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

8 Article 2: Obligations to Eliminate Racial Discrimination

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: 26 May 2019

Subject(s):
Religion — Ethnicity — Minorities — Race

(p. 160) 8.  Article 2

Obligations to Eliminate Racial Discrimination

The present chapter addresses Article 2(1). Along with Article 1(4), Article 2(2) is the subject of Chapter 9 on special measures.

1.  States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end:

  1. (a)  Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

  2. (b)  Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations;

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

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

  5. (e)  Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division.

A.  Introduction

Human rights instruments, after the model of the Universal Declaration of Human Rights (UDHR), characteristically combine statements of rights with statements of obligation in order to convert principle into practice: the language of obligation varies according to the nature of the instrument. Following the definition of racial discrimination in Article 1, the complex and action-oriented Article 2 sets out the Convention’s broadest portfolio of State ‘undertakings’ or obligations—referred to in Article 5 as ‘fundamental obligations’—on the basis of which racial discrimination is prohibited across a spectrum of human rights. The breadth and depth of the requirements of Article 2, coupled with the obligations set out elsewhere in the Convention, might leave an impression that the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is principally concerned with obligations rather than rights. The Committee on the Elimination of Racial Discrimination (CERD) has, however, found, by necessary implication, a wider presence of rights in the Convention beyond their explicit listing in Article 5.1

(p. 161) Instruments focusing on the elimination of particular evils analogous to racial discrimination, such as the Convention against Torture (CAT) and the International Convention for the Protection of All Persons from Enforced Disappearance (CPED), are replete with references to obligations, as is ICERD’s sister instrument on discrimination, the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).2 Texts devoted principally to the enunciation of rights characteristically include a general obligations clause supplemented by more detailed prescriptions. States parties to the International Covenant on Civil and Political Rights (ICCPR) undertake ‘to respect and to ensure’ the rights,3 and those to the International Covenant on Economic, Social and Cultural Rights (ICESCR) ‘to take steps…with a view to achieving progressively the full realization of the rights’ as well as to guarantee that they will be exercised without discrimination.4 The Convention on the Rights of the Child (CRC) opts for the basic formula of ‘to respect and ensure’ the rights ‘without discrimination of any kind’,5 and devotes a wide range of articles to elaborating on the basic obligation; ‘respect and ensure’ is also employed by the International Convention on the Protection of the Rights of All Migrant Workers and their Families (CMW),6 while the ‘general obligations’ article in the Convention on the Rights of Persons with Disabilities (CPRD) employs the formula of ‘to ensure and promote’7 the full realization of convention rights, and makes provision for the specifics of economic and social rights. Among the regional instruments on human rights, the African Charter on Human and Peoples’ Rights (ACHPR) obliges States to ‘recognise’ the rights and adopt measures to give effect to them;8 the European Convention on Human Rights (ECHR) includes a general obligations Article, directing States to ‘secure’ the rights,9 while the American Convention on Human Rights (ACHR) mandates ‘respect’ for rights.10 Group-oriented human rights instruments also concern themselves with general obligations—the United Nations Declaration on Minorities (UNDM), for example, elaborates a platform of obligations in Article 4, while the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) employs a characteristic mix of rights and obligations throughout the greater part of its text.11

The nature and scope of obligations under human rights instruments has been the subject of sustained analysis over decades, resulting in deconstructive typologies and characterizations. Landmark studies and scholarly proposals from human rights bodies and academics include those prepared by Eide12 and Shue.13 The latter referred to moving (p. 162) beyond the simplistic assumption that for every right there was a single correlative duty, and categorized duties in the field of human rights as duties (a) to avoid depriving, (b) to protect from deprivation, and (c) to aid. Eide’s typology of obligations to respect, protect, and fulfil human rights has become a standard point of reference for monitoring institutions, activists, and commentators. Roughly translated, the obligation to respect signifies the primarily negative principle that the State should refrain from interfering with the enjoyment of a right; the obligation to protect implies that States should actively shield right holders from the actions of third parties;14 the obligation to fulfil requires to duty-bearer ‘to adopt appropriate legislative, administrative and other measures towards the full realization of human rights’.15 For this last aspect of obligation, sub-obligations to facilitate, to promote,16 and to provide have been individuated.17 The typology of obligations was developed principally in the context of economic, social, and cultural rights,18 though claims are made for it to function as a template for the generality of human rights in that it supplies nuance and progression to the simple distinction between positive and negative action.19

(p. 163) ‘Respect’, ‘protect’, and ‘fulfil’ appear in the regular discourse of the Committee, even if not framed as a tripartite typology.20 ‘Respect’ appears in contexts such as ensuring respect for the ways of life of ethnic groups,21 in relation to particular rights and freedoms,22 or human rights more generally. ‘Protect’ appears in many contexts, notably in protection of vulnerable groups such as indigenous peoples in their livelihoods23 and in other respects—citations of the protection provisions of GR 23 are much in evidence;24 in relation to other oppressed populations or individuals;25 in measures to protect the security of persons from violence,26 from stereotyping,27 or simply from racial discrimination.28 In the context of special measures in Articles 1(4) and 2(2), ‘protection’ is concerned, according to GR 32, with ‘violations of human rights emanating from any source, including discriminatory activities of private persons’.29 ‘Fulfil’ tends to appear in the context of fulfilment of obligations specifically or generally.

B.  Travaux Préparatoires

The initial Sub-Commission drafts of a general obligations paragraph showed considerable variation. The Abram draft made reference to ‘persons, groups of persons or institutions’ to be protected against discrimination on various ‘grounds’ (the ultimate destination of which was Article 1 of the Convention)—‘race, colour, or ethnic origin, or where applicable, on the basis of “nationality” or national origin’.30 States would also be obliged not to encourage or lend support ‘through police action or otherwise’ to discrimination by ‘any group, institution or individual’.31 ‘Grounds’ of discrimination—‘race, colour or ethnic origin’—were also alluded to in the drafts of Calvocoressi32 and Kertzynski—‘race, colour or ethnic origin or, where applicable, on the basis of “nationality” or national origin’.33 The Calvocoressi draft included the obligation ‘to pursue a national policy designed to prevent discrimination within its territory’,34 as well as broaching the issue of criminal responsibility for racial violence.35 Legislation for the (p. 164) speedy elimination of racial discrimination was expressly adverted to in the Kertzynski text.36 The Calvocoressi/Capotorti text selected for discussion included the following elements for what became paragraph 1 of Article 2 of the Convention:37

  1. 1.  Each Contracting State undertakes to pursue by all appropriate means a policy of eliminating racial discrimination in all its forms.

  2. 2.  Each Contracting State shall rigorously abstain from any act or practice of racial discrimination and undertakes that all its legislative, executive, administrative and judicial organs, and also local authorities and public institutions of all kinds within its territory, shall act in conformity with this obligation. No contracting State shall encourage, advocate or support racial discrimination by any individual, group or private organization.

  3. 3.  Each Contracting State shall rescind any laws and regulations which have the effect of creating or perpetuating racial discrimination.

  4. 4.  Each Contracting State undertakes to adopt all necessary measures, including legislation if appropriate, to prohibit racial discrimination by any individual, group or private organization.

Following discussions, the phrase ‘and without delay’ was added by the authors after ‘all appropriate means’ in the first sentence of paragraph 1; ‘to this end’ was also added at the end of the sentence. In a reorganization of the text, sub-paragraphs 2, 3, and 4 were converted into (a), (b), and (c) of paragraph 1.38 Key deletions were made from new sub-paragraph (a), including the words ‘rigorously’, ‘legislative, executive, administrative and judicial’,39 and ‘private’.40 ‘Public institutions’ was retained as a phrase because, as explained by Capotorti, the words ‘could cover any institutions not entirely dependent on the State, established by law for public purposes’;41 he also defended the inclusion of a reference to local authorities ‘which in many countries were not part of the State machinery’.42 Reference to ‘individuals’ was changed to ‘persons’: according to Capotorti, the change widened the scope of the text.43 The words ‘take effective measures to revise government policies’ were added to new sub-paragraph (b) after ‘each contracting State shall’,44 and the order of sub-paragraph (c) was changed, placing the prohibition of racial discrimination first. The reference to ‘within its territory’ was also dropped, with Ferguson offering the comment that deletion of ‘within its territory’ would ‘have the advantage of (p. 165) implying that the responsibility of the State extended to all areas in which it exercised authority’.45 Further amendments by Ivanov were not accepted by the Sub-Commission, including one which incorporated an explanation of the unacceptability of racial discrimination as ‘an infringement of the rights and an offence to the dignity of the human person and a denial of the rules of international law and of the principles and objectives set forth in the United Nations documents mentioned in the preamble of the present Convention’.46

The Commission on Human Rights had before it the following text of Article 2(1):

States parties to the present Convention condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms, and to this end:

  1. (a)  Each State party undertakes to engage in no act or practice of racial discrimination, and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation. Each State party undertakes not to encourage, advocate or support racial discrimination by any person, group or organization;

  2. (b)  Each State party shall take effective measures to revise governmental and other public policies, and to rescind or nullify any laws or regulations which have the effect of creating or perpetuating racial discrimination wherever it exists.

  3. (c)  Each State party shall prohibit racial discrimination by any person, group or organization, and undertakes to adopt all necessary measures, including legislation, if appropriate.

In discussions, Lebanon proposed and gained acceptance for the deletion of the second sentence of paragraph 1(a),47 ‘since it was unthinkable that States parties would encourage, advocate or support racial discrimination’.48 An Austrian amendment to add the words ‘against persons, groups or organizations’ after ‘practice of racial discrimination’ on the basis that in the matter of the fundamental obligations of States parties it was important to be clear and explicit,49 was also adopted.50

A number of amendments to paragraph 1(b) were accepted without objection. Hence the word ‘revise’ was replaced by ‘review’ on the proposal of the United Kingdom (UK),51 whose representative argued that ‘revise’ implied that all countries would have to change their policy, while ‘review’ would mean that ‘all governments would be required to examine their laws with care and would therefore be in a better position to decide what changes they should make in those laws’.52 There was some discussion on the phrase ‘rescind or nullify’ in sub-paragraph (b), based partly on the text of Article 4 of the Declaration on the Elimination of All Forms of Racial Discrimination which used only the term ‘rescind’.53 This led to the suggestion that ‘nullify’ be deleted, in case it merely (p. 166) duplicated ‘rescind’.54 ‘Nullify’ was, however, retained along with ‘rescind’ on the basis that they were both a means of attaining the same end,55 and by retaining both, the Commission would ‘be sure of taking into account the differences between legal systems’.56 On a proposal by India, the two terms were added to by ‘amend’ before ‘rescind or nullify’.57

Discussions on sub-paragraph (c) brought forth a substantive dispute on whether the elimination of racial discrimination must inevitably take time. The UK proposed to delete the reference to ‘prohibition’ and replace it with ‘undertake all necessary measures, including legislation if appropriate’,58 to bring racial discrimination to an end. The UK argued that the chapeau of paragraph 1 suggested that the elimination of racial discrimination would take time and that this was contradicted by sub-paragraph (c) where prohibition implied an immediate undertaking, bearing in mind that the rest of sub-paragraph (c) did not imply immediate action.59 The UK also felt that to eliminate racial discrimination, methods other than legislation would be required,60 including education.61 The proposal, eventually superseded by an oral Turkish amendment,62 nevertheless evoked strong opposition:

If a State party refused to prohibit racial discrimination and proposed instead a very vague undertaking to bring it to an end within an unspecified period of time, the purpose for which the Convention had been drafted would never be attained. The question was whether the State party should begin by prohibiting discrimination…The United Kingdom text was far more than an exercise in semantics. The only States likely to be pleased by its wording were those which had no desire to take firm measures but were ready to affix their signatures to the Convention because of the pressure of public opinion…The…text would prolong the struggle against discrimination indefinitely and would provide…loopholes by means of which compliance…could be evaded.63

Despite this, the Turkish text, while retaining the word ‘prohibition’ was read, on account of its use of the phrase ‘all appropriate means’, to allow a certain latitude to States.64

(p. 167) The text of Article 2(1) before the Third Committee read as follows:

States parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms, and, to this end:

  1. (a)  Each State party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions, and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation;

  2. (b)  Each State party shall take effective measures to review governmental and other public policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists;

  3. (c)  Each State party shall prohibit and bring to an end, by all appropriate means, including legislation if necessary, racial discrimination by any persons, group or national organization.

In the Third Committee the phrase ‘and promoting understanding among all races’ was successfully proposed by Brazil, Colombia, and Senegal as an addition to the chapeau after ‘racial discrimination in all its forms’.65 The final Article 2, paragraph 1(b) of the Convention owes its place to a multi-State amendment which superseded an amendment of Brazil,66 and was viewed as adding to the reach of the Convention.67 The Commission’s sub-paragraph (b) (sub-paragraph (c) of the Convention) was amended to replace the words ‘other public’ by ‘national and local’ by virtue of the same multi-State amendment.68 Sub-paragraph (c) of the Commission’s text (sub-paragraph (d) of the Convention) was also amended to delete from ‘group or national organization’ the word ‘national’, a change that widens its scope.69 In this sub-paragraph, the phrase ‘if necessary’ was replaced by ‘as required by circumstances’ on the initiative of Poland and Ghana.70 The Polish representative, echoing similar points made before the Commission, objected to the wording of the sub-paragraph which

was open to the interpretation that the decision as to whether there was any need for legislation to put an end to racial discrimination rested solely with the State concerned, even in States where no such legislation existed. There was therefore no guarantee that racial discrimination would be (p. 168) prohibited by law in all States…the Convention should impose upon States parties the obligation to prohibit racial discrimination through their legislation if they had not yet done so.71

As it had in the Commission, the UK objected, arguing that racial discrimination might persist even after the adoption of legislation, and that the General Assembly ‘should not attempt to dictate to States, particularly since the nature and size of the problem varied from country to country’.72 The representative of Haiti introduced a motif which became important in the life of the Convention: explaining Haiti’s abstention, the representative ‘could not accept the imposition on States of an obligation to adopt legislation which was not necessary in cases where, as in Haiti, racial discrimination did not exist’.73

Sub-paragraph (e) of Article 2.1, which had not figured in the text prepared by the Commission, was introduced by Brazil, Colombia, and Senegal.74 This was supported by Ecuador, among others, because it ‘contained a positive idea, in contrast with the negative character of all the previous provisions…[and]…concerned measures calculated to promote integration…in keeping with the traditions of Latin America, where all multiracial societies were integrated’.75 On the other hand, in an explanation of vote, the representative of Costa Rica considered that ‘the word “discourage” had no legal validity and only weakened the text’.76 In a similar vein, the UK considered that the paragraph was superfluous and that the weak verb ‘discourage’ contrasted (badly) with the ‘vigorous nature’ of the language of Article 2, paragraph 1.77 Austria abstained in the vote on sub-paragraph (e) ‘since the problem of racial barriers did not exist in Austria’.78

C.  Practice

I.  Reservations and Declarations

A small number of reservations relate specifically to Article 2: on 2(1), Monaco declares that ‘it reserves the right to apply its own legal provisions concerning the admission of foreigners to the labour market of the Principality’.79 The reservation by the US is the most extensive, relating essentially to obligations to address private conduct: ‘the United States does not accept any obligation under this Convention to enact legislation or take other measures under paragraph 1 of Article 2, sub-paragraphs 1(c) and (d) of Article 2, Article 3, and Article 5 with respect to private conduct except as mandated by the Constitution and laws of the United States’. The Committee noted the reservation with concern and has,80 inter alia, invited the US to ‘consider withdrawing or narrowing the scope of its reservation to Article 2 of the Convention’.81 Banton is less respectful, (p. 169) reflecting that ‘the reservations [by the USA] show no understanding of the Convention and what it is attempting to achieve’.82

II.  Guidelines

The harmonized reporting guidelines request information for the common core document that impinges on Article 2. In addition to information on the legal framework for the protection of human rights at the national level, more focused information is requested ‘on whether the principle of non-discrimination is included as a general binding principle’ in domestic law,83 and on ‘steps taken to ensure that discrimination in all its forms and on all grounds is prevented and combated in practice’.84 The CERD-specific guidelines do little more than to restate the provisions of Article 2 paragraph by paragraph;85 the only novel note is the request for information on whether a national human rights institution (NHRI) or other appropriate bodies have been mandated with the task of combating racial discrimination.

III.  Convention Obligations and Domestic Law

International law requires that States bring their domestic (national) law into line with their international obligations and that domestic provisions may not be invoked to defeat an international obligation.86 Article 2, as the principal repository of general obligations to implement the Convention, is a useful starting point to consider the relationship between the Convention and the law of the State, bearing in mind Leary’s observation that the efficacy of human rights treaties depends in essence on their translation into domestic law.87 Discussion of the relationship between systems of law is often enmeshed in generalized theory. Approaches to the incorporation of international law into domestic legal orders are sometimes characterized in reductionist mode as monist or dualist—the former signifying automatic incorporation into domestic law with binding effects therein, the latter implying that specific legislative adjustments are required to give international law binding effects within national legal orders.88 The theories are saturated with competing notions of the superiority of one system over another, which may serve to obscure the complex connections between the domestic and international spheres.89 There is a fair degree of convergence across civil and common law jurisdictions with regard to the incorporation of customary international law—automatic incorporation at least in theory, although issues of consonance with established domestic law and status in (p. 170) the legal hierarchy position its practical effect.90 On the other hand, patterns of incorporation of international treaties vary widely. Committee discussions regularly refer to the variety of techniques of incorporating human rights treaties into the domestic realm. International law does not dictate a preference for one system of incorporation over another but requires that, whatever the mode, the standards of the Convention in question are adequately reflected in domestic practice.

