The Durban Declaration and Xenophobia

Foreword

In Malmo, in Sweden, a ‘race-gunman’ had been active for over a year before he was caught last October. Immigrants in Malmo were forced to live in fear and uncertainty for more than a year. Undoubtedly, such blatant discrimination is deplorable; being harmed because of one’s race is unfair and in violation of major human rights treaties. However, such treatment is becoming widespread despite the provisions of international treaties and existing human rights norms. Therefore, the international community is still in need of a strategy for preventing racism and an incentive for the adoption and implementation of anti-discrimination norms.

Ten years ago the Durban Declaration on Racial Discrimination, Racism, Xenophobia and Related intolerance was adopted. Yet, since then, the political climate in Europe has shifted towards harboring anti-immigrant attitudes, and discrimination remains a reality in a majority of UN Member States. Therefore, this Background Paper will address the problem of discrimination, focused on minorities (immigrants and ethnic minorities) with the Durban Declaration as its guideline.

Abbreviations

OECD Organization for Economic Cooperation and Development

UDHR Universal Declaration of Human Rights

UNHCHR United Nations High Commissioner on Human Rights

WCAR World Conference Against Racism

OHCoHR Office of the High Commissioner on Human Rights

OECD Organization for Economic Cooperation and Development

Introduction

Undeniably the political spectrum in many countries has changed over the last decade. The

abovementioned is significant in light of the discussion regarding Xenophobia and Racism. In

the recent decades, far-right parties with a nationalist premise have gained votes all over

Europe. In Switzerland, Austria, Belgium, Hungary, Denmark and the Netherlands, right-

wing parties obtained around 20 percent of the votes in recent elections.1 In the USA, the up

and coming Tea Party movement’s position on immigrants resembles those of the right-wing

parties of Western Europe, even though it is uncertain whether their views amount to racism

or if they are merely nationalistic in nature. However, it is clear that both the right-wing

parties in Europe and the Tea Party movement in the US, are trying to create a division

between “us and them" .2

Furthermore what is worrying is that attitudes seem to have changed, but for the worse

concerning immigrant communities. Islamophobia and Anti-Semitism are on the rise as

adequately demonstrated by an opinion poll published in the Economist in 2008. The opinion

poll asserts that “46% of Spaniards, 36% of Poles and 25% of Germans have negative views

of Jews; and 52% of Spaniards, 50% of Germans, 46% of Poles and 38% of French people

have negative views of Muslims”.3

Certainly, the topic of racism and xenophobia is also on the Agenda of the United Nations.

The UN has organized a series of World Conferences4 to address racism and xenophobia. The

outcomes of these conferences continue to serve as guidelines for further implementation by

Member States and UN bodies. The most recent of these conferences organized in 2001, the

World Conference against Racism, Racial Discrimination, Xenophobia and Related

Intolerance, was concluded with the adoption of Durban Declaration and Programme of

Action, which will serve as the reference point for our discussion on effectively curtailing

xenophobia and racism.

1 The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 <http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ> retrieved: 19-03-2011.2 The Economist, “Far Rights Populism: Tea Parties and a party for Freedom” 10-3-2011, http://www.economist.com/blogs/democracyinamerica/2011/03/far-right_populism retrieved: 19-03-2011.3 The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ.4 Meetings of representatives of states, non-governmental organizations (NGO) and UN-agencies

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This introductory paper will first discuss recent trends and developments regarding racism

and xenophobia. Following that, the paper will address the content of the Durban Declaration,

and the adverse conditions under which it materialized will be outlined. Subsequently, the

paper will continue with a discussion on the UN Conventions and Bodies relevant for the

Principle of Non-discrimination. The paper will then be concluded with outlining possible

questions for the debate.

Xenophobia and Racist attitudes in the public opinion

Measuring attitudes, especially concerning a contested concept as xenophobia or racial

discrimination is complicated, since the definitions themselves can be contested. For that

reason, this paper will firstly cite the relevant definitions before going on with an overview of

discriminatory practices that still prevail. And lastly, it will present some figures regarding the

public opinion on migrants, and include two graphs on violence and discrimination.

