The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs
BY ATSUKO TANAKA WITH YOSHINOBU NAGAMINE
International Movement Against All Forms of Discrimination and Racism (IMADR)
Minority Rights Group International TTHE INTERNATIONAL CONVENTION ON Acknowledgements THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION: MRG and IMADR gratefully acknowledge the support of the A GUIDE FOR NGOS British Government Foreign and Commonwealth Office, the Charles Stewart Mott Foundation, the Royal Danish Ministry of © Minority Rights Group and IMADR, 2001 Foreign Affairs and all the organizations and individuals who All rights reserved. gave financial and other assistance for this publication. Material from this publication may be reproduced for teaching or other non-commercial purposes. No part may be reproduced in any IMADR and MRG are grateful to all the staff and independent form for commercial purposes without the prior express permission of expert readers who contributed to this publication, in particular the copyright holders. Geoffrey Gowlland and Ryo Onoyama (IMADR Editors), and For further information please contact MRG. Margot Salomon (MRG Programme Coordinator) and Katrina A CIP catalogue record for this publication is available from the Payne (MRG Reports Editor). British Library. ISBN 1 897693 73 7. Published January 2001. Typeset by Kavita Graphics Printed on recycled paper.
THE AUTHORS
The authors of this manual are staff of IMADR. Atsuko Tanaka, IMADR Representative to the United Nations, is the main author with assistance from Yoshinobu Nagamine, and with special cooperation of Theo van Boven, member of IMADR’s Board of Directors.
MINORITY RIGHTS GROUP INTERNATIONAL MOVEMENT AGAINST ALL FORMS INTERNATIONAL (MRG) OF DISCRIMINATION AND RACISM (IMADR)
MRG is an international non-governmental organization IMADR is an international non-profit, non-governmental working to secure rights for ethnic, religious and linguistic human rights organization devoted to eliminating all forms of minorities worldwide, and to promote cooperation between discrimination around the world. Forging international communities. solidarity among discriminated-against minorities and advancing the international regime of human rights. Founded in 1988 by MRG: one of Japan’s largest minorities, the Burakumin, IMADR has Commissions and publishes well-researched and accessible grown to be a global network of concerned citizens and Reports, Books and Papers on minority issues. minority groups with regional committees in Asia, North America, Latin America and Europe. IMADR engages in Promotes minority rights through direct advocacy in projects in the following five programme areas: elimination of international forums and in dialogue with governments. racism and racial discrimination; international protection of Builds on a global network of like-minded organizations and minority rights; empowerment of the victims of multiple minority communities to cooperate on minority rights issues. discrimination; facilitation of indigenous peoples’ development. IMADR is in consultative status with the United Nations All orders for this manual should be sent to MRG. Economic and Social Council (ECOSOC). For more information contact: For more information contact: Minority Rights Group International IMADR 379 Brixton Road 3-5-11 Roppongi, Minato-ku London Tokyo 106-0032 SW9 7DE Japan UK Tel: + 81 3 3586 7447 Tel: +44 (0)20 7978 9498 Fax: + 81 3 3586 7462 Fax: +44 (0)20 7738 6265 E-mail: [email protected] E-mail: [email protected] Website: www.imadr.org Website: www.minorityrights.org The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs
CONTENTS PAGE Glossary ….…………………………………………………………………………………………………………………...... ii Preface ……………………………………..…………………………………………….……………..……………………….... iii
PART I — ICERD and its monitoring body ...……….……...…..……………….…...…...……………………...... 1 1. History ….……….……………………………………………………….…………………………………...……………... 1 2. What is ICERD? …...…….……………………………………………………….…………………………...... 1 3. ICERD’s monitoring body: the Committee on the Elimination of Racial Discrimination (CERD) ..... 6 A. Nature of CERD ………………………………………………………………………………………...…...... 6 B. Working procedures …..………………………………………………………………………………...... … 6 a) Reporting system ………….………………………………………………………………………...... … 6 b) Inter-state complaints …….…………………….…………………………………………………...... … 8 c) Individual communications ……………………………………………….…………………………...... 8 C. Further innovative procedures ………..………………………………………..……………………….…... 8 D. Impact of ICERD on states ……………..………………………………………………………………...... 10
PART II — The contribution of NGOs to CERD’s work ...... …..……..……………….………………………. 11 1. Reporting procedure ………………………………………………………………………………………...... 11 A. Steps to be taken prior to CERD’s consideration of the state’s report …………………………. 11 B. While the report is examined ..……………………..………………………….………………………….... 15 C. After the session – follow-up ……………………………………………………………………………...... 17 2. Individual communication procedure under Article 14 of ICERD ……………………………………….... 18 A. Persuading those states parties which have not done so to accept Article 14 …...... 18 B. Submit an individual communication …..………………………………………………………………..... 18 3. Other activities NGOs may wish to consider ...…………..…………………………………………………….. 20
Annexes …..…………..………....……………...……………………………………….……………………...... …….... 21 Annexe I: UN human rights organizational structure …………..………………………………………….……… 21 Annexe II: Status of the Convention ……..………………………………………………………………………...…... 22 A. States parties to ICERD, as at 16 November 2000 …………..………………………………...…... 22 B. States parties’ reservations (or declarations) to ICERD ………..………..….…………....…………. 23 C. Individual complaints considered under the procedure governed by Article 14 of ICERD as at 11 October 2000 ………..………...…………………………………....……...... ……. 24 Annexe III: Model format for communications/complaints ……………..…………..…………...……………... 25 Annexe IV: General Recommendations adopted by CERD …………….…….………...... ….. 26 A. List of the General Recommendations ……………….…...……………………….………………...…… 26 B. Full texts of the General Recommendations …..……………………………………………...………… 26 Annexe V: Full texts of the statements adopted by CERD …………………………..…………………………… 37 Annexe VI: Text of ICERD …………….………..…………………………..………………….……...... ………... 38
Notes …………………………...…………………………...…………………………...………………...... …………... 44 Selected bibliography ……..……………………………...…………………………………………...... ……………...… 46 Finding documents and information on the internet …..…….………………………………….…………………… 47 Useful addresses …………………………………………….………………………………………………...... … 48
BY ATSUKO TANAKA WITH YOSHINOBU NAGAMINE Glossary
CERD — the Committee on the Elimination of Racial nic origin which has the purpose or effect of nullifying or Discrimination is an expert body responsible for moni- impairing the recognition, enjoyment or exercise, on an toring the implementation of the provisions of ICERD by equal footing, of human rights and fundamental free- the states parties. doms in the political, economic, social, cultural or any other field of public life (Article 1.1). It has 156 states Concluding Observations — these provide collective parties (as at September 2000). opinions and assessments of CERD on the presentation of a state party s report. The Concluding Observations NGOs — non-governmental organizations are indepen- have the format of: introduction, factors and difficulties dent, non-commercial organizations, not established by impeding the implementation of the Convention, posi- or beholden to government or inter-governmental bodies. tive aspects, principal subjects of concern, and sugges- Their mandates can be international or domestic, and tions and recommendations. their aims and activities can cover a range of public inter- est areas (e.g. human rights, environmental protection). Early-warning measures — these were introduced to NGOs aim to bring about positive change in their areas CERD s regular agenda in 1994. They aim to prevent of focus. existing problems from escalating into conflicts and can include confidence-building measures to identify and NGOs in consultative status with the Economic and support whatever strengthens and reinforces racial toler- Social Council (ECOSOC) — benefits of consultative ance, particularly to prevent a resumption of any previ- status include: easy access to information resources ous conflicts. throughout the UN and participation in various UN bod- ies, as well as major inter-governmental conferences. An GA — the General Assembly is the United Nations increasing number of NGOs contribute to the work of the (UN) s main deliberative organ which is composed of UN by providing useful information and expertise, and representatives of all member states, each of which has by offering input into the drafting of new international one vote. CERD reports annually, through the Secretary- standards. General, to the GA on its activities, as well as on the sug- gestions (Concluding Observations) and General Rec- Review procedure — this was introduced to CERD s reg- ommendations it adopts based on the examination of the ular agenda in 1991 in order to review the implementa- reports and information received from the states parties. tion of the Convention in cases where a state s report is significantly overdue, by using the previous state s General Recommendations — these are produced by reports and taking other relevant information into CERD to provide interpretation on the content of ICERD account. articles, and can be issued on thematic topics. Although they are not legally binding, General Recommendations States parties — states which have ratified or acceeded to carry considerable weight and are meant to guide state a Convention parties as to their obligations under the Convention.
