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HRDC-ISHR-SAHRDC 1 August 2000 WCAR THINK PAPERS * A joint project of Human Rights Documentation Center (HRDC), International Service for Human Rights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC) WCAR THINK PAPER I THE WORLD CONFERENCE AGAINST RACISM -- A CONFERENCE ON RACISM WORLDWIDE? 1. The Backdrop From 31 August to 7 September 2001, the international community will gather in South Africa for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR). Before then, expert meetings and preparatory committees will be held in the various regions to begin some of the important discussions in advance of the conference. Like the first and second World Conferences Against Racism (1978 and 1983), the final objective of all these efforts is the adoption of a Declaration and Programme of Action -- a highly important development for international standard-setting procedures. At first blush, the topic of racial discrimination may appear limited. The WCAR, however, is meant to cover a wide range of issues including ethnic conflict, immigration and refugees, indigenous peoples, “double discrimination” against women, trafficking and prostitution and regulation of the Internet. When the General Assembly decided to convene the WCAR, it announced that “the world conference will be action-oriented and focus on practical measures to eradicate racism.” 1 The extent to which that promise becomes reality may depend on the level and nature of participation of nongovernmental organizations (NGOs). Without concerted and informed interventions by NGO representatives of the various regions, the conference may simply become an exercise in rhetoric and political gamesmanship between various States. In line with that perspective, this first Think Paper highlights the importance of having the WCAR focus sufficient attention on racism in all parts of the world, the political difficulties in making that happen, and the need for meaningful and diverse representation of NGOs to help ensure that it does. There is a serious concern that, as things stand, the World Conference Against Racism will not focus on racism worldwide. The scourge of racial discrimination is certainly not confined or concentrated in any one part of the world. Aided by the processes of globalisation, the contemporary international system is now characterized by economic centres of power within nations. In countries around the world, these industrialised centres attract trafficking of women, cheap labour and illegal workers. Individuals within these groups suffer not only exploitation, but also become the victims of racist and xenophobic resentment by nationals, long-term residents and those benefited from past privileges n the economy. Those conditions exist in Bangkok, Bombay, Johannesburg, Riyadh and Brasilia, as well as Berlin, Paris and New York. In addition to these economic realities, complex cultural and political histories give rise to the worst forms of racial * The Think Papers series is available at <www.hrdc.net>. 1 A/RES/52/111 (12 December 1997).

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HRDC-ISHR-SAHRDC 1

August 2000

WCAR THINK PAPERS*

A joint project of Human Rights Documentation Center (HRDC), International Service forHuman Rights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR THINK PAPER I

THE WORLD CONFERENCE AGAINST RACISM -- A CONFERENCE ON RACISM WORLDWIDE?

1. The Backdrop

From 31 August to 7 September 2001, the international community will gather in SouthAfrica for the World Conference Against Racism, Racial Discrimination, Xenophobia andRelated Intolerance (WCAR). Before then, expert meetings and preparatory committees will beheld in the various regions to begin some of the important discussions in advance of theconference. Like the first and second World Conferences Against Racism (1978 and 1983), thefinal objective of all these efforts is the adoption of a Declaration and Programme of Action -- ahighly important development for international standard-setting procedures. At first blush, thetopic of racial discrimination may appear limited. The WCAR, however, is meant to cover awide range of issues including ethnic conflict, immigration and refugees, indigenous peoples,“double discrimination” against women, trafficking and prostitution and regulation of theInternet.

When the General Assembly decided to convene the WCAR, it announced that “theworld conference will be action-oriented and focus on practical measures to eradicate racism.”1The extent to which that promise becomes reality may depend on the level and nature ofparticipation of nongovernmental organizations (NGOs). Without concerted and informedinterventions by NGO representatives of the various regions, the conference may simply becomean exercise in rhetoric and political gamesmanship between various States.

In line with that perspective, this first Think Paper highlights the importance of havingthe WCAR focus sufficient attention on racism in all parts of the world, the political difficultiesin making that happen, and the need for meaningful and diverse representation of NGOs to helpensure that it does. There is a serious concern that, as things stand, the World ConferenceAgainst Racism will not focus on racism worldwide.

The scourge of racial discrimination is certainly not confined or concentrated in any onepart of the world. Aided by the processes of globalisation, the contemporary internationalsystem is now characterized by economic centres of power within nations. In countries aroundthe world, these industrialised centres attract trafficking of women, cheap labour and illegalworkers. Individuals within these groups suffer not only exploitation, but also become thevictims of racist and xenophobic resentment by nationals, long-term residents and thosebenefited from past privileges n the economy. Those conditions exist in Bangkok, Bombay,Johannesburg, Riyadh and Brasilia, as well as Berlin, Paris and New York. In addition to theseeconomic realities, complex cultural and political histories give rise to the worst forms of racial * The Think Papers series is available at <www.hrdc.net>.1 A/RES/52/111 (12 December 1997).

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discrimination such as the racist coup in Fiji this year, the Chinese occupation of Tibet,increasing violence against Jews in Russia, mass rapes of Chinese women in Indonesia duringthe 1998 riots, systematic and severe discrimination against the Roma in Europe and policeabuses against African American males in the United States on a continuing basis. Efforts toaddress these problems, and others like them, can only be helped by having a productive andwell balanced WCAR.

2. Attention to the local first

States should be encouraged to inform the conference of their internal problems involvingracial discrimination and the efforts still required to address the issue. Oral and writtenstatements by governmental delegations should begin at the local level: assessing the existenceand manifestations of racial discrimination within their own country. By creating an atmospherein which all States acknowledge shared difficulties in combating racism, the conference wouldbe able to attend to the problems that exist in both Western and Non-western countries. Forexample, if Western or developing countries are compelled to follow a practice of firstacknowledging problems in their own backyard, they will likely adopt a more realistic andconstructive manner in discussing their concerns of racism in other parts of the world. The sameis true for Non-western or developing countries. Of course, Government delegates can beexpected to be less than forthcoming when discussing their own failings. However, where theyprovide misinformation, they make themselves vulnerable to criticism. Also, at least beginningthe discussion with some aspects of the local situation can lend itself to a more productiveconference. If States recognize that by being more candid about their own problems they willinduce others to do the same, the fight against racism might begin with a common understandingthat racism affects all of us, and cooperative efforts to eliminate it are to the benefit of everyone.

In this regard, perhaps a distinction should be made between rhetorical and politicalpolarisation. To some extent, the latter is inevitable and not easily eradicated. Long-standinghistories of exploitation and antagonism exist, such that sentimental and strategic associations ofpeople and countries will exist along geopolitical lines. However, efforts can be made to reformthe rhetoric used in these forums. Generalities and political bashing are counterproductive to theend of goal of developing a program of action that responsibly tackles concrete issues of racialdiscrimination. Criticisms of abuses against migrant workers, for example, should not only focuson conditions in Western Europe but should also candidly assess similar forms of treatment ofSoutheast Asian migrants working in the Gulf States. The regional PrepComs and expertmeetings offer an opportunity to begin some of that difficult but important dialogue.

3. Excessive focus on Western industrialised countries

In short, the issue which may most significantly affect the nature and outcome of theWCAR is whether the conference focuses excessively on racial discrimination in Westerneconomically developed countries (e.g., Western Europe and the Unites States of America). Ofcourse, the pervasiveness of racial discrimination in both the domestic sphere and the foreignpolicy of Western States deserves significant attention. The notion of white supremacy hasmanifested itself not only in the emergence of neo-Nazi organisations in these countries, but alsomore subtly in the official treatment of immigrants and refugees of colour, the scaling back ofaffirmative action, police violence against racial minorities and the continued denial of theenduring effects of African colonialism and slavery. The problem, however, is whether theWCAR will concentrate excessively on those issues to the detriment of addressing other pressingissues of racism in other parts of the world.

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If the conference becomes politically polarized against the West or developing countriesrather than industrialised centres, it may result in a significant setback for the fight againstracism. The international effort to combat racial discrimination, if it is going to succeed, willrequire a significant amount of genuine self-reflection by all governments. Turning the WCARinto a geopolitical dispute will undermine any effort in that direction.

At present, two factors make the prospects of such an unfavourable outcome likely. First,the conference is seen by many as an opportunity for Non-western States to take up a humanrights issue that has historically been targeted against the West (in part, for good reason). Manyexpect Non-western States to use their numerical superiority – as they do in forums such as theCommission on Human Rights -- to push through a political agenda that is concerned more withcombating Western States than it is with genuinely addressing all forms of racial discriminationin all areas of the world.

The second factor that may lead the conference to have a lopsided focus on Westernindustrialised States relates to the representation of NGOs from the regions. National-levelNGOs which focus exclusively on issues in their own country will comprise a significantpercentage of the participants at the conference, and, within this group of NGOs, those fromWestern Europe and the United States are likely to maintain a disproportionately large presence.These organizations generally have greater resources at their disposal than do their counterpartsin other regions and often more experience with and connections to the international press. Theirability to direct the focus of the conference may be to the detriment of NGOs from, and the causeof racial justice in, Non-western and developing countries. Indeed, governments of Non-westernand developing countries will be all too happy to support the efforts of these NGOs in order toescape scrutiny of their own practices.

One of the ways to help resolve these problems is to ensure that NGO participationis representative of the regions and that racial issues within all countries are subject to fairand equal consideration. The “run-up” to the WCAR will be a crucial period in which some ofthese priorities will be set. National-level NGOs, especially those in the South, should beencouraged to participate actively in the regional meetings preceding the conference. TheseNGOs should encourage governments from the region not to focus the agenda only on “others’problems” or excessively on racism in the West, but, instead, to confront racial discriminationissues at home and in all parts of the world.

One unifying principle that NGOs and sympathetic States may wish to reference in theiroral and written interventions is the statement that “racial discrimination exists in all societies.”Acceptance of this principle means that no State should escape scrutiny in the effort to combatracial discrimination and that governments and NGOs should not be geographically selective intheir criticisms of State practices. The official U.N. background document for the conferencerefers to this principle as one of the common understandings resulting from the Second WorldConference Against Racism. Several reports and statements by UN officials relating to the ThirdWorld Conference Against Racism include similar reminders. NGOs should insist that theWCAR not retrench on such a critical principle in the international effort to combat racialdiscrimination in a genuine and constructive manner.

4. Forgotten issues

In a separate publication, The World Conference on Racism: A case of the pot calling thekettle black, SAHRDC and HRDC briefly surveyed some of the problems of racialdiscrimination that exist in other regions of the world with a focus on the Asia Pacific

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(www.hri.ca/partners/sahrdc/hrfeatures/HRF20.htm). These problems -- such as de jurediscrimination against Koreans in Japan and against Chinese in Indonesia; widespreadsentiments of racial supremacy among the Chinese Han majority with regard to minorities suchas Tibetans, Uighurs, Mongolians and others; the disaster of Indonesia and Bangladesh’stransmigration policies for indigenous populations; the deaths of migrant workers in Malaysiandetention centres -- are generally disregarded by the offending State when it tries to point thepolitical finger at other countries. These are, therefore, the types of issues which may be lost in aWCAR that gives unbalanced attention to one geographic or geopolitical area of the world to theneglect of others.

One indicator of some of the world’s problems of racial discrimination is the Committeeon the Elimination of Racial Discrimination’s (CERD) concluding observations on StatesParties’ periodic reports. CERD’s conclusions are only a piece of the puzzle. However, they doindicate aspects of racial discrimination that can show how close or how far the internationalcommunity is from achieving a substantial reduction in racism worldwide.

For example, CERD has emphasized the fact that some States are yet to enact lawsexplicitly prohibiting racial discrimination. In evaluating Costa Rica, with a hint ofexasperation, CERD noted: “the Committee is preoccupied that the legislation of Costa Ricadoes not contain explicit norms forbidding discrimination on the grounds of national or ethnicorigin.”2 In Libya as well, despite the Government’s being party to ICERD, “[t]here is nospecific legislation to prohibit racial discrimination.”3 And, in reviewing the Czech Republic,CERD stated that, especially in light of “discrimination against Roma in areas such as housing,transport and employment, it is noted with concern that the State party does not have civil oradministrative law provisions expressly outlawing discrimination in employment, education,housing and health care and that there exists no administrative regulation explicitly prohibitingracial discrimination by public institutions and agencies.”4 Though arguably not to the samedegree, Switzerland, too, has been criticised by CERD for its “lack of comprehensive legislationto combat discrimination based on race, colour, descent, or national or ethnic origin.”5 And, inreviewing the United Kingdom’s report, CERD was highly critical of the fact that “specificlegislation against racial discrimination is not yet available in all the Dependent Territories andCrown Dependencies, and that in some cases such legislation should be deemed unnecessary bythe relevant authorities on the ground of the alleged non-existence of racial discrimination in theterritories.”6

Notably, CERD has been frustrated by a number of Governments which refuse toacknowledge racial discrimination even exists in their country, in some cases by denying theexistence of racial minorities. CERD was dismayed that Libya, for example, “maintain[ed]categorically that there is no racial discrimination” in the country. The Committee also noted:“The declaration by the State party that there are no ethnic minorities in its territory does not takeinto account the existence, in particular, of Berbers, Tuaregs, black Africans and the like, whoare reported to experience acts of discrimination because of their ethnic origin.”7 India recentlytried to assert that caste does not constitute a racial category under the Convention, but it wasfirmly rebuked by the Committee.8 Similarly, CERD noted in reviewing Mexico’s periodic 2 CERD/C/55/CRP.1/Add.3, para. 166.3 A/53/18, para. 242.4 A/53/18, para 122.5 A/53/18, para. 56.6 CERD/C/304/Add.20, para. 19.7 A/53/18, paras. 242, 246.8 CERD/C/304/Add.13, para. 14.

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report: “Particular concern is expressed that the State party does not seem to perceive thatpervasive discrimination being suffered by the 56 indigenous groups living in Mexico falls underthe definition given to racial discrimination in article 1 of the Convention.”9

The denial of official recognition of racial minorities also results in the lack of protectivelegislation for these groups. So, for example, CERD criticized Hungary for the fact that“according to [Act on the Rights of National and Ethnic Minorities of 1993], for an ethnic groupto be recognized as a minority, it must have lived on Hungarian soil for at least a century; thisseems to be very restrictive.”10 In evaluating Pakistan’s report, CERD expressed its concernthat “the policy of the State party to recognize only religious minorities excludes ethnic,linguistic or racial groups living in the country from any specific protection under theConvention that would derive from their official recognition as minorities.”11

In a number of States, very few cases of racial discrimination – and sometimes none --are ever filed before courts or administrative bodies, which CERD has identified as a problem ofaccess to the legal system. For example, in reviewing Panama’s periodic report, CERD “notedwith concern that no complaints have been filed with the appropriate governmental bodies byindividuals or groups during the last 10 years, despite reports that rights covered by theConvention were not fully respected.”12 Similarly, in the case of Costa Rica, CERD stated that“few cases of racial discrimination have reached the courts or administrative bodies, theCommittee is concerned about the effective access to protection and remedies against any acts ofracial discrimination of, in particular, the indigenous population, the black minority, refugees andimmigrants.”13 CERD has recommended that the Government of South Korea commitresources to provide genuine access to the legal system, given that “no cases of racialdiscrimination have reached the courts or the administrative bodies.”14

Although police brutality and other forms of harassment against racial minorities isprobably not a “forgotten issue,” perhaps the scope of the problem is. The list of States whichhave received strong criticism by CERD due to police abuses against racial minorities includes:Armenia (“[C]oncern is expressed at the reported cases of torture and other cruel or degradingtreatment on the part of police and investigating officers.”);15 Austria (“Concern is expressedabout reports of serious incidents of police brutality in dealing with persons of foreign origin andethnic minorities, including the Roma.”);16 Czech Republic (“Taking into account reports ofcases of harassment and of excessive use of force by the police against minorities, especiallyagainst members of the Roma community, concern is raised that there may be insufficienttraining provided to law enforcement officials regarding the provisions of the Convention.”);17

Denmark (“Danish police have treated persons with a non-Danish background in anunacceptable manner.”);18 Germany (“Concern is expressed at instances of police brutalityagainst foreigners, particularly Africans and Turks, which have been reported in the press. Bettertraining and stricter disciplinary action against the perpetrators appear to be necessary.”);19

Hungary (“Alarm is also expressed at apparent harassment and use of excessive force by the 9 A/50/18, para. 382.10 A/51/18, para. 120.11 A/52/18, para. 187.12 A/53/18, para. 335.13 CERD/C/55/CRP.1/Add.3, para 171.14 CERD/C/55/CRP.1/Add.3, para. 39.15 A/53/18, para. 124.16 A/54/18, para. 35.17 A/53/18, para. 120.18 A/51/18, para. 71.19 A/53/18, para 166.

