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SUBCOMMISSION TAKES UP DISCUSSION OF RACIAL DISCRIMINATION
11 August 1998
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MORNING
HR/SC/98/10
11 August 1998
The Subcommission on Prevention of Discrimination and Protection of Minorities started its discussion on racial discrimination this morning, with non-governmental organizations (NGOs) calling for greater respect for the rights of migrant workers and steps to prevent alleged systematic discrimination against them in various parts of the world.
A representative for the International Institute for Non-Aligned Studies contended -- in a statement echoed by several other groups -- that countries talked a great deal about abolishing discrimination but were "lackadaisical" about actually doing anything.
A spokesman for the International Confederation of Free Trade Unions asserted that to break a vicious circle of exploitation and declining wages and working conditions of migrant workers, there must be solidarity among workers and respect for international labour standards. International Educational Development claimed racism and xenophobia were behind the United States-backed economic embargoes against Iraq and Cuba.
Confusion about whether the meeting was public or private -- the signs outside the hall indicated a closed session until shortly after 10 a.m., and conference staff said they had not been informed one way or the other -- meant that many NGOs were absent when their turns to speak came.
Subcommission experts or alternates David Weissbrodt, Francoise Jane Hampson, Asbjorn Eide, Louis Joinet, Vladimir Kartashkin, and Halima Embarek Warzazi spoke.
Observers from Turkey, Mexico, and Bangladesh addressed the meeting.
Representatives of the International Labour Office and the following NGOs also delivered statements: Movement Against Racism and for Friendship Among Peoples; International Movement against All Forms of Discrimination and Racism; North-South XXI; International Institute for Peace; American Association of Jurists; International Confederation of Free Trade Unions; Indian Movement "Tupaj Amaru"; Society for Threatened Peoples; International Association Against Torture; International Educational Development; and Himalayan Research and Cultural Foundation.
The Subcommission will reconvene at 3 p.m. when it is expected to begin debate on economic, social and cultural rights.
Documentation
Under this agenda item, the Subcommission had before it a working paper (E/CN.4/Sub.2/1998/5) on the concept of affirmative action prepared by Marc Bossuyet, Subcommissin expert, which examines, among other issues, provisions dealing with affirmative action, and the notion of affirmative action in the jurisprudence of the United States Supreme Court and the Court of Justice of the European Communities.
The working paper concludes, among other things, that a special rapporteur on affirmative action could be appointed and empowered to request the High Commissioner for Human Rights to contact Member States, international organisations and non-governmental organizations requesting them to send all relevant national documentation on the subject. The working paper also proposes that three more specific questions be considered: the relationship between the ban on discrimination and affirmative action; the limitations of affirmative action, and any differences arising in affirmative action according to criteria such as race, sex, language, which might differentiate between groups benefiting from such action.
Statements
GLORIA CHAMARTIN, of International Labour Office, said the ILO had been at the forefront of standard setting in the field of migrant workers. Only 41 countries had ratified ILO Convention 97 and 18 countries Convention 143 that dealt with the question of migrant workers. With this in mind, the ILO was carrying out a general survey on the obstacles to ratification with a view to examining the need for an eventual revision. The ILO was reaching the end of a project on combatting discrimination against migrant workers which focused on the need for legislation preventing discrimination against them. Supplementary measures had also been shown to be vital components of an anti-discrimination strategy. The conclusions of the study would be submitted to a tripartite meeting in October 1998. The ILO was also in the process of establishing a data base on the subject of international labour migration that was aimed at providing information to Ministries. It was hoped that a limited version of the data base would be available on the Internet later in the year. The ILO had supported the extensions of the working groups mandate during the fifty-fourth session of the Commission on Human Rights. The ILO sought to know if the working groups had found out about the numbers of violations against migrant workers in different countries as it remained deeply concerned by their plight.
J.J. KIRKYACHARIAN, of the Movement Against Racism and for Friendship Among Peoples, said victims of xenophobia were mainly to be found among migrant workers and their families; contemporary racism had many forms, and to understand the phenomenon it was necessary to understand the causes, which were social and often spontaneous; and spontaneous trends at least could be hampered or turned around. Affirmative action programmes often were quite ineffective, however; in the United States, for example, despite the extensive occurrence of such programmes, the vast majority of prisoners on death row were African-American. Greater protection for migrant workers clearly was needed; ratification of the relevant Convention was vital. Uncertainty and incoherence in migration policy helped give rise to xenophobic reactions; a global policy on integration of immigrants might be a good response to the extreme reactions of the far right and to the unscrupulous activities of opportunistic politicians.
A. TANAKA, of International Movement Against all Forms of Discrimination and Racism, said that as noted in the report of Subcommission expert Marc Bossuyt, the concept of affirmative action implied in itself that a number of fundamental issues needed to be clarified. The meaning of affirmative action was unclear as there were different uses of this notion in different parts of the world. The fact that the concept of affirmative action was used in different ways by different people in different countries created confusion, and therefore it would be useful if Mr. Bossuyt would examine this in his next report. Reasons to oppose affirmative action varied, but a common one was that affirmative action had become a tool to create and or promote reverse discrimination by a quota system. However, for the purpose of clarification, a distinction needed to be made between policies which imposed quotas and those which set targets. The Subcommission should continue its study on the concept of affirmative action, with the objective of making concrete recommendations on effective special measures for the elimination of structural discrimination and disadvantages resulting therefrom.
