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The Meaning and Reach of the International Convention on the Elimination of All Forms of Racial Discrimination

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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The International Convention on the Elimination of All Forms of Racial Discrimination (the Convention) is the most important of the general instruments (as distinguished from specialized instruments such as those pertaining to labor or education) that develop the fundamental norm of the United Nations Charter—by now accepted into the corpus of customary international law—requiring respect for and observance of human rights and fundamental freedoms for all, without distinction as to race. It has been eloquently described as “the international community’s only tool for combating racial discrimination which is at one and the same time universal in reach, comprehensive in scope, legally binding in character, and equipped with built-in measures of implementation.”

Type
Research Article
Information
American Journal of International Law , Volume 79 , Issue 2 , April 1985 , pp. 283 - 318
Copyright
Copyright © American Society of International Law 1985

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References

1 660 UNTS 195, reprinted in 5 ILM 352 (1966).

2 On the status of this norm as customary law, see Restatement of the Foreign Relations Law of the United States (Revised) §702 (Tent. Draft No. 3, 1982).

Regarding human rights instruments on discrimination, see generally Marie, , International Instruments relating to Human Rights: Classification and Chart Showing Ratifications as of 1 January 1984 4 Human Rts. L.J. 503, 522-24 (1984)Google Scholar.

3 33 UN GAOR Supp. (No. 18) at 108, 109, UN Doc. A/33/18 (1978) (statement by the Committee on the Elimination of Racial Discrimination at the World Conference to Combat Racism and Racial Discrimination).

4 Schwelb, , The International Convention on the Elimination of All Forms of Racial Discrimination 15 Int’l & Comp. L.Q. 996, 997 (1966)Google Scholar; Lerner, N., The U.N. Convention on the Elimination of All forms of Racial Discrimination 1 (1980)Google Scholar. On the preparatory work of the Convention, see generally Schwelb, supra, at 997–1000; N. Lerner, supra, at 1–6; 2 Review of the Multilateral Treaty-Making Process, UN Doc. ST/LEG/SER.B/21, at 70–72 (prov. ed. 1982).

5 For the background, see N. Lerner, supra note 4, at 2, 68–73; Schwelb, supra note 4, at 1011-15.

6 Schwelb, supra note 4, at 1014-15; N. Lerner, supra note 4, at 72.

7 See text accompanying notes 104-106 infra.

8 The Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief was adopted by the UN General Assembly on Nov. 25, 1981, by Res. 36/55, 36 UN GAOR Supp. (No. 51) at 171, UN Doc. A/36/51 (1981). A convention on the subject is still far from completion.

9 Multilateral Treaties Deposited with the Secretary-General: Status as at 31 December 1981, at 96, UN Doc. ST/LEG/SER.E/1 (1982).

10 A total of 124 states. 39 UN GAOR Supp. (No. 18) at 1, UN Doc. A/39/18 (1984).

11 A total of 160 states. Int’l Rev. Red Cross, No. 242, Sept.-Oct. 1984, at 274.

Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention No. I), Aug. 12, 1949, 6 UST 3114, TIAS No. 3362, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention No. II), Aug. 12, 1949, 6 UST 3217, TIAS No. 3363, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War (Geneva Convention No. III), Aug. 12, 1949, 6 UST 3316, TIAS No. 3364, 75 UNTS 135; Convention relative to the Protection of Civilian Persons in Time of War (Geneva Convention No. IV), Aug. 12, 1949, 6 UST 3516, TIAS No. 3365, 75 UNTS 287.

12 1978 Digest of United States Practice in International Law 440-46 [hereinafter cited as U.S. DIGEST]; Contemporary Practice, 72 AJIL 620, 621-22 (1978).

13 See, e.g., International Human Rights Treaties: Hearings Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. (1980).

14 Opened for signature May 23, 1969, UN Doc. A/CONF.39/27 (1969), reprinted in 63 AJIL 875 (1969), 8 ILM 679 (1969). See generally Sinclair, I., The Vienna Convention on the Law of Treaties 39 (1973)Google Scholar; Restatement of the Foreign Relations Law of the United States (Revised) §314 (Tent. Draft No. 1, 1980).

