The un Convention on the Elimination of All Forms of Racial Discrimination : Reprint Revised by Natan Lerner [1 ed.] 9789004279926, 9789004279919

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

Nijhoff Classics in International Law Volume 3

The titles published in this series are listed at brill.com/ncla

The un Convention on the Elimination of All Forms of Racial Discrimination Reprint Revised by Natan Lerner By

Natan Lerner

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Lerner, Natan, author. The U.N. Convention on the Elimination of All Forms of Racial Discrimination : reprint revised by Natan Lerner / By Natan Lerner. pages cm. -- (Nijhoff classics in international law ; v. 3) Includes bibliographical references and index. ISBN 978-90-04-27991-9 (hardback : alk. paper) -- ISBN 978-90-04-27992-6 (e-book) 1. International Convention on the Elimination of All Forms of Racial Discrimination (1966) 2. Race discrimination--Law and legislation. I. Title. K3242.A41966L37 2014 342.08’73--dc23 2014039929

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, ipa, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface ISSN 2214-2436 ISBN 978-90-04-27991-9 (hardback) ISBN 978-90-04-27992-6 (e-book) Copyright 2015 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Nijhoff and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Introduction: icerd, Fifty Years After ix Introduction to the Second Edition xxxi Preface to the First Edition xxxv Guide to United Nations Documents xxxvii

Part 1 The Preparation of the Convention 1 2 3 4 5 6 7

Resolutions on Racial Prejudice and Religious Intolerance 3 Resolutions on the Draft Declarations and Conventions 3 Preparation of the Convention 5 Work of the Sub-Commission 6 Work of the Commission on Human Rights 6 Draft of the Third Committee 7 Vote in the General Assembly 8

Part 2 Scope and Significance of the Convention 1 2 3 4

The Convention and the International Bill of Rights 11 Universality of the Convention 13 Balance between Freedoms 15 Measures of Implementation and the Right of Individual Petition 16

Part 3 Interpretation of the Convention 1 The Preamble 21 1 Discussion in the Sub-Commission 22 2 Discussion in the Commission 24 3 Discussion in the Third Committee 25 4 Contents of the Preamble 26 5 Reference to Nazism 28

vi 2 Substantive Articles 30 Article 1 Definition of Racial Discrimination 30 Article 2 Obligations of State 38 Article 3 Apartheid 44 Article 4 Measures to Eradicate Incitement and Prohibition of Racist Organizations 47 Article 5 Rights Specially Guaranteed by the Convention 57 Article 6 Remedies Against Racial Discrimination 63 Article 7 Steps in the Fields of Education and Information 65 3 Substantive Articles not Incorporated in the Convention 67 1 Article on Interpretation 67 2 Other Articles Deleted 69 3 Article on Anti-Semitism 70 4 Measures of Implementation 76 1 Drafting of the Articles on Implementation 76 2 Contents of Part II of the Convention 77 3 Recourse to Other Procedures 91 5 Final Clauses—Reservations 94 1 Signature and Ratification 94 2 Accession 95 3 Entry into Force 95 4 Reservations 95 5 Denunciation 97 6 Settlement of Disputes 97 7 Revision 97 8 Notifications 99 9 Authentic Text 99 10 Omitted Clauses 99

Part 4 The Work of the Committee 1 Rules of Procedure and Guidelines for Reporting 103 1 Meetings. Membership. Voting. Publicity 103 2 Reports and Communications from States Parties 106

Contents

Contents

3 Procedural Rules for Inter-State Complaints 107 4 Guidelines for the Content of Reports 108 2 The Reporting System 114 1 Difficulties and Misconceptions 114 2 Suggestions and General Recommendations 117 3 Sources of Information. The Role of ngos 118 3 Article 15 and the Practice of the Committee 120 1 The Committee’s Powers Under Article 15 120 2 The Working Groups 122 3 Southern Rhodesia and Namibia 123 4 Other African Territories 125 5 African Territories under Portuguese Administration 125 6 Pacific and Indian Ocean Territories 127 7 Caribbean and Atlantic Territories 127 8 Petitions 128 4 Occupied or de facto Controlled Territories 129 1 The Panama Canal Zone 130 2 The Golan Heights 132 3 Cyprus 136 4 The West Bank of the River Jordan 138 5 Sinai 139 6 Criticism of the Committee’s Action 139 5 Relationship with the u.n. General Assembly and other Bodies 141 1 The Committee and the u.n. General Assembly 141 2 Cooperation with ilo and unesco 145 6 Composition of the Committee 147

Part 5 Status of the Convention 1 Signatures, Ratifications and Accessions 153 2 Declarations and Reservations 154 3 Declarations on the Optional Procedure (Article 14) 160

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Part 6 The Impact of the Convention 1 At the National Level 165 2 At the International Level 203 1 The unesco Declaration on Race 203 2 World Conference to Combat Racism and Racial Discrimination 208 3 The Convention on Apartheid 209 Conclusions: A Decade After 211

Appendices 1 International Convention on the Elimination of all Forms of Racial Discrimation 217 2 United Nations Declaration on the Elimination of All Forms of Racial Discrimination 230 3  unesco Declaration on Race and Racial Prejudice 234 4 Status of the Convention 243 Select Bibliography 245 Index 248 About the Author 256

Introduction

icerd, Fifty Years After: Achievements, Shortcomings, Influence This book on the International Convention on the Elimination of All Forms of Racial Discrimination (icerd) has its origin in meetings of the different bodies of the United Nations, in the early sixties, that followed General Assembly Resolution 1510 (XV) of 12 December 1960, asking for the adoption of un ­legislation concerning racial and religious discrimination and intolerance. The author had the opportunity to attend a number of such meetings as representative of a non-governmental organization and could appreciate the complex and fascinating array of issues and intricacies of international relations at that period. As detailed in the book being re-printed, the consequences of major political problems and the emergence of new factors, such as the East–west conflict and the creation of several dozens of new states, were strongly felt in the drafting of such instruments. The universal feeling that racism had to be confronted by the international community finally led to the adoption of the Declaration in 1963 and the Convention in 1965. This was not the case with the section of the General Assembly resolution dealing with religious intolerance. It was only in 1981 that a Declaration was approved, and induced this author to write a book on it, two editions of which were published by Brill.1 There is an obvious relationship between the areas of racism and religious intolerance, and the contents and reach of the instruments on racism are of great relevance to the  interpretation of the Declaration on the Elimination of All Forms of Discrimination and Intolerance Based on Religion or Belief. The first edition of the present book appeared in 1970; the second one, considerably enlarged and now re-printed, was published in 1980. Since then, many changes took place in the international community, including the end of the Cold War between the West and the Communist regimes that collapsed, the end of the apartheid regime in South Africa, the dramatic transformations and the eruption of new violence in the Middle East, ups and downs of democracy in Latin America and, lately, a new confrontation between the West and Russia, triggered by the Ukraine crisis. All this against the background of a worrying increase of hate-motivated incitement and terrorism. This re-print will appear on the eve of the 50th anniversary of the Convention, one of the United Nations treaties that received the largest number of ratifications, a clear expression of the almost universal acceptance of its provisions, 1 Religion, Secular Beliefs and Human Rights, Nijhoff Publishers, 2012.

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with some exceptions that should certainly not be underestimated. Until this writing, the massive majority of states members of the un—175 states—have ratified the treaty, and many of them—not all—are submitting their national reports, properly discussed and commented upon by the Committee on the Elimination of Racial Discrimination (cerd), thus creating a body of data on racial discrimination in most areas of the world. In the closely related area of religious intolerance, the 1981 Declaration reached its 30th anniversary, while it seems rather evident that it is unlikely that the work on the pending draft convention might be renewed. A Special Rapporteur has the task of supervising the way in which the provisions of the Declaration are observed by states, and also in this area a valuable amount of information now exists. The individual complaints mechanism created by the Convention on Racial Discrimination entered into force in 1982, after its acceptance by ten statesparties. Presently, 54 states—a little more than a quarter of the un rostrum— have made the optional declaration recognizing the competence of the Committee to receive individual communications under Article 14 of the Convention. Without underestimating the significance of the work done in this respect by the Committee, the small number of acceptances of its competence in this respect prevents the development of a meaningful quasi-judicial international machinery likely to limit the evils of racial discrimination, incitement to group hatred and hate crimes. Dozens of cases have been examined. Several referred to discrimination against Roma2 and to the clash between the prohibition of hate speech and freedom of expression or association.3 The response of the international community to the possibility of creating an ­efficient mechanism for complaints regarding violations of the Convention is certainly disappointing.4 The Committee adopted steps to limit racial discrimination by early warning and urgent action procedures, aimed at preventing and responding to serious violations of the Convention. In 1993, the Committee adopted a working paper to guide its action in this area and, in 2007, approved new guidelines to the same effect. A four-members working group on early warning and urgent action was established in 2004. The Committee considered situations that developed in different regions of  the world, mostly affecting indigenous populations and the Roma. The 2 See, i.a. I.R. v. Slovakia, Durmic v. Serbia and Montenegro, I.K. v. Netherlands, Gelle v. Denmark. 3 For instance, Jewish Community of Oslo et al. v. Norway; Vona v. Hungary,, to be dealt with below. 4 Report on cerd, 81st and 82nd sessions (August 2012 and March 2013, respectively). gaor, 68th Session, Supp. No. 18 (A/68/18), paragraphs 19–34.

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Committee corresponded on these issues with the respective governments, asking for clarifications and suggesting measures to be adopted. Among the states approached were Ethiopia, India, Japan, Nepal, the Philippines, Slovakia, Cameroon, Costa Rica, Guyana, Suriname, and the United States of America. The importance of this procedure is relative, but in some cases had effects, contributing to alleviate the consequences of the limited number of acceptances of the optional article on individual complaints. As Michael Banton, a former member of cerd, wrote almost twenty years ago, “it is the states which must decide on the next steps” and reply to the question if they will be “willing to give up enough of their sovereignty to make the system effective.”5 A number of states-parties have entered reservations, mainly to Article 4, a crucial issue to be discussed below. Several states have declared that they do not consider themselves bound by Article 22, that refers to the role of the International Court of Justice. The influence of the Convention on legislation, civil and penal, seems evident, including legislation outlawing racial policies. The reporting system works relatively well, but, as stated, a number of countries did not fulfill their duties in this respect. cerd issued several general recommendations addressing key issues it had to deal with. Such are general recommendation No. 7 (1985), relating to the implementation of Article 4; No. 15 (1993), also on Article 4, which stressed the compatibility between that article and the right to freedom of expression; No. 25 (2000) on gender-related dimensions of racial discrimination; No. 27 (2000) on discrimination against Roma; No. 29 (2002) on descent; No. 30 (2004) on discrimination against non-citizens; No, 31 (2005) on the prevention of racial discrimination in the criminal justice system; No. 34 (2011) on racial discrimination of people of African descent; and No. 35 (2013) on combating racist hate speech.6 These general recommendations show that the Committee adopted a far-reaching approach, underlining, as stated in the last document cited, “the role of racist hate speech in processes leading to mass violations of human rights and genocide, as well as in conflict situations.”

The Convention and Group Hatred in General

This book summarizes the travaux preparatoires and the discussions that led to the text adopted in 1965. In my Group Rights and Discrimination in 5 See, Michael Banton, International Action Against Racial Discrimination, 1996, at 318. 6 See un Doc. CERD/C/GC/35 (26 September 2013), providing references to the general recommendations.

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International Law7 the status and impact of the Convention were updated. In 2012, in the second edition of my already mentioned Religion, Secular Beliefs and Human Rights, the relevance of the Convention, particularly its Article 4, to the protection of religious groups and communities, is dealt with. For the first time the United Nations considered specifically the issue of incitement against minorities or ethnic and religious groups in 1960, when attention was drawn to a series of racist, particularly anti-Semitic, incidents in Europe and other regions. The General Assembly condemned: “all manifestations and practices of racial, religious and national hatred…” and finally adopted two resolutions asking its subsidiary bodies to prepare two separate sets of a declaration and a convention, one on racial discrimination and one on religious intolerance.8 Originally, it was intended, correctly, to deal jointly with both subjects, but in the discussions that followed member States voiced different views on how to confront the matter of incitement against groups defined by diverse grounds of identification. Some States proposed to adopt only a convention on racial discrimination; others were in favor of passing only a declaration, namely a non-binding instrument, covering both racial and religious based hostility and discrimination. Other delegations advocated separate instruments, and that was agreed upon.9 This debate should be viewed against the background of the geopolitical changes that took place in the decade preceding the two resolutions, particularly the establishment of the new African States and the intensification of the frictions between the Occidental, liberal countries and the communist regimes. The Third World States were more interested in fighting racism—a vital issue for their societies—than getting involved in the more or less abstract issues, in their view, related to religious freedoms. In the East–West confrontation a specific issue became the focus of a bitter controversy: the policies of the Soviet Union with regard to the large Jewish minority living there and aspiring to the recognition of its right to preserve its identity and be able to emigrate, mainly to Israel. This issue concentrated on the proposal to include an article on antiSemitism in the draft being prepared, a proposal that prompted the Soviet Union to submit an amendment condemning Zionism, together with Nazism and neo-Nazism. After rather harsh discussions, finally the decision to separate the area of race from that of religion made it possible to continue the work. The result was that two instruments on race—the Declaration and the 7 Second edition, Martinus Nijhoff Publishers, 2003, p.49 ff. 8 Resolutions 1780 and 1781 (December 8, 1962). 9 This legislative stage is detailed in this book being re-printed and in the book mentioned supra, note 1.

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Convention—were quite rapidly adopted, in 1963 and 1965, respectively, while the religious issue entered 9into a procrastinated process, culminating in the adoption of only the Declaration in 1981. The Convention on Race is undoubtedly relevant to the question of religious intolerance, at least as a source of interpretation of the provisions of the Declaration. The title of the 1981 Declaration already addresses, although indirectly, the general issue of incitement. This was only natural for a document that reacted to manifestations of “racial, religious and national hatred.” The original title of what would become the 1981 Declaration was “Declaration on the Elimination of All Forms of Religious Intolerance.” Following an amendment submitted by Morocco in order to adjust the title to that of the draft convention and to make it consistent with the wording of the Universal Declaration of Human Rights, the word “discrimination” was added, as well as the term “belief” The word “discrimination” is used in all texts dealing with measures against that evil. It has a clear and precise legal meaning and has been incorporated in international and domestic legislations. This is not the case with intolerance, a term lacking juridical precision, used to describe emotional, psychological, philosophical and religious attitudes that may cause discriminatory behavior and violations of religious freedoms, as well as acts inspired by hate or hatred, persecutions and violence. It seems reasonable to claim that, if only one instrument, as originally foreseen, would have been adopted, racial and religious based manifestations would have received identical treatment. There are, of course, differences between racial and religious groups, communities or minorities, just like bias, policies and persecutions on grounds of race and religion may differ in some respects. But both groups are entitled to protection against such practices. Courts of several countries have dealt with the notion of “group.” A New Zealand court stressed that the existence of a clear-cut definition of the nature of the group is of less importance than the fact “whether the individuals of the group regard themselves and are regarded by others in the community as having a particular historical identity in terms of their color or their racial, national or ethnic origins.”10 What is meaningful, the Court said, is the presence of shared characteristics of a socio-political nature such as philosophy and thought, history, traditions, nationality, language or residence. Important are the strength of the ancestral ties and the cultural values and beliefs. For these reasons. the Court rejected a defense raised in a case of anti-Semitism based on the argument that Jews, being a religious group, were not protected by the New Zealand Race Relations Act. 10

See, New Zealand Court of Appeals, King-Ansell v. Police, nzlr (1979), 531 ff.

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A United States Court of Appeals declared, in the same spirit, that, under section 1981 of the Civil Rights Act, a plaintiff must be a member of an identifiable group, but the nature of the group’s identity is irrelevant, whether it be “national origin, alienage, or whatever.”11 In another United States case, the Supreme Court reversed a decision denying Jews the right to submit a claim under the Racial Act. The Supreme Court concluded that the Congress intended the statute to encompass Jewish people, that the plaintiff was a member of an identifiable class and was subjected to intentional discrimination solely because of his ancestry or ethnic characteristics.12 In a well-known British case dealing with Sikhs, the House of Lords stated that Sikhs were more than a religious sect; “they are almost a race and almost a nation” and constitute “a separate and distinct community.”13 Additional jurisprudence in other countries also supports the view that there is need to protect any group that can be identified against persecution, discrimination or vilification, stressing the importance of self-perception of the group and the way it is perceived by those who attack it. Race and religion are undoubtedly clearly identifiable qualities. The jurisprudential trends that have been described14 certainly support a broad and liberal interpretation of the 1981 Declaration and reflect the influence of the Convention on Racial Discrimination. The differences between racism and religious intolerance, particularly in considering the ways of confronting both evils, cannot be ignored. This has been pointed out by three Special Rapporteurs of the United Nations—Heiner Bilelfeldt, on freedom of religion or belief, Frank La Rue, on the promotion of the right of freedom of opinion and expression, and Githu Muicgai, on contemporary forms of racism, racial discrimination, xenophobia and related intolerance—in a joint submission to the ohchr expert workshops on the prohibition of incitement that took place in 2011 in the various regions. The statement cautions against confusion between a racist statement and an act of “defamation of religion.” Any doctrine of superiority based on racial differentiation is condemnable and dangerous, but “invoking a direct analogy between concepts of race or ethnicity, on the one hand, and religion or belief, on the 11 12

Manzanares v. Safeway Stores, 593 F2nd 968 (10th Cir. 1979). Shaare Tefila Congregation v. Cobb, 197 S. Ct. 2019 (1987). In the same decision, the Court also ruled that Arabs could as well submit claims under the Act, as disputed in the case of Saint Francis College v. Al-Kazraji 107 S.Ct. 2022 (1987). 13 3 All England Law Reports, 1982, 1108 ff. 14 See also my Group Rights and Discrimination in International Law, (Second Edition), pp. 38–39.

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other hand, may lead to problematic consequences.” Religious adherence, membership or identity can be the result of personal choices, the possibility of which constitutes an essential component of the human rights to freedom of religion or belief. Freedom of religion or belief implies comparing different religions and permits public criticism on religious matters. “The difficult question of what precisely constitutes religious hatred, at any rate, cannot be answered by simply applying definitions found in the area of racial hatred.”15 The Special Rapporteurs correctly indicate the difference between racist incitement and incitement which is directed towards groups created by religious or belief affinities. But it seems not justified to invoke this difference to provide less protection to one group under attack than to another group. In both cases a number, usually a massive number, of persons are subjected to violence, discrimination or hostility. Why should a Muslim, a Jew or a Catholic be less protected against such evils than a black individual, a Native American or an Australian aboriginal person, or vice-versa? It is not the character of the group that is being the object of protection or defense; it is the member of a group or minority, or the group as such, that requires legal guarantees or protection. In many cases, the victims belong to a complex class—Arabs, Jews, Roma or Sinti. Are they discriminated against or persecuted because they believe in a specific religion, or have a common descent, or share some anthropological features? Does it matter? From an historical viewpoint, massive exterminations or aggressions were the result of religious inspired hatred no less than of ethnic resentment or hostility. International anti-racist legislation was probably made easier by the desire of a large part of the international community to compensate the consequences of colonialism and related abuses. This does not justify distinctions in the treatment of the victims of group hatred, based on differences between the various groups. But this was a main reason why legal protection of racial groups made more progress and also highlights the role of the Convention on Race in the general struggle against discrimination and related evils. An example of how difficult it may be to distinguish between racial and religious issues was the case of the Jewish Free School (jfs) in London. In December 2009, the British House of Lords decided, by a divided majority vote, that the School, established in 1732, state-funded and identified with the Jewish Orthodoxy, engaged in racial discrimination and violated the 1976 Race Relations Act because it refused to accept a boy whose father was Jewish and 15

For the text of the Special Rapporteurs’ statement, see ohchr, Expert workshop on Asia Pacific, 6–7 July 2011, Bangkok. See also Statement on the Americas, 12–13 October 2011, Santiago de Chile, with a similar wording.

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whose mother, born Catholic, had been converted to the Jewish faith by a non-Orthodox rabbinical tribunal. President Phillips stated that nobody alleged that the school policies were racist and that there may be a defect in the law on discrimination, but favoring one racial group “will be held to constitute racial discrimination.”16 This case deserves to be discussed from several viewpoints and involved many problems, but certainly shows how complicated it may be to mark the separation between racial and religious identities. Race, ethnicity. color are, of course, not the only sources of group tensions. Religion, beliefs, culture, language, national identity, may also cause them. In some cases, several of those factors combine themselves to make it difficult to single out the main motivation inducing people, frequently authorities, to engage in acts of discrimination, intolerance or persecutions, sometimes of a violent nature. u.n. Special Rapporteur Elizabeth Odio Benito, the author of a Study on the Current Dimensions of the Problem of Intolerance and Discrimination Based on Religion or Belief,17 pointed out that manifestations of intolerance go in many cases farther than discrimination and involve the stirring of hatred or persecution against individuals or groups of a different religion or belief. In a resolution related to the 1995 Year for Tolerance, the un General Assembly described the term tolerance as meaning “recognition and appreciation of ­others, the ability to live together with and listen to others, and as a sound foundation of any civil society and of peace.” Intolerance would thus mean the  contrary, but this is far from providing a clear-cut legal description of the term.18 The notion of “intolerance” also has to be discussed in connection with terms such as bias, prejudice, hostility, hatred or hate. All of them belong to the internal sphere but all have consequences on the daily life of persons and communities and their clarification is important. In recent decades the term hate crimes entered the international discourse, meaning “criminal acts committed with a bias motive.”19 Hate crimes may include any criminal offense targeted 16 17 18

19

For the judgment, R. v Governing Body of jfs and Admissions Panel of jfs and others (2009). uksc, 25 December 2009. u.n. doc. E/CN.4/Sub.2/1987/26. The notions of tolerance and intolerance have engendered an enormous literature. They belong more to the area of philosophy or political thought than to the legal field. They are  however highly relevant to the issues discussed here. See, for instance, Memoria del  Seminario Internacional sobre Tolerancia, papers submitted to an international ­conference on Tolerance organized by the National Commission for Human Rights of Mexico, 2001. osce/odihr, Hate Crimes in the osce Region : Incidents and Responses, Annual Report for 2011, Warsaw, 2012.

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at a person or group because of “ethnicity, ‘race’, religion or other status.”20 Specific definitions of hate crimes differ. In some countries, hate crimes are not separate offenses, but a bias motive may be considered an aggravating circumstance in any crime, requiring a stronger penalty. osce texts list “racist and xenophobic crimes, anti-Semitic crimes, and crimes against Roma and Sinti, Muslims, Christians and members of other religions.”21 “Intolerant discourse” constitutes “a factor contributing to the occurrence of hate crimes.”22 The target may be one or more people or a group that shares a “protected characteristic,” such as race, language, religion, ethnicity, nationality or other “similar, common factor.”

The Rabat Plan of Action

A recent United Nations document addresses specifically the issue of incitement to group hatred. The Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence23 follows in general the terminology of the iccpr. It is based on the work done in Vienna, Nairobi, Bangkok and Santiago de Chile by members of a group of experts appointed by the ohchr in 2008, to conduct a comprehensive assessment of the implementation of legislation, jurisprudence and policies regarding incitement, “while encouraging full respect for freedom of expression as protected by international human rights law.”24 The emphasis in those meetings was on the relationship between freedom of expression and hate speech, especially in relation to religious issues25 The Plan of Action refers to incidents in recent years, in different parts of the world, and reminds that many of the world’s conflicts in past decades contained a 20 21 22 23

24 25

Ibid., page 6. Ibid., page 8. Ibid., page 7. Adopted in Rabat, Morocco, on 5 October 2012 with the participation of experts, the Plan contains the conclusions and recommendations emanating from the four expert workshops organized by the ohchr in 2011. For the whole text, U/N/ Doc. A/HR/22/17/Add. 4 Appendux. Rabat Plan of Action, Preface. See, Office of the United Nations High Commissioner for Human Rights, Expert Seminar on the Links Between Articles 19 and 20 of the International Covenant on Civil and Political Rights, “Freedom of Expression and Advocacy of Religious Hatred that Constitutes Incitement to Discrimination, Hostility or Violence,” Geneva, 2–3? October 2008. Doc. A/HRC/10/31/Add.3. For my paper, p. 89 ff.

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component of incitement to national, racial or religious hatred. Race, ethnic origin and religion have been manipulated, causing negative effects. The Plan expresses concern that incidents which reach the threshold of Article 20 of the iccpr are not prosecuted and punished, and minorities are de facto persecuted through the abuse of vague domestic legislation and policies. Anti-incitement laws are at times “narrow or vague. Jurisprudence on incitement to hatred has been scarce and ad hoc; and while several states have adopted related policies, most of them are too general, not systematically followed up, lacking focus and deprived of proper impact-assessments.”26 The Rabat Plan includes a series of conclusions and recommendations in the areas of legislation, jurisprudence and policies, directed to states, the United Nations and other bodies. Concerning legislation, the document points out the absence of legal prohibition of incitement to hatred in many countries. The applicable terminology is inconsistent, vague, and there exists the risk of a misinterpretation of Article 20 of the iccpr. Some systems cover incitement on racial/ethnic grounds but not religious hatred. Domestic legislation should be guided by Article 20 of the iccpr and should define clearly terms like hatred, discrimination, violence, hostility and related notions. Legality, proportionality and necessity should be the test for restrictions of freedom of expression. Blasphemy laws should be repealed. Legislation should include preventive and punitive action to effectively combat incitement to hatred.27 As to jurisprudence, it is noted that case law on the prohibition of incitement is not readily available. The threshold regarding criminal prohibition should consider the context, the existence of intent, the external forms of prohibited speech and the likelihood of imminence of the crime. It is recommended to ensure effective remedies, including damages. Criminal sanctions should be seen as last resort measures. to be applied only in strictly justifiable situations. The rights to correction and reply should be respected. A concluding comment states that “international human rights standards on the prohibition of incitement to national, racial or religious hatred still need to be integrated in domestic legislation and policies in many parts of the world.”28 The important Rabat document, that is not a mandatory text, shows to what extent the 1965 Convention on Racial Discrimination, and particularly its Article 4, are presently of great relevance to all manifestations of group hatred, and should be seen as a strong support for the view that freedom of expression 26 27 28

Rabat Plan., para. 11. Ibid., para. 14–19. Ibid., para. 31.

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is not absolute and cannot be invoked to protect incitement to violence or hatred. The Rabat Plan states that the use of criminal law to curb incitement should be considered only as a last resort, but does not preclude it. The educational and preventive role of penal law should not be underestimated. When criminal law sanctions some forms of behavior, it is sending a message to the whole population, and not only reacting to violators of the law. When it is imposing a punishment, the law is simultaneously contributing to the prevention of recurrence of such illegal acts. Adequate, proportional and careful repressive steps are thus not only retributive measures but fundamentally social policies ensuring coexistence and internal peace.

Recent Relevant Case-Law

Such was the approach of the 1965 Convention, and the European Court of Human Rights followed it on July 9, 2013, in an important ruling with direct impact on the issue of incitement, although focused on freedom of association.29 The Court declared that a decision by a Hungarian court to ban a far-right, anti-Roma and anti-Semitic group, the Hungarian Guard Association, is ­lawful.30 The Court determined that dissolving the Guard did not violate the European Convention on Human Rights. While the case affected mainly the Roma population of Hungary, the Court also dealt with anti-Semitism and racism in general, as well as with the crucial issue of the balance between freedom of expression and freedom of association, on the one hand, and the need to protect social coexistence and the rights of vulnerable sectors of the population, on the other. For its relevance to the 1965 Convention and its role in antidiscrimination law, the case should be summarized. Gabor Vona, a Hungarian national, alleged, under Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, that the dissolution of the Hungarian Guard Association, that he chaired, violated his freedom of association. The Association was founded in 2007 and in the same year it established the Hungarian Guard Movement, as a section of the Association, defining its objective as “defending Hungary, defenseless physically, spiritually and intellectually.” In October 2007, the Budapest Public 29 30

Case of Vona v. Hungary, Appliction no. 35943/10, Judgment. On the legal situation in Hungary, see Andras Koltay, “The Freedom of Speech of Religious Communities and their Protection from Freedom of Speech in the Hungarian Legal System,” in Religion & Human Rights, (Vol. 8, 1, 2013), 23 ff.

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Prosecutor’s Office ordered the Association to terminate its unlawful activities, that included the use of uniforms, the organization of demonstrations and rallies, including in villages with a large Roma population, and calling for the defense of “ethnic Hungarians” against “Gipsy criminality.” The Budapest Chief Prosecutor’s Office asked the Court to order the dissolution of the Association. In December 2008, the Budapest Regional Court agreed with the Prosecutor and established that between the Association and the Movement there existed organizational ties, and decided to dissolve the Association. The court stated that the reference to “gipsy criminality” was based on racial and ethnic grounds, violating “the principle of human dignity.”31 The verbal and visual demonstration of power alone “amounted to an infringement of the law, in view of historical experience.”32 In July 2009 the Budapest Court of Appeal upheld the judgment of the Regional Court, pointing out the numerous remarks aimed at the exclusion of the Roma, as well as anti-Semitic utterances. The court also took into consideration the applicant’s freedom of expression. Upholding the first instance judgment and citing case-law, the court stated that freedom of expression “did not cover hate speech or incitement to violence.”33 In December 2009, the Supreme Court upheld the judgment. Against its decision, served on  28 January 2010, Gavor Vona, chairman of the Association, lodged, on 24  June 2010, an application under Article 11 of the European Convention on Human Rights. The Strasbourg Court decided to rule on the admissibility and merits of the application at the same time. The Court reviewed the relevant domestic constitutional and legal provisions, including the Law-Decrees promulgating the iccpr and the Convention on Racial Discrimination. It transcribes then several passages of Decision no. 30/1992 (V. 26) of the Constitutional Court of Hungary, highly relevant to our subject. Indicating that the criminal codes of all democratic European countries with continental legal systems, as well as those of England, Canada and New Zealand, prohibit incitement on a racial basis, the Constitutional Court stated that the demarcation of the boundaries between incitement, arousal of hatred and expression of opinion “remains hotly contested even internationally.”34 It then said that views preaching ideas of superiority and of hatred, contempt and exclusion endanger the values of human civilization. “(A)ny utterance…raising hatred against specific groups of people can push social tension to extremes, disturb social harmony and peace, 31 32 33 34

See, Judgment, par. 13. Ibid., par. 14. Ibid,, par. 15. Ibid., para. 22.

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and in an extreme case, it can result in violent clashes between certain groups of society.”35 The Constitutional Court stated: To afford constitutional protection to incitement of hatred against certain groups under the guise of freedom of expression and press would present an indissoluble contradiction with the value system and political orientation expressed in the Constitution, that is, with the democratic rule of law, the equality of human beings, the equality of dignity, the prohibition of discrimination, the freedom of religion and conscience, the protection of national and ethnic minorities…Incitement to hatred is the negation of the above-mentioned notions, an emotional preparation for the use of violence. It is an abuse of the freedom of expression, being an intolerant classification of a group, characteristic of dictatorships, rather than democracies…36 The Constitutional Court summarized its position pointing out that the restriction of freedom of expression and press is necessitated and justified by the “negative historical experience connected to raising hatred against certain groups of people, by the protection of constitutional values, and by the obligation of the Republic of Hungary to comply with its commitments under international law.”37 The Strasbourg Court then quotes from reports concerning Hungary of the Human Rights Committee, the European Commission against Racism and Intolerance and the Advisory Committee of the European Framework. In a chapter devoted to comparative law, it refers to decisions of German and United States courts. The Federal Administrative Court of Germany repeatedly upheld dissolution orders regarding associations which supported neo-Nazi ideas. As to the United States, the Strasbourg Court cites jurisprudence of the American Supreme Court regarding intimidation activities of the Ku Klux Klan and declaring the burning of a cross a “symbol of hate.”38 Turning to the applicable law, the Human Rights Court declares the application admissible and deals with the merits of the case, analyzing the arguments of the Hungarian Government, the applicant and the third party, the European Roma Rights Centre. The Court considers that there has been an interference with the applicant’s rights under Article 11 of the European Convention. 35 Ibid. 36 Ibid., para. 22. 37 Ibid. 38 Ibid., para. 31.

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However, the dissolution of the Association on account of the acts of the Movement was “prescribed by law,” was in agreement with the aims of public safety, prevention of disorder and protection of the rights of others and necessary in a democratic society. As to this last requisite, the Court quotes relevant former case-law. For instance, in Refah Partisi (the Welfare party) and Others v. Turkey39 the Court affirmed that “a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent…” Applying those principles to the Vona case, the Court said that “the State is entitled to take preventive measures to protect democracy vis-a-vis such nonparty entities as well, if a sufficiently imminent prejudice to the rights of others undermines the fundamental values upon which a democratic society rests and functions. One of such values is the cohabitation of members of society without racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence…”40 The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, and the European Court’s task is merely to review the decisions the individual States delivered within their margin of appreciation.41 Where an expression is accompanied by conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced vis-à-vis the important public-order interests related to the conduct. If the conduct associated with expression is intimidating, threatening or interferes with the free exercise or enjoyment by others of any right or privilege provided by the Convention on account of the other’s race, “these considerations cannot be disregarded even in the context of Articles 10 and 11.”42

39 40 41

42

echr 2003-II, nos.41340/98. 41343.98 and 41344/98, par. 96. Judgment, par. 56. 63 On the margin of appreciation and the European Court, see Natan Lerner, “How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance,” Willamette Journal of International Law and Dispute Resolution, Vol. 11, 2005, 65 ff. Ibid, par 66.

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Consequently, for these reasons, the Court holds, unanimously, while declaring the application admissible, that there has been no violation of the European Convention. Judge Paulo Sergio Pinto de Albuquerque, in a concurring opinion, stressed that dissemination of anti-Gypsism and anti-Semitism by legal persons and the means of reacting to it under the European Convention are the core issues of the Vona case. Highlighting the role of the Convention on the Elimination of Racial Discrimination, he affirms that, since the obligations it creates are mandatory, it does not suffice merely to declare racist acts punishable on paper. “Rather, criminal laws and other legal provisions prohibiting racial discrimination must also be effectively implemented…” Pinto de Albuquerque cites applicable law and indicates that the Committee of Ministers’ Recommendation No. R(97)20 had already required the establishment of a sound legal framework, consisting of civil, criminal and administrative law provisions on hate speech, “which covers all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin.”43 States parties to the Convention “have the duty to criminalize speech or any other form of dissemination of racism, xenophobia or ethnic intolerance, prohibit every assembly and dissolve every group, organization, association or party that promote them.” “Such an international positive obligation” –he adds- “must be acknowledged…as a principle of customary international law, binding on all States, and a peremptory norm with the effect that no other rule of international or national law may derogate from it.”44 The Vona decision is of great importance in relation to the discussion on the tension between freedom of expression and incitement to hatred. The Court clarified its stand on that issue, departing from its former approach in which the possibility of developing standards was “limited by the margin of appreciation doctrine.”45 In the Vona case, the Court applied a balanced view of the principle of the margin of appreciation and produced a timely decision in an area in which jurisprudence is scarce.

43 44 45

See Judgment, Concurring Opinion. See Judgment, Concurring Opinion. See Javier Martinez Torron, “Freedom of Expression versus Freedom of Religion in the European Court of Human Rights,” in Andras Sajo (ed.) Censorial Sensitivities: Free Speech and Religion in a Fundamentalist World, eleven, international publishing, 2007, 233–269. at 269.

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Relevance of the icerd to Other Instruments

The icerd is relevant to other anti-discrimination texts, The 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief,46 that originated jointly with the Convention, deals with the prohibition of incitement to hatred on grounds of religion or belief in terms less categorical than the iccpr or the Convention on Racial Discrimination. A declaratory text is not a mandatory treaty. Therefore, the use of looser and more flexible language is similar to the approach followed in other nonobligatory texts.47 The Declaration, a short document resulting from negotiations and reciprocal concessions between states and organizations during almost two decades, did not incorporate a clear-cut prohibition of such incitement and its criminalization. But it is a historical fact that the international community aspired to provide a legal remedy to all manifestations of racial or religious discrimination and intolerance. The relevance of the Convention to the Declaration, certainly as a source of interpretation, cannot be ignored. It is based on analogy resulting from the history of those instruments and a fair understanding of the will of the international community.48 It is also relevant to mention the corresponding text of Article IX of the pending draft Convention on Intolerance and Discrimination Based on Religion or Belief.49 Article IX ­follows the pattern of Article 4 of the Convention on Racial Discrimination and is of course likely to arouse similar criticism to that of Article 4. On the  other hand, it seems reasonable to see in draft Article IX an authentic 46

47

48 49

For its text, HUMAN RIGHTS, A Compilation of International Instruments. United Nations, New York, 1988. Generally, Natan Lerner, supra, note 1; Michael Wiener, “Thirty Years of the 1981 Declaration as reflected in twenty five years mandate practice of the United Nations Special Rapporteur on freedom of religion or belief,” paper submitted to the Oxford Conference marking the anniversary, 2011. Michael Wiener (supra, note 46) stresses that the 1981 Declaration is the only universal human rights instrument specifically focusing on religious intolerance and has created the only human rights mechanism specifically dealing with incidents and actions contrary to the Declaration. Wiener points out that the Declaration does not contain provisions equivalent to Article 20 of the iccpr and refers to the 2006 Report of Special Rapporteur Asma Jahangir, who notes that in the Declaration there is no prohibition similar to that of the Convention. Ms. Jahangir explicitly cautioned against confusion between racist statements and defamation of religions. See my Religion, Secular Beliefs and Human Rights, (2nd. ed., Chapter 7), pp. 93 ff. For the draft Convention, see John Claydon, “The Treaty Protection of Religious Rights: u.n. Draft Convention on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief,” 12 Santa Clara Lawyer, 403 (1972). For the text of the draft convention, U/N. Doc. A/7930 (1970).

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expression of the will of the majority of the drafters of both texts. The travaux preparatoires that preceded their adoption support this approach. The prohibition of racial discrimination is already accepted as a peremptory norm of international law (jus cogens)50 and discrimination on religious grounds is likely to be considered equally deserving such status.51 International law is struggling with the need to ensure an appropriate balance between the basic freedom of expression (as well as freedom of association) and the right of groups (or their members because of membership in those groups) not to become victims of incitement to hostility, hatred, intolerance or other forms of bias or prejudice. Article 4 of the Convention on Racial Discrimination is the most relevant mandatory provision that should be reputed applicable, for historical and exegetical reasons, within the limitations stemming from the need to avoid far-reaching analogies and the pertinence of the “with due regard” clause adopted. Although controversial and a ground for formal reservations by several States, Article 4 of the Racial Convention has become a guideline for domestic legislation in the spirit of its provisions. It is seen as a key-article in the Convention. It cannot be ignored when interpreting the corresponding article in the 1981 Declaration, particularly when the draft convention is still pending. cerd, the Committee on the Elimination of Racial Discrimination, interpreted the reach of Article 4 of the Convention in its General Recommendations.52 The implementation by States parties of the provisions envisaged in Article 4 is obligatory and, if domestic legislation is not sufficient, adequate additional measures should be adopted. Although Article 4 is not self-executing, stated Special Rapporteur Ingles, the “clear-cut and unambiguous” provisions of paragraphs (a) and (b) “are not discretionary, but mandatory.”53 States parties are bound to enact implementing legislation in accordance with Article 4, “even if they allege that racial discrimination is unknown or there are no racist organizations in their jurisdictions. Article 4 has a preventive role, and a reservation retaining the discretion to determine if and when it is necessary to enact adequate legislation would be incompatible with the object and purpose of the Convention.”54 50

51 52 53 54

See Jose D. Ingles, Study on the Implementation of Article 4 of the Convention on the Elimination of All Forms of Racial Discrimination, cerd. Positive Measures Designed to Eradicate All Incitement to, or Acts of Racial Discrimination, u.n. Doc. A/CONF 119/10. CERD 2. u.n. Sales No. E.85. XIV,2, p. 38 (1986). See, Ian Brownlie, Principles of Public International Law, 4th. Ed. (1980), 513, n. 29. See supra, note 6. Study, at 37. Ibid. See also the cerd statement at the World Conference to Combat Racism and Racial Discrimination, u.n. gaor Supp. (No. 18), u.n. Doc. A/33/18 (1978).

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Judge Ingles also dealt with the clash between the prohibition of incitement and free speech. The rights of free speech and free association are not absolute and are subject to limitations, according to Article 29 of the udhr and Articles 19 and 20 of the iccpr. Some States may confront constitutional problems and in such cases they should take steps to adjust their domestic legislation to the international treaties they have ratified. Professor Theodor Meron points out the difficulties that countries like the United States may encounter in criminalizing speech and association on the basis of racist content. What may be overly broad for one legal system does not apply to another State.55 Meron avoids making a value judgment as to which legal system is superior, but cerd did in fact make such a statement by opting for the system followed by Article 4. Ingles points out that the needs of States parties should be taken into consideration and states are entitled to complete the process of adjusting their legislation within a reasonable time, subject to the principle that treaties should be observed in good faith. The 1981 Declaration is of course not mandatory, but once it is considered as reflecting the state of international law regarding religious freedoms, its interpretation should be based on its historical origins and the pending draft convention. If this approach is followed, Article 4 of the Racial Convention becomes a guideline for the reading of the Declaration. There are authors who take a different view. In an early commentary on the draft Convention already mentioned,56 John Claydon writes that the General Assembly has established “a hierarchy of protecting race over religion” by adopting the Racial Discrimination Convention first and giving it priority consistently. Such priority—he adds—is strengthened by general uncertainty regarding the notions of religious intolerance and discrimination in contrast with the clear notion of discrimination based on race. This last remark is correct and one of the weaknesses of the 1981 Declaration is precisely the indicated uncertainty. If the pending draft convention makes progress—a very dubious although desirable development—without solving this problem, this difficulty would subsist. The assertion that the General Assembly established a hierarchy is, however. unfounded, since the order of preparation of both sets of instruments was the consequence, to a very large extent, of political circumstances that do not reflect a clear-cut preference of the racial issue as compared to the religious one. However, as already commented above, the view that racist behavior may demand different treatment than incitement on religious grounds is being sustained. 55 56

Theodor Meron, Human Rights Law-Making, 1986, at 28. Supra, note 49, at 422.

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When Article 4 of the Racial Convention was adopted by the Third Committee of the General Assembly, separate votes were taken on the phrases “all dissemination of ideas based on racial superiority or hatred” and “also the provision of any assistance to racist activities, including the financing thereof” in paragraph a). Despite objections, both formulations were retained, with only five abstentions. The difficulties were mainly related to the word hatred. It was argued that hatred is a feeling, a state of mind, and not a clearly established legal interest, comparable to discrimination. In connection with the issue of dissemination of ideas intended to cause racial or religious discrimination or hatred, the question of possible restrictions on scientific research was raised, with emphasis on Nazi publications apparently scientific in their form but undoubtedly racist in content.57 To facilitate an agreement and wide support for the text of article 4, the sentence starting with the words “with due regard” was introduced in the opening paragraph of Article 4. The United States representative interpreted these words as meaning that Article 4 does not impose on ratifying States any obligation to take measures that “are not fully consistent with its constitutional guarantees of freedom, including freedom of speech and association.”58 Several delegates supported this interpretation. But the general spirit of the Convention, the large number of ratifications, and the state practice expressed in domestic legislation based on the Convention—all this supports the view that neutrality was not intended. States are entitled not to ratify the Convention, or to introduce reservations provided they are not incompatible with the object and purpose of the treaty, as interpreted by two thirds of States parties. cerd adopted the view suggested by Special Rapporteur Ingles considering incompatible with the object and purpose of the convention to allow reservations granting ratifying States the discretion to decide if domestic legislation is necessary.59 I am leaving aside the controversy about the existence of a minimum international legal order encompassing, in addition to treaties, also declarations and resolutions of the General Assembly and regional bodies. Even from a 57

58 59

The issue is being discussed in connection with attempts to denial the existence or extent of the Holocaust. It is one of the instances where a clear distinction between legitimate scientific or historical research, on the one hand, and malicious incitement, on the other, should be made. See, on this issue, Natan Lerner, “The Limits of Expression:,” Haaretz, English edition, 27 January, 2012. Statement of the u.s. representative in the General Assembly, un Doc. A/PV 1406, at 53 (1965). Statement of cerd at the World Conference to Combat Racism and Racial Discrimination, supra, note 54/.

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strict positivist approach, it seems reasonable to argue that there is enough treaty-law establishing the rule that incitement to hatred against groups or communities on racial, religious, national, or cultural grounds is illegal and should be prohibited. Such a body of positive law includes the iccpr, the Genocide Convention, the Racial Convention, and the unesco Convention. This positive law, widely accepted in international life, can be seen as justifying a liberal interpretation of the 1981 Declaration in this respect. Crucial to our reading of the relevance of that body of positive legislation, and particularly Article 4 of the Racial Convention, in order to interpret the provisions of the 1981 Declaration, is the approach of the Human Rights Committee. In its General Comment 11, on Article 20 of the iccpr, applicable of course to both racial and religious hatred and considered by the Committee as fully compatible with freedom of expression, the Committee affirmed that States parties which have not yet done so should take the necessary measures and sanctions in case of violation.60 It is reasonable to claim that the 1981 Declaration has to be interpreted in coordination with the respective provisions of the iccpr. As mentioned by the European Court, many countries have enacted legislation outlawing and punishing incitement to hatred on racial, religious or other grounds. In many of these countries the respect for human rights in general and for freedom of expression or speech is beyond any doubt. The practice in the implementation of the Declaration by the Special Rapporteurs is not conclusive. A useful Rapporteurs Digest on Freedom of Religion or Belief with excerpts of the Reports from 1986 to 2011 by the Special Rapporteur on Freedom of Religion or Belief61 contains a chapter that, under the caption “Intersection of freedom of religion or Belief with other Human Rights,” deals with freedom of expression, including questions related to religious conflicts, religious intolerance and extremism. Many quotations are relevant to the issues of religion and freedom of opinion and expression and of religious intolerance and incitement to religious hatred. They show the difficulties in tracing the borderlines between both fundamental rights. The present Special Rapporteur, Professor Heiner Bielefeldt, citing Kant’s defense of the “freedom of the pen,” asserts that freedom of expression and freedom of religion or belief “positively assume one another” and adds: “Extreme incidents of hate speech directed against some religious communities can 60

61

U/N. Doc. A/39/40 (1983). See, on the Human Right Committee and religious rights, my Group Rights and Discrimination in International Law, 2nd ed., pp. 103–105. See, also, the recent General Comment No. 34, on Article 19: Freedom of opinion and expression, CCPR/C/GC/34, July 2011. Distributed in 2013.

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actually become a case for restricting freedom of expression in accordance to the criteria laid down in Article 19, Paragraph 3 and Article 20, Paragraph 2 of the iccpr. However, whereas any restrictions on freedom of expression are, and must remain, connected to a very high threshold, the best and most useful way of countering hate speech is ‘alternative speech’; public statements of solidarity, fair media reporting, and clarifications aimed at eliminating negative stereotypes. Most importantly, target groups of hate speech should know and experience that they are not left alone.”62 This is correct. The question is at what point, when all this is not enough to protect endangered persons and groups, restrictive measures to stop aggression and abuses should be applied and what should be the interpretation of the respective provisions of the 1981 Declaration.

Concluding Remarks

Tension exists in some cases between freedom of expression and full protection by law of racial, national, religious or cultural minorities against violence, discrimination or hostility based on race, religious or national hatred or bias. There is general agreement that freedom of expression is a fundamental right that must be guaranteed. It may, however, in some cases be restricted according to law, international and domestic. International law has enacted a wide body of positive legislation clarifying when and in what circumstances such restrictions may be imposed. The iccpr, the Convention on the Elimination of Racial Discrimination, the Convention on Genocide, the unesco instruments on discrimination and regional treaties have all adopted this approach, although some countries have entered reservations to preserve their adherence to an absolute rule of free speech. Implementation bodies such as the Human Rights Committee and cerd have clearly stated their support for the same approach. The Rabat Plan of Action, reflecting the work of a group of experts, and jurisprudence of the European Court of Human Rights in the Vona case—all strengthen the stand that non-binding and more flexible instruments such as the 1981 Declaration on Freedom of Religion or Belief should also be interpreted accordingly. This enhances the reach and influence of the 1965 Convention on the Elimination of All Forms of Racial Discrimination, including crucial Article 4. In the words of the Committee’s 2013 General Comment No. 35, the “faithful interpretation of the Convention as a whole, integrated into wider global 62

See, Heiner Bielefeldt, “Misperceptions of Freedom of Religion or Belief,.” Human Rights Quarterly, 35, 1,February 2013, at 61–62.

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efforts to counter hate speech phenomena, represents the best hope of translating the vision of a society free from intolerance and hatred into a living reality and promoting a culture of respect for universal human rights.” The re-print of this book, timed on the 50th anniversary of the Convention, may be viewed as a contribution to the ongoing international struggle against racism, bigotry, xenophobia and intolerance, a struggle never successful enough.

Introduction to the Second Edition Nine years have elapsed since the publication of the first edition of this book. In the meantime more than a hundred States have ratified the International Convention on the Elimination of All Forms of Racial Discrimination, or acceded to it. The Committee on the Elimination of Racial Discrimination (cerd) was established in 1969, and has been discharging over these years its duties under the Convention, becoming the first international machinery for the implementation of a legally binding human rights treaty. The purpose of the first edition was to provide a concise commentary of the Convention, more for the benefit of the general public than for that of experts in the field. It was not intended to be an exhaustive critical analysis of the provisions of the Convention, and certainly not a study on racial discrimination. The main aim of the second edition is to enable the reader to be conversant with the developments that followed the coming into force of the Convention, as well as with the work of the Committee. A decade is not sufficient to evaluate the significance and impact of an international instrument, and by no means its place in the history of international legislation. It is, however, enough time to enable the world community to judge the potential role of the Convention and the extent to which the existence of the Committee, and its scrutiny of the way in which States Parties implement their duties, are a step forward in the struggle against the evils of racial discrimination. The fact that the Convention has already been ratified by more than a hundred States is an indication of the importance that public opinion attaches to the subject of racial discrimination. The large number of ratifications becomes even more meaningful if one takes into consideration the fact that some provisions of the Convention involve, for certain States, difficulties related to their constitutional systems. This is particularly the case in regard to fundamental freedoms, the observance of which might seem to clash with duties imposed by the Convention. It would be difficult to disregard the educational and moral implications of such a large number of expressions of support for a human rights treaty, representing so many legal and political systems and diversified geographical and cultural regions. Ratification of the Convention, or accession to it, implies an already existing awareness of the magnitude of the dangers involved in racial discrimination and hatred. Once ratification has taken place, the need for the ratifying or acceding State to live up to the provisions of the Convention, and to fulfill its duties under it, certainly becomes more pressing. The reporting system established under Article 9 has proved to be a stimulant factor for States Parties to

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adopt measures as requested by the Convention, and to facilitate corrective legal action when necessary. While a few States have not discharged their duty in submitting periodic reports, and others are behind schedule, many have been doing so punctually and properly, thus showing their readiness to permit adequate operation of the machinery created by the Convention. States have given due consideration to the recommendations and requests of the Committee on Racial Discrimination. More important still, a large number of States Parties have enacted legislative and administrative measures in accordance with the provisions of the Convention. Some national constitutions have been amended, and States Parties have undertaken systematic review of their respective legislations with a view to changing laws or regulations clashing with the Convention. Several States have modified their penal legislation in order to make racial discrimination and incitement to racial hatred a punishable offence, as set forth in Article 4. Some have enacted new legislation in accordance with Articles 5 (equality of rights) and 7 (measures in the fields of teaching, education, culture and information). New agencies have been established in some countries, to deal with the problems of racial discrimination. Courts of justice have invoked articles of the Convention. All these developments are certainly an expression of the impact of the Convention. This is not today the only international legal instrument in the action against racial discrimination, and its importance in the general field of human rights is now less exclusive, as a consequence of the coming into effect of the Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights. But it seems fair, at this stage, to register its obvious contribution to the cause of suppressing racial discrimination and hatred. If an authoritative example is needed, the International Court of Justice, in its Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), followed very closely the wording of Article 1 of the Convention when it stated To establish…and enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent, or national or ethnic origin which constitute a denial of fundamental rights is a flagrant violation of the purposes and principles of the Charter [emphasis added]. The large number of ratifications on the one hand, and the extent to which the Convention seems to be considered today as declaratory of generally accepted principles of international law, on the other, therefore grant it a prominent place in contemporary human rights law.

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While this edition is being prepared, the optional Article 14 is not yet in effect. It is to be hoped that the necessary number of States will make the declaration referred to in that article, recognizing the competence of the Committee to receive complaints from individuals or groups within their respective jurisdictions claiming to be victims of racial discrimination. Such a development will strengthen the international human rights implementation machinery, will provide victims of racial discrimination with remedies and will open a new avenue for the Committee to enjoy the cooperation of nongovernmental organizations interested in exercising a vigilant role in the struggle against racial discrimination. At this stage the Committee considers such cooperation precluded. As to the Committee, we shall try to summarize its work and evaluate its achievements, as well as its existing shortcomings. Some of its decisions were subjected to criticism; some lack of balance was pointed out. But, on the whole, it has served the purposes of the Convention with an understanding of the role it is intended to play, and has earned praise at international fora and among observers. The main changes in this second and enlarged edition are the following: Part 4 will now deal with the work of the Committee on Racial Discrimination, describing its rules of procedure and summarizing its actual work until and including its nineteenth session (March–April 1979). Part 5, formerly Part 4, has been totally revised and updated so as to show the status of the Convention at this stage. In Part 4, the impact of the Convention will be evaluated, including a summary of national and international legislative developments related to the Convention, or influenced by it. Two new Appendices, a select Bibliography and an index have been added. Human Rights, racial discrimination and international politics are strongly interrelated fields. The author is aware of the difficulty in dealing with these matters while trying to preserve objectivity. The fight against racism and racial discrimination has become too frequently an arena in which governments have tried to achieve political aims little related, in substance, to the lofty ideals which that fight aspires to serve. Against this background the Convention, to which this Commentary is devoted, has proved in this decade to be, as stated in the first edition, “a vigorous step forward, whatever reservations can be raised to some of its clauses and to its limitations.” A similar comment seems to be in order with regard to its application and to the operation of the Convention’s machinery. Tel Aviv, July 1979

Preface to the First Edition The purpose of these pages is to provide a concise commentary on the United Nations Convention on the Elimination of all Forms of Racial Discrimination, adopted on 21 December, 1965. This is not a study on racial discrimination. Neither does it pretend to be an exhaustive critical analysis of the provisions of the Convention. Legal scholars all over the world will probably write many such analyses, in which the problems, shortcomings, merits and defects of the Convention will be submitted to thorough examination. The aim is merely to give the general public an opportunity to know the contents of the Convention and the story and difficulties of its drafting. In addition to a summary of the provisions of the Convention and some explanatory remarks, the reader will find a brief commentary upon them, particularly in the case of controversial articles. The Convention is an important part of the International Bill of Rights, envisaged by those who drafted the Universal Declaration of Human Rights as the first step to such a Bill. This study attempts to relate the provisions of the Convention to those of the Universal Declaration, the Declaration on the Elimination of all Forms of Racial Discrimination—a document closely associated with the Convention—the ilo and unesco Conventions on Racial Discrimination, the un Covenants on Human Rights and, when appropriate, other international and regional instruments. After a survey of the process of drafting the Convention there is a chapter on its general scope and significance. We endeavor to interpret the Preamble, the seven substantive articles and those proposed substantive articles that were not finally incorporated in the Convention, particularly the proposed article on anti-Semitism. One chapter deals with measures of implementation and a second one, with the final clauses incorporated in the Convention. Part 4 is devoted to the status of the Convention, ratifications, accessions and reservations and, in Part 5, the full texts of the Convention and of the United Nations Declaration on the Elimination of all Forms of Racial Discrimination are appended. In each particular section the discussions in the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in the Commission on Human Rights, in the Third Committee of the un General Assembly and in the General Assembly, where applicable, are summarized; while in the case of the Sub-Commission different individual opinions are reflected, bearing in mind that its members act as experts, in the other instances we have tried to indicate general trends, or, in any event, to refer to the country and not

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personally to the representative. Only the more important documents are mentioned, in order not to tire the reader with too many footnotes. In general, doctrinary opinions and definitions on the central problems involved in the Convention are avoided. Complicated matters such as the meaning of race, racism, racial discrimination, racial segregation or separation, apartheid, anti-Semitism, etc. are not dealt with. We are aware of the fact that the subject is highly charged with political overtones and that it is frequently difficult to separate them from legal considerations. The public should see in these pages, basically, an effort to facilitate the knowledge of the provisions of the Convention, particularly on the eve of the International Year for Action to Combat Racism and Racial Discrimination in 1971. We hope that this in itself is a contribution to the fight against a world phenomenon based on theories that are, to use the words of the Preamble, “scientifically false, morally condemnable, socially unjust and dangerous” and which are an obstacle to “friendly and peaceful relations among nations” and “capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State.” Tel-Aviv, 1 July 1970

Guide to United Nations Documents A Document of the General Assembly A/C Document of a Committee of the General Assembly A/PV Procès-Verbal of the General Assembly cn Document of a Committee of the Economic and Social Council E Document of the Economic and Social Council E/CN.4 Document of the Commission on Human Rights E/CN.4/Sub.2 Document of the Sub-Commission on Prevention of Discrimination and Protection of Minorities sr Summary records of a given meeting Arabic figure In General Assembly or Economic and Social Council resolutions, indicates the number of the resolution Roman figure In General Assembly or Economic and Social Council resolutions, indicates the regular session of the General Assembly or ecosoc cerd  Document of the Committee on the Elimination of Racial Discrimination

part 1 The Preparation of the Convention

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1

Resolutions on Racial Prejudice and Religious Intolerance

On 12 December 1960, the General Assembly of the United Nations adopted Resolution 1510 (XV), condemning all manifestations and practices of racial, religious and national hatred in the political, economic, social, educational and cultural spheres of the life of society, as violations of the Charter of the United Nations and the Universal Declaration of Human Rights. This resolution was adopted after the attention of the United Nations had been drawn to an outburst of anti-Semitic incidents in several parts of the world, in 1959 and 1960, to which the Sub-Commission on Prevention of Discrimination and Protection of Minorities reacted, in January 1960, with a condemnatory resolution.1 The Commission on Human Rights, meeting in March 1960, also condemned those incidents.2 Prompted by the Sub-Commission on Prevention of Discrimination and Protection of Minorities and the Commission on Human Rights, the Economic and Social Council recommended to the General Assembly the adoption of a draft resolution on “Manifestations of Racial Prejudice and National and Religious Intolerance.”3 The draft resolution submitted by the Economic and Social Council referred to the “continued existence and manifestations of racial prejudice and national and religious intolerance in different parts of the world” and invited governments to make efforts to educate public opinion, with a view to the eradication of such manifestations, to take steps to rescind discriminatory laws, to adopt legislation, if necessary, for prohibiting discrimination, and to take measures to combat prejudices and intolerance. The General Assembly, at its seventeenth session, in 1962, allocated the item to its third Committee, where several amendments were proposed to the text. As amended, the text was adopted unanimously. 2

Resolutions on the Draft Declarations and Conventions

After adopting the draft resolution on Manifestations of Racial Prejudice and National and Religious Intolerance, the Third Committee had before it a draft resolution submitted by the Central African Republic, Chad, Dahomey, Guinea, the Ivory Coast, Mali, Mauritania and Upper Volta, on the preparation of an 1 E/CN.4/800, par. 163. 2 Resolution 6 (XVI). 3 Resolution 826 B (XXXII), 27 July 1961.

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international convention on the elimination of all forms of racial discrimination. The text of this draft resolution was revised six times, and several delegations suggested new formulations, some sponsoring only a declaration and some favouring an instrument dealing with religious as well as racial discrimination. Finally, the Third Committee adopted two separate resolutions, similarly worded, one asking for the preparation of a draft declaration and a draft convention on the elimination of all forms of racial discrimination,4 and one on the preparation of a draft declaration and a draft convention on the elimination of all forms of religious intolerance.5 Both resolutions referred to the desire “to put into effect the principle of the equality of all men and all peoples without distinction as to race, colour or religion” and to the “manifestations of discrimination based on differences of race, colour and religion still in evidence throughout the world.” The decision to separate the instruments on religious intolerance from those on racial discrimination is considered a compromise solution, intended to overcome the opposition to a joint instrument, emanating primarily from Arab delegations eager to displace the question of anti-Semitism, and from Communist representatives, who did not consider religious discrimination an important matter.6 However, the relationship between the item “Manifestations of Racial Prejudice and National and Religious Intolerance” and the decision to draft declarations and conventions on the elimination of all forms of racial discrimination and of religious intolerance, received clear expression during the debate in the Third Committee. The representative of Czechoslovakia, for instance, welcomed the above-mentioned Resolution 826 B (XXXII) of the Economic and Social Council, but felt, “at the same time,” “that an even more effective instrument was needed to eliminate racial discrimination in all its forms and since the major responsibility for discrimination lay with governments” her delegation was prepared to support and cosponsor the draft resolution calling for an international convention on the elimination of all forms of racial discrimination.7 The representative of Romania, announcing his ­delegation’s stand in favour of the draft convention, considered that Resolution 826 B (XXXII) represented a step towards the elimination of discrimination.8 4 General Assembly Resolution 1780 (XVII). 5 General Assembly Resolution 1781 (XVII). 6 See Egon Schwelb, The International Convention on the Elimination of all Forms of Racial Discrimination, in International and Comparative Law Quarterly, Vol. 15, p. 996 et seq. 7 A/C.3/SR.1165, p. 159. 8 A/C.3/SR.1166, p. 163.

