Horizontal Rule

The Committee on the Elimination of Racial Discrimination: Trends and Developments

10 May 2003

The Committee on the Elimination of Racial Discrimination: Trends and Developments1

Theo van Boven2

Background

The Committee on the Elimination of Racial Discrimination (CERD) is a treaty body composed of eighteen independent experts and established by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) with the task to supervise and monitor the implementation of the Convention by the States Parties. The Committee performs its supervisory role primarily on the basis of a close examination of periodic reports submitted by the States Parties to the Convention, also taking into account information received from other sources, including non-governmental organisations.

The International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the United Nations General Assembly on 21 December 1965 and the Convention entered into force on 4 January 1969. The Convention is the most comprehensive international legal instrument combatting racism and racially discriminatory practices. It requires far-reaching policy measures aimed at eliminating racial discrimination and practices in the political, economic, social and cultural sphere, outlawing hate speech and racist organisations, providing redress and reparation to victims of racial discrimination, and encouraging the development of education programmes to combat prejudices which lead to racial discrimination. The CERD has now gained more than thirty years of experience as a treaty supervisory body and the Convention is ratified by 165 States (as of December 9, 2002). The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban (August 31 - September 8, 2001) reaffirmed the importance of the international legal framework as embodied in the International Convention and monitored by the CERD. The Conference urged States to give due consideration to the observations and recommendations of the CERD and, to that effect, States should consider setting up appropriate national monitoring and evaluation mechanisms to ensure that all necessary steps are taken to follow these observations and recommendations3

This paper will first address several themes and issues of an historical, contextual and socio-political nature which have had and still have an impact on the modus operandi of the CERD. Among these themes and issues is the perception that racism and racial discrimination are practised elsewhere by others. Linked with this perception are the notions of denial and acknowledgement. Further, attention will be paid to the diminishing role of the State in these days of increasing privatisation and reliance on the market economy. Thereafter, a number of other aspects will be addressed, in particular, related to the text of the Convention, its scope and its legal interpretation. Further, the CERD's thematic involvement in discrimination against Roma and discrimination based on descent will be highlighted. Moreover, also in relation to the Convention, the question of redress and reparation to victims and the coexistence of global and European standards and systems to combat racial discrimination will be discussed.

The "Elsewhere/Others" Perception

There is a tendency in many societies to regard problems of racism and racial discrimination - and more generally problems of human rights - as evils prevailing in other societies - as problems occurring elsewhere. When the Convention was drawn up, this attitude was predominant in the minds of diplomats and politicians. Racism and racial discrimination were seen in the context of white colonial rule and as inherent in patterns of white domination, in particular embodied in the policies and practices of apartheid in South Africa. Indeed, it is undeniable that a close link existed between colonial rule, apartheid, racism and racial discrimination. From that perspective it was evident that countries and peoples embraced the Convention as a solidarity mechanism of a legal nature in the struggle against colonial rule and apartheid. The preamble of the Convention and Article 3 condemning apartheid and segregation bear in their terminology the mark of this struggle. In fact, the struggle against racism and racial discrimination was considered a foreign policy interest, at least in the perception of the majority of the members of the United Nations. In this connection, it is telling that foreign policy and diplomatic experience have always been strongly present among the persons nominated and elected as expert members of the CERD. Particularly in the early years, governmental influence over certain members of the Committee, notably those who were nationals of communist States, was strong and visible.4

Today the situation is different. The CERD has repeatedly made it clear in its dialogue with States Parties that no country can rightly claim that it does not face within its own borders actual or potential problems of racial discrimination as defined in Article 1 of the Convention. This article refers to "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin". Problems of racial discrimination are rampant everywhere. Awareness to this effect is growing but by no means generally acknowledged. Thus, no less than sixteen out of thirty governments reported some years ago, in 1994, in reply to an enquiry by the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance that these phenomena did not exist in their country.5

Denial and Acknowledgement

Combating racism and racial discrimination starts with the acknowledgement that these phenomena and related practices exist or may occur. It is on that basis that strategies and measures are being devised to prevent and to suppress these wrongs and to afford redress and remedies to the victims. Acknowledgement and denial stand to each other in a dialectical relationship which can only be straightened out by disclosure of patterns and stereotypes of denial. This has been done by the International Council on Human Rights Policy which developed in a recent publication a "typology of denial".6

