COMMITTEE ON ELIMINATION OF RACIAL DISCRIMINATION CONCLUDES SEVENTY-SECOND SESSION

Committee on the Elimination
of Racial Discrimination
ROUNDUP
7 March 2008





Issues Concluding Observations on the Reports of Fiji, Italy, the United States, Belgium, Nicaragua, Moldova and the Dominican Republic


The Committee on the Elimination of Racial Discrimination today concluded its seventy-second session, issuing concluding observations and recommendations on the reports of Fiji, Italy, the United States, Belgium, Nicaragua, Moldova and the Dominican Republic on how those countries implement the provisions of the International Convention on the Elimination of All Forms of Racial Discrimination.

The Committee also considered the cases of four countries under its review procedure, under which the Committee may examine the country situation of States parties whose reports are over five years' late in the absence of a report. In the case of Gambia, whose second to fourteenth reports have been overdue since 1982, and in the absence of any information from that country regarding the drafting of its overdue reports, the Committee was decided to send a list of issues to be addressed by Gambia, as a possible basis for commencing such work. The Committee also decided to agree to requests for the postponement of the review procedure by the United Arab Emirates, Panama, and Monaco, following commitments received from those countries to submit their overdue reports within the coming months.

The Committee’s seventy-second session began with the solemn declarations of its nine newly elected or re-elected members, who promised that they would perform their duties and exercise their powers as a member of the Committee honourably, faithfully, impartially and conscientiously. At the end of the first morning’s meeting, the Committee elected a new Bureau: Fatimata-Binta Victoire Dah of Burkina Faso was elected Chairperson; Alexei Avtonomov, Francisco Cali Tzay and Anwar Kemal were named as Vice Chairpersons; and Linos-Alexandre Sicilianos was elected as Committee Rapporteur.

The Committee was also briefed during this session on the United Nations Declaration on the Rights of Indigenous Peoples by Julian Burger, Coordinator of the Indigenous Peoples and Minorities Unit of the Office of the High Commissioner for Human Rights (OHCHR), who spoke on innovative concepts in the Declaration, highlighted areas that might be of interest to the Committee, and drew attention to some emerging issues.

Also at this session, the Committee held a dialogue with representatives of the Office of the United Nations High Commissioner for Human Rights to discuss interaction between national human rights institutions and United Nations human rights treaty bodies, and a framework for identifying indicators for monitoring compliance with international human rights instruments. It also had a discussion with a representative of the International Labour Organization (ILO) on ways that the Committee and the ILO could work together.

Regarding the implementation of the Convention, on the morning of Friday, 7 March, the Chairman of the Working Group on Early Warning and Urgent Action Procedure presented his report to the Committee. The Committee then decided that the Chairperson would send letters to the following states raising issues pertaining to matters related to the implementation of the Convention: Belize, Philippines, Brazil, Chile, Peru, Ethiopia and the People’s Republic of China.

The Committee also decided to hold a thematic discussion on special measures (sometimes known as affirmative action) at its next session.

The seventy-third session of the Committee will take place from 28 July to 15 August 2008, during which it will review periodic reports on Ecuador, Russia, Switzerland, Sweden, Germany, Austria, Togo and Namibia.

Concluding Observations and Recommendations on Country Reports

Fiji

Among positive aspects in the sixteenth to seventeenth periodic reports of Fiji, the Committee welcomed Fiji's stated intention to make the optional declaration under article 14 of the Convention (recognizing the competence of the Committee to consider communications by individuals claiming that Fiji had violated their rights under the Convention). The Committee noted with satisfaction the adoption of the Immigration Act of 2003, and the repeal of section 8 (1) g of the Act, which marked a substantial improvement in Fiji’s immigration legislation. It welcomed Fiji's expressed commitment to strive for reconciliation among the communities in the country, and commended Fiji commended on its ratification of International Labour Organization Conventions No. 111, on Discrimination in Employment and Occupation, and No. 169, concerning Indigenous and Tribal Peoples in Independent Countries.

