"Preservation and promotion of tolerance, pluralism and respect for diversity can produce more inclusive societies." Durban Declaration Point 6 - Consider the extent to which the application of existing International Human Rights norms secures this goal.

Through the International Declaration on the Elimination of all Forms of Racial Discrimination 1963 and the International Covenant on the suppression and punishment of the crime of apartheid 1973, racial discrimination was brought to the forefront of international protection. The countries that ratified these conventions agreed to the standards set out therein, and as such, were encouraged to take positive steps to eradicate racial discrimination. These Covenants were instrumental when it came to the decolonisation of a large number of states in Africa and Asia.

The preamble to the Declaration on the Elimination of all Forms of Racial Discrimination 1963 established that discrimination on the grounds of race, colour, sex, religion, language, political opinion, national or social origin, birth and other status are “scientifically false, morally condemnable, socially unjust and dangerous.” Article 2 of the UDHR and Article 2(1) of the ICCPR together with Article 2(2) of the ICESCR and many other International regional Conventions have been based on this principle. In this way the international community has condemned discrimination as contrary to international policy. Indeed without such a policy at the heart of the organization the UN would be rendered useless.

The Declaration on the Elimination of All Forms of Racial Discrimination defined the meaning of ‘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, or human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. It condemned racial differentiation and highlighted the view that hierarchical governmental systems that were based on racial superiority presented a danger to international peace and security. It was confirmed in the  1963 Declaration that the UN strives to implement a global society free from racial discrimination. In 1966 the General Assembly of the UN adopted a new, legally binding, International Convention on the Elimination of all Forms of Racism that gave legal effect to the 1963 Declaration.

However, it must be borne in mind that in the era in which these Conventions were passed, huge human rights violations, such as apartheid, had shocked the world. It was a time of extensive decolonisation by several major powers and as such the necessity for, and the effective use of, such Conventions were assumed to apply to these struggling fledgling nations. This political and social atmosphere led some of the international signatories to believe that racial discrimination was not a problem in their country and that as such the Convention was not really applicable to them. However, the passage of time has led to the evolution of the concept of discrimination. In today’s society racial discrimination is an issue that must be addressed in every nation. To this end it is important to note that the Convention was widely accepted, so much so that in 2002, out of the 169 states that have signed up to the Convention, 162 states have ratified it.  

A good example of human rights norms positively promoting tolerance pluralism and respect for diversity can be seen in the International Convention on the Suppression and Punishment of the Crime of Apartheid 1973. Article 2 defined apartheid as acts that established or maintained domination by one racial group of persons over another racial group by systematic oppression.  In the preamble to the Convention it was stated; “In accordance with the International Convention on the Elimination of Racial Discrimination, States particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” 

Apartheid was also described by the Security Council in the preamble to the Convention as a threat to the security of international peace. To this effect, serious measures, such as sanctions or military action were justified against South Africa. The Convention described apartheid as a crime against humanity and declared those institutions, organizations or individuals who practiced to be criminal. The Convention was to come into force on the 18th July 1976 however it lapsed due to abolition in South Africa of apartheid before it could come into force. This Convention is important as it shows the international community’s willingness to act, in the event of serious discrimination, in a positive way to eliminate treatment that is degrading and contrary to human dignity. The UN has been successful in the elimination of these institutional forms of discrimination  

The activities of the UN against racial discrimination have been intensified within the framework of Three Decades for Action to Combat Racism and Racial Discrimination. The first decade was from 1973-1982, the second was from 1983-1992, and finally the third was from 1993-2003. The plan of action for the Third Decade against racism attempts to combat racism at the international, regional and national level together with education, co-ordination and reporting being central to its aims.

In December 1993 the General Assembly created the post of High Commissioner for Human Rights. The Commissioners role is to look over Human Rights protection within the UN and to actively encourage the elimination of discrimination by promoting education and assisting in almost any field of Human Rights. Its role is crucial to the effective development of protection against discrimination.  

Recently all Human Rights Treaty bodies, but in particular the Committee on the Elimination of Racial Discrimination, have encountered problems with State parties who do not fulfill their reporting requirements. The reasons for the lack of reporting from these nations can be the result of a lack of personnel, a lack of political will and some nations have complained that there were too many reports due at the same time from different international bodies.