Notorious are Holocaust denials, deeply offensive to the survivors (Jews, Roma and others) and adding to their suffering. Failure to recognise the distinct culture, lifestyle and language of certain groups and minorities (such as Kurds in Turkey and Turks in Bulgaria) and forcing them to assimilate also forms part of the pattern of denials. Also of note was the denial of practices of racial discrimination because such practices were held inconsistent with the socio-political ideology of socialism at the time of its reign in countries of Central and Eastern Europe. Another example is that certain governments (such as the government of India) deny that the caste system is a form of racial discrimination coming under the purview of the Convention (in terms of "descent"). The typology of denial denotes a great variety of facts, euphemisms, historical truths, wrongs committed, inhuman practices and, above all, the denial of accepting responsibility for past and present practices amounting to grave offences against human dignity or constituting crimes against humanity.

Acknowledgement entails the acceptance of State responsibility, corporate responsibility and individual responsibility as well as the readiness to afford reparations to victims and their descendants.

The Role of the State

Human rights law assumes the obligation of the State as the political actor that has undertaken to ensure, protect and promote basic rights and freedoms in the civil, political, economic, social and cultural fields and to carry out policies outlawing discrimination. These undertakings relate primarily to the human persons who fall under the State's jurisdiction but they also constitute commitments vis-á-vis other States and the international community. These legal implications derive from the Charter of the United Nations and the international human rights treaties accepted by States.

With its capacity to legislate and to enforce, with its institutions to monitor and to control, with its responsibilities in the areas of teaching, education, culture and information and with its task to promote social welfare and political justice, the State has a crucial role to play in combating racial discrimination and promoting racial equality. In order to meet these obligations, the State should be vigorous, effective and accountable to national constituencies and the international community.

However, in these days of privatisation and reliance on the forces of the market economy, it appears that the role of the State is diminishing. Health care, education, housing and employment - areas of crucial importance to the racially marginalised and disadvantaged - are increasingly withdrawn from the public domain of the State and transferred to private institutions and corporations which operate for financial gain and economic profit. In similar fashion, the forces of the market tend to increase inequalities at the detriment of racially and ethnically disadvantaged groups and persons.

It is desirable to reverse this trend and, above all, that the State takes measures "to prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation (Article 2, paragraph 1 (d) of the ICERD). The CERD as a treaty monitoring body has repeatedly called upon States Parties to enact comprehensive anti-discrimination legislation, not only in the criminal sphere to suppress incitement to racial hatred and discrimination and acts of racial violence, but also in the area of civil and administrative law. Such legislation is not only needed to direct policies and practices of public authorities and public institutions but also to prohibit racial discrimination by private institutions, enterprises and individuals with respect to the enjoyment of such rights as the right to work and access to employment, the right to housing, the right to medical care and health services, the right to education and the right to access to places and services intended for use by the general public (see Article 5, paragraphs (e) and (f) of the ICERD).

As was emphasised in the earlier mentioned publication of the International Council on Human Rights Policy: "Adequate laws, access to court, a willingness to interpret the law broadly and effectively, and a determination on the part of the courts to enforce the law, are all essential prerequisites for the eradication of racism."7 It is the State that embodies the principal institutions to enact and to enforce the laws, and to distribute justice. In living up to its obligations the State must be subject to democratic control and accountabililty at national and international levels.

The Scope of the Convention

For the determination of the scope of the Convention it is essential to refer to Article 1, paragraph, 1, which reads: "In this Convention, the term racial discrimination shall mean any distinction, exclusion, restriction, or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social and cultural or any other fields of public life."

