Confronting racial discrimination: A CERD perspective

Human Rights Law Review

Volumn 5, Issue 2, 2005, Pages 239-269

  Thornberry, Patrick ^a  

^a KEELE UNIVERSITY   (United Kingdom)

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EID: 30844467762     PISSN: 14617781     EISSN: None     Source Type: Journal    
DOI: 10.1093/hrlr/ngi015     Document Type: Review

References (261)

1. And not only Europe: See, for example, Concluding Observations on Brazil, Report of the Committee on the Elimination of Racial Discrimination, 15 October 2004, A/59/18 ('2004 Report') at para. 62.
2. See, for example, Concluding Observations on Italy, Report of the Committee on the Elimination of Racial Discrimination, 30 October 2001, A/56/18 ('2001 Report'), at para. 313.
3. Articles 1(3), 13(1)(b), 55 (c) and 76(c).
4. GA Res. 217A (III), 10 December 1948, A/810 at 71.
5. For a full spectrum of standards on discrimination, see the note prepared by the Office of the High Commission for Human Rights, Compendium of International and Regional Standards Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 13 January 2003, E/CN.4/WG.21/5.
6. It may be queried why 'religion is included in lists of prohibited grounds of discrimination, bearing in mind that individuals may voluntarily decide to change religion. However, apart from pragmatic grounds militating against discrimination on grounds of religion, the 'voluntarist' aspect of religion may be exaggerated in many, if not most, societies where a particular religious tradition prevails and is an aspect of inheritance. See discussions in Harvard Law School Program, Religion and State (Harvard Law School Human Rights Program, 2004); on voluntarism and self-invention in the field of culture,
7. see Eagleton, The Idea of Culture (Oxford: Blackwell Publishers, 2000), especially Chapter 4.
8. UNTS 195.
9. In its 2002 Statement on Racial Discrimination and Measures to Combat Terrorism, the Committee on the Elimination of Racial Discrimination recalled, inter alia, that 'the prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted', Report of the Committee on the Elimination of Racial Discrimination, 1 November 2002, A/57/18 ('2002 Report') at Chapter XI C.
10. GA Res. 2106 (XX), 21 December 1965.
11. UN Declaration on the Elimination of Racial Discrimination, proclaimed by GA Res. 1904 (XVIII), 20 November 1963.
12. Figures for States Parties are given in the Annual Report of the Committee to the General Assembly of the UN. Updated figures between Annual Reports may be found on the website of the UN High Commissioner for Human Rights under 'human rights bodies', available at: http://www.ohchr.org/english/bodies/index.htm.
13. Banton, International Action against Racial Discrimination (Oxford: Clarendon Press, 1996), Chapter 4 ('The Racial Convention'), and Chapter 5 ('Laying the Foundations'). According to Banton, citing the then rapporteur of the Committee, the initial reports of the first 45 States Parties 'had proclaimed in the most emphatic language that their territories were totally free of racial discrimination', while 28 'had declared that such discrimination was unthinkable or inconceivable in their territories' (at 106).
14. See, for example, the responses of the Committee through its Concluding Observations to intimations by States of 'no racial discrimination' or 'population homogeneity' in relation to: Egypt, 2001 Report, supra n. 2 at para. 286
15. Trinidad and Tobago, ibid. at para. 348
16. Jamaica, 2002 Report, supra n. 6 at para. 131
17. Qatar, ibid. at para. 190
18. Yemen, ibid. at para. 460
19. Tunisia, Report of the Committee on the Elimination of Racial Discrimination, 23 October 2003, A/58/18 ('2003 Report') at para. 252
20. Korea, ibid. at para. 492
21. and, Libya, 2004 Report, supra n. 1 at para. 99.
22. General Guidelines regarding the Form and Contents of Reports to be Submitted by States Parties, 5 December 2000, CERD/C/70/Rev.5
23. General Recommendation IV, 25 August 1973, A/9018 at 106
24. 1-3 IHRR 5 (1993);
25. General Recommendation XXIV, Report of the Committee on the Elimination of Racial Discrimination, 29 September 1999, A/54/18 ('1999 Report'), Annex V at 103
26. 7 IHRR 905 (2000), in particular para. 4.
27. See Cohen, Denial and Acknowledgement - The Impact of Information about Human Rights Violations (Jerusalem: Hebrew University of Jerusalem, 1995);
28. and Cohen, States of Denial: Knowing about Atrocities and Suffering (Cambridge: Polity Press, 2001).
29. Is elimination thus a 'noble lie'? (Banton, supra n. 11 at 50). Chapter 4 ('The Racial Convention'), and Chapter 5 ('Laying the Foundations'). According to Banton, citing the then rapporteur of the Committee, the initial reports of the first 45 States Parties 'had proclaimed in the most emphatic language that their territories were totally free of racial discrimination', while 28 'had declared that such discrimination was unthinkable or inconceivable in their territories' (at 106).
30. See also International Council on Human Rights Policy, The Persistence and Mutation of Racism (Versoix, 2000).
31. For an interpretation of the Convention based upon the travaux préparatoires, see Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination', (1966) 12 International and Comparative Law Quarterly 996.
32. See also Meron, 'The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination', (1985) 79 American Journal of International Law 283.