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The representative of the Philippines said that the Committee had two distinct tasks to perform. The first was to consider urgent measures which could be taken, or at least initiated, immediately by governments, specialized agencies and non-governmental organizations, in order to deal effectively with actual manifestations of racial prejudice and national and religious intolerance. Economic and Social Council Resolution 826 B (XXXII) pertained to that aspect, while the draft resolution referring to the Convention addressed itself to the second task of considering further measures, mostly of a longrange character, conducive to the final and total elimination of all such manifestations.9 The delegate of New Zealand expressed the feeling of his delegation that the problem of removing prejudices could be solved by education, information and example, rather than by legislation. His delegation would prefer a declaration setting up a standard of conduct, rather than a convention. Nevertheless, the problem was one with wide international implications and it was impossible to ignore the fact that six million Jews had been put to death because they belonged to a particular race or religion.10 3

Preparation of the Convention

Resolution 1780 (XVIII) requested the Economic and Social Council to ask the Commission on Human Rights, bearing in mind the views of the SubCommission on Prevention of Discrimination and Protection of Minorities, the debates at the seventeenth and eighteenth sessions of the Assembly, any proposals on the matter submitted by governments and any international instruments already adopted in this field,11 to prepare a draft declaration on the elimination of all forms of racial discrimination, and a draft international convention on the elimination of all forms of racial discrimination. The draft declaration was to be submitted to the Assembly for consideration at its 9 10 11

A/C.3/SR.1167, p. 166. A/C.3/SR.1171, p. 191. Such international instruments are: the Convention Concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organization on 25 June 1958; the Convention Against Discrimination in Education adopted by the General Conference of unesco, on 14 December 1960, and the Protocol Instituting a Conciliation and Good Offices Commission to settle disputes between States Parties to the unesco Convention, adopted on 10 December 1962. For the texts, see E/CN.4/Sub.2/234, Annexes I to III.

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e­ ighteenth session; the draft international convention was to be submitted to the Assembly at its nineteenth session and, in any event, not later than its twentieth session. At its 1261st meeting, on 20 November 1963, the General Assembly, upon the recommendation of the Third Committee, adopted Resolution 1904 (XVIII), proclaiming the United Nations Declaration on the Elimination of all Forms of Racial Discrimination.12 The Assembly also adopted Resolution 1906 (XVIII), requesting the Economic and Social Council to invite the Commission on Human Rights to give absolute priority to the preparation of the draft international convention. 4

Work of the Sub-Commission

The Sub-Commission on Prevention of Discrimination and Protection of Minorities began to work on the Convention at its sixteenth session, held in New York on 13–31 January 1964. The Sub-Commission devoted twenty-one plenary meetings to the consideration of this item. It had before it the already adopted text of the United Nations Declaration on the Elimination of all Forms of Racial Discrimination, the text of the afore-mentioned international instruments already adopted by other bodies, and three drafts submitted by members of the Sub-Commission, Mr. Morris Abram (United States),13 Mr. Peter Calvocoressi (United Kingdom)14 and, jointly, Messrs. Boris S. Ivanov (ussr) and Wojciech Ketrzynski (Poland).15 The Sub-Commission took as a basis for its work the draft prepared by Mr. Abram, and adopted a preamble and ten articles.16 The Sub-Commission also decided to transmit to the Commission on Human Rights a preliminary draft, “as an expression of the general views of the Sub-Commission,” on additional measures of implementation. 5

Work of the Commission on Human Rights

The Commission on Human Rights dealt with the draft prepared by the SubCommission at its 20th session, held in New York on 17 February–13 March 12 See Appendix 2. 13 E/CN.4/Sub.2/L.308, Add. 1, Add. 1/Rev. 1, and Add. 1/Rev. 1/Corr. 1. 14 E/CN.4/Sub.2/L.309. 15 E/CN.4/Sub.2/L.314. 16 E/CN.4/Sub.2/241.

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1964. The Commission also had before it a working paper prepared by the Secretary-General, presenting alternative forms for final clauses;17 the debates at the seventeenth and eighteenth sessions of the General Assembly; proposals and comments from the governments of Burma, Honduras, Madagascar, Nigeria, Trinidad and Tobago, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and a working paper on a draft international convention on the elimination of all forms of racial discrimination submitted by Czechoslovakia to the seventeenth session of the Assembly, as well as the international instruments previously mentioned. The Commission gave absolute priority to the preparation of the draft Convention and devoted its 775th to 810th meetings to it, adopting the substantive articles of the draft Convention. On the recommendation of the Commission, the Economic and Social Council adopted, on 30 July 1964, Resolution 1015 B (XXXVII), submitting to the Assembly the substantive articles prepared by the Commission, as well as the proposal for an additional article submitted by the usa, dealing with anti-Semitism, and a subamendment thereto submitted by the ussr; the text of Article X of the draft Convention, on measures of implementation, and a preliminary draft of additional measures of implementation, both prepared by the Sub-Commission, the working paper prepared by the Secretary-General for the final clauses of the Convention, and records of the discussion on these items by the Commission on Human Rights. 6

Draft of the Third Committee

The General Assembly, at its 1336th meeting, on 24 September 1965, allocated to the Third Committee the item on the Convention. The Third Committee devoted forty-three meetings to it. The Committee decided not to hold a general debate on the draft Convention as a whole, and then considered the texts of the Preamble and each of the substantive articles submitted by the Commission. A general discussion was held on measures of implementation. On the basis of a draft submitted by Ghana, Mauritania and the Philippines, a final text was elaborated by the Committee. The Officers of the Committee also submitted a preliminary draft on final clauses. 17 E/CN.4/L.679.

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A resolution not to include in the Draft Convention any reference to specific forms of racial discrimination was proposed by Greece and Hungary and approved in a roll-call vote.18 7

Vote in the General Assembly

The report of the Third Committee19 was submitted to the General Assembly on 21 December 1965. Presenting the report, the Rapporteur drew the Assembly’s attention to the fact that the Third Committee had decided not to include a territorial application clause, a federal clause or a reservations clause in the Draft Convention. On the reservation clause the Assembly had before it an amendment submitted by a large group of Afro-Asian countries,20 which was adopted by 82 votes to 4, with 21 abstentions. Previously, a separate roll-call vote had been taken on a sentence on the question of incompatible or inhibitive reservations. The sentence was retained.21 A second amendment, to Article 4, on incitement, was proposed in the Assembly by five Latin American countries. The amendment was rejected by 54 votes to 25, with 23 abstentions.22 The convention as a whole was adopted by 106 votes to 0, with 1 abstention, Mexico.23 Mexico later announced that it was giving its affirmative vote to the Convention.24 18 We refer to this matter in detail in Part 3, Chapter 3. 19 A/6181. 20 A/L.479. 21 We refer in more detail to the problem in Part 3, Chapter 5. 22 We refer in more detail to this problem in Part 3, Chapter 2, Art. 4. 23 General Assembly Resolution 2106 A (XX). A/PV.1406. 24 A/PV.1408, pp. 2–5.

part 2 Scope and Significance of the Convention

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The Convention and the International Bill of Rights

As the Secretary-General of the United Nations stated immediately after the adoption by the General Assembly of the Convention on the Elimination of all Forms of Racial Discrimination, “since the Universal Declaration of Human Rights was adopted and proclaimed on 10 December 1948, the world has anxiously awaited the completion of other parts of what was then envisaged as an International Bill of Human Rights, consisting of the Declaration, one or more international conventions, and measures of implementation.”1 For that reason, the adoption of the Convention, with its measures of implementation set out in Part 2, represents, again in the words of U Thant, “a most significant step towards the realization of one of the Organization’s longterm goals.” The road towards the completion of such an International Bill of Rights is a very difficult one. The United Nations had the draft Covenants on Economic, Social and Cultural Rights and on Civil and Political Rights on the agenda for twelve years and, because of the difficulties encountered in their preparation, efforts were made to build an “international law of human rights” step by step.2 On the other hand, the fact that Resolution 1780 (XVIII), calling for the preparation of the Declaration and of the Convention on the Elimination of all Forms of Racial Discrimination, was adopted on 7 December 1962, and that, already on 20 November 1963, the General Assembly had adopted the Declaration and, on 21 December 1965, the Convention shows that “States Members of the United Nations attach special importance to the fight against  racial discrimination, thus stressing one of the most urgent and ­crucial problems that have arisen in the matter of protecting fundamental human rights.”3 Spokesmen of big and small countries agree on the significance of the Declaration and the Convention, but frequently not for the same reasons, and also differ on which aspects of the Convention are essential, or which fields of application are more urgent or important. The unanimity reached in the adoption of both instruments, as well as the statements made even by representatives of those countries who objected to one or other clause of the Convention, are clear indications of the hope that the Convention might contribute in some 1 Statement before the General Assembly, A/PV.1408, p. 68. 2 Richard N. Gardner, In Pursuit of World Order, ed. Frederick A. Praeger, New York, 1964, p. 242. 3 The president of the General Assembly, Amintore Fanfani, in the General Assembly, 21 December 1965.

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measure to helping millions of people of the world in their fight for equality in the enjoyment of all the rights and freedoms set out in the Universal Declaration, without distinction as to race, colour, descent, national or ethnic origin. The Declaration and the Convention on Racial Discrimination are now part of the standards laid down by the United Nations. In December 1966 the Covenants on Human Rights were also adopted by the General Assembly. The International Bill of Human Rights, which already includes provisions on genocide, statelessness, refugees, slavery, rights of women, marriage and the matters covered by the ilo and the unesco conventions, should now be completed with the adoption of the Declaration and the Convention on the Elimination of all Forms of Religious Intolerance. Both sets of instruments— those on racial discrimination and those on religious intolerance—were conceived, so to speak, as “twin” declarations and “twin” conventions. Both are intended to put an end to any discrimination based on the fact that the victim of it belongs to a certain human group. Racial, religious and ethnic intolerance and prejudices are in many ways inseparable, and frequently it is impossible— and also irrelevant—to establish which element defining the nature of the group is the one that engenders the acts that should be prohibited. Unfortunately, no progress was registered with regard to the Convention on Religious Intolerance. As to the Declaration, now called Declaration on the Elimination of All Forms of Intolerance and of Discrimination based on Religion or Belief, it took the Commission on Human Rights seventeen years to prepare and adopt, in March 1979, three draft articles. At this stage, the Convention is a vigorous step forward, whatever reservations can be raised about some of its clauses and to its limitations. As the representative of the United States of America declared after the adoption of the Convention,4 it is “more than a statement of lofty ideals. It provides machinery for implementation which goes well beyond any previous human right instrument negotiated in the United Nations.” For Schwelb, the substantive provisions of the Convention “represent the most comprehensive and unambiguous codification in treaty form of the idea of equality of races.”5 We shall deal in respective chapters with both the advantages and disadvantages of the substantive clauses and procedural provisions, as incorporated in the Convention. But within the general scope of the envisaged International Bill of Rights, the Convention unquestionably involves progress in the search for a more effective system for the protection of human rights.

4 A/PV.1406, pp. 53–55. 5 Op. cit., p. 1057.

Scope and Significance of the Convention

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Universality of the Convention

The Convention is broad enough in its scope to cover racial discrimination in “all its forms and manifestations.” Political considerations induced some Member States to stress, in the process of drafting as well as in commentaries on the Convention after its adoption, some specific forms of racism. Something similar happened during the drafting of the Declaration. Thus for instance, for the ussr representative in the General Assembly,6 the adoption of the Convention was “a logical development of the historical Declaration of the United Nations on the granting of independence to colonial countries and peoples….” The Soviet Union representative in the Third Committee, commenting upon the Declaration, referred particularly to those “who defended racism, in Spain, in Portugal, in South Africa and elsewhere…” and to the “reappearance of groups and parties with fascist tendencies, particularly in the Federal Republic of Germany….”7 The usa representative, the late Adlai Stevenson, addressing in 1963 the Third Committee, referred to the efforts of his own government to destroy racial discrimination, and stressed the concern of the Convention with the duty of States to limit their power and to enforce safeguards against tyranny over the mind and welfare of the individual, rather than with the right of national self-determination.8 The particular consideration attached to the practices of apartheid receives expression not only in the text of the Convention in itself—apartheid is the only form of racial discrimination to which a specific article is devoted in addition to mentioning it in the Preamble—but also in the statements and comments of many representatives belonging to countries with different political and social regimes. In Part 1 we have already mentioned the relationship between the manifestations of racial prejudice and national and religious intolerance which induced the United Nations to deal with the problem of racial discrimination, on the one hand, and the speedy adoption of the Convention, on the other. This relationship was recalled by the representative of Israel in the Third Committee, Mr. Yapou, who, evoking the persecution against Jews for centuries, which had culminated in the horror of the nazi concentration camps, said that it was not surprising that the revival of anti-Semitic and neo-nazi movements in recent years had deeply disturbed public opinion, and had induced 6 A/PV.1406, p. 61. 7 A/C.3/SR.1215, p. 7. 8 A/C.3/SR.1217.

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the United Nations to take up the serious question of racial discrimination after the incidents in 1959/1960. The Israel representative also drew the attention of the Committee to the fact that it should be borne in mind that the religious and ethnic aspects of discrimination were often closely interrelated. “It was difficult to say where racial discrimination ended and religious discrimination began. The close interrelationship between the two forms of discrimination should be brought out clearly…in order to avoid undue narrowness and rigidity.”9 So, too, the representative of Italy, declaring, after the Convention had been adopted, that primarily the Convention is “a solemn affirmation of the peoples of the United Nations to do away once and for all with doctrines and practices which for too many centuries have caused untold suffering,” felt it necessary to recall that everyone remembers the millions of victims of racial hatred and anti-Semitism “in our generation.”10 The representative of the Netherlands made a similar statement when commenting upon the Declaration.11 The representative of Mongolia, commenting upon the Declaration, recalled particularly colonialism, the instances of South Africa and Portugal, and the nazi persecutions of the Jews.12 The American representative in the Third Committee, Mr. Rogers, also referred to the role played by the outbreak of anti-Semitism in 1959 as a direct cause of the decision of the United Nations to draft the Convention. Several representatives, like those from Trinidad and Tobago and Panama, stressed that the wording of the Convention was broad enough, and sufficiently explicit to cover all forms of racial discrimination, including anti-Semitism. We have quoted these different statements in order to stress the broad scope of the Convention. Political or circumstantial considerations can compel particular attention to one or another aspect of the Convention, but it would be a distortion of its purposes not to bear in mind that the Convention is aimed at racial discrimination in all its forms and manifestations, anywhere. This universality of the Convention is the basic element in defining its scope. When we speak here of universality we are not referring to the question of who may become a party to the Convention. This was solved in articles 17 and 18 in a restrictive way, since the Convention is open for signature and accession only to State Members of the United Nations or of any of its specialized 9 10 11 12

A/C.3/SR.1215, p. 10. A/PV.1406, p. 57. A/C.3/SR.1215, p. 14. In the Third Committee, 1963, A/C.3/SR.1218.

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agencies. This limitation induced some signatory States to formulate reservations to Articles 17 and 18. This is more a political matter to which we refer later, in Part 3, Chapter 5. 3

Balance Between Freedoms

Article 4 of the Convention, like Article 9 of the Declaration, involves a problem of balance between freedoms. In general terms, the question is how to find a balance between guarantees of rights on the one hand, and limitations of rights on the other. Article 9 of the Declaration engendered a serious crisis which delayed the adoption of the Declaration as a whole by the General Assembly. The problem was solved with the adoption of a relatively small amendment which gave the dissenting Member States the opportunity to change their stand. The long discussion on Article 4 dealt basically with the problems of freedom of speech and freedom of association, freedoms which are likely to be restricted by the provisions of the Convention. We deal in detail with this problem in Part 3, Chapter 2, Article 4. Here it should only be said that the Nigerian amendment, which made possible the adoption of Article 4, does not solve the problem, but rather leaves its solution open to each individual State. It seems obvious that declaring “all dissemination of ideas based on racial superiority or hatred” an offence punishable by law, interferes with absolute freedom of speech. However, it would not be the first time that States have limited that freedom, which, like any other freedom, is not absolute. The same applies to the conflict between prohibiting organizations which promote and incite to racial discrimination, and absolute freedom of association. Articles 29 and 30 of the Universal Declaration should be kept in mind here. State Members will have to deal with this problem in their domestic legislation, and will solve it according to their respective political philosophy and orientation in the question of preeminence of rights. Similar discussions have arisen more than once in connection with legislation on pornography and obscenity, national security, blasphemous utterances which offend basic religious beliefs, libellous and defamatory statements against individuals, and other instances of cases when the legislator considered that absolute freedom of speech and expression could not prevail over conditions of public order.13 13

We have dealt with the controversy on this problem and with legislation adopted by numerous countries in this field in The Crime of Incitement to Group Hatred, published by the World Jewish Congress, in New York, 1965.

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As it was indicated during the debates, the world community concept had given rise to the idea of an international public morality, which must not conflict with the internal organization of States. A common denominator, “the standard which must guide States, regardless of their structural differences,” will have to be found.14 4

Measures of Implementation and the Right of Individual Petition

The Convention, as the Secretary-General stressed, not only calls for an end to racial discrimination but “it goes on to the next, and very necessary, step of establishing the international machinery which is essential to achieve that aim” with the measures of implementation set out in Part 2, particularly the right of individuals to petition. The incorporation of such measures was one of the most difficult problems in the drafting of international instruments prepared by the United Nations, such as the Covenants, for instance. In the Convention measures of implementation were adopted and Article 14, an optional article, provides for the right of individual petition. We shall deal with this matter in Part 3, Chapter 4, but, when analyzing the scope and the significance of the Convention, the controversy around the system of implementation should be recalled. Problems of national sovereignty are involved, as well as the not less difficult question of when “all available domestic remedies” should be considered exhausted, so as to open the way for the petitions of individuals or groups of individuals. The controversial Article 15, on petitions from inhabitants of non-self-governing territories, should also be mentioned in this context. In any case, the system of measures of implementation created by the Convention, including, on an optional basis, the individual right of petition, is a significant contribution towards making the Convention more than a declaratory instrument. Professor John Humphrey, former head of the Division of Human Rights of the United Nations, indicated that, while coming far below the standards established by the European Convention on Human Rights or the ilo constitution, the system of implementation provided by the Convention, although weak, is nevertheless, “the strongest yet to be created for a United Nations human rights convention including the two covenants.”15 14 15

In the words of the Mexican expert in the Sub-Commission, later President of the Third Committee, Mr. Cuevas Cancino, E/CN.4/Sub.2/SR. 1418, p. 12. Report of the International Committee on Human Rights to the Fifty-Third Conference of the International Law Association, 1967, p. 10.

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For Schwelb, the Convention creates “potentially powerful international machinery.”16 Naturally, all ultimately depends upon the ratifications of the Convention, and the recognition by the ratifying States of the competence of the Committee established to consider communications from individuals, or groups of individuals, claiming to be victims of a violation, by a State Party, of any of the rights set forth in the Convention. 16

Op. cit., p. 1058.

part 3 Interpretation of the Convention

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chapter 1

The Preamble The Preamble of the Convention, as adopted by the General Assembly reads: The States Parties to this Convention Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action in co-operation with the Organization for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinctions of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, Considering that the United Nations have condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous,

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and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State, Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination, Bearing in mind the Convention on Discrimination in Respect of Employment and Occupation adopted by the International Labour Organization in 1958, and the Convention Against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960, Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows: … 1

Discussion in the Sub-Commission

The Sub-Commission had before it three texts for the Preamble, presented by Mr. Abram (usa),1 Mr. Calvocoressi (United Kingdom)2 and, jointly, Messrs. Ivanov (ussr) and Mr. Ketrzynski (Poland).3 While Mr. Abram’s and Mr. Ivanov’s and Mr. Ketrzynski’s draft proposed detailed texts, Mr. Calvocoressi’s test was a very short one. It referred to Article 55 of the United Nations Charter and to Resolution 1904 (XVIII) of the Assembly of 20 November 1963, and 1 E/CN.4/Sub.2/L.308. 2 E/CN.4/Sub.2/L.309. 3 E/CN.4/Sub.2/L.314.

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expressed the desire “to eliminate all forms of racial discrimination and to secure the respect for the dignity of the human person.” Several amendments were submitted to the different drafts, a number of which were incorporated in a joint draft submitted by Messrs. Calvocoressi and Capotorti (Italy).4 A new debate followed and, after a number of amendments were suggested orally, a working group was established and prepared a new draft. Several amendments to this draft were still adopted before the final text5 was unanimously agreed upon. It referred to the Charter, the Universal Declaration of Human Rights, the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on the Elimination of All Forms of Racial Discrimination. Reference was also made to the ilo and unesco Conventions. The text followed then: Convinced that any doctrine based on racial differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination in theory or in practice anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and a fact capable of disturbing peace and security among peoples as did the evil racial doctrines and practices of nazism in the past, Concerned by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, and desiring therefore to adopt further measures in order to eliminate racial discrimination in all its forms and manifestations as soon as possible, During the discussion in the Sub-Commission, Mr. Abram proposed to transpose the words in the paragraph beginning “Convinced” so that the text would read: “Convinced that any doctrine of superiority based on racial differentiation is scientifically false….” In Mr. Abram’s view, the doctrine of racial superiority was the root-cause of discrimination, but some members of the Committee interpreted this

4 E/CN.4/Sub.2/L.313. 5 E/CN.4/Sub.2/L.317.

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amendment as intended to justify the doctrine of “separate but equal.”6 It was recalled by the Chairman of the Sub-Commission, Mr. Santa Cruz (Chile), that the original wording of the draft was based on the conclusion of a unesco group of experts, for whom the concept of race commonly held was scientifically false since there were no basic differences between racial and ethnic groups. Mr. Bouquin (France) felt that Mr. Abram’s amendment improved the text, and recalled that the unesco experts did not conclude that there were no ­differences between races, but that racial differences implied neither superiority nor inferiority. Mr. Abram’s amendment was finally rejected in the ­Sub-Commission, but his view was later adopted by the Commission on Human Rights. Another discussion centred on the question of substituting the word “nazism” for the suggested term “national socialism.” Some delegates wanted to clarify that the term “national socialism” referred to the theory and practice in Germany and Italy before and during the Second World War, in order not to confuse it with the national socialism advocated by some political groups in Africa. The wisdom of including a specific reference to one form of racist theories was questioned by some members of the Sub-Commission. 2

Discussion in the Commission

Several amendments were submitted, in the Commission on Human Rights, to the draft Preamble prepared by the Sub-Commission. Preambular paragraph 1 gave rise to difficulty, since some members considered it inappropriate to use the words “ensure” and “universal,” not included in the Charter, and which could be interpreted as giving a controversial interpretation of the Charter and as justifying interference in the internal affairs of States.7 The question whether Article 56 of the Charter refers only to Article 55, or to the Charter as a whole, is also involved here. Amendments by Lebanon and the Philippines to paragraph 1 were incorporated in a joint amendment, which was also cosponsored by India, and adopted. 6 This doctrine was adopted in 1896 by the United States Supreme Court in the famous case Plessy vs. Ferguson and prevailed until 1954 when it was rejected by the Court in the historic decision of Brown vs. Board of Education of Topeka. See, on this doctrine, this writer’s En Defensa de los Derechos Humanos, Buenos Aires, 1958. 7 Schwelb, op. cit., p. 1029, criticizes the objectors of the paragraph, particularly the British delegate, asking what national interest was supposed to be served by opposing “the principle of effectiveness in the interpretation of the basic instrument of the international community.”

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A proposal by Lebanon, to add the words “in particular as to race, colour or national origin” at the end of the second paragraph, was adopted in spite of the fact that the words “national origin” were objected to as being open to different interpretations. An amendment proposed by the Philippines to the third paragraph was adopted, while no changes were made in the fourth paragraph. An amendment by Lebanon to paragraph 5 (6 in the final text), in order to replace the words “based on racial differentiation or of superiority” by the words “of superiority based on racial differentiation,” was adopted unanimously, reversing the stand taken by the Sub-Commission. In paragraph 6 (7 in the final text), the words “of nazism” were voted on separately, as requested by the representative of France, and rejected by eight votes to six with five abstentions. A new paragraph 8 (corresponding to 10 in the final text) was adopted after paragraph 7 as a joint amendment by Italy and Lebanon, incorporating suggestions made by the representatives of India, Lebanon and the ussr. It read: Resolved to adopt all necessary measures for eliminating speedily racial discrimination in all its forms and manifestations and to prevent and combat racist doctrines and practices in order to build an international community free from all forms of racial segregation and racial discrimination. 3

Discussion in the Third Committee

Several amendments were proposed in the Third Committee. The third paragraph of the final text is the result of an amendment proposed by Romania and modified by the United Kingdom. Paragraph 5, as drafted by the Commission on Human Rights, concluded with the word “manifestations.” An amendment, submitted by a group of Latin American States, and adopted unanimously by the Committee, proposed the addition, at the end of the paragraph, of the words “and of securing understanding of and respect for the dignity of the human person.” The same Latin American countries proposed an amendment to paragraph 7 (paragraph 6 in the Commission’s draft), calling for the replacement of the words “as evil racial doctrines and practices have in the past” by “as well as the harmonious co-existence of persons within the same State.” As a consequence of a suggestion by the representative of India, the final text adopted was: “and the harmony of persons living side by side even within one and the same State.”

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The new paragraph 8 was introduced by Brazil, Colombia and Senegal, which proposed the following text: Convinced that the existence of racial barriers is repugnant to the ideals of any civilized society. Some representatives objected to the use of the term “any civilized society.” The sponsors of the amendment agreed therefore to substitute the word “human” for the word “civilized.” In the new paragraph 10 (paragraph 8 of the Commission’s draft) an amendment proposed by several Latin American delegations and calling for the insertion of the words “promote understanding between races and to” after the words “in order to,” was adopted. 4

Contents of the Preamble

The Preamble of the Convention is a lengthy description of the aims of the instrument, and should be useful for interpreting the operative articles. Being the outcome of so many discussions in different United Nations bodies, it lacks complete unity. It is, of course, no source of obligations for the Parties. The Preamble begins by recalling that the Charter of the United Nations is based on the principles of dignity and equality inherent in all human beings, and that all Member States have pledged themselves to promote and encourage universal respect for, and observance of, human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion. This is a reference to the principles embodied in Articles 1(3), 55 and 56 of the Charter. Besides the Charter, the Preamble mentions five other international instruments: the Universal Declaration of Human Rights, the Declaration on the Granting of Independence to Colonial Countries and Peoples,8 the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, the Convention on Discrimination in Respect of Employment and Occupation of the International Labour Organization, and the Convention Against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization (unesco). The United Nations Declaration is mentioned twice (paragraph 5 and 12). While some essential principles from the Universal Declaration of Human Rights, the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the 8 General Assembly Resolution 1514 (XV).

The Preamble

27

u.n. Declaration on Racial Discrimination are expressly quoted, the ilo and unesco Conventions are only mentioned (paragraph 11) as having been borne in mind. The Preamble, following the wording of Article 7 of the Universal Declaration, proclaims (paragraph 3) that all human beings are equal before the law, and are entitled to equal protection of the law against any discrimination, as well as against any incitement to discrimination. It declares (paragraph 6) that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, differing here from the Declaration, which condemns any doctrine of racial differentiation or superiority. This question was a source of difficulty when both the Declaration and Convention were discussed. When this paragraph of the Declaration was taken up by the Third Committee, the United States of America asked for a separate vote on the words “differentiation or.” The words were retained after a roll-call vote, by thirty-five votes to nineteen, with forty-five abstentions. The whole paragraph was also adopted by a roll-call vote, by sixty-four to one, with thirty-four abstentions. The text, as adopted by the Convention, is the result of an amendment unanimously accepted by the Commission on Human Rights, in line with a remark made by the unesco representative. Paragraph 7 reaffirms that discrimination on the grounds of race, colour or ethnic origin is an obstacle to peace. The text differs from paragraph 2 in fine, which prohibits distinctions based particularly on “race, colour or national origin.” The use of the words “national origin” in the Preamble as well as in Article 1, and in the deleted Article VIII of the draft prepared by the Sub-Commission, created difficulty.9 Paragraph 7 covers both the problems of racism as an obstacle to international peace and as a threat to harmony within the borders of a given State. This second aspect is connected with the problem of incitement to group-hatred dealt with by the Convention in Article 4. Paragraph 9 expresses alarm because of the “manifestations of racial discrimination” still in evidence in some areas of the world, and because of governmental policies based on racial superiority or hatred, such as “apartheid, segregation or separation.” Paragraph 9 should be related to Article 3 of the Convention, although the last one does not mention “separation,” condemning only apartheid and racial segregation. The drafters of the Convention clearly discriminated here, as they did in Article 3, in favour of the victims of apartheid. The not convincing explanation given for the special mention of apartheid and exclusion of other racial evils, such as nazism and anti-Semitism, was that apartheid is today the only instance 9 We deal with this problem in Chapter 2, Article 1.

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of racial discrimination as an official policy of government, and, while it would be possible to find in the past other equally repulsive practices, a convention could not be transformed into a study of social evils. It is quite apparent from the nature of the debate on the adoption of this paragraph, as well as of the debates on the deletion of the reference to nazism and on the proposed new article on anti-Semitism, that what decided the final text were political considerations.10 Paragraph 10, which speaks about the Parties’ resolution to take measures against descrimination, does not offer any difficulties, and should be related to paragraphs 5 and 7. The Preamble of the Convention follows more or less the structure of the Preamble of the Declaration. Paragraph 6 in the Convention differs from the respective paragraph 5 in the Declaration, as already indicated. Paragraph 8 has no direct equivalent in the Declaration. The Convention does not emphasize, as the Declaration does, that “international action and efforts in a number of countries have made it possible to achieve progress” in the field of discrimination. Compared to the preambles of other similar international instruments, such as the ilo Convention Concerning Discrimination in Respect of Employment and Occupation, and the unesco Convention against Discrimination in Education, the Preamble of the Convention on Racial Discrimination is a more elaborate and detailed one. It was felt that in general, the structure of the Preamble of the Declaration should be followed in the Convention, with some changes emanating from its binding nature. Some differences of a substantial character were also introduced, as mentioned above. 5

Reference to Nazism

The question of including an explicit condemnation of nazism in the Preamble was discussed in the Commission and in the Third Committee. Such a condemnation was incorporated in paragraph 6 of the draft prepared by the ­Sub-Commission. It read: 10

During the debate in the Sub-Commission the representative of the International League for the Rights of Man, recalling that his organization had drawn the attention of the United Nations, after the outbreak of the “Swastika epidemic,” to the need for studying the question of racial discrimination, pointed out that colonialism and apartheid had never caused as many victims as Hitlerism and nazism. The United Nations could not, therefore, lose sight of the phenomena which were at the origin of its own work.

The Preamble

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Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples as did the evil racial doctrines and practices of nazism in the past… During the debate in the Commission, the representative of France requested a separate vote on the words “of nazism” in paragraph 6. He, and other representatives who favoured the omission of the reference to nazism, emphasized that, while abhorring its doctrines and practices, which had led to the loss of many lives, historically there had been other equally repulsive and reprehensible evils, which were not specifically singled out in the text. Therefore it was preferable to adopt a general text describing all evil racial doctrines and practices in the past. It was pointed out that no specific reference to nazism had been included in the Declaration on Racial Discrimination or in the Universal Declaration on Human Rights or in the Charter. Those favouring a reference to nazism considered that it represented the most striking historical instance of racist doctrines and practices, and had led to the Second World War. Besides, the fear of the resurgence of nazism was a problem of our time, and it was necessary therefore to include a reference to it. Some other representatives considered the move to omit the reference to nazism as being politically motivated. The words “of nazism” were voted on separately in the Commission, and were rejected by eight votes to six, with five abstentions. An additional discussion on the same subject was held when the Commission discussed the proposal to add a new article on anti-Semitism.11 In the Third Committee, Poland proposed an amendment including a reference to nazism in the Preamble. Similar opinions in favour of, and against, the singling out of nazism were repeated. As a consequence of the adoption of the Greek-Hungarian proposal, not to single out any specific form of discrimination,12 the Polish amendment could not be considered and voted upon. The only form of racial discrimination singled out in the Preamble is, therefore, apartheid. While accepting the view that an international Convention should be as general as possible, it is difficult to share the argument that racial evils such as nazism and anti-Semitism, the condemnation of which engendered the u.n. legislative process that culminated with the adoption of the Convention, should be left out of the Preamble that aims at explaining the objectives of the instrument. 11 See Part 3, Chapter 3. 12 Ibid.

chapter 2

Substantive Articles

Article 1. Definition of Racial Discrimination

Article 1, as adopted by the General Assembly, reads as follows: 1.

In this Convention the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. 1 Discussion in the Sub-Commission The Sub-Commission had before it the three texts submitted by Messrs. Abram,1 Calvocoressi2 and jointly by Messrs. Ivanov and Ketrzynski.3 The text proposed by Mr. Abram included in the term “racial discrimination” any 1 E/CN.4/Sub.2/L.308. 2 E/CN.4/Sub.2/L.309. 3 E/CN.4/Sub.2/L.314.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279926_005

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“distinction, exclusion or preference made on the basis of race, colour or ethnic origin, and in the case of States composed of different nationalities or persons of different national origin, discrimination based on such differences.” The text proposed by Mr. Calvocoressi added to the words “distinction,” “exclusion” or “preference” the word “limitation.” The text proposed jointly by Messrs, Ivanov and Ketrzynski covered “any differentiation, ban on access, exclusion, preference or limitation based on race, colour, national or ethnic origin, which has the purpose or effect of nullifying or impairing equality in granting or practising human rights and freedoms in political, economic, social, cultural, or any other field of public life.” Amendments were submitted to the different texts. Several of them were incorporated in the new draft submitted jointly by Messrs. Calvocoressi and Capotorti.4 A working group later prepared a new draft.5 The first of its two paragraphs followed, in general, the lines of the final text adopted by the General Assembly. It did not refer to “descent” and included, in brackets, a reference to cases of States composed of different nationalities. It referred also to the rights and freedoms set forth “inter alia in the Universal Declaration of Human Rights.” The second paragraph dealt with measures giving preference to certain groups, in a shorter wording than that of paragraph 4 of the final text approved by the General Assembly. 2 Discussion in the Commission Several amendments to both paragraphs of the text prepared by the SubCommission were submitted to the Commission. After a discussion, agreement was reached in order to end the first paragraph after the words “of public life,” thus eliminating the reference to the Universal Declaration, since it was pointed out that there were rights not mentioned in the Declaration that should also be protected, and it was considered inappropriate to use the vague expression inter alia. A controversy arose on the advisability of retaining the words “national or” in paragraph 1. Some members considered that it was undesirable to include a notion like “national origin” in an operative paragraph of a convention, since its meaning and scope were vague and could lead to misinterpretation. At the request of the representative of the United Kingdom, a separate vote was taken on these words, which were retained by ten votes to nine, with one abstention. At a further meeting of the Commission, after a decision was taken to delete Article VIII of the draft prepared by the Sub-Commission, the representative of 4 E/CN.4/Sub.2/L.318. 5 E/CN.4/Sub.2/L.319.

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France moved to reconsider article 1, paragraph 1, with a view to deciding whether the word “national” should be retained. This motion was voted on by roll-call and adopted by eight votes to six, with seven abstentions. It was again underlined that difficulties arose out of the fact that the term “national” in the English and French languages was not necessarily related to the country of origin, but referred to citizenship. Finally it was decided to place the word “national” within square brackets and to add, at the end of the paragraph, also in square brackets, the words “In this paragraph the expression ‘national origin’ does not cover the status of any person as a citizen of a given State.” The Commission decided to eliminate the parenthetic phrase related to States composed of different nationalities. Paragraph 2, dealing with preferential measures for certain racial groups, gave rise to difficulties, since several representatives considered that it required further clarification. Several amendments were submitted. The discussion centred on the need to secure that special measures should not be maintained indefinitely, and on the use of the word “under-developed.” The discussion of this paragraph was postponed until a decision was taken on Article II, paragraph 2. When it was resumed, after the submission of a revised amendment by the representative of India, the paragraph was adopted unanimously. 3 Discussion in the Third Committee Several amendments were proposed in the Third Committee to the text of Article 1 as submitted by the Commission. Most centred around the words in square brackets, in paragraph 1, and the reference to “under-developed” groups in the second paragraph. Finally the different amendments were withdrawn in favour of a joint amendment of Ghana, India, Kuwait, Lebanon, Mauritania, Morocco, Nigeria, Poland and Senegal,6 which proposed the replacement of paragraph 1 of the text of the Commission by a new one, which corresponds to paragraphs 1, 2 and 3 of the text adopted by the Assembly. The new text was adopted unanimously by the Committee. An amendment of the Democratic Republic of Congo and the Ivory Coast, to delete paragraph 2 of the original text, was rejected. After an oral amendment of Ethiopia and India, it was decided, by sixty-seven votes to ten, with fifteen abstentions, to replace, in the former paragraph 2 of the text of the Commission (paragraph 4 of the final text), the words “development or protection of certain under-developed racial groups or individuals belonging to them” by the words “advancement of certain racial or ethnic groups or individuals needing such protection as may be necessary.” 6 A/C.3/L.1220.

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4 Contents of Article 1. The Question of National Origin Article 1 has four paragraphs. Paragraph 1 defines racial discrimination. Paragraphs 2 and 3 contemplate cases when the Convention does not apply. Paragraph 4 deals with special temporary measures in favour of certain racial groups or individuals. According to paragraph 1, four kinds of acts are, in given circumstances, considered discriminatory: any distinction, exclusion, restriction or preference. There were some doubts with regard to the use of words indicating discrimination, and there were proposals to include in the definition words as “differentiation,” “limitation” and “ban on access.” It was agreed finally that the four mentioned terms would cover all aspects of discrimination which should be taken into account. When the discriminatory act consists in a “preference” it will only fall within the ban of the Convention if it is not one of the special measures mentioned in paragraph 4 of Article 1 or in Article 2.2. We refer later to this problem. In order that any of those four acts be considered discriminatory, two conditions are necessary: 1. 2.

that they should be based on (a) race, (b) colour, (c) descent, (d) national origin or (e) ethnic origin; that they should have the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

The intention of the drafters of Article 1 was to cover in its first paragraph all kind of acts of discrimination among persons, as long as they were based on motivations of a racial nature, in the broad sense of the word. The SubCommission, the Commission and the Third Committee had to overcome delicate problems in order to reach agreement on this wording. As it was pointed out in the debate in the Sub-Commission, “while, as unesco had shown, there was no such thing as race, the term ‘race’ would have to be used in the draft convention.”7 The words colour, descent8 and ethnic origin did not present major difficulties, but a serious problem arose with regard to the term “national origin,” even after it was made clear that these words were not utilized as 7 Statement of the expert from Finland, Mr. Saario, E/CN.4/Sub.2/SR.411, p. 6. 8 The term “descent” was incorporated by the Third Committee and was originally suggested by India. Schwelb (op. cit., p. 1003) believes that the term includes the notion of “caste” used by the Indian Constitution.

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equivalents of the term “nationality” or “citizenship.” The question was still more complicated after the deletion of the proposed Article VIII containing an interpretation of the meaning of these words. The words “national origin” are used in the Preamble of the Declaration but not in its body. As the representative of Poland pointed out during the debate in the Third Committee, in many languages and cultural systems “national origin” meant something different from “ethnic origin.”9 There were nations made up of different ethnic groups, and also situations in which a politically organized nation was included within a different State, and continued to exist as a nation in the social and cultural senses, even without being a sovereign State. Members of such a nation within a State might be discriminated against, not as members of a particular race or as individuals, but as members of a nation which existed in its former political form. On the other hand, in the same debate, the representative of Haiti10 favoured the deletion of the word “national,” not because a State could not be made up of different nationalities, as in the case of some federations, but because it was superfluous, since, after joining the federation, all citizens acquired the same nationality. He mentioned as examples the Roman Empire, the Union of Soviet Socialist Republics, and Switzerland. This discussion showed the confusion between the terms “national origin” and “nationality.” As the representative of Austria11 pointed out, the terms “national origin” and “nationality” had been widely used in literature as relating, not only to persons who were citizens of, or held passports issued by, a given State, but also to those having a certain culture, language and traditional way of life peculiar to a nation, but who lived within another State. The French delegate12 also underlined the ambiguity involved in the use of the word “national,” observing that it could be interpretated in entirely different ways, The word does not create difficulties when used in a sociological sense, but it might be equated with the word “nationality,” which in many countries had a very specific legal meaning. In French law—and the same applies, of course, to many countries—persons acquiring French nationality by naturalization did not enjoy full possession of certain rights until after the expiration of a period of time. Other representatives, like the Indian, stressed that no delegation suggested  that the rights guaranteed and the duties imposed under national 9 10 11 12

A/C.3/SR.1304, p. 2–3. A/C.3/SR.1304, p. 4. A/C.3/SR.1304, p. 4. A/C.3/SR.1304, p. 5.

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c­ onstitutions should be extended to aliens.13 The usa representative said that national origin differed from nationality in that national origin related to the past, while nationality related to present status. It differed from citizenship in that it related to non-citizens as well as to citizens. It was also narrower in scope than ethnic origin, since the latter was associated with racial and cultural characteristics.14 Agreement was reached by adding paragraphs 2 and 3 of Article 1. They do not offer particular difficulties, as they merely determine that distinctions, exclusions, restrictions or preference between citizens and non-citizens could not be considered discriminatory acts prohibited by the Convention. On the other hand, the Convention should not be interpreted as affecting the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that they do not discriminate against any particular nationality. The Convention does not therefore interfere in the internal legislation of any State as far as differences in the rights of citizens and non-citizens are concerned, neither does it pretend to affect substantive or procedural norms on citizenship and naturalization. It only proclaims the principle that any particular nationality—and here the term is used as equivalent to “national origin”—should not be discriminated against. The second condition for making a distinction, exclusion, restriction or preference a discriminatory act is that they must (a) have the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms or (b) have such an effect. In the first case, a subjective consideration will define the discriminatory nature of the act; in the second, the objective consequences of the act will be the decisive element. It is not necessary that both the purpose and the effect be present. One of them will be enough to define an act as discriminatory. The human rights and fundamental freedoms jeopardized could be any in the political, economic, social, cultural or any other field of public life. We have referred already to the decision adopted by the Commission on Human Rights eliminating the specific mention of the Universal Declaration, in order to prevent a restrictive interpretation of the Article. In effect, Article 5 of the Convention mentions some rights not included in the Universal Declaration, such as the rights of accesss to public places and to inherit. Schwelb15 criticizes the contradiction between Article 1 and the detailed provisions of the Convention and particularly the omission, in the definitions article, of the 13 14 15

A/C.3/SR.1304, p. 6. A/C.3/SR.1304, p. 7. Op. cit., p. 1004 et. seq.

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­category of “civil rights.” He also deems it inappropriate to use the words public life when obviously the Convention also protects rights outside the sphere of public life. There is no definition of racial discrimination in Article 1 of the u.n. Declaration on the Elimination of all Forms of Racial Discrimination, which refers to discrimination on the grounds of race, colour or ethnic origin. The Covenants on Economic, Social and Cultural Rights and on Civil Rights refer to distinctions of “any kind, such as race, colour…national origin…birth…” (Article 2 of both covenants), following the terminology used by the Universal Declaration on Human Rights (Article 2). The ilo Convention Concerning Discrimination in Respect of Employment and Occupation defines discrimination as any “distinction, exclusion or preference” made on the basis of “race, colour…national extraction…which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.”16 The unesco Convention Against Discrimination in Education uses the words “distinction, exclusion, limitation or preference” based on “race,” “colour,” “national…origin” or “birth.”17 A working paper on the draft Convention submitted by Czechoslovakia18 included, in its proposed Article 1, a definition which covered not only discrimination but also racial hatred “based on differences of race or colour,” considering as such all “manifestations advocating superiority of one race or group of persons of one colour over another race or group of persons of another colour or inciting hatred by one race or group of persons of one colour against another race or group of persons of another colour.”19 The European Convention on Human Rights also uses the term “association with a national minority” (Article 14), while the European Social Charter of 1961 speaks in its Preamble about “national extraction.” While comparing the Convention on Racial Discrimination with the other international instruments mentioned above, it should not be forgotten that it only deals with racial discrimination. Any discrimination on grounds of sex, political opinion or social origin is obviously outside its scope. As for religion, we have already indicated that the United Nations intended to deal with both 16 17 18 19

Article 1,1 (a). Article 1,1. E/CN.4/Sub.2/234, Annex IV. The Convention definition leaves out the problem of racial hatred, a term which gave rise to considerable difficulties and which is used in Article 4. In Part VI, Chapter II we deal with the 1978 unesco Declaration on Race.

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forms of discrimination in “twin” instruments. In some cases discrimination on the ground of language could fall within the scope of the Convention. 5 Special Non-Discriminatory Measures Paragraph 4 of Article 1 deals with what was called “favourable discrimination,” measures taken in favour of certain racial or ethnic groups or individuals in order to ensure to them equal enjoyment or exercise of human rights and fundamental freedoms. This paragraph should be related to Article 2, paragraph 2, which imposes on States Parties the duty to take special measures “to ensure the adequate development and protection” of certain racial groups, or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. Some delegations, as mentioned earlier, proposed to delete paragraph 4 of Article 1 (paragraph 2 in the original draft), particularly in the light of the existence of the paragraph in Article 2 imposing on State Parties duties of preferential treatment. In the debate it was recalled that a similar provision was included in the Declaration (Article 2, paragraph 3). It was underlined that protection of certain groups did not constitute discrimination, provided that such measures were not maintained after the achievement of the aims for which they had been taken. It was made clear that the Convention should protect groups as well as individuals, although some representatives felt that groups as such should not be stressed, because the Convention should seek to accomplish the objective of the Universal Declaration of Human Rights to promote the rights and freedoms of all human beings, without distinction of any kind. The aim should not be to emphasize the distinctions between different racial groups, but rather to ensure that persons belonging to such groups could be integrated into the community. Another problem raised by paragraph 4 was the use of the word “underdeveloped,” in which some offending element could be found and which was not used in the Declaration. It was pointed out that the term “under-development,” while valid for countries in an economic context, should not be applied to human beings. The word “under-privileged” was proposed, but was also objected to, even for legal and constitutional reasons. There is a similar Article (5) in the ilo Convention, and, as mentioned, Article 3 of the Declaration refers to the same matter. The reason for having two provisions in the Convention dealing with the same problem is that, while Article 1 defines discrimination and its paragraph 4 refers to a case in which the application of a different treatment should not be deemed discriminatory, Article 2 relates to duties which are imposed by the

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Convention on States Parties. There are some inessential differences in the wording of the two Articles, but both cover clearly the same question, and both insist upon the temporary character of the special—special and concrete, says Article 2—measures. Article 1 refers to “adequate advancement” while Article 2 speaks about “adequate development and protection.” In the debate on the paragraph on special measures, as well as in the discussion on the similar provision in the Declaration, some representatives mentioned their concern that it could be used as a weapon by governments anxious to perpetuate the privileges of certain racial groups, as in the case of apartheid.

Article 2. Obligations of States

Article 2, as adopted by the General Assembly, reads as follows: 1.

2.

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms, and promoting understanding among all races, and to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; (e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. State 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 and protection of certain racial groups

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or individuals belonging to them for the purpose of guaranteeing 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 rights for different racial groups after the objectives for which they were taken have been achieved. 1 Discussion in the Sub-Commission The Sub-Commission had before it texts prepared by Mr. Abram, Mr. Calvocoressi, jointly by Messrs. Ivanov and Ketrzynski, by Mr. Ketrzynski alone, and jointly by Messrs. Calvocoressi and Capotorti. The last one20 was selected by the working group as a basis for discussion. In the light of the discussion and the amendments, a new revised text21 was submitted. Several amendments to the revised text were suggested. Mr. Ivanov proposed replacing the first sentence of Article II by the following: Each contracting State undertakes to prohibit racial discrimination and to carry out by all possible measures a policy of eliminating it in all its forms, since racial discrimination is an infringement of the rights and an offence to the dignity of the human person and a denial of the rules of international law and of the principles and objectives set forth in the United Nations documents mentioned in the Preamble of the present Convention. The amendment was rejected by the Sub-Commission. An amendment by Mr. Mudawi (Sudan) adding a paragraph on special concrete measures in order to secure adequate development or protection of individuals belonging to “under-developed racial groups” was adopted by the Sub-Commission. 2 Discussion in the Commission Several amendments to both paragraphs of Article 2 were proposed in the Commission on Human Rights. An amendment by the Austrian representative, to add the words “against persons, groups of persons or institutions” after the words “no act or practice of racial discrimination” in paragraph 1(a), was adopted. A Lebanese proposal to delete the second sentence of paragraph 1(a), by which States Parties undertook not to encourage, advocate or support racial discrimination, 20 E/CN.4/Sub.2/L.324. 21 E/CN.4/Sub.2/L.324/Rev.1.

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was adopted, since it was felt to be unthinkable that States could engage in such acts. In paragraph 1(b) only minor changes were introduced. Paragraph 1(c)—1(d) in the final text—as adopted unanimously by the Commission, was proposed orally by the representative of Turkey. The discussion in connection with this paragraph centred around the question whether every State would be in a position to prohibit immediately racial discrimination, and around the need to fight racial discrimination with methods other than legislation, such as educational measures. The problem arising in States with a common law system, where racial discrimination was dealt with under general measures of protection and not by declaring it an offence, was also discussed in the Commission. Several amendments to paragraph 2 were replaced by a joint amendment redrafting the text. At the request of the representative of Philippines, a separate vote was taken on the word “underdeveloped,” which was retained. 3 Discussion in the Third Committee Several amendments to both paragraphs of Article 2 were submitted to the Third Committee. Seventeen Latin-American States proposed a new sub-paragraph (b) to paragraph 1, with the following text: “Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations.” The amendment was adopted. An oral suggestion of the representative of Ghana to replace the words “if necessary” by the words “as required by circumstances” was adopted. A new sub-paragraph, (e) in the final text, was proposed by Brazil, Colombia and Senegal and adopted by roll-call, by ninety-seven votes to none, with four abstentions.22 In connection with paragraph 2, a new discussion took place with regard to the use of the word “under-developed.” Some delegations suggested the word “under-privileged.” A nine-State amendment suggesting the text incorporated in the Convention was finally adopted. 4 Contents of Article 2. Obligations of States The essential purpose of Article 2 is to lay down the principle that States Members must neither practise nor encourage discrimination. It corresponds to Article 2 of the Declaration which proclaims that no state, institution, group  or individual shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons, groups or institutions on the ground of race, colour or ethnic origin. A second paragraph of 22

Costa Rica, Haiti, Jamaica and Japan.

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Article 2 of the Declaration calls upon States not to encourage or support private acts of discrimination, and a third one refers to special concrete measures, in the spirit of paragraph 2 of Article 2 of the Convention. Article 2 has two paragraphs. Paragraph 1 deals with obligations of the States to adopt measures to eliminate racial discrimination; paragraph 2 deals with the problem of special measures for the so-called under-developed or underprivileged groups. Paragraph 1 begins with a general condemnation of racial discrimination. State Parties undertake to pursue without delay a policy of eliminating racial discrimination and to this end sub-paragraphs (a) to (e) determine a series of obligations, as follows: (a) States Parties undertake to engage in no act or practice of racial discrimination against persons, groups of persons or institutions, and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. Sub-paragraph (a) involves a negative obligation for States Parties and its agents. It protects not only physical persons and groups of persons, but also institutions. Of course, an institution has no race, but an organization which is discriminated against because of the race, colour, descent or national or ethnic origin of its members could therefore invoke the provisions of the Convention. States have to ensure that all their agents, on the national and local level, should act in conformity with that obligation. The purpose of this provision is to cover not only organs which depend directly on the central government, but also autonomous entities such as, for instance, State railways, power or port authorities and local cultural institutions.23 While autonomous, such entities are always of a public nature. Sub-paragraph (a) does not deal with private organizations engaged in acts of discrimination, which are referred to in sub-paragraphs (b) and (d). (b) Not to sponsor, defend or support racial discrimination by any persons or organizations. This is again a negative obligation. While sub-paragraph (a) deals with discriminatory acts by the State or its agents, this sub-paragraph refers to the duty of the State not to add its support to discriminatory acts committed by any persons or organizations that may or may not depend on the State. The drafters of Article 2 wanted to establish in it a gradual system of undertakings for State Parties. While according to ­sub-paragraph (d) States Parties shall prohibit racial discrimination, 23

Statement of Mr. Capotorti. E/CN.4/Sub.2/SR.417, p. 4.

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s­ub-paragraph (b) simply intends to prevent persons or organizations engaged in racial discrimination from getting the official support of the State. Thus, for instance, an official publishing house that prints a racist book, or a local government that gives financial support to a school engaging in racial discrimination, would be violating sub-paragraph (b). (c) Sub-paragraph (c) calls upon States to take effective measures to review governmental policies, on the national or the local level, and to amend, rescind or nullify laws and regulations of a discriminatory nature. There were some difficulties with the wording of this sub-paragraph, since it was considered that the word “nullify” was unnecessary after the use of the word “rescind.” However, it was decided to retain it, considering it equivalent to “supress entirely.” The word “review” was adopted by the Commission instead of the term “revise” in the draft of the Sub-­Commission. This paragraph does not present any difficulties. It calls upon States Parties to review and modify those among their own legal provisions that could be a source of racial discrimination. (d) Sub-paragraph (d) is a crucial one, and is closely connected with Article 4 of the Convention, which penalizes the dissemination of ideas based on racial superiority or hatred. Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any person, group or organization. Sub-paragraph (d) gave rise to many difficulties. The whole matter of the use of legislation in order to stop racial discrimination came under scrutiny during the discussion of this sub-paragraph, particularly with regard to the problem arising for States with a common law system, where racial discrimination was dealt with, not by making it an offence, but by the protection given under the law to all without distinction. The possibility of jeopardizing freedom of thought and expression, and of invading the private life of individuals, was raised in the discussion, as well as the general controversy on the use of legislation or education in the fight against racial discrimination.24 The words “as required by circumstances” are intended to cover the cases of States which already have such legislation, or of those which do not need it. The words “if necessary” had also been proposed with the same view. Sub-paragraph (d) is of great significance, to the point that it was con­sidered “the most important and most far-reaching of all substantive ­provisions of the Convention.”25 If duly observed by State Parties, it could 24 We deal with this problem when commenting on Art. 4. 25 Schwelb, op. cit., p. 1017.

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certainly be decisive in the fight against racialist practices, including those of private organizations. (e) Sub-paragraph (e), proposed in the Third Committee, deals with the encouragement that States Parties should give, where appropriate, to integrationist multiracial organizations and movements and other means of eliminating barriers between races. States should discourage anything which tends to strengthen racial division. This sub-paragraph is broadly and vaguely worded. It imposes upon States the duty to use their moral influence in order to strengthen those organizations and movements that advocate racial integration, as well as to discourage anything which strengthens racial division. The last sentence was adopted in the Committee after a separate vote was taken on it, at the request of Venezuela. The whole sub-paragraph was adopted by a roll-call vote, as mentioned before. What “integrationist” movements are, and what “strengthens” racial “division,” is not defined. In general, Article 2, besides defining legal obligations for State Parties, is rather a kind of programmatic article, suggesting to States a policy in the field of racial relations, reaching its highest effectiveness in the duty imposed on State Parties by paragraph 1(d). 5 Favourable Discrimination Paragraph 2 of Article 2 is related to paragraph 4 of Article 1, and we referred to the problems involved when commenting on Article 1. The drafters of the Convention decided to deal twice with this question, since they considered that, while Article 1 defines racial discrimination, Article 2 enunciates the policies that State Members should follow in order to eradicate racial discrimination. Its purpose is to secure the integration of certain racial groups in the nation, in order to attain the objective of equal development for all citizens.26 During the discussion on this paragraph, references were made to the situation in South America where there were two conflicting schools of thought. According to one, racial groups which were economically and socially backward in comparison with the rest of society could only be integrated through measures of special protection. The second school of thought considered that to adopt special measures with regard to these groups only served to maintain and perpetuate their separation from the rest of the population.27 The dangers involved in the possibility of such a paragraph being used by some racist States were pointed out in the discussion. Difficulties also arose 26 27

Statement of Mr. Krishnaswami (India), E/CN.4/Sub.2/SR.416, p. 12. Statement of Mr. Santa Cruz (Chile), E/CN.4/Sub.2/SR.416, p. 13.

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with regard to the use of words like “underdeveloped” or “under-privileged.” We have already referred to these questions. Article 5 of the ilo Convention contemplates special measures of protection or assistance which will not be deemed to be discrimination. The unesco Convention determines when separate educational systems will not be deemed to constitute discrimination, but does not refer to special measures of favourable discrimination. The 1978 unesco Declaration on Race and Racial Prejudice deals with such measures in Article 9, paragraph 2.

Article 3. Apartheid

Article 3, the shortest of the Convention, reads: States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate, in territories under their jurisdiction, all practices of this nature. 1 Drafting of the Article The text drafted by the Sub-Commission, on the basis of a preliminary text proposed by Mr. Abram on the lines of Article 5 of the Declaration, and modified by a working group, did not differ substantially from the final text. Instead of the word “under” it read “subject to.” The Commission on Human Rights did not introduce any changes in the text. An oral amendment of the United States of America, to replace the words “racial segregation and apartheid” by “racial segregation, apartheid and antiSemitism,” was withdrawn by its sponsor in order to introduce a new article on anti-Semitism.28 In the Third Committee, seventeen Latin American States proposed to have the words “subject to” changed to the word “under.” 2 Contents of Article 3. Definition of Apartheid Article 3 of the Convention is shorter and sharper in its wording than Article 5 of the Declaration, which reads: An end shall be put without delay to governmental and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies. 28

For the discussion on the article on anti-Semitism see Part III, Chapter III.

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Apartheid is mentioned twice in the Convention. In paragraph 9 of the Preamble the “policies of apartheid, segregation or separation” are mentioned as instances of governmental policies based on racial superiority or hatred. Article 3 of the Convention does not use the word “separation” and condemns racial segregation and apartheid, while the Preamble refers to apartheid, segregation or separation. State Members undertake to: (a) prevent practices of apartheid and racial segregation; (b) prohibit them and (c) eradicate them. Article 3 should be interpreted as a general condemnation of all forms of racial segregation and separation which States Members shall prevent, prohibit and eradicate. More particularly it is a condemnation of the practices of apartheid of the Government of South Africa, practices that have been dealt with by the United Nations since the very first session of the General Assembly in 1946. The Secretary-General of the United Nations defined apartheid, “the most conspicuous and anachronistic mass violation of human rights and fundamental freedoms,” as the policy which “continues to be enforced against the ‘non-white’ majority of the people of the Republic of South Africa.”29 The term apartheid was defined in the Afrikaans Dictionary in 1950 as “a political tendency or trend in South Africa, based on the general principles (a) of a differentiation corresponding to differences of race and/or level of civilization, as opposed to assimilation; (b) of the maintenance and perpetuation of the individuality (identity) of the different colour groups of which the population is composed, and of the separate development of these groups in accordance with their individual nature, traditions and capabilities as opposed to integration.” The Convention does not define apartheid, and does not mention by name the Republic of South Africa. The numerous debates held in the United Nations on the subject were however explanatory enough. Besides, the United Nations have established a Special Committee on the Policies of Apartheid of the Government of the Republic of South Africa, and the General Assembly adopted, in November 1962, Resolution 1761 (XVII) on sanctions. There is no doubt therefore that, when the Convention refers to apartheid, it deals primarily with the practice of racial segregation prevailing in South Africa. However, 29

Introduction to the Annual Report on the Work of the Organization covering the period 16 June 1965 to 15 June 1966; u.n. Doc. E/CN.4/Sub. 2/301, p. 130 ff.

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the term is also being used with regard to other territories, such as South West Africa, Rhodesia, the Portuguese Territories and Basutoland, Swaziland and Bechuanaland,30 and Article 3 could therefore be applicable to the situations there created. Apartheid was described as the “implacable application by a minority of three million persons of European origin imbued with a doctrine of white supremacy, of a policy designed to keep power permanently and exclusively in their own hands and to keep in permanent dependency and subjection some fourteen million people of African, Asian and mixed descent.”31 The result of such a policy was the deprivation of 80 percent of the inhabitants of South Africa of political, economic, social and civil rights and of other fundamental freedoms. The rule of law was abrogated, and such legal procedures as continued to exist operate under discriminatory laws. The Pretoria Government, in order to achieve its aims, has conceived the notion of regrouping the nonwhite population in separate areas, “Bantustans,” or “separate developments” restricted to only 13 percent of the total area of the country. Under the Bantu Laws Amendment Act, 1964, the three and a half million Africans outside the Bantustans were deprived of political and economic rights. In addition, a repressive legislation provides the government with legal means to prevent any manifestation of dissent. Freedom of work, freedom of movement and freedom of association had been abrogated for the non-white communities.32 3 Singling Out of Apartheid This is not the place to study in detail the abuses of apartheid, nor to examine if apartheid, described by the General Assembly as a “crime against humanity,”33 should be considered a threat to international peace and security under Chapter VII of the Charter. The u.n. seminar held at Brasilia in AugustSeptember 1966 dealt with this and other related problems. One of the 30 31 32

33

See Report of the United Nations Human Rights Seminar on Apartheid, held at Brasilia from 23 August to 4 September 1966, u.n. document A/6412, paras. 41 and 119. Above-mentioned report, par. 31. For the problems resulting from the racial classification established in South Africa in 1950, see Apartheid. Its Effects on Education, Science, Culture and Information, published in 1967 by unesco in Paris, and John T. Baker, Human Rights in South Africa in Howard Law Journal, Symposium on the International Law of Human Rights, Volume II, Number 2, Spring 1965, Washington dc, usa, p. 549–582. The United Nations have instituted March 21 as “international day for the elimination of racial discrimination” as a recordation day of the massacre of Sharpeville, in South Africa, in 1960. See, also, Part VI, Chapter II, on the relationship between the Convention and the 1973 Convention on Apartheid.