ICERD — the International Convention on the Elimina- Urgent procedures — these were introduced to CERD s tion of All Forms of Racial Discrimination is one of the regular agenda in 1994, and respond to problems requir- six major human rights treaties adopted by the UN, and ing immediate attention to prevent or limit the scale or the first to have established a monitoring mechanism. number of serious violations of the Convention. Under ICERD is the most comprehensive international legal those procedures, CERD examines a situation without instrument addressing racial discrimination, which is any periodic report from the state party concerned. defined as any distinction, exclusion, restriction or pref- erence based on race, colour, descent, or national or eth-
II ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS Preface
n 1998 the UN celebrated the 50th anniversary of MRG s work focuses on principles of participation and the adoption of the Universal Declaration of ownership of the proceedings of the World Conference IHuman Rights. That anniversary provided an his- against Racism by disadvantaged minority communi- toric and opportune moment to relaunch worldwide ties, and on long-term sustainable work towards the campaigning efforts for the fulfilment of the objectives implementation of the provisions of ICERD — especial- of the UN s Third Decade to Combat Racism and ly as they relate to exclusion, including economic Racial Discrimination (1993—2003) and of the revised exclusion, and marginalization of minorities and Programme of Action for the Decade. indigenous peoples. MRG aims to develop a pro- gramme of action towards greater visibility and effec- In this regard, the UN General Assembly decided at its tiveness of international and national mechanisms for 52nd session in 1997 to convene the third World Con- the implementation of ICERD. ference Against Racism, Racial Discrimination, Xeno- phobia and Related Intolerance no later than the year It is in order to pursue these goals — and in the frame- 2001. work of increasing cooperation between IMADR, MRG and other NGOs — that the need has been identified to Among the many national and international organiza- develop tools for activists, for access to and use of tions to take such opportunities for renewed action, international and national standards and mechanisms have been the International Movement Against All for the protection of rights. This manual aims to explain Forms of Discrimination and Racism (IMADR), an and analyse the work of the UN Committee on the international NGO committed to the fight against racial Elimination of Racial Discrimination (CERD), and aid discrimination and racism, and Minority Rights Group NGOs and other activists who want to campaign and International (MRG), an international NGO working advocate around issues of discrimination. for the promotion and protection of the rights of minorities and cooperation between communities. Some NGOs may doubt the usefulness of a manual that encourages the use of UN bodies as an instrument. In November 1998, IMADR, recognizing the impor- They may have been disillusioned by lengthy process- tance of interaction between the international level and es, and the apparent absence of any impact on the situ- local realities, launched the International Campaign for ation of the people they are concerned with, and thus the Elimination of Racism and Racial Discrimination prefer to avoid the complexities of the UN mechanisms. 2001 (ICR 2001) for the effective implementation of the programme of action and the successful convening The involvement of CERD is certainly not the only way of the World Conference Against Racism. to change patterns of discrimination; it has the poten- tial, however, to be instrumental in influencing govern- In the framework of the ICR 2001, IMADR is attempt- ments policies and practices. The Committee is also an ing to establish a forum where NGOs, especially important means to build up international awareness national NGOs, can share their experience and acquire and pressure, and to draw attention to problems that further knowledge of instruments in the struggle groups and individuals are facing. Knowledge of the against discrimination, in particular the 1965 Interna- Convention and the work of the Committee can be a tional Convention on the Elimination of All Forms of powerful tool for NGOs in their advocacy and cam- Racial Discrimination (ICERD). paigning activities.
Since 1998, MRG has devised and initiated the imple- The purpose of this manual is twofold: first, we attempt mentation of a programme of action around the World to explain, while striving to avoid legal jargon, what the Conference and its preparatory events, which aims to main provisions of the Convention are, and throw light gain visibility and promote action on issues related to on the working procedure of CERD; second, we sug- discrimination, exclusion and disadvantage suffered by gest what roles NGOs can play, including in the work minorities worldwide. of CERD, and how NGOs can use the Convention as an
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS III PREFACE
effective tool for the fight against discrimination and racism.
Official UN documents and opinions of experts of the Committee relating to the work of NGOs will be men- tioned throughout the manual. The experience of NGOs with CERD will be also illustrated in the form of case studies.
Given the diversity of NGOs worldwide, this manual cannot provide comprehensive guidance on all possible measures and avenues which may be open to all NGOs. Each NGO has its own policies, mandates, styles and resources; the social and political environments in which NGOs act differ greatly. Suggestions and recom- mendations put forward in this manual are meant to be a starting point for further considerations and action; it will be up to the individual NGOs to develop these fur- ther and to elaborate their own strategies.
IMADR and MRG hope that this manual will be of use to all who struggle against discrimination and racism in any part of the world.
International Movement Against All Forms of Discrimination and Racism Minority Rights Group International November 2000
IV ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS Part 1— ICERD and its monitoring body
1. History Today, however, we perceive a renaissance of ICERD, and it may gain much more importance in the future: dis- or many years, the struggle against racial discrim- crimination is strongly intertwined with issues such as ination was closely linked with anti-colonialism. economic marginalization, financial crises, immigration, FIn the struggle for political independence, peoples refugee flows, trafficking of people, etc. Human rights under colonial domination accused the colonial powers violations in a country may easily become a serious con- of practising racial discrimination. cern for others; a massive flow of refugees, for example, can be the consequence of a government s discriminato- The term racial discrimination was mainly associated ry policy against a particular ethnic group or of ethnic with white people s discrimination against black people. cleansing . In such cases, other states might have a legit- This explains why the word race is still used in con- imate interest in drawing the attention of the internation- nection with skin colour, although we may consider its al community to that state s poor human rights record. use obsolete or scientifically incorrect. Here, CERD may act as an important warning system.
