Masking inequality in the name of rights: The examination of Fiji's state report under the international convention on the elimination of racial discrimination

Asia Pacific Journal on Human Rights and the Law

Volumn 4, Issue 1, 2003, Pages 52-85

  Salomon, Margot ^a,b,c  

^a Minority Rights Group International   (United Kingdom)

^b London School of Economics and Political Science ^*

^c LONDON SCHOOL OF ECONOMICS   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 30844452807     PISSN: 13881906     EISSN: 15718158     Source Type: Journal    
DOI: 10.1163/157181503772901904     Document Type: Article

References (47)

1. Michael Banton, "Decision-Taking in The Committee on the Elimination of Racial Discrimination" in Philip Alston and James Crawford (Eds.), The Future of UN Human Rights Treaty Monitoring, (Cambridge University Press 2000), p. 68.
2. See for example, CERD's Concluding Observations on Australia, CERD/C/304/Add. 101 para. 6 (56th session, 2000), then Committee member Michael Banton remarked that "the UN General Assembly did not contemplate such a situation in 1965 when it adopted ICERD. At that time it was anxious about apartheid in South Africa and possible revival of Nazism in Europe. But the Convention is a living document. It has inspired actions and resolutions on many matters that were not considered in the drafting process.". Referring to issues that the Committee has addressed in the recent past including the inter-ethnic conflicts in Rwanda and Burundi, ethnic cleansing in Bosnia and Kosovo, the suppression of the rights of Kurds and of discrimination against Roma, the ethnic dimension of informal residential segregation in cities and segregation in classrooms, and the dissemination of racist propaganda over the internet, Banton reasons that "ICERD embodies standards against which all such development are to be judged". Michael Banton, "International Report, United Nations", (2000) 26 Journal of Ethnic and Migration Studies 3, p. 543 at p. 545. Elsewhere Banton notes that: "In the new era the Committee's task, in dialogue with states parties, will be to apply the Convention to circumstances that were not contemplated in the drafting process, and to do so without attempting to exercise any 'creeping jurisdiction'. The process whereby issues are refined and decisions reached will continue to be central to the movement to extend the rule of law." Banton, Decision-Taking (2000), supra no. 4, p. 78. The Government of Fiji also refers to ICERD as a "living document," see, Fifteenth periodic report of Fiji submitted pursuant to Article 9 of the Convention to the Committee on the Elimination of Racial Discrimination, UN. Doc CERD/C/429/Add. 1, (15 November 2002), para. 7.
3. th session, 1995), para. 1;
4. see also Michael Banton, International Action Against Racial Discrimination, (Oxford University Press 1999), pp. 200-202.
5. CERD Concluding Observations: Republic of Moldova, UN Doc. CERD/C/60/CO/9 (2002);
6. Banton, Decision-Taking (2000), supra no. 4, p. 70.
7. CERD's Annual Report, UN Doc. A/48/18 (1993) Annexe III.
8. ICERD Article 8(1) establishes the Committee consisting of ".experts of high moral standing and acknowledged impartiality.who shall serve in their individual capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as the principal legal systems". On CERD's reiteration of the significance of maintaining the impartiality of its members, see CERD General Recommendation IX on the independence of experts (Application of Article 8, par. 1), (38th session, 1990). Members sit for a term of four years subject to renewal (Article 8(5)(a)). It is not unusual for civil servants, diplomats or retired diplomats to be appointed to CERD and therefore in an effort to maintain impartiality there is a general rule that experts do not participate in discussions of the reports of their home states. See Kevin Boyle and Annaliese Baldaccini, "A Critical Evaluation of International Human Rights Approaches to Racism" in Sandra Friedman (Ed.), Discrimination and Human Rights: The Case of Racism, (Oxford University Press 2001), pp. 168-169. It has also been suggested that the current practice of agreeing Concluding Observations in public session is meant to inhibit participation by a member who is a national of the state under consideration. Rudiger Wolfram as cited in Boyle and Baldaccini, p. 168.
9. see also, Boyle and Baldaccini, A Critical Evaluation (2001), supra no. 14, p. 159.
10. See also, Banton, International Action (1999), supra no. 6, p. 201.
11. See, Patrick Thornberry, Indigenous Peoples and Human Rights, (Manchester University Press 2002), pp. 202-203.
12. CERD General Recommendation XIX ( 1995), supra no. 6, para. 3.
13. nd session, 1993), para. 2.
14. CERD General Recommendation XX (1996), supra no. 19, para. 1.
15. nd session, 1993), para. 3.
16. Summary Record of the 1530th meeting (2002), supra no. 34, para. 45.
17. The Committee informally appoints a Country Rapporteur from among its members charged with leading the examination of a states party's report and preparing the Concluding Observations which are adopted by the Committee as whole. See, Atsuko Tanaka and Yoshinobu Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs (International Movement Against All Forms of Discrimination and Racism and Minority Rights Group International, 2001), p. 7. Available at www.imadr.org and www.minorityrights.org
18. Satendra Prasad, Jone Dakuvula and Darryn Snell, Economic Development, Democracy and Ethnic Conflict in the Fiji Islands, (Citizens Constitutional Forum and Minority Rights Group International 2001), p. 4.
19. Prasad et al, Economic Development (2001), supra no. 46, p. 5.
20. Notably, Fiji has not ratified the International Covenant on Economic, Social and Cultural Rights, nor the International Covenant on Civil and Political Rights.
21. CERD General Recommendation XV (1993), supra no. 26, para. 4.