M. OSONA, of North-South XXI, said the international community and United Nations must deal with the untenable situation of 20,000 refugees from Chiapas who had lost their homes and goods because they had claimed their rights and had voted for the wrong party; their current living conditions were abysmal; paramilitary and counter-insurgency groups promoted by the army were a great threat to them. Many villages had been attacked in February of this year, and the army then had set up garrisons there; the population had been forcibly displaced and forced to join the paramilitary groups; anyone who refused was routed from the area and lost their property; people could not sow their fields because of their fear. The war refugees depended on aid from outside organizations for their survival, and recent fires in the region had destroyed the crops that they had managed to plant. The international community must provide assistance and deal with the situation of impunity that reigned in Chiapas; and the Mexican Government must be pressured to comply with the original peace agreement signed over the situation in Chiapas.
SYBILLE RUPPRECH, of the International Institute for Peace, said that migrant workers had made a significant contribution to the countries in which they worked. The oil-rich countries, many of whom were members of the Organization of the Islamic Conference, had launched a massive recruitment of foreign labour to support their programme of material modernisation. It was ironic that many of these countries that refused to let women drive had launched a huge programme to recruit young girls to work as domestic workers. These girls were then beaten, raped and not allowed any recourse to the law or their families. These were male-dominated societies, and employers had not even spared girls from other Islamic countries. Nepal had set up an organization to take care of girls returning from work in OIC countries. There was no escape for these girls. Their passports were withheld by their employers. The situation of migrant male workers was no different. Had the Subcommission or the Human Rights Commission ever thought of sending a mission to examine the condition of migrant workers in the oil-rich countries of the Gulf? No, because the world was too dependent on their oil. Their oil had choked the voices. The Subcommission should set an example, and examine the situation in these countries.
DESH PAL SINGH, of the International Institute for Non-Aligned Studies, said there was a lackadaisical attitude shown by nations towards eliminating racism and xenophobia, despite public proclamations to that effect; except for cloistered countries, given the current global economy, it was inevitable that most nations would have a group of persons of different cultures and backgrounds working together; countries that were supposedly proud of their freedom and "melting pot" backgrounds were paradoxically taking restrictive measures to block newcomers. The majority of advanced countries had appended reservations to the relevant Convention on the rights of migrants, yet these should have been the very countries to respect the Convention's rights in full; instead they were repeating the colonial and imperial attitudes they had shown in the past. Such discrimination was rooted in ignorance and the traditions of centuries; negative attitudes could be changed by education and first-hand knowledge of the useful work and services offered by migrants. There was a lot of talk but not much commitment to abolishing racial discrimination.
A. BERAN, of American Association of Jurists, said that in the hope of improving their living conditions, many people left their countries, however, they then continued to live in difficult situations. Peru had a high level of migration, partly as a result of the difficult economic situation in the country. Between 75 and 80 percent of the active population was unemployed or underemployed. There were 55,000 Peruvians living in Chile, 15,000 of whom were illegal. The European Union was closing itself off, and the Schengen Treaty was putting a wall around Europe. The case of children and adolescents who fled from war to Germany was pathetic because they were sent back to their home country as soon as they became adults. What was also little known was the dramatic situation of illegal immigrants in the United States. The Cuban Government had refused to take back Cubans who were the deported from the United States. The people in this situation remained detained nearly indefinitely, had no remedy before the courts, and became legally inexistent. The Subcommission should urge the German Government to adapt its legalisation to grant permanent resident rights to children when they reached the age of majority. The Working Group on Arbitrary Detention should be asked to address the question of legally non-existent persons, mainly immigrants who were held in detention in the United States.
A. BIRD BICUDI, of the International Confederation of Free Trade Unions, said there were some 42 million legal migrant workers around the world, and that did not even take into account the vast numbers of illegal migrants; as many as 6 million of them a year were victims of slave traders; Africans showed up day after day on the beaches of Sicily, destitute and desperate to escape their misery; Kosovo was the next Albania, with a massive flow of people trying to escape the war there. Migration was becoming steadily more female-dominated; half a million Sri Lankan women had emigrated to the Middle East, while the Philippines "exported" 12 women for every man; the great majority of either sex did unskilled work, which left them open to exploitation; the most recognizable case was domestic workers, vulnerable because of their isolation and direct dependence on their employers. It was important to bear in mind how much migrant workers benefited both their countries of destination and origin. To break the vicious circle of exploitation, declining wages and working conditions of such workers, there must be solidarity among workers and respect for international labour standards, but unfortunately Government support for the rights of migrant workers had not been forthcoming.
Mr. MARTINEZ, of Indian Movement "Tupac Amaru”,said the situation of migrant workers in Mexico was very sad. Because of the situation in their regions of origin, these people moved north towards the Mexican frontier where they were exploited as cheap labour and where they did not even have health protection. They were used to harvest crops in the farms of Northern Mexico. Most were subject to major discrimination and were not given medical attention, housing or food, despite the fact that the crops they harvested provided great profit to the owners of the ranches. Because they did not receive better salaries or conditions, these workers often looked towards the United States. Neither those who exploited their labour nor government bodies paid any attention to these people or to improving their condition. Around 200,000 workers each year managed to cross the border into the United States where they faced new problems. There was no respect for their fundamental rights as workers, and they were discriminated against and received low wages. Even when they got visas, they could be refused because of the colour of their skin. If this was the treatment they received when they reached the United States, how much worse was their treatment in other countries of Latin America. Tupac Amaru protested against the anti-Mexican migrant laws that were being discussed in several American states and against the retaining wall that was in place along the United States\Mexico frontier.
NADIR BEKIROV, of the Society for Threatened Peoples, said that representation of minorities in Government in multi-racial and multi-ethnic countries was vital if problems were to be avoided; in the past, in some cases, minorities had dominated to malign effect, as in the South Africa of apartheid; but more often the situation was the opposite, and under a democratic system majorities overwhelmed minorities, even though democracy was a vital and important institution. There were problems with mainlanders dominating ethnically different islanders (such as the Kanarians in Spain), with majorities overwhelming racially different neighbouring communities (as with the Adibasi in India), and with descendants of colonists dominating indigenous peoples (as in many cases in the Americas and Oceania). A well-known problem was that of Kosova and Sanjak, where the Serbian Government had reduced the political autonomy of Albanians and Muslims to nothing. In the Crimea, meanwhile, the "victim" was an entire people -- the Crimean Tartars, who were of different racial background than Russians and Ukrainians and had lost their representation in the regional Parliament.
