ERT Welcomes Major Advance in Protection from Discrimination in the Americas

Published: June 21, 2013

On 6 June 2013, the Organization of American States (OAS) adopted two Conventions aimed at eliminating discrimination in its 35 member states. The first Convention seeks to eliminate racism, racial discrimination and related forms of intolerance, while the second addresses discrimination and intolerance on all other grounds. ERT welcomes the adoption of these Conventions as progressive measures which will assist in providing protection from discrimination on a large number of grounds and in many areas of life in countries which ratify the instruments.

Following a consultation and drafting process which began in 2005, the Inter-American Convention Against Racism, Racial Discrimination and Related Forms of Intolerance and the Inter-American Convention Against All Forms of Discrimination and Intolerance were finally adopted by the OAS at its 43rd General Assembly held in Guatemala. The two Conventions have so far been signed by six OAS member states: Argentina, Antigua and Barbuda, Brazil, Costa Rica, Ecuador and Uruguay.

The two Conventions are almost identical in their text, save that one addresses discrimination and intolerance only on the grounds of race, colour, lineage, or national or ethnic origin, whereas the second addresses discrimination and intolerance on all other grounds. The OAS has largely succeeded in producing treaties which offer comprehensive protection from discrimination in line with current international law and best practice. Article 1 of the Conventions provides for recognition of various forms of discrimination including direct and indirect discrimination. The two Conventions include provisions on multiple discrimination (Articles 1 and 11) and positive action (Articles 1 and 5), provide that the right to non-discrimination is applicable in “any sphere of life, public or private” (Article 2), and contain detailed and prescriptive obligations upon states parties to eliminate, prohibit, and punish “all acts and manifestations of discrimination and intolerance” (Article 4). Provisions requiring the collection of data on the nature, causes, and manifestations of discrimination (Article 12) and the establishment of a national institution to monitor compliance with the Conventions (Article 13) are also included.

Nevertheless, there are a number of areas where the Conventions could have been strengthened. In particular, ERT regrets the omission of any provisions recognising harassment and failure to make reasonable accommodation as forms of discrimination; the absence of detailed provisions on the steps that states parties must take in order to ensure effective access to justice for victims of discrimination; the failure to prohibit victimisation; the lack of specific references to remedies and sanctions; and the removal of provisions from the published draft Conventions requiring states parties to make provision in national law for the reversal of the burden of proof in discrimination cases.

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