The Committee reiterated its concern about Fiji's decision to maintain its reservations and declarations which may seriously affect the implementation of the Convention, particularly in light of recent developments in international law regarding the protection of indigenous rights. Also, while noting the delegation's assurances regarding the independence of the Fiji Human Rights Commission, the Committee was concerned that it might no longer fully meet the criteria set out in the Paris Principles.

The Committee recommended that Fiji reflect further on how the concept of “indigenous Fijians” related to the understanding of indigenous peoples in international law, in particular as reflected in ILO Convention 169 and the 2007 United Nations Declaration on the Rights of Indigenous Peoples. Furthermore, Fiji was invited to explain how the concept of indigenous Fijians was applied in law and practice and its impact on the enjoyment of human rights by everyone in Fiji. In that context, the Committee remained concerned that the need for special measures, in sectors such as education and employment, might not be based on a realistic appraisal of the current situation of the different communities. It therefore encouraged Fiji to engage in a data-gathering exercise to ensure that special measures were designed and implemented on the basis of need, and that their implementation was monitored and regularly evaluated. The Committee also reiterated the need to ensure that the special measures adopted in no case led to the maintenance of unequal or separate rights for different ethnic groups after the objectives for which they were taken had been achieved. The Committee also remained concerned about the lower levels of representation of Indo-Fijians in the military and police forces and in the public administration in general. It further remained concerned by Fiji’s opposition to the banning of racist organizations, and the absence of laws to the effect that committing offences for racial reasons generally constituted an aggravating circumstance. It was regrettable that Fiji had not been able to provide data concerning the ethnic composition of the prison population and that the Committee had not received adequate information regarding the nature of the relationship between the indigenous communities and their lands and the extent of the land base subject to customary norms. In that connection, the Committee remained concerned that the current status of land distribution in Fiji inhibited the economic development of non-indigenous communities, in particular Indo-Fijians.

Italy

Following its review of the combined fourteenth and fifteenth periodic reports of Italy, the Committee welcomed the adoption of legislative decree of 9 July 2003 which transposed European Council directive 2000/43/EC enshrining the principle of equal treatment of all people regardless of their race or ethnic origin. The Committee also welcomed, among others, the convening of a European Conference on Roma in January 2008 in Rome to identify possible solutions to the problems encountered by Roma; the entry into force in January 2008 of a decree affording immigrants a higher degree of protection against expulsion measures; the signing of a memorandum of understanding for the protection of “gypsy, nomadic and camminanti” minors signed by the association for nomads and the Ministry of Education in June 2005; the establishment of the National Office for the Elimination of Racial Discrimination to promote equality and fight discrimination based on race or ethnic origin in November 2004; and the adoption of Law Decree 162/2005 which provided new measures to prevent and sanction acts of racial motivated violence during sport events, including the setting up of a National Observatory on Sport Events.

While noting assurances that Italy would consider the recognition of Roma and Sinti as minorities in national law, on an equal footing with the historical linguistic minorities protected by Act No. 482/1999, the Committee was concerned that no comprehensive national legislation and policies addressing the specificities and needs of Roma and Sinti had been adopted. While welcoming the new policy to combat marginalization of Roma and Sinti and facilitating their social inclusion, the Committee was concerned that Roma and Sinti still lived in conditions of de facto segregation in camps, in which they lacked access to the most basic facilities. It was further concerned about reported instances of hate speech, including statements targeting foreign nationals and Roma, attributed to politicians. The Committee recommended, among others, that Italy increase efforts to prevent racially motivated offences and hate speech, and to ensure that relevant criminal law provisions were effectively implemented. Italy should also take measures to prevent the use of illegal force by the police against Roma, and that the local authorities should take more resolute action to prevent and punish racially motivated acts of violence against them and other persons of foreign origin. Concerned that mass media continued to play a role in portraying a negative image of the Roma and Sinti, the Committee further recommended that Italy encourage the media to play an active role in combating prejudices and negative stereotypes which led to racial discrimination, and requested Italy to promptly adopt the code of conduct of journalists drafted in collaboration with the National Office for the Elimination of Racial Discrimination, the United Nations Refugee Agency and the Italian National Press Federation.