15 For a discussion of this question, see 28 UN GAOR Supp. (No. 18), paras. 46-48, UN Doc. A/9018 (1973).

16 See Vienna Convention on the Law of Treaties, supra note 14, Art. 31.

17 There is an extensive literature on the Convention. See generally Vincent-Daviss, , Human Rights Law: A Research Guide to the Literature—Part I: International Law and the United Nations 14 N.Y.U. J. Int’l L. & Pol. 209, 278-80 (1981)Google Scholar; McKean, W., Equality and Discrimination under International Law (1983)Google Scholar; N. Lerner, supra note 4; Schwelb, supra note 4; Greenberg, , Race, Sex, and Religious Discrimination in International Law in 2 Human Rights in International Law: Legal and Policy Issues 307 (Meron, T. ed. 1984)Google Scholar; Buergenthal, , Implementing the UN Racial Convention 12 Tex. Int’l L.J. 187 (1977)Google Scholar; Partsch, , Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights 14 Tex. Int’l L.J. 191 (1979)Google Scholar; Ingles, J., Study on the Implementation of Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination, UN Doc. A/CONF.119/10 (1983)Google Scholar. Regarding the conformity of U.S. law with the Convention, see particularly Nathanson, N. & Schwelb, E., The United States and the United Nations Treaty on Racial Discrimination: A Report for the Panel on International Human Rights Law and its Implementation (The American Society of International Law 1975)Google Scholar. See generally Santa Cruz, H., Racial Discrimination, UN Doc. E/CN.4/Sub.2/370/Rev.1 (1977)Google Scholar.

18 Ramcharan, , Equality and Nondiscrimination in The International Bill of Rights: The Covenant on Civil and Political Rights 246, 252 (Henkin, L. ed. 1981)Google Scholar. The notions of nondiscrimination and equality before the law were addressed by the Human Rights Committee in a case of discrimination on grounds of sex submitted under the Optional Protocol to the International Covenant on Civil and Political Rights. Communication No. R.9/3 5 , Shirin Aumeeruddy-Cziffra v. Mauritius, 36 GAOR Supp. (No. 40) at 134, UN Doc. A/36/40 (1981). 19 Fiss, , A Theory of Fair Employment Laws 38 U. Chi. L. Rev. 235, 237-38 (1971)Google Scholar.

20 Id. at 244.

21 33 UN GAOR Supp. (No. 18) at 108, 110, UN Doc. A/33/18 (1978).

22 Schwelb, supra note 4, at 1001.

23 Section 1607.3 of the Uniform Guidelines on Employee Selection Procedures of the U.S. Equal Employment Opportunities Commission (EEOC) states that the use of any selection procedure that has an adverse impact on the hiring, promotion or other employment opportunities of members of any race, sex or ethnic group will be considered to be discriminatory, unless certain conditions have been met. 29 C.F.R. §153 (rev. July 1, 1983).

24 Section 1607.4 of the EEOC Uniform Guidelines, supra note 23, provides that where the user has not maintained data on adverse impact of a selection process, the federal enforcement agencies may draw an inference of adverse impact from that failure. Id. at 154-55.

25 N. Lerner, supra note 4, at 30-31.

26 Id. at 28.

27 Greenberg observes:

The use of the standards of “purpose” and “effect” anticipated the full-blown controversy in the U.S. law of racial discrimination which became important after the U.S. Supreme Court decision in Washington v. Davis [426 U.S. 229 (1978)], that mere discriminatory effect without the purpose of discriminating does not violate the Constitution. Some statutes, however, have been held to forbid discriminatory effect [e.g., Board of Education of the City of New York v. Harris, 444 U.S. 130 (1979)], One may speculate whether the Racial Discrimination Convention, had it been in force in the United States at the time Washington v. Davis was decided, would have brought about a different result.