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police against Gypsies and foreigners.”);20 Italy (“In connection with reports of acts of violenceand ill-treatment by police and prison guards against foreigners and members of minorities indetention, concern was also expressed about the apparent lack of appropriate training for lawenforcement officials and other public officials regarding the provisions of the Convention.”);21

Spain (“It is noted with serious concern that evidence of racist attitudes on the part of membersof the police and the Civil Guard seems to be increasing, and that the number of convictionsresulting from such incidents does not seem to increase proportionately.”);22 Switzerland(“Concern is also expressed about serious incidents of police brutality in dealings with persons offoreign ethnic or national origin.”);23 Ukraine (“[C]oncern is expressed about reports ofmistreatment by the police of members of the Roma population, especially those living in theTranscarpathian region.”);24 and the United Kingdom (“[A]mong the victims of death incustody are a disproportionate number of members of minority groups, that police brutalityappears to affect members of minority groups disproportionately, that allegations of policebrutality and harassment are reportedly not vigorously investigated and perpetrators, once guilt isestablished, not appropriately punished.”).25

The gross mistreatment of Native Americans in North America is well-known, butSouth America has similar problems. In reviewing Peru’s periodic report, CERD noted, as aprincipal subject of concern, “allegations of forced sterilization of women belonging toindigenous communities.”26 As for Guatemala, CERD noted with concern that “a climate ofviolence and intimidation still exists in the State party and that the detrimental effects of thatclimate are mostly borne by the indigenous population.”27

Racial discrimination in the official policies of immigrant-receiving States has also beenhighlighted by CERD. For example, CERD challenged Austria’s “Aliens Act of 1997, [which]classified foreigners on the basis of their national origin” in a potentially “stigmatizing anddiscriminatory” manner. In slightly stronger language, CERD also censured Switzerland for its“so-called three-circle-model immigration policy, which classifies foreigners on the basis of theirnational origin. The Committee considers the conception and effect of this policy to bestigmatizing and discriminatory, and therefore contrary to the principles and provisions of theConvention.”28

The problem of citizenship by sanguinity has also been a subject of concern in CERD’sevaluations of a number of hold-out States on this issue. Critical of Cambodia, CERD noted thatunder the government’s 1996 Law of Nationality, “Khmer nationals are those one of whoseparents is a Khmer national, makes it difficult for persons belonging to minority groups, inparticular ethnic Vietnamese and indigenous people, to establish their citizenship.”29 Similarly,CERD criticized the Government of the Syrian Arab Republic for maintaining laws in whichSyrian-born Kurds are considered either as foreigners or as “maktoumeen” (unregistered) andthus deprived of any nationality.30

20 A/51/18, para. 117.21 A/54/18, para. 12822 A/51/18, para. 205.23 A/53/18, para. 57.24 A/53/18, para. 148.25 A/51/18, para. 232.26 CERD/C/55/CRP.1/Add.3, para. 131.27 A/52/18, para. 18.28 A/53/18, para. 57.29 A/53/18, para. 290.30 CERD/C/55/CRP.1/Add.3, para. 152.

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All of these statements by CERD show only a tip of the racism problem. CERD ishampered by the unwillingness of States to report damaging information about themselves,assuming they report anything at all. The lack of representatives of national-level NGOs in theprocess also significantly diminishes CERD’s ability to critically evaluate State conditions.Furthermore, the absence of institutional support for CERD to have a more proactive role meansthe Committee will always lack reliable information necessary for it to render strongerobservations and conclusions. Still, CERD’s experience demonstrates that the problem of racismis not only in the United States and West Europe, but worldwide. The question is whether theWCAR will be used to address the full scope of the problem or to deny it.

September 2000

WCAR THINK PAPERS*

A joint project of Human Rights Documentation Center (HRDC), International Service forHuman Rights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR THINK PAPER II

REGULATION OF RACISM ON THE INTERNET: THE EXISTING DEBATE ON FREEDOM OF SPEECHAND THE MISSING DEBATE ON THE WORK OF HUMAN RIGHTS DEFENDERS

One of the major issues at the World Conference Against Racism (WCAR) will be theregulation of hate speech and racist propaganda on the Internet. The subject of racism on theInternet has been a growing concern within UN standard-setting procedures, as reflected inUnited Nations-sponsored expert seminars, resolutions by the Commission of Human Rights andactivities of the Office of the High Commissioner for Human Rights. Accordingly, the officialU.N. background paper for the WCAR promises that “the World Conference will focus attentionon the misuse of the new technologies, in particular the Internet.”31

The issue of Internet regulation will prove to be highly contentious because of aparticular set of competing concerns: the rights to freedom of opinion, expression, assembly andassociation. The political alignment of States on this issue may best be predicted, or anticipated,by analysing their official positions with regard to Article 4 of the International Convention onthe Elimination of All Forms of Racial Discrimination (ICERD).

Under Article 4 of ICERD, States Parties are obligated to punish “all dissemination ofideas based on racial superiority or hatred, incitement to racial discrimination, as well as all actsof violence or incitement to such acts against any race or group of persons of another colour orethnic origin.” (See Box below). However, several States Parties have entered reservations anddeclarations regarding Article 4. In fact, compared with all other articles of ICERD, Article 4

* The Think Papers series is available at <www.hrdc.net>.31 Office of the High Commissioner for Human Rights, www.un.org/rights/racism/facts1.htm.

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has received the second highest number of reservations and declarations.32 As of 12January 1999, 18 of the 153 States Parties had entered reservations or declarations to Article 4.33

Article 4International Convention on the Elimination of All Forms of Racial Discrimination

States Parties condemn all propaganda and all organizations which are based on ideas or theoriesof superiority of one race or group of persons of one colour or ethnic origin, or which attempt tojustify or promote racial hatred and discrimination in any form, and undertake to adoptimmediate and positive measures designed to eradicate all incitement to, or acts of, suchdiscrimination and, to this end, with due regard to the principles embodied in the UniversalDeclaration of Human Rights and the rights expressly set forth in article 5 of this Convention,inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racialsuperiority or hatred, incitement to racial discrimination, as well as all acts of violence orincitement to such acts against any race or group of persons of another colour or ethnic origin,and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all otherpropaganda activities, which promote and incite racial discrimination, and shall recognizeparticipation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote orincite racial discrimination.

Based on an examination of the pattern of reservations and declarations to Article 4,members of the Western Europe and Others Group can be expected to provide some of thestrongest opposition to regulating racial discrimination on the Internet. A number of Stateswithin this Group (Austria, Belgium, France, Italy, Malta, Monaco, Switzerland and theUnited Kingdom) have submitted declarations, or statements of interpretation, which attempt tolimit their obligations under Article 4. These declarations contend that the “due regard” clauseof Article 4 means that a government’s ability to pass legislation pursuant to Article 4 is limited,because such actions must not unduly burden the rights to freedom of opinion, expression,assembly and association.

Despite the almost uniform language in these declarations, the above States will likelyvary in the degree to which they are willing to oppose regulations on racist speech at the WCAR.France and Italy, for example, subsequent to making their reservations and declarations to

32 Article 22 (concerning the settlement of disputes) has received the highest number of reservations anddeclarations.33 The United Nations Seminar to Assess the Implementation of the ICERD, held on 9-13 September 1996, producedespecially informative background papers concerning obligations and reservations under Article 4. See, e.g., LusiValencia Rodriguez (Member of CERD), Implementation of Articles 4 and 6 of ICERD Limits and Perspectives,HR/GENEVA/1996/SEM.1/BP.2; Vera Gowlland-Debbas (Professor Graduate Institute of International Studies,Geneva), Effects of Reservations to Article 4 of ICERD on the Fight Against Racism and Racial Discrimination,HR/GENEVA/1996/SEM.1/BP.4. See also CERD/C/60/Rev.3 (12 Feb. 1999).

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Article 4, enacted legislation banning racist speech and racist organisations.34 In 1995, theGovernment of Italy even indicated it was considering formally withdrawing its reservation inlight of its changed appreciation of the issue,35 though it has yet to take such action.36 Thesedevelopments indicate that the alignment of States on the issue is fluid and possibly subject tomanipulation at the WCAR.

Australia, also a member of the Western Europe and Others Group, has adopted amiddle, though somewhat ambiguous, position. The Government of Australia entered adeclaration regarding Article 4, which states that “Australia is not at present in a positionspecifically to treat as offences all the matters covered by article 4 (a) . . . It is the intention of theAustralian Government, at the first suitable moment, to seek from Parliament legislationspecifically implementing the terms of article 4(a).” In its States Parties Report to CERD in1999, the Government of Australia explained that it had recently introduced civil penalties inaccordance with Article 4, but, the Government also stated that because Article 4 envisionscriminal sanctions, “[t]he Government . . . is not in a position to remove the reservation.”37

The United States of America, probably the most politically powerful member of theWestern Europe and Others Group, can be expected to adopt the most oppositional stance toInternet regulation, as reflected in its almost wholesale reservation to Article 4. The UnitedStates reservation states that the U.S. Constitution guarantees extensive protections for the rightsto freedom of speech, expression and association and that the Government of the United States,therefore, “does not accept any obligation under this Convention, in particular under articles 4and 7, to restrict those rights . . . to the extent that they are protected by the Constitution and lawsof the United States.” Notably in line with this view, the U.S. Supreme Court recently struckdown an attempt to regulate pornography on the Internet holding that the regulation violated theFirst Amendment.38 According to these indications, the United States should be expected to digin its heels at the WCAR when the issue of Internet regulation is discussed and will likely try tomarshal others to support its position.

The opposition of the Western Europe and Others Group to regulation of the Internet willlikely be joined by those States in other regions which have also submitted reservations ordeclarations to Article 4. The list of these States, however, is short: Fiji, Japan, Nepal, PapuaNew Guinea and Tonga (Asia Group); Antigua and Barbuda, Bahamas and Barbados (LatinAmerica Group).39 No State within the Africa Group or the Eastern Europe Group hasentered a reservation or declaration to Article 4.

34 See, e.g., CERD/C/SR.1077, para. 11, 08/03/95 (Summary Record paraphrasing Country Rapporteur commentthat “the Government of Italy was to be congratulated on its recent legislative reforms, which went a long waytowards removing the need for Italy's reservation to article 4 of the Convention”); Gowlland-Debbas, supra at pp.29-31.35 CERD/C/SR.1077, para. 11, 08/03/95 (Summary Record).36 CERD/C/SR.1316, para. 16, 04/05/99 (Summary Record).37 CERD/C/335/Add.2, para. 416.38 Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329 (1997). It is worth noting, however, thatthe U.S. Congress’s decision to pass such legislation indicates some willingness in U.S. political circles to regulateoffensive material on the Internet.39 Nepal’s declaration is unique because it makes reference to the Universal Declaration of Human Rights (UDHR),but does not specifically mention the freedoms of opinion, expression, assembly or association. The declarations ofAntigua and Barbuda and Barbados are also different in kind. Neither State’s declaration references the UDHR orlimitations of freedom of opinion, expression, etc. Both States just submit that, under their interpretation, Article 4requires a party to enact measures “only where it is considered that the need arises to enact such legislation.”

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Finally, it is important to note, more as a legal rather than a political matter, that theCommittee on the Elimination of Racial Discrimination has issued an official interpretation ofArticle 4, which runs counter to the sentiment expressed by those States opposing regulation. Inits General Recommendation XV(42), issued in 1993, the Committee stated, in part:

“When the International Convention on the Elimination of All Forms of RacialDiscrimination was being adopted, article 4 was regarded as central to thestruggle against racial discrimination.. . .In the opinion of the Committee, the prohibition of the dissemination of all ideasbased upon racial superiority or hatred is compatible with the right to freedom ofopinion and expression. This right is embodied in article 19 of the UniversalDeclaration of Human Rights and is recalled in article 5 (d) (viii) of theInternational Convention on the Elimination of All Forms of RacialDiscrimination. Its relevance to article 4 is noted in the article itself. The citizen'sexercise of this right carries special duties and responsibilities, specified in article29, paragraph 2, of the Universal Declaration, among which the obligation not todisseminate racist ideas is of particular importance. The Committee wishes,furthermore, to draw to the attention of States Parties article 20 of theInternational Covenant on Civil and Political Rights, according to which anyadvocacy of national, racial or religious hatred that constitutes incitement todiscrimination, hostility or violence shall be prohibited by law.”40

Curiously, some States (e.g., Japan) ratified the Convention and entered their declaration -- withan interpretation of Article 4 contrary to CERD’s -- after General Recommendation XV(42) wasissued. The legal validity of such a declaration is, therefore, questionable.

Just an afterthought? Regulation of the Internet and Human Rights Defenders

One issue has thus far been largely overlooked in the discussions of regulating theInternet: the potential effect on governmental interference in the work of human rights defenders.The expert seminar discussions have focused primarily on (i) abstract values in freedom ofspeech and (ii) the Western States’ claim that more speech, not less, is the best way to exposeand combat racist sentiments. Missing from these deliberations is the perspective of frontlinehuman rights defenders concerned with government’s power to monitor and regulate the workthey perform on the Internet. This is an added reason, and a critically important one, that theperspective of frontline NGOs must be fully represented at the preparatory meetings before theconference and at the WCAR itself.

In many countries, especially non-democratic ones, there is more to fear fromgovernmental abuse in controlling the content of and access to the Internet than there is from theInternet’s misuse by private individuals. In the context of addressing hate speech and otherproblems on the Internet, the Special Rapporteur on the Protection and Promotion of the Right toFreedom of Opinion and Expression concluded: “The instinct or tendency of Governments toconsider regulation rather than enhancing and increasing access to the Internet is,therefore, to be strongly checked.”41 In his subsequent report, the Special Rapporteur

40 The Committee’s General Recommendation followed influential reports prepared by members of the Sub-Commission on the topic of freedom of opinion and expression which had reached similar conclusions. SeeE/CN.4/Sub.2/1990/11 & E/CN.4/Sub.2/1991/9.41 E/CN.4/1999/64, para. 34.