Article 1 of the the International Convention on the Elimination of All Forms of Racial

Discrimination defines of racial discrimination as:

“1. In this Convention, the term "racial discrimination" shall mean 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.”5

Although there is a standard definition of racial discrimination as provided above, there is not

a specific definition laid out for xenophobia in international law. However, one of the regional

Preparatory Meetings for the World Conference (2001) held in Tehran formulated it as

follows: “Xenophobia describes attitudes, prejudices and behavior that reject, exclude and

often vilify persons, based on the perception that they are outsiders or foreigners to the

community, society or national identity.” Other definitions speak of Xenophobia as denoting

5 The Convention on the Eridication of All Racial Discrimination, Vienna:1965, <http://www2.ohchr.org/english/law/cerd.htm>

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behaviour that is “based on the perception that the other is foreign to or originates from

outside the community or nation.”6

At this point, it should be noted that this paper focuses on Xenophobia and racial

discrimination, and not on all forms of possible discrimination. With that in mind, the

following is a short summary of the Human Rights Watch World Report which mentions the

following practices of discrimination (this list is not meant to be exhaustive).7

In the European Union, over the last year outrage has occurred out political level on

the expulsion of Roma’s from France. But also in Italy, Ukraine, Kosovo, Serbia,

Poland discrimination of the Roma is severe.

In the Nordic Countries, the Netherlands, Belgium and Germany discrimination

towards Muslims and Islamophobia is widespread. Proposals for laws banning

headscarves and the political rhetoric on the failure of the multi-cultural society ignite

Islamophobia.

In Eastern Europe discrimination towards historical ethnic minorities is present. For

example: in Belarus Polish are discriminated, in Ukraine people with a non-Slavic

appearance are often the victim of hate-crimes. In Russia violence towards migrant

workers, exploitation and discrimination is reported on a daily basis. The problem is

exacerbated due to the attitude of the police and the absence of legal remedies against

racially motivated violence, as in for example Georgia.

In the Middle East (Saudi Arabia, Kuwait, Iran) discrimination is directed towards

non-Muslims, and respectively Shiites and Sunnites. Other faiths are not allowed to

practice their religion. Even stronger, minority groups are often victims of hate-crimes

and harassments, as for example the violence against Coptic Christians in Egypt.

In India and Nepal, the practice of the Caste system and the position of the Dalits, is

sometimes compared to an Apartheid regime. In law special provisions for Dalits are

made for positive discrimination. Within society, however, discrimination against the

‘untouchables’ is deeply rooted.

6 Declaration on Racism, Discrimination, Xenophobia and Related Intolerance against Migrants and Trafficked Persons. Asia-Pacific NGO Meeting for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance. Teheran, Iran. 18 February 2001 as cited in: International Labour Organization, International Migration, Discrimination, and Xenophobia, (2001) http://www.ilo.org/public/libdoc/ilo/2001/101B09_218_engl.pdf.7 Human Rights Watch, The World Report 2011, 2011 <http://www.hrw.org/en/world-report-2011>

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In China the society itself is forcefully made egalitarian, in spite of this; ethnic

minorities are still mistreated and denied their cultural rights, especially the Tibetans

and Uyghur people.

From Africa little data is available on discrimination against minorities. Reports come

in only from South Africa. The picture they sketch is alarming: Xenophobic attitudes

are on the rise.

As seen by the summary, in many States, both policies towards minorities, and the attitude of

their respective peoples is alarming from a perspective of xenophobia and racial

discrimination. This is confirmed by reports from the OECD (Organization for Economic

Cooperation and Development) which finds that the attitudes towards migrants are in general

hostile. How this translates into anti-immigration rhetoric in politics and tight immigration

policies depends on the electoral system, and whether the extremist parties can gain

substantial support in the parliament.8

Yet, migration and integration policies do not sketch the whole picture of attitudes towards

minorities. To illustrate attitudes more thoroughly three graphs are presented here: The first

graph is based on data from the European Social Survey on perceptions of Immigrants’

contribution to economic and cultural life. Here, the relatively low perception in the United

Kingdom and in Eastern European countries is striking.