Other concerns included reports on situation of undocumented migrant workers from various parts of the world, in particular from Africa, Eastern Europe and Asia, that had drawn attention to violations of their human rights, including alleged ill treatment, low wages received with considerable delay, long working hours and situations of “bonded” labour in which part of their wages were withheld by employers as payment for accommodation in overcrowded lodgings without electricity or running water. The Committee was also concerned by allegations that foreigners held in the temporary stay and assistance centre of Lampedusa were not properly informed of their rights, did not have access to a lawyer and faced collective expulsion, and reports that detention conditions in the centre were unsatisfactory in terms of overcrowding, hygiene, food, and medical care and that some immigrants had suffered ill-treatment. Italy was encouraged to improve the conditions of such stay centres and its reception and identification centres to ensure that adequate health care and better living conditions were provided.

United States

The Committee considered the combined fourth, fifth and sixth periodic reports of the United States and noted with satisfaction the work carried out by the various executive departments and agencies in the field of the elimination of racial discrimination. Furthermore, the Committee welcomed the re-authorization, in 2005, of the Violence Against Women Act and the re-authorization, in 2006, of the Voting Rights Act. In addition to the various programmes adopted by the Department of Health and Human Services to address persistent health disparities affecting low-income persons belonging to racial, ethnic and national minorities, the Committee also commended the 2007 launch of the E-RACE Initiative, aimed at raising awareness on the issue of racial discrimination in the workplace.
The Committee reiterated the concern that the definition of racial discrimination used in federal and state legislation and in court practice in the United States was not always in line with that contained in article 1, paragraph 1, of the Convention. Moreover, the Committee remained concerned about the wide scope of reservations entered by the United States at the time of the Convention’s ratification, particularly with respect to discriminatory acts perpetrated by private individuals, groups or organizations. The Committee also expressed its concern that despite the measures adopted at the federal and state levels to combat racial profiling, such practice continued to be widespread, particularly against Arabs, Muslims and South Asians. The Committee therefore recommended that the United States strengthen its efforts to combat racial profiling by moving expeditiously towards the adoption of the End Racial Profiling Act, or similar federal legislation. The Committee was also deeply concerned that racial, ethnic and national minorities, especially Latino and African American persons, were disproportionately concentrated in poor residential areas characterized by sub-standard housing conditions, limited employment opportunities, inadequate access to health care facilities, under-resourced schools and high exposure to crime and violence. With regard to racial segregation in the education system, the Committee recommended that the United States undertake further studies to identify the underlying causes of de facto segregation and racial inequalities, with a view to elaborating effective strategies aimed at promoting school desegregation and providing equal educational opportunities for all students.
The Committee also reiterated its concern with regard to the persistent racial disparities in the criminal justice system of the United States, including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population and the significant racial disparities with regard to the imposition of the death penalty. It recommended that the United States allocate sufficient resources to ensure legal representation of indigent persons belonging to racial, ethnic and national minorities in civil proceedings. Moreover, the United States should increase significantly its efforts to eliminate police brutality and excessive use of force against persons belonging to racial, ethnic or national minorities, and also increase efforts to prevent and punish violence and abuse against women belonging to racial, ethnic and national minorities. The Committee regretted the position taken by the United States that the Convention was not applicable to the treatment of foreign detainees held as “enemy combatants” and also noted with concern that the United States exposed non-citizens under its jurisdiction to the risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment by means of transfer, rendition, or refoulement to third countries. While noting the adoption of a wide range of measures and policies to improve access to health insurance and adequate health care and services, the Committee recommended that the United States continue its efforts to address the persistent health disparities affecting persons belonging to racial, ethnic and national minorities. With regard to indigenous people’s rights, the Committee recommended that the United States take all appropriate measures to protect areas of spiritual and cultural significance to Native Americans. The Committee also asked the United States to provide, in its next periodic report, detailed information on the measures adopted to preserve and promote the culture and traditions of Native American peoples as well as information on the extent to which curricula and textbooks for primary and secondary schools reflected the multi-ethnic nature of the United States, and provided sufficient information on the history and culture of the different racial, ethnic and national groups living in its territory.

