COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION DISCUSSES RESERVATIONS TO TREATIES AND WORKING METHODS

The Committee on the Elimination of Racial Discrimination this morning heard a briefing by Committee Expert Linos-Alexander Sicilianos on the May 2007 meeting between human rights treaty bodies and the International Law Commission on the topic of reservations. It also discussed issues related to the Committee's working methods, including a proposal for a revised procedure for the elaboration of lists of issues and revised draft guidelines for submission of specific reports presented by States parties under article 9 of the Convention on the Elimination of all Forms of Racial Discrimination.

Committee Expert Linos-Alexander Sicilianos briefed the Committee on the outcome of the meeting of human rights treaty bodies with the International Law Commission on the issue of reservations, held on 15 and 16 May 2007. All the human rights treaty bodies assumed the mandate to consider the validity of reservations and often discussed reservations in their dialogues with States. That practice had influenced the evolving interpretation of treaty law. If one looked back 10 years, the position of the International Law Commission had come a very long way; the Special Rapporteur of the International Law Commission on the issue of reservations had revised his guidelines with respect to reservations, and now had said that there was no doubt that treaty bodies had the ability to address the validity of reservations, not just States.

Committee Expert Morten Kjærum addressed questions and comments raised on a proposal for a revised procedure for the elaboration of lists of issues, which he had presented yesterday. The main features of the new system would be to appoint country rapporteurs 12 months before the examination of a State party report, that the list of issues be adopted six months prior, and that the list be submitted to the State party three months before the examination of the report. As to scheduling issues brought up by the election of new members, that was a problem already faced by a number of Committees and it might be a good idea to find out how those Committees dealt with the assigning of country rapporteurs.

In an ensuing discussion, an Expert brought up the issue of the need for involvement of non-governmental organizations in formulating the list of issues. Another Expert was concerned that, under the new timeline in the proposal, it would no longer be able to accelerate consideration of a State party's report. Following the debate, the proposal was referred to the Committee's next session for further discussion.

The Committee then continued its paragraph-by-paragraph first reading of the revised draft guidelines for the specific reports presented by States parties under article 9, paragraph 1, of the Convention, and Experts made a number of suggestions and comments. Adopted in a resumed first reading were guidelines on issues touching on articles 3 through 6 of the Convention.

When the Committee reconvenes at 3 p.m. this afternoon, it is scheduled to hold a meeting with States parties to discuss improving working methods; follow-up to concluding observations; treaty body reform; and the relationship between treaty bodies and the Human Rights Council.




Statements

LINOS-ALEXANDER SICILIANOS, Committee Expert, briefed the Committee on the outcome of the meeting of human rights treaty bodies with the International Law Commission on the issue of reservations, held on 15 and 16 May 2007, which he had attended. Three years ago, the Committee he had been requested to review the Committee's practice on reservations and to submit a document on that subject to the International Law Commission. In the May meeting he had presented that document, and representatives of each of the other seven human rights treaty bodies had also presented their own Committee's practice with respect to reservations. The practice of the human rights treaty bodies had been found to be very similar with respect to reservations. All the human rights treaty bodies assumed the mandate to consider the validity of reservations and often discussed reservations in their dialogues with States. That practice had influenced the evolving interpretation of treaty law.

Mr. Sicilianos also drew attention to the connection between States' reservations and domestic law. If domestic law changed so that the raison d'être for the reservation was no longer applicable, that reservation became invalid. It seemed unnecessary that Committees should become so caught up in a discussion of reservations, when they could approach the matter through a discussion of basic principles in domestic law.

If one looked back 10 years, the position of the International Law Commission had come a very long way, Mr. Sicilianos commented. Alain Pellet, the Special Rapporteur of the International Law Commission on the issue of reservations, had revised his guidelines with respect to reservations, and now had said that there was no doubt that treaty bodies had the ability to address the validity of reservations, not just States. It was also possible that the Secretary-General, in his responsibilities, could issue a commentary if it struck him that a reservation was incompatible with the spirit of the treaty. So today there was a plurality of bodies and levels to assess the compatibility of a reservation with a treaty. The International Law Commission was not challenging that plurality, but reaffirming it. There had been a steady evolution of international law on this point. And the practice of the seven human rights treaty bodies offered a rich example, which tended to reinforce that tendency.

MORTEN KJÆRUM, Committee Expert, addressed questions and comments on a proposal for a revised procedure for the elaboration of lists of issues, which he had presented yesterday. The main features of the new system would be to appoint country rapporteurs 12 months (or two sessions) before the examination of a State party report, that the list of issues be adopted six months prior, and that the list be submitted to the State party three months before the examination of the report. Addressing concerns about the timeliness of the list of issues, he pointed out that the finalized list would be sent to States parties just three months before the presentation of their reports under the new schedule. Any new developments within that three-month gap could be easily covered in the oral questions. As to scheduling issues brought up by the election of new members, that was a problem already faced by a number of Committees and it might be a good idea to find out how those Committees dealt with the assigning of country rapporteurs.

In an ensuing discussion, an Expert brought up the issue of the need for involvement of non-governmental organizations in formulating the list of issues. Another Expert was concerned that, under the new timeline in the proposal, it would no longer be able to accelerate consideration of a State party's report. An Expert felt that the proposal had met with so much opposition, on so many different counts, that it could not be adopted. Following the debate, the proposal was referred to the Committee's next session for further discussion.

The Committee then continued its paragraph-by-paragraph first reading of the revised draft guidelines for the specific reports presented by States parties under article 9, paragraph 1, of the Convention, and Experts made a number of suggestions and comments. The Committee had decided to replace its previous reporting guidelines (CERD/C/70/Rev.5), adopted in 2000, with the present document in order to take into consideration the guidelines on a common core document and treaty-specific documents, as contained in the harmonized guidelines on reporting under the international human rights treaties (HRI/MC/2006/3 and Corr.1), as well as to take into account the evolving practice and interpretation of the Convention by the Committee, as reflected in its general recommendations, individual opinions under article 14 of the Convention (complaints brought by individuals of infringement of their rights), decisions and concluding observations.

Adopted in a continued first reading were guidelines on issues touching on articles 3 through 6 of the Convention. Text adopted under article 4 (prohibition of racist propaganda and racist organizations) stressed the requirement for States gave effect to the undertaking to adopt immediate measures designed to eradicate all incitement to, or acts of racial discrimination, and asked for explanations in the absence of such legislation, including difficulties facing the enactment of legislation and the existence of any other provisions that might effectively implement the provisions of that article.

On article 5, which guaranteed the right to housing, among other civil, political, economic, social and cultural rights, States parties were asked, among other things, to describe measures taken to implement the right to housing of nomadic or semi-nomadic people, with full respect to their cultural identity. Also under article 5, information was requested concerning relevant groups of victims or potential victims of racial discrimination, including refugees, displaced persons, non-citizens, indigenous peoples, minorities, including Roma, descent-based communities, and women, with particular attention to be brought to complex forms of disadvantage in which racial discrimination was mixed with other causes of discrimination (such as those based on age, sex, gender, religion, disability and low socio-economic status).

Under Article 6 (effective protection and remedies), States parties were asked to provide information on legislative, judicial, administrative and other measures to give effect to the provisions of the article, including, in particular, whether national human rights institutions or human rights mediators were authorized to hear and consider complaints of racial discrimination, and where the burden of proof lay in civil proceedings for cases involving racial discrimination.


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