Source: OECD, Migration Outlook 2010, 27.

8 OECD, Migration Outlook 2010, Paris:2010.

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The next graph is taken from the European Union Minorities and Discrimination Survey

2009, and compares self reported prevalence of discrimination in the private as well as in the

public domain for various ethnic groups in specific European countries (exact research

question can be found in the legend of the graph). The percentage of Roma reporting

discrimination is alarmingly high and shows the special social position of this group.

Source: European Union Agency for fundamental rights ‘Main Results Report’, EU-MIDIS,

European Union Minorities and discrimination surveys, 2009, 36.

Whereas the first two graphs and statistics are based on cross-country comparisons of

perceptions, the last graph demonstrates that also within counties, the number of reported

crimes with an extremist right wing motive increased in the past years. This is the case

especially in Germany and France where a substantial increase in the number of registered

crimes per year between 2000 and 2006 can be observed.

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Source: FRA, Report on Racism and Xenophobia in the member states of the EU, 2007, 125.

The Durban Declaration

The Durban Declaration and the Program of Action is the outcome of “The United Nations

World Conference Against Racism, Racial Discrimination, Xenophobia, and Related

Intolerance”.9 It was the third of the World Conferences on Racial Discrimination and

Racism, which are intended to create a broad consensus by incorporating both civil society

representatives and states in their deliberations. As a result the outcomes are useful in serving

as guidelines for further efforts by states and UN-bodies with regards to the eradication of

racism and xenophobia.

This paper initially discusses the content of the Durban Declaration and then outlines the

drafting process of the Durban Declaration. The latter is done to demonstrate that even in

cases of a generally supported cause as the battle against racism, the discussions can be

politicized, and the outcomes are often a compromise.

9 WCAR, Durban Declaration and Program of Action, 2001. http://www.un.org/WCAR/durban.pdf

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Durban Declaration – the content

The Durban Declaration and the Programme of Action are two lengthy documents with 122

and 219 clauses respectively. The document touches upon almost every facet of Racial

Discrimination, Racism, Xenophobia, and Related Intolerance. The Declaration itself

discusses the root causes of racism and racial discrimination, and thus, pays due attention to

the continuing effects of the trans-Atlantic slave trade and connects contemporary racism to it,

which is remarkable. Furthermore, the document singles out African peoples and people of

African decent and Asian peoples and people of Asian descent as being especially victimized

by trans-Atlantic slave trade and asserts that these groups are still especially prone to being

victims of Racism and Racial Discrimination. Further groups the declaration identifies as

being vulnerable for racism are refugees, migrants, and traveling people. The other issues

mentioned by the declaration are remedies and measures against racism. However, the latter is

discussed in greater detail in the program of action.10

The program of action, similar to the Declaration itself, commences with identifying the

causes, roots, and victims of racism; however, in a less detailed manner than the declaration.

The remedies formulated in the program of action are especially extensive. It calls upon states

to implement measures against racism in almost every aspect of society. The international

component of the remedies are first to call upon all states to sign and ratify all related

Conventions and United Nations documents, as discussed in clauses 75 to 83. 11 Furthermore

states are called upon to promote anti-discrimination in all international bodies they are a

party to.