ROGER WAREHAM, of the International Association against Torture and the Twelfth of December Movement, said that the fall of apartheid in South Africa did not mean that racism had been eliminated. Racism opened up the Western European Organization group to areas of inquiry that subjected them to the criticism that they usually dispensed to their former colonies. This could be seen in the struggle to hold the World Conference on Racism, and the opposition to this meeting from countries of the WEO group. It was clear that racism was on the rise. In Australia, the ultra right One Nation Party had the support of 12 percent of Australians; in France, two out of every five people in a newspaper poll admitted holding racist and xenophobic views in some form, twice the rate in either Britain or Germany. Members of Moscow's Black, Asian and Muslim communities lived in fear of racist attacks by neo-Nazi skinheads; in the United Kingdom, a university professor had been attacked in broad daylight because he was Black, while in Germany, racist violence had risen by 25 percent in 1997. In the United States, even wealth, popularity and status could not protect people of colour from racism. There were stark differences in a variety of medical procedures given to Blacks and Whites in the United States, and according to a new report, African-Americans owned about 8 cents of wealth for every dollar of wealth owned by Whites. Racism was the constant companion of capitalism, and there was a link between increases in racism and periods of economic dislocation. The Subcommission should carry out a study on the relation between economic crises and the rise of institutional and individual racism. The Subcommission should also provide definitional clarity to ensure that racism and ethnic prejudice conflict would be addressed as separate issues.
MRS. PARKER, of International Educational Development, said the United States was among many countries, unfortunately, to fail to ratify the International Convention on the Protection of Migrant Workers and Members of Their Families; it was inexcusable; none of the California wines, or strawberries, or lettuces could be produced or harvested without migrant labour, especially by Mexican nationals; failure to ratify the Convention was due in part to the efforts of certain groups in the United States which had carried out a viciously anti-Mexican/anti-migrant campaign in which migrants were made scapegoats for other national ills. The Subcommission should appeal to the United States to ratify the Convention as soon as possible. Racism and xenophobia also was directed against Arabs and Muslims by the United States -- and the intense Government campaign against Iraqis had had a profound chilling effect on the natural solidarity human-rights organizations usually would feel with Iraqi human-rights victims. The U.S.-dominated Sanctions Committee of the United Nations had denied practically all offers of humanitarian assistance in actions that were beyond its mandate; there also was U.S. xenophobia in its irrational campaign against Cuba. Also of concern was the intense anti-Tamil propaganda carried out by the Government of Sri Lanka.
G. GIRMA, of The African Association of Education for Development, said it had not thought that racism would advance so much across Europe. It was necessary to have more than just a year against racism to redress the situation. It was perhaps time to address the question of local votes for immigrants as has been done in the Nordic countries. The Subcommission should support the World Conference against Racism so that it would be successful. The fight against racism and xenophobia had to be everyone's fight especially the fight of those who could see far enough to prevent racial conflict. The year 2000 should not begin without at least a gesture that would demonstrate the desire to eliminate racial hatred.
FIRDOUS SYED, of Himalayan Research and Cultural Foundation, said that despite widespread ratification of the relevant conventions, xenophobia remained widespread and was a grave threat to human rights; neither the United Nations nor the Commission on Human Rights seemed to be aware of or to care about new forms for fostering xenophobia; one was the so-called "Jihad" on the part of some so-called Muslim Mujahideen in some parts of the world; the Jihad had no religious sanctity and was not approved under Islamic tenets, and yet divisions were created under it and massacres were carried out in its name. In Jammu and Kashmir, a Jihad was being imposed by Pakistan -- groups were being sent there to indulge in looting and massacres of the non-Muslim population; even Muslims who did not agree with these activities were massacred. The new policy created by Pakistan obviously was aimed at creating xenophobia in the minds of one religious community against another; the Subcommission must pressure Pakistan to stop t
his dangerous trend.
BULENT MERIC (Turkey) said that fascism, discrimination and related intolerance continued to exist by adopting subtle new forms; the situation in this area required a more pro-active approach. Racism and racial discrimination in their contemporary forms were among the most serious violations of human rights, and needed to be combatted by all available means. Despite the sensitivity of Western European countries on protecting and promoting human rights all over the world, discrimination continued to exist in Europe. Migrant workers and their families were one of the most vulnerable groups to the racism of the contemporary world, and in this context, Turkey supported giving permanent status to the Working Group on Human Rights of Migrants. The misuse of new communications technologies, including the Internet, had become a new and complex element of dissemination of hate speech, and all States had to penalize such harmful propaganda. Also of concern was the rise of racist and xenophobic ideas in the political field and this tendency had to be checked to prevent it providing a solid base for making racism a legitimate official doctrine. The Turkish Government hoped to see concrete results from the World Conference to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance to be held in the year 2001.
The representative from Mexico said the alarming proliferation of xenophobic acts in various regions made it essential that elimination of racial discrimination received priority attention by the Subcommission; migration had been vital years ago for the development of countries that were now the most powerful in the world; today, however, these same powers were closing their doors in an aggressive manner against migration that came in many cases from former colonies. Migrants were always a vulnerable group, and the recent increase in violence against them made an international regime to protect them a vital necessity; Mexico was promoting the prompt entry into force of the International Convention on the Protection of Migrant Workers and Members of Their Families, and it had campaigned energetically for ratification of the Convention. A working group to investigate causes of migratory problems had distributed a questionnaire that had drawn lively responses; and some responses from developed countries had recognized quite frankly that there were serious problems with violations of migrants' rights; Mexico had announced a series of migratory-facilitating measures to smooth the flow of migrants in the region, and was seeking other realistic, long-term solutions to problems.
