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Norman Weiß

Ethnicity — Equality before the law

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Notion

Phobia is derived from the Greek phobos, meaning fear. Originally, it is a psycho-medical term that is used to describe unreasonable anxieties. Xenophobia (from the Greek xenos, ie foreigner) thus means an unreasonable fear of foreigners. It is to be distinguished from an ordinary distrust of strangers. Xenophobia is an attitude against persons who are defined as different to oneself (‘others’), using real or mythical criteria. Therefore, xenophobia is not a medical phenomenon, but describes a mental reservation or political conviction against certain human beings, often leading to hatred and violence. Both the definition and use of the term xenophobia are complex.

Xenophobia does not necessarily result from direct or feared contact with foreigners. There is anti-Semitism in places without Jews and xenophobia in places with no foreigners. It has much to do with prejudice. Additionally, xenophobia includes hatred of human beings who might not be foreigners, but have a different ethnic background (see also Ethnicity). Social science tells us that otherness is the decisive criterion for xenophobia and that this otherness is constructed, even if it is visible by the colour of one’s skin. Xenophobia is one of the root causes of racism and discrimination and often leads to acts of violence (see also Racial and Religious Discrimination). In both Western and non-Western societies it is a widespread problem, making it a pressing political issue that remains unresolved.

From a legal perspective both xenophobia and racism, as mental attitudes, are not open to direct challenge. Only the manifestations of such convictions in words and deeds can have legal consequences. Therefore, there is a definition of racial discrimination and of genocide in international law, but no such definition for xenophobia or racism.

B.  Prohibition under International Law

In public international law it is clear that States can make legal distinctions between their own citizens and foreigners (see also Aliens). This view ties in with the concept of State sovereignty and has long been recognized. States can, among other things, restrict the right to vote or the duty to serve in the army to their nationals. In contrast human rights discourse, which is a newer set of ideas, emphasizes equality and therefore is against discriminatory distinctions based on nationality or ethnic background, that reflect xenophobic attitudes (see also Equality of Individuals). Soft law and political obligations both are of major importance for the fight against xenophobia.

1.  Prohibition under the Framework of the United Nations

Art. 55 (c) United Nations Charter (‘UN Charter’) fosters international action against discrimination by urging the United Nations (UN) to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion’. The Universal Declaration of Human Rights (1948) (‘UDHR’) recognizes in its preamble the ‘equal and inalienable rights of all members of the human family’. Art. 1 UDHR states that ‘[a]ll human beings are born free and equal in dignity and rights’ and Art. 2 UDHR emphasizes that ‘[e]veryone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour,…national or social origin’. Only Art. 21 (1) UDHR, on political participation, limits the rights of a person to take part in politics to nationals of a country (see also Elections, Right to Participate in, International Protection). Similarly, an alien cannot rely on Art. 21 (2) UDHR to gain access to public service in the State in which he or she is residing. It only guarantees this access to persons in their home country.

The UDHR clearly reflects the position of international law since 1945: some reasonable distinctions based on a person’s nationality are allowed, any type of discrimination is prohibited. The term xenophobia is not included explicitly in the text. Neither is it explicitly mentioned in the Convention on the Prevention and Punishment of the Crime of Genocide ([adopted 9 December 1948, entered into force 12 January 1951] 78 UNTS 277). It has not been dealt with legally as a separate phenomenon, as was the case with apartheid. Art. 2 International Convention on the Suppression and Punishment of the Crime of Apartheid (‘Apartheid Convention’) of 1973 states that the crime of apartheid includes adopting ‘similar policies and practices of racial segregation and discrimination as practised in southern Africa, [and applies to] inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’. The Apartheid Convention protects ‘members of a racial group or groups’ (Art. 2 Apartheid Convention). The victims of apartheid were ‘others’ but not necessarily non-nationals of South Africa. As such apartheid shows some similarities to xenophobia.