Greenberg, supra note 17, at 322.

See also Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977).

For a major U.S. example of legislation based on the purpose or effect of racial discrimination, see Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e-2(a) (1982). In Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), the Supreme Court stated: “Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation” (emphasis by Court).

28 See Bonfield, , The Substance of American Fair Employment Practices Legislation I: Employers 61 Nw. U.L. Rev. 907, 956-57 (1967)Google Scholar. Regarding the relevance of effect to the determination of purpose, see Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977). The Supreme Court stated that determining whether invidious discriminatory purpose was a motivating factor demanded a sensitive inquiry. “Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.” Id. at 266.

29 Preamble, para. 2. Regarding reference to a preamble to interpret a treaty, see Vienna Convention on the Law of Treaties, supra note 14, Art. 31(1)–(2).

30 Preamble, para. 7.

31 UN GAOR Supp. (No. 18), para. 468, UN Doc. A/37/18 (1982).

32 Greenberg, supra note 17, at 313, notes the view permitting affirmative action to compensate disadvantaged groups for past discrimination.

33 In discussing Title VII of the Civil Rights Act of 1964, supra note 27, the Supreme Court stated that the Act was

to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.

Griggs v. Duke Power Co., 401 U.S. at 429-30.

34 Fiss, supra note 19, at 297.

35 “See Brown v. Board of Education, 347 U.S. 483 (1954).

36 GA Res. 217A, UN Doc. A/810, at 71 (1948) [hereinafter cited as Universal Declaration]. See also Art. 2 of the International Covenant on Economic, Social and Cultural Rights (Economic Covenant), GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 49, UN Doc. A/6316 (1966); Art. 2 of the International Covenant on Civil and Political Rights (Political Covenant), id. at 52. Article 2 of the Economic Covenant employs the term “discrimination,” while Article 2 of the Political Covenant employs the term “distinction.” The use of the word “discrimination” in the Economic Covenant was apparently intended to allow for preferential treatment of underprivileged groups. Ramcharan, supra note 18, at 258-59.

37 Ramcharan observes that during the drafting of the Covenants, references to equality, equality before the law, equal protection of the law, nondiscrimination and nondistinction were used interchangeably. Ramcharan, supra note 18, at 251.

On equality before the law as a basic human right, see Partsch, supra note 17, at 196; Lillich, Civil Rights, in 1 Meron (ed.), supra note 17, at 115, 132-33. For a comparison of the concept of equality in the U.S. Constitution and international human rights instruments, see Henkin, International Human Rights and Rights in the United States, in id. at 25, 41-43. Regarding the definition of racial discrimination in other human rights instruments, see N. Lerner, supra note 4, at 31-32.

38 See, e.g., 38 UN GAOR Supp. (No. 18), paras. 168, 193, 280, UN Doc. A/38/18 (1983).

39 Schwelb, supra note 4, at 1005.

40 Palmore v. Sidoti, 104 S.Ct. 1879, 1882 (1984).

41 Id.

42 The Court decided, on the basis of the Equal Protection Clause of the Fourteenth Amendment, that “[t]he effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody.” Id. (footnote omitted).

43 N. Lerner, supra note 4, at 37 (in the context of Art. 2).

44 Schwelb, supra note 4, at 1017.

45 It may be noted that the Carter administration proposed an understanding to Article 2(1) and to a number of other provisions stating that its obligations to enact legislation extended only to “governmental or government-assisted activities and to private activities required to be available on a nondiscriminatory basis as denned by the Constitution and laws of the United States.” 1978 U.S. Digest, supra note 12, at 443; 72 AJIL at 622.

46 33 UN GAOR Supp. (No. 18) at 109, UN Doc. A/33/18 (1978).

47 Id. at 110.

48 One member of the Committee, noting that the Race Relations Act of Great Britain “did not apply to personal and intimate relationships, said that it introduced a dangerous degree of flexibility which almost amounted to authorizing discrimination.” 38 UN GAOR Supp. (No. 18), para. 164, UN Doc. A/38/18 (1983). The British representative replied that such exceptions were necessary “in the interest of striking a balance between individual freedoms and government restrictions.” Id., para. 172.

