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The International Convention on the Elimination of All Forms of Racial Discrimination - A Commentary by Thornberry, Patrick (14th July 2016)

4 The Convention and the Committee

From: The International Convention on the Elimination of All Forms of Racial Discrimination: A Commentary

Patrick Thornberry

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 January 2019

Religion — Ethnicity — Minorities — Race

(p. 34) 4.  The Convention and the Committee

A.  Introduction

Following its title and extensive preamble, the Convention is divided into three parts: the substantive norms prohibiting racial discrimination (Articles 1–7), the analysis of which constitutes the main body of the present work; the Committee on the Elimination of Racial Discrimination (CERD) and its procedures (Articles 8–16); and final clauses relating to signature, ratification, and accession, reservations, denunciation, the role of the International Court of Justice, revision of the Convention, etc (Articles 17–25). This chapter focuses on fully functioning CERD procedures, with briefer reference to other procedures ‘on the books’ that have not engendered sufficient practice: the inter-State procedure, the non-functioning of which may be contrasted with the active engagement with the Convention by the International Court of Justice in Georgia v Russian Federation;1 and the procedure under Article 15, which has seen its operative decolonization context progressively eroded. The discussion reflects on the principal developments since CERD became operational, while maintaining a primarily analytical focus. The legal and geopolitical changes that have occurred since the adoption of the Convention have marked its procedures as much as the substantive norms.2

177 States are parties to the Convention,3 of which 57 have accepted the optional procedure for individual communications under Article 14.4 The list of States parties ratifying, acceding, or succeeding to the Convention falls into patterns: for example, the dominant mode of signifying consent to be bound for post-USSR States is accession, (p. 35) while States of the former Yugoslavia are listed as parties through succession. At the time of writing, Palestine is the latest addition to the list of States parties.5 CERD is now only one among core UN ‘treaty bodies’, themselves situated in a wider framework of ‘mechanisms’ complementing the panoply of standards.6 In the field of racial discrimination, there is a range of further mechanisms at the UN level, including some developed following the Durban World Conference on Racism.7 Related non-treaty mechanisms include the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance;8 the Working Group on the Effective Implementation of the Durban Declaration and Programme of Action;9 the Working Group of Experts on persons of African Descent,10 and the Independent Eminent Experts Group.11 Within human rights mechanisms, treaty bodies occupy a distinctive space, with procedures replicated across a range of instruments, developed to different degrees according to the exigencies of the instrument in question. At the regional level, Article 15 of the Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance provides for the establishment of an Inter-American Committee for the Prevention and Elimination of Racism, Racial Discrimination, and All Forms of Discrimination and Intolerance.12

The UN treaty bodies have membership of experts varying in number from ten to twenty-three, while twenty-five experts of the Sub-Committee on the Prevention of Torture implement the Optional Protocol to the Convention against Torture (OPCAT). The members of treaty bodies are nominated and elected by States parties, the exception being the Committee on Economic, Social and Cultural Rights (CESCR), the membership of which is elected by the UN Economic and Social Council and is subject to regional distribution.13 Members of treaty bodies are independent and not subject to government control; equally, they are not international civil servants employed by the United Nations.

A set of broadly similar procedures have been developed by the treaty bodies to assist States parties in the implementation of their obligations: the examination of State reports, processing of inter-State or individual communications, adoption of general comments known as general recommendations in the case of CERD and the Convention on the (p. 36) Elimination of All Forms of Discrimination Against Women (CEDAW), inquiry procedures, and in the case of CERD, an ‘early warning and urgent action’ procedure, a concept echoed in the Convention on the Rights of Persons with Disabilities (CPRD) and the International Convention for the Protection of All Persons from Enforced Disappearance (CPED).14 Sundry ‘follow-up’ mechanisms to track the fate of the concluding observations and recommendations of various committees have been developed,15 as well as for opinions on individual cases. Eight of the core UN human rights treaties—the International Covenant on Civil and Political Rights (ICCPR), the Convention against Torture (CAT), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), CEDAW, the CPRD, CRC, CPED, and the International Covenant on Economic, Social and Cultural Rights (ICESCR)—have functioning individual communications procedures.16 The procedures for inter-State claims that have been elaborated for ICERD, the ICCPR, ICESCR, CAT, CPED, Convention on Migrant Workers (CMW), and the Convention on the Rights of the Child (CRC), share the distinction of not having been tested in practice.

Treaty bodies are designated as committees, not courts of law, a distinction that has stimulated the growth of a body of commentary on the nature and extent of their ‘authority’ in decision-making and interpretation of their constituent treaties.17 The regular modus operandi of the treaty bodies is decision by consensus, with dissents uncommon, though the procedure under the First Optional Protocol to the ICCPR has generated a significant number of dissenting opinions.18 The growth of commonalities in the work of the treaty bodies is facilitated in part by servicing of their operations by the Secretariat of the United Nations.19 Harmonization of their efforts is encouraged in, for example, reporting procedures, through the development of a system whereby States prepare a ‘common core document’ containing general background on the domestic framework for the implementation of human rights, and a ‘treaty-specific document’ that (ideally) responds in detail to the requirements of the treaty in question;20 guidelines for ‘common core’ and ‘treaty-specific’ documents are referred to extensively in the present work. Reform of the system, currently surfacing as ‘the treaty body strengthening process’, has been on the agenda of the United Nations for decades.21

(p. 37) B.  Travaux Préparatoires

I.  The Committee

The principal drafting burden regarding the measures of implementation fell to the Third Committee of the General Assembly, utilizing materials developed by the Sub-Commission on the Prevention of Discrimination and Protection of Minorities on the basis of proposals submitted by Sub-Commission member Ingles.22 The Sub-Commission considered the first article of these proposed measures, and incorporated it in the draft convention as Article X.23

1.  The States parties to this Convention undertake to submit a report on the legislative or other measures which they have adopted and which give effect to the provisions of this Convention, (a) within one year after the entry into force of the Convention for the State concerned and (b) thereafter every two years and whenever the Economic and Social Council so requests upon recommendation of the Commission on Human Rights and after consultation with the States parties. 2. All reports shall be submitted to the Secretary-General of the United Nations for consideration by the Economic and Social Council which may transmit them to the Commission on Human Rights or the specialized agency for information, study and, if necessary, general recommendation. 3. The States parties directly concerned may submit to the Economic and Social Council observations on any general recommendations that may be made in accordance with paragraph 2 of this article.24

The draft Article did not refer to a monitoring committee specific to the Convention. Resolution 2 (XVI) of the Sub-Commission annexed a preliminary but extensive draft of ‘additional measures of implementation’, the centrepiece of which was the proposal to institute a Good Offices and Conciliation Committee ‘responsible for seeking the amicable settlement of disputes between States parties concerning the interpretation, application or fulfilment of the…Convention’.25 The proposed eleven-member Committee, comprising ‘persons of high moral standing and acknowledged impartiality’, was to be elected by the UN General Assembly,26 and could establish its own rules of procedure which were, however, subject to an initial ‘vetting’ by States parties.27 It was envisaged that the Committee would make recommendations to the Economic and Social Council to request an opinion from the International Court of Justice ‘on any legal question connected with a matter of which the Committee is seized’.28

The Commission on Human Rights decided not to examine the article because of lack of time, and instead adopted resolution 1 (XX), which recommended to the Economic and Social Council that it submit the text of Article X to the General Assembly together with the records of discussion in the Commission.29 The relevant Commission records are sparse, consisting largely of comments on the importance of implementation in order, in (p. 38) the words of one delegate, to make the Convention ‘a truly effective instrument’.30 The inclusion of measures of implementation in the Convention was broadly supported in order to distinguish the Convention from the Declaration on the Elimination of Racial Discrimination.31 Some representatives resisted the idea of an expert committee in favour of a committee of States parties.32

In the Third Committee, proposals of The Philippines33 incorporated the Sub-Commission’s suggestion of a ‘Good Offices and Conciliation Committee’ of eleven members. A text designated Article VIII was proposed by Ghana, Mauritania, and The Philippines,34 and later individuated into Article VIII—Article 8 of the Convention—and Article VIII (bis) (Article 9 of the Convention).35 In the first of these drafts,36 the ‘Good Offices and Conciliation Committee’ became merely a ‘Committee’ with eighteen ‘experts’ holding four-year terms, whose field of expertise was not specified. In the revised draft by the co-sponsors,37 the ‘Committee’ acquired a personality, becoming the ‘Committee on the Elimination of Racial Discrimination’.38 Unsuccessful amendments included the proposal to ratchet up the level of expertise by requiring, as a condition of membership, ‘acknowledged competence with regard to the problem of the elimination of racial discrimination and of the observance of human rights’.39 Tanzania unsuccessfully proposed to rename the Committee ‘the United Nations Committee on the Elimination of Racial Discrimination’;40 its proposal to transfer the burden of experts’ expenses in the performance of Committee duties from the national State of the member to ‘the regular budget of the United Nations’ was also rejected.41

II.  Convention Procedures

The text of Article VIII (bis) proposed to the Third Committee by Ghana, Mauritania, and The Philippines42 is identical to the ultimately agreed version of Article 9 except for the final clause of paragraph 2, which in the draft referred to ‘comments, if any, from the States parties concerned’ as opposed to simply ‘comments, if any, from States parties’ in the final text; at the 1351st meeting the representative of the United Kingdom (UK) orally (p. 39) proposed to delete ‘the’ and ‘concerned’ from the proposed text.43 An earlier suggestion by Ghana, Mauritania, and The Philippines regarding prior consultation with States parties before reporting to the General Assembly44 does not appear in the later draft. The representative of Sudan proposed the deletion of ‘suggestions and’,45 arguing against the prospect of a committee making specific proposals.46 India also warned against placing States parties ‘in the dock because of shortcomings in implementing the Convention’.47 Tanzania on the other hand, unsuccessfully proposed the deletion of ‘general’ before ‘recommendations’48—the representative had commented unfavourably on the restriction of the Committee’s powers to suggestions and ‘general’ recommendations, arguing that ‘the committee should have to examine specific questions and make precise recommendations’.49

The import of the amendments of Sudan and Tanzania was later recalled in the CERD progress report, The First Twenty Years,50 according to which the Third Committee ‘had before it two antithetical amendments…Under the first proposal,51 the Committee would have been empowered to make “general recommendations” only; under the second,52 it would have competence to make “suggestions” and “recommendations” without restrictions as to the generality or specificity of either.’53 The report goes on to suggest that by retaining the word ‘suggestions’, the ‘the authors of the Convention wanted to avoid language that might have inhibited the Committee from adopting “suggestions” relating to particular cases’,54 while by retaining ‘general’, ‘the Third Committee appears to have intended that the competence of the Committee to “recommend” was to be exercised only in situations of general relevance’.55 This does not answer the question as to what constitutes a situation of ‘general relevance’ for a recommendation, or what forms a ‘suggestion’ may take.

As regards the inter-State procedure, the draft of Article X (Article 11) proposed by Ghana, Mauritania, and The Philippines56 differed from the final version only in limited respects. In paragraph 1 of the draft, the term ‘complaint’ was used, in contrast to ‘communication’ in the final version, while ‘shall submit’ was used in the draft and final versions. Paragraph 3 of the draft did not qualify the remedies to be exhausted as ‘domestic’, and omitted the principle in the final text referring to the situation where the application of remedies is unreasonably prolonged. Paragraph 5 of the draft is the same as the final version, except for the addition of ‘Adequate notice of the date on which the matter will be considered shall be given to the States parties concerned.’ Successful amendments to paragraph 1 included that of Mexico changing ‘complaint’ to (p. 40) ‘communication’.57 For paragraph 3, the proposal of Canada and Italy to qualify ‘remedies’ by ‘domestic’ was also accepted.58

The inclusion of ‘domestic’ before ‘remedies’ was strongly criticized by the representative of Tanzania on grounds that it ‘represented a deliberate attempt to provide a State which had violated the Convention with unlimited opportunities for frustrating the true purpose of the instrument by continuing indefinitely to argue that all domestic remedies had not yet been exhausted’.59 The question of the burden of proof that domestic remedies had been exhausted drew forth varying suggestions including that the burden fell on the receiving State;60 on the complainant;61 that only the State itself could decide whether domestic remedies had been exhausted;62 and that it was ultimately up to the Committee which would have before it the report on measures adopted to give effect to the provisions of the Convention.63 The requirement of adequate notice etc in paragraph 5 was rejected on the proposal of Austria.64

Draft Article XI (Article 12), proposed by Ghana, Mauritania, and The Philippines,65 centring on the election, composition, and meetings of the Ad Hoc Conciliation Commission for inter-State disputes, was retained in substantially the same form through the drafting process, while paragraph 1 mainly reflects a proposal by Canada.66 Paragraph 2 of the draft article (now Article 12(2)) was proposed by Tanzania,67 while its suggestion to devolve the expenses of the Commission to the regular budget of the United Nations was rejected. An additional paragraph from Tanzania proposing that the recommendations of the Commission were to be made public ‘but not necessarily the evidence received in camera by the Commission’, was also rejected.68 The three-State draft of Article XII (Article 13) regarding findings and recommendations of the Ad Hoc Commission, was processed in two stages;69 the principal change was to replace a reference to communicating the report of the Commission and comments of the States parties concerned to the Secretary-General of the United Nations with the current text: communication to ‘other States parties to this Convention’.70

The draft additional measures of implementation included in Sub-Commission resolution 2 (XVI) did not include provision for petitions from individuals. In the Commission on Human Rights, the representative of Austria commented that ‘for States alone to be entitled to submit disputes relating to the Convention to the committee might lead to conflict between States and run counter to the Convention’.71 Thus, ‘it would be preferable to grant individuals a right of petition, subject to very strict rules of procedure (p. 41) designed to prevent abuses’.72 The sentiment was echoed by a number of delegates in the Third Committee, one of which—The Netherlands—asserted that ‘the right of individual petition was the most effective means of giving effect to human rights in general and the present convention in particular’,73 adding that:

[i]n practical terms…complaints by one State against another…did not offer a sufficient guarantee of the safeguard of human rights. States were little inclined to occupy themselves with individual cases which did not affect them or their citizens…In other words, States would tend to formulate complaints only for political reasons. Moreover, if the individual’s right of communication was not recognized and it was left to States to adopt the necessary measures of redress, aggrieved citizens might try to secure the assistance of foreign governments, which might create tension and conflict and…harm the cause of human rights and anti-discrimination.74