33. Article 8 of the Convention, according to which the experts of the Committee are to be (Article 8(1)) 'of high moral standing and acknowledged impartiality ... who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilization as well as of the principal legal systems.' Regarding the defence of this impartiality, General Recommendation IX states that the Committee is '[a]larmed by the tendency of States, organizations and groups to put pressure upon experts', and strongly recommends that 'they respect unreservedly the status of its members as independent experts', Report of the Committee on the Elimination of Racial Discrimination, 23 August 1990, A/45/18 ('1990 Report') at Annex VII 2
34. 1-3 IHRR 8 (1993).
35. Compendium of International and Regional Standards, supra n. 4.
36. In a regular paragraph in current practice, the Committee recommends that the reporting State Party takes into account the relevant parts of the Durban Declaration and Programme of Action and includes information on action plans to implement the Durban provisions at national level. See also General Recommendation XXVIII on the follow-up to the World Conference Against Racism, 2002 Report, supra n. 7 at Annex XI E;
37. 10 IHRR 2 (2003).
38. Rule 14 of the Committee's rules of procedure provides that, following election or re-election to the Committee, a member makes the following declaration: 'I solemnly declare that I will perform my duties and exercise my powers as a member of the Committee...honourably, faithfully, impartially and conscientiously': Compilation of Rules of Procedure adopted by Human Rights Treaty Bodies, 28 April 2003, HRI/GEN/ 3/Rev.1 at 69.
39. Van Boven remarks that the perception of '[the Convention] as foreign policy' produced a situation where 'many States parties...nominated active or retired diplomats, foreign ministry officials, former foreign ministers, and similar personalities to serve as members', questioning whether such membership 'is fully consistent with the terms of Article 8', van Boven, 'Discrimination and Human Rights Law; Combating Racism', in Fredman (ed.), Discrimination and Human Rights: The Case of Racism (Oxford: Oxford University Press, 2001) 112 at 113.
40. See also Banton, supra n. 11 at 309.
41. While keeping in mind such criticisms, it may be argued that the presence of active or retired diplomats adds to the gravitas of the Committee, encouraging foreign ministries to take more notice of its recommendations. The 'diplomats' may also bring knowledge and experience to the workings of the system bearing in mind that the Convention is a 'worldly' text functioning in the framework of international relations with its own arcane mysteries and is not the product of a heaven of jurisprudential conceptions.
42. In accordance with Committee Decision 2(VI) of 1972, General Assembly Official Records, 27th session, Supplement No. 18, A/8718, chapter IX, section B, concerning co-operation with the ILO and UNESCO, both organisations are invited to attend the sessions of the Committee. In practice, the bodies with whom the Committee co-operates practically is a variable, and is recalled in Chapter 1 of the Committee's annual report. Lately, co-operation has been strongest with the UNHCR. For a summary of the current situation,
43. see the overview of the methods of work of the Committee in 2003 Report, supra n. 12 at Annex IV,
44. complementing and amending the overview in the Report of the Committee on the Elimination of Racial Discrimination, 30 September 1996, A/51/18 ('1996 Report') at paras 587-627.
45. The first meeting of chairpersons of treaty bodies was convened by the Secretary-General in August 1984 pursuant to GA Res. 38/117, 16 December 1983, A/RES/38/117.
46. The first inter-committee meeting was held in 2002 on a recommendation of the chairpersons at their 13th meeting in 2001 - the first inter-committee report is HRI/ICM/2002/3, 24 September 2002.
47. From its 38th session in 1990, Committee practice distinguishes 'comprehensive reports' from 'updating reports', 1990 Report, supra n. 17 at para. 29.
48. A further refinement was adopted in 2001 giving greater flexibility to reporting States ('the Bossuyt amendment'): 'In cases where the period between the examination of the last periodic report and the scheduled date for the submission of the next periodic report is less than two years, the Committee may suggest in its concluding observations that the State party concerned, if it so wishes, submit the latter report jointly with the periodic report to be submitted at the following date fixed in accordance with Article 9 of the Convention', 2001 Report, supra n. 2 at paras 477-8.
49. In the 'overview' of the methods of work of the Committee in 2001, a strong case was made that 'in the interest of transparency the adoption of concluding observations in public meetings should continue', 2001 Report, ibid. at para. 479.
50. However, the 'overview' of 2003 recites that the 'meetings of the Committee to adopt the concluding observations will be held in private', 2003 Report, supra n. 12 at Annex IV.
51. Discussion of concluding observations in closed sessions marks a return to the practice of the Committee which had existed until 1996, 1996 Report, supra n. 22 at para. 598.
52. Under the heading of 'Factors and difficulties impeding the implementation of the Convention'. For recent examples, see 2001 Report, supra n. 2 at paras 43 (Argentina), 85-6 (Georgia), 208 (Sudan), 258 (Cyprus), 362 (Ukraine), 384 (USA) and 432 (Liberia);
53. 2002 Report, supra n. 7 at paras 90 (Croatia), 211 (Moldova), 393 (Mali) and 457 (Yemen);
54. 2003 Report, supra n. 12 at paras 21 (Cote D'Ivoire), 73 (Fiji), 105 (Ghana), 269 (Uganda), 330 (Bolivia), 355 (Cape Verde), 505 (Saint Vincent and the Grenadines) and 554 (Malawi);
55. 2004 Report, supra n. 1 at paras 21 (Bahamas), 76 (Lebanon) and 118 (Nepal).
