Espacios. Vol. 37 (Nº 32) Año 2016. Pág. 21
Danielle ANNONI 1; Fernanda da Silva LIMA 2
Recibido: 15/06/16 • Aprobado: 30/06/2016
1. Introduction Assumptions
2. Placing the International Human Rights Law: the legal protection of black social groups or Afro-descendants
3 The IACHR report on the situation of Afro-descendant people in the American countries and in Brazil: analysis and future prospects
4. In conclusion: non-discrimination and affirmative action policies
The aim of this essay bring about a change of perception of the situation of inequality and racial discrimination against the black social groups or Afro-descendants, with basis on the research published by the Inter-American Commission on Human Rights in 2011 on the situation of African descendants in the Americas. Therefore, the intention of applying the data into the Brazilian reality is to demystify the idea that there is no racial discrimination in Brazil, expecting that in a not too distant future, a diverse nation, but equal, may effectively be built.
Pretende-se com este ensaio provocar uma mudança de percepção em relação a situação de desigualdade e discriminação racial sofrida pela população negra, tendo por fundamento de análise a pesquisa publicada pela Comissão Interamericana de Direitos Humanos em 2011 sobre a situação dos afrodescendentes nas Américas. Trazendo os dados para realidade brasileira, busca-se, portanto, desmistificar a ideia de que não há discriminação racial no Brasil, na expectativa de sim, num futuro não muito distante, poder-se construir efetivamente uma nação diversa, mas igual.
What is the meaning of racial discrimination in the twenty-first century in Brazil? The theme here proposed for reflection is far from giving a satisfactory answer to this question and to the provocative title. Indeed, Brazil is far from producing satisfactory answers to a problem that is as old as the existence of the Brazilian State itself.
To discuss affirmative actions is not an easy task and time has not been an ally of their supporters, though they are in possession of researches and charts showing significant changes in States that have adopted affirmative actions. Yes, affirmative actions do work. Yes, the results of their social integration and access to public services and spaces bring infinite benefits to the population served by this actions and the society as a whole. But why talk about it in Brazil? "Brazil is not a racist country," still repeat many intellectuals and academics influenced by Gilberto Freire and his book Casa Grande e Senzala.
"To talk about discrimination in Brazil is to talk about socio-economic differences, is to talk about the lack of access to public goods and rights for the poor whether they are white or black. It is not allowed to speak of racial discrimination, or endorse affirmative actions of a racial nature, because that would be considered reverse discrimination, guaranteeing privileges to the black population, when there is no prejudice in Brazil. "This is the official discourse within and outside the universities.
In this sense, what is intended with this article is to provoke a change of perception, with basis on the research published by the Inter-American Commission on Human Rights in 2011 on the situation of African descendants in the Americas. Therefore, the intention of applying the data into the Brazilian reality is to demystify the idea that there is no racial discrimination in Brazil, expecting that in a not too distant future, a diverse nation, but equal, may effectively be built.
The nineteenth century was responsible for the spread of racial determinist theories in which a black colored human being was perceived to be inferior in relation to other social groups, particularly in relation to white social groups. In Brazil, for example, the “whitening project” was implemented by investing in the immigration, even before the end of slavery. The change of the political regime in 1889 did not bring any changes to the black population of the country. To the black people it was left only the social marginalization under the constant supervision of the State that created legal mechanisms to exercise greater social control over the poor, and consequently for the black social groups representing the most impoverished social class in the socioeconomic hierarchy of society.
It was only after the Second World War, with the dismantling of the political projects based on racial concepts "[...] that the international academic community made an effort to discredit the concept of race as the sole criterion of definition and explanation of human differences." (HOFBAUER, 2006, p. 219) And in that context, it was essential to cut the tension between the universality of rights and the pluralism - be it cultural, of gender and class, as diversity generating agents.
Jelin (2006, p.161) points out that
According to some theorists, the challenge in that time was entering an era of cultural pluralism to scientifically demonstrate the falsity of the white race’s claims of superiority, and discover the complexity of 'primitive' cultures. The recognition of pluralism turned out to be an antidote to the recurrence of massive crimes, genocide, and cultural annihilation committed based on ideologies and interests that implicitly or explicitly denied victims the status of 'human beings with rights'. The ideology of universal human rights would thus be to protect victims both real and potential.
In the 1940s the UNESCO Foundation joined in a campaign against the so-called "racial hatred" and funded several surveys in order to prevent the emergence of authoritarian regimes embodied in racial segregation relations.