In States where the prevailing practice is automatic incorporation through constitutional provision, CERD prefers that constitutions underline the primacy of international treaties over domestic law as clearly as possible,91 and frequently recalls that incorporation in the constitution may not in itself be sufficient. Apart from the question of the ‘non-self-executing’ nature of—at least some—of the provisions in the Convention,92 the constitution may not be drafted in terms adequate to capture the full range of grounds of discrimination or the rights in the Convention.93 Constitutional review94 or amendments may be urged upon the State,95 as well as supplementary legislation to give full effect to the Constitution and remedy legal lacunae.96 Requested legislation may be compendious, as with Panama, recommended to ‘adopt legislation to make fully effective the provisions of the constitution relating to non-discrimination and expressly prohibiting discrimination based on grounds of race and to guarantee the availability of effective remedies to endure implementation of such legislation’.97 A State party may be requested to clarify the relationship between the Convention and domestic law.98

In the case of ‘dualist’ systems, the Committee accepts that there is no obligation to incorporate the Convention as such into law but may express regret that this has not been done, an argument linked to the concern that, without such incorporation, the Convention may not be given full effect. Thus, CERD reiterated to the UK ‘its continuing concern that the State party’s courts may not give full effect to the provisions of the Convention unless it is expressly incorporated into its domestic law or the State party adopt necessary provisions in its legislation’; the UK was therefore requested to reconsider its position—non-incorporation as such—‘so that the Convention can be more readily invoked in the domestic courts of the State party’.99 In the case of Denmark, CERD suggested that the non-incorporation of international treaties resulted ‘in reluctance by (p. 171) lawyers and judges to invoke such treaties in Danish courts’; incorporation, it was argued, was necessary ‘to ensure [the Convention’s] direct application before Danish courts in order to afford all individuals its full protection’.100 When incorporation of the Convention is a possible agenda, it should be, according to the Committee, at an appropriately high level, not lower than other, comparable human rights treaties.101 When incorporation is a less probable State agenda, the Committee’s preference is for legislation to be as comprehensive as possible.102

Preoccupations over the functioning of the Convention in domestic law were aptly summarized by CERD member de Gouttes:

The debate on the contrast between countries with a monist legal system, in which international treaties and agreements took precedence over domestic legislation as soon as they had been approved, and those with a dualist legal system was perhaps not the most consequential. It was more important to know whether a duly ratified instrument was self-executing. Even in the case of a monist system, any ratified treaty had to be accompanied by internal legislation defining the sanctions and penalties incurred for any derogation from the obligations…indeed, since no human rights treaty provided for punishment in the event of non-compliance with its provisions, implementing regulations were absolutely necessary to ensure its application.103

The Committee has not been completely consistent with regard to the self-executing nature of the provisions of the Convention in toto, with statements recalling that ‘the Convention is not self-executing’104 standing alongside statements that ‘many provisions of the Convention’ are not self-executing.105 The Committee has made clear its view that Article 4 is not self-executing but requires implementing legislation, a proposition cemented into GR 35 on combating racist hate speech: ‘As Article 4 is not self-executing, States parties are required by its terms to adopt legislation to combat racist hate speech that falls within its scope’.106 Criticism of the ‘far-reaching reservations’ of the US,107 particularly with regard to Article 4 and the limitation as to private conduct, has not extended to specific criticism of its declaration that the provisions of the Convention are not self-executing, though in this case, the absence of contestation does not necessarily signify agreement with the view of the State party.108

IV.  The Reach of the Convention

Unlike the ICCPR, which requires a State party to respect and endure civil and political rights ‘to all individuals within its territory and subject to its jurisdiction’,109 there is no (p. 172) equivalent general clause limiting the application of ICERD to the jurisdiction or territory of States parties.110 Only two substantive Articles—Article 3 on segregation and apartheid and Article 6 on remedies—include such references: to ‘territories under [the] jurisdiction’ of States parties in Article 3, while Article 6 obliges States parties to assure to ‘everyone within their jurisdiction’ effective protection and remedies. In the context of the individual communications procedure, Article 14 envisages communications from individuals or groups of individuals within the jurisdiction of the State party. Neither Article 2—the general repository of obligations—nor Article 5, the principal repository of rights, refers to territory or jurisdiction.111

The question of the application of international human rights instruments beyond the national territory to extraterritorial acts and omissions has become a prominent focus of interest in recent international human rights practice.112 According to the Human Rights Committee, a State party must respect and ensure ICCPR rights to anyone within its ‘power or effective control’,113 even if not situated within the territory of the State party, a principle that also applies to ‘those within the power or effective control of the forces of a State party acting outside its territory’.114 CEDAW takes the view that ‘States primarily exercise territorial jurisdiction. The obligations of States parties apply, however to [those] within their territory or effective control even if not situated within the territory. States parties are responsible for all their actions affecting human rights, regardless of whether the affected persons are in their territory.’115 Other human rights instruments have been interpreted to include an extraterritorial dimension to human rights obligations, even if (p. 173) practice does not always display consistency.116 In Construction of a Wall in Palestinian Occupied Territory, the International Court of Justice (ICJ) stated with respect to the ICCPR that ‘[w]hile the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the [ICCPR] it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions.’117 With regard to the ICESCR, the ICJ noted that it contained no provision as to its scope of application; it was, however, ‘not to be excluded that it applies both to territories over which a party has sovereignty and to those over which that State exercises territorial jurisdiction’.118

In the case of ICERD, in Georgia v the Russian Federation the ICJ observed that

there is no restriction of a general nature in CERD relating to its territorial application…neither Article 2 nor Article 5, alleged violations of which are invoked by Georgia, contain a specific territorial limitation…the Court consequently finds that these provisions of CERD generally appear to apply, like other provisions of instruments of that nature, to the actions of a State party when it acts beyond its territory.119

With regard to human rights treaties which do not contain a provision delimiting their territorial application, Sivakumaran interprets the cited paragraph as representing a ‘presumption…that they have extraterritorial effect’.120 For ICERD, the ‘presumption’ is given substance by the removal, in the drafting process, of any territorial restriction on the ambit of the Convention.121 The comment in Georgia v Russian Federation on ‘instruments of that nature’ is apt to include instruments of a ‘universal’ nature such as ICERD and the Covenants, etc, unconstrained by notions of ‘espace juridique’.122 In light (p. 174) of such a presumption, it is noteworthy that Turkey entered a reservation declaring that its ratification of the Convention related ‘exclusively with regard to the national territory where the Constitution and the legal and administrative order of the Republic of Turkey are applied’.123

In CERD practice, assertions regarding the responsibility of State X beyond territorial boundaries have characteristically been linked to situations where another State party—Y—has lost effective control over parts of its territory to the forces of State X (foreign occupation) or a secessionist administration presumed to be under the control of State X.124 In the case of Cyprus, the Committee took a view on the occupation of 37 per cent of the territory of Cyprus by Turkish forces and its consequences in causing ‘the de facto separation of the various ethnic and religious communities’, an artificial division that was ‘an obstacle to peace and the enjoyment of human rights in the region’, impeding ‘the construction of a progressive anti-discrimination strategy for the island as a whole’.125 In the case of Moldova, it was noted that the Transniestria region ‘continued to be outside the effective control of the State party, which was therefore unable to monitor the application of the Convention in that part of its territory’.126 In these and other cases, the Committee has expressed serious concerns about the malign influence of international and internal conflicts on the enjoyment of human rights, together with recommendations on steps necessary to solve the resulting problems, including calls for prosecution of those responsible for violence and compensation for victims.127 Recommended steps have also included confidence-building measures by States parties and civil society.128

(p. 175) In some cases, the Committee has supplemented assertions as to lack of ‘effective control’ by suggesting that responsibility for implementation of the Convention in the contested area lies elsewhere than with the reporting State. In the case of Georgia, the Committee, following its standard recital that ‘Abkhazia and South Ossetia continue to be outside the effective control of the State party, which made it therefore unable to implement the Convention in these territories’,129 added the following:

The Committee notes the State party’s position that the obligation for implementing the Convention in South Ossetia and Abkhazia belongs to a neighbouring country which has effective control over those territories. The Committee notes that it has in the past taken the view that States that have effective control over a territory have the responsibility under international law and the spirit of the Convention for implementing the Convention.130

Ex facie, the Committee’s comment to Georgia appears as a lex imperfecta in that the position of the State party (Georgia) is noted without drawing a specific legal conclusion, although the second sentence intimates a wider practice ‘under international law and the spirit of the Convention’.131 The usual CERD approach in Article 9 cases is to draw attention to the inability of reporting States to apply the Convention in cases of occupation or secession, and to stress the need to end the occupation or resolve the conflict. In cases with ‘international’ dimensions, and in the absence thus far of proceedings under Articles 11–13, broader comments by the Committee are restrained in light of the country-by-country focus of reporting under Article 9. Lack of ‘control’ or ‘effective control’ in such cases has been treated by international bodies as diminishing, though not eliminating, obligations to apply human rights conventions on the part of the State whose territory is compromised,132 so that jurisdiction may appear as ‘a relative concept, a matter of degree determining the scope of the obligations of the State concerned’.133 This (p. 176) approach is not at odds with the general tenor of CERD approaches to the resolution of conflicts.134

Interspersed with wider discussions of extraterritoriality, the issue of the applicability of international human rights law and international humanitarian law to specific situations has also been raised.135 There has been a persistent line of disagreement between the Committee and Israel regarding the application of the Convention to territories under Israeli control,136 with the Committee asserting applicability and the State party denying it. The detailed series of exchanges that took place in 2012 regarding the scope of application of the Convention are instructive, and included questions from Committee members as to why Israel denied applicability when the Occupied Territories were effectively under the control of the State party.137 In response, the delegation of Israel noted that ICERD did not apply because no special declaration had been made extending it to the West Bank ‘which lay outside Israeli national territory’; Palestinians did not exist in a state of legal limbo but were subject to the law of armed conflict.138 Further, agreements had made the majority of Palestinians subject to Palestinian jurisdiction.139 On the point of a special declaration, CERD member Diaconu asserted that the legal basis for jurisdiction was not a declaration ‘but the fact that Israel occupied and controlled those territories. That was a generally accepted rule of international law’.140 In response, the Israeli delegation stated that ‘the understanding that all human rights conventions were territorially bound was connected to the use of…jurisdiction in the relevant provision of all such conventions…jurisdiction was commonly understood to be connected to … (p. 177) sovereignty and by extension to…territoriality’;141 it was added that ‘the law of armed conflict and international human rights law did not apply together in the present case’,142 despite a discernment of the ‘profound connection between international human rights law and the law of armed conflict’.143 In conclusion, the Committee took note of the willingness of the State party to discuss the situation in the West Bank and Gaza but regretted the absence of any such information in the State report. Further the Committee was ‘deeply concerned at the position [of Israel]…that the Convention does not apply to all the territories under the State party’s effective control’, and recommended that it be applied to such territories.144

In the case of the US, discussions were interlinked with an assessment of the scope of Article 1(2) and the treatment of non-citizens. Hence the Committee regretted the position taken by the US ‘the Convention is not applicable to the treatment of foreign detainees held as “enemy combatants”, on the basis of the argument that the law of armed conflict is the exclusive lex specialis applicable’, and that in any event, concern over the alleged unequal treatment of foreign detainees was not applicable in light of Article 1(2) of the Convention.145 The Committee recalled GR 30 on non-citizens as well as its statement on measures to combat terrorism—which should not discriminate in purpose or effect on the grounds in Article 1; with regard to ‘enemy combatants’ the associated recommendation was for judicial review of the lawfulness and conditions of detention, and the right to remedy for human rights violations.

Pronouncements by the Committee on lex specialis are rare;146 its approach to specific situations is evidence of the acceptance of the principle of the coexistence of international humanitarian law and international human rights law, especially in light of the prominence of the principle of non-discrimination, including on the grounds of race and nationality, in the Geneva Conventions.147 The Committee has on occasions ventured to pronounce on the requirements of international humanitarian law, though the dominant approach is to translate the requirements of international humanitarian law into the human rights language of the Convention.148 As Weissbrodt has demonstrated, the (p. 178) engagement of CERD with international humanitarian law has been persistent and wide-ranging through key CERD mechanisms, notably including the ‘regular’ reporting procedure, the archive of general recommendations, and the early warning and urgent action procedures.149 With regard to CERD’s concluding observations, Weissbrodt observes that

[m]ention of international humanitarian norms or instruments generally come in the context of armed conflict, genocide or terrorism, and concentrate on refugees and displaced persons in attempts to ensure that these groups are protected during times of instability. CERD also places emphasis on cooperation with international tribunals, as they are a primary means by which the principles of the Race Convention can be enforced.150

CERD recommendations are characteristically made on the basis that the Convention norms should be applied in light of the ‘root causes’151 and ethnic/racial dimensions of a conflict situation, interpreted according to the grounds of discrimination in Article 1 and the ‘forms’ of discrimination developed under it. The prevalence of non-international, frequently ethnically based armed conflict highlights the appropriateness of applying universal norms of non-discrimination;152 and, as the events surrounding Georgia v the Russian Federation conform, allegations of ‘ethnic cleansing’ are appropriate to take international conflicts within the non-discrimination frame. CERD also pays close attention to situations perceived as evolving into conflicts with ethnic dimensions.153

V.  Chapeau: No Delay in Eliminating Racial Discrimination

The specific contribution of the chapeau is to lend a heightened sense of urgency to the Convention through the specific undertaking to pursue, ‘by all appropriate means and without delay’, a policy of eliminating racial discrimination and promoting understanding. The requirement of an anti-discrimination ‘policy’ is wide-ranging and in itself subsumes and intersects with the paragraphs and sub-paragraphs of the article. The language of the chapeau suggests legal guarantees and a range of measures including action plans and strategies, institutional mechanisms, indicators, benchmarks, and timelines for measurement and monitoring of the incidence and scale of discrimination in the society concerned, all dedicated to eliminating racial discrimination in practice ‘in all its forms’; the last phrase is adequate to capture existing and developing forms of discrimination. The ‘all appropriate means’ provision was present in early drafts in the Sub-Commission; the addition of the ‘no delay’ clause in the Sub-Commission to tighten the obligation will also be recalled. Mahalic and Mahalic regard the phrase ‘by all appropriate means’ as a limitation clause,154 however their suggestion that the formulation rules out ‘inappropriate means’, such as the use of force to secure an anti-discrimination policy, is (p. 179) less of a limitation than a reminder to States that action to correct the injustice of discrimination against one group should not spill over into injustice against another: the means employed to pursue an anti-discrimination policy should not subvert their ends, judged according to the letter and spirit of the Convention. In a positive sense, the phrase ‘all appropriate means’ engages the full arsenal of measures available to the State to combat discrimination, described in GR 32 in the context of special measures as including ‘the full span of legislative, executive, administrative, budgetary and regulatory instruments…as well as plans, policies, programmes and preferential regimes’.155 Large-scale ‘national strategies or plan[s] of action’ are envisaged in GR 31 to eliminate structural discrimination; strategies should include, inter alia, ‘specific objectives and actions as well as indicators against which progress can be measured’.156

The reference to speed of action is complemented by references elsewhere in the Convention. The relevant paragraphs in the preamble to speedily eliminating racial discrimination,157 in Article 4 to ‘immediate and positive measures’, and in Article 7 to ‘immediate and effective measures’ reinforce the urgency of the message; the reference in 2(1) to a ‘no delay’ policy for ‘promoting understanding’ has its closest parallel in Article 7. Concluding observations are replete with references to action that is to be taken ‘without delay’. Bearing in mind the generously broad concept of a ‘policy’ to eliminate racial discrimination,158 references to accelerated action occur across a wide spectrum of issues. The passing or implementation of particular laws159 or amending others may be recommended as a matter of urgency,160 as well as the adoption of more general ‘measures’,161 or putting mechanisms into place.162 Urgency may also be regarded as intrinsic to the pursuit of investigations of complaints with due diligence.163 Exhortations to speedy action may apply to general laws as well as those to benefit specific groups. In terms of Committee procedures, legislative and other processes that can be completed rapidly are likely to be singled out for accelerated reporting back under the Committee’s ‘follow-up procedure’, while pressing, potentially serious issues of human rights of sufficient ‘gravity and scale’ are characteristically addressed under the Committee’s ‘early warning and urgent action procedure’. Urgent situations concerning indigenous communities have dominated the latter procedure in recent years, a situation to some extent paralleled in concluding observations on periodic reports.164

(p. 180) In relation to Article 2, the general interpretation offered by Australia that its obligations are ‘of general principle and programmatic in character’ may be borne in mind.165 The claimed ‘programmatic’ element is ex facie irreconcilable with the explicit Article 2 requirement that an anti-discrimination policy must be pursued ‘without delay’166 and with the general characterization that, even in the case of avowedly programmatic rights, the elimination of discrimination in the enjoyment of such rights represents an obligation with immediate effect.167 On the other hand, the immediacy required by Article 2 refers to the general notion of a policy to eliminate racial discrimination, important elements of which are clearly in place in the case of Australia, notably through specific discrimination legislation at federal and state levels.168 The declaration entered by Australia with regard to Article 4(a) cuts across the grain of urgency in Article 2 as well as the explicit requirements of Article 4:

The government of Australia…declares that Australia is not at present in a position specifically to treat as offences all the matters covered by Article 4(a) of the Convention. Acts of the kind there mentioned are punishable only to the extent provided by the existing criminal law dealing with such matters as the maintenance of public order, public mischief, assault, riot, criminal libel, conspiracy and attempts. It is the intention of the Australian Government, at the first suitable moment, to seek from Parliament legislation specifically implementing the terms of Article 4(a).

Unsurprisingly, the Committee has repeatedly called for the withdrawal of this reservation and for legislation to give full effect to Article 4;169 the compatibility with the Convention of the Australian statement, characterized as a reservation also by the State party,170 has not been tested under the Article 14 procedure. Characterization of statements as reservations effectively blocks any determination of compatibility by the Committee in light of two-thirds rule in Article 20(2); characterization as an interpretation on the other hand invites a comparison between the Committee’s reading of the Convention and that of the State party.171

VI.  Article 2(1)(a) No Discrimination by the State, Public Authorities, Public Institutions

Sub-paragraphs (a)–(c) distil the basic message that the State itself shall not discriminate, directly or indirectly. Statements in the travaux suggesting that discriminatory action by States was ‘unthinkable’ are best understood as relating to the view that State-sponsored racial discrimination was a colonial aberration and not the global phenomenon discerned (p. 181) in Committee practice. ‘Racial discrimination’ in Article 2 must be assumed to carry its full meaning as discrimination in intention or effect as well as related forms identified in Committee practice. Article 2(1) addresses State-generated racial discrimination;172 Article 4(c) refers to the impermissibility of promotion of discrimination or incitement thereto by public officials, authorities, or institutions;173 Article 5 sets out a spectrum of rights that implicate State bodies particularly in the fields of justice, security, and political organization.

