Committee on Elimination of Racial Discrimination concludes seventy-fifth session
Committee on the Elimination
of Racial Discrimination
Issues Concluding Observations on Reports of Azerbaijan, Chad, Chile, China and the Special Administrative Regions of Hong Kong and Macao, Colombia, Ethiopia, Greece, Peru, the Philippines, Poland and the United Arab Emirates
The Committee on the Elimination of Racial Discrimination today concluded its four-week seventy-fifth session and released its concluding observations and recommendations on the reports of Azerbaijan, Chad, Chile, China and the Special Administrative Regions of Hong Kong and Macao, Colombia, Ethiopia, Greece, Peru, the Philippines, Poland and the United Arab Emirates, which were considered at this session.
The Committee also adopted its Annual Report to the General Assembly as well as General Recommendation 32 on the Meaning and Scope of Special Measures.
During the course of the session, the Committee continued its consideration of a draft general recommendation on special measures (i.e. measures to secure adequate advancement of certain racial or ethnic groups or individuals to ensure their equal enjoyment or exercise of human rights and fundamental freedoms; sometimes known as "affirmative action"). It also examined individual communications of violations of the Convention (in closed session), and considered follow-up information submitted by States parties in relation to the observations and recommendations of the Committee. In accordance with a decision taken at its seventy-third session, the Committee considered matters related to the Universal Periodic Review of the Human Rights Council.
The session was held from 3 to 28 August 2009. The seventy-sixth session will take place from 15 February to 12 March 2010, when the Committee will review the periodic reports of Argentina, Cambodia, Cameroon, Guatemala, Iceland, Japan, Kazakhstan, Monaco, the Netherlands, Panama, and Slovakia.
Concluding Observations and Recommendations on Country Reports
After its review of the combined fifth and sixth periodic report of Azerbaijan, the Committee commended the State party for the continuing process of bringing its domestic legislation into line with the provisions of the Convention and other human rights treaties. It welcomed the legislative, administrative and practical measures taken, as well as the constitutional amendments made to improve the promotion and protection of human rights in the State party, in particular, among others, the amendment to Article 25 of the Constitution to introduce the prohibition of the granting of privileges or denial of benefits to anyone on the basis of race, nationality, religion, language, sex or other grounds; the efforts undertaken by the State party to promote culture of religious tolerance, as was already emphasized in the Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, on her mission to Azerbaijan; and the "National Plan of Action for the Protection of Human Rights in the Republic of Azerbaijan", that was approved by Decree of the Head of State of 28 December 2006, aimed at inter alia strengthening the dialogue between cultures and cooperation among religions, protection and further development of the cultural heritage of national minorities, development of legal awareness and legal culture of the population and the prohibition of discrimination.
While acknowledging the State party's efforts to find a peaceful solution to the conflict over Nagorny Karabakh, the Committee was deeply concerned about the persistence of this conflict and its negative influence, at the national and regional levels, on the exercise and full enjoyment of the rights enshrined in the Convention, in particular by internally displaced persons. While noting that significant progress has been made by the State party in protecting the economic, social and cultural rights of persons affected by internal displacement, as well as asylum-seekers and refugees, the Committee was still concerned that these continued to experience discrimination in the areas of employment, education, housing and health. The Committee further observed that, while the State party generally endeavoured to comply with the standards of the Convention relating to the Status of Refugees, some asylum-seekers, including Russian citizens from Chechnya, were allegedly excluded from the refugee determination procedure of the State party. The Committee was further concerned at allegations of persisting hostile attitudes on the part of the general public towards ethnic Armenians living in Azerbaijan. The Committee noted with concern that the information provided by the State party in this regard contrasted with information received from numerous national and international non-governmental sources.
The Committee noted with concern the information provided by the State party that there had been very few complaints or court decisions concerning acts of racial discrimination during the reporting period and that there had been no complaints of racial discrimination to the Ombudsperson. Considering that no country was free from racial discrimination, the Committee urged the State party to consider why there had been very few complaints of racial discrimination. The Committee was also concerned that the application of the Criminal Code regarding insult, defamation and the incitement to racial, national and religious hatred had resulted in the sentencing of a number of journalists to long prison terms or the imposition of heavy fines for defamation and encouraged the State party to ensure that the legislation on defamation and similar offences were brought into line with international treaties and to reconsider its criminal legislation on defamation in order to ensure its conformity with the Convention. While taking note of ongoing discussions on the creation of an Advisory Council of national minorities, the Committee was concerned about the current absence of consultative structures for representatives of minorities in the State party that would allow for their active participation in the legislative process and strengthen the cooperation between public bodies and representatives of national minorities.