AHMED CHOWDHURY (Bangladesh) said that in the context of globalization of the world's economy, it was increasingly urgent to articulate an effective regime for international migration providing protection for the rights of all migrants. Regulatory measures adopted by certain countries in serving the interest of their domestic labour force were barriers against free movement of labour. Especially concerning was the observation of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination and Xenophobia that one of the major problems in the final years of the millennium was the increasing discrimination against foreigners in host countries. The focus had to be on education and particularly on teachings on diversity and tolerance. Absence of comprehensive policies on organised migration would continue to make human trafficking a lucrative trade. This trade had to be combatted by coordinating actions in sending, receiving and transit countries. Migration and related issues of migrant workers should move to centre stage; the United Nations and relevant specialised agencies should work towards respect of human dignity and well-being of migrants. During this year, Bangladesh would ratify six international human rights instruments, one of which was the Convention on Migrant Workers.
DAVID WEISSBRODT, Subcommission expert, said the Committee on Elimination of Racial Discrimination (CERD) had suggested several topics for possible Subcommission study, among them affirmative action; Subcommission member Marc Bossuyt unfortunately was ill but had done an able job of introducing the topic. The Subcommission should recommend that the Commission on Human Rights appoint Mr. Bossuyt as Special Rapporteur to prepare a full study on the concept and practice of affirmative action. Another proposed issue was the possible removal of references to race from national and international legal texts; he had prepared a written comment on the subject, Mr. Weissbrodt said; in general he had concluded that the focus must be on eliminating racism rather than on use of the term race; in order to remedy the effects of racism, it was necessary that domestic laws and international instruments take account of population data which were desegregated along racial and ethnic lines; such information was crucial to measuring fulfilment by States of their obligations, and to measuring indirect discrimination. Until race-based discrimination was in fact ended, the elimination of "race" from the United Nations Charter and other international instruments would be premature, counter-productive, and irresponsible.
A study on violations of the human rights of non-citizens proposed by CERD also was worth pursuing, Mr. Weissbrodt said; in a written comment on this topic he had found that distinctions between non-citizens and citizens violated principles of equality and non-discrimination; often there appeared to be a racial component to this discrimination; a study on the topic carried out in 1977 did not reflect significant developments which had occurred since. The Commission had called on the Subcommission to enhance cooperation with treaty bodies; CERD had requested this study; he thought the Subcommission should begin the process by authorizing a preparatory document on the feasibility of a study on the rights of non-citizens.
F. J. HAMPSON, Subcommission expert, hoped the scope of a study on citizenship should examine elements that contributed to denying citizenship. When migrant workers stayed for long periods in countries without being granted citizenship, they remained vulnerable. Any study that the Subcommission would authorise should consider the advantages of dual citizenship in all contexts. This would provide long term migrant workers with some protection.
ASBJORN EIDE, Subcommission expert, said he supported the calls for a study on the rights of non-citizens and on allocation of citizenship. International requirements on the allocation of citizenship had to be further clarified; the topic had become an issue, for example, after the breakup of the former Soviet Union and the former Yugoslavia; the issue really should be examined, and the impact of the human-rights requirement on the question of allocation of citizenship had to be made more forcefully clear to States. It was important that basic human rights be provided to all persons on the territory of a State, whether or not they were citizens.
L. JOINET, Subcommission expert, noted that relating to the criteria for citizenship: it was first of all a matter of internal legislation. Everyone had the right to have his legal personality recognised everywhere; and taking into account the movement of people across borders, citizenship became an increasingly important element. The difficulty came when there was large mobility outside the country, and then it was difficult to determine who held citizenship. If a study were to be carried out, the question of domestic legislation in this sphere should be considered. Citizenship was an integral part of legal personality and it was important to establish the criteria that would determine whether national legislation was consistent with other elements.
VLADIMIR KARTASHKIN, Subcommission expert, said he supported the proposal for a study of the rights of non-citizens, but perhaps there was a different way of formulating this investigation which would make clearer the aspects that would be addressed in such a study; suppose it was worded "the rights of persons who are not citizens of the countries in which they live". It was seen that countries did discriminate against persons who were not citizens of the countries in which they lived, and there had been some suggested solutions -- dual citizenship, for example, how it would be accorded and so on. He thought such a wording would take into account all the issues that had been briefly discussed here, and all would be covered.
HALIMA EMBAREK WARZAZI, Subcommission expert, said that there had been a study that finally produced a declaration on the rights of non-citizens. Passing this declaration had been opposed by the Western group. She supported the statement by the NGO that had stated that it should be the States where migrants sought employment that needed to ratify the convention. With regards to the proposal of a study on the rights of non-citizens; she supported a study on the effects that the idea of dual citizenship would have on migrants. It was not possible however, to have a study on a subject that had already been the subject of a declaration.
DAVID WEISSBRODT, Subcommission expert, said each of the comments made by the other experts who had spoken had indicated how complex the subject of non-citizenship was, and how carefully focused a study on the rights of non-citizens would have to be; he didn't know if a new study should be characterized as an update of the 1977 study, or if some other approach should be taken, but he would discuss the matter with his colleagues and formulate a proposal taking their concerns into account.
ASBJORN EIDE, Subcommission expert said that practice within the treaty bodies had developed since the declaration that needed to be addressed. The Working Group on Minorities had decided to have a working paper on minorities and citizenship. The discussion had shown that there was a broad cluster of issues that were important for human rights, and a working paper would be useful to identify the dimensions of the problems.
