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COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONCLUDES SEVENTY-FIRST SESSION
17 August 2007
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Committee on the Elimination
of Racial Discrimination
17 August 2007
ROUNDUP
Issues Concluding Observations on Reports of Costa Rica, New Zealand, Kyrgyzstan, Mozambique,
Democratic Republic of the Congo, Indonesia, and Republic of Korea
The Committee on the Elimination of Racial Discrimination today concluded its seventy-first session, issuing concluding observations and recommendations on the reports of Costa Rica, New Zealand, Kyrgyzstan, Mozambique, the Democratic Republic of the Congo, Indonesia and the Republic of Korea on how they implement the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Also at the present session, the Committee reviewed in a closed meeting the country situation in Ethiopia, under its review procedure for States parties whose reports are seriously overdue. Following its private dialogue with the Permanent Representative of Ethiopia, the Committee decided to send a letter to the State party. Also under its review procedure, the Committee decided to send letters to Lithuania and Azerbaijan, on the basis of follow-up reports that had been sent by those two countries. Letters would also be sent to China and Guyana in connection with the review procedure.
Also considered in private at this session were complaints brought against Belize, Brazil, Nicaragua, the Philippines, Peru and Chile under the Committee's early warning and urgent action procedure.
During the course of its three-week session, the Committee held exchanges with representatives of the International Labour Organization and the Coordinator of the National Institutions Unit of the Office of the High Commissioner for Human Rights. It was also briefed on follow-up activities to the Durban Declaration and Programme of Action by Jose Dougan Beaca, Head of the Anti-Discrimination Unit of the Office of the United Nations High Commissioner for Human Rights, and it held an exchange of views with Asma Jahangir, the UN Special Rapporteur on Freedom of Religion or Belief.
Also at this session, the Committee undertook a number of activities with a view to streamlining and harmonizing its working methods. The Committee adopted draft revised guidelines for specific reports to be presented by States parties under article 9 of the Convention, as orally amended following a paragraph-by-paragraph second reading. It also heard presentations in public session from several of its members on the outcomes of meetings on treaty body reform, as well as a briefing on the outcome of the May 2007 meeting between human rights treaty bodies and the International Law Commission on the topic of reservations.
Also in the context of improvement of its working methods, on the afternoon of Tuesday, 14 August, the Committee held a meeting with States parties to discuss improving its working methods, follow-up to concluding observations, treaty body reform, and the relationship between treaty bodies and the Human Rights Council.
At its last meeting, the Committee approved the report presented by Committee Expert Raghavan Vasudevan Pillai on article 15 of the Convention, including the recommendations contained therein. In addition, the Committee amended its rules of procedure to include a new paragraph specifying that national human rights institutions accredited to the Human Rights Council could, with the consent of the State party concerned, formally address the Committee in their independent capacity on the occasion of the public dialogue with States parties to review their periodic reports.
The Committee also adopted, on an experimental basis, the Bureau's recommendations concerning the elaboration of lists of issues to be sent to States parties prior to the consideration of their periodic reports. In effect, the recommendations formalized the procedures already in place, and set out a specific timetable to be followed. Country Rapporteurs would be designated at the end of the session preceding the consideration of a State party's report; the list, prepared by the Secretariat in conjunction with the Country Rapporteur, would be sent to the country concerned 10 weeks before the session; and States would have 6 weeks to submit a written response (i.e., responses were due 4 weeks before the session at which the report was to be considered). List of issues were not to exceed 20 questions, and the written responses should not exceed 20 pages. At a later date the Committee could revisit the question of making more substantial changes to that procedure.
Also at its last meeting, the Committee decided to include in its annual report to the General Assembly its prior proposal for holding a session in New York every two years, with a view to facilitating dialogue with developing countries that did not have Permanent Missions in Geneva.
With regard to matters relating to preparations for the Durban Review Conference (2009), the Committee appointed two of its members, Ms. January-Bardill and Mr. Avtonomov, to participate in the work of the Intergovernmental Working Group on the effective implementation of the Durban Declaration and Programme of Action, which would be held from 3 to 7 September 2007.
In response to the note verbale addressed to the Committee concerning its contribution to the Preparatory Committee for the Durban Review Conference, to be held from 27 to 31 August 2008, the Committee decided to draft a letter emphasizing its interest in the Preparatory Committee, and setting out the measures the Committee had adopted and the improvements it had made in its methods of work with the aim of promoting the implementation of and follow-up to the decisions taken in Durban in 2001. In that connection, the Committee would highlight, among others, that it had envisaged the possibility of country visits for the purpose of assessment and to ensure follow up, and had decided to recommend the designation of national focal points for racial discrimination issues. It would also note the Committee's invitation to countries to identify groups that were subjected to racial discrimination.
The Committee also decided that at its next session it would begin consideration of a future general recommendation on the topic of special measures (affirmative action). Furthermore, it was decided that the Committee's next thematic debate, which was scheduled for August 2008, would be on the theme of the relationship between racism and religion.
The next session of the Committee will be held in Geneva from 18 February to 7 March 2008. During that session, the Committee will consider reports of Italy, Fiji, Belgium, the Russian Federation, the Dominican Republic, the United States, Nicaragua and Moldova. In addition, it will consider the situations in Gambia, Monaco, Bulgaria, the United Arab Emirates and Panama under its review procedure for countries whose reports are more than five years overdue, unless the reports were received in the interim.
Concluding Observations and Recommendations on Country Reports
Costa Rica
Having considered the seventeenth to eighteenth period reports of Costa Rica, the Committee noted with satisfaction the decisions taken by the Constitutional Chamber of the Supreme Court in constitutional challenges and amparo applications invoking the Convention. It welcomed the establishment of the Office of the Attorney for Indigenous Affairs in the Public Prosecutor’s Office and the formation of a corps of indigenous-language translators attached to the courts. The Committee noted with satisfaction the “Equality in the exercise of the right to vote” programme, the publication of the leaflet entitled “Protocol for an electoral process accessible to indigenous communities”, which referred to Convention rights, and the “How to vote” poster, which had been translated into Bribri, Maleku and Cabecar. The Committee welcomed the forthcoming establishment a national mechanism for follow-up to the recommendations of the treaty bodies.