56. The mechanism was summarised in an annual report (1996 Report, supra n. 22 at para. 595): Beginning in 1988, the Committee began the practice of appointing country rapporteurs for State reports. The responsibility of a member so appointed is to prepare a thorough study and evaluation of each State report, to prepare a comprehensive list of questions to put to the representatives of the reporting State and to lead the discussion in the Committee. This procedure was adopted to increase efficiency in the functioning of the Committee by having a certain division of labour, while ensuring that at least one Committee member was thoroughly prepared to ask questions and make comments. Both the quality of dialogue and the effective use of time have increased significantly since the adoption of this system.
57. Report of the Committee on the Elimination of Racial Discrimination, 27 February 1992, A/46/18 ('1991 Report') at para. 27.
58. Banton, supra n. 11 at 151.
59. Emphasis added.
60. 1996 Report, supra n. 22 at para. 608.
61. See also Valencia Rodriguez, 'The International Convention on the Elimination of All Forms of Racial Discrimination', in Manual on Human Rights Reporting (Geneva: United Nations, 1997) 299.
62. 2001 Report, supra n. 2 at paras 429-43.
63. Ibid. at Chapter II A.
64. Concluding Observations in 2004 Report, supra n. 1 at paras 180-210.
65. Decision 2(62), 2003 Report, supra n. 12 at Chapter II A.
66. Decision 1(64), 2004 Report, supra n. 1 at Chapter V D.
67. In the event, Guyana submitted a report to the Committee in 2005 (1 April 2005, CERD/C/472/Add.1) which is due for examination in 2006.
68. Ibid. at Annex VIII.
69. General Recommendation XXV, Report of the Committee on the Elimination of Racial Discrimination, 27 October 2000, A/55/18 ('2000 Report') at Annex V A;
70. 8 IHRR 309 (2001).
71. General Recommendation XXVII, 2000 Report, ibid. at Annex V C;
72. 8 IHRR 310 (2001).
73. General Recommendation XXIX, 2002 Report, supra n. 7 at Annex XI F;
74. 10 IHRR 905 (2003).At the time of writing, a General Recommendation on racial discrimination in the administration of justice is scheduled for adoption in August 2005.
75. For early discussions concerning the competence of the Committee to interpret the Convention, see Banton, supra n. 11 at 102-4,126 and 158-60.
76. Articles 11-13, Convention; the quotation is from Article 11(1).
77. Banton, supra n. 11 at 110
78. and Buergenthal, 'Implementing the UN Racial Convention', (1977) 12 Texas International Law Journal 187.
79. The 'standard' form of the recommendation is currently: 'The Committee notes that the State party has not made the optional declaration provided for in Article 14 of the Convention, and recommends that it consider the possibility of making such a declaration.'
80. 99 UNTS 171. Continuing the follow-up theme above, it may be observed that there has been no follow-up mechanism for the 'suggestions and recommendations' of the Committee in relation to Article 14 cases. This is in contradistinction to, for example, the Human Rights Committee, the Committee against Torture and the Committee on the Elimination of Discrimination against Women. However, in Ms L.R. v Slovakia (31/03), CERD/C/66/D/31/2003 (2005);
81. 12 IHRR 675 (2005), where, having found violations of Articles 2(1)(a), Article 5(d)(iii) and 6 of the Convention, the Committee stated: 12. In accordance with Article 6 of the Convention, the State party is under an obligation to provide the petitioners with an effective remedy. In particular, the State party should take measures to ensure that the petitioners are placed in the same position that they were upon adoption of the first resolution by the municipal council. The State party is also under an obligation to ensure that similar violations do not occur in the future.... 13. The Committee wishes to receive, within ninety days, information from the government of the Slovak Republic about the measures to be taken to give effect to the Committee's Opinion. The State party is requested also to give wide publicity to the...Opinion.
82. See van Boven, 'Prevention, Early-Warning and Urgent Procedures: A New Approach by the Committee on the Elimination of Racial Discrimination', in Denters and Schrijver (eds), Reflections on International Law from the Low Countries (The Hague: Kluwer Law International, 1998) 165.
83. The procedure is based on a working paper on the prevention of discrimination, including early warning and urgent procedures adopted by the Committee at its 42nd session in 1993, Report of the Committee on the Elimination of Racial Discrimination, 15 September 1993, A/48/18 ('1993 Report') at Annex III. At its 65th session, the Committee established a working group on early warning and urgent action procedures, 2004 Report, supra n. 1 at Annex XII.
84. The Committee held a thematic discussion on prevention of genocide at its 66th session in 2005 (7 March 2005, CERD/C/SR.1683-84). A 'Declaration on the Prevention of Genocide' was adopted at the same session.
85. Decision 1(66), 11 March 2005, CERD/C/66/NZL/Dec.1.
86. Elements in the substantial discussions between the Committee and the government appear in CERD/C/SR.1680, 25 February 2005.
87. The criteria for invoking the procedure are summarised in 2002 Report, supra n. 7 at para. 17. Under 'early-warning' they include: The lack of an adequate legislative basis for defining and criminalizing all forms of racial discrimination...inadequate implementation of enforcement mechanisms, including the lack of recourse procedures; the presence of a pattern of escalating racial hatred and violence, or racist propaganda or appeals to racial intolerance by persons, groups or organizations, notably by elected or other officials; a significant pattern of racial discrimination evidenced in social and economic indicators; and significant flows of refugees or displaced persons resulting from a pattern of racial discrimination or encroachment on the lands of minority communities. Under 'urgent procedures', the criteria could include the presence of a serious, massive or persistent pattern of racial discrimination, or that the situation is serious and there is a risk of further racial discrimination.