After consideration of the combined tenth to fifteenth periodic report of Chad, the Committee noted with satisfaction the series of reforms that the State party had started with the aim of improving the legislative and institutional framework, particularly the adoption of the 1996 Constitution which devoted 32 articles to civil and fundamental rights and gave international treaties superiority over national laws and allowed them to be directly invoked in national tribunals. The Committee also noted with satisfaction the adoption in 2002 by the State party of a law prohibiting female genital mutilation, early marriage and domestic and sexual violence. The Committee also took note with interest of the creation in 2005 of a Ministry for Human Rights and the Promotion of Liberties and the creation of a national commission of inquiry into the events that had taken place in the State party in February 2008.
The Committee noted that the State party was going through, for the last 30 years, an institutional and political crisis characterized by armed rebellions and conflicts between communities. It was particularly concerned about the impact of the crisis in Darfur and concerned over the precariousness of peace inside and at the borders of the country, which, as a consequence were hindering the full application of the Convention. While noting the creation of the national commission of inquiry on the violations that had taken place in February 2008, the Committee was concerned about the absence of information by the State party on the inquiries that were conducted, and the sanctions and sentences that were brought on the authors, including members of the armed forces. The Committee also noted the existence of a national Ombudsman and that one of its functions was to settle tensions between communities but was concerned about its effective functioning, conflicts of competences with other institutions and its lack of resources.
On the justice reform, the Committee was concerned about the persistence of several areas malfunctioning of the justice system, among which, corruption, impunity, interference by the executive power and the lack of training of magistrates. The Committee recommended that the State party pursue its efforts to improve the judiciary system by, among other measures, promoting the independence of the judiciary and magistrates, by providing training to magistrates, and by creating favourable conditions for the access to justice and the acceptance of judicial decisions. The Committee also noted with concern the difficulties encountered by the National Human Rights Commission, linked to its independence and lack of resources. The Committee recommended that the State party take measures to ensure the effective functioning of the Commission by, among other measures, accelerating the adoption of the law, which would give the Commission a constitutional basis; and by ensuring the Commission's independence by allocating it the necessary resources for it to function according to the Paris Principles. The Committee was also concerned about the existence of the caste phenomenon in the State party, which resulted in discrimination against certain groups among the population, as well as grave human rights violations. The Committee recommended that the State party take specific measures to combat and abolish this phenomenon by adopting specific legislation prohibiting discrimination based on descent and to provide sensitizing and educational measures to the population on the negative effects of the caste system and the situation of victims.
With regard to the combined fifteenth to eighteenth periodic report of Chile, the Committee welcomed the ratification, by the State party, of International Labour Organization Convention 169 on the Indigenous and Tribal Populations in 2008, and in 2005 of the International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families. The Committee also noted with satisfaction the creation of several institutions tasked with the promotion and coordination of public policies on the question of indigenous people, such as the National Indigenous Development Corporation (CONADI), the Ministerial Council for Indigenous Affairs and the services tasked with indigenous issues in the ministries and regional administrations. The Committee further welcomed with satisfaction the measures taken to integrate the indigenous people's traditional medicine.
The Committee noted with concern the incidents of discrimination and violence against indigenous people and migrants, amongst others, committed by totalitarian groups and recommended that Chile intensify its efforts to prevent and combat xenophobia and racial prejudice and to promote tolerance between all ethnic groups. The Committee further noted with concern that indigenous people were affected by the exploitation of the subsoil resources of their traditional territories and that, in practice, the rights of indigenous peoples to be consulted prior to the setting up of exploitation projects were not fully respected. The Committee reiterated its concerns towards the fact that the Mapuche communities residing in the Araucania region were affected by activities that were harmful to the environment, health and the traditional ways of life, in particular the setting up of garbage dumps as well as plans for the installation of wastewater treatment plants in their communities.
