The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is a United Nations convention. A third-generation human rights instrument, the Convention commits its members to the elimination of racial discrimination and the promotion of understanding among all races. The Convention also requires its parties to outlaw hate speech and criminalize membership in racist organizations.
The Convention also includes an individual complaints mechanism, effectively making it enforceable against its parties. This has led to the development of a limited jurisprudence on the interpretation and implementation of the Convention.
The convention was adopted and opened for signature by the United Nations General Assembly on 21 December 1965, and entered into force on 4 January 1969. As of July 2020, it has 88 signatories and 182 parties.
The Convention is monitored by the Committee on the Elimination of Racial Discrimination (CERD).
Definition of “racial discrimination”
Main articles: Racism and Discrimination
Preamble of the Convention reaffirms dignity and equality before the law citing Charter of United Nations and Universal Declaration of Human Rights and condemns colonialism citing Declaration on the Granting of Independence to Colonial Countries and Peoples, Declaration on the Elimination of All Forms of Racial Discrimination and also cites ILO Convention on Employment and Occupation (C111) and Convention against Discrimination in Education against discrimination.
Article 1 of the Convention defines “racial discrimination” as:
… any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Distinctions made on the basis of citizenship (that is, between citizens and non-citizens) are specifically excluded from the definition, as are positive discrimination policies and other measures taken to redress imbalances and promote equality.
This definition does not distinguish between discrimination based on ethnicity and discrimination based on race, in part because the distinction between the ethnicity and race remains debatable among anthropologists. The inclusion of descent specifically covers discrimination on the basis of caste and other forms of inherited status.
Discrimination need not be strictly based on race or ethnicity for the Convention to apply. Rather, whether a particular action or policy discriminates is judged by its effects.
In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.
The question of whether an individual belongs to a particular racial group is to be decided, in the absence of justification to the contrary, by self-identification.
Prevention of discrimination
Main articles: Anti-discrimination law, Equality before the law, and Institutionalised discrimination.
Article 2 of the Convention condemns racial discrimination and obliges parties to “undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms”. It also obliges parties to promote understanding among all races. To achieve this, the Convention requires that signatories:
- Not practice racial discrimination in public institutions
- Not “sponsor, defend, or support” racial discrimination
- Review existing policies, and amend or revoke those that cause or perpetuate racial discrimination
- Prohibit “by all appropriate means, including legislation,” racial discrimination by individuals and organisations within their jurisdictions
- Encourage groups, movements, and other means that eliminate barriers between races, and discourage racial division
Parties are obliged “when the circumstances so warrant” to use positive discrimination policies for specific racial groups to guarantee “the full and equal enjoyment of human rights and fundamental freedoms”. However, these measures must be finite, and “shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved”.
Article 5 expands upon the general obligation of Article 2 and creates a specific obligation to guarantee the right of everyone to equality before the law regardless of “race, colour, or national or ethnic origin”. It further lists specific rights this equality must apply to: equal treatment by courts and tribunals, security of the person and freedom from violence, the civil and political rights affirmed in the ICCPR, the economic, social and cultural rights affirmed in the ICESCR, and the right of access to any place or service used by the general public, “such as transport hotels, restaurants, cafes, theatres and parks.” This list is not exhaustive, and the obligation extends to all human rights.
Article 6 obliges parties to provide “effective protection and remedies” through the courts or other institutions for any act of racial discrimination. This includes a right to a legal remedy and damages for injury suffered due to discrimination.
Condemnation of apartheid
Main article: Crime of aparthied
Article 3 condemns apartheid and racial segregation and obliges parties to “prevent, prohibit and eradicate” these practices in territories under their jurisdiction. This article has since been strengthened by the recognition of apartheid as a crime against humanity in the Rome Statute of the International Criminal Court.
The Committee on the Elimination of Racial Discrimination regards this article as also entailing an obligation to eradicate the consequences of past policies of segregation, and to prevent racial segregation arising from the actions of private individuals.
Prohibition of incitement
Main articles: Hate speech and Hate crime
Article 4 of the Convention condemns propaganda and organizations that attempt to justify discrimination or are based on the idea of racial supremacism. It obliges parties, “with due regard to the principles embodied in the Universal Declaration of Human Rights”, to adopt “immediate and positive measures” to eradicate these forms of incitement and discrimination. Specifically, it obliges parties to criminalize hate speech, hate crimes and the financing of racist activities, and to prohibit and criminalize membership in organizations that “promote and incite” racial discrimination. A number of parties have reservations on this article, and interpret it as not permitting or requiring measures that infringe on the freedoms of speech, association or assembly.
The Committee on the Elimination of Racial Discrimination regards this article as a mandatory obligation of parties to the Convention, and has repeatedly criticized parties for failing to abide by it. It regards the obligation as consistent with the freedoms of opinion and expression affirmed in the UNDHR and ICCPR and notes that the latter specifically outlaws inciting racial discrimination, hatred and violence. It views the provisions as necessary to prevent organised racial violence and the “political exploitation of ethnic difference.”
Promotion of tolerance
Main article: Toleration
Article 7 obliges parties to adopt “immediate and effective measures”, particularly in education, to combat racial prejudice and encourage understanding and tolerance between different racial, ethnic and national groups.
Dispute resolution mechanism
Articles 11 through 13 of the Convention establish a dispute resolution mechanism between parties. A party that believes another party is not implementing the Convention may complain to the Committee on the Elimination of Racial Discrimination. The Committee will pass on the complaint, and if it is not resolved between the two parties, may establish an ad hoc Conciliation Commission to investigate and make recommendations on the matter. This procedure has been first invoked in 2018, by Qatar against Saudi Arabia and UAE and by Palestine against Israel.
Article 22 further allows any dispute over the interpretation or application of the Convention to be referred to the International Court of Justice. This clause has been invoked three times, by Georgia against Russia, by Ukraine against Russia, by Qatar against UAE.
Individual complaints mechanism
Article 14 of the Convention establishes an individual complaints mechanism similar to that of the First Optional Protocol to the International Covenant on Civil and Political Rights, Optional Protocol to the Convention on the Rights of Persons with Disabilities and Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. Parties may at any time recognise the competence of the Committee on the Elimination of Racial Discrimination to consider complaints from individuals or groups who claim their rights under the Convention have been violated. Such parties may establish local bodies to hear complaints before they are passed on. Complainants must have exhausted all domestic remedies, and anonymous complaints and complaints that refer to events that occurred before the country concerned joined Convention are not permitted. The Committee can request information from and make recommendations to a party.
The individual complaints mechanism came into operation in 1982, after it had been accepted by ten states-parties. As of 2010, 58 states had recognised the competence of the Committee, and 54 cases have been dealt with by the Committee.
Committee on the Elimination of Racial Discrimination
The Committee on the Elimination of Racial Discrimination is a body of human rights experts tasked with monitoring the implementation of the Convention. It consists of 18 independent human rights experts, elected for four-year terms, with half the members elected every two years. Members are elected by secret ballot of the parties, with each party allowed to nominate one of its nationals to the Committee.
All parties are required to submit regular reports to the Committee outlining the legislative, judicial, policy and other measures they have taken to give effect to the Convention. The first report is due within a year of the Convention entering into effect for that state; thereafter reports are due every two years or whenever the Committee requests. The Committee examines each report and addresses its concerns and recommendations to the state party in the form of “concluding observations”.