| International Convention on the Elimination of All Forms of Racial Discrimination | |
|---|---|
| Signed | 7 March 1966[1] |
| Location | New York[1] |
| Effective | 4 January 1969[1] |
| Condition | 27 ratifications[2] |
| Signatories | 86[1] |
| Parties | 175[1] |
| Depositary | UN Secretary-General[3] |
| Languages | Chinese, English, French, Russian and Spanish[4] |
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races.[5] Controversially, the Convention also requires its parties to outlaw hate speech and criminalize membership in racist organizations.[6]
The Convention also includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led to the development of a limited jurisprudence on the interpretation and implementation of the Convention.
The convention was adopted and opened for signature by the United Nations General Assembly on December 21, 1965,[7] and entered into force on January 4, 1969. As of October 2011, it has 86 signatories and 175 parties.[1]
The Convention is monitored by the Committee on the Elimination of Racial Discrimination (CERD).
Contents |
In December 1960, following incidents of antisemitism in several parts of the world,[8] the United Nations General Assembly adopted a resolution condemning "all manifestations and practices of racial, religious and national hatred" as violations of the United Nations Charter and Universal Declaration of Human Rights and calling on the governments of all states to "take all necessary measures to prevent all manifestations of racial, religious and national hatred".[9] The Economic and Social Council followed this up by drafting a resolution on "manifestations of racial prejudice and national and religious intolerance", calling on governments to educate the public against intolerance and rescind discriminatory laws.[10] Lack of time prevented this from being considered by the General Assembly in 1961,[11] but it was passed the next year.[10]
During the early debate on this resolution, African nations led by the Central African Republic, Chad, Dahomey, Guinea, Ivory Coast, Mali, Mauritania, and Upper Volta pushed for more concrete action on the issue, in the form of an international convention against racial discrimination.[12] Some nations preferred a declaration rather than a binding convention, while others wanted to deal with racial and religious intolerance in a single instrument.[13] The eventual compromise, forced by Arab nations' reluctance to discuss antisemitism[14] was for two resolutions, one calling for a declaration and draft convention aimed at eliminating racial discrimination,[15] the other doing the same for religious intolerance.[16]
The draft Declaration on the Elimination of All Forms of Racial Discrimination was adopted by the General Assembly on November 20, 1963.[17] The same day the General Assembly called for the Economic and Social Council and the Commission on Human Rights to make the drafting of a Convention on the subject an absolute priority.[18] The draft was completed by mid-1964,[19] but delays in the General Assembly meant that it could not be adopted that year.[14] It was finally adopted on December 21, 1965.[7]
The Convention follows the structure of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights, with a preamble and twenty-five articles, divided into three parts.[20]
Part 1 (Articles 1 – 7) commits parties to the elimination of all forms of racial discrimination and to promoting understanding among all races (Article 2). Parties are obliged to not discriminate on the basis of race, not to sponsor or defend racism, and to prohibit racial discrimination within their jurisdictions. They must also review their laws and policies to ensure that they do not discriminate on the basis of race, and commit to amending or repealing those that do. Specific areas in which discrimination must be eliminated are listed in Article 5.
The Convention imposes a specific commitment on parties to eradicate racial segregation and the crime of apartheid within their jurisdictions (Article 3). Parties are also required to criminalize the incitement of racial hatred (Article 4), to ensure judicial remedies for acts of racial discrimination (Article 6), and to engage in public education to promote understanding and tolerance (Article 7).
Part 2 (Articles 8 – 16) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the Committee on the Elimination of Racial Discrimination, and empowers it to make general recommendations to the UN General Assembly.[21] It also establishes a dispute-resolution mechanism between parties (Articles 11 – 13), and allows parties to recognise the competence of the Committee to hear complaints from individuals about violations of the rights protected by the Convention (Article 14).
Part 3 (Articles 17 – 25) governs ratification, entry into force, and amendment of the Convention.