The Committee noted with concern that the Chilean anti-terrorist law principally applied to members of the Mapuche people for incidents that had taken place in the context of protests with regard to their ancestral lands. The Committee recommended that Chile revise this law in order for it to be applied only for crimes of terrorism that deserved to be treated as such. Chile should also take the necessary measures to accelerate the process of restitution of ancestral lands to the indigenous people and to put in place a mechanism tasked with the recognition of indigenous peoples' rights to lands and natural resources. The Committee was concerned about the persistence of prejudice and negative stereotypes affecting, amongst others, the indigenous peoples and members of minorities and recommended that Chile take the appropriate measures to fight against racial prejudices that led to racial discrimination.
China and Special Administrative Regions of Hong Kong and Macau
After reviewing the combined tenth to thirteenth periodic report of China, including Hong Kong Special Administrative Region and Macau Special Administrative Region, the Committee welcomed the adoption of the National Human Rights Action Plan 2009-2010, which included a chapter on the protection of the rights of ethnic minorities. The Committee commended the State party for the adoption of a number of programmes and policies aimed at the advancement of minorities, including the eleventh Five-Year Programme for the Ethnic Minority Cause, the Development Programme to Help Ethnic Groups with Relatively Small Populations (2005-2010), the Grand Strategy for the development of China's West and the 11th Five-Year Programme for the Action on Prosperity Promotion in Border Areas. The Committee noted with appreciation the rate of economic development and the adoption of policies and programmes aimed at achieving an equal level of development in all regions, including the autonomous provinces largely inhabited by ethnic minorities.
The Committee reiterated its concern that the domestic legislation of the State party did not contain a definition of racial discrimination in full conformity with the definition set out in article 1 of the Convention, as it does not include a prohibition of discrimination on the grounds of descent and national origin. The Committee also reiterated its concern that the State party had not adopted a comprehensive anti-discrimination law to protect individuals from racial discrimination. While noting that the State party was in the process of drafting a refugee law, the Committee reiterated its concern that asylum-seekers from the Democratic People's Republic of Korea continued to be systematically refused asylum and forcibly returned. While acknowledging the information provided by the State party on the revision of its legislation regarding administrative detention and "re-education through labour", the Committee was concerned about reports that in practice effective judicial control of these measures was limited and that the application of these laws might disproportionately affect members of ethnic minorities.
While noting the information provided by the State party regarding the events in Tibet Autonomous Region in March 2008, as well as the events in Urumqi, Xingjian Uighur Autonomous Region, in July 2009, the Committee regretted the loss of life, including among the State party's armed forces and police, and the suffering of all victims. While it recognized the State party's duty to maintain public order, the Committee was concerned at reports alleging the disproportionate use of force against ethnic Tibetans and Uighurs respectively and the important number of their detentions. The Committee called upon the State party to ensure that those detained in connection with these events were guaranteed humane treatment while in custody and fair trial standards according to international law, including access to a lawyer of their choice, presumption of innocence, and handing down proportionate sentences on those found guilty. The Committee further recommended that the State party carefully consider the root causes of such events, including inter-ethnic violence, and the reasons why the situation had escalated. Despite the delegation's assurance that lawyers could exercise their profession freely and in accordance with the Lawyer Law, the Committee noted with concern reports on the harassment of defense lawyers taking up cases of human rights violations, especially those introduced by members of ethnic minorities and the Committee called upon the State party to take all appropriate measures to ensure that lawyers could exercise their profession freely, in law and in practice, and to promptly and impartially investigate all allegations of harassment, intimidation, or other acts impeding the work of lawyers.
Hong Kong Special Administrative Region
The Committee welcomed the adoption in Hong Kong Special Administrative Region of the Race Discrimination Ordinance, which entered into force in 2009 but expressed its concern about the definition of racial discrimination given in it, which was not completely consistent with article 1 of the Convention as it did not clearly define indirect discrimination with regard to language, and it did not include immigration status and nationality among the prohibited grounds of discrimination.
The Committee also reiterated its concern at the situation of migrant workers, and in particular domestic migrant workers. It noted with concern that the "two-weeks rule" (whereby domestic migrant workers have to leave Hong Kong within two weeks upon termination of contract) continued to be in force.
