DURBAN REVIEW CONFERENCE Preparatory Committee Second Substantive Session Geneva, 6-17 October, 2008 Compilation of paragraphs proposed by delegations (version of Tuesday, 14 October, 18:00) SECTION 3 Promotion of the universal ratification and implementation of the International Convention on the Elimination of All Forms of Racial Discrimination and proper consideration of the recommendations of the CERD Facilitator: Ali Onaner (Turkey) Table of contents Ratification……………………………………………………. par. 1-9 Declarations and reservations………………………………… par. 10-13 Reporting……………………………………………………... par. 14-28 Implementation……………………………………………….. par. 29-44 Adequate resources…………………………………………… par. 45-46 General……………………………………………………….. par. 47-54 Par. proposed by observers…………………………………… par. 55-58 Ratification 1. Expresses its commitment to attaining the universal ratification of the Convention in this hemisphere and urges all countries that have not yet done so to consider the possibility of making the declaration provided for in article 14 of the Convention; 2. While the goal of universal ratification of ICERD by 31 December 2005 has not been achieved, the number of States parties to the Convention has gone from 158 to 173 between August 2001 and March 2008; 3. Notes that six countries have signed the ICERD but have not ratified it and that 16 countries have not taken action to adhere to this convention (A/HRC/8/15); 4. Regrets that the universal ratification of the International Convention on the Elimination of All Forms of Racial Discrimination was not attained by the year 2005 in accordance with commitments under the Durban Declaration and Programme of Action and encourages those States that have not yet done so to accede to the International Convention on the Elimination of All Forms of Racial Discrimination as soon as possible; 5. In order to achieve these objectives, it would be important that all member states should ratify the Convention on priority as well as to regularize their reporting obligations. Accordingly, state parties to ICERD should not have any reservations or interpretative statements attached to their instruments of accession, which are incompatible with the object and purpose of the Convention. The OIC also supports DDPA's call for provision of adequate resources for the Committee in order to enable it to discharge its mandate fully and most effectively. This includes provision of technical support by the Committee to the state parties, on request; 6. Stresses the urgent need for universal ratification of the ICERD and the necessity to step up efforts for universal ratification of this instrument; 7. Urges states that have not yet done so to ratify or accede to the ICERD as a matter of high priority recognizing that this Convention remains the legal basis of the International Community to fight racial discrimination; 8. Reaffirms that universal accession to the International Convention on the Elimination of All Forms of Racial Discrimination and full compliance therewith are of paramount importance for the prevention of racism, racial discrimination, xenophobia and related intolerance, including contemporary forms of racism and racial discrimination, and for the promotion of equality and non-discrimination throughout the world; 9. Encourage all States that are not yet parties to the International Convention on the Elimination of All Forms of Racial Discrimination to consider acceding to this Convention as a matter of priority; Declarations and reservations 10. Renews its call to States to make the declaration under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination recognizing the competence of the Committee on the Elimination of Racial Discrimination to receive and consider communications to enable victims to avail themselves of the remedy provided under article 14 of the Convention; 11. Requests those States Parties to the International Convention on the Elimination of All Forms of Racial Discrimination that have made the declaration under article 14 to increase awareness of the Convention among the people in their territories and to ensure that the procedural aspects are understood and adhered to; 12. Despite the encouragements of the Intergovernmental Working Group and calls to States made by CERD in its concluding observations, only 52 States have made the declaration under article 14 of the Convention. Owing to the relatively small number of declarations made under article 14 ICERD, coupled with a lack of awareness of the mechanism in those States which have made the declaration, the potential of this procedure has not been fully exploited and has impeded the development of CERD jurisprudence; 13. Urges States as a matter of priority seriously to consider withdrawing all reservations and interpretative statements that are incompatible with the object and purpose of the International Convention on the Elimination of All Forms of Racial Discrimination; Reporting 14. Urges States to include in their national reports to the universal periodic review mechanism of the United Nations Human Rights Council information on the measures being taken to combat discrimination; 15. Encourages States to include in their periodic reports information on action plans or other measures that they have taken to implement the Durban Declaration and Programme of Action at the national level; 16. Urges States Parties to the International Convention on the Elimination of All Forms of Racial Discrimination to comply with their reporting obligations under the Convention by presenting reports in a timely manner in conformity with the relevant guidelines adopted by the Committee in 2007; 17. Encourages national human rights institutions to assist their respective States to comply with their reporting obligations under the International Convention on the Elimination of All Forms of Racial Discrimination and to monitor closely the follow-up to the concluding observations and recommendations of the Committee on the Elimination of Racial Discrimination; 18. Acknowledges that the reporting process should encourage and facilitate, at the national level, public scrutiny of government policies and constructive engagement with relevant actors of civil society conducted in a spirit of cooperation and mutual respect, with the aim of advancing the enjoyment by all of the rights protected by the ICERD; 19. Invites national human rights institutions to assist their respective States to comply with their reporting obligations, and to monitor closely the follow-up to the concluding observations and recommendations of the Committee; 20. Recommends that States fully