Third Asia Pacific NGO Human Rights Congress

 

Background Paper

 

A Critique of the Durban Declaration and Programme of Action

The final document contains redundant text and empty rhetoric, and fails to build on existing standards

 

LAST year's World Conference Against Racism (WCAR) began, proceeded, and ended on a sour note. The conference's final ceremony was nothing like recent international meetings - such as the Rome Conference on the International Criminal Court - in which participants shared a feeling of jubilation, a palpable sense that humanity had been advanced by the conference's conclusion.

 

Instead, the WCAR became a vehicle for the baser side of human emotions and state politics. When the conference "ended," many NGOs had already returned home and the text itself would not be finalised until further closed-door meetings in Geneva and State capitals.

 

A sense of the disappointment and acrimony is reflected in closing statements by governments, which are annexed to the conference's Final Report (A/CONF.189/12). In the end, the fact that the conference had hobbled to a conclusion, rather than completely collapsed, was one of its few accomplishments.

 

The WCAR's final document reflects the fact that governments and NGOs became sidetracked by inflammatory text on the Middle East and the downward spiral of the reparations dispute. 

 

Engrossed in these other matters, delegates were left with insufficient time to consider other pressing issues of racial discrimination.

 

As a result, the document contains numerous instances of overly redundant text, empty rhetoric, and proclamations that either stymie or regress the development of international standards on racial discrimination. 

 

2. Durban Declaration: Full of redundant text

 

In terms of redundant text and empty rhetoric, it is worth noting that the final document is two hundred and nineteen paragraphs long. The following excerpts exemplify the type of redundancy that appears throughout.

 

"Urges States parties to adopt legislation implementing the obligations they have assumed to prosecute and punish persons who have committed or ordered to be committed grave breaches of the Geneva Conventions of 12 August 1949 and Additional Protocol I thereto and of other serious violations of the laws and customs of war, in particular in relation to the principle of non-discrimination" (para. 87).

 

"Urges States that have not yet done so to consider acceding to the Geneva Conventions of 12 August 1949 and their two Additional Protocols of 1977, as well as to other treaties of international humanitarian law, and to enact, with the highest priority, appropriate legislation, taking the measures required to give full effect to their obligations under international humanitarian law, in particular in relation to the rules prohibiting discrimination" (para. 168).

 

"Urges States to give due consideration to the observations and recommendations of the Committee on the Elimination of Racial Discrimination.  To that effect, States should consider setting up appropriate national monitoring and evaluation mechanisms to ensure that all appropriate steps are taken to follow up on these observations and recommendations" (para. 76)

 

"Urges States to continue cooperating with the Committee on the Elimination of Racial Discrimination and other human rights treaty monitoring bodies in order to promote, including by means of a constructive and transparent dialogue, 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" (para 177).

 

Evaluated against prevailing international standards, the final document has many problems.  The document seldom makes reference to existing international standards or principles. Instead, the text uses language at a level of abstraction that is unhelpful or damaging to the development and implementation of international law. In the area of health, WHO standard-setting principles are ignored. 

 

In the area of racial discrimination and employment, notably including treatment of migrant workers, the document evinces no appreciation of widely accepted ILO standards. On the Middle East, the helpful work of the Committee on the Elimination of Racial Discrimination is ignored. 

 

In fact, reference to CERD's jurisprudence is virtually absent from the entire text.

 

One has to question the utility of this type of conference if it does not rely on current international standards as a baseline from which to develop and elaborate principles and rules. Worse yet, at almost every turn, the text contains language that erroneously limits or qualifies international obligations.

 

For example, the phrase "where appropriate" occurs 15 times in the document; the phrase "as appropriate" occurs 17 times, and the modification of obligations with phrases such as "where necessary" occurs throughout.

 

These rhetorical devices are disconcerting for two reasons. First, it would have been helpful if all the money and effort spent on the WCAR could have gone some way to determining, according to international standards, when particular international obligations are necessary, what conditions make governmental action or inaction appropriate or inappropriate.

 

Perhaps these are areas that can be elaborated in standard-setting procedures subsequent to the WCAR, but the conference should have undertaken much more of the burden of defining those standards.

 

Second, these qualifications risk undercutting progressive international legal developments. Delegates presumably propose these qualifications in order to achieve quick consensus on draft language. As a political matter, who might disagree that a particular governmental action should be taken "when appropriate" or "as necessary"?

 

Yet, without using international standards as a baseline in the text, such qualifications can undermine or retard standard-setting developments that have previously been achieved.