Relevant and significant with respect to this paper’s topic is the follow-up to the Durban

Declaration in the UN context as asserted in clause 191. In this clause states are urged to

present the United Nation High Commissioner for Human Rights with a national plan of

action to combat racism. Additionally, the UNHCHR is invited to set up a follow up

committee, to produce annual progress reports, as well as a database for exchanging

information about anti-discrimination measures and best practices. Clause 193-198 requests

the Office of the United Nations High Commissioner for Human Rights to pay special

attention to racism and racial discrimination in its deliberations and its cooperation with

governments and other UN bodies.12 Clause 199 mentions the predecessor of the Human 10 ibid.11 ibid.12 WCAR, Durban Declaration and Program of Action, 2001 http://www.un.org/WCAR/durban.pdf

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Rights Council and is therefore important for our discussion: “Recommends that the

Commission on Human Rights prepare complementary international standards to strengthen

and update international instruments against racism, racial discrimination, xenophobia and

related intolerance in all their aspects;”13

Behind the Scenes: The Third World Conference

The third world conference against Racism and Racial discrimination was held in 2001 in

Durban, South Africa. Preparations for the conference commenced in 1998. In 2000 the first

preparatory conference took place in Geneva, intended to set the agenda. Contrary to

expectations, debates were lengthy and complicated. Different blocks stood in opposition to

each other; the Western countries and others (EU, United States, Canada, Australia and New

Zealand) presented opposing views to those expressed by Asian, African and Latin American

countries. Unlike the initial draft and the proposed agenda, not only the integration of

migrants, but also trans-Atlantic slave trade, the Palestinian-Israeli conflict and the problems

of Palestinian refugees were on the agenda.14

Accordingly, the two most controversial debates focused on the trans-Atlantic slave trade and

the question whether to recognize this as a crime against humanity; and the conflict in the

Middle East and Israeli practices concerning Palestine. This caused Israel and the United

States to leave the conference after four days and not to recognize nor sign the outcome. The

input of NGOs, much applauded upon in light of the cooperation with civil society, was even

more controversial. The Chair of the conference refused to read out the final document to the

plenary session and major NGOs, such as Amnesty International, distanced themselves from

the declaration.15

Was the conference then a failure? On one hand, Israel and the United states walked out, and

the outcome document was deemed a compromise that made neither party happy. On the

other hand, many states have signed the Durban Declaration. More importantly, it is still used

as the document on which further action is taken. Monitoring systems, best practices,

databases and a follow-up committee are in place. The UNHCHR has taken up the appeals to

13 Article 199, WCAR, Durban Declaration and Program of Action, 2001. 14 Camponovo, C. N., “Disaster in Durban: The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance” George Washington International Law Review, 2003.15 Ibid.

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its office to pay extra attention to the issues of racism, racial discrimination and xenophobia

seriously and has established the bodies as requested in the Declaration. Most countries, also

in the western block, have written plans of action and deposited them at the UNHCHR for

follow up and monitoring.16 

The Process Behind: The Review Conference in Geneva

The legacy of the conference in Durban still prevailed over the review conference in Geneva

in 2009. Israel and Canada were the first to announce their boycott of the conference,

followed by the United States and several European countries. They stated that they did not

believe the conference would be different from a forum expressing Anti-Semitist sentiments.

Although the Durban Declaration itself does not contain explicit condemnation of Israel, nor

Zionism, the accompanied NGO forum and their statements led to outrage and caused these

countries to refrain from participating in a new World Conference. The boycotting countries

accused some regimes of hijacking the subject of anti-discrimination and the world forum for

their own political purposes.17

The best remembered moment of the conference was the speech by Iranian President

Mahmoud Ahmadinejad. The Iranian president expressed outrage regarding the treatment of

the Palestinian people in the occupied territories. This caused 23 European delegates to walk

out, of which only the Czech delegation did not return. The aforementioned incident clearly

demonstrates how controversial and politicized these conferences can be. 18

Just as the Durban Declaration, the outcome document of the Geneva conference was modest.

It calls upon nations to adhere to their duties under different conventions and to work

alongside different UN bodies, especially the Office of the High Commissioner for Human

Rights, to battle discrimination through best practices and measures proposed in the plan of

action of the Durban Declaration.19

16 Ibid.17 The Economist, “UN conference on racism: Avoiding the worst” 23-4-2009 <http://www.economist.com/node/13527953>18 Ibid.19 Ibid.

