Minorities and Indigenous Peoples' Protection: Practice of UN Treaty Bodies in 2003

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  • 1 Secretary of the Committee on the Elimination of Racial Discrimination. The opinions expressed in this paper are the author's and do not reflect those of the United Nations. The author is grateful to Ms. Femke Wegman and Ms. Nassima Talbi for their research assistance.

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  • 1 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Declaration and Programme of Action, United Nations, 2002, at http://www.un.org/WCAR/ durban.pdf. See in particular paras. 39-43, 66-8, 73 of the Declaration, and paras. 15-23, 39-44, 45-50, 203-9 of the Programme of Action. 2 The Committee on the Elimination of Racial Discrimination (CERD/C) decided at its 60th ses- sion to include a standard paragraph in all its concluding observations "recommend[ing] that the State party take into account the relevant parts of the Durban Declaration and Programme of Action when implementing the Convention in the domestic legal order, in particular in respect of articles 2 to 7 of the Convention, and that it include in its next periodic report information on action plans or other measures taken to implement the Durban Declaration and Programme of Action at the national levels." " 3 See Article 27 CCPR and Article 30 CRC, to be read in conjunction with Article 17 on the mass media and the child and Article 29 on purposes of education.

  • 4 Article 1 provides that "the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin." 5 Reference will be made in this review to the activities of CERD/C, the Human Rights Commit- tee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW/ C), the Committee on the Rights of the Child (CRC/C), the Committee on Economic, Social and Cultural Rights (CESCR/C) and the Committee against Torture (CAT/C). 6 Reference will be made distinctly throughout this review to members of minorities and to mem- bers of indigenous peoples so as to reflect the specificities characterizing the situation of indig- enous peoples as well as their entitlement to particular rights. See, on this issue, the working paper on the relationship and distinction between the rights of persons belonging to minorities and those of indigenous peoples written by Ms. Erika Daes and Mr. Asbjorn Eide for the 52^a session of the Sub-Commission on the Promotion and Protection of Human Rights in 2000, E/CN.4/Sub.2/2000/10. 7 On the functions served by reporting, see Philip Alston, "The Purposes of Reporting", in United Nations, Manual on Human Rights Reporting (Geneva, 1997), 19-24. 8 Each treaty body has examined the following number of reports in 2003: HRC (24); CERD/ C (24), CEDAW/C (16), CAT/C (14), CRC/C (28) and CESCR (11). Only two concluding observations adopted by CAT/C in 2003 made brief reference to members of ethnic minorities (Slovenia, CAT/C/CR/30/4 and Moldova CAT/C/CR/30/7).

  • 9 UN Doc. A/58/18, para. 306. 10 Ibid., para. 309. 11 Ibid., para. 308. 12 Ibid. 13 Ibid., para. 234.

  • 14 HRI/GEN/1/Rev.6, 200, General Recommendation 8 concerning the interpretation and appli- cation of Article 1(1) and (4) of the Convention. 15 Similarly, in its General Comment 23 on Article 7 CCPR, the HRC has highlighted the fact that "some states who claim that they do not discriminate on the grounds of ethnicity, language or religion, wrongly contend, on that basis alone, that they have no minorities". The Committee has also stated that the existence of a minority "does not depend on a decision" by a state but "requires to be established by objective criteria". See General Comment 23, HRI/GEN/l/Rev.6, 158-61, para. 5.2. When considering individual complaints, the Human Rights Committee has confirmed this principle. See for instance HRC, Communication No. 24/77, Lovelace v. Canada in Human Rights Committee: Selected Decisions, vol. I, 83-87 (New York, United Nations, 1985). 16 UN Doc. A/58/18, para. 404. 17 See for the views expressed by different members of the Committee, CERD/C/SR.1609. 18 According to Article 1 of the Convention, the term racial discrimination "shall mean any dis- tinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin ...".

  • 19 UN Doc. A/58/18, para. 428. 20 Ibid., para. 539. 21 See General Comment 23 on the rights of minorities to enjoy, profess and practice their own culture (Article 27) [1994], HRl/GEN/1/Rev. 6,158-60, para. 5.1. 22 The International Covenant on Economic, Social and Cultural Rights can be construed to forbid discrimination on the basis of nationality. Article 2(2) states: "The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." As for the CRC, Article 2(1) provides that all the rights in the Convention apply to all children, including visitors, refu- gees, children of migrant workers and those residing in the state illegally.