HR/SC/98/10
11 August 1998
The Subcommission on Prevention of Discrimination and Protection of Minorities started its discussion on racial discrimination this morning, with non-governmental organizations (NGOs) calling for greater respect for the rights of migrant workers and steps to prevent alleged systematic discrimination against them in various parts of the world.
A representative for the International Institute for Non-Aligned Studies contended -- in a statement echoed by several other groups -- that countries talked a great deal about abolishing discrimination but were "lackadaisical" about actually doing anything.
A spokesman for the International Confederation of Free Trade Unions asserted that to break a vicious circle of exploitation and declining wages and working conditions of migrant workers, there must be solidarity among workers and respect for international labour standards. International Educational Development claimed racism and xenophobia were behind the United States-backed economic embargoes against Iraq and Cuba.
Confusion about whether the meeting was public or private -- the signs outside the hall indicated a closed session until shortly after 10 a.m., and conference staff said they had not been informed one way or the other -- meant that many NGOs were absent when their turns to speak came.
Subcommission experts or alternates David Weissbrodt, Francoise Jane Hampson, Asbjorn Eide, Louis Joinet, Vladimir Kartashkin, and Halima Embarek Warzazi spoke.
Observers from Turkey, Mexico, and Bangladesh addressed the meeting.
Representatives of the International Labour Office and the following NGOs also delivered statements: Movement Against Racism and for Friendship Among Peoples; International Movement against All Forms of Discrimination and Racism; North-South XXI; International Institute for Peace; American Association of Jurists; International Confederation of Free Trade Unions; Indian Movement "Tupaj Amaru"; Society for Threatened Peoples; International Association Against Torture; International Educational Development; and Himalayan Research and Cultural Foundation.
The Subcommission will reconvene at 3 p.m. when it is expected to begin debate on economic, social and cultural rights.
Documentation
Under this agenda item, the Subcommission had before it a working paper (E/CN.4/Sub.2/1998/5) on the concept of affirmative action prepared by Marc Bossuyet, Subcommissin expert, which examines, among other issues, provisions dealing with affirmative action, and the notion of affirmative action in the jurisprudence of the United States Supreme Court and the Court of Justice of the European Communities.
The working paper concludes, among other things, that a special rapporteur on affirmative action could be appointed and empowered to request the High Commissioner for Human Rights to contact Member States, international organisations and non-governmental organizations requesting them to send all relevant national documentation on the subject. The working paper also proposes that three more specific questions be considered: the relationship between the ban on discrimination and affirmative action; the limitations of affirmative action, and any differences arising in affirmative action according to criteria such as race, sex, language, which might differentiate between groups benefiting from such action.
Statements
GLORIA CHAMARTIN, of International Labour Office, said the ILO had been at the forefront of standard setting in the field of migrant workers. Only 41 countries had ratified ILO Convention 97 and 18 countries Convention 143 that dealt with the question of migrant workers. With this in mind, the ILO was carrying out a general survey on the obstacles to ratification with a view to examining the need for an eventual revision. The ILO was reaching the end of a project on combatting discrimination against migrant workers which focused on the need for legislation preventing discrimination against them. Supplementary measures had also been shown to be vital components of an anti-discrimination strategy. The conclusions of the study would be submitted to a tripartite meeting in October 1998. The ILO was also in the process of establishing a data base on the subject of international labour migration that was aimed at providing information to Ministries. It was hoped that a limited version of the data base would be available on the Internet later in the year. The ILO had supported the extensions of the working groups mandate during the fifty-fourth session of the Commission on Human Rights. The ILO sought to know if the working groups had found out about the numbers of violations against migrant workers in different countries as it remained deeply concerned by their plight.
J.J. KIRKYACHARIAN, of the Movement Against Racism and for Friendship Among Peoples, said victims of xenophobia were mainly to be found among migrant workers and their families; contemporary racism had many forms, and to understand the phenomenon it was necessary to understand the causes, which were social and often spontaneous; and spontaneous trends at least could be hampered or turned around. Affirmative action programmes often were quite ineffective, however; in the United States, for example, despite the extensive occurrence of such programmes, the vast majority of prisoners on death row were African-American. Greater protection for migrant workers clearly was needed; ratification of the relevant Convention was vital. Uncertainty and incoherence in migration policy helped give rise to xenophobic reactions; a global policy on integration of immigrants might be a good response to the extreme reactions of the far right and to the unscrupulous activities of opportunistic politicians.
A. TANAKA, of International Movement Against all Forms of Discrimination and Racism, said that as noted in the report of Subcommission expert Marc Bossuyt, the concept of affirmative action implied in itself that a number of fundamental issues needed to be clarified. The meaning of affirmative action was unclear as there were different uses of this notion in different parts of the world. The fact that the concept of affirmative action was used in different ways by different people in different countries created confusion, and therefore it would be useful if Mr. Bossuyt would examine this in his next report. Reasons to oppose affirmative action varied, but a common one was that affirmative action had become a tool to create and or promote reverse discrimination by a quota system. However, for the purpose of clarification, a distinction needed to be made between policies which imposed quotas and those which set targets. The Subcommission should continue its study on the concept of affirmative action, with the objective of making concrete recommendations on effective special measures for the elimination of structural discrimination and disadvantages resulting therefrom.
M. OSONA, of North-South XXI, said the international community and United Nations must deal with the untenable situation of 20,000 refugees from Chiapas who had lost their homes and goods because they had claimed their rights and had voted for the wrong party; their current living conditions were abysmal; paramilitary and counter-insurgency groups promoted by the army were a great threat to them. Many villages had been attacked in February of this year, and the army then had set up garrisons there; the population had been forcibly displaced and forced to join the paramilitary groups; anyone who refused was routed from the area and lost their property; people could not sow their fields because of their fear. The war refugees depended on aid from outside organizations for their survival, and recent fires in the region had destroyed the crops that they had managed to plant. The international community must provide assistance and deal with the situation of impunity that reigned in Chiapas; and the Mexican Government must be pressured to comply with the original peace agreement signed over the situation in Chiapas.
