Third Asia Pacific NGO Human Rights Congress

 

Background Paper

 

States race to exclude NGOs

Implementation of the Durban Declaration and Programme of Action

 

THE World Conference Against Racism (WCAR), held in Durban in September 2001, began, proceeded, and ended on a sour note. That the Conference was able to adopt the Durban Declaration and Programme of Action (DDPA) at all was a cause for jubilation in Durban. Nobody had any illusions about the WCAR having advanced the cause of human rights, or that the adoption of the document represented a major step forward for humanity. When the conference "ended", one day behind schedule, most NGOs had already returned home and the text itself was not to be finalised until further closed-door meetings in Geneva and various State capitals. Acrimony was pervasive.

 

Not surprisingly, the 58th session of the Commission on Human Rights (CHR), six months after the WCAR, derived little inspiration from the DDPA. The session did not see any substantive debate on racism, racial discrimination, xenophobia and related intolerance. Most of the groups that had maintained a constant, shrill presence at the Kingsmead cricket stadium in Durban were absent when the CHR was taking crucial decisions regarding the implementation of the DDPA.

 

The CHR's resolution 2002/68 on racism, racial discrimination, xenophobia and related intolerance was disappointing on a number of levels.  The resolution established an intergovernmental working group, a Working Group of Experts on People of African Descent appointed by the Chairperson of the CHR and a voluntary fund. It also recommended the appointment of five independent eminent experts by the Secretary-General to follow the implementation of the provisions of the DDPA and extended the mandate of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.

 

The exclusion of NGOs that characterised Durban continues. The CHR resolution says little about the composition of the intergovernmental working group - the key mechanism for implementation of the DDPA. While the resolution calls upon NGOs, relevant human rights treaty bodies, special procedures and other mechanisms of the Commissions, national institutions, international, financial and development institutions, and specialised agencies, programmes and funds of the United Nations to collaborate with the Working Group of Experts on People of African Descent, the resolution excluded NGOs from participation in the intergovernmental working group. Instead, five independent eminent experts appointed by the Secretary mandated to assist the intergovernmental working group will serve as intermediaries and receive reports from NGOs, among others. NGOs can no longer directly interact with the intergovernmental working group.

 

In the informal open-ended meetings during the CHR prior to the presentation of the resolution, the Pakistani delegation insisted that no NGOs be allowed to participate in the intergovernmental working group or be nominated for the expert bodies.

 

The lack of commitment to combat racism and racial discrimination is indicated by the indifference shown by States to the Voluntary Fund for the Third Decade to Combat Racism and Racial Discrimination. A second fund, aimed at providing additional resources for the implementation of the DDPA therefore raises few expectations.

 

The extension of the mandate of the Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance is welcome. However, the CHR took the unusual step of appointing the Special Rapporteur through a resolution appointing Mr. Doudou Diène to replace Mr. Maurice Glèlè-Ahanhanzo as Special Rapporteur. The normal practice involved the Chairperson of the CHR, who, in consultation with the Bureau, appointed the mandate holders of the Special Procedures. Since the 56th session, the Chairperson of the CHR appoints, in consultation with the members of extended bureau, Regional Coordinators pursuant to the CHR resolution 2000/109.

 

If the trend continues, even the mandate holders of the Special Procedures will be subject to approval by the CHR. In order to advance human rights, mandate holders sometimes need to tell the Commission what it does not want to hear. Hence the normal practice of providing them a level of independence but restricted authority. With the new practice, the days of the independent mandate holders of Special Procedures may well be over.

 

Stating the Obvious: CERD Committee’s General Comment on Descent-based Discrimination

 

At its 61st session, the United Nations Committee on the Elimination of Racial Discrimination (CERD) held a special debate on the issue of descent based discrimination on 8-9 August 2002. South Asia Human Rights Documentation Centre (SAHRDC) made an oral intervention in the debate and had earlier submitted a written statement titled “Discrimination on the ground of Descent, Analysis and Recommended Text for a General Comment”.

 

The CERD Committee holds such general debates prior to drafting of its General Comments. However, few other special debates generated such interest. Much of this heightened interest was thanks to the Government of India opposing any reference to descent-based discrimination in the process leading upto the Durban World Conference Against Racism (WCAR). A section of the Dalit NGOs and their support organisations worldwide contributed to the hype that made the caste issue one of the three controversial issues at the WCAR. The other two issues being the issue of Palestine and Compensation for slavery. Both the Government of India and the Dalit groups had made reference to “caste” or the avoidance of it, in the Durban Declaration and Programme of Action an issue of victory or defeat.

 

The Government of India sought to state that the caste issue was being turned into a ‘country-specific’ issue. The Dalit Groups participating in the WCAR NGO Forum assisted the Government of India by making what should have been a “caste caucus” into a “Dalit Caucus”. In the process, these NGOs subsumed the identities of the Burakus of Japan, Groits of Senegal and Osu and Oru people of Nigeria who also face caste based discrimination.