  • 23 Emphasis added. 24 On the rights of non-citizens, see the final report of the Special Rapporteur of the Sub-Commis- sion on the Promotion and Protection of Human Rights, Mr. David Weissbrodt, E/CN.4/Sub. 2/2003/23 and E/CN.4/Sub. 2/2003/23/Add.l. CERD/C is also due to adopt a more detailed general recommendation on the rights of non-citizens that would replace General Recommen- dation 11, following a thematic discussion held on this issue during its 64�" session (23 February- 12 March 2004). 25 UN Doc. A/58/18, para. 182 and E/C.12/1/Add.94, paras.12-3, and 40. 26 Meskhetian Turks constitute a minority group in Krasnodar Krai, a southern region of Russia. Their number is estimated between 15,000 and 19,000. After some ethnic clashes in 1989, they fled Uzbekistan to seek refuge in other parts of the Soviet Union. The Krasnodar authorities did not provide them with residence registration (propiska) and like other persons who did not have such registration by 1992, they were denied citizenship and became de facto stateless. They complain that the denial of residence registration and citizenship has led to the denial of all their rights, including the right to work, property rights and access to health care. 27 UN Doc. A/58/18, para. 41. 28 Latvia has one of the highest proportions of minorities in central and eastern Europe: Ethnic non-Latvians constitute more than 42% of the total population; 29.4% of all residents are ethnic Russians. Despite a jump in the naturalization rate following liberalization of the Law on Citi- zenship in 1998, Latvia still has hundreds of thousands stateless "non-citizens", most of whom are ethnic non-Latvians. Nevertheless, the number of applications for naturalization actually

  • dropped in 2000, suggesting that complete resolution of the citizenship problem is unlikely in the near future. See Open Society Institute Programme, Monitoring the EUAccession Process: Minority Psotection (Budapest, 2001), 265-71. The same situation prevails in Estonia. In 2001, the Open Society Institute noted that half of Russian-speakers (who amount to around 30% of the Estonian population) remained without citizenship in Estonia, and that this state had restricted numerous entitlements and protective mechanisms to citizens only. Ibid, 178. See the HRC's and the CRC/C's Concluding Observations on Estonia: CCPR/CO/77/EST, para. 14 and CRC/C/lS/add.196, para. 28. 29 UN Doc. A/58/18, para. 449. 30 HRC, Concluding Observations: Latvia, 2003, CCPR/CO/79/LVA, para. 17. 31 Ibid., para. 18.

  • 32 See CERD/C, Concluding Observations: United Kingdom, A/58/18, para. 537. 33 CAT/C, Concluding Observations: Slovenia, CAT/C/CR/30/4, para. 5(d). 34 CERD/C, Concluding Observations: Albania, A/58/18, para. 312. 35 CERD/C, Concluding Observations: Czech Republic, ibid., para. 383. 36 See CRC/C, Concluding Observations: Pakistan, CRC/C/L5/Add.217, paras. 40-1; and CRC/C, Concluding Observations: Romania, CRC/C/15/Add.199, paras. 64-5. 37 See CERD/C, Concluding Observations: Russian Federation, A/58/18, para. 181. 38 See CERD/C, Concluding Observations: Bolivia, ibid., para. 340. 39 See for acts of violence against minorities in the Russian Federation, the Concluding Observa- tions of the HRC, CCPR/CO/79/RUS, para. 24, and of CERD/C, A/58/18, para. 181. 40 CERD/C, Concluding Observations: Czech Republic, ibid., para. 381. See HRC, Concluding Observations: Philippines, CCPR/CO/79/PHL, para. 8. 41 See for instance CRC/C, Concluding Observations: Italy, CRC/C/15/Add. 198, paras. 31-2. See also CERD/C, Concluding Observations: Finland, A/58/18, para. 406. 42 CERD/C, Concluding Observations: Latvia, ibid., para. 456. 43 CEDAW/C, Concluding Observations on Brazil, A/58/38, part II, paras.114-5; See also CERD/ C, Concluding Observations: Russian Federation, A/58/18, para. 181. 44 See ibid., para. 58 for the recommendations to this effect to Ecuador.

  • 45 See CERD/C, Concluding Observations: Fiji, A/58/18 para. 87, where the Committee expresses concern at the under-representation of Indo-Fijians and other ethnic minorities in the police and recommends that specific programmes be adopted to ensure appropriate representation. 46 See for instance the recommendation made by CERD/C to Fiji concerning the need to provide in-depth information on prosecutions of the authors of racist attacks against Indo-Fijians in Fiji during the 1987 and 2000 attacks (A/58/18 para. 92). 47 A/58/38, part II, para. 426 (New Zealand) and A/58/38, part I, para. 414 (Norway). 48 CERD/C, Concluding Observations: Russian Federation, A/58/18, para. 195. 49 Article 2(l)(b) provides that each state shall "undertake not to sponsor, defend, or support racial discrimination by any persons or organisations", and Article 2(l)(d) provides that "each state party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation".

