COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION DISCUSSES STATES' OBLIGATION TO UNDERTAKE SPECIAL MEASURES

The Committee on the Elimination of Racial Discrimination this morning concluded its thematic debate, begun yesterday afternoon, on the obligation of States parties to undertake special measures or positive measures – sometimes known as affirmative action – as set out in articles 2 and 4 of the International Convention on the Elimination of All Forms of Racial Discrimination. In the debate, in which representatives from States parties, non-governmental organizations and United Nations agencies participated, issues related to the scope, nature, and monitoring of special measures were discussed, as was the need for the harmonization of terminology between the human rights treaty bodies.

Opening the discussion, Committee Chairperson, Fatimata-Binta Victoria Dah noted that the aim of the debate was to lead to the draft of what would be the Committee's thirty-second General Comment, a draft general recommendation on special measures. Committee Expert and Special Rapporteur on Affirmative Action, Patrick Thornberry, said the wording in the key paragraphs of the Convention on this issue was not very clear and thus the aim was to iron out these terms. The limits, nature and target groups of the special measures were some topics, among others, to be explored by the Committee. A detailed and analytical definition of what constituted special measures was a necessary component for inclusion in the draft general comment. The identification of target or beneficiary groups, the participation, the monitoring and evaluation of special measures was further noted for inclusion in the draft general comment. In his closing statement, Mr. Thornberry also underscored that the interpretation of the Convention had changed throughout the years, and as such the text itself and subsequent practices should be considered hand-in-hand. In that connection, the experience of India and South Africa had been noted as being "ahead of the game" in the area of special measures.

Hanna Beata Schöpp-Schilling, a Member of the Committee on the Elimination of Discrimination against Women and Special Rapporteur on Temporary Special Measures, noted a number of differences between the Convention on the Elimination of all Forms of Discrimination and the Convention on the Elimination of Discrimination against Women, in particular with regard to the relevant provisions of the two treaties as they related to the question of whether the application of temporary special measures were merely permitted or whether their application was an obligation. It was suggested that this Committee adopt the terminology of "temporary special measures" instead of "special measures" in the aim of harmonizing terminology across the different human rights committees and to ensure consistencies.

Some aspects noted in general consensus by Committee Experts was the need for periodic assessment and management of special measures; a distinction between permanent measures and temporary measures; and the harmonization of terminology with other human rights treaty bodies. Among concerns raised by Experts was the importance of analysing both domestic legislation on special measures and the way in which States parties interpreted that legislation; the need to ensure that positive measures did not actually lead to discrimination; the need for the participation of the affected groups in the decision-making process in formulating such measures; and the extent of the guidance the Committee should give in this context to States parties. It was also acknowledged that a fine distinction between positive measures based on the Convention and other special measures was maintained by the Committee.

States parties speaking in the general debate were Chile, Uruguay, the United Kingdom, Colombia and New Zealand. Also speaking were representatives of the International Labour Organization; the United Nations Educational, Scientific and Cultural Organization; the Anti-Racism Information Service; the Forest Peoples Programme; a representative of the German Sinti and Roma community; and the International Peace Bureau.

Article 2 of the Convention provides that "States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." Under article 4, on the prohibition of hate speech and organizations that promote racial hatred, States parties are required to "adopt immediate and positive measures designed to eradicate all incitement to, or acts of, discrimination".

When the Committee reconvenes this afternoon at 3 p.m., it is scheduled to begin consideration of the sixteenth to eighteenth periodic reports of Germany (CERD/C/DEU/18).


Statements

FATIMATA-BINTA VICTORIA DAH, Chairperson of the Committee on the Elimination of Racial Discrimination, in opening remarks, noted that the subject of this thematic debate, special measures, was one which Committee Experts held particularly dear, and was directly related to the text of article 2, paragraph 2, of the International Convention on the Elimination of All Forms of Racial Discrimination. The aim of the debate was to lead to the draft of what would be the Committee's thirty-second General Comment, a draft general recommendation on special measures (sometimes known as affirmative action").