In the 1950s, 1960s and 1970s, with countries in the The involvement of a good number of NGOs in the fight South becoming members of the UN, the UN developed against discrimination may also contribute to a more significant political and legal norms through several effective implementation of ICERD. As will be dis- instruments such as the Declaration on the Granting of cussed later, NGOs can persuade governments to comply Independence to Colonial Countries and Peoples (1960) more closely with ICERD s standards and/or publicize and the Declaration on the Elimination of All Forms of the work of CERD. Racial Discrimination (1963). However, we have to recall that the rationale of the majority behind the adop- 2. What is ICERD? tion of these declarations was to put an end to discrimi- natory practices in other states and the idea that discrim- CERD is considered to be the only international legal ination could also exist on the domestic scene was Iinstrument specifically addressing comprehensive ignored. issues of racial discrimination. It established an expert body of 18 independent experts responsible for monitor- With the introduction of apartheid as an institutionalized ing the implementation of the Convention s provisions. policy and practice in Southern Africa, its almost unani- One of the important aspects of ICERD is its coverage of mous condemnation by states led to an important leap rights not only of individuals but also of collectives, as forward in the fight against discrimination. This was the indicated, for example, in Article 2 (a): each State Party belief that the racist practices of one state can be a legit- undertakes to engage in no act or practice of racial dis- imate concern of others, thus curtailing the principle of crimination against persons, groups of persons or institu- national sovereignty . It is in this historical context that tions [...] (italics added). This is particularly significant the International Convention on the Elimination of All for minority groups and indigenous peoples whose col- Forms of Racial Discrimination (ICERD) was adopted in lective rights are often subject to discrimination.1 1965 by the General Assembly (GA) with its clear refer- ence to apartheid in Article 3. Upon ratification of or accession to ICERD, each state party assumes an obligation to submit reports periodically In the case of an official racist regime such as apartheid, to CERD, or upon CERD s request, on the measures it has it was easy to reach consensus among states to condemn taken to implement the Convention. (Details on the state it. This enabled the latter to provide the UN with an reporting procedures are provided later in this manual.) important instrument to combat discrimination within states. However, in the 1970s and 1980s, states were no In order to assist states parties in the implementation of longer eager to rely on ICERD as they did not want to their obligations under the Convention, CERD produces expose themselves to criticism from other states, NGOs a series of suggestions and general recommendations or even their own citizens. (known as General Recommendations ), provided for in
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 1 ICERD AND ITS MONITORING BODY
Article 9.2 of ICERD and based on the examination of discrimination as defined in ICERD covers a wide range states parties reports. General Recommendations are of deeply-rooted discriminations, including those against usually made when the Committee is unable to find suf- various minority groups and indigenous peoples. For ficient information on ICERD s specific articles which is example, although India maintains the position that useful to the Committee in establishing the facts of a ICERD is not applicable to caste discrimination but report and in summarizing their views. These General only to discrimination based on race , the Committee Recommendations enable states parties and the Commit- has adopted the opinion that the term descent in Article tee to have a better understanding of the types of issues 1.1 does not solely refer to race and that the Scheduled and problems encountered by states when trying to trans- Castes fall within the ambit of the Convention.3 late the legal formulations contained in ICERD into practice. General Recommendations may also help The Committee points out in its General Recommenda- NGOs to comprehend the meaning and implication of tion XXIV (55) that some States Parties decide at their various provisions of the Convention. However, they are own discretion which groups constitute ethnic groups or not legally binding on states parties. In addition to Gen- indigenous peoples that are to be recognized and treated eral Recommendations, General Guidelines Regarding as such . However, the Committee is of the view that: the Forms and Contents of Reports to be Submitted by States Parties under Article 9, para. 1, of ICERD, adopt- the application of different and non-objective crite- ed by CERD, serve the purpose of effectively imple- ria in order to determine ethnic groups or indigenous menting the requirements of the Convention. peoples, leading to the recognition of some and refusal to recognize others, may give rise to differing The Convention is divided into two parts: the first, head- treatment for various groups within a country s pop- ed by a preamble, sets forth the states parties legal oblig- ulation . ations; and the second describes the composition of the Committee which monitors the implementation of the It is CERD s opinion that identification of individuals as Convention by the states parties, and its methods. In the being members of a particular racial or ethnic group following section, the first part (Articles 1—7) is summa- shall, if no justification exists to the contrary, be based rized, with comments and other background information, upon self-identification by the individuals concerned.4 In on the basis of General Recommendations adopted by this connection, the Committee considers the ethnic CERD.2 The second part will be dealt with in Part I, sec- characteristics of the population to be of particular tion 3 of this manual, which discusses the evolution and importance in examining states reports, and thus innovations of CERD s methods. The full texts of all the requests states parties to provide information on peoples General Recommendations as well as of ICERD are pro- first languages as indicative of ethnic differences, togeth- vided among the Annexes to this manual. er with any information about race, colour, descent, national and ethnic origins, resulting from social surveys Article 1 —The definition of racial discrimination or censuses.5 The inclusion of information on the situa- tion of women is also considered important for the Com- Article 1, para. 1, defines the concept of racial discrim- mittee in order to examine whether racial discrimination ination as: impacts differently upon women and men.6
any distinction, exclusion, restriction or preference ICERD Articles 1.2 and 1.3, respectively, allow a state based on race, colour, descent, or national or ethnic party to make distinctions, exclusions, restrictions or origin which has the purpose or effect of nullifying or preferences between citizens and non-citizens, and to impairing the recognition, enjoyment or exercise, on interpret the Convention as not affecting laws on citi- an equal footing, of human rights and fundamental zenship, nationality or naturalization provided that they freedoms in the political, economic, social, cultural do not discriminate against any particular nationality. or any other field of public life (emphasis added). However, CERD takes the position that the Convention is generally applicable to discrimination against immi- ICERD s definition is noteworthy particularly in terms grants or foreigners as well. This interpretation has been of its non-discrimination grounds which go far beyond developed as a consequence of the practice in many the context of colonialism and white domination which countries, notably European, in which the criteria of dis- was the original concern of the Convention, and include, tinction between citizens and non-citizens appears to in addition to race and colour , such other grounds as follow ethnic patterns and are inherently discriminatory descent and national or ethnic origin . Hence racial in their effect. Accordingly, in a General Recommenda-
2 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS ICERD AND ITS MONITORING BODY tion, the Committee requests that states parties report Article 2 —The obligation to eliminate fully on legislation on foreigners and its implementa- discrimination and promote understanding tion.7 The Committee is also of the view that the Con- vention must not be interpreted as reducing the rights Under Article 2.1, states parties have the obligation not and freedoms for everyone recognized in other instru- only to ensure that all public authorities and public insti- ments, especially the Universal Declaration of Human tutions, national and local, do not engage in any practice Rights, the International Covenant on Economic, Social of racial discrimination, but also to take effective mea- and Cultural Rights and the International Covenant on sures to review governmental, national and local policies Civil and Political Rights (ICCPR). This affirmation is and to amend, rescind or nullify any laws or regulations also in line with the GA s resolution 40/144 of 13 which in effect create or maintain racial discrimination. December 1985, which recognizes that the protection of Moreover, they are obliged to prohibit and bring to an end human rights should also be ensured for non-citizens. racial discrimination by any individuals or organizations. The exception of Article 1.2 rather applies to positions They should also encourage inclusive multi-racial organi- and situations where the distinction between citizens zations. and non-citizens is functional, such as in case of granti- ng certain political rights and access to certain public In terms of its Article 2.1, therefore, the Convention offices. makes it clear that the prohibition of racial discrimination applies not only to the public sector, but also to individu- It should be noted that the Convention covers acts als and groups or organizations in, for example, matters whose results might unintentionally lead to discrimina- of education and training, employment, health services, tion, as reflected in Article 1.1 which refers to purpose housing and participation in cultural activities. It is often or effect of nullifying or impairing (italics added). An noted, however, that many states have not yet taken suffi- example is Switzerland s recently abolished three-cir- cient action to prohibit discrimination in these fields. cle immigration policy, which classified foreigners on the basis of their national origin. The Government Further, in Article 2.2, the Convention again addresses argued, when the initial report of Switzerland was con- special [...] measures which should be taken in the sidered by CERD in March 1998, that its immigration social, economic, cultural and other fields, when the cir- policy was in no way intended to be racially discrimi- cumstances so warrant , to ensure the adequate develop- natory.8 However, the Committee considered the con- ment and protection of certain disadvantaged racial cept and effect of this policy to be stigmatizing and dis- groups or individuals belonging to them. criminatory, and contrary to the principles and the pro- visions of the Convention.9 CERD reaffirmed this point Under Article 2, it is important that states parties report in its General Recommendation XIV (42) when it stated in detail on existing policies and practices, the functions that a distinction is contrary to the Convention if it has of public institutions and authorities, and relevant laws either the purpose or the effect of impairing particular and the scope of the legislation in force. Equally impor- rights and freedoms . tant is the description of any special programmes adopt- ed and projects initiated in the reporting states, and how Moreover, in view of achieving not only de jure racial they affect the goal of achieving racial equality among equality but also de facto equality, Article 1.4 of the Con- all segments of the population. vention allows for special measures such as affirma- tive action (or positive discrimination) for the benefit of Recognizing that: racially or ethnically disadvantaged groups or individu- als. They are considered legitimate on the condition that: the fulfillment of these obligations very much depends on national law enforcement officials who such measures do not lead to the maintenance of exercise police powers, especially the powers of separate rights for different groups and that they detention or arrest, and upon whether they are shall cease after the objectives for which they were properly informed about the obligations of the Con- taken have been achieved . vention ,
