International Convention on the Elimination of All Forms of Racial Discrimination

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Membership of the Convention on the Elimination of All Forms of Racial Discrimination: Template:Legend Template:Legend Template:Legend Template:Legend

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races.<ref name=Art2.1>ICERD, Article 2.1</ref> Controversially, the Convention also requires its parties to outlaw hate speech and criminalize membership in racist organizations.<ref name=Art4>ICERD, Article 4.</ref>

The Convention also includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led to the development of a limited jurisprudence on the interpretation and implementation of the Convention.

The convention was adopted and opened for signature by the United Nations General Assembly on 21 December 1965,<ref name=UNGA2106>United Nations General Assembly Resolution 2106 (XX), 21 December 1965.</ref> and entered into force on 4 January 1969. As of October 2015, it has 88 signatories and 177 parties.<ref name=UNTC-CERD>Template:Cite web</ref>

The Convention is monitored by the Committee on the Elimination of Racial Discrimination (CERD).

Genesis

In December 1960, following incidents of antisemitism in several parts of the world,<ref name=Lerner>Template:Cite book</ref> the United Nations General Assembly adopted a resolution condemning "all manifestations and practices of racial, religious and national hatred" as violations of the United Nations Charter and Universal Declaration of Human Rights and calling on the governments of all states to "take all necessary measures to prevent all manifestations of racial, religious and national hatred".<ref>United Nations General Assembly Resolution 1510 (XV), 12 December 1960.</ref> The Economic and Social Council followed this up by drafting a resolution on "manifestations of racial prejudice and national and religious intolerance", calling on governments to educate the public against intolerance and rescind discriminatory laws.<ref name=UNGA1779>United Nations General Assembly Resolution 1779 (XVII), 7 December 1962.</ref> Lack of time prevented this from being considered by the General Assembly in 1961,<ref>United Nations General Assembly Resolution 1684 (XVI), 18 December 1961.</ref> but it was passed the next year.<ref name=UNGA1779/>

During the early debate on this resolution, African nations led by the Central African Republic, Chad, Dahomey, Guinea, Côte d'Ivoire, Mali, Mauritania, and Upper Volta pushed for more concrete action on the issue, in the form of an international convention against racial discrimination.<ref>Lérner, p. 2.</ref> Some nations preferred a declaration rather than a binding convention, while others wanted to deal with racial and religious intolerance in a single instrument.<ref name=Schwelb>Template:Cite journal</ref> The eventual compromise, forced by the Arab nations' political opposition to treating religious intolerance at the same time as racial intolerance plus other nations' opinion that religious intolerance was less urgent,<ref name=Schwelb999>Schwelb, p. 999.</ref> was for two resolutions, one calling for a declaration and draft convention aimed at eliminating racial discrimination,<ref>United Nations General Assembly Resolution 1780 (XVII), 7 December 1962.</ref> the other doing the same for religious intolerance.<ref>United Nations General Assembly Resolution 1781 (XVII), 7 December 1962.</ref>

The draft Declaration on the Elimination of All Forms of Racial Discrimination was adopted by the General Assembly on 20 November 1963.<ref>United Nations General Assembly Resolution 1904 (XVIII), 20 November 1963.</ref> The same day the General Assembly called for the Economic and Social Council and the Commission on Human Rights to make the drafting of a Convention on the subject an absolute priority.<ref>United Nations General Assembly Resolution 1906 (XVIII), 20 November 1963.</ref> The draft was completed by mid-1964,<ref>Lérner, p. 5.</ref> but delays in the General Assembly meant that it could not be adopted that year.<ref name=Schwelb999/> It was finally adopted on 21 December 1965.<ref name=UNGA2106/>

Summary

The Convention follows the structure of the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights, with a preamble, which refers ILO Convention No. 111 and Convention against Discrimination in Education, and twenty-five articles, divided into three parts.<ref>The following section summarizes the text of the Convention.</ref>

Part 1 (Articles 1 – 7) commits parties to the elimination of all forms of racial discrimination and to promoting understanding among all races (Article 2). Parties are obliged to not discriminate on the basis of race, not to sponsor or defend racism, and to prohibit racial discrimination within their jurisdictions. They must also review their laws and policies to ensure that they do not discriminate on the basis of race, and commit to amending or repealing those that do. Specific areas in which discrimination must be eliminated are listed in Article 5.