  • 50 CAT/C/CR/30/7, para. 6(k). 51 E/C.12/1/Add.93, para. 27. 52 CERD/C, Concluding Observations: Latvia, A/58/18, para. 445. 53 HRC, Concluding Observations: Estonia, CCPR/CO/77/EST, para. 16. 54 Ibid. 55 See A/58/18, paras. 142-3 and CRC/C/15/Add. 211, paras. 69-70. It is worth noting that the CRC/C refers to the concluding observations made by CERD on this issue. 56 Ibid., para.145. 57 Ibid., para. 317.

  • 58 E/C.12/1/Ad. 93, paras. 27 and 45. 59 See CERD/C, Concluding Observations: Iran, A/58/18, para. 427; and CEDAW/C, Concluding Observations: Ecuador, A/58/38, part II, para. 321. 60 CRC/C/15/Add. 215, para. 44. 61 Ibid., para. 45. 62 A/58/18, para. 310. 63 See the Concluding Observations addressed to Latvia by CERD/C, A/58/18, para. 452 and by the HRC, CCPR/CO/79/LVA, para. 20. 64 A/58/18, para. 452. 65 Ibid., para. 453 and CCPR/CO/79/LVA, para. 20.

  • 66 CRC/C/15/Add. 196, para. 43 and paras. 52-3. 67 E/C.12/1/Add.93, para. 27. 68 Ibid., para. 45. For similar concern and recommendations expressed by other committees see for instance the situation of minority children in Pakistan, CRC/C/15/Add.217, para. 29, and CEDAW/C, Concluding Observations: Ecuador, A/58/38, part. II, para. 319 and Concluding Observations: El Salvador, A/58/38, part I, para. 263. 69 HRI/GEN/l/Rev.6,216-21.

  • 70 A/58/18, para. 386. See on the same issue, CRC/C/15/Add. 201, paras. 54-5. 71 A/58/18, para. 163. 72 Ibid., para. 238 73 CCPR/CO/78/SVK, para. 18. 74 A/58/18, para. 313.

  • 75 Ibid., para. 87. 76 Ibid., para. 235. 77 CCPR/CO/77/EST, para. 17. 78 CCPR/CO/79/LVA, para. 17. 79 A/58/18, para. 61. See, for General Recommendation 25, HRI/GEN/1/Rev.6, 214-15 and in par- ticular para. 3 which stresses the need for a "more systematic and consistent approach to evaluat- ing and monitoring racial discrimination against women, as well as the disadvantages, obstacles and difficulties women face in the full exercise and enjoyment of their ... political ... rights on grounds of race, colour, descent, or national or ethnic origin". 80 CCPR/CO/78/ISR, para. 23. 81 Ibid.

  • 82 HRI /GEN/1/Rev 6, 219, paras. 27-34. 83 Ibid., para. 409. 84 A/58/18, para. 315. 85 Ibid., para. 162. 86 Ibid., paras. 384-5 87 Ibid, para. 542. 88 Ibid., para. 543. 89 Ibid, para. 84. 90 Ibid, para. 85. 91 CRC/C/15/Add.215, para 18. See also CRC/C, Concluding Observations: New Zealand, on lower child health indicators for the Maori population and the need to allocate sufficient human and financial resources to implement the Child Health Strategy adopted by New Zealand, CRC/ C/LS/Add.216, paras. 35-6.

  • 92 CRC/C/15/Add. 215, para 18. 93 CCPR/CO/78/ISR, para. 19. 94 CCPR/CO/78/SVK, para.16. Whereas Article 2 CCPR limits the scope of the rights to be protected against discrimination to those provided for in the Covenant, Article 26 does not specify such limitations and provides that all persons are equal before the law and are entitled to equal protection of the law without discrimination in any field regulated and protected by public authorities. 95 CCPR/CO/78/PRT, para. 20. 96 A/58/38, part I, paras. 357-8. 97 Ibid., part II, paras. 66-7 98 Ibid, paras. 307-8 99 Ibid., part I, para. 261-2. 100 A/58/18, para. 59.

  • 101 E/C.12/1/Add.88, para. 32. 102 CRC/C/15/Add.216, para. 42. 103 See the Statement on Poverty and the International Covenant on Economic, Social and Cul- tural Rights adopted by the Committee on Economic, Social and Cultural Rights on 4 May 2001, E/C.12/2001/10. Furthermore, in 2001 the Committee on Economic, Social and Cul- tural Rights requested the Office of the High Commissioner for Human Rights "to develop substantive guidelines for the integration of human rights in national poverty reduction strate- gies". In response to this request, the Office prepared a document entitled "Draft Guidelines: Human Rights Approach to Poverty Reduction Strategies". Its objective is to provide practition- ers involved in the design and implementation of poverty reduction strategies with operational guidelines for the adoption of a human rights approach to poverty reduction. These guidelines are meant primarily for states to help them integrate human rights into their poverty reduction strategies. See, for the text of the draft guidelines: http://www.unhchr.ch/development/poverty. html. 104 HRI/GEN/1/rev6,85-105. 105 E/C.12/1/Add.94, paras. 31, 33 and 59.

