Racism and Human Rights

Statement by Human Rights Watch to the Inter-Sessional Working Group for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance

Now that South Africa's apartheid regime has been dismantled, global challenges akin to the anti-apartheid struggle remain that have yet to be fully acknowledged. To this end, the U.N. World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance must make a priority the situation of the hundreds of millions of people oppressed by the hidden apartheid of caste discrimination. A second priority should be to address the pervasive racism and intolerance afflicting millions of migrants and refugees caught up in the uncertainties of globalization.Thirdly, the World Conference should address the rights-defeating reality of racial discrimination in the determination of nationality and citizenship rights, including the denial or revocation of the nationality of whole groups on discriminatory grounds.

These issues fall within theme one of the provisional agenda of the World Conference ("Sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance"), and theme two ("Victims of racism, racial discrimination, xenophobia and related intolerance"). Human Rights Watch urges the express incorporation of these sub-themes into the final agenda of the World Conference:

  • Discrimination by reason of caste.In much of Asia and parts of Africa racism has become coterminous with caste in the definition and exclusion of distinct population groups distinguished by their descent. Despite formal protections in law, discriminatory treatment remains endemic and discriminatory societal norms continue to be reinforced by government structures ranging from the police and the lower courts to state and municipal authorities. Express recognition is required that caste-based discrimination bars millions from the exercise of their civil and political, and their economic, social, and cultural rights — a precondition for international programs to support the abolition of caste discrimination and to remedy abuses.
  • Discrimination in the treatment of migrants and refugees.As economic globalization, regional economic crises, and political upheaval have stimulated movement across national borders, migrants and refugees in particular are assailed by new measures of discrimination. Trends in human population movements and toward an increasingly international labor force make it particularly urgent to address racism as a factor in migration and refugee flows and in its relation to conflict. Women migrants suffer particularly, in trafficking and forced prostitution, in the lack of protection in the work place, and in constraints on family life imposed by migration and the specter of statelessness.
  • Discrimination in the determination of nationality and citizenship rights.Whole populations may be denied nationality in their own countries — or stripped of their citizenship by political fiat—because of their race or descent. Some have been present in a country for generations, often predating their country's independence. Discrimination on the basis of gender often combines with racism as a discriminatory factor in states that define citizenship in terms of racial or national "purity." As citizenship is restricted to the children of male nationals, female citizens are discouraged from marrying men of a distinct race or nationality because their children would be denied citizenship. Naturalization policies, too, may be wholly or largely founded on discriminatory grounds. Denial of citizenship on racial or national grounds may be a norm even for people who have established deep roots in a country and have retained no connections with any other.
  • Institutional Prevention and Remedy

    Even more pervasive is the racist effect of Government policies and practices may have a racist effect even in the absence of discriminatory intent. To this end, the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) — unlike some of the states parties to CERD — holds states accountable for racism even where there is no proven racist intent behind a law or practice.

    Human Rights Watch is calling for special attention to institutional ways in which public policy can perpetuate — or remedy — racial discrimination and related intolerance. These relate to theme three ("Measures of prevention, education and protection..."), and to theme four ("Provision of effective remedies, recourse, redress, [compensatory] and other measures...") of the provisional agenda, and should be the object of preparatory studies and incorporated into the final agenda under these topics. They are:

    • Discrimination in criminal justice.Criminal justice has an enormous potential for discriminatory effect. At the national or local level discrimination can arise from practices with racist intent, like racial profiling, in which one's race is the determining factor in falling under suspicion. The mechanisms of criminal justice can equally discriminate where there is no clear racist intent. Discriminatory impact can be shown in patterns of police abuse, arbitrary arrest, incarceration, prosecution, and sentencing. The de facto denial of remedies to particular groups within a criminal justice system or de jure disenfranchisement of members of one group may be evidence of disparate racist effect regardless of the intent of lawmakers and public officials. CERD obliges states "to nullify any law or practice which has the effect of creating or perpetuating racial discrimination." The Committee on the Elimination of Racial Discrimination, in interpreting CERD, has declared that in considering whether differentiation of treatment constitutes discrimination, "it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, color, descent, or national or ethnic origin."
    • Discrimination in public administration.The discriminatory effect of public policy and administrative practice can effectively bar members of groups defined on racial or related grounds from the enjoyment of their fundamental human rights no less than do systems of overt discrimination. This is often most evident in the administration of social services, education, and public housing to exclude members of particular groups. It can also apply to restrictions of the freedom of movement and the right to live in a particular area of one's own country. Access to education without discrimination should be a particular focus of the World Conference under theme three: teaching tolerance alone, where those facing discrimination are excluded from the classroom, is not enough.

    New steps are required at the national and international level to give effect to international standards on racism in the areas of criminal justice and public administration. CERD requires remedial action whenever there is a racist effect from public policy, but many states interpret their obligations to combat racism as limited to addressing racist intent. The disaggregation of data by gender has long been a recommendation in the fight against gender discrimination: assessment of compliance with CERD requires a similar disaggregation of data. In the absence of such monitoring, the racist effect of public policy in many countries can be expected to continue comprehensively to block the enjoyment of social, economic, and cultural rights, through the denial of education, social services, and protection from economic exploitation.

    To address these issues, Human Rights Watch will be encouraging the World Conference to adopt an international program of action:
    • To make caste - or other descent-based segregation, violence, and other abuses as intolerable as apartheid.
    • To end the deprivation of citizenship on racial and related grounds. State policies and practices concerning nationality, citizenship, or naturalization require scrutiny under the Convention on the Elimination of All Forms of Racial Discrimination's requirement "that such provisions do not discriminate against any particular nationality." International agreements on statelessness should be ratified as a matter of priority; but these standards alone are inadequate to eliminate this widespread and pernicious form of racial discrimination.
    • To assist states to systematically collect and report information on law enforcement and the administration of justice as it concerns different population groups, with a view to identifying and remedying discriminatory purpose or effect. Human Rights Watch is encouraging the World Conference to address in particular discrimination in criminal justice, and will be pressing for long-term monitoring criteria and remedial action to address the discriminatory impact of criminal justice policies and practices.
    • To assist states to monitor the administration of public affairs in such areas as education, health care, housing, and the enforcement of labor rights with a view to identifying and remedying any discriminatory purpose or effect in public policy and programs.
    • To encourage states to ratify the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families as a measure of protection against discriminatory treatment; to apply international refugee law to refugees without discrimination; and to develop an international monitoring system by which to detect and remedy discriminatory treatment of migrants and refugees.
    • To encourage states to adopt legislation giving effect to their obligations under the Convention on the Elimination of All Forms of Racial Discrimination, to include civil remedies and criminal penalties, and to provide remedies for the discriminatory effect of public policy in violation of CERD, regardless of its intent.

    The World Conference offers a unique opportunity to devise new and practical measures to address specific problems of discrimination. International standards already provide a firm foundation, but new standards are required, backed by new commitments to monitoring, reporting, and remedial mechanisms to ensure implementation of domestic and international standards and to make real progress to this end.

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