The Convention imposes a specific commitment on parties to eradicate racial segregation and the crime of apartheid within their jurisdictions (Article 3). Parties are also required to criminalize the incitement of racial hatred (Article 4), to ensure judicial remedies for acts of racial discrimination (Article 6), and to engage in public education to promote understanding and tolerance (Article 7).

Part 2 (Articles 8 – 16) governs reporting and monitoring of the Convention and the steps taken by the parties to implement it. It establishes the Committee on the Elimination of Racial Discrimination, and empowers it to make general recommendations to the UN General Assembly.<ref>ICERD, Article 9.2.</ref> It also establishes a dispute-resolution mechanism between parties (Articles 11 – 13), and allows parties to recognise the competence of the Committee to hear complaints from individuals about violations of the rights protected by the Convention (Article 14).

Part 3 (Articles 17 – 25) governs ratification, entry into force, and amendment of the Convention.

Core provisions

Definition of "racial discrimination"

Template:Main Article 1 of the Convention defines "racial discrimination" as:

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Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are positive discrimination policies and other measures taken to redress imbalances and promote equality.<ref>ICERD, Articles 1.2 and 1.4.</ref>

This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction between the ethnicity and race remains debatable among anthropologists.<ref>A. Metraux (1950) "United Nations Economic and Security Council Statement by Experts on Problems of Race" in American Anthropologist 53(1): 142–145</ref> The inclusion of descent specifically covers discrimination on the basis of caste and other forms of inherited status.<ref>Template:Cite web</ref>

Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy discriminates is judged by its effects.<ref name="CERD-GC14">Template:Cite web</ref>

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The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by self-identification.<ref>Template:Cite web</ref>

Prevention of discrimination

Template:Main Article 2 of the Convention condemns racial discrimination and obliges parties to "undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms".<ref name=Art2.1 /> It also obliges parties to promote understanding among all races.<ref name=Art2.1/> To achieve this, the Convention requires that signatories:

  • Not practice racial discrimination in public institutions<ref>ICERD, Article 2.1(a).</ref>
  • Not "sponsor, defend, or support" racial discrimination<ref>ICERD, Article 2.1(b).</ref>
  • Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination<ref>ICERD, Article 2.1(c).</ref>
  • Prohibit "by all appropriate means, including legislation," racial discrimination by individuals and organisations within their jurisdictions<ref>ICERD, Article 2.1(d).</ref>
  • Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division<ref>ICERD, Article 2.1(e).</ref>

Parties are obliged "when the circumstances so warrant" to use positive discrimination policies for specific racial groups to guarantee "the full and equal enjoyment of human rights and fundamental freedoms".<ref name=Art2.2>ICERD, Article 2.2.</ref> However, these measures must be finite, and "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved".<ref name=Art2.2/>

Article 5 expands upon the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before the law regardless of "race, colour, or national or ethnic origin".<ref>ICERD, Article 5.</ref> It further lists specific rights this equality must apply to: equal treatment by courts and tribunals,<ref>ICERD, Article 5(a).</ref> security of the person and freedom from violence,<ref>ICERD, Article 5(b).</ref> the civil and political rights affirmed in the ICCPR,<ref>ICERD, Articles 5(c) and (d).</ref> the economic, social and cultural rights affirmed in the ICESCR,<ref>ICERD, Article 5(e).</ref> and the right of access to any place or service used by the general public, "such as transport hotels, restaurants, cafes, theatres and parks."<ref>ICERD, Article 5(f).</ref> This list is not exhaustive, and the obligation extends to all human rights.<ref>Template:Cite web</ref>

Article 6 obliges parties to provide "effective protection and remedies" through the courts or other institutions for any act of racial discrimination.<ref name=Art6>ICERD, Article 6.</ref> This includes a right to a legal remedy and damages for injury suffered due to discrimination.<ref name=Art6/>