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explained that “[Government] measures have included, in certain countries, the requirement thatthe information accessible through the Internet be ‘trustworthy’ and in line with the country's‘ethical principles’, or efforts to control information viewed as threatening to political stabilityand undermining the predominant culture, or some proposals by State police to monitor all datasent over the Internet within national boundaries.”42 It is in this context that participants at theWCAR should be especially conscious of the implications in promoting governmental controlover the Internet. Only with the full participation of national human rights defenders in thedeliberative process can all these considerations be adequately taken into account.

October 2000

WCAR THINK PAPERS*

A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR THINK PAPER III

ACCOUNTING FOR RACISM: TOWARDS THE GLOBAL COLLECTION OF STATISTICSON RACIAL DISCRIMINATION

One of the most useful features of international efforts to address human rights issues isthe ability to induce States to undertake important tasks they might not otherwise do alone orwithout political pressure behind them. The collection of national statistics on racialdiscrimination appears to be an issue conducive to that form of international coordination andencouragement. Mr. Michael Banton, Member of the Committee on the Elimination of RacialDiscrimination, stated in his Background Paper for the WCAR: “Only by conducting researchinto its incidence and publicizing the findings is it possible to generate support for the enactmentof laws against discrimination. Governments may believe that they have enough problemsalready without commissioning research that will stir up new ones, so international bodies have aspecial function in seeing that the true facts are brought to light.”43

At the WCAR, the issue of researching and collecting national statistics on racialdiscrimination may be raised in different discussions such as those on economic, social andcultural rights and strengthening the Committee on the Elimination of RacialDiscrimination (CERD). In terms of the former, statistical research on the impact of racialdiscrimination often concerns the social and economic conditions of different racial groups. Themethods of modern statistical analysis are particularly effective in measuring socio-economicindicators such as: access to health care, employment opportunities and levels of education. It isin this regard that political support for international efforts to collect data on racial discriminationcan advance the agenda of those especially interested in addressing economic, social and culturalrights in the context of racial discrimination. The results of such data-collection projects wouldalso likely help such agendas by raising political awareness on the extent and impact ofsystematic and de facto racial discrimination including discrimination by private actors andorganisations. Combating racial discrimination against specific groups -- such as the Roma -- 42 E/CN.4/2000/63, para. 56.* The Think Papers series is available at <www.hrdc.net>.43 E/CN.4/1999/WG.1/BP.6, para. 20.

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would also be helped in this regard. For example, in evaluating the Government of Hungary’speriodic report, CERD stated: “The Committee recommends increased attention to the protectionof the [Romas'] civil, political, economic, social and cultural rights. The efforts to implementmeasures of affirmative action in that respect should be strengthened. Adequate indicators andother means of monitoring the economic and social conditions of this group should bedeveloped.”44

In terms of strengthening CERD itself, the ready availability of data on racialdiscrimination would improve the Committee’s ability to evaluate country conditions and, inparticular, help compensate for the lack of information provided by States Parties. For years,CERD has been engaged in a tooth-pulling exercise with a number of States in its effort to obtainsufficient information on the situation of racial minorities and indigenous groups. The readyavailability of country racial statistics would help CERD considerably in performing its periodicreview of States parties and evaluating, in relative terms, disparities between countries andregions.

At the WCAR, NGOs should encourage States to institutionalise the collection of race-related statistics at an international level. Some have already suggested that the WCAR shouldbe used to establish a unit within the Office of the High Commissioner for Human Rights tomonitor racism and xenophobia. That initiative might be tied to the effort to collect data onracial discrimination. Specifically, the recording and publication of statistics on the existence andimpact of racial discrimination could be considered as one of the principle responsibilities of thatunit.

Whether or not momentum gains for establishing such a unit, NGOs can also call on theUnited Nations in general, or one of its specialized sub-divisions, to maintain a regular accountof statistics on racial discrimination world-wide. A model for this type of statisticalaccounting is the United Nations Development Programme’s (UNDP) Human DevelopmentIndex. The UNDP has recently consciously taken account of human rights concerns and hasalso maintained a Gender-related Development Index. However, an analogous Race-relatedDevelopment Index does not exist. Admittedly, in the context of measuring racial statistics, theUNDP’s model may need to be expanded or otherwise adapted to deal with particular concernsinvolved. To account for racial discrimination, statistics could be collected to evaluate economicempowerment, educational and employment opportunities, racial bias of immigration authoritiesand disparate treatment within national criminal justice systems – to name just a fewpossibilities.

Independent of internationally coordinated efforts, the WCAR can also focus attention oneach State’s responsibility to record and study statistics on racism. The collection andevaluation of data concerning the existence and effects of racial discrimination might beconsidered an obligation if those practices are viewed as a precondition to understanding andeliminating racial discrimination. Some precedents exist in support of this proposition. Forexample, in 1997, CERD criticised the United Kingdom’s “continuing failure to incorporatequestions relating to the racial or ethnic origin of persons in the Northern Ireland populationcensus questionnaires” and noted that “the identification of minority groups and the analysis oftheir civil, political, economic and social status are a precondition” to identifying and solving theimpacts of racial discrimination.45 Similarly, in 1999, the Special Rapporteur on Racism

44 A/51/18, para. 126.45 CERD/C/304/Add.20, para. 16 (23 April 1997) (Concluding Observations/Comments).

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criticised the United States for not including Arab-Americans in some of its most importantgovernmental reports on racism.46

Admittedly, in an effort to help States conduct comprehensive studies, the OHCHR’sadvisory services and technical cooperation programmes may need to be expanded. This wouldassist States which have less financial resources available or experience in performing suchstudies. The issue of States’ responsibilities or obligations to record and monitor racialdiscrimination can therefore also be addressed at the WCAR in the context of discussing theneed for greater financial commitments to advisory services and technical cooperation.

Fighting racism is difficult if one does not know the scope and consequences of theexisting problems. States, in many instances, do not want to know. Exposing the disturbinglevels of racial discrimination in one’s country creates political pressure to remedy the problem.However, if the WCAR is genuinely committed to fighting racism, these issues of globalmonitoring of racial discrimination must be on the table. They should be reflected in the draftDeclaration and Programme of Action and receive ample consideration at the meeting in SouthAfrica.

November 2000

WCAR Think Papers*

A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR Think Paper IV

Compensation for Slavery and Colonialism: A Test of Wills?

One of the most polarizing issues at the WCAR will be the subject of compensation forslavery and colonialism. The argument for compensation is that States which were directlyresponsible for these atrocities owe some form of remediation to States and individuals who arethe successors or descendants of the original victims. The types of remediation, orcompensation, include: monetary payments; debt relief; financed repatriation of descendants ofslaves who wish to relocate; and return of expropriated art.

Thus far, the terms of the debate have been mostly limited to the issue of the Trans-Atlanticslave trade and European colonization of Africa -- pitting West European States and theUnited States of America against African States. As for the former group, the West EuropeanStates which were major colonial powers and which are consequently on the defensive in thecompensation debate include: Belgium, France, Germany, Italy, the Netherlands, Portugal,Spain and the United Kingdom. As for the latter, the African Group receives strong supportfrom Cuba and possibly Israel. As a measure of their support it is notable that in the 1998Commission on Human Rights, Senegal, Cuba and Israel -- though unsuccessful -- co-sponsoreda draft resolution entitled “Recognition of Slavery and the Slave Trade as Crimes AgainstHumanity”.

46 E/CN/.4/1999/15, para. 136. As a side note – the fact that the United Kingdom and the United States have beennegligent in this regard is evidence that “financial considerations” are not the only reasons States might resist suchan initiative.* The Think Papers series is available at <www.hrdc.net>.

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The compensation issue already created significant ruptures during the first PrepCom. Onthe final day of negotiations, delegations reached their greatest obstacle: deciding on theplacement of compensation within the agenda. At the time, the fourth theme (out of five) in theagenda of the conference was entitled: “Provision of effective remedies, recourses, redress,compensatory and other measures, at the national, regional and international levels.” Portugal,speaking on behalf of the European Union, wanted to place the entirety of the fourth theme inbrackets. The United States suggested placing only the term “compensatory” in brackets.However, both alternatives were met with strong opposition from the African Group, Armeniaand Cuba. Demonstrating the importance they attach to this one issue, the African Group statedthat if the topic of compensation were placed in brackets, they would bracket the entire text. Thefinal text included brackets around the term compensation, with a statement in the reportindicating the different perspectives on the meaning of the brackets.47 West European Stateshave subsequently discussed, on an informal basis, different levels of non-cooperation they mayadopt if the issue of compensation gains momentum at the WCAR.

If the compensation issue begins to receive significant attention at the conference, it mayopen up a Pandora’s box. First, the issue of colonialism and slavery cannot be easily restricted toWestern States’ treatment of Africa and Africans. The Western States’ colonial expansion alsoincluded vast regions of the Asia-Pacific, for example. Once the door to compensation is ajar, itis difficult to deny similar claims of the descendants of victims of French colonialism inIndochina (e.g., Vietnam, Laos, Cambodia); Dutch colonialism in the East Indies (e.g.,Indonesia); and British colonialism in South and Southeast Asia (e.g., Bangladesh, Burma,Fiji, India, Malaysia, Pakistan, Singapore, Solomon Islands). The European transportation ofslaves and indentured labourers from India and China -- including the so-called “coolie system”-- to supplement and, later, replace the use of African slavery further complicates the equation.48

The Spanish conquest of the Americas and decimation of indigenous populations ranksas a holocaust of its own. Under the infamous “encomienda” system, so-called Indians wereenslaved by Spanish proprietors in Mexico, Peru and elsewhere. Spain took over vast areas ofthe South American continent. According to authoritative estimates, at the beginning of Spanishsettlement, there were an estimated 50 million indigenous peoples in the mainland areas; in theseventeenth century the number was approximately down to 4 million. Portugal also madeinroads into South America. The Portuguese used Indian slavery in Brazil and continued thepractice at least partially until the mid-eighteenth century.

West European States and the United States are not the only ones with a history of engagingin colonialism and repression. Japanese imperial expansion in East Asia, including itscolonization of Korea and Taiwan in the early part of the twentieth century, makes it vulnerableto claims for compensation. Russia, in the late nineteenth century, subjugated people in the FarEast, the Caucasus and Central Asia to its quest for empire. The Ottoman Turks conqueredlarge regions and decimated populations -- one of the most egregious episodes being theArmenian genocide of 1915.

With these historical realities in mind, it is understandable why some argue that thecompensation debate may become much more complicated, if not wholly unwieldy, at theWCAR. These other episodes of colonialism and slavery will likely affect the alignments of

47 A/CONF.189/PC.1/21.48 Tayyab Mahmud, Colonialism and Modern Constructions of Race, University of Miami Law Review, 1219, 1239(1999).

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States. These other cases may also be used by West European States and the United States toargue that the claim for compensation involves impractical demands and run-away implications,and that exclusive concern with African slavery and African colonialism is being used againstthem in an unfairly selective and politicised manner.

Recent developments confirm the prospects of this issue dominating and perhaps capsizingthe conference. At the conclusion of the European preparatory meeting in Strasbourg in October2000, the final “Report from the Forum of Non-Governmental Organisations” stated:

The legacy of slave trade and colonialism continues to have consequences in presenttimes and remains at the root of some acts of racism, racial discrimination,xenophobia and intolerance. It is necessary, so that society can be reconciled with itsown history, that the truth concerning slavery, slave trade and colonialism, bepublicly acknowledged. Former colonial powers and other parties involved have themoral duty to grant reparation to victims of slave trade and colonialism. Suchreparation may take the form of restitution, compensation, rehabilitation andsatisfaction as well measures which guarantee non-repetition. The World Conferenceagainst Racism in 2001 will constitute an important opportunity to publicly apologizeto the victims and their descendants.49

Subsequently, newspapers around the world spotlighted this one element of the NGOReport.50 The Times of India, for example, began its story stating: “India could be thebeneficiary of hundreds of millions of pounds in compensation if the demands of an anti-racistconference in Strasbourg are implemented. The conference is backing a campaign that says‘colonial powers have a moral duty to grant reparation to victims of slave trade andcolonialism.’”51 Keeping the momentum alive, at the Third Committee (Social, Humanitarianand Cultural) meeting in late October, the Cuba delegate stated that the WCAR could serve as alandmark for seeking reparations for victims and descendants of slavery.52

Given all the above, this Think Paper makes two recommendations. First, before arrival atthe WCAR, governmental and NGO representatives should consider their stance on, and thepriority they assign to, the compensation issue. A high likelihood exists that, if present trendscontinue, this single issue will be pushed to the point that the conference’s viability will bejeopardised. Participants should consider whether they are willing to forgo the conference’sother objectives based on this issue alone. Second, this Think Paper suggests reasons thecompensation issue, if it continues to be framed in the current manner, will compromise theconference’s success. The current framing of the issue involves significant complexities andproduces exceptional divisiveness. At the WCAR, if agreement on this issue appearsunreachable, it should take a back seat to those vitally important issues on which the worldcommunity is closer to reaching agreement.

December 2000

WCAR Think Papers*

49 Report from the Forum of Non-Governmental Organisations (General remarks and recommendations), I(9)<www.ecri.coe.int/en/07/01/Report%20NGO%20Forum%20final.pdf>.50 See, eg., Tamara Thiessen, Europe “must say sorry for racism”, THE STRAITS TIMES, Oct. 14, 2000, at p. 14;Former colonial powers urged to pay compensation, THE TIMES OF INDIA, Oct. 22, 2000.51 Former colonial powers urged to pay compensation, supra.52 M2 Presswire, Oct. 20, 2000 (Third Committee summary report).* The Think Papers series is available at <www.hrdc.net>.

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A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR Think Paper V

Affirmative Action: Guarding against an international rollback

I. What is at stake

The issue of affirmative action involves nothing less than the decision of Governments eitherto ignore and exacerbate or to face and remedy historic discrimination against marginalizedgroups. In many contexts, affirmative action is still so vital that prematurely abolishing suchprogrammes risks structural re-segregation and a significant move along the continuum towardsde facto apartheid. At present, the international legal standards supporting affirmative action arerelatively robust. The question is whether the World Conference Against Racism (WCAR) willmove from principles to action and whether States in which affirmative action has recently beenretrenched will influence a regression of current international standards.

