COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONCLUDES SEVENTY-THIRD SESSION

The Committee on the Elimination of Racial Discrimination has concluded its three-week seventy-third session, making public its concluding observations and recommendations on the reports of Ecuador, Namibia, Togo, the Russian Federation, Germany, Austria, Switzerland and Sweden, which were considered at this session.

The Committee also reviewed the country situation in Peru with regard to its implementation of the Convention, in the presence of a delegation, under the Committee's review procedure for States parties whose reports were more than five years' overdue. The discussion focused on the situation of the indigenous communities, whose lands were being licensed and exploited for hydrocarbon production and exploration activities, and measures undertaken by Peru to promote the participation of citizens and the protection of the environment in that context. The delegation of Peru said that it expected to present its report to the Committee before the end of the year. Following a brief debate, the Committee also accepted Belize's request to postpone the examination of the situation in that country until it could draft its report.

At its opening meeting, following a briefing by the Director of the Human Rights Council and Treaties Division of the Office of the United Nations High Commissioner for Human Rights (OHCHR), the Committee also held a dialogue with other United Nations system representatives, from the International Labour Organization, OHCHR's National Institutions Unit, and from the UN Refugee Agency, to discuss areas of common interest, including follow-up to the Durban Declaration and Programme of Action; the work of national human rights institutions; and the situation of refugees and asylum seekers.

Also during this session, the Committee held a thematic discussion, over the course of two meetings, with representatives from States parties, non-governmental organizations and United Nations agencies, with a view to formulating a future general comment, on the topic of States parties' obligation to devise “special” or “positive” measures – sometimes known as affirmative action – as set out in the Convention. 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.

Near the end of its session, the Committee discussed reports presented by Committee Members on follow-up to the Committee's concluding observations concerning the four countries for which replies had been received – Guatemala, Guyana, Liechtenstein and Turkmenistan. It also discussed several situations in the context of the Committee's early warning and urgent action procedure, as well as on the implementation of article 15 of the Convention, on the elimination of all forms of racial discrimination concerning Non-Self-Governing Territories.

At its final meeting, the Committee adopted its Annual Report, in which it notably requested that the General Assembly extend the Committee's annual meeting schedule from three to four weeks, and that its meetings be webcast.

The Committee’s seventy-third session was held from 28 July to 15 August. The seventy-fourth session will take place from 16 February to 6 March 2009, when the Committee will review periodic reports on Bulgaria, Croatia, Finland, Montenegro, Pakistan, Republic of Congo, Turkey, Tunisia, and Suriname.

Concluding Observations and Recommendations on Country Reports

Ecuador

Having considered the combined seventeenth to nineteenth periodic reports of Ecuador, the Committee welcomed the adoption by the Constituent Assembly of Ecuador in July 2008 of a new draft Constitution that would be submitted to a popular referendum in September 2008, and in particular its recognition of the multiethnic and multicultural status of the country. It noted with satisfaction the establishment of the Programme for Rural Development within the Ministry for Economic and Social Inclusion, with the aim of providing follow-up to the Rural Poverty Reduction and Rural Development Project, which was completed in 2007, and which had targeted various provinces and areas with indigenous and Afro-Ecuadorian populations. Also welcomed were actions undertaken by the city government of Quito to improve the living conditions of its indigenous and Afro-Ecuadorian inhabitants, such as the Afro-Ecuadorian and Indigenous Development Programmes (2001); the Ordinance on Social Inclusion with a Focus on Afro-Ecuadorians (2007); the Municipal Social Council for the Elimination of Racial Discrimination (2007); and the Municipal Strategy and Plan of Action for the Comprehensive Development of the Afroquiteño People (2007-2015).

While noting that the draft Constitution guaranteed the enjoyment of collective rights to the indigenous and Afro-Ecuadorian population, the Committee remained concerned at the existing obstacles in the National Assembly to the adoption of specific legislation guaranteeing the attainment of collective rights of indigenous persons and Afro-Ecuadorians, such as the draft law on collective rights of Blacks and Afro-Ecuadorians. It was also concerned that, the Roma had not been granted legal status as an ethnic group in the draft Constitution. Indigenous women continued to be the object of double discrimination, and in particular the Committee was concerned by the murder of indigenous women. With regard to abuses and violence on the part of the armed forces against indigenous peoples to protect the interests of oil, mining and timber companies, the Committee recommended that Ecuador investigate any such allegations of abuse and violence, and that it take measures to prevent such acts, including through reinforced human rights training programmes for the military which should include information on the Convention.

