The OAS does not have any specific provisions for minority rights within the human rights treaties of this system. It is currently negotiating a draft Inter-American Convention against Racism and all forms of Discrimination and Intolerance and a draft American Declaration on the Rights of Indigenous Peoples. The Inter-American Court of Human Rights has made some important decisions governing the rights of indigenous peoples and Afro-descendants. There are Special Rapporteurs on: the Rights of Persons of African Descent and Racial Discrimination; on Migrant Workers and their Families; and on the Rights of Indigenous Peoples.

The main human rights instrument of the OAS is the American Convention on Human Rights, also known as the Pact of San José, which came into force in 1978. The Convention has 24 States parties. There is an Optional Protocol to the Convention on economic, social and cultural rights (Protocol of San Salvador) which has 14 States parties and came into force in 1999.

The Convention is monitored by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Individuals alleging violations of their rights under the Convention cannot apply directly to the Court; they must submit their case to the Commission first. The Commission examines the case and if it finds the State responsible, it will usually give the State a list of recommendations for addressing the issue. Should the State fail to comply, or if the case addresses a particularly important matter of law, the Commission will, as a last resort, refer the case to the Inter-American Court.

The American Convention does not mention minorities. Article 1 of the Convention protects against discrimination on the grounds of “race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition” in the exercise of rights under the Convention. Freedom of religion is guaranteed under article 12, and article 24 provides for equal protection of the law without discrimination. The Protocol on economic, social and cultural rights also contains non-discrimination provisions and article 14 recognizes the right to take part in the cultural life of the community.

The OAS is currently working on a draft Inter-American Convention against Racism and all forms of Discrimination and Intolerance. The current draft includes important definitions of direct and indirect discrimination. There are mentions of collective rights for indigenous peoples and Afro-descendent communities. The draft includes a list of acts or treatment that constitute discrimination and which must be prohibited by the State. Minorities are recognized in the draft convention, including in the Preamble, that acknowledges “the victims of racism, discrimination and intolerance in the Americas are, inter alia, Afro-descendents, indigenous peoples, migrants, refugees and displaced persons and their families, as well as other racial, ethnic, sexual, cultural, religious and linguistic groups or minorities that are affected by such manifestations”. The Convention, once the text is finalized and adopted, will be another important tool for the protection of minorities in the Americas.

The Inter-American Commission has created a Special Rapporteur on the Rights of Persons of African Descent and Racial Discrimination. The Special Rapporteur has a mandate to support the Commission to assist OAS member States to fulfil their duty to respect the rights of Afro-descendants, to analyse current challenges on Afro-descendant issues, to gather and disseminate best practice, to formulate recommendations, and to provide technical advice as needed. The position has been held since its creation in 2005 by Dr. Clare Roberts, President of the Inter-American Commission. The Special Rapporteur has conducted one informal country visit to Brazil in 2005 and an official country visit to Colombia in 2007.

The Inter-American Court of Human Rights has made a number of important decisions that impact on the rights of minorities in the Americas. Most of the relevant cases have been taken by people of African descent focusing on the areas of non-discrimination, land rights and culture. The case of Yean and Bosico v. Dominican Republic concerned two ethnic Haitian children who were born in the Domincan Republic but were denied Dominican citizenship despite the fact that Dominican law provides for anyone born on the territory to receive citizenship (jus solis).⁸⁰ Since they were unable to register their births, they could not enroll in school and their undocumented status left them vulnerable to deportation to a country with which they had little connection. They argued that officials refused to register the births because of their perceived ethnic origin and that the requirements for late registration of births indirectly discriminated against ethnic Haitians. The Court found that the Dominican Republic had applied its nationality and birth registration laws in a discriminatory mannor which left ethnic Haitian children stateless and unable to access vital services, such as education, in breach of the Convention.

The Commission examined the case of Simone André Diniz v. the Republic of Brazil. The case concerned racial discrimination against the applicant in applying for a job and the failure of the justice system to adequately investigate her complaint. The Commission found that the State of Brazil had violated the applicant’s right to equality before the law, the right to judicial protection and the right to a fair trial. The case exposed long-standing systematic failures in Brazil to implement its own stringent domestic laws against racial discrimination. In its recommendations, the Commission has urged the government, inter alia, to “make the legislative and administrative changes needed so that the anti-racism law is effective” and to “promote awareness campaigns against racial discrimination and racism”.⁸¹

In the Moiwana Village v. Suriname case, in 2005, the Court ruled in favour of the African-descended N’djuka community forcibly expelled from their traditional lands around the Moiwana village and unable as a consequence to practice their culture. While it was accepted that the N’djuka were not ‘indigenous’ to the territory of Suriname, the important link between their cultural life and the use of lands traditionally inhabited by them since the 17^th century was a central factor in the decision. The Court argued that Suriname had violated, inter alia, the collective land rights of the group and ordered that:

The State shall adopt such legislative, administrative, and other measures as are necessary to ensure the property rights of the members of the Moiwana community in relation to the traditional territories from which they were expelled, and provide for the members’ use and enjoyment of those territories.⁸²

A similar decision was taken by the Court in 2007 in the case of the Saramaka People v. Suriname where another Afro-descendant community was recognized to hold collective rights to land because of its status as a “tribal people” and its ancestral connection to the territory in question; the Court reasoned that its jurisprudence with regard to indigenous peoples’ right to property was applicable to this community.⁸³

The case of López-Álvarez v. Honduras provided an innovative interpretation of cultural rights for Afro-descendants. Mr. López-Álvarez was a community leader among the Garífuna Afro-descendants in Honduras. In his case he alleged that state actors had created a false narcotics charge against him as a means of intimidating him and his community during their pursuit of a legal challenge to the State regarding land rights. The Afro-descendant NGO OFRANEH assisted the applicant in bringing his case. The decision was given in favour of Mr. López-Álvarez, but of particular interest is the aspect of the case that dealt with the applicant’s right to speak his mother tongue whilst in prison, a right denied him by the prison authorities where he was held. The Court ruled this was a violation of the freedom of thought and expression and an act of discrimination against Mr. López-Álvarez as a member of the Garífuna community, citing that “Language is one of the most important elements of identity of any people, precisely because it guarantees the expression, diffusion, and transmission of their culture”.⁸⁴ Thus, the case was an effective use of an international institution to challenge the obstruction of the State when Afro-descendants tried to claim their rights and also an important source of jurisprudence on Afro-descendant identity protection.

These decisions provide a fertile basis for strengthening domestic law and practice and expanding the jurisprudence of the American Convention on Human Rights to protect members of distinct identity groups.