SYBILLE RUPPRECH, of the International Institute for Peace, said that migrant workers had made a significant contribution to the countries in which they worked. The oil-rich countries, many of whom were members of the Organization of the Islamic Conference, had launched a massive recruitment of foreign labour to support their programme of material modernisation. It was ironic that many of these countries that refused to let women drive had launched a huge programme to recruit young girls to work as domestic workers. These girls were then beaten, raped and not allowed any recourse to the law or their families. These were male-dominated societies, and employers had not even spared girls from other Islamic countries. Nepal had set up an organization to take care of girls returning from work in OIC countries. There was no escape for these girls. Their passports were withheld by their employers. The situation of migrant male workers was no different. Had the Subcommission or the Human Rights Commission ever thought of sending a mission to examine the condition of migrant workers in the oil-rich countries of the Gulf? No, because the world was too dependent on their oil. Their oil had choked the voices. The Subcommission should set an example, and examine the situation in these countries.
DESH PAL SINGH, of the International Institute for Non-Aligned Studies, said there was a lackadaisical attitude shown by nations towards eliminating racism and xenophobia, despite public proclamations to that effect; except for cloistered countries, given the current global economy, it was inevitable that most nations would have a group of persons of different cultures and backgrounds working together; countries that were supposedly proud of their freedom and "melting pot" backgrounds were paradoxically taking restrictive measures to block newcomers. The majority of advanced countries had appended reservations to the relevant Convention on the rights of migrants, yet these should have been the very countries to respect the Convention's rights in full; instead they were repeating the colonial and imperial attitudes they had shown in the past. Such discrimination was rooted in ignorance and the traditions of centuries; negative attitudes could be changed by education and first-hand knowledge of the useful work and services offered by migrants. There was a lot of talk but not much commitment to abolishing racial discrimination.
A. BERAN, of American Association of Jurists, said that in the hope of improving their living conditions, many people left their countries, however, they then continued to live in difficult situations. Peru had a high level of migration, partly as a result of the difficult economic situation in the country. Between 75 and 80 percent of the active population was unemployed or underemployed. There were 55,000 Peruvians living in Chile, 15,000 of whom were illegal. The European Union was closing itself off, and the Schengen Treaty was putting a wall around Europe. The case of children and adolescents who fled from war to Germany was pathetic because they were sent back to their home country as soon as they became adults. What was also little known was the dramatic situation of illegal immigrants in the United States. The Cuban Government had refused to take back Cubans who were the deported from the United States. The people in this situation remained detained nearly indefinitely, had no remedy before the courts, and became legally inexistent. The Subcommission should urge the German Government to adapt its legalisation to grant permanent resident rights to children when they reached the age of majority. The Working Group on Arbitrary Detention should be asked to address the question of legally non-existent persons, mainly immigrants who were held in detention in the United States.
A. BIRD BICUDI, of the International Confederation of Free Trade Unions, said there were some 42 million legal migrant workers around the world, and that did not even take into account the vast numbers of illegal migrants; as many as 6 million of them a year were victims of slave traders; Africans showed up day after day on the beaches of Sicily, destitute and desperate to escape their misery; Kosovo was the next Albania, with a massive flow of people trying to escape the war there. Migration was becoming steadily more female-dominated; half a million Sri Lankan women had emigrated to the Middle East, while the Philippines "exported" 12 women for every man; the great majority of either sex did unskilled work, which left them open to exploitation; the most recognizable case was domestic workers, vulnerable because of their isolation and direct dependence on their employers. It was important to bear in mind how much migrant workers benefited both their countries of destination and origin. To break the vicious circle of exploitation, declining wages and working conditions of such workers, there must be solidarity among workers and respect for international labour standards, but unfortunately Government support for the rights of migrant workers had not been forthcoming.
Mr. MARTINEZ, of Indian Movement "Tupac Amaru”,said the situation of migrant workers in Mexico was very sad. Because of the situation in their regions of origin, these people moved north towards the Mexican frontier where they were exploited as cheap labour and where they did not even have health protection. They were used to harvest crops in the farms of Northern Mexico. Most were subject to major discrimination and were not given medical attention, housing or food, despite the fact that the crops they harvested provided great profit to the owners of the ranches. Because they did not receive better salaries or conditions, these workers often looked towards the United States. Neither those who exploited their labour nor government bodies paid any attention to these people or to improving their condition. Around 200,000 workers each year managed to cross the border into the United States where they faced new problems. There was no respect for their fundamental rights as workers, and they were discriminated against and received low wages. Even when they got visas, they could be refused because of the colour of their skin. If this was the treatment they received when they reached the United States, how much worse was their treatment in other countries of Latin America. Tupac Amaru protested against the anti-Mexican migrant laws that were being discussed in several American states and against the retaining wall that was in place along the United States\Mexico frontier.
NADIR BEKIROV, of the Society for Threatened Peoples, said that representation of minorities in Government in multi-racial and multi-ethnic countries was vital if problems were to be avoided; in the past, in some cases, minorities had dominated to malign effect, as in the South Africa of apartheid; but more often the situation was the opposite, and under a democratic system majorities overwhelmed minorities, even though democracy was a vital and important institution. There were problems with mainlanders dominating ethnically different islanders (such as the Kanarians in Spain), with majorities overwhelming racially different neighbouring communities (as with the Adibasi in India), and with descendants of colonists dominating indigenous peoples (as in many cases in the Americas and Oceania). A well-known problem was that of Kosova and Sanjak, where the Serbian Government had reduced the political autonomy of Albanians and Muslims to nothing. In the Crimea, meanwhile, the "victim" was an entire people -- the Crimean Tartars, who were of different racial background than Russians and Ukrainians and had lost their representation in the regional Parliament.