Two situations – racial minorities in the United States and the Roma in Europe – demonstratethe stakes of the debate. Of course these two issues do not exhaust the cases in which affirmativeaction is required. For example, at the UN-sponsored February 2000 Expert Seminar onRemedies Available to Victims of Racial Discrimination, leading experts raised the need foraffirmative action programmes for indigenous peoples and others who have been victimized overa period of years.53 Thus, the following discussion of the United States and European situationsis meant only to identify a part of the wider range of cases in which a commitment to affirmativeaction is necessary.54

1. Racial minorities in the United States of America

One of the principal concerns in the affirmative action debate is the condition of racialminorities in the United States of America. Over the last decade, several jurisdictions within theUnited States have rolled back state and federal affirmative action programmes. The U.S.Supreme Court has struck down a number of such programmes on the ground that they constituteracial discrimination against whites in violation of the U.S. Constitution.55 Within the last halfdecade, three of the country’s most populous states – California, Florida and Texas – have eachalmost entirely, if not entirely, eliminated affirmative action through legislation, judicial actionor executive decree. Within one year of Texas’s elimination of affirmative action, Hispanic andAfrican American admissions to the University of Texas Law School fell 64% and 88%respectively. Following California’s elimination of affirmative action, Hispanic and AfricanAmerican public law school admissions dropped 35% and 72%. Domestic civil rights

53 A/CONF.189/PC.1/8 (Annex, para. 29 (Mr. Asbjørn Eide) & para. 57 (Mr. Theodor van Boven).54 See also Committee on the Elimination of Racial Discrimination, State party periodic report – Namibia, A/51/18(30 September 1996), at 503 (Concluding Observations) (recommending Government of Namibia adopt affirmativeaction measures “to overcome vestiges of the past that still hamper the possibilities for black people, includingvulnerable groups among them” in areas of education and employment); Committee on the Elimination of RacialDiscrimination, State party periodic report – Nepal, A/53/18 (10 September 1998), at 434 (ConcludingObservations) (welcoming Government of Nepal’s affirmative action programmes for “less developed groups,” butrequesting information on results of those programmes).55 Mr. Marc Bossuyt, Working Paper on the Concept of Affirmative Action, E/CN.4/Sub.2/1998/5, paras. 18-29(discussing U.S. affirmative action jurisprudence).

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organisations such as the National Association for the Advancement of Colored People, theMexican American Legal Defense and Education Fund and the American Civil Liberties Unionreport that if trends continue we are witnessing the re-segregation of America.

Full-scale studies support these findings. The thirty-year anniversary update of the famousKerner Commission Report states:

America's neighborhoods and schools are resegregating. According to Professor GaryOrfield and his colleagues at Harvard, two-thirds of African-American students andthree-fourths of Hispanic students now attend predominantly minority schools, one-third of each group in intensely segregated schools. In urban public schools in poorneighborhoods, more than two-thirds of children fail to reach even the ‘basic’ level onnational tests, according to Education Week. In many ways, America's housing policyfor the poor and minorities has become prison building. During the 1980s and early1990s, we tripled the number of prison cells at the same time that we reduced housingappropriations for the poor by more than 80 percent.56

In light of these trends, the Special Rapporteur on Contemporary Forms of Racism, afterconducting a special visit to the United States, stated as one of his principal recommendations:“Affirmative action programmes should be revitalized in order to offset the negativeconsequences of the policy pursued during the 1980s in the fields of health, housing, educationand employment.”57

2. Roma in Europe

Another area of concern for the affirmative action debate is the condition of the Romapopulation in Europe. The systematic mistreatment of Roma ranks as one of the greatestproblems of racial discrimination in the region. In his 1999 Report, the Special Rapporteur onRacism, after reviewing the “region-wide trend towards discrimination against this ethnicgroup,” concluded: “Roma suffer systematic racial discrimination in virtually all spheres ofpublic life, education, employment, housing, access to public space and access to citizenship.”58

The Special Rapporteur has, over the past few years, identified significant discrimination againstthe Roma in Bulgaria,59 the Czech Republic,60 the Federal Republic of Yugoslavia,61

Finland,62 Greece, Hungary,63 Macedonia,64 Poland,65 Romania,66 Slovakia,67 Spain,68

Sweden69 and the Ukraine.70

56 Milton S. Eisenhower Foundation, The Millennium Breach: The American Dilemma, Richer and Poorer, (2d. ed.1998).57 E/CN.4/1995/78/Add.1, para 112.58 E/CN.4/1999/15, paras. 87 & 83. See also E/CN.4/2000/16 (Special Rapporteur on Racism) (“discriminationagainst the Roma persists in a number of European countries, where they are subjected to exclusion andmarginalization”); id. paras 35, 37, 172.59 E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads and others); E/CN.4/1997/71, para.28 (skinhead attacks against Romany street children).60 E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para.82 (violence by skinheads and others); id. at 82 (de facto racial segregation in education); id. at 85 (instances ofracial exclusion in public places); id. at 86 (denial of citizenship rights); E/CN.4/1997/71, para. 30 (discrimination inhousing, education, employment and citizenship).61 E/CN.4/2000/16, para. 35; E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads andothers).62 E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).63 E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para.81 (police violence); id. at 82 (de facto racial segregation in education); id. at 85 (instances of racial exclusion inpublic places).

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In reviewing the periodic reports of a number of these States, the Committee on theElimination of Racial Discrimination (CERD) has called on governments either to implement(e.g., Bulgaria,71 Hungary72) or to continue (e.g., the Czech Republic,73 Macedonia74)affirmative action programmes. The mechanism of periodic reports has, however, proveninadequate to address the region-wide problem of discrimination against the Roma. Accordingly,in August 2000, CERD took up the issue of the Roma by holding an unprecedented specialsession. The discussion was devoted to the conditions of the Roma and it succeeded in thepassage of General Comment XXVII which exclusively deals with racial discrimination againstthe group.75 Significant to the affirmative action debate, General Comment XXVII calls onStates to adopt affirmative action on behalf of the Roma in a number of fields, including:education,76 public and private employment,77 public contracting78 and the media.79 The GeneralComment ends with the following statement:

The Committee further recommends that: The World Conference against Racism,Racial Discrimination, Xenophobia and Related Intolerance give due consideration tothe above recommendations, taking into account the place of the Roma communitiesamong those most disadvantaged and most subject to discrimination in thecontemporary world.80

* * *

Of the above cases, the United States Government’s political position is expected to be themost significant concern for proponents of affirmative action at the WCAR. The SupremeCourt’s definition of affirmative action as presumptive racial discrimination is endorsed by theRepublican Party’s political leadership. Accordingly, the new Bush Administration can beexpected to harden the U.S. foreign policy position on affirmative action in internationalstandard-setting procedures. The United States’ States party report to CERD – submitted by theClinton Administration in September 2000 – notably supports narrowly-tailored affirmativeaction programmes in federal administrative agencies, the educational arena and government 64 E/CN.4/1999/15, para. 81 (police violence); id. at 85 (instances of racial exclusion in public places).65 E/CN.4/1999/15, para. at 82 (violence by skinheads and others); id. at 85 (instances of racial exclusion in publicplaces); id. at 86 (denial of citizenship rights).66 E/CN.4/2000/16/Add.1 (country visit concerning systematic discrimination against Roma); E/CN.4/1999/15, para.81 (police violence); id. at 85 (instances of racial exclusion in public places); E/CN.4/1997/71, para.29 (police-sponsored violence).67 E/CN.4/2000/16, para. 35; E/CN.4/1999/15, para. 81 (police violence); id. at 82 (violence by skinheads andothers); id. at 82 (de facto racial segregation in education); id. at 85 (instances of racial exclusion in public places).68 E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).69 E/CN.4/1999/15, para. 85 (instances of racial exclusion in public places).70 E/CN.4/1999/15, para. 81 (police violence). The Special Rapporteur has also criticised West European States forgross mistreatment of Roma asylum-seekers, such as the practice of mass deportations back to countries of origin.E/CN.4/2000/16, para. 35.71 A/52/18 (26 September 1997), at 288 (Concluding Observations – Bulgaria).72 A/51/18 (30 September 1996), at 126 (Concluding Observations – Hungary).73 A/53/18 (10 September 1998), at 117 (Concluding Observations – Czech Republic).74 A/52/18 (26 September 1997), at 524 (Concluding Observations – Macedonia).75 CERD General Recommendation XXVII (“Discrimination Against Roma”) (Fifty-seventh session, August 16,2000).76 Id. paras. 18, 19 & 23.77 Id. para. 28.78 Id. para. 29.79 Id. para. 39.80 Id. para. 49.

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contracting.81 The report, however, also alludes to critics of affirmative action who wouldeliminate such programs:

Indeed, it is the government's position that the educational benefits that flow from adiverse student body can be achieved through the narrowly tailored consideration ofrace in admissions. Some critics argue that such practices violate the Fourteenthamendment's guarantee of equal protection and have called for an end to theconsideration of race in university admissions.82

President-elect George W. Bush and the Republican Party leadership are among those critics.Affirmative action is one specific issue at the WCAR in which a shift in the United Statesposition will likely occur due to the recent change in U.S. Presidential Administrations.

II. International legal and standard-setting precedents

Under existing international standards, affirmative action is recognized as an importantremedy for achieving racial equality. The international standard qualifies this principles onlyinsofar as holding that affirmative programmes should not lead to the maintenance of separaterights for different racial groups and must be discontinued once the programmes’ objectives havebeen achieved.83 With these qualifications in mind, Article 1(4) and Article 2(2) of theInternational Convention on the Elimination of All Forms of Racial Discrimination(ICERD) were specifically designed to exempt affirmative action programmes from thedefinition of racial discrimination and to insist States implement such programmes when thecircumstances warrant (See Table).

Affirmative Action under International Instruments

“Special measures taken for the sole purpose of securing adequate advancement of certain racialor ethnic groups or individuals requiring such protection as may be necessary in order toensure such groups or individuals equal enjoyment or exercise of human rights andfundamental freedoms shall not be deemed racial discrimination, provided, however, that suchmeasures do not, as a consequence, lead to the maintenance of separate rights for different racialgroups and that they shall not be continued after the objectives for which they were taken havebeen achieved.”

-- International Convention on the Elimination of All Forms of Racial Discrimination Article1(4) (emphasis added).

“States Parties shall, when the circumstances so warrant, take, in the social, economic,cultural and other fields, special and concrete measures to ensure the adequate development andprotection of certain racial groups or individuals belonging to them, for the purpose ofguaranteeing them the full and equal enjoyment of human rights and fundamental freedoms.These measures shall in no case entail as a consequence the maintenance of unequal or separate 81 See, e.g., Initial State Party Report of the United States of America to CERD,<www.state.gov/www/global/human_rights/cerd_report/cerd_index.html> (“Affirmative action measures recognizethat existing patterns of discrimination, disadvantage and exclusion that are the remains of a race-conscious systemof exclusion may require race-conscious measures to achieve real equality of opportunity.”).82 Id.83 For a discussion of the definition of affirmative action under international law, see Mr. Asbjørn Eide, WorkingPaper on the Protection of Minorities: Possible ways and means of facilitating the peaceful and constructive solutionof problems involving minorities, E/CN.4/Sub.2/1993/34, paras. 168-184.

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rights for different racial groups after the objectives for which they were taken have beenachieved.”

-- International Convention on the Elimination of All Forms of Racial Discrimination Article2(2) (emphasis added).

“Special concrete measures shall be taken in appropriate circumstances in order to secureadequate development or protection of individuals belonging to certain racial groups with theobject of ensuring the full enjoyment by such individuals of human rights and fundamentalfreedoms. These measures shall in no circumstances have as a consequence the maintenance ofunequal or separate rights for different racial groups.”

-- United Nations Declaration on the Elimination of All Forms of Racial Discrimination, Article2(3) (emphasis added).

“Special measures must be taken to ensure equality in dignity and rights for individuals andgroups wherever necessary, while ensuring that they are not such as to appear raciallydiscriminatory. In this respect, particular attention should be paid to racial or ethnic groupswhich are socially or economically disadvantaged, so as to afford them, on a completely equalfooting and without discrimination or restriction, the protection of the laws and regulations andthe advantages of the social measures in force, in particular in regard to housing, employmentand health; to respect the authenticity of their culture and values; and to facilitate their social andoccupational advancement, especially through education.”

-- UNESCO Declaration on Race and Racial Prejudice, Article 9(2) (emphasis added).

“1. Special measures of protection or assistance provided for in other conventions orrecommendations adopted by the International Labour Conference shall not be deemed to bediscrimination.

“2. Any member may, after consultation with representative employers' and workers'organizations, where such exist, determine that other special measures designed to meet theparticular requirements of persons who, for reasons such as sex, age, disablement, familyresponsibilities or social or cultural status, are generally recognized to require special protectionor assistance, shall not be deemed to be discrimination.”

-- ILO Convention No. 111, Article 5.

Importantly, the Human Rights Committee, in interpreting the place of affirmative actionunder the International Covenant on Civil and Political Rights, issued General CommentXVIII which also clarifies certain circumstances necessitate affirmative action programmes,though with a similar understanding of the qualifications that exist under ICERD (See Table).

Human Rights CommitteeGeneral Comment XVII

“The Committee also wishes to point out that the principle of equality sometimes requiresStates parties to take affirmative action in order to diminish or eliminate conditions whichcause or help to perpetuate discrimination prohibited by the Covenant. For example, in a Statewhere the general conditions of a certain part of the population prevent or impair their enjoyment

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of human rights, the State should take specific action to correct those conditions. Such actionmay involve granting for a time to the part of the population concerned certain preferentialtreatment in specific matters as compared with the rest of the population. However, as long assuch action is needed to correct discrimination in fact, it is a case of legitimate differentiationunder the Covenant.”

- Human Rights Committee, General Comment XVIII, para. 10, Thirty-seventh session,10/11/1989 (emphasis added).

The previous World Conferences Against Racism already adopted language stronglysupporting the need for affirmative action. Most significant in this regard is the Declaration andProgramme of Action for the Second World Conference to Combat Racism and RacialDiscrimination (1983). Paragraph 15 of the Declaration of the Second World Conferencestates:

The proscription of racism and racial discrimination by law should be accompaniedby vigorous efforts to ensure equality in the economic, social, and cultural fields; andin particular special programmes, such as affirmative action programmes, should bedeveloped to address the problem of racism and racial discrimination inherent in thesystem and institutionalised.

Paragraph 16 of the Programme of Action of the Second World Conference states:

The Conference invites States . . . [t]o ensure that the teaching staff of institutionsreflect, as far as possible, the racial and ethnic composition of the community.Affirmative action programmes should be instituted to facilitate the hiring of teacherswho represent the racial, ethnic and linguistic composition of the community.…The Conference invites States . . . [t]o take remedial measures in instances whereparticular racial, ethnic, linguistic or other groups have had a history of being placedat a disadvantage . . . . This is the responsibility of society. This might necessitatespecial educational programmes at all levels of the society.

Due to inadequate dissemination of the text, many people are not aware of these aspectsof the Declaration and Programme of Action of the Second World Conference. Those provisions,however, should be the starting point for the Third World Conference’s consideration ofaffirmative action.

III. Guarding against a rollback and moving towards elaboration

Participants of the WCAR should take into account the text of the previous WorldConferences in order to hedge against regression of established standards and to move towardsthose standards’ elaboration and implementation. The above provisions from the Second WorldConference’s Declaration and Programme of Action should be taken as the baseline belowwhich the Third World Conference must not fall.