49 Australia’s acceptance of Article 26 “on the basis that the object of the provision is to confirm the right of each person to equal treatment in the application of the law” (Multilateral Treaties, supra note 9, at 119) brought about an interesting exchange between the representative of Australia and some members of the Human Rights Committee established under Article 28 of the Political Covenant. Some members of the Committee argued that Australia’s interpretation of Article 26 was not correct, that the article provided not only for equality of all before the law, but also for equal protection of all by the law against any discrimination. One member of the Committee disagreed and maintained that the article was concerned not with all types of discrimination, but only with the civil and political rights that states must guarantee. The representative of Australia maintained that the latter interpretation was “more in keeping with the original intention of the framers.” 28 UN GAOR Supp. (No. 40), paras. 155, 175, UN Doc. A/38/40 (1973).

50 Schwelb, The International Obligations of Parties to the Convention, in N. Nathanson & E. Schwelb, supra note 17, at 1,7.

51 Nathanson, The Convention Obligations Compared with the Constitutional and Statutory Law of the United States, in id. at 19, 34 (suggesting that an owner renting an apartment within his own private dwelling may be more reasonably entitled to exercise personal preference in choice of tenants than the owner of a large apartment house or a substantial real estate developer).

52 Schwelb, supra note 4, at 1005.

53 39 UN GAOR Supp. (No. 18), para. 238, UN Doc. A/39/18 (1984).

54 Id., para. 256.

55 Schwelb, supra note 50, at 6. See also Ramcharan, supra note 18, at 262 (on prohibited discrimination by individuals, other than in personal and social relationships, under Article 26 of the Political Covenant).

56 N. Lerner, supra note 4, at 38.

57 On this right, see generally Humphrey, Political and Related Rights, in 1 Meron (ed.), supra note 17, at 171, 190-91; Partsch, Freedom of Conscience and Expression, and Political Freedoms, in Henkin (ed.), supra note 18, at 209, 235-37; Frowein, , Reform durch Meinungsfreiheit 105 Archiv Des Öffentlichen Rechts 169 (1980)Google Scholar. Of particular importance is the case of Young, James and Webster, Eur. Ct. of Human Rights, 44 Judgments and Decisions (ser. A, 1981), reprinted in 4 Eur. Hum. Rts. Rep. 38 (pt. 13, 1982), summarized in 1981 Y.B. Eur. Conv. on Human Rights 440 (Eur. Ct. Human Rts.).

58 28 UN GAOR Supp. (No. 18), para. 42, UN Doc. A/9018 (1973). See also id., paras. 53-56; 31 UN GAOR Supp. (No. 18), para. 56, UN Doc. A/31/18 (1976); 33 UN GAOR Supp. (No. 18), para. 21, UN Doc. A/33/18 (1978); Buergenthal, supra note 17, at 208-11.

59 104 S.Ct. 3244 (1984).

60 Id. at 3250-51.

61 Nathanson, supra note 51, at 20-22.

62 Id. at 21 (discussion of Moose Lodge v. Irvis, 407 U.S. 163 (1972)). On state action, see also 3 Franck, T., Human Rights in Third World Perspective 463-66 (1982)Google Scholar.

63 See Tribe, L., American Constitutional Law 1148 (1978)Google Scholar.

64 1978 U.S. Digest, supra note 12, at 443-44; 72 AJIL at 621-22.

65 See generally L. Tribe, supra note 63, at 1147-74.

66 Nathanson, supra note 51, at 21. But see id. at 22.

67 N. Lerner, supra note 4, at 49-50.

68 General Recommendation I, Dec. 3(V), 27 UN GAOR Supp. (No. 18) at 37, UN Doc. A/8718 (1972); 34 UN GAOR Supp. (No. 18), para. 226, UN Doc. A/34/18 (1979); 31 UN GAOR Supp. (No. 18), para. 245, UN Doc. A/31/18 (1976); Buergenthal, supra note 17, at 193-94; Partsch, supra note 57, at 229.