The Committee was concerned that the Hong Kong Special Administrative Region Race Discrimination Ordinance only covered certain Government activities and exercise of its powers in its scope of application, i.e. employment, education, and the provision of goods and services and recommended that all Government functions and powers be brought within the scope of the Race Discrimination Ordinance.
Macau Special Administrative Region
The Committee noted with satisfaction the adoption in Macau Special Administrative Region of a Law on the Fight Against Trafficking in Persons, as well as a Law establishing the Legal Framework on the Recognition and Loss of Refugee Status, but it was concerned that trafficking in persons continued to be a serious problem in the Macau Special Administrative Region, bearing in mind that victims were often women and children belonging to ethnic minorities or non-citizens. The Committee recommended the reinforcement of measures to adequately prevent, combat and punish human trafficking, especially of non-citizens.
Notwithstanding the explanation provided by the delegation, the Committee noted with concern that migrant workers were excluded from the social welfare system in the Macau Special Administrative Region and recommended that relevant legislation be amended with a view to extending social welfare benefits to all workers, including migrant workers.
Following its review of the combined tenth to fourteenth periodic report of Colombia, the Committee welcomed the human rights provisions in the Constitution which enshrined the principles of non-discrimination, recognised ethnic and cultural diversity and provided that the State should undertake measures in favour of discriminated or marginalised groups in order to achieve equality in practice. The Committee furthermore noted the extensive legal framework adopted to promote the rights of Afro-Colombians and indigenous peoples and noted with satisfaction the recognition of the Roma community and the commitment to protect their human rights. The Committee also noted as positive the engagement of the State party with Special Rapporteurs, Special Representatives and Working Groups of the Human Rights Council and the numerous visits by such human rights mechanisms as well as the State party's continued collaboration with the Office of the High Commissioner for Human Rights since the establishment of a field office in the country in 1997.
The Committee took note of the situation of violence by armed groups, whose main victims were civilian populations, in particular Afro-Colombians and indigenous peoples. The Committee was particularly concerned over the continuation of acts of serious violations of human rights against Afro-Colombians and indigenous peoples, including killings, extra-judicial executions, forced recruitment and enforced disappearances in the context of the armed conflict. The Committee noted that while illegal armed groups bore significant responsibility for violations, reports continued to indicate the direct involvement or collusion of State agents in such acts and that members of the armed forces had publicly stigmatised Afro-Colombian and indigenous communities. While noting that the State party recognised the persistence of racial discrimination and its historical causes, which had resulted in marginalisation, poverty, and vulnerability of Afro-Colombians and indigenous peoples, the Committee was concerned that there was no general provision forbidding discrimination on grounds of race. Furthermore, the Committee was concerned that legislation to incriminate acts of racial discrimination was not in full conformity with article 4 of the Convention. The Committee was also concerned about information provided by the State party indicating continued large numbers of massive and individual displacements and the disproportionately high and increasing numbers of Afro-Colombians and indigenous peoples among the displaced and over reports that assistance might be denied due to restrictive interpretations of the applicable standards.
While the Committee was aware of efforts taken by the State party to prevent violations, such as the establishment of the Early Alert System and the adoption of different protection programmes, the Committee remained concerned over threats against and killings of Afro-Colombian and indigenous leaders. The Committee recommended that the State party strengthen the Early Alert System by ensuring proper allocation of material, human and financial resources and implementing on a timely basis their alerts and ensuring that civilian authorities, including at departmental and municipal level, were involved in the coordination of preventive measures. The Committee was also concerned that, despite national policies on special measures, in practice Afro-Colombians and indigenous peoples continued to face serious challenges to the enjoyment of their rights and remained victims of de facto racial discrimination, marginalisation and continued to be particularly vulnerable to human rights violations. The Committee recommended that the State party combat discrimination and effectively implement special measures in order to ensure that Afro-Colombians and indigenous peoples were guaranteed full and equal enjoyment of human rights. The Committee, while noting efforts of the State party to conduct consultations with affected communities, was nevertheless concerned that the right to prior consultations and consent was frequently violated in conjunction with megaprojects relating to infrastructure and natural resource exploitation, such as mining, oil exploration or monocultivation. The Committee recommended that the State party adopt and implement in a concerted manner legislation which regulated the rights to prior consultation in accordance with ILO Convention No. 169, in order to ensure that all prior consultations were undertaken in a manner which respected the free and informed consent of the affected communities.