In order to further clarify the scope of the Convention, the following four aspects will be discussed briefly:

I. The non-discrimination grounds;
II. Direct and indirect discrimination;
III. The status of non-citizens; and
IV. Special measures (affirmative action).8

  1.  The listing of non-discrimination grounds in Article 1, paragraph 1, indicates the broad scope of the Convention, going far beyond the colonial context and including, in addition to "race" and "colour", other grounds such as "descent" and "national or ethnic origin". The CERD, in its review and appraisal of the implementation by States Parties of the Convention, is therefore not only dealing with the position and treatment of groups and persons who can be distinguished on the basis of colour of skin but also with groups and persons belonging to ethnic or national minorities, indigenous populations and other people who have been victimised by persistent and entrenched discrimination, such as Roma and Sinti, and Dalits. The Convention also applies in relation to discrimination to immigrants, asylum seekers and other persons of foreign origin. By and large, the broad approach by the CERD, based on the wording of Article 1, paragraph 1, has not been challenged by the States Parties. However, the State of India did express its disagreement when the CERD dealt with the deplorable situation of the Dalits and refused to accept the position of the CERD that the scheduled castes and scheduled tribes fell within the purview of the Convention on the basis of the notion "descent".9 As is noted below, the CERD has in recent times pursued the issue of descent-based discrimination and reaffirmed, in a General Recommendation adopted in August 2002, that discrimination based on "descent" includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status. In discussing the situation in Algeria, in particular large-scale killings by religious and political extremists, some members of the CERD were doubtful whether these killings were racially or ethnically motivated and came within the Committee's mandate. It was against this background that the chairperson of the CERD included in his letter of transmittal of the 1995 annual report to the UN Secretary-General the following passage:
    "In many conflicts sentiments of ethnic belonging are mixed with sentiments of a religious or political character. The text of the Convention provides little guidance on the differentiation of ethnic from political motivation, while the position is further complicated by its definition of racial discrimination as covering distinctions which are racial either in their purpose or their effect. In several of the situations considered during 1995, Committee members were uncertain whether the ethnic elements in the apparent tensions were sufficient to bring the situation within the scope of the Convention."10
     
  2. Certain policies or measures appear, at face value, to affect all people in the same way and are therefore non-discriminatory in the formal sense. However, in actuality, such policies or measures may have more adverse consequences for some categories of people than for others. Such policies or measures which may not be discriminatory in their intent but which are in their effect, are characterised as indirect discrimination. The Convention also aims to combat indirect discrimination. For this reason, the definition article cited above refers to the "purpose or effect" of nullifying and impairing and covers, for that matter, direct (purpose) and indirect (effect) discrimination. The CERD emphasised this point in one of its general recommendations where it stated that a distinction is contrary to the Convention if it has either the purpose or the effect of impairing particular rights and freedoms.11 In expressing its views on immigration laws and policies pertaining to the United Kingdom and Switzerland, the CERD confirmed this position by making it clear that these laws and policies had not only to be assessed as regards their purposes but also in their consequences.12
     
  3. The Convention is ambiguous where in Article 1, paragraphs 2 and 3, it states that it does not apply to distinctions, exclusions, restrictions or preferences between citizens and non-citizens and that it excludes from its ambit legal provisions concerning nationality, citizenship or naturalisation, provided that such provisions do not discriminate against any particular nationality. The ambiguity created in order to serve restrictive State interests is regrettable because in many countries the distinction between nationals (citizens) and non-nationals (non-citizens) is drawn along racial or ethnic lines and creates a division between two different classes of people in society: those enjoying rights and benefits and those whose presence is at best tolerated. The CERD has held that lawful distinctions between citizens and non-citizens must not be applied in a racially discriminatory manner. The CERD has recognised the inherently racist implications that often beset the distinction between nationals and non-nationals and has tried to overcome this distinction and division by regularly taking up the unfavourable position of non-nationals13 and by adopting a general recommendation on the matter. In this general recommendation, the CERD affirmed its position that States Parties are under an obligation to fully report upon legislation on foreigners and its implementation and it further affirmed that Article 1, paragraph 2 of the Convention must not be interpreted as detracting in any way from the rights and freedoms recognised in other human rights instruments.14
     
  4. Like the Convention on the Elimination of Discrimination against Women (CEDAW, Article 4), the Convention allows (or rather encourages) in Article 1, paragraph 4 and Article 2, paragraph 2, special measures by way of affirmative action in order to secure, on a temporary basis, accelerated advancement of disadvantaged groups or individuals. Such special measures which shall not lead to the maintenance of separate rights for different groups and which shall cease once their objectives have been achieved, are not deemed to constitute discrimination. In its General Recommendation XIV,15 the CERD observed that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and the purposes of the Convention, are legitimate or fall within the scope of Article 1, paragraph 4, of the Convention (special measures or affirmative action). In these days of reappraisal of the cause and the legitimacy of affirmative action, it is more than useful to keep in mind its conventional basis in the ICERD and the CEDAW, not only as a reflection of views held in the 1960s and 1970s, but also as a requirement of justice after the turn of the century.