  • 106 E/C.1211/Add.88, para. 59. 107 Ibid., para. 18. 108 See for the text of these recommendations adopted at the 34m session, CRC/C/133, para. 624. 109 CRC/C/1S/Add.216, paras. 35-6. 11o A/58/18, para. 542. W HRI/GEN/1/rev.6, 219, paras. 33-4. 112 See HRI/GEN/1/Rev.6,105-22 and in particular para. 16 (d)-(e). 113 E/C.12/l/Add.90, paras. 27 and 43.

  • 114 Ibid., para. 385. 115 HRI/GEN/1/Rev.6, 219, para. 30. On the issue of segregation, see also Article 3 of the Conven- tion and General Recommendation 19 on the Prevention, Prohibition and Eradication of Racial Segregation and Apartheid adopted in 1995, ibid., 208. 116 A/58/18, para. 385. 117 Emphasis added. HRI/GEN/1/Rev.6, 220, para. 38 of General Recommendation 27. 118 A/58/18, para. 385. 119 HRI /GEN/l/Rev.6, p. 219, para. 31 of General Recommendation 27. On forced evictions and the right to adequate housing, see also General Comment 7 adopted by the Committee on Eco- nomic, Social and Cultural Rights in 1997, in which this Committee mentions that indigenous people, ethnic and other minorities all suffer disproportionately from the practice of forced evic- tion. The Committee also stresses that evictions should not result in individuals being rendered homeless or vulnerable to the violation of other human rights. It adds that "where those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land as the case may be, is available". See HRI /GEN/l/Rev.6, pp.45-50, and in particular paras. 10 and 16.

  • 120 E/C/12/1/Add.90, para. 20. See also para. 36. 121 Ibid., paras. 22 and 38. 122 E/C.12/i/Add.91, paras. 14 and 36. 123 A/58/18, part I, para. 342. See also for discrimination against ethnic groups and in particular indigenous peoples in the sphere of employment, the Concluding Observations of CERD on Ecuador, ibid., para. 59. 124 Ibid., paras. 62-3.

  • 125 HRI/GEN/1/Rev.6, 216, para. 5. 126 A/58/18, para. 335. 127 Ibid., para. 339. 128 Ibid., para. 62. 129 See the Concluding Observations adopted in 1996 (CERD/C/304/Add.7, paras. 11 and 23), in 1999 (CERD/C/304/Add.66, paras. 10 and 14) and in 2001 (CERD/C/304/Add.107, para. 11) for the Committee's reiterated expressions of concern over the lack of solution to this issue.

  • 130 Ibid. 131 LTN Doc. A/58/18, para. 405. 132 Ibid., para. 481. 133 Ibid., para. 88. 134 Ibid., para. 89. 135 E/C.12/1/Add.94, paras. 11 and 39. The issue was also raised by CERD/C in its Concluding Observations on the Russian Federation, although less specifically: see A/58/18, para. 188.

  • 136 Although dealing with a very relevant subject matter - linguistic rights of the Basque minority in France - the fourth inadmissibility decision will not be mentioned in this paper as it led to no significant statement of the Committee. See Nikolas Regerat et al. CERD/C/62/D/24/2002. 137 CERD/C/63/D/28/2003.

  • 138 CERD/C/62/D/22/2002.

  • 139 CERD/C/62/D/25/2002.

  • 140 CERD/C/62/D/26/2002.

  • 141 CERD/C/63/D/27/2002. 142 Although NGOs may only officially participate in some treaty body meetings, all these bodies welcome the receipt of written submissions from such organizations. Most of them also have a practice of informal briefings with committee members cutside the regular meetings. 143 Treaty bodies welcome and encourage the participation of national human rights institutions. Some treaty bodies invite them to their presessional working groups or invite them to submit information to the Committee (CAT/C and CERD/C). Furthermore, the CRC/C adopted

  • General Comment 2 strongly encouraging national human rights institutions to participate actively and independendy in the reporting process. HRI/GEN/llRev.6, 289-96, para. 20. 144 See the decisions adopted by the HRC on 21 March 2002, A/57/40, vol. 1, Annex III. See also Annex X to the Annual Report submitted by CAT/C to the General Assembly in 2002 (A/57/44): Amended rules of procedure. 145 By 31 December 2003, only 43 states out of 169 had made the declaration under Article 14 CERD.

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