There is an overlap between 2(1)(a) and 2(1)(c) in that, if there are discriminatory policies, they must be reviewed, amended, rescinded, or nullified. State-generated discrimination may arise from specific legislation or specific or general policy. The CERD archive is replete with examples that range from relatively minor, filigreed instances of discrimination to severe forms of oppression as recognized in the early warning and urgent action procedure and further identified in the Committee indicators of mass violations of human rights.174 Racial discrimination by organs of State, as a sub-set of the State’s general obligation to eliminate racial discrimination in toto, remains among the Committee’s principal concerns, not entirely eclipsed by the growing emphasis on responsibility for discrimination by private actors.

The State obligation not to discriminate reaches vertically through levels of governance and laterally to territories under State control. The explicit reference in 2(1)(a) to ‘national and local’ levels of State administration is noteworthy; the ‘local’ also figures in 2(1)(c) and 4(c). In light of the general principle of international law that internal law may not be invoked to defeat a charge of failure to perform a treaty, CERD has not been impressed by arguments that, for example, the government of a federation cannot compel component administrations to implement obligations under the Convention. This insistence on the responsibility of the State party to ensure that the Convention is implemented ‘all the way down’ through the levels of administration is made in the absence of a ‘federal clause’ in the Convention.175 Such a clause was proposed during the drafting of the Convention but rejected in the Third Committee on the grounds,176 inter alia, that a federal clause would have represented a weakening, and not a strengthening, of direct obligations to implement.177 (p. 182) Banton introduces the issue in relation to early reports of Canada;178 it resurfaces in the Committee’s conclusions on Canada, including those of 2007:

The Committee, while welcoming the information that the Action Plan Against Racism: A Canada for All, together with other initiatives mentioned by the State party, will, inter alia, ensure the coordination of efforts of federal departments and provincial/territorial governments in the fight against racism, is concerned about remaining discrepancies in the level of implementation of the Convention among the provinces. The Committee underscores once again the responsibility of the Federal Government of Canada for the implementation of the Convention179

A similar exposition of CERD’s position was made in 2008 in relation to Belgium in relation to discriminatory decrees of regional and local authorities. While noting that the State party has a federal structure, the Committee recalled that ‘Belgium is a single State under international law and has the obligation to ensure the implementation of the provisions of the Convention throughout its territory’.180 The insistence on full implementation is not confined to States with a federal structure, and it is clear from the text of 2(1)(a) that obligations implicate the actions of lower level or local authorities. The question of political and administrative divisions of States is addressed by paragraph 31 of GR 32 in the context of special measures, stating a broader principle:

The internal structure of States parties, whether unitary, federal or decentralized, does not affect their responsibility under the Convention, when resorting to special measures, to secure their application throughout the territory of the State. In federal or decentralized States, the federal authority shall be responsible for designing a framework for the consistent application of special measures in all parts of the State where such measures are necessary.

GR 32 points to the need for consistent implementation of the Convention across the board, a Committee preference that regularly emerges in concluding observations. The emphasis in the above-cited paragraph on coordination is amplified in the case of the US through a recommendation to ‘establish appropriate mechanisms to ensure a coordinated approach towards the implementation of the Convention at the federal, State and local levels’.181 Mechanisms of coordination may be viewed as particularly pressing in heavily decentralized systems.182 In the case of Italy, CERD expressed concern that ‘the strongly decentralized system of Italy [might] lead to diversity of policies and decisions at the level of regions and provinces with regard to discrimination’, and noted ‘the need to adopt a global and comprehensive plan of action on human rights in view of the fragmented nature of measures on human rights taken by regional authorities’.183 The last-cited (p. 183) comment on Italy does not challenge the political and administrative organization of the State party. While the architecture of government is a sovereign prerogative, boundary/territorial manipulation can raise serious human rights concerns, including those connected with political participation, amounting in some cases to racial discrimination.184 Particular systems of government have also been the subject of interrogation by the Committee for possible discriminatory effects.185

The reference to ‘public authorities and public institutions’ was the subject of analyses by CERD in Anna Koptova v Slovak Republic,186 and L.R. v Slovak Republic.187 The point for present purposes relates to the argument of the State party that municipal councils—alleged to have issued discriminatory resolutions targeting Roma—were not State bodies.188 The Committee took the view, as articulated in L.R., that ‘the acts of municipal councils, including the adoption of public resolutions of legal character…amounted to acts of public authorities within the meaning of the Convention’,189 and that ‘the racial discrimination in question is attributable to the State party’.190 L.R. v Slovakia is also notable for the proposition that the obligation not to discriminate is not confined to the final steps in a process:

In the Committee’s view, it would be inconsistent with the purpose of the Convention, and elevate formalism over substance, to consider that the final step in the actual implementation of a particular human right…must occur in a non-discriminatory manner, while the necessary preliminary decision-making elements connected to that implementation were to be severed and be free from scrutiny…the Committee considers that the council resolutions in question, taking initially an important policy and practical step towards realization of the right to housing, followed by its revocation…taken together, do…amount to the impairment of the recognition or exercise on an equal basis of the human right to housing…191

In later concluding observations on Slovakia, the Committee noted with concern that the State party described ‘the autonomy of local self-governing bodies as a major obstacle to achieving non-discrimination in access to social housing for the Roma community’.192 The concern led to the recommendation that the State party ‘take effective measures to implement the (p. 184) Convention and ensure that the principle of self-governance of local and regional bodies does not hamper its human rights obligations to promote economic, social and cultural rights of disadvantaged or discrimination groups, as per the Convention’.193

Discussions in the travaux clarified that ‘public institutions’ is wider than ‘public authorities’. In Hagan v Australia, the State party claimed that the sports trust which owned the stadium which exhibited an offensive racial sign was ‘a private body rather than a public authority or government agent’, the acts of which therefore fell outside 2(1)(a) which did ‘not deal with private acts of discrimination’.194 This was contested by the petitioner, who pointed out that the trustees were appointed and could be removed by a minister and that their function was ‘to manage land for public (community) purposes’ and that the trust was ‘therefore a public authority or institution for Convention purposes’.195 The Committee did not comment on the Article 2 point in its reference to ‘displaying a public sign considered to be racially offensive’.196 In light of the general understanding of ‘public institutions’ in the drafting of Article 2, the more open interpretation of the sub-paragraph coheres better with the letter and spirit of the Convention.

VII.  Article 2(1)(b) Not to Sponsor, Defend or Support Racial Discrimination by any Persons or Organizations

The trope of negative statements of obligation in Article 2 continues in Article 2(1)(b), which shifts the emphasis from discrimination by organs of State and ‘public institutions’ towards discrimination by actors backed by the State, though an expanded reading of ‘public institutions’ in 2(1)(a) suggests an overlap between the two sub-paragraphs. Non-State actors, or ‘private’ persons or organizations are not explicitly identified as the focus of the text: the reluctance of the drafters to qualify persons or organizations by ‘private’ will be recalled.197 Lerner discerns a ‘gradual system of undertakings’ in Article 2, moving from negative statements in the first two sub-paragraphs to explicit statements of positive action;198 2(1)(b) in his view, ‘simply intends to prevent persons or organizations engaged in racial discrimination getting the official support of the State’.199 The provision complements the other reference to persons and organizations in Article 2, and the proscription of racist organizations in Article 4(b). The negative phraseology does not rule out an active stance by the State vis-à-vis the fulfilment of its obligation: in terms of the typology of obligations referred to above, Ruggie lists 2(1)(b) and 2(1)(d) as aspects of ‘the obligation to protect’.200

(p. 185) Regarding the verbs in the sub-paragraph, ‘sponsor’ overlaps with ‘support’ and may be understood in terms of contribution to costs, taking responsibility for the acts of another, or generalized support for a person or organization.201 ‘Support’ is wider and may include assistance, encouragement, or approval as well as financial support; in a related sense it may include ‘endure’ or ‘tolerate’.202 ‘Defend’ has an altogether more active significance, and, when too active, may be a good candidate to engage proscriptions such as those in Article 4. Regarding the potential application of 2(1)(b), Lerner’s examples are those of ‘an official publishing house that prints a racist book, or a local government that gives financial support to a school engaging in racial discrimination’.203 Meron comments that ‘support’ may (arguably) encompass ‘not only the extension of benefits as a positive action but also the failure to impose obligations that are required of other persons or organizations’, instancing the granting of tax-exempt benefits to a private organization that discriminates on account of race.204 In view of the extensive interpenetration and blurring of boundaries between public and private activities in modern States, including the financial nexus, the sub-paragraph potentially opens up a broad prospectus. The sub-paragraph is under-litigated in Article 14 cases. Along with 2(1)(a), the citation of 2(1)(b) was dismissed as irrelevant by the State party in B.J. v Denmark,205 because that case did not involve State-promoted discrimination. In Hagan v Australia, the State party simply denied that the establishment of the sports ground trust in question, its continued existence, or its response to the claim by Hagan, engaged the sub-paragraph in any manner, a claim that was not commented upon by the Committee.206

2(1)(b) is relevant in principle to discrimination in any field covered by the Convention: activities of individuals as well as collective action are caught by the provision, and the term ‘persons’ includes legal persons such as corporations as well as natural persons. Cases include organizations close to the apparatus of governance as well as those removed from it. Egregious cases of State support for organizations in close proximity to governance would include, inter alia, private militias supported by the State, and funding for political parties. In concluding observations on the Russian Federation, CERD expressed concerned at information that Cossack organizations had engaged in acts of violence against ethnic groups, were used by local authorities to carry out enforcement operations, and enjoyed State funding. The Committee recommended that the State party ensure that no support would be provided ‘to organizations that promote racial discrimination’, and that Cossack paramilitary units be prevented from carrying out law enforcement functions against ethnic groups.207 The Committee interrogated the Cossack question in later observations, concerned by information ‘that voluntary “Cossack patrols” began to appear in 2012…to carry out law enforcement functions alongside the police’.208 Belgium was (p. 186) requested to provide information on a law of 1998 on withdrawing financial support to political parties that incite racism or racial hostility.209

Corporations, whether acting territorially or extraterritorially,210 have increasingly been drawn into the orbit of Article 2, notably in connection with despoliation of indigenous lands and territories, including sacred sites. The Committee is critical of arrangements for resource exploitation such as permissions for tourism developments, or concessions and licences for mining and logging operations, granted without the free, prior, and informed consent of the indigenous peoples concerned.211 GR 23 summarized the seriousness of situations where ‘indigenous peoples have been, and are still being, discriminated against and deprived of their human rights…and in particular that they have lost their land and resources to colonists, commercial companies and State enterprises’.212 The concluding observations of the Committee provide examples of many cases involving indigenous peoples, which are, as noted, accorded a prominent place in the Committee’s early warning procedure. In some instances, State bodies are implicated—Article 2(1)(a)—while many cases concern the activities of private corporations enjoying sundry forms of state support and approval. Notable early warning ‘decisions’ of the Committee include Decision 1(68) regarding the Western Shoshone,213 and a series regarding resource exploitation in Suriname.214 Letters of concern at the activities of corporations are more numerous than decisions: instructive illustrations of the Committee’s approach include communications to Canada (2008 and 2009); France (2009); Niger (2009 and 2010); Papua New Guinea (2011); Peru (2010); The Philippines (2007–12); and Tanzania (2009–13).215 The Committee may link its censuring of corporate activity to 2(1)(d) rather than 2(1)(b) without the implication that such activity is sponsored, defended, or supported by the State.

VIII.  Article 2(1)(c) Review Policy, Amend, Rescind, Nullify Discriminatory Laws and Regulations

Continuing the logic of Article 2, instances of State-based and State-supported discrimination referred to in the first two sub-paragraphs require modifications of existing law and policy. The accumulation of verbs suggests an obligation to mount a holistic assault on defective legal structures and institutions. The travaux evidence some difficulties with terminology including the claimed redundancy of ‘nullify’ following ‘rescind’; both were retained in order to satisfy the variety of concepts among legal systems. The injunctions to act are arranged more or less sequentially in that before action is taken, the policy architecture (including laws that express that policy) should be ‘reviewed’, followed by necessary amendments to laws and regulations, including their rescission. Lerner cites the travaux for the view that ‘nullify’ is equivalent to ‘suppress entirely’, which may add (p. 187) something to ‘rescind’.216 ‘Nullify’ may also have a stronger aftermath in terms of eliminating the lingering after-effects of misdirected or misapplied legislation.

Recommendations to review, amend, or rescind discriminatory legislation are common practice. The scope of a ‘review’ of legislation can extend from reviewing a specific law, including a constitutional provision,217 to a general law or ‘legal regime’ such as a land regime,218 review of legal remedies,219 review of policies,220 or review of ‘positions’ such as the position taken by a State party that a law against racial discrimination was not necessary.221 Recommendations to ‘amend’ may come together with a recommendation to review,222 or may stand alone, and, as with review, range from recommendations to amend specific pieces of legislation or adopt new legislation, to wholesale amendment of ‘domestic laws, regulations or practices’,223 or harmonizing amendments of ‘legislation on land, water, mining and other sectors’ so that it does not conflict with other legislation on indigenous peoples.224

Bearing in mind the overlap between amendment and rescission, specific recommendations to abrogate or rescind laws or policies are uncommon—in the early warning/urgent action decision regarding the Western Shoshone, the US was urged to rescind trespass and collection notices, etc, inflicted on the Shoshone for using their ancestral lands.225 ‘Nullify’ is more likely referred in data searches to with reference to the definition of discrimination in Article 1 rather than Article 2, though the challenge, referred to above, of remedying the after-effects of a formerly discriminatory legal system or laws is strongly felt in CERD practice, notably through recommendations to apply wide-ranging measures, such as those to address ‘the legacy of apartheid’ in the case of South Africa.226 In the case of Serbia, 2(1)(c) was employed to cover existing structural discrimination, in that certain groups continued to be subject to exclusion and discrimination in employment, education, and participation in public affairs. Unspecific measures were recommended to address structural discrimination and the engagement of minorities with the public sphere.227

In Hagan v Australia, the author invoked, inter alia, 2(1)(c), stating that, under this provision, States parties have an obligation ‘to amend laws having the effect of perpetuating racial discrimination…the use of words such as the offending term in a very public way provides the term with formal sanction or approval. Words convey ideas and power, and influence thoughts and beliefs. They may perpetuate racism.’228 Australia replied regarding its Racial Discrimination Act that the fact that Hagan’s claim under the Act was unsuccessful, ‘did not detract from the effectiveness of that legislation’, nor did it suggest (p. 188) that the Act created or perpetuated racial discrimination.229 The Committee, while not finding a violation of the Convention, nonetheless recommended that ‘the State party take the necessary measures to secure the removal of the offending term from the sign in question’,230 which suggests that, while 2(1)(c) was not deemed to be violated, measures in line with the spirit of the paragraph could and should have been taken.231

IX.  Article 2(1)(d) Prohibit and Bring to an End, by all Appropriate Means Including Legislation as Required by Circumstances, Racial Discrimination by any Persons, Group, or Organization

This provision ranks as one of the key obligations in the Convention, described by Schwelb as ‘the most important and far-reaching of all the substantive provisions’.232 Over decades, CERD has built up a profile of an idealized architecture of laws and supporting institutions to give substance to the obligation in Article 2(1)(d), while making it abundantly clear that legislation is always ‘appropriate’ to combat racial discrimination—as Banton notes, ‘for an action to be discriminatory in law, there must first be a law’.233 Analogously, Mahalic and Mahalic contend that no State is exempt from the need to legislate.234 Banton offers an overview of the paragraph, which

is unqualified in its requirement that a State party bring to an end racial discrimination; it is not limited to the State sector or to governmental action or to the enactment of laws, but makes the State responsible for bringing to an end racial discrimination throughout the society.235

Progress in adopting and implementing legislation on racial discrimination is inevitably welcomed by the Committee. Strengthening existing legislation also draws favourable comment, as does the consolidation of institutional support for the anti-discrimination standards. The Committee’s clear preference is for specific legislation against racial discrimination, while it is not contrary to the Convention to supplement this with laws against defamatory statements which cover racist statements even if they do not specifically target racism.236 In light of the absence of legislation, Committee records are replete with recommendations urging the merits of a ‘comprehensive law’ or ‘comprehensive legislation’ against racial discrimination,237 including a ‘comprehensive’ or clear definition thereof.238 Preferences for a comprehensive approach extend to legislation to implement (p. 189) particular articles of the Convention such as Article 4.239 The shape of legislation envisaged by the Committee is set out in concluding observations:

The Committee urges the State party to accelerate the adoption of a comprehensive anti-discrimination act to stipulate, inter alia, the definition of direct and indirect as well as de facto and de jure discrimination, together with structural discrimination, liability for natural and legal persons extending to both public authorities and private persons, remedies to victims of racial discrimination and the institutional mechanisms necessary to guarantee the implementation of the provisions of the Act in a holistic manner.240

In addition to specific forms of legislation, the Committee frequently urges the inclusion in criminal codes of racial motivation as a general aggravating factor in sentencing,241 a stance generalized in GR 31, encouraging States parties ‘to incorporate a provision in their criminal legislation to the effect that committing offences for racial reasons generally constitutes an aggravating circumstance’.242 CERD has criticized and recommended the amendment of legislation that makes the racial motivation element subject to a proviso that it must be the only motivation behind the offence.243

CERD has been particularly strong on the important role played by criminal law in anti-discrimination legislation, a preference not confined to the hate speech area.244 Legislation to prevent racial discrimination should, however, reach beyond criminal law and include civil and administrative law. On proving discrimination in civil cases, recommendations are regularly made to ‘reverse’,245 ‘share’,246 or ‘shift’247 the burden of proof to respondents once plaintiffs have made out a prima facie case of discrimination. The requirement is occasionally detailed248 and coupled with an explanation of why the change on burden of proof is warranted.249 In the case of Cyprus, the limitation to certain defined areas of the principle of ‘sharing’ the burden of proof in (p. 190) civil cases drew forth the recommendation that the principle be applied ‘to all civil law cases of racial discrimination’.250

In cases of defective or incomplete legislation, States may be urged to amend relevant legal codes and establish a broader range of liability.251 The preference, in the interests of clarification, predictability, and accessibility, for a comprehensive legal framework goes in tandem with a preference for an integrated framework rather than a scattergun approach to laws,252 and, a fortiori, a preference for a straightforward incorporation of the Convention into domestic law, as noted earlier. In this respect, the remarks made to the UK and Denmark regarding the non-incorporation of ICERD will be recalled; the critical comments focus on the perceived or asserted effects flowing from lack of a ‘comprehensive’ approach to legislation or lack of explicit incorporation. It may be argued, however, that pressing such points towards an expression of preference for a defined legal architecture would not do justice to the variety of national legal styles, in particular to the looser structures of common law systems.

