PROTECTING HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS
WHILE COUNTERING TERRORISM
(Adopted at the fourth plenary session, held on June 7, 2011)
THE GENERAL ASSEMBLY,
RECALLING resolutions AG/RES. 1840 (XXXII-O/02), AG/RES. 1906 (XXXII-O/02), AG/RES. 1931 (XXXIII-O/03), AG/RES. 2035 (XXXIV-O/04), AG/RES. 2143 (XXXV-O/05), AG/RES. 2238 (XXXVI-O/06), AG/RES. 2271 (XXXVII-O/07), AG/RES. 2415 (XXXVIII-O/08), AG/RES. 2512 (XXXIX-O/09), and AG/RES. 2580 (XL-O/10), as well as the Report on Terrorism and Human Rights prepared by the Inter-American Commission on Human Rights (OEA/Ser.L/V/II.116, doc.5 rev. 1);
REAFFIRMING the principles and purposes of the Charter of the Organization of American States (OAS) and the Charter of the United Nations;
EMPHASIZING that all persons are born free and are entitled to the human rights and fundamental freedoms recognized in the Universal Declaration of Human Rights, without distinction of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or other status, and that this applies in all circumstances, in accordance with international law;
RECOGNIZING that respect for all human rights, respect for democracy, and respect for the rule of law are interrelated and mutually reinforcing;
REAFFIRMING the fundamental importance, including in the response to terrorism and the fear of terrorism, of respecting all human rights and fundamental freedoms and the rule of law; and reiterating that counterterrorism measures should be implemented in full consideration of the human rights of all persons, including those belonging to national or ethnic, religious, and linguistic minorities, and, according to international law, must not be discriminatory on grounds such as race, color, sex, language, religion, or social origin;
RECALLING that all persons are equal before the law and have the rights and duties established in the American Declaration of the Rights and Duties of Man, without distinction as to race, sex, language, creed, or any other factor;
RECALLING the Vienna Declaration and Programme of Action adopted by the World Conference on Human Rights on June 25, 1993;
REAFFIRMING ALSO that states are under the obligation to protect all human rights and fundamental freedoms of all persons, and reiterating in this regard that counterterrorism measures should be implemented in full consideration of the human rights of all persons, including those belonging to national or ethnic, religious, and linguistic minorities, and, according to international law, must not be discriminatory on grounds such as race, color, sex, language, religion, or social origin;
INSISTING that the adoption of measures to ensure respect for human rights for all and the rule of law is one of the pillars of the Plan of Action of the United Nations Global Counter-Terrorism Strategy, adopted by consensus in 2006;
REITERATING the important contribution of measures taken at all levels against terrorism, consistent with international law, including international human rights law, international refugee law, and international humanitarian law, to the functioning of democratic institutions and the maintenance of peace and security and thereby to the full enjoyment of human rights;
CONFIRMING that acts, methods, and practices of terrorism in all its forms and manifestations are activities aimed at the destruction of human rights, fundamental freedoms, and democracy, threatening the territorial integrity and security of states and destabilizing legitimately constituted governments, and that the international community should take the necessary steps to enhance cooperation to prevent and combat terrorism;
REAFFIRMING its unequivocal condemnation of all acts, methods, and practices of terrorism in all its forms and manifestations, wherever and by whomever committed, regardless of their motivation, as criminal and unjustifiable; and renewing its commitment to strengthen international cooperation to prevent and combat terrorism;
DEEPLY DEPLORING the violations of human rights and fundamental freedoms in the context of the fight against terrorism, as well as violations of international refugee law and international humanitarian law;
DEPLORING ALSO the suffering caused by terrorism to the victims and their families, expressing its profound solidarity with them, and stressing the importance of strengthening assistance and support for them;
TAKING INTO ACCOUNT:
That, in the Declaration on Renewed Hemispheric Commitment to Enhance Cooperation to Prevent, Combat and Eliminate Terrorism, adopted in Washington, D.C., on March 17, 2011, the member states reiterated their most vehement condemnation of terrorism in all its forms and manifestations, whatever its origin or motivation, which has no justification whatsoever and constitutes a grave threat to the lives, well-being and fundamental freedoms of all people, threatens international peace and security, and undermines the values and principles underlying the Inter-American system, democratic institutions, the rule of law, and the freedoms enshrined in and promoted by the OAS Charter, the Inter-American Democratic Charters, and other international instruments;