88. The first coordinator is Committee member Kjaerum; the alternate is Committee member Amir.
89. The procedure is set out in short form as Rule 65.2. of the rules of procedure. Rule 65 now reads: 1. If the Committee decides to request an additional report or further information from a State party under the provisions of Article 9, paragraph 1, of the Convention, it may indicate the manner as well as the time within which such additional report or further information shall be supplied and shall transmit its decision to the Secretary-General for communication, within two weeks, to the State party concerned. 2. In order to further the implementation of the above paragraph, the Committee shall appoint a coordinator for a period of two years. In fulfilling his/her tasks, the coordinator shall cooperate with country rapporteurs. 2004 Report, supra n. 1 at Annex III.
90. 10 March 2005, CERD/C/66/Misc.11/Rev.2.
91. The process of identifying key paragraphs commenced at the 66th session of the Committee in 2005. See, for example, the concluding observations on Australia, 14 April 2005, CERD/C/AUS/CO/14 at para. 28
92. and on the Lao People's Democratic Republic, 18 April 2005, CERD/C/LAO/ CO/15 at para. 29.
93. There is a helpful account of the workings of the Committee from an NGO perspective in Tanaka and Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs (Tokyo and London: IMADR and Minority Rights Group International, 2001).
94. The question of permissible sources of information has troubled the Committee intermittently, especially in the early phases. In 1991, in Decision 1(XL), the Committee stated that, while it would continue to make suggestions and recommendations on the basis of information from States parties, 'in examining the reports of States parties, members of the Committee must have access, as independent experts, to all other available sources of information, governmental and non-governmental', 1991 Report, supra n. 28 at Chapter VII B.
95. The introduction of 'country presentations' prepared by the Secretariat has proved of considerable assistance to the Committee. The 2003 overview of working methods, 2003 Report, supra n. 12 at Annex IV Q, provides that: 'The Committee will be provided by the Secretariat, well in advance of the session, with country presentations concerning the States Parties whose periodic reports are due to be considered...or the States parties scheduled for...review...These presentations, to be treated as confidential documents, should contain a summary of the information available on the country in connection with the periodic reports.' In addition to the submission by NGOs of written material to the Committee, including 'shadow reports', the briefing of Committee members by NGOs through informal lunchtime meetings has become part of the regular modus operandi of the Committee.
96. Overview of the methods of work of the Committee, 2003 Report, ibid. at Annex IV B.
97. See ILO Discrimination (Employment and Occupation) Convention No. 111 1958, 363 UNTS. 31
98. UNESCO Convention against Discrimination in Education 1960, 429 UNTS 93. The UN Declaration on the Elimination of All Forms of Racial Discrimination does not attempt a 'definition' of discrimination but simply states in Article 1 that discrimination 'on the ground of race, colour or ethnic origin' is an offence to human dignity to be condemned as a denial and violation of human rights, as well as being 'an obstacle to friendly and peaceful relations among nations and...a fact capable of disturbing peace and security among peoples.'
99. Article 1(1).
100. See remarks of the representative of Belgium at the adoption of the draft declaration and programme of action at the Durban World Conference against Racism, when, having cited elements of the 'helpful' definition of racial discrimination in the Convention, the representative added that EU Member States 'consider that the acceptance of any formulation implying the existence of separate human "races" could be interpreted as a retrograde step as it risks denying the unity of humanity. Nor is acceptance of such a formulation necessary in order to combat racial discrimination', A/CONF.189/12 (Part II), Chapter VII at para. 4.
101. Race theory may not command the 'scientific' status it once did, but, according to the International Council on Human Rights Policy: Racist theories are still widespread. Legally and illegally, particularly in the United States and in Europe, numerous racist internet websites spread propaganda cheaply and globally. Many proponents of such theories...tend to construct a pseudo-scientific version of history that justifies their claim to superiority. At the same time, they dehumanise those they believe are less equal. The group that is discriminated against is said to have genetic predispositions towards criminal tendencies, to be feckless sexually or financially, to be less successful academically, to be unemployed by choice and so on. In extreme cases, the victims are described as more animal-like than human. International Council on Human Rights Policy, supra n. 15 at 3.
102. For a review of 'theory' in this sphere, see Banton, Racial Theories (Cambridge: Cambridge University Press, 1987);
103. Boxill (ed.), Race and Racism (Oxford: Oxford University Press, 2001). For comment on the stance in the Convention, see Banton, supra n. 11, who comments that the listing of 'grounds' of discrimination 'made possible a solution to what was otherwise an intractable problem... Any method of combating discrimination which made use of a racial classification would legitimise a view of human differences which had been used to justify the denial of human rights. By defining discrimination as action on the grounds of race [etc.], it was possible to bypass any arguments about the nature of these differences in themselves' (at 52).
104. Para. 6 of the Preamble and Article 4, Convention. Neither ILO Convention 111 nor the UNESCO Convention against Discrimination in Education explicitly condemn racist theory. A more explicit and 'philosophical' approach to racist theory is set out in the UNESCO Declaration on Race and Racial Prejudice (1978), Compendium of International and Regional Standards, supra n. 4 at 169-73.