involve civil society when preparing their Treaty body reports and their follow-up; 21. Urges non-governmental organizations to continue to provide the Committee on the Elimination of Racial Discrimination with relevant information in a timely manner in order to enhance its cooperation with them; 22. Calls upon States to disseminate the Durban Declaration and Programme of Action in an appropriate manner and provide the Committee with information on efforts made in that respect under the section of their periodic reports concerning article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination; 23. Delays in reporting remain a major obstacle to the Committee’s work and the effective implementation of the Convention. As at 27 March 2008, 84 out of 173 States parties were late in the submission of two or more reports. As of July 2008, 28 following States parties were at least 10 years late in the submission of their reports, whereas 28 were at least five years late; 24. Expresses its concern at the delays in the submission of reports to the Committee on the Elimination of Racial Discrimination, a situation that hinders the Committee’s effective operation, and strongly appeals to all States Parties to the Convention to comply with their legal obligations under the Convention and the Committee’s recommendations; 25. Expresses serious concern regarding the delays in the submission of reports to the CERD considering that 29 States parties are at least five years late in the submission of their reports and that 17 States parties are at least 10 years late in the submission of their reports; 26. Emphasizes that the delays in reporting by States parties hampered the work of the CERD in monitoring implementation of the Convention; 27. Urges States to comply with their obligation to submit their report in a timely manner; 28. Invites States to request technical assistance regarding the drafting of reports if they need such assistance; Implementation 29. Notes with concern the refusal by some parties to cooperate or engage with the Durban Declaration and Programme of Action follow-up mechanisms and the non implementation of their recommendations and lack of acceptance of follow-up measures; 30. Recommends that States consider measures to strengthen implementation of the International Convention on the Elimination of All Forms of Racial Discrimination and take into account the relevant parts of the Durban Declaration and Programme of Action when implementing the Convention in their domestic legal orders; 31. Affirms that full implementation of the ICERD is fundamental for the success of the global fight against racism and racial discrimination; 32. While the universality of the Convention is already an objective of the DDPA, it also calls upon member states to extend full cooperation to the Committee on Elimination of Racial Discrimination and other human rights treaty monitoring bodies to promote the effective implementation of the instruments concerned and proper consideration of the recommendations adopted by these bodies with regard to complaints of racism, racial discrimination, xenophobia and related intolerance; 33. Recommends granting the Committee on the Elimination of Racial Discrimination the competence to undertake field visits and to assume a role in assisting national mechanisms mandated to combat racism, racial discrimination, xenophobia and related intolerance; 34. Emphasizes strongly the need to enhance follow-up to the implementation of the recommendations of the Committee on the Elimination of Racial Discrimination, including those pertaining to States’ obligations in situations of armed conflict and territories falling under their effective control where protection provided by international law is at its weakest; 35. Emphasizes the importance of setting up appropriate national monitoring and evaluation mechanisms to ensure that all appropriate steps are taken to follow up the concluding observations and general recommendations of the Committee on the Elimination of Racial Discrimination; 36. Reiterates its request to the Office of the High Commissioner for Human Rights to continue its efforts to increase awareness of the work of the Committee on the Elimination of Racial Discrimination; 37. Since 2001, CERD has established a new follow up procedure, requesting States to provide within one year information on the implementation of priority recommendations formulated in its concluding observations. CERD appointed a follow-up coordinator for recommendations made in its concluding observations as well as a rapporteur to follow up on recommendations made in opinions on individual communications In 2006, the coordinator on follow-up of CERD was invited by one State party to conduct a visit in order to discuss and assess the measures taken in order to follow-up on CERD’s recommendations; 38. Welcomes the early warning and urgent action procedure established by CERD which has not only allowed the Committee to make recommendations to States Parties but as well, through the UN Secretary-General, to the UN Security Council in order to prevent serious violations of the Convention, in particular those that could lead to ethnic conflict and violence; 39. Notes the decision of the CERD to establish a procedure to follow up on its opinions and recommendations adopted following the examination of communications from individuals or groups of individuals; 40. Highlights that follow-up visits, together with the follow-up reports submitted for consideration, provide the Coordinator with an optimum overview of the steps taken towards the implementation of the recommendations addressed by the Committee to the State party concerned one year earlier; 41. Recommends that the Committee on the Elimination of Racial Discrimination respond adequately in providing technical assistance to States Parties, upon their request, in relation to the interpretation of the scope of the Convention; 42. Invites States parties to enhance follow-up to the implementation of the recommendations of the CERD including through the organisation of workshops; 43. International Cooperation and technical assistance plays an important role in helping countries, especially developing countries, in implementing their ICERD commitments and the recommendations of CERD. 44. Call upon States parties to respect fully and comply with the International Convention on the Elimination of All Forms of Racial Discrimination; Adequate resources 45. Invites relevant United Nations bodies to provide the Committee on the Elimination of Racial Discrimination with resources adequate to enable it to