Despite legislation guaranteeing that any exploitation of the subsoil of indigenous lands had to be obtained with the consultation and “informed consent” of the peoples in question, the Committee was concerned that that law did not appear to be fully respected. Also of concern were the health and environmental impacts of those exploitation activities. In a similar vein, the Committee remained concerned that, despite legal guarantees for collective rights, Ecuador did not provide strict enough legislation in this regard, nor effective protection to the indigenous peoples against forced eviction from their ancestral lands. In that connection, the Committee urged Ecuador to monitor the situation and ensure effective protection against such evictions. It was also recommended that Ecuador take the necessary measures to ensure effective protection against discrimination in a number of spheres, in particular with respect to employment, housing, health and education.

Namibia

After its review of the combined eighth to twelfth periodic reports of Namibia, the Committee welcomed the commitment expressed by the State party to reconcile Namibian society and build a nation in which all communities can live in peace and harmony, irrespective of their national and ethnic origin, colour, belief, or language. It also welcomed the State party’s efforts to combat segregation and racial discrimination in various areas, particularly education, and the adoption of special measures in the context of the Durban Declaration and Programme of Action and, in accordance with article 1, paragraph 4, and article 2, paragraph 2, of the Convention, with the purpose of securing adequate advancement of racial, ethnic and other groups that have experienced discrimination. The Committee welcomed the intention of the State party to hold a national census in the near future and noted that information obtained from such a census shall enable a better assessment of the implementation by the Committee and the State party itself.

The Committee noted with concern the paucity of socio-economic data provided in the current report and recommended that the State party take all necessary measures to ensure that socio-economic data relevant for the monitoring of the Convention was available in the next report. It was concerned that the definition of racial discrimination in the Racial Discrimination Prohibition Act of 1991 was not completely consistent with article 1 of the Convention, and recommended that the State party ensure that its domestic law conformed to the Convention. It reiterated its concern about the discriminatory character of some Namibian laws that remained in force, including with regard to the administration of intestate inheritance, and about aspects of customary laws of certain ethnic groups on personal status that discriminated against women and girls, including laws pertaining to marriage and inheritance. The Committee urged the State party to review its laws with a view to removing discriminatory laws in order to provide equal protection and treatment to all persons. It also recommended in particular that the State party urgently ensure that its laws, especially on marriage and inheritance, did not discriminate against women and girls of certain ethnic groups.

The Committee remained concerned about the persistence of de facto discrimination regarding access to education, as well as the high illiteracy rate that continued to exist among marginalized parts of the population. It urged the State party to strengthen the implementation of its laws and policies aimed at the desegregation of education. In particular, the State party should increase its efforts aimed at reducing illiteracy, especially among the most marginalized communities. The Committee was concerned about the apparent lack of clear and transparent criteria for the redistribution of land in practice, and noted with concern the paucity of information concerning the implementation of relevant policies in this field. It encouraged Namibia to implement its policies on land reform in such a way to ensure the equal exercise of the rights enshrined in the Convention by the different ethnic communities within the framework of a democratic system. The Committee remained concerned about the extreme poverty of the indigenous communities and its impact on their equal enjoyment of human rights, and recommended that the State party enhance its efforts to reduce poverty and to stimulate economic growth and development for the most marginalized groups, namely the indigenous communities, especially with regard to education and health.

Togo

After consideration of the combined sixth to seventeenth periodic report of Togo, the Committee welcomed the reconciliation process initiated by Togo, which led to the signature of the Global Political Accord on 20 August 2006 and the peaceful legislative elections in October 2007. It also welcomed the will of the State to strengthen the rule of law and to respect its international obligations regarding human rights. It noted with satisfaction the intention expressed by Togo to put in place in the near future a Commission of Truth, Justice and Reconciliation.