Condemnation of apartheid

Template:Main Article 3 condemns apartheid and racial segregation and obliges parties to "prevent, prohibit and eradicate" these practices in territories under their jurisdiction.<ref>ICERD, Article 3.</ref> This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the International Criminal Court.<ref>Rome Statute of the International Criminal Court, Article 7.1(j).</ref>

The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.<ref>Template:Cite web</ref>

Prohibition of incitement

Template:Main Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of racial supremacism.<ref name=Art4/> It obliges parties, "with due regard to the principles embodied in the Universal Declaration of Human Rights", to adopt "immediate and positive measures" to eradicate these forms of incitement and discrimination.<ref name=Art4/> Specifically, it obliges parties to criminalize hate speech, hate crimes and the financing of racist activities,<ref>ICERD, Article 4(a).</ref> and to prohibit and criminalize membership in organizations that "promote and incite" racial discrimination.<ref>ICERD, Article 4(b).</ref> A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on the freedoms of speech, association or assembly.<ref>See "Reservations" below for more details.</ref>

The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention,<ref>Template:Cite web</ref> and has repeatedly criticized parties for failing to abide by it.<ref>Template:Cite web</ref> It regards the obligation as consistent with the freedoms of opinion and expression affirmed in the UNDHR and ICCPR<ref name=CERDGR15>Template:Cite web</ref> and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence.<ref>ICCPR, Article 20.2.</ref> It views the provisions as necessary to prevent organised racial violence and the "political exploitation of ethnic difference."<ref>CERD General Recommendation No. 15, Paragraph 1.</ref>

Promotion of tolerance

Template:Main Article 7 obliges parties to adopt "immediate and effective measures", particularly in education, to combat racial prejudice and encourage understanding and tolerance between different racial, ethnic and national groups.<ref>ICERD, Article 7.</ref>

Dispute resolution mechanism

Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party that believes another party is not implementing the Convention may complain to the Committee on the Elimination of Racial Discrimination.<ref>ICERD, Article 11.</ref> The Committee will pass on the complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make recommendations on the matter.<ref>ICERD, Articles 12 & 13.</ref> This procedure has never been used.<ref>Template:Cite web</ref>

Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.<ref>ICERD, Article 22.</ref> This clause has been invoked only once, by Georgia against Russia.<ref>Template:Cite web</ref>

Individual complaints mechanism

Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognise the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated.<ref>ICERD, Article 14 (1).</ref> Such parties may establish local bodies to hear complaints before they are passed on.<ref>ICERD, Article 14 (2) – (5).</ref> Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned joined the Optional Protocol are not permitted.<ref name="ICERD, Article 14 6 & 7">ICERD, Article 14 (6) & (7).</ref> The Committee can request information from and make recommendations to a party.<ref name="ICERD, Article 14 6 & 7"/>

The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties.<ref name=icmart14>Template:Citation</ref> As of 2010, 58 states had recognised the competence of the Committee,<ref name=UNTC-CERD/> and 54 cases have been dealt with by the Committee.<ref name=compstatus/>

Reservations

A number of parties have made reservations and interpretative declarations to their application of the Convention. The Convention text forbids reservations "incompatible with the object and purpose of this Convention" or that would inhibit the operation of any body established by it.<ref name=Art20.2>ICERD, Article 20.2.</ref> A reservation is considered incompatible or inhibitive if two-thirds of parties object to it.<ref name=Art20.2/>

Article 22

Afghanistan, Bahrain, China, Cuba, Egypt, Equatorial Guinea, India, Indonesia, Iraq, Israel, Kuwait, Lebanon, Libya, Madagascar, Morocco, Mozambique, Nepal, Saudi Arabia, Syria, Thailand, Turkey, Vietnam, and Yemen do not consider themselves bound by Article 22. Some interpret this article as allowing disputes to be referred to the International Court of Justice only with the consent of all involved parties.<ref name=UNTC-CERD/>

Obligations beyond existing constitution

Antigua and Barbuda, the Bahamas, Barbados, Guyana, Jamaica, Nepal, Papua New Guinea, Thailand and United States interpret the Convention as not implying any obligations beyond the limits of their existing constitutions.<ref name=UNTC-CERD/>

Hate speech

Austria, Belgium, France, Ireland, Italy, Japan, Malta, Monaco, Switzerland and Tonga all interpret Article 4 as not permitting or requiring measures that threaten the freedoms of speech, opinion, association, and assembly.<ref name=UNTC-CERD/> Antigua and Barbuda, the Bahamas, Barbados, Fiji, Nepal, Papua New Guinea, Thailand and United Kingdom interpret the Convention as creating an obligation to enact measures against hate speech and hate crimes only when a need arises.