Article 1 of the Convention defines "racial discrimination" as
Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are affirmative action policies and other measures taken to redress imbalances and promote equality.[23]
This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction between the ethnicity and race remains debatable among anthropologists.[24] The inclusion of descent specifically covers discrimination on the basis of caste and other forms of inherited status.[25]
Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy discriminates is judged by its effects.[26]
The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by self-identification.[27]
Article 2 of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms".[5] It also obliges parties to promote understanding among all races.[5] To achieve this, the Convention requires that signatories:
Parties are obliged "when the circumstances so warrant" to use affirmative action policies for specific racial groups to guarantee "the full and equal enjoyment of human rights and fundamental freedoms".[33] However, these measures must be finite, and "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".[33]
Article 5 expands upon on the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before the law regardless of "race, colour, or national or ethnic origin".[34] It further lists specific rights this equality must apply to: equal treatment by courts and tribunals,[35] security of the person and freedom from violence,[36] the civil and political rights affirmed in the ICCPR,[37] the economic, social and cultural rights affirmed in the ICESCR,[38] and the right of access to any place or service used by the general public, "such as transport hotels, restaurants, cafes, theatres and parks."[39] This list is not exhaustive, and the obligation extends to all human rights.[40]
Article 6 obliges parties to provide "effective protection and remedies" through the courts or other institutions for any act of racial discrimination.[41] This includes a right to a legal remedy and damages for injury suffered due to discrimination.[41]
Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit and eradicate" these practices in territories under their jurisdiction.[42] This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the International Criminal Court.[43]
The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.[44]
Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of racial supremacism.[6] It obliges parties, "with due regard to the principles embodied in the Universal Declaration of Human Rights", to adopt "immediate and positive measures" to eradicate these forms of incitement and discrimination.[6] Specifically, it obliges parties to criminalize hate speech, hate crimes and the financing of racist activities,[45] and to prohibit and criminalize membership in organizations that "promote and incite" racial discrimination.[46] A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on the freedoms of speech, association or assembly.[47]
The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention,[48] and has repeatedly criticized parties for failing to abide by it.[49] It regards the obligation as consistent with the freedoms of opinion and expression affirmed in the UNDHR and ICCPR[50] and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence.[51] It views the provisions as necessary to prevent organised racial violence and the "political exploitation of ethnic difference."[52]
Article 7 obliges parties to adopt "immediate and effective measures", particularly in education, to combat racial prejudice and encourage understanding and tolerance between different racial, ethnic and national groups.[53]
Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party that believes another party is not implementing the Convention may complain to the Committee on the Elimination of Racial Discrimination.[54] The Committee will pass on the complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make recommendations on the matter.[55] This procedure has never been used.[56]
Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.[57] This clause has been invoked only once, by Georgia against Russia.[58]
Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognise the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated.[59] Such parties may establish local bodies to hear complaints before they are passed on.[60] Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned joined the Optional Protocol are not permitted.[61] The Committee can request information from and make recommendations to a party.[61]
The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties.[62] As of 2010, 58 states had recognised the competence of the Committee,[1] and 54 cases have been dealt with by the Committee.[63]
A number of parties have made reservations and interpretative declarations to their application of the Convention. The Convention text forbids reservations "incompatible with the object and purpose of this Convention" or that would inhibit the operation of any body established by it.[64] A reservation is considered incompatible or inhibitive if two-thirds of parties object to it.[64]
Afghanistan, Bahrain, China, Cuba, Egypt, Equatorial Guinea, India, Indonesia, Iraq, Israel, Kuwait, Lebanon, Libya, Madagascar, Morocco, Mozambique, Nepal, Saudi Arabia, Syria, Thailand, Turkey, Vietnam, and Yemen do not consider themselves bound by Article 22. Some interpret this article as allowing disputes to be referred to the International Court of Justice only with the consent of all involved parties.[1]
Antigua and Barbuda, the Bahamas, Barbados, Guyana, Jamaica, Nepal, Papua New Guinea, Thailand and United States of America interpret the Convention as not implying any obligations beyond the limits of their existing constitutions.[1]
Austria, Belgium, France, Ireland, Italy, Japan, Malta, Monaco, Switzerland and Tonga all interpret Article 4 as not permitting or requiring measures that threaten the freedoms of speech, opinion, association, and assembly.[1] Antigua and Barbuda, the Bahamas, Barbados, Fiji, Nepal, Papua New Guinea, Thailand and United Kingdom interpret the Convention as creating an obligation to enact measures against hate speech and hate crimes only when a need arises. The United States of America does not accept any obligation to enact measures under Article 4, which it views as incompatible with freedom of expression.[1]
Monaco and Switzerland reserve the right to apply their own legal principles on the entry of foreigners into their labour markets.[1] The United Kingdom does not regard the Commonwealth Immigrants Act 1962 and Commonwealth Immigrants Act 1968 as constituting any form of racial discrimination.[1]