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The Non-Discrimination-Principal within the United Nations

This section will present the UN Conventions and bodies relevant for the Principle of Non-

discrimination. One of the basic principles of Human Rights Law is the principle of non-

discrimination, it can be found in the first article of the Universal Declaration of Human

Rights (UDHR): ‘All human beings are born free and equal in dignity and rights’20, as well as

Article 7 of the UDHR codifying equality before law.21

The Human Rights Council, which was founded in 2006, as the successor of the Human

Rights Committee. It discusses human rights issues, reports to the General Assembly, and

receives annually monitoring reports on the human rights situation in all countries.

Accordingly, one of its functions is to safeguard the Universal Declaration of Human Rights,

and therefore the non-discrimination principle. Hence, in the Durban Declaration, the Human

Rights Council is also included in the implementation mechanism and is asked to put

emphasis on Racial Discrimination and Xenophobia in its annual country reports. 22

In close collaboration with the Human Rights council, the United Nations High Commissioner

for Human Rights (UNHCHR) is endowed with the protection and promotion of all human

rights for all. The post was established by the Vienna Declaration on Human Rights in 1993.

The UNHCHR is the principal representative concerning Human Rights in the United

Nations. In this function UNHCHR is also the primary negotiator between governments and

UN bodies concerning Human Rights. For this reason UNHCHR chairs the World

Conferences, and intergovernmental committees, and monitors the special rapporteurs under

her auspices.23

The Durban declaration is one of the declarations established under the auspices of the High

Commissioner, therefore the established committees and bodies for monitoring and follow-up

on the declaration are under the office of the UNHCHR. The group of independent experts,

founded by the Durban Declaration, works with the UNHCHR on the follow up of the

Conference to monitor the implementation of the Durban Declaration and helps prepare the

annual reports for the HRC and the GA.

20 http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx21 Shaw, M, International Law 6th edition, Cambridge: CUP, 2008, 279.22 Ibid.23 Ibid.

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The Intergovernmental Working Group on the effective implementation of the Durban

Declaration and the program of action also monitors the effective implementation of the

Durban Declaration. In addition, they develop international standards ‘to strengthen and

update international instruments …’24

In article 199 of the Durban declaration ‘complementary standards’ are mentioned. These

standards were to be developed by the Intergovernmental Working Group, which appointed

an Ad Hoc Committee on the elaboration of complementary standards. With the help of a

group of experts to close legal gaps, the process of elaboration of these standards is ongoing.25

Another working group elaborating on a specific part of the Durban Declaration is the

Working Group of Experts on People of African Descent. They elaborate on rights and

measures especially directed towards people of African descent.26

The Durban Declaration, its working groups and experts, are not only founded on the

principle of non-discrimination and the Universal Declaration of Human Rights. It also builds

upon the Vienna Convention on the Elimination of All Forms of Racial Discrimination,

signed in 1965, entered into force in 1969. This Convention forms the backbone of following

declarations, decades and world conferences on racial discrimination and xenophobia.

With the ratification of the Convention, a committee of independent experts was founded: the

Committee on the Elimination of Racial Discrimination. All parties to the treaty are obliged to

report within two years on the status of Racial Discrimination in their state. Regular reports

are further requested on the process of implementation of the convention.

The committee can receive inter-state complaints and individual complaints; the latter only if

the country signed the additional protocol allowing so. So far, only 25 states are liable for

individual complaints to the committee.27 In 1993 early warning measures and urgent

procedures were established. The latter is to respond to immediate violations of the

Convention by the parties, the early warning procedure is to prevent violations, or prevent

24 The intergovernmental working group, <www2.ohchr.org/English/issues/racism/groups/index.htm>25 The adhoc committee on the elaboration of international standards, <http://www2.ohchr.org/english/issues/racism/adhoccommittee.htm>26 Working group of experts on the people of African descent, <http://www2.ohchr.org/english/issues/racism/groups/african/4african.htm>27 The committee of eminent experts, www2.ohchr.org/English/bodies/cerd/index.htm

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violations from escalating. The committee can take decisions, statements and resolutions, in

these matters.28

Also in 1993, a Special Rapporteur on contemporary forms of racism, racial discrimination,

and xenophobia and related intolerance was appointed. He reports to the Human Rights

Council, communicates in cases of discrimination to the countries, and receives and

investigates individual complaints. National authorities are asked to take necessary measures,

if the allegation is found to be grounded.