 

Redress and Reparation

Any strategy aimed at the eradication of racism and racial discrimination must be victim-oriented. Too often the plight of the victim is overlooked. Article 6 of the Convention requests States Parties to assure effective protection and remedies against any acts of racial discrimination as well as the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. In this regard, the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance reaffirmed as a pressing requirement that victims, especially in the light of their vulnerable situation socially, culturally and economically, should be assured of having access to justice, including legal assistance where appropriate, and effective and appropriate protection and remedies.16

In practice, the CERD pays much attention to the implementation of Article 6 of the Convention. In particular, it takes an interest in the availability and effectiveness of remedies and in cases that demonstrate the use of such remedies and that lead to the award of reparation or satisfaction to victims. However, in many instances, States fail to provide relevant information on this matter and, in some cases, the CERD has identified special groups of people who were most in need of remedies but who appeared to be lacking the benefit of effective protection and remedies as required by Article 6. Among groups so identified were aboriginals with respect to their land rights; peasant and indigenous groups suffering from violence; foreign workers including female domestic servants subjected to exploitation; Roma and Jews experiencing racial hatred and acts of violence; indigenous peoples, black minorities, refugees and immigrants lacking equal access to courts and administrative bodies; undocumented foreigners and temporary residents without entitlement to redress for acts of racial discrimination; internally displaced persons mainly belonging to indigenous and black communities, etc.17

Actual practice demonstrates that effective remedies are unavailable to those who are most in need of them, in particular the marginalised and the destitute. They are often ignorant of the law and in addition, they often mistrust the courts. Moreover, certain categories of people, notably undocumented persons (the "sans-papiers"), trafficked women and children fear intimidation, retaliation or expulsion and therefore refrain from seeking reparation or satisfaction and improvement of their living conditions. In short, in many countries, the picture for the victim looks gloomy: lack of protection and remedies, lack of rehabilitation and reintegration, lack of sensitivity of the legal system and of the police authorities to the issues they face, a climate of fear, intimidation and retaliation.

Against this background, it is crucial to create recourse procedures which are simple, easily accessible, known to the general public and open to legal aid and assistance. For this purpose, specialised bodies need to be set up with the tasks of monitoring, providing aid and assistance to victims, hearing and considering complaints, advising on legislative and other policy measures and promoting awareness of the general public to issues of discrimination. The Council of Europe's European Commission against Racism and Intolerance (ECRI) has done good work in drawing up basic principles concerning specialised bodies to combat racism, xenophobia, anti-Semitism and intolerance at a national level.18

New Emphasis on Discrimination Against Roma and Descent-Based Discrimination

In recent years, the CERD introduced the method of holding thematic discussions on practices and problems of racial discrimination that are common in many countries and that can usefully be examined from a more general perspective. The CERD followed, in this respect, a practice which was already applied by other treaty bodies such as the Committee on Economic, Social and Cultural Rights and the Committee on the Rights of the Child. The first such thematic discussion of the CERD, in which other United Nations experts also participated and which was preceded by an informal meeting with non-governmental organisations representing Roma and international human rights organisations, was devoted in August 2000 to discrimination against Roma. This thematic discussion was a natural consequence of the CERD's growing awareness and concern, expressed more and more frequently and emphatically in examining the periodic reports of States Parties to the Convention and in the CERD concluding observations relating to these States Parties, about persistent practices of discrimination, disadvantages and acts of violence suffered by Roma.19 The CERD was also assisted by information received from regional organisations, including reports, studies and recommendations prepared by the Organisation for Security and Cooperation in Europe (OSCE) and its High Commissioner on National Minorities and by the Council of Europe's ECRI. Based on the information submitted and collected for the thematic discussion and on the outcome of the debate, the CERD adopted, on August 16, 2000, its General Recommendation XXVII on discrimination against Roma.20 This general recommendation, consisting of a preamble and forty-nine paragraphs, provides for measures of a general nature, measures for protection against racial violence, measures in the field of education, measures to improve living conditions, measures in the field of the media and measures concerning participation in public life. The general recommendation is a suitable tool for the development of more comprehensive and effective policies by States with respect to the fundamental rights of Roma. It also constitutes a helpful framework to national and international monitoring bodies and may serve as an instrument in the hands of Romani communities and their members to press for their rights and to underpin their claims.