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­conclusions reached by many participants in the seminar was that “the policies of the Pretoria Government bore, in fact, much similarity to nazism.” The fact that apartheid is specially condemned by the Convention, while nazism, as well as anti-Semitism, are not specifically mentioned, should not be considered a consequence of a substantial difference among these forms of racial discrimination, but rather as a consequence of political and other considerations of the majority of States Members of the United Nations. Apartheid violates every accepted concept of fundamental rights and the rule of law as set out in the Charter of the United Nations and the Universal Declaration of Human Rights. But so do nazism and anti-Semitism. Once it had been decided to single out one form of racial discrimination, the juridical logic demanded a similar treatment for other equally abhorrent forms which have resulted in no less tragic consequences.

Article 4. Measures to Eradicate Incitement and Prohibition of Racist Organizations

Article 4, one of the most difficult and controversial of the Convention, reads: States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination, and to this end, with due regard to the principles embodied in the Universal Declaration 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 racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of other 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 other propaganda activities, which promote and incite racial discrimination, and shall recognize participation 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 or incite racial discrimination.

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1 Discussion in the Sub-Commission When the Sub-Commission began to discuss Article 4, it had before it two drafts, one submitted by Mr. Abram34 and one, jointly, by Messrs. Ivanov and Ketrzynski.35 Mr. Abram’s text declared “all incitement to racial hatred and discrimination resulting in or likely to cause acts of violence, whether by individuals or organizations, as an offence against society and punishable under law.” The draft asked States Parties not to grant franchises to organizations or individuals for the purpose of inciting to racial hatred, and not to permit its officials or government-supported agencies to promote or incite racial hatred or discrimination. Messrs. Ivanov and Ketrzynski’s draft urged “to prohibit and disband racist, fascist, and any other organization practising or inciting to racial discrimination,” “to admit no propaganda of the superiority of one race or national group over another,” and to consider “participation in the activities of such organizations, as well as incitement to or acts of violence on the ground of their racial, national or ethnic origin” as a “criminal offence counter to the interest of society punishable under laws.” Several amendments were suggested, and new drafts were submitted. Finally Messrs. Cuevas Cancino (Mexico) and Ingles (Philippines) submitted a revised text36 which condemned all propaganda and organizations which justify or promote racial hatred and discrimination, urged the penalization of all incitement to racial discrimination resulting in, or likely to cause, acts of violence, and urged that organizations, and also organized propaganda activities which promote and incite racial discrimination, should be declared illegal and prohibited. 2 Discussion in the Commission Several amendments to the Article were proposed in the Commission. Some representatives expressed doubts regarding the words “or likely to cause” in paragraph (a). They felt that the words could give place to subjective judgments, and make possible abuse on the part of public officers. A Danish amendment proposed to replace the words “racial discrimination resulting in or likely to cause acts of violence” by “or acts of violence against any race or group of persons of another colour or ethnic origin.” Other representatives pointed out, however, that the Danish amendment referred only to 34 E/CN.4/Sub.2/L.308, Add.1/Rev.1/Corr.1. 35 E/CN.4/Sub.2/L.314. 36 E/CN.4/Sub.2/L.330/Rev.1.

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acts of violence and incitement to acts of violence, already punishable in most countries, regardless of their motivation. They favoured that appeals to acts of racial discrimination and racial violence should also be held punishable. The representative of Denmark withdrew his amendment in favour of an Indian oral proposal, which proposed to replace the words “or likely to cause acts of violence” in the text submitted by the Sub-Commission, by the following: “acts of violence, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin.” The Indian amendment was adopted unanimously. Costa Rica proposed to insert in paragraph (b) after the word “organizations,” the words “or the activities of organizations, as appropriate.” This amendment, intended to meet objections related to the matter of freedom of expression, was originally submitted as a sub-amendment to an amendment of the usa which called for the insertion of the words “activities of” before the word “organizations.” The usa amendment was later withdrawn in favour of the Costa Rican amendment. Other members opposed the usa and Costa Rica amendments, pointing out that the rights to freedom of expression and to freedom of association were not unlimited. Several amendments and sub-amendments, intended to strengthen the text, were rejected. Finally, paragraph (b), as amended, was adopted by sixteen votes to none, with five abstentions. 3 Discussion in the Third Committee Numerous amendments to the text adopted by the Commission were considered by the Third Committee. Denmark, Finland, Iceland, Norway and Sweden proposed to insert, after the words “to this end,” the words “with due regard to the rights expressly set forth in Article V.” France proposed to insert after the words “such discriminations” the words “within the framework of the principles set forth in the Universal Declaration on Human Rights.” Both proposals aimed at meeting the objections related to the question of freedom of expression. In paragraph (a) the Ukrainian representative proposed to penalize the financing of racist activities. Czechoslovakia asked to declare a punishable offence all “dissemination of ideas and doctrines based on racial superiority or hatred” and to delete the words “resulting in acts of violence.” The United States of America proposed to add, at the end of the first Czechoslovakian amendment, the words “with due regard for the fundamental right of freedom of expression.” In paragraph (b), Poland submitted a text intended to make stronger the wording of that paragraph, and the usa proposed an amendment to Poland’s

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amendment in order to preserve “the right to freedom of expression and association.” India proposed to replace “and” by “or” in the phrase “which promote and incite racial discrimination.” In the light of the difficulties which arose, Nigeria submitted a new text, which corresponds to the final text adopted by the Assembly. Separate votes were taken on the words “with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of this Convention,” in the introductory paragraph, “all dissemination of ideas based on racial superiority or hatred,” in paragraph (a), and “also the provision of any assistance to racist activities, including the financing thereof” in the same paragraph (a). All these words were retained. Article 4, as a whole, was adopted by eighty-eight votes to none with five abstentions. 4 Discussion in the General Assembly When the draft prepared by the Third Committee was submitted to the General Assembly, five Latin American States—Argentina, Colombia, Ecuador, Panama and Peru—introduced an amendment in order to delete in sub-paragraph (a) the words “dissemination of ideas based on racial superiority or hatred.” The amendment was defeated by a vote of fifty-four against, twenty-five in favour and twenty-three abstentions. When introducing his amendment, the Argentine representative supported the punishment of organizations devoted to racial discrimination, propaganda activities, and acts of violence, as well as the incitement or promotion of discrimination. But the sponsors of the amendment did not wish to condemn “the fact that a scientist might publish a document pointing out differences among races…We are not opposed to a discussion on the subject between two or more persons in a public place.”37 Contents of Article 4. The Questions of Freedom of Speech and Association Article 4, which should be related to Article 9 of the Declaration, raised, as the one in the Declaration did, many difficulties in all stages of its drafting. As it was stated in the General Assembly,38 Article 4 “was the outcome of a difficult compromise after hours, and even days, of discussion, drafting and redrafting.” Some delegations saw in Article 4, as finally drafted, and even more in the light of some amendments submitted to the text prepared by the Commission, an infringement of the fundamental rights of freedom of speech and freedom of

5

37 38

Statement of the Argentine representative in the General Assembly, A/PV. 1406, p. 27. By the delegate of Ghana, Mr. Lamptey, A/PV.1406, p. 7.

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association.39 The representative of Colombia even announced that, because of Article 4, the Colombian Parliament would be unable to ratify “a pact contrary to the political constitution of the country and contrary to the norms of public life.” Article 4, he added, “is a throwback to the past,” since “punishing ideas, whatever they may be, is to aid and abet tyranny, and leads to the abuse of power…As far as we are concerned and as far as democracy is concerned, ideas should be fought with ideas and reasons; theories must be refuted by arguments and not by the scaffold, prison, exile, confiscation or fines.”40 The Colombian delegate made the point that penal law should not be imposed as “punishment for subjective crimes.” Article 4 has an opening paragraph and three operative paragraphs imposing concrete duties on States Parties. In the opening paragraph States Parties condemn (a) all propaganda and (b) all organizations that 1. are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or 2. attempt to justify and promote racial hatred and discrimination in any form. The opening paragraph of Article 4 as well as paragraph 1 of Article 9 of the Declaration, condemn all propaganda and all organizations based on theories of racial superiority. Both also refer to one race or group of persons of one colour or ethnic origin. This paragraph should be related to Article 1 of the Convention, that defines racial discrimination, as well as to Article 3, that condemns racial segregation and apartheid. The terms “race or group of persons of one colour or ethnic origin” should not be interpreted in a restricted way. The purpose is to condemn any theory of racial superiority in the broad sense of the definition contained in Article 1. But the Convention goes further than the Declaration, in that it condemns not only propaganda and organizations which attempt to justify or promote racial discrimination, but also those that attempt to justify or promote racial hatred. The use of the word hatred caused many difficulties, and the point was made that, being only a feeling, a state of mind, it was impossible to deal effectively with racial hatred. The point was stressed particularly with regard to the first operative paragraph of Article 4 which urges States to declare a punishable offence the dissemination of ideas based on racial superiority or hatred. In the second part of the opening paragraph, States Parties undertake to adopt immediate and positive measures to eradicate incitement to, or acts of, racial discrimination. To this end, States Parties will have to adopt, inter alia, three kinds of measures, always with due regard to the principles embodied in 39 40

See statement of the representative of the United Kingdom, Lady Gaitskell, in the Third Committee, A/C.3/SR.1315, p. 2. A/PV.1406, p. 42–43.

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the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention. The phrase beginning with “with due regard” was introduced, as explained before, in the Third Committee in order to meet objections of those who maintained that Article 4 would violate the principles of freedom of speech and freedom of association. The incorporated phrase was interpreted in the sense of giving State Parties the right to understand Article 4 “as imposing no obligation on any party to take measures which are not fully consistent with its constitutional guarantees of freedom, including freedom of speech and association.”41 Provisions of the Universal Declaration of Human Rights that should be particularly kept in mind in this regard are Articles 19 (on freedom of opinion and expression) and 20 (on freedom of assembly and association), both, of course, with the limitations permissible under Article 29 (2) of the Declaration. The three kinds of obligations that Article 4 imposes upon States Parties in its three operative sub-paragraphs are: (a) to punish dissemination of racist ideas, incitement to racial discrimination and racist violence and activities; (b) to declare illegal racist organizations and propaganda; (c) to prevent official bodies from engaging in racial discrimination. Sub-paragraph (a) deals with the first point. States Parties shall declare an offence punishable by law (a) all dissemination of ideas based on racial superiority or hatred; (b) incitement to racial discrimination; (c) acts of violence against any race or group of persons of another colour or ethnic origin; (d) incitement to acts as expressed in (c); (e) provision of any assistance to racist activities, including the financing thereof. As said above, the question of dissemination of ideas based on racial superiority or hatred engendered an amendment in the General Assembly itself, when the report of the Third Committee was discussed. In all the debates it was made clear that the Convention should not be interpreted as objecting to the dissemination of scientific ideas that deal with the problem of race. It should not be forgotten, however, that in the past many books and papers aimed at disseminating racial hatred adopted the external form of “scientific” books or studies. The Nazi regime was specially prolific in the production of such studies. The reference in the opening sentence to the Universal Declaration and to the rights set forth in Article 5 should, therefore, help to interpret sub-paragraph (a). It is not the free discussion of ideas which should be punished, but the dissemination of ideas based on “racial superiority or 41

Statement in the General Assembly by the representative of the United States of America, A/PV.1406, p. 53–55.

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hatred,” and this always in accordance with the constitutional framework of each country in order not to violate fundamental rights. There are no difficulties with the punishment of acts of violence or incitement to such acts. But problems arise from the use of the word “incitement” when referring to racial discrimination. It was one of the controversial points raised in all the stages of the drafting of the Convention. Also complicated is the matter of the provision of “assistance to racist activities, including the financing thereof.” The question was asked whether buying a propaganda booklet of a racist organization could involve the danger of having committed a crime. We are here again in the presence of one of those marginal fields when it is hard a priori to state if an offence is being committed. States Parties, when implementing the duties imposed on them by Article 4 and adopting the respective penal legislation, will have to establish clearly the dividing line between licit and illicit acts in order to avoid precisely the violation of rights in those marginal fields. The British delegate declared, for instance, that her country could never agree to punish by law somebody who paid a subscription towards membership of a fascist organization.42 Sub-paragraph (b) deals with racist organizations. States Parties shall declare illegal and prohibit organizations which promote and incite racial discrimination. The Declaration uses, in its article 9, the words “promote or incite,” after the adoption, by the General Assembly itself, of an amendment by Argentina intended to add the words “or incite to.” The adoption of this amendment permitted the Assembly to bring to an end a crisis which delayed the adoption of the Declaration. The Convention, on its part, uses the words “promote and incite.” The prohibition of racist organizations was also one of the most difficult problems in the drafting of the Convention. The matter of freedom of association is involved here, and again we have the question of marginal problems. During the discussion it was pointed out that racist organizations could not be allowed to become a danger to peace. They should, therefore, be declared illegal as soon as it becomes clear that they intend to engage in promoting and inciting racial discrimination. Again it is a matter for internal penal legislation to be adopted in accordance with the Convention to solve these problems in the framework of each constitutional system.43 States Parties should also declare an offence “organized and all other propaganda activities of a racist nature.” This phrase refers to forms of propaganda 42 43

In the Third Committee, A/C.3/SR.1315, p. 2. Numerous countries have adopted legislation against racist organizations. See this writer’s above-mentioned Survey. See, also, Part VI, Chapter I.

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carried on by groups which do not possess the status of organizations but that are considered dangerous. The words “all other” provide a wide field for internal legislation. Participation in organizations such as those to be declared illegal, and in activities such as those mentioned, should also be declared a punishable offence. Sub-paragraph (c) determines that States Parties shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. There are no major difficulties involved in this sub-paragraph. It is obvious that activities which are an offence when committed by individuals should certainly not be committed by public authorities or public institutions. The words “public authorities or public institutions” are also used in Article 2, and Article 4 employs them in the same sense. Autonomous institutions should therefore be included. Sub-paragraph (c) differs from the preceding two by the fact that it does not impose upon States Parties any obligation related to their internal criminal law, but only urges them to adjust their policies to principles in accordance with the Convention and to take care that public officers, on the national and local levels, do not depart from such policies. In that sense it complements Article 2, paragraph 1. Most of the difficulties involved in Article 4 of the Convention received expression during the debates in the Third Committee and in the subsidiary United Nations bodies. A similar debate took place previously during the discussion of what subsequently became Article 9 of the Declaration. One of the points of the discussion was the need, already commented on, to reconcile respect for the right of expression and association with the desire to provide effective sanctions against the advocacy of racial discrimination and hatred. The question is related to the right of the State to intervene even before acts of violence are committed, or are likely to be committed. It was argued that to recognize such a right would be a means of giving States the right to punish intentions or even feelings. But, as indicated, States could certainly not wait until the unlimited right of association reaches a stage of imminent violence against sectors of the population. The distinction was also made between the need of the State to prohibit its agents to engage in racist activities, and its limitations when the ideas of private individuals are involved. The fact that a government did not prohibit individuals from expressing certain views did not mean that the government itself condoned those views, but “citizens must still be allowed the right to be wrong.”44 44

The American expert, Mr. Morris Abram, in the Sub-Commission. E/CN.4/Sub.2/SR.418.

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The risks involved in the power given the State to prohibit organizations were also exposed in the debate. Such a power, it was said, opens the way for totalitarian measures and abuses. On the other hand, it was recalled that such a power was already incorporated in international instruments, such as the Treaty of Peace signed by several countries with Italy after the Second World War, the Potsdam Agreement, the Treaties of Peace with Austria and Finland and the Treaty of Peace with Hungary.45 The differences between incitement to racial discrimination and propaganda in favour of it, were also discussed. For the Italian expert in the SubCommission, Mr. Capotorti, for instance, while propaganda could be regarded only as the expression of an opinion contrary to the established order, incitement was an act that could be declared illegal.46 The relationship between hatred and incitement was stressed by those who considered that “the fact of creating an atmosphere of racial hatred” would inevitably lead indirectly to racial discrimination.47 Some discussion was also devoted to the question of using the words “promote or incite” in sub-paragraph (c). The proposal was made to drop the word “promote” or use the conjunction “and” between both words, since the word “promote” by itself could be too widely interpreted. It was argued that, while incitement was a conscious and motivated act, promotion presented a “lower degree” of motivation, and might occur even without any real intention or endeavour to incite. Several references were made during the debate to Articles 29(2) and 30 of the Universal Declaration of Human Rights, and to Article 26 of the draft Covenant on Civil and Political Rights. References were also made to the difficulties of States Parties in adjusting their internal criminal law to the terms of sub-paragraphs (a) and (b).48 The representative of France in the Third 45

The representative of Hungary in the Third Committee declared that his country could not sign a Convention which permitted fascist organizations to operate. 46 E/CN.4/Sub.2/SR.418. 47 The Polish expert, Mr. Ketrzynski, E/CN.4/Sub.2/SR.418. 48 Canada abstained from voting on these paragraphs in the Third Committee “because they went considerably beyond the existing provisions of Canadian criminal law,” under scrutiny at that time. An Act to amend the Canadian Criminal Code was introduced following the report of a special committee which concluded that the protection of individuals as members of groups required the enactment of legislation to curb the spreading of racial and religious hatred. Under the heading of “Hate propaganda” the Act, passed by the House of Commons on 13 April 1970, as Bill C-3, covers incitement to hatred or contempt against any “identifiable group,” i.e. any section of the public distinguished by colour, race, religion or ethnic origin.

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Committee felt that an international convention should not involve penal sanctions.49 The Convention solved in Article 4 one of the conflicts between freedoms which cannot be ignored in the process of shaping of the international bill of rights. The Convention goes further than the Covenant on Civil and Political Rights, which states that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law” (Article 20,2). The more severe pattern was also followed by the Model Law drafted by the Council of Europe, which penalizes persons who publicly call for or incite hatred, intolerance, discrimination or violence against persons or groups of persons distinguished by colour, race, ethnic or national origin, or religion, or insult them or hold them to contempt or slander them on account of the distinguishing particularities above mentioned (Article 1). Organizations whose aims or activities fall within the indicated scope shall be prosecuted and/or prohibited (Article 4). The public use of insignia of organizations that are prohibited is also made an offence (Article 5).50 6 Interpretation of Article 4 The United Kingdom, when signing the Convention, formulated the following interpretation regarding Article 4: “It interprets Article 4 as requiring a party to the Convention to adopt further legislative measures in the fields covered by sub-paragraphs (a), (b) and (c) of that Article only in so far as it may consider, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention (in particular the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association), that some legislative addition to or variation of existing law and practice in those fields is necessary for the attainment of the end specified in the earlier part of Article 4.”51 The United States of America, without referring directly to Article 4, made the following declaration: “The Constitution of the United States contains provisions for the protection of individual rights, such as the right of free speech, and nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the 49 50

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A/C.3/SR.1318, p. 4. For the full text of the Model Law, see Measures to be taken against incitement to racial, national and religious hatred, Council of Europe, Strasbourg 1966; Lerner: International Definitions to Racial Hatred, in New York Law Forum, vol. XIV, no. 1, Spring 1968, p. 49. See, in Part V, the statements on interpretation of Article 4 formulated by several States upon signature or ratification of the Convention.

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provisions of the Constitution of the United States of America.” The declaration followed the points made in the Third Committee by the American representative, Mr. Goldberg.52

Article 5. Rights Specially Guaranteed by the Convention

In compliance with the fundamental obligations laid down in Article 2, States Parties, by Article 5, undertake to prohibit and to eliminate racial discrimination in all its forms, and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the rights expressly enumerated in the Article. 1 Discussion in the Sub-Commission Clauses relating to the obligation of States to prohibit and to eliminate racial discrimination in the enjoyment of various rights, were included in the different drafts submitted to the Sub-Commission. In Mr. Abram’s draft articles IV, V and VI dealt with the matter. Article III of Mr. Calvocoressi’s draft contained a short enumeration of rights guaranteed to everyone. Article II of the joint draft submitted by Messrs. Ivanov and Ketrzynski enumerated such rights in its paragraphs (d) to (1). After a discussion of the three texts and amendments proposed, a working group elaborated a new text,53 which was orally amended and unanimously adopted. 2 Discussion in the Commission Members of the Commission considered as generally satisfactory the structure and the text of draft Article 5. Some representatives would have preferred a more general formulation, in order to avoid leaving out rights proclaimed in the Universal Declaration of Human Rights, although it was felt that the use of the word “notably” could avoid a restrictive interpretation. A reservation was made with regard to the right of everyone to return to his country, in order to prevent its application to members of former royal families. A joint amendment of France and Poland to the introductory paragraph was adopted unanimously. The new paragraph corresponds to the final text adopted by the Assembly. A revised amendment of France, Italy and Poland to paragraph (a), corresponding also to the final text, was adopted unanimously. 52 A/C.3/SR.1373. 53 E/CN.4/Sub.2/L.334.

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A Polish amendment to add, after paragraph (d) (v), a new sub-paragraph (vi)—the right to inherit—was adopted. 3 Discussion in the Third Committee Several amendments were submitted in the Third Committee to the draft as approved by the Commission on Human Rights. An amendment by Czechoslovakia to insert the word “national” before the words “or ethnic origin” in the introductory paragraph was adopted by a majority. The Committee also adopted an amendment by Bulgaria to insert, in paragraph (c), after the word “elections,” the words “to vote and to stand for election.” A proposal of Mauritania, Nigeria and Uganda to add, in paragraph (d) (iv), the words “and choice of spouse,” after the word “marriage,” was accepted. The Committee rejected by thirty-seven votes to thirty-three, with twenty-four abstentions, a proposal by the same countries to replace paragraph (e) (vi) by the following text: “The equal right to organize cultural associations and to participate in all kinds of cultural activities.” 4 Contents of Article 5 The Declaration on the Elimination of all Forms of Racial Discrimination does not contain any general article enumerating rights particularly guaranteed. Article 3 of the Declaration refers to civil rights, accesss to citizenship, education, religion, employment, occupation, housing and equal access to any place or facility intended for use by the general public. Article 5 of the Declaration deals with political and citizenship rights and equal access to public service, and Article 7 proclaims the right to equality before the law and to equal justice under the law, and the right to security of person and protection by the State against violence or bodily harm. Article 5 of the Convention has an opening paragraph and six paragraphs enumerating some rights selected for special mention. The opening paragraph refers to Article 2 of the Convention, which determines the fundamental obligations of States Parties, repeats—unnecessarily, according to some delegates—their undertaking to eliminate racial discrimination in all its forms, and imposes upon them the obligation to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law. This is the general principle, intended to be as wide as possible, for which purpose the word “everyone” was used.54 The inclusion of the words “equality before the law” in the opening, and not in the enunciating paragraph, 54

The word “everyone” was objected to, since some delegates considered that distinctions between citizens and non-citizens could legitimately be made by any State with regard to the enjoyment of some rights, as determined by Art. 1 of the Convention.

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has also the same purpose of establishing the general principle. The word “notably” was used in order to avoid a restrictive interpretation of the rights enumerated. As said before, some delegations would have preferred a more general and less detailed wording, with a view to preventing such an interpretation, which could be deemed as logical in the light of the extension of the enumeration. There were also proposals to add a clause stating that the omission of any rights mentioned in the Universal Declaration did not imply that such a right was intentionally excluded from protection by the Convention. The enumeration of rights in Article 5 should, thus, not be considered as exhaustive. The Article is a typical catalogue of human rights with regard to which discrimination on grounds of race, colour or national or ethnic origin is prohibited. Most of the rights correspond to those listed in the Universal Declaration. No attempt will be made here to discuss the nature, scope or interpretation of the enumerated rights.55 Paragraph (a) refers to the right to equal treatment before the tribunals and all other organs administering justice. There were proposals to proclaim the right to a “fair trial” and to “equal treatment before the courts.” Finally the words used were agreed upon as clear and broad enough. The paragraph guarantees the right of everyone who seeks justice before a competent organ not to be discriminated against because of racist motivations. It should not be confused with Article 6 of the Convention, which refers to protection and remedies through the competent tribunals in case of violations of the Convention.56 Paragraph (b) deals with the right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution. The wording of the Declaration on the Elimination of all Forms of Racial Discrimination was here followed.57 The violence or bodily harm can be inflicted by public officers or by private individuals or groups. The word “institutions” should be intepreted as referring to violence or harm inflicted through agents or officials of an institution. The purpose of the paragraph is to avoid any distinction in the protection of individuals against any violence, whoever inflicts it. 55 See, inter alia, N. Robinson, The Universal Declaration of Human Rights, New York, 1958, and H. Lauterpacht, International Law and Human Rights, London, 1950. See, also, as relevant, the rich literature on the European Convention on Human Rights. 56 See Art. 7 of the Universal Declaration of Human Rights and Arts. 14 and 26 of the Covenant on Civil and Political Rights. 57 See Art. 3 of the Universal Declaration and Art. 7 of the Covenant on Civil and Political Rights.

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Paragraph (c) deals with political rights, in particular active and passive electoral rights, i.e. to vote and to stand for election, on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service. Article 6 of the Declaration on the Elimination of all Forms of Racial Discrimination refers to political and citizenship rights and to the right to participate in elections through universal and equal suffrage.58 Paragraph (c) does not deal with the problem of citizenship. The principle is that nobody should be deprived, because of reasons of race, colour, national or ethnic origin, of political rights to which he is entitled as a national of the country. The words “to participate in elections” should be understood in a broad sense, in connection with the words “to vote and to stand for election,” as covering the complete set of active and passive electoral rights. In the Sub-Commission some difficulties arose with regard to a proposal by the Soviet expert to have the right proclaimed to actual participation by racial, national and ethnic groups in legislative and executive bodies. The amendment was withdrawn when the majority of the experts stated their opposition to a reference to groups, on the basis of the view that the Convention should protect the rights of the individual and not touch the complicated matter of the rights of groups as such. Paragraph (d) deals, in its nine sub-paragraphs, with “other civil rights.”59 Those mentioned in particular are: (i) the right to freedom of movement and residence within the border of the State. The Convention here literally follows the wording of Article 13(1) of the Universal Declaration of Human Rights;60 (ii) the right to leave any country, including his own, and to return to his country;61 (iii) the right to nationality. Article 15(1) of the Universal Declaration proclaims that everyone has the right to a nationality. Article 3 of the

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See Art. 21 of the Universal Declaration and Art. 25 of the Covenant of Civil and Political Rights. The term “civil rights” is not used in Art. 1 of the Convention. The omission cannot be covered by the words “any other field of public life” since some rights mentioned in Art. 5 under the heading of “civil rights” do not belong to the field of “public life.” See Art. 12 of the Covenant on Civil and Political Rights. See Art. 13(2) of the Universal Declaration and Art. 12 of the Covenant on Civil and Political Rights.

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Declaration on the Elimination of all Forms of Racial Discrimination deals with “access to citizenship”;62 (iv) the right to marriage and choice of spouse. As expressed before, the words “and choice of spouse” were added in the Third Committee, at a suggestion of Mauritania, Nigeria and Uganda. This addition is related to the laws existing in some countries that prohibit inter-racial marriage;63 (v) the right to own property alone as well as in association with others. This is the literal text of Article 17(1) of the Universal Declaration. The Covenants do not mention this right; (vi) the right to inherit. The Commission on Human Rights adopted a Polish amendment to mention specifically this right, to which neither the Universal Declaration, nor the Covenants, nor the Declaration on the Elimination of All Forms of Racial Discrimination refer explicitly; (vii) the right to freedom of thought, conscience and religion. This right is proclaimed in Article 18 of the Universal Declaration and Article 18 of the Covenant on Civil and Political Rights; (viii) the right to freedom of opinion and expression, which is recognized by Article 19 of the Universal Declaration and Article 19 of the Covenant on Civil and Political Rights; (ix) the right to freedom of peaceful assembly and association. The Convention followed the wording of Article 20(1) of the Universal Declaration. Articles 20 and 21 of the Covenant on Civil and Political Rights deal, respectively, with those two. Paragraph (e) refers to economic, social and cultural rights, and mentions in particular the following: (i) the right to work, free choice of employment, just and favourable conditions of work, protection against unemployment, equal pay for equal work, just and favourable remuneration. These are the same rights enunciated in Article 23, paragraphs (1), (2) and (3) of the Universal Declaration. The rights of employment and occupation are also mentioned in Article 3 of the Declaration on the Elimination of all Forms of Racial Discrimination. In connection with this sub-paragraph, the provisions of 62 63

Art. 24 of the Covenant on Civil and Political Rights states that every child has the right to acquire a nationality, but no reference is made to adults. The Universal Declaration, Art. 16(1) proclaims the right to marry and to found a family. Art. 23 of the Covenant on Civil and Political Rights and Art. 10 of the Covenant on Economic, Social and Cultural Rights deal with this right.

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(iii)

(iv)

(v)

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the ilo Convention concerning Discrimination in Respect of Employment and Occupation, and Articles 6 and 7 of the Covenant on Economic, Social and Cultural Rights, should be taken into consideration; the right to form and join trade unions. This right is established in ­paragraph (4) of the above-mentioned Article of the Universal Decla­ ration and in Article 8 of the Covenant on Economic, Social and Cultural Rights; the right to housing, mentioned in Article 3 of the Declaration on the Elimination of all Forms of Racial Discrimination and included among the rights enunciated in Article 25 of the Universal Declaration. This right is enunciated in Article 11 of the Covenant on Economic, Social and Cultural Rights; the right to public health, medical care and social security and social services. These rights are enunciated in Article 25 of the Universal Declaration. Articles 12 and 9 of the Covenant on Economic, Social and Cultural Rights deal with these aspects; the right to education and training. The right to education is mentioned in Article 3 of the Declaration on the Elimination of all Forms of Racial Discrimination, and is dealt with in Article 26 of the Universal Declaration and Articles 13 and 14 of the Covenant on Economic, Social and Cultural Rights. The provisions of the unesco Convention Against Discrimination in Education should also be taken into consideration. The word “education” should be used in the sense of the definition contained in the unesco Convention. Situations like those enumerated in Article 2 of the unesco Convention—separate educational systems or institutions in order to keep the two sexes apart, or for religious or lin­ guistic reasons, or in order to provide additional educational facilities— shall not be deemed to constitute discrimination, when permitted in a State. The right to training should be connected with the right to work as established in subparagraph (i). The ilo Convention deals with the right to vocational training, also recognized in Article 6 of the Covenant on Economic, Social and Cultural Rights; the right to equal participation in cultural activities. Article 27 of the Universal Declaration and Article 15 of the Covenant on Economic, Social and Cultural Rights deal with this right.

The last paragraph, (f), refers to the right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafés, theatres, parks. Articles 3 of the Declaration on the Elimination of all Forms of Racial Discrimination proclaims that everyone shall have equal access to any

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place or facility intended for use by the general public. This right is not mentioned in the Universal Declaration. The enunciation of public places and services should not be interpreted in a restrictive way, as indicated by the use of the words “such as.”

Article 6. Remedies Against Racial Discrimination

Article 6 reads: States Parties shall assure to everyone within their jurisdiction effective protection and remedies through the competent national tribunals and other State institutions against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. 1 Discussion in the Sub-Commission The Sub-Commission considered three drafts, proposed, respectively, by Messrs. Abram,64 Calvocoressi65 and, jointly, Cuevas Cancino and Ingles.66 After a discussion, Messrs. Abram, Calvocoressi and Capotorti67 submitted a new draft, which was orally revised and unanimously adopted. It referred to “effective remedies and protection through independent tribunals” and to the right to obtain from such tribunals reparation for any damages suffered as a result of racial discrimination. The text did not include reference to “other State institutions,” as does the final text adopted by the Assembly. 2 Discussion in the Commission The discussion in the Commission centred around the nature of the tribunals which were to assure remedies and protection and to the question of the remedies themselves. The Commission finally adopted a revised text proposed by Lebanon, incorporating the various amendments proposed and corresponding very closely to the final text. There was general agreement, in the sense that the tribunals 64 E/CN.4/Sub.2/L.308. 65 E/CN.4/Sub.2/L.309. 66 E/CN.4/Sub.2/L.330. 67 E/CN.4/Sub.2/L.339.

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mentioned in the Article should be independent national tribunals. The absence of the word “national” was considered a simple omission. The word “competent” proposed by the Soviet Union, was intended to contemplate the creation of new tribunals that might have to be set up to consider exclusively cases of racial discrimination. It was pointed out, however, that the word was used, in a similar context, in Article 8 of the Universal Declaration of Human Rights, as just meaning legal competence. It was also suggested that the qualification of “impartial” be added when referring to the tribunals, but it was considered unnecessary since the word “independent” had already been used. The United Kingdom proposed to insert the words “contrary to the present Convention” after “racial discrimination” in order to clarify in which cases the remedies and protection were available. The suggestion was opposed on the ground that it could narrow the scope of the article. Agreement was reached on the phrase as stated in the proposal of Lebanon. The Commission decided to refer to the “right to seek” reparations, in order to avoid prejudgement on the question whether reparations were pertinent or not in a given case. The representative of Austria proposed to add the words “just satisfaction” to cover cases where pecuniary damages were insufficient. It was decided to refer to “just and adequate reparation or satisfaction,” in spite of the fact that some members of the Commission considered that those were subjective terms which would create difficulties for the tribunals. It was understood that the right to obtain reparation should cover not only reparation for financial damage, but also the restoration of the victim’s rights. 3 Discussion in the Third Committee The Third Committee only voted upon one amendment, proposed by Bulgaria, intended to insert the words “and other State institutions” between the words “tribunals” and “against.” The amendment was adopted. 4 Contents of Article 6 Article 6 should be compared with Article 8 of the Universal Declaration of Human Rights, Article 2 of the Covenant on Civil and Political Rights, and Article 7(2) of the Declaration on the Elimination of all Forms of Racial Discrimination. The first grants the right to an effective remedy by the competent natural tribunals for acts violating fundamental rights. Article 2 of the Covenant refers to an effective remedy by competent judicial, administrative or  legislative authorities. The Declaration on Racial Discrimination speaks about  an effective remedy and protection against any discrimination on the ground of race, colour or ethnic origin, through independent national tribunals competent to deal with such matters. The Convention goes further than the

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aforementioned instruments, granting also the right to seek just and adequate reparation or satisfaction for any damage suffered as a result of racial discrimination. The intention of the drafters of the Article was to ensure that the party responsible for causing injury as a result of racial discrimination, whether it be the State itself or a private individual or organization, should provide an effective remedy to the victim.68 The first part of the Article deals with the protection and remedies through competent tribunals and other State institutions. The word “national” here means municipal or domestic tribunals. The second part is intended to ensure reparation or satisfaction when the victim of the act of racial discrimination has already suffered damage as a result of it. The words just and adequate reparation or satisfaction should be interpreted liberally. The word satisfaction should cover the instances when material reparation is impossible or difficult. Article 6 should be taken into consideration when dealing with Article 14, paragraph 2, which establishes the procedure for petitions by victims of a violation “who have exhausted other available local remedies.”

Article 7. Steps in the Fields of Education and Information

Article 7, as adopted by the General Assembly, reads: States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention. When the Sub-Commission on Prevention of Discrimination and Protection of Minorities began the discussion of this Article it had before it the draft prepared by Mr. Abram and an amended text proposed by Mr. Krishnaswami (India).69 A new text was proposed by Messrs. Abram, Calvocoressi and 68

Statement of the Italian expert in the Sub-Commission, Mr. Capotorti. E/CN.4/Sub.2/ SR.425, p. 3. 69 E/CN.4/Sub.2/L.310.

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Capotorti70 and, finally, the Sub-Commission adopted unanimously a text proposed by the Chairman, Mr. Santa Cruz (Chile).71 In the Commission on Human Rights, the representative of the United Kingdom submitted an amendment, revised upon a suggestion of the representative of Lebanon and unanimously adopted, according to which “State Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education and information with a view to combating prejudices which lead to racial discrimination and promoting…” The rest of the Article remained unchanged. During the debate in the Commission it was pointed out that the wording of the Article should follow closely that of Article 8 of the Declaration. The attention of the Commission was called to the fact that in another article reference was made not only to racial discrimination but also to racial hatred. However, since the Article dealt with measures connected with teaching, education and information, it was decided to refer only to discrimination. Two small changes were made in the Third Committee. One was the adoption of an amendment of Bulgaria, calling for the insertion of the word “culture” between the words “education” and “and.” The second one was the addition, proposed by Czechoslovakia, of the words “and of this Convention” at the end of the Article. Article 7 is inspired by Article 8 of the Declaration. It has a similar intention to that of Article 26(2) of the Universal Declaration, which refers to the purposes of education. Article 5, paragraph 1(a) of the unesco Convention Against Discrimination in Education repeats the wording of the Universal Declaration. Article 13 of the Covenant on Economic, Social and Cultural Rights states that education shall promote understanding, tolerance and friendship among all racial, ethnic or religious groups. This Article does not present any difficulties. We have already indicated the discussion on the inclusion of a reference to racial hatred. 70 E/CN.4/Sub.2/L.339. 71 For its text, see E/CN.4/Sub.2/241, p. 40.

chapter 3

Substantive Articles Not Incorporated in the Convention The Sub-Commission had before it, and discussed, the text of several articles proposed for incorporation in the Convention, which were later deleted by the Commission on Human Rights. 1

Article on Interpretation

Messrs. Calvocoressi and Capotorti submitted to the Sub-Commission a draft Article (VIII), on interpretation of the Convention, that read: 1. Nothing in this Convention shall be interpreted as implying any right to discriminate on any other basis other than those listed in Article I, such as sex, language, religion, political or other opinion, social origin, property, birth or other status. 2. Nothing in this Convention shall be interpreted as implying a grant of equal political rights to nationals of a contracting State or a grant of political rights to a distinct racial, ethnic or national group as such. Mr. Matsch (expert from Austria) proposed to add the following words at the end of paragraph 2: in a contracting State where no such special rights have been or are granted to a group of persons for reasons of race, colour or ethnic origin. The first paragraph, considered unnecessary by some experts, was later withdrawn and Mr. Cuevas Cancino proposed a new text for the second paragraph. It read: Nothing in the Convention shall be interpreted as implying positive obligations in accordance with which the States Parties undertake to grant a specific political or social status to aliens in their territory. It shall not be interpreted as a grant of political rights to racial, ethnic or national groups as such, if such a grant might destroy, in whole or in part, the national unity and the territorial integrity of a State Party. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279926_006

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Messrs. Krishnaswami and Mudawi proposed a different text. It read: The distinction between nationals and non-nationals of a State recognized by public international law in the enjoyment of political rights shall not be affected by this convention, nor does it impose a duty to grant special political rights to any group because of race, colour or ethnic origin, although it does not prohibit their exercise if otherwise established. After a discussion in which several oral amendments were proposed, the SubCommission adopted a text suggested by the Chairman, which read: Nothing in the present Convention may be interpreted as implicitly recognizing or denying political or other rights to non-nationals nor to groups of persons of a common race, colour, ethnic or national origin which exist or may exist as distinct groups within a State Party. The proposed Article VIII caused considerable difficulty. The discussion centered around two problems: the question of nationals and non-nationals, related to the definition of Article 1, and the applicability of the Convention to groups and not only to individuals. In the Commission the Ukrainian ssr proposed to delete the portion of the text following the words “to non-nationals.” France proposed to add the following phrase: or as amending provisions governing, on a temporary basis, the exercise of political or other rights by naturalized persons. France, India and the Philippines proposed to replace the text by the following: Nothing in the present Convention may be interpreted as affecting in any way the distinction between nationals and non-nationals of a State, as recognized by international law, in the enjoyment of political or other rights, or as amending provisions governing the exercise of political or other rights by naturalized persons; nor does anything in this Convention impose a duty to grant special political or other rights to any groups of persons because of race, colour or ethnic origin. The phrase “as recognized by international law” was later deleted by the sponsors.

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The Commission devoted several meetings to the proposed Article. The discussion was interrupted in order to allow the Commission to complete all other substantive Articles. When the Commission returned to the proposed Article, India and Philippines withdrew their sponsorship of the joint amendment. France announced that she would be willing to withdraw the text if the Commission were to revert back to the consideration of Article 1, and to delete there the reference to “national origin.”1 Finally, on the motion of Austria, the Commission decided by twelve votes to two, with six abstentions, to delete Article VIII from the draft. There was agreement in the Commission on the distinction to be drawn between nationals and non-nationals in the enjoyment of political or other rights, as well as on the special position of naturalized persons who might, temporarily, not be in a position, in every country, to enjoy political or other rights immediately. The Ukrainian amendment was objected to by several members of the Commission, who stressed that the Convention should apply to all nationals of a State, regardless of the ethnic group to which they belonged. 2

Other Articles Deleted

The Sub-Commission adopted, as Article IX, a draft Article proposed by Mr. Mudawi that read: Every State Party shall, as far as appropriate, include in its Constitution or fundamental law provisions prohibiting all forms of racial discrimination. Mr. Mudawi also proposed two more Articles, one on the application of the Convention also to all non-self-governing, trust and colonial territories, and one on cooperation between States Parties and regional organizations in connection with the draft Convention. The Sub-Commission did not consider these two draft Articles. In the Commission on Human Rights, amendments were submitted to the Article IX as adopted by the Sub-Commission. The Ukrainian ssr proposed to replace the words “as far as appropriate” by the words “if this has not yet been done” and to add at the end of the Article the words “and establishing administrative responsibility and responsibility before the courts for the violations of the provisions.” 1 See Part III, Chapter II, Art. 1.

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Costa Rica submitted a new text which, after revisions, read: States Parties shall take steps to promulgate, in conformity with their legal systems, constitutional or legal provisions which may be necessary to prohibit all forms of racial discrimination, and to establish administrative and judicial responsibility for the violation of these provisions. Members of the Commission considered the text ambiguous and a source of difficulty for States where the procedure for amending constitutions was complicated and required a special act, as well as for those that had no constitutions. Other members felt that the Article would not add anything to the provisions of Article 5 and Article 2, paragraph 1(c). As for the matter of establishing administrative and judicial responsibility for violations covered by the Convention, several representatives felt that the ordinary internal law would be sufficient. After the adoption of a motion of India to close the debate on this Article, and after a procedural debate, the Commission adopted, by ten votes to five, with six abstentions, a motion of the United Kingdom proposing to delete Article IX. 3

Article on Anti-Semitism

During the twentieth session of the Commission on Human Rights, the representative of the United States of America proposed an oral amendment to Article III, in order to replace the words “racial segregation and apartheid” by “racial segregation, apartheid and anti-Semitism.” The representative of the Union of Soviet Socialist Republics orally proposed a sub-amendment to the usa amendment, suggesting the addition of the word “nazism” after the word “apartheid,” and the words “and other expressions of hatred based on doctrines of racial superiority” after the word “anti-Semitism.” After a discussion, in which several members of the Commission favoured the idea of a reference to anti-Semitism, while others opposed such a reference in the Article connected with apartheid, the usa representative withdrew the oral amendment, and said that she would introduce a new Article specifically condemning anti-Semitism. The new Article proposed by the usa would read: States Parties condemn anti-Semitism and shall take action as appropriate for its speedy eradication in the territories subject to their jurisdiction.

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The Union of Soviet Socialist Republics submitted a sub-amendment to the usa amendment. According to it, the text would read: States Parties condemn nazism, including all its new manifestations (neo-nazism), genocide, anti-Semitism and other manifestations of atrocious racist ideas and practices and shall take action as appropriate for their speedy eradication in the territories subject to their jurisdiction.2 After a debate in which many representatives favoured the adoption of the usa amendment, as well as the sub-amendment of the ussr, the Commission approved, by nineteen votes to none with two abstentions, a motion of the representative of India to transmit the proposal of the usa and the amendments thereto of the ussr, together with the records of the discussion thereon, to the General Assembly. During the debate it was pointed out that anti-Semitism, of which the most pernicious form had been Hitler’s policy of extermination of Jews, had not disappeared. Anti-Semitism should be considered, in all its manifestations, past and present, as a “repugnant form of racial discrimination and as a dangerous social and political phenomenon.”3 Although many representatives approved the sub-amendment of the ussr, it was suggested that the inclusion of the words “neonazism” brought in a notion with a doubtful meaning which might also have political implications. The reference to nazism, “including all its new manifestations,” would provide a satisfactory solution. Some representatives were in favour of dealing with anti-Semitism in one Article and in another Article with nazism, genocide and other forms of racist ideas and practices. It was also suggested that such enumerations be included in the Preamble. Those who opposed the Article expressed doubts about the desirability of singling out any special form of racial discrimination in the draft Convention. They argued that the special reference to apartheid in article 3 followed a similar reference in the Declaration, because apartheid has been declared to be part of a governmental policy of a Member State, and it was therefore proper for the United Nations to condemn it. With regard to other forms of racial 2 Both the amendment and the sub-amendment were modified by their sponsors, but later the modifications were withdrawn. 3 Statement of the Soviet representative, Mr. Morozov, E/CN.4/SR.807. He insisted on the close relationship between anti-Semitism and nazism. The Israeli representative Mr. Comay, while stressing the historical association between anti-Semitism and nazism, recalled the manifestations of anti-Semitism outside the nazi context.

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­discrimination, it would be necessary to determine carefully their enumeration in order to reach general agreement. It was recalled in this connection that the Commission had decided earlier to leave out the reference to nazism in paragraph 6 of the Preamble. In the Third Committee, Brazil and the usa proposed to insert a new Article, according to which States Parties condemn anti-Semitism and will take action as appropriate for its speedy eradication in the territories subject to their jurisdiction. The ussr introduced an amendment to the Article proposed by Brazil and the usa. According to this amendment, the new Article would read: States Parties condemn anti-Semitism, Zionism, nazism, neo-nazism and all other forms of the policy and ideology of colonialism, national and race hatred and exclusiveness and shall take action as appropriate for the speedy eradication of those misanthropic ideas and practices in the territories subject to their jurisdiction. Ultimately, the ussr replaced the word “misanthropic” by the word “inhuman.” Bolivia introduced a sub-amendment to the Soviet amendment, proposing to delete the word “Zionism” and to replace “neo-nazism” by a more general phraseology referring to all forms of manifestations of nazism. During the debate on these amendments, Greece and Hungary introduced a draft Resolution according to which the Third Committee would decide not to include in the draft Convention any reference to specific forms of racial discrimination. This decision would not affect the already adopted article on apartheid. By a roll-call vote of eighty in favour, seven4 against, and eighteen5 abstentions, the Committee agreed to give priority to the draft Resolution of Greece and Hungary. After a few delegates referred to the Greek-Hungarian proposal, Ghana moved for the closing of the debate, and its proposal was approved by fiftyseven votes in favour, twenty-four against and eighteen abstentions. 4 Australia, Belgium, Bolivia, Brazil, Canada, Israel and usa. 5 Austria, China, Costa Rica, Dominican Republic, Finland, France, Guatemala, Haiti, Italy, Ivory Coast, Luxembourg, Mexico, Netherlands, New Zealand, Panama, United Kingdom, Uruguay and Venezuela. Absent were: Albania, Burundi, Cambodia, Gambia, Laos, Maldive Islands, Malta, Nepal, Nicaragua, Paraguay, Singapore and South Africa.

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As this vote precluded many delegations from referring to the proposed amendments and sub-amendments, some delegations proposed that an opportunity be given to the members of the Committee to explain their stand before the vote on the Greek-Hungarian proposal. The Chairman submitted such request to the Committee and the latter voted, by seventy-seven votes in favour, eight against and twelve abstentions, that the explanations on the vote be given after the vote. A roll-call vote was then taken on the substance of the Greek-Hungarian proposal. The result was: eighty-two in favour, twelve against and ten abstentions.6 As a result of the vote, the following amendments could not be considered: the Brazil-usa amendment condemning anti-Semitism; the Soviet subamendment condemning not only anti-Semitism but also Zionism, nazism and neo-nazism; the Bolivian sub-amendment deleting the word “Zionism” from the Russian amendment, and Polish and Czech amendments, specifying nazism and fascism. During the debate on procedure, several representatives announced that they would oppose the Brazilian-usa amendment because they considered that a u.n. Convention should not specifically single out discrimination against a given race. Others who favoured the amendment based their support on the need to refer to particularly evil forms of discrimination. Some delegations were in favour of a specific condemnation of nazism. The majority of AfroAsian countries stated that they had decided to reject all new proposals, and would vote in favour of the original text prepared by the Commission on Human Rights. The ussr subordinated its position to that of the usa on its own amendment. Greece, one of the cosponsors of the procedural proposal, opposed all specific references as “unnecessary and dangerous.” The Israel representative, Mr. Michael Comay, said that his delegation opposed the Greek-Hungarian proposal, and considered it essential that antiSemitism should be expressly mentioned in the Convention. After summarizing the history of anti-Semitism, he stated that the Convention owed its origin to the manifestations of anti-Semitism which had occured in a number of countries in 1959 and 1960. The general consensus had been then that antiSemitism was not a matter of religious intolerance alone, and that it was necessary to draft a separate convention dealing with the elimination of all forms of racial discrimination. 6 The countries which voted against were: Australia, Austria, Belgium, Bolivia, Brazil, Canada, Israel, Luxembourg, Netherlands, United Kingdom, United States and Uruguay. The countries that abstained were: China, Costa Rica, Dominican Republic, Finland, France, Haiti, Italy, Ivory Coast, Mexico and Venezuela.

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Commenting on the Soviet amendment bracketing Zionism with anti-Semitism, nazism and neo-nazism, the Israel representative considered it “an affront to Israel and to the Jewish people everywhere.” He defined Zionism as the Jewish national movement which had given birth to the State of Israel, endorsed by the United Nations in 1947, when the Soviet Union had associated itself with the majority, thus approving Zionism. During the debates in the Commission and in the Third Committee it was made clear that anti-Semitism—some delegates considered it more accurate to refer to anti-Judaism—definitely came within the scope of the Convention. Some representatives indicated that it would have been preferable to condemn anti-Semitism in the Preamble, instead of dealing with it in a separated operative Article. Others questioned the use of the word anti-Semitism, since the phenomenon to which it referred dealt only with Jews and not with Semites in general. Others, while indicating their opposition to anti-Semitism, considered that it was a manifestation of religious and not racial discrimination, and that its place was therefore in the Convention on Religious Intolerance.7 In Part II, when dealing with the problem of the universality of the Convention, we have already mentioned the relationship between the antiSemitic incidents in 1959–1960 and the decision to prepare the two “twin” Conventions on Racial Discrimination and Religious Intolerance. We have also indicated the general interpretation with regard to the broadness of the scope of the Convention. If not specifically mentioned, anti-Semitism is therefore clearly one of the phenomena which the Convention condemns, declares punishable and attempts to eliminate.8 The shift in the ussr stand may be explained in many ways. The developments around the position of the Jewish minority in Russia, as well as the increasing Soviet involvement in the Middle East conflict, obviously played a major role.9 While this seems to be beyond doubt, it is however regrettable that one of the most persistent manifestations of racial discrimination and prejudice in 7 The Commission on Human Rights had suggested the inclusion of a reference to antiSemitism in the draft Convention on the Elimination of all Forms of Religious Intolerance. The Third Committee of the General Assembly, in its 1967 meeting, decided against such a reference. 8 In the Statement on Race and Racial Prejudice issued by unesco and prepared at a meeting of experts on race and racial prejudice in September 1967, anti-Semitism is mentioned as an example of racism. 9 On the Problem of anti-Semitism in the Convention see articles by H.D. Coleman in Human Rights Journal, Vol. II, 4, 1969, and R. Cohen in Patterns of Prejudice, Vol. 2, No. 2, March–April 1968.

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the history of mankind, and precisely the one that most directly put into motion the United Nations effort that led to the Convention, should not have been mentioned, at least in the Preamble. This exclusion is still more striking since it was agreed to mention apartheid in the Preamble, in addition to a special article on it. The reasons for the exclusion are clearly political. The Arab States feared that a condemnation of anti-Semitism could be interpreted as support for the State of Israel. The obviously purely political Soviet manoeuvre equating Zionism with nazism created then a situation in which a big majority vote prevented the incorporation of the Article on anti-Semitism.

chapter 4

Measures of Implementation 1

Drafting of the Articles on Implementation

Part II of the Convention (Articles 8 to 16) refers to measures of implementation.1 Such measures are an essential part of the Convention and without them, as some representatives stated, the Convention would not differ too much from a Declaration and would remain “a dead letter” or a “paper tiger.” But the Convention did not create a far-reaching machinery and implementation measures that could ensure universal protection against violations of the rights it proclaims. It represents progress compared to all other u.n. instruments in this respect, but it is less effective than the European Convention on Human Rights or the ilo system. The Sub-Commission had before it a proposal submitted by Judge José Ingles (Philippines)2 based on the draft International Covenants on Human Rights prepared by the Commission on Human Rights,3 with modifications inspired by the 1962 Protocol to the unesco Convention. The Sub-Commission only discussed Article I of the proposed measures of implementation, and decided that this text should become Article X of the Convention. The Sub-Commission also adopted a resolution on additional measures of implementation, transmitting to the Commission on Human Rights a preliminary draft “as an expression of the general views of the Sub-Commission on additional measures of implementation which will help to make the draft International Convention…more effective.” The Commission on Human Rights did not examine the proposed Article X because of lack of time, and it recommended to the Economic and Social 1 Cf. the abundant literature, i.a.: Proceedings of the Nobel Symposium on the International Protection of Human Rights, Oslo, 1967; E. Schwelb, “Civil and Political Rights:, The International Measures of Implementation,” in a.j.i.l., Vol. 62, No. 4, 1968, p. 827, and “Some Aspects of the Measures of Implementation of the International Covenant on Economic, Social and Cultural Rights,” in Human Rights, Vol. 1–3, September 1968, p. 377. See, also, Part IV, Chapter I, note 1. 2 E/CN.4/Sub.2/L.321. 3 The articles on implementation in the Covenants as finally adopted by the General Assembly in 1966 differ from the draft prepared by the Commission. We refer later to some of its provisions, considerably weaker than the Commission’s draft.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279926_007

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Council the submission of the text of Article X to the General Assembly, with the records of the discussion thereon. The need for a strong system of measures of implementation, including the right of individual petition against violations of the Convention, was stressed during the debate in the Commission. While the Third Committee began the discussion of the Articles on measures of implementation it had before it the proposed Article X and the preliminary draft of additional measures of implementation. The representative of the Philippines submitted nineteen Articles on measures of implementation,4 based mainly on the documents prepared by the Sub-Commission. Several amendments were suggested to the Philippine proposal, including one  from Ghana5 containing a comprehensive system of measures of implementation. After a discussion it was suggested that members of the Committee who submitted texts should prepare a new draft which would provide a basis for the discussion in the Committee. Such a draft6 was submitted by Ghana, Mauritania and the Philippines, and the Third Committee considered it Article by Article. 2

Contents of Part II of the Convention

The implemention system created by the Convention consists essentially of three means—a reporting procedure, an implementation machinery in the form of a Good Offices and Conciliation Committee, and the right of petition—communications in the language of Article 14—by individuals or groups within the jurisdiction of States Parties claiming to be victims of a violation by that State of any of the rights set forth in the Convention. The Reporting Procedure. The Committee on the Elimination of Racial Discrimination Articles 8 to 11 deal with the Committee on the Elimination of Racial Discrimination. Article 8, as finally adopted, follows in general, excepting paragraphs 2 and 6, the revised draft submitted by Ghana, Mauritania and the Philippines. The Committee (paragraph 1) will consist of eighteen experts of high moral standing and acknowledged impartiality elected by States Parties from amongst their

(a)

4 A/C.3/L.1221. 5 A/C.3/L.1274 and 1274/Rev.1. 6 A/C.3/L.1291.

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nationals.7 The word “experts” gave rise to some difficulties. It was made clear that the word was used in a broad sense as referring to experts in racial discrimination and related fields. The experts shall serve in their personal capacity. This means that they will not act as plenipotentiaries—as suggested in Ghana’s draft—or as agents or representatives of any government, and will not be bound by any instructions. In their election, consideration will be given to equitable geographical distribution and to the representation of the different forms of civilizations as well as of the principal legal systems. The intention of this paragraph, as of similar provisions in other international instruments, is that the experts should represent as many geographical parts of the world and as many political systems and cultures as possible. Such an arrangement also determines, when political considerations do not prevail, the election of members of U.N. bodies where only a small proportion of State Members can be represented. According to the second paragraph of Article 8, the members of the Committee shall be elected, by secret ballot, from a list of persons nominated by the State Parties. Each State Party may nominate one person from among its own nationals. While supposed to be impartial experts serving in their personal capacity, the members of the Committee can, thus, only be nominated by their own national State. To what extent such a system can effectively create a body of independent thinking and acting experts, is at least dubious. The initial election (paragraph 3) shall be held six months after the date of the entry into force of the Convention, i.e. six months from the thirtieth day after the date of the deposit of the twenty-seventh instrument of ratification or of accession. At least three months before the date of each election the Secretary-General shall invite the States Parties to submit their nominations within two months. The Secretary-General will prepare, and submit to the States Parties, a list, in alphabetical order, of all persons thus nominated, indicating the States Parties which have nominated them. The elections will be held (paragraph 4) at a meeting of States Parties convened by the SecretaryGeneral at the Headquarters of the United Nations. The persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives present and ­voting. Two-thirds of the States Parties shall constitute a quorum.

7 The Human Rights Committee created by the Covenant on Civil and Political Rights follows (Art. 28) the same system as the u.n. Convention. The European Convention (Art. 21) does not prevent the election of persons which are not nationals of States Parties. .

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The term of office of the members of the Committee will be four years (paragraph 5[a]). The term of nine of the members elected at the first election, chosen by lot, shall expire at the end of two years. For the filling of casual vacancies (paragraph 5[b]), the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals, subject to the approval of the Committee. Proposals to allow members of the Committee to nominate alternates were disregarded. The last paragraph (6) of Article 8, establishing that States Parties shall be responsible for the expenses of the members of the Commission while they are engaged in the performance of their duties, gave rise to difficulties, and the Third Committee rejected by roll-call an amendment of Tanzania proposing that the expenses of the Committee be borne by the regular budget of the United Nations. It was alleged that it would not be in accordance with accepted practices of international law to impose upon States which were not parties to the Convention indirect responsibility for expenses incurred as a consequence of the Convention.8 This problem is related to the more complicated question of the nature of the Committee. If States that do not become parties to the Convention do not have to share its expenses, then the Organization should also be free of the expenses involved in the services it has to provide according to Article 10 para. 3 and Article 12 para. 5. The States Parties to the Convention decided at their meetings in 1969 that the expenses of the members of the Committee would be shared equally until July 1970. For the following year, half of the expenses would be shared equally and half on the basis of the United Nations’ scale. A new scale would be calculated afterwards. The Committee (Article 9) will consider the reports9 that the States Parties undertake to submit to the Secretary-General on the legislative, judicial, 8 The emoluments of members of the Human Rights Committee created by the Covenant on Civil and Political Rights will be paid from United Nations resources (Art. 35). 9 The reporting system is one of the simplest and most generally accepted measures of implementation in the field of human rights. Both Covenants (Part IV), the European Social Charter and the American Convention on Human Rights provide for reporting systems. For the ilo and unesco procedures see u.n. Docs. E/4144 and E/4133. By ecosoc Resolution 624 B (XXII) of 1 August 1956, Member States of the United Nations and Specialized Agencies were asked to report every three years on developments and progress achieved in the field of human rights. In 1962, non-governmental organizations having consultative status were invited to submit comments and observations (ecosoc Resolution 888 B. [XXXIV]. The Commission on Human Rights was to consider these reports. By ecosoc Resolution 1074 C (XXXIX), a new system was established in 1965, inviting

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administrative, or other measures that they have adopted and that give effect to the provisions of the Convention. Those reports will be submitted one year after the entry into force of the Convention for the State concerned and, thereafter, every two years and whenever the Committee so requests. They will not be reports on the general situation in the field of human rights but on adopted measures. The Committee is entitled to request further information from the States Parties. It has no authority to request such information from other sources. The Committee shall report annually, through the Secretary-General, to the General Assembly on its activities and may make suggestions10 and general recommendations based on the examination of the reports and information received. They will be reported to the General Assembly together with comments, if any, from States Parties. The Committee (Article 10) will adopt its own rules of procedure and elect its officers, for a term of two years. The Secretariat of the Committee shall be provided by the Secretary-General and its meetings will, normally, be held at Headquarters. The word “normally,” adopted as an amendment introduced by Tanzania, indicates that, when necessary and possible, the Committee may also hold meetings at other places. (b) Inter-State Complaints Article 11 deals with complaints of one State Party against another.11 The word “complaint,” although originally proposed, is not used. The article says that if a State Party considers that another State Party is not giving effect to the provisions of the Convention, it may bring the matter to the attention of the Committee. The Committee will transmit the communication to the State

10

11

States to supply information in a three-year cycle covering the different kinds of rights. These reports were to be published and sent to the Sub-Commission on Prevention of Discrimination and the Protection of Minorities for study. ecosoc Resolution 1230 (XLII) established new arrangements for dealing with the reports. For the reporting system of the United Nations and the failure of the Commission on Human Rights and of the SubCommission in the performing of their tasks, see Professor John Humphrey’s above mentioned Report to the 53rd Conference of the International Law Association, pages 5 et seq. An amendment, by Sudan, to delete the word “suggestions” and, thus, weaken even more the powers of the Committee, was rejected by a big majority in the Third Committee. Of course, the suggestions and general recommendations can only be made, in this system, to the States Parties and not to the General Assembly. On inter-State complaints procedure, see Art. 41 and 42 of the Covenant on Civil and Political Rights; Art. 24 of the European Convention; Art. 45 of the American Convention; Art. 26 of the ilo Constitution and Art. 12 of the unesco Protocol.