The Committee expressed its concern that although there had been inter-ethnic conflicts in Togo in the past, domestic law did not include a definition of racial discrimination in accordance to article 1 of the Convention. The Committee recommended that Togo criminalize and penalize all the acts set out in the paragraphs pertinent to article 4 of the Convention, including criminalizing assisting and financing of racist activities and prohibiting racist propaganda. It noted with concern that the political leaders and authors of articles in the media that called for ethnic hate and tribalism had not been penalized, despite the seriousness of their acts which led to killings, man hunts and displacement among certain populations.

Concerned about tensions which could persist among different ethnic groups and which could constitute obstacles to the reconciliation process, the Committee invited Togo to redouble its efforts to promote harmonious relations between the different ethnic and cultural groups in the country. The Committee noted with concern the persistence of major disparities between groups, geographic regions, ethnicity and social status in Togo, most of all in the education system and concerning access to health care. It encouraged the country to work on reducing these disparities. The Committee was concerned that according to Togo, the phenomenon of racial discrimination did not exist in the country and there were no complaints to racist acts. The Committee called on the State party to include in its next periodic report statistical information on actions taken against acts of racial discrimination. It recalled that the absence of complaints and action within the legal system stemming from victims of racial discrimination could signify the absence of specific legislation or ignorance of methods of recourse or the absence of the will of the authorities to follow-up on the complaints. The State party should ensure that its national legislation contained the appropriate methods to inform the public of all judicial recourse available in connection with acts of racial discrimination.

Russian Federation

With regard to the combined eighteenth and nineteenth periodic reports of the Russian Federation, the Committee welcomed the qualification of certain criminal offences in the revised Criminal Code (2007) as offences for which the motive of ethnic, racial or religious hatred or enmity was an aggravating circumstance. It noted with appreciation the adoption in 2006 of a Federal Law on Advertising which prohibited the use in commercial advertisements of indecent and offensive images, comparisons and expressions, based on race and ethnicity. It welcomed the adoption in 2006 of the Federal Law on Migration Registration of Foreign Nationals and Stateless Persons in the Russian Federation and of amendments to the Federal Law on the Legal Status of Foreign Citizens in the Russian Federation, simplifying the procedure for obtaining work permits and temporary residence permits especially for non-citizens who have newly arrived in the State party. The Committee also welcomed the establishment of an institutional framework for the protection of the rights of ethnic minorities and small indigenous peoples.

The Committee was concerned that there was no comprehensive definition of racial discrimination covering all fields of law and public life and recommended that the State party consider adopting a clear and comprehensive definition of racial discrimination in its legislation, including all acts of direct as well as indirect discrimination, that covered all fields of law and public life. The Committee was concerned that without comparative statistical data on the enjoyment by ethnic minorities of the rights protected under the Convention, it was very difficult to assess the socio-economic status of the different ethnic groups in the State party. It requested the State party to provide detailed information in its next periodic report on the enjoyment by ethnic minorities and non-citizens of the rights protected under the Convention. The Committee recommended that the State party consider adopting comprehensive anti-discrimination legislation, covering direct as well as indirect discrimination and providing for a shared burden of proof in civil and administrative court proceedings concerning acts of racial discrimination. It also recommended that the State party take appropriate action, including disciplinary or criminal proceedings, against public officials who engage in racially selective arrests, searches or other unwarranted acts based solely on the physical appearance of persons belonging to ethnic minorities.

The Committee recommended that the State party undertake a thorough investigation by an independent body into all allegations of unlawful police conduct against Georgian nationals and ethnic Georgians in 2006 and adopt measures to prevent the recurrence of such acts in the future. It also recommended that the State party adopt a national plan of action that included special measures for the promotion of access by Roma to employment, personal documents, residence registration, adequate housing with legal security of tenure, education and other economic, social and cultural rights. While acknowledging the State party’s efforts to combat incitement to racial, ethnic and religious hatred in the media and, albeit to a more limited extent, in political discourse, the Committee noted with concern the increase in the number of racist and xenophobic statements in the media, including in mainstream media and publications by established publishing houses, on the internet, and in the discourse of public officials and political parties, targeting ethnic minorities such as Chechens and other persons originating from the Caucasus or from Central Asia, Roma, Africans, as well as ethnic minorities of Muslim or Jewish faith. It recommended that the State party intensify its efforts to combat ethnically motivated hate speech in the media, on the internet and in political discourse, by publicly condemning such statements and imposing adequate sanctions for publicly making racist statements. It also recommended that the State party further intensify its efforts to combat racially motivated violence, including by ensuring that judges, procurators and the police take into account the motive of ethnic, racial or religious hatred or enmity as an aggravating circumstance in any proceedings.