PATRICK THORNBERRY, Committee Expert and Special Rapporteur on Affirmative Action, introducing the subject of special measures, said that this issue arose on a number of occasions within the Committee, and had also been the subject of discussion throughout the drafting of the Convention. The key paragraphs were article 4, paragraph 1, and article 2, paragraph 2, of the Convention. The wording was not very clear and thus the aim was to iron out these terms. The limits, nature and target groups of the special measures were some topics, among others, explored by the Committee, but no definition of special measures was established. A detailed and analytical definition was a necessary component in the draft general comment. The identification of target or beneficiary groups, the participation, the monitoring and evaluation of special measures was further noted for inclusion in the draft general comment. Therefore, the general comment it should be a conceptual, analytical and operational document.

HANNA BEATA SCHOPP-SCHILLING, Member of the Committee on the Elimination of Discrimination against Women and Special Rapporteur on Temporary Special Measures, said that there were a number of differences between the relevant articles of the Convention on the Elimination of all Forms of Discrimination against Women and the Convention on the Elimination of All Forms of Racial Discrimination. Specifically, differences in the definition of discrimination, as well as the relevant provisions of the two treaties as they related to the question of whether the application of temporary special measures were merely permitted or whether their application was an obligation. There was also a difference regarding the usage of the term "protection", specifically, special measures that were a permanent "protective" nature as compared a temporary nature.

Some of the issues that were challenges in discussing elements for temporary special measures included terminology; justification of temporary special measures through theories of social justice; and differences between general social policy or supportive/protective measures, said Ms. Schöpp-Schilling. With regard to several issues of terminology, it was suggested that the Committee adopt the terminology of "temporary special measures" instead of using the term "special measures" in the aim of harmonizing terminology across the different human rights committees and to ensure consistencies. On terms for and concepts of equality, it was noted that in pursuit of the concept of equality of results, the application of temporary special measures had led towards a real transformation of opportunities, institutions and systems so that they were no longer grounded in the historically and culturally determined paradigms of power and life patterns of the majority. The Committee was advised to discuss the theories of social justice and refer to them where appropriate; reflect on the need to add operational elements and examples to its general comment, while clarifying at the same time that they were not exhaustive so that new developments not thought of today could be included, and that additional concrete and women-specific temporary special measures be highlighted in the general comment.

A representative of the International Labour Organization said that the Convention concerning Discrimination in respect of Employment and Occupation, commonly known as Convention No. 111, had been adopted by the International Labour Organization in 1958, four years before the General Assembly of the United Nations adopted the International Convention on the Elimination of All Forms of Racial Discrimination. Similarities in notions, concepts and definitions were found throughout both of those human rights treaties, inter alia, with regard to provisions on special measures. Article 5 of Convention No.111, specifically, dealt with "special measures assistance and protection and assistance" and attention was drawn to the provision's wording, its place in the overall architecture of the Convention, its drafting history and also how it had been understood by the International Labour Organization supervisory bodies over the last 50 years. It was recommended that article 1, paragraph 4, and article 2, paragraph 2, of International Convention on the Elimination of All Forms of Racial Discrimination should not be read in isolation from the other provisions of the Convention, particularly, Article 5 which required States parties to take measures to prohibit and eliminate racial discrimination; special measures related to the issue of to what extent the Convention imposed positive obligations with regard to the identification, prevention and elimination of racial discrimination.

In a statement on behalf of the United Nations Educational, Scientific and Cultural Organization (UNESCO), a representative said that numerous challenges faced their work, but the challenges that remained an issue were the understanding of affirmative action and temporary measures and the justification of special measures. More specifically, an important issue was the monitoring and evaluation of such measures. On the right to education, it was noted that such work was in line with the UNESCO Convention, which stressed primary education being free and mandatory, and more importantly ensured access to all people to the right to education. In order to universalize education and eliminate marginalization in education, UNESCO had been committed to collaboration with a goal of clarifying the term affirmative action.

A representative of Chile said that Chile had an ongoing commitment to helping society's most vulnerable, including women, ethnic minorities, children and the elderly. In the international area, Chile supported all resolution targeting ethnic minorities in order to assist in their enjoyment of human rights. Special measures had been undertaken through public policy and norms in Chile and a social pact had been signed between the State and the indigenous people. The pact consolidated and expanded measures for indigenous people, which deepened and guaranteed compliance between the State and the people from a comprehensive point of view and respect for the full integration of indigenous people. The Indigenous Law was geared to the promotion and protection of these people. Further, achievements reached included land and water restoration, and increased access to education for indigenous peoples.