That, in the Declaration on Security in the Americas, the states of the Hemisphere renewed their commitment, reiterated in the Declaration of San Carlos and the Declaration of Panama, to fight terrorism and its financing, with full respect for the rule of law and international law, including international humanitarian law, international human rights law, and international refugee law, the Inter-American Convention against Terrorism, and United Nations Security Council resolution 1373 (2001); and
That, in the Declaration of Mar del Plata of the Fourth Summit of the Americas, the Declaration of Nuevo León of the Special Summit of the Americas, and the Declaration of Port of Spain of the Fifth Summit of the Americas,34/ the Heads of State and Government agreed to take all necessary steps to prevent and counter terrorism and its financing, in full compliance with their obligations under international law, including international human rights law, international refugee law, and international humanitarian law;
WELCOMING that the Inter-American Convention against Terrorism entered into force on July 10, 2003, and that to date 24 countries have ratified it;
CONSIDERING the report of the Meeting of Governmental Experts to Exchange, from a Human Rights Perspective, Best Practices and National Experiences in Adopting Antiterrorism Measures, held on February 12 and 13, 2004 (CP/CAJP-2140/04);
CONSIDERING ALSO the document entitled “Recommendations for the Protection of Human Rights by OAS Member States in the Fight against Terrorism” (CP/doc.4117/06), prepared by the Inter-American Commission on Human Rights (IACHR), which supplements the IACHR Report on Terrorism and Human Rights, of October 22, 2002 (OEA.Ser.L/V/II.116, Doc. 5 rev. 1); and
That, in the fight against terrorism, any detained person suspected to be involved in a terrorist act will enjoy the rights and guarantees provided by applicable international law, in particular international human rights law and international humanitarian law;
That the means the state can use to protect its security or that of its citizens in the fight against terrorism should, under all circumstances, be consistent with applicable international law, in particular international human rights law, international humanitarian law, and international refugee law; and
That terrorism cannot and should not be associated with any religion, nationality, civilization, or ethnic group;
RECALLING that, under Article 27 of the American Convention on Human Rights and Article 4 of the International Covenant on Civil and Political Rights, it is recognized that some rights are non-derogable under any circumstances, and that, with respect to rights that may be subject to derogation, states may take measures derogating from their obligations under these conventions to the extent and, with respect to the American Convention, for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with the other rights and obligations prescribed under international law; and emphasizing that, in the inter-American system, the protection of non-derogable rights includes essential judicial guarantees for their protection;
NOTING WITH CONCERN and reiterating the need to avoid all measures that could undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of a legal basis for detention and of due process guarantees, the deprivation of liberty that amounts to placing a detained person outside the protection of the law, the trial of suspects without fundamental judicial guarantees, the illegal deprivation of liberty and transfer of individuals suspected of terrorist activities and the return of suspects to countries without a case-by-case assessment of the possible existence of substantial grounds for believing that they would be in danger of subjection to torture, and limitations on effective scrutiny of counterterrorism measures; and
STRESSING that all measures used in fighting against terrorism, including the profiling of individuals and the use of diplomatic assurances, memorandums of understanding, and other types of transfer agreements or arrangements, must be in compliance with the obligations of States under international law, including international human rights, refugee and humanitarian law;
1. To reaffirm that the fight against terrorism must be waged with full respect for the law, including compliance with due process, and for human rights, comprising civil, political, economic, social, and cultural rights, as well as for democratic institutions, so as to preserve the rule of law and democratic freedoms and values in the Hemisphere.
2. To reaffirm that all member states have a duty to ensure that all measures adopted to combat terrorism are in compliance with their obligations under international law, in particular international human rights law, international refugee law, and international humanitarian law.
3. To urge states, while countering terrorism, to fully comply with their obligations against cruel, inhuman, or degrading treatment or punishment, in particular the absolute prohibition of torture.