105. For an instructive review of the 'grounds' of discrimination, see the background paper, The Definitions of Racial Discrimination, prepared by former Committee member and Chairman Diaconu, for the World Conference against Racism, 26 February 1999, E/CN.4/1999/WG.1/BP.10.
106. Banton, 'Colour as a Ground of Discrimination', in Ghanea-Hercock and Xanthaki (eds), Minorities, Peoples and Self-Determination, Essays in Honour of Patrick Thornberry (Leiden/Boston: Martinus Nijhoff, 2005) 237.
107. Combined 14th to 17th Periodic Reports of Brazil, CERD/C/431/Add.8; 11 March 2004, CERD/C/SR.1632 and 1633.
108. See Diop v France (2/89), CERD/C/39/D/2/1989 (1991) at para. 6.6
109. 2 IHRR 353 (1994);
110. and B.M.S v Australia (8/96), CERD/C/54/D/8/1996 (1999);
111. 6 IHRR 1018 (1999);
112. and Diaconu, supra n. 65 especially at paras 17 and 36.
113. Mahalic and Mahalic, 'The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination', (1987) 9 Human Rights Quarterly 74.
114. Multilateral Treaties Deposited with the Secretary-General, ST/LEG/SER.E/ 14 at 102.
115. Article 2(1)(d) and 2(1)(c). See also Article 2(1)(b) and Article 4.
116. Para. 5, General Recommendation XX, 1996 Report, supra n. 22 at Annex VIII A;
117. 5 IHRR 18 (1998).
118. 2001 Report, supra n. 2 at para. 392. See remarks of Committee members Diaconu (22 August 2001, CERD/C/SR.1475 at para. 7) and
119. Thornberry (ibid. at para. 30). Boyle and Baldaccini comment appositely that 'The phenomenon of "shrinking government" blurs the distinction between spheres of public conduct that are the subject of governmental regulation and spheres of private conduct that are not. Such trends detract from States' accountability and go in the opposite direction to what is needed to counteract racism', 'A Critical Evaluation of International Human Rights Approaches to Racism', in Fredman, supra n. 21, 135 at 159.
120. General Recommendation XIX, Report of the Committee on the Elimination of Racial Discrimination, 22 September 1995, A/50/18 ('1995 Report') at Annex VII;
121. 5 IHRR 17 (1998). Explicit recommendations on segregation in sectors such as housing and education are regularly made by the Committee. For example, taking only the 2003 Report, supra n. 12, see the concluding observations on Brazil, at para. 58
122. Nepal, at para. 127
123. Netherlands, at para. 152
124. and Slovakia, at para. 385. In many cases, segregation issues may be part of the context of recommendations, particularly on Roma and descent-based groups such as Dalits.
125. Obligations in Article 4 are to be exercised 'with due regard to the principles embodied in the Universal Declaration of Human Rights'.
126. See concluding observations on the United States of America, 2001 Report, supra n. 12 at para. 391.
127. Compare Article 20 of the international Covenant on Civil and Political Rights. See also statements by members of the Committee in the examination of the eighth and ninth periodic reports of Denmark, 1990 Report, supra n. 17 at para. 56, and the reflections on Article 4 by the European Court of Human Rights in Jersild v Denmark A 298 (1994);
128. (1995) 19 EHRR 1.
129. See in particular General Recommendation XV which, inter alia, recites the Committee's conviction that 'the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression', 1993 Report, supra n. 47 at Annex VIII;
130. 1-3 IHRR 11 (1993).
131. See the Summary Records of the Committee thematic discussion on prevention of genocide, supra n. 48.
132. For a critique of the Committee in this respect, see Felice, 'The UN Committee on the Elimination of All Forms of Racial Discrimination: Race, and Economic and Social Human Rights', (2002) 24 Human Rights Quarterly 205. For an instructive illustration of current Committee practice, presenting a rather different picture to that offered by Felice, see for example the 2004 concluding observations on Slovakia, 2004 Report, supra n. 1 at paras 385-9, which include recommendations on, inter alia, rights to education, employment, health and housing.
133. Felice is particularly critical of the recommendations of the Committee in the field of economic and social rights, finding them 'uniformly unsubstantial' (ibid. at 223). On the other hand, the demand for more specific recommendations to governments does not always sit well with the function of the Committee in the context of constructive dialogue with governments, nor with respect to the obligation on governments to design their own implementation strategies.
134. O'Flaherty, 'Substantive Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, in Pritchard (ed), Indigenous Peoples, the United Nations and Human Rights (London and Leichhardt, NSW: Zed Books and the Federation Press, 1998) 162 at 179.Diaconu, supra n. 65, adds the interesting point that Article 1(1) refers to human rights and freedoms in any 'field' of public life, suggesting that the Convention 'is not limited to the categories of rights enshrined in international documents.' (para. 24).
135. For example, in drafting General Recommendation XXIII on indigenous peoples, members appear to have been influenced by, inter alia, the draft UN Declaration on the Rights of Indigenous Peoples, and developments in Latin America. See the comments of Committee member Wolfrum, 5 August 1997, CERD/C/SR.1235 at para. 93
136. and van Boven, supra n. 21 at 118-20.
137. See General Recommendation XXVI on Article VI, 2000 Report, supra n. 38 at Annex V B;
138. 8 IHRR 310 (2001).
