Reviewed by Davide Strazzari, lecturer in Constitutional Comparative Law, Department of Social Science, Trento University, Italy.
When in 1994 the United Nations special rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance asked State members to answer a detailed questionnaire concerning the existence of the aforementioned phenomena in their countries, sixteen of the thirty governments which provided information declared that racism, racial discrimination and xenophobia did not exist in their territories (reported by Van Bowen, 2001).
This fact is revealing of how many States view racial discrimination and contemporary forms of racism as a phenomena that has been overcome, or is only occurring outside their own country. This also is the background that has substantially influenced the activity of the Committee on the Elimination of Racial Discrimination (CERD) in overseeing the compliance of the International Convention on the Elimination of Racial Discrimination (ICERD) by State parties.
ICERD is one of the most signed and ratified treaties in the field of human rights. As a matter of fact, the Convention has been seen by many State parties as an instrument in eradicating the most serious forms of institutionalised racism, such as the apartheid regime in South Africa and the segregationist regime in the US (whose ICERD ratification dates back to 1994), without giving relevance to their internal situations. It has also been perceived by many African and Asian States as an instrument to sustain the struggle for political independence of people under colonial domination.
Ion Diaconu’s book fits in this context. He argues that, although the opposition to apartheid and segregationist regimes and the struggle to end colonialism were certainly among the objectives initially pursued by the Convention, the ICERD is nonetheless pursuing other and more far-reaching aims. It is mainly thanks to the activity of the CERD that the Convention has been, and can still be, a useful instrument in combating new culturally-based forms of racial discrimination, such as those currently suffered by immigrants, refugees, members of indigenous populations or castes.
The book is organised in three parts which follow the structure of the Convention text. In each part, the author starts by considering the meaning of the provisions of the Convention and the evolution of their application over the last 10 years, following the activity of the CERD. The first part deals with the definition of racial discrimination and its scope of application, having due regard to the protected categories. Diaconu refers to the role of the CERD in interpreting broadly racial discrimination [*79] notions, as to include discrimination based on nationality or citizenship, or in construing the term “descent” as comprehensive of the discrimination against the caste system. The second part focuses on the actions or policies that State parties are required to introduce in their legal systems in order to fulfill the ICERD’s obligations. Finally, the third part considers the different procedures through which the CERD carries out the task of overseeing the implementation of the ICERD. Diaconu points out that the Committee has been able to adapt existing procedural rules in order to make them more effective, or even to adopt new procedures, with the aim of preventing Convention violations. This is the case of the early warning procedure or the urgent action procedure aimed at imminent or actual large-scale problems of serious racial or ethnic discrimination.
The thesis of Diaconu’s book is clear but the analysis is often too descriptive. The long lists of opinions or recommendations that the CERD has issued towards State parties do not really help the reader to understand in depth the contribution that the Committee has made to the various issues at stake. It would have been better to have focused on fewer and more controversial thematic issues, rather than to report what appears a comprehensive but generic survey of the CERD’s activity. Readers would be better served by providing more of the normative arguments on which the CERD has based its approach, and by giving due account of contrary positions held by States.
For example, Diaconu highlights throughout Chapter 3 that the CERD has narrowly interpreted article 1.2 of the ICERD, a provision by which the Convention cannot be applied with regard to exclusions, restrictions, distinctions or preferences made between citizens and non-citizens. He refers to General Recommendation XXX of 2004, where the CERD concludes that “under the Convention, differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation, judged in the light of the objectives and purposes of the Convention, are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim.”
The CERD’s approach to this issue is extremely important in relation to European and North-America Countries whose restrictive immigration policies may be reviewed in the light of the ICERD provisions. Moreover, this is a significant difference in comparison with the main EU race anti-discrimination construction – the directive 2000/43/EC – whose article 3.2 explicitly excludes from the scope of application any difference of treatment based on the ground of nationality, a provision that recently the European Union Court of Justice (EUCJ) has interpreted literally (Kamberay).
Thus, one might expect that Diaconu would give more insight into the CERD periodic reports where such issues arose. However, he merely lists the concerns addressed to State parties by the CERD (mentioning, for instance, the worries of the CERD “at the application of a law allowing the expulsion of foreigners even when they possess a valid entry visa” or “at distinctions made under [*80] domestic law between the rights of citizens and non-citizens which may not be fully justified,” (p.159) without giving an effective account of the relevant facts and without assessing the implications of the CERD position for the Countries involved.
A similar approach is followed when Diaconu refers to the opinions that the Committee formulated under the ICERD art. 14, allowing persons or groups of persons who were victims of a violation by a state party to send written communications to the Committee for consideration, if the State party had previously accepted the CERD competence in this regard.