An action is judged contrary to the Convention, howev- the Committee emphasizes in one of its General Recom- er, when it has an unjustifiable disparate impact upon a mendations the importance of intensive training for law group distinguished by race, colour, descent, or national enforcement officials to ensure that they respect as well or ethnic origin 10 (see also Article 2.2 of ICERD). as protect human dignity.11
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 3 ICERD AND ITS MONITORING BODY
Article 3 — Racial segregation and apartheid Committee expresses the opinion that the prohibition of the dissemination of all ideas based upon racial superior- Article 3, which refers to apartheid, may initially have ity or hatred is compatible with the right to freedom of been directed exclusively at Southern Africa. However, opinion and expression, given the saving clause that the the Committee makes it clear that this Article prohibits obligations of Article 4 should be fulfilled with due all forms of racial segregation in all countries, with or regard to the principles embodied in the Universal Dec- without any initiative or direct involvement by the pub- laration of Human Rights (Article 19) and the rights lic authorities.12 expressly set forth in Article 5 of this Convention (first sentence of Article 4), which is to be understood as a ref- The Committee observes that: erence to freedom of expression and freedom of associa- tion. Further, the Committee draws the attention of states while conditions of complete or partial racial segre- Parties to Article 20 of the International Covenant on gation may in some countries have been created by Civil and Political Rights, which requires states to pro- governmental policies, a condition of partial segre- hibit by law any advocacy of national, racial or religious gation may also arise as an unintended by-product of hatred that constitutes incitement to discrimination, hos- the actions of private persons. In many cities resi- tility or violence. Nevertheless, a number of countries, dential patterns are influenced by group differences mainly from the West, made interpretative declarations in income, which are sometimes combined with dif- upon ratification of the Convention emphasizing the ferences of race, colour, descent and national or eth- with due regard clause. Such a declaration is used by a nic origin, so that inhabitants can be stigmatized and state to communicate its view and interpretation of this individuals suffer a form of discrimination in which clause. This is to be distinguished from a reservation in racial grounds are mixed with other grounds .13 international law with which a state, when signing or rat-
Article 4 —Racist propaganda, organizations Relevant case — conviction of Jersild, a Danish journalist15 and activities This case illustrates the tensions that exist between the pro- visions of Article 4 and the right to freedom of expression. The Committee emphasized repeatedly, and notably in Jersild, a Danish journalist, was held criminally liable by General Recommendations, the paramount importance the Danish courts under Article 266 (b) of the Penal of Article 4, which contains provisions that are of a Code,16 which had been introduced in Denmark to imple- mandatory character.14 According to this Article and rel- ment Article 4 of ICERD, in conjunction with Article 23 of evant General Recommendations, states parties have the Penal Code.17 In a television programme, the journalist obligations to adopt legislation to penalize the following had interviewed three members of a racist group, ‘the acts: (i) dissemination of ideas based upon racial superi- Greenjackets’, and was accused of aiding and abetting them by allowing and even encouraging highly offensive ority or hatred; (ii) incitement to racial discrimination; and racist statements against foreigners and black people. (iii) acts of violence against any race or group of persons The Danish courts held that the journalist’s actions resulted of another colour or ethnic origin; (iv) incitement to such in the publication of racist statements made by a small num- acts, and (v) provision of any assistance, including finan- ber of people. Freedom of expression was not, in the opin- cial, to racist activities. Furthermore, organizations, as ion of the courts, a justifiable ground for acquittal in light of well as their activities and propaganda, which promote, the interest in protecting against racial discrimination. foster or incite racial discrimination, must be declared In the examination of Denmark’s report in 1990, several illegal and be prohibited. Belonging to such organiza- members of CERD claimed to be highly satisfied with the tions as well as participating in such activities is in itself results of the case, stating that it was ‘the clearest state- also a criminal offence. Article 4 (c) underlines the oblig- ment yet, in any country, that the right to protection against ations binding the public authorities at all administrative racial discrimination took precedence over the right to levels, including the municipal level. freedom of expression’.18 Jersild brought the case to the European Court of Human Full compliance with Article 4 is particularly complicat- Rights, which decided that the journalist’s right to freedom ed in many countries, where governments may consider of expression guaranteed under Article 10 of the Euro- this provision to unduly restrict freedom of expression pean Convention for the Protection of Human Rights and and freedom of association. However, the Committee Fundamental Freedoms had been violated. The Court also holds that the rights to freedom of opinion, expression stated that Denmark’s obligations under this European and association, are not absolute, but subject to certain Convention had to be reconciled with its obligations under limitations. In its General Recommendation XV (42), the ICERD.19
4 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS ICERD AND ITS MONITORING BODY ifying an international convention or treaty, withholds Article 6 —Judicial recourse and compensation assent to one or more of its provisions. Too often victims of human rights violations are Technological developments relating to the mass media, ignored and their claims for reparation and redress are especially the internet, constitute a new challenge in rela- not taken seriously. Upon ratification of or accession to tion to the states parties implementation of Article 4. ICERD, states parties undertake to provide effective States parties should ensure that media agencies, both protection and remedies against acts of racial discrimi- public and private, which bear responsibility, should nation through the competent national tribunals and observe and enforce the relevant standards. Among the other States institutions . All persons under the juris- means to deal with this new issue is a suggested code of diction of the state party, nationals as well as non- conduct for internet users and service providers.20 nationals, have the right to seek and receive from such tribunals just and adequate reparation or satisfaction Article 5 — Equality in the enjoyment of rights for material and moral damages suffered as a result of such discrimination. Under Article 5 of the Convention, states parties must guarantee: It should also be underlined that the phase national tri- bunals and other states institutions allows states parties that all groups and individuals — regardless of race, a certain degree of flexibility in terms of the measures to colour or national or ethnic origin — can equally enjoy be taken for implementation of this Article. The range of the right to equal treatment before the tribunals and all these measures includes mechanisms of conciliation or other bodies concerned with the administration of jus- mediation, establishment of administrative organs for tice; investigation, action of a competent ministry or the the right to security of person and protection against Attorney-General, or the ombudsperson, according to the violence or bodily harm, whether inflicted by govern- state s specific legal and administrative system. Sanc- ment officials or by any private individual or group; tions may also vary in degree; including conciliatory a whole series of political and civil rights; meetings of the parties concerned, verbal or written rep- an important list of economic, social and cultural rimands, or the imposition of fines or prison penalties. rights; and quite significantly the right of access to any place In accordance with the general guidelines for reporting or service intended for use by the general public, under ICERD, under Article 6 the Committee seeks from including those privately owned, such as transport, states parties, inter alia, information on any existing hotels, restaurants, caf s, theatres and parks. court cases with regard to this Article, and on the prac- tice of other state organs in implementing this provision. The states parties are expected to report about the non- discriminatory implementation of each of these rights Article 7 — Education and information and freedoms. With a view to combating racial prejudice and to pro- According to CERD s General Recommendation XX moting friendship, tolerance and understanding among (48), the Convention obliges states parties to prohibit and nations and ethnic groups, states parties affirm under eliminate racial discrimination in the enjoyment of the Article 7 of the Convention that they shall take immedi- human rights listed in Article 5, on the assumption that ate and effective action in the fields of culture, education, these rights exist and are recognized in the countries con- information and teaching. cerned. In other words, this Article does not of itself pro- claim and protect civil, political, economic, social or cul- Education referred to in this Article is not limited to tural rights. school education but also includes training, most impor- tantly of teachers and other professionals such as law The Committee also acknowledges that states may enforcement officials. The Committee s General Recom- impose restrictions upon rights listed in this Article such mendation XIII (42) calls upon states parties: as the right to participate in elections, to vote and to stand for election, which may only be given to citizens. to review and improve the training of law enforce- In such cases however, states must ensure that the restric- ment officials so that the standards of the Convention tion is compatible with Article 1 of the Convention, both as well as the Code of Conduct for Law Enforcement in purpose and effect. Officials (1979) are fully implemented .