In the same decade, the Universal Declaration of Human Rights of 1948 was signed, which grants every human the condition to be born free and equal in dignity and rights, and should act with one another in a spirit of brotherhood (Article I), which all human beings are entitled to all the rights and freedoms set in the Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status (Article II, 1).
The 1948 Declaration gives the right to equality with the purpose to ensure everyone equal protection of their rights, free of any form of discrimination and against any incitement to discrimination, including discrimination on ethnic and racial conditions (Article VII).
It is noticed that the Universal Declaration of 1948 is the basis for other documents, including those that are part of a special system of protection, defined by subject matter and by the specification of the protected agent, such as the International Convention on the Elimination of All Forms of Racial Discrimination adopted by the UN General Assembly in 1965, which aims to protect, among other groups, black people or African descendants.
For the purposes of the 1965 Convention, in Article I racial discrimination is:
1. [...] any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives, for which they were taken, have been achieved.
Therefore, an international concern was found to regulate within the global system a convention to raise basic principles as the dignity and equality (material) inherent to every human being. According to the Convention all States Parties undertake jointly or separately to act on behalf of non-discrimination and to promote universal respect for human rights regardless of race, color, sex, language or religion.
It is important to observe that the idea of "race" gained a conceptual reframing. The concept of race should be understood as a social construct and that only in the social world can have full reality, as an identifying and differentiating element of the various social groups that make up the Brazilian society. (Guimarães, 2002)
For Hall (2003, p. 69), race is an unscientific category, as he comprises around his concept "[...] a social and political construction. It is the discursive category around which is organized a socio-economic system of power, exploitation and exclusion - the racism".
Like the term "race", others emerge to explain the complexity of race relations. So it is extremely important to bring the concept of racism, prejudice and racial discrimination, as they have different significance.
Racism is the expression of a negative feeling that a person may have against another, or against a group of people, always comparing the social group in which it operates. For this, there are some signs that are always observable in racist practices, such as skin color, hair type, nose shape, etc. These signals form a set of images and ideas concerning human groups in society and are able, according to the individual look of each one, of hierarchically categorize groups as inferior and superior. So racism is an attitude that, from the racist look adopts a position contrary to certain social groups due to its physical aspects taking into comparison the pattern of their own social group. (GOMES, 2005)
According to Gomes (2005, p. 53) "prejudice is a negative and prior trial of members of a racial group of belonging, to an ethnic group or one religion or people occupying another significant social role." Such prior judgment has as central feature, as the author points out, its inflexibility, in other words, the formed prejudiced opinion is something virtually undisputed, without previous analysis of the facts. The person who has racial prejudice realizes in a/or various social groups, characteristics that he disapproves because he has as a parameter or standard the features of the social group in which he is settled.
On the other hand, racial discrimination is the manifestation of these prejudiced and racist attitudes. When the action or manifestation of those thoughts come "[...] to harm someone it is said that there was discrimination. Anyway, when the racist or prejudiced externalizes his or her attitude, now converted into manifestation, discrimination occurs". (SANTOS, 2001, p. 110)
Likewise, Santos (2001, p. 108-110) indicates that racism and racial prejudice only are designed in the symbolic imaginary of people, while racial discrimination is the projection and social practices of that manifestation full of prejudice or racism. Thus racial discrimination happens when prejudice and racism are designed in conducts that may harm a person or groups of people, taking into consideration their physical and cultural attributes.
Studies of Jaccoud and Begin (2002) indicate a racial discrimination classification. According to the authors there is a split in direct and indirect discrimination. The first is related to concrete acts that lead a person to be discriminated because of their color, either through gestures, actions or even verbally. Though the indirect discrimination, which is more difficult to be perceived, is not caused by a specific person or a group of people explicitly, but it is materialized in actions directly related to administrative activities, business or instilled in the public policies that, apparently neutral, have high discriminatory content.
The 1965’s International Convention on the Elimination of All Forms of Racial Discrimination recognizes that there is no hierarchy between the different social groups (races), as well as it recognizes as false all racial doctrines based on racial superiority and inferiority. There is, therefore, no justification for the practice of racial discrimination and it also fights the racial segregation and the apartheid regime.
Article II of the Convention requires States Parties to set up specific measures, especially in the field of public policies to combat racial discrimination and that these actions should materialize without delay in order to achieve equity and social justice. It reaffirms the need to create specific policies in the social, economic, cultural fields and other marginalized groups or minorities with the purpose of providing equal terms, as the other groups, according to the provision of Article II.
Article II. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.
So if the universal social policies fail to effectively reach the community, and even if these policies put ethnic and racial minorities in disadvantaged or simply do not reach them, it is essential to create specific policies to these marginalized and socially excluded groups. These actions have been known as affirmative actions or positive discrimination. It is worth pointing out that once achieved racial equality, measures of affirmative actions should cease because they are emergency policies and not permanent.