Among positive aspects in the combined seventh to sixteenth periodic report of Ethiopia, the Committee acknowledged with appreciation that the State party continued to host a large number of refugees from countries within the region, including Sudan, Kenya and Somalia. The Committee welcomed the 1994 Constitution, which reflected the importance accorded, in the legal order of the State party, to the prohibition on racial discrimination, including during times of national emergency. The Committee expressed its appreciation for the recognition, under the Constitution, that every nation, nationality and people in Ethiopia had the right to speak and to develop its own language, as well as for policies promoting the various national languages at the national level.
The Committee noted that the State party had faced several challenges in recent years, including serious economic hardship, famine, internal unrest and conflicts with neighbouring states, which had resulted in a very large number of internally displaced persons and refugees. The Committee also noted that political parties in the State Party were largely structured on ethnic lines. The Committee was concerned that the above arrangements, in the specific circumstances of the State Party, had the potential to contribute to an increase in ethnic tension. The Committee was concerned that, notwithstanding the long history of the State Party's commitment to fight racial segregation, there were reports that caste-like forms of racial discrimination persisted on its territory, mainly affecting marginalised racial and ethnic minorities. The Committee noted that the Convention had not been translated into the working language of the Federation or any other language used in the federal regions, thereby limiting the possibility for judges and legal practitioners to refer to and apply it.
While noting that the Constitution of the State Party provided for the equality of all persons before the law and for their entitlement, without any discrimination, to equal protection of the law, the Committee noted that the State party's legislation was not fully in conformity with the Convention and recommended that the State party adopt specific legislation on racial discrimination implementing the provisions of the Convention, including a legal definition of racial discrimination in line with article 1 of the Convention. While welcoming the State party's information that certain harmful traditional practices, such as female genital mutilation and the abduction of girls and young women for marriage, were prohibited by legislation, the Committee remained concerned at the prevalence of these practices in some communities and recommended that the State party reinforce the measures adopted to eradicate such practices through awareness-raising strategies, among other methods, and in consultation with communities engaging in these practices. While taking note of the State party's information that it had enacted legislation to ensure the protection of refugees, the Committee was concerned at the lack of detailed information on the extent to which refugees enjoyed the rights set out in article 5 of the Convention and recommended that the State party ensure that refugees and other vulnerable persons, such as internally displaced persons, enjoyed their rights under national law as well as the various international legal instruments to which it was a party.
Having considered the combined sixteenth to nineteenth periodic report of Greece, the Committee welcomed the adoption of a law on the "Implementation of the principle of equal treatment regardless of race or national origin, religion or other beliefs, disability, age or sexual orientation" in 2005. It also welcomed the amendment of the Criminal Code in 2008, which provided that the commission of an offence motivated by ethnic, racial or religious hatred constituted an aggravating circumstance. It further welcomed the Integrated Action Programme for the social integration of Greek Roma and the law of 2005 on the Integrated Action Plan for the integration of third-country nationals legally residing in the Hellenic territory, and acknowledged the importance of the special measures and other positive steps already taken.
The Committee was however concerned that the State party was not effectively implementing legal provisions aimed at eliminating racial discrimination and in particular those relating to prosecution and punishment of racially motivated crimes. The Committee was also concerned about reported cases of ill-treatment of asylum seekers and illegal immigrants, including unaccompanied children and noted with concern information on cases of ill-treatment and excessive use of force by Greek police against persons belonging to vulnerable groups, in particular the Roma. While acknowledging the important special measures already adopted for the social integration of the Roma, the Committee was concerned about obstacles encountered by Roma persons with regard to access to work, housing, health care and education.
The Committee was also concerned about reports on the propagation by certain organizations and media outlets of racist stereotypes and hate comments against persons belonging to different ethnic and racial groups and it recommended that the State party take effective measures to penalize organizations and media outlets that were guilty of such acts. It further recommended that the State party concretely ban Neo-Nazi groups from its territory and take more effective measures to promote tolerance towards persons of different ethnic origins. The Committee was also concerned about the alleged limited access to quality minority education for the Turkish speaking minority in Western Thrace and recommended that the State party improve the quality of education for the vulnerable ethnic groups and the Muslim minority, including through the training of teachers belonging to these groups, to ensure that there was a sufficient number of secondary schools, and to create pre-schools that teach in the mother tongue of their students. Further, as the Office of the Ombudsman was the only independent body, the Committee recommended that the State party consider giving it overall powers to receive complaints of racial discrimination, while cooperating with the other bodies when examining them.