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 5 ICERD AND ITS MONITORING BODY
In its General Recommendation XVII (42), the Com- (Article 8.1). At present, CERD includes a high number mittee also recommends that states parties set up nation- of diplomats or former diplomats among its members al institutions to serve the following purposes, among compared to other treaty bodies. This can be attributed others: a) to promote respect for human rights and the to the perception by many states in earlier years that exercise thereof, free from any discrimination, as ICERD was a foreign policy instrument rather than a expressly stated in Article 5 of ICERD; b) to examine document with domestic implications. While this per- official policies towards the protection against racial ception has changed, the practice of nominating and discrimination; c) to monitor laws so that they comply electing foreign policy experts to CERD has persisted. with the provisions of ICERD; d) to educate the public as to the obligations which the states parties assume Under the Convention, the Committee shall establish its under ICERD. own rules of procedure and receive no directives from outside (Article 10). Indeed, CERD is an autonomous Furthermore, CERD pays close attention to questions body, which is a common feature of all the treaty bodies such as whether states parties inform public opinion except the CESCR. Nevertheless, strong organizational about human rights in general, and ICERD and CERD links with the UN exist: in particular, and whether ICERD has been translated into and published in the local languages.21 CERD was established under a Convention drafted by the UN Sub-Commission on Prevention of Discrimi- Generally, the Committee finds that states do not pay nation and Protection of Minorities (in 1999 the Sub- sufficient attention to the implementation of Article 7 Commission was renamed the Sub-Commission on and considers the information submitted under Article 7 the Promotion and Protection of Human Rights), and as general and perfunctory . adopted — through the Commission on Human Rights and the Economic and Social Council — by the GA. 3. ICERD’s monitoring body: the Committee on the Elimination of The meetings of the Committee are, at present, held Racial Discrimination (CERD) twice a year (March and August) for three to four weeks23 at the United Nations Office in Geneva. Fur- rom the very beginning it was clear that the Con- ther, the Committee is serviced by the Secretariat of Fvention would only be effective if there was an inde- the United Nations (Office of the High Commission- pendent body for monitoring the implementation of the er for Human Rights). states obligations as indicated by ICERD. To this end, CERD was established; this set a precedent: five main Also significantly, CERD annually reports on its UN human rights treaty bodies with comparable consti- activities to the GA through the Secretary-General tutions and functions were later created, namely, the (Article 9.2). Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women B. Working procedures (CEDAW), the Committee against Torture (CAT), the Committee on Economic, Social and Cultural Rights CERD periodically reviews the legal, judicial, adminis- (CESCR)22 and the Committee on the Rights of the trative and other steps taken by individual states parties Child (CRC). under ICERD to fulfil their obligations to combat racial discrimination. The Convention provides a number of A. Nature of CERD instruments to evaluate the states efforts and the overall situation. Its current mandate does not, however, include CERD is composed of 18 experts of high moral stand- the possibility of CERD members investigating the situ- ing and acknowledged impartiality , who serve in a ation by means of a field visit, although the Committee personal capacity (Article 8.1 of ICERD). The members may send one or more of its members at the invitation of are elected for a term of four years at a meeting of states the country concerned for purposes of a close dialogue parties (Articles 8.4 and 5a), and elections take place for on the spot.24 half of the members at two-year intervals (Article 8.5a). In the election of the Committee members, considera- a) Reporting system (Article 9)25 tion has to be given to equitable geographical distribu- tion and to the representation of the different forms of Under Article 9 of ICERD, and following a decision civilization as well as of the principal legal system taken by the Committee at its 38th session in 1990,26 each
6 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS ICERD AND ITS MONITORING BODY state party is obliged to submit: (a) an initial report in the preparation of the concluding observations. within one year after the entry into force of the Conven- Meanwhile, the other members of the Committee tion for the state concerned, to provide comprehensive remain free to provide their own input. There is no information on existing legislative, judicial, administra- pre-sessional working group at CERD, like that estab- tive or other measures which give effect to the provisions lished by some of the other treaty bodies to draw up of ICERD; (b) thereafter, further comprehensive lists of issues on the states parties whose reports are reports every four years that are expected to contain any due for consideration at the following sessions of new developments that took place after the submission respective committees. Nevertheless, a Country Rap- of the previous report, information that CERD specifi- porteur may — albeit rarely — prepare a list of issues in cally requested, and answers to questions that were not advance for circulation to the reporting state as well fully dealt with from its previous reports; and brief as to the other members of the Committee. updating reports in the intervening two-year periods, to literally briefly update the information contained in the The use of other sources of information. It is taken comprehensive report; and (c) special reports whenever for granted that the report officially submitted by a the Committee so requests, which are, for example, sub- state party is the main and principal source of infor- mitted by states parties whose situations are being con- mation, but for a long time it remained highly contro- sidered by CERD in accordance with early warning mea- versial as to whether members of the Committee sures and urgent procedures. could also rely on other sources of information. It became gradually accepted that other UN materials, According to the Manual on Human Rights Reporting,27 such as reports of Special Rapporteurs of the UN the Committee expects that the initial and comprehen- Commission on Human Rights and reports and com- sive reports will include information on: i) states parties ments of specialized agencies, could be taken into compliance with the obligation assumed under Article 1 account. In more recent years, information from of the Convention, ii) the ethnic characteristics of the regional institutions such as the European Commis- country and iii) the text of the relevant laws, judicial sion against Racism and Intolerance (ECRI) and also decisions and regulations which relate to Articles 1 to 7 from NGOs have been taken into account and often of the Convention. explicitly referred to in the discussions, although some members of the Committee continue to show The Committee s obligation under Article 9.2 to report reservations regarding this practice. annually to the GA on its examination of the reports it receives is the centrepiece of its work. Article 9, howev- The drawing up of Concluding Observations. While er, is very broadly phrased and therefore provides the in the past, individual members would express some Committee with room to introduce innovations in its personal opinions and assessments at the concluding application. Thus, at a very early stage of CERD s exis- stage of the examination of a state party s report, the tence it was decided that the examination of states parties Committee as a collective body refrained from doing reports would be carried out in the presence of the states so. This has changed; the Country Rapporteur, with parties so as to facilitate a constructive dialogue. This led the assistance of the Secretariat, prepares a first draft to states parties sending a delegation of government offi- of Concluding Observations, which consist of a cials to CERD s meetings when their report is scheduled review of positive developments, issues of concern, for examination. The basic document that is the subject of and concrete suggestions and recommendations. The the Committee s examination is the state report. first draft is informally circulated among the members for their comments. The Country Rapporteur later Following the end of the Cold War, procedural innova- submits a second draft, which is discussed and tions were introduced to the examination of the reports amended in formal (public) meetings, and finally of states parties: adopted by the Committee for transmission to the state party concerned, to become a public document The designation of Country Rapporteurs — as a and to be included in the annual report of the Com- result of informal consultations, members of the mittee. A state party may submit its comments on the Committee take it upon themselves to prepare the concluding observations for inclusion in the Commit- examination of a states party s report through its close tee s annual report to the GA (Article 9.2 of ICERD). and detailed study on the basis of relevant and credi- The Concluding Observations are an important moni- ble information. The Country Rapporteur plays a toring device and an effective tool for follow-up leading role in both the examination of the report and work.