Measured against the legislative patterns recommended, deficiencies in the existing legal framework attract critical attention, especially if important areas (as perceived by the Committee) are omitted;253 recommendations to review and amend the legislation may follow. In light of the ‘bring to an end’ (racial discrimination) element in Article 2(1)(d), the implementation—and disparities in implementation254—and not merely the design of legal regimes, is apt to generate critical comment.255 CERD is particularly attentive to the role of the courts—the pre-eminent ‘supporting institutions’—in the implementation of anti-discrimination standards. Concerns have been expressed about such matters as the independence and impartiality of judges,256 the possibilities of invoking the Convention in domestic courts,257 the possibilities of addressing courts in the mother tongue of minorities,258 and the representation259—including support for local legislation on proportionate representation260—of ethnic minorities and other groups in the judiciary and police.

The obligation to address racial discrimination ‘by all appropriate means’ in Article 2(1)(d) suggests strategies that reach beyond specific anti-discrimination legislation and its implementation. Strategies may be recommended in broad and unspecific terms, such as national plans of action, or focused on campaigns of education and awareness-raising. In virtue of the importance of the Durban World Conference as, inter alia, a repository of principle and action in the discrimination field, the Committee has arrived at a (more or less) standard formula, recommending that States parties give effect to the Durban Declaration and Programme of Action of 2001, taking into account the Durban Review (p. 191) Conference in 2009 when implementing the Convention in their domestic legal order, and requesting information on action plans and other measures to implement their provisions. Durban-related recommendations have also less ambitiously referred to taking into account or giving effect to ‘relevant parts’ of the Durban instruments.261 In response to the refusal by Israel to ‘acknowledge and abide’ by the Durban framework, CERD urged a re-examination of this position ‘taking into consideration the evident importance of that document for a large segment of humanity’;262 the US was reminded of the importance of the Durban process ‘for the achievement of the goals of the Convention’.263 The Committee regretted the refusal of the Czech Republic to develop a national action plan against racism in line with Durban and urged the development of a plan.264 The Holy See has expressed its strong reservations regarding recommendations to implement the Durban framework.265

This sub-paragraph features strongly in the communications procedure in combination with other articles. In Habassi v Denmark (refusal of a bank loanon account of his non-Danish nationality) the Committee found a violation of 2(1)(d) in combination with Article 6 in the absence of a proper investigation into whether racially discriminatory criteria were being applied.266 What 2(1)(d) requires was considered by the same State party in another case where prosecution of a doorman followed the refusal of entry to a discotheque of the author who was of Iranian origin: not only ‘has the State party adopted law that criminalizes acts of racial discrimination such as that of which the applicant was a victim…but…authorities have enforced these criminal provisions in a specific case’.267

On similar principles, a violation of 2(1)(d) in conjunction with Articles 4 and 6 was found in Gelle v Denmark,268 where a politician criticized plans to consult with, inter alios, a Danish-Somali association prior to legislation on female genital mutilation (FGM) equating Somalis, in the words of the petitioner, with paedophiles and rapists.269 The State party claimed, in light of 2(1)(d) and Article 6, that their evaluation of the statements ‘fully satisfied the requirement that an investigation must be carried out with due diligence and expedition and must be sufficient to determine whether or not an act of racial discrimination…[had]…taken place’.270 The Committee disagreed on the facts while maintaining the principle that it was not enough to declare acts of racial discrimination punishable on paper, they must also be effectively implemented, a principle reflected in, inter alia, Article 2(1)(d), which was specifically cited.271 In Murat Er v Denmark, the Committee distinguished between legislation and its interpretation in the Danish courts as applied to the petitioner, which was deemed compatible with the Convention,272 and the lack of effective investigation into an allegedly racist act, which (p. 192) violated Article 2(1)(d).273 Contestations of alleged violations of 2(1)(d) by States parties are usually couched in terms of the facts of the situation; in other cases a substantive interpretative point is made. In Murat Er, the State party argued that:

Article 2(1)(d) is a policy statement and the obligation it contains is a general principle [which] does not impose concrete obligations…and, even less, specific requirements on the wording of a possible national statute on racial discrimination. On the contrary, State parties enjoy a significant margin of appreciation in this regard.274

In some cases, the requirements of the sub-paragraph have been impressed upon a State party despite a claim that ‘no racial discrimination’ on the part of public authorities had manifested itself.275

X.  Persons, Group, or Organization…

The concerns of 2(1)(d) encompass non-State ‘private’ actors. While secondary rules of State responsibility address the actions of private persons in general terms for purposes of attribution,276 provisions in human rights treaties and practice are more explicit. With regard to the American Convention on Human Rights, the Inter-American Court of Human Rights articulated a basic principle that illegal actions violating human rights that are not directly imputable to the State can nonetheless lead to international responsibility ‘not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it’.277 As is evident from the cases cited in the present section and Chapter 6, CERD addresses situations concerning private bodies as a matter of course, having become more explicit over time on the targets of its concern.278

CERD GR 19 reminds us that segregation may arise as an ‘unintended by-product of the actions of private persons’279 and, according to GR 20, to the extent that ‘private institutions influence the exercise of rights or the availability of opportunities, the State party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination’.280 In similar vein, GR 25 recalls the different life experiences of women and men, ‘in areas of both public and private life’,281 referring to ‘abuse of women workers in the informal sector or domestic workers’ and to ‘discrimination (p. 193) against women in private spheres of life’.282 Discriminatory practices ‘mainly by local authorities and private owners’ in relation to housing are referred to in GR 27 on Roma,283 while in relation to descent/caste groups, GR 29 refers, inter alia, to special measures to promote the employment of members of affected communities ‘in the public and private sectors’; ‘measures against public bodies, private companies and other associations that investigate the descent background of applicants for employment’; ‘discriminatory practices of local authorities or private owners’ in housing, etc; ‘public or private education systems’; and ‘discrimination by public or private bodies and any harassment of students from descent-based communities’.284

In the Article 14 communications procedure, the first finding of a violation of the Convention—Yilmaz-Dogan v The Netherlands—addressed the legal consequences flowing from the actions of a private employer.285 Analogous private sector cases characterize the Article 14 archive as a whole, emanating from the actions of banks,286 loan and insurance companies,287 prevention by private persons of individuals wishing to settle into a neighbourhood,288 discrimination in access to restaurants, clubs, and discotheques, etc.289 In the reporting procedure, CERD requests information on racial discrimination legislation in force for the private sector and is critical of the absence of such legislation.290 With regard to the US reservation on regulation of private conduct, the Committee in 2001 recommended legislation applicable to ‘the largest possible sphere of private conduct which is discriminatory’,291 and in similar vein in 2008 recommended the State party to ‘broaden the protection afforded by the law against discriminatory acts perpetrated by private individuals, groups or organizations’.292 CERD has been critical of exempting ‘private transactions’ from discrimination legislation in housing and related market areas.293

In addition to obligations resulting from situations of conflict and occupation of territory, CERD has explored the issue of extraterritorial activities of corporate actors domiciled within the State, an issue that generates significant international interest, and a strong but not exclusive emphasis on economic, social, and cultural rights.294 Based in part on an analysis of the work of treaty bodies, the Special representative of the Secretary-General developed a ‘Protect, Respect and Remedy’ framework that focuses on State obligations to regulate corporate actors working beyond State territorial confines rather (p. 194) than through norms directly constraining corporations.295 The latter framework was endorsed by the Human Rights Council in 2011 as the Guiding Principles on Business and Human Rights.296

The commentary on Guiding Principle 2 on business and human rights observes that,297 at present, ‘States are not generally required to regulate the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction. Nor are they generally prohibited from doing so’, adding that within ‘these parameters some human rights treaty bodies recommend that home States take steps to prevent abuse abroad by businesses enterprises within their jurisdiction’.298 These observations do not draw hard legal conclusions with regard to treaty body practice, in particular whether the international law position they distil is one of permissions as opposed to obligations. States may be ‘permitted’ to establish extraterritorial jurisdiction under a number of grounds as a function of sovereignty, while extraterritorial obligations under human rights treaties generally stem from situations of de facto control.299 Augenstein and Kinley carry through the ‘control’ relationship expressed in cases of territorial occupation to the regulation of corporate activities abroad, contending that

the (non) regulation or control of corporate actors by the State establishes a relationship of de facto power between the State and the individual constitutive of extra-territorial human rights obligations. A State’s de jure authority to exercise extra-territorial jurisdiction under public international law not only delimits the State’s lawful competence to regulate and control business entities as perpetrators of extra-territorial human rights violations, but also constitutes a de facto relationship of power of the State over the individual that brings the individual under the State’s human rights jurisdiction and triggers corresponding extra-territorial obligations.300

Of the UN treaty bodies, GR 28 of CEDAW states that the obligation of States parties to establish legal protection of the rights of women on an equal basis with men, ‘and to take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise, also extend to acts of national corporations operating extraterritorially’.301 General comments of the CESCR articulate extraterritoriality principles with some consistency with regard to the activities ‘abroad’ of private actors including corporations that affect rights to health, water, and social security.302 According to De (p. 195) Schutter, the position of the CESCR ‘is supported by an emerging scholarship that the extra-territorial obligations under the ICESCR entail, at a minimum, that States parties should refrain from the adoption of measures that could negatively affect the enjoyment of such rights abroad, and that they should control the activities of private actors, particularly transnational corporations which they recognize as having their “nationality”, in order to ensure that such corporations do not violate these rights, directly or indirectly, in foreign jurisdictions’.303 On the other hand, the author cautions that, in the current state of international law a clear obligation on States to control private actors operating outside their national territory has not yet crystallized, and that ‘this is the case even as regards those private actors having the nationality of the State concerned, and whose behaviour therefore a State may decisively influence and on whom it may impose certain obligations in conformity with international law’.304

As noted, the Committee’s approach to extraterritorial obligations has emerged through a pattern of recommendations where the predominant focus has been the rights of indigenous peoples. CERD set the ball rolling in 2007 in concluding observations on Canada, expressing concern regarding reports ‘of adverse effects of economic activities connected with the exploitation of natural resources in countries outside Canada by transnational corporations registered in Canada on the right to land, health, living environment and the way of life of indigenous peoples’, and recommending ‘appropriate legislative or administrative measures’ to prevent such activities, and in particular to ‘explore ways to hold transnational organizations registered in Canada accountable’.305 Similar recommendations referring to corporations ‘registered’ in a State party have been made in connection with the reports of the USA306 and the UK.307 In the case of Australia the issue of a national legal framework was raised.308 In the case of Norway, concern was expressed about ‘the effects on indigenous peoples and other ethnic groups in territories outside Norway, including impact on their way of life and on the environment, of the activities by transnational corporations domiciled in the territory and/or under the jurisdiction of Norway’. The attendant recommendation was more elaborate than for Canada: Norway was invited ‘to explore ways to hold transnational corporations domiciled in the territory and/or under the jurisdiction of Norway accountable for any adverse impacts on the rights of indigenous peoples and other ethnic groups, in conformity with the principles of social responsibility and the ethics code of corporations’.309

(p. 196) XI.  Article (1)(e) Encouragement of Integrationist Multiracial Organizations and Movements and other Means of Eliminating Barriers Between Races—Discouraging Anything that Leads to Racial Division

The sub-paragraph, was introduced by sponsors in the Third Committee of the GA as a ‘positive’ statement, while its ‘racial barriers’ aspect links with the condemnation of such in the preamble and the anti-segregation focus of Article 3. Reporting guidelines interpret ‘integrationist multiracial organizations’ as ‘non-governmental organizations and institutions that combat racial discrimination and foster mutual understanding’,310 phrases linked to the anti-discrimination infrastructure required to fulfil obligations under Article 2 generally, as well as the hortatory language of Article 7 and the preamble. The issue makes a rare appearance in the procedure under Article 14 in Hagan v Australia,311 where the State party referred to academic commentary to the effect that 1(e) was broadly and vaguely worded, leaving undefined what ‘integrationist’ movements are and what ‘strengthens’ racial division.312

Practice does not greatly illuminate the State party’s implicit question. In the face of concerns over ‘the lack of social movements that promote integrationist multiracial values’, Barbados was requested to ‘create an enabling environment’ for such organizations’,313 while Iceland was recommended to ensure adequate finding and independence for non-governmental organizations (NGOs) combating racial discrimination.314 It would seem that organizations combating racial discrimination are ipso facto regarded as examples of 2(1)(e) organizations, an understanding that reaches out to human rights NGOs and NHRIs, especially those that attempt to translate ICERD principles into action and disseminate them to a wider public. The banning of human rights centres is thus liable to generate critical remarks,315 as is making registration of NGOs unduly burdensome, blunting their critical capacity and shrinking the space for civil society, a critique that reaches out to attacks on human right defenders; pro-tolerance NGOs—and other organizations under the rubric of Article 7—are clearly regarded as worthy of support.316 The sub-paragraph has also been used to criticize the prevalence of political parties structured on ethnic lines, based on the premise that this had the potential to increase ethnic tension;317 while the observations made were contextual, such parties were clearly not the ‘integrationist multiracial organizations’ envisaged in the sub-paragraph. The opposite end of the integrationist spectrum is represented by the racist organizations envisaged in Article 4(b). If ‘integrationist’ is given a narrow meaning, the range of organizations to be (p. 197) encouraged will be correspondingly narrow; if however, the term is understood as ‘in support of the principles of the Convention’ the field is wider. NGOs and community organizations that ‘promote a culture of tolerance and ethnic diversity’318 are clearly within the remit of the clause and are to be encouraged. Public bodies are included in the 2(1)(e) remit.319 Organizations that advocate respect for caste, immigrant, indigenous, and minority rights within the purview of the Convention are equally entitled to be regarded as ‘integrationist’.

D.  Comment

Article 2 is the engine of the Convention, using language of a ‘vigorous nature’ to convert rights into a platform for practical action.320 While the article is logically organized in progressing from obligations directed at the State and its bodies—public authorities and public institutions, legislation, and policy—towards regulating the actions of persons and groups, it is not a masterpiece of drafting; the travaux reveal degrees of confusion regarding the proliferation of terms and the overlapping of sub-paragraphs. The drafting was strongly influenced by the metaphors of immediate action and speed of response, illustrating the then dominant view that the swift elimination of racial discrimination was achievable if only the colonial systems could be swiftly demolished and apartheid consigned to history. The assertions of ‘no discrimination here’, allied with those on the ‘unthinkable’ notion of State-sponsored discrimination outside the customary circles of infamy, cemented the overall approach.

The travaux, as elsewhere, also reveal the minor key competing views that laws and prohibitions would not succeed without the assistance of education in combating racial discrimination, and that uniformity of approach and strict, unbending regulation were not appropriate to the Convention in light of the plurality of legal, political, and social arrangements in States, correlated with the complexities of their cultures, histories, and demographics. The overall approach in the Convention, however, is to combine legalistic with educational elements: both are indispensable to achieving the aims of the Convention, and both are integral to the Article 2(1)(d) requirement to prohibit and bring racial discrimination to an end ‘by all appropriate means’. The specifics of legislation, including criminal law, are further refined in Article 4; education as a right is protected, and education in human rights including the principles of the Convention is mandated, by Articles 5 and 7 respectively, while GR 35 on combating racist hate speech recalls that legislation and education are complementary and that legal prohibitions of discrimination have educational functions.