The second thematic discussion of the CERD related to the issue of descent-based discrimination and was held in the aftermath of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance. The documents that emerged from the Durban Conference, the Declaration and the Programme of Action, gave much attention to the perspective of victims of discrimination: Africans and people of African descent, Asians and people of Asian descent, indigenous peoples, migrants, refugees and asylum seekers, minorities, Roma and Sinti, victims of trafficking, victims of racial and sexual violence, children and young people, and other victims of multiple forms of discrimination. However, political forces at work effectively blocked in Durban explicit reference to victims of descent-based discrimination. It is to the credit of the CERD that after Durban it took up the challenge of rectifying this gap by organising in August 2002 a thematic discussion on the basis of the precedent that was set two years earlier with regard to discrimination against Roma. The CERD followed the same methods of work - in an informal meeting, giving ample opportunities to, among others, Dalit and Buraku organisations and groups - and adopted in conclusion General Recommendation XXIX on descent based discrimination.21 The preamble of this document confirms the consistent view of the CERD that the term "descent" in Article 1, paragraph 1, of the Convention does not solely refer to "race" and has a meaning and application which complements the other prohibited grounds of discrimination. Further, the preamble reaffirms that discrimination based on "descent" includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status which may nullify or impair their equal enjoyment of human rights. The forty-eight paragraphs of the general recommendation deal with measures of a general nature, multiple discrimination against female members of descent-based communities, segregation, dissemination of hate speech, administration of justice, civil and political rights, economic and social rights and the right to education.

Individual Complaints Procedure Under ICERD

Article 14 of International Convention on the Elimination of all Forms of Racial Discrimination (ICERD) provides for an optional individual complaints procedure. If a State Party has made a declaration under Article 14, thereby recognising the competence of the Committee on the Elimination of Racial Discrimination (CERD) to consider such complaints, any individual under its jurisdiction who claims to be a victim of a violation under the ICERD may submit a complaint to the CERD. The CERD is not a court and, therefore, does not issue a judgement or have any means of enforcing its decisions (“views”). It is, however, free to make recommendations to the State Party regarding compensation and the State Party shall inform the Committee in due course of the actions taken in compliance with the Committee’s recommendations.
The mechanism of the individual complaints procedure is described in CERD’s Rules of Procedure (CERD/C/35/Rev.3, 1 January 1989). Under Rule 91, the main conditions of admissibility of a complaint are:

  1. That the communication is not anonymous and that it emanates from an individual or group of individuals subject to the jurisdiction of a State party recognizing the competence of the Committee under Article 14 of the Convention;
  2. That the individual claims to be a victim of a violation by the State party concerned of any of the rights set forth in the Convention. As a general rule, the communication should be submitted by the individual herself or by her relatives or designated representatives; the Committee may, however, in exceptional cases accept to consider a communication submitted by others on behalf of an alleged victim when it appears that the victim is unable to submit the communication herself, and the author of the communication justifies her acting on the victim’s behalf;
  3. That the communication is compatible with the provisions of the Convention;
  4. That the communication is not an abuse of the right to submit a communication in conformity with Article 14;
  5. That the individual has exhausted all available domestic remedies, including, when applicable, those mentioned in paragraph 2 of Article 14. However, this shall not be the rule where the application of the remedies is unreasonably prolonged;
  6. That the communication is, except in the case of duly verified exceptional circumstances, submitted within six months after all available domestic remedies have been exhausted, including, when applicable, those indicated in paragraph 2 of Article 14.