The Committee noted with concern that, despite the Committee's recommendations in 2002, the Autonomous Development of Indigenous Peoples Bill had not been adopted, and that racial discrimination continued to be viewed as a minor infraction punishable by a fine. The Committee was further concerned at the fact that only 7.6 per cent of indigenous people living in indigenous territories had their basic needs met, and that that problem might result in indigenous people being obliged to leave their ancestral lands in search of better opportunities. The Committee was particularly concerned at the situation in the canton of Talamanca and in the banana plantations. In that connection, the Committee recalled that discrimination was not always an effect of a deliberate policy and that Costa Rica had an obligation to rectify situations of de facto discrimination. The Committee urged Costa Rica to step up its efforts to improve the indigenous peoples’ enjoyment of economic and social rights, in particular to ensure equal pay for indigenous people and other sectors of the population, and access to education and health. Strenuous efforts should also be made to combat child mortality in the indigenous communities. Furthermore, the Committee was concerned that the right of indigenous peoples to their land right was not guaranteed in practice, and shared the Government's concern at the trend towards the concentration of indigenous land in the hands of non-indigenous settlers.
The Committee urged Costa Rica to step up its efforts to improve the situation of migrants in the country. It also recommended that the Government take the necessary steps to combat double discrimination, on the basis of gender and ethnicity, and invited Costa Rica to adopt a national gender plan for indigenous women that would effectively coordinate policies to protect their rights. Noting with concern that the unemployment rate for young Afro-Costa Ricans was above the national average, the Committee invited Costa Rica to carry out a study to determine the causes of that problem, and to take the necessary measures to put a stop to discrimination in employment and to reduce unemployment among Afro-Costa Ricans. The Committee also noted with concern the disappearance of two indigenous languages, Chorotega and Huetar. It invited Costa Rica to take the necessary steps to preserve the indigenous peoples’ cultural heritage, including their languages
New Zealand
Among positive aspects in the fifteenth to seventeenth periodic reports of New Zealand, the Committee welcomed the importance given by New Zealand to the principle of self-identification when gathering data on the ethnic composition of its population. It also welcomed the adoption of the 2004 New Zealand Settlement Strategy and the Settlement National Plan of Action, and the New Zealand Diversity Action Programme. The Committee appreciated the reduction of socio-economic disparities between Maori and Pacific peoples and the rest of the population, in particular in the areas of employment and education. It also appreciated the significant increase in the number of adults, including non-Maori, who could understand, speak, read and write the Maori language. The Committee noted with satisfaction that New Zealand had increased the budget of the New Zealand Human Rights Commission by 20 per cent per annum for the next four years.
The Committee noted that the Treaty of Waitangi was not a formal part of domestic law unless incorporated into legislation, making it difficult for Maori to invoke Treaty provisions before courts and in negotiations with the Crown. It noted with concern the proposal to remove statutory references to the Treaty of Waitangi through the Principles of the Treaty of Waitangi Deletion Bill (2006). It was further concerned that, in the report, historical treaty settlements had been categorized as special measures for the adequate development and protection of Maori. Noting the steps adopted by New Zealand to review policies and programmes in the Public service, which had led to the retargeting of some programmes and policies on the basis of need rather than ethnicity, the Committee was concerned that those steps had been adopted in a political climate unfavourable to the rights of Maori. The Committee recommended that New Zealand consider granting the Waitangi Tribunal legally binding powers to adjudicate Treaty matters and provide the Tribunal with increased financial resources. The Committee reiterated its recommendations that a renewed dialogue between the Government and the Maori community take place with regard to the Foreshore and Seabed Act 2004, in order to seek ways of mitigating its discriminatory effects, including through legislative amendment where necessary. It further recommended that New Zealand enhance its efforts to address the over-representation of Maori and Pacific people in the prison population and more generally at every stage of the criminal justice system, which should be considered as a matter of high priority.
The Committee remained concerned that, under the new Immigration Bill, undocumented children would only be authorized to attend school provided they were not alone in New Zealand and that their parents were taking steps to regularize their status. It noted with concern that asylum-seekers might be detained in correctional facilities, even though such detention only concerned a very few individuals. It was also concerned at reports according to which proposals had been made to include health and character grounds in the Immigration Act as a basis upon which to exclude or expel asylum-seekers. The Committee recommended that New Zealand study ways and means of assessing on a regular basis the extent to which complaints for racially motivated crimes were addressed in an appropriate manner within its criminal justice system. It should envisage, in particular, collecting statistical data on complaints, prosecutions and sentences for such crimes.
Kyrgyzstan
Following its review of the second to fourth periodic reports of Kyrgyzstan, the Committee noted with satisfaction that the Convention was incorporated into Kyrgyz domestic law and could be directly applied, as appropriate, in national courts. It also noted with satisfaction that the new Constitution adopted in December 2006 prohibited any type of discrimination on the grounds of ethnic origin, sex, race, nationality, language, religious belief, or other conditions or circumstances of a personal or social nature. The Committee welcomed the ratification by Kyrgyzstan of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in 2002; the Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflicts and on the sale of children, child prostitution and child pornography, in 2003; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, in 2004.
The Committee notes with concern that according to information presented to it, competent authorities of Kyrgyzstan allegedly denied refugee status or asylum to individuals belonging to certain ethnic or national minorities, including ethnic Uighurs, Uzbeks and Chechens, and failed to adequately protect the rights of such individuals in accordance with the Convention relating to the Status of Refugees and national legislation. It expressed its deep concern with regard to allegations of forcible return of ethnic Uighurs and Uzbeks to their countries of origin pursuant to multilateral and bilateral agreements concluded with neighbouring countries. The Committee regretted that Kyrgyzstan had not provided sufficient information on the measures taken following the clashes that had taken place in February 2006 between Kyrgyz and Dungan communities living in Iskra. It recommended to the Government, on the basis of the findings of the Commission established to investigate those clashes, that those responsible be brought to justice, that compensation be provided to the families that had been forced to leave and that measures be adopted to promote dialogue and understanding between the two communities.