The paragraphs of Article 2 add up to a demanding prospectus for States parties, culminating in the sweeping provisions of 2(1)(d). The expansion of the concept of racial discrimination through the adoption of concepts such as indirect, and even structural discrimination, widens the obligations prospectus further, as does the extended notion of a discriminatory ‘act’.321 A paper prepared by CERD for the Intergovernmental Working Group on the Durban Declaration and Programme of Action summarized the import of the article:

(p. 198) Article 2 is a comprehensive provision addressing all aspects of States parties’ obligation to pursue a policy of eliminating discrimination. Inter alia, it embraces the obligation to ensure that public authorities and institutions refrain from engaging in racial discrimination, to prohibit racial discrimination by any persons, group or organization and to take positive measures where necessary to guarantee to all racial groups the full and equal enjoyment of human rights and fundamental freedoms.322

The paper goes on to recall the importance of NHRIs for Article 2,323 an example of the accretion in Committee practice of ‘standard’ recommended cases for the achievement of optimum effects in the implementation of the undertakings—an institutional superstructure largely replicated in recommendations regarding Article 6. The architecture of human rights institutions is ultimately a matter for the State. CERD has, however, developed positions on appropriate institutions to support the implementation of law and policy such as, in addition to the indispensable role of the courts, anti-racism bodies, ombudsmen, equality bodies, ‘defenders of rights’, specific protection bodies for indigenous peoples, etc. Aspects of the functioning of such bodies are of regular concern to the Committee in terms of their visibility, their range of functions, their objectivity and independence from political interference, the scope of their mandates, and the availability of resources for their effective functioning, Many of the concerns regarding the architecture of national human rights bodies are subsumed in references to the ‘Paris Principles’ relating to the status of national institutions for the promotion and protection of human rights.324 Recommendations to establish an NHRI,325 or expand existing institutional mandates to comply with the Paris Principles are standard, and include recommendations on independence and autonomy,326 financing and staffing,327 on the involvement of civil society in the process of establishment,328 and on taking steps toward accreditation by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights;329 responses by States parties to the downgrading of an NHRI by the International Coordinating Committee have also been sought.330

It is clear from the last-cited CERD summary that Article 2 reflects an integrated approach to the elimination of racial discrimination that incorporates negative and (p. 199) positive elements. While practice may approximate to the tripartite typology of obligations—respect, protect, fulfil—CERD has not systematically structured this usage in the manner of the CESCR and other bodies,331 preferring to work though the implications of Article 2 by tracking the detailed demands made upon States parties by the Convention. Whether Committee work would gain in precision by the adoption of a typology of obligations is an open question, bearing in mind the already significant elaboration of detail in Article 2; similarly, the ‘4A’ elaboration for the enjoyment of rights adopted by the CESCR (availability, accessibility, acceptability, and adaptability)332 has not been adopted by CERD. A working ‘typology’ adopted by the Committee, referring to the ‘substantive obligations in the Convention to prevent, protect against and remedy discriminatory acts’, has been put forward in opinions under Article 14.333

With regard to the incorporation of the Convention into domestic legal systems, the practice has not been overly concerned with the nuances of theory.334 Rather, it has sought to ensure that the provisions of the Convention are reflected as fully as possible in domestic law and practice, whatever patterns or techniques of incorporation are adopted. The Committee questions States on the reach of the Convention into court practice—whether it can be invoked in judicial or analogous proceedings, and to what effect. Absence of or limited invocation of the Convention before domestic courts is treated as a matter of concern,335 not assuaged by claims that racial discrimination is not a significant issue in the State party concerned. The information from States asserting the direct applicability of the Convention in domestic law may sit uneasily with an absence of relevant cases where it is invoked: inter alia, training of judges and law officers in the principles of the Convention and its direct applicability may be recommended to remedy the situation.336 The Committee has sought clarification of information that the application of the Convention is judged on a case by case basis, ‘taking into consideration the purpose, meaning and wording of the provisions concerned’,337 although an examination of whether particular provisions are or are not self-executing would seem in itself to be unremarkable and undeserving of criticism.338 Regarding the level of incorporation, expressed concerns for the status of the Convention in domestic law when compared with that of other human rights instruments are noted above, concerns that appear amply (p. 200) justified in light of the links between the Convention and the Charter of the United Nations,339 customary international law, and even peremptory norms.340

In whatever form it takes, whether through civil law codes or the more diffuse methods employed by the common law, incorporation is, in the view of the Committee, not simply a matter of words on paper but is to be confirmed by programmes of practical action—legislative aesthetics are not an adequate response to the demands of the Convention.341 The canons of practicality and effectiveness are further satisfied through awareness-raising and training in the principles of the Convention, notably for legal professionals and public service personnel, the promotion of institutional dialogue on the rights and obligations therein, and the transmission of the conclusions of the Committee to civil society. In the last respect, CERD has adopted its own version of the ‘vernacularization’ of its guidance functions,342 exhorting States to disseminate their reports and the concluding observations thereon not only in official or national languages but also in ‘other commonly used languages’.343 This is an important reference principle for a Convention that centres on collective as well as individual rights, which, inter alia, serves to facilitate the realization of the right of minorities and comparable groups to participate in decisions affecting them.

With regard to the vertical and horizontal reach of the Convention, CERD has been robust on the requirement to implement the Convention through layers of governance, an obligation which has also been applied to religious and customary courts. Ethiopia was requested by the Committee to ‘ensure that public authorities and officials, including those at the level of religious and customary courts, act in conformity with Article 2(1)’;344 in the case of Mozambique, information was requested on measures adopted ‘to ensure that the actions of traditional authorities, and customary laws, are in conformity with…the Convention’.345 The reaching down to customary and other institutions will be affected by the interpretation of ‘private life’ and freedom of association in the Convention and how these concepts should be applied to voluntary associations and ethnicities. The question of the Convention’s ‘reach’—and the Committee’s approach to (p. 201) interventions—intersects with questions on the content and role of religious and customary laws, though the two issues are not completely congruent.346

As to the lateral application of the Convention, the ‘control’ or ‘effective control’ principle characterizing situations of dependency or occupation has referred principally to control over a territory rather than extraterritorial application through control of persons by agents of a State. Both aspects of control potentially fit within the ICERD frame: the above-cited reference in Georgia v Russian Federation refers simply and openly to ‘actions’ of a State party. Practice has not consolidated itself in the form of a dedicated general recommendation, nor has extraterritoriality been engaged in the communications procedure under Article 14. International practice does not furnish ready answers to the further question of the comprehensiveness of State obligations when extraterritorial jurisdiction is established in terms of the triumvirate to ‘respect, protect and fulfil’ human rights.347 In the case of the ‘personal’ mode of jurisdiction—where individuals are under the control of agents of the State—there is authority for the view that obligations can be ‘divided and tailored’, a limitation that would not apply to cases of territorial control through a subordinate local administration or armed forces, where the full range of human rights is applicable under the Convention in question.348 In any case, ‘dividing and tailoring’ with regard to applying a determinate, context-specific range of human rights, would remain subject to ICERD standards prohibiting racial discrimination. It may be noted that Articles 3 and 6 of the Convention, which include reference to territory and to jurisdiction, appear not to have been treated in any different manner from Article 2 and the Convention generally when it comes to extraterritorial application.

The control principle is also deemed to apply to colonial territories, and the Committee is eminently capable of opposing its own view on the applicability of the Convention to that of the State party. In regretting the stance of the UK that the Convention does not apply to the British Indian Ocean Territory (BIOT),349 the State party was reminded that (p. 202) it had ‘an obligation to ensure that the Convention is applicable in all territories under its control’, to which was added the recommendation that ‘all discriminatory restrictions on Chagossians (Ilois) from entering Diego Garcia or other islands on the BIOT be withdrawn’.350

With regard to the Committee’s stance on the extraterritorial activities of corporations, States have contested the Committee’ hortatory recommendations. Canada expressed the view that ‘obligations under the Convention did not extend beyond [Canada’s] borders’ and that ‘primary responsibility for social and environmental issues rested with the foreign State in which Canadian multinationals operated’.351 Norway stated simply that issues regarding the activities of Norwegian firms abroad ‘were outside the Committee’s purview’.352 The UK explained that UK anti-discrimination legislation ‘was not extended to British companies operating overseas. They [the companies] bore primary responsibility for their actions, and legal responsibility for any human rights abuses rested with the authorities in the States concerned’.353

It remains to be seen whether the exploration of extraterritorial regulation will in due course meet with more positive responses.354 The Committee’s stance derives from the assumption that States parties can and should exercise control over the actions of corporations registered in the State. Practice has not adequately clarified the conditions for the exercise of control, what forms of control are in question, and what are the triggering conditions for the principle to operate. Thus far, the focus has been on recommendations for the protection of indigenous peoples from grave damage to lives, territories, and resources where their local State appears unable or unwilling to offer an equivalent response. The Committee’s in statu nascendi approach includes elements that await further determination and would benefit from a general recommendation or statement, perhaps in conjunction with a body such as the CESCR, to implement the position as treaty interpretation and contribute to the development of international customary law.

The fulfilment of the demands of Article 2 is necessarily differentiated in light of the rights and different circumstances of groups and individuals; the development of policy is subject to the general Convention principle that uniformity of response to different circumstances can be discriminatory in itself.355 The necessity to work on the basis of accurate, disaggregated data, applies to the discharge of obligations as elsewhere in the application of the Convention. Article 2 focuses on the elaboration and structuring of State efforts to combat discrimination through the prism of obligations, and is a vehicle for assessing the adequacy of measures taken towards the objectives of the Convention. The article is noteworthy in the breadth of its ambition to bring racial discrimination to an end—2(1)(d)—throughout society. Makkonen asserts that the combination of (p. 203) conventions and declarations to be implemented by States and intergovernmental organizations

creates a statist culture which emphasises the role of legislation, policy programmes and other centrally coordinated action, and sustains the utopia that governments can effectively prevent people from engaging in discrimination and thereby eliminate all forms of discrimination. Such statism may inadvertently or even openly discourage non-State action356

Whatever the intellectual coherence and practicality of the Convention’s ultimate ambition to eliminate racial discrimination, its ‘statism’ is increasingly mitigated by the growing impact of a range of actors beyond the State, working to make a reality of international professions of human rights standards. The spectrum of obligations in Article 2 integrates with the whole Convention, the implementation of which is markedly less ‘statist’ than in the early years following its adoption. Civil society has made tremendous strides in working with the Convention in a wide range of countries, while articulations of group rights press upon the interpretation of the text. Article 2, and the Convention as a whole, should be interpreted as not discouraging civil society but as soliciting its collaboration. GR 32 on special measures recalls the desideratum of consultation with affected communities and their active participation in the design and implementation of ‘measures’357—plans, policies, and programmes—a stipulation that is applicable, mutatis mutandis, across the spectrum of activity engaged by Article 2.

Footnotes:

1  Moylan v Australia, CERD/C/83/D/47/2010 92013), para. 6.2, citing Habassi v Denmark, CERD/C/54/D/10/1997 (1999), para. 10, Ahmad v Denmark, CERD/C/56/D/16/1999 (2000), para. 8, and Durmic v Serbia and Montenegro, CERD/C/68/D/29/2003 (2006), para. 10.

2  CEDAW GR 28 addresses ‘the core obligations of States parties under Article 2’, an article that shows affinities with Article 2 of ICERD: CEDAW/C/GC/28, 16 December 2010. CERD has not issued a comparable general recommendation that covers the full range of obligations under Article 2 ICERD.

3  Article 2(1).

4  Article 2(1).

5  Article 2(1).

6  Article 7.

7  Article 4.

8  Article 1.

9  Article 1.

10  Article 1.

11  See in particular, Articles 8, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 26, 27, 29, 30, 31, 32, 36, and 38.

12  The Right to Adequate Food as a Human Right, Final Report of the UN Special Rapporteur on the Right to Food, A. Eide, E/CN.4/Sub.2/1987/23. For use by the Committee on Economic, Social and Cultural Rights, see for example GC 12, The Right to Adequate Food, E/C.12/1999/5.

13  H. Shue, Basic Rights, Subsistence, Affluence and U.S. Foreign Policy (2nd edn, Princeton University Press, 1996).

14  Thus, ‘in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State. However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights. An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention’: Velásquez Rodríguez v Honduras, (Merits), IACtHR Ser. C No. 4 (1988), para. 172.

15  Principles and Guidelines for a Human Rights Approach to Poverty Reduction Strategies (Office of the UN High Commissioner for Human Rights, 2005), para. 48—the foreword by the High Commissioner recalls that the work ‘builds upon several previous publications of the Office of the United Nations High Commissioner for Human Rights, Draft Guidelines on a Human Rights Approach to Poverty Reduction Strategies (2002) and Human Rights and Poverty Reduction: A Conceptual Framework (2004), drafted by Professors Hunt, Nowak, and Siddiq Osmani, and also draws on consultations with various stakeholders (including Member States, intergovernmental and non-governmental organizations)’. The obligation to fulfil entails provision of a remedy for victims of human rights violations: Velásquez Rodríguez v Honduras, para. 176; in the present work, see the discussion of remedies in the commentary on Article 6 of ICERD.

16  ‘At its most general, the obligation to fulfil is considered also to involve an obligation to promote human rights, which means that States should adopt policies that promote rights both domestically (for example, human rights education) and internationally’: F. Mégret, ‘Nature of Obligations’, in D. Moeckli, S. Shah, and S. Sivakumaran (eds.), International Human Rights Law (2nd edn, Oxford University Press, 2014), p. 103 (emphasis in the original) [henceforth International Human Rights Law].

17  See the summary by W. Vandenhole, Non-Discrimination and Equality in the View of the UN Human Rights Treaty Bodies (Intersentia, 2005), pp. 187–90 [henceforth Non-Discrimination and Equality].

18  For an example of their employment, see GC 12 of the Committee on Economic, Social and Cultural Rights, The Right to Adequate Food, E/C.12/1999/5 (1999), paras 14–20.

19  D. Shelton and A. Gould, ‘Positive and Negative Obligations’, in D. Shelton (ed.), The Oxford Handbook of International Human Rights Law (Oxford University Press, 2015), pp. 562–83 [henceforth ‘Positive and Negative Obligations’]. The web page of the Office of the UN High Commissioner for Human Rights offers the following information: ‘International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.’ <http://www.ohchr.org/en/professionalinterest/Pages/InternationalLaw.aspx>.

20  For a critique of the typology, see I.E. Koch, ‘Dichotomies, Trichtomies or Waves of Duties?’ Human Rights Law Review 5 (2005), 81–103. Vandenhole, Equality and Discrimination, pp. 187–287, applies the typology of obligations to ICERD as well as to related instruments. The present chapter follows the more open and Convention-specific approach adopted (so far) by CERD.

21  Concluding observations on Thailand, CERD/C/THA/CO/1-3, para. 16.

22  Concluding observations on Turkmenistan, CERD/C/TKM/CO/5, para. 17 (freedom of religion).

23  Concluding observations on Finland, CERD/C/FIN/CO/20-22, para. 13.

24  Concluding observations on Costa Rica, CERD/C/CRI/CO/18, para. 10; Guatemala, CERD/C/GTM/CO/11, para. 17; Venezuela, CERD/C/VEN/CO/18, para. 20.

25  Concluding observations on Slovenia, CERD/C/SVN/CO/6-7, para. 12 (political rights).

26  Concluding observations on Colombia, CERD/C/COL/CO/14, para. 14; Israel, CERD/C/ISR/CO/13, para. 37.

27  Concluding observations on, CERD/C/CAN/CO/18, para. 14 (stereotypes associated with terrorism).

28  Concluding observations on Ecuador, CERD/C/ECU/CO/20-22, para. 13.

29  GR 32, para. 23.

30  E/CN.4/Sub.2/L.308, Article 2, para. 1.

31  Discrimination by groups, institutions, or individuals was also adverted to in the Kertzynski draft, E/CN.4/Sub.2/L.323, Article 2, para. 2.

32  E/CN.4/Sub.2/L.309, Article 2, para. 3.

33  E/CN.4/Sub.2/L.323, Article 2 para. 1.

34  E/CN.4/Sub.2/L.309, Article 2, para. 2. The Ivanov/Ketrzynski draft, E/CN.4/Sub.2/L.314, Article 2, para. 1, and the Ketrzynski draft, E/CN.4/Sub.2/L.323, Article 2, para. 2, also included limiting references to territory.

35  E/CN.4/Sub.2/L.309, Article 2, para. 3.

36  States parties would undertake not to permit, etc. racial discrimination in its territory ‘and, if necessary… make legislative provision for and…implement such measures as are required for the speedy elimination of all racial discrimination’: E/CN.4/Sub.2/L.323, Article 2, para. 3.

37  E/CN.4/Sub.2/L.324, this text did not include a paragraph on special measures.

38  E/CN.4/873, para. 59.

39  Capotorti commented that the State ‘was…a complex which included all its organs’: E/CN.4/Sub.2/SR.415, p. 5.

40  ‘Private’ appears to have been dropped because, in the words of Ketrzynski, ‘it might be interpreted in some States as restrictive’: E/CN.4/Sub.2/SR.415, p. 7; see also the comments of Ingles, E/CN.4/Sub.2/SR.415, p. 8, and Capotorti, E/CN.4/Sub.2/SR. 415, pp. 9 and 10.

41  E/CN.4/Sub.2/SR.415, p. 9. Capotorti expanded on examples, which included ‘not only organs which depended directly on the central government, but also autonomous entities such as State railways, public power authorities and local institutions’; the paragraph ‘was intended to cover all public activities’: E/CN.4/Sub.2/SR.417, p. 4. Following Capotorti, Lerner reads the provision as covering such autonomous entities, which ‘are always of a public nature’: N. Lerner, The International Convention on the Elimination of All Forms of Racial Discrimination (Sijthoff and Noordhoff, 1980), p. 37 [henceforth The International Convention].

42  E/CN.4/Sub.2.SR.415, p. 9.

43  E/CN.4/Sub.2/SR.415, p. 10.

44  The difference between ‘rescind’ and ‘nullify’ in the paragraph was explained by Ferguson in response to a question by Capotorti: according to Ferguson, ‘in common law countries, only bodies which had the power to make laws could rescind them…Bodies such as courts, which did not have the power to make laws, were entitled to nullify them’: E/CN.4/Sub.2/SR.416, p. 6.

45  E/CN.4/Sub.2/SR.416, p. 5.

46  E/CN.4/Sub.2/L.327, E/CN.4/Sub.2/SR.416, p. 5. The amendment was rejected by 6 votes to 4 with 3 abstentions: E/CN.4/Sub.2/241, para. 66. See also further comments by Ivanov, E/CN.4/Sub.2/SR.417, p. 7.

47  E/CN.4/L.691. The proposal was adopted by 15 votes to 1 with 1 abstention: E/CN.4/874, para. 128.

48  E/CN.4/874, para. 116. The ‘unthinkable’ substance of the impugned sentence appears as Article 2(1)(b) of the final text.