Germany

After reviewing the combined sixteenth to eighteenth periodic reports of Germany, the Committee welcomed the adoption of the General Equal Treatment Act in August 2006, which prohibited discrimination on the grounds of race and ethnic origin, gender, religion and belief, disability, age and sexual orientation; the establishment of the Federal Equal Treatment Office within the Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, which provided legal advice to individuals who claimed to have been victims of racial discrimination; and the declaration made by Germany under article 14 of the Convention in September 2001, accepting the competence of the Committee to consider individual communications. Also welcome was Germany's signature, in January 2003, of the Additional Protocol to the Convention on Cybercrime concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems, and the establishment of the Islam Conference, as a forum in which representatives of the Muslim communities living in Germany met with representatives of the German authorities with the aim of establishing continuous dialogue to address Islamophobic tendencies and discuss relevant policy responses.

The Committee expressed concern regarding the lack of statistical data in the report on the ethnic composition of the population. While noting Germany's reservations with regard to the use of the term “race”, the Committee was concerned that Germany's strong focus on xenophobia, anti-Semitism and right-wing extremism might lead to the neglect of other forms of racial discrimination. It was also concerned that the overall legislative design of key provisions of the Criminal Code might not be sufficiently precise in relation to racist elements in crimes. In that connection, the Committee regretted the absence of a definition of racial discrimination in the domestic legislation. An abiding concern was the increase of reported racist-related incidents against members of the Jewish, Muslim and Roma/Sinti communities, as well as against German nationals of foreign origin and asylum-seekers, in particular of African origin. Another was the addition by some Länder (federal states), of specific questions to citizenship questionnaires which might be discriminatory, in particular the questionnaire introduced in Baden-Württemberg which was to be answered by citizens of the 57 members States of the Organization of the Islamic Conference who applied for German citizenship. Also regrettable was that a considerable proportion of non-citizens who might fulfil the new requirements to obtain naturalisation still lived in Germany without citizenship, in particular persons of Turkish origin. Germany should facilitate acquisition of German citizenship by such long-term residents and persons born in Germany in order to promote their integration.

Concerned that the granting of compensation to victims of racially motivated acts under the Victims Compensation Act appeared to be based on the citizenship status of the victims rather than on the seriousness of the acts committed, the Committee recommended that Germany consider revising the Act to provide compensation to victims of racially motivated crime regardless of their citizenship status. The Committee also encouraged Germany to consider ratifying the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families with a view to strengthening the protection of non-citizens against racial discrimination. Another recommendation was that Germany should consult widely with organizations of civil society working in the area of human rights protection, in particular in combating racial discrimination, in connection with the preparation of the next periodic report.

Austria

With regard to the combined fifteenth to seventeenth periodic reports of Austria, the Committee
welcomed the adoption of amendments to the Law on Equal Treatment which brought discrimination on grounds of ethnic origin, religion or ideology within the scope of that Law and established new institutions and mechanisms which examine complaints regarding alleged discrimination. It also welcomed the 2005 Federal Basic Care and Maintenance Act, Federal Law Gazette I No. 100/2005, and the agreement according to article 15a of the Federal Constitution Act regarding the basic care and maintenance of asylum-seekers (Agreement on Basic Care and Maintenance, Federal Law Gazette I No. 80/2004), and the amendment to the Foreign Citizens Employment Act (Federal Law Gazettes I No. 101/2005 and No. 103/2005), according to which, in addition to refugees, applicants for asylum also have unrestricted access to the labour market if they have enjoyed the status of a person with a subsidiary title to protection for one year. It noted with appreciation the State Party’s recruitment campaign “Vienna needs you” aimed at diversifying the police forces and increasing the percentage of police officers in Vienna with a migration background within the medium and long term.

