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The United Nations Human Rights Treaties |
How To Complain About Human Rights Treaty ViolationsThe Convention on the Elimination of Racial Discrimination - Description
1. Overview of the Committee on the Elimination of Racial Discrimination (CERD) The Committee on the Elimination of Racial Discrimination (CERD) is responsible for considering all communications submitted under Article 14 of the Convention. CERD is composed of 18 experts, nominated and elected by States parties to the Convention. Members serve in their personal capacity. The Committee follows certain and specific procedures in the consideration of individual communications. The individual communications procedures originate from three sources: the provisions of the Convention itself, the Rules of Procedure that have been adopted formally by the Committee, and the Committee's customary practices. To help maintain impartiality in the complaint process, the Rules of Procedure of CERD provide that members shall not take part in the deliberation of a case in which they have a personal interest, or in which they have participated in the making of any decision in the case before it reached the Committee (Rule 89). The Committee meets annually in Geneva for two three-week long sessions in March and August. Although most meetings are public, when the Committee considers individual communications, the meetings are "closed" to the public (Rule 88). Generally, the Committee tries to make decisions on communications by consensus, although formal decisions can be made by a majority. In cases where no consensus can be reached, the individual members may express individual Opinions which are attached to the Committee's decision. CERD does not have a formal pre-sessional working group which handles communications. Registration is determined by the Secretariat. An informal open-ended working group on communications meets during the CERD sessions on an as-needed basis. All decisions concerning communications are taken by the Committee as a whole. See flow chart on CERD Complaints Procedure 2. Individual Complaints Procedure of CERD a) Registration of the Communication and Preliminary Procedures The basic process for submitting a complaint should be read together with the more specific information provided in relation to CERD. i. Submission of the Communication A communication should be submitted to the Petitions team at the UN Secretariat of the Office of the High Commissioner for Human Rights, Geneva in writing, by letter, fax or email. Faxed or electronic communications must be confirmed by signed copies received by the Secretariat. Communications cannot be anonymous. The state that is the subject of the communication must be clearly identified. Although there is no mandatory format for the communication, the use of the model complaint form can streamline the communication process and is helpful in the preparation of a complaint. Where the communication does not provide the necessary information in order for it to be registered, the Secretariat may request that the communication be resubmitted providing further information. Since the Committee relies heavily on the facts in each particular case, it is especially important to set out all the relevant information at the outset. It is important to include, at a minimum, the following information:
Other important points: Groups Can Submit Complaints Not only may complaints be made by or on behalf of individuals, groups of individuals may also submit complaints. Under many of the complaint provisions found in the other UN human rights treaties, groups are not able to make a complaint of violations of group rights. Languages The Committee's working languages are at present English, French, Spanish and Russian. Although communications theoretically can be registered in any of the official languages of the UN (Arabic, Chinese, English, French, Russian, Spanish), there will likely be significant delays in the processing of the case if the author uses a language other than English, French or Spanish. Cases received in Russian are sent to translation once initially processed, sometimes at a considerable delay. Cases received in Arabic or Chinese are normally returned to the author who is requested to resubmit in English, French or Spanish. If a communication is received in a non-UN official language, the author will normally receive at the outset a letter requesting the re-submission of the communication in English, French or Spanish. If it happens that a communication has been submitted in an additional language which a UN Secretariat member servicing the Committee understands, it may be processed initially without translation. Authors are strongly advised to submit communications in English, French or Spanish. Time Limitations A claim must be brought within 6 months after the exhaustion of domestic remedies (article 14, paragraph 5). Cases have been declared inadmissible on this ground. Legal Aid The UN does not provide legal aid or financial assistance to authors, nor does CERD require that States parties provide legal aid where an individual wishes to submit a communication. Authors should determine whether or not their own domestic legal aid system provides for the possibility of legal aid. However, NGO's and other legal professionals are allowed to represent the victims. There is no prohibition on a victim seeking the assistance of NGO's or appointing them as their representative. Withdrawal of the Communication An author may subsequently withdraw his or her communication. Confidentiality All documents relating to a communication are confidential and CERD does not publicize cases, except by the eventual release of a decision. Decisions concerning inadmissibility, discontinuation or merits (Opinions) will be made public. The Committee may decide that the identity of the author remain confidential from the public. However, the communication must not be anonymous. The identity of both the victim and the author (if different from the victim) must be revealed to the Committee and State party. If the author fears reprisals from the State party which has committed the violation, he or she may request that the identity of the victim and/or the author not be revealed to the public.