In describing the need and scope of affirmative action, the text of the previous WorldConferences have been deficient in a number of areas that the 2001 WCAR can address. First, anexplicit reference to the need for affirmative action programmes for indigenous peoples isimportant as suggested above. Second, the WCAR should not, as the World Conferences havedone in the past, address affirmative action only in the field of education while disregarding the

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need for affirmative action in employment, public contracting and the civil service especiallyincluding programmes to ensure adequate representation of members of marginalized racialgroups in the police force. Third, the WCAR should also take up the issue of affirmativeaction within the international arena. In his 1996 report to the General Assembly, the SpecialRapporteur on Racism recommended the General Assembly “explore the possibility ofestablishing a fund to assist ethnic or racial communities that are victims of racial discriminationand condemned to live in conditions of injustice and inequality . . . Can we not envisage anappropriate affirmative action mechanism at the international level?”84 The WCAR should takeup that challenge and begin detailing specific measures to meet it. Fourth, the WCAR shouldmove from the earlier conferences’ statements of “inviting” States to adopt affirmative actionmeasures and towards statements that accurately reflect the obligation of States to do sowhen the circumstances require it. As made clear in Part II above, the prevailing internationallegal standards already include such an obligation. The WCAR must appropriately reflect thatobligation in its own text.

Finally, the WCAR also presents an opportunity to support and encourage affirmativeaction in the United States simply through the wording of the Declaration and Programme ofAction. In the United States, the success of civil rights litigation on the issue of affirmativeaction will pivot on the question of whether racial diversity constitutes a sufficiently compellingreason for public institutions to adopt affirmative action measures.85 The U.S. Supreme Court isexpected to decide that legal issue in the coming years, and a statement by the world communityaffirming the paramount importance of racial diversity in education and other public arenascould be helpful in the effort to uphold affirmative action in the United States. The Associationof American Universities specifically issued such a statement in an effort to influence theoutcome of that prospective litigation. The Third World Conference Against Racism need onlyexert minimal political effort to potentially yield a notable influence in that debate.

January 2001

WCAR Think Papers*

A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR Think Paper VI

The Rights of Migrant Workers: Keeping the issue on track

The rights of migrant workers is an issue likely to receive significant attention at the WorldConference Against Racism. One reason for this special consideration is that the InternationalConvention on the Protection of All Migrant Workers and Members of Their Familiesfinally appears to be nearing the number of ratifications necessary to bring it into force. Anotherreason is that international initiatives in this arena have recently incorporated a relatively stronggender-perspective and have, accordingly, engaged efforts to resolve burgeoning crises such astrafficking in persons.

84 A/51/301, para. 58.85 See, e.g., Goodwin Liu, Affirmative Action in Higher Education: The Diversity Rationale and the CompellingInterest Test, 33 Harvard Civil Rights-Civil Liberties Law Review 381 (1998).* The Think Papers series is available at <www.hrdc.net>.

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A final reason that migrant workers rights will receive special consideration is that severalStates (“sending countries”) consider it in their self-interest to push for stronger internationalstandards. Nongovernmental organisations can, therefore, count on vocal support from a numberof governments. Admittedly, as we discuss below, some governments utilize the migrantsworkers issue mainly to score political points against ideological opponents (e.g., the Cuba–United States of America rift). Such political manoeuvring, however, distorts the real issuesinvolved. One of the tasks of NGOs and genuinely concerned States will be to direct thediscussion towards a principled consideration of the pressing needs of migrant workers and toexplain the benefits of stronger international standards for all countries -- sending and receivingalike.

I. Political alignments

The political position a State will adopt on the issue of migrant workers at the WCAR can beanticipated by whether it is a so-called sending or receiving country. In this regard, recent shiftsin international migration should be taken into account. According to the International LabourOrganisation (ILO), major new sending countries include Bangladesh, Egypt and Indonesia;while major new receiving countries include Italy, Japan, Malaysia and Venezuela.

The group of States that are willing to support stronger international standards can also beanticipated by examining the status of ratifications of major international instruments. There arethree principal international instruments for the protection of migrant workers rights: (1) theInternational Convention on the Protection of All Migrant Workers and Members of TheirFamilies; (2) the ILO Migration for Employment Convention (Revised) (No. 97); and (3) theILO Migrant Workers (Supplementary Provisions) Convention (No. 143). As a general rule, theStates that have ratified or signed these instruments (See Table) can be expected to offer thegreatest support for advancing international standards. The problem is that all three conventionssuffer from an exceedingly low number of ratifications, indicating the lack of overall support forthe issue.

Consider the numbers. The International Convention on the Protection of All MigrantWorkers and Members of Their Families was opened for signature in 1990. The Convention hasyet to come into force, even though it requires only 20 ratifications for that to occur. As of 16October 2000, 15 States had ratified the Convention and 9 had signed it. The ILO Conventionshave also received a relatively low number of ratifications. ILO Convention No. 97 has 41ratifications and ILO Convention No. 143 has a paltry 18. Twelve States have ratified bothILO Conventions, thus reducing even further the number of overall States party. In short, anuphill battle on the issue of migrant workers rights awaits NGOs at the WCAR.

NGOs should also be cognizant of a particular inconsistency in State politics on migrantworkers rights: governments that sponsor stronger resolutions, but do not abide the resolution’sbasic agreement. For example, at the most recent session of the United Nations Commission onHuman Rights, 20 States sponsored the Resolution on the International Convention on MigrantWorkers Rights. The Resolution “call[ed] upon all member States to consider the possibility ofsigning and ratifying or acceding to the Convention as a matter of priority, [and] expresse[d] thehope that this international instrument will enter into force at an early date.”86 Eight of theStates that sponsored the Resolution have neither ratified nor signed the Conventionthemselves. The group of eight States guilty of this double standard are: Cuba, Ecuador, El

86 E/CN.4/2000/L.56, Agenda item 14 (a) (14 April 2000). The Resolution was ultimately adopted with this part ofthe draft text in tact. See E/CN.4/RES/2000/49 (adopted without a vote).

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Salvador, Haiti, Pakistan, Peru, Portugal and Tunisia. Some of these States specifically madestrong statements that would suggest they supported the Convention in practice. For instance,according to the UN’s official summary record:

“[The representative of Cuba”] said that discrimination against migrants was one ofthe worst forms of contemporary racism. It was regrettable that the InternationalConvention on the Protection of the Rights of All Migrant Workers and Members ofTheir Families had still not received the 20 ratifications required for it to enter intoforce. Of even greater concern was the fact that not one of the developed countrieswhich were hosts to tens of millions of migrant workers had signed theConvention.”87

Admittedly, Ecuador and El Salvador stated during the proceedings that they were intending toratify the Convention.88 As of 16 October 2000, however, neither has signed, let alone ratified,the Convention.

Status of Ratifications

International Convention on the Protection of All Migrant Workers and Members of TheirFamiliesSignatures: Bangladesh, Chile, Comoros, Guatemala, Guinea-Bissau, Paraguay, Sao Tome andPrincipe, Tajikistan and Turkey

Ratifications: Azerbaijan, Bolivia, Bosnia and Herzegovina, Cape Verde, Colombia, Egypt,Ghana, Guinea, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Uganda

ILO Convention concerning Migration for Employment (Revised) (No. 97)Algeria, Bahamas, Barbados, Belgium, Belize, Bosnia and Herzegovina, Brazil, Burkina Faso,Cameroon, Cuba, Cyprus, Dominica, Ecuador, France, Germany, Grenada, Guatemala, Guyana,Israel, Italy, Jamaica, Kenya, the former Yugoslav Republic of Macedonia, Malawi, Malaysia,Mauritius, Netherlands, New Zealand, Nigeria, Norway, Portugal, Saint Lucia, Slovenia, Spain,Tanzania, Trinidad and Tobago, United Kingdom, Uruguay, Venezuela, the former SocialistFederal Republic of Yugoslavia and Zambia

ILO Convention concerning Migrant Workers (Supplementary Provisions) (No. 143)Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon, Cyprus, Guinea, Italy, Kenya, theformer Yugoslav Republic of Macedonia, Norway, Portugal, San Marino, Slovenia, Sweden,Togo, Uganda, Venezuela and the former Socialist Federal Republic of Yugoslavia

II. Goals and Strategies for the WCAR

The above summary of the political backdrop should already indicate some of the goals forthe WCAR and strategic problems in achieving them. We suggest the following be part of theobjectives for the conference on the issue of migrant workers rights.

87 E/CN.4/2000/SR.45, at para. 37 (Summary Record) (emphasis added).88 E/CN.4/2000/SR.45.

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A. Bring the International Convention into force

1. Goal for the Office of the High Commissioner:

One of the chief aims should be to bring into force the International Convention on theProtection of All Migrant Workers and Members of Their Families. The Office of the HighCommissioner for Human Rights (OHCHR) should, as a matter of priority, set itself thegoal of being able to announce at the opening of the WCAR that the InternationalConvention has received the requisite 20 ratifications necessary to bring it into force.Notably, the momentum is working in favour of making this possible. The InternationalCovenant has recently experienced a small upsurge of signatures and ratifications: Six of the nineStates that have signed the Convention did so in 2000, and five of the States that have ratified theConvention did so in 1999-2000. The OHCHR’s task is made easier by the fact that many Stateshave not ratified the Convention due to lack of knowledge of its value and of its relevance totheir situation as either a sending or receiving country.

2. Articulating the reasons for ratification

Education and awareness, while lost causes in many other contexts, may be uniquelyeffective in the case of obtaining ratification of the International Convention. Various reportshave indicated that the low number of ratifications is due to lack of knowledge about theConvention’s existence or misunderstandings about the obligations it imposes. NGOs, concernedStates and others should ensure that States understand, for example, that the Convention: appliesrules to sending countries (several sending States, for example, have claimed disinterest in theConvention on the specious ground that they do not receive migrant workers); attempts tocontrol illegal immigration to the benefit of receiving countries (See, e.g., Article 68); and isnot redundant with the ILO Conventions (for example, the International Convention coversclasses of migrants not included in either ILO Convention such as itinerant and self-employedmigrant workers).89

In seeking to obtain the remaining five ratifications and, beyond that, expanding the numberof States parties, NGOs, concerned States and others should place special pressure on the groupof eight States that have strongly supported ratification of the Convention in rhetoric but notpractice. The representatives of some of these State’s may genuinely need to be reminded oftheir government’s vocal support for the Commission on Human Rights Resolution and the lackof corresponding action on their part; that is, conceivably this is an area in which somegovernments might not be matching rhetoric with action due to information gaps. If these Statesdo not resolve this discrepancy, however, the rhetorical positions their representatives adopt inother contexts will likely be distrusted, especially if NGOs and others bring attention to the cleardouble-standard they have adopted on this issue.

B. Incorporating the fight against corruption

Important aspects of migrant workers rights can benefit considerably from establishingstronger standards and focusing international efforts on tackling the problem of corruption.Particular areas that can stand to benefit include eliminating: trafficking in persons; inhumane

89 Two resources for identifying such misunderstandings and effective responses are: (1) The Rights of Non-Citizens, Addendum, E/CN.4/Sub.2/1999/7/Add.1 (Working paper submitted by Mr. David Weissbrodt); and (2)International Labour Conference, Report III (1B), 87th Session, Geneva, June 1999 (General Survey on MigrantWorkers) < www.ilo.org/public/english/standards/relm/ilc/ilc87/r3-1b.htm>.

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treatment by migrant smugglers; and abuses against undocumented migrant workers byemployers and officials.

Elsewhere, HRDC and SAHRDC have argued that international efforts to counter trafficking

have underestimated how local-level official corruption functions as a crucial variable in thetrafficking in persons.90 Although that discussion specifically concerned trafficking in womenand children, the same principle applies to combating inhumane treatment by migrant smugglers.In this regard, States need not wait to abide by the principles of combating corruption enshrinedin the two Protocols (on Trafficking and Smuggling) and Articles 8 and 9 of the newly mintedUnited Nations Convention against Transnational Organized Crime.91 Nor should the effort tocombat corruption require a link to organized crime: individual officials responsible forknowingly assisting trafficking or inhumane treatment in smuggling should be stoppedregardless.

C. Addressing lacunae

The WCAR offers a unique opportunity to address lacunae in international standards onmigrant workers rights. Three issues that have not received adequate international attention are:(1) the situation of internal migrant workers; (2) the intersection with abuses by multinationalcompanies; and (3) remedies for lack of consular notice in certain legal proceedings. All threeissues should receive attention in the text of the WCAR Declaration and Programme of Action.

While the first two are self-explanatory, the third deserves some elaboration. Notably, at theUnited States-sponsored June 2000 International Workshop on Best Practices Related to MigrantWorkers and their Families, the conference’s Final Report reaffirmed that the “1963 ViennaConvention on Consular Relations obliges States Parties to inform foreigners arrested or detainedthat they have the right to notify their consular representatives.”92 Such a statement on migrantworkers rights does not advance international standards. It is incontrovertible that the ViennaConvention already imposes the obligation for consular access and notification. At the WCAR,States should strive towards articulating stronger standards concerning remedies for violationsof the obligation. For example, NGOs might advocate for specific language such as calling onStates to suspend or reverse legal proceedings in actions pursued against a foreigner inviolation of international obligations for consular access and notification.

These are obviously only some of the strategies for the WCAR on the issue of migrantworkers rights. Other specific issues will be brought to the conference by international andnational NGOs. The question is whether unrelated power politics between States will divertattention from the needs of migrant workers or whether the conference will stay the course ofgenuinely trying to promote racial justice in this arena.

January 2001

WCAR Think Papers*

90 Human Rights Documentation Center & South Asia Human Rights Documentation Center, CombatingTrafficking: The U. S. Initiative Well Intentioned -- Bad Design (4 August 2000 - HRF/24/00)<www.hrdc.net/sahrdc/hrfeatures/HRF24.htm>.91 Available at <www.uncjin.org/Documents/Conventions/conventions.html>.92 Text available at < www.iom.int/defaultmigrationweb.asp>.* The Think Papers series is available at <www.hrdc.net>.

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A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR Think Paper VI

The Rights of Migrant Workers: Keeping the issue on track

The rights of migrant workers is an issue likely to receive significant attention at the WorldConference Against Racism. One reason for this special consideration is that the InternationalConvention on the Protection of All Migrant Workers and Members of Their Familiesfinally appears to be nearing the number of ratifications necessary to bring it into force. Anotherreason is that international initiatives in this arena have recently incorporated a relatively stronggender-perspective and have, accordingly, engaged efforts to resolve burgeoning crises such astrafficking in persons.

A final reason that migrant workers rights will receive special consideration is that severalStates (“sending countries”) consider it in their self-interest to push for stronger internationalstandards. Nongovernmental organisations can, therefore, count on vocal support from a numberof governments. Admittedly, as we discuss below, some governments utilize the migrantsworkers issue mainly to score political points against ideological opponents (e.g., the Cuba–United States of America rift). Such political manoeuvring, however, distorts the real issuesinvolved. One of the tasks of NGOs and genuinely concerned States will be to direct thediscussion towards a principled consideration of the pressing needs of migrant workers and toexplain the benefits of stronger international standards for all countries -- sending and receivingalike.

I. Political alignments

The political position a State will adopt on the issue of migrant workers at the WCAR can beanticipated by whether it is a so-called sending or receiving country. In this regard, recent shiftsin international migration should be taken into account. According to the International LabourOrganisation (ILO), major new sending countries include Bangladesh, Egypt and Indonesia;while major new receiving countries include Italy, Japan, Malaysia and Venezuela.

The group of States that are willing to support stronger international standards can also beanticipated by examining the status of ratifications of major international instruments. There arethree principal international instruments for the protection of migrant workers rights: (1) theInternational Convention on the Protection of All Migrant Workers and Members of TheirFamilies; (2) the ILO Migration for Employment Convention (Revised) (No. 97); and (3) theILO Migrant Workers (Supplementary Provisions) Convention (No. 143). As a general rule, theStates that have ratified or signed these instruments (See Table) can be expected to offer thegreatest support for advancing international standards. The problem is that all three conventionssuffer from an exceedingly low number of ratifications, indicating the lack of overall support forthe issue.