Even more recent legal texts do not explicitly address xenophobia as a discriminatory and thus unacceptable reason of distinction. There is no chapter on xenophobia in the International Convention on the Elimination of all Forms of Racial Discrimination (‘ICERD’), the International Covenant on Civil and Political Rights (1966) (‘ICCPR’), or the Convention on the Elimination of all Forms of Discrimination against Women (‘CEDAW’; see also Women, Rights of, International Protection). These instruments, just as the Declaration on the Elimination of all Forms of Racial Discrimination (UNGA Res 1904 [XVIII] [20 November 1963]), the United Nations Educational, Scientific and Cultural Organization Declaration on Race and Racial Prejudice (see also United Nations Educational, Scientific and Cultural Organization [UNESCO]) and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities (UNGA Res 47/135 [18 December 1992]), do not grapple with xenophobia by name, but nevertheless strongly reject all forms of discrimination based on the grounds of, among others, race, colour, ethnic or national origin, and religion.

The ICERD is of major importance as racial discrimination partly coincides with xenophobia. After having signed up to the ICERD, States Parties are pledged to not engage in any act or practice of racial discrimination against individuals, groups of persons, or institutions, and to ensure that public authorities and institutions do likewise. They must not sponsor, defend, or support racial discrimination by persons or organizations. States Parties have to review government, national, and local policies, and to amend or repeal laws and regulations which create or perpetuate racial discrimination. Furthermore, they have to prohibit and put a stop to racial discrimination by persons, groups, and organizations, to encourage integrationist or multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. Art. 3 ICERD, on the prohibition of racial segregation, is not restricted to forms of segregation that resulted from governmental action. In many industrial countries, residential, educational, and other forms of racial segregation came about as a result of the free choice of residents. Governments should monitor such trends, because inequalities in one generation could be transmitted to the next and then cause racial discrimination.

Art. 20 (2) ICCPR, which obliges the States Parties to prohibit by law ‘any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence’, tackles some aspects of xenophobia as well, without directly mentioning xenophobia. Being a reaction to national-socialist propaganda, Art. 20 (2) ICCPR is not a catch-all clause prohibiting xenophobic opinions and attitudes, but applies only to such manifestations that incite others to acts of discrimination, hatred, or violence.

10  The first universal instrument that mentioned the term xenophobia was the Vienna Declaration and Programme of Action (‘Vienna Declaration’), the outcome document of the Vienna World Conference on Human Rights (1993). Art. 1 (15) Vienna Declaration states that:

Respect for human rights and for fundamental freedoms without distinction of any kind is a fundamental rule of international human rights law. The speedy and comprehensive elimination of all forms of racism and racial discrimination, xenophobia and related intolerance is a priority task for the international community. Governments should take effective measures to prevent and combat them. Groups, institutions, intergovernmental and non-governmental organizations and individuals are urged to intensify their efforts in cooperating and coordinating their activities against these evils.

11  Art. 2 (19)–(24) Vienna Declaration is devoted to the issue of ‘racism, racial discrimination, xenophobia and other forms of intolerance’, the four elements that reflect today’s consensus on this issue. The Vienna World Conference on Human Rights called

upon all Governments to take all appropriate measures in compliance with their international obligations and with due regard to their respective legal systems to counter intolerance and related violence based on religion or belief, including practices of discrimination against women and including the desecration of religious sites, recognizing that every individual has the right to freedom of thought, conscience, expression and religion (Art. 2 (22) Vienna Declaration.

12  Furthermore, the Vienna World Conference on Human Rights welcomed the UN Commission on Human Rights (‘UNCHR’) Resolution 1993/20 to appoint a Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia, and related intolerance (see also Special Rapporteurs of Human Rights Bodies; United Nations Commission on Human Rights/United Nations Human Rights Council). The mandate of this mechanism was shaped by UNCHR Resolution 1994/64 and requests the Special Rapporteur:

to examine…incidents of contemporary forms of racism, racial discrimination, any form of discrimination against Blacks, Arabs and Muslims, xenophobia, negrophobia, anti-Semitism, and related intolerance, as well as governmental measures to overcome them, and to report on these matters to the Commission at its fifty-first session (para. 4).

13  The Durban Declaration of the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance notes that despite the numerous efforts of the UN, the objectives of the fight against racism and xenophobia have not been attained and that ‘countless human beings continue to the present day to be victims of racism, racial discrimination, xenophobia and related intolerance’ (Pmbl. Durban Declaration). The conference States affirm that racism and xenophobia constitute a negation of the purposes and principles of the UN Charter. They acknowledge ‘that xenophobia, in its different manifestations, is one of the main contemporary sources and forms of discrimination and conflict, combating which requires urgent attention and prompt action by States, as well as by the international community’ (Pmbl. Durban Declaration).