A representative of Uruguay said that, at the national level, with a view to developing policies to combat all forms of intolerance, Chile had worked jointly with civil society on a number of programmes aimed at the general population and more specifically those of Afro-descendants. For example, a cooperative had been set up to assist in the return of people who had been expelled from their homes during the dictatorship. A number of challenges still faced the Government in the successful implementation of programmes, including in awareness-raising, but the National Action Plan, the Plan for Equality and Rights for the Victims of Racism and Racial Discrimination were some of the Government's achievements to date. It was further noted that the discussion enabled the State to enrich their vision and cooperation with other stakeholders on these matters.

A representative of the United Kingdom said that the State enacted its first laws against racial discrimination over 40 years ago, and since then had developed a comprehensive body of legislation to combat discrimination. The law now covered discrimination on grounds of race, gender, sexual orientation, region or belief, disability and age. In 2000, the United Kingdom had taken the law in a new direction by placing a positive duty on public authorities to promote race equality. It was as such necessary for the public authorities to be pro-active in promoting equality, rather than just reacting to discrimination after it had occurred. Thousands of public bodies, including Government ministries, local authorities and the police were subject to those duties as well. Further, the Government had recently announced plans for a new streamlined equality duty which had also included age, sexual orientation, religion or belief and gender reassignment.

A representative of Colombia said that the Government was committed to fighting all forms of discrimination, such as the quota law in favour of women and legislation on Afro-Colombians.

A representative of New Zealand said that the need to take special measures was provided for in the Human Rights Act and the Bill of Rights Act in New Zealand. The State had a long history in the adequate development and measures taken for specific groups. A developed process was present to address historical grievances. The relationship between the Crown and the Maori was a permanent and enduring one. New Zealand welcomed further clarifications between permanent and temporary measures. New Zealand was also interested to have race and needs-based measures better clarified, where they could be applied in specific cases.

A representative of the Anti-Racism Information Service (ARIS) observed that understanding and acknowledging the fact that racial discrimination was socially constructed paved the way for concerted action against inequality and the institutional mechanisms that perpetuated it. It also had to pave the way for proactive special measures. It was not enough just to prohibit discriminatory practices; they had to focus on what could be the enabling issues, so as to put in place a positive responsibility on the State as well. However, there were dangers when Governments took a protectionist approach to equality, which curtailed freedoms of some ethnic groups in the name of protecting them from harm. An example was an executive decision in some countries prohibiting indigenous people from settling outside their geographic area to work, justified as an attempt to protect them from being exploited.

A representative of the Forest Peoples Programme said that it had brought a number of urgent situations before the Committee involving discrimination against indigenous peoples, and it had been very grateful for the attention and manner in which the Committee had advanced thinking and concepts in the context of indigenous peoples' rights. A main concern was for the Committee to clarify the obligation on States to recognize indigenous peoples rights and on the other hand the enforcement of the special measures paradigm. It was requested that the following three points be clarified in the general recommendation: that indigenous peoples rights were inherent; that indigenous rights were not special rights; and, lastly, that recognition of the permanent rights of indigenous people was not a temporary measure, but was rather the duty of all States who were members of the Convention.

A representative of the German Sinti and Roma communities said that it was of great importance to harmonize terminology between treaty bodies. It was important for general recommendations and to streamline the obligations for national Governments. Special measures should concentrate on education, work, housing, and representation in politics.

A representative of the International Peace Bureau, speaking in his personal capacity, said that the term affirmative action traditionally in the United States was referred to as a non-discriminatory measure, but was aimed to help uplift certain groups of people. Today the term was used in a number of contexts and as such was a euphemism.

A Committee Expert said that sometimes measures were designed to go beyond the vestiges of the past for certain groups to enjoy human rights. It was noted that the Durban Conference in 2001 had recommended this type of contribution. States parties had often denied the need to adopt special measures in their "particular" case, had given a restrictive measure to the concept, or had simply consulted the community in question. The Committee needed to bring the concept more into focus in order to avoid the mixed interpretation of the terms. Special measures needed to have a specific aim in correcting the situation of a group that had been discriminated against and had suffered because of it so that they could achieve equality. Each State needed to apply these measures pursuant to specific criteria, in which the ongoing data on the political, social and economic status of each group was established so that recommendations to be taken by each State. The gathering of such data was an act of good governance. Measures could be enforced via legislation, administration, and executive means. The measures should be applied to all areas and spheres, such as economic subsidies to disadvantaged areas and specifically groups living in those areas. Timeframes and specific areas needed to be identified in the application of special measures.