139. See for example in relation to Belarus, 2004 Report, supra n. 1 at para. 268
140. and, in relation to Kazakhstan, ibid. at para. 296.
141. The principle is helpfully reviewed in Morawa, 'The Evolving Human Right to Equality', (2001/2) 2 European Yearbook on Minority Issues 157.
142. Reflections on the 'equality content' of the Convention are offered in McKean, Equality and Discrimination under International Law (Oxford: Clarendon Press, 1983) at 152-65.
143. Article 1(1).
144. Article 5(e)(i).
145. Article 5(e)(vi).
146. 1993 Report, supra n. 47 at 155.
147. 2000-IV 263
148. (2001) 31 EHRR 15, at para. 44 (emphasis added).
149. 1999 Report, supra n. 13 at Annex V.
150. The travaux préparatoires make clear that the context of the draft (introduced by Committee member Diaconu) is one of 'demographic information' rather than substantive treatment. The text was introduced to the Committee in such terms in 1998, see 13 August 1998, CERD/C/ SR.1281 at para. 27.
151. Toivanen, 'Contextualizing Struggles Over Culture and Equality: An Anthropological Perspective', in Scheinin and Toivanen (eds), Rethinking Non-Discrimination and Minority Rights (Turku and Berlin: Abo Akademi and German Institute for Human Rights, 2004) 179 at 183.
152. In the light of statements by the US on the permissive nature of special measures under the Convention, the relevant concluding observation of the Committee 'notes with concern the position taken by the State party that the provisions of the Convention permit, but do not require States parties to adopt affirmative action measures to ensure the adequate development and protection of certain racial, ethnic or national groups. The Committee emphasizes that the adoption of special measures by States parties when the circumstances so warrant, such as in the case of persistent disparities, is an obligation stemming from article 2, paragraph 2, of the Convention', 2001 Report supra n. 2 at para. 399 (emphasis added).
153. Myntti, 'The Prevention of Discrimination v. Protection of Minorities - With Particular Reference to "Special Measures"', (2002) 2 Baltic Yearbook of International Law 199.
154. Chile, E/CN.4/Sub.2/SR.416 at para. 13.
155. Ivory Coast, A/C.3/SR.1306 at para. 23.
156. See Also Article 2 (1)(e) on integrationist multi-racial organisations and movements.
157. See for example General Recommendation XXI on self-determination, 1996 Report, supra n. 22 at Annex VIII B;
158. 5 IHRR 19 (1998);
159. and General Recommendation XXVII on the Roma, supra n. 39.
160. See for example the concluding observations on Bangladesh, 2001 Report, supra n. 2 at para. 66. For a more wide-ranging set of recommendations, including many not confined to a 'special measures' or 'affirmative action' framework, see concluding observations on Canada, 2002 Report, supra n. 7 at paras 315-43.
161. See concluding observations on Ecuador, 2003 Report, supra n. 12 at paras 47-69.
162. For example the concluding observations on India, 1996 Report, supra n. 22 at paras 339-73
163. and on Nepal, 2000 Report, supra n. 38 at paras 289-306.
164. Supra n. 65 at para. 17.
165. See the 2005 concluding observations on Ireland, 14 April 2005, CERD/C/ IRL/CO/2 at para. 18. Religion is not itself a prohibited ground of discrimination in the Convention.
166. The connection between indigenous land and spirituality is referred to in Article 13 of ILO Convention No. 169 on Indigenous and Tribal Peoples 1989, ILO No. C169.
167. 2003 Report, supra n. 12 at para. 428.
168. Presumably the Government of Iran was not convinced by the Committee's listing of the 'ethnic' dimension in the case of the Baha'i.
169. Comments of States Parties on the decisions and concluding observations adopted by the Committee and replies by the Committee, 2003 Report, supra n. 12 at Annex VII.
170. 2004 Report, supra n. 1 at para. 150.
171. See also the concluding observations on Spain, ibid. para. 169.
172. See the helpful summary of current issues in Prouvez, 'Minorities and Indigenous Peoples' Protection: Practice of UN Treaty Bodies in 2003', (2003/4) 3 European Yearbook of Minority Issues 481. The author is the current Secretary of the Committee.
173. General Recommendation XXVII, supra n. 39.
174. Concluding observations on Hungary, 2003 Report, supra n. 12 at para. 386.
175. See Toivanen, supra n. 95.
176. See Weller (ed.), The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities (Oxford: Oxford University Press, 2005).
177. See Project on Ethnic Relations (PER), Roma and the Question of Self-Determination: Fiction and Reality (Princeton: PER, 2002).
178. Taylor, Multiculturalism and the Politics of Recognition (Princeton: Princeton University Press, 1994).
179. General Recommendation XXIII, Report of the Committee on the Elimination of Racial Discrimination, 26 September 1997, A/52/18 ('1997 Report') at Annex V;
180. 5 IHRR 7 (1998).
181. Supra n. 107.
182. Tomei and Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169 (Geneva: International Labour Office, 1996) at 8-9.
183. See comments by Committee members Wolfrum, 5 August 1997, CERD/C/SR.1235 at paras 67 and 74-5,
184. and Aboul-Nasr, ibid. at para. 72.