After a review of the combined fourteenth to seventeenth periodic report of Peru, the Committee noted with satisfaction the establishment of the National Institute for the Development of the Andean, Amazonian and Afro-Peruvian Peoples (INDEPA), on 16 April 2005, as a decentralized public body with financial, operational, administrative and organizational independence, responsible for promoting and monitoring compliance with national policies and coordinating with regional governments in carrying out projects and programmes to promote, defend, investigate and assert the rights and development of the identity of the Andean, Amazonian and Afro-Peruvian peoples. The Committee also noted with satisfaction efforts to combat racial discrimination in Peru via laws prohibiting discrimination against consumers and in employment. It further welcomed the setting up of electoral quotas to ensure participation of indigenous peoples, and the draft law on the consultation and participation of indigenous peoples on environmental issues, which sought to guarantee that the prior, free and informed consent of indigenous peoples would be taken into account on infrastructure projects that might affect their rights.
Although the Constitution of 1993 explicitly recognized and protected the multi-ethnic and multi-cultural heritage of Peru, the Committee remained concerned about the high percentage of indigenous or Afro-Peruvian persons in Peru who continued to suffer from de facto racism and structural racial discrimination. It was further concerned by the progressive decline in the use of native languages, as cited in the 2007 census, and called on the Government to study the causes of that decline. Despite positive measures undertaken in this area by the Government, the Committee also reiterated its concern over the serious tensions throughout the country, including the outbreak of violence, caused by the exploitation of mineral resources of traditional indigenous lands. While in certain cases, indigenous peoples had been consulted and had given their informed consent before projects to exploit the natural resources on their lands were undertaken, that right was not fully respected. The Committee further expressed its concern about the negative impacts on health and the environment of the activities carried out by mining companies. Of serious concern was the outbreak of violence in Bagua on 5 and 6 June 2009, in the context of a conflict over projects to exploit indigenous land. In that context, the Committee supported the recommendations made by the United Nations Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous persons, that Peru should, as a matter of urgency, establish an independent commission to undertake a comprehensive, impartial and objective investigation of that incident.
The Committee was further concerned about the low visibility of Afro-Peruvian communities, as demonstrated by a lack of information about them in the country report, the national census and public policy in all spheres. The Government was urged to conduct a study on the Afro-Peruvian population on the basis of which it could formulate a plan of action, programmes and policies related to all spheres of public life. In view of racial discrimination against indigenous communities and Afro-Peruvians in the media, including stereotypical and denigrating representations on television and in the press, as well as daily activities that demonstrated racial discrimination, and reports that acts of racial discrimination were committed by government officials, the Committee recommended that Peru adopt measures to combat racial prejudice that led to discrimination in the area of the media and communications, public as well as private, including attitudes in daily life. It further recommended that Peru promote understanding, tolerance and friendship between different racial groups in the media, including through the adoption of a code of conduct for the media which required respect for the identity and culture of indigenous people and Afro-Peruvians.
With regard to the combined fifteenth to twentieth periodic report of the Philippines, the Committee noted with satisfaction that the State party had ratified, or acceded to all United Nations core human rights treaties and other international human rights treaties the provisions of which had a direct bearing on the subject of racial discrimination, in particular ILO Discrimination Convention 111 and the UNESCO Convention against Discrimination in Education. The Committee welcomed the coming into force of the 1997 Indigenous Peoples Rights Act and the establishment of the National Commission on Indigenous Peoples. The Committee also welcomed the recognition and the protection by the State Party of traditional indigenous justice and conflict resolutions mechanisms.