 

Such qualifications can provide for wider governmental discretion than appropriate and often amount to "opt out" clauses, or loopholes, in existing international obligations. Especially in areas which have well-articulated standards, such broad discretionary provisions tend to dilute current international law.

 

The WCAR had the opportunity to promote human rights in a number of important areas, but the result was mixed. In some areas, the conference had considerable success.

 

This is perhaps most evident in the WCAR's having elevated the importance of particular issues - such as the treatment of the Roma and concern for racial hatred on the Internet - on the international agenda.

 

The WCAR's "acknowledge[ment] that slavery and the slave trade are a crime against humanity and should always have been so" struck a delicate balance by (a) not retroactively applying an international legal rule (especially an international criminal prohibition) to a period in which the rule did not exist while (b) acknowledging the historic and contemporary practice as horrific and morally outrageous and one which today unquestionably constitutes a crime against humanity.

 

At the same time, the WCAR also snubbed millions of victims of racial discrimination. 

 

Consider, for example, some of the words you won't find in the final document: "caste"; "sexual orientation"; "apology"; "World Conference on the Rights of Indigenous Peoples".

 

Indeed, one of the most shameful results of the WCAR is the document's not addressing - indeed, not even mentioning - caste-based discrimination. This historic failure occurred despite the fact that (1) UN independent experts (including the Sub-Commission on the Promotion and Protection of Human Rights, the Committee on the Elimination of Racial Discrimination and the Special Rapporteur on Racism) have declared that the international legal prohibition against racial discrimination includes caste-based discrimination and (2) the conference was mandated to deal not just with racism narrowly, but with "racism, racial discrimination … and related intolerance."

 

This particular debacle, however, cannot be blamed on governments alone. HUMAN RIGHTS FEATURES has elsewhere discussed a range of problems in NGOs' "lobbying" tactics on the caste issue.

 

The WCAR also failed the victims of racial discrimination with regard to addressing the abuses of national and multinational companies.

 

First, the text is overly timid. Government delegates decided not to promote or reflect the existence of international obligations on companies directly.

 

The final text often urges or calls upon states to abide by certain international obligations directly but only "encourages the private sector" to follow particular practices.

 

In contrast, it is useful to recall that the ILO's Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy states: "All the parties concerned by this Declaration… should respect the Universal Declaration of Human Rights and the corresponding International Covenants adopted by the General Assembly of the United Nations."

 

Similarly, the OECD Guidelines for Multinational Enterprises now includes a provision stating that enterprises should "[r]espect the human rights of those affected by their activities consistent with the host government's international obligations and commitments."

 

Second, the text gives short shrift to serious human rights violations by private companies. The Programme of Action's section on "the private sector" is startlingly only one paragraph long; it appears as paragraph 215 almost like an afterthought in the document.

 

Finally, the crux of paragraph 215, though it addresses racism and companies explicitly, worryingly does so only for multinational companies. The paragraph "[u]rges States to take measures, including, where appropriate, legislative measures, to ensure that transnational corporations and other foreign enterprises operating within their national territories conform to precepts and practices of non-racism and non-discrimination".  Why states should not be urged to do the same for national companies is inexplicable.

 

This failure to address national companies alongside multinational companies defies the common sense approach taken in the Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/Sub.2/2000/WG.2/WP.1, Annex).

 

3. Programme of Action: WCAR text silent on State obligations

 

THE World Conference Against Racism's (WCAR) Declaration and Programme of Action recognises many of the sources of historic and contemporary racism, racial discrimination, xenophobia, and other related intolerance. The text identifies disadvantaged groups and provides States with suggestions for possible reforms.  The document, however, most often fails to either reflect or promote international standards obligating States to implement reform.  The text also fails to emphasise the need for international cooperation and oversight in attacking racism and discrimination.

 

Africans and People of African Descent

 

The Programme of Action fails to specifically reflect or develop obligations on States with regard to some of the most pressing issues facing the African Diaspora. For example, the document does not explicitly prohibit institutional racism. It encourages States to identify those aspects of public and private life that inhibit equal access and protection (para. 11); yet, the document does not highlight the underlying issues that often allow for the continuation of discriminatory practices.

 

These factors can undermine the impact of policy initiatives proposed in the Programme of Action. Such factors may include biased criminal sentencing and geographically districted school systems. While the document does provide some specific remedies for the plight of the African Diaspora, such as capacity-building measures (para. 6) and affirmative action programmes (para. 8(c)), these solutions would not attack many of the most discriminatory institutions and practices. The Programme of Action should have required States to engage in comprehensive data collection on the negative effects that policies and institutional structures can have on the African Diaspora. Moreover, States should have been obligated to alter existing policies and practices if they inhibit equal access and protection.