4. To call upon states to ensure that their laws criminalizing terrorist conduct and/or activities are accessible, formulated with precision, nondiscriminatory, non-retroactive, and in accordance with applicable international law, including human rights law, international humanitarian law, and international refugee law.
5. To urge states not to resort to profiling based on stereotypes founded on any grounds of discrimination prohibited by international law.
6. To urge states to fully respect non-refoulement obligations under international refugee and human rights law and, at the same time, to review, with full respect for these obligations and other legal safeguards, the validity of a refugee status decision in an individual case if credible and relevant evidence comes to light indicating that the person in question has committed any criminal acts, including terrorist acts, falling under the exclusion clauses under international refugee law.
7. To urge states to ensure that all forms of deprivation of liberty in all places of detention keep the detained person under the protection of the law and respect the safeguards concerning the liberty, security, safety, and dignity of the person in keeping with the provisions of international law, including human rights law and humanitarian law.
8. To urge member states to respect, in accordance with their obligations, the human rights of all persons deprived of their liberty in high-security detention centers, particularly observance of due process, ensuring that no form of deprivation of liberty places a detained person outside the protection of the law.
9. To respect the right of persons to equality before the law, courts, and tribunals, and to a fair trial as provided in international law, including international human rights law, such as the International Covenant on Civil and Political Rights, international humanitarian law, and refugee law.
10. To invite all member states, with a view to fulfilling the commitments undertaken in this resolution, to consider signing and ratifying, as soon as possible and as the case may be, the Inter-American Convention against Terrorism and the American Convention on Human Rights; and to urge the states parties to take appropriate steps to implement the provisions of those treaties.
11. To urge the competent organs, agencies, and entities of the OAS, in accordance with their mandates, to provide, upon request, technical assistance to strengthen the capacity of member states to develop and implement programs to assist and support victims of terrorism in accordance with their domestic laws.
12. To urge member states to promote and apply at every level the United Nations Global Counter-Terrorism Strategy and its Plan of Action in order to move toward the common goal of eradicating the scourge of international terrorism, taking into account that one of its mainstays is ensuring respect for human rights while countering terrorism.
13. To reiterate to the Inter-American Commission on Human Rights (IACHR) that it should continue promoting respect for and the defense of human rights and facilitating efforts by member states to comply appropriately with their international human rights commitments when developing and executing counterterrorist measures, including the rights of persons who might be at a disadvantage, subject to discrimination, or at risk as a result of terrorist violence or counterterrorist initiatives, and to report to the Permanent Council on the advisability of conducting a follow-up study.
14. To reiterate to the Permanent Council that, on the basis of the “Recommendations for the Protection of Human Rights by OAS Member States in the Fight against Terrorism,” prepared by the IACHR, and the results of consultations with the Inter-American Committee against Terrorism (CICTE) and the member states, it should consider drafting common terms of reference for the protection of human rights and fundamental freedoms in the fight against terrorism which would compile current international standards and be based on applicable international law and on best practices, for consideration by the General Assembly.
15. To reaffirm the importance of intensifying dialogue among the CICTE Secretariat, the Executive Secretariat of the IACHR, and other pertinent areas of the Organization, with a view to improving and strengthening their ongoing collaboration on the issue of protecting human rights and fundamental freedoms while countering terrorism.
6. To request the Permanent Council to report to the General Assembly at its forty-third regular session on the implementation of this resolution, the execution of which shall be subject to the availability of financial resources in the program-budget of the Organization and other resources.35
1.. … expressed its view that the Declaration of the Fifth Summit of the Americas was unacceptable and inadequate as it did not resolve a number of matters that were extremely important for the Hemisphere and were still under discussion. Nor does Nicaragua accept that references may be made to that Declaration in the resolutions to be adopted by the OAS General Assembly. Nicaragua reaffirms that the items on the General Assembly agenda should be derived from the debates and deliberations of the Heads of State and Government in Trinidad and Tobago.