The Committee reiterated its request that Kyrgyzstan provide detailed information on measures adopted to ensure the practical enjoyment by persons belonging to ethnic and national minorities of the rights listed in article 5 (e) of the Convention (economic, social and cultural rights), in particular the right to work, including the right to equal opportunities of promotion and career development, the right to housing and the right to education. The Committee noted with concern that criminal law provisions punishing acts of racial discrimination, such as Articles 134, 299 and 373 of the Criminal Code, were seldom invoked in national courts. It also noted that, although the Convention forms part of the domestic law, there were no court decisions which contained references to, or confirmed the direct applicability of, its provisions. The Committee requested that Kyrgyzstan include in its next report detailed information on complaints lodged and prosecutions launched, as well as on penalties imposed, in cases of offences which relate to racial discrimination. It recommends that the Government include in curricula and textbooks for primary and secondary schools information about the history and culture of the different national and ethnic groups living in its territory, and that it encourage and support the publication and distribution of books and other printed materials, as well as the broadcasting of television and radio programmes, about their history and culture.
Mozambique
Among positive aspects in the second to twelfth periodic reports of Mozambique, the Committee expressed its satisfaction for the adoption of the Constitution of 2004, enshrining the principle of equality of all citizens, irrespective of their colour, race, sex, ethnic origin, birthplace and religion. The Committee acknowledged with appreciation the ratification of international human rights instruments such as the International Covenant on Civil and Political Rights in 1993, the Convention on the Rights of the Child in 1994, the Convention on the Elimination of All Forms of Discrimination against Women in 1997, and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment in 1999. It also acknowledged with appreciation the language policy, which included the use of local languages, together with the official language, in the curricula of primary schools as well as the promotion of national languages and cultures, as prescribed in the Constitution. The Committee also expressed its satisfaction for the fact that Mozambique had resettled over 1.7 million of its returning refugees and several millions of internally displaced persons.
The Committee was concerned about the lack of legislation on racial discrimination, and recommended that Mozambique adopt specific legislation implementing the provisions of the Convention, including a legal definition of racial discrimination, in line with article 1. It also recommended that Mozambique strengthen its programmes aiming at providing universal access to health care, with particular attention to members of vulnerable groups, including non-citizens and persons without any identification documents. The Committee further recommended that Mozambique include in its next periodic report information on the socio-economic situation of the most disadvantaged ethnic groups, that it strengthen measures to reduce poverty and stimulate economic growth, and that it provide concrete detailed information on the outcome of those measures.
While acknowledging the 2006 law on the “Provedor de Justiça” (Ombudsman), and that the election of the “Provedor” was scheduled for the coming session of the Parliament, the Committee was concerned about the resources, independence, competencies and effectiveness of that institution, as well as at the lack of information regarding the future National Commission on Human Rights While taking note of the anti-discrimination provisions of the Tourism Law of 2004 and the Labour Law of 2007, the Committee was concerned with cases of hate speech, as well as with racist and xenophobic acts and attitudes in the State party, in particular in the field of employment, and with the absence of measures to prevent and combat such phenomena.
Democratic Republic of the Congo
After reviewing the eleventh to fifteenth periodic reports of the Democratic Republic of the Congo, the Committee welcomed the promulgation of the 18 February 2006 Constitution, which reflected the desire of the Democratic Republic of the Congo to establish a State based on the rule of law and its commitment to meeting its international human rights obligations. The Committee commended the Government's ratification of the Rome Statute of the International Criminal Court, and the measures taken to implement the recommendations of the conference on peace in Ituri. It also welcomed the fact that, after having requested the establishment of a special criminal court to try war crimes and crimes against humanity committed in the Democratic Republic of the Congo, the Government had seized the International Criminal Court of those crimes. The Committee noted with satisfaction the establishment of a technical inter-ministerial committee responsible for drafting reports to the treaty bodies on the implementation of international instruments to which the State is a party.
The Committee remained concerned that the last census in the Democratic Republic of the Congo had been taken in 1970. It noted with concern that, while the Democratic Republic of the Congo did not deny the existence of ethnic conflicts in the country, there was no definition of racial discrimination in domestic law that reflected the definition given in article 1 of the Convention. The Committee noted with regret the Government's reluctance to acknowledge the existence of indigenous peoples in its territory. It also regretted that it had received no clarification of the contradiction between article 51 of the Constitution, which established a duty to ensure the protection and advancement of vulnerable groups and all minorities, on the one hand, and the delegation’s repeated statements to the effect that minorities were not recognized by the Democratic Republic of the Congo.
The Committee remained appalled by the situation of Congolese women, who continued to be the victims of sexual violence as a result of inter-ethnic conflicts. It urged the Government to take steps to protect the victims of sexual violence and to undertake to prosecute the perpetrators of such acts. An information campaign concerning the criminal nature of such acts should also be conducted among the public and the armed forces. The Committee noted with concern that the rights of the Pygmies (Bambuti, Batwa and Bacwa) to own, exploit, control and use their lands, their resources and their communal territories were not guaranteed and that concessions to the lands and territories of indigenous peoples were granted without prior consultation. It recommended that the Government take urgent and adequate measures to protect the rights of the Pygmies to land, in particular that it make provision for the forest rights of indigenous peoples in domestic legislation; register the ancestral lands of the Pygmies; proclaim a new moratorium on forest lands; take the interests of the Pygmies and environmental conservation needs into account in matters of land use; and provide domestic remedies in the event that the rights of indigenous peoples are violated. The Committee was particularly concerned at reports that Pygmies were sometimes subjected to forced labour, and therefore encouraged the Government to intensify its efforts to improve the indigenous populations’ enjoyment of economic, social and cultural rights, in particular to take measures to guarantee their rights to work, decent working conditions and education and health.