Belgium

Having considered the combined fourteenth to fifteenth periodic reports of Belgium, the Committee acknowledged with appreciation the adoption of the Law of 10 May 2007, modifying the Law of 1981 on the punishment of acts of racism and xenophobia. The Committee expressed its satisfaction with the work of the Centre for Equal Opportunity and Action to Combat Racism, especially in bringing cases of racial discrimination to court. Other measures adopted to prevent and combat racial discrimination in Belgium that were noted with appreciation included the 2004 federal action plan to combat racism, anti-Semitism and xenophobic violence and the setting up of a special unit to monitor racist messages on the Internet. The Committee further commended Belgium for its active role with respect to the Durban Conference and its follow-up, and acknowledged with appreciation the “diversity” policy adopted to strengthen the inclusion of migrants in the labour market and in society.

The Committee remained concerned about the persistence of hate speech in Belgium. While noting that the “Vlaams Blok” party, an organization promoting racism and discriminatory propaganda, had dissolved itself in 2004 following a lengthy trial for racist offences, and that the “Vlaams Belang” party, its successor, had been under a judicial procedure before the State Council since May 2006, the Committee was concerned that Belgium had not adopted any specific provisions in its legislation implementing the provision of the Convention declaring illegal and prohibiting organizations which promoted and incited racial discrimination. The Committee was also concerned about the limited number of criminal cases concerning racist offences brought to justice and the high number of complaints that were discontinued, especially with regard to racial violence, hatred and discrimination committed by members of the police force. Among others, the Committee recommended that Belgium provide, in its next periodic report, detailed information on the investigation, prosecution and conviction of racially motivated offences as well as on reparations provided to victims, and that Belgium reinforce information campaigns and education programmes on the Convention and its provisions as well as strengthen its training activities for police and those working within the criminal justice system in the field of racial discrimination.

The Committee was concerned about the findings in the study from the National Institute on Criminal Statistics and Criminology documenting that foreigners in the Belgian penal system received more severe sentences than Belgians did. It was also concerned about the fact that ethnic minorities were often over-represented in social urban housing – up to 90 per cent in some cases – which had resulted in de facto segregation in certain neighbourhoods of large cities. Belgium should adopt effective measures to prevent de facto segregation and address its underlying factors. Similarly, the Committee was concerned that the Flemish Community had adopted a decree in 2006 restricting access to social housing to persons who spoke or made the commitment to learn Dutch, and that the decree had been endorsed by the State Council. Belgium should ensure that linguistic requirements did not lead to indirect discrimination on grounds of their national or ethnic origin. Also of concern was a 2008 European Court of Human Rights judgment that had found that Belgium had violated the European Convention on Human Rights on the ground of inhuman and degrading treatment of asylum seekers and a 2006 judgment by the European Court that the police forces continued, in certain cases, to use excessive force during expulsion of non-citizens. Concerned also about the practical enjoyment of social, economic and cultural rights by Roma and Travellers in Belgium, the Committee recommended that Belgium strengthen its measures to improve the schooling of Roma children as well as employment opportunities for Roma and Travellers.

Nicaragua

Following its consideration of the tenth to fourteenth periodic reports of Nicaragua, the Committee noted with satisfaction the institutionalization of the reporting process through the establishment of the Unit for the Follow-up of International Conventions in the Ministry of Foreign Affairs and the Inter-Agency Committee on Human Rights, consisting of representatives of Government institutions and civil society. The Committee also welcomed the adoption of general legislation containing special provisions to protect the rights of indigenous peoples and the adoption of the new Criminal Code, approved by the National Assembly in November 2007, which contained a definition of racial discrimination and described the offence of racial discrimination. In addition to this legislation and the ratification of the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the Committee noted with satisfaction the entry into force of the General Education Act in Nicaragua and hoped that such law recognized the rights of indigenous peoples and ethnic communities of the Caribbean coast to intercultural education in their mother tongues.