AG/RES. 2677 (XLI-O/11)
DRAFT INTER-AMERICAN CONVENTION AGAINST RACISM AND
ALL FORMS OF DISCRIMINATION AND INTOLERANCE 36/37/38/
(Adopted at the fourth plenary session, held on June 7, 2011)
THE GENERAL ASSEMBLY,
HAVING SEEN the Annual Report of the Permanent Council to the General Assembly (AG/doc.5217/11);
RECALLING the content of resolutions AG/RES. 1712 (XXX-O/00) and AG/RES. 1774 (XXXI-O/01), “Preparation of a Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance”; AG/RES. 1905 (XXXII-O/02), AG/RES. 1930 (XXXIII-O/03), AG/RES. 2038 (XXXIV-O/04), and AG/RES. 2126 (XXXV-O/05), “Prevention of Racism and All Forms of Discrimination and Intolerance and Consideration of the Preparation of a Draft Inter-American Convention”; AG/RES. 2168 (XXXVI-O/06), “Combating Racism and All Forms of Discrimination and Intolerance and Consideration of the Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance”; AG/RES. 2276 (XXXVII-O/07), “Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance”; AG/RES. 2367 (XXXVIII-O/08), “Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance”; and AG/RES. 2501 (XXXIX-O/09), “Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance,” and AG/RES. 2606 (Xl-O/10) “Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance;”
REAFFIRMING the principles of equality and nondiscrimination and recognizing that human diversity is a cherished asset for the advancement and welfare of humanity at large;
FIRMLY REITERATING the most resolute commitment of the Organization of American States to the eradication of racism and of all forms of discrimination and intolerance and their conviction that such discriminatory attitudes are a negation of such universal values as the inalienable and infrangible rights of the human person and the purposes, principles, and guarantees 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 Universal Declaration of Human Rights, the Inter-American Democratic Charter, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Universal Declaration on the Human Genome and Human Rights;
TAKING NOTE of the commemoration in 2010 of the International Year for People of African Descent in accordance with United Nations General Assembly resolution A/RES/64/169 "International Year for People of African Descent;" as well as of the mandate of the OAS General Assembly contained in resolution AG/RES. 2550 (XL-O/10), “Recognition of the International Year for People of African Descent” and, in keeping with the latter, the holding on March 15, 2011, of the Special Meeting of the Permanent Council of the Organization to celebrate the International Year for People of African Descent; and of other associated activities in the framework of the OAS;
OBSERVING with concern that there are still a considerable number of human beings in our Hemiphere who are still victims of longstanding and contemporary manifestations of racism, discrimination, and intolerance;
ACKNOWLEDGING the significant contributions made by Member States, OAS organs, agencies, and entities, other agencies of the United Nations, civil society organizations and other organizations, in regards to the on-going process of negotiations; and
HAVING PARTICULAR REGARD to the Report of Activities During the 2010-2011 Term, as presented by the Chair of the Working Group to Prepare a Draft Inter-American Convention Against Racism and all Forms of Discrimination and Intolerance to the Committee on Juridical and Political Affairs (CAJP/GT/RDI-174/11 rev. 5),
1. To reaffirm the will and the most resolute commitment of the member states to continue making efforts in the preparation and negotiation of such legally binding instruments as may be necessary to address the scourges of racism, racial discrimination, and all other forms of discrimination and intolerance.
To instruct the Permanent Council to extend the mandate of the Working Group of the Committee on Juridical and Political Affairs and to entrust it with the preparation of legally binding instruments with due consideration of a convention against racism and racial discrimination, as well as an optional protocol or protocols that would, in addition, address all other forms of discrimination and intolerance, in accordance with the work plan and methodology that is adopted, taking into account, where possible, the progress set forth in document CAJP/GT/RDI-57/07 rev. 13, “Consolidated Document: Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance,” and to continue the negotiations based on said instruments. For such purposes and in order to receive additional contributions, the Working Group will consider convening a special meeting, at an appropriate time during the 2011-2012 term, with the participation of government experts and representatives of Member States, specialized organizations of the Inter-American System and other regional systems, the United Nations specialized agencies and nongovernmental organizations.
To instruct that the preparation, negotiation, and approval of the final drafts of said legal instruments are done simultaneously and concurrently, so as to ensure a comprehensive and coherent treatment of the scourges of racism, discrimination, and intolerance in the Hemisphere.
