On 31 July and 2 August 2007, the government's performance in implementing the International Convention on the Elimination of All Forms of Racial Discrimination was considered by the Committee on the Elimination of Racial Discrimination (CERD) at its 71st session in Geneva.
The International Convention on the Elimination of All Forms of Racial Discrimination was adopted by the UN General Assembly in December 1965, and entered into force in January 1969. 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 impairing the recognition, enjoyment or exercise, of human rights and fundamental freedoms in the political, economic, social, cultural or other areas of public life. It is the oldest, and the third most widely ratified, UN human rights convention, click here for the text.
The Committee
The Committee on the Elimination of Racial Discrimination (CERD) was the first body created by the UN to monitor and review actions by states to fulfill their obligations under a specific human rights agreement. It comprises 18 independent experts, appointed by state parties, and monitors how states are putting the Convention into practice. CERD usually meets for two sessions, each lasting three weeks, every year. The Committee reports on its activities to the UN General Assembly via the Secretary-General.
Every state party to the Convention is required to submit regular periodic reports to CERD on what legal, judicial, administrative and other steps they have taken to fulfill their obligations to eliminate racial discrimination. The periodic reports are examined by the Committee, in conjunction with information supplied in parallel reports from NGOs. As well as the Convention, the Committee takes into account General Recommendations, which it has developed through time to provide more detailed information on specific topics, to assess whether or not a state party is complying with the Convention; CERD'S General Recommendations are available here.
Prior to the session when a periodic report will be considered by CERD, a list of issues which the Committee wants more information about is sent to the state party. The list of issues is put together by the country Rapporteur, a Committee member appointed to cover that particular state party during examination of its periodic report. As well as drafting the list of issues, the country Rapporteur usually takes a lead in questioning the government delegation during the session, and in drafting Concluding Observations to be discussed and adopted by the Committee.
During the session when the state party's report is being considered, government officials appear before CERD to provide a verbal summary of their report, and to answer questions about the report and information provided by others, including NGOs. NGO representatives also have the opportunity to speak to the Committee and answer questions. At the conclusion of the session the Committee releases Concluding Observations for each state party whose report it has considered. CERD's Concluding Observations generally have a brief introductory section, some comment on any positive aspects the Committee has noted, and a list of concerns and recommendations for the government.
Periodic reports are one of the ways in which CERD monitors whether or not states are meeting their obligations to eliminate racial discrimination, and whether or not they are acting in a racially discriminatory way. In addition, Article 14 of the Convention provides for the Committee to consider communications from individuals or groups of individuals who have been subjected to racial discrimination by a state party. However, this can only happen when a state party has made the declaration required in Article 14 that they recognise the competence of the Committee to consider such communications, and some governments have not.
CERD also has an early-warning and urgent action procedure to respond to actions by a state party which require immediate attention to prevent or limit the scale or number of serious violations of the Convention. This procedure takes the form of direct communications to the Committee from people affected by the actions, or intended actions, of a state party, whether or not that government has made an Article 14 declaration.
Click here for more information about the Committee and its working methods.
CERD held its 71st session in Geneva from 30 July to 17 August 2007. As well as considering the NZ government's periodic report, the Committee considered reports from Costa Rica, Kyrgyzstan, Mozambique, Democratic Republic of the Congo, Indonesia, Republic of Korea, and Moldova; and communications from individuals who have been subjected to racial discrimination. It was also briefed on follow-up activities to the Durban Declaration and Programme of Action adopted at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, and held a dialogue with the Special Rapporteur on Freedom of Religion or Belief.
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The NZ government and the Convention
NZ signed the Convention in 1966 and ratified it in 1972. It was initially given effect in domestic legislation, to some degree at least, by the 1971 Race Relations Act which established the Office of the Race Relations Conciliator. In 1977, the Race Relations Act was modified by the Human Rights Commission Act which established the Human Rights Commission; both Acts were replaced by the Human Rights Act in 1993.
The Convention is not able to be fully implemented here because the constitutional arrangements arising from the notion of parliamentary supremacy mean that there is no way to prevent parliament from passing legislation that is racially discriminatory, or that breaches any of the other international human rights instruments, or to overturn such legislation when it is enacted - even though all of those instruments require effective protection and remedies for those whose rights have been violated.
The NZ government is among the states that has not made an Article 14 declaration which would permit those subjected to racial discrimination to make communications to CERD. This is a curious anomaly because where it is a state party to other international human rights instruments, it does accept the competence of those Committees to consider complaints about human rights breaches in relation to their respective Covenants and Conventions, where such provisions exist. There has never been a satisfactory answer from any NZ government as to why racial discrimination is the only area where this course of action is not allowed.
However, as mentioned above, the early warning and urgent action procedure allows those who have been (or are about to be) subjected to racial discrimination by a state party to have their situation judged, and in 2005 the Committee considered a communication about the Foreshore and Seabed Act under this procedure. Their decision, that the legislation breached the Convention, as well as commentary on the decision, is available here.
Successive NZ governments have met their requirement to send periodic reports to the Committee, beginning with their first report in 1974 to CERD's 9th session. Since 1983, government reports have been consolidated periodic reports (one document covering more than one periodic reporting round), for example, the fifth and sixth reports were submitted as one document in 1983, and the consolidated periodic report submitted in 1994 covered the tenth and eleventh reporting rounds.
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The government's report to CERD
In February 2006, a copy of the draft consolidated 15th, 16th and 17th periodic report was sent by the Ministry of Foreign Affairs and Trade's Human Rights Unit to "individuals, statutory bodies, non-governmental organisations and community groups" for comment. There was no attempt made to consult with hapu and iwi about the contents of the report, although some iwi authorities received a copy of the draft after they requested it. The letter inviting comment said that feedback would be carefully considered, although it might not be possible to incorporate or reflect all the feedback received as the periodic report "is, of course, the responsibility of the government".
The draft periodic report was an outstanding example of government spin written from a particularly mono-cultural perspective, and it contained offensive and racist wording in parts, particularly in some of the sections relating to Maori. Quite extraordinary that the government would prepare such a document for consideration by the Committee monitoring their performance in matters relating to racial discrimination.
We, and others, in our comments on the draft pointed out that while indeed the reporting responsibility is with the government, nevertheless the periodic report should be written in a manner that fully informs the Committee on the topics it covers - and it clearly did not. When the consolidated periodic report became available through the UN Treaties database in July 2006, it was obvious that the points made in feedback from NGOs had not been included in the final version as it remained essentially unchanged. The government's consolidated periodic report (CERD/C/NZL/17) is available here.
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