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 7 ICERD AND ITS MONITORING BODY
With regard to the content of states reports, the Commit- a violation of the Convention directly to CERD, provided tee has noted some misconceptions on the part of states that the state(s) concerned has (have) made a declaration parties: to recognize CERD s competence under Article 14. It came into operation in 1982 when the 10th of such decla- Some states parties perceive that, since their govern- rations was made by a state party. The individual or group ments believe that racial discrimination does not exist must have exhausted all local remedies. (Further details within their territories, they are not obliged to submit of the process, and advice on how to file a complaint, can periodic reports. The Committee is of the opinion that be found in Part II, section 2 of this manual.) discrimination is a phenomenon that is actually or potentially prevalent in all countries, and thus all the The Convention further provides in its Article 14.2 that states parties have an obligation to be vigilant, and to any state party which makes a declaration as provided for report on the measures taken to prevent or to combat in para. 1 of the same Article may establish or indicate a racial discrimination. national body competent to receive petitions from indi- viduals or groups of individuals who claim to be victims Some states reports give the impression that if the of violations of any of the rights set forth in ICERD, and Convention has become part of the legal order of the who have exhausted other locally available remedies. country, no further legislative action is necessary. Only if petitioners fail to obtain satisfaction from the body However, the Convention not only requires that legis- indicated may they bring the matter to the Committee s lation prohibits certain acts, but also calls for action in attention. Luxembourg and South Africa are as yet (as at the judiciary and administration, as well as in the 1 January 2000) the only states parties to have designated fields of culture, education and information. Similar- a standing committee in accordance with Article 14.2. ly, a state party does not fulfil its obligations under the Convention simply by condemning racial discrimina- With regard to the individual communications procedures tion in the Constitution of the country.28 within the UN human rights mechanisms, Article 14 of ICERD and the practice of the Committee present some In certain cases reports fail to include the text of anti- special features, which may distinguish this procedure discrimination laws, and relevant case law and prac- from similar procedures under other human rights instru- tice. ments. For example, Article 14 allows not only individu- als claiming to be victims of a violation but also groups To assist states parties in their preparation of reports, of individuals to file communications. Moreover, the CERD has provided them with general guidelines.29 communication is not prevented from being considered while under another procedure of international investiga- b) Inter-state complaints (Articles 11—13) tion; and the Committee makes suggestions and recom- mendations rather than merely expressing views . All the states parties to the Convention recognize the com- petence of CERD to receive and act on a complaint by one This procedure should not, however, be confused with of them that another is not giving effect to the provisions the jurisdiction of a court. A judgment of a court is legal- of the Convention (Article 11.1). However, no state party ly binding but suggestions and recommendations of the has yet resorted to this procedure, which provides — unless Committee do not carry the same legal weight. Never- the matter is settled in another way — for the appointment theless, these suggestions and recommendations are of an ad hoc conciliation commission (Article 12). States generally considered as authoritative pronouncements are extremely reluctant to use this procedure because it is of a competent quasi-judicial body and raise the expec- complicated and time-consuming. If states wish to raise tation that they are being respected and complied with cases of alleged violations or shortcomings in other states, by the states parties concerned. In this connection, it is they prefer to use the political fora of the UN, such as the important that the media and the general public become Commission on Human Rights or the GA. To date, no aware of cases brought to, and the opinions expressed state has ever used the inter-state procedures under any of by, the Committee. the UN human rights treaties. C. Further innovative procedures c) Individual communications (Article 14) Technically, the Committee has been facing a constant This procedure for communications allows individuals or problem that disrupts its work and makes it difficult to groups of individuals to submit their claims as victims of carry out its mandate: that is the failure of quite a few
8 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS ICERD AND ITS MONITORING BODY
Relevant case – L.K. v. The Netherlands states parties to submit periodic reports — or their delay. The following is the summary of communication no. Various reasons are cited, such as the lack of personnel 4/1991 (L.K. v. The Netherlands) —one of the cases sub- competent in human rights reporting, and the burden of mitted in accordance with Article 14, the opinion adopted work in meeting international reporting obligations by the Committee, and the follow-up action taken by the under an increasing number of human rights instruments. state party: L.K., a Moroccan citizen residing in Utrecht, the Nether- In order to cope with this problem, the Committee lands, wished to visit a house for which a lease had been decided at its 39th session in 1991 that it would review offered to him and his family, but a group of people had the implementation of the Convention in cases where a gathered in front of the house, shouting, ‘no more foreign- state report is significantly overdue, even in the absence ers’, and some of them threatened to set fire to the house of an up-to-date report, by using the previous state if L.K. moved in. A petition was then signed by 28 residents reports as a basis and taking into account other relevant saying that the house could not be offered to L.K. information (this is known as a review procedure ). L.K. filed a complaint claiming he had been a victim of This measure provides the Committee with a more racial discrimination. Most of the signatories of the petition effective control of the reporting process, since it does were questioned, but a few months later, the prosecutor at not simply have to rely on the state to review the imple- the District Court of Utrecht informed L.K. that the matter mentation of the Convention. A letter is sent to a state had not been registered as a criminal case with his office party whose report is overdue by five years, informing because it was not certain if a criminal offence had taken it that the review will take place, and later the exact date place. is communicated; state representatives are invited to L.K.’s counsel then turned to the Appeal Court of Amster- attend the meeting. This is intended to encourage dia- dam asking for an order that a prosecution be filed logue between the state party and the Committee against the signatories of the petition. This request was despite the absence of a report, to ensure a minimum refused on public interest grounds, holding that the petition level of review of all the states parties. In a good num- was neither a document of deliberately insulting nature, nor inciting racial discrimination. ber of instances this procedure prompted states parties to expedite the submission of overdue reports and L.K. filed a complaint to CERD, on the grounds, among oth- enabled the Committee to resume the dialogue with ers, that the remarks and statements of the residents were these states. racially discriminatory in nature, that the police did not act expeditiously and effectively in the investigation of the case, and that the Court of Appeal had prolonged the pro- Another innovative procedure was introduced at the ceedings and had relied on incomplete evidence. 45th session of the Committee in 1994, when it decided that preventive measures should be part of its regular CERD at its 42nd session in March 1993 decided that the agenda. Those measures include early-warning mea- acts of the residents were discriminatory, that the investi- sures and urgent procedures . Annual reports of the gation by the police and prosecution was incomplete, and that when threats inciting racial violence are made, espe- Committee provide the following explanations about cially in public and by a group of people, it is incumbent these preventive measures: upon the state to investigate with diligence and expedien- cy. Furthermore, the police and prosecution did not offer Early-warning measures are to be directed at pre- effective protection and remedies within the meaning of venting existing problems from escalating into con- Article 6 of the Convention. flicts and can also include confidence-building mea- CERD thus recommended that the state party review its sures to identify and support whatever strengthens policy and procedure concerning acts of racial violence, and reinforces racial tolerance, particularly to pre- and that it provide the applicant with relief commensurate vent a resumption of a previous conflict. Criteria for with the moral damage he had suffered. early-warning measures could, for example, include In its 13th periodic report to the Committee,30 the Nether- the following situations: lack of an adequate legisla- lands Government provided extensive information on new, tive basis for defining and prohibiting all forms of stricter anti-discrimination guidelines for the police and the racial discrimination, as provided for in the Con- public prosecutions department, adding that, in issuing vention; inadequate implementation or enforcement these new guidelines, it had also complied with the rele- mechanisms, including the lack of recourse proce- vant recommendations of the Committee in the L.K. case. dures; presence of pattern of escalating racial Moreover, the Government stated that, in consultation with hatred and violence, or racist propaganda or the applicant’s counsel and the applicant, it had provided appeals to racial intolerance by persons, groups or reasonable compensation.31 organizations, notably by elected or other officials;