185. Ibid. at para. 60 (Wolfrum, referring to a proposal by Diaconu).
186. Suggestions of Committee member Shahi, ibid. at para. 73.
187. For example in its 2004 concluding observations on Suriname, concerning forestry and mining concessions, the Committee, while noting the State Party's assertion that 'there are mechanisms guaranteeing that indigenous and tribal peoples are notified and consulted before any forestry and or mining concessions within their lands are awarded', expressed concern that 'consultation of that kind is rare.' Accordingly, the Committee invited the authorities 'to check that the established mechanisms for notifying and consulting the indigenous and tribal peoples are working, and recommends that the State party strive to reach agreements with the peoples concerned, as far as possible, before awarding any concessions', 2004 Report, supra n. 1 at para. 192. While General Recommendation XXIII is recalled in para. 202 of the observations, we may note the absence of a principle of informed consent in the above and in other elements of these observations, especially paras 188-202.
188. In concluding observations on the US, a paragraph expressed concern, inter alia, about information on plans for expansion of mining and nuclear waste storage on Western Shoshone ancestral land. The Committee drew the attention of the State Party 'to general recommendation XXIII on indigenous peoples which stresses the importance of securing the "informed consent" of indigenous communities and calls...for recognition and compensation for loss', 2001 Report, supra n. 2 at para. 400.
189. See also the 2005 concluding observations on Australia, supra n. 55 at para. 11: 'The Committee recommends that the State party take decisions directly relating to the rights and interests of indigenous peoples with their informed consent, as stated in its general recommendation XXIII. The Committee recommends that the State party reconsider the withdrawal of existing guarantees for the effective representative participation of indigenous peoples in the conduct of public affairs as well as in decision- and policy-making relating to their rights and interests'. The recommendation was directly related to the abolition of the elected Aboriginal and Torres Strait Islander Commission.
190. See, for example, the element of critique in concluding observations on Suriname: 'The Committee notes that the authorities appear to limit themselves to not hampering the exercise by the various ethnic groups and their members of their cultural rights. The Committee recommends that the State party should respect and promote the indigenous and tribal peoples' cultures, languages and distinctive ways of life', 2004 Report, supra n. 1 at para. 201.
191. Salomon, 'Masking Inequality in the Name of Rights: The Examination of Fiji's State Report Under the International Convention on the Elimination of Racial Discrimination', (2003) 1 Asia-Pacific Journal on Human Rights and the Law 52.
192. 2003 Report, supra n. 12 at para. 84.
193. General Recommendation XXI on the right to self-determination, supra n. 101.
194. For Committee comments, see concluding observations on Canada, 2002 Report, supra n. 7 at para. 338
195. New Zealand, ibid. at para. 427
196. Russian Federation, 2003 Report, supra n. 12 at para. 192
197. Norway, ibid. at para. 473
198. the UK, ibid. at para. 536
199. Sweden, 2004 Report, supra n. 1 at para. 225
200. and Kazakhstan, ibid. at para. 294.
201. Statement on racial discrimination and measures to combat terrorism, supra n. 7.
202. 2004 Report, supra n. 1 at Annex VIII;
203. 12 IHRR 607 (2005).
204. In particular, according to para. 2 of the Recommendation, 'Article 1, paragraph 2 [of the Convention] must be construed so as to avoid undermining the basic prohibition of discrimination; hence, it should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights.'
205. Recent concluding observations on trafficking include, in 2004: 2004 Report, supra n. 1 at para. 244 (Argentina);
206. ibid. at para. 265 (Belarus);
207. ibid. at para. 293 (Kazakhstan);
208. and, in 2005: 14 April 2005, CERD/C/AZE/CO/4 at para. 11 (Azerbaijan).
209. See Thornberry, 'The Convention on the Elimination of Racial Discrimination, Indigenous Peoples and Caste/Descent-based Discrimination', in Castellino and Walsh (eds), International Law and Indigenous Peoples (Leiden/Boston: Martinus Nijhoff, 2005) 17.
210. Murakami, Meaning of 'Descent' in the International Convention on the Elimination of All Forms of Racial Discrimination, IMADR (International Movement against All Forms of Discrimination and Racism) paper for the World Conference against Racism, May 2001 (on file with author).
211. See the multiple references to the intersection of 'race' and 'caste' in Bayly, Caste, Society and Politics in India (Cambridge: Cambridge University Press, 1999).
212. Booth, 'Three Tyrannies', in Dunne and Wheeler (eds), Human Rights in Global Politics (Cambridge: Cambridge University Press, 1999) 31.
213. See Sicilianos, 'Les potentialités de la Convention pour l'élimination de la discrimination raciale', in Libertes, Justice, Tolérance, Mélanges en homage au Doyen Gérard Cohen-Jonathan (Bruxelles: Bruylant, 2004) 1385.
214. 'Descent' is not unique in the canon of human rights. Article 1(1)(b) of ILO Convention 169 on Indigenous and Tribal Peoples covers indigenous status on the grounds, inter alia, of 'descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonization' (emphasis added).
215. Key interventions of India were made in meetings 1299 and 1306 of the Third Committee of the General Assembly, see A/C.3/SR.1299 and A/C.3/ SR.1306.
216. A/C.3/SR.1299 at para. 29. The basic document containing the drafting suggestion of India is A/C.3/L.1216. In A/C.3/SR.1306, the representative of Ghana commented on the draft Article 1 that 'notions of ancestry and previous nationality...seemed to him adequately represented by "descent" and "place of origin" in the Indian proposal' (para. 12).