Tonga reserves the right not to apply the Convention to any restriction on the alienation of land held by indigenous Tongans. Fiji has significant reservations around Article 5, and reserves the right not to implement those provisions if they are incompatible with existing law on voting rights, the alienation of land by indigenous Fijians.[1]
The individual complaints mechanism has led to a limited jurisprudence on the interpretation and implementation of the Convention. So far 45 complaints have been registered with the Committee; 17 of these have been deemed inadmissible, 14 have led to a finding of no violation, and in 10 cases a party has been found to have violated the Convention. Four cases are still pending.[63]
Several cases have dealt with the treatment of Romani people in Eastern Europe. In Koptova v. Slovakia the Committee found that resolutions by several villages in Slovakia forbidding the residence of Roma were discriminatory and restricted freedom of movement and residence, and recommended the Slovak government take steps to end such practices.[65] In L.R. v. Slovakia the Committee found that the Slovak government had failed to provide an effective remedy for discrimination suffered by Roma after the cancellation of a housing project on ethnic grounds.[66] In Durmic v. Serbia and Montenegro the Committee found a systemic failure by the Serbian government to investigate and prosecute discrimination against Roma in access to public places.[67]
In several cases, notably L.K. v. Netherlands and Gelle v. Denmark, the Committee has criticized parties for their failure to adequately prosecute acts of racial discrimination or incitement. In both cases, the Committee refused to accept "any claim that the enactment of law making racial discrimination a criminal act in itself represents full compliance with the obligations of States parties under the Convention".[68] Such laws "must also be effectively implemented by the competent national tribunals and other State institutions".[69] While the Committee accepts the discretion of prosecutors on whether or not to lay charges, this discretion "should be applied in each case of alleged racial discrimination in the light of the guarantees laid down in the Convention"[70]
In The Jewish community of Oslo et al. v. Norway, the Committee found that the prohibition of hate speech was compatible with freedom of speech, and that the acquittal of a neo-Nazi leader by the Supreme Court of Norway on freedom of speech grounds was a violation of the Convention.[71]
In Hagan v. Australia, the Committee ruled that, while not originally intended to demean anyone, the name of the "E. S. 'Nigger' Brown Stand" (named in honour of 1920s rugby league player Edward Stanley Brown) at a Toowoomba sports field was racially offensive and should be removed.[72]
The impact of an international treaty can be measured in two ways: by its acceptance, and by its implementation.[73][74] On the first measure, the Convention has gained near-universal acceptance by the international community, with fewer than twenty (mostly small) states yet to become parties.[1] Most major states have also accepted the Convention's individual complaints mechanism, signaling a strong desire to be bound by the Convention's provisions.[1]
On the second measure, the Convention has had a significant impact on national legislation, with many states adopting legislation outlawing racial discrimination by the state, in the workplace, or in the provision of services such as housing and education. Such legislation may be either civil or criminal.[75] Examples of the former include the Race Relations Act 1971 (New Zealand), Racial Discrimination Act 1975 (Australia), Race Relations Act 1976 (UK), and Canadian Human Rights Act (Canada). Criminal provisions are used in Belgium, Denmark, France, Italy, Norway and Portugal.[75] Despite reservations to the Convention, most western European nations have criminalized the incitement of racial hatred.[75]
The Convention has faced persistent problems with reporting since its inception, with parties frequently failing to report fully,[76] or even at all.[77] As of 2008, twenty parties had failed to report for more than ten years, and thirty parties had failed to report for more than five.[78] One party, Sierra Leone, had failed to report since 1976, while two more – Liberia and Saint Lucia had never met their reporting requirements under the Convention.[79] The Committee has responded to this persistent failure to report by reviewing the late parties anyway – a strategy that has produced some success in gaining compliance with reporting requirements.[80] This lack of reporting is seen by some as a significant failure of the Convention.[81] However the reporting system has also been praised as providing "a permanent stimulus inducing individual States to enact anti-racist legislation or amend the existing one when necessary."[82]
The Committee on the Elimination of Racial Discrimination is a body of human rights experts tasked with monitoring the implementation of the Convention. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years. Members are elected by secret ballot of the parties, with each party allowed to nominate one of its nationals to the Committee.[83]
All parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to give effect to the Convention. The first report is due within a year of the Convention entering into effect for that state; thereafter reports are due every two years or whenever the Committee requests.[84] The Committee examines each report and addresses its concerns and recommendations to the state party in the form of "concluding observations".
The Committee typically meets every March and August in Geneva.[85]
The current (as of August 2010) membership of the Committee is:[86]
| Name | State | Term |
|---|---|---|
| Anwar Kemal (chair) | Pakistan | 2010–2014 |
| Alexei S. Avtonomov | Russian Federation | 2010–2012 |
| Noureddine Amir | Algeria | 2010–2014 |
| José Francisco Cali Tzay | Guatemala | 2010–2012 |
| Anastasia Crickley | Ireland | 2010–2014 |
| Fatimata-Binta Victoria Dah | Burkina Faso | 2010–2012 |
| Ion Diaconu | Romania | 2010–2012 |
| Régis de Gouttes | France | 2010–2014 |
| Kokou Mawuena Ika Kana (Dieudonnè) Ewomsan | Togo | 2010–2014 |
| Huang Yong An | China | 2010–2012 |
| Gün Kut | Turkey | 2010–2014 |
| Dilip Lahiri | India | 2010–2012 |
| José Augusto Lindgren Alves | Brazil | 2010–2014 |
| Pastor Elias Murillo Martinez | Colombia | 2010–2012 |
| Chris Maina Peter | Tanzania | 2010–2012 |
| Pierre-Richard Prosper | USA | 2010–2012 |
| Waliakoye Saidou | Niger | 2010–2014 |
| Patrick Thornberry | UK | 2010–2014 |