The documentation on measures of implementation included in the report of the twentieth session of the UN General Assembly included the basic papers prepared by The Philippines,75 a twelve-country consortium of Latin American States,76 and The Netherlands,77 each of which incorporated suggestions relating to an individual communications procedure. All three documents referred in slightly varying terms to the possibility of communications emanating from individuals or groups of individuals, and from non-governmental organizations (NGOs), with or without reference to the requirement that the NGOs must have consultative status with the Economic and Social Council.78 The paper of The Netherlands envisaged the possibility of ‘victim’ status for NGOs.79 Later, revised texts do not deviate from the line of envisioning the petitions procedure applying to individuals and groups of individuals.80

In the Third Committee, paragraph 1 of the draft article XIII (Article 14)81 provided for the competence of the Committee, following a declaration by a State party to that effect, ‘to receive and consider communications from individuals or groups of individuals claiming to be victims of a violation by that State party of any of the rights set forth in this Convention’. A principal thrust of the three-Power proposal (Ghana, Mauritania, The Philippines) was for the institution of national committees ‘composed of individuals independent of the government or other national body which shall be competent in the first instance to receive and consider petitions’ from individuals or groups of individuals.82 This body was envisaged as competent to seek redress ‘in appropriate cases’ from the State party, and would keep a register of complaints, certified copies of which were to be filed with the Secretary-General ‘on the understanding that the contents shall not be publicly (p. 42) disclosed’.83 The proposal precipitated the withdrawal of a text submitted by Saudi Arabia setting up the national committees as substitutes for an international mechanism.84 Further refinements followed, largely relating to the role of the national committees.85 The reference to this national institution was replaced by the phrase ‘a body within its national legal order’, adding the requirement that petitioners to such a body ‘have exhausted other available local remedies’.86 In case of a failure to obtain satisfaction from such a body within six months, the petitioner had the right to communicate the matter to the treaty body.87 A successful amendment proposed by Lebanon as to who could petition added the qualifier ‘within its jurisdiction’ after ‘groups of individuals’.88

A fourteen-Power amendment qualified earlier admissibility proposals on the exhaustion of domestic remedies to exclude such a requirement ‘where the application of the remedies is unreasonably prolonged’.89 Representatives made brief excursions into possible distinctions between ‘petitions’ and ‘communications’; the softer term ‘communication’, according to one representative, being preferable in light of an envisaged procedure in which a committee ‘would merely take cognizance of existing problems, without passing any judgements’.90 Such a committee (and process) was stated to be ‘in no way comparable’ to the European Commission on Human Rights which could even, inter alia, refer a case to the European Court.91 There was strongly expressed resistance to the possibility of petitions or communications emanating from non-nationals: ‘the right of petition should be accorded only to the nationals of the State concerned’;92 no such restriction appears in the final text. According to the representative of Canada, the result of the drafting manoeuvres was that ‘the article could not be more optional than it was’.93 The stress on the ‘optional’ may, however, have facilitated the procedure’s remaining within the body of the Convention. The arguably disproportionate amount of time spent in discussing the nature and role of the ‘national body’ may be read as an indirect product of the climate of doubt, hesitation, and expectation surrounding the birth of a new and potentially challenging international procedure. In relation to the proposal by Saudi Arabia to privilege the national petition system, Schwelb comments that ‘by way of a political compromise the optional right of petitioning a national authority and…to communicate with an international authority were both included in the Convention’.94

Draft Article XIII (bis) (Article 15) establishes a relationship between the Convention and decolonization processes with regard to petitions from and reports on territories to (p. 43) which General Assembly resolution 1514 (XV) applies. An initial text proposed that the Committee could examine petitions ‘from the inhabitants of non-independent Territories’ regarding measures adopted by the Administering Authority to give effect to the Convention: the petitions would be examined in consultation with that Authority, and the Committee would cooperate with relevant bodies of the United Nations.95 Reservations expressed by representatives on the Third Committee questioned whether the article was necessary to achieve the purposes of the Convention,96 and on whether a hierarchy was being established where States with colonial responsibilities were regarded as second-class;97 the representative of The Netherlands was among those who referred to the implication that the Convention might apply to States not parties to it.98 The outline of the article was changed through a series of amendments. In the event, the ‘UN bodies’ stand as an intermediary layer between the Committee and, ultimately, the inhabitants of the non-self-governing and trust territories,99 instead of in a direct relationship. The UK and Portugal voted against the article as a whole, while Australia, Belgium, Canada, France, the US, and Upper Volta abstained.100

A text of Article 16 proposed by Ghana, Mauritania, and The Philippines stated that the provisions of the Convention ‘concerning the settlement of disputes or complaints’ shall be applied ‘without prejudice to existing constitutional or other binding provisions of agencies related to the United Nations’ dealing with settlement of disputes or complaints in the field of discrimination, and shall not prevent…States parties…from having recourse to other procedures for settling a dispute’.101 The proposal relates closely to the final text; ‘existing constitutional or other binding provisions’ was replaced by ‘other procedures available for settling disputes, etc.’ following a proposal by New Zealand;102 ‘available’ was deleted on an oral proposal by Lebanon.103

C.  Practice

I.  The Committee

The Committee on the Elimination of Discrimination is composed,104 according to Article 8(1), of ‘eighteen experts of high moral standing and acknowledged impartiality (p. 44) elected by States from among their nationals, who shall serve in their personal capacity’. A special meeting of the States parties every two years elects nine members at a time. Meetings of the Committee have taken place in Geneva since 1986.105 Members are required to be ‘experts’ but not necessarily ‘experts on racial discrimination’,106 and the membership has often included persons with foreign policy and other ‘official’ connections. Commentators suggest that the early perception of the Convention as relating primarily to foreign rather than domestic affairs produced its effects on the composition of the Committee;107 on the other hand, the presence of diplomats in a treaty body is not unique to CERD, which is situated in the upper-middle range for its complement of active and retired diplomats.108 Successive Committees have had a mixed membership of diplomats, academics, graduates of NGO or activist sectors, and national human rights institutions, etc. No single profession dominates, or a geographical or cultural group: at different times in the life of the Committee, different regions have been over- or under-represented.109

General Recommendation (GR) 9 strongly recommends that States respect the status of Committee members as independent experts, expressing alarm at the tendency of ‘representatives of States, organizations and groups’ to put pressure on the membership, and recommending that States parties ‘respect unreservedly’ the status of Committee members. On taking office, members make a solemn declaration that they will perform duties and exercise powers as a member of the Committee ‘honourably, faithfully, impartially and conscientiously’.110 There is no formal rule of procedure requiring members to resile from proceedings when their own State is in dialogue with the (p. 45) Committee,111 although for Article 14 communications, a member should not take part in the examination of a communication if they have ‘any personal interest in the case’, or ‘participated in any capacity in the making of any decision on the case’.112 The Committee made only a brief response to the ‘Addis Ababa Guidelines’ on independence and impartiality of treaty body members113 and, while reiterating its support for the principle of independence and impartiality of members in the exercise of their duties, has not explicitly adopted the guidelines.114 In practice, members are discouraged from participating in discussions regarding their home State; the extent to which the policy of abstention is maintained correlates with the approach of the Chairman and the attitude of individual members.115 The Committee has had a predominantly male membership, with a ‘gender imbalance’ slightly more marked than in treaty bodies as a whole,116 though as a result of the elections of 2015, the Committee will have seven women members. CERD does not have a rule limiting the number of times a member may serve on the Committee.117

II.  Reporting under Article 9

Article 9(1) of the Convention obliges each State party to submit an annual report on the application of the treaty within one year of the entry into force of the Convention for the State concerned, and ‘thereafter every two years and whenever the Committee so requests’. Article 9 conditions the ‘regular’ periodic reporting and the ‘early warning and urgent action’ procedures. Early in its working life, the Committee issued a general recommendation which included the statement that States had an obligation to report ‘whether or not racial discrimination exists in their respective territories’,118 which suggests that the notion of the potential ubiquity of racial discrimination had not been assimilated by all States parties.

The Committee’s examination of State reports119 remains the centrepiece of its work. Recent practice has been to examine periodic reports in two sessions per annum, along (p. 46) with a number of ‘review countries’, examined (or discussed) in the absence of a report.120 The examination of reports places a heavy burden on the Committee, especially in view of the lack of any preparatory session; the Committee does not work in ‘chambers’ in order to expedite the handling of reports. To reduce the reporting burden on States parties, CERD accepts multiple reports in one document,121 and other time-saving strategies.122 The Convention’s two-year periodicity is the shortest reporting cycle among the UN core human rights treaties.

The practice of appointing country rapporteurs began in 1988; the responsibility of the rapporteur is ‘to prepare a thorough study and evaluation of each State report, to prepare a comprehensive list of questions to put to representatives of the reporting state and to lead the discussion in the Committee’.123 The rapporteur system emerged through proposals from a working group of the Committee and sparked off a lively debate,124 some members doubting whether the proposed system would bring the desired efficiency savings. There was concern that the diversity of expertise among CERD members would make it difficult for a particular rapporteur to cover the whole field raised in the report. Despite the initial hesitancy of members, the procedure has been thoroughly ‘normalized’; the identity of country rapporteurs is currently in the public domain.

A feature of the CERD procedure until recently was that no list of questions was sent to the state party in advance of proceedings; the claimed advantage was that this practice allowed for ‘a spontaneous, frank and wide-ranging discussion of issues’.125 CERD subsequently moved to a list of issues approach, modifying this to a ‘list of themes’.126 The list of issues/questions approach had produced situations where the Committee was deluged by information supplied at a very late stage by reporting States, rendering it almost incapable of assimilation.127 The examination of reports begins with an introduction by the representative of the reporting State, who is followed by the country rapporteur and other CERD members.128 After the completion of questioning, the representative again takes the floor and is invited to engage in further dialogue with members; the country rapporteur then endeavours to summarize the main points discussed. At its August 2014 session, following a call by the General Assembly129 and recommendations from the twenty-sixth meeting of Chairpersons,130 the Committee (p. 47) decided to adopt a ‘simplified reporting procedure’ through a gradual process, prioritizing reports that are more than ten years overdue.131

Prior to 1992, when the Committee began the practice of adopting collective ‘concluding observations’, members of the Committee expressed individual opinions that appeared in the summary records. Concluding observations of the Committee are currently structured into an ‘introduction’,132 followed, where pertinent, by ‘factors and difficulties impeding the implementation of the Convention’ (war, natural disasters, poverty, etc),133 ‘positive aspects’, and ‘concerns and recommendations’ taken together. In principle, the recommendations are confined to matters brought up in the Committee’s dialogue with the State party, though there is some flexibility in this.134 The ‘customized’ recommendations on specific issues are added to by a number of standard paragraphs—‘other recommendations’—on matters that include ratification of related treaties, follow-up to the Durban Declaration and Programme of Action,135 follow-up to concluding observations, paragraphs of particular importance, consultations with civil society, and the schedule for presentation of the next report. With some variation in vocabulary, the Committee encourages the dissemination of its observations ‘in the official and commonly used languages, as appropriate’, sometimes adding references to minority or indigenous languages.136 The concluding observations are made public at the end of the CERD session.137

Following Article 9(2), the ‘comments, if any, from States parties’ on the observations are included in the Committee’s annual report to the UN General Assembly. In practice, only a few States have chosen to offer these comments which may, however, touch on fundamental disagreements between the Committee and the State party. The practice of requesting that subsequent reports ‘address all the points raised’ in the concluding observations has stimulated responses by States which, along with their responses under follow-up, serve to enlarge the range of commentary on the Committee’s conclusions and open them up to greater challenge. In practice, the Committee works by consensus in addressing State reports; in some instances ‘consensus’ is thin in that members dispute (p. 48) particular recommendations but agree ‘not to disturb the consensus’ and decline to press for a vote.138

Reminders may be sent by the Secretary-General to States parties from which reports are overdue, according to which, if a report is not received by a specified time, the Committee will review the implementation of the Convention in the absence of a report. Initially, the procedure for review was limited and cautious and based ‘upon the last reports submitted by the State party concerned and their consideration by the Committee’.139 The reason for the initial caution was the provision in Article 9.2. that the Committee’s ‘suggestions and general recommendations’ shall be ‘based on the examination of the reports and information received from the States parties’,140 one implication of which could be to require the presentation of an initial report before any ‘review’. An imaginative move was made by the Committee in 1996 in deciding that ‘in view of the absence of an initial report, the Committee shall consider as an initial report all information submitted by the State party to other organs of the United Nations or, in the absence of such material, reports and information prepared by organs of the United Nations’.141 Review outcomes have included a set of concluding observations in standard form and even ‘provisional concluding observations’.142

III.  Follow-up to Concluding Observations

The Committee added a ‘follow-up procedure’ to check implementation of its recommendations, supplementing Rule 65 of its rules of procedure: a coordinator and an alternate were appointed by the Committee at its sixty-fifth session in 2004. Terms of reference set out in the Committee’s annual report to the General Assembly for 2005 amplify the meagre statement of responsibilities in the Rules of Procedure.143 The modus operandi of the ‘coordinator on follow-up’ includes cooperation with the respective country rapporteur. The coordinator is responsible for monitoring respect for deadlines for receipt of information set by the Committee and for sending reminders on such to the State party. In conjunction with the country rapporteur, the coordinator endeavours to analyse information received from the State party, take up with the State party the issues of further information, and make recommendations to the Committee in relation to information received or not received. The terms envisage a progress report by the coordinator to the Committee and the adoption of formal recommendations, if any.