discharge its mandate fully; 46. Stresses the importance of and invites States Parties to the Convention to ratify the amendment to its article 8, on the financing of the Convention, and requests that sufficient additional resources be allocated for that purpose from the regular budget of the United Nations, so that the Committee may discharge its mandate fully; General 47. Welcomes the efforts of the Committee on the Elimination of Racial Discrimination in fulfilment of the International Convention on the Elimination of All Forms of Racial Discrimination in response to new and contemporary forms of racism and racial discrimination; 48. Stresses that this Convention is sufficient to address contemporary manifestations of racism and discrimination and should thus remain the legal basis of the International Community to fight racial discrimination and the efforts for universal ratification of this instrument should be stepped up; 49. Regrets also that some States have refrained so far from acceding to the Convention on the Protection of All Migrant Workers and their Families and reiterates its appeal to these States to do so as soon as possible; 50. The prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression. (First sentence, par.4, CERD Gen.Rec. 15] 51. CERD has also addressed other forms of double discrimination. While noting that other treaty bodies may have explicit competence to address religious discrimination, CERD has had numerous occasions to address double discrimination on the ground of race and religion and has stressed the ‘intersectionality’ of racial and religious discrimination and recommended that religious discrimination, including that against immigrant religious minorities be likewise prohibited.” Furthermore, it has reminded States that they should “ensure that all persons enjoy their right to freedom of thought, conscience and religion, without any discrimination based on race, colour, descent or national or ethnic origin, in accordance with article 5 (d) of the Convention.” [para 6, page 10 A/CONF.211/PC.2/5] 52. The Committee also wishes to draw particular attention to the statement adopted during its first session after the 9/11 events (sixtieth session, held in March 2002), “on Racial Discrimination and Measures to Combat Terrorism” in which it emphasized that “measures to combat terrorism … are to be considered legitimate if they respect the fundamental principles and the universally recognized standards of international law, in particular, international human rights law and international humanitarian law.” It also urged States to ensure that any such measures “do not discriminate in purpose or effect on grounds of race, colour, descent or national or ethnic origin” and “insist[ed] that the principle of non-discrimination must be observed in all areas, in particular in matters concerning liberty, security and dignity of the person, equality before tribunals and due process of law, as well as international cooperation in judicial and police matters in these fields.” [para 7, page 10 A/CONF.211/PC.2/5] 53. Since the adoption of this statement and when monitoring States’ compliance with article 5, the Committee has systematically paid particular regard to the potentially discriminatory effects of legislation and practices to combat terrorism. The Committee has requested from States parties that they provide information on the effect which national legislation to combat terrorism has had on the implementation of the Convention, particularly on identity, entry and residence checks of foreigners, the right of asylum and extradition. When examining periodic reports, the Committee has expressed its concern about reported cases of “Islamophobia” following the 11 September attacks. Furthermore, while taking note that the criminal legislation of some States includes offences where religious motives are an aggravating factor, it has regretted that incitement to racially motivated religious hatred is not outlawed. The Committee has recommended that States give early consideration to the extension of the crime of incitement to racial hatred to cover offences motivated by religious hatred against immigrant communities . [para 8, page 10 A/CONF.211/PC.2/5] 54. Since the Durban Conference, CERD has adopted several general recommendations and numerous concluding observations and opinions on individual communications which have addressed discrimination affecting the most disadvantaged groups, inter alia, Roma, indigenous peoples, descent-based communities, migrant workers, including undocumented migrants, asylum seekers, refugees and insidious and pervasive forms of discrimination such as racial profiling. It will continue to address contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance as they emerge through a dynamic interpretation of the Convention and further strengthening of its monitoring procedures. [para 9, page 11 A/CONF.211/PC.2/5] Paragraphs proposed by the CERD, but not supported by Member States at first reading 55. The DPA urges States that had not yet done so to consider ratifying or acceding to the international human rights instruments which combat racism, racial discrimination, xenophobia and related intolerance. In addition, the DPA urges States and OHCHR to cooperate and give due consideration to the observations and recommendations of the CERD and to provide adequate resources for the CERD; 56. The IGWG considers it appropriate to recall that the obstacles to overcoming racism, racial discrimination, xenophobia and related intolerance and achieving racial equality lie mainly in the lack of political will, weak legislation, and lack of implementation strategies and concrete action by States; 57. Though a few States have informed CERD that they are in the process of reviewing their reservations to ICERD insufficient progress has been made in relation to the DPA’s call for States to consider withdrawing reservations contrary to the object and purpose of ICERD; 58. While welcoming the information provided by some States in their periodic reports on the progress made in following up on its recommendations, CERD regrets the continuing failure of a large number of States to act upon its concluding observations. The observation that “the obstacles to overcoming racial discrimination and achieving racial equality mainly lie in the lack of political will, weak legislation, and lack of implementation strategies and concrete action by States” is still valid and illustrates that where the ICERD has failed to improve the situation, it may be because the necessary political will is lacking in the States concerned.   5