Uses and Underuses of the International Convention on the Elimination of All Forms of Racial Discrimination at the International Court of Justice (original) (raw)
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Racial discrimination is a controversial subject in society and in contemporary international law. Nonetheless, the prohibition of racial discrimination has been universally accepted and States should do everything to prevent racial discrimination. Although protection therefrom cannot be explicitly found in fundamental human rights instruments such as the Universal Declaration of Human Rights, the International Social and Cultural Rights, these documents do, however, include the broader concept of equality and non-discrimination. Nevertheless, a more specific binding legal document exists that addresses racial discrimination, namely the International Convention on the Elimination of All Forms of Racial Discrimination. This document sets out the legal framework of racial discrimination and special measures (measures that eliminate racial discrimination). Racial discrimination concerns a certain act under certain conditions that nullifies or impairs the exercise or enjoyment of human rights and fundamental freedoms. Special measures are also known as affirmative action or positive discrimination and include a wide span of instruments, but need to be legitimate, necessary, appropriate, temporary, and respect the principles of fairness and proportionality. Although special measures do not constitute racial discrimination, they are no exception to racial discrimination. Instead, they are an integral part of the concept of eliminating discrimination and achieving equality. Thus, before one can consider a measure as a special measure, there needs to be racial discrimination. If that is the case, then the State is obliged to take special measures to protect those who need protection from racial discrimination. The Convention is very clear about the legal framework of racial discrimination and special measures. This article applies this legal framework to the current situation in Yogyakarta, Indonesia – where non-native Indonesian citizens cannot own land due to local government rules. When doing this, one can conclude that there is racial discrimination towards non-native Indonesian citizens. Therefore, this article recommends to the local government in Yogyakarta and the central government in Indonesia that they revoke this Governor Instruction. Moreover, the international community can take initiative and invoke responsibility from the political organs in Indonesia. A Special Rapporteur may make the difference and determine the presence of racial discrimination in Yogyakarta.
Manchester University Press, 2017
This is the very first edited collection on the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the first of the core UN human rights treaties. It draws together a range of commentators including current or former members of the Committee on the Elimination of Racial Discrimination (CERD), along with academic and other experts, to discuss the meaning and relevance of the treaty on its 50th anniversary. The contributions examine the shift from a narrow understanding of racial discrimination in the 1960s, premised on countering colonialism and apartheid, to a wider meaning today drawing in a range of groups such as minorities, indigenous peoples, caste groups, and Afro-descendants.
India Quarterly, 1993
“Equality and non-discrimination” constitute the dominant single theme of contemporary international human rights law. Among all the human rights norms two basic rights – the right to equality and non-discrimination – have played a significant role in changing and nurturing the lives of individuals, peoples and nations. These two principles /rights are the basis of all human rights law that has been developed since the end of World War II under the auspices of the United Nations. This paper deals with the issue of how these principles/rights were negotiated between representatives of governments in the UN forums while drafting the UN Charter, the Universal Declaration of Human Rights, the two UN Covenants on Human Rights, International Covenant on Elimination of all Forms of Racial Discrimination and Convention on the Elimination of all Forms of Discrimination Against Women. It analyses the definition, meaning, scope and extent of the concept of “discrimination” emerging in most of the basic human rights instruments. It also examines the judicial interpretations of the principles of equality and non-discrimination rendered by the Permanent Court of International Justice and its successor, the International Court of Justice. The author argues that the principles of equality and non-discrimination are now widely acknowledged as forming part of customary international law and have become part of Jus Cogens.
Application of the International Convention on the Elimination of All Forms of Racial Discrimination
The American Journal of International Law, 2011
Objections that it was "perceived by all relevant actors, including Georgia, as being a facilitator and a State contributing stabilising peacekeeping forces" 15. Elsewhere, Russia contends that "Georgia never alleged that the Russian Federation was a party" to the conflicts and that Georgia "frequently confirmed the internationally recognized role of the Russian Federation as a third-party facilitator to those conflicts" 16. 1.23 This is a further example of Russia's propensity to prefer form over substance. It is also inaccurate, and a serious distortion of history. Georgia has long made clear its view that Russia is a party to the disputes it has raised under the 1965 Convention, not a facilitator of their peaceful resolution. As early as October 2001, Georgia stated that "instead of facilitating conflict settlement, [Russian peacekeepers] rather instigate it" 17. Georgia reiterated this position on numerous occasions and in many international fora. For example, in June 2006, Georgia reported to the United Nations that Russia is a not a "facilitator in the settlement of conflict" and does not "exercise the impartiality which is an inherent part of this status" 18. Georgia likewise informed the OSCE in September 2006 that "the Russian Federation is a side in conflicts, and not an impartial facilitator" 19. Also in 2006, Georgia's Ministry of Foreign Affairs publicly stated that the "Russian side's strong assertions that it is not a party to the conflict, are 15 RPO, para. 1.29.
International Criminal Law Review, 2015
The Rome Statute of the International Criminal Court contains the term ‘racial’ in its provisions on the crime of genocide, persecution and apartheid. However, it fails to provide for a definition of this historically burdened term. International criminal law is guided by the principle of legality and legal norms should be as narrowly defined as possible. This article will therefore attempt to provide a contemporary legal definition of ‘racial’. The article contains an overview of the historical development, the treatment of the issue of ‘race’ by anthropology and human rights, before turning to international criminal law. Cases dealt with by the ictr and the icty on ‘racial groups’ with regard to the crime of genocide will be analysed and categorized. The article concludes with a suggestion to juxtapose racial groups with ethnical groups, based on the perception of the perpetrator or the self-perception of the victims (subjective approach).
The UN’s Work on Racial Discrimination: Achievements and Challenges
Max Planck Yearbook of United Nations Law Online
In 1997, the Commission on Human Rights and the United Nations General Assembly decided to convene the third World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance in Durban, South Africa. All the major United Nations treaties protecting individuals from racial discrimination had been adopted prior to 1997 and the mandate of the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance had been created in 1993. But the Durban Conference, symbolically held in post- apartheid South Africa, generated new momentum for these political and legal commitments against racial discrimination. This chapter presents an overview of the United Nations mechanisms and initiatives tackling racial discrimination and the thematic developments since 1997. In light of contemporary challenges posed by the use of technology and pandemics, and reflecting on the intersectional nature of discrimination, it concludes with r...