Barragán González ARTICLES Human Rights and the Non-Human Black Body A. Kayum Ahmed VOICES Diversifying Knowledge Thiago Amparo Why don’t you embrace me? Megg Rayara Gomes De Oliveira From Winnie Mandela to the Baixada Fluminense Aline Maia Nascimento Development as a democratic practice Rosane Viana Jovelino VIDEO ESSAY Luto para nós é verbo Natasha Neri, Juliana Farias, Karla da Costa, Renato Martins IMAGES Afro-Atlantic Histories Afro-descendants as subjects of rights in International Human Rights lawAfro-descendants as subjects of rights in International Human Rights lawAfro-descendants as subjects of rights in International Human Rights law ABSTRACT The incorporation of the theme of Afro-descendants in international human rights law is relatively new. Only 18 years ago, the issue was raised at the Regional Conference of the Americas held in preparation for the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in the city of Santiago, Chile in the year 2000. This article aims to analyse the historical aspects of racism and racial discrimination against the Afro-descendant population, as well as the development of the theme of Afro-descendants in international human rights law in the Americas. KEYWORDS Human rights | UN | Racial discrimination | ONU | Discriminação racial | Racismo | Afrodescendentes | OEA | Racism | Afro-descendants | OAS • • • 01 “The discrimination faced by people of African descent is pernicious. Often, they are trapped in poverty in large part because of bigotry, only to see poverty used as a pretext for further exclusion.”1 Introduction The history of the Afro-descendant population in the Americas is undoubtedly one of survival from injustices and systematic violations of human rights. Racism and racial discrimination have been, and still are, part of the life of Afro-descendant women and men since the beginning of the transatlantic trade slave – that is, for over five centuries now. In recent years, international organisations and the majority of states in the Americas have made efforts to combat racial discrimination and promote the inclusion of the Afro-descendant population. These efforts have been significant, but not enough to end more than five centuries of discrimination and exclusion. The incorporation of the theme of Afro-descendants in international human rights law is relatively new. Only 18 years ago, the issue was raised at the Regional Conference of the Americas held in preparation for the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in the city of Santiago, Chile in the year 2000. For the first time, the declaration from the said conference, known as the Declaration of Santiago, “Recognise[d] that the racism and racial discrimination from which the population of African origin in the Americas has suffered is at the origin of the marginalisation, poverty and exclusion in which the majority of these individuals in many countries on the continent find themselves and that, despite the efforts made, this situation persists to different degrees”. Furthermore, it “calls for measures to eliminate the inequalities that still persist due to the opprobrious legacy of slavery and to facilitate the participation of Afro-descendants in all aspects of political, economic, social and cultural life of society and in the progress and economic development of their countries; and to promote greater knowledge and respect for their heritage and culture”. Within this context, this article aims to analyse the historical aspects of racism and racial discrimination against the Afro-descendant population, as well as the development of the theme of Afro-descendants in international human rights law in the Americas. 02 Afro-descendants in International Human Rights Law in the Americas “We recognize that in many parts of the world, Africans and people of African descent face barriers as a result of social biases and discrimination prevailing in public and private institutions and express our commitment to work towards the eradication of all forms of racism, racial discrimination, xenophobia and related intolerance faced by Africans and people of African descent.”2 One could say that the historical evolution of the international protection of groups in situations of vulnerability can be divided into three periods: 1) the period of unsystematic protection; 2) the period of pre-systematic protection; and 3) the period of systematic protection. In the unsystematic protection period, a series of bilateral treaties that protected religious minorities were adopted. The pre-systematic protection period developed under the aegis of the League of Nations between the two world wars and was characterised by the first efforts to protect minorities that were not necessarily religious. One example of these initial efforts was the Advisory Opinion of the Permanent Court of Justice in the case of the minority schools in Albania in 1935.3 In the said opinion, the Court affirmed that: “The underlying idea of the treaties for the protection of minorities is to guarantee certain groups incorporated into a state, from whom the population differs in race, language and religion, the possibility of peaceful coexistence and friendly cooperation with the population, while preserving, at the same time, the characteristics that distinguish these groups from the majority and satisfying the special needs that emerge.” This advisory opinion is extremely important, as it was the first time that a concept of equality elaborated specifically for racial, religious or linguistic minorities appeared. It was precisely this vision on the equality – and not the assimilation – of racial, religious or linguistic minorities that generated, after World War II, the creation of international human rights law as we know it today. It was in this context that, at the initiative of the United Nations at the international level and the Organisation of American States at the regional level, the period of systematic protection began. 