The United Nations and Its Specialised Agencies .1.1

The International Convention on the Elimination of All Forms of Racial Discrimination

The ICERD is to date the only international instrument focussing on the issues of racial discrimination and racism that has been made in treaty format.⁵³⁰ The

526. International action played a more visible role with respect to the situation in South Africa than in the USA. References to apartheid were inserted in the text of the ICERD, among other documents. See the remarks infra in chapter 2.2.1.1.1.

527. The UNGA has paid attention to the need to counter racism and racial discrimination, for example, by proclaiming three Decades to combat these phenomena. The Third Decade ran from 1993 to 2003. UN website at http://www.unhchr.ch/html/menu2/issracis.htm (visited on 10 October 2007). For these UN Decades, see e.g. Boyle and Baldaccini (2001), pp.

166–168 and 184–188.

528. This Conference was one of the preparatory meetings for the World Conference held in Durban. See also the remarks on the regional conferences infra in chapter 2.2.1.1.3.

529. A number of international instruments are viewed as relevant for anti-racist action, which is reflected e.g. in the lists of documents inserted in the Durban Document and elaborated at the European Conference against Racism. ECRI also deems several documents to be relevant for its work. See the lists of these documents infra in chapters 2.2.1.1.3, 2.2.1.3.2 and 4.2.1.

530. The UNGA adopted the Declaration on the Elimination of Racial Discrimination in 1963, two years prior to the adoption of the text of the ICERD.

cornerstone role of the ICERD in the area has also been mentioned in a number of contexts.⁵³¹ The origins of the instrument are linked to the particular concerns of the early 1960s, especially those of de-colonialisation,⁵³² and discrimination on the grounds described in the ICERD was linked to friendly and peaceful relations among nations as well as to peace and security.⁵³³ For a long time, the applica-tion of the Convenapplica-tion was heavily influenced by consideraapplica-tions of internaapplica-tional politics, and it was only after the end of the Cold War that its application was “de-politicised” gradually, allowing a more genuine functioning of the instrument that addressed the issues dealt with in it.⁵³⁴ This also created opportunities for new as-pects of the issues to be taken into account in the framework of the instrument. The ICERD has also been viewed as a good example of a living instrument that has tak-en into account the new dimtak-ensions or aspects of racism and racial discrimination.

Playing a key role in this development has been the Committee on the Elimination of Racial Discrimination (CERD), a body established pursuant to the provisions of the ICERD to carry out the international supervision of the implementation of the Convention.⁵³⁵ Among other things, CERD has published a number of General Recommendations clarifying its views on the content and scope of the provisions of the Convention.⁵³⁶

The ICERD is characteristically an instrument addressing discrimination, and its basic objective is to address the problem that individuals may not be able to enjoy their human rights and fundamental freedoms because of their race, colour, descent, or national or ethnic origin.⁵³⁷ The ICERD does not create or address any new

531. See e.g. the references in the Durban Document and in the OSCE documents. See the re-marks infra in chapters 2.2.1.1.3 and 2.2.1.2. See also Boyle and Baldaccini (2001), p. 149.

532. This is also reflected in the ICERD. See preambular para. 4. On the background of the ICERD, see e.g. Banton (1996), pp. 51–62.

533. Preambular para. 7. Preambular para. 10 and art. 2.1 refer to promoting understanding be-tween races.

534. Banton (1996), pp. 142–143. See also van Boven (2001), pp. 111–113.

535. For the Committee, see art. 8 of the ICERD. For the factors influencing the performance of CERD and new concerns and issues considered by it in the 1990s, see Banton (2000), pp.

56–60 and 75–78.

536. By October 2007 CERD had adopted altogether 31 General Recommendations addressing a number of aspects relevant to the application of the ICERD. Other functions of CERD include examining the situations in the states parties to the ICERD on the basis of state reports and consideration of communications submitted to it.

537. Art. 1.1. See also Boyle and Baldaccini (2001), p. 152.

The use of the term “race” is nowadays often considered problematic due to the view that human beings cannot in fact be divided into different races; rather, all human beings belong to the same “human race”. This position was also incorporated in the Durban Document.