The Committee was concerned by the State party's statement in its periodic report that racial discrimination had "never officially or factually existed in the Philippines, neither in a systematic nor formal nor intermittent or isolated manner." and that "The Philippines Government therefore maintains […] that discrimination based on race, colour or ethnic origin is non-existent in the Philippines […]". The Committee was also concerned that penal provisions classifying as punishable act any dissemination of ideas based on notions of superiority or racial hatred, incitement to racial discrimination, violence or incitement to such acts, and to prohibit all organizations and activities, which promote and incite racial discrimination to give full effect to article 4 of the Convention, remain lacking. The Committee appreciated the information provided by the State party that peace-processes in the different regions of armed conflict were resuming and took note of the many initiatives taken to protect indigenous peoples including children in conflict zones. But the Committee was, however, concerned about reports of persisting human rights violations against indigenous peoples, who continued to be disproportionately affected by armed conflict. The Committee was concerned that leaders of these communities continued to be victims of extrajudicial executions as well as of disappearances and detention. It was also concerned about reports indicating occupation of indigenous territories by the armed forces and armed groups.
While noting that the Convention was regarded by the State party as "part of the law of the land", the Committee observed that many provisions in the Convention were not self-executing and required national legislation to take effect at the national level. The Committee urged the State party to ensure that the Convention became fully applicable in the national legal system including through adoption of the necessary legislation. The Committee remained concerned that the State party had not adopted a comprehensive anti-discrimination law and recommended that the State party adopt a comprehensive law on the elimination of discrimination on the grounds of race, colour, descent or national or ethnic origin, covering all rights and freedoms protected under the Convention. The Committee was also concerned about the effects of internal displacement as a consequence of armed conflict especially on indigenous peoples in relation to their livelihoods, health and education. The Committee recommended that the State party adopted adequate measures in order to ensure the enjoyment by internally displaced persons of their rights under article 5 of the Convention, especially their right to security and their economic, social and cultural rights.
Having considered the consolidated seventeenth to nineteenth periodic report of Poland, the Committee noted with appreciation the following measures, amongst others, taken by the State party since the examination of its last periodic report: the enactment, in January 2005, of the Law on National and Ethnic Minorities and Regional Language aimed at the protection of minority languages; the establishment, in 2008, of the office of the Plenipotentiary for Equal Treatment, which coordinated government action to combat racial discrimination and monitored government policy in this area; the National Programme for Counteracting Racial Discrimination, Xenophobia and Related Intolerance of 2004-2009, developed with a view to implementing the Durban Declaration and Programme of Action, as well as the establishment of the Programme Monitoring Team to monitor its implementation; and the progressive abolition of separate education for Roma school children.
The Committee, while noting measures taken by the State party to address discrimination against the Roma, such as the 2003 Programme for the Roma Community in Poland, remained concerned about the continued social marginalisation and discrimination faced by members of the Roma minority, particularly in the fields of education, employment and housing. While welcoming the State party's innovative approach to the education of Roma children, including the introduction of Roma Teaching Assistants and the gradual phasing-out of separate education, the Committee noted with concern that many Roma children did not attend or remain in school and did not pursue higher education. The Committee also noted the delegation's statement that racially motivated crimes against persons of Arab, Asian and African origin were prosecuted when evidence was available. Nevertheless, the Committee remained concerned at the prevalence of racial violence and other acts of racial abuse against members of these groups. The Committee further noted the continued incidence of anti-Semitic activities in the State party, including the desecration of Jewish cemeteries, anti-Semitic hate speech and the dissemination of anti-Semitic material via the Internet.
The Committee recommended that the State party enhance its efforts towards the full integration of the Roma into Polish society and combat discrimination against the Roma by improving the enjoyment of economic, social and cultural rights, particularly in education, employment and housing and develop and implement poverty eradication programmes to combat poverty among the Roma and other economically marginalized population groups. The Committee also noted that, despite the State party's indication that there were no organizations promoting racial hatred and racial discrimination on its territory, groups such as the All-Polish Youth, the National-Radical Camp, Liga Polskich Rodzin (the League of Polish Families) and the local chapter of the Blood and Honour group, which were reported to be involved in promoting racial hatred and racial discrimination, remained active in the State party. The Committee urged the State party to expedite the passing of legislation to criminalize the promotion of racial hatred and racial discrimination and the dissemination of racist material and ideology and to take firm measures to prosecute and punish those responsible. The Committee further took note of the State party's efforts to integrate human rights education into school curricula. It, however, noted the lack of information on the use of the media in this area. The Committee reiterated its recommendation, contained in its previous concluding observations, that the State party pay particular attention to the role of the media in improving human rights education.
