Consideration of reports, comments and information submitted by States parties under article 9 of the Convention (continued)
Twelfth periodic report of Poland
Submission of reports by States parties under article 9, paragraph 1, of the Convention (continued)
CONSIDERATION OF REPORTS, COMMENTS AND INFORMATION SUBMITTED BY STATES PARTIES UNDER ARTICLE 9 OF THE CONVENTION (agenda item 4) (continued)
Twelfth periodic report of Poland (CERD/C/226/Add.2)
1. At the invitation of the Chairman, Mr. Dembinski, Mr. Kedzia and Mr. Kasana (Poland) took places at the Committee table.
2. Mr. DEMBINSKI (Poland) said the report (CERD/C/226/Add.2), which combined Poland's tenth, eleventh and twelfth periodic reports, described the legal situation in the country as of the beginning of 1992: no changes relevant to the subject of racial discrimination had taken place since that time.
3. Generally speaking, Polish legal norms did not contain any provisions which could be interpreted as discriminatory against any person or group on grounds of race, colour, national or ethnic origin. Articles 67 and 81 (2) of the 1952 Constitution, which established the principle of equality and prohibited the spreading of hatred or contempt based on racial differences, continued to be in force despite the abrogation of that Constitution by the Constitutional Act of October 1992.
4. It was stated in paragraph 3 of the report that the norms of international treaties ratified by Poland were not directly applicable in Polish law. In fact, that situation had changed following a decision by the Supreme Court in June 1992 that such norms would henceforth become applicable and binding, provided that they were self-executing. Unfortunately, the International Convention on the Elimination of All Forms of Racial Discrimination, which had been ratified before the constitutional amendment of April 1989, could not yet be considered as transformed into Polish law, but that situation should change with the adoption of the new Constitution, which was expected to put all human rights treaties ratified by Poland on an equal footing and make them part of the internal legal order irrespective of date of ratification.
5. No Polish laws made any distinction regarding the legal status of persons on grounds of race or origin. The Constitutional Court had ruled on several occasions that the principle of equality before the law constituted the very foundation of the State subject to the rule of law and was to be strictly respected by all State organs.
6. Poland had a comprehensive system of institutional guarantees of the rule of law based on the independence of the judiciary. Justice was administered not only through the courts, but also extrajudicially through the Commissioner for Human Rights or ombudsman, who was empowered to act not only in cases involving breaches of the law, but also in cases of violations of accepted principles of community life.
7. Cases of discrimination in Poland were few and were usually related to nationality rather than race. One such incident had occurred the previous year when a car accident involving a member of the Roma community had led to attacks on a number of citizens belonging to that community. Such acts were always condemned by public opinion and dealt with firmly by the authorities.
8. The fulfilment of Poland's obligations under the Convention involved not only combating human rights abuses, but also actively promoting human rights and preventing violations from occurring. That was being done through education, as well as by financial support for associations of national, ethnic or cultural minorities. A Service for National Minorities had recently been set up within the Ministry of Culture to deal with problems of minorities living permanently in Poland and the Sejm, or lower house of the Polish Parliament, had a Committee on Minority Issues.
9. In October 1991, Poland had ratified the first Optional Protocol to the International Covenant on Civil and Political Rights and, in January 1993, the European Convention on the Protection of Human Rights and Fundamental Freedoms. Poland also accepted the jurisdiction of the European Court on Human Rights, as well as the procedure whereby individual petitions could be submitted to the European Commission on Human Rights.
10. Mr. WOLFRUM (Country Rapporteur) thanked the representative of Poland for his introduction, which answered some of the questions he had been going to raise. The report was not fully in accordance with the Committee's revised general guidelines (CERD/C/70/Rev.2), which should be taken into account when the next periodic report was prepared.
11. The Committee would have liked fuller information on the legal situation in Poland with regard to the implementation of the Convention, since important changes had recently taken place in that respect. He had found Poland's third periodic report to the Human Rights Committee (CCPR/C/58/Add.10) much more informative on that point. The Government might consider drawing up a core document giving general information on the situation in the country which could be used in all human rights treaty bodies and would make the task of reporting easier.