 

As SAHRDC in its Human Rights Features (HRF/44/01 - Caste Away or How the Dalit Cause was Lost in Durban) stated, “Irrespective of whether the issue of Caste were mentioned in the final Declaration of the Durban WCAR or not, the CERD Committee and other Special Procedure systems of the Commission on Human Rights on combating Racism, Racial Discrimination, Xenophobia and Related Intolerance will continue to consider discrimination based on ‘descent’ including caste. Indeed, the unprecedented use of qualifiers on “descent” in the final draft text of the WCAR has only served to cause a serious regression in international standards by excluding other victims of discrimination based on “descent”.”

 

The CERD Committee’s special debate on descent-based discrimination basically reaffirms SAHRDC’s observation. A cursory reading of the CERD Committee’s General Comment shows that it contains a lucid elaboration of the Concluding Observations of the Committee with regard to India, Bangladesh, Nepal, Sri Lanka, Japan and Nigeria.

 

“The consistent view of the Committee that the term descent in Article 1, paragraph 1 of the Convention does not solely refer to race” had earlier been reaffirmed by the Committee in the Concluding Observations on India of 1996 (CERD/C/304/Add.13 (Concluding Observations - periodic report of India, para. 14). SAHRDC had submitted an Alternate Report in August 1996 clearly establishing that caste discrimination fell within the mandate of the CERD Committee.

 

Nonetheless, the assertion of the CERD Committee that caste discrimination is, one of the many forms and not the only form of descent based discrimination is significant.

 

In its General Recommendation on descent based discrimination, the CERD Committee recommends that States parties, among other things, take steps to identify descent-based communities under their jurisdiction which suffered from discrimination due to various factors such as: inability or restricted ability to alter inherited status; socially enforced restrictions on marriage outside the community; private and public segregation including in housing and education, access to public spaces and places of worship and public sources of food and water; limitation of freedom to renounce inherited occupations or degrading or hazardous work; subjection to debt bondage; subjection to dehumanizing discourses of pollution or untouchablity; and generalized lack of respect for human dignity and equality.

 

The Committee also recommended that State parties consider incorporation of an explicit Constitutional prohibition of descent-based discrimination; and review and enact or amend legislation to outlaw all forms of discrimination based on descent in accordance with the Convention, to raise awareness through education and community dialogues, establish positive discriminatory measures and to provide disaggregated data on descent based communities.

 

In its recommendations on “Multiple discrimination against women members of descent based communities,” the Committee recommended that States parties, among other things, take into account, in all programmes and projects planned and implemented, and in measures adopted, the situation of women members of such communities; and that they take all measures necessary to eliminate multiple discrimination against them including descent-based discrimination.

 

On segregation, the Committee recommended that States parties, among other things, monitor and report on trends which gave rise to the segregation of descent-based communities and that they work to eradicate the negative consequences of such segregation.

 

With regard to dissemination of hate speech, including in the mass media and on the Internet, the Committee recommended that States parties, among other things, take measures against any dissemination of ideas of caste superiority and inferiority or which attempted to justify violence, hatred or discrimination against descent-based communities. Earlier in its 1996 Concluding Observations on India, the CERD Committee regretted “The lack of concrete information on the legal provisions in force to prohibit organizations which incite and promote racial discrimination and hatred, and to punish members of such organizations in accordance with article 4 of the Convention, as well as on their application in practice, including eventual court decisions….. This is most serious in view of widespread violence against certain minorities actively sponsored by extremist organizations that have not been declared illegal.”

 

On administration of justice, the Committee recommended that States parties, among other things, take all necessary steps to secure equal access to the justice system for all members of descent-based communities, prosecution of the guilty and provisions for adequate compensation for victims and recruitment of members of decent based communities into the police and other law enforcement agencies.

 

On the subject of civil and political rights, the Committee recommended that States parties, among other things, ensure that authorities at all levels involved members of descent-based communities in decisions which affected them. On economic and social rights, the Committee among others, recommended the addressal of the  vulnerability of children of descent based communities to exploitative child labour and to eliminate debt bondage and degrading conditions of labour.

 

On education, the Committee recommended that States parties ensure that public and private education systems included, and did not exclude, children of affected communities; and that they reduce school dropout rates of all communities, in particular of affected communities, with special attention to the situation of girls.

 

Although, the CERD Committee’s reiteration of its consistent view on descent based discrimination has helped resolve the wasteful controversy over “caste discrimination” in Durban, a cursory reading reflects that the General Comment fails to address a few fundamental issues. For example, on the administration of justice, the CERD Committee failed to make any recommendations to the judiciary for the removal of biases against members of descent-based communities. Caste biases especially at the lower levels of the judiciary in India, Nepal and Japan is a serious constraint in the administration of justice and implementation of specific laws dealing with caste discrimination. Unless, laws prohibiting such discrimination are enforced, discrimination against descent-based communities will continue to persist.