Bearing in mind special provisions in the Political Constitution and the Autonomy Statute of the Atlantic Coast regions, the Committee was concerned that indigenous peoples and afro-descendant communities continued to suffer in practice from racism and racial discrimination in Nicaragua. Nicaragua was also called upon to speed up the process of adoption of the Act on Indigenous Peoples of the Pacific, central and northern regions of Nicaragua. The Committee recommended that Nicaragua commit itself to fighting racial discrimination by developing a comprehensive national policy against racism and racial discrimination. The Committee also recommended that Nicaragua continue to improve the methodology used in the census so as to reflect the ethnic complexity of Nicaraguan society. While the Committee welcomed the establishment in 2001 of the National Commission for the Elimination of Racial Discrimination, it expressed concern at reports that that body was not functioning effectively in practice and therefore recommended that the Commission be assigned the necessary financial and technical resources to function properly. The Committee called on Nicaragua to ensure respect for, and recognition of, the traditional systems of justice of indigenous peoples, in conformity with international law concerning human rights. While noting with satisfaction efforts made by Nicaragua to amend the Electoral Act, the Committee recommended that it step up its efforts to ensure full participation of indigenous peoples and afro-descendant communities in political affairs of the State at all levels.

The Committee expressed its concern with the ongoing delays in the demarcation and titling of the traditional territory of the Awas Tingni community and urged Nicaragua to proceed immediately with those responsibilities without prejudice to the potential rights of other communities and in accordance with the terms of the relevant judgement of the Inter-American Court of Human Rights. While welcoming the adoption of the General Health Act, which allowed the Autonomous Regions to define a healthcare model in line with their traditions, cultures and customs, the Committee urged Nicaragua to step up its efforts to guarantee the right to public health, medical care, social security and social services of indigenous peoples and afro-descendant communities, as well as providing financial and institutional support to access to traditional indigenous medicine. With regard to the high illiteracy rate among the indigenous and afro-descendant communities, the Committee encouraged Nicaragua to take action in the short and medium term to reduce illiteracy, especially in the Autonomous Region of the North Atlantic. The Committee also expressed its concern about indigenous women being victims of double discrimination as well as the racial discrimination that existed in the media, including stereotyped and denigrating portrayals of indigenous people in television programmes and press articles. The Committee recommended that Nicaragua adopt appropriate measures to combat racial prejudice in the media, both on public and private channels, and in the press. Finally, the Committee recommended that Nicaragua expedite the process of adopting a number of laws, conventions, and relevant amendments that would improve the national situation on racial discrimination.

Moldova

Among positive aspects in the combined fifth to seventh periodic reports of the Republic of Moldova, the Committee welcomed the adoption of the Status of Refugees Act in 2002 and of a National Programme of Action on Migration and Asylum to reduce the adverse consequences of illegal migration and to strengthen the domestic system of asylum. The Committee also noted with appreciation that Moldova had included education on the Holocaust in school curricula, and that modern history textbooks contained chapters on the Holocaust and the genocide of Jews and Roma. Furthermore, the Committee welcomed the recent legislative initiatives of Moldova to bring its domestic legislation into line with the Rome Statute of the International Criminal Court, with a view to preparing its accession to the Rome Statute.

The Committee noted with concern that the Parliamentary Advocates heading the Centre for Human Rights of Moldova had dealt with only a few complaints related to racial discrimination. The Committee therefore recommended that Moldova promote the role and strengthen the activities of the Parliamentary Advocates in relation to complaints about racial discrimination. The Committee also expressed concern that Moldova had not adopted comprehensive legislation to prevent and combat discrimination in all areas, and recommended the adoption of comprehensive non-discrimination legislation protecting both citizens and, subject to reasonable differentiations, non-citizens. One of the other key recommendations from the Committee was that Moldova should increase the budget of the Bureau for Inter-Ethnic Relations, in particular its division for national minorities, inter-ethnic relations and languages. While acknowledging that the Plan of Action to provide support to the Roma for the period 2007-2010 included special measures in the fields of employment, health care, social welfare, protection of children, education and culture, the Committee noted with concern that the Bureau for Inter-Ethnic Relations had reportedly failed to elaborate annual plans for the implementation of the Plan of Action. The Committee also recommended that Moldova ensure that articles 6 and 7 of the Law on Combating Extremist Activity and other relevant criminal law provisions were applied in full conformity with article 4 of the Convention. With respect to Muslim ethnic minorities, the Committee recommended that Moldova consider facilitating their registration as religious communities and to also ensure that members of Muslim ethnic minorities, such as the Tatars, could be buried in accordance with their beliefs and preferences.