If a complaint is admissible, the CERD will consider the merits of the case. Under Rule 94, the procedure consists of the following steps:

  1. After it has been decided that a communication is admissible, in conformity with Article 14, the Committee shall transmit, confidentially, through the Secretary-General, the text of the communication and other relevant information to the State Party concerned without revealing the identity of the individual unless she has given her express consent. The Committee shall also inform, through the Secretary-General, the petitioner of the communication of its decision.
  2. The State Party concerned shall submit within three months to the Committee written explanations or statements clarifying the case under consideration and the remedy, if any, that may have been taken by that State party. The Committee may indicate, if it deems it necessary, the type of information it wishes to receive from the State party concerned.
  3. In the course of its consideration, the Committee may inform the State party of its views on the desirability, because of urgency, of taking interim measures to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violation. In doing so, the Committee shall inform the State party concerned that such expression of its views on interim measures does not prejudge either its final opinion on the merits of the communication or its eventual suggestions and recommendations.
  4. Any explanations or statements submitted by a State party pursuant to this rule may be transmitted, through the Secretary-General, to the petitioner of the communication who may submit any additional written information or observations within such time-limit as the Committee shall decide.
  5. The Committee may invite the presence of the petitioner or her representative and the presence of representatives of the State party concerned in order to provide additional information or to answer questions on the merits of the communication.
  6. The Committee may revoke its decision that a communication is admissible in the light of any explanations or statements submitted by the State party. However, before the Committee considers revoking that decision, the explanations or statements concerned must be transmitted to the petitioner so that she may submit additional information or observations within the time-limit set by the Committee.

Under Rule 95:

  1. Admissible communications shall be considered by the Committee in the light of all information made available to it by the petitioner and the State party concerned. The Committee may refer the communication to the Working ‘Group in order to be assisted in this task.
  2. The Committee or the working group set up by it to consider a communication may at any time, in the course of the examination, obtain through the intermediary of the Secretary-General any ocumentation that may assist in the disposal of the case from United Nations bodies or the specialized agencies.
  3. After consideration of an admissible communication, the Committee shall formulate its opinion thereon. The opinion of the Committee shall be forwarded, through the Secretary-General, to the petitioner and to the State Party concerned, together with all suggestions and recommendations the Committee may wish to make.
  4. Any member of the Committee may request that a summary of her individual opinion be appended to the opinion of the Committee when it is forwarded to the petitioner and to the State party concerned.
  5. The State party concerned shall be invited to inform the Committee in due course of the action it takes in conformity with the Committee’s suggestions and recommendations.

The individual complaints procedure provided under Article 14 of the ICERD has proven useful in pressing justice claims in racial discrimination cases where Roma have been victims. For more information on using the procedure, as well as on cases related to Roma brought before the CERD, please see ERRC website at http://www.errc.org/publications/letters/2000/slovak_sept_272000.shtml and http://errc.org/publications/letters/2003/serbia_apr_2_2003.shtml .

In taking up discrimination against Roma and descent-based discrimination in a more systematic manner, with the input of people directly concerned, the CERD is responding more effectively to the concern and needs of persons and groups who have long been and still are victims of persistent structural and social racism. The CERD's positions and actions in this regard are most welcome.

Universal and European Standards

No doubt the ICERD has been and still is the most comprehensive international standard in the panoply of legal means and mechanisms to combat racial discrimination. The Convention is a reflection of the high priority given in the United Nations to the eradication of racial discrimination and its core provisions form part of the customary international law of human rights and ius cogens.22 Although the Convention as a world-wide document has been ratified by nearly all European States, its impact in Europe has been limited,23 because racial discrimination is not widely and thoroughly associated with violations of human rights domestically. The leading document on European human rights law, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), plays an increasingly important role in the legal and political order of Europe and is also gaining broader geographical scope after the demise of totalitarian rule in Central and Eastern Europe. However, the ECHR has been inadequate as an anti-discrimination device because of the narrow scope of its non-discrimination provision (Article 14). For a long time, hardly any cases involving racial discrimination reached the European Court of Human Rights. Insofar as the European Court did examine and adjudicate such cases, the Court has not shown great sensitivity as regards the dimensions of racism and racial discrimination by toning down the exigencies of the anti-racism convention in relation to the dissemination of racist statements (Jersild) or by minimising the racial effects of certain immigration laws and policies (Abdulaziz).24 However, this trend is changing and the European Court now appears to take racial discrimination as a serious human rights violation. Thus, in a recent case (Sander) relating to complaints that a jury member in a criminal case had expressed himself in a racially prejudiced manner, the Court took this matter very seriously and considered that "[?]in today's multicultural European societies, the eradication of racism has become a priority goal for all Contracting States (see, inter alia, Declarations of the Vienna and Strasbourg Summits of the Council of Europe)."25

Only in recent times is Europe making efforts to fill the gaps and to lay down and consolidate anti-discrimination legislation. This has come about as a result of increasing awareness of racist and xenophobic views in politics, widespread and continued hostility towards immigrants, non-citizen residents, asylum seekers and refugees; racist attitudes and behaviour on the part of law enforcement officers; incitement to intolerance or racial or ethnic hatred, identified and revealed by such institutions as ECRI26 and the European Parliament.