United Arab Emirates
Having considered the combined twelfth to seventeenth periodic report of the United Arab Emirates, the Committee noted with satisfaction that the Convention had force of law within the State party thus allowing it to be invoked before the courts of the State Party directly in the same way as national law. The Committee welcomed the conclusion by the State party of memoranda of understanding with several States concerning the recruitment of their nationals as contract workers for work in the United Arab Emirates, in order to regularize the process for workers' entry into the State party so as to familiarize these persons with their rights and obligations under their employment contract. The Committee noted with appreciation the adoption of a Federal Act that aimed to combat human trafficking offences and all forms of exploitation, particularly of women and children, and the establishment by this Act of a National Committee on Human Trafficking.
The Committee noted the lack of national legislative provisions fulfilling the requirements of article 4 of the Convention, which required States parties to penalize the dissemination of ideas based upon racial superiority and hatred, the incitement to racial hatred, the acts of violence against any race or groups of persons of another colour or ethnic origin, and incitement to such acts. While noting the information from the State party on the continuous efforts to improve the situation of domestic foreign workers, particularly by introducing, in 2007, a standard employment contract for domestic workers which laid down some rights they were entitled to, in terms of wages, rest breaks, payment of salaries, medical treatment, and while also noting that the State party was currently preparing draft legislation which would regulate in a more detailed manner the working conditions of certain categories of foreign workers, including domestic workers, and provide for a complaint mechanism, the Committee was however concerned that domestic workers were not included in the protection afforded by the Labour Law and continued to face violations of their rights. Further, noting the information provided by the State party concerning the acquisition of nationality under national legislation and the information that the acquisition process was currently under study and review, the Committee was nevertheless concerned that currently children of Emirati women married to a foreign national did not receive citizenship under any circumstances.
While taking note of the fact that the State Party's Constitution was founded on a principle of social justice and protected a range of fundamental rights, the Committee was however concerned that some fundamental rights might not apply to non-citizens on its territory. The Committee thus recommended that the State Party ensured equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law. The Committee recommended that the State Party enact legislation specifically prohibiting racial discrimination or amend the existing laws, in order to be in full compliance with the Convention. While noting the information provided by the State party in its report, in the written replies and the explanations orally given on efforts to improve the living and working conditions of non-citizens contract workers, the Committee remained concerned about conflicting reports from other sources that sub-standard conditions remained and recommended that the State party, amongst other measures, continue to strengthen the protection of all foreign labourers through adequate legislation and policies aimed at curbing abuses.
General Recommendation No. 32
A General Recommendation on the Meaning and Scope of Special Measures in the International Convention on the Elimination of Racial Discrimination has been issued by the Committee in light of the difficulties observed in the understanding of such a notion. The General Recommendation is based on the Committee's extensive repertoire of practice referring to special measures under the Convention.
The General Recommendation states that the concept of special measures is based on the principle that laws, policies and practices adopted and implemented in order to fulfil obligations under the Convention require supplementing, when circumstances warrant, by the adoption of temporary special measures designed to secure to disadvantaged groups the full and equal enjoyment of human rights and fundamental freedoms. The term 'special measures' also includes measures that in some countries may be described as "affirmative measures", "affirmative action" or "positive action". The term 'positive discrimination' is, in the context of international human rights standards, a contradictio in terminis and should be avoided. 'Measures' include the full span of legislative, executive, administrative, budgetary and regulatory instruments, at every level in the State apparatus, as well as plans, policies, programmes and preferential regimes in areas such as employment, housing, education, culture, and participation in public life for disfavoured groups, devised and implemented on the basis of such instruments. Special measures should not be confused with specific rights pertaining to certain categories of person or community.
The General Recommendation further states that special measures should be appropriate to the situation to be remedied, be legitimate, necessary in a democratic society, respect the principles of fairness and proportionality, and be temporary. One of the limitations on special measures is that 'they shall not be continued after the objectives for which they have been taken have been achieved'. This limitation on the operation of special measures is essentially functional and goal-related: the measures should cease to be applied when the objectives for which they were employed – the equality goals – have been sustainably achieved.
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