See the remarks infra in chapter 2.2.1.1.3. Since the concept of “race” is nevertheless still used, and it appears in a number of human rights documents presently applied, including the ICERD, it is also employed in the text of the research at hand. Nowadays many tend to prefer the concept of “ethnic origin” to that of “race”. However, the former is also viewed as

human rights standards but only underlines the importance and necessity of imple-menting the already existing human rights on the basis of non-discrimination.⁵³⁸ The Convention obligates the states parties to it to take steps at their national level to prohibit and eliminate racial discrimination and racism,⁵³⁹ including obligations to address these phenomena also in the private sphere.⁵⁴⁰ The ICERD even includes references to positive obligations of states.⁵⁴¹ Teaching, education, culture and in-formation are noted as being central fields in addressing prejudices leading to racial discrimination and in promoting understanding and tolerance.⁵⁴²

The ICERD is among the few international human rights documents that pro-vide a definition of discrimination in its provisions.⁵⁴³ The issue of racism is ad-dressed both in the Preamble⁵⁴⁴ and in article 4.⁵⁴⁵

The ICERD concerns various groups that can be characterised on the basis of criteria mentioned in article 1: i.e. race, colour, descent, or national or ethnic origin.

Whilst initially attention was drawn to objective physical characteristics, e.g. colour

being broader than the latter. See e.g. Nowak (2005), p. 649. See also the remarks supra in chapter 2.1.4.1.

538. See also CERD’s General Recommendation No. 20 on art. 5, para. 1.

539. Arts 2–4. For special and concrete measures, see art. 2.2; and for immediate and positive measures, see art. 4.

540. Art. 2.1(d) obligates the states parties to prohibit and bring to an end racial discrimination by any persons, group or organisation. Art. 4 condemns all propaganda and all organisations based on racist ideas or theories or which attempt to justify or promote racial hatred and discrimination. The insertion of a reference to “public life” in the definition of discrimination set out in art. 1.1 has caused some uncertainties as regards the application of the ICERD in private relationships. Due to these uncertainties, CERD addressed the question in its General Recommendation No. 20. According to para. 4 of this Recommendation: “To the extent that private institutions influence the exercise of rights or the availability of opportunities, the state party must ensure that the result has neither the purpose nor effect of creating or perpetuat-ing racial discrimination.” For the public and private reach of the ICERD, see also Marks and Clapham (2005), p. 301, and Boyle and Baldaccini (2001) pp. 159–160.

541. Art. 2.1 refers to states parties’ undertakings to eliminate racial discrimination in all its forms and to promote understanding among all races. Art. 4 refers to taking positive meas-ures designed to eradicate all incitement to, or acts of, racial discrimination. It is worthy of note that art. 1.4 on special measures does not contain positive obligations, and art. 2.2 on special and concrete measures leaves their application to the states’ discretion.

542. Art. 7. The issue of education has been pointed out as a neglected dimension of the applica-tion of the ICERD. Boyle and Baldaccini (2001), p. 190.

543. See art. 1.1. CERD has clarified the concept of “racial discrimination” in its General Rec-ommendations No. 8, 14 and 24. Such General RecRec-ommendations as No. 29 on descent-based discrimination and No. 30 on discrimination against non-citizens have also clarified the concept. For the ICERD addressing both direct and indirect discrimination, see Banton (1996), p. 66. See also the remarks on various definitions of discrimination infra in chapter 2.3.1.1.

544. Preambular paras 6 and 10.

545. See also CERD’s General Recommendations on art. 4, i.e. Recommendations No. 1, 7 and 15.

and colour racism, and whilst this focus on colour has persisted, it has been pointed out that the more recent application of the ICERD captures both subjective and socio-economic variables of racial discrimination and racism. This focus is reflected in the monitoring work of CERD, which has expanded over the years beyond dis-crimination on grounds of colour to include the full range of victims of discrimina-tion, including ethnic minorities, immigrants and indigenous peoples.⁵⁴⁶ Although the ICERD is not a minority-specific instrument, it is of particular significance for minorities as well as other groups that fall within the Convention’s scope of appli-cation. In its practice, CERD has paid attention to a variety of groups, including national or ethnic groups, the Roma, indigenous peoples, refugees, asylum-seekers, (im)migrants, displaced persons, and non-citizens (including non-citizen workers and their family members).⁵⁴⁷

The application of the ICERD with respect to non-citizens used to cause a considerable amount of confusion and even disagreement due to the stipulation in the Convention stating that the ICERD did not apply to distinctions, exclusions, restrictions or preferences between citizens and non-citizens.⁵⁴⁸ Pursuant to this provision, many states parties – especially earlier – submitted no information on the situation of non-citizens in the country, which prompted CERD to address the question in its General Recommendations. In its General Recommendation No. 30 pertaining to non-citizens,⁵⁴⁹ CERD notes that non-nationals – particularly mi-grants, refugees and asylum-seekers – are often victims of contemporary racism.