In Brazil, the International Convention on the Elimination of All Forms of Racial Discrimination was ratified and promulgated as part of the domestic legal system through Decree No. 65.810 of December 8th of 1969. However, affirmative action policies for black social groups only began to be implemented late in the early twenty-first century, although the legislation is of the second half of last century.
It should be stressed that the validity of the International Convention on the Elimination of All Forms of Racial Discrimination is not limited to its ratification by Brazil, but it is received in the current legal system, for the very Federal Constitution of 1988 states in its Article 5, § 2 that the rights that are "expressed in the Constitution do not exclude others deriving from the regime and the principles adopted by it, or from the international treaties to which the Federative Republic of Brazil is a party." (BRAZIL, 1988)
It is therefore, from the enactment of the Federal Constitution of 1988, that Brazil assumes more rigorously the respect and the protection of human rights, in attention to the fundamental principle of human dignity and to a number of fundamental rights enshrined in the Constitution for this purpose, being immediately enforceable in the domestic legal system plan. (CANÇADO TRINDADE, 1997, p. 407-408)
The San Jose Convention of Costa Rica addresses the issue involving the right to equality (art. 24) and to the non-racial discrimination (art. 1). It is noteworthy that the 1969 Convention reinforces what has already been established under other international protection documents in the global system and regional systems.
Important to describe that Article 24 of the OAS 1969’s Convention is emphatic to make understand the principle of equality as follows: "All persons are equal before the law. Therefore they are entitled without any discrimination to equal protection of the law."
The article 9 of the Inter-American Democratic Charter claims that:
The elimination of all forms of discrimination, especially gender, ethnic and race discrimination, as well as diverse forms of intolerance, the promotion and protection of human rights of indigenous peoples and migrants, and respect for ethnic, cultural and religious diversity in the Americas contribute to strengthening democracy and citizen participation.
The article II of the American Declaration of the Rights and Duties of Man declares: "All persons are equal before the law and have the rights and duties in this Declaration, without distinction of race, sex, language, creed or any other."
To understand the principle of equality it is essential to achieve the postulate of "formal equality" and "substantive equality". The first is implicit in the mere formal legality, typical of liberalism, which recognizes the equality applicable to all, without any form of discrimination. The second is reachable only from the perception to who/or for which groups this equality is given, because in many situations in which can be observed a real inequality between groups and people, to give equality means to provide these groups or people, unequal treatment, or even positive discrimination policies. (BENINCÁ, 2010)
In that sense, to interpret the article 24 of the OAS 1969’s Convention only in its formal aspect, for cases where there is real material inequality, is to promote and maintain the status quo of groups and people living in marginalized or socially unequal positions. In unequal societies as the American one, especially in the Latin countries, the aim is to achieve material equality and not merely formal. In a multi-ethnic and multicultural society the law has the duty to protect the legal adversity and contribute to the effective resolution of existing social distortions.
According to Alexy (2008, p. 397)
[...] The general statement of equality, addressed to the legislature, can not demand that everyone is treated exactly the same way or that everyone should be equal in all respects. Furthermore, to have some content, he can not allow all and any differentiation and all and any distinction. It is necessary to question whether and how it is possible to find a middle ground between these two extremes. A starting point for this middle ground is the classic formula: The equal should be treated equally, the unequal, unevenly [...].
According to Rios (2002, p 48-49.) “[...] the equality in law, paying attention to the numerous and multifaceted differences between people and situations, aims to recognize them and give them unequal legal consideration in proportion to these distinctions.” It is because there are inequalities that there is a longing for real or material equality, once that if the general and abstract law is unable to provide the range of merely formal equality, an opportunity must be given by the States Parties of the Convention to aspire the equalization of the unequal conditions", that is, giving equality to groups and people in the exact measure of its inequalities.
The Afro-descendant groups in Brazil and other countries of Latin America still occupy unequal position in relation to other social groups and, as it turned out, one of the factors contributing significantly to this inequality is the racial discrimination process.
In this sense, Lopes (2005, p. 188-189) argues that "discrimination overestimates certain cultures, gives the ruler the idea that he is better and develops in the discriminated a sense of being undervalued. It allows the society to be considered under two distinct and divergent optics [...] "from the discriminator and the discriminated. According to Sousa (2005, p. 117) racial discrimination deeply reflects in the self-esteem of individuals who suffer it shaking his or her own identity.