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Party concerned. Within three months the receiving State shall submit to the Committee written explanations or statements clarifying the matter and remedy, if any, that may have been adopted by the State. If the matter is not adjusted to the satisfaction of the parties, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee, giving notice to the Committee and also to the other State. The Committee (paragraph 3) will only deal with a matter referred to it in accordance with such procedure after it has ascertained that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law. This provision created difficulty. Tanzania proposed the deletion of the whole of paragraph 3. This was rejected by the Third Committee. The Committee also decided to retain the word “domestic” after Tanzania asked for a separate vote on it. The use of the words generally recognized principles of international law also caused problems. Some delegations requested clarification of the method to be used to ascertain that “all available remedies” had been invoked and exhausted. The Israeli representative suggested placing the burden of proof of such exhaustion on the receiving State.12 The Third Committee solved this problem with the closing sentence in paragraph 3, according to which this determination will not be the rule where the application of the remedies is “unreasonably” prolonged.13 The exhaustion of all available domestic remedies is a generally accepted principle, whose consideration is outside the scope of this study and which is intended to close the door to legal adventures. It is incorporated in Article 26 of the European Convention,14 Article 14 of the unesco Protocol, and in the 1969 American Convention.

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The Israel representative, Judge Ben-Ito, suggested the addition of a sentence on the following lines: “It will be presumed that all available domestic remedies have been exhausted unless the receiving State proves to the satisfaction of the Committee that domestic remedies exist which have not yet been used.” The same formulation is used in the Covenant on Civil and Political Rights (Art. 41). For the interesting European practice with regard to the principle of exhaustion of domestic remedies, see H. Golsong, Implementation of International Protection of Human Rights, Rec. des Cours of the Hague Academy of International Law, 1963, III, pp. 1–151; J.E. S. Fawcett, Human Rights and Domestic Jurisdiction, in The International Protection of Human Rights, London, 1967, pp. 286–308. For the principle in the Convention, see P. Schaffer and D. Weisbrodt in Human Rights Journal, II.4, 1969, p. 632.

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When dealing with the matter referred to it, the Committee (paragraph 4) may call upon the States Parties concerned to supply any other relevant information. The States Parties concerned shall be entitled (paragraph 5) to send a representative to take part in the proceedings of the Committee while the matter is under consideration. He will have no voting rights. (c) The Conciliation Procedure Articles 12 and 13 refer to the ad hoc Conciliation Commission, which the Chairman of the Committee on the Elimination of Racial Discrimination will appoint after the Committee has obtained and collated all the information it thinks necessary in a dispute. The Commission (Article 12, 1[a]) will comprise five persons who may or may not be members of the Committee, and who shall be appointed with the unanimous consent of the parties to the dispute. Its good offices shall be made available to the States concerned, with a view to an amicable solution to the matter, on the basis of respect for the Convention. If the States Parties to the dispute fail to reach agreement on all or part of the composition of the Commission within three months, the vacancies shall be filled by election, by a two-thirds majority vote by secret ballot of the Committee, from among its own members (paragraph 1[b]). Mexico proposed in the Third Committee that sub-paragraph 1[b] be deleted, but its proposal was rejected. The sub-paragraph is obviously inadequately worded. According to Article 12, the members of the Commission shall serve in their personal capacity, and shall not be nationals of the Parties to the dispute or of a State not Party to the Convention. The Commission shall elect its own Chairman and adopt its own rules of procedure. Its meetings will normally be held at Headquarters, or at any other convenient place as determined by the Commission. The Secretariat provided for the Committee will also serve the Commission. The expenses of the members of the Commission will be shared equally by the States Parties to the dispute, in accordance with estimates by the Secretary-General. A proposal by Tanzania that the expenses of the Commission be borne by the regular budget of the United Nations was rejected. But (Article 12, paragraph 7) the Secretary-General will be empowered to pay those expenses, if necessary, before reimbursement by the States Parties.15 The last paragraph (8) of Article 12 provides that the information obtained and collated by the Committee shall be made available to the Commission,

15

A proposal of Mexico and Tanzania to delete this paragraph was rejected. See above, the remarks on the financial implications of the work of the Committee.

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and the Commission may call upon the States concerned to supply any other relevant information. The third Committee rejected a proposal of Tanzania to add a new paragraph providing that the recommendations of the Commission shall be made public but not necessarily the evidence received by it in camera. The whole Article 12 was adopted by eighty-one votes to none, with six abstentions, in a roll-call vote requested by Mexico. The abstaining countries were Japan, Mexico, Sudan, United Arab Republic, Tanzania and Venezuela. Article 13 deals with the results of the work of the Commission. When the Commission has fully considered the matter, it shall submit to the Chairman of the Committee a report embodying its findings on all questions of facts relevant to the issue between the parties, and containing such recommendations as it may think proper for the amicable solution of the dispute. The report of the Commission will be communicated by the Chairman of the Committee to each of the States Parties to the dispute, and these States shall within three months inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission, which are, of course, not mandatory for them. After the afore-mentioned period, the Chairman of the Committee shall communicate the report of the Commission and the declarations of State Parties concerned to the other States Parties. All the communications to the States Parties to the dispute, as well as to the States Parties to the Convention are, consequently, made by the Chairman of the Committee. The Commission is limited in its relationship with the States Parties to the request for the relevant information mentioned in Article 12, paragraph 8, in fine. Conciliation procedures for inter-State complaints are included in the Covenants on Civil and Political Rights (Article 42) in the unesco Protocol (Article 17), in the European Convention (Article 28 et seq.) and in the American Convention (Article 48 et seq.). (d) The Right of Petition by Individuals or Groups The right of petition—communications16 in the language of the Convention— by individuals or groups of individuals, is recognized by Article 14, the longest

16

As the Italian representative in the Third Committee indicated, the use of the word “communication” and not of the word “petition” was not merely a verbal precaution, since the measures envisaged, as the proposed treatment for such “communications,” were “very moderate” (A/C.3/SR.1357, p. 9).

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in the whole Convention and a key Article in the set of measures of implementation. Article 14 was achieved with difficulty. The first text discussed was the one prepared by Ghana, Mauritania and the Philippines. A group of Latin American representatives proposed amendments to paragraph 2 to 5 of that text and a first revised new text17 was later submitted by Argentina, Chile, Colombia, Costa Rica, Ecuador, Ghana, Guatemala, Mauritania, Panama, Peru and the Philippines. Lebanon proposed several amendments to this new text and, with a view to taking into account these amendments as well as opinions expressed during the discussion, Argentina, Bolivia, Chile, Colombia, Costa Rica, the Dominican Republic, Ecuador, El Salvador, Ghana, Guatemala, Mauritania, Panama, Peru and the Philippines presented a second revised text,18 to which the Committee still adopted amendments. Article 14 creates an optional system. As the representative of Ghana pointed out, it was necessary to reconcile the “sincere wish of many delegations to use the right of petition and communication as an effective weapon against discrimination” with the fact that many States “were jealous of their sovereignty and were reluctant to acknowledge that right.”19 A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals, or groups of individuals, within its jurisdiction claiming to be victims of a violation, by the State Party, of any of the rights set forth in the Convention. If a State Party has not made such a declaration, no communication concerning that State shall be received by the Committee. The significance of the recognition of the right of individual petition, or of petition by groups of individuals, even on an optional basis, is obvious. If such a right is not recognized, only States could complain when individual rights were violated. Historical experience shows that States are more than reluctant to complain against violations committed by other States—be the relations among them friendly or unfriendly—unless the rights of their own citizens are involved. Such complaints would be a source of international conflict, and would be denounced as interference in the domestic affairs of States, The recent European experience, which shows instances of State complaints, like those of the Netherlands, Norway and Sweden against Greece, which seem to be free of political motivations, is not enough to dispel the doubts in this field.

17 A/C.3/L.1308. 18 A/C.3.1308/Rev.1. 19 A/C.3/SR.1355, p. 10.

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“Depolitization” can only be ensured if the right of action does not lie solely with States.20 While in the optional system no State can be forced to make the declaration recognizing the right of individual petition, international public opinion could certainly influence individual States inducing them to make such declarations. In any event, the Convention is a step forward. The individual right of petition is recognized in the Optional Protocol to the Covenant on Civil and Political Rights, which restricts it only to individuals and does not grant it to organizations. Article 25 of the European Convention allows any person, nongovernmental organization or group of individuals to address petitions to the Secretary-General of the Council of Europe, if the State Party has recognized the competence of the Commission for such complaints. The American Convention provides that any person or group or nongovernmental entity legally recognized may lodge petitions or complaints (Article 44). We have already mentioned the United Nations machinery created by ­e cosoc Resolution 888 B (XXXIV), its failure and the criticism raised against it, as well as the new procedure recommended by the Commission on Human Rights.21 A proposal of Costa Rica to create an office of a u.n. High Commissioner for Human Rights is on the agenda of the United Nations.22 The High Commissioner would have access to all communications concerning human rights addressed to the United Nations, including complaints by individuals and groups. The first paragraph of Article 14, as indicated, refers to communications from individuals or groups of individuals. There were proposals to refer to nongovernmental organizations, but the words groups of individuals are quite general and comprehensive. Those individuals or groups should be within the jurisdiction of the accused State. Petitioners have not the right to submit their complaints to the Committee before going through a preliminary domestic procedure, established in paragraphs 2 to 5.23 According to this procedure, which was not followed by the Optional Protocol to the Covenant, a State which makes a declaration recognizing the competence of the Committee to receive communications 20 Golsong, op. cit., p. 141. 21 See above, footnote 9. 22 See ecosoc Resolution 1237 (XLII). 23 Saudi Arabia (see A/C.3/L.1297) wanted the individual petitions to be dealt with only by a domestic “National Committee,” whose decisions could be appealed before a “national tribunal.” The amendment was withdrawn.

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from individuals or groups of individuals, may establish or indicate a body, within its national legal order, which shall be competent to receive and consider petitions from individuals or groups of individuals. The use of the word may again underlines the optional character of the system. The petition should be from individuals or groups within the jurisdiction of the State, who claim to be victims of a violation of any of the rights set forth in the Convention. A pre-requisite for the submission of such petitions is that the individuals or groups should have exhausted “other available local remedies.” This should be interpreted as a reference to the normal internal legal order of the State. The declaration made by the State, and the name of any body established or indicated in accordance with the prescribed procedure, shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. Any State Party may withdraw a declaration at any time by notification to the SecretaryGeneral, but such a withdrawal shall not affect communications pending before the Committee. Again the optional nature of the system is clearly determined. The body established or indicated shall keep a register of petitions, and certified copies of the register shall be filed annually, through appropriate channels, with the Secretary-General, on the understanding that the contents shall not be publicly disclosed. It is only when the petitioner fails to obtain satisfaction from the body established or indicated by the State Party, or when such a body does not exist, that he will have the right to communicate the matter to the Committee, within six months time. The Committee will then (paragraph 6(a)), confidentially, bring any communication referred to it to the attention of the State Party alleged to be violating any provision of the Convention. The identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent, a rule that can hardly be observed in practice, and which is likely to be an obstacle to the clarification of the complaint. Its justification is the protection of the personal security of the petitioner. The Committee shall not receive anonymous communications. The receiving State will have three months to submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. The Committee (paragraph 7) will consider the communications in the light of all information made available to it by the State Party concerned and by the petitioner. No communication will be considered unless the Committee has ascertained that the petitioner has exhausted all available domestic remedies.

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This shall not be the rule where the application of the remedies is unreasonably prolonged.24 Paragraph 7(b) of Article 14 says that the Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner.25 The Committee shall include in its annual report, mentioned in Article 9, a summary of the communications received and, where appropriate, a summary of the explanations and statements of the States Parties concerned and its own suggestions and recommendations. The last paragraph of Article 14, paragraph 9, introduced as an amendment by Sweden, provides that the Committee shall be competent to exercise its functions only when at least ten States Parties to the Convention are bound by declarations recognizing its competence. (e) Petitions of Inhabitants of Colonial Territories Article 15, which deals with petitions of inhabitants of Trust and Non-SelfGoverning Territories, raised many difficulties. It had its origin in a draft Article XIII bis proposed by Sudan, the United Arab Republic and the United Republic of Tanzania, to be inserted after Article XIII in the three-States draft. It was intended to make clear that no provisions in the Convention shall prevent the Committee established under Article 8 from accepting petitions from inhabitants of non-independent territories. A first revised text, referring to the Declaration on the Granting of Independence to Colonial Countries and Peoples, was submitted by Mauritania, Sudan, the United Arab Republic and the United Republic of Tanzania.26 Second and third revised texts27 were submitted jointly by twenty-two AfroAsian countries, and further amended. An amendment of the United Republic of Tanzania to add a new paragraph, empowering the Committee to receive comments, complaints, statements, or other communications directly from the inhabitants of the territories mentioned in paragraph 2(a), was rejected in a roll-call vote, taken at the request of the United States of America, by 24

The comments made on Art. 11(3) are applicable to Art. 14, paragraph 7(a). The Optional Protocol to the Covenant on Civil and Political Rights (Art.5) also expressly prevents consideration of communications that are being examined under another international procedure. 25 This sub-paragraph, proposed as an amendment by Lebanon, was adopted in a roll-call vote, by 43 votes to 12, with 34 abstentions. 26 A/C.3.1307/Rev.1. 27 A/C.3/L.1307/Rev. 2 and 3.

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f­ orty-three votes to twenty-five. A roll-call was also taken at the request of the representative of the United Kingdom, on paragraph 2(a). It was adopted by seventy-six votes to three and twelve abstentions.28 The whole Article 15 was adopted in a roll-call vote, requested by Tanzania, by eighty-three votes to two (Portugal and United Kingdom), with six abstentions (Austria, Belgium, Canada, France, United States of America and Upper Volta). Paragraph 1 of Article 15 is intended to eliminate the doubts of those who alleged that this Article could be interpreted as a way of agreeing to the perpetuation of colonialism. That paragraph, which should be referred to Article 87 of the Charter,29 says that pending the achievement of the objectives of the General Assembly resolution concerning the Declaration on the Granting of Independence to Colonial Countries and Peoples, the provision of the Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies. Paragraph 2 caused several problems. The discussion in the Third Committee centred around the question of the right of the Committee to receive direct petitions from the inhabitants of colonial territories. The solution adopted was that the Committee shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of the Convention, in their consideration of petitions from the inhabitants of Trust and Non-Self-Governing Territories and all other territories to which the Declaration on the Granting of Independence applies, relating to matters covered by the Convention which are before these bodies. The Committee shall also receive from the competent bodies of the United Nations copies of the reports concerning legislative, judicial, administrative or other measures directly related to the principles and objectives of the Convention applied by the Administering Powers within the mentioned territories. The Committee shall express opinions and make recommendations to these bodies. In its report to the General Assembly the Committee will include a summary of the petitions and reports it has received from United Nations 28

29

Australia, Portugal and the United Kingdom voted against and Belgium, Bolivia, Brazil, Canada, Colombia, Costa Rica, France, Iceland, New Zealand, Thailand, usa and Upper Volta abstained. Art. 87 of the Charter allows the General Assembly and the Trusteeship Council to accept petitions and examine them in consultation with the administering authority.

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bodies, and the expressions of opinions and recommendations of the Committee related to them. The Committee shall also request from the Secretary-General all information relevant to the objectives of the Convention, and available to him, regarding the mentioned territories. Critics of Article 15 asserted that it is of a discriminatory nature. For the representative of the United Kingdom Article 15 would establish two categories, one of States which did not have colonial responsibilities and would have an option in the matter of petitions and a second one, of States with colonial responsibilities, that would constitute a sort of international second class, and its inhabitants would form a superior class. The consequence would be a higher standard of human rights in colonial territories than in the territories of States recognized as fully independent.30 In the note expressing a reservation to Article 15, the United Kingdom also indicated that the Article purported to establish a procedure applicable to the dependent territories of States, whether or not those States have become parties to the Convention. The difference of treatment between persons under trusteeship and citizens of the administering countries also existed before the adoption of the Convention. The Trusteeship Council, the Fourth Committee of the General Assembly and the Special Committees like the Committee of 24 on Colonialism and on Apartheid, conceded hearings to petitioners from other than Trust Territories, creating a “double standard” according to which complaints directed against colonial governments or against the South African government were widely publicized, while complaints submitted by individuals against their own governments in general were merely filed with the Secretariat and summarized for the Human Rights Commission.31 This “double standard” was maintained in the Convention and was, according to its supporters, “necessary and justified on both legal and practical grounds.”32 The legal justification could be found in the fact that the Charter devotes a separate chapter to the non-independent territories “because it had been felt that their inhabitants needed the special protection of the world community.” As a practical matter, while racial discrimination existed in independent as well as in non-independent territories, it was practised most severely and felt most strongly in the non-independent territories.

30 31

32

A/C.3/SR.1363, p. Th11. John Carey, “The United Nations’ Double Standard on Human Rights Complaints,” The American Journal of International Law, October 1966, p. 792–803, and U.N. Protection of Civil and Political Rights, Syracuse Univ. Press, New York, 1970. The Yugoslav representative in the Third Committee, A/C.3/SR.1363.

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(f) Legal Nature of the Committee When dealing with the financial implications of the establishment of the Committee on the Elimination of Racial Discrimination, we have referred already to the question of its legal nature. The rejection of the Tanzania amendment, proposing that the expenses of the Committee be borne by the United Nations, as well as the rejection (by fifty-five votes to twenty-two, with seventeen abstentions) of another Tanzania amendment, proposing to replace the name of the Committee by “the United Nations Committee on Racial Discrimination,” seem to indicate that a majority considered that the Committee was not to be an organ of the United Nations in the technical sense of the word. In the discussion in the Third Committee it was even said that the Committee could not amend the Charter creating new organs of the United Nations.33 On the other hand, Articles 8, paragrahs 3 and 4, Article 9, Article 10, paragraphs 3 and 4, Article 12, paragraphs 4, 5, 6 and 7, Article 14, paragraphs 3 and 4 and Article 15, paragraphs 2(a) and (b) show the close relationship between the Committee and the Organization in general. The reports to be submitted to the General Assembly according to Article 9, paragraph 2 are particularly conclusive. The Human Rights Committee created by Part IV of the Covenant on Civil and Political Rights is also not defined as an organ of the United Nations. Its relationship to the Organization is, however, still closer. Its members will receive emoluments from United Nations sources, on terms to be decided by the General Assembly (Art. 35). They, as well as the members of the ad hoc conciliation commissions, will be entitled to the facilities, privileges and immunities of “experts on mission for the United Nations” (Art. 43). It is difficult to assume that the omission in the Convention of an Article like Article 43 of the Covenant should have the effect of depriving the members of the Committee on the Elimination of Racial Discrimination of the immunities and privileges of experts on mission for the Organization, exposing them to a treatment based merely on courtesy. Of more significance, as a matter of principle, would be the difference as far as the financing of the two Committees is concerned. Schwelb, taking up this matter, believes34 that the Committee and the Commission are organs which form part of the Organization, in the same way as, for instance, the various drugs control organs or the International Bureau for Declarations of Death. He does not consider decisive the argument on 33 34

The Italian representative, A/C.3/SR.1352. Op. cit., p. 1048 ff. See, infra, Part IV, Chapter V.

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financing and indicates that, naturally, the General Assembly is entitled to establish subsidiary organs. He suggests as a solution that the Committee be brought into relationship with the United Nations as a specialized agency under Articles 57 and 63 of the Charter. A similar discussion took place with regard to the nature of the Commission and the Court within the European system.35 As for the Inter-American system, the Commission was considered as an “autonomous entity” until the 1967 amendment of Article 112 of the Charter of the oas which incorporated the Commission as one of the organs of the Organization. 3

Recourse to Other Procedures

Article 16 states that the provisions of the Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or in conventions adopted by, the United Nations and its specialized agencies. They shall also not prevent the States Parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them. This Article is based on the text submitted by Ghana, Mauritania and the Philippines and was adopted after incorporating amendments proposed by New Zealand and Lebanon and accepted by the sponsors. A similar rule is contained in Article 44 of the Covenant on Civil and Political Rights. The principle established in this Article should be interpreted liberally. If States Parties would prefer to have recourse to other procedures in force between them, the Convention would not be an obstacle to this. The same applies in the case of individuals or groups who prefer to seek international remedies other than the right of petition established in Articles 14 or 15, for instance individuals or groups of individuals within the jurisdiction of States bound by the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms. This Convention created an organ that is entitled to examine complaints, hear the States involved, and refer a case to the European Court of Justice. This procedure goes further than the one  created by the Convention on the Elimination of all Forms of Racial Discrimination, and complaining individuals within the jurisdiction of States 35 Golsong, op. cit., p. 65.

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that are parties to both Conventions could prefer the more comprehensive system.36 The Convention would not prevent persons within the jurisdiction of American States from submitting communications to the Inter-American Commission on Human Rights, which will take cognizance of these communications for information purposes. The Commission was created in 1960 as an autonomous entity of the Organization of American States, and was incorporated into its Charter in 1967, as one of the organs of the Organization. The Commission dealt with thousands of communications and, while it lacks enforcement power, it is a valuable even if imperfect instrument for the protection of human rights on a regional basis. A more comprehensive system of protection of human rights exists in America since the adoption, by the Inter-American Specialized Conference on Human Rights in San Jose, Costa Rica, 7–22 November 1969, of the American Convention on Human Rights, prepared by the Inter-American Council of Jurists. It includes, in addition to the Commission, a Court.37 If the violation of the Convention is of such a nature that it is also covered by the ilo Convention Regarding Discrimination in Employment and Occupation, adopted in 1958, States Parties as well as employers’ and workers’ associations have recourse to the procedure whereby formal complaints can be filed against the violating State. Such complaints can be ultimately referred to the International Court of Justice and, if the State in question fails to comply with the Court’s decision, the Governing Body can ask the International Labour Conference to make the necessary recommendations. In the case of discrimination in the field of education, States Parties to the unesco Convention Against Discrimination in Education have recourse to the system of the Protocol Instituting a Conciliation and Good Offices Commission. The Commission will draw up a report indicating, where a solution is not reached, its recommendation that the International Court of Justice be requested to give an advisory opinion on any legal question connected with a matter laid before the Commission. 36

37

A rich literature exists on the European Convention on Human Rights and the organs created. See, inter alia, H. Golsong, op. cit.; F. Monconduit, op. cit.; K. Vasak, La Convention Européenne des Droits de l’Homme, Paris 1964; A. McNulty, “The Practice of the European Commission of Human Rights,” in Howard Law Journal, Symposium on the International Law of Human Rights, Spring 1965. For the Inter-American system of Human Rights see this writer’s “Human Rights in Latin America,” in Patterns of Prejudice, Vol. 2, No. 1, London, January–February 1968, and D.V. Sandifer, “Human Rights in the Inter-American System,” Howard Law Journal. Spring 1965. The Convention will come into force upon ratification by 11 of the 23 Member States of the oas.

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We have already compared the implementation system of the Convention with that of the Covenants and the Optional Protocol to the Covenant on Civil and Political Rights. Schwelb38 remarks that Article 16, while making available to States Parties “other procedures” for settling a dispute, is silent on a similar recourse available to individuals. He is of the opinion, however, that it cannot have been the intention of the General Assembly and of the States Parties to affect the rights of the individual arising from other instruments. This seems to be the correct interpretation. Particularly after the adoption of the Covenants, it is apparent that no single machinery for the implementation of the several human rights instruments can at this stage be created. Different machineries do exist, on the double level of different fields covered and the regional and universal level. None of these machineries goes far enough, and it could not have been the intention of the United Nations members, when drafting the Convention on Racial Discrimination, to impose a restrictive interpretation to Article 16. 38

Op. cit., p. 1048.

chapter 5

Final Clauses—Reservations Part III of the Convention (Articles 17 to 25)1 is devoted to final clauses. Suggestions for final clauses were submitted to the Third Committee by its officers, and were based on a working paper on final clauses2 prepared by the Secretary-General. 1

Signature and Ratification

Article 17 has two paragraphs. According to paragraph 1 the Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly to become a party to this Convention. Paragraph 2 says that the Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General. The text finally adopted follows closely the one submitted to the Third Committee by its Officers, who had before them seven alternative clauses suggested in the working paper prepared by the Secretary-General. Poland, considering that it was legally not justified in limiting participation in the Convention only to those States mentioned in paragraph 1, proposed to replace it by a text opening the Convention for signature “by all States.” The amendment was voted on by roll-call and rejected by forty-one votes to thirty-two, with eighteen abstentions. Those opposing the Polish amendment invoked the other u.n. humanitarian conventions, such as those on the Suppression of the Traffic in Persons, on Political Rights of Women, on the Recovery Abroad, on Maintenance and on Slavery, which also contain the same restrictions.3 It was also said that many State Members would be unwilling to become parties to the Convention if, by doing so, they would have to enter into treaty relations with entities they did not recognize as States. Several countries expressed reservations to Article 17, paragraph 1—as well as to Article 22—because of the restrictions as to who may become a party to the Convention. 1 For the full text, see Appendix 1. 2 E/CN.4/L.679. 3 The Covenants on Human Rights adopted in 1966 contain identical clauses. © koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279926_008

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2 Accession According to Article 18, paragraph 1, the Convention shall be open to accession by any State referred to in Article 17, paragraph 1. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General (paragraph 2). Article 18 corresponds to the text suggested by the Officers of the Third Committee, who had before them three alternative texts included in the document prepared by the Secretary-General. Poland proposed to replace paragraph 1 by a text opening the Convention to accession “by any State which has not signed it.” The amendment was rejected in a roll-call vote by 43 to 29, with 19 abstentions. The clause as a whole was also voted on by a roll-call and adopted by seventy-six votes to twelve, with three abstentions. 3

Entry into Force

Article 19 deals with entry into force. The Convention was to enter into force on the thirtieth day after the date of the deposit, with the Secretary-General of the United Nations, of the twenty-seventh instrument of ratification or instrument of accession. For each State ratifying this Convention or acceding to it after the deposit of the twenty-seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or of accession. The final text differs from that prepared by the Officers of the Committee. It requires the deposit of twenty-seven instruments of ratification or accession, instead of twenty as foreseen in the Officers’ draft. The SecretaryGeneral, in his working paper, suggested five alternative texts on the number of ratifications and accessions and on the time limits required for entry into force. The reason why the sponsors of the final text wanted the Con­ vention to enter into force after the deposit of the twenty-seventh rather than the twentieth instrument of ratification or of accession, was that they considered it necessary to leave the States Parties more freedom of choice in appointing the eighteen experts of the Committee on the Elimination of Racial Discrimination. 4 Reservations Article 20, on reservations, is one of the most controversial in the Convention, and was adopted at the General Assembly after the Third Committee had decided not to have such a clause.

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Paragraph 1 refers to the procedure. The Secretary-General of the United Nations shall receive and circulate to all States which are or may become parties to the Convention reservations made by States at the time of ratification or accession. Any State which objects to the reservation shall, within ninety days from the date of the said communication, notify the Secretary-General that it does not accept it. Paragraph 2 deals with reservations incompatible with the object and purpose of the Convention. Such a reservation shall not be permitted, nor shall a reservation be allowed the effect of which will inhibit the operation of any of the bodies established by the Convention. The Article does not define what kind of reservations should be considered incompatible with the object and purpose of the Convention, but determines that a reservation shall be considered incompatible or inhibitive if at least two-thirds of the States Parties to the Convention object to it. According to paragraph 3, reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General. Such notification shall take effect on the date on which it is received. When the Secretary-General submitted his working paper with alternative final clauses, he drew the attention of the Commission on Human Rights to General Assembly resolution 598 (VI), of 12 January 1952, in which the Assembly recommended that organs of the United Nations should, when preparing multilateral conventions, consider the insertion therein of provisions relating to the admissibility or non-admissibility of reservations. The Secretary-General proposed three alternative texts, the most extreme of which excluded the possibility of reservations to the Convention. The Officers of the Third Committee submitted a text dealing with reservations to any Article of the Convention. Poland proposed a different text that did not permit reservations to Articles 1, 2, 3, 4 and 5. Ghana, Mauritania and the Philippines also proposed to prohibit reservations to Articles 8 to 14. Finally, the Third Committee adopted, by twenty-five votes to nineteen, with thirtyfour abstentions, a proposal of Canada to delete the whole clause on reservations. The reservation clause, as finally adopted, was introduced in the General Assembly on 21 December, the day when the Convention was adopted, as an amendment submitted by a large group of Afro-Asian States.4 It was adopted by a vote of eighty-two to four, with twenty-one abstentions. The delegate of Ghana, introducing the amendment, said that the absence of such a clause “could conceivably nullify the effect of the Convention ab 4 A/L.479.

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initio.”5 After the adoption of the clause, the delegate of Colombia, declaring that his country would not ratify the Convention because of Article 4, criticized the amendment on reservations. Mexico announced that it would abstain from voting on the draft Convention as a whole because of the reservation clause, but later reversed its position and voted in favour of the Convention. France, stating that it was the right of each State to decide on the acceptability of ratifications with reservations, opposed the two-thirds clause, which introduces “political elements” likely to inhibit the purposes of the Convention. Argentina opposed, too, the reservations clause, which her representative considered “hastily” adopted, while Britain, though voting for the reservations clause, maintained her objections to Article 15. The usa considered that it would have been better for the Convention not to contain an Article on reservations and that, if there had to be one, it should provide for a judicial decision on the question of compatibility of a reservation. The system adopted by the Convention permits, consequently, reservations, but they may not be incompatible with the object and purpose of the Convention, nor may they inhibit the operation of any of the bodies established by it. A twothirds majority will have the power to determine when a reservation should be considered incompatible or inhibitive.6 No clause on reservations is contained in the Covenants on Human Rights adopted in 1966, nor in the ilo Convention on Discrimination in Respect of Employment and Occupation. By Article 9 of the unesco Convention Against Discrimination in Education, reservations to the Convention are not to be permitted. 5 Denunciation According to Article 21, a State Party may denounce the Convention by written notification to the Secretary-General. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General. The clause, as adopted, follows the text submitted by the Officers of the Third Committee, who had before them four alternative texts.

5 A/PV.1406, p. 6. 6 For the difficulties created by the Advisory Opinion of the International Court of Justice of  21  May 1951, on the question of reservations to the Convention on Genocide, see Nehemiah Robinson, The Genocide Convention, ed. Institute of Jewish Affairs, New York 1960, pp. 35–39.

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Settlement of Disputes

Article 22 deals with the settlement of disputes between two or more States Parties over the interpretation or application of the Convention. When such disputes are not settled by negotiation or by the procedures expressly provided for in the Convention, the dispute shall be referred, at the request of any of the Parties, to the International Court of Justice for decision, unless the disputants agree to another mode of settlement. The Third Committee had before it a draft submitted by its Officers, who considered alternative texts suggested by the Secretary-General, including examples of clauses on arbitration, interpretation and settlement of disputes. The draft was amended, without objection, after a proposal of Ghana, Mauritania and the Philippines to introduce the phrase “or by the procedure expressly provided for in the Convention.” The Committee rejected a proposal of Poland intended to prevent what its representative called “the tacit recognition of the compulsory jurisdiction of the Court.” The term “compulsory jurisdiction” is, however, “misleading to the extent that it causes the voluntary nature of the acceptance of the jurisdiction to be overlooked.”7 According to the system adopted, it suffices if any of the parties to a dispute requests that it be referred to the International Court. Poland’s rejected proposal was intended to replace the word “any” by “all.” The supporters of the clause as adopted made it clear that the consent of the parties was in any event given upon ratification of the Convention, and that it would be much more difficult to obtain the consent of States when a dispute already existed than when the Convention was opened for signature. Several countries expressed reservations to Article 22, considering that the consent of all parties to a dispute is necessary for referring it to the International Court of Justice. The reasons given in each case are summarized in Part IV, 2, when dealing with declarations and reservations. 7 Revision Any State Party may at any time request the revision of the Convention, according to Article 23. The State who wants to request such a revision shall address a notification in writing to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such a request. 7 Shabtai Rosenne, The World Court, A.W. Sijthoff, Leyden 1962, p. 76.

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The adopted text follows the one submitted by the Officers of the Third Committee. The Committee decided to retain the whole text after a separate vote had been taken, at the request of France, on the second sentence. The French delegate indicated that a decision on a request for revision of the Convention should be taken by the States Parties alone, and not by the General Assembly. The sentence was retained by forty-seven votes to twenty-one, with twenty-three abstentions. 8 Notifications Article 24 imposes upon the Secretary-General the duty to inform all States referred to in Article 17, paragraph 1, of the following particulars: (a) Signatures, ratifications and accessions under Articles 17 and 18; (b) The date of entry into force of this Convention under Article 19; (c) Communications and declarations received under Articles 14, 20 and 23; (d) Denunciations under Article 21. The final text does not refer expressly to reservations, as did the text submitted by the Officers of the Third Committee. 9

Authentic Text

According to Article 5, the Chinese, English, French, Russian and Spanish texts of the Convention are equally authentic. The Convention shall be deposited in the archives of the United Nations and the Secretary-General shall transmit certified copies to all States “belonging to any of the categories mentioned in Article 17, paragraph 1.” A Polish proposal to delete the words transcribed in quotes was rejected in the Third Committee. 10

Omitted Clauses

The Third Committee did not adopt two final clauses submitted by its Officers. One declared that the Convention shall apply also to non-self-governing, trust, colonial or other non-metropolitan territories for the international relations of which any State Party is responsible. The second clause dealt with the cases of

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a Federal or non-unitary State. Poland proposed to delete both clauses, and the Third Committee so decided. The proposed federal clause was deleted by a vote of sixty-three to seven, with sixteen abstentions. The territorial application clause was deleted by a vote of seventy-six votes to three, with eight abstentions.

part 4 The Work of the Committee

∵

chapter 1

Rules of Procedure and Guidelines for Reporting 1

Meetings. Membership. Voting. Publicity

The Committee on the Elimination of Racial Discrimination (cerd), complying with Article 10 of the Convention, adopted its provisional rules of procedure at the first and second sessions. Amendments and additions were incorporated at the fourth, fifth, seventh and seventeenth sessions, and a single document containing the present seventy eight rules of procedure was published in 1978.1 Regular sessions of the Committee—presently of three weeks each—are held twice a year, at dates decided by the Committee in consultation with the u.n. Secretary-General. Special sessions can also, however, be convened by decision of the Committee, or, when it is not in session, by the Chairman in consultation with the other officers. The Chairman will also convene special sessions at the request of a majority of the members of the Committee or of a State Party to the Convention. While sessions of the Committee shall normally be held at u.n. headquarters, another place for a session may be designated by the Committee, in consultation with the Secretary-General. The provisional agenda of each regular session is prepared by the SecretaryGeneral in consultation with the Chairman of the Committee. It shall include those items decided upon at previous sessions and any item proposed by the Chairman, a State Party to the Convention, a member of the Committee or the Secretary-General. The Committee may, naturally, revise its agenda during the session, and defer or delete items. At special sessions, only those items proposed for consideration at those sessions shall be on the agenda. 1 CERD/C/35, 12 May 1978. For the procedures and work of the Committee, see Das Kamleshwar, “Institutions et procédures issues des conventions relatives aux droits de l’homme et aux libertés fondamentales,” in Les dimensions internationales des droits de l’homme, Paris, 1978, pp. 367–409. Also, by the same author, “Measures of implementation of the International Convention on the elimination of all forms of racial discrimination with special reference to the provisions concerning reports from States Parties to the Convention,” in Revue des Droits de l’Homme/Human Rights Journal, Paris, Vol. IV, Nos. 2–3, 1971, pp. 213–262; Sohn, Louis B. and Thomas Buergenthal, International Protection of Human Rights, Indianapolis, 1973, pp. 856–913; Buergenthal, Thomas, Implementing the racial convention, Texas International Law Journal, Austin, Vol. 12, Nos. 2–3, 1977, pp. 187–221.

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The Committee adopted rules of procedure intended to implement Article 8 of the Convention, on membership, officers, secretariat, conduct of meetings, voting, and other aspects related to the normal work of the body. Upon assuming his duties, each member of the Committee shall solemnly declare that he will perform them and exercise his powers “honourably, faithfully, impartially and conscientiously.” This declaration is the same as that which members of the International Court of Justice make when taking over their functions. A Chairman, three Vice-Chairmen and a Rapporteur are elected by the Committee for terms of two years, and may be re-elected. The Chairman or his replacement will act “under the authority of the Committee,” and will enjoy the assistance of a secretariat provided by the Secretary-General. The SecretaryGeneral will be present at all meetings of the Committee, personally or through a representative, with the right to submit oral or written statements, and with the duty to keep the Committee informed of any questions which may be brought before it for consideration. The Secretary-General will also submit to the Committee an estimate of the cost involved in any proposal, before it is approved by the Committee or its subsidiary bodies. Chinese, English, French, Russian and Spanish are the official languages of the Committee, as well as of the Convention, but only the last four are working languages. However, any person appearing before the Committee may express himself in any other language, providing interpretation into one of the working languages. Summary records of meetings are prepared in the working languages, but all formal decisions are made available in all official languages. Other official documents are also issued in the working languages, unless the Committee decides to issue them in Chinese as well. The meetings of the Committee and its subsidiary bodies will be public unless decided otherwise by the Committee. Provisions for private meetings exist, however. The summary records of public meetings in their final form shall be documents for general distribution.2 Summary records of private meetings shall be distributed only to the members of the Committee and other participants in the meetings, unless the Committee decides otherwise. Participants who attended only part of a private meeting will receive only the relevant portion of the summary record. All reports, formal decisions and all 2 The Committee adopted this rule on 21 March 1978, eliminating existing restrictions. See, A/33/18, Chapter X, Section A, Decision 1 (XVII). Since the meetings of the Committee are public, this was a logical step to take. There seems to be no reason for not lifting the restriction still covering many of the already submitted periodical reports, unless States Parties insist on their restricted character. The same applies to the early summary records.

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other official documents of the Committee and its subsidiary bodies shall be documents for general distribution, unless it is otherwise decided. Reports, formal decisions and other documents relating to Articles 11, 12 and 13 of the Convention—inter-State complaints—and to Article 14—individual or group petitions—shall be distributed to members, States Parties concerned and, if decided by the Committee, members of subsidiary bodies and others concerned. Reports and other information submitted by States Parties under Article 9 of the Convention—periodic reports—shall be documents for general distribution, unless the State Party concerned requests otherwise. A simple majority of members shall constitute a quorum, but the presence of two-thirds of the members is required for a decision to be taken. The powers of the Chairman include the rights to rule on points of order raised by members, and to propose a time limitation for speakers. The Chairman’s ­rulings may be appealed and overruled by a majority of members present and voting. Each member has one vote and, unless otherwise provided in the Convention or Rules of Procedure, decisions are taken by a majority of the members present and voting. Members who abstain are considered to be not voting. Rollcalls may be requested by any member and should be recorded. Proposals may be divided, for voting purposes. A proposal shall be regarded as rejected if a vote is equally divided on matters other than elections. Elections are held by secret ballot, unless the Committee decides otherwise when there is only one candidate. Rules of Procedure 57 and 58 contain detailed provisions for inconclusive ballots. Rule 13 determines the procedure in cases of casual vacancy, according to Article 8,5(b) of the Convention. Except in the cases of death or disability, States Parties will be requested by the Secretary-General to appoint another expert from among their nationals only after the member concerned has submitted a written notification of his decision to cease to function as such. The name of the expert has to be approved by the Committee by secret ballot. A proposal permitting members of the Committee unable to attend the whole or part of a session to designate substitutes was withdrawn, after having been opposed at the first session of the Committee. Such a proposal, if adopted, would have affected the principle that members of the Committee are independent experts and not governmental officials.3

3 Cf. A/8027, par. 14. The appointment of temporary alternates is permitted in other u.n. bodies. See Partsch, K.J., “Die Konvention zur Beseitigung der Rassendiskriminierung,” Vereinte Nationen, Bonn, 1/71, pp. 1–8, and 2/71, pp. 46–53.

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The Committee is entitled to establish sub-committees and ad hoc subsidiary bodies, and to define their composition and mandates. Each subsidiary body will elect its own officers and adopt its own rules of procedure. 2

Reports and Communications from States Parties

The Committee may, through the Secretary-General, inform the States Parties of its views regarding the form and contents of the periodic reports to be submitted under Article 9 of the Convention. The States Parties will be notified, as early as possible, of the opening date, duration, and place of the session at which their respective reports will be examined, in order to enable their representatives to be present. If the Committee decides to seek further information from a State Party, its representative will also be present at the specified meeting and will be expected to answer questions, make statements on reports already submitted by his State, and submit additional information.4 If the Committee decides to request an additional report or further information from a State Party, it will indicate the manner and time for such an additional report. When notified by the Secretary-General of cases of non-receipt of reports or additional information, the Commission may send a reminder to the State Party concerned. If this is ineffective, the Committee shall include a reference to the case in its annual report to the General Assembly. When considering a periodic report from a State Party, the Committee will determine if it provides the relevant information. If the Committee considers that the report does not contain sufficient information, it may request additional information. If, after examining the reports and additional information, the Committee concludes that some of the obligations of the particular State have not been discharged, it may make suggestions and general recommendations, as set forth in Article 9.2 of the Convention. Those suggestions and general recommendations shall be communicated to the States Parties for comment, indicating a time limit, and shall be reported to the General 4 At its nineteenth session, in 1979, the Committee decided that, when adopting a decision concerning information supplied by a State Party to the Convention on conditions in its territory, the representative of the State affected will be asked to withdraw from the Committee table when consideration of the report has been completed. The representative may be present when the Committee’s decision is announced (CERD/C/SR.427, pp. 9–10). The decision followed a proposal by Mr. Nettel, the expert from Austria, and its aim is to avoid attempts to influence the Committee’s resolutions.

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Assembly, together with comments, if received. The use of the words “together with” created some problems, since some members interpreted them as implying the need to wait for such comments before reporting to the General Assembly. This interpretation was not accepted by the majority.5 3

Procedural Rules for Inter-State Complaints

No inter-State disputes have been referred to the Committee up to the present. However, in 1970, at its second session, the Committee decided to draft Rules of Procedure 68 to 78, dealing with its functions under Articles 11 to 13 of the Convention. If an inter-State complaint is brought to the attention of the Committee in accordance with Article 11.1 of the Convention, the Committee will examine it, without considering its substance, at a private meeting and will transmit it to the State Party concerned through the Secretary-General.6 If the Committee is not in session, the Chairman shall bring the matter to the attention of its members, requesting their consent to transmission of the communication, on behalf of the Committee, to the State Party concerned, specifying a time limit of three weeks for their replies. If the consent is given or no replies are received in time, the Chairman shall transmit the communication to the State Party concerned. Otherwise, the Chairman, while acting in accordance with the views of the majority of the members, will bear in mind the requirement of urgency in transmitting, on behalf of the Committee, the communication to the State Party concerned, which will have to submit its written explanations or statement as determined in Article 11 of the Convention. A similar procedure will be followed when the explanations are received from the State Party initiating the complaint. A proposal by the Philippine expert, Mr. Ingles, which was opposed and withdrawn, would have permitted persons whose rights have allegedly been violated according to the complaints, either to appear before the Committee or to submit a written statement. Additional rules elaborate provisions of Article 11 of the Convention. Once all the necessary information has been collated, the Chairman shall proceed to the consultations concerning the composition of the ad hoc Conciliation Commission set forth in Article 12. Upon receiving the unanimous 5 Cf. A/8027, par. 23. 6 The solution of considering the matter at a “private meeting” was the compromise adopted after a discussion on paragraph 1 of Article 11, which was differently interpreted by members of the Committee as to their right to discuss the complaint before transmitting the communication to the State concerned.

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consent of the State Parties to the dispute, the Chairman shall appoint the members of the Commission. In case of dissent, the procedure will be that of Article 12.1(b) of the Convention, namely an election by secret ballot, followed by formalities similar to those for election of members of the Committee. The members of the Commission will receive the information obtained and collated by the Committee from the Chairman of the Committee, through the Secretary-General. The report of the Commission shall be communicated by the Chairman of the Committee to each of the State Parties to the dispute, and to the members of the Committee. The State Parties to the dispute shall, within three months, inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission. This information, according to Article 13.3 of the Convention, shall be communicated, together with the report of the Commission, to all State Parties to the Convention. As already indicated, the Committee had no opportunity to apply the procedure rules on inter-State complaints. States are reluctant to submit formal complaints to bodies like the Committee, and Articles 11 to 13 of the Convention have thus never been applied. The reports of the Committee to the Third Committee have provided occasions for criticism of some States by others.7 4

Guidelines for the Content of Reports

The Committee on the Elimination of Racial Discrimination adopted guidelines and general recommendations regarding the form and content of the reports to be submitted by States Parties under Article 9 of the Convention. Those guidelines and recommendations were combined on 28 May 1978 in a single document (CERD/C/36) issued for general distribution. They are a useful source of orientation for States Parties in the preparation of their periodic reports, as well as a revealing key to the approach of cerd, its order of priorities, and its interpretation of the principles and objectives of the Convention.8 7 Cf., i.a. criticism by India against Pakistan and by Yugoslavia against Austria (A/C.3/31/SR.44 and A/C.3/31/SR.45). 8 At its nineteenth session, in 1979, following a discussion on a working paper prepared by Mr. Bahnev, the expert from Bulgaria, the Committee established a working group to submit new draft guidelines for the reports of States Parties. The working group will make proposals as to how States Parties, whose reports had hitherto proved satisfactory, should submit further reports. It will also consider whether the Committee, after consideration of the reports, should draw up conclusions and make specific proposals, and what suggestions the Committee might make to States Parties regarding their representation at meetings of the

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According to the guidelines, information contained in the reports on the legislative, judicial, administrative or other measures adopted and giving effect to the relevant provisions of the Convention, “might” be presented on the following lines: (1) Measures related to: (a) Condemnation of racial segregation and apartheid, in accordance with Article 3; (b) prohibition and elimination of racial discrimination in all its forms, as enumerated in Article 5, especially in the field of political, civil, economic, social and cultural rights, and the right of access to any place or service intended for use by the general public; (c) assuring protection and remedies against acts of racial discrimination, as determined by Article 6. (2) Measures related to: (a) The undertaking not to engage in any act or practice of racial discrimination, in accordance with article 2.1(a); (b) the undertaking not to sponsor, defend or support racial discrimination by any persons or organizations, as prescribed by Article 2.1(b); (c) the undertaking not to permit public authorities or institutions to promote or incite racial discrimination, in accordance with Article 4(c). (3) Measures related to: (a) The undertaking to review policies and to amend, rescind or nullify laws and regulations which have the effect of creating or perpetuating racial discrimination; (b) the undertaking to prohibit racial discrimination by legislative and other means, as provided by Article 2.1(d); (c) the undertaking to prevent, prohibit and eradicate all practices of racial segregation and apartheid, according to Article 3; (d) the undertaking to declare all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, acts of violence or incitement to such acts, and the provision of any assistance to racist activities to be a punishable offence, in accordance with Article 4(a);

Committee, and how the Committee’s work could take into account the de facto situation in a reporting State (see CERD/C/SR.427).

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(e) the undertaking to declare illegal and to prohibit organizations and propaganda activities, which promote and incite racial discrimination, and to recognize participation in such organizations or activities as an offence punishable by law, in accordance with Article 4(b). (4) Measures related to: (a) The undertaking to encourage integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which strengthens racial division, as provided by Article 2.1(e); (b) the adequate development and protection of certain racial groups or individuals for the purpose of guaranteeing them the full and equal enjoyment of their human rights. These are the “special and concrete measures” in the social, economic, cultural and other fields, to which Articles 1.4 and 2.2 refer, and which were described as “favourable discrimination”;9 (c) the undertaking to adopt measures, particularly in the fields of teaching, education, culture and information, aimed at combating prejudices and promoting understanding, tolerance and friendship among nations and racial or ethnic groups, as well as propagating the principles of the u.n. Charter, the Universal Declaration of Human Rights, and the u.n. Declaration and Convention on Racial Discrimination, in accordance with Article 7. The reporting countries are expected to provide information regarding national procedures and judicial practices relating to cases of racial discrimination. In 1972, the Committee, having considered reports expressing the belief that States Parties on whose territories racial discrimination does not exist, should not have to supply the information requested by the Committee, ­reaffirmed that its communication was addressed to all States Parties without distinction, whether or not racial discrimination exists in their respective territories.10 During the course of its work, the Committee expressed special interest in information on measures taken in certain fields of racial discrimination. Thus 9

10

Supra, p. 45 and 51. E.W. Vierdag, The Concept of Discrimination in International Law, The Hague, 1973, criticizes (p. 136) the term “favourable discrimination.” The term helps to explain the application of measures that would be considered to imply privilege in normal conditions. General Recommendation II, 24 February 1972. For its text, CERD/C/36, p. 6.

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General Recommendation I, of 24 February 1972, urges States Parties whose legislation is deficient in this respect to consider, “in accordance with their national legislative procedures, the question of supplementing their legislation with provisions conforming to the requirements of Article 4(a) and (b) of the Convention,” relating to racial incitement and violence and racist organizations and propaganda.11 Again, in 1973, the Committee, by Decision 3 (VII), requested the States Parties to indicate what specific penal internal legislation had been enacted in their respective countries to implement the provisions of Article 4(a) and (b). Where no such specific legislation had been enacted, the Committee asked to be informed of the manner and the extent to which the provisions of the existing penal laws, as applied by the Courts, effectively implement their obligations under the mentioned article.12 Expressing the view that measures adopted on the national level to give effect to the provisions of the Convention are interrelated with measures taken on the international level “to encourage respect everywhere for the principles of the Convention,” the Committee adopted on 18 August 1972, controversial13 General Recommendation III (Decision 1 (VI), welcoming the inclusion, in the reports submitted by each State Party, of information “regarding the status of its diplomatic, economic and other relations with the racist régimes in southern Africa.”14 On the same subject, Decision 2 (XI) Concerning Relations with Racist Regimes, adopted on 7 April 1975, called upon States Parties concerned to “reconsider any relations which they may have with the racist régimes”; invited all States Parties to include in their reports “information on the status of their relations with the racist régimes of southern Africa”; and noted that “the principled decision of the United Nations General Assembly, at its twenty-ninth session, to refuse to allow the delegation of South Africa to participate in its work,” gave forceful expression to the principle that a régime which makes racial segregation and racial discrimination the cornerstone of its national policy, falls outside the pale of the community of nations.15 As we shall see in Part 6, several States Parties considered that they were not under obligation to report to the Committee on their foreign policy. Such a view was criticized by 11 12 13 14 15

For its text, CERD/C/36, p. 6. Ibid., p. 8. Buergenthal considers the Committee’s approach “not entirely unreasonable,” but admits that the matter is “not without doubt.” Op. cit., p. 195. CERD/C/36, p. 7. Ibid., p. 9.

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the representatives of other States.16 The General Assembly unreservedly endorsed the stand of the Committee in this respect. In 1975, on the occasion of the thirtieth anniversary of the defeat of nazism and fascism, the Committee adopted a resolution paying tribute to the memory of the millions of victims of those racist ideologies, and condemning all vestiges of nazism and fascism still persisting in the world. The resolution reminds “the States Parties concerned of their obligations…to adopt…measures with a view to putting an end to racism and to the vestiges or manifestations of such ideologies wherever they exist.” In the debate on this resolution some non-European members objected to its original wording, which referred to the victory over nazism and fascism. The Kuwaiti expert even stated that “there could be no rejoicing at the victory won” by France and the United Kingdom, “the principal colonial Powers.”17 In view of the trend (to which members of the Committee were not immune) towards putting the main emphasis on racism on the ground of colour, the condemnation of nazism and its racist ideology is an important reaffirmation of the duty to fight every manifestation of group hatred and discrimination. Other recommendations of the Committee deal with sociological and cultural aspects of governmental policies on which States have to report. By General Recommendation IV of 16 August 1973 (Decision 1 (VIII) the Committee invited States Parties to endeavour, in their reports, to include information on the demographic composition of the population.18 Members of the Committee considered that it would be beyond its competence to request States Parties to alter their policy on seeking and compiling information on the ethnic origin and ancestry of their citizens.19 16

17

18 19

See, for instance, statement by the Ghana representative at the Third Committee (A/C.3/33/SR.18), expressing “concern” at the “refusal of certain States Parties to co-operate with the Committee by providing the information envisaged in general recommendation III…” (p. 20). On the same occasion, the opposite view was exposed by the United Kingdom representative, who deplored the fact that the Committee “had begun to stray into areas which were not within its competence,” amounting “to an attempt to rewrite the Convention” (p. 22). Similar remarks were made by the United Kingdom’s and other Western countries’ representatives on other occasions. CERD/C/SR.242. For the text of the resolution—Decision 4 (XI)—see A/10018, p. 69. Also in 1970, when the Committee discussed a proposed text for a communication to States Parties, there was opposition to a reference to nazism and neo-nazism proposed by the Soviet expert, who withdrew his proposal. CERD/C/36, p. 8. See, A/31/18, par. 98, debate in connection with one of the periodic reports submitted by Kuwait.

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The question of the extent to which the Committee is entitled to decide which elements define a given group within society, was raised when the Egyptian expert, Mr. Aboul Nasr, considered it “regrettable” that the Byelorussian third periodic report20 contained a reference to Jews. Judaism, he argued, “was a religion and not a nationality, still less a race.” Professor Partsch, the expert from the Federal Republic of Germany, pointed out that the Committee was not competent to decide “whether a specific minority constituted an ‘ethnic minority’; it was the responsibility of the State to establish its own criteria.”21 General Recommendation V, of 13 April 1977—Decision 3 (XV)—requested States Parties to include in their reports adequate information on the “immediate and effective measures” which they have adopted, “in the fields of teaching, education, culture and information,” to give effect to the provisions of Article 7, with a view to combating prejudices, promoting understanding, tolerance and friendship among nations and racial or ethnical groups, and propagating the purposes of the u.n. Charter, the Universal Declaration of Human Rights, and the Declaration and Convention on Racial Discrimination.22 As pointed out, the recommendations on the content of the national reports help to determine the order of priorities and the orientation prevailing in the  Committee, and have influenced the structure and contents of reports ­submitted after their adoption.

20 CERD/C/R.70. 21 For the discussion, CERD/C/SR.203, p. 35. 22 CERD/C/36, p. 10.

chapter 2

The Reporting System 1

Difficulties and Misconceptions

Among the three procedures foreseen in Part 2 of the Convention to ensure the implementation of its provisions—the reporting system (Article 9), the discretionary procedure of inter-State complaints (Articles 11, 12, 13 and 16), and the procedure for complaints by individuals or groups (Article 14), only the first one is obligatory. It is this procedure that has permitted the Committee to discharge its main task since its establishment in 1969. The reporting system did not work perfectly. Some States failed to fulfil their duties, either by sending in no reports at all, or by submitting them with great delay. However, the fact remains that, during the first eight years of its existence,1 the Committee devoted 205 of the 362 meetings held in its sixteen sessions from 1970 to 1977, to the consideration of reports and other informations received from States Parties. During that period, 298 reports—245 “periodic reports” and 53 “supplementary reports”—were received, and 292 were considered by the Committee. In recent discussions on the work of the Committee, its growing workload was noted and suggestions were made on the need for reports to be as concise as possible. It was also suggested that the questionnaire be shortened and that some division of work in the Committee be introduced. Statistics alone, of course, might be misleading. Even if a report is submitted at the proper time, and takes into consideration all the recommendations made by the Committee as to form and content, it does not mean that the country in question is complying with its obligations under the Convention. It is however, an indication of awareness among States Parties that they should comply with their duties under the Convention. On the other hand, some of the reports constitute a very useful source of information on the situation prevailing in the individual countries, with regard to the problem of racial discrimination. The comments made during the meetings devoted to the consideration of the individual reports, as well as the fact that those comments

1 The Commission published a study on its work during those first eight years, as a contribution to the World Conference to Combat Racism and Racial Discrimination: A/CONF.92/8, 19 April 1978. On the reporting system, see paras. 79–153.

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were taken into consideration by the respective States, are of no less significance when judging the impact of the Convention. From the very early stages of its work, the Committee tried to ensure compliance by States Parties with the provisions of the Convention, in connection with the timely submission of their periodic reports. Reminders—in addition to the normal communications of the Secretary General—are sent to defaulting States and, if no results are obtained, the matter is brought to the attention of the General Assembly in the annual report of the Committee. There have been cases in which it has been necessary to send several reminders to a State Party. On the occasion of the Decade for Action to Combat Racism and Racial Discrimination, the Committee made an appeal to all States Parties “to cooperate without exception to the fullest possible extent with the Committee…in particular with regard to compliance with the requirements of Article 9 of the Convention.”2 Later, at its twelfth session, the Committee authorized its Chairman to invite the permanent representatives of several States Parties to meet with him, so that he could ascertain “the reasons for the failure of their Governments to submit their initial reports, despite the reminders sent to them.”3 Furthermore, at its seventeenth session in 1978, the Committee addressed a communication to several States, inviting them to send representatives to meet with the Committee on the opening day of its next session—in private meetings, if they so desired, in order to assure confidentiality—to discuss difficulties that may have prevented the respective governments from submitting their reports. In any case, the Committee has been “greatly concerned” over this phenomenon, seeing in it “a formidable impediment to the effective functioning of the reporting system.”4 The Committee also publicized its concern about other difficulties emanating from “some misconceptions” about the nature and purpose of the reports. One of them is the stand taken by some governments that, if racial discrimination is considered to be non-existent in their respective countries, there is no obligation to submit a report. Another misconception noted by the Committee is the belief that, if an initial report is submitted and no new measures are adopted in the following two-year period, then the State Party is under no obligation to submit a second periodic report. The Committee considered that Article 9, paragraph 1 has a mandatory character, and reports have to be ­submitted according to the indicated time-table no matter what the factual or legislative situation in the respective country might be. 2 Decision 2 (X). 3 A/10018, par. 70. 4 A/CONF.92/8, par. 89.

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cerd rejected the view that States considering racial discrimination in territories under their jurisdiction to be non-existent, are under no obligation to adopt measures giving effect to the Convention. In the Committee’s view, all States without distinction, whether or not racial discrimination existed in their territories, are expected to enact measures giving effect to Articles 2 to 7 of the Convention. General Recommendations I, II and V were adopted in this connection. In its efforts to interpret the Convention authoritatively, the Committee considered that, while the provision of some of its articles might be self-executing, the provisions of others were not. Therefore, it could not share the view, expressed in some of the reports, that if the Convention had become part of the supreme law of the country under the legal system of the reporting State, there was no need for the State to take any further legislative action in order to give effect to the Convention. The Committee’s stand is that express legislation is needed in each case in order to implement Article 4, declaring that certain acts are punishable offences, and that Article 7 requires mandatory action in the field of teaching, education, culture and information.5 In the same line of thought, the Committee dissociated itself from the “apparent belief” that, if the Constitution of the reporting State condemns racial discrimination, no further action by that State was required.6 Another problem hampering the effectiveness of the reporting system was the fact that many of the reports were incomplete. While proper information on legislative measures is usually provided in the reports, the case is not the same with regard to judicial, administrative and other measures. Sometimes, the text of relevant legislative measures is also missing. From the very beginning of its work, the Committee tried to find ways to correct this situation. To that effect the guidelines for the preparation of reports include the request to supply information on legislative, judicial, administrative or other measures, according to the order determined in the guidelines. States Parties were also requested to report about national procedures for implementing such measures, and about judicial practice regarding cases of racial discrimination. From its third until its tenth session, the Committee followed the practice of formally classifying the reports as “satisfactory” and “unsatisfactory,” according to the degree of completeness in the information contained in the reports. A  report was considered “unsatisfactory” when “significant categories of ­information were either totally lacking or insufficiently provided.”7 At its tenth 5 Ibid., par. 94. 6 Ibid., par. 95. 7 A/8418, paras. 24–36.

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session the Committee decided to discontinue the classification. The Committee felt that what was supposed to be only a formal evaluation of the completeness or incompleteness of a report, might be misconstrued as a substantive evaluation of the situation prevailing in the respective country, or as a judgment on the compliance or lack of compliance with the Convention. Since the classification was now less necessary than in the past, and since it might be misleading, the Committee decided to abolish it.8 When the Committee considered that a report was “unsatisfactory” it requested additional information from the respective State, in a supplementary report or in the next periodic report, according to Article 9.1 of the Convention and Procedural Rule 65. Since information on some specific articles, such as Article 4 and Article 7, was missing in many reports, the Committee adopted the General Recommendations and decisions calling upon all States Parties to comply with the requirements of those articles. In the Committee’s view, the presence of representatives of the States Parties at the meetings when their reports were examined, and the opportunity given them to answer questions and make statements (in accordance with Procedural Rule 64A, adopted in 1972), should be considered “perhaps the greatest success of the Committee,” considerably expediting its work and making possible “the rise of a meaningful dialogue between the Committee and the States Parties concerned.”9 Rule 64A permitted the Committee to reverse its early restrictive interpretation on the participation of States Parties in the discussions on their periodic reports. 2

Suggestions and General Recommendations

As established in Rule 66A, the Committee is entitled to request additional information from any State Party if it considers that the report submitted does not contain sufficient information. If, after receiving such additional information, the Committee determines that some of the obligations of that State have not been discharged, “it may make suggestions and general recommendations in accordance with Article 9.2 of the Convention.” The Committee was aware of the fact that the application of the last part of this rule could have become the most important step towards the goal of the reporting system. However, as acknowledged in the study on its work, despite the fact that members of the Committee have on many occasions noted non-compliance (or insufficient 8 A/9618, par. 79. 9 A/CONF.92/8, par. 108.