12. Paragraph 4 of the report stated that some 100,000 to 800,000 Byelorussians were living in Poland: that figure seemed rather vague, presumably due to the fact that no census had been taken recently. Should one be taken, the Committee would be interested to learn the results. He understood that between 500,000 and 700,000 Germans were living in Upper Silesia and that, under an agreement between the Federal Republic of Germany and Poland in 1990, that minority enjoyed significant rights. He assumed that similar agreements had been concluded between Poland and its neighbours regarding other minorities. It had been reported that, in the 1990 local elections, groups organized by the Socio-Cultural Society had secured the German minority a strong representation in local government. The Committee would be interested to learn more about such groups, which reflected a very positive situation where minorities were concerned.
13. The Polish representative had stated in his introduction that articles 67 and 81 of the original Constitution, which were in full compliance with article 2 (1) (a) of the Convention, would be retained in the new Constitution. However, as he understood it, constitutional reform was still under way. The Committee would be glad to have further details on the matter in the next report.
14. According to paragraph 2 of the report, no definition of racial discrimination existed in the domestic legal system. He found that strange and wondered how in that case articles 67 and 81 of the Constitution could be properly implemented. Paragraph 3 stated that the provisions of conventions and other international instruments ratified by Poland were not incorporated into national law, but were, rather, considered as guidelines for lawmaking. The representative of Poland had explained that that situation had changed, but that the Convention on the Elimination of All Forms of Racial Discrimination was still an exception: he hoped that that discrepancy would soon be remedied.
15. Concerning article 2 of the Convention, paragraph 5 of the report stated that only eight persons had been convicted for dissemination of ideas based on racial superiority or hatred in a period of four years: that appeared to be a rather low conviction rate. In fact, that paragraph related not to article 2, but to article 4 of the Convention, and should be redrafted accordingly.
16. No real information was given in the report on the requirement in article 2 (1) (d) of the Convention for States to prohibit racial discrimination by any persons, group or organization, apart from the statement in paragraph 11 that racial discrimination did not exist in Poland. Such claims were very frequently made by reporting States, but the Committee invariably rejected them, since there were few countries in the world immune from racial discrimination. More information about the situation of Gypsies and Jews in Poland would be welcome.
17. In the context of article 4, the report should have been more informative about the Polish National Party, which sought to promote negative attitudes towards Jews and whose chairman had recently been put on trial for incitement to racial hatred.
18. The information provided in connection with article 5 of the Convention related only to legislation and not to the actual situation in the country. For example, paragraph 25 of the report simply stated that, under article 95 of the Constitution, every citizen had the right to vote, irrespective of national or racial origin, but did not go on to say that minorities were entitled to form their own political parties: in fact, in the October 1991 elections, the German minority had gained seven seats in the Sejm and one in the Senate. In general, the report could be criticized for giving insufficient information not on Poland's shortcomings, but rather on its achievements - contrary to the usual practice of reporting States.
19. The Committee would appreciate more information on the "limitations on the right to property" referred to in paragraph 26 of the report. Concerning the right to leave the country and to receive a passport mentioned in paragraph 27, Poland's report to the Human Rights Committee stated that some 20,000 people left the country every year for economic reasons. It would be interesting to know whether those emigrants came from all parts of the country, whether their country of destination tended to be the same and whether or not they returned to Poland.
20. Paragraph 30 of the report, which concerned freedom of thought, conscience and religion, failed to mention the Act of 17 May 1989, which had been adopted by the Sejm on the subject and contained provisions on religious education in schools. Nor was mention made of the Association Act of 7 July 1989. It would also have been of interest to the Committee to know that Poland had ratified ILO Convention No. 111 on Discrimination in Employment and Occupation and that that Convention was reflected in the Employment Act of 1989. The ILO Committee of Experts had asked to be informed about how that Act was being implemented and the Committee would also welcome information on that score.
21. Not enough details were given on article 6 of the Convention: for example, it would be interesting to know more about the functions of the ombudsman. Little was said about the recent interesting changes in the organization of the judiciary. Similarly, no information was given about the educational system in connection with article 8 of the Convention, although the rights of national minorities to education were fully guaranteed under a Ministry of Education order of December 1988. Finally, the report should have mentioned that a National and Ethnic Minorities Commission had been set up to consider the situation of minorities in Poland and to take steps to help them exercise their rights - an impressive development. More details about the functions of that Commission would be welcome.