Consider the numbers. The International Convention on the Protection of All MigrantWorkers and Members of Their Families was opened for signature in 1990. The Convention hasyet to come into force, even though it requires only 20 ratifications for that to occur. As of 16October 2000, 15 States had ratified the Convention and 9 had signed it. The ILO Conventionshave also received a relatively low number of ratifications. ILO Convention No. 97 has 41

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ratifications and ILO Convention No. 143 has a paltry 18. Twelve States have ratified bothILO Conventions, thus reducing even further the number of overall States party. In short, anuphill battle on the issue of migrant workers rights awaits NGOs at the WCAR.

NGOs should also be cognizant of a particular inconsistency in State politics on migrantworkers rights: governments that sponsor stronger resolutions, but do not abide the resolution’sbasic agreement. For example, at the most recent session of the United Nations Commission onHuman Rights, 20 States sponsored the Resolution on the International Convention on MigrantWorkers Rights. The Resolution “call[ed] upon all member States to consider the possibility ofsigning and ratifying or acceding to the Convention as a matter of priority, [and] expresse[d] thehope that this international instrument will enter into force at an early date.”93 Eight of theStates that sponsored the Resolution have neither ratified nor signed the Conventionthemselves. The group of eight States guilty of this double standard are: Cuba, Ecuador, ElSalvador, Haiti, Pakistan, Peru, Portugal and Tunisia. Some of these States specifically madestrong statements that would suggest they supported the Convention in practice. For instance,according to the UN’s official summary record:

“[The representative of Cuba”] said that discrimination against migrants was one ofthe worst forms of contemporary racism. It was regrettable that the InternationalConvention on the Protection of the Rights of All Migrant Workers and Members ofTheir Families had still not received the 20 ratifications required for it to enter intoforce. Of even greater concern was the fact that not one of the developed countrieswhich were hosts to tens of millions of migrant workers had signed theConvention.”94

Admittedly, Ecuador and El Salvador stated during the proceedings that they were intending toratify the Convention.95 As of 16 October 2000, however, neither has signed, let alone ratified,the Convention.

Status of Ratifications

International Convention on the Protection of All Migrant Workers and Members of TheirFamiliesSignatures: Bangladesh, Chile, Comoros, Guatemala, Guinea-Bissau, Paraguay, Sao Tome andPrincipe, Tajikistan and Turkey

Ratifications: Azerbaijan, Bolivia, Bosnia and Herzegovina, Cape Verde, Colombia, Egypt,Ghana, Guinea, Mexico, Morocco, Philippines, Senegal, Seychelles, Sri Lanka, Uganda

ILO Convention concerning Migration for Employment (Revised) (No. 97)Algeria, Bahamas, Barbados, Belgium, Belize, Bosnia and Herzegovina, Brazil, Burkina Faso,Cameroon, Cuba, Cyprus, Dominica, Ecuador, France, Germany, Grenada, Guatemala, Guyana,Israel, Italy, Jamaica, Kenya, the former Yugoslav Republic of Macedonia, Malawi, Malaysia,Mauritius, Netherlands, New Zealand, Nigeria, Norway, Portugal, Saint Lucia, Slovenia, Spain,

93 E/CN.4/2000/L.56, Agenda item 14 (a) (14 April 2000). The Resolution was ultimately adopted with this part ofthe draft text in tact. See E/CN.4/RES/2000/49 (adopted without a vote).94 E/CN.4/2000/SR.45, at para. 37 (Summary Record) (emphasis added).95 E/CN.4/2000/SR.45.

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Tanzania, Trinidad and Tobago, United Kingdom, Uruguay, Venezuela, the former SocialistFederal Republic of Yugoslavia and Zambia

ILO Convention concerning Migrant Workers (Supplementary Provisions) (No. 143)Benin, Bosnia and Herzegovina, Burkina Faso, Cameroon, Cyprus, Guinea, Italy, Kenya, theformer Yugoslav Republic of Macedonia, Norway, Portugal, San Marino, Slovenia, Sweden,Togo, Uganda, Venezuela and the former Socialist Federal Republic of Yugoslavia

II. Goals and Strategies for the WCAR

The above summary of the political backdrop should already indicate some of the goals forthe WCAR and strategic problems in achieving them. We suggest the following be part of theobjectives for the conference on the issue of migrant workers rights.

A. Bring the International Convention into force

1. Goal for the Office of the High Commissioner:

One of the chief aims should be to bring into force the International Convention on theProtection of All Migrant Workers and Members of Their Families. The Office of the HighCommissioner for Human Rights (OHCHR) should, as a matter of priority, set itself thegoal of being able to announce at the opening of the WCAR that the InternationalConvention has received the requisite 20 ratifications necessary to bring it into force.Notably, the momentum is working in favour of making this possible. The InternationalCovenant has recently experienced a small upsurge of signatures and ratifications: Six of the nineStates that have signed the Convention did so in 2000, and five of the States that have ratified theConvention did so in 1999-2000. The OHCHR’s task is made easier by the fact that many Stateshave not ratified the Convention due to lack of knowledge of its value and of its relevance totheir situation as either a sending or receiving country.

2. Articulating the reasons for ratification

Education and awareness, while lost causes in many other contexts, may be uniquelyeffective in the case of obtaining ratification of the International Convention. Various reportshave indicated that the low number of ratifications is due to lack of knowledge about theConvention’s existence or misunderstandings about the obligations it imposes. NGOs, concernedStates and others should ensure that States understand, for example, that the Convention: appliesrules to sending countries (several sending States, for example, have claimed disinterest in theConvention on the specious ground that they do not receive migrant workers); attempts tocontrol illegal immigration to the benefit of receiving countries (See, e.g., Article 68); and isnot redundant with the ILO Conventions (for example, the International Convention coversclasses of migrants not included in either ILO Convention such as itinerant and self-employedmigrant workers).96

96 Two resources for identifying such misunderstandings and effective responses are: (1) The Rights of Non-Citizens, Addendum, E/CN.4/Sub.2/1999/7/Add.1 (Working paper submitted by Mr. David Weissbrodt); and (2)International Labour Conference, Report III (1B), 87th Session, Geneva, June 1999 (General Survey on MigrantWorkers) < www.ilo.org/public/english/standards/relm/ilc/ilc87/r3-1b.htm>.

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In seeking to obtain the remaining five ratifications and, beyond that, expanding the numberof States parties, NGOs, concerned States and others should place special pressure on the groupof eight States that have strongly supported ratification of the Convention in rhetoric but notpractice. The representatives of some of these State’s may genuinely need to be reminded oftheir government’s vocal support for the Commission on Human Rights Resolution and the lackof corresponding action on their part; that is, conceivably this is an area in which somegovernments might not be matching rhetoric with action due to information gaps. If these Statesdo not resolve this discrepancy, however, the rhetorical positions their representatives adopt inother contexts will likely be distrusted, especially if NGOs and others bring attention to the cleardouble-standard they have adopted on this issue.

B. Incorporating the fight against corruption

Important aspects of migrant workers rights can benefit considerably from establishingstronger standards and focusing international efforts on tackling the problem of corruption.Particular areas that can stand to benefit include eliminating: trafficking in persons; inhumanetreatment by migrant smugglers; and abuses against undocumented migrant workers byemployers and officials.

Elsewhere, HRDC and SAHRDC have argued that international efforts to counter trafficking

have underestimated how local-level official corruption functions as a crucial variable in thetrafficking in persons.97 Although that discussion specifically concerned trafficking in womenand children, the same principle applies to combating inhumane treatment by migrant smugglers.In this regard, States need not wait to abide by the principles of combating corruption enshrinedin the two Protocols (on Trafficking and Smuggling) and Articles 8 and 9 of the newly mintedUnited Nations Convention against Transnational Organized Crime.98 Nor should the effort tocombat corruption require a link to organized crime: individual officials responsible forknowingly assisting trafficking or inhumane treatment in smuggling should be stoppedregardless.

C. Addressing lacunae

The WCAR offers a unique opportunity to address lacunae in international standards onmigrant workers rights. Three issues that have not received adequate international attention are:(1) the situation of internal migrant workers; (2) the intersection with abuses by multinationalcompanies; and (3) remedies for lack of consular notice in certain legal proceedings. All threeissues should receive attention in the text of the WCAR Declaration and Programme of Action.

While the first two are self-explanatory, the third deserves some elaboration. Notably, at theUnited States-sponsored June 2000 International Workshop on Best Practices Related to MigrantWorkers and their Families, the conference’s Final Report reaffirmed that the “1963 ViennaConvention on Consular Relations obliges States Parties to inform foreigners arrested or detainedthat they have the right to notify their consular representatives.”99 Such a statement on migrantworkers rights does not advance international standards. It is incontrovertible that the ViennaConvention already imposes the obligation for consular access and notification. At the WCAR,States should strive towards articulating stronger standards concerning remedies for violations 97 Human Rights Documentation Center & South Asia Human Rights Documentation Center, CombatingTrafficking: The U. S. Initiative Well Intentioned -- Bad Design (4 August 2000 - HRF/24/00)<www.hrdc.net/sahrdc/hrfeatures/HRF24.htm>.98 Available at <www.uncjin.org/Documents/Conventions/conventions.html>.99 Text available at < www.iom.int/defaultmigrationweb.asp>.

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of the obligation. For example, NGOs might advocate for specific language such as calling onStates to suspend or reverse legal proceedings in actions pursued against a foreigner inviolation of international obligations for consular access and notification.

These are obviously only some of the strategies for the WCAR on the issue of migrantworkers rights. Other specific issues will be brought to the conference by international andnational NGOs. The question is whether unrelated power politics between States will divertattention from the needs of migrant workers or whether the conference will stay the course ofgenuinely trying to promote racial justice in this arena.

March 2001

WCAR Think Papers*

A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

Think Paper VIII

Racism Incorporated: Controlling abuses by national and multinational companies

The World Conference Against Racism (WCAR) provides a unique opportunity toadvance international standards regulating human rights violations by companies. Thisopportunity comes against the background of two trends: (1) increasing efforts at theinternational level to develop standards governing abuses by companies; and (2) increasingabuses by companies owing, in significant part, to globalisation. It is, therefore, worrisome thatthe Elements for a Draft Declaration and Programme of Action for the World Conferenceincludes barely any reference to dealing with racial discrimination by companies.

This Think Paper briefly describes the importance of the issue of racial discrimination bycompanies, identifies relevant legal standards and suggests prospects for making progress in thisarea at the WCAR.

I. What is at stake?

Severe racial discrimination by companies dates back to the creation of the corporateform itself. Colonialism gave rise to powerful multinational trading companies. Slave tradingcompanies and plantation economies thrived on human bondage. During World War II,corporations used forced labour supplied directly by Hitler. At the same time, Japanesecompanies profited from the use of Chinese and other slave labour. And, despite the efforts ofthe United Nations to isolate Apartheid South Africa, corporations repeatedly broke internationalsanctions.

Today, companies are involved in racial discrimination throughout the world. Arms dealersare involved in supplying weapons that fuel ethnic conflicts. Petroleum and mining companiesconspire with governments to eliminate political opposition of indigenous groups through extra-judicial killings. Construction companies are involved in the forced relocation of indigenouspeople to clear the way for dam projects. And, many international criminal operations usecompanies as false fronts to traffic women and children across borders for forced prostitution

* The Think Papers series is available at <www.hrdc.net>.

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Racial discrimination is, of course, only one component of human rights concernsrelating to companies. But, it is a highly significant component at that. Many of the subjects ofracial discrimination to be covered at the WCAR involve abuses by companies (e.g., migrantworkers, trafficking, indigenous peoples, the media and, arguably, Internet providers).Nevertheless, this is perhaps one of the areas in greatest need of more specific internationalstandards and practical mechanisms for controlling abuses. Hence, the subject requires specialattention in the Declaration and Programme of Action and should not simply be folded into otherissues by allusion and oblique reference -- as is the case with the present Draft (when it refers tocompanies at all).

II. International precedents of control

While this Think Paper describes the need for developing international standards relating toabuses by companies, it should be kept in mind that a State’s obligation to prevent, punish andremedy rights violations within the private sector is settled international law. Companies arelegal persons and abuses committed by them which infringe on individuals’ human rights fallsquarely within the domain of actions States are under an international obligation to suppress.Nevertheless, substantial work remains to be completed in developing standards that apply directobligations to companies, in specifying the types of company abuses that infringe human rightsand in devising mechanisms for effectively regulating violations.

Existing international standards for controlling human rights violations by companies arerelatively disparate. Thanks to recent action at the Sub-Commission on the Promotion andProtection of Human Rights, however, a synthesis of these standards is being developed. Basedon an important Working Paper by Sub-Commission Member, Mr. David Weissbrodt, the Sub-Commission has begun preparing Draft Principles Relating to the Human Rights Conduct ofCompanies (E/CN.4/Sub.2/2000/WG.2/WP.1, Annex). The United Nations Business andHuman Rights Global Compact also represents recent progress towards achieving uniform anduniversal human rights standards for controlling abuses in business practice.

In general, human rights standards apply to abuses by companies in a number of thematicareas including: prohibitions against the slave trade, child labour, piracy, mercenaries, armssales, terrorist organizations, organized criminal syndicates and trafficking of persons. Of course,international standards also apply directly to companies in the areas of workers’ rights,corruption, bribery, hazardous waste and other environmental pollution.

Foundational international texts pertaining to activities of multinational companiesrecognize the direct obligation of these entities to respect international human rights. The ILO’sTripartite Declaration of Principles concerning Multinational Enterprises and Social Policystates: “All the parties concerned by this Declaration .… should respect the UniversalDeclaration of Human Rights and the corresponding International Covenants adopted by theGeneral Assembly of the United Nations.” Similarly, in 2000, the OECD Guidelines forMultinational Enterprises added a provision stating that enterprises should “[r]espect thehuman rights of those affected by their activities consistent with the host government’sinternational obligations and commitments.”