For many black men and women who are in constant conflict with self-image, ranging from the real stigmatized being (black) and the socially valued being (white), the representations about themselves and their racial ethnic group tend to be undervalued, which is reflected in an also negative self-esteem. (SOUSA, 2005, p. 117)
To recognize yourself in an identity there are numerous implications and it is within the culture and history that the social identity is built. To have an identity is to presume that the individual establishes a relationship or a membership of a particular social group of reference, and that also means being well settled in the culture that he is inserted.
The individual is not born with an identity, he acquires it in the course of his life history. The black identity is therefore a social construction, historical, cultural and plural. Referring to the Brazilian context, Gomes (2005a, p. 42-44) declares that "building a positive black identity in a society that, historically, teaches black people, very early, that to be accepted one must deny himself, it is a challenge faced [...]" by black social groups. And in this context of racial discrimination Segato (2006, p. 218) says that
[...] being black means displaying the traces that remind and recall the historic defeat of the African peoples against the colonial armies and their subsequent enslavement. So that one can be black and not be directly part of this history - that is, not to be descendants of seized and enslaved ancestors - but the significant black exhibiting will be summarily read in the context of this history.
Therefore, the investment in affirmative action policies for black social groups must have full legal support, since it serves as a means to achieve substantive equality for them in society. According to Gomes (2003, p. 21) "the affirmative actions are defined as public policies (and private) aimed at the implementation of the constitutional principle of substantive equality to neutralize the effects of racial discrimination, gender, age, national origin and physique. "
The emergence of affirmative action proposals is based on a critique to the ideal of equality of rights as an effective instrument for promoting equality. The recognition that formal equality does not guarantee, to the ones that are socially disadvantaged, access to the same opportunities as those who are socially privileged has promoted an expansion of efforts not only of the legal and moral content of the idea of equality, but of their own legal possibilities of achieving them. (JACCOUD; BEGHIN, 2002, p. 45)
To invest in affirmative action policies in several areas: health, education, culture, sports, leisure, and others is fundamental that an opportunity be given to the black people to improve their living conditions. The social situation of black people is currently, in the American countries, as will be seen, is still due to the prejudice and discrimination they suffer and not just a reflection of the hierarchy of social classes.
The investment in affirmative actions permit true appreciation of the identity and culture of African descendants, as long as it allows the black people to be valued as such. Affirmative actions are essential because they act directly as an instrument in the fight against racism.
The Inter-American Commission on Human Rights (IACHR) has established that the principle of non-discrimination is one of the pillars for any democratic system, in which the human rights system is protected. The non-discrimination involves the protection of black social groups, namely the African descendants in the Americas. It is established that the black social groups have suffered and still suffer social exclusion because of their race/ethnicity. These are groups that still suffer the phenomena of racism, racial prejudice and racial discrimination, although in some States black groups constitute the majority of the population.
In December 5, 2011 the IACHR published a report entitled: "La situación de las personas afrodescendientes em las Américas", with the aim to establish a document that could recognize the difficulties of implementing human rights to black social groups in American countries. Although there is in the international and intern sphere of the States a proper legislation to ensure the right to (material) equality and non-discrimination, the living conditions of these groups inform that it still has not been possible to make the legal promises, enshrined in international instruments of the protection of human rights, be fulfilled (global and regional systems).
The IACHR affirms the need to address the ethnic-racial issue as a cross-cutting issue, having the report presented the following goals:
A lo largo del informe, la Comisión analiza las cuestiones vinculadas con la autoidentificación racial y las condiciones de vida de la población afrodescendiente. Posteriormente, y a partir del diagnóstico efectuado, la CIDH estudia la situación de discriminación estructural que padece la población afrodescendiente, en el marco de las obligaciones estatales de garantizar la igualdad y no discriminación. Adicionalmente, la Comisión examina la dinámica que se verifica entre la población afrodescendiente y la obligación de proveer garantías judiciales adecuadas, en sus dos vertientes: por un lado, los obstáculos que enfrenta la población afrodescendiente en el acceso y obtención de justicia, y por otro lado, el establecimiento de perfiles raciales y el sesgo racial en los sistemas de justicia criminal. En este informe, la Comisión Interamericana también da cuenta de las diferentes medidas que los Estados de la región han adoptado para cumplir con sus obligaciones de garantía y protección. En este sentido, se consideran los marcos legislativos en relación con la prohibición de discriminación racial y se profundiza sobre las medidas positivas y medidas de acción afirmativa implementadas por los Estados. (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011)
The IACHR has pointed out that America has a population of about 30% of African descendants, though this number may be higher because problems were found to operationalize the censuses of the States. It can be said that in general, the research institutes that are dedicated to investigate the issue of race find some challenges to overcome, particularly regarding the methodology used for data collection. There are still many dilemmas and controversies involving the classification definitions for race/ color in search tools.
