Comments on the technically reviewed version of the compilation of proposals undertaken by the Chairperson-Rapporteur of the Inter-Sessional Open-Ended Intergovernmental Working Group of the Durban Review Conference Preparatory Committee, dated December 26, 2008:
Human Rights Watch shares the view that the fight against racism and related intolerance is a major human rights concern for the international community. Human Rights Watch investigates human rights abuses around the world, including manifestations of racism, descent based discrimination, including racial or caste discrimination, xenophobia and related intolerance. Based on its advocacy and experience combating racism Human Rights Watch decided to engage in the Durban Review Conference to monitor its proceedings and provide feedback on the process and negotiations. Human Rights Watch is convinced that the Durban Review Conference should be an opportunity to assess progress made in the fight against racism since 2001 and take stock of the new and old challenges which States still need to address in this area. The Durban Review Conference is also an opportunity to put forward new ideas on the ways in which States and other relevant stakeholders should engage to eradicate racism and discrimination in all their forms.
Human Rights Watch has developed this current position paper on the basis of the negotiating draft text, dated December 26, 2008, entitled "Technically reviewed version of the compilation of proposals submitted by delegations at the second substantive session of the Preparatory Committee under each of the five sections of the draft outcome document as contained in document A/CONF.211/PC/WG.2/CRP.1 undertaken by the Chairperson-Rapporteur of the working group."
Human Rights Watch is concerned, particularly in the current international context, that the Durban Review Conference should not be dominated by the serious human rights violations currently taking place in the context of the Israeli-Palestinian conflict. Human Rights Watch urges delegations to avoid submitting proposals that will polarize Durban Review Conference negotiations. In this connection, we are concerned that the language currently contained in Paragraphs 30-34 of Section 1 on the sources, causes, forms and contemporary manifestations of racism, racial discrimination, xenophobia and related intolerance will not be helpful in facilitating the negotiations and will not help reducing the suffering of all those affected by the conflict.
We are also concerned that the focus on this one situation may, through an inordinate amount of time being devoted to the issue, effectively marginalize other issues that also deserve urgent attention. We welcome that discussions on each of the sections contained in the current draft document, have been time-bound to ensure there is adequate time for all sections to be discussed, without such measures the success of the conference would be put at risk.
Human Rights Watch is convinced that the Durban Review Conference's success will depend on the ability of all parties to approach the review in a non-partisan, constructive and respectful manner, which focuses on the issues at hand, without the pretense of resolving major conflicts in particular regions or polarizing the debate in a manner that could lead to a breakdown in negotiations across the regional groups.
In this connection, Human Rights Watch has also called on all participants to avoid a repeat of the conduct that so marred the 2001 conference, in particular the unacceptable anti-Semitic behaviour during the NGO forum[1].
Migrant Rights
Human Rights Watch welcomes the efforts made by delegations to address progress, emerging issues and pending challenges concerning the protection of migrant rights and the ratification of the Migrant Workers Convention. Human Rights Watch particularly welcomes proposals focusing on measures to specifically protect the rights of migrant domestic workers contained in Paragraph 171. Human Rights Watch acknowledges the importance of addressing the vulnerability of migrants at points of entry, and the need to reaffirm the call for all states to urgently combat negative stereotyping and xenophobia against migrants, whatever their status. The specific language used to address some of these issues could be improved and Human Rights Watch commits to contributing to these efforts.
- Human Rights Watch strongly welcomes the call for states to consider adhering to and ratifying the Migrant Workers Convention and also urges states to reaffirm that the convention is the core international instrument protecting the rights of migrant workers and members of their families.
- Human Rights Watch encourages states to express deep concern about the abuses committed against migrant workers, in particular migrant domestic workers, such as debt bondage and other situations akin to forced labor, as well as other forms of servitudes and slavery; and the fact that their lives are made even more complex by deeply rooted gender, religious, and racial discrimination. The Durban Review Conference should expose persisting abusive practices that are often socially accepted.
- In addition to adopting and enforcing legislation to protect migrant workers, Human Rights Watch also encourages delegations to call on states to disseminate information and inform all migrant workers of their rights under international and domestic law and existing complaints mechanisms.
- Human Rights Watch urges states to express deep concern at the vulnerability of unaccompanied migrant children, in particular at the lack of safeguards, such as independent representation, and the need for states to consider the child's best interest at all times, including when considering their repatriation.
ICERD
Human Rights Watch is encouraged by the proposals contained in Section 3 of the current document regarding the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and recommends that:
- The Durban Review Conference recognize that ICERD is the core international instrument addressing the question of racism, racial discrimination, xenophobia and related intolerance, including their contemporary forms;
- Delegations acknowledge the important work carried out by the Committee on the Elimination of Racial Discrimination (CERD) through its General Comments, including its General Comments adopted since the 2001 Conference, namely on descent, non-citizens, the follow-up to Durban and the administration and functions of the criminal justice system;
- Before the start of the Review Conference, states ensure they have:
- Ratified or acceded to ICERD without reservations;
- Removed any reservations or limiting declarations they may have made on ratification;
- Made the declaration under Article 14 of ICERD to allow the Committee to receive and consider individual communications;
- Are up to date with reports to the Committee; and
- Have implemented recommendations made to them by the Committee.