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compliance) by States Parties with the provisions of the Convention, the Committee as such never made a pronouncement to that effect with reference to any particular State Party. The reasons for this failure are explained by the existence of some ambiguity. As we have seen before,10 the Third Committee rejected attempts to weaken the powers of the Committee. The Committee itself interpreted the final wording of Article 9 as not inhibiting it from adopting “suggestions” relating to particular cases. Its competence to “recommend” was seen by the Committee as qualified by the word “general,” and could therefore be exercised only in situations of general relevance.11 No suggestions or general recommendations have been directed at, or addressed to, individual States Parties, except for requests for information. In all cases, the general recommendations have been directed at, and communicated to, all States Parties, and reported to the General Assembly. 3

Sources of Information. The Role of ngos

Another question relating to the role and powers of the Committee with regard to the reporting system, is that of sources of information. Is it permissible to take into consideration information other than that supplied by the States Parties in their reports? Some members argued that reliable information emanating from official sources should not be disregarded. The British expert Sir Herbert Marchant proposed in 1972 to add a new rule of procedure, allowing members of the Committee to raise “any matter” relevant to the implementation of the Convention in the territory of the reporting State Party. The proposed amendment did not gain support however, and was withdrawn. Those opposing it argued that enlarging the competence of the Committee would be tantamount to revising the Convention, which, in their view, followed in this respect a restrictive approach. This should however not preclude members of the Committee from using “any information they might have as experts,” as stated by the Committee’s chairman,12 a possibility which would significantly widen their role in judging the merits of each report. A different approach would limit the task of the experts, (members of the Committee) to a passive

10 11 12

Supra, p. 78, note 10. A/CONF.92/8, par. 117. For the debate on the subject, A/8718, paras. 27–33. See, also the legal opinion of the u.n. Office of Legal Affairs in 1972 in u.n. Juridical Yearbook, 1974, pp. 163–167.

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discussion of official information submitted to them by governments. This was not, of course, the intention of the drafters of the Convention. The Committee is prevented from taking advantage of information supplied by non-governmental organizations, information likely to become an important source if properly channeled. At the discussion on the report of the Committee, the representative of the Netherlands at the Third Committee suggested in 1976 that cerd might benefit from the knowledge and experience of the ngos. But several experts were of the opinion that the Committee should not modify the attitude it had maintained all along, and should therefore continue to refrain from using information coming from the ngos. During the debate on the subject it was pointed out that, if the optional provision of Article 14 (on individual communications) entered into force, the Committee might reconsider its position.13 On different occasions some members of the Committee came out strongly against those who supported optional Article 14 as a means for permitting the consideration of communications from individuals. In 1974 the Committee adopted, by seven votes to two, with three abstentions, an amendment submitted by the Dutch expert, Mr. Kapteyn, to a resolution on the Decade for Action to Combat Racism and Racial Discrimination. The purpose of the amendment was to draw the attention of States Parties to the usefulness of the implementation of Article 14. Explaining his vote against the amendment, the Soviet expert Mr. Safronchuk said that “the amendment served the cause of all those who wanted to perpetuate colonialism, racism and racial discrimination and who wanted the Committee to interfere in the internal affairs of sovereign States.”14 In Part 4, Chapter 5, we shall refer to the decisions taken by the Third Committee and the General Assembly on this matter. We shall also consider there the relationship between the Committee and unesco and the ilo, relating to the question of sources of information.

13 14

A/32/18 par. 29. Compare this restrictive approach with the role reserved for ngos in the unesco Declaration on Race and Racial Prejudice, dealt with in Part 6, Chapter 2. CERD/C/SR.222, p. 243.

chapter 3

Article 15 and the Practice of the Committee It has already been indicated1 that Article 15 of the Convention, dealing with petitions and reports concerning Trust and Non-Self-Governing Territories, or other territories to which the Declaration on the Granting of Independence to Colonial Countries and Peoples applies, raised many difficulties, and was subjected to criticism. The practice of the Committee in discharging its functions in accordance with Article 15 has been rather disheartening, despite its efforts to achieve better results. There have been several reasons for this. Article 15 does not empower the Committee to elicit information directly from the administering authorities of the mentioned territories. It obtains such information through United Nations bodies whose main task is not the problem of racial discrimination. It is therefore either not always relevant to the mandate of the Committee, or is rather meagre.2 On the other hand, and already from a substantive viewpoint, the authorities supplying the information to the u.n. bodies are not all under legally binding obligations to adopt the measures requested by the Convention. The result of such a situation is that the Committee had to devote most of its efforts in this field to establishing a system for obtaining information, rather than for dealing with the specific problem of racial discrimination in nonindependent territories. As one expert noted, members of the Committee were obliged to sift through the voluminous documentation submitted by other u.n. organs “only to find out that the reports in question paid no attention whatever to the provisions of Article 15.”3 1

The Committee’s Powers under Article 15

The Committee interpreted its powers under Article 15 liberally. In a statement circulated on its behalf by the Secretary-General at its first session,4 the Committee expressed the view that it was competent to consider all the relevant information concerning any territory covered by Article 15, without regard 1 2 3 4

Supra, p. 87 and foll. A/CONF. 92/8, par. 155. Mr. Aboul-Nasr, the Egyptian expert, CERD/C/SR.216, pp. 171–172. A/8027, par. 57 and Annex IV.

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to whether or not the Administering Power concerned was a Party to the Convention. It also stated its readiness to receive from u.n. bodies copies of relevant petitions addressed to those bodies “not only by persons actually resident in a territory at the time of submission of a petition but from other persons, including persons who, though originating in the territory, might find themselves outside it at the time they submitted their petition.” The Committee was also ready to consider all petitions transmitted to it by competent bodies of the United Nations “by whomsoever they may be addressed,” provided that they related to matters covered by the Convention. The Committee noted however that it was not empowered to receive petitions directly, or through channels other than the mentioned u.n. bodies. The Committee did not claim the power to request information from Administering Powers, nor to invite their representatives to appear before it.5 It adopted the view that the presence of representatives of States Parties was admissible only when the reports of those States were being considered in connection with Article 9, and not when Article 15 was applicable.6 The respective u.n. bodies were asked to submit to the Committee, together with the petitions, all available information on the petitioners and on the action taken, as well as the records of the respective meetings and copies of the relevant reports submitted by the Administering Powers. At its third session in 1970, the Committee addressed a communication to the Trusteeship Council and the Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples,7 listing the headings and subheadings of the information it expected to receive. At its next session, it compiled a list of specific categories of information missing in the reports already received and made some recommendations8 to the Trusteeship Council, the Special Committee, and the Secretary-General, in order to be able to obtain more complete information on the territories in question. This included information on legislative, judicial, administrative and other measures taken by the respective Administering Authorities, which related to the principles and objectives of the Convention.

5 Loc. cit., par. 6. 6 Cfr. CERD/C/SR.219, p. 203, statement by the Chairman, Mr. Haastrup, following a proposal that a Spanish representative be invited to the discussion on the Spanish Sahara, after a detailed intervention of the Moroccan expert, Mrs. Warzazi. 7 A/8418, par. 101 and 192; Decision 2 (III). 8 Decision 5 (IV).

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Additional requests for specific information were made at subsequent sessions9 and, as a result, the Trusteeship Council invited the Administering Authorities to provide information on the matters listed in the Committee’s respective decisions. Similar steps were taken by the Special Committee. The results of these efforts were, however, far from satisfactory. The Trusteeship Council could not supply information on petitioners, since it was not always possible to inquire into whether their approach was bona fide. The “working papers” prepared by the Secretariat for the Trusteeship Council and the Special Committee, and forwarded by them to the Committee, did not deal specifically with the question of racial discrimination, a fact that prompted the Committee to request that such information should be collated in a separate section for each territory.10 The Committee’s work under Article 15 continued thus to suffer “as a result of the inadequacy of the information available to it in accordance with the procedure laid down in that article, and the irrelevance of much of the material forwarded to it.”11 In the documents brought to the attention of the Committee information on legislative, judicial, administrative or other measures directly related to the principles, objectives and provisions of the Convention was absent, and the reports and documents of the Special Committee related “almost exclusively, to the problem of decolonization, without special reference to the question of racial discrimination.”12 The Committee was thus unable to reach any firm conclusions as to the nature or extent of racial discrimination in most of the territories under review, with the exception of some cases like Southern Rhodesia and Namibia.13 All it could do was to reiterate its view that, pending the attainment of the right to self-determination and independence of the Trust and Non-Self-Governing Territories, the Special Committee should see that part of its function was to convey to the Committee “fuller information relating to racial discrimination.”14 2

The Working Groups

In order to examine the information forwarded to it in connection with Article 15, the Committee began with the practice of establishing small working 9 Decision 4 (VI). 10 See, Decisions 2 (III), 3 (VI) and 2 (VIII). 11 A/CONF.92/8, par. 175. 12 A/31/18, par. 259. 13 Ibid. 14 A/31/18, par. 343.

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groups every year, to study the material relating to a group of territories. At a later stage, and until 1975, the Committee set up four working groups every year, to deal with four groups of territories, namely: (1) Pacific and Indian Ocean Territories; (2) Atlantic Ocean and Caribbean Territories, including Gibraltar; (3) Territories under Portuguese administration; and (4) other African Territories. In 1975, following the independence of most territories under Portuguese administration, the working groups were reorganized and dealt with only three groups of territories: (1) Pacific and Indian Ocean Territories; (2) Atlantic Ocean and Caribbean Territories, including Gibraltar, and (3) African Territories. Each group has a “Convener” and a Chairman of the Conveners coordinates their work. The working groups act informally and there are no summary records of their meetings. Only opinions and recommendations in final form are included in the Committee’s annual report. A review of those opinions and recommendations will add no new elements to the pronouncements of other u.n. bodies. In some cases they reflect comments made during Committee discussions on the drafts submitted to the working groups. As a whole, they can be seen as an attempt to observe the situation in the territories in question, as described in u.n. documents, in the light of the principles and articles of the Convention. Emphasis on labor conditions is an expression of such an approach. In some cases the recommendations were adopted after discussions in which political considerations not related to the problems of racial discrimination were raised by members of the Committee.15 3

Southern Rhodesia and Namibia

The Committee had before it abundant u.n. documentation on the situation prevailing in Southern Rhodesia and Namibia, and adopted opinions and recommendations on this situation from the very beginning of its activities. Already in 1971 the Committee agreed on a series of opinions and recommendations, taking note of relevant resolutions of the General Assembly, the Security Council, the Organization of African Unity, the Special Committee on the Situation with Regard to the Implementation of the Declaration on the Granting of Independence to Colonial Countries and Peoples, the Economic and Social Council and the Commission on Human Rights, as well as the advisory opinion on Namibia of the International Court of Justice.16 Stating that 15 16

See, for instance, discussion on the Spanish Sahara, CERD/C/SR.129, pp. 200–204. A/8418, Chap. VII, Sect. B, Decision 5 (IV).

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the policies of apartheid followed by the Government of South Africa in Namibia and “the illegal regime in Southern Rhodesia” constitute a serious violation of the principles and objectives of the Convention, in particular the rights enunciated in Article 5, the Committee called for the implementation of the measures recommended by the various United Nations organs, some of which “are being surreptitiously circumvented by certain United Nations members.” It then criticized “certain Western countries which maintain ties with South Africa and Southern Rhodesia.” While racial discrimination is not the professed official policy in these countries, some practices “lead to racial discrimination which encourages the racist régimes in South Africa and Southern Rhodesia to further intensify their inhumane policies.” The Committee finally recommended that the General Assembly should appeal to the major trading partners of South Africa to abstain from any action that might constitute encouragement to violate the principles of the Convention, and to use their influence with a view to ensuring the eradication of the policies of apartheid and racial discrimination in Namibia and Southern Rhodesia. It also recommended that the General Assembly should appeal to the United Kingdom, as the administrative power, to adopt all measures aimed at eliminating the policies of racial discrimination in Southern Rhodesia. The 1972 opinions and recommendations17 dealt separately with Southern Rhodesia and Namibia. After again condemning the “illegal racist minority régime” in Southern Rhodesia and the policies of those governments which continue to maintain relations with it, the Committee endorsed the rejection by the General Assembly of the “proposals for a settlement”; noted the gravity of the situation arising from the intensification of repressive actions against the people of Zimbabwe; asked the Special Committee to take appropriate measures for remedying the situation of Africans in the schools and in the University of Southern Rhodesia, and confirmed its former opinions and recommendations. As to Namibia, the Committee recommended that the General Assembly condemn once again the establishment of the so-called “homelands”— based on racial and tribal distinctions and the forcible removal of Africans to those areas; that it also condemn the labor system enforced by the South African Administration; and that it call upon all States whose companies operate in Namibia to ensure that such companies conform to the provisions of the Universal Declaration and of the Convention in their policies of hiring Namibian workers. It finally confirmed its previous opinions and recommendations. 17

A/8718, Chap. IX, Sect. B, Decision 4 (VI).

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The opinions and recommendations of the Committee in following years again reiterate condemnation of the policies of racial discrimination in both territories, calling for steps and measures to comply fully with the relevant u.n. resolutions.18 They denounced brutality against the African people, attempts to attract massive white immigration, violation of different human rights, and measures of repression including torture, labor practices, introduction of mercenaries, and other manifestations of apartheid policies. 4

Other African Territories

As to other African territories, except those under Portuguese administration, the Committee considered the situation in French Somaliland,19 Spanish Sahara,20 and the Comoro Archipelago.21 The Committee’s decisions mainly registered the evolution of political situations in the respective territories. French Somaliland, later called French Territory of the Afars and the Issas, became the independent Republic of Djibouti in 1977. Steps towards the independence of the Comoro Archipelago were taken from 1974, and were welcomed by the Committee. 5

African Territories under Portuguese Administration

The references by the Committee to the African territories under Portuguese administration reflect the evolution of the political situation in those territories, and the changes in the Portuguese régime. At its fourth session, in 1971, the Committee endorsed the condemnation of the Government of Portugal for its policies with regard to Angola, Mozambique, Guinea (Bissau) and other territories under Portuguese domination, reaffirming the inalienable right of their peoples to self-determination and independence, and recommending 18

19 20 21

See, A/9018, Chap. VII, I, A. and B.; A/9618, Chap. V, A, 1 and 2; A/10018, Chap. V, A, 1 and 2; A/31/18, Chap. IV, A, 1 and 2; A/32/18, Chap. V, A, 1 and 2; A/33/18, Chap. V, A, 1 and 2. In this last report the Committee takes note of the “hopeful prospects” for the independence of Namibia. See, A/8718, Chap. IX, Sec. B, Decision 4 (VI), C; A/9018, Chap. VII, I, D; A/9618, Chap. V, A, 3; A/10018, Chap. V, A, 3. See, A/8718, Chap. IX, Sect. B, Decision 4 (VI), D; A/9018, Chap. VII, I, C; A/9618, Chap. V, A, 5; A/10018, Chap. V, A, 4. See, A/9018, Chap. VII, I, E; A/9618, Chap. V, A, 4; A/10018, Chap. V, A, 5.

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that the General Assembly invite the Portuguese Government to review laws and practices that do not conform to the principles and objectives of the u.n. Declaration and the International Convention on Racial Discrimination.22 In 1972, at its sixth session, the Committee reported on a deterioration in the situation, describing in severe terms the position in the territories under Portuguese administration, in the political, labor, economic and cultural fields.23 In its 1973 report,24 the Committee dealt separately and in detail with the situation in Angola, Mozambique, Guinea (Bissau) and Cape Verde, taking note of the respective resolutions of u.n. bodies and denouncing the elections that took place “for the purpose of giving a semblance of legitimacy to the local authorities.” The report examined the position in the territories in regard to the observance of the principles and objectives of the Convention by the Administration, condemning the strategy, enunciated by a Portuguese spokesman, for keeping Angola and Mozambique “under white domination, which is a national objective.” After commenting upon the factual position in the different territories, the Committee reaffirmed its former recommendations and called upon the Portuguese government to cease all practices violating the rights of the indigenous population. It also called upon all States, particularly nato members, to withhold assistance from Portugal and to take measures for ending the rejected practices. The “barbarous massacres” in Mozambique and the “indiscriminate bombing of villages” in Guinea (Bissau) were condemned. After this report, the situation in the territories under Portuguese administration underwent a radical transformation as a consequence of the change of régime in Lisbon. In 1974, the Committee welcomed the statements of the new Portuguese Government, and its undertakings and commitments regarding rights of self-determination for the respective territories, the Republic of Guinea-Bassau25 being the first to become independent. In 1975, it noted with satisfaction the fact that Mozambique, Cape Verde and Sao Tome, and Principe had acceded to independence.26

22

23 24 25 26

A/8418, Chap. VII, Sect. A, Decision 5 (IV), II. Some wording of the decision might appear questionable, as, for instance, the reference to “the continuation of war by the Portuguese Government against the peoples of these territories” as “a flagrant example of racial discrimination.” A/8718, Chap. IX, Sect. B, II. A/9018, Chap. VII, II. A/9618, Chap. V, B. A/10018, Chap. V, Sect. A, 6.

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Pacific and Indian Ocean Territories

The difficulties preventing the Committee from discharging its duties under Article 15 were particularly noticeable in connection with its attempts to examine the situation in the Pacific and Indian Ocean Territories, including the Seychelles, Nieue and Tokelau Islands, American Samoa, Pitcairn, Papua and Trust Territory of New Guinea, Brunei, New Hebrides, Trust Territory of the Pacific Islands, Gilbert and Ellice Islands, Solomon Islands, Guam, Timor, Tuvalu, Cocos (Keeling) Islands and East Timor. Some of those territories meanwhile became independent. The main efforts of the respective working group, as reflected in the recommendations of the Committee,27 had to be devoted to requesting additional information, to supplement that available in the many documents received from the Special Committee and the Trusteeship Council, and from some Administering Powers. The information requested by the Committee, usually unsuccessfully, did not refer exclusively and directly to existing or alleged racial discrimination, but to many aspects of the legal, social, economic and cultural conditions prevailing in the territories as well, and even to measures relating to the status of the inhabitants of those territories in the respective administering countries. The few relevant opinions and recommendations formulated by the Committee are based on those of other u.n. bodies. 7

Caribbean and Atlantic Territories

This group includes a wide list of territories, several of which are already independent, and some of which involve complicated international situations, like Belize or Gibraltar. The territories discussed under this heading were: Bahamas, Bermuda, British Virgin Islands, Gibraltar, Montserrat, St. Helena, Turks and Caicos Islands, United States Virgin Islands, Antigua, Dominica, Grenada, St. Kitts-Nevis-Anguilla, St. Lucia, St. Vincent, and Belize.28 There was no substantial difference in the way of dealing with these territories, as compared with those belonging to the other groups to which Article 15 is applicable. In 27

28

On these territories, see A/8418, Chap. VII, Sect. B, Decision 5 (IV), III; A/8718, Chap. IX, Sect. B, Decision 4 (VI), III; A/9018, Chap. VII, III; A/9618, Chap. V, C; A/10018, Chap. V, B; A/31/18, Chap. IV, B; A/32/18, Chap. V, B; A/33/18, Chap. V, B. For the territories in this group, see A/8418, Chap. VII, Sect. B, Decision V (IV), IV; A/8718, Chap. IX, Sect. B, Decision 4 (VI), IV; A/9018, Chap. VII, IV; A/10018, Chap. V, C; A/31/18, Chap. IV, C; A/32/18, Chap. V, C; A/33/18, Chap. V, C.

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some of the territories anti-racist legislation existed or was adopted,29 and the Committee registered those facts. In some other cases, it expressed its concern vis-a-vis certain situations.30 In most cases, it requested additional information. The question of immigration from dependent territories to the territory of the Administering Power was also raised. Part of the information requested by the Committee was provided in the periodic reports of the Administering Powers submitted under Article 9. 8 Petitions Fears expressed by critics of Article 15, that the double standard created between dependent and independent territories (with regard to petitions) would engender a higher standard of human rights in colonial territories than in independent States,31 did not materialize. The Committee received individual petitions through the channel of the relevant u.n. bodies, but the effect of this procedure on the factual situation concerning racial discrimination in the respective territories can hardly be overestimated. Until the end of 1978, copies of only a few petitions, concerning South Africa, Namibia, Southern Rhodesia, Spanish Sahara and Belize, were received.32 The petitioners were generally representatives of national or international organizations concerned about the violations of rights in the respective territories. The Committee reacted by condemning violations or general policies brought to its attention, or by requesting detailed information. In one case, the Committee decided to circulate letters, in the form of petitions, opposing the incorporation of Belize into Guatemala.33 29 30

31 32 33

In Bermuda, for instance, a Race Relations Act was adopted in 1969 and was considered by the Committee “an initial success.” The flow of immigrants in the British Virgin Islands, or the “poor race relations” in the United States Virgin Islands, or “anti-foreign feeling” in the Turks and Caicos Islands, for instance. Supra, p. 89. For the petitions submitted, A/8718, Chap. IX, Sect. B, Decision 4 (VI), E; A/9018, Chap. VII, F; A/9618, Chap. V, A, 6; A/10018, Chap. V, A, 8. A/10018, Chap. V, C, 1.

chapter 4

Occupied or de facto Controlled Territories Among the controversial decisions of the Committee were those related to complaints, submitted by States Parties, on racial discrimination allegedly taking place in what they consider parts of their national territories outside their effective control, as a result of military occupation or other forms of de facto control, by States not parties to the Convention. The Committee was aware of the fact that political or other disputes leading to, or deriving from the occupation or de facto control of the territories in question, lay outside its competence.1 It considered, however, that it could not be indifferent to reported practices of racial discrimination in what States Parties to the Convention claimed to be their national territories. It decided, therefore, to take action on complaints referring to the Panama Canal Zone, the Golan Heights, Cyprus, the West Bank of the Jordan and the Sinai Peninsula. In all these cases, there were pronounced differences of opinion among the members of the Committee, on matters such as the Committee’s ability to accept such information under Article 9, the competence of the Committee to take action, its competence or lack of competence to request information from States not parties to the Convention, and the right of such States to be present at, or to participate in, the examination of the respective reports. The controversy reached a high point when, at the fifth session, a proposal was made by the German expert Professor Partsch, to add a rule of procedure by virtue of which the Committee should inform the reporting State that the procedure under Article 11—on inter-State complaints—was applicable if a State Party submitted a report or information under Article 9, concerning measures affecting its territory but taken by another State Party. If the information referred to measures taken by a State not party to the Convention, the matter should not be considered by the Committee unless Article 15 was applicable. After revision, the proposal was put to a vote and rejected by the Committee. It was argued that it went beyond the provisions of the Convention and was tantamount to an amendment thereto.2 The Committee devoted many sessions to discuss the mentioned cases, and its decisions engendered critcism and were seen as instances of the prevalence of political considerations. 1 A/CONF.92/8, par. 131. 2 A/8718, par. 25.

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The Panama Canal Zone

The question of racial discrimination in the Panama Canal Zone came up for the first time at the fourth session of the Committee (1971), when the supplementary report submitted by Panama was considered. It was again discussed on later occasions, in connection with the consideration of the comprehensive periodic reports submitted by Panama.3 Panama claimed in its supplementary report that in part of its national territory, the Panama Canal Zone, the United States of America was practicing racial discrimination against Panamanian workers; they received lower salaries, although performing the same work and under the same conditions as United States citizens. It also alleged that “a type of apartheid” was introduced by the United States into the Canal Zone, where “schools, shops, cinemas, hotels, clubs, services and so on, were segregated.” When the report was examined in the Committee, the difficulties posed by the section dealing with the situation in the Canal Zone were noted. The political implications of the subject were also pointed out. The Kuwaiti expert proposed that the Committee should take note “with deep regret” of the information formally given to it by a State Party, and draw the attention of the General Assembly to “that sad situation.” The Soviet expert proposed an amendment stating that the Committee did not have the “possibility” of requesting information from the United States of America, which was not a Party to the Convention. The word “possibility” was later replaced by “competence.” Several members questioned the competence of the Committee to deal with the matter. The expert from Swaziland considered that the matter did not relate to Article 9, and was really a “complaint” against another State. Article 11 was, however inapplicable inasmuch as the United States of America was not a party to the Convention. He therefore opposed the proposal to take note of the information submitted. The British expert also maintained that, under the terms of Article 9, the information under examination could not be considered. The Nigerian expert considered that the matter could be dealt with only in relation to Article 9, if at all. However, if the Committee decided to discuss the matter, it would be dealing with a situation in a territory over which the reporting State Party had acknowledged its lack of jurisdiction. The same expert, as well as the experts from Cyprus and the Federal Republic of Germany, 3 For the initial report and ulterior periodic reports submitted by Panama, see: CERD/C/R.3/ Add.9 and 52; CERD/C/R.30/Add.21; CERD/C/R.70/Add.-27; CERD/C/8, and CERD/C/20/ Add.25. For a summary of the discussion on the Canal Zone, see A/8418, paras. 61–72; A/9018, paras. 212–215; A/9618, paras. 237–239, and A/32/18, paras. 198–201.

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thought that it was necessary to determine the precise juridical status of the Panama Canal Zone and, until this information was received, the Committee could not take any action on the report from Panama. The incompetence of the Committee to deal with matters involving States which were not parties to the Convention was argued by several experts. It was also pointed out that, if the Committee decided to consider the problem, it should first give a hearing to the State which was not a party to the Convention. Those defending the competence of the Committee, among them the experts from Kuwait, Ecuador, Czechoslovakia, Egypt, ussr, India, and Ukrainian ssr, argued that the information in question was presented to the Committee in response to its request in accordance with Article 9, and that Article 11 was inapplicable. Some considered that the status of the Canal Zone was irrelevant, since it was part of the national territory of the State Party which submitted the report. As to granting a hearing to the United States of America, it was alleged that Article 9 forbade such a procedure, which would involve, for a State which was not a Party to the Convention, a privilege not given to State Parties. The political significance of dealing with the matter, or of refusing to deal with it, was also discussed by the members of the Committee, some of which felt that further information was necessary. A decision was finally adopted, by twelve votes to none, with two abstentions. It “takes note of the information formally furnished by the Government of Panama to the effect that in part of its national territory known as the Panama Canal Zone, which is under the control of the Government of the United States of America, certain forms of racial discrimination have been and are being systematically practised.” While the Committee “did not have the competence to request the relevant information on this question from the Government of the United States of America, since the United States of America is not a Party to the Convention,” it wished, however, “to draw the attention of the General Assembly to this situation.”4 The question was again debated when the Committee considered, at its seventh session, the second periodic report submitted by Panama, in 1972.5 This report stated that “racial discrimination does not exist in Panama in any form” and did not refer to the situation in the Canal Zone. The representative of Panama, however, explained that there had been no change in the situation, 4 Decision 3(IV). For its text, A/8418, p. 34. The General Assembly endorsed the Committee’s decision in resolution 2784 (XXVI), of 6 December 1971. 5 For a summary of the discussion, A/9018, paras. 212–215.

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and that the report referred only to the territory under effective jurisdiction of his Government. There was again a discussion on the competence of the Committee to deal with the problem, and it was agreed that the statement made by the representative of Panama should be part of the second periodic report of that country. When the third periodic report of Panama was considered by the Committee at its tenth session in 1974, the Panamanian representative stated that racial discrimination continued to be practised in the Canal Zone, but that his Government had confined its report to the territory under its effective jurisdiction, and did not feel able to include the problem of the Canal Zone “because negotiations on the question were being held between the Governments of the United States and Panama.” The Committee took note of this fact and expressed “its continuing interest in and concern at the racial discrimination practised in a part of Panamanian territory.”6 A new discussion on the Canal Zone took place at the fifteenth session in 1977, on the basis of the fourth periodic report of Panama and its annex, where again it was alleged that racial discrimination existed in the Zone. Questions were put to the Panamanian representative, especially on the grounds on which discrimination was practised. A working group prepared the finally adopted Decision 2 (XV), which takes note of the information provided; expresses concern at the fact that the Government of Panama “is unable, for reasons beyond its control and contrary to its own determination, to fulfill the responsibilities undertaken by it as a State Party to the Convention in a part of its national territory,” expresses “hope” that the situation will be resolved at an early date; invites Panama to keep the Committee informed; and “draws again the attention” of the General Assembly to the situation, asking it “to ensure that no practices of racial discrimination in the ‘Panama Canal Zone’ are permitted.”7 2

The Golan Heights

The Golan Heights were occupied by Israel during the Six-Days War of 1967. The Committee was already occupied in 1971 with examining allegations of 6 A/9618, par. 239. 7 For the text, A/32/18, p. 93. It should be noted that, in the fifth periodic report (p. 48 and ff.) Panama reported about the exchange on 16 June 1978, of the instruments of ratification of the new Panama Canal Treaties, “setting in motion the decolonization of the…Panama Canal Zone and consequently the application thereto of the Convention….” Attention was called to

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racial discrimination in the Golan Heights, when the Syrian Arab Republic submitted its initial report8 maintaining that “…some 110.000 Syrian citizens of the Golan Heights have since June 1967 been deprived of those fundamental rights enunciated by the Universal Declaration of Human Rights, the Covenants on Human Rights and specifically by Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination….” Since then the subject of the Golan Heights has come up several times9 and was the occasion for a debate similar to the one that took place on the Panama Canal Zone. The political implications of the matter were noted from the very beginning, and doubts were again expressed on the Committee’s competence to consider the subject under Article 9, or other articles of the Convention. The fact that the alleged acts of discrimination were committed by a State which was not a Party to the Convention—Israel ratified the Convention only in 1979—was again raised, but a proposal by the Egyptian expert, to ask the Syrian Arab Republic to supplement the information contained in its initial report was supported by a majority of six votes to five with two abstentions.10 The supplementary report submitted by Syria accused Israel of “practices that have virtually deprived the population of the Golan Heights of their basic human rights, including those enumerated in Article 5.” It claimed that almost all inhabitants of the Golan Heights “were forcibly evicted from their land and have not since been permitted to return to their homes.” It also referred the Committee to reports submitted by u.n. organs, such as the Special Working Group of Experts established under Resolution 6 (XXV) of the Commission on Human Rights11 and the Special Committee to Investigate

8 9

10 11

the situation that will be created by the concurrent application of the laws of the two countries. Articles of the Panama Canal Treaty including non-discrimination clauses were transcribed. CERD/C/R.3/Add.38, Add.43 and Add.49. For the further periodic reports, CERD/C/R.30/ Add.32, CERD/C/R.70/Add.19 and CERD/C/1, CERD/C/R.90/Add.23, and CERD/C/20/Add.21. For a summary of the discussions, A/8418, paras. 37–45 and paras. 73–83 and 89–96; A/9018, paras. 116–120; A/9618, paras. 205–207, A/32/18, paras. 109–111, and CERD/C/SR.416. See also, Natan Lerner, “The Golan Heights Case and the u.n. Committee on Racial Discrimination.” Israel Yearbook on Human Rights, No. 3, 1973, pp. 118–135. In the same journal, Theodor Meron (“The International Convention on the Elimination of All Forms of Racial Discrimination and the Golan Heights,” Vol. 8, 1978, pp. 222–239), maintains that, since Syria only acceded to the Convention after the Six-Day War, the Convention cannot be regarded as “constituting in any way part of the legal system of the Golan Heights upon the commencement of the occupation.” Decision 1 (III). For its text, A/8418, p. 31. E/CN.4/1016 and addenda.

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Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories.12 The debate on the supplementary report was essentially a repetition of many of the arguments cited in the Panama Canal Zone case, and related mainly to the question of competence and to the pertinence of discussing the matter under Article 9, 11 or 15 of the Convention. The Nigerian expert again spoke about “extraneous issues” introduced under the pretext of Article 9, while the expert from Swaziland considered it inappropriate for the Committee to involve itself in a situation relating to a state of belligerancy between States. It was argued that the fact that Israel was not a Party to the Convention precluded action by the Committee, and that the precise legal status of the territory in question was not known to the Committee. The expert from Cyprus, comparing the Golan Heights case with that of Panama, asked that a distinction be drawn between both, since in the Golan Heights case “aggression” was involved, while the United States’ control over a portion of Panamanian territory was exercised “under certain agreements.” The relevance of decisions adopted by other u.n. organs was also invoked by several experts. Others, on the contrary, considered that the existence of such decisions was a reason to doubt whether the Committee should also be concerned with the matter, which involved a situation caused by political events and by the Arab-Israeli conflict, therefore making applicable the laws of war. The Soviet expert, on his part, considered that the situation “might be considered genocide, which was the supreme form of racial discrimination.” He and the Kuwait expert accused Zionism of being a racist doctrine. The British expert complained that the Committee was “misusing itself,” wasting so much time on an issue “charged with political connotations.”13 Finally, by a roll-call vote of nine to four, with one abstention, the Committee, taking note of the information contained in the supplementary Syrian report and of the resolutions adopted in this respect by other organs of the u.n., decided “to draw the attention of the General Assembly to this situation.”14 While the subject was being discussed by the Committee, Israel’s representative to the United Nations asked to be permitted to make a short statement on the matter. The request was opposed and finally rejected, by a vote of ten to none, with three abstentions, disregarding the view of those who, like the German expert, maintained that the Committee should not make suggestions 12 A/8089. 13 A/8418, par. 81 (viii). For a more detailed account of the debate, Lerner, op. cit., pp. 119–125. 14 Decision 4 (IV), A/8418, Chap. VIII, Sect. B.

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or recommendations on a particular situation “unless it accorded States not Parties to the Convention the same rights as those enjoyed by States Parties under Article 9, paragraph 2.”15 By the Chairman’s ruling, a request by the Israeli Mission to circulate the text of a statement on the matter was also rejected, again despite the views of those advocating equal treatment for both the complainant State and the one under criticism.16 The Golan Heights case came up again at the seventh session, in connection with the second periodic report of Syria. In addition to the arguments already advanced in favor of, and against, the competence of the Committee to deal with the matter, mention was made of General Assembly Resolution 2784 (XXVI), which “endorsed” the former decision of the Committee. By ten votes in favor and three against, with three abstentions, the Committee expressed “its concern” over the situation in the Golan Heights, and “the hope that the population of the Golan Heights will be able as soon as possible to enjoy fully their human rights and fundamental freedoms as citizens of the Syrian Arab Republic.”17 The General Assembly took note of this decision and recalled its endorsement of Decision 4 (IV).18 The third periodic report submitted by Syria in 1974, as well as the opening statement of its representative dealt again with the Golan Heights.19 The Committee again engaged in a discussion on its competence to pass judgment on the facts. The Dutch expert, who was supported in this respect by the experts from Canada, Argentina, Ghana and Germany, considered that the Committee had no legal grounds for passing judgment on the behavior of a State that was not a party to the Convention. All it could do was to exonerate Syria from its duties under the Convention, and to express its regret that another State was preventing it from giving effect to the Convention.20 While some experts advocated a stronger resolution, the Committee finally adopted 15 16 17

18

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A/8418, par. 90. Ibid., par. 93. Decision 4 (VII). For its text, A/9018, Chap. X, Sect. A. The vote was as follows: in favor, the experts from the Soviet Union, Kuwait, Czechoslovakia, Ecuador, Egypt, Yugoslavia, India, Pakistan, Nigeria and Ghana; against, the experts from Swaziland, Canada and Costa Rica; abstentions, the experts from Argentina, France and the Federal Republic of Germany. Resolution 3134 (XXVIII), par. 4. Buergenthal (op. cit., p. 215) points out that, significantly, the General Assembly endorsed the 1971 decision rather than the one of 1974, “in which the Committee assumed the power to pass judgment on a non-member State that neither accepted the Committee’s jurisdiction nor was given an opportunity to be heard by the Committee.” A/9618, paras. 205–207. See CERD/C/SR.206, p. 70 and foll.

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a decision, drafted by a working group, expressing its “concern” that a State Party to the Convention has been prevented from fulfilling its obligations under the Convention in a part of its territory, as well as its “hope that the population of the Golan Heights will be able as soon as possible to return to their homes and to enjoy fully their human rights and fundamental freedoms as citizens of the Syrian Arab Republic.” The General Assembly was asked “to take the necessary steps in order to enable the Government of the Syrian Arab Republic to take over full responsibility for the implementation of its obligations under the Convention on its whole territory.”21 The General Assembly, on its part, shared the Committee’s concern and recalled its endorsement of the Committee’s decision.22 In 1977, in its fourth periodic report and in its representative’s introductory statement, Syria alleged that the situation in the Golan Heights had deteriorated, and that the Israeli settlements were “radically changing the demographic structure” of the area. Once more a decision prepared by a drafting group was adopted by consensus expressing “grave concern,” and reiterating the request to the General Assembly, which was asked, in addition, “to ensure that no change in the area which has the effect of establishing racial discrimination, including change in the demographic composition, is brought about.”23 The General Assembly, by Resolution 32/13, expressed its “grave concern” at the situation in the Golan Heights, and endorsed the relevant decisions of the Committee. The resolution was adopted by 132 votes to one (Israel), but in the Third Committee the respective paragraph was adopted with 28 abstentions, besides Israel’s vote against.24 3 Cyprus The Committee dealt with the problem of Cyprus on several occasions.25 When it discussed in 1975, at its eleventh session, the third periodic report of Cyprus, the representative of this country alleged, verbally, that racial 21

22 23 24 25

Decision 1 (X). A/9618, Chap. VII, Sect. B. The decision, adopted by consensus, was considered a compromise. The French and Argentine experts stated that, if there had been a vote, they would have abstained (CERD/C/-SR.215, p. 163). Resolution 3266 (XXIX), par. 8. Decision 1 (XV), A/32/18, Chap. VIII, Sect. A. On the discussion in the Third Committee, see A/C.3/32/SR.30. For a summary of the discussions on the Cyprus problem, A/10018, paras. 87–90; A/31/18, paras. 65–68; A/32/18, paras. 321–323, and A/33/18, paras. 347–359.

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discrimination was being practised on a large scale on a part of its territory over which its government had no effective control. He then suggested that the Committee should act in this case as it had acted with respect to the situation of Syria and Panama. After a debate in which all members agreed that the international, political and military aspects of the situation in Cyprus were outside its competence, the Committee adopted a decision, expressing its concern at the information received, and its hope for a speedy normalization of conditions in Cyprus, and inviting the government of this country to provide it with additional information.26 Such additional information was supplied and discussed at the twelfth session, together with other comments made verbally by the representative of Cyprus. With only one reservation, a new decision was adopted, without a vote, taking note of the supplementary report, of the progress achieved in the talks “between the communities directly concerned” and expressing hope for a “speedy normalization of conditions…so that all refugees and other human beings in Cyprus suffering hardships because of their racial or ethnic origin will be enabled to enjoy fully their fundamental human rights without discrimination.”27 In 1976, the Committee again considered the Cyprus situation at its thirteenth and fourteenth sessions. The Committee ratified, on both occasions, its competence to consider the information supplied verbally by the representative of the Government of Cyprus, reaffirmed its concern and its hopes, and decided to keep open the invitation to the Government of Cyprus to provide it with such additional information as might be available.28 This additional information, followed by a request for appropriate action, was submitted verbally by the Cyprus representative at the sixteenth session of the Committee in August 1977. After some controversy and consultations, the Committee adopted, by consensus, a formal decision, expressing its “grave concern” at the “unacceptable state of affairs,” and expressing hope that the relevant resolutions adopted by the competent organs of the United Nations will be implemented, that a speedy normalization of conditions in Cyprus will be effected, so that all refugees and other human beings in Cyprus suffering hardships because of their racial or ethnic origin will be enabled to enjoy fully their 26 27 28

Decision 3 (XI), A/10018, Chap. VII, Sect. A. Decision 1 (XII), A/10018, Chap. VII, Sect. B. A/31/18, paras. 65–67.

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fundamental human rights without discrimination; and that the Government of Cyprus will be enabled to exercise its full responsibility for the implementation of all its obligations under the Convention on its whole national territory. The decision also expressed the hope that the General Assembly will ensure “that no change in the area, including change in the demographic composition, which has the effect of establishing racial discrimination is brought about.”29 The subject came up again when the Committee discussed, in 1978, the fifth periodic report submitted by Cyprus. The Committee adopted Decision 1 (XVIII), reiterating its concern and its hope.30 4

The West Bank of the River Jordan

The question of the “West Bank of the Jordan River”31 came up when the Com­ mittee considered the second periodic report of Jordan, at the sixteenth session, in August 1977.32 It was decided to ask the Rapporteur to prepare a draft decision along the lines of Decision 1 (XV) on the Golan Heights. The decision, adopted by consensus,33 takes note of the information concerning the continued refusal by the Israeli occupation authorities to permit the return of the displaced population, the continued establishment of settlements, and other acts against the population of the Israeli-occupied West Bank of the Jordan River; notes also that a State Party to the Convention has informed the Committee that it has been prevented from fulfilling its obligations under this Convention in a part of its territory and expresses its grave concern “at this unacceptable state of affairs” and “the hope that the displaced population of the West Bank of the Jordan River will 29 30 31

32 33

Decision 3 (XVI), A/32/18, Chap. VIII, Sect. B. A/33/18 Chap. X, Sect. B. That territory was occupied by Jordan from 1948 until 1967 and, since then, by Israel. The controversy on its legal status is one of the main components of the Israeli-Arab conflict, and there is abundant political and legal literature on its many aspects. For a summary on the discussion, A/32/18, par. 283. Decision 1 (XVI), A/32/18, Chap. VIII, Sect. B.

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be able as soon as possible to return to their homes and to enjoy fully their human rights and fundamental freedoms.” It finally asks the General Assembly to ensure that “no change in the area which has the effect of establishing racial discrimination, including change in the demographic composition, is brought about.” The Committee’s decision on the West Bank was drafted, as stated above, along similar lines to the one on the Golan Heights, and disregarded the complicated matter of the legal status of that territory. 5 Sinai When the fourth periodic report of Egypt was considered by the Committee, the Egyptian representative made a statement to the effect that “racial discrimination was being practised in Sinai, a part of the national territory of Egypt over which that State was unable—because of foreign occupation—to fulfill its obligations under the Convention.”34 There was no request for any action, and the Committee confined itself to taking note of the information provided, expressing its “concern,” and inviting Egypt to provide it with such additional information as might be available to it in the future. 6

Criticism of the Committee’s Action

There has been criticism against the decisions taken by the Committee in the cases dealt with in this Chapter. We have already mentioned the main arguments, some of them raised by members of the Committee during the discussion of the different cases—the Panama Canal Zone, the Golan Heights, Cyprus, the West Bank and Sinai. In general, criticism centered around the argument that the question of occupied territories, in which the laws of war are applicable, or of territories in special cases like those of Panama or Cyprus, is a political one, and that no racial discrimination is involved. The Committee is therefore incompetent ratione materiae to deal with the subject. Besides, States Parties are supposed to report on measures adopted by themselves, and not by other States, whether or not they are parties to the Convention. Article 9, paragraph 1 of the Convention would therefore not be applicable. Article 11 cannot be invoked when States which are not parties are involved. 34

For a summary of the discussion, A/32/18, par. 278.

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Articles 14 and 15 are also, of course, inapplicable.35 In addition, if the Committee decided to consider itself competent to act in the cases in question, it should thereafter treat all the States involved on an equal basis, allowing the States accused of violating the Convention the opportunity to expose their own views, or their own description of the facts. It was alleged that the Committee accepted the reporting States’ presentation of the facts without any critical examination and without any attempt at checking their veracity.36 It allowed itself to be driven into controversial situations highly charged with political implications, all of which have been the subject of decisions taken by other bodies of the u.n. By doing so, it went along with the trends prevailing among the u.n. majority, but disregarded the specific purposes of the Convention, the only aim of which is to fight racial discrimination. The arguments invoked against the stand taken by cerd in this respect seem to supersede the main point raised by those supporting its decisions, namely that the Committee could not remain indifferent to allegations made by States Parties to the Convention, that racial discrimination was applied in parts of their territories. The fact that the General Assembly endorsed the Committee’s decisions is essentially of a political nature, and does not weaken the criticism raised in this particular connection. 35

The Rapporteur of the Committee, speaking at the Third Committee as a representative of Kuwait, argued that “there was an analogy” between Trust and Non-Self-Governing Territories and occupied or administered territories, and that in the case of Article 15 States not Parties to the Convention were also accountable for racial discrimination (A/C.3/SR.1858). He had voiced the same views as a member of cerd. 36 Lerner, op. cit., p. 121. John Salzberg criticizes the Committee for not applying the Convention to racial discrimination taking place in East Pakistan: “u.n. Prevention of Human Rights Violations: the Bangladesh Case,” 27 International Organization, No. 1, 119– 120 (1973). By the same author, “The United Nations and the Bangladesh Crisis: A Case Study of u.n. Capability to Deal with Massive Violations of Human Rights,” in The United Nations: A Reassessment—Sanctions, Peace Keeping, and Humanitarian Assistance, ed. John M. Paxman and George T. Boggs, Charlottesville, 1973, pp. 114–128. Also Schwelb, “The implementation of the International Convention on the Elimination of All Forms of Racial Discrimination,” Report of the Fifty-Fifth Conference of the International Law Association, London, 1974, criticizes the unequal treatment granted by the Committee to the two parties to a dispute (p. 604).

chapter 5

Relationship with the u.n. General Assembly and other Bodies 1

The Committee and the u.n. General Assembly

As we have seen, the annual report that the Committee has to submit through the Secretary-General to the General Assembly, according to Article 9, para 2, is of great importance as a conclusive indication of the close relationship between the Committee and the United Nations.1 The Committee has interpreted broadly the wording of that article, which requires the Committee to report “on its activities.” The nine reports already submitted by the Committee2 are comprehensive, and are of great use not only for following the activities of the Committee, but also for learning about the impact of the Convention on domestic legislation and international developments in the field. This is particularly important in view of the fact that a considerable part of the periodic reports submitted by States Parties, as well as of the summary records of the Committee’s deliberations, are still unavailable to the general public. While considering itself “an autonomous body established under a convention”3 or, in other words, “an organ within the United Nations system but not an organ of the United Nations,”4 the Committee, determined as it was to safeguard its autonomous status, was, however, “conscious of its organic links with the United Nations.”5 It followed carefully, year after year, the deliberations of the Third Committee on the status of the Convention and the annual reports, as well as the resolutions adopted by the General Assembly upon that Committee’s recommendation. The Committee asked the Secretary-General to inscribe automatically an item on “Action by the General Assembly” on its 1 See, supra, pp. 87 and 96–97. 2 For the reports, gaor, Twenty-fifth session, Supplement No. 27 (A/8027); Twenty-sixth session, Supplement No. 18 (A/8418); Twenty-seventh session, Supplement No. 18 (A/8718); Twenty-eighth session, Supplement No. 18, (A/9018); Twenty-ninth session, Supplement No. 18 (A/9618); Thirtieth session, Supplement No. 18 (A/10018); Thirty-first session, Supplement No. 18 (A/31/18); Thirty-second session, Supplement No. 18 (A/32/18); and Thirty-third session, Supplement No. 18 (A/33/18). 3 A/CONF.92/8, par. 67. 4 Statement by the Rapporteur, Mr. Fayez Sayegh, CERD/C/SR.231, p. 78. 5 A/CONF.92/8, par. 70.

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Annual Reports on the agenda of each spring session of the Committee, and the debates in the Third Committee regarding the Convention and its implementation were thoroughly scrutinized on those occasions. In order to facilitate the dialogue with the Third Committee, cerd asked— and it has been done in most cases since 1973—that its annual report be considered by the Third Committee separately from other sub-items on its agenda. The Third Committee did not respond, however, to a suggestion that one of the members of cerd should be invited to participate in the deliberations of the Third Committee.6 At present the Committee’s reports are introduced in the Third Committee by the Director of the u.n. Division of Human Rights, or his representative. As stated above, the Committee showed determination in its decision to preserve its autonomous character, and opposed any action likely to encroach on its status. The Committee did not accept decisions, taken by some services of the United Nations Secretariat, to apply automatically resolutions of the General Assembly related to subsidiary bodies of the Assembly. It objected to attempts to alter the procedures for issuing summary records of Committee meetings, or to change the venue and dates of Committee sessions.7 The approach of the Committee was confirmed by a legal opinion from the Office of Legal Affairs of the Secretariat, affirming that cerd was not a subsidiary body of the General Assembly but a treaty body, and that General Assembly resolutions did not override the provisions of the Convention.8 A similar problem arose more recently, in 1978. According to a new practice initiated by the Secretary General, without prior notification or consultation with the Committee, economy-class tickets, instead of first-class tickets for travel, were issued for members of the Committee. The views of the Committee, opposing such a new practice, were confirmed by the United Nations Legal Counsel, and the former procedure was restored.9 An interesting discussion on the status of the Committee—this time in connection with a recommendation made by the Fourth Meeting of States Parties, advising the Committee to hold one extended session each year instead 6 Decision 3 (XII). For its discussion, A/10018, paras. 22–32. The decision was adopted without a vote, but some members expressed reservations based on legal as well as practical considerations. Among arguments in favor of the proposal, mention was made of the need to correct some “lack of understanding” evidenced in certain remarks made in the Third Committee with regard to the work of cerd. 7 A/31/18, paras. 288–315. 8 A/31/18, par. 300. 9 A/33/18, paras. 407–411.

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of two—took place at the ninth session in 1974. While the ussr expert considered that the Meetings of the States Parties constituted “the highest organ established under the Convention,” the majority of the members of the Committee shared the view voiced by the Rapporteur, that “there was no organ higher than the Committee under the Convention.” The Committee, it was said, “was the master of its own procedure” and, in the words of its Chairman, “any decision of another body which affected the provisional rules of procedure of the Committee would be illegal.”10 The summary records of the discussions in the Third Committee, as well as their subsequent consideration by cerd, make interesting reading. The General Assembly is, of course, the main political body of the United Nations and it is only natural that the Third Committee should reflect the different views of States Members, whether parties or not to the Convention, on the work of the Committee and of their reaction to the decisions adopted by it. There is some anomaly in the fact that States which are not parties to the Convention could participate in the review process of the Committee’s work but this is a consequence of the special nature of cerd and its role in the United Nations system. In general, a majority of States’ representatives who spoke at the Third Committee on cerd commended its actions, and reaffirmed the need for States Members to cooperate with it. The competence and expertise of the members of the Committee, and the atmosphere of confidence which it created, were praised. However, criticism was also voiced by representatives of States such as the United Kingdom, New Zealand, the United States of America, France, Canada, Italy, Israel, Greece, Costa Rica and Uruguay, mainly with regard to matters having pronounced political implications. The need for impartiality and objectivity was stressed. Some representatives objected to what they considered the Committee’s incursions into fields not within its competence, as when it requested information concerning relations between States Parties and racist régimes. There was also criticism of the decisions taken by the Committee with regard to racial discrimination in occupied territories, decisions that were endorsed by the General Assembly. Some members of the Committee felt that the General Assembly did not fully endorse the views of cerd regarding its desire to contribute to the Programme of the Decade for Action to Combat Racism.11 In 1971, France requested a separate vote on the words “with appreciation” included in the draft proposal on the cerd report submitted to the Third 10 11

For this discussion, A/9618, paras. 265–270. See, A/10018, paras. 12 and 14.

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Committee. The words were finally retained, by sixty-two votes to sixteen, with thirty-four abstentions. The result of the vote is indicative of the existence of quite significant criticism on some of the decisions of the Committee.12 In 1974, an amendment proposed by the representative of the Netherlands in the Third Committee, which would have had the General Assembly endorse the recommendation contained in par. 1 (d) of the Committee’s decision 2 (X), drawing the attention of States Parties to the usefulness of the implementation of Article 14 of the Convention, was defeated by thirty-three votes to thirty-two with twenty-eight abstentions.13 The Third Committee reversed this stand in later years. In 1975, an amendment introduced by Norway and Uruguay was adopted, by a recorded vote of sixty-one to twelve, with thirty-nine abstentions, appealing to States Parties “to study the possibility of making the declaration provided for in Article 14 of the Convention.”14 In 1976, a similar amendment, submitted by Uruguay, was adopted by the Third Committee, by forty-eight votes to none, with fifty-six abstentions. In 1977, the representative of Uruguay again introduced a similar amendment, sponsored by Ecuador and Sweden, and it was adopted by a rollcall vote of thirty-four to one (Guinea), with seventy-three abstentions.15 The General Assembly adopted the resolution (A/32/11) without a vote. In 1978, Uruguay and Ecuador submitted an amendment (identical to that of 1977) to the draft resolution concerning the status of the Convention. It was adopted, this time, by a recorded vote of seventy to none, with fifty-nine abstentions.16 The General Assembly, again, adopted the resolution without a vote (Resolution A/33/101). Another question raised in the Third Committee was the way in which cerd was discharging its responsibilities under Article 15 of the Convention. Some representatives reproached the Committee for exceeding its competence, while others blamed it for being too reluctant in the exercise of its powers.17 On the whole, as pointed out, cerd felt encouraged by the comments made during consideration of its reports by the Third Committee. The respective General Assembly resolutions express “support” for the “valuable work” of the Committee, and take note “with appreciation” of its reports, commending its 12 13 14 15 16 17

See, A/8542, par. 40 c. For the reasons of France’s request, A/C.3/SR.1868. See, A/C.3/SR.2106. Also, infra, Part V. For the discussion in the Committee, A/10018, paras. 18–20. For the details of the vote, A/10320, p. 18. For the debate, A/C.3/SR. 2122. For the details of the vote, A/32/307. For the details of the vote, A/33/381. Cfr., A/9618, paras. 18–19.

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efforts to obtain extensive reports from States Parties and welcoming or endorsing its decisions.18 2

Cooperation with ilo and unesco

Cooperation with the International Labour Organization and unesco has been on the agenda of the Committee since 1971, when both agencies expressed a desire to coordinate their work with that of cerd in implementation of the Convention in their respective spheres of competence. The subject was discussed at the third session, at which a report by the Secretary-General on arrangements for such cooperation was questioned by members of the Com­ mittee. A decision was postponed.19 At the sixth session, Decision 2 (VI) was adopted. The Committee authorized the Secretary-General to invite representatives of the ilo and unesco to “attend” the meetings of the Committee, which should decide at any private meeting it held whether both agencies’ observers “may attend the private meeting in question.” The Committee also authorized the Secretary-General to make the records of its public meetings, and the texts of its reports and decisions, available to the ilo and unesco. Written information submitted by the ilo and unesco relating to Article 15 of the Convention should be transmitted by the Secretary-General to the Committee, while written statements submitted by the ilo and unesco, providing information on the application of their respective conventions against discrimination in territories other than those covered by Article 15, should be distributed by the Secretary-General “to the members of the Committee,” in a personal capacity, and not to the Committee as a whole. This restrictive decision20 prevented more active participation by the ilo and unesco representatives at the Committee sessions, as suggested by the Secretary-General. The unesco representative, addressing the Committee on behalf of both agencies, indicated that the decision “fell short of the earlier expectations of the two agencies.” The members of the Committee considered that the provisions of the Convention precluded full participation by observers of other agencies in the deliberations of the

18

19 20

See, General Assembly resolutions 2648 (XXV), 2783 (XXVI), 2784 (XXVI), 2921 (XXVII), 3134 (XXVIII), 3135 (XXVIII), 3225 (XXIX), 3266 (XXIX), 3377 (XXX), 3381 (XXX), A/32/13 and A/33/102. See, A/8418, paras. 111–117. For its text, A/8718, Chap. IX, B.

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Committee.21 As Das remarks, the matter is related to the sources of information that the Committee is entitled to take into consideration.22 The question of cooperation with the ilo and unesco was considered again by the Committee on several opportunities. In accordance with Decision 2 (VI), the Secretary-General made the records and official documents of the Committee available to the respective ilo and unesco bodies, and brought to the attention of the Committee communications emanating from both specialized agencies, in connection with their respective Conventions against discrimination. The representatives of both agencies made statements at the meetings of the Committee.23 In 1977, the Chairman of the Committee brought to the attention of unesco the text of General Recommendation V, concerning the implementation of Article 7 of the Convention, and expressed the hope that unesco would provide the Committee with information on its relevant activities and studies. In response, the unesco representative made a statement before the Committee, in which the question of cooperation was again raised.24 In 1978, the Committee had before it a report received from unesco, providing information on its activities and studies relevant to the implementation of Article 7.25 It was introduced by the unesco representative, who also extended to the Committee an invitation to hold a future session at unesco headquarters.26 Such a session was held in the spring of 1979. The United Nations General Assembly in 1978 welcomed the cooperation between the Committee and unesco in order to give effect to Article 7 of the Convention.27 An important development regarding cooperation between cerd and unesco is related to the implementation of the unesco Declaration on Race and Racial Prejudice adopted in 1978. We deal in detail with the implications of the adoption of this instrument and its interrelation with the Convention in Part 6, Chapter 2. 21

For the discussion, A/8718, paras. 122–132. See also the already mentioned legal opinion of the u.n. Office of Legal Affairs, supra, p. 119. 22 Kamleshwar Das, in Les Dimensions Internationales des Droits de l’Homme (ed. Karel Vasak) p. 406. 23 See, A/9018, paras. 336–343; A/31/18, paras. 11–12; A/32/18, paras. 11–13, and A/33/18, paras. 11–13. 24 A/32/18, paras. 46–50. 25 CERD/C/13. 26 Cfr. A/33/18, paras. 39–61 and 405–406. 27 A/33/381.

chapter 6

Composition of the Committee In Part III, Chapter IV we have dealt with the provisions of the Convention concerning the Committee on the Elimination of Racial Discrimination. According to Article 8 of the Convention, the first election of members of the Committee by States Parties took place in 1969. The first meeting of the Committee was held on 19 January 1970 at the United Nations headquarters. Since then, forty-three experts, nationals of twenty-nine States Parties, have served on the Committee. Some of them have been re-elected for several periods. The Kuwaiti expert, for instance, was Rapporteur of the Committee from 1970 to the beginning of 1979.1 According to Article 8.1, in election of members of the Committee consideration should be given “to equitable geographical distribution and to the representation of the different forms of civilizations as well as of the principal legal systems.” In practice, the composition of the Committee reflects the preferences of the States Parties to the Convention, and is likely to change according to the alignments within the group of States Parties. A Report for the Panel on International Human Rights Law and its Implementation of the American Society of International Law, submitted by Nathaniel L. Nathanson and Egon Schwelb,2 points out that for the first two years of its operation the composition of the Committee was heavily loaded against the West. Among its eighteen members there were during that period only two citizens of States belonging to the so-called group of “Western European and other States”; two were Latin Americans; five belonged to the Communist bloc, and nine were nationals of Afro-Asian countries. In January 1972, the number of Western nationals increased to four and that of Latin Americans to three, and the number of Eastern Europeans decreased from five to three.3 Also Sohn and Buergenthal point out that in its early stage the composition of the Committee “lacked a certain balance,” a situation which was remedied in large measure by 1972.4 1 Mr. Sayegh resigned early in 1979, for health reasons. Mr. Partsch was elected to replace him. 2 The United States and the United Nations Treaty on Racial Discrimination, Washington, 1975. Cf., Schwelb, Egon, “The implementation of the International Convention on the Elimination of All Forms of Racial Discrimination,” Report of the Fifty-fifth Conference of the International Law Association, New York, 1972, London, 1974, p. 589–590. 3 Op. cit., p. 15–16. 4 Op. cit., p. 862.

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A review of the list of countries which had members in the Committee during the decade of its existence shows the following distribution: Africa and Asia, Latin America, Western European and others, Communist States,

11; 4; 8; 6.