22. To sum up, the report as presented was a mere skeleton of a report and, in commenting on it, he had had to draw on other sources: the next report would need to be more informative. However, he would stress that he was critical only of the report, not of the actual situation in Poland.
23. Mr. de GOUTTES said that he welcomed the recent trend towards greater democracy in Poland. Poland's ratification of the European Convention on the Protection of Human Rights and Fundamental Freedoms and its acceptance of the jurisdiction of the European Court on Human Rights, as well as of the procedure whereby individual petitions could be made to the European Commission on Human Rights, were evidence that it had consolidated its status as a State subject to the rule of law and was now truly democratic.
24. He agreed with Mr. Wolfrum that the picture given in the report was less positive than the reality, a situation which the Committee encountered only rarely. Although it was true that the report was somewhat brief, it had many positive aspects.
25. The report was Poland's twelfth since its ratification of the Convention in 1968. It was frank in admitting in paragraph 2 that no definition of racial discrimination existed in domestic law and, in paragraph 3, that treaties ratified by Poland were not automatically incorporated into the legal system and could not be directly enforced by the courts. However, he had noted with interest that, under the new Constitution, that restriction was to be abolished.
26. He was glad to see from paragraph 5 of the report that the Criminal Code made most of the activities listed in article 4 (1) of the Convention an offence. The statement in paragraph 7 that, under the new draft criminal code, racist offences would be categorized as offences against mankind, rather than as offences against public order, was of particular interest. While the number of convictions for such offences was not high, he pointed out that some reporting States did not provide any statistics at all on the subject.
27. He agreed with Mr. Wolfrum that more information was needed on the breakdown of the population by ethnic, religious and linguistic groups. The Committee would also need to know more about measures taken to ensure the protection of minorities and, in particular, about the role of the National and Ethnic Minorities Commission. It would be interested to learn the results of the inquiry by a special commission into acts of violence recently perpetrated against Gypsies in Poland and also to know what measures had been taken against political parties inciting to racial hatred, especially the anti-Jewish party referred to by Mr. Wolfrum.
28. Mr. DIACONU thanked the Polish delegation for its twelfth report, which contained many positive elements that showed that Poland's legislative and constitutional process was in constant evolution, as was true in other Eastern European countries. The report was, however, too brief and should have been more comprehensive; additional information had had to be obtained from other sources, including Poland's report to the Human Rights Committee.
29. The Committee would have liked more demographic data showing Poland's ethnic and racial situation and to know to what extent minorities were represented in the Sejm and in local government.
30. Poland's report to the Human Rights Committee referred to the existence of 200 schools without any indication of the type of schools and whether their number was sufficient; further information on those aspects was required, together with details of the cultural education provided and training in the languages of minority groups.
31. He also requested further information on administrative disputes in Poland and whether they were properly dealt with at all levels.
32. An article in the International Herald Tribune of 17 March 1993 had reported that the Sejm had adopted a law prohibiting abortion. Such a law was probably unique in Europe and he wished to know whether it was based on the concerns of the large Catholic majority in Poland and whether some of the country's many other religious groups did not regard it as a form of discrimination and a way of not taking different views into account.
33. Mr. RECHETOV thanked the Polish delegation for its comprehensive report, which, on the whole, was excellent. It explained how Poland was implementing the Convention and did not include information which had no direct bearing on the work of the Committee. There were a number of shortcomings, however, which would undoubtedly be eliminated in the next report. It would be useful, for example, to have a clearer breakdown of population groups, preferably in table form, and a more complete picture of the national education system and the extent to which it reflected the interests of the different ethnic groups.
34. Article 274 of the Polish Criminal Code was of particular interest to the Committee, particularly because it had actually been applied. It was therefore surprising to read in paragraph 11 of the report that racial discrimination did not exist in Poland. He wished to know whether the figures given for the period 1986-1990 meant that little attention was now being paid to article 274 and why public insults and degradation, as referred to in paragraph 1, could be punished by a term of imprisonment not exceeding three years, whereas an act of assault, as referred to in paragraph 2, might result in only a six-month prison sentence. What was the rationale behind such penalties? He would like more information on the implementation of that article and the reasons why racial offences had been grouped with offences against mankind in the draft criminal code, as stated in paragraph 7 of the report.