 

The Programme of Action also fails to adequately address the prevalence of hate crimes. While generally calling for punishment of hate crimes in paragraph 84, this issue deserves specific attention with respect to the African Diaspora. The history and frequency of such crimes should have led to language recognising the current prevalence of such crimes and demanded that each State take specific measures to combat such criminal activity. These measures could include law enforcement and judicial training as well as research and specific strategies directed at finding and prosecuting perpetrators. 

 

Paragraph 8(c) of the Programme of Action suggests affirmative action programmes as a solution to inequalities in health care, housing, education and employment. The document's language is not strong enough to produce the necessary action. The document recognises the prevalence of discrimination and inequality in virtually every aspect of life; it should have accordingly demanded policies reversing this trend. Minimally, policies that should have been explicitly required include affirmative action measures in education and public employment.  States should also persuade and provide incentives for the private sector to actively seek underrepresented employees. The document does not establish specific international standards and goals for the States to work towards. The text should have called for equal access to public services, employment and education proportionate to the group's representation in the population.

 

Additionally, the Programme of Action does not adequately recognise issues related to poverty and the conditions of many Africans and people of African descent. Because contemporary conditions are the result of centuries of racist practices, the document should have demanded more concrete action from every State to eradicate the problem. The document urges financial and development institutions to assist Africans and people of African descent; however, States should also allocate funds specifically for health and housing aid, as well as food assistance programmes.

 

The Programme of Action also fails to adequately protect the interests of women and children of African descent. Many women and children experience poverty because discriminatory law enforcement and penal sentencing practices have taken males from their homes and communities. States should provide special care and protection for the children of the African Diaspora and their mothers through day care and nutrition programmes.

 

The document does not specifically address the fact that in some countries, people of African descent receive lower wages than their fellow workers in comparable positions. Because many employers can disguise wage discrimination by attributing discrepancies to subjective factors, the international community must provide specific standards enforceable by States. National documentation of employment trends and watchdog organisations that monitor individual business practices should be a requisite.

 

Generally, the Programme of Action fails to provide substantive policy suggestions for the assistance of developing African nations. While the document does request increased assistance from international financial organizations (para. 83(a)), it presents no comprehensive political agenda. The international community must establish a substantial aid package, necessarily including debt relief. The international community could establish consulting bodies to assist developing African nations in allocating funds, improving education and health care, and economic development. Moreover, developed nations must be required to share technological and health care information with these developing nations.

 

Asians and People of Asian Descent

 

The Programme of Action contains one statement indicating the need to protect the rights of Asians and people of Asian descent (para. 45) while the Declaration recognises current and historic subjugation of these persons (see, e.g., paras 36-37). The Programme of Action provides no specific guidance to States in dealing with the Asian Diaspora. Colonialism, indentured servitude and forced migrations have also victimised Asians and people of Asian descent. The document provides only cursory consideration of this fact. In nations where they suffer systemic hardships, they should accordingly benefit from aid and affirmative action Programmes. The Asian Diaspora should receive protection from hate crimes and States should take special law enforcement steps to enhance the safety of the group.

 

Many Asian nations do not enjoy economic prosperity. Instead, poverty and poor health plague these nations. The international community cannot ignore the hunger and disease that dominate various parts of Asia. The Programme of Action should have included provisions on distributing aid to suffering nations. The international community should coordinate efforts to improve the health care and educational systems in Asian countries. Asian countries should also receive support in developing economic stability.

 

People of Mixed Descent

 

This group receives only slight recognition in paragraph 56 of the Declaration. The document sets forth no specific policies or requirements for the protection of this group. Unfortunately people of mixed descent face racism and other forms of intolerance from various sectors of society. Often this group is least integrated into society and least able to express their cultural background. The Programme of Action should have called for immediate recognition of these groups and should work with them in the process of self-definition (as suggested for indigenous peoples, para. 42). Moreover, these groups should also benefit from affirmative action and other assistance programmes. States must partake in information and education campaigns to combat the negative stereotypes concerning people of mixed descent. States should also work to empower the group politically by seeking their involvement in decisions that affect their communities. Governments must allow this group a distinct community voice and identity.

 

Indigenous peoples

 

The document "declare[s] that the use of the term 'indigenous peoples' in the Declaration and Programme of Action … is in the context of, and without prejudice to the outcome of, ongoing international negotiations on texts that specifically deal with this issue, and cannot be construed as having any implications as to rights under international law" (para. 24).  This proviso conflicts with the positive policy provisions made by the document and the advances made in previous world conferences against racism in which the term "indigenous peoples" was used. With the WCAR language, the document puts indigenous groups in a precarious position. Their rights are not recognized as inherent; any positive steps can seemingly be reversed and negated simply through governmental, or political, discretion.

