How To Complain About Human Rights Treaty Violations
The Four Principal UN Human Rights Treaties Containing Complaint Mechanisms - Overview
c) The Convention on the Elimination of All Forms of Racial Discrimination (CERD)
In the aftermath of World War II and the Holocaust, the phenomenon of racial discrimination was one of the major concerns of the United Nations. In 1965, the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) was adopted by the General Assembly.
The Committee on the Elimination of Racial Discrimination (CERD) is the treaty body associated with the Convention.
ii) Adoption and Entry into Force
CERD was adopted by the General Assembly on 21 December 1965, and entered into force on 4 January 1969. For any state that ratified CERD after 5 December 1968, the Convention entered into force for that state thirty days after the date of deposit of its instrument of ratification (article 19(2)).
iii) Obligations Undertaken by States Parties
States parties undertake to condemn racial discrimination, pursue all appropriate means to eliminate discrimination in all its forms, and promote understanding among all races (article 2(1)).
iv) Summary of Substantive Rights
The Convention addresses the problem of racial discrimination comprehensively:
Definition of "racial discrimination"
Article 1(1) of the Convention defines the term "racial discrimination" as follows:
". . . any distinction, exclusion, restriction or preference based on race, colour, descent, national or ethnic origin with the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights in any field of public life, including political, economic, social or cultural life."
The scope of this definition:
- It protects against discrimination not only on grounds of "race" but on the related grounds of colour, descent and national or ethnic origin.
- It does not protect against discrimination on grounds of citizenship, that is, between citizens and non-citizens (article 1(2)).
- It encompasses both intentional discrimination and also laws, norms and practices that appear neutral but have a discriminatory effect.
- Temporary affirmative measures aimed at securing the advancement of certain racial or ethnic groups or individuals, and necessary to ensure the equal enjoyment or exercise of human rights and fundamental freedoms, fall outside the definition of discrimination (article 1(4)).
Condemnation and elimination of racial discrimination
States parties undertake to condemn racial discrimination, pursue all appropriate means to eliminate discrimination in all its forms, and promote understanding among all races (article 2(1)). To that end, states parties undertake to:
- refrain from engaging in racial discrimination and ensure that public authorities and institutions do likewise (article 2(1)(a);
- refrain from sponsoring, defending or supporting racial discrimination (article 2(1)(b));
- remove laws regulations and policies which create or perpetuate racial discrimination (article (2)(1)(c));
- prohibit and eliminate racial discrimination in the private sphere (article 2(1)(d));
- encourage integrationist multi-racial organizations and other means of eliminating race barriers (article 2(1)(e);
- take special and concrete measures, on a temporary basis, to ensure the development and protection of disadvantaged racial groups (article 2(2)).
Racial segregation and apartheid
States parties particularly condemn racial segregation and apartheid, and undertake to prevent, prohibit and eradicate such practices (article 3).
Propagation of racial hatred
States parties condemn, and undertake to take immediate and positive measures to eradicate (including criminally proscribing), all propaganda or organizations which are based on ideas of racial superiority or which attempt to justify, promote or incite racial hatred and discrimination (article 4).
Equality before the law
States parties undertake to guarantee to everyone, without distinction as to race, colour, or national or ethnic origin:
- equal treatment by the justice system (article 5(a));
- security of the person, including protection from violence or bodily harm (article 5(b));
- political rights, in particular, the right to vote, stand for election and take part in public affairs (article 5(c));
- civil rights, in particular, the freedoms of movement, thought, conscience, religion, opinion, expression, assembly and association; the right to nationality; the right to marriage and choice of spouse; the right to own property; and the right to inherit (article 5(d));
- economic, social and cultural rights, in particular, employment rights; rights to housing, health care and social services; rights to education and training; the right to participation in cultural activities; and the right to equal access to public places (article 5(e)).
States parties undertake to assure to everyone within their jurisdiction, effective protection and remedies against racial discrimination, including reparation or satisfaction for any damage suffered as a result of discrimination (article 6).
Measures to combat discrimination
States parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, to combat racial prejudice and promote racial understanding, tolerance and friendship (article 7).
v) Limitations on Rights
CERD does not identify societal interests that are considered sufficient to outweigh the substantive rights set forth (in contrast to the CCPR). Nevertheless, certain limitations are inherent in the terms of the rights and freedoms.
The concept of discrimination itself
The concept of discrimination contains some inherent limitations. The definition of discrimination does not encompass all distinctions based on race but rather, only those which have the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of human rights. The CERD Committee has said that differences in treatment, even though they are based on race, will not be considered discrimination if they are "legitimate" or "justifiable".
In addition, under CERD acts of "positive discrimination" as defined in article 1, paragraph 4, are deemed not to be discrimination for the purposes of the Convention.
The language used to impose obligations on states parties
Some of the obligations in the Convention are expressed in terms which incorporate limitations. For example, under article 2, states parties undertake to pursue "by all appropriate means and without delay" a policy of eliminating racial discrimination. It does not necessarily follow that every time an act of discrimination occurs within a state party's territory, the state will have breached this obligation. It will be a matter of interpretation and judgment whether the state party has taken "all appropriate means." In assessing whether the measures taken by the state party are appropriate, sufficient and timely, the Committee may take into account, for example, the extent of the hurdles faced by the state party and the extent of the good faith efforts made by the state party to overcome them.
The Convention does not explicitly provide for derogation in times of public emergency.
Parties to the Convention are entitled to make reservations as long as they do not conflict with the object and purpose of the Convention (article 20).
In considering the extent of the obligations undertaken by a state party to the Convention it is, therefore, necessary to check for any reservations that may have been made by the state.
viii) The Monitoring Body/Treaty Body: The Committee on the Elimination of Racial Discrimination (CERD)
The Convention establishes a Committee on the Elimination of Racial Discrimination (CERD) to monitor states parties' implementation of the Convention (article 8). CERD is composed of 18 independent experts, nominated and elected by states parties to the Convention, but intended to serve in their personal capacity.
CERD is engaged in the following tasks:
- Examination of reports States parties are directed to submit reports at regular intervals on the measures they have adopted to give effect to the provisions of the Convention. The Committee examines reports and adopts "concluding observations" about those reports. CERD has also created an "urgent action and prevention procedure", for examining situations of particular concern to it.
- Examination of individual cases (communications) Individuals can make complaints alleging a violation of the Convention by any state party that has accepted the optional complaints procedure under article 14.
- Elaboration of General Recommendations The Committee may make general recommendations based on the examination of the reports and information received from the states parties (article 9(2)).
- Consideration of state-to-state complaints A state party which considers that another state party is not giving effect to the provisions of the Convention may bring the matter to the attention of the Committee (article 11). However, no such inter-state complaint has ever been made.
The Committee meets in Geneva for two three-week sessions in March and August.
Staff and facilities for the performance of the Committee's functions are provided by the Office of the United Nations High Commissioner for Human Rights.
The Committee submits an annual report of its activities to the UN General Assembly (article 9). The report contains the concluding observations which the Committee makes about states parties in the context of reports, decisions reached in individual cases, and any General Recommendations.
ix) Number of Ratifying States
Over 85% of UN member states are now parties to the Convention, and one-fifth of UN member states (one-quarter of states parties) have accepted the individual complaints procedure under article 14 of the Convention. This figure changes frequently and can be updated online.