The annual report to the General Assembly includes a chapter on follow-up to concluding observations. Three or four specific paragraphs in the concluding observations constitute the normal basis for requesting follow-up responses. In selecting paragraphs, attention focuses on which paragraphs are specific enough to permit substantive responses (p. 49) after one year. These typically include such requests as reporting on the progress of a bill through the legislature or in the setting up of a national human rights institution; generalized or large-scale recommendations are not appropriate for this procedure. Most of the responses from States parties address issues of fact and may challenge the Committee’s appreciation of the situations concerned. Information from States parties under the procedure may nonetheless stimulate Committee requests for further, clarifying explanations. Following a slow start, States have gradually become more responsive to the follow-up procedure, though absent or delayed responses are not uncommon.144

IV.  Early Warning and Urgent Action

The Committee has developed an early warning and urgent action procedure (EW/UA) to address patterns of oppression which may lead to greater violence145 or slide towards genocide,146 adopting a working paper on preventive and reactive measures in 1993.147 Further context for the move included the reports of the UN Secretary-General, An Agenda for Peace,148 and the report to the General Assembly for 1992.149 As summarized in subsequent annual reports of the Committee, efforts to prevent serious violations would include early-warning measures and urgent procedures. The distinction between the types of measures in the working paper was explained by one of its promoters as ‘a distinction between early-warning measures for preventing structural problems from escalating into conflicts and urgent action measures for situations requiring the immediate attention of the Committee’.150 The Working Paper envisaged the addressees for expressions of concern and recommendations, in addition to the State party concerned, to include the special rapporteur on contemporary forms of racism, other human rights bodies dealing with the question, and the Secretary-General, ‘along with a recommendation that the matter be brought to the attention of the Security Council’.151

CERD adopted new early warning and urgent action guidelines in 2007.152 The guidelines recall the 2004 ‘Stockholm’ speech of the Secretary-General on prevention of genocide and refer to persistent patterns of racial discrimination ‘in some cases with genocidal dimensions’.153 Most situations addressed by the guidelines fall short of genocide, and the ‘indicators’ for triggering the procedure include the important qualification that, since such indicators ‘may be present in situations not requiring immediate (p. 50) attention to prevent and limit serious violations of the Convention, the Committee shall assess their significance in light of the gravity and scale of the situation’.154 Subject to the ‘gravity and scale’ criterion, the list of indicators155 is broadly similar to that of 1993. References to encroachment ‘on the traditional lands of indigenous peoples or forced removal of these peoples from their lands’, and ‘polluting or hazardous activities that reflect a pattern of racial discrimination with substantial harm to specific groups’ strike new notes. The list of potential addressees is expanded and varied in the 2007 text to include the Human Rights Council, the Special Adviser on the Prevention of Genocide, and regional intergovernmental organizations and human rights mechanisms.156 The bulk of situations brought under the procedures are dealt with by letters sent by the Chairman to the State party concerned; other, ostensibly more serious cases may be the subject of a Committee ‘decision’, or a ‘statement’, published in full in the annual report to the General Assembly.157

There has been a gradual change in the profile of cases dealt with under the procedure,158 which was initially focused to a significant extent on the fallout from conflicts in the former Yugoslavia and Central Africa; events regarding Israel, and the situation regarding Native Title in Australia, have also been prominent.159 Many (most) current cases refer to indigenous peoples. Applying the ‘gravity and scale’ criterion, it may be argued that threats that might not disturb a larger group can result in potentially irremediable cultural and material losses for many indigenous societies, particularly those of smaller scale.160 The Committee has also addressed issues regarding the Roma, generalized ethnic violence as well as violence or discrimination against foreigners and refugees, and it tends to comment on a conflict wherever it senses the presence of an ‘ethnic’ element. The statement regarding violent conflict in Libya referred to the impact on ‘non-citizens, migrant populations, migrant workers, refugees and persons belonging to other minority groups’,161 together, in the perception of the Committee, constituting the ethnic dimension to engage the Convention.

(p. 51) Knowledge of this procedure has steadily grown amongst NGOs and community groups. The procedure does not depend on a State having submitted a report and is typically initiated by an NGO/community organization, though the Committee (or a member) may also engage the procedure ex proprio motu.162 The procedure functions under Article 9(1)(b) of the Convention, which refers to a Committee power to request a report at any time. States may sense that the procedure is a loose cannon and challenge its application as well as the substance of the claim,163 especially where they have not accepted the individual communications procedure under Article 14. Unlike the latter, early warning does not employ formal admissibility criteria such as exhaustion of domestic remedies. Available early warning/urgent action information, summarized by the Secretariat, is processed by a working group, the conclusions of which are presented to the plenary for discussion and ratification. In many cases, the Committee’s concerns or admonitions stimulate a dialogue with the State party concerned. In some instances the procedure merges with follow-up or may taper off to a request that information be included in the next periodic report of the State party.

V.  Sources of Information

Unlike the CRC164 and the CMW,165 ICERD does not expressly envisage a role for NGOs, referring only to information received from States parties as the basis for examination of State party reports by the Committee. In its early operation, CERD experienced difficulties in how to treat information provided by NGOs or media reports, and ‘the debate about permissible sources continued intermittently for twenty years’.166 Matters came to a head in 1991 when the Committee decided that members, in addition to information from State reports, ‘must have access, as independent experts, to all other available sources of information, governmental and non-governmental’.167 The use of a variety of sources of information appears squarely within the Convention in that the (p. 52) ‘examination’ of reports in Article 9 strongly suggests that the information they contain should be tested against external reference points, otherwise the ‘examination’ would be drained of significance. However, while NGOs furnish indispensable services to the Committee, their information is subject in principle to appraisal and evaluation by members on a similar basis to other information.168 In addition to the submission by NGOs of written material to the Committee, including shadow/alternative reports, the briefing of Committee members by NGOs through informal lunchtime meetings has become part of the regular modus operandi. In 2011, CERD added a further practice of hearing submissions at the beginning of the week from NGOs on States reporting in that week.169

The efforts of civil society and national and international NGOs are vital to Committee work since its research capacity is limited and in situ visits to reporting States are not a part of its regular practice.170 NGOs contribute best when their submissions are researched and referenced in a verifiable manner, when they track assertions in the State report, and consolidate their submissions in a limited number of documents. Overwhelming the Committee with documentation may result in useful points vanishing into the ether. Recent experience, including lobbying of the Committee, suggests that national and international NGOs are becoming more attuned to CERD processes and its mandate and that the dialogue with the Committee may be an event of national significance. The maintenance of web pages by the Secretariat has improved the visibility of CERD (and other treaty bodies) to civil society and the development of webcasting promises the same. The Committee has recognized the contribution of accredited national human rights institutions (NHRIs), recommending that States parties establish them,171 and it has developed modalities for their accommodation in reporting and other procedures.172

Information presented to the Committee currently encompasses reports emanating from various bodies, including UN agencies, special procedures, and the universal periodic review (UPR) process. Sources from regional bodies may also appear though the emphasis is placed on United Nations materials. Written reports are supplemented by in personam appearances of special rapporteurs, UN independent experts, etc, while the International Labour Organization (ILO) and the United Nations High Commissioner for Refugees (UNHCR) engage the Committee on a regular basis.173 Country rapporteurs are presented by the Secretariat with the most extensive ‘package’ of materials for their State review; all members of the Committee are at liberty to peruse such information.

(p. 53) VI.  General Recommendations

By March 2015, thirty-five general recommendations had been adopted by the Committee, dealing with obligations of States parties under specific articles or principles of the convention,174 aspects and modalities of discrimination,175 fields of concern for the principle of non-discrimination,176 institutions to address racial discrimination,177 particular human groups or categories,178 as well as a general recommendation on the right to self-determination,179 and follow-up to the Durban World Conference,180 and the Durban Review Conference.181 Some initial recommendations were prompted by the reluctance of States to admit the existence of racial discrimination on their territories.182 Other recommendations are prompted (in part) by reservations made to the Convention,183 the situation in particular States or groups of States, the prevalence of certain patterns of discrimination, and the vulnerable situation of specific communities.

The general recommendations of the Committee vary considerably in length and style with a marked tendency in later recommendations towards increased word count. General recommendations may base themselves more or less exclusively on the provisions of the Convention, recalling the preamble as well as the operative articles;184 the travaux préparatoires have also been drawn upon.185 Many later general recommendations recall earlier ones, providing continuity and consistency of approach to enhance authority; concluding observations may be recalled in a similar process.186 GR 32 on special measures is contextualized as being based on ‘the Committee’s extensive repertoire of practice referring to special measures…practice includes the concluding observations on the reports of States parties…communications under Article 14 and earlier general recommendations’, listing GR 8 (on Article 1), GR 27 (on the Roma), and GR 29 (discrimination based on descent).187 Recommendations may also be offered as clarifications of Convention concepts.188

(p. 54) Developments elsewhere in international law generally189 and in human rights in particular may be cited specifically, and in other cases have clearly influenced the drafting of the text; background conditions relating to ethnic conflicts,190 the threat of organized violence, or the resurgence of authoritarian ideologies have also been cited as justifying the adoption of a recommendation.191 GR 23 on indigenous peoples echoes language used in the (then) UN draft declaration on indigenous peoples and ILO Convention No. 169;192 GR 27 on the Roma is at once influenced by debates elsewhere and contributes to such debates, while prospectively acting as a catalyst to further action; GR 32 on special measures was influenced by, inter alia, GR 25 of CEDAW;193 GR 35 on racist hate speech was spurred on in part by the emergence of General Comment 34 of the Human Rights Committee on freedoms of opinion and expression. Some general recommendations explicitly articulate the Committee’s approach to the interpretation of the Convention, employing the metaphor of ‘guidance’—hence GR 32 describes its purpose as ‘to provide, in the light of the Committee’s experience, practical guidance on the meaning of special measures under the Convention in order to assist States parties in the discharge of their obligations…Such guidance may be regarded as consolidating the wealth of Committee recommendations for States parties.’194 According to one reading, the Committee is competent to interpret the Convention insofar as it is required for the performance of its functions: ‘Such an interpretation per se is not binding on States parties, but it affects their reporting obligations and their internal and external behaviour.’195

The development of a general recommendation is largely a matter of individual initiative to persuade colleagues to approve and refine the proposal collectively. The general recommendations on the Roma, descent/caste, non-citizens, special measures, discrimination against people of African descent, and combating racist hate speech, followed from open ‘thematic discussions’;196 it has not been CERD practice to call for public comments on draft recommendations. The general recommendations have endeavoured to elaborate and clarify many Convention provisions; some issues suggested as appropriate for a general recommendation have not seen the light of day.197 The utilization of the general recommendations is interstitial: the Committee will expect States parties to conform to patterns set out in the recommendations and will question State representatives in the light of the accumulated guidance in the recommendations. (p. 55) The Committee has travelled some distance since some members stated with confidence that it had no mandate to interpret the Convention;198 it has, however, been reticent in arrogating authority in this respect.199

VII.  The Inter-State Dispute Procedure: Articles 11–13

The inter-State dispute procedure set out in Articles 11–13 of the Convention which, unlike the communications procedure under Article 14, is not optional, has not been tested in practice; correspondingly, the provisions of the Convention are elaborated only to a minor extent by the rules of procedure.200 The procedure involves reference to the Committee under Article 11 of a claim by one State party that another State party ‘is not giving effect to the provisions of the Convention’, and, if the matter is ‘not adjusted to the satisfaction of both parties’, a second reference to the Committee may follow subject to the application of the non-exhaustion of domestic remedies rule ‘in conformity with the generally recognized principles of international law’. Article 12 envisages the appointment by the CERD Chairman, with the unanimous consent of the parties to the dispute, of an Ad Hoc Conciliation Commission ‘comprising five persons who may or may not be members of the Committee’ with its own Chairman and rules of procedure.201 Article 13 outlines the concluding stages of the procedure: a report to the CERD Chairman ‘containing such recommendations as it may think proper for the amicable solution of the dispute’; the disputants then inform the CERD Chairman whether or not they accept the Commission’s recommendations, with all other parties to the Convention being informed in due course.

In light of the reality of its general non-invocation, and unlike the under-functioning procedure under Article 15, no chapter of the annual report is devoted to the inter-State dispute system. Banton refers to a flurry of discussion around the sixth periodic report of Syria as to whether an Article 11 notification had been received.202 A suggestion was made that if a State party made an allegation against another State even without specifically citing the procedure, the Committee could treat this as a communication under Article 11; this was overruled by the Chairman in the face of, inter alia, an express denial by the alleging State that it was invoking Article 11. Banton nonetheless refers to a series of ‘disguised interstate disputes’ which have punctuated the life of the Committee involving such as Cyprus, Panama, and the United States (US), and a cluster of States with regard to Israel;203 sundry other disguised disputes may arise when a part of the territory of a reporting State is controlled by elements assumed to be supported by another State. GR 16 on Article 9 nonetheless reminds States parties that Article 11 ‘is the only procedural (p. 56) means available’ to States for drawing to the attention of the Committee when they consider that some other State is not giving effect to the provisions of the Convention.204

VIII.  The (Optional) Communications Procedure: Article 14

The hesitations of representatives in the drafting of the Convention regarding the innovative nature of then Article 14 procedure will be recalled. The fears of the representative of Upper Volta in the drafting of the Convention that if a communications procedure were included, ‘the proposed committee might be swamped by thousands of petitions which it would be unable to handle effectively’,205 has not been borne out. Of the fifty-seven countries which have made the optional declaration under Article 14, communications have emanated from fewer than a quarter of such States parties, while the Committee adopted its opinion on only a fifty-sixth communication in 2015.206 Typically, the Committee handles only a small number of cases annually. Recommendations by the Committee urging States parties to accept the procedure have had limited effect.

Communications are in practice submitted to the Secretariat of the Office of the High Commissioner for Human Rights and registered with the petitions team. A model complaint form facilitates the complainant, who is expected to provide basic information regarding identity,207 the State concerned, the Convention articles alleged to be violated, the steps taken to exhaust domestic remedies, or in the words of the model complaint form, ‘to obtain redress within the State concerned’.208 If the information presented is incomplete, further particulars may be requested before the complaint is registered.209 A decision to register a case may be made pending the receipt of further information.210 Except in the case of duly verified exceptional circumstances, the communication must be submitted within six months ‘after all available domestic remedies have been exhausted, including, where applicable, those included in paragraph 2 of article 14’.211

The author of the communication is invited to state whether they are submitting on their own behalf as alleged victims of discrimination or on another’s behalf. In the latter case, the complainant should present the authorization from the person concerned or, if he/she is not authorized, explain the nature of the relationship to the alleged victim and why the author considers it appropriate to bring the case on their behalf.212 The normal procedure in cases where an author represents a victim is for the author to present a power (p. 57) of attorney from the victim to act on their behalf;213 where the victim is detained or has disappeared they may be represented without such a power.