 

The document makes no mention of the need for integration of or assistance to indigenous peoples. In many countries, such as the United States and Mexico, indigenous peoples often live in isolated communities and do not enjoy the economic and social treasures that prevail in mainstream society. The Programme of Action should have required States to facilitate employment opportunities for indigenous peoples, if such communities so desire, and housing assistance.

 

Moreover, the Programme of Action does not specifically address the cultural stereotypes that reflect and encourage discrimination against indigenous peoples. States should undertake informational and educational campaigns to reverse the negative effects that such stereotyping has on community morale, cultural expression and societal integration. The public school curriculum and the mass media are two possible means of conveying messages celebrating the heritage and recognising the contributions of indigenous peoples.

 

The text does not mention the deteriorating psychological health of many indigenous groups. High rates of suicide, alcoholism and domestic violence prevail among indigenous peoples, yet the document does not indicate recognition of the need for adequate mental health care. 

 

The Programme of Action should have reflected or promoted the States' obligations to include indigenous peoples in the management of their own educational systems and their own lands.

 

Women

 

The Programme of Action addresses the precarious position of women and the specific need to protect them from aggravated forms of discrimination. It appropriately calls for the incorporation of a gender perspective when implementing all policies combating racism, racial discrimination, xenophobia, and other forms of intolerance (para. 51). However, while addressing the issue of sexual violence as a weapon of war (para. 54(a)), the document fails to address sexual violence against minority women that does not derive from armed conflict.  When spurned by racial motivations, these acts may also be labeled as crimes against humanity. 

 

In States where such criminal activity is prevalent, there should be recourse available to international forums when efforts of national authorities have proven to be nonexistent, inefficient or insufficient. Moreover, NGOs should be facilitated to play an active role in monitoring racially motivated sexual offenses.

 

Issues of employment discrimination against women on the basis of race are not specifically highlighted in the Programme of Action. The Programme of Action should have required States to collect data on employment patterns and to provide a forum to accept complaints from victimised women when their national system fails to protect them.

 

Paragraph 53 of the Programme of Action calls for the political empowerment of women. This statement is welcomed but lacks the language needed to compel action. The Programme of Action should have required educational and informational campaigns directed specifically at women and girls, informing them of their political rights and encouraging their participation in political activities. 

 

Children/Youth

 

The Programme of Action requests that "the best interests of the child" serve "as a primary consideration" in all relevant international actions (para. 55). This language does not set a clear standard of action or provide any concrete guidance to States. Moreover, this language allows for excessive discretion. Although some discretion is necessary in delicate situations involving children, the international community must not allow political bargaining and racially motivated policies especially in this arena. The Programme of Action should have established objective criteria or demand that each nation establish objective criteria to deal with situations involving the care of children.

 

The Declaration only briefly mentions the issue of child labour (para. 74). However, this cursory treatment ignores the expansion of national and multinational companies that increasingly employ children. The Programme of Action should have established clear health and fitness requirements for the labour of children and should have demanded an international oversight board to hold companies to a clear and objective standard.

           

Migrants

 

The Programme of Action says very little about racism, racial discrimination, xenophobia, and other related intolerances in the immigration processes. Paragraph 81 prohibits discrimination in granting work visas and work permits, but does not emphasise the racism faced by migrants when they arrive in a new country. The Programme of Action should have called on NGOs to monitor the processing of migrants and to apply pressure on governments that allow discriminatory practices. Moreover, many immigration policies reflect racist attitudes.  The Programme of Action should have prohibited policies that expressly deny immigration from particular countries or from specific regions of the world. The Declaration recognises the right of all States to create their own immigration policies (para. 47); nevertheless, there should be internationally mandated objective standards for nations to use to form policies, and these standards require elaboration.

 

The Programme of Action should have provided standards for dealing with internally displaced persons.  This group requires strong international protections.  States should engage in family reunification programs to assist internally displaced persons and States must be obligated to provide the group full equality before the law.  All nations must provide these people with adequate social services and adopt policies to facilitate integration into society.

 

Refugees & Asylum Seekers

 

The Programme of Action calls for States to comply with the existing international law governing the treatment of refugees and asylum seekers (para. 34).  However, the document does not address some specific issues that refugees and asylum seekers face. For example, the Programme of Action should have prohibited blanket rejections of individuals and groups of individuals from particular countries or areas of the world. Often, such policies derive from racial stereotyping and a desire for racial exclusion. Second, the document should have created objective standards for the efficient processing of incoming refugees and asylum seekers. The international community should not tolerate purely arbitrary decision-making. States should comply with established international standards that discourage racist or discriminatory processing of individuals. Moreover, these victimised individuals must have a forum for complaint in the international community - and an institutional forum with enforcement power. NGOs can and should play an important role in monitoring policies and practices within nations.