CERD also refers to undocumented non-citizens and persons who cannot estab-lish the nationality of the state in whose territory they live.⁵⁵⁰ Additionally, CERD points out that although such rights as the right to participate in elections, to vote and to stand for election, may be confined to citizens, the starting point of human rights is that they belong to all persons.⁵⁵¹ CERD draws attention to access to citi-zenship and naturalisation, and calls for the states parties to ensure that particular groups of non-citizens are not discriminated against with regard to human rights and to pay due attention to possible barriers to naturalisation that may exist for long-term or permanent residents.⁵⁵² CERD also raises the importance of removing

546. Boyle and Baldaccini (2001), pp. 152, 158 and 191.

547. See CERD’s General Recommendation No. 24 on art. 1, paras 1–3, and the General Rec-ommendations specifically addressing the situations of various groups. See also Banton (2000), pp. 56, 58–60 and 75–76, and van Boven (2001), pp. 115–122.

548. Art. 1.2. For controversies caused by this provision, see e.g. Boyle and Baldaccini (2001), pp. 154–156.

549. General Recommendation No. 30 on discrimination against non-citizens also replaces the earlier General Recommendation on non-citizens from the year 1993. See para. 39.

550. Ibid., preambular paras 3 and 4.

551. Ibid., para. 3.

552. Ibid., paras 13–17. Art. 2.3 of the ICERD notes that nothing in the Convention may be in-terpreted as affecting in any way the legal provisions of the states parties concerning

nation-obstacles that prevent the enjoyment of economic, social and cultural rights by non-citizens particularly in the areas of education, housing, employment and health.⁵⁵³

Regarding the scope of application of the ICERD, particular attention should be paid to the absence of religion and belief in the list of grounds of discrimina-tion set out in article 1.⁵⁵⁴ In fact, religion and belief were discussed during the drafting process of the ICERD, but were separated from the process⁵⁵⁵ and sub-sequently considered in a declaration adopted by the UNGA in 1981.⁵⁵⁶ Following the elimination of the grounds of religion and belief from the ICERD, these as-pects are considered within the context of the Convention only when linked to the grounds enumerated in article 1.⁵⁵⁷ CERD’s General Recommendation No. 25 on gender-related dimensions of racial discrimination merits specific mention as it is an important step forward in acknowledging that racism and racial discrimination do sometimes affect men and women differently.⁵⁵⁸

ality, citizenship or naturalization, but that such provisions should not discriminate against any particular nationality.

553. According to CERD, public educational institutions should be open to non-citizens and children of undocumented immigrants residing in the territory of a state party. CERD calls for the avoidance of segregated schooling and segregation in housing and for effectively tackling problems commonly faced by non-citizen workers, in particular by non-citizen do-mestic workers. It also highlights the entitlement of all individuals, including those without a work permit, to the enjoyment of labour and employment rights. Furthermore, CERD re-fers to cultural identity and the preservation and development of the culture of non-citizens.

General Recommendation No. 30, paras 29–38.

554. Compare particularly to the practice of ECRI. See the remarks infra in chapter 4.2.1. Al-though language has not been specifically stipulated among the grounds of discrimination in the ICERD, CERD has considered it. See e.g. the references to the right to the preser-vation and practice of indigenous languages in CERD’s General Recommendation No. 23 on the rights of indigenous peoples, para. 4(e). In its General Recommendation No. 21 on the right to self-determination CERD refers to persons belonging to ethnic or linguistic groups. See para. 5.

555. The opposition to an instrument on racial discrimination including the issues of religion and belief came e.g. from the Arab delegations, and the Soviet and Eastern European states.

Arab countries were concerned about the inclusion of anti-Semitism which might be read as a recognition of the state of Israel. The Soviet Union for its own reasons was not prepared to have religious discrimination included but did want to focus on race. Acrimonious contro-versy over the question of anti-Semitism as constituting racial as well as religious prejudice resurfaced in the Third Committee of the UNGA during the drafting of the ICERD. Boyle and Baldaccini (2001), p. 148. See also Lerner (1991), p. 46.

556. See the remarks on the declaration adopted infra in chapter 2.2.1.1.2. See also Banton (1996), pp. 54–55.

557. This is also clearly seen in the practice of CERD. See e.g. CERD’s concluding observations with respect to Iran (2003), para. 14, and with respect to the United Kingdom of Great Britain and Northern Ireland (2003), para. 20.

558. CERD has also paid express attention to the issue of multiple discrimination faced e.g.

by citizens. See e.g. General Recommendation No. 30 on discrimination against citizens, para. 8.