14  The Durban Declaration points to the importance of other essential social factors by stating that xenophobia may be aggravated by inequitable distribution of wealth, marginalization, and social exclusion. But xenophobia not only results from the precarious situation of those who develop xenophobic attitudes, but has, on a larger scale, negative economic, social, and cultural consequences.

15  When it comes to measures against racism and xenophobia, the Durban Declaration states ‘that the obstacles to overcoming racial discrimination and achieving racial equality mainly lie in the lack of political will, weak legislation and lack of implementation strategies and concrete action by States, as well as the prevalence of racist attitudes and negative stereotyping’ (para. 79 Durban Declaration). The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance declared that education, development and the faithful implementation of all international human rights norms and obligations, including enactment of laws and political, social and economic policies, are crucial to combat racism and xenophobia. In order to combat xenophobic attitudes effectively, the media should represent the diversity of a multicultural society and the power of advertising should be kept in mind (para. 88 Durban Declaration).

16  Since 2002, the UN General Assembly (‘UNGA’; United Nations, General Assembly) has been requesting the UN Secretary-General (United Nations, Secretary-General) to submit reports that focus on national and international activities relating to the comprehensive implementation and follow-up of the Durban Declaration and the Programme of Action thereto. Additionally, an Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action (‘IGWG’) has been established by UNCHR Resolution 2002/68 and approved by UN Economic and Social Council Decision 2002/270 of 25 July 2002 (see also United Nations, Economic and Social Council [ECOSOC]). A review conference on the implementation of the Durban Declaration and Programme of Action took place in April 2009.

2.  Prohibition under the Framework of the Council of Europe

17  The Convention for the Protection of Human Rights and Fundamental Freedoms (‘ECHR’; European Convention for the Protection of Human Rights and Fundamental Freedoms [1950]) does not mention the term xenophobia. It is also not found in Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms ([signed 4 November 2000, entered into force 1 April 2005] CETS No 177), which covers discrimination. The same is true of Art. 6 (1) Framework Convention for the Protection of National Minorities (‘FCNM’; see also Minorities, European Protection) that calls on the Contracting States to ‘encourage a spirit of tolerance and intercultural dialogue’ and to ‘promote mutual respect … among all persons living on their territory … irrespective of those persons’ ethnic, cultural, linguistic or religious identity’ and, in Art. 6 (2) FCNM, to ‘protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity’. However, the Explanatory Report states that Art. 6 FCNM ‘is an expression of the concerns stated in Appendix III to the Vienna Declaration’ (para. 47). The drafters refer to the Declaration and Plan of Action on Combating Racism, Xenophobia, Anti-Semitism and Intolerance. Art 6 (2) FCNM is also inspired by para. 40.2 Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE (see also Organization for Security and Cooperation in Europe [OSCE]).

18  In 1993, the Council of Europe (COE) decided to set up the European Commission against Racism and Intolerance (‘ECRI’), a body ‘entrusted with the task of combating racism, racial discrimination, xenophobia, anti-Semitism and intolerance in greater Europe’ (Art. 1 Statute of the European Commission against Racism and Intolerance). Using a country-by-country monitoring approach, the ECRI reviews Member States’ legislation, policies and other measures on racism, racial discrimination, xenophobia, anti-Semitism, and intolerance, and assesses their effectiveness. The ECRI can propose further action on a local, national, and European level and can formulate general policy recommendations to Member States. The ECRI interacts not only with Member States and their authorities, but works with representatives of civil society in order to promote dialogue and mutual respect among the general public.

19  The ECRI recommended to Member States to:

ensure that national criminal, civil and administrative law expressly and specifically counter racism, xenophobia, anti-semitism and intolerance, inter alia by providing

- that discrimination in employment and in the supply of goods and services to the public is unlawful;

- that racist and xenophobic acts are stringently punished through methods such as:

- defining common offences but with a racist or xenophobic nature as specific offences;

- enabling the racist or xenophobic motives of the offender to be specifically taken into account;

- that criminal offences of a racist or xenophobic nature can be prosecuted ex officio (Compilation of ECRI’s General Policy Recommendations 10).