ii) Registration of the Communication Communications are initially reviewed by the UN Secretariat servicing the Committee prior to their registration. The Secretariat brings to the attention of the Committee all communications which are, or appear to be, submitted for consideration by the Committee. The Committee has delegated to the Secretariat the authority to register new cases. The Secretariat may defer registration until further information is requested and obtained from the author. The Secretariat may ask the author for clarification regarding any or all of the following issues (Rule 84):
The Secretariat will indicate a time limit for replying to such requests (Rule 84), but strict sanctions are not applied when this time limit is not met. Failure to provide adequate information necessary to register a case, may result in a communication not being registered. A decision to register a case may be made pending the response to questions for additional information.
iii) Transmittal to the State Party Once the Secretariat is satisfied the communication contains sufficient information, the communication is transmitted by the Committee to the State party for a response.
iv) Interim Measures At any time after the Committee has determined that a claim is admissible, the Committee may request the State party to take interim measures to avoid possible irreparable damage to the claimant. Any such requests are not prejudicial to the Committee's final Opinion (Rule 94), nor are they an indication that the Committee has made any final decision as to the merits of the claim. Until now CERD has not requested interim measures from States parties. b) Admissibility and Submissions from the Parties Once the communication has been transmitted to the State party, the State has three months in which to respond to the communication (CERD article 14(6)). The practice of the Committee is to seek a response from the State party on the issue of admissibility separately from the merits. Neither the Convention, nor the Rules of Procedure, provide for specific requirements or deadlines for the author to respond to the state's submissions. However in practice the author is normally given three months to respond. The Committee may decide a communication is inadmissible before transmitting it to the State party for submissions. CERD will review all the information submitted by the parties, and adopt a decision on whether or not the communication is admissible. The criteria for the admissibility of a case is set out in Rule 91 of its Rules of Procedure. The Committee may decide that a complaint is admissible when the communication:
If the Committee decides that the communication is inadmissible, the case is finished. If the Committee decides that the communication is admissible, then it moves on to the merits stage. All decisions of CERD concerning individual communications are taken by the full Committee. c) Determination of the Merits and Follow-up Once the Committee has decided that the communication is admissible, the admissibility decision is transmitted to the State party and the claimant is advised of the decision. The state then has three months to submit its arguments or explanations as to the merits of the claim (Rule 94). The Committee will then send the state's submissions to the author for reply (Rule 94). The author is usually given three months to respond. The Committee will consider all the information before it and adopt its Opinion on whether or not there has been a violation of the treaty. After considering the State party's submissions on the merits, the Committee is also entitled to revoke its decision that the communication is admissible (Rule 94(6)). CERD considers communications in closed meetings. The Committee has discretion under its rules of procedure to invite the author of the communication or his or her representatives, and representatives of the State party, to be present at the meetings in order to provide further clarifications or to answer questions on the merits (Rule 94(5)). The final decision on the merits by CERD is termed an "Opinion" not "Views" as it is in the case of the Human Rights Committee. CERD invites the State party to inform it "in due course" of the action it takes pursuant to the Committee's Opinion (Rule 95(3)). The Opinions of the Committee will not necessarily be unanimous. Any member of the Committee may request that his or her individual opinion be attached to the Opinions of the Committee. Remedies which have been requested by CERD from the State party include compensation to victims, a call to the State party to investigate a particular situation, amend legislation, or to ensure that similar violations do not occur in the future. In 2005, CERD instituted a formal procedure to follow up after Opinions have been adopted, to determine if the victim has been provided with a remedy for the violation of his or her rights. The Special Rapporteur on Follow-up reports to the Committee as to the status of the measures taken by States parties on cases, and further actions that may be advisable. The annual reports of the Committee contain information on follow-up to cases. Important points: Annual Report There is no sanction for failure to comply with the Committee's Opinions. The Committee's Annual Reports to the General Assembly include the text of its Opinions and the text of any decision declaring a communication inadmissible. Reservations Reservations to CERD may substantially limit the ability of an individual to successfully make a case against a particular State party. It is therefore necessary to check any reservations made by the State party. At the same time, some reservations may not be legitimate, that is, they may be incompatible with the object and purpose of the treaty. In these cases, it is possible that the treaty body will refuse to apply the reservation in a manner which would limit the application of CERD in the context of a communication. CERD has as yet not directly made a statement about the incompatibility of reservations with the Convention. 