General international human rights instruments apply to companies at different levels ofspecification. For example, the Preamble of the Universal Declaration of Human Rightsstates: “every individual and every organ of society, keeping this Declaration constantly in mind,shall strive . . . by progressive measures, national and international, to secure the[] universal andeffective recognition and observance [of these rights and freedoms].” Article 2(e) of the

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Convention on the Elimination of All Forms of Discrimination Against Women requiresStates to “take all appropriate measures to eliminate discrimination against women by anyperson, organization or enterprise.” In General Recommendation No. 19 concerning violenceagainst women including sexual harassment and favourable work conditions, the Committee onthe Elimination of All Forms of Discrimination Against Women stated:

It is emphasized, however, that discrimination under the Convention is not restrictedto action by or on behalf of Governments … Under general international law andspecific human rights covenants, States may also be responsible for private acts ifthey fail to act with due diligence to prevent violations of rights or to investigate andpunish acts of violence, and for providing compensation.100

The International Covenant on Economic, Social and Cultural Rights also coversabuses involving companies. In General Comment No. 12, the Committee on Economic, Socialand Cultural Rights (CESCR) described the responsibility of companies under Article 11 of theCovenant in protecting the right to food:

While only States are parties to the Covenant and are thus ultimately accountable forcompliance with it, all members of society -- individuals, families, local communities,non-governmental organizations, civil society organizations, as well as the privatebusiness sector -- have responsibilities in the realization of the right to adequatefood…The private business sector -- national and transnational - should pursue itsactivities within the framework of a code of conduct conducive to respect of the rightto adequate food, agreed upon jointly with the Government and civil society.101

In General Comment No. 5, the CESCR described the responsibility of companies underArticle 2(2) of the Covenant in protecting the right to equality of people with disabilities:

Given the increasing commitment of Governments around the world to market-basedpolicies, it is appropriate in that context to emphasize certain aspects of States parties’obligations. One is the need to ensure that not only the public sphere, but also theprivate sphere, are, within appropriate limits, subject to regulation to ensure theequitable treatment of persons with disabilities.... [I]t is essential that privateemployers, private suppliers of goods and services, and other non-public entities besubject to both non-discrimination and equality norms in relation to persons withdisabilities.102

In General Comment 14, the CESCR described the responsibility of companies underArticle 12 of the Covenant in protecting the right to health:

While only States are parties to the Covenant and thus ultimately accountable forcompliance with it, all members of society - individuals, including healthprofessionals, families, local communities, intergovernmental and non-governmental

100 CEDAW, General Recommendation No. 19 (Eleventh session, 1992), para. 9; see also CEDAW, GeneralRecommendation No. 16 (Tenth session, 1991) (concerning “unpaid women workers in rural and urban familyenterprises”).101 CESCR, General Comment No. 12 (Twentieth session, 1999), para. 20; see also id. at para. 27 (“States partiesshould take appropriate steps to ensure that activities of the private business sector and civil society are inconformity with the right to food.”); id. at para. 15 (“The obligation to protect requires measures by the State toensure that enterprises or individuals do not deprive individuals of their access to adequate food.”).102 CESCR, General Comment No. 5 (Eleventh session, 1994), para. 11.

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organizations, civil society organizations, as well as the private business sector - haveresponsibilities regarding the realization of the right to health. State parties shouldtherefore provide an environment which facilitates the discharge of theseresponsibilities.103

International standards relating specifically to racial discrimination by companies also exist,though at a relatively abstract level. Of greatest importance is the settled understanding that theInternational Convention on the Elimination of All Forms of Racial Discrimination(ICERD) applies to abuses by companies. In particular, Article 2(d) of the ICERD requiresStates to “prohibit and bring to an end, by all appropriate means, including legislation as requiredby circumstances, racial discrimination by any persons, group or organization.” Article 5 of theICERD prohibits racial discrimination in a range of economic, social and cultural fields. InGeneral Comment No. 20, the Committee on the Elimination of All Forms of RacialDiscrimination explained that Article 5 relates to the practices of private organizations as well:“To the extent that private institutions influence the exercise of rights or the availability ofopportunities, the State Party must ensure that the result has neither the purpose nor the effect ofcreating or perpetuating racial discrimination.”104 Article 4(b) of the ICERD obligates States to“declare illegal and prohibit organizations . . . which promote and incite racial discrimination.”

Finally, an important decision by the Human Rights Committee illustrates the application ofthe International Covenant on Civil and Political Rights (ICCPR). In Länsman et al. v.Finland, Communication No. 511/1992,105 members of the Sami ethnic group argued thatFinland’s contract with a stone quarrying company impacted their traditional herding area andtherefore violated Article 27 (cultural, religious and language rights of minorities) of the ICCPR.The Committee held that the contract did not violate Article 27 because numerous safeguardswere in place to protect the Samis’ rights. The Committee made the following unequivocalstatement regarding State obligations under Article 27 with regard to companies:

A State may understandably wish to encourage development or allow economicactivity by enterprises. The scope of its freedom to do so is not to be assessed byreference to a margin of appreciation, but by reference to the obligations it hasundertaken in article 27. Article 27 requires that a member of a minority shall not bedenied his right to enjoy his culture. Thus, measures whose impact amount to a denialof the right will not be compatible with the obligations under article 27.106

The Committee also stated that “if mining activities in the Angeli area were to be approvedon a large scale and significantly expanded by those companies to which exploitation permitshave been issued, then this may constitute a violation of the authors’ rights under article 27, inparticular of their right to enjoy their own culture. The State party is under a duty to bear this inmind when either extending existing contracts or granting new ones.”107

III. Opportunities at the WCAR

103 CESCR, General Comment No. 14 (Twenty-second session, 2000), para. 42. See also id. at para. 55 (“Statesparties should take appropriate steps to ensure that the private business sector and civil society are aware of, andconsider the importance of, the right to health in pursuing their activities.”).104 CERD, General Recommendation No. 20, at para. 5.105 CCPR/C/52/D/511/1992.106 Ibid. at para. 9.4107 Ibid. at 9.8

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A number of possibilities exist for advancing standards at the WCAR specific to humanrights violations involving companies. The following list provides a few of these options.

1. Developing and specifying standards: The above discussion shows that sufficient sources ofinternational law confirm the direct obligation of companies not to commit human rightsviolations as well as the obligation of States to prevent and prohibit such violations. The WCARcan help in the effort to make these standards more specific. The Draft Principles Relating to theHuman Rights Conduct of Companies being discussed in the Sub-Commission serve as anexcellent reference tool for many of these issues. The Draft Principles includes a number ofstandards that clearly implicate issues of racial discrimination such as: racial harassment andabuse in the workplace (Section D of the Draft Principles); slavery (Section E of the DraftPrinciples); cultural property of indigenous peoples (Section F, para. 18 of the Draft Principles);use of security forces against indigenous peoples (Section G, para. 22 of the Draft Principles);fair and equal remuneration (Section H of the Draft Principles); and environmental racism(Section L of the Draft Principles).

Accordingly, NGOs and concerned States can work towards two goals: (1) having theWCAR Declaration and Programme of Action generally endorse the Draft PrinciplesRelating to the Human Rights Conduct of Companies; and (2) enshrining, in the WCAR’sfinal text, some of the specific standards included in the Draft Principles.

2. Multinational and national companies: In the effort to strengthen standards in this domain,attention should be given to both multinational and national companies. First, in terms of aprincipled moral voice, it makes little sense to try to distinguish the legality of abuses withregard to multinational versus national companies. Racial discrimination by a company operatingwithin a State is prohibited regardless of the international character of the organization.Moreover, while transnational companies are, in general, among the larger and more powerful ofsuch entities, many national companies have comparable strength and autonomy. Second, as theSub-Commission Working Paper makes clear, advancing international standards for onlymultinational companies would place multinational companies at a significant comparativedisadvantage. Such organizations would, therefore, be far less willing to endorse internationalcodes of conduct or other international documents reflecting human rights standards if thosestandards were not uniformly applicable. There would be a special incentive for theseorganizations not to comply. Notably, the Draft Principles deliberately do not distinguishbetween multinational and national companies. Finally, in terms of political strategy, it willrequire getting developed countries on board if international standards are to be advancedsignificantly in this area. For the same reasons of moral voice and comparative disadvantage,these governments will be far more willing to help develop such standards and implement themif all companies are covered.

3. Institutional mechanisms at the international and regional level: The WCAR is supposedto be concerned with practical strategies for combating racial discrimination. Accordingly, twooptions that NGOs and concerned States might consider in this area are: (1) creating a divisionwithin the Office of the High Commissioner for Human Rights to monitor human rightsviolations by companies; and (2) creating a Special Rapporteur on human rights violations bycompanies. Both of these options could be endorsed by the world community in Article XIX(Measures at the International Level) of the Draft Programme of Action. Finally, NGOs andconcerned States should urge the adoption of language specifically within Article XVIII(Regional Activities) of the Draft Programme of Action for development of regionalmechanisms that monitor and publicise racial discrimination by companies.

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4. NGO statements: NGOs will use the WCAR to focus attention on existing problems of racialdiscrimination. In making their statements, NGOs should be encouraged to cite to problemsinvolving abuses by companies as well as governments. Such statements alone will go a longway to focusing attention on the issue of human rights violations by companies and to deepeningthe trend toward applying human rights standards directly to companies as a matter of course.

April 2001

WCAR Think Papers*

A joint project of Human Rights Documentation Center (HRDC), International Service for HumanRights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

Think Paper IX

Time for Indigenous Peoples’ Rights

Looming over the 2001 World Conference Against Racism (WCAR) will be the questionwhether a similar world conference will be held in the near future to address the human rights ofindigenous peoples. The answer will depend on whether the international community has thevision and political willpower to make that a reality. Established by General AssemblyResolution 48/163, the International Decade of the World’s Indigenous People ends in 2004.Although some progress at the United Nations has been made in recent years, a great deal ofwork remains. The WCAR offers a significant opportunity in this regard. While this Think Paperaddresses various issues concerning the rights of indigenous peoples at the WCAR, it should notdistract from the most important and realizable goal: inclusion of a political commitment in thefinal text of the WCAR to convene a World Conference on the Rights of IndigenousPeoples. That said, there are a number of other advances that can be made this year in Durban.

Background

One of the world’s worst problems in the area of racial discrimination is the suffering causedto indigenous peoples. The Regional Preparatory Conference for the Americas, for example,admirably acknowledged that “the indigenous peoples of the Americas have been victims ofdiscrimination for centuries”. In 2000, the Sub-Commission’s Working Group on IndigenousPopulations submitted a report describing the continuing victimization of indigenous children inthe areas of armed conflict, health care, administration of justice, unemployment, education,child labour and sexual exploitation (E/CN.4/Sub.2/AC.4/2000/2). The Special Rapporteur onContemporary Forms of Racism has brought attention to reported violations of the rights ofindigenous peoples in several States including Australia (E/CN.4/1997/71), Brazil(E/CN.4/1996/72/Add.1), Colombia (E/CN.4/2001/21; E/CN.4/1997/71/Add.1;E/CN.4/1995/78), Costa Rica (E/CN.4/2000/16), and the United States of America(E/CN.4/1995/78/Add.1). The human rights treaty bodies have also found abuses committedagainst indigenous peoples in every region of the world. In Resolution 1993/30, the Commission * The Think Papers series is available at <www.hrdc.net>.

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on Human Rights recommended to all Thematic Rapporteurs to pay particular attention, withinthe framework of their mandates, to the situation of indigenous peoples. Perhaps due to limitedresources, the rapporteurs have generally failed in that task.

The range of concerns of indigenous peoples’ rights are vast and the nature of the solutionpolitically challenging. Accordingly, the eight-day WCAR will prove completely inadequate toaddress indigenous peoples’ issues given the extent of other topics to be addressed at the forum.The alternative -- continued standard-setting procedures at the UN -- has proven painstakinglyslow. What is clearly needed is a world conference on indigenous peoples’ rights to excel theinternational exchange of ideas and political progress in this area.

The UN has been working on a Draft United Nations Declaration on the Rights of IndigenousPeoples (E/CN.4/SUB.2/RES/1994/45), but with only two Articles of the Draft Declarationadopted after nearly twenty years of effort, that process may best be described as stalled. In1982, the Working Group on Indigenous Populations, a subsidiary of the then-Sub-Commissionon the Prevention of Discrimination and Protection of Minorities, began drafting the UnitedNations Declaration on the Rights of Indigenous Peoples. The draft was completed in 1993 andforwarded by the Working Group to the Sub-Commission. The Sub-Commission adopted thedraft in 1994 and forwarded the text to the Commission on Human Rights (Ibid). In 1995, theCommission on Human Rights established “as a matter of priority” an Open-ended WorkingGroup to elaborate the Draft Declaration (E/CN.4/RES/1995/32, para. 1 (3 Mar. 1995)). Sixyears later, as mentioned, only two articles have been adopted. Astonishing.

This vacuum of international standards has not been filled by other efforts. The ILOIndigenous and Tribal Peoples Convention (No. 169) has received a dismal fourteenratifications (Argentina, Bolivia, Colombia, Costa Rica, Denmark , Ecuador, Fiji, Guatemala,Honduras, Mexico, Netherlands, Norway, Paraguay and Peru). The Declaration andProgramme of Action for the Second World Conference to Combat Racism and RacialDiscrimination provided some fairly strong statements regarding the promotion and protectionof the rights of indigenous populations (UN Pub., Sales No. E.83.XIV.4, chap II, paras. 34-37).However, its dissemination and impact have been lacking. We wonder how many readers of thisThink Paper -- notably, individuals who have an interest in the subject -- know what thatdocument stated. This may be no fault of their own. One can search throughout the HighCommissioner’s website and -- despite requests from members of our organizations to post theDeclarations and Programmes of Action from the two previous world racism conferences -- youwon’t find them.

Two positive developments have occurred in the last few years on the issue ofindigenous peoples’ rights. First, in 1997, the Committee on the Elimination of RacialDiscrimination issued General Recommendation XXIII on the rights of indigenous peoples(See Box). Second, in 2000, the Economic and Social Council (ECOSOC) established, as asubsidiary body, the Permanent Forum for Indigenous Issues.

General Recommendation XXIII on the rights of indigenous peoplesCommittee on the Elimination of Racial Discrimination

(Fifty-first session, 1997)

Para. 4. The Committee calls in particular upon States parties to:

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(a) Recognize and respect indigenous distinct culture, history, language and way oflife as an enrichment of the State’s cultural identity and to promote its preservation;

(b) Ensure that members of indigenous peoples are free and equal in dignity andrights and free from any discrimination, in particular that based on indigenous origin or identity;

(c) Provide indigenous peoples with conditions allowing for a sustainable economicand social development compatible with their cultural characteristics;

(d) Ensure that members of indigenous peoples have equal rights in respect ofeffective participation in public life and that no decisions directly relating to their rights andinterests are taken without their informed consent;

(e) Ensure that indigenous communities can exercise their rights to practise andrevitalize their cultural traditions and customs and to preserve and to practise their languages.

Para. 5. The Committee especially calls upon States parties to recognize and protect therights of indigenous peoples to own, develop, control and use their communal lands, territoriesand resources and, where they have been deprived of their lands and territories traditionallyowned or otherwise inhabited or used without their free and informed consent, to take steps toreturn those lands and territories. Only when this is for factual reasons not possible, the right torestitution should be substituted by the right to just, fair and prompt compensation. Suchcompensation should as far as possible take the form of lands and territories.

The effort to establish the Permanent Forum was, in classic UN style, unnecessarilydelayed. In 1993, the Vienna Declaration and Programme of Action called for the United Nationsto consider “establishment of a permanent forum for indigenous people in the United Nationssystem” (A/CONF.157/24, Part I, para. 32). In Resolution 48/163 of 21 December 1993, theGeneral Assembly requested the Commission on Human Rights to give “priorityconsideration” to the establishment of the permanent forum. No such luck. It would take sevenyears before the Commission would finally approve the establishment of such an institution.Admittedly, time had to be allocated for meaningful consultation and deliberation. However, inthe last few years, when a permanent forum was finally in sight, the delegation from India,with support from the United States of America, engaged in calculated foot-dragging.Despite appeals from the Chairperson-Rapporteur of the Commission’s Inter-Sessional Ad HocWorking Group, the Indian delegation repeatedly sought “procedural clarifications” rather thanengaging in debate on the remaining substantive issues. Despite this obstruction, in 2000, theCommission on Human Rights voted to establish the Permanent Forum (E/CN.4/RES/2000/87(28 April 2000)), and, three months later, ECOSOC approved that decision (Resolution 2000/22(28 July 2000)). According to the ECOSOC Resolution, the Permanent Forum on IndigenousIssues “shall serve as an advisory body to the Council with a mandate to discuss indigenousissues within the mandate of the Council” (Ibid, at para. 2). This includes “provid[ing] expertadvice and recommendations;” “rais[ing] awareness and promot[ing] the integration andcoordination of activities relating to indigenous issues within the United Nations system;” and“prepar[ing] and disseminat[ing] information on indigenous issues” (Ibid).