The United States of America "does not accept any obligation under this Convention, in particular under articles 4 and 7, to restrict those [extensive protections of individual freedom of speech, expression and association contained in the Constitution and laws of the United States], through the adoption of legislation or any other measures, to the extent that they are protected by the Constitution and laws of the United States."<ref name=UNTC-CERD/>

Immigration

Monaco and Switzerland reserve the right to apply their own legal principles on the entry of foreigners into their labour markets.<ref name=UNTC-CERD/> The United Kingdom does not regard the Commonwealth Immigrants Act 1962 and Commonwealth Immigrants Act 1968 as constituting any form of racial discrimination.<ref name=UNTC-CERD/>

Indigenous people

Tonga reserves the right not to apply the Convention to any restriction on the alienation of land held by indigenous Tongans. Fiji has significant reservations around Article 5, and reserves the right not to implement those provisions if they are incompatible with existing law on voting rights, the alienation of land by indigenous Fijians.<ref name=UNTC-CERD/>

Jurisprudence

The individual complaints mechanism has led to a limited jurisprudence on the interpretation and implementation of the Convention. So far 45 complaints have been registered with the Committee; 17 of these have been deemed inadmissible, 14 have led to a finding of no violation, and in 10 cases a party has been found to have violated the Convention. Four cases are still pending.<ref name=compstatus>Template:Cite web</ref>

Several cases have dealt with the treatment of Romani people in Eastern Europe. In Koptova v. Slovakia the Committee found that resolutions by several villages in Slovakia forbidding the residence of Roma were discriminatory and restricted freedom of movement and residence, and recommended the Slovak government take steps to end such practices.<ref>Template:Cite web</ref> In L.R. v. Slovakia the Committee found that the Slovak government had failed to provide an effective remedy for discrimination suffered by Roma after the cancellation of a housing project on ethnic grounds.<ref>Template:Cite web</ref> In Durmic v. Serbia and Montenegro the Committee found a systemic failure by the Serbian government to investigate and prosecute discrimination against Roma in access to public places.<ref>Template:Cite web</ref>

In several cases, notably L.K. v. Netherlands and Gelle v. Denmark, the Committee has criticized parties for their failure to adequately prosecute acts of racial discrimination or incitement. In both cases, the Committee refused to accept "any claim that the enactment of law making racial discrimination a criminal act in itself represents full compliance with the obligations of States parties under the Convention".<ref>Template:Cite web</ref> Such laws "must also be effectively implemented by the competent national tribunals and other State institutions".<ref>Template:Cite web</ref> While the Committee accepts the discretion of prosecutors on whether or not to lay charges, this discretion "should be applied in each case of alleged racial discrimination in the light of the guarantees laid down in the Convention"<ref>L.K. v. Netherlands, para. 6.5</ref>

In The Jewish community of Oslo et al. v. Norway, the Committee found that the prohibition of hate speech was compatible with freedom of speech, and that the acquittal of a neo-Nazi leader by the Supreme Court of Norway on freedom of speech grounds was a violation of the Convention.<ref>Template:Cite web</ref>

In Hagan v. Australia, the Committee ruled that, while not originally intended to demean anyone, the name of the "E. S. 'Nigger' Brown Stand" (named in honour of 1920s rugby league player Edward Stanley Brown) at a Toowoomba sports field was racially offensive and should be removed.<ref>Template:Cite web</ref>