49  E/CN.4/L.687; E/CN.4/SR.787, p. 7, representative of Austria.

50  E/CN.4/874, para. 127: voting was 12 to none, with 8 abstentions.

51  E/CN.4/L.689.

52  E/CN.4/874, para. 117; observations of the United Kingdom in E/CN.4/SR.789, p. 4.

53  Comment by the representative of The Netherlands, E/CN.4/SR.789, p. 6.

54  Observation of the Chairman, the representative of Ecuador, E/CN.4/SR.789, p. 6.

55  Observation by the representative of India, E/CN.4/SR.789, p. 6.

56  Representative of Austria, E/CN.4/SR.789, p. 7.

57  E/CN.4/874, paras 118 and 119: on the proposal by India, ‘It was considered that the text should contain some provision…for the amending of existing laws and regulations which had the effect of creating or perpetuating racial discrimination wherever it existed’: ibid., para. 119; E/CN.4/SR.789, p. 5.

58  E/CN.4/L.689, summarized in E/3873; E/CN.4/874, para. 120.

59  E/CN.4/SR.787, p. 10 for part of the UK explanation.

60  The representative of Canada wondered ‘whether it was really necessary to bind States to prohibit racial discrimination. If the intention was to place upon States the obligation to abolish racial discrimination, the Convention should emphasize positive measures to that end’: E/CN.4/SR.788, p. 5; see also remarks by the representative of France, ibid., pp. 6–7.

61  The UK also made the point that, in common law countries, racial discrimination was dealt with not by making it an offence but by the protection given to all under the law in the enjoyment of human rights and fundamental freedoms: E/CN.4/SR.788, pp. 4–5.

62  ‘Each State party shall prohibit and bring to an end by all appropriate means, including legislation if necessary, racial discrimination by any person, group or national organization.’

63  Comments by the representative of the USSR, E/CN.4/SR.787, p. 11.

64  The Turkish amendment was adopted unanimously: E/CN.4/874, para. 132. Various comments on the text are made in E/CN.4/SR.788, pp. 9–10. The representative of Costa Rica read the Turkish proposal as emphasizing ‘that States were to prohibit racial discrimination “by all appropriate means”, that was to say any means within the law, and it did not commit them to enact new legislation unless it was necessary’: E/CN.4/SR.788, p. 9.

65  A/C.3/L.1217. The amendment was adopted by 85 votes to none, with 7 abstentions: General Assembly Official Records, Twentieth Session, Annexes, Agenda item 58, Report of the Third Committee, A/6181, para. 55.

66  The amendment ‘Each State party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations’ (A/C.3/L.1226 and Corr. 1) replaced ‘Each State party undertakes not to encourage, advocate or support racial discrimination by any persons or organizations’ (A/C.3/L.1209), which conveys essentially the same message. The multi-party amendment was adopted by 47 votes to 2 with 39 abstentions: A/6181, para. 55.

67  The logic of the new paragraph did not commend itself to the representative of Italy: ‘the Italian delegation considered that, if States undertook to prohibit certain activities, it was pointless to invite them, at the same time, not to encourage those activities’: A/C.3/SR.1308, para. 20.

68  A/C.3/L.1226 and Corr. 1; the amendment was adopted by 56 votes to 2 with 34 abstentions: A/6181, ibid. The representative of the Netherlands intimated that ‘other public policies’ was wider that ‘national and local’ in that it ‘sufficed to cover all the policies to which sub-para. 1(a) applied’: A/C.3/SR.1308, para. 12. Austria abstained on the paragraph because, according to the representative, ‘legislation having local application was not possible in her country’: A/C.3/SR.1308, para. 35.

69  Now sub-para. (d) of Article 2.1 of the Convention; this was the result of an oral suggestion by Italy at the 1308th meeting, revising the multi-State amendment A/C.3/L.1226 and Corr. 1, and was adopted by 81 votes to 1, with 11 abstentions: A/6181, para. 49.

70  A/C.3/L.1210, amendment by Poland to replace ‘if necessary’ by ‘in the absence thereof’ was itself replaced on the oral suggestion of Ghana at the 1308th meeting: A/6181, para. 48; the representative of Ghana observed that some delegations regarded the Polish phrase as ‘too peremptory’: A/C.3/SR.1308, para. 3.

71  A/C.3/SR.1306, para. 18. This was clarified further by the representative of Poland to the effect that if ‘such legislation already existed, there was no need for adoption of any new legislation’: A/C.3/SR.1307, para. 33.

72  A/C.3/SR.1307, para. 3.

73  A/C.3/SR.1308, para. 31.

74  A/C.3/L.1217 was adopted on a roll-call vote by 97 votes to none, with 4 abstentions: A/6181, para. 55.

75  A/C.3/SR.1308, para. 18. For comments by the representative of Italy, see para. 19, ibid.

76  A/C.3/SR.1308, para. 29.

77  Ibid., para. 30. See also the negative comments of Jamaica, ibid., para. 37.

78  A/C.3/SR.1308, para. 36.

79  The Committee has recommended that Monaco withdraw the reservation in light of ‘developments in its legislation’: A/65/18, p. 86, para. 7. Switzerland maintains a similar reservation.

80  A/56/18, para. 392.

81  CERD/C/USA/CO/6, para. 11. The issue is recalled and expanded in the 2014 concluding observations of the Committee, wherein the State party is called upon to consider withdrawing or narrowing the reservation ‘and broaden the protection afforded by law against all discriminatory acts perpetrated by private individuals, groups or organizations’: CERD/C/USA/CO/7-9, para. 5.

82  International Action, p. 247.

83  HRI/GEN/2/Rev.5, p. 14, para. 52.

84  Ibid., p. 14, para. 53.

85  CERD/C/2007/1, pp. 5–6.

86  Article 27 of the Vienna Convention on the Law of Treaties. For applications by the International Court of Justice, see the Lockerbie case, ICJ reports 1992, pp. 3, 32; Avena (Mexico v USA), (Provisional Measures) ICJ reports 2004, p. 12, p. 65, cited in M.N. Shaw, International Law (6th edn, Cambridge University Press, 2008), p. 135 [henceforth International Law].

87  V. Leary, International Labour Conventions and National Law (Martinus Nijhoff Publishers, 1982), p. 1.

88  For a general treatment, with useful illustrations, see Shaw, International Law, chapter 4; for application to international human rights conventions, see A. Byrnes and C. Renshaw, ‘Within the State’, in Moeckli et al., International Human Rights Law, Chapter 22, at pp. 460–5.

89  For a helpful general review of the range of approaches to international law taken by domestic legal systems, see D. Sloss, ‘Domestic Application of Treaties’, D. Hollis (ed.), The Oxford Guide to Treaties (Oxford University Press, 2014), pp. 367–95 [henceforth Domestic Application].

90  Shaw, International Law, Chapter 4 ‘International Law and Municipal Law’.

91  Concluding observations on Morocco, CERD/C/MAR/17-18, para. 8, recommend that the State party ‘incorporate provisions in its constitution on the primacy of international treaties over domestic law, in order to ensure broad application of this principle and enable litigants to invoke the relevant provisions of the constitution before the courts’.

92  Article 4 of the Convention is the most frequently cited Article with reference to its non-self-executing nature, and thus of the need to legislate its requirements to make them effective in domestic law.

93  ‘The Committee is concerned that the definition of racial discrimination in…the Constitution of Japan, which prescribes the principles of equality and non-discrimination, does not include the grounds of national or ethnic origin, colour or descent and therefore does not fully meet the requirements of Article 1 of the Convention’: concluding observations on Japan, CERD/C/JPN/CO/7-9, para. 7; see also concluding observations on Korea, CERD/C/KOR/CO/14, para. 10.

94  Concluding observations on Nigeria, CERD/C/NGA/CO/18, para. 11.

95  Concluding observations on Bosnia and Herzegovina, CERD/C/BIH/CO/6, para. 11.

96  Concluding observations on Colombia, CERD/C/COL/CO/14, para. 13. The Committee has also called for the ‘entrenchment’ of constitutional provisions and that legislative acts against racial discrimination prevail over all other legislation: concluding observations on Australia, CERD/C/AUS/CO/15-17, para. 110.

97  CERD/C/PAN/CO/15-20, para. 9.

98  Concluding observations on Portugal, CERD/C/PRT/CO/12-14, para. 11.

99  CERD/C/GBR/CO/18-20, para. 10.

100  CERD/C/DNK/CO/18-19, para. 8; CERD/C/NK/O/20-21, para. 8.

101  Concluding observations on Norway, CERD/C/NOR/CO/19-20, para. 7.

102  ‘The Committee urges the State party to review its legislation and take the most appropriate approach for incorporating the Convention’s provisions into domestic law, either by adopting a comprehensive law against racial discrimination or amending existing laws’: concluding observations on Laos, CERD/C/LAO/CO/16-18, para. 7.

103  CERD/C/SR.1444, para. 37, discussing the initial and second periodic report of Japan.

104  Concluding observations on Japan, CERD/C/304/Add.114, para. 20.

105  Concluding observations on Armenia, CERD/C/ARM/CO/5-6, para. 8; The Philippines, CERD/C/PHL/CO/20, para. 14.

106  GR 35, para. 13.

107  CERD/C/304/Add.125, paras 12 and 13; CERD/C/USA/CO/6, para. 11.

108  For a review of the position in US courts on self-executing treaties and related issues, see C. Vázquez, ‘Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties’, Harvard Law Review 122 (2008), 599–695; Sloss, Domestic Application, 387, describes the position in the US as ‘analytically incoherent’.

109  Article 2(1).

110  The ICESCR is similarly devoid of a provision regarding territory or jurisdiction, though, analogously to Article 14 of ICERD, its Optional Protocol envisages communications from people under the jurisdiction of a State party. The ACHR—Article 1(1)—requires States parties to respect and ensure the rights of persons subject to their jurisdiction, without reference to a territorial condition; an analogous provision appears in Article 1 of the ECHR.

111  ‘Jurisdiction’ is a term with multiple meanings in international law and the international law of human rights, ranging over the different bases for the legal exercise of jurisdiction over persons outside the State’s territory—delimitation of sovereign competence—to the question of obligations incurred towards groups and individuals protected by ICERD but situated extra-territorially. For a review of the general position in international law, see Shaw, International Law, Chapter 12; for distinctions between the position in general international law and that in human rights, see M. Milanovic, ‘From Compromise to Principle: Clarifying the Conception of Jurisdiction in Human Rights Treaties’, HRLR 8 (2008), 411–48; also the presentation by the last author on <http://webtv.un.org/news-features/watch/marko-milanovic-on-the-extraterritorial-application-of-human-rights-treaties/3875099482001>.

112  International human rights law highlights different concerns than international law more broadly, historically concerned with the ‘protection of aliens’; for a short summary, see R. Kolb, ‘The Protection of the Individual in Times of War and Peace’, in B. Fassbender and A. Peters (eds), The Oxford Handbook of the History of International Law, Chapter 13.

113  Lubell summarizes the point: ‘The very object and purpose of the Covenant would be severely undermined if States could evade responsibility by relocating their abuse of individuals’: N. Lubell, Extraterritorial Use of Force against Non-State Actors (Oxford University Press, 2010), p. 205.

114  General Comment 31, para. 10. Cases are relatively sparse: see discussion by S. Joseph and A. Fletcher, ‘Scope of Application’, chapter 6 of Moeckli et al., International Human Rights Law, pp. 119–39, pp. 133–4, who note the assertion by the Human Rights Committee of the responsibility of Israel for the Occupied Territories, and of the US for Guantanamo Bay—both situations have been addressed by CERD. The authors conclude, p. 133, that ‘the ICCPR and the ACHR apply extraterritorially where an affected person is under the effective control of a State’s agents, rather than only where an affected person is within territory that is effectively controlled by a State’, while observing, p. 138, that ECHR practice may not be fully consonant with their position.

115  CEDAW GR 28 on ‘the Core Obligations of States parties under Article 2’, CEDAW/C/GC/28 (2010), para. 12.

116  Notable cases before the European Court of Human Rights include Loizidou v Turkey, App. No. 15318/89 (1996); Cyprus v Turkey, App. No. 25781/94 (2001); Ilascu and Others v Moldova and Russia, App. No. 48787/99 (2001); Issa v Turkey, App. No. 31821/96 (2004); Al Skeini and Others v UK, App. No. 55721/07 (2011). In the Inter-American system, see Saldano v Argentina, Inter-American Commission report No. 38/99.

117  Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Advisory Opinion, 9 July 2004, para. 109; the Court found that the constant practice of the Human Rights Committee is consistent with this view, a practice confirmed by the travaux préparatoires of the Covenant. The Court therefore concluded, para. 111, that the ICCPR ‘is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’.

118  Construction of a Wall, para. 112. As with the Human Rights Committee under the ICCPR, the Court cited the position taken by the Committee on Economic, Social and Cultural Rights in support of its reasoning. The interpretation of the scope of jurisdiction in Construction of a Wall was recalled by the Court in Armed Activities on the Territory of the Congo (Democratic Republic of Congo v Uganda), Judgment of 19 December 2005, ICJ Rep. 168, para. 216.

119  Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination, Georgia v Russian Federation, Request for Provisional Measures, International Court of Justice, 15 October 2008, para. 109. The preceding paragraph. recited the disagreement of the parties on the territorial scope of obligations under ICERD: Georgia claimed that Russia’s obligations extended to ‘acts and omissions attributable to Russia’ which had their locus ‘within Georgia’s territory and in particular in Abkhazia and South Ossetia’; Russia on the other hand, claimed that the Convention could not be applied extraterritorially and, in particular, that Articles 2 and 5 could not ‘govern a State’s conduct outside its own borders’. See further discussion in Chapter 19.

120  S. Sivakumaran, ‘International Humanitarian Law’, in Moeckli et al., International Human Rights Law, pp. 480–95, p. 494.

121  Comment by Sub-Commission member Ferguson on the deletion of a reference to territory, supra, n. 45. The issue of territory was not well-aired in the travaux.

122  European Court of Human Rights, Banković et al. v Belgium et al., App. No. 52207/99, Admissibility (2001), para. 80: ‘the [ECHR] is a multi-lateral treaty operating…in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States…The Convention was not designed to be applied throughout the world’. For a critique, see M. Milanović, Extraterritorial Application of Human Rights Treaties: Law, Principles, and Policy (Oxford University Press, 2011), p. 40, describing a confusion between legality and the operation of facts in Banković as a category error; also M. Happold, ‘Banković v Belgium, and the Territorial Scope of the European Convention on Human Rights’, HRLR 3 (2003), 77–90.

123  In concluding observations, the Committee encouraged the State party to consider withdrawing its reservation and declarations ‘including removal of the territorial limitation to the application of the Convention’: CERD/C/TUR/CO/3, para. 8. Cyprus objects to the ‘declaration deeming it to be a reservation: ‘the Government of the Republic of Cyprus has examined the declaration made by the Government of the Republic of Turkey to the International Convention on the Elimination of all Forms of Racial Discrimination (New York, 7 March 1966) on 16 September 2002 in respect of the implementation of the provisions of the Convention only to the States Parties with which it has diplomatic relations.

In the view of the Government of the Republic of Cyprus, this declaration amounts to a reservation. This reservation creates uncertainty as to the States Parties in respect of which Turkey is undertaking the obligations in the Convention. The Government of the Republic of Cyprus therefore objects to the reservation made by the Government of the Republic of Turkey. This reservation or the objection to it shall not preclude the entry into force of the Convention between the Republic of Cyprus and the Republic of Turkey’: <https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-2&chapter=4&lang=en#EndDec>. Further on reservations to the Convention, see Chapter 18.

124  Such situations are characteristically listed in concluding observations under ‘factors and difficulties’ in implementing the Convention: discussion in Chapter 4 of the present work. For early practice of the Committee with regard to the Panama Canal Zone, the Golan Heights, Cyprus, the West Bank of the River Jordan, and Sinai, see Lerner, The International Convention, Chapter 4.

125  CERD/C/304/Add.124, para. 3. The issue of lack of control by the State party over all of its territory is a recurring theme in observations on Cyprus: CERD/C/CYP/CO/17-22, para. 6. For earlier observations on Cyprus, see L. Holmström (ed.), Concluding Observations of the UN Committee on the Elimination of Racial Discrimination (Kluwer Law International, 2002), pp. 171–7 [henceforth Concluding Observations].

126  Moldova, CERD/C/MDA/CO/8-9, para. 3.

127  Examples include Decision 1(76) on Nigeria, A/65/18, pp. 6–7; Decision 1(77) on Kyrgyzstan, ibid., pp. 7–8; Decision 1(78) on Côte d’Ivoire, A/66/18, pp. 6–7; Concluding observations on Kenya, CERD/C/KEN/CO/1-4, para. 15. For an extensive list of conflict-related recommendations, see I. Diaconu, Racial Discrimination (Eleven International Publishing, 2011), pp. 191–4.

128  In the case of Cyprus, the Committee requested information on ‘intercommunal initiatives undertaken by the State party and by civil society to restore mutual confidence and improve relations between ethnic and/or religious communities as well as raise awareness through the impartial teaching of the history of Cyprus in schools and other State institutions’: CERD/C/CYP/CO/17-22, para. 7.

129  CERD/C/GEO/CO/4-5, para. 8.

130  Ibid., para. 9.

131  The preceding sentence of the paragraph refers to Security Council resolution 1866 (2009) requesting the parties in conflict to facilitate the free movement of refugees and internally displaced persons (IDPs).

132  In Ilaşcu and others v Moldova, the European Court of Human Rights interpreted the ‘jurisdiction’ of States parties over secessionist territories as implying not the absence of jurisdiction but its reduced scope, so that the State must still endeavour, ‘with all the legal and diplomatic means available to it…to continue to guarantee the enjoyment of…rights and freedoms’: App No. 48787/99 (2004), para. 333, also para. 331. See also Catan and Others v Moldova and Russia, App. Nos. 43370/04, 8252/05, and 18454/06, (2012). For a Critique of Ilaşcu and Catan, see comments by M. Milanovic, <http://www.ejiltalk.org/grand-chamber-judgment-in-catan-and-others>. For further comment on the implications of Ilaşcu following the take-over of Crimea but the Russian Federation, see T.D. Grant, ‘Ukraine v Russian Federation in Light of Ilascu: Two Short Points’, <http://www.ejiltalk.org/ukraine-v-russian-federation-in-light-of-ilascu-two-short-points>. Clarification of distinctions between jurisdiction and attribution is offered in O. De Schutter, International Human Rights Law (Cambridge University Press, 2010), pp. 147 ff. [henceforth International human Rights Law]. Commentators have summarized Ilasçu as implying that ‘just because a State does not have plenary jurisdiction does not mean that it has none’: F. Hampson and N. Lubell, Amicus Curiae Brief for Georgia v Russia (II), ECHR, <http://repository.essex.ac.uk/9689/1/hampson-lubell-georgia-russia-amicus-01062014.pdf>.

