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International Convention on the Elimination of All Forms of Racial Discrimination

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Membership of the Convention on the Elimination of All Forms of Racial Discrimination: parties in dark green, parties which have recognised the competance of the Committee to hear individual complaints under Article 14 in yellow, signatories in light green, non-members in grey

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A second-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The convention was adopted and opened for signature by the United Nations General Assembly on December 21, 1965, and entered into force on January 4, 1969. As of June 2, 2008, the Convention had 173 parties. A further six countries (Bhutan, Djibouti, Grenada, Guinea-Bissau, Nauru, and Sao Tome and Principe) have signed, but not yet ratified the Convention. Another 13 nations are not party to it.

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

Genesis

Summary

The Convention follows the structure of the UDHR, ICCPR, and ICESCR, with a preamble and twenty-five articles, divided into three parts.

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

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

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

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

Core provisions

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Definition of "racial discrimination"

Article 1 of the Convention defines "racial discrimination" as

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.

Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are affirmative action policies and other measures taken to redress imbalances and promote equality.

This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction between the ethnicity and race remains debatable among anthropologists. The inclusion of descent specifically covers discrimination on the basis of caste and other forms of inherited status.

Discrimination need not be strictly based on race or ethnicity in order to be covered by the Convention. Rather, whether a particular action or policy discriminates is judged by its effects.

In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.

Prevention of discrimination

Prohibition of incitement

Monitoring

Dispute resolution mechanism

Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party which considers that another party is not implementing the Convention can complain to the Committee on the Elimination of Racial Discrimination. The Committee will pass on the complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make recommendations on the matter. This procedure has never been used.

Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice.

Individual complaints mechanism

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

As of 2008, 53 states had recognised the competence of the Committee.

Reservations

Incompatibility of the treaty with national constitutions and human rights

A meeting of non-governmental organizations, held in parallel with the World Conference against Racism 2001, including Human Rights Watch and Amnesty International, demanded that U.S. comply with the treaty. Per the Supremacy Clause of Article Six of the United States Constitution, treaties and the U.S. Constitution are both declared "supreme law of the land". The U.S. has attached a reservation to its 1994 ratification of the treaty noting that specifically the treaty's restrictions on freedom of speech and freedom of assembly were incompatible with the guarantees of such freedoms incorporated into the First Amendment to the Constitution of the United States.

The United States is far from the only such country to note incompatibilities with human rights and add reservations stating that the treaty is subject by its Constitution. Incompatibility of the treaty with national constitutions, including the freedoms of assembly and speech guaranteed by those constitutions, is also noted by Antigua and Barbuda, the Bahamas, Barbados, France, Guyana, Jamaica, Japan, Nepal, Papua New Guinea, Switzerland, and Thailand. Several, including France, Ireland, Italy, Japan, Malta, Monaco, Nepal, the United Kingdom, note that they consider the provisions of the treaty to be restricted by and subject and to the freedoms of speech and assembly that are set forth in the Universal Declaration of Human Rights.

Fonte notes that in order to comply with the interpretation of this treaty that was created by the NGOs at the NGO Forum, the United States would have to "turn its political and economic system, together with their underlying principles, upside down — abandoning the free speech guarantees of the Constitution, bypassing federalism, and ignoring the very concept of majority rule, since practically nothing in the NGO agenda is supported by the electorate", stating that these NGOs were "a new challenge to liberal democracy" that contested the principles of individual rights, democratic representation, and national citizenship, along with the contesting the very idea of a liberal democratic nation-state.

Committee on the Elimination of Racial Discrimination

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

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

The Committee typically meets every March and August in Geneva.

The current (as of June 2008) membership of the Committee is:

References

  1. ICERD, Article 2.1
  2. United Nations General Assembly Resolution 2106 (XX), December 21, 1965.
  3. "ICERD ratification status". UN OHCHR. 2008-04-21. Retrieved 2008-06-03.
  4. The following section summarises the text of the Convention.
  5. ICERD, Article 9.2.
  6. ICERD, Article 1.1.
  7. ICERD, Articles 1.2 and 1.4.
  8. A. Metraux (1950) "United nations Economic and Security Council Statement by Experts on Problems of Race" in American Anthropologist 53(1): 142-145)
  9. "CERD General Recommendation No. 29: Article 1, paragraph 1 of the Convention (Descent)". UN OHCHR. 2002-11-01. Retrieved 2008-06-05.
  10. ^ "CERD General Recommendation No. 14: Definition of discrimination (Art. 1, par.1)". UN OHCHR. 1993-03-22. Retrieved 2008-06-05.
  11. ICERD, Article 11.
  12. ICERD, Articles 12 & 13.
  13. "Human Rights Bodies - Complaints Procedures". UN HCR. Retrieved 2009-03-22.
  14. ICERD, Article 22.
  15. ICERD, Article 14 (1).
  16. ICERD, Article 14 (2) - (5).
  17. ICERD, Article 14 (6) & (7).
  18. ICERD, Article 14 (6) & (7).
  19. "Report of the Committee on the Elimination of Racial Discrimination A/63/18" (PDF). UN. 2008. p. 117. Retrieved 2009-03-22.
  20. ^ John Fonte (2003). "The Future of the Ideological Civil War Within the West". In Shlomo Sharan (ed.). Israel and the Post-Zionists: A Nation at Risk. Sussex Academic Press. pp. 136–138. ISBN 1903900522.
  21. ^ "International Convention on the Elimination of All Forms of Racial Discrimination — Reservations". Office of the United Nations High Commissioner for Human Rights. 2007-07-18.
  22. ICERD, Article 8.
  23. ICERD, Article 9.
  24. "Committee on the Elimination of Racial Discrimination - Sessions". UN OHCHR. Retrieved 2008-06-03.
  25. "Committee on the Elimination of Racial Discrimination - Members". UN OHCHR. Retrieved 2008-06-03.

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