Draft first regional report on the implementation of the Montevideo Consensus on Population and Development

Chapter III
Economic Commission for Latin America and the Caribbean (ECLAC)
do on recognition, justice and development and ushering in a new stage of crucial historical and political
importance that will give continuity to the struggles against slavery, inequality, colonization and racism that
have long mobilized Afrodescendent people throughout the world (ECLAC, 2017a).
The main mechanisms for following up these issues within the United Nations are: (i) the Committee on
the Elimination of Racial Discrimination, (ii) the Working Group of Experts on People of African Descent and
(iii) the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related
intolerance. In its 2017 <strong>report</strong>, the Working Group analyses the situation of Afrodescendants in the light of the
2030 Agenda for Sustainable Development and its commitment that no one should be left behind, offering a
number of recommendations to promote Afrodescendants’ rights in synergy with the International Decade
for People of African Descent (United Nations, 2017a).
National legal and regulatory frameworks refer with differing levels of specificity to the orientation of
policies towards Afrodescendent people and communities and the protection of their rights; in some cases
they are explicitly identified as bearers of individual or collective rights, while in others the subject is included
in anti-discrimination laws (ECLAC, 2017b). The constitutions of over half the countries in Latin America now
condemn discrimination on grounds of race, ethnicity or colour, besides reasons of sex and religion (ECLAC,
2017b). In Brazil, racism is treated as a crime with no statute of limitations or right to bail, punishable by a
prison term. The constitutions of countries such as Argentina, Chile, Costa Rica, Guatemala, Haiti, Paraguay
and Uruguay do not make reference to Afrodescendent peoples, the black population, race or skin colour but
do refer to equality and non-discrimination. Lastly, four countries, namely Brazil, Colombia, Ecuador and the
Plurinational State of Bolivia, explicitly recognize Afrodescendants.
Afrodescendants are recognized as having the status of a people in two of these countries: the
Plurinational State of Bolivia, where it is called the “Afro-Bolivian people”, and Ecuador, where reference is
made to the “Afro-Ecuadorian people”. Indeed, it is the constitution of Ecuador (as reformed in 2008) that
makes most reference to Afrodescendants. It devotes a whole chapter to the rights of communities, peoples
and nationalities, including the Afrodescendent population, which is deemed to have a right to develop its
identity, retain ownership of its community lands (which may not be alienated, confiscated or divided), have
a share in the usufruct of renewable natural resources situated on its lands and be consulted about the
exploitation of non-renewable resources, potentially receiving a share of profits from such exploitation and
being indemnified for damages thereby caused. The 2009 constitution of the Plurinational State of Bolivia, for
its part, recognizes Afrodescendants for the <strong>first</strong> time in the country’s history, stating that the Bolivian nation
is formed of all Bolivians, indigenous peoples and nations and intercultural and Afro-Bolivian communities that
between them constitute the Bolivian people. In Colombia, interpreting the 1991 constitution in accordance
with the international treaties ratified opened the way to the country being recognized as a multi-ethnic and
multicultural nation and spurred legal progress in favour of Afro-Colombian individuals and communities, such
as the passing of Law No. 70 of 1993 on black communities. This is highly important because it ties in with the
possibility of self-determination and the application to them of policies they regard as collective rights, such
as ownership of ancestral lands and consultation in the event of interference in their territories. The Brazilian
constitution, while not referring to Afrodescendants as a “people”, implicitly recognizes them as collective
subjects of law since, for example, it recognizes the collective land ownership of Afrodescendants whose
origins lie in the quilombos, with the State having a duty to issue them with the appropriate title deeds (art. 68
of the Temporary Constitutional Provisions) and protect their historic sites and documents (art. 216, para. 5).
When the Montevideo Consensus was established in 2013, some countries in the region had already
legislated extensively for Afrodescendants, most particularly Brazil, Colombia and Ecuador. Costa Rica,
Honduras and Peru had less plentiful but still substantial legislation, while countries such as Guatemala and
Nicaragua had little legislation oriented towards Afrodescendants but extensive anti-discrimination legislation.
Lastly, countries that did not have legislation oriented towards Afrodescendants but had anti-discrimination
legislation included, for example, Argentina, the Bolivarian Republic of Venezuela, Cuba, Mexico and Uruguay.
In 2012, Chile enacted Law No. 20609 establishing measures against discrimination, including discrimination
on grounds of race or ethnicity.
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