Indonesia
Having considered the combined initial and first to third periodic reports of Indonesia, the Committee appreciated the steps taken to strengthen Indonesia's legal framework for the protection and promotion of human rights, in particular the adoption of Act No. 39 of 1999 on Human Rights and the ratification of the two international Covenants on human rights in 2006. It welcomed the fact that Indonesia had embarked on a process of harmonizing its domestic laws with international human rights instruments, including the Convention. The Committee noted with satisfaction the enactment of Law No. 24 of 2003 on the establishment of the Constitutional Court, enabling individuals to seek the review of the constitutionality of any Act, including on matters relating to discrimination, and the adoption of Law No. 12 of 2006 on Citizenship, which marked a substantial improvement in addressing citizenship matters and eliminated discriminatory rules based on ethnic, gender and marital status. The Committee appreciated that the Presidential Decree No. 26 of 1998 banned the use of the terms “pribumi” (natives) and “non-pribumi” (non-natives), the latter being used to designate Indonesians of foreign origin, in particular Chinese origin. It also welcomed Presidential Decree No. 6 of 2000, under which the practice of religions, beliefs and traditions followed by Indonesians of Chinese origin no longer required a special permit.
The Committee was concerned that, in practice, the rights of indigenous peoples had been compromised, due to the interpretations adopted by Indonesia of national interest, modernization and economic and social development. In particular, it noted with concern the plan to establish oil palm plantations over some 850 kilometres along the Indonesia-Malaysia border, and the threat that constituted for the rights of indigenous peoples to own their lands and enjoy their culture. The Committee also noted with concern that, although it had been abolished, the transmigration programme had had longstanding effects, as exemplified by the conflict that had taken place between the Dayak and the Madura ethnic groups in Palangkaraya, Central Kalimantan. Indonesia should assess the adverse impact of the transmigration programme, and should promote mutual understanding between communities, as well as mutual knowledge and respect for their histories, traditions and languages. The Committee also encouraged Indonesia to prepare a set of guiding principles for internally displaced persons with the aim of preventing racial discrimination.
Noting with satisfaction the Presidential Instruction of 1996 that abolished SBKRI (Proof of Indonesian Citizenship) for citizens of Chinese origin and other citizens of foreign descent, the Committee remained concerned at the insufficient level of implementation of that Instruction, in particular that banks continued to require it despite another Presidential Instruction of 1998 specifically prohibiting them from doing so. The Committee noted with concern that the violations of human rights which had been committed during the riots of May 1998 still remained unpunished. It was concerned at reports according to which Indonesians of Chinese descent had specifically been targeted, and at the contradictory information Indonesia had provided in its report and in its written replies in that respect. It was further concerned that Komnas HAM’s recommendation that an ad hoc human rights tribunal be established to look into those events had not been implemented yet.
Republic of Korea
Among positive aspects in the thirteenth to fourteenth periodic reports of the Republic of Korea, the Committee welcomed the adoption, in May 2007, of both a National Action Plan for the Promotion and Protection of Human Rights and of the Act on the Treatment of Foreigners in Korea. It also welcomed the establishment in June 2006 of the Interpretation Support Centre for Foreign Migrant Workers. The Committee noted with satisfaction the various measures by the Republic of Korea to combat trafficking of foreign women for the purpose of sexual exploitation or domestic servitude, including the adoption of the Act on Punishment of Prostitution and Brokerage of Prostitution of March 2004 and the Guidelines for Dealing with Cases of Violation of the Act on Punishment of Prostitution and Brokerage of Prostitution. It also welcomed the adoption in May 2006 of the Educational Support Plan for Children from Multicultural Families.
The Committee remained concerned about the persistence of widespread societal discrimination against foreigners in the Republic of Korea, including migrant workers and children born from inter-ethnic unions, in all areas of life, including employment, marriage, housing, education and inter-personal relationships. It requested that the Republic of Korea provide an English translation of the Act on the Treatment of Foreigners in Korea, as well as detailed information on its implementation. The Committee also recommended that the Government adopt further measures, including legislation, to prohibit and eliminate all forms of discrimination against foreigners, including migrant workers and children born from inter-ethnic unions, and to guarantee the equal and effective enjoyment by persons of different ethnic or national origin of the rights set out in article 5 (economic, social and cultural rights) of the Convention.
The Committee noted with concern that the emphasis placed on the ethnic homogeneity of the Republic of Korea might represent an obstacle to the promotion of understanding, tolerance and friendship among the different ethnic and national groups living on its territory. In that regard, while appreciating the explanation that references to concepts such as “pure blood” and “mixed-bloods” in the report were intended as a mere description of a terminology still in use in the country, the Committee was nonetheless concerned that such terminology, and the idea of racial superiority that it might entail, continued to be widespread in Korean society. The Committee requested that disaggregated statistical data on the number of persons born from inter-ethnic unions living on the territory of the Republic of Korea be incorporated in its next report, and that the Government adopt appropriate measures in the fields of teaching, education, culture and information, to recognize the multi-ethnic character of contemporary Korean society. Furthermore, the Committee remained concerned that, strictly in accordance with article 10 of the Constitution, only citizens were equal before the law and were entitled to exercise the rights set out in its Chapter II. It also remained concerned that migrant workers could only be granted non-renewable, 3-year contracts, and faced severe restrictions to their job mobility as well as discriminatory treatment and abuses in the workplace, such as longer working hours, lower wages, and unsafe or dangerous conditions of work. It was also concerned that migrant workers, in particular those with an irregular status, encountered obstacles in obtaining legal protection and redress in cases of discriminatory treatment at the workplace, unpaid or withheld wages, or injury or illnesses suffered as a result of industrial accidents.