The IACHR pointed out the need to include the African descendant category in the instruments of research and data collection. It reinforces the need for the research instrument to be answered through self-classification, it is the self-perception that the interviewed has of himself at the interview. “[...] es necesario que los Estados lleven adelante campañas de concientización y capacitación sobre las categorías de autoidentificación, que incentiven a la población afrodescendiente a autoidentificarse y sensibilicen a los encuestadores.” (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. IX)
The report also highlights that groups of African descendants suffer from double process of social segregation, either because they are black or because they are poor. One has to face this dichotomy between race and social class, because one is the consequence of the other and vice versa.
Jaccoud (2008, p. 60) referring to the Brazilian context, argues that poverty is associated with blackness, far from making a defense that the country's problem is caused solely by the hierarchy of social classes, the author goes further, and emphasizes that the poor do not have rights regardless of their color. But this phenomenon is determinant to legitimize the discourse that prejudice is based only on poverty, and it is not only racial. And it is in this sense that "[...] racism, prejudice and discrimination would operate integrated to an important process of poverty naturalization. At the same time poverty operates on the naturalization of racism [...]" and that naturalization of inequality is responsible for influencing the marginal retention of black people in society today.
According to Henriques (2001) the study of inequality permeates exclusively by the conceptual framework of poverty, responsible for the main economic problems and the inequality that comes from the poverty condition. And so, the author says that "[...] the research agenda and of the definition of public policies that prioritize the issue of inequality has as a necessary implication the understanding of the issue of racial inequality. To denaturalize social and economic inequality [...]" goes through, therefore, as a priority, for denaturalizing racial inequality. (2001, p. 5)
Thus, to denaturalize the racial inequality means first to recognize that the existence of racism, prejudice and racial discrimination are present in contemporary societies and are obstacle causes to real progress and an improvement in the living conditions of thousands of black people. It is from the denaturalization of racial inequalities that you can build up democratic actions to combat these inequalities and create the opportunity to build States more socially fair and egalitarian.
Another important element in the report is associated with lack of access to justice of black social groups, a factor that prevents access to the complaints mechanisms about violations of their rights - whether racial or not – domestically or internationally. The lack of access to justice for black groups perpetuates segregation and exclusion patterns. (Organization of American States, 2011, p. X)
The IACHR report is divided into five chapters. The first contains information about the activities due to the International Year of Afro-descendants, established in 2005. The second deals with the living conditions of the Afro-descendant population from issues relating to racial self-determination of the people. The third chapter diagnoses the second and examines that racial discrimination is a determinant factor for the violation condition/ denial of rights to black societies. This chapter will be preferably analyzed, because in it is discussed the responsibilities of States to ensure the right to equality and non-discrimination to black social groups. The fourth chapter includes the analysis of the measures that are taken by OAS member States to ensure to execute the rights of Afro-descendant population and the measures taken to restrain the practices of racial discrimination and racial intolerance. And so, the fifth chapter presents an analysis which is both conclusive and full of proposals that the IACHR presents to the States in fighting racial discrimination.
This study aims to analyze the social reality experienced by black groups in the American countries marked by social exclusion and marginalization because of their race, color and culture. The report is important because in addition to the descriptive and quantitative analysis that elucidates, notifies in the last three chapters, the search for effective solutions by the States, either in the legal field with the creation of an international and national law (for States) compliant the anti-racist struggle, or through public policies that should be developed in international cooperation regime, or within the States.
As mentioned before, American countries have a population of 150 million people of African descendants, which represents about 30% of the total population. The report points out that these groups are the poorest in the continent and that according to studies led by the World Bank, the race and ethnic condition of these groups are crucial to their condition of poverty and consequent social exclusion. They indicate that there is a strong relationship between race/ethnicity and the difficulty of access to vital social services such as education, health and social care. (ORGANIZATION OF AMERICAN STATES, 2011, p. 6)
According to the report the situation of life of black groups in Brazil is atrocious:
En efecto, la Comisión ha advertido que, en Brasil, el 50% de las personas afrodescendientes tienen una renta mensual menor de dos salarios mínimos, e inversamente, en los ingresos altos, mientras 16% de blancos reciben más de diez salarios mínimos, esa proporción baja entre los afrodescendientes al 6%. Adicionalmente, la CIDH ha indicado que, en Colombia, la tasa de mortalidad infantil (niñas y niños menores de un año fallecidos por cada mil nacidos vivos) de los niños y niñas afrodescendientes es aproximadamente el doble de la registrada para los niños y niñas a nivel nacional y que en cuanto a la esperanza de vida al nacer, para los hombres afrodescendientes es de 64,6 años, frente a 70,3 años para el total de la población. En el caso de las mujeres afrodescendientes es de 66,7 años, frente a 77,5 años para las mujeres a nivel nacional. (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. 7)
In data, the black population in the American States represents: 0.1% in Chile, 0.45% in Mexico, 1.9% in Costa Rica, 2.5% in Canada, 9.1% in Uruguay, 10.62% in Colombia, 13.6% in the United States, 30.2% in Guyana, and 50% in Brazil. These data were collected from the census carried out by the countries themselves and sent to the Commission. The report shows an estimated 80% to 92% of the total population of some countries where there is no systematic and reliable information about self-identification and the living conditions of African descendants.