Equality did not mean equal treatment another Committee member underscored. Special measures were by definition temporary and there should not be confusion between them and permanent measures. The right of indigenous peoples to their land, and in connection with their livelihood, was not a subject for special measures as it was of a permanent nature. In regard to minorities, where the question was based on identity, including the use and preservation of language, culture, religion and traditions, were also permanent rights, and the measures to address those issues had to be permanent. In the area of education a distinction had been made, for example ensuring that classes in schools were available for minorities was permanent insofar as those peoples were present in the State.

No State could hide behind inadequate resources, an Expert stressed. States were required to find the means to achieve equality. As for the relationship between federal and local governments, it was the federal Government's responsibility to ensure the application of the Convention and as such it was responsible for implementation of such special measures.

LINOS-ALEXANDER SICILIANOS, Committee Expert and Co-Special Rapporteur on Affirmative Action, summarizing the discussion so far, said that it had been seen that positive measures were not discriminatory, and were taken to ensure that human rights were in fact promoted and protected. The difference in terms and wording between the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women should not be exaggerated. The inequalities between genders reflected the same principles as between other groups where there were inequalities. The International Labour Organization's comments on the need for ongoing monitoring and the need for special measures were welcomed. The measures taken should be timely and based on necessity. It was not about distinct regimes based on ethnic origins, and thus the needs should be periodically assessed and managed. A fine distinction between positive measures based on the Convention and other special measures was maintained by the Committee.

Mr. Sicilianos had paid careful attention to the comments on the rights of indigenous peoples. Also worth reflecting on was the nature and scope of special measures with regard to fighting poverty, as discrimination led to poverty and poverty led to discrimination, and special measures could help to break that vicious cycle. Also highlighted was the need to reflect on double discrimination, in particular discrimination based on race and gender, and the possible need to devise special measures to address victims of double discrimination. The question of what should be the timing for the development of special measures with regard to consultations with the groups involved needed to be discussed. There was also a concern regarding the harmonization of terminology between treaty bodies, and this area should be addressed.

ALEXEI AVTONOMOV, Committee Expert, welcomed recommendations made by Ms. Schöpp-Schilling on maintaining a consistent set of terminologies between the Committee on the Elimination of Discrimination against Women and their Committee. Special measures had been used to improve the situation of certain populations. At times, special measures had been extensive, lasting over generations, as some problems could not be resolved overnight. An imperative element, in the context of the Committees numerous documents, as well as other international human rights instruments, was the vital need for harmonization between these texts.

REGIS DE GOUTTES, Committee Expert, noted that, despite the differences between their Convention and the Convention on the Elimination of All Forms of Discrimination against Women, virtually all speakers had stressed the need for harmonizing concepts, in particular, terminology. In the Committee's application of terminology it had also been stressed that certain terms, such as "positive discrimination" should not be used. There were three characteristics of special measures that were explicit or implicit in the text of the Convention: that they be necessary; appropriate; and proportionate. Any special measures should take those characteristics into account. Another limit to be considered was that in that in no event should positive measures run counter to the basic principle of non-discrimination. Therefore an external monitoring mechanism was necessary with respect to positive measures, to ensure they did not actually give rise to discrimination.

PASTOR ELIAS MURILLO MARTINEZ, Committee Expert, aired concerns with regard to the differences created in the application of special measures. In some cases special measures took the form of quotas, it was said, which could put others at a disadvantage. Further criticism of affirmative action was that it perpetuated reliance on assistance and the mentality that certain people were inferior, and people were not assessed on their ability to work, their experience, and their merits. Also it was important to stress that special measures were not replacing existing measures or norms, such as indigenous peoples' right to speak their own language. Furthermore, the difference, objective and purpose of measures needed to be examined in the political context of the each State party.

DILIP LAHIRI, Committee Expert, said that, by definition, affirmative action was temporary in nature, and existed only while the inequalities persisted. That however, did not mean that it was short term, as the process could take decades. The Committee was only dealing with temporary measures. It did not really matter if the term referring to affirmative action or other special measures were changed to "temporary special measures", as had been suggested; it was only important for these measures to actually be temporary. In the case of India, despite an ongoing debate with the Committee as to whether the caste system was a form of discrimination under the Convention, India's affirmative action programmes in this area covered education, jobs at all levels of the Government and had also been extended to private institutions. India was an example of where affirmative action programmes had achieved results. It paved the road for the Committee and States parties to move forward. In terms of the Committees recommendation to States parties, it was important that States parties were required to give the Committee an adequate explanation for not applying temporary measures when circumstance called for it, and States should include in their constitutions measures that allowed for special measures and the removal of hindrances to aggressive temporary measures, such as quotas.