The Secretary-General may request clarification in relation to a communication of the ‘extent to which the same matter is being examined under another procedure of international investigation or settlement’;214 the rule relates to information and is not included in the ‘conditions for admissibility of communications’.215 Among the States parties declaring acceptance of the procedure, a number have included in their declarations a reservation that ‘this procedure applies only insofar as the Committee has established that the same matter is not being examined, or has not been examined by another international body of investigation or settlement’.216 Occasionally, a State party questions admissibility because a similar case had been filed with another body. In Koptova v Slovak Republic, the Committee responded to a claim by the State party that a similar case had been filed with the European Court of Human Rights, noting that the author of the communication was not the petitioner before the European Court and that, even if she had been, ‘neither the Convention nor the rules of procedure prevented the Committee from examining a case that was also being considered by another international body’.217

It may also be noted that, regarding recourse to procedures outside the Convention, Article 16 provides that the provisions of the Convention concerning the settlement of disputes or complaints ‘shall be applied without prejudice to other procedures for settling disputes or complaints in the field of discrimination’ laid down in instruments and conventions of the United Nations and its specialized agencies, ‘and shall not prevent the States parties from having recourse to other procedures for settling a dispute in accordance with general or special international agreements in force between them’. As noted earlier, the article originated from a proposal by Ghana, Mauritania, and The Philippines and was little discussed. While the phrasing of the article relating to procedures for ‘the settlement of disputes or complaints’ within the Convention is clearly adequate to cover individual as well as inter-State complaints, the second part of the sentence refers only to ‘the States parties…having recourse’ to procedures outside the Convention and is silent on recourse for individuals or groups of persons. Lerner, following Schwelb, suggests that the article be given a liberal interpretation, so that ‘if States parties would prefer to have recourse to other procedures in force between them, the Convention would not be an obstacle to this’.218 The same would apply to individuals who prefer to seek remedies other than those in the Convention.219

(p. 58) The rules of procedure for Article 14 envisage the establishment of a pre-sessional working group of the Committee.220 In practice: the Committee addresses the communications in full session with interpretation provided. Meetings to examine communications are closed,221 though they can be open to the public in cases of general issues relating to the procedure should the Committee so decide.222 The Committee is mandated to ‘decide as soon as possible whether as communication is admissible’,223 and can request additional written information or clarifications.224 If admissibility is disputed on the ground of non-exhaustion of domestic remedies, the State party is required to give details ‘of the effective remedies available to the alleged victim in the particular circumstances of the case’;225 decisions on inadmissibility can be reviewed.226 Interim measures may be recommended by the Committee ‘to avoid possible irreparable damage to the person or persons who claim to be victim(s) of the alleged violations’.227 The formulation of the views of the Committee is expressed as the formulation of an ‘opinion’,228 a term that is not used in Article 14, which refers instead to ‘suggestions and recommendations’. In practice, if an individual member wishes to present an individual opinion, the member will be required to draft the opinion without the assistance of the Secretariat.

A complex of admissibility issues arose in Dragan Durmic v Serbia and Montenegro229 where in light of a series of ‘tests’ by a law centre of discrimination against Roma in public places in Serbia, individuals of Roma origin had been refused entry to a discotheque, while non-Roma individuals were admitted. Regarding time limits for bringing a claim,230 the Committee recalled that communications must be submitted to it, except in the case of duly verified exceptional circumstances, within six months after all available domestic remedies have been exhausted. It observed that the courts of Serbia and Montenegro had not yet considered the matter and therefore the six-month rule had not yet begun to run.231 The discotheque incident took place before the optional declaration under Article 14, leading to an objection regarding admissibility ratione temporis, in response to which the Committee noted that the violations were ongoing and had continued since the date of the incident and after the State party’s declaration under Article 14, thus the claim was admissible. Regarding remedies unduly prolonged, the Committee observed that the (p. 59) petitioner had sought to have his claims of violations of the Convention by the State party adjudicated for over four-and-a-half years, since the incident in February 2000, and the State party itself had conceded that the prospect of an early review was unlikely. Accordingly remedies were unduly prolonged and their ‘non-exhaustion’ did not bar the applicant.232

The remedies must be potentially effective to justify the duty to exhaust them.233 A line of cases makes the point that in many cases of alleged discrimination, civil remedies may not be appropriate in cases involving criminal offences in that the former lead only to compensation and not to criminal conviction;234 in light of the public nature of crime, private prosecutions may also be inappropriate.235

On the other hand, ‘mere doubts’ about the effectiveness of remedies do not absolve a complainant from pursuing them.236 Domestic remedies must be exhausted by the petitioners ‘and not by other organizations or individuals’.237

Article 14(1) refers to the Committee’s competence to receive and consider communications from ‘individuals or groups of individuals’ within its jurisdiction claiming to be victims. The provision has exercised the committee in a number of cases, particularly with regard to ‘groups of individuals’.238 In POEM and FASM v Denmark, the question of capacity to bring a claim was addressed, the petitioners contending that Article 14 does not prevent NGOs from submitting claims: POEM and FASM were NGOs which represented a group of people and can thus bring claims under Article 14. They also contended that Article 14 should be interpreted along the lines of the European Convention on Human Rights which expressly provides for the right of NGOs to apply to the Court.239 CERD did not comment, but noted only that the case in Denmark had not been brought by the organizations but by the Documentation and Research Centre (DRC). CERD therefore said that ‘domestic remedies have to be exhausted by the petitioners themselves and not by other organizations or individuals’, thus the communication was declared inadmissible.240

In Documentation and Advisory Centre on Racial Discrimination v Denmark241 the Centre claimed victim status under Article 14. The case concerned an advertisement for a ‘Danish foreman’ for a construction project in Latvia; this was objected to by the Centre, (p. 60) claiming it discriminated on the grounds of national or ethnic origin. The communication was submitted by the Centre represented by its head of the board of trustees. The complaint alleged that although she did not herself apply for the job, ‘she should be considered a victim of the discriminatory advertisement, since it would have been futile for her to apply for the post’. Moreover, the petitioner itself—the Centre—should be recognized as having status of victim since it represented a large group of persons of non-Danish origin discriminated against by the job advertisement. The Centre pleaded in support of victim status its specific mandate on racial discrimination, the ethnic composition of its board of trustees, and its record in protecting victims, so that ‘it should be considered as a victim or as representing an unspecified number of unidentified victims’.242 The Committee concluded that it did

not exclude the possibility that a group of persons representing…the interests of a racial or ethnic group may submit an individual communication, provided that it is able to prove that it has been an alleged victim of a violation…or that one of its members has been a victim, and if it is able…to provide due authorization to this effect.243

It was noted that no member of the board of trustees had applied for the job, while the petitioner had not argued that any of the members of the board, or another identifiable person whom the petitioner would be authorized to represent, had a genuine interest in, or showed the necessary qualifications for, the vacancy.244 It did not automatically follow that persons not directly and personally affected by discrimination may claim to be a victim: ‘Any other conclusion would open the door for popular actions (actio popularis) against the relevant legislation of States parties.’245

In the Jewish Community of Oslo et al. v Norway246 three organizations and a number of individuals complained to the Committee following the acquittal of a pro-Nazi speaker on charges under the Norwegian Penal Code. The authors claimed they were victims because of the general inability of Norwegian law to protect them from dissemination of anti-Semitic and racist propaganda, and because of their membership of a particular group of potential victims facing an imminent risk of racial discrimination.247 The Committee agreed with the authors’ submissions, considering that, in the circumstances, they had established that they belong to a category of potential victims.248 Additionally, the Committee took the view that it:

did not consider the fact that three of the authors are organizations posed any problem to admissibility…Article 14…refers specifically to the Committee’s competence to receive complaints from ‘groups of individuals’…to interpret this…to require that each individual within the group be an individual victim of an alleged violation, would be to render meaningless the reference to ‘groups of individuals’…bearing in mind the nature of the organizations’ activities and the classes of person they represent,249 they too satisfied the ‘victim’ requirement in Article 14.250

(p. 61) The petition from the organization in TBB Turkish Union v Germany was admitted by the Committee which found victim status in light of (a) the organization’s activities and aims in furtherance of equality and non-discrimination, (b) the group of individuals it represents ‘namely persons of Turkish heritage in Berlin and Brandenburg’, and (c) that it had been directly affected by the impugned speech critical of Turks in Germany. The Committee therefore considered that ‘the fact that the petitioner is a legal entity is not an obstacle to admissibility’.251

The question of ‘potential victims’ also arose in Koptova v Slovakia, a case concerning local authority resolutions banning particular Romany families from settling in a district. The author of the communication, a Roma, could, in the view of the Committee, be considered a victim ‘since she belonged to a group of the population directly targeted by the resolutions in question’.252 It was stated that, although the wording of the Municipal Council resolutions referred explicitly to members of Roma communities previously domiciled in the concerned municipalities, ‘the context in which they were adopted clearly indicates that other Romas would have been equally prohibited from settling’.253 The author, who had not entered the municipality since the anti-Roma resolutions had been adopted, said this was in part because she feared that they could be enforced against her.254 The issue of potential victims was also taken up in Jewish Communities, where the Committee aligned itself with the views of the Human Rights Committee and the European Court of Human Rights.255

From its earliest Article 14 decisions,256 the Committee has made ‘suggestions and recommendations’ even in cases where no violation was found.257 In Z.U.B.S v Australia where, following the finding that the Convention had not been violated, it was suggested that ‘the State party simplify the procedures to deal with complaints of racial discrimination, in particular those in which more than one recourse measure is available, and avoid any delay in the consideration of such complaints’.258 In Hagan v Australia, another case of non-violation, the recommendation was to remove a racially offensive sign and inform the Committee of the action taken.259

(p. 62) IX.  Follow-up to Communications

CERD is a relative latecomer to an explicitly formulated follow-up communications to its Article 14 opinions along the lines of that established by the Human Rights Committee in 1990.260 In 1993, L.K. v the Netherlands requested information on ‘follow-up’ to an Article 14 decision in the next periodic report of the State party,261 in application of rule 95.5 of the rules of procedure.262 At its sixty-sixth session, CERD requested the Secretariat to prepare a paper on the modalities of follow-up to the procedure under Article 14. The request was made in the context of the discussion in L.R. v Slovakia263 where, having found violations of several articles of the Convention, the Committee stated that it wished to receive, within ninety days, information from the government of the Slovak Republic about the measures to be taken to give effect to the Committee’s Opinion. In 2005, at its sixty-seventh session, the Committee decided, ‘[i]n light of the positive experiences of other treaty bodies’264 to add two new paragraphs to the rules of procedure.265 The L.R. formula, with minor variations, has been used in subsequent cases. The first rapporteur on follow-up to communications was appointed in 2006266 and the first report, reflecting all cases in which the Committee found violations or made suggestions and recommendations in the absence of a violation, was included in the annual report of the Committee.267 The exercise in tabulation, updated versions of which are included in subsequent annual reports, indicates whether follow-up replies are considered satisfactory ‘in that they display the willingness of the State party to implement the…recommendations’, or unsatisfactory ‘because they do not address…the recommendations at all or only relate to certain aspects’.268 Follow-up assessments may be challenged by States parties, sometimes vigorously.269

X.  Petitions from Inhabitants of Trust and non-Self-Governing Territories: Article 15

Article 15 in its final form aspires to the eventual disappearance of colonialism—‘pending the achievement of the objectives’ of the Colonial Declaration—which also suggests a lessening in importance over time of the Article 15 procedure itself: this has proved to be (p. 63) the case.270 The reporting procedure under the Article 9 procedure has been immeasurably more successful in eliciting information from all States parties with dependent territories than the special procedure of Article 15. The essence of the envisaged procedure is that the Committee will receive copies of petitions from the inhabitants of non-self-governing and trust territories and all other territories to which the Colonial Declaration applies to the relevant bodies of the United Nations, as well as reports on measures applied by the administering powers,271 in both cases on matters ‘directly related to the principles and objectives’ of the Convention, and will express opinions and make recommendations thereon. A summary of petitions and reports, along with the opinions and recommendations of the Committee, is included in the annual report.272 The article does not limit the reach of the provision to States parties to the Convention; on the other hand, ‘the Authorities furnishing the information to the United Nations bodies…are not all under legally binding obligations to adopt the anti-discrimination measures envisaged in the Convention or report on them’.273

The relevant chapter in the report has, however, become formulaic, reciting that it is difficult for the Committee to fulfil its obligations under the article comprehensively owing to the fact that reports of UN bodies ‘contain only scant information relating to the principles and objectives of the Convention’; this is despite requests from the very first session of the Committee attempting to elicit information. The recognition of difficulties with the procedure may be followed by noting significant ethnic diversity in the territories concerned that warrants close watch on incidents and trends which reflect racial discrimination and greater efforts to raise awareness of the Convention.274 The recitals conclude with reminders to States parties administering the territories to include details on the implementation of the Convention in such territories in their periodic reports, a stance that appears to confirm the marginalization of Article 15. Diaconu refers to the lack of response to repeated requests from CERD to the UN Secretary-General for an explanation of the non-use of the Article 15 procedure by UN bodies.275

Committee practice encourages the inclusion in reports under Article 9 of the Convention of information on non-self-governing and other territories under the jurisdiction of States parties,276 especially in light of the virtual non-functioning of the special procedure under Article 15.

(p. 64) Under Article 9, issues concerning dependent territories of administering powers have been raised, prompting the Committee to request information on ethnic composition, on how the Convention is applied, on the progress of legislation against racial discrimination, and on including respect for human rights in constitutional arrangements while having due regard to local culture and customs.277 Failure to provide information on the application of the Convention opens the State party to censure by the Committee.278

D.  Comment

The drafting of the Convention generated lively argument on the proposed supervisory mechanism, concentrated principally in the Third Committee of the General Assembly, where discussions were preceded by an illuminating exchange of general views. The representatives of The Philippines and Ghana introduced and explained the basic structure of reports, inter-State claims, petitions, and a dispute settlement mechanism envisioned for ‘the first major international agreement on human rights to emerge from the United Nations, and the first to be preceded by a declaration’.279 Ghana explained that without implementation clauses, ‘the draft Convention could be but a declaration, which would contribute nothing new to the world’,280 to which the UK added that ‘agreement on principles was not enough. States were…obliged to go further, under the preamble and in Articles 55 and 56 of the Charter.’281 The Committee that eventually became the Committee on the Elimination of Racial Discrimination emerged from proposals that largely reflect its present shape,282 a result that was not without alternatives in light of preferences for ‘a special organ composed of States parties’,283 or an enhanced role for national committees which ‘would submit to the Secretary-General certified copies of their registries’,284 or screen petitions before forwarding to an international committee.285 Of the implementation mechanisms, the reporting procedure was the least controversial,286 perhaps because it did not appear particularly threatening to States’ interests; the inter-State procedure was discussed at a length that appears inordinate in light of its (hitherto) non-activation by the Committee;287 the petitions (p. 65) procedure appeared alarming to some delegates,288 but ‘valuable and effective’ to others.289

The drafting demonstrates ‘the importance which each State attached to its national sovereignty’,290 which inhibited some from supporting the (not entirely novel) concept of an international body with the potential to criticize States, even if not designated as a court.291 Introducing the consolidated draft that replaced the individual drafts by Ghana, Mauritania, and The Philippines,292 the representative of Ghana explained that the clauses were to be based on generally accepted principles of international law and should not violate State sovereignty. While accession to any treaty entailed a partial loss of sovereignty and natural rights that sometimes went beyond national boundaries, the right of petition ‘should not be internationalized so as to undermine the sovereignty of States’, and ‘disputes should be settled in a spirit of mutual understanding’.293 The drafters of the Convention were able to draw upon only a limited number of examples of supervision systems, notably those of the ILO and the United Nations Educational, Scientific and Cultural Organization (UNESCO),294 a feature that highlights the pioneering quality of the Convention mechanisms.