Impact

The impact of an international treaty can be measured in two ways: by its acceptance, and by its implementation.<ref>Lérner, p. 165.</ref><ref>Template:Cite journal</ref> On the first measure, the Convention has gained near-universal acceptance by the international community, with fewer than twenty (mostly small) states yet to become parties.<ref name=UNTC-CERD/> Most major states have also accepted the Convention's individual complaints mechanism, signaling a strong desire to be bound by the Convention's provisions.<ref name=UNTC-CERD/>

On the second measure, the Convention has had a significant impact on national legislation, with many states adopting legislation outlawing racial discrimination by the state, in the workplace, or in the provision of services such as housing and education. Such legislation may be either civil or criminal.<ref name=ho238>Template:Cite web</ref> Examples of the former include the Civil Rights Act 1964 (United States), Race Relations Act 1971 (New Zealand), Racial Discrimination Act 1975 (Australia), Race Relations Act 1976 (UK), and Canadian Human Rights Act 1977 (Canada). Criminal provisions are used in Belgium, Denmark, France, Italy, Norway and Portugal.<ref name=ho238/> Despite reservations to the Convention, most western European nations have criminalized the incitement of racial hatred.<ref name=ho238/>

The Convention has faced persistent problems with reporting since its inception, with parties frequently failing to report fully,<ref>Template:Cite web</ref> or even at all.<ref>Template:Cite web</ref> As of 2008, twenty parties had failed to report for more than ten years, and thirty parties had failed to report for more than five.<ref>Template:Cite web</ref> One party, Sierra Leone, had failed to report since 1976, while two more – Liberia and Saint Lucia had never met their reporting requirements under the Convention.<ref>Report of the Committee on the Elimination of Racial Discrimination, p. 103.</ref> The Committee has responded to this persistent failure to report by reviewing the late parties anyway – a strategy that has produced some success in gaining compliance with reporting requirements.<ref>Report of the Committee on the Elimination of Racial Discrimination, pp. 104–105.</ref> This lack of reporting is seen by some as a significant failure of the Convention.<ref>Template:Cite journal</ref> However the reporting system has also been praised as providing "a permanent stimulus inducing individual States to enact anti-racist legislation or amend the existing one when necessary."<ref name=Lerner2>Template:Cite book</ref>

In 2017 Ukraine opened a case against Russia for discrimination of Crimean Tatars in military occupied Autonomous Republic of Crimea<ref>Template:Cite web</ref>.

Committee on the Elimination of Racial Discrimination

The Committee on the Elimination of Racial Discrimination is a body of human rights experts tasked with monitoring the implementation of the Convention. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years. Members are elected by secret ballot of the parties, with each party allowed to nominate one of its nationals to the Committee.<ref>ICERD, Article 8.</ref>

All parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to give effect to the Convention. The first report is due within a year of the Convention entering into effect for that state; thereafter reports are due every two years or whenever the Committee requests.<ref>ICERD, Article 9.</ref> The Committee examines each report and addresses its concerns and recommendations to the state party in the form of "concluding observations".

The Committee typically meets every March and August in Geneva.<ref>Template:Cite web</ref> The current (as of April 2017) membership of the Committee is:<ref>Template:Cite web</ref>Template:Update after

Name State Term expires
Noureddine Amir (Vice-chairperson) Template:Flag 2018
Alexei S. Avtonomov Template:Flag 2020
Marc Bossuyt Template:Flag 2018
Jose Francisco Cali Tzay Template:Flag 2020
Anastasia Crickley (Chairperson) Template:Flag 2018
Fatimata-Binta Victoire Dah Template:Flag 2020
Afiwa-Kindena Hohoueto Template:Flag 2018
Anwar Kemal Template:Flag 2018
Melhem Khalaf (Vice-chairperson) Template:Flag 2018
Gun Kut Template:Flag 2018
Jose A. Lindgren Alves Template:Flag 2018
Nicolás Marugán Template:Flag 2020
Gay Mcdougall Template:Flag 2020
Yemhelhe Mint Mohamed Template:Flag 2020
Pastor Elias Murillo Martinez Template:Flag 2020
Verene Albertha Shepherd Template:Flag 2020
Yanduan Li Template:Flag 2020
Yeung Kam John Yeung Sik Yuen Template:Flag 2018

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