3. Examples of Cases Relating to CERD Since the Committee has not issued many Opinions, guidance as to the meaning and application of treaty rights may also be drawn from the Committee's General Recommendations and concluding observations on state reports. The following examples of the Committee's approach to the interpretation of Convention rights and freedoms are based on CERD cases, general recommendations and concluding observations. The definition of "racial discrimination" (article 1) Which groups are protected Meaning of "based on" - The definition of "discrimination" in article 1(1) of the Convention protects against distinctions, exclusions, restrictions or preferences "based on" race, color, descent, or national or ethnic origin. The words "based on" have the same meaning as the words "on the grounds of", which are found in paragraph 7 of the preamble to the Convention. How to identify group membership - The question arises as to how it is to be decided whether a person belongs to a particular racial or ethnic group for the purposes of the Convention. The Committee has said that, unless there are good reasons to the contrary, the primary method should be self-identification by the individual concerned. Meaning of "descent" - The term "descent" does not solely refer to race, and also covers the situation of certain castes and tribes (for example, under the traditional Indian caste system). Meaning of "nationality" - A preference for persons trained in a particular country is not considered by the Committee to amount to discrimination on grounds of "nationality." Thus, in a case involving an Australian examination and quota system for overseas trained doctors that favoured doctors trained in Australia and New Zealand, the Committee considered that the system did not discriminate on the basis of race or national origin since medical students in Australia did not share a single national origin, and all overseas trained doctors were subject to the same system, irrespective of race or national origin. Accordingly, the system did not work to the benefit or detriment of persons of any particular race or national origin. In another case, a derogatory public statement about “foreigners” was not considered to single out a group of persons contrary to the provisions of the Convention. Guidance with respect to particular vulnerable groups - There are certain, particularly vulnerable, groups that have come to the Committee's attention with sufficient frequency that the Committee has issued special guidance to states parties concerning their situations. Indigenous peoples - The Committee has stressed that indigenous peoples fall under the scope of the Convention and that all appropriate means must be taken to combat and eliminate discrimination against them. Roma - The Committee has expressed particular concern about the treatment of Roma and has issued a lengthy General Recommendation setting out specific "recommendations" to States parties on their treatment. Refugees - The Committee has also expressed concern about the vulnerability of refugees and displaced people, and has issued a General Recommendation on their treatment, particularly once they return to their homes of origin. This entails rights to:
Women - The Committee is conscious of the fact that because of the different life experiences of women and men, in areas of both public and private life, there are circumstances in which racial discrimination only or primarily affects women, or affects women differently than men. Examples of forms of racial discrimination which may be directed towards women specifically because of their gender are:
Relationship with article 5 - The definition of discrimination in article 1 refers to distinctions that nullify or impair the recognition, enjoyment or exercise of human rights, on an equal footing "in any field of public life, including political, economic, social or cultural life." Article 5 lists a number of "notable" examples of human rights that must be protected in the fields of political, economic, social or cultural life. Permissible distinctions - The definition of "discrimination" in article 1 refers to distinctions, exclusions, restrictions or preferences that nullify or impair the recognition, enjoyment or exercise of human rights on an equal footing. However, there are a number of situations in which such distinctions, exclusions, restrictions or preferences are not considered to amount to discrimination under the Convention: Distinctions between citizens and non-citizens - The Convention does not protect against distinctions between citizens and non-citizens. (This does not mean that it is permissible to differentiate between different kinds of non-citizens.) Where a private (non-state) party seeks to justify a distinction on the grounds of citizenship, States parties must be vigilant to ensure that citizenship is, in reality, the basis for the distinction that is being drawn. Thus, in a Danish case where a bank denied a permanent resident a loan on the basis that he was not a Danish citizen, claiming that it was motivated by the need to ensure that the loan was repaid, the Committee expressed skepticism as to whether a person's nationality was