133  De Schutter, ibid., p. 134. The point made by Besson may also be borne in mind: ‘Without jurisdiction, there are no human rights applicable and hence no duties, and there can be no acts or omissions that would violate those duties that can be attributed to a State and a fortiori no potential responsibility of the State for violating those duties later on’: S. Besson, ‘The Extraterritoriality of the European Convention on Human Rights: Why Human Rights Depend on jurisdiction and what Jurisdiction Amounts to’, <http://doc.rero.ch/record/32542/files/ExtraterritorialityECHR.pdf>.

134  Responding to CERD’s concluding observations of 2011, Georgia welcomed the acknowledgement ‘that the third State that exercises effective control of Abkhazia…[etc.]…has a responsibility to observe and implement the Convention in these regions. Hence the Russian Federation bears responsibility for the respect, observance and implementation of the Convention in the occupied regions…Georgia…remains committed to report about undertaken efforts originating from its positive obligations vis-à-vis occupied regions of Georgia’: A/66/18, Annex VIII. Co-opting the terminology of ‘Occupied Territories’, the 2014 periodic report of Georgia states that while Georgia ‘fully undertakes the obligation to take all possible measures for implementing the provisions of the Convention…in light of its positive obligations under…human rights law, it contends that the primary responsibility…rests with the Russian Federation’: CERD/C/GEO/6-8, para. 33. See generally, Diaconu, Racial Discrimination, pp. 191–4, 320–3.

135  One commentator suggests that the reference in the Abram draft in the Sub-Commission, E/CN.4/Sub.2/L.308, Article 2, para. 2, referring to a prohibition on States lending support to racial discrimination ‘through police action or otherwise’, was dropped ‘not because the delegates thought the use of force should not be covered, but because they did not want to include any language that could be limiting or confusing’: C.G. Buys, ‘Application of the International Convention on the Elimination of All Forms of Racial Discrimination’, AJIL 103 (2009), 294–99, 297; the author cites the comments in E/CN/4/Sub.2/SR.419, p. 7, remarks of Mudawi.

136  M. Banton, International Action against Racial Discrimination (Clarendon Press, 1996), pp. 128–30, and 300–3 [henceforth International Action]. See also Holmström (ed.), Concluding Observations, pp. 327–35. Early in its practice, CERD declared its competence to examine the manner in which Israel is fulfilling its obligations under the Convention ‘with respect to everyone falling under the jurisdiction of Israel, including all persons living in the territories occupied by Israel’: A/48/18, para. 83. In discussion of decisions by Israel on the inclusion of information on the Occupied Territories in its reports to CERD, concern was expressed by CERD members as to whether requesting such information could imply recognizing Israel’s rights over such territories; other views were expressed that inclusion was necessitated by the de facto situation without regard to questions of legitimacy on the basis that ‘the Convention was universal in scope and thus applied to every person who might be affected by the exercise of jurisdiction by a State party, whether that jurisdiction was legitimate or not’: A/36/18, paras 108–9, 109. At the time no clear consensus emerged as to how the situation should be treated.

137  Commenced by country rapporteur Kut, CERD/C/SR.2131, para. 18, followed by CERD members Diaconu, paras 23; de Gouttes, para. 35; Amir, para. 44; and Vázquez, para. 45.

138  CERD/C/SR.2132, para. 4.

139  Ibid., para. 5, in any case, Israel did not have control of Gaza, responsibility for which lay with Hamas.

140  Ibid., para. 50.

141  CERD/C/SR.2132, para. 82.

142  Ibid., para. 83.

143  Ibid., para. 81.

144  CERD/C/ISR/CO/14-16, para. 10; see also, ibid., paras 20 and 27. For similar arguments in relation to the ICCPR, see O. De Schutter, International Human Rights Law, p. 129.

145  CERD/C/USA/CO/6, para. 24.

146  Lex specialis (lex specialis derogat generali) has a double sense, the first of which is that the specific rule modifies the general rule to the extent of an inconsistency between them; the second is where the specific rule is an instance of the application of the more general but there is no inconsistency between them: Sivakumaran, ‘International Humanitarian Law’, in Moeckli et al., International Human Rights Law, p. 489; authors have found the term unhelpful in that it ‘was designed to deal with…a vertical relationship’ and not ‘the horizontal collision between two separate regimes’: F. Hampson and N. Lubell, Amicus Curiae Brief for Hassan v UK, ECHR, para. 18 <http://repository.essex.ac.uk/9690/1/hampson-lubell-amicus-ecthr-oct-2013.pdf>. See also Chapter 18 with regard to the Committee’s stance on reservations.

147  According to the ICRC, <https://www.icrc.org/eng/resources/documents/misc/57jqzq.htm>: ‘The principle of non-discrimination underlies all international humanitarian law, which is a body of rules specifically intended to solve humanitarian problems arising directly from armed conflicts.’ See in particular Art. 16, Geneva Convention III; Art. 13 Geneva Convention IV, and common Article 3; Art. 27, Geneva Convention IV; Additional Protocol I, Art. 75(1). The prohibition against ‘adverse distinction’ is considered by the ICRC to be part of customary international law.

148  In the case of Israel, the Committee stated that it regarded ‘the Israeli settlements in the occupied territories as not only illegal under international law but also as obstacles to peace and to the enjoyment of human rights by the whole population’: A/48/18, para. 87.

149  D. Weissbrodt, ‘The Approach of the Committee on the Elimination of Racial Discrimination to Interpreting and Applying International Humanitarian Law’, Minnesota Journal of International Law 19 (2010), 327–62 [henceforth The Approach of the Committee].

150  Ibid., 349.

151  Concluding observations on Kyrgyzstan, CERD/C/KGZS/CO/5-7, para. 5.

152  As Weissbrodt observes, the Committee ‘recognizes that armed conflicts represent serious obstacles to the implementation of the Race Convention and, further, that armed conflicts often stem from racially and ethnically motivated violence’: The Approach of the Committee, p. 344.

153  Comments to Sudan on the situation in Darfur, CERD/C/SDN/CO/12-16, para. 7.

154  D. Mahalic and G. M. Mahalic, ‘The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination’ HRQ 9 (1987), 74–101, 85.

155  GR 32, para. 13. See the fuller citation of this paragraph in Chapter 9.

156  Para. 5.

157  As well as its endorsement of the UN General Assembly’s objective of speedily eliminating colonialism.

158  Diaconu, Racial Discrimination, pp. 178–82, offers an extended reflection on ‘types and forms of policies’.

159  Recommendation to Paraguay to implement a languages act and provide a suitable budget therefor: CERD/C/PRY/CO/1-3, para. 19.

160  Recommendation to Cuba to amend legislation on foreigners, CERD/C/CUB/14-18, para. 18.

161  CERD/C/CAN/CO/18, para. 15, take necessary measures to amend the Indian Act in view of discriminatory effects on rights of aboriginal women and children.

162  Recommendation to Kenya to mechanisms to implement constitutional provisions on political representation. CERD/C/KEN/CO/1-4, para. 20.

163  Recommendation to Israel regarding expeditious investigations of racist complaints: CERD/C/ISR/CO/13, para. 30.

164  Examples in 2011 include recommendations for urgent action to Bolivia, CERD/C/BOL/CO/17-20, para. 18; and Paraguay, CERD/C/PRY/CO/1-3, para. 17; in 2013, Chile, CERD/C/CHL/CO/19-21, para. 14. See the discussion in Chapter 4.

165  Hagan v Australia, CERD/C/62/D/26/2002 (2003), para. 4.4.

166  The similar wording of Article 2 of CEDAW draws the response from the CEDAW Committee that ‘[t]he words “without delay” make it clear that the obligation of States parties to pursue their policy by all appropriate means is of an immediate nature. This language is unqualified, and does not allow for any delayed or purposely chosen incremental implementation of the obligations that States assume’: CEDAW GR 28 on Core Obligations under Article 2, para. 29.

167  CESCR, General Comment No. 3, The Nature of States Parties’ Obligations (Art. 2, para. 1 of the Covenant), 14 December 1990, para. 1; paragraph 7 of CESCR General Comment No. 20 describes non-discrimination as ‘an immediate and cross-cutting obligation’. For nuances regarding de facto and de jure discrimination, see B. Saul, D. Kinley, and J. Mowbray (eds.), The International Covenant on Economic, Social and Political Rights: Commentary, Cases, and Materials (Oxford University Press, 2014), pp. 203–5.

169  CERD/C/AUS/CO/14, para. 12; CERD/C/AUS/CO/15-17, para. 17.

170  Hagan v Australia, para. 4.7.

171  See, for example, T.K. v France, CCPR/C/37/D/220/1987 (1989), dissenting opinion of Human Rights Committee member Higgins.

172  In Hagan v Australia, para. 4.5, the State party cited ‘academic authority’ to the effect that 2(1)(a) ‘does not deal with private acts of discrimination’: the citation was to Lerner, The UN Convention on the Elimination of All Forms of Racial Discrimination.

173  For a summary of what count as organs of State in the practice of the Human Rights Committee, see D. McGoldrick, ‘State Responsibility and the International Covenant on Civil and Political Rights’, in M. Fitzmaurice and D. Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Hart Publishing, 2004), 161–99.

174  A/60/18, para. 20.

175  ‘Federal clauses’ appear in a number of UN ‘core’ instruments and take the general form that the provisions of the convention ‘shall apply to all parts of federal States without any limitations or exceptions’. Examples include Article 50 of the ICCPR, Article 28 of the ICESCR, Article 4 of the CPRD, and Article 41 of the CPED.

176  The clause envisaged a distinction between Articles of the Convention under federal legislative jurisdiction and those under state (of the federation), cantonal, or provincial jurisdiction: in the latter case, the obligation expressed was ‘to bring such Articles before the appropriate authorities with a favourable recommendation’ (to implement): A/6181, para. 187. On the proposal of Poland, the clauses were rejected by 63 votes to 7, with 16 abstentions: ibid., paras 188–89.

177  Such a clause ‘would substantially weaken the Convention as a whole by establishing inequality of obligations as between federal and unitary States. It would not be in conformity with international law, under which a federal State as a whole was regarded as a subject of international law’: observations by the representative of Czechoslovakia, A/C.3/SR.1367, para. 6. According to the representative of the USA, ibid., para. 8, ‘such clauses tended to destroy the uniform application of international agreements by placing federal States in a special position’. The federal clause was vigorously advocated by Australia: A/C.3/SR.1367, paras 5 and 13.

178  International Action, pp. 243–44.

179  CERD/C/CAN/CO/18, para. 12. Coordination of federal and provincial mechanisms ‘in order to remove discrepancies and disparities in the implementation of anti-racism legislation, policies, programmes and best practices’ is urged in concluding observations of 2012: CERD/C/CAN/CO/19-20, para. 9.

180  CERD/C/BEL/CO/15, para. 16; references to ‘federal, regional and community levels’ of governance are made in later concluding observations to Belgium in connection with structural discrimination, and Roma: CERD/C/BEL/CO/16-19, paras 15 and 18.

181  CERD/C/USA/CO/6, para. 13.

182  On devolution of powers potentially impeding the discharge of obligations, see concluding observations on France, CERD/C/FRA/CO/20-21, para. 4.

183  CERD/C/ITA/CO/16-18, para. 27. Accordingly, the Committee recommended, ibid., ‘a mechanism for consultation and coordination with…local authorities’.

184  See M. Weller (ed.), The Rights of Minorities in Europe (Oxford University Press, 2005), particularly the comment by Jennifer Jackson-Preece on Article 16 of the Council of Europe Framework Convention for the Protection of National Minorities, ibid., pp. 463–85.

185  See comments by the Committee on the system of ‘ethnic federalism’ practised in Ethiopia, whereby the State party was requested to ensure that its operation served to protect all ethnic groups: CERD/C/ETH/CO/15, para. 16. Para. 15, ibid., includes a related comment on diversity of court systems within the State party and a recommendation to ensure conformity with Article 2(1). For academic comment, see K. Tronvoll, ‘Human Rights Violations in Federal Ethiopia: When Ethnic Identity is a Political Stigma’, IJMGR 15 (2008), 49–79, and G. Assefa, ‘Human and Group Rights Issues in Ethiopia: a Reply to Kjetil Tronvoll’, IJMGR 16 (2009), 245–59.

186  CERD/C/57/D/131998 (2000).

187  CERD/C/66/D/31/2003 (2005). Article 2(1)(a) figures in other case but without notable illumination as to its meaning. Examples include B.J. v Denmark, CERD/C/56/D/17/1999 (2000). The claim under 2(1)(a) was contested by the State party (para. 4.3) because the facts involved discrimination by a private individual; the specifics of 2(1)(a) were not commented upon by the Committee.

188  Koptova, para. 4.8; L.R, para. 2.3. Petitioners comments in Koptova, para. 5.18; petitioner’s comments in L.R., paras 5.1 and 5.3. Petitioners in both cases cited, inter alia, para. 4 of CERD’s GR 15 on Article 4 (c), which stated that public authorities ‘at all administrative levels, including municipalities’ were bound by 4 (c) (present author’s emphasis).

189  L.R. v Slovak Republic, para. 6.3.

190  Ibid., para. 10.8.

191  Ibid., para. 10.7. For comment, see S. Joseph, ‘The Right to Housing, Discrimination and the Roma in Slovakia’, HRLR 5 (2005), 347–49.

192  CERD/C/SVK/CO/9-10, para. 16.

193  Ibid.

194  Para. 4.5.

195  Para. 5.4.

196  Para. 8.

197  The commentary on the International Law Commission’s Draft Articles on State Responsibility for Internationally Wrongful Acts notes that ‘the general rule is that the only conduct attributed to the State at the international level is that of its organs of government or of others who have acted under the direction, instigation or control of those organs, i.e. as agents of the State’: <http://legal.un.org/legislativeseries/documents/Book25/Book25_part1_ch2.pdf>, commentary on chapter II, para. 2. CEDAW GR 28, para. 13, recalls the due diligence obligation on States parties to prevent discrimination by private actors, adding that the acts of some private actors may be attributed to the State under general international law.

198  The International Convention, p. 37.

199  Ibid.

200  Mapping State Obligations for Corporate Acts: An Examination of the UN Human Rights Treaty System, Report No. 1 International Convention on the Elimination of All Forms of Racial Discrimination, 18 December 2006, p. 4.

201  Concise Oxford English Dictionary (11th edn, Oxford University Press, 2004), pp. 1394–5.

202  Ibid., p. 1448.

203  Ibid.

204  T. Meron, The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination, AJIL 79 (1985), 283–318, 295.

205  Para. 4.3.

206  Para. 4.5.

207  CERD/C/62/CO/7, para. 16.

208  CERD/C/RUS/CO/20-22, para. 14.

209  CERD/C/60/CO/2, para. 14.

210  See remarks on extraterritorial activities of corporations in the present chapter.

211  In some cases, the concerns have related to the activities of non-indigenous individuals who trespass on indigenous territories, rather than corporations: see for example the series of letter sent to Brazil regarding the Raposa Serra do Sol: <http://www2.ohchr.org/english/bodies/cerd/early-warning.htm>.

212  GR 23, para. 3.

213  A/61/18, pp. 7–10.

214  Decision 1(67), A/60/18, pp. 9–10; 1(69), A/61/18, pp. 10–11.

215  Individual letters may be found on the Committee’s web page: <http://www2.ohchr.org/english/bodies/cerd/early-warning.htm>.

216  Lerner, The International Convention, p. 37.

217  Zambia, CERD/C/ZMB/CO/16, para. 12.

218  Lao People’s Democratic Republic, CERD/C/LAO/16-18, para. 16, review of the land regime was recommended with a view to recognizing the cultural aspect of land as an integral part of the identity of some ethnic groups.

219  Estonia, CERD/C/EST/8-9, para. 18.

220  Botswana, CERD/C/BWA/CO/16, para. 9.

221  Korea, CERD/C/KOR/15-16, para. 6.

222  Concluding observations on Jordan, CERD/C/JOR/CO/13-17, para. 11.

223  Indonesia, CERD/C/IDN/CO/3, para. 16.

224  Chile, CERD/C/CHL/CO/15-18, para. 23.

225  CERD/C/USA/DEC/1 (2006), para. 10.

226  Concluding observations on South Africa, CERD/C/ZAF/CO/3, para. 13.

227  CERD/C/SRB/CO/1, para. 17.

228  Para. 3.3.

229  Para. 4.6.

230  Para. 8.

231  In L.R. v Slovakia, (para. 3.2) the petitioner alleged violation of, inter alia, 2(1)(c), but this was not the subject of comment from the Committee, which based its finding on Articles 2(1)(a), 5, and 6.

232  At 1017.

233  M. Banton, Discrimination (Open University Press, 1994), p. 6.

234  P. 85; see comments, supra, p. 166.

235  M. Banton, International Action, p. 199.

236  Sadic v Denmark, para. 6.3.

237  Concluding observations on Japan recommended ‘a specific and comprehensive law’ and ‘specific and comprehensive legislation’ against racial discrimination: CERD/C/JPN/CO/7-9, para. 8. While the divergence in terminology may represent a distinction without a difference, the ‘law’ formulation suggests a civil law codification approach, whereas ‘legislation’ offers a more open approach that would leave the details of legal design to the State party.

238  Concluding observations on Fiji, CERD/C/FJI/CO/18-20, para. 9; Japan, CERD/C/JPN/CO/7-9, para. 7; Russian Federation, CERD/C/RUS/CO/19, para. 7.