To instruct that this process, continues to promote contributions from member states; organs, agencies, and entities of the Organization of American States (OAS), taking into account the Inter-American Institute of Human Rights; the United Nations; and regional organizations; to urge those bodies to continue sending their written contributions to the Working Group for consideration; and, pursuant to the Guidelines for Participation by Civil Society Organizations in OAS Activities, contained in Permanent Council resolution CP/RES. 759 (1217/99), to request the Working Group to continue to receive contributions from groups in vulnerable situations and from interested civil society organizations.
To renew the mandates to the Justice Studies Center of the Americas (JSCA) and the Inter-American Commission on Human Rights (IACHR), as set forth in paragraphs 5, 7, and 8 of resolution AG/RES. 2168 (XXXVI-O/06).
To request the General Secretariat to continue to provide support to the Working Group’s activities, through the Executive Secretariat of the IACHR and the Department of International Law of the Secretariat for Legal Affairs.
To request the Permanent Council to report to the General Assembly at its forty-second regular session on the implementation of this resolution, the implementation of which shall be subject to the financial resources available in the Program-Budget of the Organization and other resources.
1. … in its communication of November 30, 2010 (CAJP/GT/RDI/INF.21/10). Canada remains concerned that a new Inter-American Convention could confuse or weaken already existing international standards, as well as overburden the Inter-American human rights system. Canada will nonetheless continue to work in practical ways with the OAS and its member states towards addressing racism and promoting tolerance and non-discrimination in the hemisphere.
2. …because of its longstanding position that the Working Group should not negotiate a new convention against racism, racial discrimination and other forms of discrimination or intolerance. The International Convention on the Elimination of All Forms of Racial Discrimination, to which some 170 countries are States Parties, including 33 members of this organization, prohibits discrimination on the basis of race, color, descent, or national or ethnic origin, and obliges States Parties to “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms.” As this robust global treaty regime already provides comprehensive protections in this area, a regional instrument is not necessary and runs the risk of creating inconsistencies with this global regime. As early as 2002, the Inter-American Juridical Committee articulated similar concerns, concluding that it was not advisable to negotiate a new convention in this area. The United States believes that the resources of the OAS and of its member states would be better utilized at identifying practical steps that governments in the Americas might adopt to combat racism, racial discrimination and other forms of discrimination and intolerance, including best practices in the form of national legislation and enhanced implementation of existing international instruments. Such efforts should be aimed at bringing immediate and real-world protection against discrimination.
3. …reiterated its complete willingness to continue working immediately, constructively, and proactively on negotiating the Draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance, in accordance with the repeated mandate of the resolutions adopted by the OAS General Assembly over the past decade and as has also been set down in several final Declarations of the Summits of the Americas, most recently in the Declaration of Port of Spain.
For Ecuador, the draft Convention that we have been negotiating for several years is of great importance, in that it represents the objective expression of the states’ willingness to make qualitative progress in combating racism and, in addition, all forms of discrimination and intolerance, since only through the integrated, comprehensive, and equal treatment of those scourges will the Hemisphere be able to truly promote qualitative progress in the fight against racism, discrimination, and intolerance and to make clear progress under the 1965 International Convention on the Elimination of all Forms of Racial Discrimination.
In Ecuador’s opinion, the fight against the scourges of discrimination and intolerance, however they are expressed, warrants the same attention, and so all forms of discrimination and intolerance must be equally repudiated, combated, and punished.
For that reason, Ecuador cannot subscribe to this resolution, which represents the dismantling of the draft Inter-American Convention against Racism and All Forms of Discrimination and Intolerance in order to address those scourges through different instruments, possibly of different hierarchical levels, which could mean granting preeminence to one form of discrimination over another, thus violating the principles of equality, interdependence, and indivisibility of human rights enshrined in international human rights law, in the Constitution of Ecuador, in the National Plan for Good Living (Sumak Kawsay), and in the other national laws of Ecuador.
Accordingly, Ecuador will closely follow the developments that take place in connection with the hierarchy and number of the legal instruments that are determined to be a part of the new negotiation process arising from this resolution.
AG/RES. 2678 (XLI-O/11)