relevant to his or her capacity to repay. The Committee concluded that the state should have initiated a proper investigation into the "real reasons" behind the bank's loan policy with respect to foreign residents in order to ascertain whether or not criteria involving racial discrimination within the meaning of article 1 were being applied. Positive discrimination - Differentiation of treatment is legitimate if it falls within the scope of article 1(4) of the Convention, which allows for positive but temporary measures aimed at securing the advancement of certain racial or ethnic groups or individuals that have been disadvantaged, and are necessary to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms. Justifiable differentiation - The Committee has said that differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are "legitimate". Similarly, in seeking to determine whether an action has an effect contrary to the Convention, the Committee will ascertain whether that action has an unjustifiable impact upon a group distinguished by race, colour, descent, or national or ethnic origin. Condemnation and elimination of racial discrimination (article 2) The Committee's role when
reviewing the decisions of domestic tribunals as to whether discrimination has
occurred - Where a claim of discrimination
brought before the Committee has already been examined by a domestic tribunal,
the Committee faces a question as to how much respect to accord the domestic
tribunal's factual assessment of the case. Obligation to bring to an end racial discrimination by private (non-state) parties (article 2(d)) - The Committee requires that States parties prohibit private acts of discrimination in their laws, and that they enforce such laws in good faith. Accordingly, findings by the Committee of a breach of article 2(d) are accompanied by findings of a breach of article 6 (the obligation to provide effective protection and remedies). Racial segregation and apartheid (article 3) Although the reference to apartheid may have been initially directed exclusively to the situation in South Africa, article 3 as adopted prohibits all forms of racial segregation, whether institutional or non-institutional, in all states. The obligation to eradicate all practices of this nature includes the obligation to eradicate the consequences of such practices undertaken or tolerated by previous governments in the state, or imposed by forces outside the state. The Committee has also expressed concern with "racial segregation" arising without any initiative or direct involvement by the public authorities, as an unintended by-product of the actions of private persons. Propagation of race hatred (article 4) Scope of article 4(a) - Article 4(a) requires States parties to penalize four categories of misconduct:
By way of example of what constitutes "incitement", the Committee has found that acts amounting to incitement to racial discrimination and to acts of violence had taken place in a case involving the antagonistic reaction of members of a local community to a prospective lessee. The behaviour that the Committee considered amounted to such incitement included shouting the slogan "no more foreigners" when the author came to look at the house, intimating that if the author were to accept the house they would set fire to it and damage his car, telling officials that they could not accept the author as their neighbour, and drafting a petition rejecting the author's right to live in the neighbourhood. Article 4(a) also penalizes the provision of assistance, including financing, for "racist activities." The term "racist activities" includes activities deriving from ethnic as well as racial differences. With regard to speeches based on racial hatred, when the Committee evaluates the content of the remarks made, the lack of logic to the particular comments is not relevant to whether or not they violate article 4 of the Convention. Scope of article 4(b) - Article 4(b) requires States parties to prohibit all organizations and activities that promote and incite racial discrimination, and to prohibit participation in such organizations or activities. Penal legislation must be drafted in sufficiently wide terms to catch all such organizations. Thus, an offence provision limited solely to organizations adhering to "fascist" ideology does not fully comply with article 4, since the protection provided by law does not cover the wide variety of racist organizations that may exist or develop. Scope of article 4(c) - Article 4(c) outlines the obligations of public authorities and public institutions not to promote or incite racial discrimination. Public authorities at all administrative levels, including municipalities, are bound by this provision. Requirement both to enact penal laws and to enforce them - The enactment of appropriate penal legislation does not, on its own, represent full compliance by States parties with their obligations under article 4. States parties must, in addition, ensure that such legislation is effectively enforced. This does not mean that states parties are obliged to prosecute every case of behaviour prohibited by article 4. The Committee recognizes that prosecuting authorities have a degree of discretion in deciding whether to institute a prosecution, which is governed by considerations of public policy. The Committee refers to this as the "expediency principle." Nevertheless, any prosecutorial discretion must be applied in light of the guarantees laid down in the Convention. When threats of racial violence are made, and especially when they are made in public and by a group, it is at least incumbent upon