The ICERD may be said to advance human inclusiveness, which is a charac-teristic of the international human rights approach in general.⁵⁵⁹ From the view-point of the issue of incorporation in(to) society, the explicit aims of the ICERD – to eliminate the practices of segregation, separation (including the phenomenon of apartheid) and discrimination – are of particular importance. The text of the ICERD even includes an explicit reference to integration in connection with states’

undertaking to encourage various means, including integrationist multiracial or-ganisations and movements to eliminate barriers between races,⁵⁶⁰ and to discour-age anything that might strengthen racial divisions.⁵⁶¹ CERD has also highlighted aspects of relevance for integration, inclusion and the like in the course of its work.

Recently, it has affirmed the importance of recognition by governments of the con-crete rights of ethnic or linguistic groups to preserve their identity.⁵⁶²

2.2.1.1.2

The UN Declaration on Religion and Belief and the Vienna Document

As noted, separating discrimination on the basis of religion or belief from the draft-ing process of the ICERD resulted in measures to address these issues separately;

the outcome was the adoption of the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief (the UN Declaration on Religion and Belief) by the UNGA in 1981. The Declaration emphasises the con-nection between (international) peace and infringement of the rights and freedoms addressed in the instrument,⁵⁶³ and calls for understanding, tolerance and respect in matters relating to freedom of religion and belief.⁵⁶⁴ It sets out the right of everyone to freedom of thought, conscience and religion⁵⁶⁵ and the prohibition of discrimi-nation on the grounds of religion or other belief.⁵⁶⁶ The instrument also deals with the right of the parents (or other legal guardians) of a child to organise life within the family in accordance with their religion or belief, and the right of every child to have access to education in the matter of religion or belief in accordance with the

559. See also Boyle and Baldaccini (2001), p. 138. See also the remarks infra in chapter 2.3.1.

560. See the remarks on the concept of “race” supra (n. 537).

561. Art. 2.1(e).

562. It has been pointed out that these remarks by CERD are linked to the development of ethnic identity questions e.g. in the context of minority norms. Boyle and Baldaccini (2001), p. 158.

563. Preambular paras 3 and 6.

564. Preambular para. 5.

565. Art. 1. Art. 6 specifies the freedoms covered by the right to freedom of thought, conscience, religion or belief.

566. Art. 2.1. Art. 2.2 provides a definition of the expression “intolerance and discrimination based on religion or belief”.

wishes of the child’s parents (or other legal guardians).⁵⁶⁷ The Declaration calls for consistency with the UDHR and the International Covenants of Human Rights.⁵⁶⁸

The Vienna Document of the 1993 World Conference on Human Rights states that the speedy and comprehensive elimination of all forms of racial discrimination, racism and other forms of intolerance⁵⁶⁹ is a priority task for the international community and consequently calls for effective governmental measures to prevent and combat these phenomena.⁵⁷⁰ The importance of human rights education and the role of edu-cation in general in promoting understanding, tolerance, peace and friendly rela-tions between narela-tions and all racial or religious groups are also noted.⁵⁷¹ The Vienna Document addresses separately tolerance between migrant workers and the rest of the society,⁵⁷² and highlights the significance of the ICERD and its individual communication procedure.⁵⁷³ Governments are also called upon to take measures to counter intolerance and related violence based on religion or belief, and reference is made to the importance of the UN Declaration on Religion and Belief in recogni-tion of the right of every individual to freedom of thought, conscience, expression and religion.⁵⁷⁴ Genocide and ethnic cleansing are also mentioned.⁵⁷⁵ While the Vi-enna Document does not expressly refer to the issue of integration in the provisions addressing racial discrimination, racism and other forms of intolerance, it draws attention to the forms of exclusion resulting from these phenomena.⁵⁷⁶

567. Art. 5. This provision also highlights the bringing up of children in a spirit of understand-ing, tolerance and friendship among peoples.

568. Art. 8.

569. The Document employs the expression “all forms of racism and racial discrimination, xeno-phobia and related intolerance”. See the remarks on the use of terms in this research supra in chapter 1.3.

570. Part I, para. 15. Racial discrimination, racism, apartheid, xenophobia, religious intolerance, etc. are mentioned as serious obstacles to the full enjoyment of all human rights in different parts of the world. Part I, para. 30. See also Part II, section B.1. UN organs and agencies were urged to strengthen their efforts in the area, and all governments were urged to take

570. Part I, para. 15. Racial discrimination, racism, apartheid, xenophobia, religious intolerance, etc. are mentioned as serious obstacles to the full enjoyment of all human rights in different parts of the world. Part I, para. 30. See also Part II, section B.1. UN organs and agencies were urged to strengthen their efforts in the area, and all governments were urged to take

In document Creating an integrated society and recognising differences : the role and limits of human rights, with special reference to Europe (sivua 122-142)