Excerpted From: John Herlyn Antón Sánchez, Latin American International Law and Afro-Descendant Peoples, 116 AJIL Unbound 334 (2022) (17 Footnotes) (Full Document)


JohnHerlynAntónSánchezAfter the Third World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, held by the United Nations in Durban, South Africa, in 2001, an important movement emerged. The African diaspora communities in the Americas, or “Afro-descendants,” as they prefer to self-identify, began to seek legal recognition in the context of international human rights law, and especially within the inter-American human rights system. Progress has been remarkable, including the rulings of the Inter-American Court of Human Rights, changes in the constitutional and legal systems of Latin American countries, and a UN draft of a Declaration of the Rights of People of African Descent, as part of the International Decade for People of African Descent (2015-2024). However, conceptual, technical, and doctrinal issues still exist in defining the legal agency of people of African descent under international law. Who are Afro-descendants in legal terms, and how do we understand “Afro-descendance” within the context of Indigenous and tribal peoples? In this essay, I explain how different regional bodies in Latin America have interpreted Indigenous rights progressively to overcome the marginalization of Afro-descendants, and address some important questions that remain unclear despite this welcome evolution.

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However, reaching an international declaration of the rights of (tribal) peoples of African descent will require overcoming arguments opposing it, especially those that limit the interpretation of collective rights only to ethnic Indigenous groups. The definition of “peoples” for Afro-descendants in Latin America and the Caribbean proposed here invites consideration of the fact that Afro-descendants are in a situation of exclusion and vulnerability and should enjoy the protection of international law. Such recognition implies an evolution in the doctrines of public international law and a consolidation of the New Latin American Constitutionalism. Perhaps we would witness the birth of new rights, related to restorative justice for those enslaved subjects, which, in the framework of racialized states, were denied equal rights. Such victims of injustice were not compensated or redressed. With the recognition of Afro-descendants as peoples, what comes into play is the recognition of the rights to autonomy and self-determination and reparations for slavery. It also increases attention to dignify the life of Afro-descendants. This scenario of course challenges liberal models of racialized democracy and privileged whiteness, which translates into a more inclusive and intercultural democracy. Nevertheless, Afro-descendants have characteristics that, under international law, are (or should be treated as) like those of Indigenous peoples. Yet, the differences are relevant enough to recognize their distinct protections.

Instituto de Altos Estudios Nacionales, Universidad Intercultural Amawtay Wasi, Quito, Ecuador.