the state to investigate with due diligence. Obligations under article 4 are mandatory and immediate - The provisions of article 4 are of a mandatory character. Further, the Committee has said that because threats and acts of racial violence easily lead to other such acts and generate an atmosphere of hostility, only immediate intervention can meet the obligations of effective response. Relationship with freedom of expression - The Committee considers that article 4 is consistent with the obligations undertaken by States parties in other international human rights treaties to protect freedom of expression. In particular, the requirement in article 4 that States parties act with "due regard" to the principles embodied in the Universal Declaration of Human Rights, requires balancing the right to protection from racial discrimination with the right to freedom of expression. However, the Committee will give the principle of freedom of speech a more limited role in cases of racist or hate speech, by limiting the exercise of the right to freedom of expression. Not all States parties, however, consider that the relationship between article 4 and the right to freedom of expression is clear, and accordingly, there are a high number of reservations and interpretive declarations to this article. Equality before the law (article 5) General - Article 5 reiterates the state's obligation laid down in article 2 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. Article 5 then lists in detail a number of "notable" human rights that the state must guarantee to everyone without discrimination. This list is not exhaustive. It contains examples of contexts in the social, political, economic and cultural spheres in which the principle of freedom from racial discrimination must apply. The rights and freedoms listed in article 5 are principally derived from the Universal Declaration of Human Rights, as recalled in the preamble to CERD. Most of these rights have been elaborated in the International Covenant on Civil and Political Rights, and/or the International Covenant on Economic, Social and Cultural Rights. Under CERD, however, these rights are not guaranteed in themselves, rather, States parties are required to prohibit and eliminate racial discrimination in the enjoyment of such rights. Whenever a state imposes a restriction upon one of the rights listed in article 5 of the Convention, it must ensure that, neither in purpose nor effect, is the restriction incompatible with article 1 of the Convention. The protection of the rights listed in article 5 may be guaranteed either by the use of public institutions or through the activities of private institutions. To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination. Article 5(a) - The rule laid down in article 5(a) to equal treatment before tribunals, without distinction as to race, colour or national or ethnic origin, applies to all types of judicial proceedings, including trial by jury. If members of a jury are suspected of displaying or voicing racial bias against the accused, it is incumbent upon the national judicial authorities to investigate, and to disqualify the juror if there is a suspicion that the juror might be biassed. Nevertheless, on a complaint of juror bias, the Committee will be reluctant to interfere with a decision by a competent judicial body as to the interpretation and application of domestic rules concerning disqualification of jurors. As long as the competent judicial body has duly and diligently investigated any claim of racial bias on the part of a juror, the Committee is unlikely to second-guess its decision. Article 5(c) - Article 5(c) requires that governments represent the whole population, without distinction as to race, colour, descent or national or ethnic origin. The Committee considers this protection to be an aspect of the right to self-determination of peoples, which is protected in other international instruments. Article 5(d) - Article 5(d) concerns the right to equality in the enjoyment of other "civil" rights. Article 5(d)(i), which protects the right to freedom of movement and residence within the border of the state, protects against forced resettlement of groups of people. The right to nationality under article 5(d)(iii) is denied if, for example, citizenship requires that persons prove they have several generations of ancestry in the country of residence. Article 5(e) - Article 5(e) protects against discrimination in the provision of economic, social and cultural rights. The Committee's task is to monitor the implementation of these rights, once they have been granted, on equal terms. In other words, the Committee's role is to ensure that to the extent such rights are available within a state, the availability is not determined on a discriminatory basis. The Committee has expressed grave concerns to States parties about socio-economic conditions such as poverty, housing, education, employment, absence of social security, medical care, and lack of access to basic social services such as water and electricity. The Committee has also noted that the withholding of basic supplies of food and medicine to a racial or ethnic group in itself constitutes a grave violation of human rights. By way of an example of a violation of the right to non-discrimination in the right to work under article 5(i)(e), the Committee considered that there had been such a violation where a Court had upheld a decision by an employer to terminate the author's employment when she became pregnant, on the basis that the employer had dismissed the author because of his view that foreign women workers take their children