35. Mr. SONG Shuhua thanked the Polish delegation for its comprehensive written report and oral introduction. He particularly wished to know whether Poland, like other European countries, had to deal with the problem of racial discrimination against immigrants and refugees, as well as against Gypsies and Jews.
36. Many changes had undoubtedly taken place during the six-year period covered by the report, but they had been referred to only very briefly, if at all. Paragraph 31, for example, simply stated that housing, public health, medical care and social security were guaranteed by the Constitution. Such a statement did not help the Committee understand the situation in the country and it was to be hoped that a clearer picture would be provided in Poland's next report, together with full population data and information on the education of minorities.
37. Mr. BANTON said that article 2 (1) of the Convention required States parties to pursue a policy of eliminating racial discrimination in all its forms. The Polish authorities might take that requirement into account in connection with any policy which the National and Ethnic Minorities Commission might adopt. Policies for the elimination of racial discrimination might even form part of a more general minorities policy. The authorities should therefore define that policy, put it in written form, bring it to the attention of the persons it was intended to protect and those who were required to implement it and decide which Government body was to be responsible for its coordination. The Committee would welcome further information on all those points in Poland's next report.
38. The Committee would also like more information on attitudes and behaviour towards Jews in Poland. During the last election, a number of political parties had apparently stated that one of the current political priorities in Poland was a solution to the Jewish problem. It had also come to light that a 1991 opinion poll on attitudes and behaviour towards Jews on account of their ethnic origin had shown that, in a country almost devoid of Jews, where no lobby or Jewish organization with the slightest political ambitions existed, large numbers of persons feared that they were being governed by Jews. It was remarkable that such a small minority should have come to represent such a threat. That attitude should occupy a significant place in any policy for the elimination of discrimination based on ethnic origin.
39. He had taken that information from a publication entitled "Anti-Semitism, World Report 1992", which also referred to incidents reported in 1991, including the throwing of tear-gas grenades at the Israeli consulate and the desecration of tombstones in the Jewish cemetery in Warsaw, the only incident to have been officially condemned by the Polish authorities. Reports of that kind called for some comment by Poland and he hoped that it would provide further information at the current session and in its next periodic report.
40. Mr. GARVALOV congratulated the Polish delegation on its cooperation with the Committee and on the additional information it had made available and said that he fully endorsed Mr. Wolfrum's comments on the report. Now that Poland had broken away from the legacy of its past and was on its way to establishing a democratic society, the authorities should have submitted a more detailed report that was more sensitive to the ideals the Committee was promoting.
41. The Committee could not accept, for example, the statement that racial discrimination did not exist in Poland, knowing only too well from its consideration of the reports of some 132 States parties that that claim could never be upheld. It had been somewhat disturbing to hear that, under the Constitution, human rights instruments could not be part of domestic law, although changes were being introduced with regard to the European Convention on Human Rights. In that respect, the Polish authorities seemed to be discriminating against the International Convention on the Elimination of All Forms of Racial Discrimination and it was to be hoped that that situation would change once the new Constitution had been adopted.
42. Paragraph 4 of the twelfth report contained some figures on the Ukrainian, Byelorussian and Jewish populations of Poland. Some years previously when an earlier Polish report had been discussed, a question about the German minority had been raised and the Committee had not received a sufficiently detailed reply. It was therefore surprising that no mention had been made in the twelfth report of the German minority. In addition to information on that group, he asked whether the Polish Constitution allowed the establishment of political parties and organizations on racial, ethnic and religious grounds.
43. Recent reports had stated that Vietnamese living in some countries of central and eastern Europe were receiving discriminatory treatment. He wished to know whether that was the case in Poland.
44. Lastly, the statement in paragraph 4 of the report that it was State policy not to include questions pertaining to nationality or race in any questionnaire or survey because they might be of a discriminatory nature might in itself be considered discriminatory because it meant that individuals were being denied the right to self-identification and to say whether or not they wished to belong to a certain group.