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For use of the information media; not an official record
of Racial Discrimination
17 August 2007
ROUNDUP
Issues Concluding Observations on Reports of Costa Rica, New Zealand, Kyrgyzstan, Mozambique,
Democratic Republic of the Congo, Indonesia, and Republic of Korea
The Committee on the Elimination of Racial Discrimination today concluded its seventy-first session, issuing concluding observations and recommendations on the reports of Costa Rica, New Zealand, Kyrgyzstan, Mozambique, the Democratic Republic of the Congo, Indonesia and the Republic of Korea on how they implement the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination.
Also at the present session, the Committee reviewed in a closed meeting the country situation in Ethiopia, under its review procedure for States parties whose reports are seriously overdue. Following its private dialogue with the Permanent Representative of Ethiopia, the Committee decided to send a letter to the State party. Also under its review procedure, the Committee decided to send letters to Lithuania and Azerbaijan, on the basis of follow-up reports that had been sent by those two countries. Letters would also be sent to China and Guyana in connection with the review procedure.
Also considered in private at this session were complaints brought against Belize, Brazil, Nicaragua, the Philippines, Peru and Chile under the Committee's early warning and urgent action procedure.
During the course of its three-week session, the Committee held exchanges with representatives of the International Labour Organization and the Coordinator of the National Institutions Unit of the Office of the High Commissioner for Human Rights. It was also briefed on follow-up activities to the Durban Declaration and Programme of Action by Jose Dougan Beaca, Head of the Anti-Discrimination Unit of the Office of the United Nations High Commissioner for Human Rights, and it held an exchange of views with Asma Jahangir, the UN Special Rapporteur on Freedom of Religion or Belief.
Also at this session, the Committee undertook a number of activities with a view to streamlining and harmonizing its working methods. The Committee adopted draft revised guidelines for specific reports to be presented by States parties under article 9 of the Convention, as orally amended following a paragraph-by-paragraph second reading. It also heard presentations in public session from several of its members on the outcomes of meetings on treaty body reform, as well as a briefing on the outcome of the May 2007 meeting between human rights treaty bodies and the International Law Commission on the topic of reservations.
Also in the context of improvement of its working methods, on the afternoon of Tuesday, 14 August, the Committee held a meeting with States parties to discuss improving its working methods, follow-up to concluding observations, treaty body reform, and the relationship between treaty bodies and the Human Rights Council.
At its last meeting, the Committee approved the report presented by Committee Expert Raghavan Vasudevan Pillai on article 15 of the Convention, including the recommendations contained therein. In addition, the Committee amended its rules of procedure to include a new paragraph specifying that national human rights institutions accredited to the Human Rights Council could, with the consent of the State party concerned, formally address the Committee in their independent capacity on the occasion of the public dialogue with States parties to review their periodic reports.
The Committee also adopted, on an experimental basis, the Bureau's recommendations concerning the elaboration of lists of issues to be sent to States parties prior to the consideration of their periodic reports. In effect, the recommendations formalized the procedures already in place, and set out a specific timetable to be followed. Country Rapporteurs would be designated at the end of the session preceding the consideration of a State party's report; the list, prepared by the Secretariat in conjunction with the Country Rapporteur, would be sent to the country concerned 10 weeks before the session; and States would have 6 weeks to submit a written response (i.e., responses were due 4 weeks before the session at which the report was to be considered). List of issues were not to exceed 20 questions, and the written responses should not exceed 20 pages. At a later date the Committee could revisit the question of making more substantial changes to that procedure.
Also at its last meeting, the Committee decided to include in its annual report to the General Assembly its prior proposal for holding a session in New York every two years, with a view to facilitating dialogue with developing countries that did not have Permanent Missions in Geneva.
With regard to matters relating to preparations for the Durban Review Conference (2009), the Committee appointed two of its members, Ms. January-Bardill and Mr. Avtonomov, to participate in the work of the Intergovernmental Working Group on the effective implementation of the Durban Declaration and Programme of Action, which would be held from 3 to 7 September 2007.
In response to the note verbale addressed to the Committee concerning its contribution to the Preparatory Committee for the Durban Review Conference, to be held from 27 to 31 August 2008, the Committee decided to draft a letter emphasizing its interest in the Preparatory Committee, and setting out the measures the Committee had adopted and the improvements it had made in its methods of work with the aim of promoting the implementation of and follow-up to the decisions taken in Durban in 2001. In that connection, the Committee would highlight, among others, that it had envisaged the possibility of country visits for the purpose of assessment and to ensure follow up, and had decided to recommend the designation of national focal points for racial discrimination issues. It would also note the Committee's invitation to countries to identify groups that were subjected to racial discrimination.
The Committee also decided that at its next session it would begin consideration of a future general recommendation on the topic of special measures (affirmative action). Furthermore, it was decided that the Committee's next thematic debate, which was scheduled for August 2008, would be on the theme of the relationship between racism and religion.
The next session of the Committee will be held in Geneva from 18 February to 7 March 2008. During that session, the Committee will consider reports of Italy, Fiji, Belgium, the Russian Federation, the Dominican Republic, the United States, Nicaragua and Moldova. In addition, it will consider the situations in Gambia, Monaco, Bulgaria, the United Arab Emirates and Panama under its review procedure for countries whose reports are more than five years overdue, unless the reports were received in the interim.
Concluding Observations and Recommendations on Country Reports
Costa Rica
Having considered the seventeenth to eighteenth period reports of Costa Rica, the Committee noted with satisfaction the decisions taken by the Constitutional Chamber of the Supreme Court in constitutional challenges and amparo applications invoking the Convention. It welcomed the establishment of the Office of the Attorney for Indigenous Affairs in the Public Prosecutor’s Office and the formation of a corps of indigenous-language translators attached to the courts. The Committee noted with satisfaction the “Equality in the exercise of the right to vote” programme, the publication of the leaflet entitled “Protocol for an electoral process accessible to indigenous communities”, which referred to Convention rights, and the “How to vote” poster, which had been translated into Bribri, Maleku and Cabecar. The Committee welcomed the forthcoming establishment a national mechanism for follow-up to the recommendations of the treaty bodies.