While the establishment of the Permanent Forum must be viewed as progress, theresources and administrative support committed to it have been criticised by prominentindigenous peoples’ organizations. In their respective regional declarations, indigenous peoples

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organizations have called for a modest but separate secretariat to be attached to the PermanentForum to give the institution the special and continual attention it deserves. Separate secretariatsare attached, for example, to UNICEF, FAO and the Commission on Human Settlements, aStanding Committee of ECOSOC established by an ECOSOC resolution. However, Governmentrepresentatives, especially those of the United States of America, have cited financial andprocedural considerations as grounds for rejection. On 22 February 2000 during the SecondWorking Group on the establishment of the Permanent Forum, Mr. Giuliano Comba,representative of the Administration Section of the OHCHR, provided information on thebudgetary implications of the Permanent Forum. He explained that a separate secretariat with astaff of five persons would cost approximately $1.5 million (E/CN.4/2000/86, para. 30) – not thatmuch by UN standards. Nevertheless, a separate secretariat was rejected and the OHCHR hasmaintained the responsibility over the Permanent Forum.

Problems in this arrangement have already arisen. The OHCHR’s website on theForum is not even updated to reflect the fact that the Permanent Forum has been established (Seewww.unhchr.ch/html/menu2/10/c/ind/ind_sub.htm#forum). Much more important are issuesconcerning the nomination process for the Permanent Forum. The Forum provides 8 seats forrepresentatives of indigenous peoples. Through the Indigenous Peoples Caucus, a representativebody of indigenous peoples organizations working on the Forum at the UN, regional meetingshave been devised to recommend indigenous experts to the Forum and agreements have beenreached across the regions for representative-sharing mechanisms. However, a circular from theOHCHR on 26 February 2001 subverts that wider consultative process by fashioning a differentmethod for individual organizations to petition the OHCHR directly. The circular wasdisseminated without proper consultation with the indigenous representatives and, reportedly,without OHCHR staff properly informing the High Commissioner of the ongoing initiatives ofindigenous peoples organizations in the nomination process. These are simply not problems onewould expect to occur if a separate secretariat dedicated to the Permanent Forum wereestablished.

Proposals for the WCAR

Representatives of indigenous peoples at the WCAR will be calling attention to theproblems faced by their communities and for positive international action. Backroom discussionswill concern various proposals for adoption in the final Declaration and Programme of Action.This Think Paper suggests the following language for inclusion in the final text.

1. The members of the World Conference commit themselves to convening aWorld Conference on the Rights of Indigenous Peoples in commemoration of theconclusion of the International Decade of the World’s Indigenous People.

2. The World Conference urges States and the United Nations system, in consultationwith indigenous peoples, to take all necessary administrative and budgetary measuresto provide the Permanent Forum with a separate secretariat at the earliestpossible date.

3. The World Conference urges the Commission on Human Rights to finalize theDraft Declaration on the Draft United Nations Declaration on the Rights ofIndigenous Peoples by 2004 to mark the conclusion of the International Decade ofthe World’s Indigenous People.

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4. The World Conference recommends the Commission on Human Rights toestablish a Special Rapporteur on the Rights of Indigenous Peoples.

May 2001

WCAR Think Papers*

A joint project of Human Rights Documentation Center (HRDC), International Service forHuman Rights (ISHR) and South Asia Human Rights Documentation Centre (SAHRDC)

WCAR Think Paper X

State Support for CERD

I. Background

Any objective assessment of the treaty bodies’ material capacities would have to concludethat the situation is one of dire proportions. It is hackneyed to comment on how the continuedgross deprivation of financial resources prevents the treaty bodies from accomplishing theirtasks. This is now common knowledge in UN circles.108 In 1988, Professor Philip Alston wascharged with reviewing the long-term functioning of the treaty bodies. In a three-part report, heproduced one of the most thorough UN studies to date and, in his conclusions, identified a hostof problems in the lack of financial and political support for the committees.109

Two particular statements by Professor Alston deserve emphasis here. First, the lack offinancial support for the treaty bodies is not simply a feature of the general resource constraintsin the UN; it is a political choice:

In part this is a reflection of global budgetary pressures and their impact on theUnited Nations as a whole. But, more significantly, it reflects the perhaps inevitable,although nonetheless short-sighted and regrettable, reluctance of Governments toprovide adequate resources for the development of mechanisms which might be ableto monitor their human rights performance more effectively.110

Second, what Professor Alston stated five years ago, has proven true today. If one assumes “theexisting level of funding is unlikely to be increased in the years ahead, then the current system issimply not sustainable and we will witness a steady diminution in the support available to eachtreaty body and in the ability of each to function in a meaningful way.”111

At the WCAR, there is special reason for the world community to do something about theseproblems with regard to the Committee on the Elimination of Racial Discrimination (CERD).One objective of the WCAR has been to work towards the universal ratification of theInternational Convention on the Elimination of Racial Discrimination. Since the General

* The Think Papers series is available at <www.hrdc.net>.108 For some of the detailed concerns the treaty bodies have in trying to operate under these enormous budgetaryconstraints see Twelfth Meeting of the Chairpersons, Plan of Action 2000-2004, HRI/MC/2000/4 (5 May 2000)available at <http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/HRI.MC.2000.4.En?OpenDocument>.109 See A/44/668; A/CONF.157/PC/62/Add.11/Rev.1; E/CN.4/1997/74.110 at para. 11.111 Id. ar para. 12.

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Assembly announced its decision to hold the conference,112 nine states have signed or ratified theConvention (as of 9 May 2001), and more ratifications are expected before the conference’sopening. These additional members to the Convention will naturally entail greater burdens onCERD. The WCAR, therefore, has a unique responsibility to match the political effort to achieveuniversality with a commitment to increase funds for the Committee to address the addedworkload.

Regardless of these newly added strains, the Committee members must be supplied with aprofessional staff to assist in their duties. In a recent compilation of commentaries on the treatysystem,113 all the experts who studied the capacity problems of the treaty bodies suggest (1)expanding the number of the Secretariat’s professional staff dedicated to the treaty bodiesand (2) providing the type of professional staff which would allow the treaty bodies to delegatesome of their functions to qualified staff members. CERD Member Michael Banton, forexample, suggests equipping the treaty bodies with “a small team of legally-qualified advocatesgeneral” to whom the committees could transfers some of their functions.114 Professor DavidHarris suggests basically the same solution, modelling it on the Secretariat support for theEuropean Social Charter’s Committee of Independent Experts.115 Markus Schmidt, a staffmember of the Office of High Commissioner for Human Rights, concludes similarly; he discardsmany proposals that would not work but favours the expansion of junior professional officers tooperate in this advisory capacity due to the success of such initiatives in other parts of the UN.116

Human Rights Committee Member Elizabeth Evatt also lists a number of substantive functionsthat an expansion of professional staff could cover.117 The addition of such a professional staff is,in short, a tested and necessary part of the solution.

CERD’s ability to function effectively depends not only on financial and other materialsupport. It also requires political backing. A major problem is that after their periodic reports,some state parties have responded to the sting of the Committee’s criticisms not withconstructive attempts to review their internal practices, but with irresponsible attacks on thelegitimacy and integrity of the Committee. Consider the recent actions of the government ofAustralia.

In November 1999, Australia submitted a statement to the General Assembly’s ThirdCommittee praising the work of the treaty bodies and reminding all states that internal humanrights issues are the legitimate concern of the international community:

It is the duty of States to promote and protect all human rights and fundamental freedoms.A corollary of this is the acknowledgment by the community of nations that respect forhuman rights is a legitimate matter of international concern, and not the exclusive preserveof national governments.

The United Nations treaty body system contributes significantly and directly to theprotection and promotion of human rights by monitoring implementation of the core humanrights treaties; highlighting violations of these treaties and human rights standards;

112 A/RES/52/111 (12 December 1997).113 THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORING (Philip Alston & James Crawford eds., 2000).114 Michael Banton, Decision-taking in the Committee on the Elimination of Racial Discrimination, at 55, 75.115 David Harris, Lessons from the Reporting System of the European Social Charter, at 347, 356-57.116 Markus Schmidt, Servicing and Financing Human Rights Supervision, at 481, 486-87.117 Elizabeth Evatt, Ensuring Effective Supervisory Procedures: The Need for Resources, at 461, 471.

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interpreting the rights and obligations contained in the treaties; and encouraging betterimplementation and compliance through advice to States.118

In March 2000, CERD reviewed Australia’s periodic report and provided its usual “concernsand recommendations” for a state party. The Committee drew specific attention to Aboriginalrights, including concerns the Committee had about hot button issues in Australia—(i) thegovernment’s unwillingness to apologize for the state’s earlier policy of forced removal ofAboriginal children from their families and (ii) the racially discriminatory impact of mandatorysentencing laws for minor property offences.119 Notably, during the proceedings, it was alsorevealed that for the past two years the Committee had requested the government to visitAustralia but had been refused.120

Taking the Committee’s concerns as an affront, the Australian government threatened towithdraw from the Convention and announced it would officially review its relations to the treatysystem as a whole. Rejecting the Committee’s conclusions, the government questioned theintegrity of particular experts on the basis of their national affiliation: Foreign MinisterAlexander Downer stated, “People who are critical of the Australian Government need to reflecton this point; do they really think it’s right for a United Nations committee, which includespeople from Cuba and from China and Pakistan, to start getting involved in debate about whetherthe Prime Minister should say sorry or not for the stolen generation . . . . I mean, Australiansaren’t going to cop that.”121

In August 2000, the government announced that the Cabinet had concluded an internalreview of its relation to the treaty bodies and from now on it “will only agree to visits toAustralia by treaty committees and requests from the UN Committee [sic] on Human Rights‘mechanisms’ for the provision of information and to visit where there is a compelling reason todo so.”122 The government also stated it would “immediately implement a package of measuresto improve our continued interaction with UN human rights treaty committees, including …[r]eporting to and representation at treaty committees be based on a more economical andselective approach where appropriate.” The government’s statement also declared that“Australia’s strategic engagement with the treaty committee system” would depend on “theextent to which effective reform occurs”— a matter of course determined by Australia’s visionof reform. Holding little to nothing back, the statement concluded: “The Government believesthese steps will ensure that Australia gets a better deal from the UN treaty committees.”123

Fortunately, within Australia significant political voices condemned the government’sactions. The Australian Democrats leader Meg Lees, for example, stated: “We've taken our batand ball and gone home because we’ve had some criticism . . . . Are they such delicate petals that

118 See Statement by Mr Andrew Goledzinowski, Counsellor on behalf of Australia, Canada, New Zealand andNorway, Third Committee (54th Session) - Item 116(a): Human Rights Questions and Implementation of HumanRights Instruments (3 Nov. 1999)<http://www.un.int/australia/Statements/UNGA%2054/Social/991103_thirdhumanrightsreform.htm>.119 CERD: State party periodic report -- Australia. 19/04/2000. CERD/C/304/Add.101. (ConcludingObservations/Comments), paras. 13 & 16.<http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/eb3df96380faaf97802568ac00544c55?Opendocument>120 Simon Mann, UN Body Wants Invitation, Australasian Business Intelligence, 31 Mar. 2000.121 Sonny Inbaraj, Rights-Australia: Aboriginals to Protest Racism at Olympics, Inter Press Service, 4 Apr. 2000.122 See Joint News Release by Minister for Foreign Affairs Alexander Downer, Attorney-General Daryl Williamsand Minister for Immigration and Multicultural Affairs Philip Ruddock, Improving the Effectiveness of UnitedNations Committees, 29 August 2000, available at<http://law.gov.au/aghome/agnews/2000newsag/joint14_00.htm>.123 Ibid.

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they can’t take legitimate criticism.”124 In a joint statement, the Labor attorneys-general of fourstates similarly condemned the national government’s actions.125 Similar sentiments were echoedby opposition (Labor Party) foreign affairs spokesperson Laurie Brereton. Nonetheless, thesestatements have not changed the regrettable position taken by the government. Worse yet, thevarious bureaucratic initiatives the government has designed to further review its relationship tothe treaty bodies and to press for international coordination on the issue of “reform” are likely torepresent precious Australian dollars that would be better spent on directly supporting thecommittees’ work.

Aside from these political skirmishes, innovative solutions must be developed to ensureaccessibility to the Committee, dissemination of the Committee’s work and promotion of qualityand timely state party reports. One solution would be for CERD to hold some sessions in-region. Several commentators have described the difficulty of national-level NGOs to travel toGeneva or New York to address a treaty body during their state’s periodic report. This imposesadded burdens for human rights organizations that focus on a number of countries in their region.Also, due to the distant and removed nature of these proceedings, the review of the state partyreports have not received adequate attention from the national media within a country. Theexpense in reporting in Geneva or New York also compromises the nature of the governmentaldelegation that represents a state party as well as the ability of the state to report at all. Notably,the interest in providing greater access to domestic groups and obtaining increased mediaattention motivated the Human Rights Committee to hold its review of the United States’ firstperiodic report in New York, rather than Geneva. CERD—and other treaty bodies—shouldconsider holding sessions “within region” and, at those sessions, reviewing the reports of severalstates within the region. Treaty bodies that complement each other, such as CERD and CAT,might coordinate their efforts in this regard. In-region sessions would: (1) provide greater accessto the treaty body for members of civil society; (2) create the type of publicity around a specialevent that is necessary to attract media attention; and (3) pressure governments to submit reportsif their neighbours are doing the same or if expenses otherwise undermine their ability to do so.

II. Options for the WCAR

The WCAR constitutes an opportunity for the world community to support CERD in ameaningful fashion. Accordingly, human rights NGOs and similarly minded states can push forthe WCAR’s Declaration and Programme of Action to:

1. Endorse creative solutions to promote the publicity and accessibility of the Committee’s workthrough such measures as in-region state party reports.

2. Commit to increasing resources for the Committee through expansion of professional staffdedicated to serving the treaty bodies and to helping process review of state party reports.

3. Deplore the obstructionist actions of state parties such as threatening to withdraw from theConvention and engaging in a public campaign to undermine the Committee’s legitimacy onaccount of concerns raised by the Committee.

4. Urge all states to submit to the Committee an open invitation to visit the country such that theCommittee is not hampered in its ability to monitor compliance with the Convention.

124 Mark Riley, Pressure Grows Over UN Attack, The Age, 31 August 2000.125 Ibid.

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5. Endorse expansion of resources to the Office of the High Commissioner for Human Rights foradvisory services and technical assistance to help states in ratifying the Convention, preparingperiodic reports and adjusting domestic legislation to comply with the Convention.