RACIAL DISCRIMINATION

The Universal Declaration of Human Rights under Article 2 lays down that the rights and
freedoms provided in the Declaration shall be available to all the persons irrespective of race,
colour, sex and religion. In 1963, the Assembly proclaimed the Declaration on the
Elimination of All Forms of Racial Discrimination.2 The Declaration affirmed the
fundamental equality of all persons and confirmed that discrimination between human beings
on the grounds of race, colour or ethnic origin is a violation of the human right and is an
obstacle to friendly and peaceful relations among nations and peoples. In order to make the
provisions binding on the States a Convention was adopted by the General Assembly on
December 21, 1965 which is known as International Convention on the Elimination of All
Forms of Racial Discrimination.3 The Convention came into force on January 4, 1969. As on
November 18, 2009, the Convention had 173 States Parties.

Definition of Racial Discrimination

The Convention under Article 1 defines the term 'racial discrimination' by stating that racial
discrimination shall mean any distinction, exclusion, restriction or preference based on race,
colour, descent or national or ethnic origin which has the purpose or effect of nullifying or
impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and
fundamental freedoms in the political, economic, social, cultural or any other field of public
life. The Convention shall not apply to distinction, exclusion, restrictions or preferences
made by a State Party between citizens and non-citizens.
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1. The Orissa High Court in Orissa Patita Uddhar Samiti v. State of Orissa directed the municipal authorities not to evict sex workers living
in red light areas or government land without providing them minimum facilities like water, electricity and health care. It was further
observed by the Court that they are victims of sexual exploitation by abductors. The Court asked the municipal authorities to rehabilitate the
sex workers (AIR 2007 NOC p. 511).

2. Racial discrimination became one of the main items on the United Nations after African Nations attained independence. The Sharpevilla
massacre in South Africa on March 21, 1960 sensitized the world opinion to the perils of apartheid and racial discrimination.

3. General Assembly Resolution 2106 (XX), dated December 21, 1965.

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Obligations of the States Parties
The Convention under Article 2 laid down the obligations of the States Parties to eliminate
the racial discrimination which are as follows :

(1) They undertake not to engage in any act or practice of racial discrimination against
persons, groups of persons or institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with this obligation.

(2) States Parties shall not sponsor, defend or support racial discrimination by any persons or
organisations.

(3) Each State Party shall take effective measures to review governmental, national and local
policies and to amend, rescind or nullify any laws and -regulations which have the effect of
creating or perpetuating racial discrimination wherever it exists.

(4) Each Party shall prohibit and bring to an end by all appropriate means, including
legislation as required by circumstances, racial discrimination by any persons, group or
organisation.

(5) In particular, the States Parties undertake to guarantee equality before the law in the
enjoyment of human rights, notably the right of everyone to equal treatment before all organs
administering justice; the right of security of persons and protection by the State against
violence or bodily harm; and the political, civil, economical, social and cultural rights of
every person.

Implementation of the Obligations

The Convention. not only defined and condemned racial discrimination, it also established an
international monitoring system. In accordance with the provisions of the Convention, a
Committee on the Elimination of Racial Discrimination (CERD) composed of 18 experts of

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high moral standing and acknowledged impartiality was established in 1969 when the
Convention entered into force. Members are elected by the· States Parties to the Convention.
The Committee is empowered to oversee the implementation of the obligations accepted by
the States Parties.1 Parties to the Convention undertook to submit to the Secretary-General of
the United Nations, for consideration by the Committee, reports on the legislative, judicial,
administrative or other measures which they have adopted to give effect to the provisions of
the Convention. The Committee is required to make report annually on its activities to the
General Assembly.

Reporting System

The main task of the Committee is the consideration of reports to be submitted regularly by
States Parties on the legislative, judicial or other measures they are taking to give effect to
the provisions of the Convention.
The States Parties are to submit their report within one year of becoming parties to the
Convention and then once every two years.! The Committee is required to report annually,
through the Secretary-General, to the General Assembly of the United Nations on its
activities and may make suggestions and general recommendations based on the examination
of the reports and information received from the States Parties. Such suggestions and general
recommendations shall be reported to the General Assembly together with comments, if any,
from States Parties. The Committee is also empowered to seek further information from the
States Parties. For instance, in 1993, the Committee sought additional information on the
implementation of the Convention.

Inter-State Complaint System

The Convention under Article 11 laid down that if a State Party considers that another State
Party is not giving effect to the provisions of the Convention, it may bring matter to the
attention of the Committee. The Committee shall transmit the communication to the State
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1. Article 8

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Party concerned. Within three months, the receiving State shall submit to the Committee
written explanations or statements clarifying the matter and the remedy, if any, that may have
been taken by that State. If the matter is not adjusted to the satisfaction of both parties, either
by bilateral negotiations or by any other procedure open to them, within six months after the
receipt by the receiving State of the initial communication, either State shall have the right to
refer the matter again to the Committee by notifying the Committee and also the other State.

After the Committee has obtained and collected all the information, if it deems necessary, the
Chairman shall appoint an ad hoc Conciliation Commission comprising of five persons who
mayor may not be members of the Committee. The members of the Commission shall be
appointed with the unanimous consent of the parties to the dispute and its good offices shall
be made available to the States concerned for the amicable solution.

