Volume 5

October - December  2002

ISSN 1541-2482

After the deluge, the damp squib

The 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. 

The 219-paragraph-long Durban Declaration and Programme of Action (DDPA) 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 eradicating racism and discrimination.

The DDPA is full of opt-out clauses such as "where appropriate", "as appropriate", "where necessary". While the DDPA struck a fine balance on the issue of reparation and slavery and addressed the Roma issue, it snubbed millions of victims of racial discrimination by failing to refer to "caste", "sexual orientation", "apology", "World Conference on the Rights of Indigenous Peoples" and "abuses of national and multinational companies".

Indeed, one of the most shameful results of the WCAR is the document's not addressing - indeed, not even mentioning - caste-based discrimination. 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 Government of India and a section of the Dalit NGOs and their support organisations worldwide contributed to the hype that made reference to caste or the avoidance of it, in the Durban Declaration and Programme of Action an issue of victory or defeat. This despite, as the South Asia Human Rights Documentation Centre (SAHRDC) 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."

The Government of India sought to state that the caste issue was being turned into a 'country-specific' issue. The Dalit groups and their support organisations 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, the Groits of Senegal and the Osu and Oru people of Nigeria who also face caste-based discrimination. The Asian NGO Forum, which failed to adopt any Regional Declaration at the Tehran Regional Preparatory Conference, further encouraged such a sentiment, due to lack of leadership, competence, professionalism and sheer lack of understanding of issues relating to racism, racial discrimination, xenophobia and related intolerance and the UN processes, among others.

The 58th Session of the CHR

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 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.

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 also 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.

CERD Committee's General Comment

During 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 from 8-9 August 2002. The CERD Committee's special debate reaffirmed 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.

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 are 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 persist.