to a neighbour or family and, at the "slightest setback", take sick leave. The state's obligation to provide effective protection and remedies (article 6) The state's obligations under article 6 are to provide effective protection and remedies against acts of racial discrimination, as well as to provide a right to just and adequate reparation or satisfaction for any damages suffered as a result of discrimination. Extent of obligation to investigate and prosecute - States parties are required to initiate a proper investigation into allegations of discrimination. The investigation must be full and comprehensive, and not simply rely on the explanations offered by the alleged perpetrator of the discrimination. Thus, where a Danish bank refused the author a loan, purportedly because he was not a Danish citizen, and the prosecuting authority had accepted the Bank's explanations without investigating further, the Committee considered that the state's obligations under article 6 had been violated. The state should have initiated a proper investigation into the "real reasons" behind the bank's loan policy in order to ascertain whether or not criteria involving racial discrimination were being applied. Because the police had not done so, the author had been denied an effective remedy within the meaning of article 6. The Committee recognizes that state authorities have a discretion about whether to prosecute criminal offences, which is governed by considerations of public policy. Nevertheless, that discretion should be applied in each case of alleged racial discrimination in the light of the Convention guarantees. The Committee will not necessarily accept at face value a decision not to prosecute, particularly if the Committee does not consider that a careful investigation has been conducted. Thus, where the perpetrator had called the author and his brother "a bunch of monkeys" and the prosecuting authority had discontinued the investigation because the statements were made in connection with a "tense episode" and might have referred to the nature of the author's conduct rather than his race, the Committee found a violation of article 6. Because the investigation was discontinued, it had never been established whether the author had been insulted on the grounds of his national or ethnic origin, in violation of the Convention. It followed that the author had been denied effective protection and remedies against racial discrimination. Extent of judicial review/appeal rights - The Committee is likely to look more favourably on state prosecutorial and other decisions if judicial review or a right to an appeal were made available. At the same time, the Committee does not consider that article 6 necessarily imposes upon States parties the duty to institute a mechanism of sequential remedies, up to and including the court of final appeal, in cases of alleged racial discrimination. The state's obligation to provide economic compensation - The Committee considers that the conviction and punishment of the perpetrator of a criminal act, and the order to pay economic compensation to the victim are legal sanctions with different functions and purposes. Thus, although the victim is not necessarily entitled to compensation in addition to the criminal sanction under all circumstances, in accordance with article 6, the victim's claim for compensation has to at least be considered. This is the case even where no bodily harm has been inflicted and where the damage to the victim is in the nature of humiliation, defamation or other attacks against his or her reputation and self esteem. Thus, where the author was refused access to a place of service intended for the use of the general public solely on the ground of his national or ethnic background, the Committee observed that this was a humiliating experience which may merit economic compensation and cannot always be adequately repaired or satisfied by merely imposing a criminal sanction on the perpetrator. Delay - The Committee has given States parties a certain amount of leeway in relation to the length of time they take to provide a remedy, and has held in at least one case that the condemnation of a perpetrator and imposition of a penalty satisfied the State party's obligations under article 6, even though there had been a considerable lapse of time following the events giving rise to the communication. The kind of recommendations that can be expected from the Committee If the Committee concludes there has been a violation of the Convention, the Committee usually concludes its Opinions with a recommendation to the State party as to how to redress the violation. The remedies proposed by the Committee are not always personal in nature. In some cases, the Committee does no more than recommend that the State party review its policy and procedures in the relevant area, or otherwise take general measures to counteract racial discrimination in the future. However, in other cases, the Committee has recommended a personalized remedy to assist the author. For example:
In some cases the Committee has also made recommendations of a general nature to a State party about how it can improve its practice, even though the Committee has ultimately concluded that the communication did not disclose a violation of the Convention. The cases or circumstances discussed here are only samples of decisions made by CERD, or suggested from its General Recommendations, or concluding observations on state reports. This list is not exhaustive, and individuals are entitled to make additional kinds of claims on the basis of the rights in the Racial Discrimination Convention. |