The Committee was concerned about the paucity of statistical data and the fragmentation of minorities by provinces, which led to different treatment of members of the same minority. It recommended that the State party conduct censuses and collect data, including on the basis of the use of mother tongues, languages commonly spoken or other indicators of ethnic diversity, together with any information derived from targeted social surveys conducted on a voluntary basis, with full respect for the privacy and anonymity of the individuals concerned, in order to obtain accurate information on all ethnic groups living in the territory of the State party. The Committee was concerned about the distinction between autochthonous minorities and other minority groups, and the application of a different treatment to individuals belonging to “autochthonous national minorities" residing in the so-called “historical settlement areas”. It recommended that the State party take measures in order to avoid unjustified differential treatment of minority groups, on the basis of their area of residency within the State party’s territory. The Committee recommended that the State party, as a Federal State, take necessary legal and political measures to ensure that all its Federal provinces and local authorities observe and comply with the laws and decisions adopted to implement the provisions of the Convention. It was concerned about the scattered character of its legal framework of non-discrimination laws and recommended that the State party review the effectiveness of its current legal framework on non-discrimination with the view to initiate a harmonisation process while continuing its efforts in adopting adequate and comprehensive legislative provisions for the implementation of the Convention in its entirety.

The Committee was concerned about the limited resources available to the Ombudsperson for Equal Treatment irrespective of ethnic affiliation, religion or belief, age or sexual orientation in employment, and the Ombudsperson for Equal Treatment irrespective of ethnic affiliation in other areas, and recommended that the State party take appropriate measures to provide the Ombudspersons with the human and financial resources required to adequately advise and support victims of discrimination, and to grant the Ombudspersons competence to initiate and participate in court proceedings as a third party. The Committee recommended that the State party take resolute action to counter any tendency, especially from politicians, to target, stigmatize, stereotype or profile people on the basis of race, colour, descent and national or ethnic origin or to use racist propaganda in politics. It also recommended that the State party take the necessary measures to treat humanely asylum-seekers and to take appropriate measures to reduce as much as possible the period of detention of asylum-seekers whose application was rejected and who are waiting for deportation. The Committee was concerned about reported cases of ill-treatment, arbitrary controls and verbal abuse by the police against non-citizens, notably asylum-seekers, persons of African descent and Roma, and recommended strongly that the State party take the necessary steps to prevent questioning, arrests, searches and interrogations which are based on the physical appearance, colour or membership of a racial or ethnic group, or any profiling.

Switzerland

Among positive aspects in the fourth to sixth periodic reports of Switzerland, the Committee welcomed the fact that in 2003 the State party had made the optional declaration provided for in article 14 of the Convention. Also welcome was the establishment of the Fund for Projects for Human Rights and against Racism, as well as the Federal Service for Combating Racism. The Committee noted with appreciation the introduction of a mandatory federal examination for candidates applying for posts in the police force, in 2007, which integrated modules on ethics and human rights. It also noted the reinforcement of the jurisprudence of the Federal Supreme Court concerning article 261 bis of the Criminal Code, making it possible to more effectively address racist speeches and behaviours through criminal sanctions.

The Committee regretted the lack of substantial progress made by Switzerland in combating racist and xenophobic attitudes towards some minorities, including Black persons, Muslims, Travellers, immigrants and asylum seekers. It was particularly concerned at the hostility resulting from the negative perception by part of the population of foreigners and certain minorities, which had resulted in popular initiatives questioning the principle of non-discrimination. It also remained concerned at the lack of comprehensive civil and administrative legislation and policies to prevent and combat racial discrimination in all areas, and at the fact that only 10 out of 26 Cantons had enacted anti-discrimination laws. Switzerland was invited to adopt a national plan and legislation at all levels of government against racial discrimination, xenophobia and other forms of intolerance.