Half a century following the adoption of the Convention, the existence of a multiplicity of supervision systems is an outstanding feature of the international human rights landscape. Treaty bodies and allied mechanisms at UN and regional levels are standard, accepted fixtures in the legal firmament, even if their output is not always wholeheartedly welcomed by States. While sovereignty considerations may have diminished force, the operation of human rights at the UN is characterized more by the accumulation of persuasive quasi-judicial and reporting procedures rather than formal court processes, despite occasional ruminations on setting up a world court on human rights. The complex of mechanisms has nonetheless been pivotal in the development of an expansive network of standards that contributes to the formation of customary law even if specific decision-making procedures do not possess a legally ‘binding’ quality. In addition to the growth of justiciable procedures, there has also been a shift in reporting mechanisms from a listening mode to active monitoring, while the body of ‘interpretative’ general comments (recommendations) constantly increases. In the case of treaty bodies, decades of reflection have (p. 66) focused on improvements in their overall efficiency through coordination and convergence of monitoring approaches,295 and even the merger of committees into a ‘unified standing body’;296 current UN activity focuses on ‘strengthening’ rather than merging the monitoring systems of individual treaties.297

In light of the geopolitical changes referred to earlier, the tension between conceptions of sovereignty and internationalized procedures colours the proceedings of the Committee more faintly than before. The Committee initially adopted cautious approaches to the interpretation of the mechanisms. As new States consolidated their sovereignty and a post-Cold War ambiance emboldened the Committee, sterner stances on the implementation of the Convention were gradually embraced. The ‘suggestions and general recommendations’ in the Convention have mutated into focused and lengthy concluding observations with an increasingly sharp critical edge. Critiques of implementation by States parties can be more robust than the drafters of the Convention might have appreciated, even when the language of ‘violation’ is avoided and ‘constructive dialogue’ preferred.298

Despite the ethic of cooperation between State parties and the treaty body, critical reactions from sovereign States are not uncommon. The facility granted in Article 9(2) for States parties to comment on the ‘suggestions and general recommendations’ of the Committee has been liberally used. The comments have ranged from mild disagreement on points of detail to suggestions that the Committee has exceeded its mandate through over-generous interpretation of standards, trespassing on the sovereign prerogatives of States. In some instances, States have complained that the concluding observations do not faithfully reflect the dialogue with the Committee.299 The performance of the Committee has also drawn allegations of having ‘integrated political bias’ against certain States or groups of States.300 The ‘charge’ was vigorously rejected by the Committee in a set of published comments dedicated to vindicating the Committee’s approach to the ‘principles of objectivity, equality and fairness to States’. The comments recall that Committee members bring expertise to the Committee in the light of their particular background and experience, the result of which is ‘a dynamic pluralism’, the ‘checks and balances’ of which (p. 67) minimize the risk of bias.301 It is evident from this and other episodes recounted in the present work that the perceived integrity and objectivity of treaty bodies is a primary qualification and justification for their existence.

The review procedure represented a move towards improving compliance with obligations under Article 9, while the early warning and urgent action procedure has made imaginative use of the facility in Article 9(1)(b) to request a report and further information outside the standard of two-year period. While there is a degree of overlap between early warning/urgent action and communications under Article 14, the Committee has, in taking the view the Convention permits both approaches, underlined their different objectives and methodologies. The reference to ‘further information’ in Article 9(1)(b) may be interpreted to embrace further information stemming from the periodic reports—hence the follow-up procedure—as well as further information after the initial early warning/urgent action engagement with the State party. The early warning/urgent action procedure does not employ an admissibility arm equivalent to that in Article 14. Such a formal requirement would sit awkwardly with the facility for an individual Committee member to raise an issue; in practice the Committee relies on the good sense of its working group to act as a screening device for potentially incompatible applications.

The early warning/urgent action procedure strengthens the protective armoury of the Convention and elaborates its collective dimension in a wide range of contexts: the engagement of the procedure with the rights of indigenous groups is a notable feature of current practice. Critical voices, including among Committee membership, have suggested that, in developing an apparent pre-eminent concern with indigenous peoples, the procedure has deviated from its original purpose of addressing large-scale threats or rights violations; informal proposals have been made to institute a sub-committee or working group on indigenous issues. However, most members accept that the procedure represents a valuable addition to the mechanisms operated by the Committee as one open to all groups whose situations fall to be considered under the 2007 criteria. The early warning procedure stands as a justifiable application of monitoring possibilities under Article 9.

Large-scale threats of human rights violations continue to be addressed by the Committee under various procedural arms in addition to early warning, including the ‘standard’ reporting procedure under Article 9. The reporting procedure reflects on the situation in the whole of the State party, addressing the evidence of discrimination, the range of protagonists, the experience of victims, the legal framework in toto, and the response of the authorities—including the legal and social reaction to discrimination, and the action plans and anti-discrimination strategies. In their network of recommendations, concluding observations encapsulate the past, present and possible futures of key populations groups, (p. 68) the bellwethers of racial discrimination. Filigreed, smaller-scale instances of discrimination generally fall to be addressed under Article 14.

On the Article 14 procedure, the understanding of the phrase ‘groups of individuals… claiming to be victims’ for the purpose of submitting communications, has developed incrementally. In practice the phrase ‘groups of individuals’ has been evoked principally in the context of petitioning by anti-racist organizations, usually anti-discrimination advocacy organizations in their home countries.302 The status of a petitioner as a legal entity is not an obstacle to admissibility.303 The victim requirement for an organization may be satisfied on the basis of its activities and aims and the groups of individuals it represents, and the organization can be treated formally as a victim even if each individual member of such an organization does not count as a victim.304 For Article 14 purposes, the Committee has not sharply distinguished discrimination against the organization qua organization and discrimination against the organization’s racial or ethnic ‘constituency’, but has tended to synthesize the two in a common appreciation of victim status. The Committee tends to reiterate points regarding the activities, aims, and nature of an organization as dispositive of questions as to ‘representativity’,305 which may in turn be challenged by States parties.306 The addition of ‘groups of individuals’ has not opened out the communications procedure to the full flow of group concerns that characterizes procedures under Article 9 or, presumptively, Articles 11–13;307 Article 14 practice has produced only a modest amplification of the collective dimension of the Convention, though the importance of the practice should not be underestimated, considering that in cases of racial discrimination, an individual victim may stand as a symbolic ‘representative’ of all other members of a racial/ethnic group.

‘Victims’ for the purposes of Article 14 also include potential victims from an affected community, a feature that also resonates with the sense that racial discrimination against individuals indirectly targets groups. The ‘victim’ perspective for Article 14 has been maintained by the Committee, and actio popularis deflected, despite occasional pleas such as that by counsel for the petitioner in Koptova, who argued, in relation to resolutions barring Roma persons from a municipality, that the Committee ought to have jurisdiction to consider claims ‘relevant to the general or public interest, even in exceptional cases where the victim requirement has not been satisfied…the promulgation and maintenance in force of resolutions banning an entire ethnic minority from residing or entering an (p. 69) entire municipality is precisely the kind of case that should satisfy a “general interest” rule’.308 Issues of general interest are part of the regular diet of dialogues under Article 9.

The Committee has engaged in heart-searching as to why the communication procedure has not attracted more attention in States parties that accept the Article 14 option, and why only one-third of States parties (approximately) have opted in. Part of the answer may lie in the unpalatability of a finding of racial discrimination,309 especially but not limited to States that were prominent in the anti-colonial and anti-apartheid struggles, the embers of which still burn. Other aspects limiting the appeal of Article 14 include the availability of alternative international procedures, the weakness of civil society in many States parties, and continued misunderstandings as to the nature and scope of racial discrimination, still deemed irrelevant by some States parties as a contributor to social tensions on home soil.310 It is arguable that addressing racial discrimination as a large-scale social phenomenon is better served by the holistic, dialogic approaches associated with other Convention procedures, compared to a judgmental procedure of limited scope such as Article 14, hemmed in by procedural constraints. On the other hand, Article 14 practice is responsive to the plight of named victims, clarifies interpretative minutiae, and lends a sharper edge to the deliberations of the Committee.

Current Committee practice involves recurrent citations of general recommendations. The CESCR has defined the purpose of issuing general comments as (a) to make the experience gained so far through the examination of States parties’ reports available for the benefit of all States parties, in order to assist and promote their further implementation of the Covenant; (b) to draw the attention of the States parties to insufficiencies disclosed by a large number of reports; (c) to suggest improvements in the reporting procedures; and (d) to stimulate the activities of the States parties, international organizations, and the specialized agencies concerned in achieving progressively and effectively the full realization of the rights recognized in the Covenant.311 As with other treaty bodies, the general recommendations of CERD have moved from clarifications of procedure towards analyses of substantive norms and the application of rights and obligations to sundry categories of persons and groups. Only some of the basic concepts in the Convention have been subjected to analysis. Notable absences include the concept of ‘race’ itself, the relationship between non-discrimination and minority rights, the jurisdictional, territorial reach of the Convention, the notion of anti-racist education—remedied to a limited degree by GR (p. 70) 35—and the application of the principle of free, prior and informed consent in the case of indigenous peoples.

Although its general recommendations draw upon the work of sister treaty bodies, CERD has not taken the step of drafting a recommendation in conjunction with another treaty body, as has been done, for example, by CEDAW and CRC.312 Areas such as control of extraterritorial corporate activity and education appear eminently suitable for a joint general recommendation/comment with CESCR, and the intersection of race and gender with CEDAW. The joint CEDAW/CRC recommendation stimulated a process of reflection on common normative elements in the two conventions, a process that appears particularly appropriate for ICERD, given the exiguous accounts of rights in Article 5 and the practice of drawing upon other human rights instruments to flesh out its contents. Joint interpretations could also improve the consistency of signalling to governments on human rights actions to be taken.

As noted, not all Committee procedures have proceeded in step. The inter-State procedure is currently moribund but susceptible to activation. The focus of Articles 11–13 is different from Article 22 in that the Committee procedure is directed to claims that a State party is not giving effect to the Convention, while Article 22 is ostensibly directed to broader legal issues of interpretation and application; on the other hand, both are dispute- and decision-centred, so that the choice of the disputants may turn on the difference between engaging a judicial body, the International Court of Justice (ICJ), and engaging a committee of experts, CERD. The limited activation of the procedure under Article 15, on the other hand, stems from important changes in the legal and political framework since the 1960s. The Committee has also been hamstrung in its treatment of reservations. Here, the principal constraint stems from the text of the Convention, which hands over the responsibility of deciding on compatibility to an improbable two-thirds assembly of States parties, the dimensions of which constantly increase with the number of States joining the Convention. CERD has expressed its disapproval of individual reservations on numerous occasions, with persuasive rather than dispositive effect.313

CERD’s information base has improved considerably since the activation of its mandate. Productive symbiosis with the cluster of mechanisms on race, indigenous, refugee and minority, and gender issues under the category of ‘special procedures’ is a feature of the life of the Committee. The flow of information from UN sources—including the UPR—and regional sources and civil society has served to sharpen perceptions of racial discrimination from a multiplicity of angles. The test of the procedural infrastructure and information base is the extent to which it assists in the furtherance of the aims and objectives of the Convention. Normative development and imagination and adaptation to the objects and purposes of the Convention flourish best under procedures carried through with integrity, intelligence, serious human rights commitment, on the basis of positions and actions clearly justifiable in the light of the mandate. CERD has innovated in its procedures and sought to justify its innovations within the terms of the Convention. Fuller consideration of the extent to which the Committee has effectively furthered the objectives of the Convention is best deferred until the results of its labours are accounted for and evaluated—the principal burden of the chapters that follow.


1  Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v Russian Federation), Provisional Measures, ICJ Reports 2008, p. 353; Preliminary Objections, Judgment, ICJ Reports 2011, p. 70. Article 22 is discussed further in Chapter 19 of the present work.

2  While the present chapter does not proceed on an article-by-article basis, it broadly follows the style of the chapters on substantive norms in setting out a brief drafting history of the Committee and its procedures, followed by an account of current practice and concluding comments.

3  Angola, Bhutan, Nauru, Palau, Sao Tome and Principe, and Singapore, have signed but not ratified the Convention: <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en>.

4  Article 17 of the Convention opens it for signature ‘by any State member of the United Nations or member of any of its specialized agencies, by any State party to the Statute of the International Court of Justice, and by any other State which has been invited by the General Assembly of the United Nations to become a party to this Convention’; Article 18 provides for accession to the Convention by States referred to in Article 17. In the drafting, Poland proposed that the Convention should be open for signature ‘by all States’: A/C.3/L.1272. The Polish amendment was defeated by 41 votes to 32, with 18 abstentions: A/6181, para. 177; for discussions, see A/C.3/SR/1358 and A/C.3/SR.1366. The representative of the US argued against the amendment, suggesting it would place a burden on the Secretary-General to decide what entities not members of the United Nations were States, and that many members of the United Nations ‘would be unwilling to sign and ratify the Convention if by doing so they would have to enter into treaty relations with entities they did not recognize as States’: A/C.3/SR.1366, para. 27. The formula in the Convention is termed ‘the Vienna formula’, deriving from Articles 81–83 of the Vienna Convention on the Law of Treaties; for brief discussion, see A. Aust, Handbook of International Law (2nd edn, Cambridge University Press, 2010), p. 62. Later conventions, such as CEDAW and the CRC, use the ‘all States’ formula. A number of States have made declarations to the effect that, in light of the principle of the sovereign equality of States, Articles 17 and 18 in themselves constitute a form of discrimination in preventing States outside the Vienna formula from making an effective contribution to the Convention.

5  In April 2014, the Palestinian leadership signed accession letters for a range of international instruments, including the Convention and other UN core human rights treaties; the move is referred to in the press briefing for the UN Secretary-General: <http://www.un.org/News/briefings/docs/2014/db140410.doc.htm>.

6  For an overview, see J. Connors and M. Schmidt, ‘United Nations’, in D. Moeckli, S. Shah, and S. Sivakumaran (eds), International Human Rights Law (2nd edn, Oxford University Press, 2014), 359–97, at 375–87 [henceforth International Human Rights Law]; also, United Nations Reform: Measures and Proposals, Note by the Secretary-General, A/66/860, 26 June 2012 [henceforth United Nations Reform].

7  World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, 31 August to 8 September 2001, A/CONF.189/12. See also CERD GR 28 on the follow-up to the World Conference Against Racism.

8  Established by Commission on Human Rights resolution 1993/20; see also resolution 1994/64, 9 February 1994.

9  Commission on Human Rights resolution 2002/68, and Economic and Social Council decision 2002/270, 25 June 2002.

10  Commission on Human Rights resolution 2002/68, 25 April 2002, and 2003/30, 25 April 2003.

11  General Assembly resolution 56/266, 27 March 2002.

12  <http://www.oas.org/en/sla/dil/docs/inter_american_treaties_A-68_racism.pdf>. Although it is not a treaty body, distinguished work in the field of anti-racism has been undertaken by the European Commission against Racism and Intolerance (ECRI): <http://www.coe.int/t/dghl/monitoring/ecri/default_en.asp>.