69 See, e.g., 33 UN GAOR Supp. (No. 18), para. 320, UN Doc. A/33/18 (1978).

70 Inglés, supra note 17, para. 216.

71 33 UN GAOR Supp. (No. 18) at 109, UN Doc. A/33/18 (1978).

72 Id. at 110.

73 Inglés, supra note 17, para. 221.

74 N. Lerner, supra note 4, at 45.

75 Id. at 50.

76 32 UN GAOR Supp. (No. 18), para. 286, UN Doc. A/32/18 (1977).

77 39 UN GAOR Supp. (No. 18), para. 270, UN Doc. A/39/18 (1984). The Committee emphasized that it was not enough for the penal code to be applicable to individual members of an organization. The legislation should contain provisions prohibiting such organizations as required by Article 4(b). Id., para. 509.

78 Inglés, supra note 17, paras. 238-240.

79 Greenberg points out that in the United States even groups that preach hatred, such as the Ku Klux Klan or the Nazis, benefit from the right of free expression, and their activities based on racial, ethnic or religious hatred are nearly uniformly permitted to continue. Greenberg, supra note 17, at 323-24. See Collin v. Smith, 578 F.2d 1197, cert, denied, 436 U.S. 953 (1978). But see “Smith Act,” 18 U.S.C. §2385 (1982). For the interpretation of the Act by the Supreme Court, see Scales v. United States, 367 U.S. 203 (1961); Yates v. United States, 354 U.S. 298 (1957); Dennis v. United States, 341 U.S. 494 (1951).

80 P. Hemalatha v. Govt, of A. P., 63 A.I.R. 375 (A.P. 1976), paras. 19-24, reprinted in T. Franck, supra note 62, at 241; The [Nigeria] Director of Public Prosecutions v. Chike Obi, F.S.C. 56/1961, reprinted in id. at 229.

Even in the United States, however, racist invective has been considered punishable as criminal libel, although it was not shown that it involved a clear and present danger to the target group. Beauharnais v. Illinois, 343 U.S. 250 (1952). The present status of Beauharnais is a matter of some doubt. In Brandenburg v. Ohio, 395 U.S. 444 (1969), the Supreme Court emphasized the principle that the constitutional guarantees of free speech and free press do not permit a state to proscribe advocacy of the use of force or of law violation except where such advocacy is directed at inciting or producing imminent lawless action and is likely to incite or produce it. The indictment of a Ku Klux Klan leader was overruled as contrary to the First and Fourteenth Amendments.

Regarding the “Front National” in France and claims for defamation submitted by its leader, Jean-Marie Le Pen, see Le Monde, Nov. 2, 1984, at 8, col. 3 (final ed.).

81 Universal Declaration, supra note 36, Arts. 19, 20, 29, 30; Political Covenant, supra note 36, Arts. 4, 19-22.

82 For statements referring explicitly or implicitly to the limitation clauses of the Universal Declaration in construing Article 4, see, e.g., 33 UN GAOR Supp. (No. 18), para. 279, UN Doc. A/33/18 (1978); 34 UN GAOR Supp. (No. 18), para. 227, UN Doc. A/34/18 (1979).

83 J. Inglés, Study of Discrimination in respect of the Right of Everyone to Leave Any Country, Including His Own, and to Return to His Country 37, UN Doc. E/CN.4/Sub.2/ 220/Rev. 1 (1963). See generally E. Daes, The Individual’s Duties to the Community and the Limitations on Human Rights and Freedoms under Article 29 of the Universal Declaration of Human Rights 129-31, UN Doc. E/CN.4/Sub.2/432/Rev.2 (1983).

84 Inglés, supra note 17, para. 228.

85 33 UN GAOR Supp. (No. 18) at 113, UN Doc. A/33/18 (1978).