C.  Reference to the Principle in Pronouncements of International Institutions Including International Jurisprudence

20  The reports of the UN Secretary-General to the UNGA mentioned above (see para. 16) show that many forums, bodies, and mechanisms within the UN system continuously deal with racism, racial discrimination, xenophobia, and related intolerance.

21  Of major importance is the work of the IGWG. During its fourth session in January 2006, the IGWG convened a high-level seminar on a) racism and the internet, and on b) complementary international standards for combating racism. The second part of the seminar dealt with the implementation of existing international instruments (see also Human Rights, Domestic Implementation). Participants discussed ways to enhance these instruments’ effectiveness in the fight against racism, racial discrimination, xenophobia, and related intolerance; they tried to identify gaps in international human rights law with a view to preparing complementary standards to address them and to outline the format of complementary standards to strengthen and update existing instruments.

22  The IGWG encouraged States that have not yet done so to ratify the ICERD, with a view to achieving its universal ratification. The IGWG further encouraged States Parties to review their reservations to international human rights instruments, in particular regarding Art. 4 ICERD, with a view to their possible withdrawal. It reminded States Parties of the need to comply with their reporting obligations under relevant human rights treaties, in particular the ICERD as a matter of priority.

23  The IGWG identified and/or considered the following substantive gaps in the ICERD: the protection of persons belonging to specific groups, (such as religious groups, refugees, asylum-seekers, stateless persons and migrants, migrant workers, internally displaced persons, descent-based communities such as persons of African descent, indigenous peoples, minorities) and of people under foreign occupation. Additional gaps and deficiencies also examined include multiple or aggravated forms of discrimination, xenophobia, ethnic cleansing, genocide, religious intolerance and defamation of religious symbols, racial discrimination in the private sphere, incitement to racial hatred, and dissemination of hate speech and xenophobic, defamatory caricature pictures, through traditional mass media and information technology, including the internet.

24  The IGWG deemed it necessary to reiterate that education, in particular human rights education, could be a key element in combating racism. It emphasized that the teaching of history based on accurate facts and lessons learned from history could help to avert future tragedies.

25  Additionally, the IGWG called upon States to consider ratifying urgently the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families ([adopted 18 December 1990, entered into force 1 July 2003] 2220 UNTS 3).

26  The Office of the High Commissioner for Human Rights (Human Rights, United Nations High Commissioner for [UNHCHR]) has placed the effective implementation of the Durban Declaration and Programme of Action among its priorities. It does so by extending substantive and organizational support to the relevant mechanisms and by providing guidance to international and national actors on the work countering racism and xenophobia.

27  The Committee on the Elimination of Racial Discrimination (‘ICERD Committee’) dealt with the issue on various occasions. With regard to Germany, the ICERD Committee stated that ‘attitudes of xenophobia and racial discrimination are rejected by a broad section of the German public, as shown in many spontaneous anti-discrimination demonstrations in German cities, expressions of compassion for the victims of violence, and frequent condemnation of xenophobia and racial discrimination in the daily press and other media’ (Concluding Observations of the Committee on the Elimination of Racial Discrimination: Germany [23 April 1997] UN Doc CERD/C/304/Add.24 para. 7).

28  When dealing with individual complaints (see also Human Rights, Individual Communications/Complaints), the ICERD Committee is often confronted with xenophobic attitudes. For example, during a commemorative march for Nazi-leader Rudolf Hess in Norway, one speaker expressed anti-immigrant and anti-Semitic opinions (ICERD Committee ‘Communication No 30/2003, The Jewish Community of Oslo et al v Norway’ [22 August 2005] UN Doc CERD/C/67/D/30/2003 para. 2.1). Criminal prosecution was ultimately turned down by the Norwegian Supreme Court which found that a conviction penalizing approval of Nazism would imply prohibiting Nazi organizations, which it considered to be incompatible with the right to freedom of speech (Opinion and Expression, Freedom of, International Protection). The ICERD Committee on the other hand considered the same statements to contain ideas based on racial superiority or hatred. It took the deference to Hitler and his principles and ‘footsteps’ as incitement to racial discrimination, if not to violence. The ICERD Committee concluded that the statements, given that they were of exceptionally or manifestly offensive character, were not protected by the due regard clause, and that accordingly the acquittal by the Supreme Court of Norway was a violation of Art. 4 ICERD and consequently Art. 6 ICERD (The Jewish Community of Oslo et al v Norway para. 10.5).