22. Significantly, Article 19(3) makes clear that any restrictions "shall only be such as are provided by law and are necessary" to ensure the rights of others, national security and public health and morals. Similar limitations are provided for in the comparable article found in the European Convention on Human Rights, and international jurisprudence has provided elucidation of the terms aimed at ensuring any limitation to the right does so with respect for the view, as expressed by the European Court of Human Rights, that freedom of expression "constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's fulfilment". Lingens v. Austria, Judgement of 8 July 1986 (No. 103), EHRR 103.
23. The Committee draws attention of states parties to this Article in, CERD General Recommendation XV (1993), supra no. 26, para. 4.
24. Boyle and Baldaccini, A Critical Evaluation (2001), supra no. 14, pp. 160-161.
25. th session, 2001) para. 391, in which the Committee emphasised its particular concern ".about the implication of the State party's reservation on the implementation of article 4 of the Convention. In this regard the Committee recalls its general recommendations VII and XV, according to which the prohibition of dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression, given that a citizen's exercise of this right carries special duties and responsibilities, among which is the obligation not to disseminate racist ideas. The Committee recommends that the State party review its legislation in view of the new requirements of preventing and combating racial discrimination, and adopt regulations extending the protection against acts of racial discrimination, in accordance with article 4 of the Convention
26. Fiji's reservations to ICERD, United Nations Treaty Collection available at www.unhchr.ch
27. CERD Concluding Observations: Fiji (2003), supra no. 45, para. 12; see also, United Nations Treaty Collection for Fiji's reservations to ICERD available at www.unhchr.ch
28. Vienna Convention on the Law of Treaties (1969), entry into force on 27 January 1980, UNTS vol. 1155, p.331, Article 19.
29. Human Rights Committee General Comment 24 on issues relating to reservations made upon ratification or accession to the Covenant or the Optional Protocols thereto, or in relation to declarations under article 41 of the Covenant, (52nd session, 1994), para. 8. Consideration of inter-state reciprocal obligations stemming from international human rights treaties is an area that will likely receive increased attention in future with the growth of scholarly focus on the obligations of international cooperation in the protection of human rights, and thus the appreciation that international human rights law imposes obligations on states to people in jurisdictions other than their own. See generally, M argot. E. Salomon and Arjun Sengupta, The Right to Development: Obligations of States and the Rights of Minorities and Indigenous Peoples, (Minority Rights Group International, 2003);
30. Sigrun I. Skogly and Mark Gibney, "Transnational Human Rights Obligations", 24 Human Rights Quarterly (2002) p. 781;
31. Duties sans Frontieres: Human Rights and Global Social Justice, (The International Council on Human Rights Policy, 2003), available at www.ichrp.org.
32. For obligations to cooperate internationally see, 1CCPR Article 2(3)(a); International Covenant on Economic, Social and Cultural Rights (1966), Articles 2(3), 11(2), 15(4), 22 and 23;
33. Convention on the Rights of the Child, Articles 4, 17(b), 24(4), 28(3).
34. HRC General Comment 24 (1994), supra no. 86, para. 17.
35. See, HRC General Comment 24 (1994), supra no. 86, para. 18;
36. see also Thornberry, Indigenous Peoples (2002), supra no. 22, p. 199, fn. 4;
37. and, Hampson, Reservations (1999) supra no. 85, paras. 20, 21 and especially. 31.
38. Adopted by the International Labour Conference, 27 June 1989, entered into force 5 September 1991, 72 ILO Official Bulletin 59. Despite certain shortcomings and a low rate of ratification, ILO Convention 169 is the only binding international instrument, still open for ratification, dedicated to the rights of indigenous peoples.
39. See Salomon and Sengupta, The Right to Development (2003), supra no. 86, pp. 9-12.
40. Rosenblum explains, for example, that "[although group rights are generally perceived to be weaker than individual rights in terms of treaties, in practice, many group rights notions trump the individual or undifferentiated groups". He argues, that "[I]t may be easier today, for example, to stop an oil pipeline if the pipeline project affects a small group of Pygmies than if it displaces a million other people who lack the same powerful group identity". Peter Rosenblum, 'Teaching Human Rights: Ambivalent Activism, Multiple Discourses, and Linguistic Dilemmas,' 15 Harvard Human Rights Journal (2002), p. 301 at p. 307.
41. See Thornberry, Indigenous Peoples (2002), supra no. 22, pp. 214-216, 219.
42. See generally, CERD General Recommendation XXIII (1997), supra no. 7.
43. Satendra Prasad and Darryn Snell, "Behind the Fiji Crisis: Politics of Labour in an Ethnically Divided Society", Arena Journal 15 (2002), as referred to in Prasad et al. supra no. 46.
44. The exhaustion of domestic remedies rule does not apply where they are ineffective or a priori of no avail. See, Tanaka and Nagamine, A Guide for NGOs (2001), supra no. 40, p. 19.
45. th meeting (2003), supra no. 57, para. 29.
46. Benedict Kingsbury, 'Reconciling Five Competing Conceptual Structures of Indigenous Peoples' Claims in International and Comparative Law', in Philip Alston (Ed.), Peoples' Rights, (Oxford University Press, 2001) p. 72.
47. See, Note on Collective Rights in International Law, prepared by Margot E. Salomon (Minority Rights Group International 2002) for the Roundtable on 'Collective Rights for Indigenous People' convened by the UK Foreign and Commonwealth Office, November 2002. Available from minority.rights@mrgmail.org