13  Connors and Schmidt in International Human Rights Law, p. 376.

14  Other Activities of the Human Rights Treaty Bodies, etc, HRI/MC/2013/3, 22 April 2013, p. 5. See also United Nations, Handbook for Human Rights Treaty Body Members, HR/PUB/15/2 (2015).

15  Ibid., pp. 3–5.

16  The complaints procedure for the CMW is not yet in force: the CRC procedure entered into force in 2014.

17  See, inter alia, the detailed appraisals of key issues regarding the status and authority of treaty body decisions in H. Keller and G. Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge University Press, 2012). [henceforth UN Human Rights Treaty Bodies].

18  Until recently, it was accurate to state that no dissent had been recorded under the individual communications procedure under Article 14 of ICERD. A first such dissenting opinion—by CERD member Vázquez—was published in 2013 in TBB-Turkish Union in Berlin/Brandenburg v Germany, CERD/C/82/D/48/2010 (2013). A footnote to Jama v Denmark, CERD/C/75/D/41/2008 (2009), records the non-participation of CERD member Peter in the adoption of the Committee’s opinion.

19  United Nations Reform, pp. 16–17.

20  The system of harmonized guidelines on reporting including a ‘common core document’ and a ‘treaty-specific document’ was introduced in 2006: HRI/MC/2006/3 and Corr.1; the background is briefly explained in United Nations Reform, p. 52.

21  Reform/strengthening is comprehensively treated in S. Egan, ‘Strengthening the United Nations Human Rights Treaty Body System’, Human Rights Law Review 13.2 (2013), 209–43 [henceforth Strengthening the Treaty Body System].

22  E/CN.4/Sub.2/L.321.

23  E/CN.4/873, para. 117.

24  Resolution I (XVI), Draft International Convention on the Elimination of All Forms of Racial Discrimination, Annex, E/CN.4/Sub.2/241, pp. 45–50.

25  Annex to resolution 2 (XVI), Article 1, E/CN.4/873, pp. 51–7.

26  Ibid., Article 2.

27  Annex to resolution 2 (XVI), Article 9.

28  Ibid., Article 11.

29  E/CN.4/874, paras 281–82; discussions in the Commission are summarized, ibid., paras 284–8.

30  Representative of the Philippines, E/CN.4/SR.810, p. 7.

31  E/CN.4/874, para. 285.

32  Ibid., para. 286.

33  A/C.3/L.1221.

34  A/C.3/L.1291.

35  A/C.3/L.1293.

36  A/C.3/L.1291.

37  A/C.3/L.1293.

38  Ibid., para. 1.

39  Uruguay, A/C.3/L.1296, rejected by 16 votes to 13, with 62 abstentions: A/6181, para. 110(a)(v).

40  A/C.3/L.1295, rejected by 55 votes to 22, with 17 abstentions: A/6181, para. 110(a)(i).

41  A/C.3/L.1295. The amendment was rejected by 39 votes to 32, with 22 abstentions: A/6181, para. 110(f)(i). Article 8(6) of the Convention provides that States parties ‘shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties’. Regular requests to States parties are made by the Committee on the basis of amendments made by States parties in 1992, which would require the Secretary-General to provide the necessary facilities for the effective performance of the functions of the Committee, and that members of the Committee shall ‘receive emoluments from United Nations resources on such terms and conditions as the General Assembly may decide’; the amendments will enter into force when accepted by a two-thirds majority of States parties. Although the changes were endorsed by the General Assembly in resolutions commencing with resolution 47/111, only 45 States parties have accepted them: <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2-a&chapter=4&lang=en>.

42  A/C.3/L.1293.

43  The amendment was adopted by 25 votes to 18, with 44 abstentions: A/6181, para. 114(b)(iii).

44  A/C.3/L.1291.

45  A/6181, para. 113; the amendment was defeated by 68 votes to 2, with 19 abstentions, ibid., para. 114(b)(i).

46  A/C.3/SR.1352, para. 7.

47  A/C.3/SR.1352, para. 14.

48  Rejected by 58 votes to 4, with 27 abstentions.

49  A/C.3/SR.1351, para. 37.

50  The First Twenty Years, Progress Report of the Committee on the Elimination of Racial Discrimination (United Nations, 1991) [henceforth The First Twenty Years].

51  Of Sudan.

52  Of Tanzania.

53  The First Twenty Years, para. 118.

54  Ibid., para. 119.

55  Ibid., para. 119.

56  A/C.3/L.1291.

57  A/6181, para. 120.

58  Ibid., para. 124.

59  A/C.3/SR.1353, para. 44.

60  Israel, ibid., para. 32; Tanzania, para. 44.

61  Senegal, A/C.3/SR.1353, para. 48.

62  Trinidad and Tobago, ibid., 38.

63  Mauritania, ibid., para. 55.

64  The article as a whole was adopted by 83 votes to 0 with 2 abstentions: A/6181, para. 127.

65  A/C.3/L.1291.

66  A/C.3/L.1298.

67  A/C.3/L.1299.

68  Summary of voting in A/6181, para. 137.

69  A/C.3/L.1291 and A/C.3/L.1301.

70  A/6181, para. 142.

71  E/CN.4/SR.810, p. 9.

72  Ibid., p. 10.

73  A/C.3/SR.1355, para. 45.

74  Ibid., para. 46.

75  A/C.3/L.1221.

76  A/C.3/L.1268.

77  A/C.3/L.1270.

78  Thus, in the paper of the Philippines, A/C.3/L.1221, the Committee would be empowered to receive petitions addressed to the Secretary-General from ‘any person or groups of individuals claiming to be the victim of a violation…or from any non-governmental organization in consultative status with the Economic and Social Council’.

79  ‘The Committee may receive petitions…from any person, non-governmental organization in consultative status…or group of persons claiming to be the victim of a violation’ by the State party: A/C.3/L.1270.

80  A/C.3/L.1291/Add.1; A/C.3/L.1303; A/C.3/L.1308; A/C.3/L.1315; and A/C.3/L.1308/Rev.1.

81  A/C.3/L.1291/Add.1.

82  A/C.3/L.1291/Add.1, article XIII, para. 2.

83  Ibid., para. 5.

84  A/C.3/L.1297.

85  The first revised text, contained in A/C.3/L.1308, was submitted at the 1362nd meeting of the Third Committee by a group of eleven States: A/6181, para. 148.

86  A/C.3/L.1308, article XIII, para. 2.

87  Ibid., para. 4.

88  A/C.3/L.1315.

89  A/C.3/L.1308/Rev.1, now Article 14(7)(a).

90  Comment by the representative of Italy, A/C.3/SR.1357, para. 30.

91  Ibid.

92  A/C.3/SR.1357, para. 45, the representative of Iraq.

93  A/C.3/SR.1357, para. 9; the representative added that ‘[s]ince it left States free to recognize or not to recognize, by means of a declaration, the competence of the committee to receive petitions from their nationals, it should reassure those States which regarded the right of petition as inappropriate in the existing state of international relations.’

94  E. Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’, ICLQ 15 (1966), 996–1068, 1043 [henceforth The International Convention].

95  A/C.3/L.1307. The reference to consultation with the Administering Authority was removed in later drafts: A/C.3/L.1307/Rev.2 and Rev.3.

96  Representative of Nigeria, A/C.3/SR.1363, para. 41.

97  Representative of the UK, ibid., para. 37; Australia, A/C.3/SR.1364, para. 26; New Zealand, A/C.3/SR.1364, para. 27. The remarks of the UK were rejected by, inter alia, the representative of the UAR, A/C.3/SR.1364, para. 35.

98  A/C.3/SR.1364, para. 6.

99  The resulting arrangements were strongly defended by the representative of Lebanon, who observed that a petition system had been set up by the United Nations, and that ‘to give a committee outside the Organization the powers mentioned’ would only weaken the United Nations; the best solution would be ‘to give the Committee established under the Convention the status of a body of experts and…the possibility of expressing its views and making recommendations to the different UN organs’: A/C.3/SR.1368, para. 33.

100  A/6181, para. 166 (g).

101  A/C.3/L.1291 (Article XIII).

102  A/C.3/L.1304.

103  Oral proposal at the 1358th meeting. The article as a whole was adopted by 78 votes to none, with one abstention: A/6181, para. 171(c).

104  There is no reference in the treaty to the broad purpose of the Committee, unlike for example the Committee on the Rights of the Child, charged under Article 43 of that Convention with ‘examining the progress made by States parties in achieving the realization of the obligations undertaken’. The purposes of the Committee are, presumably, subsumed under the purposes and objectives of the Convention as a whole.

105  M. Banton, International Action against Racial Discrimination (Clarendon Press, 1996), pp. 142–4 [henceforth International Action]. Article 10(4) of the Convention refers to meetings taking place at UN Headquarters, but following the establishment of the UN division of human rights in Geneva and the setting up of the Office of the High Commissioner on Human Rights, difficulties with costs have militated against holding sessions elsewhere. Over the life of the Committee, in addition to Geneva, sessions have been held in New York, Paris, and Vienna.

106  Compare with treaty provisions on, for example, members of the Human Rights Committee who shall have ‘recognized competence in the field of human rights’: Article 28(2) of the ICCPR. Ulfstein observes that ‘no professional requirements are listed in the CERD’: ‘Individual Complaints’, in Keller and Ulfstein, UN Human Rights Treaty Bodies, pp. 73–115, p. 78. Banton, International Action, p. 309, comments that ‘members generally can be considered as experts in racial discrimination only in respect of the knowledge they have built up in the course of examining State reports’.

107  Van Boven remarks that the perception of the Convention as foreign policy produced a situation where ‘many States parties…nominated active or retired diplomats, foreign ministry officials, former foreign ministers, and similar personalities to serve as members’; he questions whether such membership ‘is fully consistent with the terms of Article 8’, T. van Boven, ‘Discrimination and Human Rights Law; Combating Racism’, in S. Fredman (ed.), Discrimination and Human Rights: the Case of Racism (Oxford University Press, 2001), pp. 112–33 at p. 113 [henceforth Discrimination and Human Rights].

108  Background Information on Enhancing and Strengthening the Expertise and Independence of Treaty Body Members, HRI/MC/2012/2, 18 April 2012, pp. 2–6. According to this information, 17 per cent of CERD membership falls under ‘Diplomat/Government official’, and 17 per cent under a second category of ‘retired diplomat/Government official; the aggregate for all the comparable treaty bodies (including CERD) is 18.1 per cent for active diplomats and 6 per cent for retired diplomats, with the highest overall figure represented by the Committee on Migrant workers: 57 per cent of active diplomats/officials and 7 per cent in the ‘retired’ category.

109  Over-representation of a particular region is not ipso facto contrary to the Convention: the syntax of Article 8 is that experts must be impartial, etc, while ‘consideration is given’ to the desideratum of equitable geographical distribution.

110  Rule 14 of the Rules of Procedure, HRI/GEN/3/Rev.3, p. 69.

111  The situation contrasts with those in comparable UN treaty bodies, governed by procedural constraints with regard to reporting as well as communications and other procedures: HRI/MC/2012/2, pp. 6–12; for the Human Rights Committee, see A/53/40, Vol. 1, Annex III.

112  Rule 89, HRI/GEN/3/Rev.3, p. 87.

113  Addis Ababa Guidelines on the Independence and Impartiality of Members of Human Rights Treaty Bodies, A/67/222 (2012), adopted by the twenty-fourth Annual Meeting of Chairs of Treaty Bodies.

114  The Committee took note of the guidelines, recalled GR 9, declared its strong support for ‘the independence and impartiality of its members in all of its activities and practices’ in accordance with the Convention, and expressed a belief that the guidelines ‘can provide a basis for further discussions, as appropriate’: A/68/18, Annex VIII B. ‘Internalization’ of the Addis Ababa Guidelines and other measures is among the issues and recommendations in United Nations Reform. Issues are reviewed in I. Truscan, The Independence of UN Human Rights Treaty Body Members (Geneva Academy, 2012), who notes, p. 3, that CERD is the only treaty body that has dedicated a general recommendation to the question of the independence of its members. At its August 2014 session, the Committee decided to institute a rapporteur for reprisals, to be appointed in 2015; see also the San José Guidelines against Intimidation or Reprisals, HRI/MC/2015/6.

115  In the experience of the present author as a member of CERD (2001–14), most members of the Committee maintained a public silence in discussions concerning their ‘home’ State.

116  HRI/MC/2012/2, pp. 2–6. The author became a member of CERD in 2001 when the Committee had three women members; before the membership profile resulting from elections in 2013 which produced four women members, no Committee since 2001 had more than two women members.

117  United Nations Reform, pp. 74–80.

118  GR 2, A/8718, chapter IX A.

119  The guidelines of the various treaty bodies relating to the part of State reports containing general information were consolidated into a single text, now found in a ‘common core document’ submitted by States party to one or more international human rights instruments; this is complemented by treaty-specific guidelines: see p. 36 above. The current CERD-specific guidelines were adopted in 2007: CERD/C/2007/1.

120  The Committee is scheduled to hold three sessions in the period 2015–17: General Assembly resolution 68/268, 21 April 2014, paras 26–8.

121  A/45/18, para. 29.

122  In 2001, the Committee adopted the ‘Bossuyt amendment’ (named after the then rapporteur of the Committee), the effect of which is to skip one reporting cycle: A/56/18, para. 477.

123  CERD SR.827, paras 40 and 52–75.

124  CERD/C/SR.827, paras 52–79.

125  A/51/18, para. 596.

126  A/65/18, chapter XII, para. 85.

127  CERD has not yet given full consideration to the ‘list of issues prior to reporting’ procedure (LOIPR) adopted by the Human Rights Committee, the CAT and CMW to ensure a focused and concise examination of reports.

128  Initially, CERD hesitated to invite State delegations, with some Committee members objecting to ‘cross-examination’ of representatives: Banton, International Action, p. 109. Tomuschat observes that after two initial years reviewing reports, CERD concluded that ‘such endeavours were largely futile if there was no one to listen’, C. Tomuschat, Human Rights: Between Idealism and Realism (Oxford University Press, 2008), p. 175.

129  A/RES/68/268, 21 April 2014.

130  June 2014.

131  A/70/18, para. 56. For details of the simplified reporting procedure, see United Nations Reform, pp. 48–52.

132  A particularly lengthy and critical ‘introduction’ appears in the 2012 concluding observations on Israel, where the Committee recalls that, notwithstanding the issues of security and stability in the region, the principles of the Convention apply to ‘Israel proper’ and the Occupied Palestinian Territories; in particular Israeli settlements on the Occupied Territory are declared to be illegal under international law and an obstacle to the enjoyment of human rights by the whole population: CERD/CISR/CO/14-16, paras 2, 3, and 4. Further on the Occupied Territories, see Chapter 8 on Article 2.