The Committee noted with concern that, despite the Committee's recommendations in 2002, the Autonomous Development of Indigenous Peoples Bill had not been adopted, and that racial discrimination continued to be viewed as a minor infraction punishable by a fine. The Committee was further concerned at the fact that only 7.6 per cent of indigenous people living in indigenous territories had their basic needs met, and that that problem might result in indigenous people being obliged to leave their ancestral lands in search of better opportunities. The Committee was particularly concerned at the situation in the canton of Talamanca and in the banana plantations. In that connection, the Committee recalled that discrimination was not always an effect of a deliberate policy and that Costa Rica had an obligation to rectify situations of de facto discrimination. The Committee urged Costa Rica to step up its efforts to improve the indigenous peoples’ enjoyment of economic and social rights, in particular to ensure equal pay for indigenous people and other sectors of the population, and access to education and health. Strenuous efforts should also be made to combat child mortality in the indigenous communities. Furthermore, the Committee was concerned that the right of indigenous peoples to their land right was not guaranteed in practice, and shared the Government's concern at the trend towards the concentration of indigenous land in the hands of non-indigenous settlers.
The Committee urged Costa Rica to step up its efforts to improve the situation of migrants in the country. It also recommended that the Government take the necessary steps to combat double discrimination, on the basis of gender and ethnicity, and invited Costa Rica to adopt a national gender plan for indigenous women that would effectively coordinate policies to protect their rights. Noting with concern that the unemployment rate for young Afro-Costa Ricans was above the national average, the Committee invited Costa Rica to carry out a study to determine the causes of that problem, and to take the necessary measures to put a stop to discrimination in employment and to reduce unemployment among Afro-Costa Ricans. The Committee also noted with concern the disappearance of two indigenous languages, Chorotega and Huetar. It invited Costa Rica to take the necessary steps to preserve the indigenous peoples’ cultural heritage, including their languages
New Zealand
Among positive aspects in the fifteenth to seventeenth periodic reports of New Zealand, the Committee welcomed the importance given by New Zealand to the principle of self-identification when gathering data on the ethnic composition of its population. It also welcomed the adoption of the 2004 New Zealand Settlement Strategy and the Settlement National Plan of Action, and the New Zealand Diversity Action Programme. The Committee appreciated the reduction of socio-economic disparities between Maori and Pacific peoples and the rest of the population, in particular in the areas of employment and education. It also appreciated the significant increase in the number of adults, including non-Maori, who could understand, speak, read and write the Maori language. The Committee noted with satisfaction that New Zealand had increased the budget of the New Zealand Human Rights Commission by 20 per cent per annum for the next four years.
The Committee noted that the Treaty of Waitangi was not a formal part of domestic law unless incorporated into legislation, making it difficult for Maori to invoke Treaty provisions before courts and in negotiations with the Crown. It noted with concern the proposal to remove statutory references to the Treaty of Waitangi through the Principles of the Treaty of Waitangi Deletion Bill (2006). It was further concerned that, in the report, historical treaty settlements had been categorized as special measures for the adequate development and protection of Maori. Noting the steps adopted by New Zealand to review policies and programmes in the Public service, which had led to the retargeting of some programmes and policies on the basis of need rather than ethnicity, the Committee was concerned that those steps had been adopted in a political climate unfavourable to the rights of Maori. The Committee recommended that New Zealand consider granting the Waitangi Tribunal legally binding powers to adjudicate Treaty matters and provide the Tribunal with increased financial resources. The Committee reiterated its recommendations that a renewed dialogue between the Government and the Maori community take place with regard to the Foreshore and Seabed Act 2004, in order to seek ways of mitigating its discriminatory effects, including through legislative amendment where necessary. It further recommended that New Zealand enhance its efforts to address the over-representation of Maori and Pacific people in the prison population and more generally at every stage of the criminal justice system, which should be considered as a matter of high priority.
The Committee remained concerned that, under the new Immigration Bill, undocumented children would only be authorized to attend school provided they were not alone in New Zealand and that their parents were taking steps to regularize their status. It noted with concern that asylum-seekers might be detained in correctional facilities, even though such detention only concerned a very few individuals. It was also concerned at reports according to which proposals had been made to include health and character grounds in the Immigration Act as a basis upon which to exclude or expel asylum-seekers. The Committee recommended that New Zealand study ways and means of assessing on a regular basis the extent to which complaints for racially motivated crimes were addressed in an appropriate manner within its criminal justice system. It should envisage, in particular, collecting statistical data on complaints, prosecutions and sentences for such crimes.
Kyrgyzstan
Following its review of the second to fourth periodic reports of Kyrgyzstan, the Committee noted with satisfaction that the Convention was incorporated into Kyrgyz domestic law and could be directly applied, as appropriate, in national courts. It also noted with satisfaction that the new Constitution adopted in December 2006 prohibited any type of discrimination on the grounds of ethnic origin, sex, race, nationality, language, religious belief, or other conditions or circumstances of a personal or social nature. The Committee welcomed the ratification by Kyrgyzstan of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, in 2002; the Optional Protocols to the Convention on the Rights of the Child on the involvement of children in armed conflicts and on the sale of children, child prostitution and child pornography, in 2003; and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, in 2004.
The Committee notes with concern that according to information presented to it, competent authorities of Kyrgyzstan allegedly denied refugee status or asylum to individuals belonging to certain ethnic or national minorities, including ethnic Uighurs, Uzbeks and Chechens, and failed to adequately protect the rights of such individuals in accordance with the Convention relating to the Status of Refugees and national legislation. It expressed its deep concern with regard to allegations of forcible return of ethnic Uighurs and Uzbeks to their countries of origin pursuant to multilateral and bilateral agreements concluded with neighbouring countries. The Committee regretted that Kyrgyzstan had not provided sufficient information on the measures taken following the clashes that had taken place in February 2006 between Kyrgyz and Dungan communities living in Iskra. It recommended to the Government, on the basis of the findings of the Commission established to investigate those clashes, that those responsible be brought to justice, that compensation be provided to the families that had been forced to leave and that measures be adopted to promote dialogue and understanding between the two communities.