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 9 ICERD AND ITS MONITORING BODY
a significant pattern of racial discrimination evi- sion on the Promotion and Protection of Human Rights denced in social and economic indicators; and sig- and the Commission on Human Rights Special Rappor- nificant flows of refugees or displaced persons teur on Contemporary Forms of Racism. The Commit- resulting from a pattern of racial or encroachment tee has also received and taken due account of detailed on the lands of minority communities. information, as well as first-hand accounts and insight from NGOs, in particular the groups concerned, i.e. Urgent procedures are to respond to problems Roma organizations, by holding an informal meeting requiring immediate attention to prevent or limit the using its official meeting time and inviting their written scale or number of serious violations of the Conven- submissions. tion. Criteria for initiating an urgent procedure could include, for example, the presence of a seri- While the thematic discussion was an innovation in ous, massive or persistent pattern of racial discrim- CERD s work, it was not innovative in the UN treaty ination; or a situation that is serious where there is monitoring mechanisms as a whole. Several other treaty a risk of further racial discrimination. monitoring bodies had already held thematic sessions for a number of years, and successfully developed meth- Under these procedures the Committee examines a situ- ods of involving NGOs in meaningful ways in those the- ation without any periodic report from the state party matic discussions. concerned. With the success of its initial thematic session on dis- In the past CERD considered the cases of the conflicts crimination against Roma, it is expected that the CERD in the former Yugoslavia and in the Great Lakes Region practice of holding thematic sessions will also be insti- in Africa. A number of other urgent situations were tutionalized in the future and that it will become an taken up under the urgent procedures, including Aus- effective part of the work undertaken by the Committee. tralia s amendment of its Native Title Act that was con- sidered to be racially discriminatory against indigenous D. Impact of ICERD on states peoples in Australia. Since the entry into force of ICERD, changes in various NB: The early-warning measures and urgent proce- countries have been attributed to the positive impact of dures may only be implemented by members of CERD. the Convention. These include: NGOs seeking to have such measures implemented may do so by contacting a CERD member and requesting amendments to national constitutions to include pro- him or her to do so. Follow-up by an NGO to any action visions prohibiting racial discrimination; taken is also to be done through a CERD member or systematic reviewing of existing laws and regulations members. leading to the amendment of those which tend to per- petuate racial discrimination, or the passing of new The most recent significant development in the work of laws to satisfy the requirements of the Convention; CERD was in August 2000, when CERD organized a making incitement to acts of racial discrimination two-day discussion on a thematic issue — discrimination and racial violence a punishable offence; against Roma — which was the first of its kind in the legal guarantees and enforcement procedures against Committee s 30-year-long history. This initial thematic discrimination relating to the security of persons, discussion of CERD was a landmark in many ways. political rights, employment, housing, education, or First, it led to the production of a General Recommen- access to areas and facilities intended for use by the dation32 outlining a number of measures that govern- general public; ments of relevant states parties to ICERD should take to educational programmes aimed at promoting good improve the situation of the Roma. In this respect atten- relations and tolerance between racial and ethnic tion should be drawn to the fact that production of a groups; General Recommendation usually begins with the sub- creation of institutions and agencies to deal with mission of a draft by a member, and that it is not a result problems of racial discrimination and to protect the of a discussion. Second, in view of maximizing its interests of indigenous groups; and, access to the existing research, information and experi- governments seeking technical assistance from the ence, CERD has invited to the thematic discussion UN in such matters as anti-discrimination legislation regional institutions as well as other UN bodies and and remedies to victims. agencies, in particular experts from the Sub-Commis-
10 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS Part 2 — The contribution of NGOs to CERD’s work
ithin the Economic and Social Council NGO, that the information is submitted in the most effec- (ECOSOC) and its subsidiary organs such as tive manner. As practice has shown, a simple submission Wthe Commission on Human Rights, NGOs of random cases or articles to the Committee does not can obtain consultative status which means that they can normally have a great impact. It may also happen that the become an integral part of the working procedure of abundance of information can be a problem. A well- those bodies.33 However, most of the UN treaty bodies, developed strategy is necessary. CERD included, are not UN organs in the formal sense. Despite having strong links with the UN, which provides The best option is to produce a supplementary report — them with Secretariat services, they have been created by also called shadow , counter or alternative report. the treaties themselves and the rules on consultative sta- There are two ways of approaching such a report; the tus do not apply to them. Consequently, no formal rela- first is to draw up a comprehensive report that considers tionship exists between CERD and NGOs. each point of the state report and offers supplementary or contradicting information. This requires a lot of time and While this relationship is informal, the importance of resources, but it seems to be the most effective way to NGOs contributions has been acknowledged by CERD. provide information and has a high probability of getting Increasingly, members of CERD make public use of the Committee s attention. The second approach, for information they have received or gathered from non- those NGOs which are not capable of bringing together governmental sources in their consideration of the states the necessary resources, and/or whose activities are lim- reports. Although the flow of information that reaches ited in certain fields or areas, would be to target specific members is not systematically collected, channeled or issues of concern — such as those affecting particular analysed, the Anti-Racism Information Service (ARIS)34 groups, or specific fields such as education, employment — an NGO based in Geneva — has undertaken the task of or working conditions. connecting human rights groups with members of CERD and of assisting the latter in their search for relevant Concerning the production of a report, we have collect- information. What members of CERD need is a more ed some useful advice by consulting CERD members complete picture of the situation than is provided in the and by soliciting the experience of other NGOs. official report of a state party. In other words, NGOs should look into questions such as: are there any gaps in A. Steps to be taken prior to CERD’s the official report; are there misrepresentations; are the consideration of the state report assumptions, the analyses and the emphases correct? When is a state report due? — As explained earlier in Besides providing the Committee with information, this manual, an initial report is due one year after the NGOs, especially those active at a national level, can also Convention s entry into force for the state party con- disseminate information on ICERD or its reporting cerned, and periodic reports are due every two years process among their members and the general public in a afterwards. Information as to when a state report is or country. NGOs can take up issues that are of particular was due may be obtained from the government con- importance to them and appraise specific comments made cerned. Alternatively, NGOs can contact the CERD Sec- by the Committee members on matters regarding a state s retariat, or consult the Treaty Body Database on the web- compliance (or non-compliance) with ICERD. Where a site of the Office of the High Commissioner for Human government may be slow in implementing recommended Rights (www.unhchr.ch). changes in its law, policy and practice, NGOs can be of service to the public in influencing such changes. Has the report been already sent? — Contact the gov- ernment authority that is in charge of preparing an offi- 1. Reporting procedure cial report to CERD (very often the Ministry of Foreign Affairs) to find out whether the state report has already hen an NGO provides information to CERD, it is been sent or when the government plans to submit it to Wimportant, in the interest of the Committee and the the Committee. If the report is still being prepared,
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 11 THE CONTRIBUTION OF NGOS TO CERD’S WORK
NGOs might negotiate with the appropriate authority to When the report has reached the Committee, after edit- become involved in the drafting process. Some govern- ing and translation into the official languages by the UN ments may be willing and even keen to consult national Secretariat, the country concerned will be put on the list NGOs in order to avoid being criticized for an incom- of pending reports. At the session immediately follow- plete state report. In other states, any contacts with the ing the reception of the report, the Committee will nor- government may be impossible. Whatever the outcome mally decide which countries on the list will be exam- of any such consultations with the government, NGOs ined at the next session and who will be assigned as are well advised to keep their independence. Country Rapporteurs. (If the Committee receives the report during a session, such a decision may be taken at Illustration — The Finnish League for Human Rights the same session.)