Caste
With regards to the issue of caste, which Human Rights Watch prioritizes in its work on Durban, we are disappointed at the almost total lack of reference to the issue in the current draft, in spite of developments regarding this issue since the holding of the World Conference against Racism, in particular within CERD and the former Sub-Commission on the Promotion and Protection of Human Rights. Discrimination based on caste continues to constitute a deeply rooted system of grave human rights violations, still affecting large proportions of certain societies in many regions of the world and a broad range of their rights.
- Human Rights Watch encourages delegations to welcome the work carried out by CERD on discrimination based on descent, to review CERD's General Comment No. 29 on Descent, and to include reference to it as a guiding opinion in defining and combating descent-based discrimination.
- The Durban Review Conference should tackle the causes and consequences of this kind of discrimination and must regret the continued lack of political will in countries with the most ingrained caste systems.
- The Review Conference should urge concerned governments to act at the national level to uphold their own constitutional principles and international treaty obligations and work toward the full enjoyment of rights by all citizens, regardless of caste or descent.
- Populations affected by caste-based discriminations or in similar situations should be explicitly acknowledged as groups of people who have been subject to perennial and persistent forms of discrimination and abuse on the basis of their descent.
- The Durban Review Conference should recommend follow-up on the work that the former sub-commission had carried out in this area, in particular the draft principles and guidelines for the effective elimination of this form of discrimination, and promote the use of this text.
Counterterrorism
In considering the various ways that counterterrorism efforts give rise to contemporary forms of racism and related intolerance, the Durban Review Conference must itself avoid the trap of limiting rights in the attempt to uphold others. In particular, fully justified concerns about the complex relationship between racial and religious intolerance and hatred should not be the pretext for undermining key freedoms, including freedom of speech. Attention to this issue should focus on protecting the rights of individuals, including members of religious minorities, rather than on the protection of religions themselves. Along similar lines, the conference must be careful not to privilege the protection of particular religions and instead maintain a consistent approach to all religions.
The Durban Review Conference should:
- Reaffirm that counterterrorism strategies cannot undermine protection of any human right or the fight against racism;
- Note and regret that societal hostility to different racial and religious groups has been aggravated since 2001;
- Deplore the stigmatization of certain racial and religious groups as a consequence of counterterrorism strategies and call on all governments to take decisive action to condemn acts of discrimination and negative stereotyping by public officials;
- Deplore the impact that negative stereotyping of religions or religious communities, stigmatization of specific groups and their beliefs, and religion-based discrimination has had on the ability of individuals and communities who belong or are perceived to belong to these groups to effectively enjoy all their human rights and, in particular, the specific violations that they have suffered as a consequence;
- Call on states to ensure that advocacy of racial or religious hatred that amounts to incitement to violence, hostility or discrimination should be strongly condemned including by use of law; and
- Denounce in stronger terms discriminatory practices which have arisen in this context, such as racial and religious profiling (in particular in current Paragraph 22).
Defamation of Religions
Human Rights Watch is seriously concerned with the proposals that focus on the issue of defamation of religions and which inhibit and threaten the right to freedom of expression, such as paragraphs 53, 159 , 160 and 216.
Under human rights law, religions cannot be considered as rights bearers. From a human rights perspective, states have the obligation to protect believers and non-believers, but not their specific religions or beliefs. Over the centuries in all regions and cultures of the world, religious and other scholars have interpreted religious doctrines and often even criticized them. The rights to hold an opinion, to believe in and to practice and manifest a religion-or to not do so-are all protected under international human rights law. The purpose of human rights is to protect the dignity, integrity and rights of all persons, whatever their beliefs, not religions.
The concern that, since September 2001, certain religions, particularly Islam, have been the target of stereotyping and vilifications is a serious human rights issue in as far as such actions constitute incitement to violence, hostility or discrimination against members of those religions, or lead to other human rights violations of individuals. Human Rights law already contains protections in this sense. In fact international human rights law frames the role that states must play to ensure that individuals or groups of different religious faiths are treated equally and are able to coexist peacefully, free from discrimination, violence or hostility. Under Article 20 of the International Covenant on Civil and Political Rights (ICCPR), states have the obligation to prohibit by law the advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Article 4 of ICERD and Article 27 of ICCPR are also particularly important (the latter in recognizing the duty of states to protect members of religious minorities), but also Article 19 of ICCPR requires states to protect freedom of expression at all times.
The proposals that would seek to protect religions, rather than individuals, from defamation seriously threaten freedom of opinion and speech and are contrary to current international standards. We therefore urge states to reaffirm the key duty to protect freedom of opinion and speech.
In particular we urge states to approach this issue from within the existing, adequate legal standards, including the work developed on this connection by the human rights treaty bodies and the special rapporteur on freedom of religion or belief.
Related Intolerance
Human Rights Watch welcomes the condemnation of all forms of discrimination and all other human rights violations based on sexual orientation and calls on governments to take concrete steps to combat such abuses, punish those responsible and protect the rights of all persons regardless of their sexual orientation or identity.
Remedies
The role of the Durban Review Conference is to identify measures to prevent, punish and provide remedy and justice for the human rights violations suffered by individuals or groups. In this connection Human Rights Watch encourages the Review Conference to consider integrating the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by the General Assembly in 2005, in its deliberations on matters relating to this issue.
[1] https://www.hrw.org/en/news/2008/11/13/ngo-participation-durban-review-conference and https://www.hrw.org/en/news/2008/04/20/second-preparatory-committee-meeting-durban-review-conference