45. Mr. DEMBINSKI (Poland), replying to questions asked by the members of the Committee, said that a possible explanation for the difference between the twelfth report and earlier reports was that they had been prepared by different persons in different Government departments. The problem of racial discrimination in Poland stemmed from the traumatic events of the past, with the result that racial questions were viewed very narrowly. Moreover, three-and-one-half years had elapsed since Poland's transition from a communist society to an open one. Under the communist system, legislation on racial discrimination had been clear, but acts of discrimination had been concealed. The present authorities were unsure how to deal with visible acts of discrimination and it would be some time before a consistent policy existed. The same might be true of the abortion issue: there had been a very strict law before the Second World War, but, during the 1950s, a very liberal law had been introduced by the communists. The present law was undoubtedly a reaction to the anti-Catholic and anti-religious attitudes of the communist regime and was a compromise which had been adopted to avoid political crisis.
46. Mr. Banton had raised the question of attitudes and behaviour towards the Jews in Poland. It had been said, rightly or wrongly, that, in Poland, there were anti-Semitic tendencies without any Jews. As with other emerging trends, it was important to view the problem from a historical perspective. The Government was examining the issue. It should be kept in mind that acts which might have not been reported in the past were currently receiving more attention.
47. He thanked the members of the Committee for their comments. His delegation would attempt to answer their questions in more detail at the Committee's next meeting. It would also transmit the Committee's observations and criticisms to the authors of the report.
48. The CHAIRMAN said he hoped that more detailed replies would be given in Poland's next periodic report.
49. Mr. Dembinski, Mr. Kedzia and Mr. Kasana (Poland) withdrew.
SUBMISSION OF REPORTS BY STATES PARTIES UNDER ARTICLE 9, PARAGRAPH 1, OF THE CONVENTION (agenda item 3) (continued)
Draft general recommendation on article 1 (1) (continued)
50. The CHAIRMAN said that Mr. Ferrero Costa had requested the reopening of the debate on the draft general recommendation on article 1 (1), which had been adopted by the Committee that morning.
51. Mr. WOLFRUM said that Mr. Ferrero Costa was objecting to the wording of paragraph 2, which read:
52. That wording had been based on a recommendation relating to discrimination adopted by the Human Rights Committee and, consequently, he did not see how it could be amended. Nor did he believe that the paragraph as it stood would in any way limit the scope of the Convention.
53. The CHAIRMAN pointed out that, because the Committee lacked a quorum, any amendments made at its current meeting would have to be adopted later.
54. Mr. FERRERO COSTA said that, naturally, all members of the Committee were working together in good faith. Nevertheless, the fact that a very large number of documents, many of which were distributed in English only, had to be considered in a short period did cause difficulties at times. That had been the case with regard to paragraph 2 of the recommendation under consideration: he had not noticed that the wording might give rise to some difficulties. He pointed out that the Committee was not applying its rules of procedure very strictly; under those rules, only documents distributed in the four working languages could be adopted.
55. While he appreciated the explanation offered by Mr. Wolfrum, he was still not fully convinced about paragraph 2. The text before the Committee had originally been a draft general recommendation on discrimination in fact. Yet, paragraph 2 related to non-discrimination in fact. Furthermore, the paragraph was expressed in terms which were too general and could therefore give rise to inaccurate interpretations of the definition of racial discrimination contained in article 1 (1) of the Convention. It was unwise to draft paragraph 2 in such a way that it could be interpreted as asserting that discrimination did not exist in any case of differentiation of treatment if such treatment had been based on criteria that were "reasonable and objective". Those very words "reasonable and objective" were too broad, even though they were qualified by the words "if the aim is to achieve a purpose which is legitimate under the Convention".
56. The CHAIRMAN said that the Committee often had to work with texts in a single language. If it abided strictly by the rules of procedure, it would be unable to carry out its work in the time allotted.
57. Mr. BANTON said that paragraph 2 had been incorporated into the recommendation on the basis of what had been said during the debate by a number of members of the Committee. There had to be some basis on which the reasonableness of an exception could be considered objectively. Several examples of reasonable grounds could be mentioned: in the United States and Canada, for example legislation allowed for differentiation of treatment in certain business relations. The issue was a complicated one and the Committee had to indicate clearly, for the benefit of the States parties, that it recognized the practical problems which could arise in particular circumstances. Furthermore, borrowing the wording of paragraph 2 from the Human Rights Committee meant that the Committee would be acting in harmony with the other treaty bodies.