Some parts of the book are more evaluative in approach, but the argumentation is not fully convincing. For instance, Diaconu pays due attention to the highly controversial provisions of the Convention requiring States to prohibit not only advocacy of hatred but also all dissemination of ideas based on racial superiority or participation in organisations which promote racial discrimination. He correctly emphasised the fact that these provisions have attracted many reservations from State parties for their problematic conflict with the freedoms of expression and association. He highlights the CERD view, which he shares, that “hate speech” cannot be considered protected under the guarantees of the freedom of expression. In addition, arguments of State parties, declaring the prohibition of an organisation before acts of incitement or promotion of racial discrimination incompatible with their constitutional rules, are not accepted by CERD. According to Diaconu, there is no incompatibility between the obligations of States, under ICERD art. 4, and freedom of expression and association, since the latter are not absolute but subject to limitations.
This view, which the Author reiterates from the CERD position, seems too assertive, especially in light of those States which recognize no-content based limitations to freedom of expression. Diaconu does not give any clarification as to the meaning of terms such as “hatred” or “racial discrimination” for the purpose of criminal liability.
Moreover, little attention is paid to the effective judicial enforcement of these provisions at the domestic level. Diaconu is certainly right when he emphasizes that many (mainly European) States, originally made reservations or declarations in order to limit the scope of ICERD art. 4, and later changed their legislative policies, favouring a broader approach in the criminalisation of hate speech. However, if one looks at the judicial enforcement of these provisions, even in those Countries mentioned as examples of change in policy (Italy and France), one will soon realise that the new criminalising provisions of hate speech have not provided any effective or significant change in the jurisprudence which still face the problem of giving a meaning to terms such as racial hatred, racial discrimination, or the like.
Another aspect the book does not fully explore is the relations among global international law protection (the ICERD) and regional international law protection (in the case of Europe, the EU and the European Convention of Human Right - ECHR). This is a crucial point, especially for European readers, bearing [*81] in mind that at least in the EU member States' substantial results in dealing with racial discrimination are mostly due to the adoption of the directive 2000/43/EC rather than to decades of implementation of the ICERD.
The capacity of the CERD to make itself a credible actor also depends on its ability to influence the supranational or national political debates and the judicial reasoning of the judges, especially international ones.
Diaconu merely mentions the EU race directive. As to the ECHR, he takes notice of the fact that many European States had opposed the procedure set out in art. 14 of the ICERD on the grounds that they already offered the individual the right to petition under the ECHR. Diaconu considers this argument not well founded since the two procedures may have a complementary character. However, he soon emphasizes the risk of contrasting interpretations of the CERD and of the European Court of Human Rights (ECHR) in evaluating the same facts. He thus refers to the Jersild v. Denmark as an example where the CERD evaluation of the facts would have been different from that effectively given by the ECHR. In the above-mentioned case, the ECHR condemned Denmark for violation of the right to freedom of expression following the conviction of a television journalist because he contributed in disseminating racist speech through broadcasting an interview with young racists.
However, the Jersild case did give rise to divided comments even within the CERD. Some members considered that in such a case the right for protection against racial discrimination should be weighted against the right to freedom of expression (Boyle, Baldaccini, 2001, p.162, n.114). No mention is made of cases where the CERD activity has positively influenced the legal reasoning of the ECHR. This is the case of the seminal D.H. and Others v. Czech Republic decision (13.11.2007, Grand Chamber, No. 57325/00), where the ECHR, in a case involving racial segregation against Roma people in the educational field, held for the first time that a violation of the ECHR non-discrimination provision (art. 14) may occur even in cases of indirect discrimination. The ECHR grounded this change of its previous case-law by relying on international law documents and by extensively referring to several CERD general recommendations.
To conclude, Ion Diaconu’s book is successful in describing the wide range of the activities the CERD has thus far carried out, and in showing the contributions of the Committee in making the ICERD a “living instrument”. However, as a lawyer, I would appreciate a more normative based assessment or appreciation of the several CERD contributions. This would have permitted a better understanding of whether the CERD position can be considered a valuable instrument for racial and non-discrimination law enforcement at the domestic or regional level.
Boyle, Kevin, and Annaliese Baldaccini. 2011. “A Critical Evaluation of International Human Rights Approaches to Racism, in Sarah Fredman (ed.), Discrimination and Human Rights – The Case of Racism. Oxford University Press. pp.135-191. [*82]
Van Boven, Theo. 2001. “Discrimination and Human Rights Law: Combating Racism,” in Sarah Fredman, Discrimination and Human Rights – The Case of Racism. Oxford University Press. pp.111-133.
EUCJ, Case C-571/10 Kamberay, 24.04.2012.
Jersild v. Denmark, ECHR (1978) Series A, No 19, 1.
D.H. and Others v. Czech Republic decision (13.11.2007, Grand Chamber, No. 57325/00).
Copyright 2013 by the Author, Davide Strazzari.