One of the justifications for the lack of information from some countries is due to the fact that they did not include black or African descendant category in their research instruments, which makes the data processing and collecting more accurate. The IACHR pointed out that this can be answered through the idea rooted in American societies of an alleged "racial democracy".
The term "racial democracy" suggests that there are no conflicts or discrimination based on skin color, it brings the reflection that there is no racial diversity, there is no conflict, which is actually a misnomer, as the report states:
Asimismo, esta falta de información ha sido relacionada con la persistencia de la concepción de las “democracias raciales” en la región. Así, se ha sostenido que es importante identificar y solucionar el mito de la democracia racial que consiste en “la idea según la cual […] no hay racismo porque […] todas las razas y culturas se fundieron para siempre en una síntesis feliz” (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. 9)
The racial democracy appears as a subterfuge to explain the absence of prejudices of race, and the employment, often of miscegenation as a synonym for social harmony among the various ethnic groups of countries.
Linked to the Brazilian context, Chauí (2000, p. 27) states that
In the ideology of 'national identity', the black is seen as a social class, of the slaves, and from the perspective of slavery as a violent institution objectifies the black, whose consciousness is alienated and only briefly escapes from the alienation in times of great insurgencies.
The author declares that the "national identity" of the Brazilian people was basically formed by the mixture of three races - Indians, blacks and whites - and the “mixed” society knows no racial prejudice. The miscegenation served thus, as an ideological element that based the discourse of racial democracy and consequently the denial of racism concealed in social practices.
The idea of the national identity construction, based on the miscegenation of the three races, excludes the possibility of stating the diversity in the Brazilian society, since the miscegenation and more specifically the “whitening” are part of a hegemonic project control, domination and exploitation under the subaltern groups, including black groups. For Ortiz (1985, p. 43-44) "building a national mestizo identity makes even more difficult to discern between the borders of the color." He also describes that "the myth of the three races is a model in this sense, it does not only cover racial conflicts but it also allows everyone to recognize themselves as a nationals".
It should be emphasized that in the American States the absence of explicit conflicts, or even the absence of armed conflicts motivated by "racial hatred" can never be understood as the absence of racism, prejudice or discrimination, as these can materialize even as forms of contempt and exclusion.
The idea that miscegenation erases the color’s stigma presumes that the contact and intimacy between ethnic groups necessarily lead to an overcoming of such prejudice. However, if this contact occurs in an overly asymmetrically way, it can play, even in the intimacy and in its surrounding, the same structure of domination one of a group over another. Although this may cushion the social relations, that does not mean the elimination of racism, as the internalized feelings of inferiority and superiority linger. (Azevedo, 2007, p. 35)
This false cordiality covers, so to speak, a racism that still has roots in deterministic racial theories of the nineteenth century, and are verifiable, as it has been pointed out, in the marginal condition that black people occupy in Latin American societies. As shown by the IACHR report, the population of African descendants are concentrated disproportionately in the territories, living in the poorest areas, with lack, or no condition, of dignified life, with little access to essential services such as health, transport, labor and education, and more, suffering as a result a greater exposure to crime and violence. (Organization of American States, 2011, p. 17).
The IACHR's report has pointed out that the diagnosis and data collection conducted in American countries show the existence of racial discrimination and racism, providing that, though in majority or minority segments of the population, the black groups are living prone to a structural discrimination, which even exclude them at all levels of government to enjoy and exercise their human rights. (Organization of American States, 2011, p. 24)
La Comisión observa con preocupación que los principios de igualdad y no discriminación aún no se encuentran completamente garantizados para las personas afrodescendientes de las Américas. Más aún, las personas afrodescendientes se ven afectadas profundamente por la persistencia del racismo, que les impide estratégicamente el goce y ejercicio de sus derechos humanos. (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. 24)
The lack of complaints of racial discrimination in American countries does not mean absence of discriminatory processes. The socities only recently began to discuss and address the issue of race relations. The anti-racist struggle gained momentum in the American countries and in Brazil the black social movements had higher expression in the late twentieth century.