239  Concluding observations on Croatia, CERD/C/HRV/CO/8, para. 12; on Tajikistan, CERD/C/TJK/CO/6-8, para. 10. Para. 9 of GR 35 on combating racist hate speech refers to the need for ‘comprehensive legislation against racial discrimination, including civil and administrative law as well as criminal law’.

240  Concluding observations on Ukraine, CERD/C/UKR/19-21, para. 5.

241  Examples include concluding observations on Mauritius, CERD/C/MUS/CO/15-19, para. 11; Venezuela, CERD/C/VEN/CO/19-21, para. 14.

242  Para. 4(a).

243  ‘The Committee is concerned that the provision on aggravating circumstances is used when a racist motivation appears to be the only motivation but not when there are mixed motives’, a concern that led to a recommendation to establish that ‘an offence with racist motivation constitutes an aggravating circumstance, including in cases where there are mixed motives’: concluding observations on Italy, CERD/C/ITA/CO/16-18, para. 16.

244  See Chapter 11. Concluding observations on this point in A/68/18 (2012 and 2013) include Algeria, CERD/C/DZA/CO/15-19, para. 12; Dominican Republic, CERD/C/DOM/CO/13-14, para. 11; Korea, CERD/C/KOR/CO/15-16, para. 8; Liechtenstein, CERD/C/LIE/CO/4-6, para. 9 (mainly re Article 4); Tajikistan, CERD/C/TJK/CO/6-8, para. 10; and Thailand, CERD/C/THA/CO/1-3, para. 9.

245  Concluding observations on Morocco, MAR/CO/17-18, para. 18.

246  Concluding observations on Moldova, CERD/C/MDA/CO/8-9, para. 9.

247  Concluding observations on Iceland, CERD/C/ISL/CO/19-20, para. 15.

248  In concluding observations on Australia, the State party was invited to address the issue of burden of proof ‘so that once an alleged victim has established a prima facie case that he or she has been a victim of such discrimination, it shall be for the respondent to provide evidence of an objective and reasonable justification for differential treatment’: CERD/C/AUS/CO/14, para. 15.

249  The perceived difficulty may simply be that of substantiating claims of racial discrimination: concluding observations on Armenia, CERD/C/ARM/CO/5-6, para. 9.

250  CERD/C/CYP/CO/17-22, para. 9.

251  Concluding observations on Turkmenistan, CERD/C/TKM/CO/6-7, para. 23.

252  Concluding observations on Austria, CERD/C/AUT/CO/17, para. 12.

253  In the case of Latvia, the provisions examined by the Committee did ‘not fully cover civil, political, social, cultural and other fields of public life’, as required by the Convention: CERD/C/63/CO/7, para. 8.

254  Concluding observations on Austria, CERD/C/AUT/CO/17, para. 11.

255  Concluding observations on Greece, CERD/C/GRC/CO/16-19, para. 10.

256  Examples include Cambodia, CERD/C/KHM/CO/8-13, para. 13; Uzbekistan, CERD/C/UZB/CO/5, para. 12.

257  CERD/C/DNK/CO/18-19, para. 8.

258  CERD/C/ROU/CO/16-19, para. 19.

259  Croatia, CERD/C/HRV/CO/8, para. 16; Lithuania, CERD/C/LTU/CO/4-5, para. 14.

260  Moldova, CERD/C/MDA/CO/8-9, para. 16.

261  Examples include Ethiopia, CERD/C/ETH/CO/15, para. 29; Pakistan, CERD/C/PAK/CO/20, para. 27.

262  CERD/C/ISR/CO/14-16, para. 31.

263  CERD/C/USA/CO/6, para. 39.

264  CERD/C/CZE/CO/8-9, para. 23.

265  CERD/C/VAT/16-23, para. 5, discussed in the concluding chapter of the present work.

266  Para. 9.3. The Committee found that the author had also been denied an effective remedy. See the more detailed discussion in Chapter 7. See comment by the State party in para. 7.4.

267  B.J. v Denmark, para. 4.3. No violation was found in this case.

268  Gelle v Denmark, CERD/C/68/D/34/2004 (2006).

269  Ibid., para. 2.2.

270  Ibid., para. 4.4.

271  Gelle v Denmark, para. 7.3. See also Jama v Denmark, para. 7.3, and discussion in chapter 16.

272  Murat Er v Denmark, CERD/C/71/D/40/2007 (2007), para. 7.2.

273  Ibid., para. 7.4.

274  Ibid., para. 4.6. In other circumstances, CERD has shown little appreciation for the doctrine of margin of appreciation expressed as such, the use of which by a State party ‘in order to strike a balance between existing interests is limited by its obligations under the Convention’: concluding observations on Australia, CERD/C/AUS/CO/14, para. 16. However, insofar as ‘margin of appreciation’ spills over into interpretation in context, see especially the present commentary on Article 4.

275  Concluding observations on the Dominican Republic, CERD/C/DOM/CO/12, para. 8.

276  In a case where private parties are acting in a governmental capacity, where they are directed or controlled by a State, or where their conduct is acknowledged or adopted by a State: Draft Articles on the Responsibility of States for Internationally Wrongful Acts, A/56/10 (2001), Articles 5, 8, and 11.

277  Velásquez-Rodríguez v Honduras, IACtHR, Ser. C No. 4 (10988), para. 172; for a general discussion, see Shelton and Gould, ‘Positive and Negative Obligations’, 577–82.

278  Diaconu notes that previous practice of CERD that used ‘broad terms’ such as labour market and employment, has been sharpened up to refer to companies and corporations, restaurants, clubs and agencies, etc: Racial Discrimination, pp. 35–6.

279  A/50/18, Annex VII, para. 3.

280  A/51/18, Annex VIII A, para. 5.

281  Para. 1.

282  Para. 2.

283  GR 27, para. 31.

284  Paras jj, kk, mm, and tt. See also GR 30 on non-citizens, paras 32, 33, and 34.

285  CERD/C/36/D/1/1984 (1988).

286  Habassi v Denmark.

287  Sefic v Denmark, CERD/C/66/D/32/2003 (2005).

288  L.K. v The Netherlands, CERD/C/42/D/1991 (1993).

289  Lacko v Slovakia, CERD/C/59/D/11/1998 (2001); B.J. v Denmark; Durmic v Serbia and Montenegro.

290  Concluding observations on China, CERD/C/304/Add.122, para. 17; Fiji, CERD/C/FJI/CO/117, para. 15.

291  CERD/C/304/Add.125, para. 13.

292  CERD/C/USA/CO/6, para. 11.

293  Concluding observations on Finland, CERD/C/FIN/CO/20-22, para. 9.

294  CEDAW has stated that the obligation of States parties to establish legal protection of the rights of women extends to acts of national corporations operating extraterritorially: General Comment 28 on the Core Obligations of States Parties under Article 2 (2010), infra, p. 194.

295  UN Draft Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with regard to Human Rights, E/CN.4/Sub2/2003/12, 26 August 2003.

296  A/HRC/17/31, 21 March 2011. There is a helpful summary and comment in Frequently Asked Questions about the Guiding Principles on Business and Human Rights (United Nations, 2014).

297  Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework (United Nations, 2011): ‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’

298  Ibid., pp. 3–4.

299  See references, supra, in the present chapter.

300  D. Augenstein and D. Kinley, ‘When Human Rights “Responsibilities” become “Duties”: the Extra-Territorial Obligations of States that Bind Corporations’, University of Sydney Law School, Legal Studies Research Paper (September 2012), available at: <http://ssrn.com/abstract=21499211>; further references to this field, are detailed especially in footnote 4. See also R. McCorquodale and P. Simons, ‘Responsibility beyond Borders: State responsibility for Extraterritorial violations by Corporations of International Human Rights Law’, Modern Law Review 70(4) (2007, 598–625.

301  CEDAW/C/2010/47/GC.2 (2010), para. 36.

302  General Comment No. 14, The Right to the Highest Attainable Standard of Health (2000), paras 39; General Comment No. 15, The Right to Water (2003), para. 31; General Comment 19, The Right to Social Security (2008), para. 54.

303  De Schutter, International Human Rights Law, p. 163, and citations therein.

304  Ibid., pp. 162–3.

305  CERD/C/CAN/CO/18, para. 17. CERD returned to the issue in 2012, reiterating its concerns and recommendations, despite Canada’s invocation of the merits of its Corporate Responsibility Strategy, CERD/C/CAN/CO/19-20, para. 14.

306  CERD/C/USA/CO/6, para. 30, responded to in CERD/C/USA/7-9, para. 177; also CERD/C/USA/CO/7-9, para. 10.

307  CERD/C/GBR/CO/18-20, para. 29.

308  The Committee regretted the absence of a legal framework regulating the obligations of ‘Australian corporations’ at home and overseas, and in addition to recommending appropriate legislative or administrative measures as per Canada, encouraged Australia to fulfil its commitments under the different international initiatives it supports to advance ‘responsible corporate citizenship’, CERD/C/AUS/CO/15-17, para. 13.

309  CERD/C/NOR/CO/19-20, para. 17; CERD/C/NOR/CO/21-22, paras 23 and 24.

310  CERD/C/2007/1, p. 5.

311  CERD/C/62/D/26/2002 (2003), para. 4.6.

312  The sole citation is to Lerner, The UN Convention, p. 38.

313  CERD/C/BRB/CO/16, para. 12.

314  CERD/C/ISL/CO/18, para. 10.

315  Concluding observations on Bahrain, CERD/C/BHR/CO/7, para. 13.

316  Concluding observations on the Russian Federation recommend that legislation be reviewed ‘to ensure that non-governmental organizations working with ethnic minorities, indigenous peoples, non-citizens and other vulnerable groups who are subjected to discrimination are able to carry out their work effectively to promote and protect the rights…in the Convention without any undue interference or onerous obligations’: CERD/C/RUS/20-22, para. 13. In general, see the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally recognized Human Rights and Fundamental Freedoms, adopted by the General Assembly in Resolution 53/144, 9 December 1998.

317  Concluding observations on Ethiopia, CERD/C/ETH/CO/7-16, para. 13.

318  Concluding observations on Serbia, CERD/C/SRB/CO/1, para. 13.

319  Concluding observations on Moldova, CERD/C/MDA/CO/15, para. 11.

320  Remarks of the delegate of the UK in the Third Committee.

321  L.R. v Slovakia, paras 10.2, 10.6, 10.7.

322  Views of the Committee on the Elimination of Racial Discrimination on the Implementation of the Convention on the Elimination of All Forms of Racial Discrimination and its Effectiveness, submitted under the rubric of ‘complementary standards’, E/CN.4/2004/WG.21/10/Add.1, 17 September 2004, p. 13.

323  Ibid., p. 14.

324  Principles Relating to the Status of National Institutions, annexed to General Assembly resolution 48/134 of 20 December 1993. National human rights institutions (NHRIs) are ‘State bodies with a constitutional and /or legal mandate to protect and promote human rights. They are part of the State apparatus and are funded by the State…They are at arm’s length from the government’: National Human Rights Institutions: History, Principles, Roles and Responsibilities (United Nations, 2010), p. 13. The OHCHR web page includes updated information and documentation the place of national human rights institutions in the United Nations system: <http://www.ohchr.org/en/countries/nhrimain.aspx>.

325  Recent examples include Estonia, CERD/C/EST/CO/8-9 (2010); CERD/C/ITA/CO/16-18 (2012); Malta, CERD/C/MLT/CO/15-20 (2011).

326  CERD/C/BIH/CO/7-8 (2010).

327  Vietnam, CERD/C/VNM/CO/10-14 (2012).

328  Concluding observations on Italy, CERD/C/ITA/CO/16-18, para. 13.

329  Concluding observations on Estonia, CERD/C/EST/CO/8-9, para. 10.

330  Concluding observations on Cameroon, CERD/C/CMR/15-18, para. 13.

331  Even the lengthy section XI on economic, social, and cultural rights in CERD’s GR 34 on persons of African descent does not reproduce the threefold typology.

332  See, inter alia, CESCR General Comment No. 13 on The Right to Education (Article 13): HRI/GEN/1/Rev.9 (Vol. I), pp. 63–77. The 4A scheme is discussed further in Chapter 15 of the present work.

333  A.M.M v Switzerland, CERD/C/84/D/50/2012 (2014), para. 8.2; also L. R v Slovakia, para. 10.2.

334  Concluding observations on Tanzania refer to its ‘dualist’ legal system: CERD/C/TZA/CO/16, para. 11. ‘Monist’ is used in the 2012 concluding observations on Jordan: CERD/C/JOR/CO/13-17, para. 8.

335  Concluding observations on Vietnam, CERD/C/VNM/CO/10-14, para. 8.

336  Concluding observations on Lithuania, CERD/C/LTU/CO/3, para. 10, and Namibia. CERD/C/NAM/CO/12, para. 10.

337  Concluding observations on Japan, CERD/C/304/Add.114, para. 9. The delegation of Japan explained the position in CERD/C/SR.1144, para. 5. For a general treatment of the issue, see Y. Iwasawa, International Law, Human Rights, and Japanese Law (Clarendon Press, 1998).

338  See the helpful summary of principles by A. Byrnes and C. Renshaw in Moeckli et al., International Human Rights Law, pp. 460–5, who point out, p. 462, that the intention of the drafters of the treaty and the nature of the treaty provision may be factors in deciding whether the treaty or a provision thereof is directly applicable.

339  ‘To establish…and to enforce, distinctions, exclusions, restrictions and limitations exclusively based on grounds of race, colour, descent or national or ethnic origin which constitute a denial of fundamental human rights is a flagrant violation of the purposes and principles of the Charter’, Legal Consequences for States of the Continued Presence of South Africa in Namibia, ICJ Advisory Opinion of 21 June, para. 131.

340  The Committee’s own estimate of this link is included in a statement of 2002 on racial discrimination an measures to combat terrorism, where it was recalled simply that ‘the prohibition of racial discrimination is a peremptory norm of international law from which no derogation is permitted’: A/57/18, ch. XI C, para. 4. For a critical view, see P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, 1991), pp. 326–8.

341  While reflecting on different methodologies of importing international standards into domestic law, CEDAW takes the view that the Convention on Discrimination against Women ‘may receive enhanced protection in those States where the Convention is automatically or through specific incorporation part of the domestic legal order’: CEDAW GR 28, para. 31.

342  S.E. Merry ‘Transnational Human Rights and Local Activism: Mapping the Middle’, American Anthropologist 108 (2006), 38–51; P. Levitt and S.E. Merry, ‘Vernacularization on the Ground: Local Uses of Global Women’s Rights in Peru, China, India and the United States’, Global Networks 9 (2009), 441–61: <http://www.peggylevitt.org/assets/venacularization.pdf>.

343  Dissemination and related issues are further discussed in the present work in the commentary on Article 7.

344  CERD/C/ETH/CO/15, para. 14.

345  CERD/C/MOZ/CO/12, para. 13.

346  For a brief discussion, see P. Thornberry, ‘The Committee on the Elimination of Racial Discrimination—Questions of Concept and Practice’, in R.F. Jørgensen and K. Slavensky (eds), Implementing Human Rights—Essays in Honour of Morten Kjaerum (Danish Institute for Human Rights, 2007), 318–36. For a general treatment of customary law, see B. Tobin: Indigenous Peoples, Customary Law and Human Rights: Why Living Law Matters (Routledge, 2014). A (partly) critical view of the work of the Committee—and the views of the present author—is offered in M.K. Addo, ‘Practice of United Nations Treaty Bodies in the Reconciliation of Cultural Diversity with Universal Respect for Human Rights’, HRQ 32 (2010), 601–64.

347  The non-binding Maastricht Principles on the Extraterritorial Obligations of States in the Area of Economic, Social and Cultural Rights, cited by Joseph and Fletcher in Moeckli et al., International Human Rights Law, p. 136, appear to take a maximalist position, with Principle 3 asserting that all States ‘have obligations to respect, protect and fulfil human rights, including civil, cultural, economic, political and social rights, both within their territories and extraterritorially’.

348  European Court of Human Rights, Al-Skeini and Others v the UK, App. No. 55721/07 (2011), para. 137 on ‘tailoring’; however, in the case of lawful or unlawful military action, when a State ‘exercises control of an area outside…national territory’, the controlling State ‘has the responsibility…to secure, within the area under its control, the entire range of substantive rights’ set out (in the ECHR), and will be liable for any violations: ibid., para. 138. See discussion in S. Allen, The Chagos Islanders and International Law (Hart Publishing, 2014), pp. 56–8.

349  The UK expressed its views to the Committee in Annex XI of its report examined by the Committee in 2011—CERD/C/GBR/18-20—arguing that ICERD did not apply because, inter alia, the territory had no permanent inhabitants and that members of the armed forces, officials and contractors spent only brief periods there. The Committee took the view that the Chagossians had a right to return to the Territory and regarded restrictions on the right to return as racially discriminatory. For detailed and helpful commentary on the overall dispute, see S. Allen, ‘International Law and the Resettlement of the (Outer) Chagos Islands’, HRLR 8(4) (2008), 683–702; and The Chagos Islanders and International Law.

350  CERD/C/GBR/CO/18-20, para. 12.

351  CERD/SR.2142, para. 73.

352  CERD/C/SR.2062, para. 23.

353  CERD/C/SR.2113, para. 67.

354  ‘There are strong policy reasons for home States to set out clearly the expectation that businesses respect human rights abroad, especially where the State itself is involved in or supports those businesses. The reasons include ensuring predictability for business enterprises by providing coherent and consistent messages, and preserving the State’s own reputation’: Guiding Principles on Business and Human Rights, commentary on Principle 2:‘States should set out clearly the expectation that all business enterprises domiciled in their territory and/or jurisdiction respect human rights throughout their operations.’

355  See commentary in the present work on Article 1.

356  T. Makkonen, Equal in Law, Unequal in Fact (Martinus Nijhoff, 2012), p. 272.

357  Para. 18.