58. Mr. SHAHI said he also considered that paragraph 2 was too general. It would be preferable to provide concrete examples of reasonable and objective criteria; otherwise, there was a danger that the paragraph would be given a broader interpretation than that intended by the authors. However, since the wording was based on that used by the Human Rights Committee, he would not object to it.
59. Mr. WOLFRUM said that he fully agreed with Mr. Banton's views. Certain forms of differentiation of treatment were necessary in the course of everyday life. If the Committee considered all cases of differentiation of treatment as discrimination, it would clearly be overstepping the boundaries of the Convention and any other instrument relating to non-discrimination.
60. The prohibition of discrimination was the counterpart of the principle of equal treatment, under which equal cases had to be treated equally and unequal cases had to be treated unequally. The question was how to determine into which category a particular case fell. Certain forms of differentiation were not justified, as set forth in article 1 (1) of the Convention. However, the prohibition of discrimination could not be taken to mean the exclusion of all forms of differentiation - and that was exactly the point of paragraph 2 of the recommendation. He would be glad to make the paragraph more concrete, but did not see any appropriate way to do so.
61. The recommendation did not have anything to do with those special measures, as provided for in article 1 (4), taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups; if the Committee so wished, it could include a statement in the text to the effect that the recommendation was without prejudice to article 1 (4).
62. Mr. Ferrero Costa had implied that he had tried that morning to rush the recommendation through to adoption. The draft recommendation had been available for the past two days and members had had plenty of time to read it; he did not wish to be perceived as having tried to force the Committee's hand.
63. Mr. DIACONU said that the Committee must ensure that general recommendations corresponded to the Convention and to the views of the other committees dealing with human rights; otherwise, States parties might be confused by a lack of consistency.
64. Paragraph 2 of the recommendation under consideration was based on a recommendation of the Human Rights Committee, which had itself used the definition of discrimination contained in the International Convention on the Elimination of All Forms of Racial Discrimination. The Committee had no reason to amend paragraph 2 unless it failed to conform to the Convention, in which case the matter should be taken up with the Human Rights Committee.
65. Mr. de GOUTTES said that he found the general recommendation acceptable as it stood. However, he agreed that the Committee had to guard against wrong interpretations. The question raised by Mr. Ferrero Costa was certainly worthy of the Committee's attention. Paragraph 2 should obviously not be worded so as to give rise to an interpretation that was contrary to the provisions of the Convention. Article 1 (1) of the Convention defined the term racial discrimination, thus stating the general rule on which the Convention was based. The only exceptions to that general rule were those referred to in article 1 (2), (3) and (4). It was true that, viewed outside that context, paragraph 2 might be interpreted in a way which did not correspond to the Committee's views. It might therefore be preferable to reword the paragraph more carefully or even to delete it entirely.
66. Mr. FERRERO COSTA said that he had never meant to imply that Mr. Wolfrum had tried to rush the recommendation through the Committee. He could not emphasize strongly enough that it had never been his intention to cast any doubts on Mr. Wolfrum's actions.
67. The issue at hand was simply a matter of how the recommendation might be interpreted. He was concerned that paragraph 2, as it stood, might be open to a broader interpretation than had been intended. He requested the Committee to give further consideration to the wording of that paragraph.
68. Mr. SHAHI said that his earlier statement should not be construed as a criticism of the efforts by Mr. Banton and Mr. Wolfrum to clarify the meaning of article 1 (1).
69. He proposed that, in paragraph 2 of the recommendation, the words "and non-discriminatory" should be inserted after the words "reasonable and objective".
70. Mr. DIACONU said that adding the word "non-discriminatory" would not really clarify the meaning of the paragraph.
71. In his country, there were many examples of differentiation of treatment based on reasonable and objective criteria. For example, the history of Romania was always taught in the Romanian language. He pointed out that, when differentiation of treatment existed, it was generally favourable to minority groups.
72. Mr. BANTON said that, as he had mentioned earlier, he hoped to be able to distribute at the Committee's August session a set of all the general recommendations relating to the Committee's reporting function, together with indications of other recommendations that might be included in a final set. Presenting the material in that way would enable the members to review each part for consistency with the whole and to make appropriate amendments. It would be best to return to the question raised by Mr. Ferrero Costa at that time. He therefore proposed that the Committee should postpone its decision on any amendment to paragraph 2 of the recommendation on article 1 (1).