The Committee reiterated its request that Kyrgyzstan provide detailed information on measures adopted to ensure the practical enjoyment by persons belonging to ethnic and national minorities of the rights listed in article 5 (e) of the Convention (economic, social and cultural rights), in particular the right to work, including the right to equal opportunities of promotion and career development, the right to housing and the right to education. The Committee noted with concern that criminal law provisions punishing acts of racial discrimination, such as Articles 134, 299 and 373 of the Criminal Code, were seldom invoked in national courts. It also noted that, although the Convention forms part of the domestic law, there were no court decisions which contained references to, or confirmed the direct applicability of, its provisions. The Committee requested that Kyrgyzstan include in its next report detailed information on complaints lodged and prosecutions launched, as well as on penalties imposed, in cases of offences which relate to racial discrimination. It recommends that the Government include in curricula and textbooks for primary and secondary schools information about the history and culture of the different national and ethnic groups living in its territory, and that it encourage and support the publication and distribution of books and other printed materials, as well as the broadcasting of television and radio programmes, about their history and culture.
Mozambique
Among positive aspects in the second to twelfth periodic reports of Mozambique, the Committee expressed its satisfaction for the adoption of the Constitution of 2004, enshrining the principle of equality of all citizens, irrespective of their colour, race, sex, ethnic origin, birthplace and religion. The Committee acknowledged with appreciation the ratification of international human rights instruments such as the International Covenant on Civil and Political Rights in 1993, the Convention on the Rights of the Child in 1994, the Convention on the Elimination of All Forms of Discrimination against Women in 1997, and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment in 1999. It also acknowledged with appreciation the language policy, which included the use of local languages, together with the official language, in the curricula of primary schools as well as the promotion of national languages and cultures, as prescribed in the Constitution. The Committee also expressed its satisfaction for the fact that Mozambique had resettled over 1.7 million of its returning refugees and several millions of internally displaced persons.
The Committee was concerned about the lack of legislation on racial discrimination, and recommended that Mozambique adopt specific legislation implementing the provisions of the Convention, including a legal definition of racial discrimination, in line with article 1. It also recommended that Mozambique strengthen its programmes aiming at providing universal access to health care, with particular attention to members of vulnerable groups, including non-citizens and persons without any identification documents. The Committee further recommended that Mozambique include in its next periodic report information on the socio-economic situation of the most disadvantaged ethnic groups, that it strengthen measures to reduce poverty and stimulate economic growth, and that it provide concrete detailed information on the outcome of those measures.
While acknowledging the 2006 law on the “Provedor de Justiça” (Ombudsman), and that the election of the “Provedor” was scheduled for the coming session of the Parliament, the Committee was concerned about the resources, independence, competencies and effectiveness of that institution, as well as at the lack of information regarding the future National Commission on Human Rights While taking note of the anti-discrimination provisions of the Tourism Law of 2004 and the Labour Law of 2007, the Committee was concerned with cases of hate speech, as well as with racist and xenophobic acts and attitudes in the State party, in particular in the field of employment, and with the absence of measures to prevent and combat such phenomena.
Democratic Republic of the Congo
After reviewing the eleventh to fifteenth periodic reports of the Democratic Republic of the Congo, the Committee welcomed the promulgation of the 18 February 2006 Constitution, which reflected the desire of the Democratic Republic of the Congo to establish a State based on the rule of law and its commitment to meeting its international human rights obligations. The Committee commended the Government's ratification of the Rome Statute of the International Criminal Court, and the measures taken to implement the recommendations of the conference on peace in Ituri. It also welcomed the fact that, after having requested the establishment of a special criminal court to try war crimes and crimes against humanity committed in the Democratic Republic of the Congo, the Government had seized the International Criminal Court of those crimes. The Committee noted with satisfaction the establishment of a technical inter-ministerial committee responsible for drafting reports to the treaty bodies on the implementation of international instruments to which the State is a party.
The Committee remained concerned that the last census in the Democratic Republic of the Congo had been taken in 1970. It noted with concern that, while the Democratic Republic of the Congo did not deny the existence of ethnic conflicts in the country, there was no definition of racial discrimination in domestic law that reflected the definition given in article 1 of the Convention. The Committee noted with regret the Government's reluctance to acknowledge the existence of indigenous peoples in its territory. It also regretted that it had received no clarification of the contradiction between article 51 of the Constitution, which established a duty to ensure the protection and advancement of vulnerable groups and all minorities, on the one hand, and the delegation’s repeated statements to the effect that minorities were not recognized by the Democratic Republic of the Congo.
The Committee remained appalled by the situation of Congolese women, who continued to be the victims of sexual violence as a result of inter-ethnic conflicts. It urged the Government to take steps to protect the victims of sexual violence and to undertake to prosecute the perpetrators of such acts. An information campaign concerning the criminal nature of such acts should also be conducted among the public and the armed forces. The Committee noted with concern that the rights of the Pygmies (Bambuti, Batwa and Bacwa) to own, exploit, control and use their lands, their resources and their communal territories were not guaranteed and that concessions to the lands and territories of indigenous peoples were granted without prior consultation. It recommended that the Government take urgent and adequate measures to protect the rights of the Pygmies to land, in particular that it make provision for the forest rights of indigenous peoples in domestic legislation; register the ancestral lands of the Pygmies; proclaim a new moratorium on forest lands; take the interests of the Pygmies and environmental conservation needs into account in matters of land use; and provide domestic remedies in the event that the rights of indigenous peoples are violated. The Committee was particularly concerned at reports that Pygmies were sometimes subjected to forced labour, and therefore encouraged the Government to intensify its efforts to improve the indigenous populations’ enjoyment of economic, social and cultural rights, in particular to take measures to guarantee their rights to work, decent working conditions and education and health.