29  The European Court of Human Rights (ECtHR) does not refer directly to the term xenophobia in its judgments. But in cases like Gündüz v Turkey the ECtHR has held that:

tolerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance (including religious intolerance), provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued…Furthermore…there can be no doubt that concrete expressions constituting hate speech, which may be insulting to particular individuals or groups, are not protected by Article 10 of the Convention.

D.  Prohibition under Regional and National Law (General Trends)

1.  European Union

30  For European States, the law of the European Union (‘EU’) and of the European Communities (‘EC’) has a strong impact in many areas. The prohibition of discrimination of Member States’ citizens—since 1992 citizens of the EU—on grounds of nationality has been at the very core of the EC/EU activities from the very beginning of European integration with the result of an impressing body of rules. The Treaty on European Union and the Charter of Fundamental Rights of the European Union (2000) (‘European Charter’) do not mention the term xenophobia. Both instruments adopted the classical approach of dealing with xenophobia in an indirect manner under the headings of human rights and non-discrimination (Arts 20–26 European Charter). Art. 22 European Charter calls the EU to respect cultural, religious, and linguistic diversity.

31  After the broadening of its powers relating to discrimination in the 1997 Treaty of Amsterdam amending the Treaty on European Union, the Treaties Establishing the European Communities and Related Acts ([signed 2 October 1997, entered into force 1 May 1999] [1997] OJ C340), the EC in 2000 gave a specific legal basis for action to promote equal treatment through Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial or Ethnic Origin ([2000] OJ L180/22) and Council Directive 2000/78/EC of 27 November 2000 establishing a General Framework for Equal Treatment in Employment and Occupation ([2000] OJ L303/16). These directives afford a common minimum level of protection to EU citizens against all forms of discrimination. They also supplement and reinforce existing national legislative measures implementing the principle of equality that, prior to the implementation of the directives, all States had enshrined through their constitutional and/or common laws.

32  The European Monitoring Centre on Racism and Xenophobia (‘EUMC’) was established by Council Regulation (EC) 1035/97 of 2 June 1997 establishing a European Monitoring Centre on Racism and Xenophobia ([1997] OJ L151/1) which was amended by Council Regulation (EC) 1652/2003 of 18 June 2003 amending Regulation (EC) No 1035/97 establishing a European Monitoring Centre on Racism and Xenophobia ([2003] OJ L245/33). The EUMC started its activities in 1998. The European Information Network on Racism and Xenophobia was set up to collect data and information at national as well as at the European level. On the basis of that data, the EUMC studied the extent and development of the phenomena and manifestations of racism, xenophobia, anti-Semitism, Islamophobia, and related intolerance. The EUMC analysed their causes, consequences, and effects, and worked out strategies to combat racism etc.

33  The European Union Agency for Fundamental Rights (‘FRA’), established by Council Regulation (EC) 168/2007 of 15 February 2007 establishing a European Union Agency for Fundamental Rights ([2007] OJ L53/1), replaced EUMC on 1 March 2007. The FRA has the task to provide the relevant institutions and authorities of the EU and its Member States when implementing EU law with assistance and expertise relating to fundamental rights. Its focus thus was broadened and now covers all human rights. But the fight against discrimination, racism, and xenophobia remains crucial for the FRA as the EU designated 2007 the ‘European Year of Equal Opportunities for All’ in order to launch a major debate on the benefits of diversity for European societies.

2.  Germany and Other Industrialized States

(a)  Penal Law

34  Xenophobia is a continuing phenomenon in Germany, as in other Western and non-Western countries. Especially in the 1990s, when a very emotional debate on the right to asylum took place, a great number of violent offences occurred. In 1992, 17 persons were killed, about 800 persons were injured. International and regional human rights bodies expressed their grave concern about this unexpected outburst of violence. In 2001, the ICERD Committee was concerned that despite appropriate actions undertaken by the German government and significant improvements to the various means of preventing and punishing right-wing extremist, xenophobic, and anti-Semitic crimes, the number of racist-related incidents suddenly and dramatically increased during 2000.