The Committee has had until now five chairmen, nationals of the following States Parties: India (1970–1971); Ecuador (1972–1973); Nigeria (1974–1975); Netherlands (1976–1977), and Ghana (1978–1979). The fifteen vice-chairmanships were distributed as follows: Nigeria (two periods), Costa Rica, Poland, France, Czechoslovakia, Yugoslavia, Argentina (two periods), Canada, ussr (two periods), Ghana, Panama and the Federal Republic of Germany. The Iranian expert was elected vice-chairman in 1979. As indicated, the expert from Kuwait was the Rapporteur of the Committee from 1970 to 1979 when he was succeeded by Professor Partsch. In view of the variety of geographic areas and political systems to which the members of the Committee belong, it should be stressed that the work of the Committee was remarkably harmonious. The reports to the General Assembly, and the summary records released for general circulation show that even those debates in which conflicting political or philosophical views were expressed seldom acquired the tones frequent in other international bodies. There have been, however, some instances of confrontation. Membership of the Committee at the beginning of 1979 was a follows: Name of member

Country

Year of election

Mr. Yuli Bahnev Mr. Pedro Brin Martinez Mr. Rajeshwar Dayal Mr. André Dechezelles Mr. Silvo Devetak Mr. Abdel Moneim M. Ghoneim Mr. Ousmane Goundiam Mr. Christopher O. Hollist5 Mr. George O. Lamptey

Bulgaria Panama India France Yugoslavia Egypt Senegal Nigeria Ghana

1976 1976 1970 1976 1976 1978 1978 1976 1974

5 Mr. Hollist died in March 1979.

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Composition Of The Committee

Name of member

Country

Year of election

Mr. Mohied-Din-Nabavi Mr. Evgeny N. Nasinovsky Mr. Erik Nettel Mr. Karl Josef Partsch Mr. Fayez A. Sayegh Mr. Agha Shahi Mr. Georges Tenekides Mr. Luis Valencia Rodriguez Mr. Federico Videla Escalada

Iran ussr Austria f.r. of Germany Kuwait Pakistan Greece Ecuador Argentina

1976 1976 1976 1970 1970 1978 1978 1970 1976

On five occasions “casual vacancies,” four as a result of resignation and one because of death, were filled, in accordance with the provisions of Article 8.5(b) and the Committee’s rules of procedure.

part 5 Status of the Convention

∵

1

Signatures, Ratifications and Accessions

The Convention was opened for signature in New York on 7 March 1966. On that day it was signed by the representatives of nine Member States—Brazil, Byelorussia, Central African Republic, Greece, Israel, Philippines, Poland, Ukraine and the Soviet Union. The Convention entered into force on 4 January 1969, thirty days after the twenty-seventh instrument of ratification or accession was deposited, that of Poland. The procedures for entry into force were only completed on 13 March 1969, after the ninety-day period to which Article 20, paragraph 1 refers, had elapsed. As of 11 July 1979, 104 States have agreed to be bound by the Convention. They are: Algeria, Argentina, Australia, Austria, Bahamas, Bangla Desh, Barbados, Belgium, Bolivia, Botswana, Brazil, Bulgaria, Burundi, Byelorussia, Canada, Central African Empire, Chad, Chile, Costa Rica, Cuba, Cyprus, Czechoslovakia, Democratic Yemen, Denmark, Ecuador, Egypt, Ethiopia, Fiji, Finland, France, Gambia, German Democratic Republic, Federal Republic of Germany,1 Ghana, Greece, Guinea, Guyana, Haiti, Holy See, Hungary, Iceland, India, Iran, Iraq, Israel, Italy, Ivory Coast, Jamaica, Jordan, Kuwait, Lao People’s Democratic Republic, Lebanon, Lesotho, Liberia, Libya, Luxembourg, Madagascar, Mali, Malta, Mauritius, Mexico, Mongolia, Morocco, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Pakistan, Panama, Peru, Philippines, Poland, Qatar, Republic of Korea, Romania, Rwanda, Senegal, Seychelles, Sierra Leone, Somalia, Spain, Sudan, Swaziland, Sweden, Syria, Togo, Tonga, Trinidad and Tobago, Tunisia, Ukraine, ussr, United Arab Emirates, United Kingdom, United Republic of Cameroon, United Republic of Tanzania, Upper Volta, Uruguay, Venezuela, Yugoslavia, Zaire and Zambia. China is not listed among the States that signed and ratified the Convention. The Republic of China had signed it on 31 March 1966 and ratified it on 10 December 1970. Bulgaria, Mongolia, Byelorussia, Ukraine and the ussr 1 In a note accompanying the instrument of ratification, the Government of the Federal Republic of Germany declared that the Convention “shall also apply to Land Berlin.” The Governments of Bulgaria, Czechoslovakia, Mongolia, Poland, Ukraine and the ussr, as well as that of the German Democratic Republic, objected to that declaration, on the ground that West Berlin is not territory of the Federal Republic of Germany. Cfr., United Nations, Multilateral Treaties in Respect of which the Secretary-General Performs Depositary Functions, List of Signatures, Ratifications, Accessions, etc. as at 31 December 1977, New York, 1978, (ST/LEG/SER.D/11), p. 89.

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objected to that signature and ratification. General Assembly Resolution 2758 (XXVI) recognized the representatives of the People’s Republic of China as the only legitimate representative of China to the United Nations. On 29 September 1972, the Minister for Foreign Affairs of the People’s Republic of China notified the Secretary-General that the signature of, ratification of, or accession to, any multilateral treaties by “the Chiang Kai-shek clique” were “illegal and null and void.” 2

Declarations and Reservations

Upon signature or upon ratification, many States Parties formulated declarations and reservations regarding different articles of the Convention, mainly Articles 22 and 4.2 Australia declared that it is not at present in a position to treat specifically as offences all matters covered by Article 4 (a). It is the intention of its government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of that article. Austria considered that through the measures specifically described in Article 4, the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association should not be jeopardized. Bahamas interpreted Article 4 as requiring further legislative measures, only in so far as it might consider that some legislative addition to, or variation of, existing law and practice is necessary for the attainment of the ends specified in Article 4. Acceptance of the Convention “does not imply the acceptance of obligations going beyond constitutional limits nor the acceptance of any obligations to introduce judicial processes beyond these prescribed under the Constitution.” Barbados also stated that accession to the Convention does not imply the acceptance of obligations going beyond constitutional limits, nor the acceptance of any obligations to introduce judicial processes beyond those provided in the Constitution. It also interpreted Article 4 as requiring enactment of measures only where it is considered necessary. Belgium stated that the obligations imposed by Article 4 must be reconciled with the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association.

2 For the full text of the reservations and declarations mentioned in this chapter, loc. cit., p. 88 and ff.

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Bulgaria, Byelorussia, Cuba, Czechoslovakia, Democratic Yemen, the German Democratic Republic, Hungary, Mongolia, Romania, Ukraine and the ussr formulated reservations to Article 17, considering it to be “of a discriminatory nature,” since by it a number of States are deprived of “the opportunity to become Parties to the Convention,” as expressed in the note from the Union of Soviet Socialist Republics. Similar wording is contained in the notes from the other listed countries, some of which cite specifically paragraph 1 of that article. Bulgaria, Cuba, Democratic Yemen, Hungary and Romania also mention Article 18 as being discriminatory. Article 22 of the Convention stated that any dispute between two or more States Parties with respect to the interpretation or application of the Convention is, at the request of any of the parties to the dispute, to be referred to the International Court of Justice for decision. This was not accepted by many States, among them: Bulgaria, Byelorussia, Cuba, Czechoslovakia, Democratic Yemen, Egypt, German Democratic Republic, Hungary, India,3 Iraq, Kuwait, Lebanon, Libyan Arab Jamahiriya, Madagascar, Mongolia, Morocco, Nepal, Poland, Romania, Rwanda, Spain, Syria, Ukraine and the ussr. The view of these States is that, in each individual case, the consent of all parties to the dispute “is necessary for referral of the dispute to the International Court.”4 Cuba considered that such disputes “should be settled exclusively by the procedures expressly provided for in the Convention or by negotiation through the diplomatic channel between the disputants.”5 Other States, like Israel, merely do not consider themselves bound by the Article, without comments. Democratic Yemen, Egypt, Iraq, Kuwait, Libya, Syria and the United Arab Emirates stated that their respective acts of signature of or accession to the Convention “shall in no way signify recognition of Israel or entry into a relationship with it regarding any matter regulated by the said Convention.”6 Reacting in each case to these declarations, the government of Israel expressed the view that the Convention was “not the proper place for making such political pronouncements” and that such declarations cannot affect the obligations of the respective States existing under general international law, or under 3 Pakistan notified the Secretary-General that it did not accept the Indian reservation. 4 Statement by the ussr, “Multilateral treaties…” p. 97. A similar wording is used by the other governments mentioned. 5 Loc. cit., p. 92. 6 Statement by Democratic Yemen, loc. cit., p. 92. A similar wording is used by the other mentioned countries.

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particular treaties. Israel will adopt—it adds—an attitude of complete reciprocity towards the mentioned States.7 Denmark had made a reservation, which it withdrew on 4 October 1972, with regard to the implementation of the Convention on the Faroe Islands. Fiji, in its notification of succession,8 redrafted the reservation and declarations formulated on its behalf by the Government of the United Kingdom. It reserved the right not to implement Article 5(c), Article 5(d) (v) and Articles 2, 3, or 5(e) (v) to the extent, if any, that its own legislation fulfills the obligations referred to in those provisions; it interpreted Article 4 as requiring a Party to adopt further legislative measures only in so far as it may consider that some legislative addition to, or variation of, existing law and practice is “necessary for the attainment of the end specified” in Article 4; it submitted an interpretation on the requirement in Article 6 concerning “reparation or satisfaction”; it also interpreted Article 20 and the other related provisions of Part III as meaning that, if a reservation is not accepted, the State making the reservation does not become a Party to the Convention. Finally, it maintained the view that Article 15 discriminates between States with dependent territories and those without them. France interpreted Article 4 as “releasing the States Parties from the obligation to enact anti-discrimination legislation which is incompatible with freedom of opinion and expression and of peaceful assembly and association.” With regard to Article 6, it declared that the question of remedy through tribunals is governed by the rules of ordinary law and, with regard to Article 15, France’s accession to the Convention “may not be interpreted as implying any change in its position” regarding Resolution 1514 (XV).9 Guyana, as well as Jamaica, interpreted the Convention as neither imposing any obligation upon States Parties, going beyond their constitutional limits, nor requiring the introduction of judicial processes beyond those prescribed under their Constitutions. Italy made a declaration10 to the effect that the positive measures provided for in Article 4 must not 7

8 9 10

Letter from Israel to the Secretary-General dated 12 February 1973, loc. cit., p. 92. Identical letters refer to the other reservations concerning Israel. The inclusion of the letters from Israel—not a State Party at that stage—in an official document of the u.n. Division of Human Rights was objected to by members of the Committee (CERD/C/SR. 269 and 270). Loc. cit., p. 93. Loc. cit., p. 93. Loc. cit., p. 94.

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jeopardize the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association…[Italy] remains faithful to the principle laid down in Article 29(2) of the Universal Declaration, which provides that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” The Italian declaration states also that the effective remedies mentioned in Article 6 will be assured to everyone by the ordinary courts within the framework of their respective jurisdiction. Claims for reparation for any damage suffered as a result of acts of racial discrimination must be brought against the persons responsible for the malicious or criminal acts which caused such damage. Malta interpreted Article 4 as requiring a Party to adopt further measures in the fields covered by it, should the Party consider, with due regard to the principles of the Universal Declaration and the rights set forth in Article 5, that the need arises for enacting “ad hoc” legislation, in addition to, or, as variation of, existing law and practice to end any act of racial discrimination. Malta also interpreted the requirements in Article 6 concerning “reparation or satisfaction” as being fulfilled if one or other of these forms of redress is made available. “Satisfaction” includes “any form of redress effective to bring the discriminatory conduct to an end.”11 Nepal interpreted Articles 4 and 6 in the same way as Malta. As indicated above, it does not consider itself bound by the provision of Article 22. Tonga had registered reservations to Article 5(c), in so far as it relates to elections, and to Articles 5(d) (v) and 2, 3, and 5(e) (v). By a notification dated 28 October 1977 it withdrew those reservations, except the one relating to Article 5(d) (v). It thus reserved the right not to apply Article 5(d) (v), to the extent that any law relating to land in Tonga which prohibits or restricts the alienation of land by the indigenous inhabitants, may not fulfill the obligations determined by the Convention. Tonga also made a declaration interpreting Article 4 as requiring a party to adopt further legislative measures, only in so far as it may consider that some legislative addition or variation is necessary for the attainment of the end specified in Article 4. It interpreted Article 6 similarly to Malta. It also interpreted Article 20 and the whole of Part III of the 11

Loc. cit., p. 95.

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Convention as meaning that, if a reservation is not accepted, the State making it does not become a Party to the Convention. Tonga maintained its position in regard to Article 15, considering it discriminatory and purporting to establish a procedure applicable to the dependent territories of States, whether or not those States have become parties to the Convention.12 The United Kingdom, on signature, formulated a reservation and interpretative statements.13 In the circumstances deriving from “the usurpation of power in Rhodesia,” the United Kingdom reserves the right not to apply the Convention to Rhodesia, until it is in “a position to ensure that the obligations imposed by the Convention in respect of that territory can be fully implemented.” The United Kingdom interprets Article 4 as requiring a Party to the Convention to adopt further legislative measures in the fields covered by sub-paragraphs (a), (b) and (c) of that article only in so far as it may consider with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention (in particular the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association) that some legislative addition to or variation of existing law and practice in those fields is necessary for the attainment of the end specified in the earlier part of Article 4. Further, the United Kingdom interprets the requirement in Article 6 concerning “reparation or satisfaction” as being fulfilled if one or other of these forms of redress is made available and interprets “satisfaction” as including any form of redress effective to bring the discriminatory conduct to an end. In addition it interprets Article 20 and the other related provisions of Part III of the Convention as meaning that if a reservation is not accepted the State making the reservation does not become a Party to the Convention. The United Kingdom maintains that Article 15 is discriminatory in that it establishes a procedure for the receipt of petitions relating to dependent territories while making no comparable provision for States without such territories. Moreover, the article purports to establish a procedure applicable to the dependent territories of States whether or not those states have become parties to the Convention. The United Kingdom

12 13

Loc. cit., p. 96–97. Loc. cit., p. 97–98.

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signed the Convention, these objections notwithstanding, because of the importance of the Convention as a whole. On ratification, the United Kingdom stated that it does not regard the Commonwealth Immigrants Acts, 1962 and 1968, or their application, as involving any racial discrimination within the meaning of paragraph 1 of Article 1, or any other provision of the Convention, and fully reserves its right to continue to apply those Acts. The United Kingdom also formulated reservations on behalf of Fiji, which were later redrafted by Fiji in its notification of succession, as noted above. The United States of America, in pointing out that its Constitution contains provisions for the protection of individual rights, such as the right of free speech, stated that “nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States of America incompatible with the provisions of the Constitution of the United States of America.”14 cerd discussed on several occasions the criteria for determining the differences between a reservation and a declaration. In 1976, at the thirteenth session of the Committee, the representative of the Secretary-General read out a reply received from the Office of Legal Affairs to questions raised by members of the Committee, concerning the legal effects of reservations and declarations by States Parties. When a treaty, like the Convention, provided for a specific procedure to be applied in respect of reservations, the SecretaryGeneral had to try to determine whether the respective statement would result in expanding or diminishing the scope of the treaty. In the latter case it should be regarded as a reservation. The Secretary-General would not necessarily abide by the description given by the State concerned: he might have to explore the substance of the matter and ask for clarifications from the government. A mere statement or a declaration of interpretation which had not been subjected to the procedure prescribed in Article 20 of the Convention, did not constitute a reservation and could not have the effect of modifying the legal status of the Convention.15 The Office of Legal Affairs made it clear that a decision—even a unanimous decision—of the Committee, declaring unacceptable a reservation which had been accepted at the conclusion of the procedure provided for by Article 20, 14 15

Loc. cit., p. 98. CERD/C/SR.296, p. 216–218.

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had no legal effect, since the Committee was not a representative organ of the States Parties.16 Reservations can be formulated only at the time of signature, ratification or accession. A reservation made at the time of signature has to be confirmed at the time of ratification.17 3

Declarations on the Optional Procedure (Article 14)

Up to the closing date of the eighteenth session of the Committee (11 August 1978), seven of the States Parties to the Convention—Costa Rica, Ecuador, Italy, Netherlands,18 Norway, Sweden and Uruguay—had made the declaration envisaged in Article 14, paragraph 1, on the communications from individuals or groups of individuals within the jurisdiction of a State Party “claiming to be victims of a violation by that State Party of any of the rights set forth in the Convention.” Norway and Sweden made that declaration “with the reservation that the Committee shall not consider any communication from an individual or group of individuals unless the Committee has ascertained that the same matter is not being examined or has not been examined under another procedure of international investigation or settlement.”19 A similar stand was taken by Italy, in its declaration dated 5 May 1978. The fact that ten years after the Convention entered into force, optional Article 14 is still not in effect, reflects the reluctance shown by a majority of State Parties to permit individuals and non-governmental organizations to play a role in the implementation of the Convention. The lack of progress in this respect is particularly obvious when compared to the fact that the Optional Protocol to the Covenant on Civil and Political Rights came into force simultaneously with the Covenant. At its ninth session, in 1974, when the Committee considered the item entitled “Decade for Action to Combat Racism and Racial Discrimination,” during the discussion on a draft proposal containing recommendations to the General Assembly on steps relating to the Decade, the Netherlands expert submitted an amendment which, in its revised form, reads as follows: 16 17 18 19

Ibid. Ibid. For the discussion in the Committee on the document of the Office of Legal Affairs, A/33/18, par. 370–377. Netherlands made the declaration for the Kingdom in Europe, Surinam and the Netherlands Antilles. For the declarations and the reservations, “Multilateral treaties…” p. 98.

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(d) To draw the attention of States Parties to the Convention to the usefulness of the implementation of Article 14 as one of the means of promoting the effectiveness of the Convention. The amendment was opposed by several experts,20 who argued that the Committee was not entitled to pressure States Parties into making a “controversial” declaration that was only optional. Some of the opponents also held the view that the Decade “was aimed at combating mass infringements of human rights and discriminatory State policies and that the amendment of Mr. Kapteyn diverted attention from that major goal and did not contribute to the aims of the Decade.”21 The author of the original proposal was particularly vehement in his objections to the amendment, which, he said, “served the cause of all those who wanted to perpetuate colonialism, racism and racial discrimination and who wanted the Committee to interfere in the internal affairs of sovereign States.”22 The amendment was finally approved by seven votes to two, with three abstentions. Those supporting it stressed that the de facto elimination of racial discrimination “could be achieved only after individuals or groups of individuals were able to address communications claiming to be victims of racial discrimination.”23 They also pointed out that the Committee was duty bound to promote the implementation of the Convention to the fullest extent. We have dealt in Part IV, Chapter V with the General Assembly resolutions in this respect. 20 21 22 23

The author of the proposal, the ussr expert Mr. Safronchuk, withdrew it because of the amendment, but the proposal was reintroduced by other members. For a summary of the discussion, A/9618, par. 49. CERD/C/SR/222, p. 243. A/9618, par. 49.

part 6 The Impact of the Convention

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chapter 1

At the National Level The impact of an international legal instrument can be measured by two elements: one is its universality, i.e. the degree to which it is accepted by a large number of States and by world public opinion as a whole. The second factor is the readiness of States that have ratified a particular convention, or acceded to it, to implement its provisions, incorporating them when necessary into their domestic legislation, each State according to its system of law. From both viewpoints the record of the Convention on Racial Discrimination seems to be reasonably satisfactory. More than one hundred States, about twothirds of all independent nations, from all areas of the world and representing different legal and political philosophies, have become parties to the Convention, which can therefore be described as “a common denominator of the diverse cultural and social traditions of all nations, a common ground on which all can meet and work in unison. Amidst limitless variety, nations, including those which otherwise pursue divergent aims, can find—and have found—in their common commitment to the goal of eliminating racial discrimination a rare occasion for unanimity.”1 As pointed out by Hernán Santa Cruz,2 the principal responsibility in the struggle for the eradication of racial discrimination rests, within their respective territories, on governments themselves. Individual governments of States that have undertaken obligations to that effect under international instruments, have to take the pertinent steps to translate those obligations into domestic legislation. As to the fulfillment of the obligations incumbent upon States Parties to the Racial Convention, a large number of them have made efforts to implement all or at least part of those obligations, in some cases overcoming legal difficulties. 1 Statement of the Committee on the Elimination of Racial Discrimination at the World Conference to Combat Racism and Racial Discrimination, A/33/18, Annex V, p. 108. 2 Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, in his Study on Racial Discrimination, revised and updated version, 1976 (E/CN.4/Sub.2/370/Rev.1. Sales No. E, 76, XIV, 2). There are significant differences between this edition and the first one, published in 1971. The new edition puts almost exclusive emphasis on discrimination based on colour, and omitted the chapter that dealt, in the first edition, with the danger of the revival of nazism and racial intolerance. The rapporteur acted in accordance with his new terms of reference, but pointed out the need to explore the problem of the revival of nazism and fascism (p. vi).

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As summarized in the statement of the Committee already mentioned,3 those obligations—in each case “with due regard” to fundamental human rights such as freedom of expression, opinion and association—cover a wide spectrum of duties. First of all, States Parties have to ensure that all public authorities and institutions behave in conformity with the principles of the Convention, and that its laws and institutions do not create or perpetuate racial discrimination. States are requested to prohibit acts of racial discrimination perpetrated by any person or group, to guarantee the right of everyone to equality before the law in the enjoyment of fundamental human rights, and to ensure such equality also in practice. To that end, States Parties undertook to assure effective protection and remedies for everyone within their jurisdiction. States Parties have also to prevent the dissemination of racist ideas and incitement to racial discrimination or violence by individuals or organizations, and they have to make the necessary adjustments to that effect in their penal law. This involves legal problems for some State Parties, particularly those where national constitutions or juridical traditions prohibit the placement of restrictions upon the freedoms of opinion, expression, assembly and association. The adoption of the Convention and consequent steps prove that both groups of fundamental rights and freedoms are not irreconcilable. Legislation enacted by many States, as reported to the Committee, shows the extent to which States Parties have been ready to indulge in an effort to live up to expectations in this respect. Some of those legal steps will be summarized later. The “immediate and effective measures, particularly in the fields of teaching, education, culture and information,” that States Parties have to adopt, according to Article 7, with a view to combating prejudices and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, are by nature not controversial, and many States have reported steps in these fields. The character of those steps depends in general on the political philosophy prevailing in each State, the composition of its population, and the situation with regard to inter-group relations. In the view of some State Parties, the position taken by the Committee with regard to measures it expects States Parties to take in the realm of foreign policy, vis-à-vis racist regimes, was controversial. In several national reports, the competence of the Committee to review the international relations of States Parties was questioned. The question of minorities,4 migrant workers and measures to be taken for the purpose of guaranteeing certain groups full and equal enjoyment of 3 A/33/18, Annex. V., p. 110 and ff. 4 Questions concerning minorities occupied the Committee on many occasions and even engendered harsh controversy among members. Such a clash took place when the fourth

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fundamental rights—as prescribed in Article 1.4 and Article 2.2—are also, as reflected in the national reports, an indication of the impact of the Convention upon the international community. Several States Parties have reported developments in this respect, in connection with the situation of indigenous populations, protection of migrant workers, or equality between nationals and non-nationals, the latter subject engendering some controversy. Several States Parties, particularly members of the eec, considered that privileges granted their nationals on a reciprocal basis are legitimate, and members of the Committee shared this correct approach.5 In the following pages, we will summarize legislative and other measures taken by many States Parties in order to adjust their legal systems to the requirements of the Convention. Reference will also be made to matters raised during the discussions on the periodic reports submitted by several States Parties.6 Argentina In its fifth periodic report,7 Argentina informed the Committee that, “subsequent to the ratification of the Convention,” the present Argentine Criminal Code, enacted by Law no. 21,338, treats as an offence “any deprivation of personal freedom on ground of race, and considers murder committed for reasons of

periodic report of Bulgaria was discussed (CERD/C/SR.296 and 297). There was a “wide divergence of views among some members…regarding their interpretation of the aims and objectives of the Convention with regard to minorities” (A/31/18, par. 176). See also, discussion on minorities in Austria, CERD/C/SR.273. Francesco Capotorti, in his Study on the Rights of Persons Belonging to Ethnic, Religious or Linguistic Minorities (E/CN.4/Sub.2/384 and addenda), deals briefly with the Convention’s treatment of the minorities problem (Add.2, par. 72). 5 Cfr., Partsch, Karl Joseph, “Les principes de base des droits de l’Homme: l’autodétermination, l’égalité et la non-discrimination,” in Les dimensions internationales des Droits de l’Homme, ed. Karel Vasak, Paris, unesco, 1978, pp. 86–87, and “Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights,” Texas International Law Journal, 14.2, Spring 1979, p. 228. Also, on group rights, Yoram Dinstein, “On collective Human Rights of Peoples and Minorities,” 25 International and Comparative Law quarterly 102–120 (1976). 6 For domestic legislation against racial discrimination, as well as the factual situation in this respect all over the world, see Santa Cruz, op. cit., p. 47 and ff., and Marc Bossuyt, L’interdiction de la Discrimination dans le Droit International des Droits de l’Homme, Bruxelles, 1976, p. 41 and ff. 7 For the five periodic reports submitted by Argentina, see respectively: CERD/C/R.3/Add.1 and Add.19; CERD/C/R.30/Add.2; CERD/C/R.70/Add.20; CERD/C/R.90, Add.4, and CERD/C/20/ Add.7 and Corr. 1. For summaries of the respective discussions, A/9018, paras. 84–89; A/10018, paras. 79–82, and A/33/18, paras. 244–251.

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racial hatred to be wilful homicide and increases the penalties when the reason for the offence was racial hatred.” Article 80, paragraph 4 punishes murder in such circumstances with rigorous life imprisonment, or life imprisonment. In an introductory statement, the representative of Argentina informed the Committee that a commission, presided over by a former member of cerd, had been established to prepare a reform of the Criminal Code, and that this commission was considering a text based on Article 4 of the Convention. A discussion took place on the question whether according to Article 31 of the Argentine Constitution a treaty, upon entering into force, automatically superseded laws which were not compatible with it, or whether special legislation had to be promulgated to that effect. When the second periodic report of Argentina was discussed by the Committee, some members considered the mentioned Article 80, paragraph 4, as being more restrictive in its scope than former Article 213 bis, which had been repealed. Article 213 bis, introduced in the Penal Code in 1964,8 punished participation in racist organizations, racist propaganda, and incitement to violence or acts of violence for racial or religious reasons. On different occasions, the Argentine Government has issued decrees prohibiting some anti-Semitic publications. The Argentine Government is also considering studies with a view to adopting “permanent legal norms condemning practices of racial and religious discrimination.”9 Australia In order to be able to ratify the Convention, Australia adopted the Racial Discrimination Act 1975, which came into force on 31 October 1975. This Act10 defines racial discrimination in accordance with Article 1.1 of the Convention, and the Australian government submitted to the Committee a detailed and comprehensive report, accompanied by an introductory statement by its representative before the Committee in 1977.11 Upon ratification, Australia 8 9

10

11

For its text and background, N. Lerner, The Crime of Incitement to Group Hatred, New York, 1965, pp. 46–49. Letter, dated 20 October 1978, from the Argentine Ambassador in France, Mr. Tomas J. de Anchorena, to the Director of the Department of International Affairs of the World Jewish Congress, Mr. Armand Kaplan. Cfr., A.J. Grassby, “The first two years of Australia’s Racial Discrimination Act,” Patterns of Prejudice, 11.5 London, 1977. Mr. Grassby is Australian Commissioner for Community Relations, Canberra. For the consideration of Australia’s initial report (CERD/C/R.85/Add.3) see A/32/18, paras. 161–176.

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declared that it was not at present in a position to treat as offences all matters covered by Article 4(a) of the Convention,12 but that some of them were declared unlawful in Sections 16 and 17 of the 1975 Act. The Act prohibits discrimination on the grounds of race, colour, ethnic background, or place of birth, and provides machinery for complaints to be received, assessed, investigated and resolved, preferably by conciliation. In less than two years of the Act being in force about 700 complaints have been received and investigated from people of 50 different backgrounds. The complaints covered a very wide range of discrimination and also revealed the existence of long-term endemic racial discrimination, particularly against aboriginal people against whom there is no doubt the greatest body of discrimination. A Commissioner for Community Relations, the Australian Commission on Human Rights, and the Ethnic Affairs Council, are in charge of the implementation of the anti-discrimination measures. Austria Three periodic reports submitted to the Committee13 provide detailed information on the steps taken by the Austrian Government in order to comply with the provisions of the Convention. The 1973 Federal Constitutional Act to Implement the International Convention on the Elimination of All Forms of Racial Discrimination14 prohibits racial discrimination in any form and, since Austria considered that not all the provisions of the Convention were self-executing, it felt it necessary to implement certain articles, such as Articles 2.4 and 5, through the adoption of specific legislation. A rule to meet the requirement of Article 5, paragraph (f) of the Convention became effective on 18 May 1977, stating that Anyone who in public discriminates unjustly against a person or prevents his access to any place or service intended for use by the general public 12 See, supra, Part V, p. 156. 13 CERD/C/R.50/Add.6, CERD/C/R.77/Add.4 and CERD/C/19. For their consideration by the Committee, A/9618, paras. 130–137, A/31/18, paras. 50–57 and A/33/18, paras. 118–127, respectively. 14 For its text, CERD/C/R.77/Add.4.

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exclusively on the ground of his race, colour, national or ethnic origin or religion commits an offence punishable by administrative authorities.15 Austria made a declaration with regard to Article 4, concerning the need not to jeopardize the freedoms of opinion, expression, peaceful assembly and association. It therefore interpreted Article 4 not as an obligation to enact general legal rules, declaring illegal and prohibiting racist organizations and their activities, but rather to make adequate legal provision “so as to be able in a given case where such organizations or activities actually exist to declare them illegal and prohibit them.”16 Section 283 of the new Criminal Code that entered into force in Austria on 1 January 1975, was seen as covering part of the obligations imposed by Article 4, but members of the Committee expressed doubts as to whether the existing legislation satisfied all the requirements of that Article. The existence of some neo-Nazi organizations was pointed out. In this connection during the discussion of Austria’s initial report, the representative of its government explained, with regard to the mentioned Section 283, amending the Prohibition of Nazism Act, that the term “nazism” was interpreted in his country in its generic sense, and included all totalitarian ideologies based on the concept of racial superiority.17 The Austrian Government holds the view that organizations which promote and incite racial discrimination cannot be declared illegal before they engage in illegal acts. Other subjects raised during the discussion of Austria’s periodic reports were the situation of minorities and the status and rights of aliens. The Austrian representative recognized that the privileged position accorded to German-speaking aliens was in conflict with the Convention, and “would eventually be repealed.”18 Belgium Belgium’s initial report19 was discussed by the Committee in 1978.20 Its second periodic report21 updates the information contained in the first one, and provides 15

For the discussion on this rule, and the meaning of some of its terms, like “discriminates unjustly” and “exclusively,” see A/33/18, par. 120. 16 CERD/C/19, p. 3. 17 A/9618, par. 136. 18 A/31/18, par. 56. See, also, CERD/C/SR.273. 19 CERD/C/R.85/Add.5. 20 See A/33/18, paras. 92–195. 21 CERD/C/16/Add.2. For its discussion, see CERD/C/SR.423 and 424.

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information requested by the members of the Committee. Upon ratification, Belgium had deposited a statement of interpretation regarding Article 4 and the need to reconcile it with freedom of opinion, expression, peaceful assembly and association. According to a decision handed down by the Belgian Court of Cassation, on 27 May 1971,22 where there is a conflict between a rule of domestic law and a rule of international law which has direct effects in the internal order of the country, the rule established by the treaty must prevail.” But the possibility of invoking the Convention before the Belgian courts would depend on the extent to which the domestic courts would consider the respective articles of the Convention to be self-executing, “a question which has so far remained academic.”23 In any case, a Government amendment to the Bill concerning the Prevention and Punishment of Certain Acts Prompted by Racism or Xenophobia, was submitted before ratification of the Convention with a view to bringing Belgian legislation into line with the obligations about to be assumed. The amendment has not yet been adopted. Belgian’s second periodic report notes that various petitions submitted to organs established by the European Convention on Human Rights, were related to problems of a linguistic nature and had no connection with any racial or ethnic consideration. Positive measures as requested by the Convention were “steadily being developed.” The position of migrant workers was taken care of, including steps intended to satisfy their religious needs. The Belgian Government intends to adopt measures against those committing clear-cut offences of a racist nature, and against individual members of “racist” organizations, instead of the prohibition of such groups themselves. Measures in the fields of education and culture were contemplated. With regard to remarks made by members of the Committee on the question of relations with racist regimes, the Belgian Government does not consider the Convention to give the Committee the authority to examine the foreign relations of States… The review which the Committee should conduct…is juridical in nature and consists essentially in verifying the extent to which the various articles of the Convention are being implemented both in the legal system and in the domestic practice of the States concerned.24

22 23 24

Case “Fromagerie Franco-Suisse le Ski.” CERD/C/16/Add.2, p. 18. Loc. cit., p. 25.

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Bulgaria Bulgaria was the first country to ratify the Convention. It has already submitted five periodic reports,25 and with regard to one of them it was said in the Committee that it “demonstrated the influence of the Convention on the development of domestic legislation in a State Party.”26 The 1971 Constitution of the People’s Republic of Bulgaria “satisfied the Republic’s international obligations in the field of the protection of human rights, including obligations stemming from the…Convention.”27 Article 65 of the Constitution extends the right of political asylum to the opponents of racial discrimination. Following the ratification by Bulgaria of the International Convention on the Suppression and Punishment of the Crime of Apartheid, special provisions were included in the Criminal Code, affording legal protection against the crime of apartheid. Canada The new Canadian Human Rights Act adopted in 1977, and the setting up of the Canadian Human Rights Commission, were important steps taken by the Canadian Federal Government “to bring racial discrimination to an end.”28 Various citizens groups “have contributed their efforts to the realization of the objectives of the International Convention on the Elimination of All Forms of Racial Discrimination.”29 The new Act establishes a comprehensive set of rules against discrimination at the federal level, expands the existing protection against discriminatory practices in employment and services, and provides for protection and remedies, through the Commission, against acts of racial discrimination. Special measures have been adopted to help overcome the disadvantages suffered by native peoples, including assistance in expanding the use of native languages, 25 CERD/C/R.3/Add.7, CERD/C/R.30/Add.12, CERD/C/R.70/Add.25, CERD/C/R.90/Add.9 and CERD/C/20/Add.19. For their discussion, see A/9018, paras. 145–151, A/9618, par. 240, A/31/18, paras. 172–177, and CERD/C/SR.413 and 414. 26 A/9018, par. 146. 27 CERD/C/20/Add.19, p. 2. 28 See, fourth periodic report submitted by Canada in December 1978 (CERD/C/52). For the discussion of the initial and following periodic reports (CERD/C/R.25/Add.5, CERD/ C/R.53/Add.6 and CERD/C/R.78/Add.6), see A/9618, paras. 138–141, A/31/18, paras. 182–187, and CERD/C/SR.425 and 426. 29 CERD/C/52, p. 5.

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according to the principles of Article 2.2 of the Convention. Similar legislation has been adopted in the provinces. The fourth periodic report contains information on steps taken in the action against apartheid, and with regard to South Africa. In 1970, the Criminal Code was amended to prohibit hate propaganda. When Canada’s third periodic report was discussed by the Committee, some of its members expressed the view that the requirements of Article 4 of the Convention have not been met by legislative measures taken in Canada, at the Federal and provincial level. Otherwise, the Committee took note with appreciation of the extensive information provided. Chile The Committee’s consideration of the four periodic reports submitted by Chile30 engendered an interesting debate on the link between violations of human rights in general, and racial discrimination in particular, with members of the Committee voicing the view that racial discrimination could be eliminated only when there was respect for human rights in general.31 The majority of Committee members did not support a proposal to defer the examination of Chile’s report until the general situation in the field of human rights in the country had improved, since in their view violations of human rights only fall within the purview of the Committee when they constitute racial discrimination as defined in the Convention. When the Committee discussed the third periodic report submitted by Chile, the Chairman recalled that a majority of members of the Committee had expressed fear that the general situation in the country “presented a serious obstacle to the fulfilment of the obligations of Chile” under the Convention.32

Costa Rica

With a view to establishing a legal basis for subsequent legislation giving effect to the provisions of the Convention, a constitutional amendment was 30 31 32

CERD/C/R.33/Add.5, CERD/C/R.65/Add.4 and Add.5, CERD/C/R.88/Add.5 and Add.7, and CERD/C/18/Add.2 and Add.5. For the discussion on the periodic reports submitted by Chile, see A/9018, paras. 269–273, A/10018, paras. 159–165, A/32/18, paras. 68–79, and CERD/C/SR.424 and 425. A/32/18, par. 79.

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promulgated in Costa Rica under Act no. 4123 of 1968. In 1974 Costa Rica made the declaration regarding Article 14 of the Convention.33 Cuba Cuba adopted a new Constitution in 1976, which “guaranteed to all citizens the rights set forth in the Convention.34 Article 41 prohibits discrimination on the grounds of race, color, sex or national origin. The Migration Act and the Alien Status Act grant protection to foreigners, and the Associations Act makes it possible to order the suspension or dissolution of associations that might engage in activities such as those prohibited by Article 4 of the Convention. Cyprus Cyprus has already submitted its fifth periodic report, the first one for general distribution.35 In Part 4, Chapter 4, reference was made to the situation prevailing as a consequence of the conflict between Cyprus and Turkey. Cyprus ratified the Convention by Law no. 12 of 1967 which “made it part of the municipal law of Cyprus and made its implementation mandatory.” Denmark A Committee of experts was set up in 1966, to consider what statutory amendments would be necessary for ratification of the Convention by Denmark. In 1969 the Committee presented a detailed report and, in accordance with its recommendations, Act no. 288 and Act no. 289 were enacted in 1971, amending existing legislation in order to bring Danish law into conformity with the 33 34

35

For the discussion of the periodic reports submitted by Costa Rica, see A/9018, paras. 134–137 and A/9618, paras. 173–177. Statement by the Cuban representative, CERD/C/SR.350, p. 110. For the consideration of the three periodic reports submitted by Cuba, see A/9618, paras. 97–98, A/31/18, paras. 158–165 and A/32/18, paras. 312–320. For the initial and periodic reports submitted by Cyprus, see CERD/C/R.3/Add.21, Add.46 and Add.55, CERD/C/R.30/Add.35, CERD/C/R.70/Add.21 and Add.36, CERD/C/R.90/ Add.6 and CERD/C/20/Add.6. For their discussion, A/9018, paras. 152–156, A/10018, paras. 87–90, A/31/18 and Corr. 1, paras. 63–68, A/32/18, paras. 321–323, and A/33/18, paras. 347–359.

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requirements of Articles 4 and 5 of the Convention.36 There have been some cases of convictions under Act no. 289. Denmark also took measures to apply Article 6 of the Convention. Members of the Committee praised the manner in which Denmark had discharged its responsibilities under the Convention, particularly the way in which the Convention was being applied with regard to minorities and to Greenland.37 Some criticism regarding privileges for nationals from other Nordic countries was voiced in the Committee. Ecuador In a note dated 27 March 1972, commenting on General Recommendations I and II adopted by the Committee, the Minister for Foreign Affairs of Ecuador stated that, when his country deposited its instrument of ratification, it incorporated the rules contained in the Convention extensively in its legislation.38 It was considered that there was no need, therefore, to adopt additional legislative measures in order to ensure complete compliance with the Convention. During the consideration of the four periodic reports submitted by Ecuador, the Committee was informed about new steps concerning racial discrimination, including Articles 211 to 215 of the preliminary draft of the new Penal Code, penalizing offences in the field of racial discrimination, particularly those covered by Article 4 of the Convention. Taking into account comments made during the Committee’s discussion on the periodic reports, Ecuador is considering amending the wording of the draft.39 Egypt The Legislative Office of Egypt reported to the Committee that a new draft Criminal Code under preparation will “ensure the proscription of all acts 36 37

38 39

A/9018, paras. 303–307, discussion on the initial report CERD/C/R.50/Add.3). A/10018, paras. 94–99 and CERD/C/SR.236, reflecting the discussion on the second periodic report submitted by Denmark (CERD/C/R.77/Add.2). For the discussion of the third periodic report, see A/32/18, paras. 229–237. On 1 May 1979, the Home Rule Act entered into force in Greenland. For the Greenland regime, Isi Foighel, “Home Rule in Greenland 1979,” Nordisk Tidsskrift for International Ret, Vol. 48, 1979, Fasc. 1–2, pp. 4–14. A/8718, pp. 62–63. A/9018, paras. 104–109, A/9618, paras. 127–129, and A/13/18, paras. 222–227.

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of racial discrimination,” as called for in the Convention.40 The Egyptian government, in implementation of the provisions of Article 7 of the Convention, has prepared “an integrated plan in the field of teaching, education, culture and information dealing with topics relating to racial discrimination and the means of combating it.”41 The 1971 Constitution includes articles forbidding all forms of racial discrimination, in accordance with the Convention. Existing legislation contains provisions to that effect.42 Finland Finland has already submitted four periodic reports, the last one43 for general distribution. In 1970, the Government submitted Bill no. 12/1970 to the Parliament, in order to adjust its legislation on employment to the provisions of the Convention. Additions to the Penal Code have been made in the same year to implement Article 4 of the Convention. There have been convictions in minor incidents of racial discrimination. Measures were taken to improve the housing and employment situation of two minority groups, the Lapp and Gypsy populations. The Convention has been given “wide publicity.” Finland adopted steps in relation to Southern Rhodesia, according to Security Council decisions, and strongly condemned the policy of apartheid. The Finnish Government “did not use diplomatic recognition as a political means of expressing its opinion of a particular government, because it recognized States, not governments.”44

40

Fifth Periodic report submitted by Egypt, CERD/C/20/Add.11. For the initial and subsequent periodic reports, CERD/C/R.3/Add.34, CERD/C/R.30/Add.36, CERD/C/R.70/Add.15 and CERD/C/R.90/Add.29. For the respective discussions in the Committee, see A/9018, paras. 178–182, A/32/18, paras. 271–278, and A/33/18, paras. 289–296. Egypt’s reports were praised as “exemplary” (CERD/C/SR.202, p. 33). 41 CERD/C/20/Add.24. 42 Such are Acts Nos. 34 and 37 of 1972, and Act No. 40, of 1977. For references made to them during the discussion in the Committee, see reports mentioned supra. 43 CERD/C/21. For the initial and former periodic reports, see CERD/C/R.25/Add.3, CERD/ C/R.53/Add.2, and CERD/C/R.78/Add.4. For their consideration by the Committee, A/31/18, paras. 43–46, and A/33/18, paras. 143–147. 44 A/33/18, par. 146.

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France As noted during the discussion on the initial report submitted by France, the Convention became part of the body of French law, and the principle of direct application was affirmed by the Court of Cassation, which invoked Articles 2 and 5 of the Convention in one of its decisions.45 Act no. 72–546 of 1 July 1972, was adopted in order to give effect to the Convention, and to fill certain gaps in French legislation. It defines offences specifically related to racial discrimination, such as racial defamation and insult. It no longer requires, as was previously the case, that the perpetrator of such offences should deliberately have intended to arouse hatred for a group. In 1977 the French Parliament adopted a law containing various provisions of an economic and financial nature. It introduced two new paragraphs into the Penal Code creating two new offences.46 Article 187(2) establishes that an offence shall have been committed by any civil servant, or any person associated with a mission of public service, who has contributed, “by positive action or omission,” to rendering “more difficult the exercise of any economic activity in normal conditions” for any person, on grounds relating to his national origin or to his race, religion or ethnic group. Article 416(1) creates an identical offence, specifically applicable to physically or morally responsible persons in the exercise of an economic activity of private law. The French courts have been considering cases of racial discrimination. The proceedings have been initiated by the Public Prosecutor, as well as by voluntary associations or individuals. Articles 1 and 2 of the Convention have been invoked by the courts. The authorities have launched a publicity campaign to make known the 1972 Act, thus facilitating the institution of proceedings by private organizations or persons. The Convention is to be applied in the overseas départements in the same way as in other parts of France. As to relations with racist regimes, the French representative stated before the Committee that, since France maintained official relations with States and 45

46

See A/9618, paras. 210–215, for the discussion on the initial report (CERD/C/R.33/Add.6 and Add.11). For the discussion of the second and third periodic report (CERD/C/R.65/ Add.11), see A/32/18, paras. 129–139. France’s initial report was considered the “best” submitted to the Committee (CERD/C/SR.207, p. 83). The request was made that it should be included among the documents for general distribution. See, David Ruzié, “The French anti-boycott law,” Patterns of Prejudice, 11, 4, London, 1977, pp. 4–6. The 1977 law originated from an initiative of the Movement for the Liberty of Commerce intended to ensure the freedom of economic transactions.

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not with governments, the fact that it had trade relations with South Africa could not be interpreted as conflicting with its rejection of apartheid.47 France did not consider that the preferential treatment enjoyed by certain foreign workers, as a result of reciprocal agreements with their countries of origin, involved any departure from the provisions of the Convention.48

German Democratic Republic

The German Democratic Republic submitted a comprehensive and detailed initial report and two periodic reports containing information on the implementation of the Convention.49 While no special legislation related to the Convention was enacted, the reports described measures taken in order to give effect to provisions of the Convention. During the discussion on the second periodic report, the representative of the German Democratic Republic made comments on observations and questions, including one on the need for the consent of the competent State organs to marriages between citizens of the Republic and citizens of other States. He stated that no discrimination on ethnic or racial grounds was involved in this matter.

Germany, Federal Republic of

The Federal Republic of Germany has already submitted four periodic reports to the Committee.50 In view of what a member of the Committee called “lessons from a terrible past,”51 it was not surprising that the discussions in the Committee centered to a large extent (particularly when the third and fourth periodic reports52 were considered), on the existence in the Federal Republic of Germany of racist, neo-nazi organizations, and on the decision of its 47 A/32/18, par. 139. 48 Ibid. 49 CERD/C/R.63/Add.3, CERD/C/R.87/Add.1 and CERD/C/17/Add.1, respectively. For the discussion on the reports, see A/9618, paras. 216–219, A/31/18, paras. 198–204, and CERD/C/ SR.415 and 416. 50 For their discussion, see A/9018, paras. 240–245, A/9618, paras. 227–231 and A/32/18, paras. 80–87. 51 Statement by Mr. Dayal, CERD/C/SR.212, p. 128. 52 CERD/C/R.70/Add.24–26 and CERD/C/R.90/Add.26.

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Government not to ban one particular organization, the National Democratic Party (npd). The statements made by the representative of the reporting country should be seen as an expression of the importance attached by his Government to the views voiced by members of the Committee. The debate on the subject is useful for the interpretation of the scope of Article 4 of the Convention, and the obligations it creates for States Parties. The Bonn Government interprets Article 4(a) of the Convention as meaning that dissemination of opinions of racial superiority should be punished, if they were intended to create racial discrimination or hatred. The npd officials did not make statements advocating racial discrimination, and its programme or activities did not provide a basis for a ban on the Party. The Federal Republic of Germany’s Government considered that it would be inconsistent with the principles of the rule of law and clarity of law, and with the fundamental freedom of assembly, to regard as a punishable offence mere membership of an organization which fell under Article 4(b) of the Convention, but had not yet been prohibited, unless an individual’s activities on behalf of that organization constituted a punishable offence.53 Among the twenty-one organizations prohibited in the Federal Republic of Germany, two had been banned on grounds of racial discrimination. While the Federal Republic of Germany condemned apartheid and took some steps regarding South Africa, Namibia, Southern Rhodesia and the Portuguese territories before they achieved self-determination, it did not consider that, under Article 9 of the Convention, States Parties were under any obligation to include in their reports information on relations with racist regimes. The question of the European Economic Community rules concerning the free movement of labor came up during the discussion, with some members considering them discriminatory against foreign workers from third States, a point strongly denied by other experts. In the same connection, the implications of the use of terms like “integration” and “assimilation” with regard to foreign workers were discussed. The Committee took note of measures adopted to preserve the personality of national minorities such as the Danish and the Gypsies.54 Also in the framework of the problem of freedom of movement, a member of the Committee raised the question of restrictions imposed on entry visas for Arabs, as a consequence of the massacre of Israeli athletes in Munich in 1972. The representative of the reporting State said that such measures were taken for security reasons, and no racial discrimination was involved. 53 54

CERD/C/SR.213, p. 137. The French expert (loc. cit., p. 140) affirmed that in France as well an organization could be declared illegal only if it engaged in racist propaganda. See CERD/C/SR.213 and CERD/C/SR.320 and 321.

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Ghana Ghana did not enact any new legislation to implement the Convention. A National Committee against Apartheid was inaugurated in 1970 by the Minister of Foreign Affairs. One of its aims is to ensure that Ghana complies with the Convention.55 Greece After its ratification by Legislative Decree 494/1970, the Convention became ipso facto operative in Greece. The 1975 Constitution included changes to bring some provisions in line with the Convention.56 A bill dealing specifically with crimes arising or resulting from discrimination on grounds of race or ethnic origin, and based on Article 4(a) and (b) of the Convention, has been prepared. The draft prescribes penalties for anyone who attempts, by use of the media, to incite to racial discrimination, as well as for anyone taking part in organizations which tend to disseminate propaganda about racist theories, or undertaking activities aimed at racial discrimination. Any publication of racist theories in the press or other information media is prohibited and punished. Denial of services to which they are entitled to any person or group of persons, on account of their racial or ethnic origin, carries severe penalties. The relevance of the 1923 Treaty of Lausanne to the situation of the minorities in Greece was discussed when the fourth periodic report was considered by the Committee.

Holy See

The unique character of the Holy See was naturally reflected in the reports submitted to the Committee, which accepted the view that the main contribution to be made by the Holy See was in the domain of education and formation of public opinion. Members of the Committee, after expressing the view that “mere denunciation” of racial discrimination was not sufficient, asked whether the Holy See had gone beyond that. The representative of the Holy See stated that attempts would be made to present more specific reports, despite the 55 56

Fifth periodic report submitted by Ghana, CERD/C/20/Add.16. For the four periodic reports submitted by Greece, see CERD/C/R.25/Add.1 and Add.7; CERD/ C/R.53/Add.4; CERD/C/R.78/Add.5 and CERD/C/41. For their discussion, A/8418, paras. 46–49; A/8718, paras. 62–68, A/9618, paras. 115–119; A/31/18, paras. 40–42; and CERD/C/SR.421 and 422.

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difficulty in finding examples of concrete action, which takes place in various countries rather than in the Holy See.57 Hungary A new Penal Code is currently in the process of preparation in Hungary, with particular attention being paid to whether or not there is a need for any further provision to be included with a view to preventing racial discrimination. The five periodic reports submitted by Hungary include information on existing provisions ensuring equality of rights. The fifth periodic report, which is also the first one for general distribution,58 describes, in reply to observations in the Committee, efforts for improving the situation of the Gypsy minority. Iceland By Law no. 96 of 1973 Iceland gave effect to Article 4 of the Convention, inserting Article 233a in the Penal Code. This provision, modelled upon Danish, Norwegian and Swedish laws, is intended for use against any person who, by mockery, slander, insult, threat or other means, attacks a group of persons on the grounds of their nationality, colour, race or religion. During consideration of the initial report submitted by Iceland,59 a discussion on the relationship between racial discrimination and naturalization took place. The question was raised as to whether preferential treatment accorded to certain nationalities in connection with naturalization could not be seen as discriminatory. Such a privilege is granted in Iceland to nationals of the “Nordic countries.” Iran A new penal bill came into force in Iran on 6 August 1977, prohibiting— and establishing penalties for—the propagation of ideas based on racial 57 58

59

See, A/10018, paras. 110–112 and A/32/18, paras. 210–219. CERD/C/20/Add.8. For the initial and following reports, see CERD/C/R.3/Add.47; CERD/ C/R.30/Add.18; CERD/C/R.70/Add.9; and CERD/C/R.90/Add.5. For their discussion, A/9018, par. 188–193; A/31/18 and Corr. 1, paras. 103–106; and A/33/18, paras. 260–268. For the discussion of Iceland’s reports, see A/9018, paras. 79–83; A/9618, paras. 147–150; A/31/18, paras. 236–239; and A/33/18, paras. 220–223.

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discrimination and hatred, incitement to racial discrimination by means of mass propaganda, the provision of any assistance to racial activities, including the financing thereof, and the creation or direction of—as well as membership in—an association with the intention of propagating racial discrimination, with the aim of disseminating hatred and enmity, or in order to spread discord among races and ethnic groups.60 The bill was prepared on the recommendation of the Committee and “in a spirit of co-operation and solidarity with the international community in its fight against racialism and racial discrimination throughout the world.” Replying to remarks made in the Committee on the differences between the bill and the requirements of Article 4 of the Convention, the Iranian representative pointed out that the new legislation tried to avoid misinterpretations, and to ensure “that the protection of one aspect of human rights did not have adverse side effects in other areas.”61 Iraq The Committee noted that ratification had made the Convention in Iraq “a binding national legislation”62 and that measures had been adopted to give effect to several articles of the Convention. The situation of two minorities—the Kurds and the Jews—was discussed when the Committee considered the third periodic report of Iraq.63 Iraq reported on an amendment to the Constitution and other steps relating to the status and rights of the Kurds, and about a decision of the Revolutionary Command Council, dated 26 November 1975, permitting the return of Iraqi Jews who had left the country since 1948. The representative of Iraq explained that the decision regarding the Jews had been made necessary by the fact that legislation enacted in the early 1950s had empowered the Government to deprive of his Iraqi nationality any Iraqi Jew who chose to leave the country permanently. Under the new decision, “Iraqi Jews who returned to their country would 60

61 62 63

The text of the new law is reproduced in Iran’s fifth periodic report, its first for general distribution, CERD/C/20/Add.1. For the initial and subsequent periodic reports, see CERD/C/R.3/Add.1; CERD/C/R.30/Add.3, Add.39 and Add.45; CERD/C/R.70/Add.1; and CERD/C/R.90/Add.2. For their discussion by the Committee, A/31/18, paras. 84–89 and A/33/18, paras. 172–179. A/33/18, par. 174. A/9618, par. 105. A/31/18, paras. 69–73.

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enjoy all rights the law guaranteed to other Iraqui citizens, without discrimination.” Israel Israel ratified the Convention on 3 January 1979.64 On 17 January 1979, the Knesset, the Israeli Parliament, considered a private member’s bill outlawing discrimination on grounds, inter alia, of race. The proposal was removed from the agenda after the Minister of Justice informed the Knesset that the Government will introduce a “Basic Law: Human Rights.”65 Israel does not consider itself bound by the provisions of Article 22 of The Convention. Italy Italy ratified the Convention by Act no. 654 of 13 October 1975, and is one of the countries that made the declaration accepting optional Article 14. Act no. 654 implements the provisions of Article 4 of the Convention, with some differences that were noted when the Committee discussed Italy’s initial report.66 The Italian representative stated that those differences were the consequence of the fact that it would be difficult, in Italy, to promulgate a law condemning racial discrimination as such, “since acts of racial discrimination which related solely to private affairs of individuals could not be made an offence under the Italian Penal Code.” He also explained, in connection with the implementation of Article 5, paragraph (f) of the Convention that denial of access to places or services intended for use by the general public could only be considered an offence under Italian law if it could be proved to be racially motivated.67 The Italian representative at the Third Committee of the General Assembly stated that Italy was “unlikely to impose any restriction on the press,” that might be recommended by the general guidelines for the implementation of Article 7 of the Convention. She also voiced some reservations regarding the Committee’s tendency to express itself on political issues “in terms that went beyond the scope of the Convention and the Committee’s competence.”68 64 65 66 67 68

United Nations Press Release, L/T/2580, 29 January 1979. The Jerusalem Post, 18 January 1979. For Italy’s initial report, see CERD/C/R.95/Add.1. For its discussion, A/32/18, paras. 284–294. Loc. cit., par. 294. A/C.3/33/SR.21, p. 11.

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Jamaica Jamaica’s ratification of the Convention “does not imply the acceptance of obligations going beyond the constitutional limits, nor the acceptance of any obligation to introduce judicial processes beyond those prescribed under the Constitution” of Jamaica. As interpreted by its Government, that reservation means that Jamaica does not accept an obligation to grant any right which “the Constitution does not guarantee, or which is wider in scope than a right guaranteed by the Constitution.” It does not accept an obligation to deal with breaches of recognized rights “in any other manner than that which is prescribed” in its Constitution, namely the right to apply to the Supreme Court and Court of Appeal for redress.69 Much of the discussion of the Jamaican report in the Committee revolved around that reservation. The Jamaican representative stated that its intention was not to weaken the Convention, but to avoid interpretations that might require the enactment of legislation incompatible with freedom of expression, for instance, or to guarantee certain rights not protected by the Jamaican Constitution. Members of the Committee expressed concern with regard to the reservation and its interpretation, and urged the Government of Jamaica to reconsider its position on the implementation of the mandatory requirements of the Convention, such as Article 4. Several provisions of the Jamaican Constitution were seen as being inconsistent with the requirements of the Convention.70 Lesotho In order to give effect to the provisions of the Convention, Lesotho—an enclave in South Africa—enacted the Race Relations Order no. 40 of 1971. It prohibits discrimination on racial grounds in places of public resort, in public services and related matters.71 69

70 71

See Third periodic report, its first for general distribution, submitted by Jamaica (CERD/C/23, p. 2). For the discussion on the initial report (CERD/C/R.33/Add.9) the second periodic report (CERD/C/R.65/Add.6) and the third one, see A/9618, paras. 82–85, A/31/18, and Corr. 1, paras. 58–62 and A/33/18, paras. 190–208. See, A/33/18, specially par. 193, 196 and 198. For the consideration of the periodic reports submitted by Lesotho, see A/31/18, paras. 122–124 and A/33/18, paras. 139–142.

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Libyan Arab Republic

The Libyan Arab Republic (Libyan Arab Jamahiriya) reported that, to implement its accession to the Convention, it laid down in its first Constitutional Declaration, on 11 December 1969, most of the provisions of Article 5 of the Convention.72 Madagascar According to Article 14, paragraph 4, of the Malagasy Constitution, international treaties ratified by the State “shall from the moment of their publication take precedence over national laws.” In consequence, the provisions of the Convention “had greater legal force than those of ordinary law” in Madagascar.73 Madagascar’s Penal Code was currently being revised, and the Committee was informed that the new provisions eventually incorporated into the Code would include some specific measures relating to the Convention. The periodic reports submitted by Madagascar contain information on measures adopted by its Government to give effect to the provisions of Article 7 of the Convention. Mauritius Mauritius “did not find it necessary to give the force of law specifically to the… Convention as the substance of the Convention is already contained either in the Constitution or in a number of specific enactments dealing with the rights concerned.”74

72

73

74

For the reports submitted by Libya, see CERD/C/R.3/Add.30, CERD/C/R.30/Add.27; CERD/C/R.70/Add.31; CERD/C/R.90/Add.18; and CERD/C/20/Add.29. For their discussion, A/9018, paras. 257–262; A/10018, paras. 103–104; and A/31/18, paras. 228–230. Cfr., A/9018, par. 253 and 255. For the periodic reports submitted by Madagascar, see CERD/C/R.3/Add.16, Add.44, Add.58 and Add.59; CERD/C/R.30/Add.26 and Add.38; CERD/C/R.70/Add.2; CERD/C/R.90/Add.11; and CERD/C/20/Add.5. For their consideration, A/9018, paras. 252–256; A/9618, paras. 144–146; A/31/18 and Corr. 1, paras. 132–135; and A/33/18, paras. 224–227. CERD/C/38 (third periodic report), p. 3. For the initial and second periodic report, see CERD/C/R.50/Add.5 and CERD/C/R.77/Add.11. For their discussion, A/9618, paras. 94–96 and A/3 2/18, paras. 247–249, respectively.

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Mexico Mexico’s initial and second reports75 supply information on provisions and measures giving effect to the Convention. Accession to the Convention has granted it, in accordance with Article 133 of the Mexican Constitution, the status of Supreme Law of the entire Union. Detailed information is provided on the indigenous population, the ethnic identity of which should be preserved in accordance with their express wishes, as their inalienable right and also as an essential element in the character of a society which aspires to become a fully integrated pluralistic nation. Morocco Morocco has already submitted to the Committee its fourth periodic report.76 The Convention had become “an integral part of the internal public order from which no derogation is admissible,” since the Moroccan Constitution “implicitly recognizes the primacy of international law over domestic law.” Its provisions “have ipso facto legislative and statutory effect in both public and private law.” Members of the Committee did not accept the view that such an approach implies that the Convention is therefore fully applied in Morocco. The question of whether or not the implementation of Article 4 of the Convention required the enactment of new legislation, prompted the Moroccan representative to state that the competent authorities were studying the specific obligations arising from that article. In its fourth periodic report, Morocco reiterated however that it considered it “pointless to extend the effect of international conventions by specific domestic legislation.” An interesting point was raised when the Committee considered the third periodic report and the information that the Moroccan Government was allowing and encouraging the return of Moroccan Jews who had left the country. In this connection, the application of the rules on personal status for 75 76

CERD/C/R.85/Add.2 and CERD/C/16/Add.1. For the discussion of the initial report, see A/31/18, paras. 231–235. For the discussion of the second report, CERD/C/SR.411 and 412. CERD/C/18/Add.1, the first for general distribution. For the former reports, see CERD/ C/R.33/Add.1; CERD/C/R.65/Add.1; and CERD/C/R.88/Add.6. For their consideration by the Committee, see A/8718, paras. 75–78; A/9618, paras. 142–143; A/32/18, paras. 140–148; and A/33/18, paras. 163–165.

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Moroccan Jews, instead of the Moslem Code of Personal Status and Succession, which is applicable to all Moroccan nationals, was pointed out. Such an exception, deriving from a system which can also be found in other countries, was not considered a discriminatory act. Netherlands Netherlands, one of the countries which have recognized the Committee’s competence under Article 14 of the Convention, has already presented its third periodic report.77 Members of the Committee praised the openness of the reports, and the seriousness with which the Dutch Government views its obligations under the Convention. Netherlands adopted the Act of 18 February 1971 in order to implement the Convention. The definition of discrimination is based on that of the Convention. On 26 April 1976 a Bill was proposed, inserting in the Constitution an explicit prohibition of discrimination on racial grounds. The Dutch Criminal Code was amended in order to give effect to the Convention, and criminal proceedings have been instituted in several cases for the same purpose. An administrative procedure resulted in annulment of a municipal by-law on the grounds of discrimination, as prohibited under the Convention. There have been arrests of persons charged with the distribution of racist pamphlets, and the Public Prosecutor will have to decide whether to demand the dissolution of the Netherlands People’s Union (Nederlandse Volksunie), the political party responsible for those pamphlets. Netherlands adopted measures to improve the situation of minority groups, as well as of foreigners, in the fields of housing, education, employment and reception and guidance. Steps were taken to promote integration of migrant workers, without aiming at complete assimilation, in the understanding that it was vital for foreign workers to preserve their own language and culture. With regard to the conditions imposed by some countries (in connexion with trade), on the entry of persons, in particular the condition requiring proof of non-Jewish origin, the Dutch authorities decided that municipal officials and notaries should refuse to issue certificates of non-Jewish origin or nonJewish faith. The issue of such certificates would conflict with the spirit and 77

For the initial and subsequent reports, see CERD/C/R.50/Add.4; CERD/C/4 (classified for general distribution at Netherland’s request); and CERD/C/9. For their discussion in the Committee, A/9018, paras. 308–313; A/10018, paras. 117–120; and A/32/18, paras. 220–228.