217. For a contrary view, see the spirited discussion of the travaux of the Convention in Keane, 'Descent-based Discrimination in International Law: A Legal History', (2005) 12 International Journal on Minority and Group Rights 93.
218. A/C.3/SR.1306 at para. 25. See also A/C.3/SR.1303 at para. 20. According to Bayly, supra n. 138 at 105-6, the term 'caste' derives from the Latin castus (chaste), mutated to casta in Spanish and Portuguese with a usage applied to zoology and botany, later used to describe Amerindian clans and lineages - that is, by 'bloodline-conscious Iberian settlers to people of mixed white and non-white descent' (at 106). Portuguese usage in India applied it also to religion; subsequently 'Dutch and English writing on India...adopted these usages from the Portuguese, employing them with equal ambiguity and in conjunction with other imprecise terms, including, race, class, nation, sect, and tribe.' (ibid.)
219. A/C.3/SR.1309 at para. 3 (Czech proposal);
220. ibid. at para. 4 (Austrian suggestion);
221. ibid. at para. 5 (Czech agreement to withdraw the proposal).
222. See CERD/C/SR.1531.
223. 2002 Report, supra n. 7 at Annex XI F, operative paragraph (a).
224. See Eide and Yokota, 'Expanded Working Paper on the Topic of Discrimination Based on Work and Descent', 26 June 2003, E/CN.4/Sub.2/ 2004/31
225. and Sub-Commission on the Promotion and Protection of Human Rights Resolution 2004/17, Discrimination Based on Work and Descent, 12 August 2004, E/CN.4/Sub.2/RES/2004/17.
226. Concluding observations on Mali, 2002 Report, supra n. 7 at paras 391-411
227. Senegal, ibid. at paras 435-50
228. the UK, 2003 Report, supra n. 12 at paras 520-50
229. Nepal, 2004 Report, supra n. 1 at paras 116-40
230. Madagascar, ibid. at paras 304-27
231. and, Mauritania, ibid. at paras 328-57.
232. Consolidated 10th to 14th periodic report of India, CERD/C299/Add.3 (1996) at paras 6 and 7.
233. For the concluding observations, see 2001 Report, supra n. 2 at paras 159-85, and particularly para. 166: 'the Committee, contrary to the State party, considers that the term "descent" has its own meaning, and is not to be confused with race or ethnic or national origin'. The response of Japan is in 2001 Report, ibid. at Annex VII, stating simply that 'the Government does not share the Committee's interpretation of "descent"', while recalling measures to resolve discrimination against Burakumin (para. 3).
234. The Committee welcomed Sweden's Action Plan to Combat Racism, Xenophobia, Homophobia and Discrimination - a rare mention of a sexual orientation issue, 2004 Report, supra n. 1 at para. 213.
235. See recent examples from concluding observations, above, n. 140.
236. See concluding observations on Uganda, 2003 Report, supra n. 12 at paras 263-86
237. Suriname, 2004 Report, supra n. 1 at paras 180-210.
238. See concluding observations on Czech Republic, 2003 Report, supra n. 12 at paras 373-93
239. Slovakia, 2004 Report, supra n. 1 at paras 378-95.
240. See concluding observations on Bahamas, 2004 Report, supra n. 1 at paras 18-45
241. Lebanon, ibid. at paras 46-72
242. Mauritania, ibid. at paras 328-57
243. and Madagascar, ibid. at paras 304-27.
244. See concluding observations on Nepal, ibid. at 116-40
245. Mauritania, ibid. at paras 328-57
246. and Suriname, ibid. at paras 180-210.
247. Concluding observations on Suriname, 2004 Report, supra n. 1 at para. 204.
248. Concluding observations on Nepal, ibid. at para. 131.
249. Concluding observations on Mauritania, ibid. at para. 346.
250. Concluding observations on Mauritania, ibid.
251. For example in concluding observations on Ghana, 2003 Report, supra n. 12 at para. 114.
252. Para. 2, General Recommendation XXV, supra n. 38.
253. See also para. 1.
254. (26/02), CERD/C/62/D/26/2002 (2003);
255. 10 IHRR 987 (2003) at para. 7.3.
256. Amidst a plethora of documentation, see the second reform report of the UN Secretary-General, Strengthening of the United Nations: An Agenda for Further Change, 23 September 2002, A/57/387; and the comments in the report entitled In Larger Freedom: Towards Development, Security and Human Rights for All, available at: http://www.un.org/largerfreedom/. In terms of the reporting procedure in particular, see Guidelines on an expanded core document and treaty-specific targeted reports and harmonized guidelines on reporting under the international human rights treaties, 9 June 2004, HRI/MC/2004/3
257. and The OHCHR Plan of Action: Protection and Empowerment (May 2005), available at: http://www.ohchr.org/english/planaction.pdf.
258. See summary record of the 1681st meeting, 4 March 2005, CERD/C/SR.1681, discussing HRI/MC/2004/3.
259. For a comparison of decision-taking under the Convention reporting procedure and the individual communications procedure, see Banton, 'Decision-Taking in the Committee on the Elimination of Racial Discrimination', in Alston and Crawford (eds), The Future of UN Human Rights Treaty Monitoring (Cambridge: Cambridge University Press, 2000) 55.
260. The Committee discussed the issue of multiculturalism at its 66th session in 2005. At the time of writing, the summary records are available only in part: See CERD/C/SR/1701, 29 March 2005.
261. Supra n. 63.