ROGER WAREHAM, of the International Association against Torture and the Twelfth of December Movement, said that the fall of apartheid in South Africa did not mean that racism had been eliminated. Racism opened up the Western European Organization group to areas of inquiry that subjected them to the criticism that they usually dispensed to their former colonies. This could be seen in the struggle to hold the World Conference on Racism, and the opposition to this meeting from countries of the WEO group. It was clear that racism was on the rise. In Australia, the ultra right One Nation Party had the support of 12 percent of Australians; in France, two out of every five people in a newspaper poll admitted holding racist and xenophobic views in some form, twice the rate in either Britain or Germany. Members of Moscow's Black, Asian and Muslim communities lived in fear of racist attacks by neo-Nazi skinheads; in the United Kingdom, a university professor had been attacked in broad daylight because he was Black, while in Germany, racist violence had risen by 25 percent in 1997. In the United States, even wealth, popularity and status could not protect people of colour from racism. There were stark differences in a variety of medical procedures given to Blacks and Whites in the United States, and according to a new report, African-Americans owned about 8 cents of wealth for every dollar of wealth owned by Whites. Racism was the constant companion of capitalism, and there was a link between increases in racism and periods of economic dislocation. The Subcommission should carry out a study on the relation between economic crises and the rise of institutional and individual racism. The Subcommission should also provide definitional clarity to ensure that racism and ethnic prejudice conflict would be addressed as separate issues.
MRS. PARKER, of International Educational Development, said the United States was among many countries, unfortunately, to fail to ratify the International Convention on the Protection of Migrant Workers and Members of Their Families; it was inexcusable; none of the California wines, or strawberries, or lettuces could be produced or harvested without migrant labour, especially by Mexican nationals; failure to ratify the Convention was due in part to the efforts of certain groups in the United States which had carried out a viciously anti-Mexican/anti-migrant campaign in which migrants were made scapegoats for other national ills. The Subcommission should appeal to the United States to ratify the Convention as soon as possible. Racism and xenophobia also was directed against Arabs and Muslims by the United States -- and the intense Government campaign against Iraqis had had a profound chilling effect on the natural solidarity human-rights organizations usually would feel with Iraqi human-rights victims. The U.S.-dominated Sanctions Committee of the United Nations had denied practically all offers of humanitarian assistance in actions that were beyond its mandate; there also was U.S. xenophobia in its irrational campaign against Cuba. Also of concern was the intense anti-Tamil propaganda carried out by the Government of Sri Lanka.
G. GIRMA, of The African Association of Education for Development, said it had not thought that racism would advance so much across Europe. It was necessary to have more than just a year against racism to redress the situation. It was perhaps time to address the question of local votes for immigrants as has been done in the Nordic countries. The Subcommission should support the World Conference against Racism so that it would be successful. The fight against racism and xenophobia had to be everyone's fight especially the fight of those who could see far enough to prevent racial conflict. The year 2000 should not begin without at least a gesture that would demonstrate the desire to eliminate racial hatred.
FIRDOUS SYED, of Himalayan Research and Cultural Foundation, said that despite widespread ratification of the relevant conventions, xenophobia remained widespread and was a grave threat to human rights; neither the United Nations nor the Commission on Human Rights seemed to be aware of or to care about new forms for fostering xenophobia; one was the so-called "Jihad" on the part of some so-called Muslim Mujahideen in some parts of the world; the Jihad had no religious sanctity and was not approved under Islamic tenets, and yet divisions were created under it and massacres were carried out in its name. In Jammu and Kashmir, a Jihad was being imposed by Pakistan -- groups were being sent there to indulge in looting and massacres of the non-Muslim population; even Muslims who did not agree with these activities were massacred. The new policy created by Pakistan obviously was aimed at creating xenophobia in the minds of one religious community against another; the Subcommission must pressure Pakistan to stop t
his dangerous trend.
BULENT MERIC (Turkey) said that fascism, discrimination and related intolerance continued to exist by adopting subtle new forms; the situation in this area required a more pro-active approach. Racism and racial discrimination in their contemporary forms were among the most serious violations of human rights, and needed to be combatted by all available means. Despite the sensitivity of Western European countries on protecting and promoting human rights all over the world, discrimination continued to exist in Europe. Migrant workers and their families were one of the most vulnerable groups to the racism of the contemporary world, and in this context, Turkey supported giving permanent status to the Working Group on Human Rights of Migrants. The misuse of new communications technologies, including the Internet, had become a new and complex element of dissemination of hate speech, and all States had to penalize such harmful propaganda. Also of concern was the rise of racist and xenophobic ideas in the political field and this tendency had to be checked to prevent it providing a solid base for making racism a legitimate official doctrine. The Turkish Government hoped to see concrete results from the World Conference to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance to be held in the year 2001.
The representative from Mexico said the alarming proliferation of xenophobic acts in various regions made it essential that elimination of racial discrimination received priority attention by the Subcommission; migration had been vital years ago for the development of countries that were now the most powerful in the world; today, however, these same powers were closing their doors in an aggressive manner against migration that came in many cases from former colonies. Migrants were always a vulnerable group, and the recent increase in violence against them made an international regime to protect them a vital necessity; Mexico was promoting the prompt entry into force of the International Convention on the Protection of Migrant Workers and Members of Their Families, and it had campaigned energetically for ratification of the Convention. A working group to investigate causes of migratory problems had distributed a questionnaire that had drawn lively responses; and some responses from developed countries had recognized quite frankly that there were serious problems with violations of migrants' rights; Mexico had announced a series of migratory-facilitating measures to smooth the flow of migrants in the region, and was seeking other realistic, long-term solutions to problems.