86 Id. at 112.

87 See, e.g., id., para. 51.

88 General Comment 11, 38 UN GAOR Supp. (No. 40) at 110, UN Doc. A/38/40 (1983).

89 Thus, one member of the Committee objected to the text of a questionnaire because the question concerning racist theorizing “appeared to assume that Member States were required to penalize all dissemination of ideas based on racial superiority and not merely propaganda activities aimed at encouraging racial discrimination.” 30 UN GAOR Supp. (No. 18), para. 47, UN Doc. A/10018 (1975).

90 Great Britain has interpreted the obligations of Article 4 to be limited by the extent to which they may be fulfilled with due regard to the principles embodied in the Universal Declaration, in particular the right to freedom of opinion and expression and the right to freedom of peaceful assembly and association. Multilateral Treaties, supra note 9, at 104. Other governments, e.g., Belgium, id. at 98, have emphasized the need both to adopt the necessary legislation and to respect the freedoms of expression and association. In transmitting the Convention to the Senate, the United States has made a general declaration limiting the scope of the obligations assumed under the Convention to those which would not restrict the right of free speech as guaranteed by the U.S. Constitution and laws of the United States, and by Article 5 of the Convention. 1978 U.S. DIGEST, supra note 12, at 443. The Government of the Federal Republic of Germany, “after careful consideration, reached the conclusion that dissemination of opinions of racial superiority should be punishable if it was intended to create racial discrimination or hatred.” 32 UN GAOR Supp. (No. 18), para. 87, UN Doc. A/32/18 (1977). See also Ingles, supra note 17, para. 225.

91 39 UN GAOR Supp. (No. 18), para. 303, UN Doc. A/39/18 (1984).

92 On some other aspects of the extraterritorial reach of the Convention, see Buergenthal, supra note 17, at 211-18. See generally Meron, , Applicability of Multilateral Conventions to Occupied Territories 72 AJIL 542 (1978)CrossRefGoogle Scholar.

93 An egregious example of racist remarks can be found in the statement made in the UN General Assembly by the representative of the Libyan Arab Jamahiriya:

It is high time for the United Nations and the United States in particular to realize that the Jewish Zionists here in the United States attempt to destroy Americans. Look around New York. Who are the owners of pornographic film operations and houses? Is it not the Jews who are exploiting the American people and trying to debase them?

UN Doc. A/38/PV.88, at 19-20 (1983).

94 34 UN GAOR Supp. (No. 18), para. 157, UN Doc. A/34/18 (1979). Nevertheless, some members of the Committee noted with regard to a penal provision of Norway, which covered only public utterances and communications, that “private utterances and communications lay outside the field in which the penal law could effectively be applied without an oppressive system of surveillance.” 32 UN GAOR Supp. (No. 18), para. 157, UN Doc. A/32/18 (1977).

95 39 UN GAOR Supp. (No. 18), para. 238, UN Doc. A/39/18 (1984) (in the case of Belgium).

96 Id. The representative of Belgium responded that the Belgian Act “would not apply in the case of a landlord who refused to rent a private apartment to a foreigner, because it would be very difficult to present legal evidence of the grounds for the refusal, unless there were witnesses.” The requirement that the activities of racist associations be known to the public in order to be punishable resulted from the difficulty of proving any practice that was not a matter of public knowledge. Id., para. 244.

97 Id., para. 276 (in the case of Denmark).

98 32 UN GAOR Supp. (No. 18), para. 84, UN Doc. A/32/18 (1977). In reviewing the adequacy under Article 4 of Great Britain’s Race Relations Act, members of the Committee approved a change in that legislation dispensing with the necessity “to prove a subjective intention to stir up racial hatred.” Moreover, they implicitly endorsed absolute liability under Article 4 in disapproving the provision of the Race Relations Act that in the publication or distribution of written matter “it shall be a defence for the accused to prove that he was not aware of the content of the written material in question and neither suspected nor had reason to suspect it of being threatening, abusive or insulting.” 33 UN GAOR Supp. (No. 18), para. 339, UN Doc. A/33/18 (1978). One member of the Committee expressed the opinion “that the question of [the offender’s] good faith and intent did not enter into consideration in the implementation of article 4.” 35 UN GAOR Supp. (No. 18), para. 338, UN Doc. A/35/18 (1980).