133  The note by the Secretariat for the 26th meeting of Chairpersons—HRI/MC/2014/2, ‘concluding observations’, para. 31—suggests that CERD has eliminated this category, which, however, continues to be used in appropriate cases: recent observations on Cyprus, CERD/C/CYP/CO/17-22, para. 6, stand as one example; see also the extensive citation of factors regarding the situation of Iraq: CERD/C/IRQ/CO/15-21, para. 5.

134  The dialogue with France in 2010 was a case in point, with members hesitating on the inclusion of references in the concluding observations to Roma ‘collective repatriations’ that took place shortly after the dialogue: the observations eventually made such a reference, CERD/C/FRA/CO/17-19, para. 14.

135  The follow-up to Durban paragraph may elicit resistant comment from States who were not entirely enamoured of the Durban ‘process’.

136  Further discussion in Chapters 8 and 17 of the present work.

137  At its August 2014 meeting, the Committee decided to adopt the framework for concluding observations recommended by the 26th annual meeting of Chairpersons in June 2014; the pattern largely follows the present scheme, but omits the ‘factors and difficulties’ element.

138  This observation stems from the author’s experience as a member of the Committee.

139  A/46/18, para. 27.

140  Emphasis added.

141  A/51/18, para. 608; see also L. Valencia Rodriguez, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’, in Manual on Human Rights Reporting (United Nations, 1997), p. 299.

142  A/59/18, paras 434–58.

143  A/60/18, Annex IV. Guidelines are set out in A/61/18, Annex VI, which envisage, inter alia, wide dissemination by States parties of the Committee’s concluding observations, cooperation with national human rights institutions and NGOs, and the development of national action plans; meetings with States parties are also suggested as possibilities. In practice the procedure operates through written submissions and responses thereto.

144  The author bases these evaluations on information supplied by the Secretariat during the author’s term as follow-up rapporteur of the Committee. Additional to follow-up requests, concluding observations also identify recommendations ‘of particular importance’, on which detailed information on concrete measures taken is expected in the next periodic report.

145  At its sixty-fifth session, the Committee established a working group on early warning and urgent action procedures, A/59/18, Annex XII.

146  The Committee held a thematic discussion on prevention of genocide at its 66th session in 2005: CERD/C/SR.1683–84. A ‘Declaration on the Prevention of Genocide’ was adopted at the same session. At its sixty-seventh session, CERD adopted a follow-up to the Declaration on ‘indicators of patterns of systematic and massive racial discrimination’, in order, inter alia, ‘to assess the existence of factors known to be important components of situations leading to conflict and genocide’: A/60/18, para. 20.

147  A/48/18, para. 18 and Annex III.

148  A/47/277-S/24111, in particular paras 15, 18, 20, and 23.

149  A/47/1. See also the Committee’s letter to the Secretary-General, A/48/18, Annex VI.

150  De Gouttes, CERD/C/SR.974/Add.1, para. 5.

151  Working Paper, para. 10.

152  A/62/18, Annex III, Guidelines for the Early Warning and Urgent Action Procedure.

153  Ibid., para. 7.

154  Ibid., para. 12.

155  The indicators are set out in para. 12 of the revised guidelines.

156  At its seventy-seventh session in 2010, the Committee sent letters to the Council of Europe and the European Union expressing deep concern regarding the resurgence of racism against Roma in several European States, including mass expulsions: A/65/18, p. 10.

157  As example, the Committee published one decision and three statements under the procedure in 2011: Decision 1 (78) on Côte D’Ivoire; Statements on the situation in Libya, the situation in the Syrian Arab Republic, and on Dale Farm (UK). By 2012, the Committee had adopted some 40 decisions under the procedure since its inception in the 1990s, the coverage of which included major conflict areas in Africa, the Middle East, and the Former Yugoslavia. The Committee adopted a ‘resolution’ in the case of Burundi: A/51/18, p. 13.

158  The history of the procedure taken as a whole reveals that the concerns of the Committee have been widely distributed across a varied range of groups and situations.

159  I. Diaconu, Racial Discrimination (Eleven International Publishing, 2011), pp. 349 ff. [henceforth Racial Discrimination]. For an account of the Committee’s activities regarding native title in Australia, see P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, 2002), pp. 218–23.

160  For example, all cases bar two in Chapter II of the annual report for 2012/13 (A/68/18) refer to indigenous peoples—in Cameroon, Costa Rica, Ethiopia, Guyana, India, Nepal, Peru, The Philippines, Suriname, the United Republic of Tanzania, and the US: the two ‘exceptions’ are letters regarding military bases in Okinawa and Roma in Slovakia. Notable ‘decisions’ concerning indigenous peoples include Decision 1(66) of 2005 on the New Zealand Foreshore and Seabed Act, A/60/16, ch. II; and Decision 1(68) regarding the Western Shoshone in the USA, A/61/18, ch. II.

161  A/66/18, pp. 7–8.

162  Para. 13 of the 2007 Guidelines refers to information available to engage the procedure emanating from ‘inter alia, United Nations agencies and human rights bodies, special procedures…regional human rights mechanisms, and national human rights institutions and non-governmental organizations’. The list is not exhaustive in not even referring to the potential role of members of CERD. Except as respondents to Committee’s enquiries, States parties are notably absent from the list of information providers, though there is nothing to rule out the use of information on other parties to the Convention indirectly provided by States working through the listed channels. However, in the light of the relationship of the procedure to Article 9, and the existence of the inter-State procedure in Articles 11–13, it would be inappropriate for a State to engage directly with the Committee under early warning/urgent action vis-à-vis the conduct of another State party.

163  Israel took particularly strong objection to Decision 2 (63) regarding Israel’s amendment to the Citizenship and Entry into Israel Law of July 2003, expressing that it was ‘surprised and shocked by such a decision’, which had referred to the negative effect of the law on family reunification and marriage: A/58/18, ch. II (CERD decision), ibid., Annex VII (reaction of Israel and the CERD response); inter alia, Israel claimed that the early warning approach represented an attempt to pre-empt and undermine the normal reporting process, a claim denied by the Committee.

164  Article 45(a).

165  Article 74(4).

166  Banton, International Action, p. 103. Describing the situation as it existed by 1980, Lerner notes simply that the Committee was ‘prevented from taking advantage of information supplied by non-governmental organizations’, International Convention, p. 119; for early discussion, see A/8718, paras 27–33, cited by Lerner, ibid.

167  Decision 1 (XL), A/46/18, Annex VII B.

168  CERD has no explicit rule on confidentiality of NGO information—compare the practice of other treaty bodies in HRI/MC/2006/4, para. 96. However, if an NGO requests confidentiality for its submissions to CERD, such requests will be honoured.

169  A/65/18, Chapter XII, para. 87.

170  Following initial hesitations on the part of some CERD members, the ‘country presentations’ prepared by the Secretariat may include NGO material.

171  GR 17, A/48/18, Chapter VIII B; A/62/18, Annex IX, Rule 40 (2).

172  ‘CERD provided NHRIs…present with the opportunity to make an oral presentation in the plenary on the second day of the consideration of the State party’s report. NHRI representatives were seated separately from representatives of NGOs, with a sign clearly identifying them’: HRI/MC/2006/4, para. 94.

173  The standard organizational chapter of the annual report refers to cooperation with the ILO, the UNHCR, UNESCO, the special procedures of the Human Rights Council, and regional human rights mechanisms; the 2014 version is contained in A/69/18, ch. I. E.

174  For example, GR 7 and GR 15 on Article 4; GR 8 on Article 1, paras 1 and 4; GR 9 on Article 8, para. 1, GR 4 on Article 1, GR 16 on Article 9, GR 19 on Article 3, GR 20 on Article 5, GR 22 on Article 5 and refugees and displaced persons, GR 24 on Article 1, GR 26 on Article 6, and GR 32 on special measures.

175  GR 25 on gender-related dimensions of racial discrimination.

176  GR 31 on racial discrimination in the field of criminal justice.

177  GR 17 on the establishment of national institutions to facilitate the implementation of the Convention, and GR 18 on the establishment of an international tribunal to prosecute crimes against humanity.

178  GR 23 on the rights of indigenous peoples; GR 27 on discrimination against Roma; GR 29 on Article 1, para. 1 of the Convention (descent); GR 30 on discrimination against non-citizens.

179  GR 31.

180  GR 28 on ‘Follow-up to the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance’.

181  GR 33.

182  See, for example, GR 2 and GR 5.

183  In response to reservations made against Article 4 in order to protect freedom of expression, the Committee is resolute in its view that ‘the prohibition of the dissemination of all ideas based upon racial superiority or hatred is compatible with the right to freedom of opinion and expression’: GR 15; see also GR 35, para. 23.

184  For recall of the preamble, see GR 3; GR 20, para. 1; GR 32, para. 5; GR 35, para. 5.

185  GR 32, para. 20; GR 35, para. 10.

186  The Committee’s consistent approach is referred to in GR 29, preamble, and GR 23, para. 1; GR 27, preamble, refers to the concluding observations of the Committee.

187  Para. 2. See also para. 3 of GR 35.

188  GR 30, preamble.

189  GR 11 on non-citizens, para. 3, and GR 30, para. 2, reach out to principles of international law; GR 21, paras 2 and 3 refer to self-determination; GR 18 refers to international tribunals to prosecute crimes against humanity.

190  GR 22 on Article 5 and refugees, preamble.

191  GR 15, para. 1.

192  P. Thornberry, ‘Confronting Racial Discrimination: A CERD Perspective’, HRLR 5 (2005), 239–69, 260–62 [henceforth ‘Confronting Racial Discrimination’].

193  In addition to ICERD sources, GR 32 recites in para. 3 that its drafting has also taken account of the work of the Sub-Commission on the Promotion and Protection of Human Rights and GR 25 of CEDAW on temporary special measures.

194  Para. 4.

195  Valencia Rodriguez, in Manual on Human Rights Reporting (Geneva: United Nations, 1997), HR/PUB/91/1/Rev.1, p. 300 (citing an unnamed author); Banton, International Action, p. 104.

196  Thematic discussions open the Committee to contributions from UN human rights bodies, NGOs, etc; general debates are for the Committee itself.

197  A general recommendation on the relationship between racial discrimination and discrimination on the ground of religion would, in all likelihood, have followed from a thematic discussion envisaged in 2007, A/62/18, para. 538; no such discussion took place.

198  Banton, International Action, pp 102–4, 126, and 158–60 cites (p. 126) the opinion of the UN office on Legal Affairs that ‘the right to give authoritative interpretations of the Convention…rested…in the first instance, with CERD itself, as the body responsible for monitoring compliance with the Convention, and ultimately with the States parties’: A/C.3/40/SR. 46. The present author, in his capacity as a member of CERD, nonetheless noted sentiments expressed by members during the drafting of GR 32 (2009) that it was for States to interpret the Convention and not the Committee.

199  For illuminating discussions of general comments (recommendations) and interpretation by treaty bodies, see the collection of essays in H. Keller and G. Ulfstein, UN Human Rights Treaty Bodies.

200  HRI/GEN/3/Rev.3, rules 69–79.

201  Rule 72 envisages consultations with the States parties to the dispute with regard to the composition of the Commission.

202  Banton, International Action, p. 128; A/33/18, paras 169–73.

203  Banton, ibid., pp. 108–12.

204  The Human Rights Committee has similarly encouraged States parties to utilize the (optional) inter-State procedure set out in Articles 41–3 of the ICCPR: Human Rights Committee General Comment 31, The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 2: HRI/GEN/1/Rev.9 (Vol. I), pp. 243–7, para. 2.

205  A/C.3/SR.1363, para. 13.

206  V.S. v Slovakia, CERD/C/88/D/56/2014 (2015).

207  Article 14(6)(a) and Rule 91.a provide that the Committee shall not receive anonymous communications.

208  The generalities regarding necessary information to process the complaint are included in rule 84. Bayefsky observes that the UN ‘does not provide legal aid or financial assistance to authors, nor does CERD require that States parties provide legal aid where an individual wishes to submit a communication’, and advises authors to determine whether or not their own legal system provides the possibility of legal aid: <http://www.bayefsky.com/complain/28_cerd.php>.

209  Questions asked by the petitions team may incidentally assist authors in clarifying the legal basis of the case, but the responsibility presenting as clear a case as possible rests with the author.

210  Rule 84.4.

211  Rule 91(f).

212  Rule 91(b).

213  The author in such cases does not have to be a lawyer but simply a person authorized under the power of attorney.

214  Rule 84.

215  Rule 91. Compare Article 5(2)(a) of the Optional protocol to the ICCPR, discussed in S. Joseph and M. Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (3rd edn, Oxford University Press, 2013), Chapter 5 ‘Consideration under Another International Procedure’ [henceforth The ICCPR].

216  This formula is employed in the declaration of Andorra and is repeated with minor variations in language by 17 other States parties. In some cases, the reference is to other cases being ‘considered’ rather than ‘examined’. The formula is explicitly described as a ‘reservation’ in the declaration of Norway.

217  Koptova v Slovak Republic, CERD/C/57/D/13/1998 (2000), para. 6.3.

218  N. Lerner, The U.N. Convention on the Elimination of All Forms of Racial Discrimination, p. 90. References in the present work to the volume by Lerner are to the 1980 edition; citations of the 2015 reprint revised by the author are specifically indicated.

219  With reference to the ECHR as an example of ‘other procedures’, Schwelb comments: ‘Although Article 16…does not say so expressly, it cannot have been the intention of the General Assembly and of the States parties to affect the rights of the individual arising from…the European Convention’: Schwelb, The International Convention, p. 1048. The rules of procedure for inter-State claims are silent on Article 16 situations.

220  Rule 86.

221  Rule 88.

222  Rule 88.

223  Rule 86.1.

224  In addition to the domestic remedies’ condition, Rule 91 requires the Committee to ascertain that ‘the communication is compatible with the provisions of the Convention’, and it ‘is not an abuse of the right to submit a communication’.

225  Rule 92.7.

226  Rule 93.2. A decision that a communication is admissible may also be revoked: rule 94.6.

227  Rule 94.3.

228  Rule 95.

229  CERD/C/68/D/29/2003 (2006).

230  Rule 91(f).

231  Dragan Durmic, para. 6.1. On the State party’s claim that the petitioner violated Article 14, para. 4, of the Convention, by publicly disseminating the contents of his petition, the Committee took the view that the obligation to refrain from publishing information on individual petitions, prior to examination by the Committee, applied only to the Secretary General of the United Nations, specifically, acting through the Secretariat, and not to the parties to the petition who remain at liberty to publish any information at their disposal relating to a petition: paras 6.2 and 6.3.