73. Mr. WOLFRUM suggested that paragraphs 2 and 3 should be combined and that the first sentence should be amended to read:
The existing paragraph 4 would then become paragraph 3.
74. Mr. FERRERO COSTA and Mr. YUTZIS said that they supported the proposed changes.
75. Mr. BANTON suggested that the words "judged upon the objective and purpose of the Convention" should be replaced by the words "judged against the objectives and purposes of the Convention".
76. The CHAIRMAN said that, if he heard no objection, he would take it that the Committee adopted the draft general recommendation on article 1 (1), as orally amended.
77. It was so decided.
Draft general recommendation on article 4
78. Mr. WOLFRUM read out the draft general recommendation, which had been revised in the light of members' comments:
3. Article 4 (a) requires States parties to penalize four categories of misconduct: (i) the dissemination of ideas based upon racial superiority or hatred; (ii) incitement to racial hatred; (iii) acts of violence against any race or group of persons of another colour or ethnic origin; (vi) incitement to such acts.
5. The same paragraph penalizes the financing of racist activities, which the Committee takes to include all the activities mentioned in paragraph 3 above, that is to say, activities deriving from ethnic as well as racial differences. The Committee calls upon States parties to investigate whether their national law and its implementation meets this requirement.
79. In the revised draft, he had removed the reference in paragraph 1 to article 4 as the "key article" of the Convention, in the light of members' misgivings. Paragraph 2 had been amended to refer to article 4 as a whole, rather than to subparagraphs (a) and (b) alone. Paragraph 3 of the earlier version had become paragraph 4 of the new version.
80. Some members had been concerned that paragraph 6 might not be sufficiently clear to readers who were not fully familiar with the text of the Convention. For that reason, a new sentence ("They, as well as organized and other propaganda activities ...") had been included, which closely followed the wording of article 4 (b) of the Convention.
81. The CHAIRMAN said that the Committee seemed to approve of the proposed changes and suggested that it should adopt the draft general recommendation when enough members were present to constitute a quorum.
82. It was so decided.
Draft general recommendation on article 9
83. Mr. DIACONU read out the revised draft general recommendation, as contained in document CERD/C/1993/Misc.3:
2. It is noted, however, that some reports refer not only to the situation in the States parties which are their authors, but also to situations concerning racial discrimination in other States parties.
3. Since this is not in accordance with the Convention and may well create difficulties in the work of the Committee, States parties are reminded that the written reports submitted should concern solely the situation in regard to the implementation by them of the Convention.
4. Should a State party consider that another State party is not giving effect to the provisions of the Convention, States parties are reminded that article 11 allows them to bring the matter to the attention of the Committee, in accordance with the procedure described therein."
84. Mr. WOLFRUM said that he welcomed the idea behind the draft recommendation, but considered that States parties might find it too negative. Surely it would be better to approach the issue from the viewpoint of article 11 of the Convention, rather than of article 9.
85. Mr. YUTZIS said he agreed that the reference to article 11 should not appear merely as a reminder at the end of the general recommendation. The text should begin with a reference to the fact that, if a State party considered that another State party was not implementing the Convention properly, it could appeal to the Committee under article 11 of the Convention.
86. Mr. LAMPTEY said that the Committee must decide, once and for all, whether it wanted to adopt general recommendations on all aspects of the Convention - in which case the present draft was entirely appropriate - or whether it wished to keep general recommendations to a minimum. It would be quite wrong to place any more emphasis on article 11 than the present draft recommendation already did. Article 9 referred to the obligation of States parties to report on the implementation of the Convention in their own territory. Article 11, on the other hand, dealt with complaints by States parties about another State party's implementation of the Convention; that was an optional procedure and, indeed, no State party had ever actually followed it, as far as he knew. There was no need for the Committee to provide an interpretation of article 11, which was quite clear as it stood.
87. Mr. YUTZIS said that it was important to maintain the reference to article 11, even though no State party had yet chosen to invoke that article. The draft recommendation was intended to describe the procedure States parties should follow if the question ever arose.
88. Mr. DIACONU said that his main concern had been to deal with the reports of States parties on their own implementation of the Convention and to discourage them from discussing the situation in other States parties in their periodic reports. He certainly did not want to give too much prominence to article 11.
The meeting rose at 6.05 p.m.