Although the struggle of social movements has strengthened the anti-racist struggle in Brazil and in other States, it is apparent that the lack of access to justice is still one of the biggest obstacles to enforce the human rights of black social groups. For the 2011 report of the IACHR, the lack of access to justice can be explained by a range of factors, among which stands out the lack of complaints from the very victims of racism. And this is sometimes explained by ignorance of the victims about their rights, distrust in state institutions or even by the fear of suffering new process of victimization and discrimination. (Organization of American States, 2011, p. 45)
The IACHR has maintained in its report that the Afro-descendant population in the American countries is more likely to be suspected, persecuted, prosecuted and convicted by the police and judicial apparatus. There is a selective and discriminatory mechanism of state agencies that fall on the black population, especially in police procedures involving the use of force, so much so that the IACHR reinforces:
[...] que constituye una obligación específica de los Estados Miembros brindar la formación y el entrenamiento permanente a los efectivos de sus cuerpos policiales para que en sus operaciones utilicen la fuerza letal estrictamente dentro de los parámetros internacionalmente aceptados. Asimismo, los Estados tienen la obligación de proporcionar a sus efectivos policiales los medios, armamento y equipo que permitan la aplicación de medidas de fuerza no letal en sus procedimientos de disuasión y represión legítima de la violencia y el delito. (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. 60)
The Inter-American Commission of Human Rights and the Inter-American Court have established that the protection of human rights of Afro-descendants groups must follow the principles of equality and non-discrimination and this implies that the States should assume the obligation to: a) not introduce in its discriminatory legal regulations or orders that have discriminatory effects on different social groups; b) delete and repeal laws and regulatory provisions of discriminatory character; c) To combat discriminatory practices, and; d) establish rules and adopt the necessary measures to recognize and ensure effective equality (material) of all persons before the law. (Organization of American States, 2011, p. 64)
Most countries, like Brazil are already adopting these goals, so much so that from the normative point of view, the Brazilian Constitution already establishes in its list of fundamental rights the principle of non-discrimination and the principle of equality of all before the law.
In this text it became evident, by the set of collected information, that the protection systems for human rights, both in global terms and in regional system within the OAS aim to protect black people against racial discrimination or any other reasons that go against their human rights because of their race/ethnicity.
The IACHR recommends as main strategy for the fight against racism and for the promotion of racial equality in American countries investing in affirmative action policies, protection of black social groups in their legislation and a greater mobilization of the States and civil society.
According to the report:
La noción de medidas de acción afirmativa se refiere a la legislación general o específica, planes, programas y cualquier otra iniciativa diseñados para asegurar el completo y equitativo goce de derechos humanos y libertades fundamentales de los grupos desaventajados383. De este modo, las medidas de acción afirmativa constituyen instrumentos legítimos para reducir las desigualdades históricas producidas por preconceptos y patrones de discriminación y exclusión. (ORGANIZAÇÃO DOS ESTADOS AMERICANOS, 2011, p. 80)
On June 5, 2013, two other international documents were made part of the inter-American system of human rights protection, they are: The Inter-American Convention against Racism, the Convention against Racial Discrimination and Intolerance Correlated Forms and the Inter-American Convention against All Forms of Discrimination and Intolerance.
International documents and domestic legislation in most American countries, including Brazil, also grant protection to black social groups when adopting the principles of "non-discrimination" and "material equality".
In Brazil, the political agenda has already defined ways to combat racial discrimination, especially in the context of public policies and from the creation of the Special Secretariat of Policies to Promote Racial Equality (SEPPIR) in 2003, which represented the leverage of a social mobilization process for the promotion of racial equality and non-discrimination.
SEPPIR has as one of its missions: "to promote equality and protect the rights of individuals and racial and ethnic groups affected by discrimination and other forms of intolerance, with emphasis on the black people." (Borges, 2005, p. 28)
It is possible to catch a glimpse in the social and political landscape of the country significant changes regarding the issue of race relations. After almost seven years since the creation of SEPPIR it appears that the program of racial equality has really entered the political agenda of the country. In the education field, the participation of black students has progressively increased in higher education through public policies of affirmative action based on the quota system and also contemplated by the federal government program called Programa Universidade Para Todos (Prouni) which in English means University For All Program.