JOSE FRANCISCO CALI TZAY, Committee Expert, noted that the big challenge that lay ahead of the Committee was to ensure that special measures assisted the collective good, rather than special measures for specific groups. Examples of good practice would be bilingual education programmes for indigenous people or intercultural exchanges. Furthermore, special measures should create a vision of a State that reflected a vision of the nation, in particular, those States that saw themselves of multilingual and multiethnic. Noted with concern were some of the generalizations that the Committee indulged in; it was imperative that the Committee's discussion be specific. In the drafting of the general recommendation, the Committee should have a clear view that recommendations made ensured that the population as a whole benefited.

ANWAR KEMAL, Committee Expert, said that there was an element of temporary special measures that had not been mentioned which was important for nation-building. Countries that ignored the disparities that existed between different ethnic groups in those States in the development of policies would face ongoing challenges. It was important to involve these groups in the creation of the nation in order to give them a stake in the process. For example, in the case of the Balkans, the ethnic crisis was never addressed and the problem had continued to exist. There was a need to harmonize the concepts across with other Conventions, and it was recommended that clarification be made in the draft of the general recommendation in the context of terminologies.

PIERRE-RICHARD PROSPER, Committee Expert, said that it was clear that special measures were envisioned by the Convention and at times there were situations where they were necessary. However, there would always be imbalances in life that were independent of racial discrimination and the key for the Committee was to encourage measures that provided for equal opportunity for all. Further, it was important to encourage diversity. It remained important to know when special measures were triggered and what were the precise measures requested, but they should remain careful that measures requested did not have adverse effects.

JOSE LINDGREN ALVES, Committee Expert, said that many of the statements made about specific groups were with regard to permanent rights and had little to do with temporary special measures. An essential element, among other things, to be included in the draft of the general recommendation was that the aim of special measures was to overcome structural situations built on a discriminatory basis.

CHRIS MAINA PETER, Committee Expert, said that this thematic discussion was long overdue. Interventions had been made to allow access to education, employment and government office. Rights were not discussed, they were struggled for; they were not delivered, they were fought for. In the process there was a danger of confusing simple matters, and it was recommended that the Committee identify clear rules and exceptions, in order to avoid misleading States parties. The decisions of courts for example in India and South Africa were far ahead of what had been discussed today in the Committee and as such there was concern that the Committee's work would be irrelevant to many States parties.

PATRICK THORNBERRY, Committee Expert and Special Rapporteur on Affirmative Action, in closing observations, said that there was a need for the establishment of a working group to work on special measures. The widest possible consensus was needed to back up a general recommendation. There was not considerable contention within the Committee on the concepts of discrimination and equality in particular situations. Reflection was needed on whether to label certain special measures as temporary. Permanent rights had been identified, such as the rights of indigenous people, and women. The term permanent special measures could not be used. Positive remarks on the intersectionality were noted on race and gender; however there were other forms of double discrimination, such as on the basis of race and religion, and disability and race, that the Committee needed to keep in mind.

In the formation and implementation of special measures it was important to note the element of participation in decisions which affected particular groups and more needed to be said on that, Mr. Thornberry stressed. A certain degree of latitude also needed to be left to States; over-guidance could cross the line of State responsibilities and should be kept in mind when making recommendations. The interpretation of the Convention had changed throughout the years, and as such the text itself and subsequent practices should be considered hand-in-hand. In particular, the experience of India and South Africa had been noted as being ahead of the game in the area of special measures. The conceptional and justification issue on the objectives and aims of special measures was raised by a number of Committee Experts and deserved more attention. The reference to public life also affected the Committees deliberations on special measures, and there needed to be a clear cut-off where private life began. Race- and needs-based affirmative action needed to be distinct and clarified. Reflection on the question of "did the Committee require historical grounding to act on a situation, or rather should it be assessed on a de facto basis" was suggested. Finally, the need for a line to be drawn on detailed guidance to States parties, to ensure the Committee was not over prescriptive and that as a result State parties were more inclined to fulfil their obligations, was reiterated.


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