03 The United Nations and the Fight against Racial Discrimination “Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination”.4 In 1945, by adopting the Charter of the United Nations, the international community accepted the challenge of promoting the implementation of human rights and fundamental freedoms, without distinction as to race, sex, language or religion. However, the paradox remained, as racism and racial discrimination continued to be part of reality in the majority of the 51 founding member states of the United Nations. The United States of America, for example, maintained racial segregation as a state policy under the slogan “separate but equal” – the result of the ruling in the Plessy vs Ferguson case in 1896. France and the United Kingdom still had colonies on five continents and Russia still used the Gulag system. In 1948, the United Nations General Assembly approved the Universal Declaration of Human Rights, which established, in Art. 1, that “All human beings are born free and equal in dignity and rights”. The same year, the General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Unfortunately, in 1948, apartheid was made official in the territory of the Republic of South Africa. This policy of racial segregation was introduced into the country by the National Party. The legislation on apartheid determined the places of residence for each “racial” group, the education they would receive and the kind of work they could do. It also prohibited non-whites from intervening in government, as well as any type of social contact between different “races”. The 1970s was one of the most intense decades in relation to racial discrimination. Some reprehensible incidents, such as the assassination of Malcolm X and Martin Luther King Jr., Bloody Sunday in Selma and the Sharpeville massacre in South Africa, among others, made the news. It is in this historical context that public international law is used to fight racism, racial discrimination, xenophobia and other related practices. In the mid-1960s, the United Nations General Assembly approved the International Convention on the Elimination of All Forms of Racial Discrimination, which was the first legally binding international instrument specifically on racial discrimination. The convention established that “States Parties condemn racial discrimination and undertake to pursue … a policy of eliminating racial discrimination in all its forms”. It also ordered the creation of the Committee on the Elimination of Racial Discrimination (CERD). The committee was the first effective monitoring body for a human rights treaty and it was responsible for reviewing the implementation of the Convention. In 1966, the United Nations General Assembly declared March 21 the International Day for the Elimination of Racial Discrimination in remembrance of the Sharpeville massacre in South Africa. Despite the United Nations’ efforts to fight racism and racial discrimination, apartheid remained strong in South Africa. In 1973, the International Convention on the Suppression and Punishment of the Crime of Apartheid was approved and, the same year, the United Nations General Assembly announced the First Decade for Action to Combat Racism and Racial Discrimination, which went from 1973 to 1983. In 1978, the First World Conference to Combat Racism and Racial Discrimination took place. Its declaration and plan of action confirm the essential fallacy of racism and the serious threat that it poses to friendly relations between peoples and nations. It also asserted that: “Any doctrine of racial superiority is scientifically false, morally condemnable, socially unjust and dangerous, and there is no justification for it”. In the said conference, apartheid was specifically condemned as “an extreme form of institutionalised racism”, a crime against humanity, an affront to dignity and a threat to world peace. It also stated that deep economic inequalities are what provoke racial discrimination and it is necessary to make efforts to fight racism, including by adopting measures to improve the living conditions of men and women. In 1983, the Second World Conference to Combat Racism and Racial Discrimination took place, where racism was condemned once again. Also that year, the United Nations General Assembly established the Second Decade to Combat Racism and Racial Discrimination, which lasted from 1983 to 1992. This was followed by the Third Decade to Combat Racism and Racial Discrimination, from 1993 to 2003. In its resolution on the Third Decade, the General Assembly urged all governments to fight against new forms of racism, such as xenophobia and related forms of intolerance; discrimination based on culture, nationality, religion or language; and racism resulting from official doctrines of racial superiority and/or exclusivity, such as ethnic cleansing. Also in 1993, the United Nations Commission on Human Rights named a Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance. In the 20th century, the United Nations played a leading role in the fight against racism and racial discrimination. 