99 Inglés, supra note 17, para. 83.

100 Id., para. 235.

101 See generally N. Lerner, supra note 4, at 51.

102 Some states (e.g., the Federal Republic of Germany, supra note 90) insist, nevertheless, upon the requirement of intent.

103 See Multilateral Treaties, supra note 9, at 97-107.

104 Judgment No. 134 B/1981, reprinted in UN Doc. CERD/C/107/Add.4, at 14 (1984).

105 39 UN GAOR Supp. (No. 18), para. 509, UN Doc. A/39/18 (1984).

106 Id., para. 507.

107 See generally N. Lerner, supra note 4, at 32-33.

108 However, the Government of Papua New Guinea justified its caution in protecting ethnic groups on the ground that “protection of one group might be considered discrimination against others.” 39 UN GAOR Supp. (No. 18), para. 284, UN Doc. A/39/18 (1984).

109 E.g., with regard to the provisions of the Constitution of India amended to extend the special reservation of seats in the Parliament and in the legislative assemblies for the scheduled castes and tribes and for the Anglo-Indian community for an additional period of 10 years. 38 UN GAOR Supp. (No. 18), para. 280, UN Doc. A/38/18 (1983). The representative of India stated that 40 years was not a long period to bring to the level of the rest of the community groups that for centuries have been subjected to repression. Id., para. 285. For a discussion of these and other affirmative action provisions of the Indian Constitution as applied to the reservation of a certain percentage of seats in professional and technical colleges in favor of “socially and educationally backward Classes,” see Singh v. Mysore, 47 A.I.R. 338 (Mysore 1960), reprinted in T. Franck, supra note 62, at 428. It is of interest to contrast this case with Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). See also Firefighters Local Union No. 1784 v. Stotts, 104 S.Ct. 2576 (1984).

110 37 UN GAOR Supp. (No. 18), para. 468, UN Doc. A/37/18 (1982). Regarding group rights, see Humphrey, Political and Related Rights, in 1 Meron (ed.), supra note 17, at 171, 171-72.

111 For a discussion of the scope of minority rights under Article 27, see Sohn, The Rights of Minorities, in Henkin (ed.), supra note 18, at 270, 282-87. On minorities in general, see F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, reprinted in UN Doc. E/CN.4/Sub.2/384/Rev.1 (UN Sales Pub. No. E.78.XIV.1, 1979); Ermacora, , The Protection of Minorities before the United Nations 182 Recueil Des Cours 247 (1983 IV)CrossRefGoogle Scholar.

In Communication No. R.6/24 (Sandra Lovelace v. Canada), the Human Rights Committee established under Article 28 of the Political Covenant concluded that Sandra Lovelace, an ethnic Indian who because of her marriage to a non-Indian had lost her status as Indian under the provisions of the (Canadian) Indian Act, was entitled to be regarded as belonging to the Indian minority and to claim the benefits of Article 27 of the Political Covenant. Taking into account the fact that her marriage had broken up, and that she had been absent from the reservation for only a few years, the Committee concluded that to deny her the right to reside on the reservation was not reasonable and constituted an unjustified denial of her rights under Article 27. 36 UN GAOR Supp. (No. 40), Ann. XVIII, UN Doc. A/36/40 (1981). See Bayefsky, , The Human Rights Committee and the Case of Sandra Lovelace 20 Can. Y.B. Int’l L. 244 (1982)Google Scholar.

112 For the meaning of “minorities” in the context of Article 27 of the Political Covenant, see Sohn, supra note 111, at 276-80.