Most welcome is the June 27, 2000 decision by the Council of Europe Committee of Ministers to adopt Protocol No. 12 of the ECHR, which provides for a general prohibition of discrimination and thus aims to remove the limitations of the current non-discrimination provision (Article 14) which only prohibits discrimination in the enjoyment of the rights guaranteed by the European Convention. Once Protocol No. 12 is widely accepted in Europe, it may contribute significantly to the fight against racism and intolerance but also to furthering equality and non-discrimination in other respects.27 An equally welcome legal development is the adoption on June 29, 2000 by the Council of the European Union of Directive 2000/43/EC based on Article 13 of the Treaty of Amsterdam and implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.28 The scope of the Directive touches upon areas where racial discrimination is most tangible, for example in access to employment, working conditions, access to all types of vocational guidance and training, membership in organisations of workers and employers, social security and health care, social advantages, education, access to and supply of goods and services available to the public, including housing. These areas largely coincide with the earlier mentioned provisions of Article 5, paragraphs (e) and (f) of the ICERD. The European Community Directive and the Convention must be regarded as mutually re-enforcing instruments. In another aspect, there is a parallel, albeit less favourable, provision in the two instruments insofar as the Directive explicitly excludes from its scope difference of treatment based on nationality and any treatment which arises from the legal status of third-country nationals and stateless persons.

The development of more far-reaching European standards for the eradication of racism and racial discrimination was long overdue. The steps now being taken brings Europe closer to United Nations standards apply equally to Europe as to other parts of the world, not so much as a foreign policy interest but first and foremost as a domestic commitment and undertaking. It is of course one thing to adopt and proclaim international standards, in Europe and elsewhere. It is another thing to implement and enforce these standards. Monitoring bodies such as the UN's CERD, the Council of Europe's ECRI and the new European Union Monitoring Centre on Racism and Xenophobia, are helpful tools to advise, to alert and possibly to correct. These international bodies have to interact not only among themselves but also jointly with national authorities, national institutions and with an alert civil society. On this basis, the persistence of racism and racial discrimination stands a better chance to be unmasked and unravelled.

Endnotes:

  1. This article is an updated version of a paper which was published in Kirsten Hastrup and George Ulrich, eds. Discrimination and Toleration: New Perspectives. The Hague, London, New York: Martinus Nijhoff Publishers, 2002, pp. 165-174.
  2. Theo van Boven is Professor of International Law at the University of Maastricht. Since December 2001, Theo van Boven has been appointed as UN Special Rapporteur against Torture. He has served as Director of the United Nations Division of Human Rights and has been a member of the United Nations Sub-Commission for the Promotion and Protection of Human Rights and of the Committee on the Elimination of Racial Discrimination. He was also the first Registrar of the International Criminal Tribunal for the Former Yugoslavia. Theo van Boven is a member of the ERRC Board of Directors.
  3. World Conference Against Racism¸ Programme of Action, para. 76.
  4. Michael Banton. International Action against Racial Discrimination. Oxford: Clarendon Press, 1996, pp. 100-101.
  5. UN doc. A/49/677, para. 45.
  6. International Council on Human Rights Policy. The Persistence and Mutation of Racism. Geneva: Versoix, 2000, pp. 6-8.
  7. Ibid, p. 15.
  8. See also van Boven, Theo. The Concept of Discrimination in the International Convention on the Elimination of All Forms of Racial Discrimination. In: Das Verbot etnisch-kultureller Diskriminierung. Ed. Walter Kälin. Basel, 1999, pp. 9-26.
  9. Report of the Committee on the Elimination of Racial Discrimination, 1996, UN doc. A/51/18, para. 352.
  10. Report of the Committee on the Elimination of Racial Discrimination, 1995, UN doc. A/50/18, p. 6.
  11. General Recommendation XIV on Article 1, para. 1 of the Convention (1993).
  12. See for more detail, The Persistence and Mutation of Racism, pp. 24-26, at note 6.
  13. For instance, ill-treatment of foreign workers, especially foreign female domestic workers in the United Arab Emirates (UN doc. A/50/18, para. 570), conditions of foreign workers in the Republic of Korea (UN doc. A/54/18, para. 61), status of persons who do not qualify for citizenship in Latvia (UN doc. A/54/18, para. 405). See further the reports of the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights, Mr. David Weissbrodt on the rights of non-citizens. In his preliminary report (UN doc. E/CN 4/sub. 2/2001 and Add. 1) and in his progress report (UN doc. E/CN4/sub. 2/2002/25 and Add. 1-3) he extensively reviewed case law and the concluding observations of CERD pertaining to rights and conditions of non-citizens.
  14. General Recommendation XI on non-citizens (1993).
  15. General Recommendation XIV (1993).
  16. World Conference Against Racism, Declaration, para. 104.
  17. See in more detail Van Boven, Theo. Common Problems Linked to All Remedies Available to Victims of Racial Discrimination. Background paper to UN Seminar on Remedies Available to Victims of Racial Discrimination. Geneva 16-18 February, 2000. In United to Combat Racism, UNESCO, 2001, pp. 91-103.
  18. ECRI general policy recommendation No 2: Specialised bodies to combat racism, xenophobia, antisemitism and intolerance at national level, Council of Europe doc. CRI (97)36
  19. For a thorough review of CERD's monitoring of violations of fundamental rights of Roma, in particular relating to racial discrimination, racial violence and the right to education, see Marcia Rooker. The International Supervision of Protection of Romany People in Europe. Nijmegen: University Press, 2002.
  20. See Report of the Committee on the Elimination of Racial Discrimination to the fifty-fifth session of the UN General Assembly, UN doc. A/55/18, annex V, section C.
  21. See Report of the Committee on the Elimination of Racial Discrimination to the fifty-seventh session of the UN General Assembly, UN doc. A/57/18, annex.
  22. See (third) Restatement of the Foreign Relations Law of the United States by the American Law Institute, 1986, para. 702.
  23. Van Boven, Theo. United Nations Strategies to Combat Racism and Racial Discrimination: A Sobering but not Hopeless Balance-Sheet. In: The Role of the Nation-State in the 21st Century: Essays in Honour of Peter Baehr. Monique Castermans-Holleman, Fried van Hoof and Jaqueline Smith eds. The Hague: Kluwer, 1998, pp. 251-264.
  24. See Jersild v. Denmark (ECHR) (1994) and Abdulaziz, Cabales, and Balkandali v. UK, (ECHR) (1985).
  25. Sander v. UK (judgment 9 May 2000), reports ECHR 2000-V, pp. 243ff; at page 251 (para. 23).
  26. European Commission against Racism and Intolerance, Annual Report, 1999, pp. 7-9.
  27. Council of Europe. European Human Rights Convention: better protection against discrimination. Communiqué de Presse, June 27, 2000.
  28. Council of the European Union Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 29 June 200 (OJ (2000) L180/22).

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Cause of Action: Romani Children in State Care in Nógrád County (Hungary)

20 November 2017

The data showed that Romani children are grossly overrepresented in the care system in Nógrád County: although they make up under 20% of the county’s population, Romani children make up over 80% of those in care. The data showed a strong correlation between deep poverty, severe deprivation, and the entry of children into the care system.

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Roma Belong - Discrimination, Statelessness and Marginalisation of Roma in the Western Balkans and Ukraine

26 October 2017

The #RomaBelong project is a joint initiative by the European Roma Rights Centre (ERRC), the Institute on Statelessness and Inclusion (ISI) and the European Network on Statelessness (ENS) in collaboration with partner organisations in Albania ...

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ERRC submission to UN HRC on Serbia (June 2017)

30 June 2017

Written Comments by the European Roma Rights Centre concerning Serbia to the Human Rights Council, within its Universal Periodic Review, for consideration at its 29th session (January-February 2018).

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