In addition, the approval of the Law No, 10.639 from January 9, 2003 establishes the mandatory teaching of history and African-Brazilian culture in all educational establishments of the country. The proposal of the new law to reformulate school curricula is to provide the knowledge about cultural diversity and minimize, so to speak, the impact that the eurocentric culture imposes in the classrooms across the country.
For Santos (2005, P. 33), the Federal Law 10.639 / 2003 is already a huge breakthrough in the fight against racism and it is in accordance with a proposal of education for equal treatment in the school environment. However, for this law not to constitute an empty speech, the author believes that there are still many elements lacking to reach its real effectiveness, since the new law does not establish implementation goals, such as the qualification of teachers to teach the new disciplines, does not impose measures to ensure that universities in their undergraduate courses, especially of degree, educate teachers to be able to minister the syllabus. The author believes that the Law is sort of imposing this responsibility indirectly on the teachers, while not ensuring effectively courses and training for these professionals.
It has also been approved the Statute of Racial Equality from the adoption of the Law No. 12.288 from July 20th of 2010. The Statute of Racial Equality proposes to improve the quality of life of black social groups and other ethnic minorities, in addition to fighting racial discrimination and racial inequality in the country, including also the state investment in public policies of affirmative action. The Racial Equality Statute establishes in its Article 1:
Art. 1 This Law establishes the Racial Equality Statute, guaranteeing the black population equal opportunities, defense of individual, collective and diffuse ethnic rights, and combat against discrimination and other forms of ethnic intolerance.
Sole paragraph. This Statute is based on the following definitions:
I – racial or ethnic discrimination: any distinction, exclusion, restriction, or preference based on race, color, ancestry or national or ethnic origin the purpose of which is to deny or restrict the recognition, enjoyment or exercise, on an equal basis , of human rights and fundamental freedoms in political, economic, social, cultural or any other field of public or private life;
II – racial inequality: any unjustified differentiation in access to and enjoyment of goods, services and opportunities, in public and private spheres, because of race, color, ancestry, national or ethnic origin
III – sexual and racial inequality: discrimination in society that accentuates the social gap between black women and other social segments;
IV – the black population: the group of people who declare themselves to be black or colored as regards the issue of color or race employed by the Brazilian Institute of Geography and Statistics (IBGE), or who adopt an analogous self-definition;
V – public policies: actions, initiatives, and programs adopted by the State in fulfillment of its institutional attributions;
VI – affirmative action: special programs and measures adopted by the State and private initiative to correct racial inequality and to promote equal opportunities.
The Racial Equality Statute also recognizes that it is the duty of the State and society to ensure social equality among all citizens free of racial discrimination. It provides public policies that meet the requirements of this Statute by implementing affirmative action. The Statute of Racial Equality was built along the black movement. It is an instrument which aims to bring to the Brazilian society the discussion on the topic and the commitment in favor of a fairer society, with equal opportunities and free from racial discrimination. So Angels (. 2005, p 177) reaffirms that:
To treat the Brazilian cultural diversity in a geographical context, aiming, therefore, to recognize and overcome the existing discrimination here, is to have a performance on one of the structural mechanisms of social exclusion, basic component to move toward a more democratic society in which the African descendants feel and are Brazilians.
The study of race relations in Brazil from the deterministic racial theories of the late nineteenth century reveals the need to implement in the country a second abolition for black social groups, as stated by the sociologist Florestan Fernandes.
The "race" received a conceptual reframing and it only has full existence in the social world. The appreciation of the "black race" serves as instrumental in the anti-racist struggle of black people movements across the country. A centennial after the abolition of slavery in Brazil, it can be said that there is nothing to celebrate! The black population is still excluded and marginalized.
Only in recent years, the transition from the twentieth to the twenty-first, is that significant changes have appeared in the field of public policies for the black population. State and society have come together for a common goal: to promote racial equality.
Prejudice, racism, racial discrimination may not end and continue present in the social imaginary, but the strategy is that, from the investment in affirmative actions, a balance in race relations in American society can be established.
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1. PhD in Law at the Federal University of Santa Catarina (PPGD/UFSC). International Law LLD's Degree at UFSC. Professor at the Undergraduation Courses of Law and International Relations at UFSC (Federal University of Santa Catarina). Professor at the Master's and PhD's Degrees Courses of Law and International Relations at UFSC. Coordinator of UFSC's Observatory of Human Rights.
2. PhD in Law at the Federal University of Santa Catarina (PPGD/UFSC). Member of the Center for Legal and Social Studies of Children and Adolescents (NEJUSCA/UFSC). Researcher in public law, with emphasis on Constitutional Law, Human Rights and Child and Adolescent's Law. Professor at UNESC University (UNESC/SC). email: email@example.com