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tenor of the Convention, and would “constitute an act at variance with principles of public order and morals embodied in the Convention.”78

New Zealand

The reports submitted to the Committee by New Zealand79 were praised on account of form, as well as of substance, and were singled out as reflecting a national policy in conformity with the standards proclaimed in the Convention. The main legislative instrument ensuring the observance of the Convention is the Race Relations Act of 1971, substantially amended in 1977 coincidentally with the enactment of the Human Rights Commission Act of 1977. The 1971 Act was strengthened in certain aspects, and a new procedure was instituted for pursuing complaints not resolvable by conciliation. An Office of the Race Relations Conciliator is in charge of promoting harmonious race relations, and an increasing amount of its work is devoted to positive measures for promoting understanding and tolerance between people of different races and cultures. The first convictions, for inciting racial disharmony against Jews, were obtained in 1977. New Zealand modified its immigration policy, now based on considerations of occupation and family reunification. It supported United Nations action against apartheid and South Africa. At the Race Relations Conciliator’s recommendation, incitement to racial disharmony has been made a criminal offence; this includes the publication or distribution of written material, or the use of words likely to incite hostility or ill will against any group. A new procedure for bringing civil proceedings for 78

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CERD/C/9, p. 2. The nature of discrimination was involved in the question asked at the Committee as to whether a similar attitude would be adopted towards persons who wish to emigrate to a country conferring privileges to Jews in matters of immigration and naturalization, and who request certificates of Jewish faith or origin. The representative of Netherlands replied that such a case had not arisen, but he saw no reason why, if such a case arose, there should be an exception to the position taken by his Government. It should be noted, however, that the Convention is aimed at preventing discrimination. Authorities issuing a certificate at the request of an interested person who wants to enjoy a right or a privilege, would not be violating the Convention. They would be violating it, if the certificate would be used to enact a discriminatory restriction. For the reports, see CERD/C/R.50/Add.8; CERD/C/R.77/Add.7; and CERD/C/37. For their discussion, A/9618, paras. 99–101; A/31/18, paras. 111–116; and CERD/C/SR.414 and 415. See, also, K.J. Keith, “Race Relations and the Law in New Zealand,” in Revue des Droits de l’Homme/Human Rights Journal, Vol. VI, 2 (1973), pp. 329–368.

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breach of the Act has been established, empowering the Conciliator to institute proceedings himself. A number of complaints were lodged with the Race Relations Conciliator against the New Zealand National Socialist Party, in connection with the publication and distribution of a pamphlet with the intention of inciting racial disharmony against Jews. Two officials of the Party were convicted and sentenced to imprisonment. The problem of restrictions to be placed on freedoms according to the provisions of Article 4 of the Convention—a subject regarding which observations were made at the Committee when New Zealand’s second report was discussed—was solved on the basis of the principle that some curtailment of recognized freedoms was required, but that there was no need for restrictions, particularly on freedom of association, which would be widely regarded as unacceptable. It was considered that the most appropriate means of controlling organizations which might promote racial disharmony, is by prohibiting their activities. Important measures were adopted in the fields of housing, education, culture and information with regard to minority groups, at the national as well as at the local level. New Zealand is a pluralistic society in which the ethnic aspect of this plurality will gradually be displaced by the cultural aspect. Each group can contribute its own particular strengths and “should not be pressurized into changes,” since “imposed conformity has no place in a multicultural nation.”80 Niger Niger informed the Committee that in the hierarchy of legal instruments of the country, treaties take precedence over national legislation, even where, in substance or form, they conflict with the latter. The Republic of the Niger considers racial equality and freedom of expression and opinion to be general principles of law that are jus cogens. Therefore, if judicial or administrative national and local government policies are at variance with treaties concluded by Niger, they will cease to have legal force, and must be revised.81 Niger reported that it has no relations of any kind with racist regimes. 80 81

CERD/C/37, p. 13. See fifth periodic report of the Niger, CERD/C/20/Add.28, p. 6. For the former reports, CERD/C/R.3/Add.8 and Add.15; CERD/C/R/30/Add.10; CERD/C/R.70/Add.30; and CERD/ C/R.90/Add.1. For their discussion, A/9018, paras. 139–144, A/10018, paras. 100–102, A/31/18, paras. 74–75, and CERD/C/SR.426.

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Norway Norway made the declaration recognizing the competence of the Committee under Article 14, with the reservation that the Committee should not deal with petitions which are sub-judice, or which are dealt with in another forum. Norway has already submitted its fourth periodic report.82 International law does not automatically form an integral part of Norwegian law, and before ratifying the Convention, the Norwegian authorities undertook a detailed study in order to ascertain that domestic law was consistent with the obligations under the Convention, and they adopted certain legislative measures in this respect. Thus, Section 135(a) of the Penal Code is based on the Convention, and under this Section, persons who uttered derogatory statements against Jews, Negros and Pakistanis, and against immigrant workers, have been convicted.83 In its periodic reports, Norway informed the Committee about measures taken to oppose apartheid and the South African regimes; about steps to improve the condition of minority groups such as Lapps and Gypsies; and about services for immigrants. Pakistan Despite the statement that, since Islam is a universal religion advocating tolerance for every race, Pakistan had not considered it necessary to enact any new laws or measures dealing specifically with racial discrimination. The new Pakistani Constitution of 1973 contains provisions recognizing the rights enumerated in Articles 5 and 6 of the Convention. A special Act (Act VI of 1973) was adopted in order to implement the provisions of the Convention, particularly Article 4.84 A Ministry of Minorities’ Affairs has been established, and specific measures have been enacted for the protection of some groups. 82

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For the reports submitted by Norway, see CERD/C/R.25/Add.4; CERD/C/R.53/Add.5; CERD/ C/R.78/Add.7 and Add.9; and CERD/C/22. For their consideration, A/8718, par. 53; A/9618, paras. 120–123; A/31/18, paras. 205–212; A/32/18, paras. 155–160; and A/33/18, paras. 180–189. See, decision of the Supreme Court of Norway, CERD/C/22, Annex I, p. 1. See, also, A/33/18, par. 183, for the discussion in the Committee on the conflict between the provisions on freedom of expression and those punishing racism and on the significance of the Court’s decision as a precedent. For the five reports submitted by Pakistan, see CERD/C/R.3/Add.10 and Add.42; CERD/ C/R.30/Add.14; CERD/C/R.70/Add.8; CERD/C/R.90/Add.22; and CERD/C/20/Add.15. For their discussion, A/9018, paras. 162–167; A/9618, paras. 156–157; A/3218, paras. 97–102; and A/33/18, paras. 252–259.

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Panama In Part 4, Chapter 4, the problem of racial discrimination in the Panama Canal Zone has been dealt with. The five periodic reports submitted by Panama— the fourth and fifth, for general distribution, being particularly detailed—85 carry abundant information on the Panamanian constitutional, legal and educational systems, as well as on official policy with regard to the indigenous population, respect for its ethnic identity, and promotion of the integral development of those groups. No special measures for the implementation of the Convention have been adopted. Act no. 25 of 1956, prohibiting discrimination, and Act no. 8, of 1978, on calumny and detraction, are mentioned in the fifth periodic report as measures for the implementation of Article 6 of the Convention. Peru In a statement in 1978, the representative of Peru informed the Committee that the forthcoming Constituent Assembly of his country would be drafting a new political charter for the State “which would incorporate all provisions designed to prevent any manifestation of racial discrimination.”86 During consideration of the second periodic report of Peru,87 an interesting discussion on the meaning of Article 86 of the Peruvian Constitution took place. It was pointed out that by granting the right to vote only to citizens able to read and write, the Constitution excluded from political life a large proportion of the Indian population which did not meet that requirement. The Peruvian representative denied that such an exclusion could be regarded as racial discrimination.

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For the periodic reports submitted by Panama, see CERD/C/R.3/Add.9 and 52; CERD/ C/R.30/Add.21; CERD/C/R.70/Add.27; CERD/C/8; and CERD/C/20/Add.25. For their consideration by the Committee, A/9018, paras. 211–218; A/9618, paras. 232–239; A/31/18, paras. 188–201, and CERD/C/SR.418 and 419. A/33/18, par. 86. CERD/C/R.65/Add.7. Peru asked this document to be reclassified as a document for general distribution. For the initial report, CERD/C/R.33/Add. 12. For the discussion on Peru’s periodic reports, see A/9618, paras. 243–244, A/31/18, paras. 76–80 and A/33/18, paras. 84–91.

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Members of the Committee emphasized the importance of a 1975 decree, recognizing Quechua as an official language, on the same footing as Spanish. Philippines Philippines has already submitted its fifth periodic report to the Committee.88 Note was taken that, under the Constitution of 1973, most of the rights enumerated in Article 5 of the Convention were safeguarded. On 17 April 1978, Presidential Decree no. 1350 A was issued. The Decree states that the Convention is law of the land and, with reference to Article 4, declares illegal and prohibits all organizations, as well as organized propaganda and all other propaganda activities, which promote and incite racial discrimination. Penalty of imprisonment is imposed for: the dissemination and advocacy of policies based on ideas of racial superiority or on racial hatred; incitement to racial discrimination; or membership in racist organizations. Incitement to acts of violence carries a heavier punishment. Poland In its fifth periodic report,89 Poland states that it has used its experience especially that derived from World War II, for the making of domestic laws directly imposing the prohibition and elimination of all forms of racial discrimination… All kinds and forms of racial discrimination are prohibited in the Polish criminal law and are subject to criminal prosecution. …Any racist organization as described in Article 4 of the Convention would be considered in Poland as criminal. The question whether Article 4 of the Convention was sufficiently covered by existing Polish legislation was, however, the subject of discussion when the fifth report was considered. 88

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For the reports submitted by the Philippines, see CERD/C/R.3/Add.13; CERD/C/R.30/ Add.11 and Add.37; CERD/C/R.70/Add.7 and Add.11; CERD/C/R.90/Add.20; and CERD/C/20/Add.9 and Add.30. For their discussion, A/9018, paras. 224–228; A/9618, paras. 153–155, A/32/18, paras. 88–96; and CERD/C/SR.409. For the Polish reports, see CERD/C/R.3/Add.4 and Add.23; CERD/C/R.30/Add.17; CERD/ C/R.70/Add.28; CERD/C/R.90/Add.13; and CERD/C/20/Add.10. For their consideration by the Committee, A/9018, paras. 183–187; A/9618, paras. 245–248; A/31/18, paras. 178–181; and A/33/18, paras. 278–288.

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The same report contains information on the implementation of Article 7 of the Convention, and on legal and practical safeguards to permit minorities to preserve their culture. Romania Romania has already submitted four periodic reports,90 during consideration of which several members of the Committee praised the measures adopted by Romania for prohibiting and combating racial discrimination. It was pointed out that in some spheres, such as equality of aliens (whether citizens of other States or stateless persons), Romanian legislation even went beyond the scope of the respective provisions of the Convention. Senegal “In order to support the efforts of the United Nations to eliminate all forms of racial discrimination,”91 Senegal established, under a decree issued in 1970 and modified in 1978, a Committee on Human Rights, composed by high officials representing the Government, the judicial and legislative powers, and the University. Some measures have also been taken in the field of education.

Sierra Leone

When the Committee considered, at its tenth session, the second and third periodic reports submitted by Sierra Leone, an interesting debate took place on the compatibility between the Convention and a constitutional clause, promulgated four years after the ratification of the Convention, authorizing “the limitation of citizenship to persons of Negro African descent.” A majority of members of the Committee considered that such a provision was incompatible with the 90

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For the Romanian reports, see CERD/C/R.25/Add.6; CERD/C/R.53/Add.3; CERD/C/R.78/ Add.2 and Add.8; and CERD/C/42. For their discussion, A/8718, paras. 57–61; A/9618, paras. 111–114; A/31/18, paras. 166–171; and CERD/C/SR.422. See Senegal’s third periodic report, CERD/C/40, p. 15. For the two former reports, see CERD/C/R.50/Add.14 and CERD/C/R.77/Add.10. For their consideration, A/10018, paras. 146–148 and A/31/18, paras. 240–242. For the consideration of the third report, see CERD/C/SR.419 and 420.

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Convention. Those with a different view argued, like the Ghana expert, that a State has the right to declare that not every person could become a citizen. The Soviet expert stated that the restriction of citizenship to persons of Negro African descent did not discriminate against any particular nationality. In its report the Government of Sierra Leone admitted the need for a review of its legislation.92 Spain Spain stated in its initial report, that any international convention to which it was a party automatically became a part of Spanish law when officially published, and had the same legal force as domestic legislation. This view was contested in the Committee, some members considering “that the extent to which the Convention was self-executing was limited and that certain of its provisions imposed on the States Parties the obligation to enact laws to give them effect.”93 In 1976 the Council of Ministers approved a bill to amend Article 172 of the Penal Code “in order to bring Spanish law into conformity with the mandatory requirements of Article 4 of the Convention.” In its fifth periodic report, Spain reminded the Committee of the important changes in progress in its legislation concerning the protection of human rights, as a result of the political developments in the country culminating with the adoption, at the end of 1978, of the new Constitution. The above mentioned 1976 draft bill was, however, not enacted. An interesting discussion on minorities took place when the fifth periodic report was considered. The Spanish representative denied the existence of national minorities in Spain. There were only, in his view, nationalities and regions, to which a “pre-autonomy” regime had already been granted.94 Swaziland A Cabinet Committee on Racial Discrimination was established in Swaziland in 1969, to investigate and report on ways and means of removing racial 92 93

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For the reports, see CERD/C/R.30/Add.46 and CERD/C/R.70/Add.22. For the discussion, A/9618, par. 193 and CERD/C/SR.204. See, A/31/18, par. 139. For Spain’s initial and periodic reports, CERD/C/R.3/Add.6 and Add.22; CERD/C/R.30/Add.42; CERD/C/R.70/Add.23, CERD/C/R.90/Add.12 and CERD/C/20/Add.20 and Add.33. For their discussion, A/9018, paras. 263–268; A/9618, paras. 224–226; A/31/18, paras. 136–143; and CERD/C/SR.414. See, CERD/C/SR.414.

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prejudice. Swaziland reported that a minority of 2 percent of the population, which had formerly been the dominant political element and continued to have great economic leverage, practised racial discrimination against the majority.95 Sweden Sweden is one of the countries that made the declaration recognizing the competence of the Committee under Article 14 of the Convention. A governmental Commission was appointed to review existing legislation, in order to ascertain the extent to which it met the requirements of the Convention, and new legal rules had been enacted in 1970 and 1971, to satisfy some of the requirements of Articles 4, 5 and 6 of the Convention.96 The Penal Code incorporated an article on unlawful discrimination (applicable also to discrimination on several grounds in the field of business). Members of the Committee were of the opinion that, while amendments introduced in the Penal Code seemed to comply with Article 4(a), that was not the case with Article 4(b). The Swedish representative expressed his Government’s feeling that Article 4 was fully covered, since members of racist organizations could be punished. The Committee took note of the new Swedish Constitution, which contains provisions prohibiting racial discrimination. In 1977, special measures to protect the Lapp minority were adopted.

Syrian Arab Republic

In Part 4, Chapter 4, we have dealt with the Committee’s consideration of the question (raised by Syria in its five periodic reports) of the Golan Heights. The Committee also discussed the legislative and other measures to implement the Convention taken by the Syrian Arab Republic. Note was taken of the new Constitution of 1973, which covered nearly all the rights listed in Article 5 of the Convention. The Syrian representative informed the Committee that amendments were introduced in constitutional and legislative texts including 95 96

For the reports submitted by Swaziland, see CERD/C/R.3/Add.33 and 45, and CERD/ C/R.30/Add.40. For their discussion, A/9018, paras. 200–205 and A/9618, paras. 200–201. See the initial report submitted by Sweden, CERD/C/R.50/Add.2. For the discussion on the Swedish reports, see A/9018, paras. 296–300; A/10018, paras. 125–130; and A/32/18, paras. 202–209.

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the Penal Code, in order to bring Syrian legislation into line with the Convention.97 Tonga In Part 5 we have mentioned the reservations made by Tonga to several articles of the Convention, some of which were later withdrawn. Tonga has already submitted three periodic reports.98 As stated in the third report, a committee which is considering law reform in this small State, will be invited to study a proposal to amend the Criminal Offences Act by inserting a provision naming racial prejudice as a criminal offence. Tunisia In accordance with the Tunisian Constitution, “duly ratified treaties take precedence over domestic laws.”99 A “Press Code” promulgated in 1975 provides penalties for any person who incites to racial hatred.

Ukrainian Soviet Socialist Republic

For the Ukrainian ssr, international treaties prevail over national legislation. The new Constitution of the Ukrainian ssr, adopted in 1978, takes into account the provisions of the Convention and “reaffirms the international obligations of the Republic under the Convention.”100 The Ukrainian ssr has enacted legislation prohibiting racial discrimination and racial incitement. Educational measures against racial and nationalist prejudices have been adopted, as well as steps to ensure equality for nationalities and minorities. 97 98

A/32/18, paras. 103–108, and CERD/C/SR.416. CERD/C/R.50/Add.1 and Add.10; CERD/C/5 and CERD/C/30. For their consideration, A/9018, paras. 286–289; A/31/18, paras. 81–83; and A/33/18, paras. 273–277. 99 See Fifth periodic report submitted by Tunisia, CERD/C/20/Add.3, p. 3. For the former reports, see CERD/C/R.3/Add.50; CERD/C/R.30/Add.8 and Add.29; CERD/C/R.70/Add.39; and CERD/C/R.90/Add.3. For their discussion, A/9018, paras. 128–133; A/31/18, paras. 90–92; and A/33/18, paras. 209–212. 100 Fifth periodic report, see CERD/C/20/Add.23, p. 2. For the former reports, see CERD/C/R.3/ Add.26 and Add.37; CERD/C/R.30/Add.20; CERD/C/R.70/Add.17; CERD/C/R.90/Add.15. For their discussion, A/9018, paras. 206–210; A/31/18, paras. 192–196; and CERD/C/SR.418.

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When the fourth and fifth periodic reports were considered, doubts were expressed as to whether the Ukrainian Criminal Code fully covered the requirements of the Convention. It was also noted that, despite the fact that Russians constituted 19.4 percent of the population and Jews 1.6 percent, there were no Russian or Jewish schools, although there were schools pertaining to other minorities. The Ukrainian representative explained that educational establishments could hardly be provided solely for the needs of groups scattered throughout the Republic.101

Union of Soviet Socialist Republics

The ussr has already submitted five periodic reports.102 The Soviet Union considered that its legislation required no changes or additions to ensure the implementation of the Convention, since its provisions are guaranteed by a whole body of legislation and other measures adopted in the ussr before the Convention came into force. The new Constitution (Fundamental Law) of the ussr, adopted in 1977, contains provisions on racial equality, racial discrimination, and punishment for the advocacy of racial or national exclusiveness, hostility or contempt. The ussr reports contain information on measures concerning educational, cultural and linguistic rights of all nationalities. Members of the Committee pointed out omissions with regard to the implementation of Articles 4 and 6 of the Convention. The Soviet expert, Mr. Nasinovsky, admitted that various adjustments would have to be made in earlier legislation, but the new Constitution (which was adopted after preparatory work, during which consideration was given to the Convention) already contained some specific data.103

United Kingdom

Shortly before the beginning of the period covered by the fifth periodic report submitted by the United Kingdom,104 a new Race Relations Act was passed and 101 A/31/18, par. 196 and CERD/C/SR.418, p. 6. 102 CERD/C/R.3/Add.12; CERD/C/R.30/Add.19; CERD/C/R.70/Add.12; CERD/C/R.90/Add.14; and CERD/C/20/Add.18. For the consideration of the first four reports, A/9018, paras. 194– 199; A/9618, paras. 165–168; and A/31/18, paras. 188–191. For the fifth report, CERD/C/SR.412. 103 See, discussion of the ussr’s fifth report, CERD/C/SR.412. 104 CERD/C/20/Add.17 and Add.26. For the initial and following periodic reports, see CERD/ C/R.3/Add.14 and Corr. 1; CERD/C/R.30/Add.28; CERD/C/R.70/Add.34; and CERD/C/R.90/

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came into force on 13 June 1977.105 The Act, which does not extend to Northern Ireland, replaces the Race Relations Acts of 1965 and 1968. It extends the scope of the law against discrimination, and provides individual victims of discrimination with fuller redress through the civil courts and industrial tribunals. The Act also strengthens the criminal law against incitement to racial hatred, and creates a Commission for Racial Equality. The Act deals with (a) direct discrimination—treating a person less favorably on “racial grounds” (i.e. on the grounds of colour, race, nationality, including citizenship, or ethnic or national origins) and (b) indirect discrimination—the application of rules or conditions which operate unfairly against minority groups, and which cannot be justified. The Act applies to discrimination in employment, education, services, clubs and associations (with at least twenty-five members), with some exceptions.106 Individuals have direct access to the courts or to industrial tribunals. The remedies available include damages, a declaration of rights, or an injunction. Special bodies have been established by the British Government to deal with problems resulting from the large immigration from the British Commonwealth, particularly from India, Pakistan and the Caribbean. The Commission for Racial Equality is an independent body with wide-ranging powers. It has the right to investigate unlawful discriminatory practices, and to issue “non-discrimination notices,” enforceable in the courts. There is also an Advisory Council on Race Relations, which is chaired by the Home Secretary and which includes members of ethnic minorities. The Government has established advisory committees to deal with discrimination in education. With regard to incitement to racial hatred, the main change introduced by the new Act consists in removing the need to prove a subjective intention to stir up hatred. The Government considered representations advocating a more severe approach, “but remains convinced that it is not justifiable in a democratic society to interfere with freedom of expression, except where it is necessary

Add.30. For their consideration by the Committee, A/9018, paras. 290–295; A/10018, paras. 136–145; A/32/18, paras. 302–308; and A/33/18, paras. 332–346. Members of the Committee described the initial report as “a model report.” 105 For a short commentary on the new Act, see Geoffrey Bindman, “Restraint on Incitement— The New British Law,” Patterns of Prejudice, 11, 2, March–April 1977. For a systematic and comprehensive work on the law of race relations in the United Kingdom, prior to the adoption of the new Act, see Anthony Lester and Geoffrey Bindman, Race and Law, Middlesex, 1972, carrying abundant jurisprudence on the subject. Also, S.J. Roth, “British Race Relations and International Law,” Patterns of Prejudice, 2, 3, 1969, p. 14 and ff. 106 Members of the Committee criticized some of those exceptions, as incompatible with the Convention (see, A/33/18, par. 333).

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to do so for the prevention of disorder, or for the protection of other basic freedoms.”107 It is an offence to use threatening, abusive or insulting language, or to publish and/or distribute material using such language, in circumstances where hatred is likely to be stirred up against any racial group. A prosecution for an offence of incitement requires the consent of the Attorney General. When the United Kingdom’s fifth periodic report was considered, members of the Committee reiterated criticism already voiced when former reports were discussed, on what was considered by them insufficient compliance with the requirements of Article 4 of the Convention. The representative of the United Kingdom recalled his Government’s “statement of interpretation”108 when signing the Convention but, at the same time, informed the Committee that the question would continue to be studied. He also stated that neo-Nazi organizations and movements were not gaining ground in his country, despite remarks made during the discussion. The matter of the existence of an obligation to report on relations with the régimes of the countries of Southern Africa, as envisaged in General Recommendation III of the Committee, was also discussed. The British Government considered that such an obligation did not exist, and that such information was not relevant to the implementation of the Convention.

United States of America

The United States of America took an active part in the preparation and adoption of the Convention. It voted for it at all levels and signed it on 28 September 1966, with only a reservation (statement) that “nothing in the Convention shall be deemed to require or to authorize legislation or other action by the United States incompatible with the provisions of the Constitution of the United States of America.” However, despite the “considerable fanfare” with which it signed it,109 it was only on February 23, 1978 that the President 107 CERD/C/20/Add.7, p. 7. 108 See, Part 5. For the interesting discussion of the legal problems involved in the interpretative statement, the difference between such a statement and a reservation, the mandatory character of Article 4 of the Convention and the relevance of Article 29 of the Universal Declaration on Human Rights, see CERD/C/SR.248 and 249. 109 See, Frank C. Newman, in the Introduction to The United States and the United Nations Treaty on Racial Discrimination, A Report for the Panel on International Human Rights and its Implementation, by Nathaniel R. Nathanson and Egon Schwelb, The American Society of International Law, Washington, 1975, p. V.

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transmitted the Convention to the Senate for ratification, together with other human rights treaties. Indicating that some provisions might be in conflict with United States law, President Carter recommended a statement, two reservations and a declaration.110 The statement would express that the United States understands its obligation to enact legislation and take measures under paragraph (1) of Article 2, subparagraphs (1)(c) and (1)(d) of Article 2, Article 3, and Article 5 “to extend only to governmental or government-assisted activities and to private activities required to be available on a non-discriminatory basis as defined by the Constitution and laws of the United States.” By one reservation, the United States would determine that nothing in the Convention “shall be deemed to require or to authorize legislation or other action by the United States which would restrict the right of free speech protected by the Constitution, laws, and practice of the United States.” The second reservation is a consequence of the federal system. Finally, a declaration indicating the non-self-executing nature of Articles 1 through 7 is recommended. The importance of ratification by the United States, from the viewpoint of adding weight to the instrument, as well as from the viewpoint of United States interests and its standing in the international action for human rights, has been frequently stressed. The Panel of International Human Rights Law and Its Implementation, of the American Society of International Law, urged prompt ratification. It recommended, however, that reliance should not be placed on the “due regard clause” of Article 4 as a sufficient safeguard, and that the reservation (statement) made on signature should be maintained, and that such new provisions on ratification as it may be considered necessary and appropriate should be added.111 The Panel took into consideration “the effect that United States partnership in support and operation of the Convention would have on the respect for and the effectiveness of the principles of the Convention—and of human rights and fundamental freedoms in general—in the world at large.”112 The possibility that unfriendly governments might flood the Committee with complaints against the United States, was considered to be a risk, involving a “nuisance value,” which the u.s. can very well take. It was also suggested that ratification be accompanied by a somewhat modified reservation, to the effect that the United States considers itself a party to 110 Message from the President of the United States, February 23, 1978, u.s. Government Printing Office, Washington: 1978. 111 Op. cit., p. 11. 112 Ibid., p. 15.

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the Convention only vis-a-vis those states which interpret it similarly in connection with controversial Article 4.113 This proposal was made in order to avoid the interpretation that the United States rejects restrictions on fundamental freedoms only for itself, while commending the entire Convention to others. The prevailing view in the United States seems to be, in general, that nothing in internal u.s. legislation is an obstacle to ratification, which “would be in the interest of the international community and in the national interest of the United States.”114

Upper Volta

Upper Volta informed the Committee115 that the Convention takes precedence over the internal laws of the country, and that the rejection of racial discrimination was for Upper Volta a general principle of law, which continues to hold good even in times of suspension of the Constitution, as between 1974 and 1977. Uruguay During consideration of the fifth periodic report submitted by Uruguay,116 it was noted with regret that the intention to reform the Penal Code, in such a way as to give effect to the provisions of Article 4 of the Convention, had been abandoned. Uruguay made the declaration provided for in Article 14 of the Convention.

113 See, Peter W. Schroth and Virginia S. Mueller, “Racial Discrimination: The United States and the International Convention,” in Human Rights, 4, 2, Spring 1975, pp. 171–203. 114 Cfr., Bruno Bitker, “The International Treaty Against Racial Discrimination,” Marquette Law Review, Vol. 53, No. 1, Spring, 1970, pp. 68–81. For an early pessimistic forecast see Rita Hauser, “United Nations Law on Racial Discrimination”; Proceedings of the American Society of International Law, 64th Annual Meeting, in American Journal of International Law, Vol. 64, No. 4, 1970, pp. 114–119. 115 For the initial and second periodic report, CERD/C/R.75/Add.5 and CERD/C/51. For their discussion, A/32/18, paras. 259–267, and CERD/C/SR. 424. 116 For the periodic reports of Uruguay, see CERD/C/R.3/Add.57; CERD/C/R.30/Add.13 and Add.34; CERD/C/R.70/Add.38; CERD/C/R.90/Add.25; and CERD/C/20/Add.4. For their consideration, A/9018, paras. 246–251; A/10018, paras. 176–181; A/32/18, paras. 120–128; and A/33/18, paras. 213–219.

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Yugoslavia The five comprehensive periodic reports submitted by Yugoslavia,117 reflect the measures adopted for the implementation of the Convention, including the outlawing of incitement to national, racial and religious hatred, and of racist associations. Several questions relating to the multinational and federal character of Yugoslavia were raised. It was made clear that the adoption of a new constitution for the whole of Yugoslavia, and of new constitutions in the different republics and autonomous provinces of Yugoslavia, did not imply the need for any additional acts of ratification of the Convention, since the Federation was responsible for guaranteeing the fulfilment of international obligations contracted throughout the territory of Yugoslavia. While criminal codes of the different republics were being drawn up, the existing Criminal Code remains in force. During the discussion on measures taken to preserve the identity of the different nationalities or nations that constitute the Socialist Federal Republic of Yugoslavia, a member raised the question of whether the Committee was required to concern itself with groups, and not strictly with discrimination against individuals belonging to a specific ethnic group, race or colour. Several members maintained that each State Party should contribute to the objectives of the Convention in the way that reflects the respective conditions in the country. 117 CERD/C/R.3/Add.27; CERD/C/R.30/Add.22; CERD/C/3; CERD/C/R.90/Add.7; and CERD/ C/20/Add.27. For their discussion, A/9018, paras. 219–223; A/10018, paras. 105–109; A/31/18, paras. 117–121; and CERD/C/SR.422 and 423.

chapter 2

At the International Level 1 The unesco Declaration on Race At its 20th session, on 27 November 1978, the General Conference of unesco adopted, unanimously and by acclamation, a Declaration on Race and Racial Prejudice. Its Preamble proclaims unesco’s determination to promote the implementation of the United Nations Convention on Racial Discrimination. That same day unesco also adopted a Resolution for implementation of the Declaration, urging Member States i.a. to consider the possibility of ratifying, if they had not yet done so, the international instruments against racial discrimination, and in particular the Convention. It also urged Member States to take appropriate measures, including the passing of laws, guided by the provisions of Articles 4 and 6 of the International Convention.1 The influence of the Convention and its system of implementation on the unesco document, is thus obvious. What distinguishes the 1978 Declaration from former unesco instruments dealing with race and racial discrimination,2 is the fact that the Declaration is the first comprehensive instrument adopted by the General Conference covering all aspects of the problem of race and racism, and establishing a single standard of reference reflecting unesco’s multi-disciplinary approach.3 The Declaration extends beyond the purely legal implications, and deals as well with the biological, sociological, cultural, economic and political aspects of racism. The Declaration is, of course, not a binding treaty, but the wide support 1 For the text of the Declaration and the Resolution on implementation see Appendix 3. 2 Such are the Statement on Race (1950), the Statement on the Nature of Race and Race Differences (1951), the Propositions on the Biological Aspects of Race (1964) and the Statement on Race and Racial Prejudice (1967). For their text, Four Statements on the Race Question, Paris, unesco, 1969. The 1960 Convention against Discrimination in Education and Recommendation against Discrimination in Education, and the 1974 Recommendation concerning Education for International Understanding, Cooperation and Peace and Education relating to Human Rights and Fundamental Freedoms, are also relevant. For the unesco role in the field of human rights, see i.a. Sephen Marks, unesco and Human Rights: The implementation of Rights Relating to Education, Science, Culture and the Communication, in Texas International Law Journal, Vol. 13, No. 1. Winter 1977, pp. 35–67. 3 Cfr., statement by Mr. Karel Vasak, representative of unesco, at a cerd meeting on 16 August 1977 (CERD/C/13, Annex p. 1).

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it obtained and the adoption of the Resolution for implementation are indicative of the extent to which it can be seen as an expression of principles incorporated into the international law of human rights. A comparison between the substantive articles of the Declaration4 and those of the Convention, shows that the Declaration incorporated some new rights or concepts, and added new emphasis to some aspects covered by the Convention. The Preamble of the Declaration relates to the Decade for Action to Combat Racism and Racial Discrimination, as defined at the twenty-eighth Session of the u.n. General Assembly, i.e. before the linkage between the Decade and the General Assembly Resolution bracketing Zionism with racism. The Preamble also contains a reference to “forced assimilation” as an evil related to racial discrimination; the reference is missing in the Convention. The unesco Declaration has ten substantive articles dealing with: equality of all human beings (Article 1); racism (Article 2); racism and international relations and the right to full development (Article 3); apartheid and racial segregation (Article 4); the role of culture, education and communication (Article 5); obligations of States (Article 6); legislation (Article 7); duties of individuals (Article 8); international responsibility of States, favourable discrimination, migrant workers and the need for an equitable international economy (Article 9); and the obligations of international governmental or non-governmental organizations (Article 10). Following is a comparative table concerning the substantive articles contained in the Declaration and in the Convention:

Substantive articles of the unesco declaration and of the international convention

Subject

Definition of racial discrimination Equality before the law Right to be different Right to cultural identity Favourable discrimination Measures against racial discrimination, including legislation

unesco Declaration

Article 1 Article 1, par. 2 Article 1, par. 3 Article 5, par. 1 Article 9, par. 2 Article 6

u.n. Convention

Article 1 Article 5

Article 1, par. 4 Article 2, par. 2 Article 2

4 For an authoritative explanation of the Declaration and background information, see unesco Doc. 20 C/18, Annex, which, however, was not adopted by the General Conference. See also the report of the Meeting of Governmental Representatives to prepare the draft Declaration, unesco Doc. SS-78/CONF.201/6.

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At The International Level Subject

unesco Declaration

u.n. Convention

Positive measures Racism and international order Right to full development Apartheid and racial segregation Legislation against incitement to racism, racist propaganda and organizations Duties of individuals Culture, education and communication Remedies International responsibility of States Migrant workers Equitable international economy Cooperation of international governmental and non-governmental organizations

Article 6, par. 3 Article 3 Article 3 Article 4 Article 7

Article 2, par. 1 Article 7

Article 8 Article 5 Article 6, par. 3 Article 9, par. 1 Article 9, par. 3 Article 9, par. 4 Article 10

Article 3 Article 4

Article 7 Article 6

Some of the innovations contained in the unesco Declaration deserve to be singled out. Article 1.2 proclaims the right of individuals and groups to be different, relating to the right not to be forced to assimilate, as enunciated in the Preamble. That right includes the right to maintain cultural identity (paragraph 3). Differences based on cultural, environmental and historical diversity are legitimate. Article 2.3 contains a reference to the link between racial prejudice and the economic and social conditions of the respective societies. Article 3 deals with the international implications of racial discrimination. The same article affirms a right which is only recently taking shape in the field of human rights: the right of every human being and group to full development, implying equal access to the means of personal and collective advancement. Article 3 of the Declaration adopted, in general, the terminology of Article 1 of the Convention, leaving out the term “descent” and adding “religious intolerance motivated by racist considerations.” Article 5 deals with the relationship between culture, education and communication and racial discrimination. Article 6.2 emphasizes the role of legislation to be adopted in the spheres of education, culture and communications, and the importance of scientific

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research on the causes and prevention of racial prejudice and racist attitudes, with due regard to the principles of the Universal Declaration of Human Rights and the Covenants. Article 8 of the Declaration stresses the duties of individuals towards their fellows, society and the international community in the struggle against racism, devoting a special paragraph to the duties of specialists and scientific organizations. Article 9 of the Declaration affirms in paragraph 1 that, since equality in dignity and rights of all human beings and peoples became a “generally accepted and recognized principle of international law,” any form of racial discrimination practised by States constitutes “a violation of international law, giving rise to international responsibility.” Paragraph 3 of the same article deals with migrant workers and population groups of foreign origin. The Convention has no similar provision, but the Committee clearly expressed its interest in the matter, and many national periodic reports contain abundant information on the subject. Another difference between the Declaration and the Convention is the role reserved by Article 10 of the Declaration for international governmental or non-governmental organizations. The Convention did not foresee a similar role for ngo’s except in optional Article 14. As to implementation, the resolution concerning the unesco Declaration, in addition to implying a renewed call for ratification of the Convention, opens a new avenue for the collection of information on racial discrimination in the world. The report to be submitted by the Director-General of unesco to the General Conference may add to the body of information emanating from States Parties to the Convention. Also valuable is additional information coming from the other unesco Member-States which are not parties to the Convention, as well as that produced by other sources, such as non-governmental organizations, or “any other information supported by trustworthy evidence” which the Director-General “may have gathered by such methods as he may think fit,” including the help of “independent experts of recognized competence.”5 From the viewpoints of substance as well as of reporting, the unesco Declaration, clearly indebted to the Convention, has added some new elements likely to open further possibilities in the action against racial discrimination. The existence of both instruments and their respective implementation systems requires cooperation. The Committee, at its nineteenth session held at unesco Headquarters, recalling its 1978 decision to seek the assistance of unesco in the implementation of Article 7 of the Convention, suggested to the Director-General 5 Resolution for implementation, 2(a).

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of unesco, when requesting information from States Members on the implementation of the Declaration, that he take fully into account the requirements of the reporting obligations “undertaken by States Parties to the Convention, with a view to avoiding duplication.” It also invites unesco to transmit periodically to the Committee information on the experience gained by unesco in the fields of teaching, education, culture and information, in connection with Article 7 of the Convention. It further invites unesco to transmit to the Committee “suggestions for the preparation of general guidelines that might assist the States Parties in implementing Article 7 of the Convention.”6 During the seventeenth session of the Committee, in 1978, members voiced some criticism of the Declaration, in the sense that it repeated some formulations of the Convention and contradicted others.7 At the nineteenth session (which, as indicated, was held at unesco headquarters) a detailed debate took place on the Declaration, its relationship with the Convention and the need to avoid overlapping in the implementation of both instruments. Members of the Committee stressed that in some respects the Convention had gone further than the Declaration and that, while the Declaration had tackled certain questions not explicitly dealt with in the Convention, the Committee had in fact paid attention to most of them. One expert considered the adoption of the Declaration as ill advised. Most misgivings on the part of members of the Committee related to the resolution on implementation, and the Chairman of the Committee even appealed to unesco to reconsider the need for the resolution. The fear was expressed that unesco might get involved in matters beyond its educational, scientific and cultural functions and that States Parties to the Convention might neglect their duties and prefer to make their reports to unesco, since they had no legal obligations under the Declaration. The need for co-operation between both bodies to avoid any risk of duplication was stressed. Some members praised the Declaration and saw harmony between its spirit and that of the Convention, perceiving a dynamic conception of international law in the innovations contained in the unesco document. There were differing views with regard to the extent to which the Declaration might be useful in helping to interpret the Convention. The unesco representative at the session expressed his conviction that the Declaration might serve to encourage States to ratify the Convention, and that a suitable formula could be evolved to avoid duplication and confusion.8 6 For the text of the decision, see CERD/C/SR.431. 7 See, A/33/18, par. 54. 8 For the discussion, see CERD/C/SR.428, 429 and 430.

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World Conference to Combat Racism and Racial Discrimination

The Declaration and Programme of Action adopted at the controversial World Conference to Combat Racism and Racial Discrimination, which took place in Geneva on 14–26 August 1978, contains several references to the Convention on the Elimination of all forms of Racial Discrimination.9 The Conference was attended by representatives of 123 Governments and observers from u.n. specialized agencies and organizations and non-governmental organizations. The United States, the State of Israel and several invited ngo’s declined to attend, because of the linkage between the Conference and General Assembly Resolution 3379 (XXX), bracketing Zionism with racism. As a consequence of the inclusion in the Declaration of several paragraphs concerning Israel, the nine member States of the European Economic Community, as well as Australia, Canada and New Zealand, withdrew from the Conference. The Nordic countries disassociated themselves from the final document adopted by the Conference. As far as the Convention is concerned, the Declaration and Programme of Action expresses the determination to promote the implementation, among other human rights instruments, of the Convention and calls for the adoption of measures in accordance with its Article 4. The Programme of Action also urges the adoption of legislation as provided for in Article 4 of the Convention (A,1 (v)), the ratification of relevant international instruments, including the Convention (A,1 (xi)), and the consideration of the possibility of making the declaration envisaged in Article 14, paragraph 1 of the Convention (A,1 (xii)). It recommends measures to abolish and prohibit racial discrimination and to protect minorities, in accordance with the Covenants and the relevant articles of the Convention (6). In paragraph 30 of the Programme, the Conference expresses its appreciation of the valuable work done by the Committee on the Elimination of Racial Discrimination and of its great contribution to the elimination of racism, racial discrimination and apartheid, takes note of its decisions and general recommendations, and invites the General Assembly to continue to support the work of the Committee and to consider ways and means for the implementation of those decisions and recommendations.10 9

10

For the Report of the Secretary-General on the Conference, submitted to the u.n. General Assembly, see A/33/262. See also, for a closing story and round-up on the Conference, u.n./Press Release RD/42, 28 August 1978. Loc. cit., p. 27.

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The Programme contains several recommendations concerning apartheid, migrant workers and minorities. It is, on the other hand, heavily charged with political elements that prevented the Conference from becoming a constructive stage in the Decade. The Committee was represented at the Conference by its Chairman and Rapporteur. As a contribution to the Conference, it prepared the study on the Committee’s work frequently mentioned.11 It also submitted a statement12 summarizing the contents and significance of the Convention, and of the obligations it imposes upon States Parties. The view of some members of the Committee, that it should be “represented in its entirety” at the World Conference, was not accepted, and the role it played in relation to the Conference was probably not as comprehensive as expected by some members.13 When the Committee discussed its participation in the Conference and in the Decade to Combat Racism and Racial Discrimination, its members failed to reach agreement on the texts of several proposals, mainly because of the mention of General Assembly Resolution 3379 (XXX), equating Zionism with racism. It was decided to report that “because of the lack of time to reach agreement on the formulation of a final text” the consideration of the item would be postponed.14 3

The Convention on Apartheid

Apartheid is the only form of racial discrimination specifically singled out in the Convention. On 30 November 1973, the General Assembly, by Resolution 3068 (XXVIII), adopted and opened for signature and ratification the International Convention on the Suppression and Punishment of the Crime of Apartheid, which entered into force on 18 July 1976.15 The Preamble of the Convention on Apartheid quotes the text of Article 3 of the Convention on Racial Discrimination. Article VII of the Apartheid Convention establishes a system of periodic reports, to be submitted by States Parties and to be considered by a group of three members of the Commission 11 A/CONF.92/8. 12 For its text, A/33/18, ANNEX V., p. 108. 13 Cfr., in this connection, A/32/18, paras. 344–365. 14 See, A/31/18, paras. 260–281 and CERD/C/SR. 306 to 310. 15 For its text, United Nations, Human Rights, A Compilation of International Instruments, New York, 1978 (ST/HR/1/Rev. 1), p. 30.

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on Human Rights (Article IX). The Commission on Human Rights is empowered by Article X to request United Nations organs, when transmitting copies of petitions under Article 15 of the Convention on Racial Discrimination, “to draw its attention to complaints concerning acts which are enumerated in Article II” as included in the term “the crime of apartheid.” The Convention on Apartheid declares apartheid—which is not defined in the Convention on Racial Discrimination—as a crime against humanity violating the principles of international law. It also declares criminal those organizations, institutions and individuals committing the crime of apartheid. By nature, it goes considerably further than the Convention on Racial Discrimi­ nation, which should be considered, however, an important step towards the outlawing of apartheid, particularly in view of the large number of ratifications it received, as compared to the number of States Parties to the Apartheid Convention—forty-six in October 1978.

Conclusions: A Decade After As pointed out in the Introduction to this edition, a decade is not enough to evaluate the place of a multilateral convention in the history of international legislation. It is sufficient, however, to permit judgment of its potential role, and of the effectiveness of its implementation machinery in the endeavor to achieve the instrument’s aims. On the basis of such an assumption, it is hoped that the contents of this book, especially the chapters incorporated into this second revised edition, will permit the reader interested in contemporary international legal problems to reach conclusions on: the work of the Committee on the Elimination of Racial Discrimination; the problems it has had to deal with and the approach of its members to those problems; and the impact of the Convention on the developments in domestic and international legislation with regard to racial discrimination. It is the conviction of the author that those conclusions will be on the whole positive, despite some reservations. The Convention has been ratified by twothirds of the international community. Many States have incorporated its provisions into their legislation, and judges have applied its principles. The implementation machinery has worked effectively as far as the reporting system is concerned. The Committee has scrutinized the implementation of the Convention in a thorough way, to the point that sometimes its detailed examination has even been called inquisitorial. Some of the decisions taken by cerd have been criticized, especially those in which political elements have been present; but, on the whole, its role has generally been seen as an effective contribution to the struggle against racial discrimination. As indicated, the reporting system under Article 9 is the only implementation procedure established in the Convention to become effective. We summarized in Part 4 the difficulties encountered by the Committee in its attempts to ensure a smooth operation of the Convention in this respect, and we commented on the steps it took to that end. We have tried to bring to the reader’s attention the significance of the quite impressive body of information on racial discrimination produced by the reporting system, despite some shortcomings and misinterpretations. While some States have been remiss in the discharge of their duties, many have submitted reports impressive in their comprehensiveness of form and content. A dialogue between the Committee and States Parties has been established and governments seem to consider it important to take into consideration comments made by the experts of the Committee during the discussion of the reports, and to show a positive record of action against racial discrimination.

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There is, in this respect, an obvious difference between States with a wellestablished legislative tradition and with long-standing normal institutions, on the one hand, and young States without such experience, confronting obstacles that prevent the rule of law from prevailing, on the other. But beyond such a difference, a desire to meet the standards and guidelines established by the Committee has generally been evident, and instances of disregard for the opinion of its members have been few. This does not mean, of course, that the factual situation in the world is satisfactory. A comprehensive report that follows the guidelines determined by the Committee can be presented by States practicing racial discrimination in an open way. But the efforts made by States at least to give the appearance of respecting and implementing the Convention are undoubtedly important, from an educational as well as from a political angle. And in this respect it seems beyond doubt that the Convention and the ten years of cerd’s work have stimulated the improvement of legislation and the adoption of steps implying progress in the elimination of racism. The matter has, naturally, to be seen in the context of the general picture. The Committee only formulated suggestions and general recommendations, and did not relate to specific situations in particular States Parties. There have been no inter-State complaints, although the necessary rules of procedure were drafted by the Committee. While at the Third Committee some States criticized other States when the reports from cerd were discussed, no formal communication intended to put into operation Articles 11 to 13 of the Convention was submitted. Article 14 has not yet come into effect, although the declaration of only a few more States is still missing. We have seen the resistance, in the Committee and in the Third Committee, to the proposals intended to make that optional article operational. Obviously, fear of the new dimensions which could be added to the struggle against racism and racial discrimination, by communications from individuals and non-governmental organizations, has played a role here. Some of the harshest remarks made in the Committee were related to this subject. There is room for hope that Article 14 might come into force in the near future. The practice with regard to Trust and Non-Self-Governing Territories, under Article 15 of the Convention, has been disappointing, despite the efforts of the Committee to discharge its functions properly. We have described the difficulties that prevented the Committee from performing a more important role in this regard. One of the most controversial aspects of the work of the Committee was its decisions regarding alleged racial discrimination in territories militarily

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occupied, or otherwise controlled by States that are not, or were not at that stage, parties to the Convention. The Committee was criticized for considering itself competent to deal with such situations, for issuing judgments without a fact-finding effort and without giving a proper hearing to the incriminated States. Such criticism came from inside the Committee as well as from outside. The work of the Committee was described in its comprehensive reports to the General Assembly. Those were the basis for interesting discussions in the Third Committee, a political body naturally reflecting the attitudes of the different governments. The Committee developed a dialogue with the Third Committee. It also developed cooperation with the two main specialized agencies dealing with racial discrimination in their respective fields, unesco and the ilo. The Committee considered that the provisions of the Convention precluded representatives of those organizations from more active participation in the Committee’s deliberations. A basis for cooperation exists however. In the case of unesco, which undertook a major role in the struggle against racial discrimination with the adoption of its 1978 Declaration on Race and Racial Prejudice, a wider field of common interest seems to be evolving. 104 States have ratified the Convention up to July 1979. It is an impressive number. But even more important seems to be the extent of the Convention’s impact upon the legislation and other measures of the ratifying States. We have considered it useful to devote a good number of pages to summarizing national legislation enacted directly or indirectly under the influence of the Convention. It is of course beyond the purpose of these pages to engage in comment on the situation in each particular country. But there is significance in the fact that the reporting system of the Convention was instrumental in producing such a body of information. The possibility of comparing different legal situations, and the comments made during scrutiny by the Committee of each particular case, might serve a useful purpose. We have also pointed out the influence that the Convention has had on other important international instruments, mainly the unesco Declaration on Race and Racial Prejudice adopted in 1978. The comparison between the provisions of this Declaration and the u.n. Convention shows the trends prevailing in recent years in this field. There is no doubt that the principles of the Convention were embodied in the unesco Declaration, although the Declaration contains some valuable new elements likely to have their own impact on the developing international law of human rights. While a Convention on Apartheid is now in effect, it has not been widely ratified, and some of its controversial provisions will probably deter many

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States from doing so. Article 3 of the Convention is, thus, still of great importance as an undertaking of 104 States to prohibit and eradicate apartheid. In conclusion: ten years since the Convention entered into force it has become an important and integral part of the international law of human rights. States belonging to various legal traditions and different political systems have shown sensitivity to the need to incorporate the principles of the Convention in their domestic legislations and practices. The Convention has influenced other international instruments. As to implementation, a reasonably effective machinery has been established for the scrutiny of the way in which States Parties comply with the provisions of the Convention. In the present state of international affairs, it is a step forward. While politics have played a role, and while decisions of the Committee have been criticized even by some of its members, on the whole its work has been praised and its influence had been noteworthy. The balance of the ten years which have elapsed since the first twenty-seven instruments of ratification of, or accession to, the Convention were deposited seems, thus, to be positive and constructive.

Appendices

∵

Appendix 1

International Convention on the Elimination of All Forms of Racial Discrimination

The States Parties to This Convention

Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action in co-operation with the Organization for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinctions of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

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Appendix 1

Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial ­ discrimination, Bearing in mind the Convention on Discrimination in Respect of Employment and Occupation adopted by the International Labour Organization in 1958, and the Convention Against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960, Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows:



1.

2.

3.

4.

Part I Article 1

In this Convention the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the ­recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. This Convention shall not apply to distinctions, exclusions, restrictions or ­preferences made by a State Party to this Convention between citizens and non-citizens. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure to such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that

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they shall not be continued after the objectives for which they were taken have been achieved.



1.

2.

Article 2

States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms, and promoting understanding among all races, and to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; (e) Each State Party undertakes to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 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 and protection of certain racial groups or individuals belonging to them for the purpose of guaranteeing 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 rights for different racial groups after the objectives for which they were taken have been achieved.



Article 3



Article 4

States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate, in territories under their jurisdiction, all practices of this nature.

States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin,

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Appendix 1

or which attempt to justify or promote racial hatred and discrimination in any form and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination, and to this end, with due regard to the principles embodied in the Universal Declaration 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 racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement 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 other propaganda activities, which promote and incite racial discrimination and shall recognize participation 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 or incite racial discrimination.



Article 5

In compliance with the fundamental obligations laid down in Article 2, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual, group or institution; (c) Political rights, in particular the rights to participate in elections, to vote and to stand for election—on the basis of universal and equal suffrage, to take part in the Government as well as in the conduct of public affairs at any level and to have equal access to public service; (d) Other civil rights, in particular: (i) the right to freedom of movement and residence within the border of the State; (ii) the right to leave any country, including one’s own, and to return to one’s country; (iii) the right to nationality; (iv) the right to marriage and choice of spouse;

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(v) the right to own property alone as well as in association with others; (vi) the right to inherit; (vii) the right to freedom of thought, conscience and religion; (viii) the right to freedom of opinion and expression; (ix) the right to freedom of peaceful assembly and association; (e) Economic, social and cultural rights, in particular: (i) the rights to work, free choice of employment, just and favourable conditions of work, protection against unemployment, equal pay for equal work, just and favourable remuneration; (ii) the right to form and join trade unions; (iii) the right to housing; (iv) the right to public health, medical care and social security and social services; (v) the right to education and training; (vi) the right to equal participation in cultural activities; (f) The right of access to any place or service intended for use by the general public such as transport, hotels, restaurants, cafés, theatres and parks.



Article 6



Article 7



Part II Article 8

States Parties shall assure to everyone within their jurisdiction effective protection and remedies through the competent national tribunals and other State institutions against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to ­combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as  well as to propagating the purposes and principles of the Charter of the United  Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

1.

There shall be established a Committee on the Elimination of Racial Discrimination (hereinafter referred to as the Committee) consisting of eighteen experts of high

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Appendix 1 moral standing and acknowledged impartiality elected by States Parties from amongst their nationals who shall serve in their personal capacity, consideration being given to equitable geographical distribution and to the representation of the different forms of civilizations as well as of the principal legal systems. The members of the Committee shall be elected by secret ballot from a list of persons nominated by the States Parties. Each State Party may nominate one person from among its own nationals. The initial election shall be held six months after the date of the entry into force of this Convention. At least three months before the date of each election the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within two months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated indicating the States Parties which have nominated them and shall submit it to the States Parties. Elections of the members of the Committee shall be held at a meeting of States Parties convened by the Secretary-General at the Headquarters of the United Nations. At that meeting, for which two-thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those nominees who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting. (a) The members of the Committee shall be elected for a term of four years. However, the terms of nine of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these nine members shall be chosen by lot by the Chairman of the Committee. (b) For the filling of casual vacancies, the State Party whose expert has ceased to function as a member of the Committee shall appoint another expert from among its nationals subject to the approval of the Committee. The States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties.

Article 9

The States Parties undertake to submit to the Secretary-General for consideration by the Committee a report on the legislative, judicial, administrative, or other measures that they have adopted and that give effect to the provisions of this Convention: (a) within one year after the entry into force of the Convention for the State concerned; and (b) thereafter every two years and whenever the Committee so requests. The Committee may request further information from the States Parties. The Committee shall report annually through the Secretary-General to the General Assembly on its activities and may make suggestions and general

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recommendations based on the examination of the reports and information received from the States Parties. Such suggestions and general recommendations shall be reported to the General Assembly together with comments, if any, from States Parties.



1. 2. 3. 4.



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4. 5.



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Article 10

The Committee shall adopt its own rules of procedure. The Committee shall elect its officers for a term of two years. The secretariat of the Committee shall be provided by the Secretary-General of the United Nations. The meetings of the Committee shall normally be held at United Nations Headquarters.

Article 11

If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may bring the matter to the attention of the Committee. The Committee shall then transmit the communication to the State Party concerned. Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State. If the matter is not adjusted to the satisfaction of both parties, either by bilateral negotiations or by any other procedure open to them, within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter again to the Committee by notice given to the Committee and also to the other State. The Committee shall deal with a matter referred to it in accordance with paragraph 2 of this article after it has ascertained that all available domestic remedies have been invoked and exhausted in the case, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged. In any matter referred to it, the Committee may call upon the States Parties concerned to supply any other relevant information. When any matter arising out of this article is being considered by the Committee, the States Parties concerned shall be entitled to send a representative to take part in the proceedings of the Committee, without voting rights, while the matter is under consideration.

Article 12

(a) After the Committee has obtained and collated all the information it thinks necessary, the Chairman shall appoint an ad hoc Conciliation Commission

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1.

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Appendix 1 (hereinafter referred to as the Commission) comprising five persons who may or may not be members of the Committee. The members of the Commission shall be appointed with the unanimous consent of the parties to the dispute, and its good offices shall be made available to the States concerned with a view to an amicable solution to the matter on the basis of respect for this Convention. (b) If the States Parties to the dispute fail to reach agreement on all or part of the composition of the Commission within three months, the members of the Commission not agreed upon by the States Parties to the dispute shall be elected by two-thirds majority vote by secret ballot of the Committee from among its own members. The members of the Commission shall serve in their personal capacity. They shall not be nationals of the States Parties to the dispute or of a State Party not Party to this Convention. The Commission shall elect its own Chairman and adopt its own rules of procedure. The meeting of the Commission shall normally be held at United Nations Headquarters, or at any other convenient place as determined by the Commission. The secretariat provided in accordance with Article 10, paragraph 3, shall also service the Commission whenever a dispute among States Parties brings the Commission into being. The States Parties to the dispute shall share equally all the expenses of the members of the Commission in accordance with estimates to be provided by the Secretary-General. The Secretary-General shall be empowered to pay the expenses of the members of the Commission, if necessary, before reimbursement by the States Parties to the dispute in accordance with paragraph 6 of this article. The information obtained and collated by the Committee shall be made available to the Commission and the Commission may call upon the States concerned to supply any other relevant information.

Article 13

When the Commission has fully considered the matter, it shall prepare and submit to the Chairman of the Committee a report embodying its findings on all questions of fact relevant to the issue between the parties and containing such recommendations as it may think proper for the amicable solution of the dispute. The Chairman of the Committee shall communicate the report of the Commission to each of the States Parties to the dispute. These States shall within three months inform the Chairman of the Committee whether or not they accept the recommendations contained in the report of the Commission.

Elimination of All Forms of Racial Discrimination 3.



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After the period provided for in paragraph 2 of this article, the Chairman of the Committee shall communicate the report of the Commission and the ­declarations of States Parties concerned to the other States Parties to this Convention.

Article 14

A State Party may at any time declare that it recognizes the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that State Party of any of the rights set forth in this Convention. No communication shall be received by the Committee if it concerns a State Party which has not made such a declaration. Any State Party which makes a declaration as provided for in paragraph 1 of this article may establish or indicate a body within its national legal order which shall be competent to receive and consider petitions from individuals and groups of individuals within its jurisdiction who claim to be victims of a violation of any of the rights set forth in this Convention and who have exhausted other available local remedies. A declaration made in accordance with paragraph 1 of this article and the name of any body established or indicated in accordance with paragraph 2 of this article, shall be deposited by the State Party concerned with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General, but such a withdrawal shall not affect communications pending before the Committee. A register of petitions shall be kept by the body established or indicated in accordance with paragraph 2 of this article, and certified copies of the register shall be filed annually through appropriate channels with the Secretary-General on the understanding that the contents shall not be publicly disclosed. In the event of failure to obtain satisfaction from the body established or indicated in accordance with paragraph 2 of this article, the petitioner shall have the right to communicate the matter to the Committee within six months. (a) The Committee shall confidentially bring any communication referred to it to the attention of the State Party alleged to be violating any provision of this Convention, but the identity of the individual or groups of individuals concerned shall not be revealed without his or their express consent. The Committee shall not receive anonymous communications. (b) Within three months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that have been taken by that State.

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Appendix 1 (a) The Committee shall consider communications in the light of all information made available to it by the State Party concerned and by the petitioner. The Committee shall not consider any communication from a petitioner unless it has ascertained that the petitioner has exhausted all available domestic remedies. However, this shall not be the rule where the application of the remedies is unreasonably prolonged. (b) The Committee shall forward its suggestions and recommendations, if any, to the State Party concerned and to the petitioner. The Committee shall include in its annual report a summary of such communications and, where appropriate, a summary of the explanations and statements  of the States Parties concerned and of its own suggestions and recommendations. The Committee shall be competent to exercise the functions provided for in this article only when at least ten States Parties to this Convention are bound by declarations in accordance with paragraph 1 of this article.

Article 15

Pending the achievement of the objectives of General Assembly resolution 1514  (XV) of December 1960 concerning the Declaration on the Granting of Independence to Colonial Countries and Peoples, the provisions of this Convention shall in no way limit the right of petition granted to these peoples by other international instruments or by the United Nations and its specialized agencies. (a) The Committee established under Article 8, paragraph 1, shall receive copies of the petitions from, and submit expressions of opinion and recommendations on these petitions to, the bodies of the United Nations which deal with matters directly related to the principles and objectives of this Convention in their consideration of petitions from the inhabitants of Trust and Non-Self-Governing Territories, and all other territories to which General Assembly resolution 1514 (XV) applies, relating to matters covered by this Convention which are before these bodies. (b) The Committee shall receive from the competent bodies of the United Nations copies of the reports concerning the legislative, judicial, administrative or other measures directly related to the principles and objectives of this Convention applied by the administering Powers within the territories mentioned in sub-paragraph (a) of this paragraph and shall express opinions and make recommendations to these bodies. The Committee shall include in its report to the General Assembly a summary of the petitions and reports it has received from United Nations bodies, and the expressions of opinion and recommendations of the Committee related to the said petitions and reports.

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The Committee shall request from the Secretary-General of the United Nations all information relevant to the objectives of this Convention and available to him regarding the territories mentioned in paragraph 2(a) of this article.



Article 16



Part III Article 17

The provisions of this Convention concerning the settlement of disputes or complaints shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination laid down in the constituent instruments of, or in conventions adopted by, the United Nations and its specialized agencies, and shall not prevent the States Parties from having recourse to other procedures for settling a ­dispute in accordance with general or special international agreements in force between them.

1.

2.



1. 2.



1.

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1.

This Convention is open for signature by any State Member of the United Nations or member of any of its specialized agencies, by any State Party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a Party to this Convention. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.

Article 18

This Convention shall be open to accession by any State referred to in Article 17, paragraph 1. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.

Article 19

This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twenty-seventh instrument of ratification or instrument of accession. For each State ratifying this Convention or acceding to it after the deposit of the twenty-seventh instrument of ratification or instrument of accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or instrument of accession.