Individual's Communication System

The Convention under Article 14 lays down the procedure for individual's communications.
The Committee on the Elimination of Racial Discrimination may receive and consider
communications from individuals or groups of individuals claiming to be victims of a
violation by a State Party of any right set forth in the Convention. No communication shall
be received by the Committee if it concerns a State Party which has not made such a
declaration.

The individual's communication system is optional. Individuals of only those States can
make the petition to the Committee which have previously declared that it recognises the
competence of the Committee to consider such communications. This provision of the
Convention shall come into force when at least ten States Parties to the ·Convention have
made declarations accepting it. As on June 16, 2006, 46 States had accepted this provision.
Although individual's communications system has come into force, figures for such
communications in the recent past suggest that individuals have not utilized the system.
While in 1994 only one such communication was made, in 1995· the number was 2. In 1996
and 1997 the number of such communications was 1 and 3 respectively.

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The Convention on the Elimination of Racial Discrimination has influenced several countries to
change their legislations. States have taken additional measures to prevent or to stop racial or
otherwise motivated discrimination. Examples of such policies include prohibition of the
incitement of racial hatred; penal regulation to punish discriminatory behaviour, hate crimes, and
racial violence; and regionally based monitoring centers to combat racism. Examples of such
policies include the prohibition of the incitement of racial hatred, penal regulation to punish
discriminatory behaviour, hate crimes, and racial violence; and regionally based monitoring
centers to combat racism. In Koowanta v. Bjelke-Peterson and others,1 the High Court of
Australia considered the international human rights prohibiting racial discrimination. Stephen J.
in the above case stated that :-

"Australia has an international obligation to suppress all forms of racial discrimination

because respect for human dignity and fundamental rights, and thus the norm of non-
discrimination on the grounds of race is now part of customary international law, as both
created and evidenced by State practice and as expounded by jurists and eminent publicists."

However, measures undertaken at international and national levels to combat racial

discrimination have not produced satisfactory results. Examples of racial and ethnic tensions
or similar practices continue to take place which remind to the international community that
reinforced efforts must be made to stop these violations of human rights. Further, the
contemporary form of social discrimination resulting from official doctrines of racial
superiority such as ethnic cleansing has come into existence.2 They are required to be
combated by all available means. .

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1. 68 (1985) International Law Reporter p. 181.

2. In· 1993, the Commission of Human Rights appointed a Special Rapporteur 0 Contemporary Forms of Racism, Racial Discrimination,
Xenophobia and Relate Intolerance whose mandate was. to examine incidents of contemporary forms of racism racial discrimination, any
form of discrimination against blacks, Arabs and Muslim Xenophobia, anti-semitirm and related intolerance, as well as governmental
measure to overcome them (See UNGA Document N49/677, Para 8).

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World Conference on Racism (2001)

The United Nations Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance was held from August 31 to September 7, 2001 in Durban (South Africa)
which called for action by the international community to eradicate them wherever they may
be found. The Conference after intensive and difficult deliberations on key contentious
issues, adopted a Declaration and Programme of Action that commit member States to
combat racism and discrimination at the international, regional and national levels.

The Declaration expressed concern about the plight of the Palestinian people under foreign
occupation. It recognized their inalienable right to self-determination and to the
establishment of an independent State. It also recognized Israel's right to security and called
upon all countries to support the peace process and bring it to an early conclusion. The
Declaration regretted the massive human sufferings and the tragic plight of millions 0 men,
women and children as a result of slavery, the slave-trade, apartheid

colonialism and genocide. A number of delegations voiced their reservations or

disassociations on matters relating to the Middle East and to the legacy of the past.

The Declaration included sections of (a) sources, causes, forms and or contemporary
manifestations of racism, racial discrimination, xenophobia and related intolerance; (b)
victims of racism, racial discrimination, xenophobia and related intolerance; (c) measures of
prevention, education and protection aimed at the eradication of racism, racial discrimination,
xenophobia and related intolerance at the national, regional and international levels; (d)
provisions of effective remedies, recourse, redress and compensatory and other measures at
the national, regional and international levels and (e) strategies to achieve full and effective
equality, including international cooperation and enhancement of the United Nations and
other international mechanisms in combating racism, racial discrimination, xenophobia and
related intolerance.

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The Programme of Action elaborated concrete steps to reach these goals. States have been
urged among other things, to (1) develop or implement effective legislation and other
measures to protect migrant workers, domestic workers and trafficked persons and facilitate
family reunification; (2) ensure education and training, especially of teachers, promote
respect for human rights, the fight against racism, and awareness of the causes of racism; (3)
develop strategies to address discrimination against refugees; (4) end impunity and prosecute
those responsible for war crimes and crimes against humanity, including sexual and other
gender-based violence against women and girls; (5) adopt or continue to apply all necessary
measures to promote, protect and ensure the rights of indigenous people; (6) ensure
accountability for misconduct by law enforcement personnel motivated by racism, and
eliminate racial profiling; and (7) guarantee the right to freedom of expression and encourage
access to, and use by all people of the Internet.

The Programme of action adopted by the Conference has been endorsed! by the General
Assembly on March 27, 2002. At a meeting of the United Nation's largest legislative body,
the Assembly described the Durban Conference as having made an important contribution to
the eradication of racism, racial discrimination, xenophobia and related intolerance. It also
asked the Secretary-General to appoint five independent experts-one from each region of the
World-to follow up the Implementation of the Declaration and the Programme of Action.

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