AHMED CHOWDHURY (Bangladesh) said that in the context of globalization of the world's economy, it was increasingly urgent to articulate an effective regime for international migration providing protection for the rights of all migrants. Regulatory measures adopted by certain countries in serving the interest of their domestic labour force were barriers against free movement of labour. Especially concerning was the observation of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination and Xenophobia that one of the major problems in the final years of the millennium was the increasing discrimination against foreigners in host countries. The focus had to be on education and particularly on teachings on diversity and tolerance. Absence of comprehensive policies on organised migration would continue to make human trafficking a lucrative trade. This trade had to be combatted by coordinating actions in sending, receiving and transit countries. Migration and related issues of migrant workers should move to centre stage; the United Nations and relevant specialised agencies should work towards respect of human dignity and well-being of migrants. During this year, Bangladesh would ratify six international human rights instruments, one of which was the Convention on Migrant Workers.
DAVID WEISSBRODT, Subcommission expert, said the Committee on Elimination of Racial Discrimination (CERD) had suggested several topics for possible Subcommission study, among them affirmative action; Subcommission member Marc Bossuyt unfortunately was ill but had done an able job of introducing the topic. The Subcommission should recommend that the Commission on Human Rights appoint Mr. Bossuyt as Special Rapporteur to prepare a full study on the concept and practice of affirmative action. Another proposed issue was the possible removal of references to race from national and international legal texts; he had prepared a written comment on the subject, Mr. Weissbrodt said; in general he had concluded that the focus must be on eliminating racism rather than on use of the term race; in order to remedy the effects of racism, it was necessary that domestic laws and international instruments take account of population data which were desegregated along racial and ethnic lines; such information was crucial to measuring fulfilment by States of their obligations, and to measuring indirect discrimination. Until race-based discrimination was in fact ended, the elimination of "race" from the United Nations Charter and other international instruments would be premature, counter-productive, and irresponsible.
A study on violations of the human rights of non-citizens proposed by CERD also was worth pursuing, Mr. Weissbrodt said; in a written comment on this topic he had found that distinctions between non-citizens and citizens violated principles of equality and non-discrimination; often there appeared to be a racial component to this discrimination; a study on the topic carried out in 1977 did not reflect significant developments which had occurred since. The Commission had called on the Subcommission to enhance cooperation with treaty bodies; CERD had requested this study; he thought the Subcommission should begin the process by authorizing a preparatory document on the feasibility of a study on the rights of non-citizens.
F. J. HAMPSON, Subcommission expert, hoped the scope of a study on citizenship should examine elements that contributed to denying citizenship. When migrant workers stayed for long periods in countries without being granted citizenship, they remained vulnerable. Any study that the Subcommission would authorise should consider the advantages of dual citizenship in all contexts. This would provide long term migrant workers with some protection.
ASBJORN EIDE, Subcommission expert, said he supported the calls for a study on the rights of non-citizens and on allocation of citizenship. International requirements on the allocation of citizenship had to be further clarified; the topic had become an issue, for example, after the breakup of the former Soviet Union and the former Yugoslavia; the issue really should be examined, and the impact of the human-rights requirement on the question of allocation of citizenship had to be made more forcefully clear to States. It was important that basic human rights be provided to all persons on the territory of a State, whether or not they were citizens.
L. JOINET, Subcommission expert, noted that relating to the criteria for citizenship: it was first of all a matter of internal legislation. Everyone had the right to have his legal personality recognised everywhere; and taking into account the movement of people across borders, citizenship became an increasingly important element. The difficulty came when there was large mobility outside the country, and then it was difficult to determine who held citizenship. If a study were to be carried out, the question of domestic legislation in this sphere should be considered. Citizenship was an integral part of legal personality and it was important to establish the criteria that would determine whether national legislation was consistent with other elements.
VLADIMIR KARTASHKIN, Subcommission expert, said he supported the proposal for a study of the rights of non-citizens, but perhaps there was a different way of formulating this investigation which would make clearer the aspects that would be addressed in such a study; suppose it was worded "the rights of persons who are not citizens of the countries in which they live". It was seen that countries did discriminate against persons who were not citizens of the countries in which they lived, and there had been some suggested solutions -- dual citizenship, for example, how it would be accorded and so on. He thought such a wording would take into account all the issues that had been briefly discussed here, and all would be covered.
HALIMA EMBAREK WARZAZI, Subcommission expert, said that there had been a study that finally produced a declaration on the rights of non-citizens. Passing this declaration had been opposed by the Western group. She supported the statement by the NGO that had stated that it should be the States where migrants sought employment that needed to ratify the convention. With regards to the proposal of a study on the rights of non-citizens; she supported a study on the effects that the idea of dual citizenship would have on migrants. It was not possible however, to have a study on a subject that had already been the subject of a declaration.
DAVID WEISSBRODT, Subcommission expert, said each of the comments made by the other experts who had spoken had indicated how complex the subject of non-citizenship was, and how carefully focused a study on the rights of non-citizens would have to be; he didn't know if a new study should be characterized as an update of the 1977 study, or if some other approach should be taken, but he would discuss the matter with his colleagues and formulate a proposal taking their concerns into account.
ASBJORN EIDE, Subcommission expert said that practice within the treaty bodies had developed since the declaration that needed to be addressed. The Working Group on Minorities had decided to have a working paper on minorities and citizenship. The discussion had shown that there was a broad cluster of issues that were important for human rights, and a working paper would be useful to identify the dimensions of the problems.