CERD has taken various steps to combat States that have reports overdue. They send reminders to the governments, and the heads of government if these are ignored. In 1992 in the Committees 39th session it was decided that the adoption of the country rappoteur brought the issue of compliance closer to a collective opinion. The idea was that the Committee would ask the representative of the State a series of questions, and once answered, he would leave the room, then the country rappoteur would be asked to propose a conclusion on the progress of the implementation. The rappoteur is then asked to draft his conclusions, show them to his colleagues and take account of their comments, then prepare a draft for a later session, which may be accepted by consensus. In this way it was hoped that States would take recognition of the Commissions proposals for reform, leading to a greater acceptance of the Human Rights norms they advocate.  

In 1993 at the World Conference on Human Rights the Vienna Declaration and Programme of Action was adopted. In particular it considered the elimination of institutional forms of racial discrimination as a primary objective for the international community. Also in 1993 the Commission on Human Rights appointed a Special Rappoteur to analyse both the institutional and indirect forms of racism throughout the world. The Special Rappoteur has the ability to require member states to supply information in relation to his research. This gave the UN the ability to monitor and assess the evolution of international law in this area on a ground level. However, it must be made clear that not all states believe they have a problem with discrimination, and refute the possibility, thus making their contribution to the study of minimal value. Further, at the World Conference against Racism in Durban 2001, it was established that only “a few Governments stated that they utilized reviews of their periodic reports by CERD as an evaluative measure of the effectiveness of their policies and practices.”

It is important to consider the regional system of protection in order to understand how it combats the problems raised by pluralism in today’s society. Regional systems are generally established between nations that are similar in culture to one another. This enables them to act in a much more homogenous way toward their domestic development of human rights. It enables states to implement International Human Rights norms in a way that allows for their cultural diversity. The advantages to be gained by this method of protection have been given recognition by the UN as it enables states to develop human rights in a way that could not be done under a single, all encompassing, document of international law. On a regional level, the Council of Europe and consequent European Convention on the Protection of Human Rights and Fundamental Freedoms has implemented great reforms within the European state in relation to human rights.

The European Convention established a set of basic human rights and fundamental freedoms that are guaranteed to its member states. Through the European Convention preservation and promotion of tolerance, pluralism and respect for diversity is advanced. Article 14 of the Convention states that individuals should be free from discrimination, however this right can only be brought in conjunction with the breach of another right under the Convention. This limitation was highlighted in Botta v Italy where the European Court of Human Rights considered a claim that the lack of disabled facilities at a seaside resort violated the applicants right to equal enjoyment of his right to private life under Article 8 and the right to be free from discrimination under Article 14, however this case failed. Where Article 14 has been found to be applicable the European Commission has afforded it a narrow interpretation as evidenced in the case of Stedman v UK. This suggests that the European Commission, as a monitoring body, is not as willing to deal with cases of indirect discrimination.

However, a recent development in ‘The Race Directive 2000’, brought under Article 13 of the EC Treaty, has brought a more certain approach to elimination of racial discrimination in Europe for the first time. The EU race directive is concerned with the principle of equal treatment between people, irrespective of their racial or ethnic origin. It sets minimum standards of protection, which all member states of the EU must meet. Member states may exceed these standards and introduce more favourable provisions, but under article 6(2) of the directive, they cannot reduce the standards of protection they already provide. This is an important development as it can override domestic legislation if compliance is not already forthcoming. However, as this is a directive it can only achieve horizontal effect.

The modern application of the Human Rights norm of non-discrimination and anti-racism was recently examined by the General Assembly in the World Conference Against Racism, Discrimination, Xenophobia and Related Intolerance 2001. A series of questions had been distributed to the various signatory nations in relation to the issues underlying the problem of discrimination. It was argued that the levels of awareness about racism needed to be addressed by nations. State parties are under an obligation to adopt measures to combat prejudices that lead to racial discrimination. In particular education should promote understanding, tolerance, friendship among nations and ethnic groups as set out under Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination. 