Conclusion and Questions for Debate

This Background paper has considered the practice of discrimination and xenophobia and the

institutionalization in the international community of anti-discrimination norms. This shows

us two things.

First, discrimination and xenophobia prevail and are even amplified in the recent years, in

Europe and in the rest of the world. Europe is highlighted, because the increase of xenophobia

is a turn-around in the public debate for many European countries.

Second, the Durban Declaration sets guidelines for further action and monitoring, especially

focused on all types of discrimination. In the description of the different UN bodies, we have

seen that several monitoring procedures, and reporting obligations are in place.

At the same time the Durban Declaration, the plan of action, and the standards it wishes to set,

are still under development. The Geneva conference, the different working groups, and the

ongoing procedures show this clearly.

An anti-discrimination norm has developed, and the International Community is working on

its implementation. Yet, discrimination is not on the decline, anywhere in the world. Then the

question is how one can explain this discrepancy and what the international community can

do to battle this inconsistency. Does the current monitoring system suffice? If not, how can it

be improved?

28 The early warning system of the committee of eminent experts www2.ohchr.org/English/bodies/cerd/early-warning.htm

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Furthermore, it was pointed out in the discussion of the process leading up to the Durban

Declaration and the Geneva conference that discussions relating to racism and discrimination

can be highly politicized. In addition, public opinion towards migrants is generally hostile.

These two factors should be taken into account. To what extent does this affect the

outcome of the norms? How feasible is the effective implementation of these norms, in a

hostile climate? Should we first change the xenophobic attitudes, and if so, how?

References

Camponovo, C. N., “Disaster in Durban: The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance” George Washington International Law Review, 2003.

Human Rights Watch, The World Report 2011, 2011 <http://www.hrw.org/en/world-report-2011>

International Labour Organization, International Migration, Discrimination, and Xenophobia, (2001) http://www.ilo.org/public/libdoc/ilo/2001/101B09_218_engl.pdf.

OECD, Migration Outlook 2010, Paris:2010.

The Economist, “The European Far Right: Dark tales from the Vienna woods” 2-10-2008 <http://www.economist.com/node/12341809?story_id=E1_TNPQTRDJ> retrieved: 19-03-2011.

The Economist, “Far Rights Populism: Tea Parties and a party for Freedom” 10-3-2011, http://www.economist.com/blogs/democracyinamerica/2011/03/far-right_populism retrieved: 19-03-2011.

The Convention on the Eridication of All Racial Discrimination, Vienna:1965, <http://www2.ohchr.org/english/law/cerd.htm>

The Economist, “UN conference on racism: Avoiding the worst” 23-4-2009 <http://www.economist.com/node/13527953>

Shaw, M, International Law 6th edition, Cambridge: CUP, 2008, 279.

WCAR, Durban Declaration and Program of Action, 2001. http://www.un.org/WCAR/durban.pdf

Bodies:

Non-discrimination principle: http://www.ohchr.org/en/issues/Pages/WhatareHumanRights.aspx

14

The intergovernmental working group, <www2.ohchr.org/English/issues/racism/groups/index.htm>

The adhoc committee on the elaboration of international standards, <http://www2.ohchr.org/english/issues/racism/adhoccommittee.htm>

Working group of experts on the people of African descent, <http://www2.ohchr.org/english/issues/racism/groups/african/4african.htm>

The committee of eminent experts, www2.ohchr.org/English/bodies/cerd/index.htm

The early warning system of the committee of eminent experts www2.ohchr.org/English/bodies/cerd/early-warning.htm

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