Indonesia
Having considered the combined initial and first to third periodic reports of Indonesia, the Committee appreciated the steps taken to strengthen Indonesia's legal framework for the protection and promotion of human rights, in particular the adoption of Act No. 39 of 1999 on Human Rights and the ratification of the two international Covenants on human rights in 2006. It welcomed the fact that Indonesia had embarked on a process of harmonizing its domestic laws with international human rights instruments, including the Convention. The Committee noted with satisfaction the enactment of Law No. 24 of 2003 on the establishment of the Constitutional Court, enabling individuals to seek the review of the constitutionality of any Act, including on matters relating to discrimination, and the adoption of Law No. 12 of 2006 on Citizenship, which marked a substantial improvement in addressing citizenship matters and eliminated discriminatory rules based on ethnic, gender and marital status. The Committee appreciated that the Presidential Decree No. 26 of 1998 banned the use of the terms “pribumi” (natives) and “non-pribumi” (non-natives), the latter being used to designate Indonesians of foreign origin, in particular Chinese origin. It also welcomed Presidential Decree No. 6 of 2000, under which the practice of religions, beliefs and traditions followed by Indonesians of Chinese origin no longer required a special permit.
The Committee was concerned that, in practice, the rights of indigenous peoples had been compromised, due to the interpretations adopted by Indonesia of national interest, modernization and economic and social development. In particular, it noted with concern the plan to establish oil palm plantations over some 850 kilometres along the Indonesia-Malaysia border, and the threat that constituted for the rights of indigenous peoples to own their lands and enjoy their culture. The Committee also noted with concern that, although it had been abolished, the transmigration programme had had longstanding effects, as exemplified by the conflict that had taken place between the Dayak and the Madura ethnic groups in Palangkaraya, Central Kalimantan. Indonesia should assess the adverse impact of the transmigration programme, and should promote mutual understanding between communities, as well as mutual knowledge and respect for their histories, traditions and languages. The Committee also encouraged Indonesia to prepare a set of guiding principles for internally displaced persons with the aim of preventing racial discrimination.
Noting with satisfaction the Presidential Instruction of 1996 that abolished SBKRI (Proof of Indonesian Citizenship) for citizens of Chinese origin and other citizens of foreign descent, the Committee remained concerned at the insufficient level of implementation of that Instruction, in particular that banks continued to require it despite another Presidential Instruction of 1998 specifically prohibiting them from doing so. The Committee noted with concern that the violations of human rights which had been committed during the riots of May 1998 still remained unpunished. It was concerned at reports according to which Indonesians of Chinese descent had specifically been targeted, and at the contradictory information Indonesia had provided in its report and in its written replies in that respect. It was further concerned that Komnas HAM’s recommendation that an ad hoc human rights tribunal be established to look into those events had not been implemented yet.
Republic of Korea
Among positive aspects in the thirteenth to fourteenth periodic reports of the Republic of Korea, the Committee welcomed the adoption, in May 2007, of both a National Action Plan for the Promotion and Protection of Human Rights and of the Act on the Treatment of Foreigners in Korea. It also welcomed the establishment in June 2006 of the Interpretation Support Centre for Foreign Migrant Workers. The Committee noted with satisfaction the various measures by the Republic of Korea to combat trafficking of foreign women for the purpose of sexual exploitation or domestic servitude, including the adoption of the Act on Punishment of Prostitution and Brokerage of Prostitution of March 2004 and the Guidelines for Dealing with Cases of Violation of the Act on Punishment of Prostitution and Brokerage of Prostitution. It also welcomed the adoption in May 2006 of the Educational Support Plan for Children from Multicultural Families.
The Committee remained concerned about the persistence of widespread societal discrimination against foreigners in the Republic of Korea, including migrant workers and children born from inter-ethnic unions, in all areas of life, including employment, marriage, housing, education and inter-personal relationships. It requested that the Republic of Korea provide an English translation of the Act on the Treatment of Foreigners in Korea, as well as detailed information on its implementation. The Committee also recommended that the Government adopt further measures, including legislation, to prohibit and eliminate all forms of discrimination against foreigners, including migrant workers and children born from inter-ethnic unions, and to guarantee the equal and effective enjoyment by persons of different ethnic or national origin of the rights set out in article 5 (economic, social and cultural rights) of the Convention.
The Committee noted with concern that the emphasis placed on the ethnic homogeneity of the Republic of Korea might represent an obstacle to the promotion of understanding, tolerance and friendship among the different ethnic and national groups living on its territory. In that regard, while appreciating the explanation that references to concepts such as “pure blood” and “mixed-bloods” in the report were intended as a mere description of a terminology still in use in the country, the Committee was nonetheless concerned that such terminology, and the idea of racial superiority that it might entail, continued to be widespread in Korean society. The Committee requested that disaggregated statistical data on the number of persons born from inter-ethnic unions living on the territory of the Republic of Korea be incorporated in its next report, and that the Government adopt appropriate measures in the fields of teaching, education, culture and information, to recognize the multi-ethnic character of contemporary Korean society. Furthermore, the Committee remained concerned that, strictly in accordance with article 10 of the Constitution, only citizens were equal before the law and were entitled to exercise the rights set out in its Chapter II. It also remained concerned that migrant workers could only be granted non-renewable, 3-year contracts, and faced severe restrictions to their job mobility as well as discriminatory treatment and abuses in the workplace, such as longer working hours, lower wages, and unsafe or dangerous conditions of work. It was also concerned that migrant workers, in particular those with an irregular status, encountered obstacles in obtaining legal protection and redress in cases of discriminatory treatment at the workplace, unpaid or withheld wages, or injury or illnesses suffered as a result of industrial accidents.
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