 

HIV/AIDS

 

The sections of the Declaration and Programme of Action addressing the care of HIV and AIDS victims lack persuasive language.  The document establishes no clear policies or even a goal for States to work towards.  The Programme of Action simply urges States to provide health care to HIV and AIDS patients (paras. 101 and 110(e)).  It does not reflect or elaborate substantive obligations of States and establishes no international standards for care.  The document should have demanded the creation of programmes on a national level to aid individuals who have been denied care because of racism, racial discrimination, xenophobia or other related intolerances.  Also, these individuals should have redress in the international community and should be given the opportunity to receive the care they need immediately and in other nations if necessary. The text should have also created a clear standard of minimum care for each nation. These standards should be based on the resources and technology available to each State.  The international community should continually facilitate the exchange of developing health care technologies and strategies designed to help HIV and AIDS patients.

 

Trafficking

 

The issue of trafficking receives considerable attention in the document.  However, the Programme of Action fails to provide concrete policies for some of the necessary steps in solving this problem.  For example, the Programme of Action should have required government-to-government cooperation between receiving and sending nations.  These governments should communicate and coordinate law enforcement tactics.  The document also fails to provide a course of action for receiving nations.  The document should have addressed the goals of repatriation or resettlement and should have demanded the assistance of an international body to achieve these goals.

 

Moreover, the document does not specifically address the trafficking of women for sex and sexual employment.  This is a specific issue that deserves the attention of the document and deserves particularly diligent protection from the international community. The document should have candidly and squarely addressed the role of corrupt civil servants in the process of trafficking and the need to deal with this source of the problem through vigorous criminal enforcement measures.

 

Education Without Discrimination

 

Paragraph 122 of the Programme of Action asks States to refrain from imposing racial segregation in education.  This language is not strong and specific enough to eliminate the institutional racism that can lead to segregation.  Many schools and school districts are attended by neighbouring children.  In many areas, such as the United States, there is a sharp racial divide in housing patterns.  Therefore, although State-segregated education has been abolished in the United States, the design of the school system often results in racial segregation.  The Programme of Action should have required States to identify the factors that can lead to segregated education and attempt to reverse these patterns.

 

Paragraph 123(c) requires that all children get an "education of good quality."  Unfortunately, this term has no clear content.  The document should have created an objective standard particular to the needs and resources of each State.  These objective standards could include average reading and math levels that a percentage of children must attain.  All States must also be required to collect data on those children that are not meeting the standards.  If the data reflects a racial bias, the State must engage in policies to reverse these trends.  Children and their parents should have strong and available forums for complaint. 

 

Politicians and Political Parties

 

The Programme of Action calls for voluntary codes of conduct and disciplinary measures for politicians and parties that use racial discrimination as a political platform (para. 115).  However, without an independent and empowered judiciary or an independent oversight board, these policies could never be adequately implemented.  Moreover, if the political majorities advocate a racist sentiment, they will not demand compliance with the document's proposals.  Therefore, it may be necessary to have multilateral or transnational groups that can investigate without directly interfering with the democratic institutions of a nation. 

 

Globalisation

 

The Declaration and Programme of Action does not adopt a strong stance against developed nations and the multinational companies that are the driving forces of globalisation.  These parties can facilitate the rise of injustice and racism.  The document should have demanded the creation of an international body to oversee globalisation activities and to assist developing nations in making highly informed decisions when dealing with multinational companies.  Moreover, there should be international laws and audits to prevent and punish gross manifestations of racism and discrimination in these processes. NGOs and the international community must provide the governments of developing nations with long-term strategies and consulting services. The Programme of Action mistakenly does not speak to the fact that globalisation can often diminish the resources of a developing nation without providing long-term benefits or compensation.

 

Reparations

 

This issue of reparations as a general remedial response to racial discrimination hardly appears in the Programme of Action.  In its diluted form, paragraphs 165-6 state that victims shall have adequate remedies and reparations. The text provides no international standards. 

 

In a nation with a weak judiciary or an ambivalent political attitude, "adequate remedies" could be read far too narrowly.  In fact, this type of language does not indicate any meaningful actions States would be obliged to adopt. The Programme of Action should have established clear guidelines of the types of remedies available for the different types of harms.