The Committee further noted with concern the reported high unemployment rate among the Roma population and the lack of employment opportunities for Roma. Furthermore, the Roma were not represented in Parliament and, apart from the police force, there were no quotas for the recruitment of Roma in the public service, despite the right of national minorities to an “approximately proportionate representation” in the executive, the judiciary and the army under the Members of Ethnic Minorities Act of 2001. Other recommendations made by the Committee with respect to minority rights and education included greater efforts to provide adequate opportunities for minority children to receive instruction in their native language while also continuing to further intensify efforts to improve the quality of Moldovan language education for minority children. The Committee also recommended that Moldova provide financial support to Roma families to cover the cost of schoolbooks, transport and other indirect costs of schooling to counteract the poor level of school attendance for Roma and other minority groups. Additional recommendations were made regarding the lack of information on, and the low number of, registered complaints about acts of racial discrimination and discrimination against ethnic minorities, including police violence against Roma, Muslims and persons of African or Asian descent.
Dominican Republic

Having completed its examination of the combined ninth to twelfth periodic reports of the Dominican Republic, the Committee noted with satisfaction that the Dominican Republic had ratified the Convention without any reservation, in addition to the ratification of four other United Nations human rights treaties. Moreover, the Committee took note with appreciation of the anti-discrimination provision contained in Principle VII of the Labour Code and appreciated the information provided by the delegation that a Draft Penal Code was under consideration and gave effect to provisions of the Convention.

Nevertheless, the Committee noted with concern that the Dominican Republic, in its report, used the expressions “racial purity” and “genetic characteristics” of different ethnic groups, which could lead to an erroneous interpretation of the country’s policies. The Committee also noted, and rejected, the assertion made by the Dominican delegation that, although incidents of racial discrimination might occur, there was no racial discrimination on the part of public authorities. The absence of general anti-discrimination legislation, including a definition of racial discrimination in line with the Convention, was also noted with concern by the Committee. While welcoming the information provided by the delegation on the envisaged establishment of a National Human Rights Institution, the Committee noted the current absence of a national human rights institution conforming with the Paris Principles. Furthermore, the Committee noted with concern that the Draft Penal Code under consideration by the National Congress, which provided for sanctions against racial discrimination, had still not been adopted, and reports of racial discrimination in access to places or services and facilities to the general public. The Committee expressed further concern on the information regarding migrants of Haitian origin, whether documented or undocumented, who were allegedly being detained and subject to collective deportations (repatriations) to Haiti without due process guarantees. In that regard, the Committee recommended that the Dominican Republic ensure that laws concerning deportation or other forms of removal of non-citizens did not discriminate in purpose or effect among non-citizens on the basis of race, colour or ethnic or national origin.

The Committee also recommended that the Dominican Republic ensure that non-citizens were not subject to collective expulsion and to avoid the expulsion of non-citizens, especially of long-term residents. Moreover, the Committee expressed its concern with a few of the Dominican Republic’s Migration Laws, including N.285-04, which provided that only children of “residents” born on Dominican soil were entitled to Dominican nationality. With that in mind, the Committee strongly recommended that the Dominican Republic take appropriate measures to guarantee respect for the principle of non-discrimination in children’s access to nationality and to reconsider the status of people who have been in its territory for a long period with a view to regularizing their stay. The Committee urged the State party to take immediate steps, including the removal of administrative obstacles, to issue all Dominicans of Haitian descent with identification documents, including those whose documents had been confiscated or destroyed by the authorities. The Committee also urged the Dominican Republic to develop comprehensive policies and allocate adequate resources to prevent, investigate and punish human trafficking, as well as to provide assistance and support to victims. In its final recommendations, the Committee encouraged the Dominican Republic to consider ratifying the 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and urged that the Dominican Republic to include in its next periodic report specific information on action plans and other measures taken to implement the Durban Declaration and Programme of Action at the national level.
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