The Finnish League for Human Rights (FLHR) has been In view of the workload of the Committee, a report will involved in the preparatory process of Finland’s state normally be examined two or three sessions after it is put reports for all the UN human rights treaty bodies, includ- on the waiting list. However, the Committee usually ing CERD. While it is not suggested that the Finnish prac- tice should be a model, it is a good example of success- gives priority to initial reports, reports submitted after ful cooperation between a government and NGOs. long delays and reports from countries where there are According to Mr Martin Scheinin, former chairperson of important developments.36 It is advisable for NGOs to the FLHR and currently a member of the UN Human establish a schedule for the production of a supplemen- Rights Committee:35 tary report or other relevant information, once the dates of the examination of the report are fixed. ‘Although NGOs find reason to criticize the existence of human rights problems in Finland, there is a relatively well functioning dialogue between the government and NGOs can make contacts with civil society actors, including NGOs. One dimension of this dialogue is the existence of a government-appoint- ... the Country Rapporteur — It is highly recommended ed Advisory Board for International Human Rights that NGOs which plan to provide information to CERD Affairs that discusses Finland’s reports to the various contact the Country Rapporteur for the country con- treaty bodies at a draft stage. More than half of the cerned. The name of the Country Rapporteur can be members of the Advisory Board have been proposed obtained from the CERD Secretariat, in addition to their by NGOs or are independent academic experts. In contact information, if an expert has consented to make these discussions, NGOs may influence the final version it available to the public. Otherwise, communicate with of the report. the Country Rapporteur via the Secretariat. In recent years, this method of NGO involvement has been supplemented or even replaced with the practice NGOs may indicate to the Country Rapporteur their of arranging a public hearing at a rather early stage of intention to submit a supplementary report and/or ask for drafting a government report. In these hearings, a advice about the content and format of the report, and broader range of NGOs than those represented in the about when and where it should be sent. In some cases, Advisory Board may present their opinions about what inviting the Country Rapporteur to the country con- problems should be raised in the government report. [...] cerned to attend a briefing of national NGOs can be con- It is the responsibility of the government to write and sub- sidered, especially if the latter cannot be in Geneva dur- mit the report. Although many NGOs do not want to ing the consideration of the state report. Some former participate in the actual writing of the report they do Country Rapporteurs have told us about the usefulness of wish to present their criticism to those government offi- such briefings. cials that compile the reports.’ ... other NGOs — It may often be more effective to pro- If the report has already been produced, a copy is gener- duce a supplementary report in collaboration with other ally available from the government. If NGOs have diffi- NGOs. By doing so, NGOs can avoid duplicating their culties in obtaining it, CERD s Secretariat can indicate work and use their knowledge, materials and resources in the document number for a copy to be ordered from the an effective way. Moreover, members of CERD are less documentation desk at the UN Office in Geneva (see likely to read all of the NGO reports if they receive too Useful addresses at the back of this manual). Docu- many. Separate reports dealing with the same issues may ments of this kind are also available on the website of the even confuse experts in comprehending actual situations. UN Office of the High Commissioner for Human Rights Such an approach can take two forms: NGOs can either (www.unhchr.ch). produce a joint report under the name of a coalition, or
12 ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS THE CONTRIBUTION OF NGOS TO CERD’S WORK they can coordinate their work for the preparation of ... the media — The media can be a valuable partner in individual reports. It may sometimes be difficult to informing the public about the consideration of the establish a coalition, especially because NGOs might report. In cases where there is a correspondent or a local have diverse and sometimes conflicting positions, or branch of the national media of the country concerned in may prefer to have their own positions clearly presented Geneva or nearby, contacts may be established with both rather than having to consider certain concessions. But the headquarters in the country and the correspondent — despite these inconveniences, we believe there is much if possible in person. In cases where no such branch to be gained from such an approach because of the exists, it is still worth trying to encourage the national greater impact the report will have on CERD members. media to send a reporter to Geneva. Approaching inter- national media that follow UN events is another way to Also, since NGOs with an established international rep- enhance NGOs advocacy work in connection with utation have often been recognized for the credibility of CERD s consideration of a state report. In order that the the information they provide to various UN bodies, some issues of particular concern and/or significance can be form of affiliation with such NGOs may enhance the sta- covered properly, NGOs might consider briefing people tus and credibility of domestic NGOs. responsible for the media about those issues, the scope and content of the Convention, and the procedures of the International NGOs experienced in the work of CERD, Committee. such as ARIS, can also be of great help to national NGOs for such purposes as access to the UN; lobbying and How to write a supplementary report37 identifying Committee members who might be interest- ed in the issues of their concern; collecting documents; Structure: and, in the absence of the NGOs representatives in Geneva, handing out the supplementary report directly to Front page: An important purpose of a report is to members of the Committee. attract the attention of the Committee members. The front page should give essential information regard- Mundo Afro, a Uruguayan NGO which submitted a sup- ing the country, and the name of the organization that plementary report to CERD in August 1999, for the first has prepared the report. time, informed us of their positive experience with inter- national NGOs: they had received assistance from Table of contents: Again for the purpose of attracting IMADR and ARIS in preparing their report as to its for- the attention of Committee members, a detailed table mat, language and argumentation; in contacting the of contents should be included, not only to give Com- Country Rapporteur for Uruguay; in sending two of their mittee members a clear idea about the content of the representatives to Geneva who circulated copies of the report, but also to enable them to refer directly to the supplementary report among members of CERD; and in particular points they are interested in. organizing an informal briefing session. Introduction: We have to assume that Committee ... the government — It may be useful if domestic NGOs members will encounter names of NGOs which they not only discuss the preparation of the report with the may not know and the introduction should therefore government concerned, but also let the government s contain a short description of the mandate and nature delegation know what questions NGOs will recommend of the NGOs. The introduction should also contain a members of the Committee to ask during the considera- summary of the main points. tion of the report. It often happens that the delegation may not have the data or the competent staff available and that the answers will be deferred to the next time a Illustration — The preface of the report of the Swiss report of the country will be examined (i.e. two years NGO Forum Against Racism starts with: later at the earliest); such delays can be prevented by pro- ‘The “Forum against Racism” is a coalition and network of viding the government with advance information. more than eighty anti-racism organisations and numerous individual members in the whole of Switzerland. It was ... parliamentarians — This may be especially useful in founded in the autumn of 1991 after a series of attacks states where the government is very sensitive to concerns against accommodations of asylum seekers. The forum raised by the legislature, and indirect lobbying through wants to promote the exchange of information between its parliamentarians may be considered. members and the public and try to exercise its influence at the national and the international level.’ 38
ICERD: A GUIDE FOR NON-GOVERNMENTAL ORGANIZATIONS 13 THE CONTRIBUTION OF NGOS TO CERD’S WORK