04 Afro-descendants as Subjects of International Human Rights Law: “We went in as blacks and emerged as Afro-descendants” For millions of Afro-descendants, the 21st century marked the beginning of a new legal status – one that raises the level of protection for their human and collective rights. In 2000, in the city of Santiago, Chile, the Regional Conference of the Americas was held, which was a preparatory conference for the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. During the conference in Santiago, the states of the Americas defined Afro-descendant as the person of African origin who lives in the Americas and in the region of the African Diaspora as a result of slavery, who have been denied the exercise of their fundamental rights. In the Third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance – known as the Durban Conference – the states ratified this definition, as well as most of the content of the Declaration of Santiago related to Afro-descendants. From our point of view, the most important aspect of both declarations is that, in addition to defining the term Afro-descendant, they recognised people of African descent as subjects of international human rights law. This meant that they are able to acquire rights and obligations directly in the international arena, according to the provisions of these international instruments. In the words of activists from the Afro-descendant movement in the Americas, at the Conference of Santiago, “We went in as blacks and emerged as Afro-descendants”. This meant that there was a before and an after the conference in relation to the promotion and respect of Afro-descendants’ rights. By adopting a legal definition and by recognising them as subjects of international human rights law, it was possible to raise the level of protection for this vulnerable group. We should highlight that the advances achieved at the Conference of Santiago were possible thanks to the strong participation and intervention of Afro-descendant civil society, whose contributions were taken into consideration to enrich the content of the declaration, as well as the governments’ openness and the good will during the negotiations. At the national level, we can mention the creation of several racial equality bodies, such as, for example, the Secretariat of Policies for the Promotion of Racial Equality in Brazil, the Racial Ethnic Unit of the Ministry of Foreign Affairs of Uruguay, the Presidential Commissioner in Costa Rica, the Presidential Programme in Colombia and the Executive Secretariat of the Black Ethnic Council in Panama, among others. In the Americas, there are approximately 18 government bodies on racial equality. In 2002, pursuant to the Durban Declaration and Programme of Action, the United Nations created the Working Group of Experts on People of African Descent, with the following mandate: Study the problems of racial discrimination affecting people of African descent living in the diaspora; Propose measures to ensure people of African descent full and effective access to the justice system; Submit recommendations on the design, implementation and enforcement of effective measures to eliminate racial profiling of Afro-descendants; Elaborate short, medium and long-term proposals for the elimination of racial discrimination against Afro-descendants, bearing in mind the need for close collaboration with international and development institutions and the specialised agencies of the United Nations system to promote the human rights of people of African descent; Make proposals on the elimination of racial discrimination against Africans and people of African descent in all parts of the world; Address all the issues concerning the well-being of Africans and Afro-descendants included in the Durban Declaration and Programme of Action. In 2011, in the framework of the International Year for People of African Descent, the Committee on the Elimination of Racial Discrimination (CERD) approved General Recommendation No. 34 entitled “Racial Discrimination against Afro-descendants”. In 2013, the United Nations General Assembly passed Resolution A/RES/68/237 “Proclamation of the International Decade for People of African Descent”, which began on January 1, 2015 and is set to end on December 31, 2024. The theme of the decade is “People of African descent: recognition, justice and development”. Its specific objectives are: Promote respect, protection and fulfilment of all human rights and fundamental freedoms by people of African descent, as recognized in the Universal Declaration of Human Rights; Promote a greater knowledge of and respect for the diversity of the heritage and the culture of Afro-descendants and their contribution to the development of societies; Adopt and strengthen national, regional and international legal frameworks according to the Durban Declaration and Programme of Action and the International Convention on the Elimination of All Forms of Racial Discrimination and ensure their full and effective implementation. In conclusion, in recent years, the United Nations has contributed to the recognition of Afro-descendant women and men as subjects of rights and specifically as subjects of international human rights law, and to pressuring states and international organisations to assume their commitments to this vulnerable group