Article 20

The Secretary-General of the United Nations shall receive and circulate to all States which are or may become Parties to this Convention reservations made by

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Appendix 1 States at the time of ratification or accession. Any State which objects to the reservation shall, within a period of ninety days from the date of the said communication, notify the Secretary-General that it does not accept it. A reservation incompatible with the object and purpose of this Convention shall not be permitted, nor shall a reservation the effect of which would inhibit the operation of any of the bodies established by the Convention be allowed. A reservation shall be considered incompatible or inhibitive if at least two-thirds of the States Parties to this Convention object to it. Reservations may be withdrawn at any time by notification to this effect addressed to the Secretary-General. Such notification shall take effect on the date on which it is received.



Article 21



Article 22

A State Party may denounce this Convention by written notification to the SecretaryGeneral of the United Nations. Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.

Any dispute between two or more States Parties over the interpretation or application of this Convention, which is not settled by negotiation or by the procedures expressly provided for in this Convention, shall at the request of any of the parties to the dispute be referred to the International Court of Justice for decision, unless the disputants agree to another mode of settlement.



1.

2.



Article 23

A request for the revision of this Convention may be made at any time by any State Party by means of a notification in writing addressed to the Secretary-General. The General Assembly shall decide upon the steps, if any, to be taken in respect of such a request.

Article 24

The Secretary-General of the United Nations shall inform all States referred to in Article 17, paragraph 1, of the following particulars: (a) Signatures, ratifications and accessions under articles 17 and 18; (b) The date of entry into force of this Convention under Article 19; (c) Communications and declarations received under Articles 14, 20 and 23; (d) Denunciations under Article 21.

Elimination of All Forms of Racial Discrimination



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Article 25

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This Convention, of which the Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States belonging to any of the categories mentioned in Article 17, paragraph 1.

appendix 2

United Nations Declaration on the Elimination of all Forms of Racial Discrimination General Assembly Resolution 1904 (XVIII), 20 November 1963

The General Assembly

Considering that the Charter of the United Nations is based on the principles of the dignity and equality of all human beings and seeks, among other basic objectives, to achieve international cooperation in promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out in the Declaration, without distinction of any kind, in particular as to race, colour or national origin, Considering that the Universal Declaration of Human Rights proclaims further that all are equal before the law and are entitled without any discrimination to equal protection of the law and that all are entitled to equal protection against any discrimination and against any incitement to such discrimination, Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, and that the Declaration on the granting of independence to colonial countries and peoples proclaims in particular the necessity of bringing colonialism to a speedy and unconditional end, Considering that any doctrine of racial differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination either in theory or in practice, Taking into account the other resolutions adopted by the General Assembly and the international instruments adopted by the specialized agencies, in particular the International Labour Organization and the United Nations Educational, Scientific and Cultural Organization, in the field of discrimination, Taking into account the fact that, although international action and efforts in a number of countries have made it possible to achieve progress in that field, discrimination based on race, colour or ethnic origin in certain areas of the world continues none the less to give cause for serious concern, Alarmed by the manifestations of racial discrimination still in evidence in some areas of the world, some of which are imposed by certain Governments by means of

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legislative, administrative or other measures, in the form, inter alia, of apartheid, segregation and separation, as well as by the promotion and dissemination of doctrines of racial superiority and expansionism in certain areas, Convinced that all forms of racial discrimination and, still more so, governmental policies based on the prejudice of racial superiority or on racial hatred, besides constituting a violation of fundamental human rights, tend to jeopardize friendly relations among peoples, co-operation between nations and international peace and security, Convinced also that racial discrimination harms not only those who are its objects but also those who practise it, Convinced further that the building of a world society free from all forms of racial segregation and discrimination, factors which create hatred and division among men, is one on the fundamental objectives of the United Nations, 1.

2.

3.



Solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world, in all its forms and manifestations, and of securing understanding of and respect for the dignity of the human person; Solemnly affirms the necessity of adopting national and international measures to that end, including teaching, education and information, in order to secure the universal and effective recognition and observance of the principles set forth below; Proclaims this Declaration:

Article 1

Discrimination between human beings on the grounds of race, colour or ethnic origin is an offence to human dignity and shall be condemned as a denial of the principles of the Charter of the United Nations, as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights, as an obstacle to friendly and peaceful relations among nations and as a fact capable of disturbing peace and security among peoples.



1.

2.

3.

Article 2

No State, institution, group or individual shall make any discrimination whatsoever in matters of human rights and fundamental freedoms in the treatment of persons, groups of persons or institutions on the grounds of race, colour or ethnic origin. No State shall encourage, advocate or lend its support, through police action or otherwise, to any discrimination based on race, colour or ethnic origin by any group, institution or individual. Special concrete measures shall be taken in appropriate circumstances in order to secure adequate development or protection of individuals belonging to

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appendix 2 certain racial groups with the object of ensuring the full enjoyment by such individuals of human rights and fundamental freedoms. These measures shall in no circumstances have as a consequence the maintenance of unequal or separate rights for different racial groups.



1.

2.

Article 3

Particular efforts shall be made to prevent discrimination based on race, colour or ethnic origin, especially in the fields of civil rights, access to citizenship, education, religion, employment, occupation and housing. Everyone shall have equal access to any place or facility intended for use by the general public, without distinction as to race, colour or ethnic origin.



Article 4



Article 5



Article 6



Article 7

All States shall take effective measures to revise governmental and other public policies and to rescind laws and regulations which have the effect of creating and perpetuating racial discrimination whereever it still exists. They should pass legislation for prohibiting such discrimination and should take all appropriate measures to combat those prejudices which lead to racial discrimination.

An end shall be put without delay to governmental and other public policies of racial segregation and especially policies of apartheid, as well as all forms of racial discrimination and separation resulting from such policies.

No discrimination by reason of race, colour or ethnic origin shall be admitted in the enjoyment by any person of political and citizenship rights in his country, in particular the right to participate in elections through universal and equal suffrage and to take part in the government. Everyone has the right of equal access to public service in his country.

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Everyone has the right to equality before the law and to equal justice under the law. Everyone, without distinction as to race, colour or ethnic origin, has the right to security of person and protection by the State against violence or bodily harm whether inflicted by government officials or by any individual, group or institution. Everyone shall have the right to an effective remedy and protection against any discrimination he may suffer on the ground of race, colour or ethnic origin with respect to his fundamental rights and freedoms through independent national tribunals competent to deal with such matters.

United Nations Declaration



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Article 8

All effective steps shall be taken immediately in the fields of teaching, education and information, with a view to eliminating racial discrimination and prejudice and promoting understanding, tolerance and friendship among nations and racial groups, as well as to propagating the purposes and principles of the Charter of the United Nations, of the Universal Declaration of Human Rights, and of the Declaration on the granting of independence to colonial countries and peoples.



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3.

Article 9

All propaganda and organizations based on ideas or theories of the superiority of one race or group of persons of one colour or ethnic origin with a view to justifying or promoting racial discrimination in any form shall be severely condemned. All incitement to or acts of violence, whether by individuals or organizations, against any race or group of persons of another colour or ethnic origin shall be considered an offence against society and punishable under law. In order to put into effect the purposes and principles of the present Declaration, all States shall take immediate and positive measures to prosecute and/or outlaw organizations which promote or incite to racial discrimination, or incite to or use violence for purposes of discrimination based on race, colour or ethnic origin.



Article 10



Article 11

The United Nations, the specialized agencies, States and nongovernmental organizations shall do all in their power to promote energetic action which, by combining legal and other practical measures, will make possible the abolition of all forms of racial discrimination. They shall, in particular, study the causes of such discrimination with a view to recommending appropriate and effective measures to combat and eliminate it.

Every State shall promote respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations, and shall fully and faithfully observe the provisions of the present Declaration, the Universal Declaration of Human Rights and the Declaration on the granting of independence to colonial countries and peoples.

appendix 3

unesco Declaration on Race and Racial Prejudice (27 November 1978) The General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting at Paris at its twentieth session, on 27 November 1978 adopted unanimously and by acclamation the following Declaration:

Preamble The General Conference of the United Nations Educational, Scientific and Cultural Organization, meeting at Paris at its twentieth session, from 24 October to 28 November 1978, Whereas it is stated in the Preamble to the Constitution of Unesco, adopted on 16 November 1945, that the great and terrible war which has now ended was a war made possible by the denial of the democratic principles of the dignity, equality and mutual respect of men, and by the propagation, in their place, through ignorance and prejudice, of the doctrine of the inequality of men and races, and whereas, according to Article I of the said Constitution, the purpose of Unesco “is to contribute to peace and security by promoting collaboration among the nations through education, science and culture in order to further universal respect for justice, for the rule of law and for the human rights and fundamental freedoms which are affirmed for the peoples of the world, without distinction of race, sex, language or religion, by the Charter of the United Nations,” Recognizing that, more than three decades after the founding of Unesco, these principles are just as significant as they were when they were embodied in its Constitution, Mindful of the process of decolonization and other historical changes which have led most of the peoples formerly under foreign rule to recover their sovereignty, making the international community a universal and diversified whole and creating new opportunities of eradicating the scourge of racism and of putting an end to its odious manifestations in all aspects of social and political life, both nationally and internationally, Convinced that the essential unity of the human race and consequently the fundamental equality of all human beings and all peoples, recognized in the loftiest expressions of philosophy, morality and religion, reflect an ideal towards which ethics and science are converging today,

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Convinced that all peoples and all human groups, whatever their composition or ethnic origin, contribute according to their own genius to the progress of the civilizations and cultures which, in their plurality and as a result of their interpenetration, constitute the common heritage of mankind, Confirming its attachment to the principles proclaimed in the United Nations Charter and the Universal Declaration of Human Rights and its determination to promote the implementation of the International Covenants on Human Rights as well as the Declaration on the Establishment of a New International Economic Order, Determined also to promote the implementation of the United Nations Declaration and the International Convention on the Elimination of all Forms of Racial Discrimination, Noting the International Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, Recalling also the international instruments already adopted by Unesco, including in particular the Convention and Recommendation against Discrimination in Education, the Recommendation concerning the Status of Teachers, the Declaration of the Principles of International Cultural Co-operation, the Recommendation concerning Education for International Understanding, Co-operation and Peace and Education relating to Human Rights and Fundamental Freedoms, the Recommendation on the Status of Scientific Researchers, and the Recommendation on participation by the people at large in cultural life and their contribution to it, Bearing in mind the four statements on the race question adopted by experts convened by Unesco, Reaffirming its desire to play a vigorous and constructive part in the implementation of the programme of the Decade for Action to Combat Racism and Racial Discrimination, as defined by the General Assembly of the United Nations at its twenty-eighth session, Noting with the gravest concern that racism, racial discrimination, colonialism and apartheid continue to afflict the world in ever-changing forms, as a result both of the continuation of legislative provisions and government and administrative practices contrary to the principles of human rights and also of the continued existence of political and social structures, and of relationships and attitudes, characterized by injustice and contempt for human beings and leading to the exclusion, humiliation and exploitation, or to the forced assimilation, of the members of disadvantaged groups, Expressing its indignation at these offences against human dignity, deploring the obstacles they place in the way of mutual understanding between peoples and alarmed at the danger of their seriously disturbing international peace and security, Adopts and solemnly proclaims this Declaration on Race and Racial Prejudice:

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appendix 3

Article 1 All human beings belong to a single species and are descended from a common stock. They are born equal in dignity and rights and all form an integral part of humanity. All individuals and groups have the right to be different, to consider themselves as different and to be regarded as such. However, the diversity of life styles and the right to be different may not, in any circumstances, serve as a pretext for racial prejudice; they may not justify either in law or in fact any discriminatory practice whatsoever, nor provide a ground for the policy of apartheid, which is the extreme form of racism. Identity of origin in no way affects the fact that human beings can and may live differently, nor does it preclude the existence of differences based on cultural, environmental and historical diversity nor the right to maintain cultural identity. All peoples of the world possess equal faculties for attaining the highest level in intellectual, technical, social, economic, cultural and political development. The differences between the achievements of the different peoples are entirely attributable to geographical, historical, political, economic, social and cultural factors. Such differences can in no case serve as a pretext for any rank-ordered classification of nations or peoples.

Article 2 Any theory which involves the claim that racial or ethnic groups are inherently superior or inferior, thus implying that some would be entitled to dominate or eliminate others, presumed to be inferior, or which bases value judgements on racial differentiation, has no scientific foundation and is contrary to the moral and ethical principles of humanity. Racism includes racist ideologies, prejudiced attitudes, discriminatory behaviour, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable; it is reflected in discriminatory provisions in legislation or regulations and discriminatory practices as well as in anti-social beliefs and acts; it hinders the development of its victims, perverts those who practise it, divides nations internally, impedes international cooperation and gives rise to political tensions between peoples; it is contrary to the fundamental principles of international law and, consequently, seriously disturbs international peace and security.

unesco Declaration on Race and Racial Prejudice 3.



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Racial prejudice, historically linked with inequalities in power, reinforced by economic and social differences between individuals and groups, and still seeking today to justify such inequalities, is totally without justification.

Article 3

Any distinction, exclusion, restriction or preference based on race, colour, ethnic or national origin or religious intolerance motivated by racist considerations, which destroys or compromises the sovereign equality of States and the right of peoples to self-determination, or which limits in an arbitrary or discriminatory manner the right of every human being and group to full development is incompatible with the requirements of an international order which is just and guarantees respect for human rights; the right to full development implies equal access to the means of personal and collective advancement and fulfilment in a climate of respect for the values of civilizations and cultures, both national and world-wide.

1.

2.

3.

1.

Article 4 Any restriction on the complete self-fulfilment of human beings and free ­communication between them which is based on racial or ethnic considerations is contrary to the principle of equality in dignity and rights; it cannot be admitted. One of the most serious violations of this principle is represented by apartheid, which, like genocide, is a crime against humanity, and gravely disturbs international peace and security. Other policies and practices of racial segregation and discrimination constitute crimes against the conscience and dignity of mankind and may lead to political tensions and gravely endanger international peace and security.

Article 5 Culture, as a product of all human beings and a common heritage of mankind, and education in its broadest sense, offer men and women increasingly effective means of adaptation, enabling them not only to affirm that they are born equal in dignity and rights, but also to recognize that they should respect the right of all groups to their own cultural identity and the development of their distinctive cultural life within the national and international context, it being understood

238

2.

3.

1.

2.

appendix 3 that it rests with each group to decide in complete freedom on the maintenance and, if appropriate, the adaptation or enrichment of the values which it regards as essential to its identity. States, in accordance with their constitutional principles and procedures, as well as all other competent authorities and the entire teaching profession, have a responsibility to see that the educational resources of all countries are used to combat racism, more especially by ensuring that curricula and textbooks include scientific and ethical considerations concerning human unity and diversity and that no invidious distinctions are made with regard to any people; by training teachers to achieve these ends; by making the resources of the educational system available to all groups of the population without racial restriction or discrimination; and by taking appropriate steps to remedy the handicaps from which certain racial or ethnic groups suffer with regard to their level of education and standard of living and in particular to prevent such handicaps from being passed on to children. The mass media and those who control or serve them, as well as all organized groups within national communities, are urged—with due regard to the principles embodied in the Universal Declaration of Human Rights, particularly the principle of freedom of expression—to promote understanding, tolerance and friendship among individuals and groups and to contribute to the eradication of racism, racial discrimination and racial prejudice, in particular by refraining from presenting a stereotyped, partial, unilateral or tendentious picture of individuals and of various human groups. Communication between racial and ethnic groups must be a reciprocal process, enabling them to express themselves and to be fully heard without let or hindrance. The mass media should therefore be freely receptive to ideas of individuals and groups which facilitate such communication.

Article 6 The State has prime responsibility for ensuring human rights and fundamental freedoms on an entirely equal footing in dignity and rights for all individuals and all groups. So far as its competence extends and in accordance with its constitutional principles and procedures, the State should take all appropriate steps, inter alia by legislation, particularly in the spheres of education, culture and communication, to prevent, prohibit and eradicate racism, racist propaganda, racial segregation and apartheid and to encourage the dissemination of knowledge and the findings of appropriate research in natural and social sciences on the causes and

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3.



239

prevention of racial prejudice and racist attitudes, with due regard to the principles embodied in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights. Since laws proscribing racial discrimination are not in themselves sufficient, it is also incumbent on States to supplement them by administrative machinery for the systematic investigation of instances of racial discrimination, by a comprehensive framework of legal remedies against acts of racial discrimination, by broadly based education and research programmes designed to combat racial prejudice and racial discrimination and by programmes of positive political, social, educational and cultural measures calculated to promote genuine mutual respect among groups. Where circumstances warrant, special programmes should be undertaken to promote the advancement of disadvantaged groups and, in the case of nationals, to ensure their effective participation in the decisionmaking processes of the community.

Article 7

In addition to political, economic and social measures, law is one of the principal means of ensuring equality in dignity and rights among individuals, and of curbing any propaganda, any form of organization or any practice which is based on ideas or theories referring to the alleged superiority of racial or ethnic groups or which seeks to justify or encourage racial hatred and discrimination in any form. States should adopt such legislation as is appropriate to this end and see that it is given effect and applied by all their services, with due regard to the principles embodied in the Universal Declaration of Human Rights. Such legislation should form part of a political, economic and social framework conducive to its implementation. Individuals and other legal entities, both public and private, must conform with such legislation and use all appropriate means to help the population as a whole to understand and apply it.

1.

Article 8 Individuals, being entitled to an economic, social, cultural and legal order, on the national and international planes, such as to allow them to exercise all their capabilities on a basis of entire equality of rights and opportunities, have corresponding duties towards their fellows, towards the society in which they live and towards the international community. They are accordingly under an obligation to promote harmony among the peoples, to combat racism and racial prejudice

240

2.

3.

1.

2.

3.

4.

appendix 3 and to assist by every means available to them in eradicating racial discrimination in all its forms. In the field of racial prejudice and racist attitudes and practices, specialists in natural and social sciences and cultural studies, as well as scientific organizations and associations, are called upon to undertake objective research on a wide interdisciplinary basis; all States should encourage them to this end. It is, in particular, incumbent upon such specialists to ensure, by all means available to them, that their research findings are not misinterpreted, and also that they assist the public in understanding such findings.

Article 9 The principle of the equality in dignity and rights of all human beings and all peoples, irrespective of race, colour and origin, is a generally accepted and recognized principle of international law. Consequently any form of racial discrimination practised by a State constitutes a violation of international law giving rise to its international responsibility. Special measures must be taken to ensure equality in dignity and rights for individuals and groups wherever necessary, while ensuring that they are not such as to appear racially discriminatory. In this respect, particular attention should be paid to racial or ethnic groups which are socially or economically disadvantaged, so as to afford them, on a completely equal footing and without discrimination or restriction, the protection of the laws and regulations and the advantages of the social measures in force, in particular in regard to housing, employment and health; to respect the authenticity of their culture and values; and to facilitate their social and occupational advancement, especially through education. Population groups of foreign origin, particularly migrant workers and their families who contribute to the development of the host country, should benefit from appropriate measures designed to afford them security and respect for their dignity and cultural values and to facilitate their adaptation to the host environment and their professional advancement with a view to their subsequent reintegration in their country of origin and their contribution to its development; steps should be taken to make it possible for their children to be taught their mother tongue. Existing disequilibria in international economic relations contribute to the exacerbation of racism and racial prejudice; all States should consequently endeavour to contribute to the restructuring of the international economy on a more equitable basis.

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241

Article 10

International organizations, whether universal or regional, governmental or nongovernmental, are called upon to co-operate and assist, so far as their respective fields of competence and means allow, in the full and complete implementation of the principles set out in this Declaration, thus contributing to the legitimate struggle of all men, born equal in dignity and rights, against the tyranny and oppression of racism, racial segregation, apartheid and genocide, so that all the peoples of the world may be forever delivered from these scourges.



Resolution for Implementation of the Declaration

The General Conference, at its twentieth session, Considering that Unesco, by reason of the responsibilities devolving upon it under its Constitution in the fields of education, science, culture and communication, is required to call the attention of States and peoples to the problems related to all aspects of the question of race and racial prejudice, Having regard to the Unesco Declaration on Race and Racial Prejudice adopted this twenty-seventh day of November 1978,

1

Urges Member States

2

Invites the Director-General:

(a) to consider the possibility of ratifying, if they have not yet done so, the international instruments designed to aid in countering and eliminating racial discrimination, and in particular the International Convention on the Elimination of all Forms of Racial Discrimination, the International Convention on the Suppression and Punishment of the Crime of Apartheid and the Unesco Convention against Discrimination in Education; (b) to take appropriate measures, including the passing of laws, guided by the provisions of Articles 4 and 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, with a view to preventing and punishing acts of racial discrimination and ensuring that fair and adequate reparation is made to the victims of racial discrimination; (c) to communicate to the Director-General all necessary information concerning the steps they have taken to give effect to the principles set forth in the Declaration.

(a) to prepare a comprehensive report on the world situation in the fields covered by the Declaration, on the basis of the information supplied by Member States

242

(b)

(c)

(d)

(e)

appendix 3 and of any other information supported by trustworthy evidence which he may have gathered by such methods as he may think fit, and to enlist for this purpose, if he deems it advisable, the help of one or more independent experts of recognized competence in these fields; to take due account, when preparing his report, which should be accompanied by any observations he may deem appropriate, of the work of the various international bodies set up to give effect to the legal instruments concerning the struggle against racialism and racial discrimination, or contributing to that struggle through their activities in the general field of human rights; to present his report to the General Conference and to submit to it for decision, on the basis of the said report and of the discussion it will then have held, with due priority, on the problems of race and racial prejudice, any general comments and any recommendations deemed necessary to promote the implementation of the Declaration; to ensure the widest possible dissemination of the text of the Declaration and, to that end, to publish and arrange for the distribution of the text not only in the official languages but also in as many languages as is possible with the resources available to him; to communicate the Declaration to the Secretary-General of the United Nations with a request that he place before the United Nations General Assembly appropriate proposals for strengthening the methods of peaceful settlement of disputes concerning the elimination of racial discrimination.

appendix 4

Status of the Convention A.

States parties to the International Convention on the Elimination of All Forms of Racial Discrimination (175) as at 1 March 2013 Afghanistan, Albania, Algeria, Andorra, Antigua and Barbuda, Argentina, Armenia, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Bangladesh, Barbados, Belarus, Belgium, Belize, Benin, Bolivia (Plurinational State of), Bosnia and Herzegovina, Botswana, Brazil, Bulgaria, Burkina Faso, Burundi, Cambodia, Cameroon, Canada, Cape Verde, Central African Republic, Chad, Chile, China, Colombia, Comoros, Congo, Costa Rica, Côte d’Ivoire, Croatia, Cuba, Cyprus, Czech Republic, Democratic Republic of the Congo, Denmark, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Finland, France, Gabon, Gambia, Georgia, Germany, Ghana, Greece, Guatemala, Guinea, Guinea-Bissau, Guyana, Haiti, Holy See, Hungary, Honduras, Iceland, India, Indonesia, Iran (Islamic Republic of), Iraq, Ireland, Israel, Italy, Jamaica, Japan, Jordan, Kazakhstan, Kenya, Kuwait, Kyrgyzstan, Lao People’s Democratic Republic, Latvia, Lebanon, Lesotho, Liberia, Libyan Arab Jamahiriya, Liechtenstein, Lithuania, Luxembourg, Madagascar, Malawi, Maldives, Mali, Malta, Mauritania, Mauritius, Mexico, Monaco, Mongolia, Montenegro, Morocco, Mozambique, Namibia, Nepal, Netherlands, New Zealand, Nicaragua, Niger, Nigeria, Norway, Oman, Pakistan, Panama, Paraguay, Papua New Guinea, Peru, Philippines, Poland, Portugal, Qatar, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Rwanda, Saint Lucia, Saint Kitts and Nevis, Saint Vincent and the Grenadines, San Marino, Saudi Arabia, Senegal, Serbia, Seychelles, Sierra Leone, Slovakia, Slovenia, Solomon Islands, Somalia, South Africa, Spain, Sri Lanka, Sudan, Suriname, Swaziland, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Thailand, the former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Turkey, Turkmenistan, Uganda, Ukraine, United Arab Emirates, United Kingdom of Great Britain and Northern Ireland, United Republic of Tanzania, United States of America, Uruguay, Uzbekistan, Venezuela (Bolivarian Republic of), Viet Nam, Yemen, Zambia, Zimbabwe.

B.

States parties that have made the declaration under article 14, para 1, of the Convention (54) as at 1 March 2013 Algeria, Andorra, Argentina, Australia, Austria, Azerbaijan, Belgium, Bolivia (Plurinational State of), Brazil, Bulgaria, Chile, Costa Rica, Cyprus, Czech

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004279926_022

244

appendix 4 Republic, Denmark, Ecuador, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Ireland, Italy, Kazakhstan, Liechtenstein, Luxembourg, Malta, Mexico, Monaco, Montenegro, Morocco, Netherlands, Norway, Peru, Poland, Portugal, Republic of Korea, Romania, Russian Federation, San Marino, Senegal, Serbia, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Ukraine, Uruguay and Venezuela (Bolivarian Republic of).

C.

States parties that have accepted the amendments to article 8, para 6, of the Convention adopted at the Fourteenth Meeting of States Parties (43) as at 1 March 2013 Australia, Bahamas, Bahrain, Belize, Bulgaria, Burkina Faso, Canada, China, Colombia, Costa Rica, Cuba, Cyprus, Czech Republic, Denmark, Ecuador, Finland, France, Germany, Guinea, Holy See, Iceland, Iran (Islamic Republic of), Iraq, Ireland, Liberia, Liechtenstein, Luxembourg, Mexico, Netherlands (for the Kingdom in Europe and the Netherlands Antilles and Aruba), New Zealand, Norway, Poland, Republic of Korea, Saudi Arabia, Seychelles, Slovakia, Sweden, Switzerland, Syrian Arab Republic, Trinidad and Tobago, Ukraine, United Kingdom of Great Britain and Northern Ireland, Zimbabwe.

Note: The following States have signed but not ratified the Convention: Bhutan, Grenada, Nauru and Sao Tome and Principe.

Select Bibliography American Society of International Law. Proceedings, 64th Annual Meeting, American Journal of International Law 64 (1970): 106–130. Bindman, Geoffrey. Restraint in Incitement – The New British Law. Patterns of Prejudice 11: 2 (1977): 5–9. Bitker, Bruno. The International Treaty Against Racial Discrimination. Marquette Law Review 53: 1 (1970): 68–81. Bossuyt, Marc. L’interdiction de la Discrimination dans le Droit International des Droits de l’Homme. Brussels: Emile Bruyland S.A. 1976. Buergenthal, Thomas. Implementing the Racial Convention. Texas International Law Journal 12: 2–3 (1977): 187–221. Capotorti, Francesco. Study on the Right of Persons Belonging to Ethnic, Religious and Linguistic Minorities. u.n. doc. E./CN. 4/Sub.2/384 and Add.1/2/3/4/5/6/7, 1977. Cassese, Antonio. Il sistema de garanzia della Convenzione dell’ onu sull’eliminazione di ogni forma di discriminazione razziale. Rivista di Diritto Internazionale. Milan (1967): 270–336. Cohen, Roberta. United Nations’ Stand on Antisemitism. Patterns of Prejudice 2: 2 (1968): 21–24. Coleman, Howard D. The Problem of Anti-semitism under the International Convention on the Elimination of All Forms of Racial Discrimination. Revue des Droits de l’Homme/Human Rights Journal II: Paris, 4 (1969): 609–631. Das, Kamleshwar. Measures of Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination with Special Reference to the Provisions Concerning Reports from States Parties to the Convention. Revue des Droits de l’Homme/Human Rights Journal IV: Paris, 2–3 (1971): 213–262. ——. Institutions et procédures issues des conventions relatives aux droits de l’homme et aux libertés fundamentales. In: Les dimensions internationales des droits de l’homme. Edited by Karel Vasak. Paris. unesco. 1978, pp. 367–409. Dinstein, Yoram. Collective Human Rights of Peoples and Minorities. International and Comparative Law Quarterly 25 (1976): 102–120. Golsong, H. Implementation of International Protection of Rights. Rec. des Cours. Hague Academy of International Law III (1963): 1–151. Grassby, A.J. The First Two Years of Australia’s Racial Discrimination Act. Patterns of Prejudice 11:5: London (1977): 23–25. Keith, K.J. Race Relations and the Law in New Zealand. Revue des Droits de l’Homme/ Human Rights Journal VI-2 (1973): 329–368. Lerner, Natan. The Crime of Incitement to Group Hatred. New York: World Jewish Congress. 1965.

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——. International Definitions of Incitement to Racial Hatred. New York Law Forum: XIV: 1 (1968): 49–59. ——. The Golan Heights Case and the un Committee on Racial Discrimination. Israel Yearbook on Human Rights 3 (1973): 118–135. Lester, Anthony and Geoffrey Bindman. Race and Law. Middlesex: Penguin. 1972. Marks, Stephen. unesco and Human Rights: The Implementation of Rights Relating to Education, Science, Culture and Communication. Texas International Law Journal 13: 1 (1977): 35–67. Meron, Theodor. The International Convention on the Elimination of All Forms of Racial Discrimination and the Golan Heights. Israel Yearbook on Human Rights 8 (1978): 222–239. Nathanson, Nathaniel R. and Egon Schwelb. The United States and the United Nations Treaty on Racial Discrimination. Washington: West Publishing Co. 1975. Partsch, Karl Joseph. “Les principes de base des droits de l’homme: l’autodétermination, l’égalité et la non-discrimination.” In Les dimensions internationales des droites de l’homme. Edited by Karel Vasak, Paris. unesco. 1978, pp. 64–96. ——. Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights. Texas International Law Journal 14: 2 (1979): 191–250. ——. Die Konvention zur Beseitigung des Rassendiskriminierung. Vereinigte Nationen, Bonn, 1/71, pp. 1–8 and 2/71, pp. 46–53. Roth, S.J. British Race Legislation and International Law. Patterns of Prejudice 2: 3 (1968): 14 and ff. Ruzie, David. The French Anti-boycott Law. Patterns of Prejudice 11: 4 (1977): 4–6. Salzberg, J. un Prevention of Human Rights Violations: The Bangladesh Case. International Organization 27: 1 (1973): 119–129. Santa Cruz, Hernán. Racial Discrimination. United Nations: New York. 1976. Schaffer, Patricia and David Weissbrodt. Exhaustion of Remedies in the Context of the Racial Discrimination Convention. Revue des Droits de l’Homme/Human Rights Journal II-4 (1969): 632–652. Schroth, Peter W. and Virginia S. Mueller. Racial Discrimination: The United States and the International Convention. Human Rights 4: 2 (1975): 171–203. Schwelb, Egon. The International Convention on the Elimination of All Forms of Racial Discrimination. The International and Comparative Law Quarterly. London (Oct. 1966): 996–1059. ——. “The Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination.” In The International Law Association, Report of the Fifty-Fifth Conference (New York 1972), London. 1974, pp. 584–608. Sohn, Louis B. and Thomas Buergenthal. International Protection of Human Rights. Indianapolis: Bobbs, Merrill Co. 1973.

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unesco. Four Statements on the Race Question. Paris. 1969. ——. Apartheid, Its Effects on Education, Science, Culture and Information, 2nd ed, Paris. 1972. Vasak, Karel. Les institutions nationales, régionales et universelles pour la promotion et la protection des droits de l’homme. Revue des Droits de l’Homme/Human Rights Journal 1: 2: Paris (1968): 164–179. Vierdag, E.W. The Concept of Discrimination in International Law. The Hague: Martinus Nijhoff. 1973.

Index Abram, Morris  6, 22–4, 30, 39, 44, 48, 54n44, 57, 63, 65 access (to places or services)  183 accession  14, 78, 95, 96, 99, 153–6, 153n1, 160, 185, 186, 214, 227, 228 accessions (to the Convention)  154–6, 185, 186, 214 Administering Powers  88, 121, 127, 128, 226 Africa  ix, xii, xxxii, 1, 13, 14, 24, 45, 46n32, 72n5, 89, 111, 123–5, 128, 148, 153, 173, 178, 179, 184, 188, 193, 194, 199, 243, 244 African(s)  46, 124 African territories  123, 125–6 African territories under Portuguese administration  125–6 Afro-Asian countries (States)  8, 73, 87, 147 aliens  35, 67, 170, 193 American Convention on Human Rights  79, 92 Angola  125, 126 Antigua  127, 243 anti-Judaism  74 anti-Semitism (anti-Semitic incidents or movements)  xii, xiii, xix, xxiii, xxxv, xxxvi, 4, 7, 14, 27–9, 44n28, 47, 70–5 apartheid  ix, xxxvi, 13, 22, 23, 27–9, 38, 44–7, 51, 70–2, 75, 89, 109, 124, 125, 130, 172, 173, 176, 178–9, 180, 188, 190, 204, 205, 208–10, 213, 214, 218, 219, 231, 232, 235–8, 241 Convention on  209–10 Arab(s)  xiv, xv, 179 Argentina  50, 53, 84, 97, 135n17, 148, 149, 153, 167–168, 167n7, 243 assimilation  45, 179, 187, 204, 235 Australia  xv, 72, 73, 88, 153, 154, 168, 169, 208, 243, 244 Austria  34, 39, 55, 64, 67, 69, 72n5, 73n6, 88, 106n4, 108, 149, 154, 167n4, 169, 170, 243 authentic text  99 Bahamas  127, 153, 154, 243, 244 Bahnev, Yuli  108n8, 148

Bantustans  46 Barbados  153, 154, 243 Basutoland  46 Bechuanaland  46 Belgium  72n4, 73n6, 88n28, 153, 154, 170, 243 Belize  127, 128, 243, 244 Berlin  153n1 Bermuda  127, 128 birth  36, 67, 74, 169 Bolivia  72n4, 73n6, 84, 88, 153, 243 Bouquin  24 Brazil  26, 40, 72n4, 73n6, 88, 153, 243 Britain. see United Kingdom Brown vs. Board of Education of Topeka  24n6 Brunei  127 Bulgaria  58, 64, 66, 108n8, 148, 153n1, 155, 167, 172, 243, 244 Burma  7 Byelorussia  113, 153, 155 Calvocoressi, Peter  6, 22, 23, 30, 31, 39, 57, 63, 65, 67 Canada  xx, 55, 72, 73, 88, 96, 135, 143, 148, 153, 172, 173, 208, 243, 244 Cape Verde  126, 243 Capotorti  23, 31, 39, 41, 41n23, 55, 63, 65–7, 167 Caribbean and Atlantic Territories  127–8 Carter  200 caste  33n8 Central African Republic  3, 153, 243 Chad  3, 153, 243 Charter (of the United Nations)  xxxii, 3, 21–4, 26, 29, 36, 46, 47, 65, 79n9, 88–92, 110, 113, 191, 217, 221, 230, 231, 233–5 Chiang-Kai-Shek  154 Chile  xv, xvii, 24, 43, 66, 84, 153, 173, 243 China  72n5, 73n6, 153, 154, 243, 244 citizen(s)citizenship  30, 32, 34, 35, 43, 54, 58, 60, 61, 84, 89, 112, 130, 133, 135, 136, 147, 172, 174, 178, 183, 191, 193, 194, 198, 218, 232 Cocos (Keeling) Islands  127

Index

249

inter-State complaints  80–3, 105, Colombia  26, 40, 50, 51, 84, 88n28, 97, 107–8, 114, 129, 212 243, 244 languages  32, 34, 104, 172, 242 Colonial territories  69, 87–9, 128 legal nature  90–1 colour  xxxii, 4, 12, 21–3, 25, 27, 29–31, 33, meetings  6, 7, 69, 79, 80, 82, 103–6, 114, 36, 40, 41, 45, 47, 49, 51, 52, 55–60, 64, 67, 115, 117, 121, 123, 142, 143, 145, 146, 223 68, 112, 165, 169, 170, 181, 198, 217–20, 230–3, occupied or de facto controlled 237, 240 territories  129–40 Comay, Michael  71n3, 73 officers  7, 48, 54, 59, 80, 94–9, 103, 104, Commission on Human Rights  xxxv, 3, 106, 223 5–7, 12, 24, 25, 27, 35, 39, 44, 58, 61, 66, 67, petitions (under Article 15)  16, 65, 69, 70, 73, 74, 76, 79, 80, 85, 92, 96, 123, 133, 85–9, 105, 120, 121, 128, 158, 171, 190, 169, 210 210, 225, 226 Committee on the Elimination of Racial quorum  78, 105, 222 Discrimination (cerd)  77–80 Rapporteur  x, xiv, xv, xvi, xxiv, xxv, agenda  11, 85, 103, 142, 145, 183 xxvii, xxviii, 8, 104, 138, 140, 141, 143, 147, alternates (substitutes)  79, 105 148, 165, 209 Chairman  xx, 24, 66, 68, 73, 82, 83, reporting system (periodic reports)  xi, 103–5, 107, 108, 115, 118, 121, 123, 135, 143, xxxi, 79, 80, 114–19 146, 148, 173, 207, 209, 222–5 rules of procedure  xxxiii, 80, 82, colonial territories (petitions of inhabit103–13, 143, 149, 212, 223, 224 ants of)  69, 87–9, 128 secretariat  80, 82, 89, 104, 122, 142, 223, communications (petitions)from 224 individuals or groups  17, 84–6, 119, sessions  x, 5, 7, 103, 114, 122, 129, 137, 160, 212, 225 142, 145 competence  x, xxxiii, 17, 64, 84, 85, 87, sources of information  118, 119, 146 112, 118, 129–35, 137, 143–5, 166, 183, 187, suggestions and general recommenda190, 195, 206, 225, 238, 241, 242 tions  80, 106, 117–18, 212, 223 composition  82, 106, 107, 112, 136–9, summary records  104, 123, 141–3, 148 147–9, 166, 224, 235 term of office  79 Conciliation Commission (procedure)   Third Committee (the Committee and 82, 90, 107, 223 the)  xxvii, xxxv, 3, 4, 6–8, 13, 14, cooperation with ilo and 16n14 25, 27–9, 32, 33n8, 34, 40, 43, 44, unesco  145–6 49–51, 51n39, 53n42, 55n45, 58, 61, 64, criticism (of the Committee)  xv, xxiv, 66, 72, 74, 77, 79, 80n10, 83n16, 88–90, xxxiii, 85, 108, 120, 135, 139–40, 143, 144, 94–100, 108, 112n16, 118, 119, 136n24, 175, 199, 207, 213 140n35, 142–5, 182, 212, 213 elections  58, 60, 78, 105, 126, 157, 220, Trust and Non-Self-Governing Territories 222, 232 (see Colonial territories) expenses of the members  79, 82, 222, unsatisfactory reports  117 224 vacancy(ies)  105 General Assembly (the Committee and vote  78 the)  ix, xii, xvi, xxvi, xxvii, xxxv, 3, working groups  122–3 4, 6–8, 11–13, 15, 21, 26, 30, 31, 38, 45, 46, work of the Committee  xxxi, 50, 52, 53, 65, 71, 74, 76, 77, 80, 88–91, 93, xxxiii, 82, 103, 114, 143, 144, 148, 208, 96, 98, 99, 106, 107, 111, 112, 115, 118, 119, 211–13 123, 124, 126, 130–2, 134–6, 138, 139, Communist representatives  4 141–6, 148, 154, 160, 161, 183, 204, 208 Comoro Archipelago  125 Guidelines  103–6, 108–13 Congo  32, 243 immunities and privileges  90

250 Costa Rica  xi, 40, 49, 72, 73, 84, 85, 88, 92, 135, 143, 148, 153, 160, 173–4, 243, 244 Council of Europe  56, 85 Covenant on Civil and Political Rights  xvii, 55, 56, 59–61, 64, 78–81, 85, 87, 90, 91, 93, 160, 239 Covenant on Economic, Social and Cultural Rights  61, 62, 66, 76 Cuba  153, 155, 174n34, 243, 244 Cuevas Cancino  16n14, 48, 63, 67 cultural activities  58, 62, 221 cultural identity  204, 205, 236, 237 Cyprus  129, 130, 134, 136–139, 136n25, 143, 174, 243, 244 Czechoslovakia  4, 7, 36, 49, 58, 66, 131, 135, 148, 153, 155 Dahomey  3 Das  103, 146 Decade for action to Combat Racism and Racial Discrimination  115, 119, 143, 160, 204, 235 Declaration on the Elimination of All Forms of Racial Discrimination  ix, xiii, xxiv, xxxv, 5, 6, 12, 21–3, 26, 36, 58–62, 64, 65, 217, 218, 221, 230–3 Declaration on the Granting of Independence to Colonial Countries and Peoples  23, 26, 87, 88, 120, 121, 123, 217, 226, 230, 233 declaration on the optional procedure (Art. 14)  160–1 declarations and reservations  98, 154–60 Democratic Yemen  153, 155 demographic composition  112, 136, 138, 139 Denmark  x, 49, 153, 156, 174–5, 243, 244 denunciation  97, 99, 180, 228 deposit  78, 86, 94, 95, 99, 153, 171, 175, 214, 225, 227, 229 descent  xi, xv, xxxii, 12, 30, 31, 33, 41, 46, 193, 194, 205, 218 development (right to full)  x, xxvi, xxxi–xxxiii, 31, 32, 37–9, 43, 45, 46, 74, 79, 110, 141, 146, 167, 172, 191, 194, 204, 205, 211, 219, 231, 236, 237, 240 discriminatory acts  35, 41 disputes  5, 91, 98, 107, 129, 155, 227, 242

index distinction  4, 12, 21, 26, 27, 30, 31, 33, 35–7, 42, 54, 57, 59, 60, 68, 69, 110, 116, 124, 134, 217, 218, 220, 230, 232, 234, 237, 238 Djibouti  125, 243 domestic remedies  16, 81, 86, 223, 226 Dominica  72, 73, 84, 127, 243 Dominican Republic  72, 73, 84, 243 East Timor  127 Economic and Social Council  3–7, 123 Ecuador  50, 84, 131, 135, 144, 148, 149, 153, 160, 175, 243, 244 education (right to)  62, 221 Egypt  113, 131, 133, 135, 139, 148, 153, 155, 175, 176, 243 El Salvador  84, 243 entry into force  78, 80, 95, 99, 153, 222, 228 equality before the law  57, 58, 166, 204, 220, 232 equal treatment  59, 135, 140, 220 Ethiopia  32, 153, 243 ethnic origin  12, 22, 23, 27, 29–36, 40, 41, 47–9, 51, 52, 55, 57–60, 64, 67, 68, 112, 137, 170, 180, 217–20, 231–3, 235 European Convention on Human Rights  16, 36, 59, 76, 92, 171 European Court of Justice  91 European Economic Community (eec)  179, 208 European Social Charter  36, 79 Faroe Islands  156 fascism  73, 112, 165 favourable discrimination  37, 43, 44, 110, 204 federal clause  8, 100 Fiji  153, 156, 159, 243 final clauses  xxxv, 7, 94–100 Finland  33, 49, 55, 72, 73, 153, 176, 243, 244 foreign workers  178, 179, 187 France  24, 25, 29, 32, 49, 55, 57, 68, 69, 72, 73, 88, 97, 99, 112, 135, 143, 144, 148, 153, 156, 167, 177–9, 243, 244 freedom of assembly  52, 179 freedom of association  xix, xxv, 15, 46, 49, 52, 53, 189 freedom of movement and residence  60, 220

Index freedom of opinion and expression  52, 56, 61, 154, 156–8, 221 freedom of speech  xix, xxvii, 15, 50, 52 freedom of thoughtconscience and religion  42, 61, 221 freedoms (balance between)  xix, xxv, 15–16 General Assembly (of the United Nations)  111, 146, 242 genocide  12, 71, 97, 134, 235, 237, 241 German Democratic Republic  153, 155, 178 Germany, Federal Republic of  13, 113, 130, 135, 148, 153, 178, 179 Ghana  7, 32, 40, 50, 72, 77, 78, 84, 91, 96, 98, 112, 135, 148, 153, 180, 194, 243 Gibraltar  123, 127 Gilbert and Ellice Islands  127 Golan Heights  129, 132–6, 138, 139, 195 Goldberg  57 Great Britain. see United Kingdom Greece  8, 72, 73, 84, 143, 149, 153, 180, 243 Greek-Hungarian proposal  29, 72, 73 Greenland  175 Grenada  127, 244 groups  xii, xiii, xv, xvi, xx, xxi, xxv, xxviii, xxix, xxxiii, 13, 16, 17, 24, 30–4, 37–41, 43, 45, 54, 55n48, 56, 59, 60, 65, 67, 68, 77, 83–6, 91, 110, 113, 122, 123, 127, 160, 161, 166, 171, 172, 176, 182, 187, 189, 190, 191, 197, 198, 202, 206, 218n4, 219, 221, 225, 231–3, 235–40 Guam  127 Guatemala  72, 84, 128, 243 Guinea  3, 125–7, 144, 153, 243, 244 Guyana  153, 156, 243 Gypsy(ies)  176, 181 Haiti  34, 40, 72, 73, 153, 243 health  62, 147, 221, 240 High Commissioner for Human Rights  85 Hitler  28, 71 Holy See  153, 180, 181, 243, 244 “homelands”  124 Honduras  7, 243 housing  58, 62, 176, 187, 189, 221, 232, 240 human rights and racial discrimination  173

251 Humphrey, John  16, 80 Hungary  8, 55, 72, 153, 155, 181, 243, 244 Iceland  49, 88, 153, 181, 243, 244 ilo (International Labour Organization)  16, 22, 23, 26–8, 36, 37, 44, 62, 76, 79, 80, 92, 97, 119, 145–6, 213, 218, 230, 512 ilo Convention on discrimination in Employment and Occupation  97 impact of the Convention  115, 141, 167, 211 implementation (measures of)  6, 7, 11, 16–17, 76–93 incitement India  24, 25, 32–4, 43, 49, 50, 65, 68–71, 108, 123, 127, 131, 135, 148, 153, 155, 191, 198, 243 indigenous populations  167 individual petitions  85, 128 information Ingles  48, 63, 76, 107 inherit (right to)  58, 61, 221 integrationist organizations  38, 43, 110, 219 Inter-American Commission on Human Rights  92 International Bill of Rights  11–12, 56 International Court of Justice  xi, xxxii, 92, 94, 97, 98, 104, 123, 155, 227, 228 international Labour Conference  92 interpretation (article on)  67–9 Iran  149, 153, 181–2, 243, 244 Iraq  153, 155, 182, 183, 243, 244 Islam  190 Israel  xii, 13, 14, 71n3, 72n4, 73, 73n6, 74, 75, 81n12, 132, 133, 133n9, 134, 136, 143, 153, 155, 156, 156n7, 183, 208, 243 Italy  14, 23–5, 55, 57, 72, 73, 143, 153, 156, 157, 160, 183, 243, 244 Ivanov, Boris S.  6, 22, 30, 31, 39, 48, 57 Ivory Coast  3, 32, 72n5, 73n6, 153 Jamaica  40n22, 153, 156, 184, 184n69, 243 Japan  xi, 40n22, 83, 243 Jews  xiii, xix, xv, 5, 13, 14, 71, 74, 113, 182, 186–90, 188n78, 197 Jordan  129, 138–9, 138n31, 153, 243 Judaism  113

252 Kapteyn  119, 161 Ketrzynski, Wojciech  6, 22, 30, 31, 39, 48, 55n47, 57 Krishnaswami  46n23, 65, 68 Kurds  182 Kuwait  32, 112, 112n19, 130, 131, 134, 135n17, 140n35, 147–9, 153, 155, 243 language  xiii, xvi, xvii, xxiv, 21, 26, 32, 34, 37, 67, 77, 83, 107, 172, 187, 192, 199, 217, 230, 234, 242 Lapp(s)  176, 190, 195 Latin America(n)  ix, 8, 25, 26, 40, 44, 50, 84, 92n37, 147, 148 Lebanon  24, 25, 32, 64, 66, 84, 87, 91, 153, 155, 243 legislation  ix, xi, xiii, xv, xvii, xviii, xxv, xxvi, xxvii, xxviii, xxxi, xxxii, 3, 5, 15, 35, 38, 40, 42, 46, 53n43, 54, 55n48, 56, 111, 116, 128, 141, 153n13, 154, 156, 157, 159, 165–78, 180, 182, 184, 186, 189, 192–7, 199–201, 204, 205, 208, 211–14, 219, 232, 236, 238, 239 Lesotho  153, 184, 243 Libya (Libyan Arab Republic)  153, 155, 185, 185n72, 243 Madagascar  7, 153, 155, 185n73, 243 Mali  3, 153, 243 Malta  72n5, 153, 157, 243, 244 Marchant, Sir Herbert  118 marriage (right to)  61, 220 Matsch  67 Mauritania  3, 7, 32, 58, 61, 77, 84, 87, 91, 96, 98, 243 Mauritius  153, 185, 243 measures of implementation. see implementation (measures of) Mexico  xvin18, 8, 48, 72, 73n6, 82, 82n15, 83, 97, 153, 186, 243, 244 migrant workers  166, 167, 171, 187, 190, 204–6, 209, 240 minorities  xii, xiii, xv, xviii, xxi, xxiii, xxix, 36, 46, 74, 113, 124, 166, 166n4, 167n4, 170, 175, 176, 179–82, 187, 189, 190, 193–8, 208, 209 Mongolia  14, 153, 153n1, 155, 243 Montserrat  127 Morocco  xiii, xviin23, 32, 153, 155, 186–7, 243, 244

index Mozambique  125, 126, 243 Mudawi  39, 68, 69 multi-racial  38, 110, 219 Namibia  xxxii, 122–5, 125n18, 128, 179, 243 Nasr, Aboul  113, 120n3 Nathanson, Nathaniel L.  147 National Democratic Party (npd)  179 nationality(ies)  xiii, xvii, 30–2, 34, 35, 60, 61n62, 113, 181, 182, 194, 196–8, 202, 218, 220 national origin  xiv, 21, 25, 27, 31–7, 56, 68, 69, 174, 177, 198, 217, 230, 237 nationals  x, xii–xiv, xvi–xix, xxi–xxiii, xxviii, xxix, xxxii, xxxiii, 3, 5, 12, 13, 15, 16, 21, 24, 24n7, 25, 27, 30–8, 41, 42, 47, 48, 54, 56, 60 56n50, 63–5, 67–9, 72, 74, 78, 86, 110, 111, 113, 116, 126, 128–32, 138, 139, 165–202, 206, 213, 217–21, 225, 230–2, 237–9 national socialism  24 nato  126 naturalization  30, 34, 35, 181, 188n78, 218 nazi(ism)neo-nazi(sm)  xxi, xxvii, 13, 14, 52, 71n3, 170, 178, 199 Nepal  xi, 72n5, 153, 155, 157, 243 Netherlands  xn2, 14, 72n5, 73n6, 84, 119, 144, 148, 153, 160, 160n18, 187–8, 188n78, 243, 244 Netherlands People’s Union (Nederlandse Volksunie)  187 New Hebrides  127 New Zealand  xiii, xiii, xx, 5, 72n5, 88n28, 91, 143, 153, 188–9, 188n79, 208, 243, 244 Nieu and Tokelau Islands  127 Niger  153, 189, 189n81, 243 Nigeria  7, 32, 50, 58, 61, 135n17, 148, 153, 243 non-governmental organizations (ngo’s)  ix, 5, 79n9, 119, 160, 204–6, 208, 212 Nordic countries  175, 181, 208 Northern Ireland  7, 198, 243, 244 Norway  xn3, 49, 84, 144, 153, 160, 190, 190n82, 190n83, 243, 244 notifications  86, 96–9, 105, 142, 156, 157, 159, 225, 228 obligations of States  38–44, 204 occupied territories  138–40, 143

Index Office of Legal Affairs  118n12, 142, 146n21, 159, 160n17 Organization of American States (oas)  91, 92, 92n37 Pacific and Indian Ocean Territories  123, 127 Pacific Islands  127 Pakistan  108n7, 135n17, 140n36, 149, 153, 155n3, 190, 198, 243 Panama  14, 50, 72, 84, 130–2, 132n7, 134, 137, 139, 148, 153, 191, 191n85, 243 Panama Canal Zone  129–32, 132n7, 133, 134, 139, 191 Papua and Trust Territory of New Guinea  127 Partsch, K.J.  105n3, 113, 129, 147–9, 167n5 penal legislation  xxxii, 53 personal status  186 Peru  50, 84, 153, 191–2, 191n87, 243, 244 Philippines  xi, 5, 7, 24, 25, 40, 48, 68, 69, 76, 77, 84, 91, 96, 98, 153, 192, 192n88, 243 Pitcairn  127 Plessy vs. Ferguson  24n6 Poland  6, 22, 29, 32, 34, 49, 57, 94–6, 98, 100, 148, 153, 153n1, 155, 192–3, 243, 244 political rights  60, 67, 68, 220 Portugal  13, 14, 88, 88n28, 125, 126, 243, 244 positive measures, see special measures Potsdam Agreement  55 Preamble (of the Convention)  21, 26, 28, 39, 209 preference (preferential measures, preferential treatment). see special measures Pretoria  46, 47 Principe  126, 244 propaganda (racist)  168, 179n53, 205, 238 property  61, 67, 221 public authorities (institutions)  38, 41, 47, 54, 109, 166, 219, 220 public order  xxii, 15, 157, 186, 188 racial discrimination (definition of)  30–8 racial hatred  xv, xxiii, xxxii, 14, 36, 36n19, 47, 48, 51, 52, 66, 168, 192, 196, 198, 220, 231, 239 racial prejudice  3, 5, 13, 74n8, 196, 205, 236–42

253 racist organizations  xxv, 47–57, 111, 168, 170, 171, 192, 195 racist régimes  111, 124, 143 ratification  ix, xxvii, xxxi, xxxii, xxxv, 17, 56n51, 78, 92n37, 94–9, 132n7, 153–4, 159, 160, 167, 168, 171, 172, 174, 175, 180, 182, 184, 193, 200–2, 206, 208–10, 214, 227 ratifications (of the Convention)  xxxi, 17, 98, 167, 171, 174, 184, 193, 202, 206 religious intolerance  ix, x, xii, xiii, xiv, xxivn47, xxvi, xxviii, 3–5, 12, 13, 73, 237 remedies  xviii, xxxiii, 59, 63–5, 81, 81n12, 81n14, 87, 91, 109, 157, 166, 172, 198, 205, 221, 223, 225, 226, 239 reparations  64 reporting procedure  77–80 reservations  xi, xxv, xxvii, xxix, xxxiii, xxxvi, 8, 12, 15, 94–100, 142n6, 154n2, 155, 156n7, 159, 160n19, 183, 196, 200, 211, 227, 228 revision  70, 98–9, 129, 228 Rhodesia  46, 122–4, 128, 158, 176, 179 right to be different  204, 236 right to leave  60, 220 right to return  57, 60 Rogers  14 Romania  4, 25, 153, 155, 193, 243, 244 royal families  57 Rwanda  153, 155, 243 Safronchuk  119, 161n20 Samoa (American)  127 Santa Cruz, Hern  n24, 43n27, 66, 165 167n6 Sao Tome  126, 244 Sayeghn  141n4, 147n1, 149 Schwelb, Egon  4n6, 12, 17, 24n7, 33n8, 35, 42n25, 76n1, 90, 93, 140n36, 147n2, 199n109 Second World War  24, 29, 55 Secretary-General of the United Nations  11, 45, 86, 95, 96, 222, 223, 225, 227, 228, 242 self-executing provision  116, 171, 194, 200 semites  74 Senegal  26, 32, 40, 148, 153, 193, 243, 244 “separate but equal”  24 Seychelles  127, 153, 243, 244 Sharpeville  46n33 Sierra Leone  153, 193–4, 243

254 signature  14, 56n51, 94, 98, 99, 153–5, 153n1, 158, 160, 200, 209, 227, 228 signatures (of the Convention)  99, 153, 153n1, 228 Sinai  129, 139 social security  62, 221 Sohn and Buergenthal  147 Solomon Islands  127, 243 Somaliland (French)  125 South Africa  ix, xxxii, 13, 14, 45, 46, 46n33, 72n5, 89, 111, 124, 128, 173, 178, 179, 184, 188, 190, 243, 244 South America  43 Southern Rhodesia  122–4, 128, 176, 179 South West Africa  xxxii, 46 Spain  13, 153, 155, 194, 243, 244 Spanish Sahara  121n6 122n15, 125, 128 Special Committee on the Situation with regard to the implementation of the Declaration on the Granting of Independence to Colonial Territories and Peoples  121, 123 special measures  30, 32, 33, 37, 38, 41, 43, 44, 172, 191, 195, 218, 240 status (of the Convention)  xxxiii, xxxv, 141, 144, 154–61 Stevenson, Adlai  13 St. Helena  127 St. Kitts-Nevis-Anguilla  127 St. Lucia  127 St. Vincent  127 Sub-Commission on Prevention of Discrimination and Protection of Minorities  xxxv, 3, 5, 6, 65, 80, 165 Sudan  39, 80, 83, 87, 153, 243 “Swastika epidemic”  28n10 Swaziland  46, 130, 134, 135, 153, 194–5, 195n95, 243 Sweden  49, 84, 87, 144, 153, 160, 195, 195n96, 243, 244 Syria (Syrian Arab Republic)  133, 135, 136, 195–6, 243, 244 Tanzania  79–3, 87, 88, 90, 153, 243 Third Committee  xxvii, xxxvi, 3, 4, 6–8, 13, 14, 16n14, 25–9, 32–8, 40, 43, 44, 49, 50, 51n39, 52, 53n42, 54, 55n45, 57, 58, 61, 64, 66, 72, 74n7, 77, 79–83, 88, 89n32, 90,

index 94–100, 108, 112n16, 118, 119, 136, 140n35, 142–4, 183, 212, 213 Tonga  153, 157, 158, 196, 243 trade unions  62, 221 Treaty of Lausanne  180 Treaty of Peace with Austria  55 with Finland  55 with Hungary  55 with Italy  55 tribunals  59, 63–5, 156, 198, 220, 221, 232 Trinidad and Tobago  7, 14, 153, 243, 244 Trust and Non-Self-Governing Territories. see Colonial territories Trusteeship Council  88n29, 89, 121, 122, 127 Tunisia  153, 196, 243 Turkey  xxii, 40, 174, 243 Turks and Caicos Islands  127, 128n30 Tuvalu  127 Uganda  58, 61, 243 Ukrainian S.S.R.  7, 49, 68, 69, 131, 196, 197 unesco  xxviii, xxix, xxxv, 5n11, 12, 23, 24, 26–8, 33, 36, 44, 46, 62, 66, 74n8, 76, 79n9, 81, 83, 92, 97, 119, 145, 146, 167n5, 203–7, 213, 234–42 unesco Convention Against Discrimination in Education  28, 36, 62, 66, 92, 97, 241 unesco Declaration on Race and Racial Prejudice  44, 119n13, 146, 213, 234–42 Union of Soviet Socialist Republics (ussr)  6, 7, 13, 22, 25, 34, 70–4, 131, 143, 148, 149, 153n1, 155, 161n20, 197 United Arab Emirates  143, 153, 155 United Arab Republic  83, 87 United Kingdom  6, 7, 22, 25, 31, 51, 56, 64, 66, 70, 72n5, 73n6, 88, 89, 112, 112n16, 124, 143, 153, 156, 158, 159, 197, 198n105, 199, 243, 244 United States of America (usa)  xi, 12, 27, 44, 49, 52n41, 56, 57, 70, 87, 88, 130, 131, 143, 159, 199, 243 Universal Declaration of Human Rights  xiii, xxxv, 3, 11, 21, 23, 26, 31, 37, 47, 50, 52, 55–7, 59n55, 60, 64, 110, 113, 133, 158, 206, 217, 220, 221, 230, 231, 233, 235, 238, 239 universality (of the Convention)  13–15 Upper Volta  3, 88n28, 153, 201

255

Index Uruguay  72n5, 73n6, 143, 144, 153, 160, 201n116, 243, 244 U Thant  11 Venezuela  43, 72n5, 73n6, 83, 153, 243, 244 violence  ix, xiii, xv, xvii, xviii, xix, xx, xxi, xxii, xxix, 47–50, 52–4, 56, 58, 59, 109, 111, 166, 168, 192, 220, 232, 233 Virgin Islands (British)  127, 128n30 Virgin Islands (United States)  127, 128n30

West Bank of the River Jordan  138–9 work (right to)  61, 62 World Conference to Combat Racism and Racial Discrimination  xxvn54, xxviin59, 114n1, 165n1, 208–9 Yapou  13 Yugoslavia  108, 135n17, 148, 153, 202 Zimbabwe  124, 243, 244 Zionism  xii, 72–5, 134, 204, 208, 209

About the Author Professor Natan Lerner was born in Poland and educated in Argentina, where he obtained his law degree in 1950 and his doctorate in 1958, both from Buenos Aires University Faculty of Law. He practiced law in Buenos Aires and worked in New York for the World Jewish Congress, as head of its Latin American Desk. In Israel since 1966, he was director of the office of the wjc and taught International Law, Human Rights and related subjects at Tel Aviv University. After retiring from Tel Aviv University, he joined the Interdisciplinary Center Herzliya, where he was appointed Emeritus. He lectured at universities of Argentina, the United States, Mexico, Spain, Japan and others. Professor Lerner was appointed member of the u.n. Expert Seminar on the links between Articles 19 and 20 of the iccpr. He prepared for unesco a Study on the coordination between instruments on Racial Discrimination. He is a member of several professional and academic institutions and recipient of the Samuel Toledano Prize. In addition to the book now being re-printed, he is the author, among others, of Religion, Secular Beliefs and Human Rights; Group Rights and Discri­ mination in International Law; Discriminacion Racial y Religiosa en Derecho Internacional; The Crime of Incitement to Group Hatred, as well as many chapters in books and articles in English, Spanish and Hebrew.