35  The ICERD Committee had to express its concern with regard to xenophobic, often violent attacks in, for example, Belgium (2002), France (2005), Japan (2001), Russia (2003), Spain (2000 and 2004), Sweden (2001), Switzerland (1998 and 2002), and the United Kingdom (‘UK’) (2001 and 2003). Most of these countries have, over the years, implemented national legislation prohibiting xenophobic violence and related hate speech. The German Penal Code (‘GPC’) which contains the following criminal provisions relevant to combating racially-motivated crimes may serve as an example.

36  The crime of agitation of the people (Sec. 130 GPC), which also covers incitement to racial hatred, is one of the most important criminal provisions in the GPC as regards combating right-wing extremist and xenophobic propaganda.

37  Sec. 130 (3) GPC covers the approval, denial, or downplaying of the crime of genocide committed under National Socialism that may be capable of breaching the public order, while Sec. 130 (2) No 2 GPC covers the dissemination of content via the media and teleservices which incites people to hatred. As a result, the provision covers non-radio, non-recorded, live broadcasts, especially, for example, real-time transmission (so-called webcams) or audio broadcasts on the internet.

38  On 11 March 2005 the most recent amendment to Sec. 130 GPC was made in order to close a legal loophole. Now Sec. 130 (4) GPC covers the approval, glorification and justification of Nazi tyranny and despotism as such, if the public peace is thereby disturbed and the victims’ dignity is violated.

39  In the UK, the Race Relations Act 1976 (UK) chapter 74 already criminalized ‘incitement to racial hatred’ but the legal framework lacked efficiency. Therefore, the provisions of Secs 17–29 Public Order Act 1986 (UK) chapter 64 gave effect to the goal of combating xenophobic violence. Additionally, the Criminal Justice and Public Order Act 1994 (UK) chapter 33 made publication of material that incited racial hatred a criminal offence.

40  Art 29 (2) Constitution of the Russian Federation states: ‘Propaganda or agitation which arouses social, racial, national or religious hatred and hostility shall be prohibited. Propaganda of social, racial, national, religious or linguistic supremacy shall also be prohibited.’ This provision and other articles in the Constitution of the Russian Federation are elaborated upon and amplified by other laws and regulations of the Russian Federation. The crime of incitement to ethnic, racial, or religious hatred is defined by Art. 282 Criminal Code of the Russian Federation (on hate-mongering and disparagement).

41  Art. 32 Constitution of the Republic of Poland (‘Polish Constitution’) stipulates that all persons shall be equal before the law and have the right to equal treatment by public authorities and no one may be discriminated against in political, social, or economic life for any reason whatsoever. Any infringement of those rights of persons and citizens constitutes infringement of the Polish Constitution and is regarded as an offence. Additionally, Art. 13 Polish Constitution introduces a ban on the existence of political parties and other organizations whose programmes are based upon totalitarian methods and the modes of activity of Nazism, fascism, and communism, as well as those whose programmes or activities assume or sanction racial or national hatred. These constitutional provisions are accomplished, among other, by Arts 118–19 and 256–57 Polish Criminal Code.

42  In Hungary, the basic anti-discrimination measures and provisions of the Hungarian legal system are to be found in the Constitution of the Republic of Hungary itself, while the details and safeguards are elaborated in statutes in line with the Hungarian Constitution, some of them in the comprehensive codes of the various legal branches. Act XVII of 1996 introduced new elements of crime into the Hungarian Criminal Code (‘HCC’) and also amended some of its sections. Penal consequences are codified in Sec. 155 HCC for genocide and in Sec. 157 HCC for apartheid, whereas Sec. 174/B HCC sanctions violence against a member of a national, ethnic, racial, or religious group.

43  In the United States of America (‘US’), there exists a broad range of statutes prohibiting discrimination on various reasons in many fields of human life. The Fair Housing Act (PubL 90-284, 82 Statutes at Large 81 [1968]), originally enacted as Title VIII Civil Rights Act (PubL 90-284, 82 Statutes at Large 73 [1968]) and amended by the Fair Housing Amendments Act (PubL 100-430, 102 Statutes at Large 1620 [1988]), is codified at 42 United States Code § 3601–19. It prohibits discrimination on the grounds of, inter alia, race, colour, religion, or national origin in the sale or rental of housing as well as in other real estate related transactions. It also includes a criminal provision, which makes it a federal crime for any person to use force or the threat of force wilfully to injure, intimidate, or interfere with, or attempt to injure, intimidate or interfere with any person because of his or her race, colour, religion, sex or handicap, and because he or she is exercising federally protected housing rights (42 United States Code § 3631). This statute is used, for example, to prosecute cross-burnings and other racially motivated threats and violence directed at people in their homes.