Another concern was the use of racial profiling, including in airports, and the lack of statistics regarding racial profiling at cantonal level. Switzerland should review existing national security measures and ensure that individuals were not targeted on the grounds of race or ethnicity and compile information regarding racial profiling at the Cantonal level. The Committee recalled that freedom of expression and assembly was not absolute and that the establishment and activities of organizations promoting or inciting racism and racial discrimination should be prohibited. In that regard, the Committee was particularly concerned at the role played by some political associations and parties in the rise of racism and xenophobia in Switzerland. Another concern was the increase of reports of alleged excessive use of force by the police, in particular against Black persons. The Committee urged Switzerland, among others, to establish an independent mechanism for the investigation of complaints concerning actions of law enforcement officials; and to consider recruiting members of minorities into the police force. Finally, the Committee recommended once again that Switzerland strengthen its efforts to improve the situation of Travellers, in particular with regard to the means and enjoyment of their rights to housing, education and cultural rights, and should adopt a national coordinating policy aimed at protecting Travellers' rights.

Sweden

Following its review of the combined seventeenth and eighteenth periodic reports of Sweden, the Committee welcomed the adoption of a new Anti-Discrimination Act (Diskrimineringslagen) by the State party in July 2008, which merged the existing anti-discrimination legislation into one law and extended the scope of protection. It commended the State party for the forthcoming merger of the different Ombudsmen into a single institution and recommended that the new consolidated institution seek accreditation through the ICC once established. The Committee welcomed the adoption of the Aliens Act in 2006, which provides for the right to appeal to an independent appellate body and the increased use of oral hearings in asylum proceedings. It also welcomed the adoption of a second National Action Plan for Human Rights for the period 2006-2009, with a focus on protection from discrimination, and the forthcoming follow-up seminar on its implementation. The Committee noted with appreciation the efforts by the State party to promote the rights of the Roma minority. It noted with appreciation the State party’s acceptance of new methods to investigate and combat discrimination.

The Committee, while noting the State party’s position regarding the collection of data on the ethnic composition of the population, reiterated its concern about the paucity of data on the ethnic composition of the population at its disposal for the monitoring of the Convention. It recommended that the State party provide information on the composition of its population, the use of mother tongues, languages commonly spoken or other indicators of ethnic diversity. The State party should also provide the Committee with information on the ethnic composition of the prison population. The Committee was concerned that the new Anti-Discrimination Act of July 2008 does not provide for the adoption of special measures regarding vulnerable racial or ethnic groups, with the exception of certain measures related to employment agencies. It encouraged the State party to review its position regarding special measures in view of the persisting inequalities experienced by the minority and indigenous groups as well as foreign-born persons. The Committee remained concerned about the absense of any explicit criminal law provisions declaring illegal and prohibiting organizations promoting and inciting racial hatred. It reiterated its recommendation that the State party review its position on the prohibition of racist organizations and amend its legislation to bring it in line with article 4(b) of the Convention.

While the Committee welcomed the State party’s efforts to combat hate crimes, including by new tracking methods in the judicial system, it was concerned about the increase of reported racially motivated hate crimes since 2000, as well as the spread of white power music and propaganda. It recommended that the State party intensify its efforts to prevent, combat, and prosecute racially motivated offences and hate speech, and to ensure that relevant criminal law provisions and existing policy directives were effectively implemented. The Committee noted the State party’s continued commitment to the integration of foreign-born persons, but it remained concerned that despite such efforts, de facto discrimination against persons of foreign origin persisted in a number of areas. It recommended that the State party intensify its efforts to combat discrimination against persons of foreign origin. The Committee remained concerned about the limited enjoyment by members of the Roma community of the rights enshrined in the Convention, especially the rights to education, employment, housing and access to public places. It recommended that the State party strengthen its efforts to increase the level of education of members of Roma communities, inter alia by raising awareness about the possibility for Roma children to receive instruction in their mother tongue, and by further promoting the recruitment of Roma teachers. The Committee reiterated its concern about the limited progress achieved in resolving Sami rights issues and recommended that the State party take effective measures to ensure that studies conducted in the area of Sami rights result in concrete action, including the adoption of new legislation, in consultation with the communities affected.