232  Also B.M.S. v Australia, CERD/C/54/D/8/1996 (1999), para. 6.2; Z.U.B.S. v Australia, CERD/C/55/D/6/1995 (2000), para. 6.4.

233  L.R. et al. v Slovak Republic, CERD/C/66/D/31/2003 (2005), para. 6.1. citing in support its own jurisprudence in Lacko v Slovakia, CERD/C/59/D/11/1998 (2002), and cases before the Human Rights Committee, R.T. v France, CCPR/C/35/D/262/1987 (1989), and Kaaber v Iceland, CCPR/C/58/D/674/1995 (1996); para. 6.2, citing Koptova v Slovak Republic, paras 2.9 and 6.4.

234  Habassi v Denmark, CERD/C/54/D/10/1997 (2000), para. 6.1; Lacko v Slovakia, para. 6.3; Sefic v Denmark, CERD/C/66/D/32/2003 (2005), para. 6.2; Gelle v Denmark, CERD/C/68/D/34/2004 (2006), para. 6.6.

235  Gelle v Denmark, para. 6.5; Adan v Denmark, CERD/C/77/D/43/2008 (2010), para. 6.3.

236  D.S. v Sweden, CERD/C/59/D/21/2001 (2001), para. 6.4. Further discussion in Chapter 16 on Article 6.

237  POEM and FASM v Denmark, CERD/C/62/D/22/2002 (2003), para. 6.3. See further the commentary on Article 6.

238  Romania qualifies its acceptance of the communications procedure on the ground that Article 14 does not confer competence on the Committee to receive the communications of ‘persons invoking the existence and infringement of collective rights’.

239  Paras 5.2 and 5.3.

240  Para. 6.3.

241  CERD/C/63/D/28/2003 (2003).

242  Para. 5.3.

243  Para. 6.4.

244  Para. 6.5.

245  Para. 6.6; also A.S. v Russian Federation, CERD/C/79/D/45/2009 (2012), para. 7.2.

246  CERD/C/67/D/30/2003 (2005).

247  Jewish Community, para. 7.3.

248  Ibid., para. 7.3.

249  The three organizations were the Jewish Community of Oslo, the Jewish Community of Trondheim, and the Norwegian Antiracist Centre.

250  Jewish Community, para. 7.4. The point in Jewish Communities on ‘groups of individuals’ was cited by the Committee in Zentralrat Deutscher Sinti und Roma et al. v Germany, CERD/C/72/D/38/2006 (2008), para.7.2.

251  Para. 11.3. Under the optional Protocol to ICCPR, while victims must be individuals, there is ‘no objection to a group of individuals, who claim to be similarly affected, collectively to submit a communication about alleged violation of their rights’: Ominayak (On Behalf of Lubicon Lake Band) v Canada, Communication CCPR/C/38/D/167/1984 (1990), para. 32.1; see also Diergaardt and Ors v Namibia, CCPR/C/69/D/760/1997 (2000); Howard v Canada, CCPR/C/84/D/879/1999 (2005). Corporations and associations can submit claims on their own behalf under the European Convention on Human Rights: Sunday Times v UK, ECtHR, App. No. 6538/74 (1977), freedom of expression of a media organization; Refah Partisi (Welfare Party) and ors v Turkey, App. Nos 41340-44/98 (2003), dissolution of a political party. This facility is not available to petitioners under the ICCPR; NGOs have no standing to submit claims, though they can assist authors of communications: Hertzberg and ors v Finland, CCPR/C/15/D/61/1979 (1982), Joseph and Castan, The ICCPR, pp. 75–6.

252  Koptova v Slovak Repubblic, CERD/C/57/D/13/1998 (2000), para. 6.5.

253  Ibid., para. 10.1.

254  Ibid., para. 3.2.

255  Jewish Community, para. 7.3. See also Murat Er v Denmark, CERD/C/71/D/D/40/2007 (2007), paras 6.2 and 6.3.

256  Yilmaz-Dogan v The Netherlands, CERD/C/36/D/1/1984 (1988), para. 10.

257  Further, even in cases deemed inadmissible, the Committee has been tempted to develop its position through obiter dicta on the interpretation of the Convention: Kenneth Moylan v Australia, CERD/C/83/D/47/2010 (2013), para. 6.2.

258  Para. 11.

259  CERD/C/62/D/26/2002 (2002), para. 8.

260  A/45/40, Vol. II, Annex XI (1990). See also rules 101 and 103 of the Committee’s rules of procedure.

261  Communication No. 4/1991, decision of 16 March 1993, para. 7.

262  ‘The State party concerned shall be invited to inform the Committee in due course of the action it takes in conformity with the Committee’s suggestions and recommendations.’

263  Communication No. 31/2003, A/60/18, Annex III A.

264  A/61/18, para. 485.

265  A/60/18, Annex IV. II. ‘The Committee may designate one or several Special Rapporteurs for follow-up on Opinions adopted by the Committee under Article 14, paragraph 7 of the Convention, for the purpose of ascertaining the measures taken by States parties in the light of the Committee’s suggestions and recommendations’: Rule 95.6; rule 95.7, ‘The Special Rapporteur(s) may establish such contacts and take such action as appropriate for the proper discharge of the follow-up mandate. The special rapporteur(s) will make such recommendations for further action by the Committee as may be necessary; he/she (they) will report to the Committee on follow-up activities as required, and the Committee shall include information on follow-up activities in its annual report.’

266  Committee member Sicilianos.

267  A/61/18, Annex V.

268  A/61/18, para. 488.

269  See follow-up discussion of Dawas and Shawva v Denmark, CERD/C/80/D/46/2009 (2012), in A/68/18, Annex IV, pp. 160–5.

270  Para. 1 of Article 15 is, according to one authority, ‘intended to eliminate the doubts of those who alleged that this article could be interpreted as a way of agreeing to the perpetuation of colonialism’: Lerner, The U.N. Convention on the Elimination of Racial Discrimination, p. 87.

271  It is unclear from the syntax of para. 2(b) whether the envisaged reports emanate from the UN bodies or from the administering States.

272  The first session of the Committee issued a statement of its responsibilities with regard to Article 15 in which it noted, inter alia, that it was not authorized to receive petitions directly or otherwise except through the organs referred to in Article 15(2); on the other hand, it was proposed to examine this principle in strict conformity with its mandate while guarding against depriving petitioners or the competent bodies of the United Nations of the opportunity to have petitions considered by an appropriate international body.

273  The First Twenty Years, p. 43.

274  The CERD annual report for 2012–13, A68/18, chapter VIII, refers to working papers prepared by the Secretariat for the Special Committee and the Trusteeship Council on sixteen territories, listed in CERD/C/81/3; a figure unchanged in recent years.

275  Racial Discrimination, pp. 341 and 344.

276  ‘States parties which are administering Non-Self-Governing Territories or otherwise exercising jurisdiction over territories are requested to include, or to continue to include in their reports…pursuant to Article 9…relevant information on the implementation of the Convention in all territories under their jurisdiction’: A53/18, para. 439 (c).

277  Examples in Diaconu, Racial Discrimination, pp. 341–4.

278  Concluding observations on The Netherlands, CERD/C/NLD/CO/18, para. 15, requesting complete information on the implementation of the Convention ‘in all territories of the State party’.

279  Remarks of the representative of The Philippines, A/C.3/SR.1344, para. 30—general introductory statement in paras 14–35; Ghana, ibid., paras 36–45.

280  Ghana, ibid., para. 38.

281  A/C.3/SR.1344, para. 53; ‘special international guarantees designed to prevent abuses and possible violations of the principles of the Convention’ were absolutely vital: Representative of Italy, ibid., para. 58.

282  For example in the texts proposed by Ghana, A/C.3/L.1274/Rev.1; and Mauritania and The Philippines, A/C.3/L.1291.

283  Remarks of the representative of the USSR, A/C3/SR.1344, para. 73.

284  Proposal of Saudi Arabia, ibid., para. 76.

285  A/C.3/L.1274/Rev.1, Article XII.

286  But ‘of only limited value, since reports submitted by States tended to paint too rosy a picture’: representative of The Netherlands, A/C.3/SR.1344, para. 63.

287  The proposed inter-State complaints mechanism was criticized by Tanzania in light of State sovereignty: A/C.3/SR.1345, paras 40–1; the representative did not see how complaints regarding human rights could be settled by conciliation. On the same issue, India, A/C.3/SR.1346, para. 21, questioned whether a non-judicial committee could exercise judicial functions.

288  Iraq, A/C.3/SR.1347, para. 7, asserting that acceptance of the implementation proposals, with particular reference to the right of petition, ‘would be to embark on a very dangerous adventure’.

289  The Netherlands, A/C.3/SR.1344, para. 64, with reference to ‘petitions from individuals, groups, and non-governmental organizations’. Similarly, Canada, A/C.3/SR.1345, para. 11, argued for the necessity for groups and individuals within a State to ‘have access to competent decision-makers outside the State…non-national authorities should be vested with the authority to judge the treatment which a State meted out to its nationals’.

290  Ivory Coast, A/C.3/SR.1345, para. 4. For France, on the other hand, ibid., para. 17, ‘the act of ratification itself was an exercise in sovereignty’.

291  According to Malaysia, ibid., para. 38, ‘both the Philippines and Ghanaian drafts contained clauses which would allow interference by one State Party in the affairs of another. Such provisions were morally wrong and contrary to…the United Nations Charter…in the field of racial discrimination, they could scarcely be invoked unless a State employed spies throughout the territory of another State in order to detect alleged violations.’

292  A/C.3/L.21291, replacing A/C.3/L.1274/Rev.1, A/C.3/L.1289, and A/C.3/L.1221, respectively.

293  A/C.3/SR.1349, para. 29.

294  A representative of the ILO outlined its supervision system at length: A/C.3/SR.1349, paras 14–27.

295  Bearing in mind that ‘the treaty system is a de facto one that was in fact never designed to be a system’; the shared characteristics of the treaty bodies ‘in terms of their nature, functions and powers, together with the steadily increasing, occasionally overlapping and sometimes contradictory demands placed on the States parties, have led to them…being conceptualized as a system, in need of reform as a comprehensive whole’: Egan, Strengthening the Treaty Body System, 211.

296  Concept Paper on the High Commissioner’s Proposal for a Unified Standing Treaty Body, HRI/MC/2006/1, 22 March 2006.

297  United Nations Reform, includes the report of the High Commissioner on Human Rights on strengthening the human rights treaty bodies; previous initiatives are summarized, ibid., p. 28; see also Egan, Strengthening the Treaty Body System, 210–14. The response of CERD to the report is reproduced in: <http://www2.ohchr.org/english/>, 31 August 2012.

298  Sundry theories of international competence that may have assisted treaty bodies in the development of competences include that of inherent powers, or powers by necessary implication, a concept traceable to the Advisory Opinion of the ICJ in the Reparations Case of 1949: discussion by Keller and Grover in Keller and Ulfstein, UN Human Rights Treaty Bodies, pp. 127–8.

299  See, for example, comments by Latvia, A/58/18, Annex VII.

300  In evaluating the work of the Human Rights Committee, Buergenthal suggested that the growth of its prestige was due in part to the perception on the Cold War period that ‘CERD, with its jurisdiction over racial discrimination, offered the Soviet Union and its allies as well as many non-aligned third world nations a propaganda tool to be used against the West’: T. Buergenthal, ‘The UN Human Rights Committee’, Max Planck Yearbook of the United Nations, 5 (2001), 341–98, 342.

301  The response also recalled that ‘the human rights treaty body system is dedicated to an objective examination by independent experts of the fulfilment of obligations undertaken by States in the field of human rights’; further, with regard to concluding observations under Article 9, they ‘should be understood not as the outcome of a judicial process but as a step in the ongoing dialogue between the Committee and the States parties’; and Committee responses, whether in the reporting or early warning procedure, ‘must necessarily adapt to the circumstances before it’. The Committee referred to GR 9 of 1990, which included the observation that ‘respect for the independence of the experts is essential to secure full observance of human rights and fundamental freedoms’: Comments of the Committee on a Report on the United Nations Treaty System (2001), A/56/18, Annex VI.

302  In Jewish Community of Oslo, the petitioners argued, para. 5.2, that ‘groups of individuals’, ‘whatever its outer limits may be, clearly covers entities that organize individuals for a specific, common purpose, such as congregations and membership organizations’.

303  TBB-Turkish Union, paras 11.2–11.4.

304  TBB- Turkish Union, paras 11.3, 11.4.

305  In TBB-Turkish Union, the petitioning organization itself claimed authority to represent the victim demographic group—persons of Turkish heritage in Berlin and Brandenburg—as its ‘most visible and attentively heard voice’: para. 7.1.

306  Critical remarks by the respondent State party in TBB-Turkish Union, paras 4.3 and 6.1. In the case of acting for another person, the UN Model Complaint Form requests specific authorization, or an explanation of the nature of the relationship with that other person and why it is considered appropriate to act on their behalf.

307  See the succinct discussion of CERD group claims in G. Pentassuglia, Minority Groups and Judicial Discourse in International Law: A Comparative Perspective (Martinus Nijhoff, 2009), pp. 157–8. In the jurisprudence of the Human Rights Committee, Pentassuglia suggests, p. 157, that in the absence of specific community authorization, ‘a mandate…may be inferred from the author’s status within the community or other factors’.

308  Para. 5.4. The Committee did not comment on the submission, but was content to describe the author as a victim because she belonged to a targeted group (para. 6.5), any member of which would have been barred from residence (para. 10.1).

309  Khaitan distinguishes between ‘lay’ meanings of discrimination and discrimination in law—for laypersons, ‘discrimination entails some fault. In law, the actor may not be at fault’: T. Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015), p. 2. This distinction may carry validity in disputes concerning the application of domestic civil law (though hardly into criminal law), but it does not easily translate into international law and is not perhaps intended to do so. The reactions of States to many findings of CERD under Article 14 and Article 9, including the early warning system, suggest that findings of racial discrimination are perceived as assigning blame to States parties and are not ‘morally’ neutral.

310  In a submission that transcends the ICERD context, the UK states that it ‘remains to be convinced of the added practical value to people in the United Kingdom of rights of individual petition under the Convention. The United Kingdom has strong and effective laws on racial discrimination under which individuals may seek remedies in the courts or tribunals…by contrast, the treaty monitoring committees are not courts…cannot award damages or produce a legal ruling on the meaning of law’: CERD/C/GBR/21-23, para. 272.

311  E/2000/22, para. 51.

312  Joint General Recommendation 31 of CEDAW and General Comment 18 of the CRC on harmful practices, CEDAW/C/GC/31/CRC/C/GC/18 (2014).

313  See Chapter 18.