44  The US government has long condemned racial discrimination and, therefore, it engages in many activities both to combat prejudices leading to racial discrimination and to promote tolerance, understanding, and friendship among national, racial, and ethnic groups. Such programmes include those under the authority of Title VI Civil Rights Act, the Fair Housing Act, the Bilingual Education Act (PubL 90-247, 81 Statutes at Large 816 [1968]), the Mutual Educational and Cultural Exchange Act (PubL 87-256, 75 Statutes at Large 527 [1961]), the International Education Act as Title VI Higher Education Act (PubL 89-329, 79 Statutes at Large 1219 [1965]), and the National Foundation on the Arts and the Humanities Act (PubL 89-209, 79 Statutes at Large 845 [1965]). Also, under US law, federal tax money cannot be used to support private entities, such as schools, that practise racial or ethnic discrimination. Further, the Hate Crimes Statistics Act (PubL 101-275, 104 Statutes at Large 140 [1990]) mandates collection by the Justice Department of data on crimes motivated by, inter alia, race.

(b)  Preventive Action

45  Preventive action is an important element in combating xenophobia. In this regard, a twofold approach seems appropriate. In the first line, immigrants must have the opportunity to receive a good education in order to have the opportunity to participate in public life, to have economic success, and to make social advancement. International human rights law encompasses the right to education in Art. 26 UDHR, Art. 13 International Covenant on Economic, Social and Cultural Rights (1966), Art. 28 Convention on the Rights of the Child ([adopted 20 November 1989, entered into force 2 September 1990] 1577 UNTS 3), Art. 10 Convention on the Elimination of All Forms of Discrimination against Women [(adopted 18 December 1979, entered into force 3 September 1981] 1249 UNTS 13), and Art. 5 (e) (v) ICERD (see also Education, Right to, International Protection).

46  Most of the countries mentioned above have implemented the right to education in their national laws: Art. 5 Russian Education Act (No 3266-1 of 10 July 1992) guarantees the opportunity to receive an education irrespective of sex, race, ethnic background, language, origin, place of residence, attitude to religion, beliefs, social status, wealth, or official position. Art. 70 Polish Constitution guarantees everybody’s right to education and in the Czech Republic, Art. 33 Charter of Fundamental Rights and Basic Freedoms concerns the right to education, defining it as a right to free school and university education. Under conditions defined by law, citizens have a right to assistance from the State during their studies.

47  Although the legal situation is more or less the same in Member States of the Organization for Economic Cooperation and Development (OECD), the results of education vary strongly. This is especially the case for immigrants, whose opportunities for educational success depend to a high degree on the schooling system. One major finding says that the earlier students were stratified into separate institutions or programmes, the stronger was the impact which the school’s average socio-economic background had on performance. Therefore, some education systems do not effectively support advancement. Especially immigrants seldom get the necessary additional support, thus perpetuating social inequality.

48  Furthermore, the population must be informed about immigrants, their culture, the differences and similarities of their respective cultures, and must be educated in a spirit of tolerance and respect. This is a very important means to reduce xenophobia, which often results from ignorance and unreasonable fears. Nevertheless, there exist very intense discussions whether and to what extent the public authorities are authorized or even obliged to educate society, especially pupils, in tolerance. One might say that tolerance with regard to ethical convictions neither means judging these ethical convictions nor declaring them to be equal. In State-run schools tolerance can only mean respect with regard to other persons and their liberty to hold opinions and to have convictions. Thus, tolerance leads to a consensus to disagree.

3.  Selected South-American, African, and Asian States

49  When assessing the legal protection of individuals’ human rights and the efficiency of the legal order in general, one has to be aware of a substantial difference between OECD Member States and other States. As the protection system is built upon a functioning statehood—both for internal protection and for international cooperation—it is not successful if the State is weak or already failed (see also Failing States). Of course, the system does not work either, if governments such as dictatorships are governing a strong State but are not devoted to human rights at all.