The effectiveness of the UN’s activities and mechanisms were also scrutinised. It was advocated that more money should be made available for the material and financial assistance of developing countries to encourage public awareness of racial discrimination. Israel stressed the need for new and original solutions to combat racism and related discrimination and it argued that the United Nations should assume a leading role in creating greater responsibility in that field. It was stated by most of the respondent States that legislation had been passed in their respective jurisdictions that gave effect to the International Convention on Racial Discrimination, and it was recommended that all countries should ratify the International Convention and implement Article 14, whereby individuals can complain to the Committee on violations of these rights. The outcome of the Durban Conference was the establishment of the Durban Declaration and Programme of Action (DDPA). The Office of the High Commissioner for Human Rights has established an Anti-Discrimination Unit as the lead implementing agency of the Durban Declaration and Programme of Action.

The interim report of the Special Rapporteur 2002 acknowledges the achievements of the World Conference in Durban and states that the Durban Declaration and Programme of Action is “a fundamental document that should be further developed and implemented without delay through Human Rights education and economic, social and cultural development.”    

In the last 50 years we have seen a huge development in the field of Human Rights. We have seen the evolution of a system whereby those Human Rights have been promoted by, and implemented into, international law. There has been much ground covered in the fight against discrimination, but we must ask, 50 years on are we really on top of the problem. Have Human Rights norms, in this case non-discrimination, actually promoted tolerance, pluralism and respect for diversity and have we developed more inclusive societies free from arbitrary discrimination as a result?

The answer to this question is a definitive ‘yes’. The United Nations has played a major roll in the fight against racism and other discriminative practices. Through the International Bill of Rights, the International Declaration on the Elimination of all Forms of Racial Discrimination 1963, the International Covenant on the Suppression and Punishment of the Crime of Apartheid 1973, the Three Decades for Action to Combat Racism and Racial Discrimination, the Committee on the Elimination of Racial Discrimination and other monitoring bodies, the two World Conferences and the consequent Durban Declaration and Programme of Action have established that the promotion of tolerance, pluralism and respect for diversity is at the heart of non-discrimination. These Declarations, Conventions and strategies for the prevention of discrimination prove that the international community, through their membership of the UN, are actively tackling the problems setout therein.

The regional systems that have developed enables countries to act in a much more homogenous way toward their domestic development of human rights. It enables states to implement International Human Rights norms in a way that allows for their cultural diversity. This is recognised by the UN as valuable asset as it allows diversity of implementation and allows less developed regions the ability to regulate at differing rates. It effectively deals with the problem of pluralism on a social and cultural level in a way that no single piece of legislation could.  

The present attempts to reform, under the Durban Declaration, constituted a solid foundation for the fight against racism, and provided a new and balanced blueprint for action. However it has been argued that the success of the World Conference Against Racism’s Declaration and Programme of Action depends on the commitment to follow-up programmes. Words must be followed by actions and serious reforms must be further mooted. The fear is that at the international level little will be done to follow it up. There are fears that with the passage of time it could loose its gusto and end up like the Vienna Conference of 1998, where the Declaration and Programme of Action of the Vienna Plus 5 Conference is yet to see the light of day.

Bibliography

• D. J. Harris; Cases and Materials on International Law 5th Edn; Sweet & Maxwell; p806-853

• Helen Fenwick; Civil Liberties and Human Rights 3rd Edn; Cavendish Publishing; p891-896

• Henry J. Steiner & Philip Alston; International Human Rights in Context 2nd Edn; Oxford Press; p592-920

• Malcolm N. Shaw; International Law 4th Edn; Cambridge; p196-252

• Rhona K.M. Smith; Textbook on International Human Rights; Oxford Press; p26-116

• Report of the Committee on the Elimination of Racial Discrimination; 56th & 57th Session March & July 2000

• Report of the Special Rapporteur; Racism and Racial Discrimination; Vol.1: Thematic Mechanisms and Approaches (2002)

• Resolution 53/131; International Convention on the Elimination of All Forms of Racial Discrimination 1998

• Resolution 1904 (XVII); United Nations Declaration on the Elimination of All Forms of Racial Discrimination (1963)

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• United Nations Report by the General Assembly on the Durban Declaration; A/CONF.189/PC.1/4

• Warwick McKean; Equality and Discrimination under International Law; Clarendon Press; (1983) p102-193