50  The 1988 Constitution of the Federative Republic of Brazil elevated racism from a misdemeanour to a felony, making it a non-bailable and imprescriptible offence subjecting the accused to confinement. In Brazilian penal law, the crime of racism was established in 1951 (Law 1390) and further developed in the provisions set out in Law 7716 of 1989, with the corresponding amendments introduced by Law 9459 of 1997. Hence, in Brazil there exist constitutional and statutory provisions aiming at combating xenophobia and racist discrimination. Nevertheless, Brazil faces problems that the ICERD Committee addressed in 2004: it was concerned about de facto racial segregation faced by some black, mestizo, and indigenous peoples in rural and urban areas, such as the commonly known favelas. Additionally, it criticized the fact that despite the widespread occurrence of offences of discrimination, the relevant domestic legal provisions against racist crimes are reportedly rarely applied.

51  The Constitution of the Republic of India (‘Indian Constitution’) expressly prohibits racial discrimination in all forms. Prevention of discrimination is an important component of the spirit of equality, which is central to the philosophy of the Indian Constitution. This is expressed in Arts 14–17, 19–30, 32–35, 38–39A, 41–47, and 51A Indian Constitution. Several domestic laws give effect to constitutional provisions eliminating discrimination, guaranteeing fundamental rights and freedoms, and stipulating remedies in the case of their infringement or violation. Secs 153A, 153B, and 505 Indian Penal Code make punishable acts which instigate racial discrimination. These provisions prohibit enmity between the different groups on grounds of religion, race, place of birth, residence, language etc, making violations of these provisions punishable with imprisonment, a fine, or both.

52  According to the ICERD Committee, racial and ethnic prejudice, as well as caste bias and stereotypes, are still deeply entrenched in the minds of wide segments of Indian society, particularly in rural areas. In order to achieve true social cohesion among all ethnic groups, castes, and tribes of India, the ICERD Committee recommends intensifying public education and awareness-raising campaigns and incorporating educational objectives of inter-caste tolerance and respect for other ethnicities, as well as instruction on the culture of scheduled castes and scheduled and other tribes, in the National Curriculum Framework.

53  South Africa is a country that has to deal with the social legacy of legalized racism. It therefore has a fully developed policy framework regarding the elimination of racial discrimination which is articulated in Secs 1 and 9 Constitution of the Republic of South Africa (‘South African Constitution’) and a number of statutes which give effect to the South African Constitution. The key statutes in this regard include the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Employment Equity Act 55 of 1998, and the Preferential Procurement Policy Framework Act 5 of 2000. The conceptualization of equality and non-discrimination in the South African Constitution and these acts took into account international instruments which deal with the elimination of discrimination and the achievement of equality. Nevertheless, in 2006 the ICERD Committee had to express its concern about the frequency of hate crimes and hate speech in the State Party and the inefficacy of the measures in preventing such acts. Again, in May 2008, acts of persecution of foreign migrant workers mainly from Zimbabwe and other African countries were reported, and at least 12 people were killed. Thus, further effective measures that prevent, combat, and punish hate crimes and speech are necessary.

E.  Assessment

54  It seems that the fight against xenophobia is a controversial issue. While there is unanimity about the goal, the means are debatable. Societies and States that are devoted to human dignity, human rights, and the rule of law must not accept xenophobia, especially in the form of hate crimes.

55  It is remarkable that in Germany the National Socialists amended the GPC in order to persecute moral convictions by introducing more subjective elements (so-called Gesinnungsstrafrecht). Today, we discuss using the same structural approach in order to aggravate the criminalization if an offence was motivated by a xenophobic attitude. It remains to be seen whether this improves the protection or if it is a form of discrimination against victims who are attacked on other, non-xenophobic grounds. Furthermore, it is questionable whether perpetrators will change their attitude; possibly, their hatred against ‘the system’ will be reinforced and members of other excluded or marginalized groups, like punks or homosexuals, will be their next victims.

56  Civic education and human rights education are necessary means for creating a culture of respect, non-violence, and peace which is necessary to prevent xenophobia. However, they do not lead to positive results automatically or immediately.

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