The Commission on Human Rights recently asked the Sub-Commission on Prevention of Discrimination and Protection of Minorities to prepare a definition of the term “minority.” UN Doc. E/CN.4/Sub.2/1984/31. Such a definition would not focus on the interpretation of Article 27 of the Political Covenant. By contrast, Capotorti’s tentative definition (see supra note 111, para, 568) was drawn up solely with the application of Article 27 in mind. It spoke, in part, of a “group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members . . . possess ethnic, religious or linguistic characteristics differing from the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.” Cited in UN Doc. E/CN.4/Sub.2/1984/31, at 2.

113 The Committee has requested information on the machinery for drawing minorities into the political process in compliance with Articles 1(4) and 2(2) of the Convention. 39 UN GAOR Supp. (No. 18), para. 356, UN Doc. A/39/18 (1984) (Vietnam).

114 See generally Sigler, J., Minority Rights: A Comparative Analysis 5, 8 (1983)Google Scholar.

115 Members of the Committee have inquired, rather suspiciously, about the extent of the separation and points of contact “between the elite minority community” of Mauritius and the rest of the population. 39 UN GAOR Supp. (No. 18), para. 254, UN Doc. A/39/18 (1984).

116 E.g., Tanzania. See 38 UN GAOR Supp. (No. 18), para. 330, UN Doc. A/38/18 (1983).

117 See generally. J. Sigler, supra note 114, at 6-10.

118 Sigler observes that “[m]ost nations avoid problems of group rights by simply not recognizing the status of the group.” Id. at 12-13.

119 See generally id. at 10.

120 E.g., should Spanish Basques be identified only as a linguistic minority, or do they constitute a discrete ethnic group? 37 UN GAOR Supp. (No. 18), para. 281, UN Doc. A/37/18 (1982).

121 The representative of Niger argued that discrimination against nomadic groups in his country was economic, not ethnic. 38 UN GAOR Supp. (No. 18), para. 494, UN Doc. A/38/18 (1983).

122 Should Canadian Indians who have left the reservations no longer enjoy the same rights or protections as are afforded to those who remained on the reservations? Was the definition of membership in such groups too restrictive? Id., para. 394. See also note 111 supra.

123 Australia has recognized that its aboriginal citizens constitute a group for whom special and concrete measures are required to promote their development. 39 UN GAOR Supp. (No. 18), para. 328, UN Doc. A/39/18 (1984). Members of the Committee have inquired how the aboriginal people could be helped to achieve in practice their full political and civil rights. Id., para. 335.

124 See generally UN Doc. E/CN.4/Sub.2/1984/31, at 4.

125 The Committee has thus requested that Italy include in its next periodic report a comparative socioeconomic analysis of the various minorities and ethnic groups so that it could be determined for which of those groups measures should be adopted to ensure their adequate development. 39 UN GAOR Supp. (No. 18), para. 300, UN Doc. A/39/18 (1984). The Committee has requested that the Government of the Central African Republic provide information not only on the demographic composition of the population, but also on the socioeconomic situation of the various ethnic groups and about measures to improve the living conditions of the pygmies. Id., para. 117. In emphasizing its interest in the participation of ethnic groups in the economic and political processes, the Committee requested that the Government of Colombia provide information

on the National Development Programme for Indigenous Peoples, measures to help disadvantaged groups and comparative figures for the various groups relating to education, per capita income, housing and medical care. Statistics should also be furnished . . . on the employment of members of the various racial groups in the public service and their representation among elected officials. The Committee would also like to have information on the enjoyment by members of the indigenous population of their political as well as cultural rights, their real situation. . . .

Id., para. 131.

126 In the case of Mauritius, which classifies its population on a religious rather than an ethnic basis, members of the Committee asked how a race relations act could be effective if information on the racial composition of the population was no longer kept. Id., paras. 252, 256.

127 37 UN GAOR Supp. (No. 18), para. 108, UN Doc. A/37/18 (1982).

128 32 UN GAOR Supp. (No. 18), para. 87, UN Doc. A/32/18 (1977) (the Federal Republic of Germany). The Committee requested information on the demographic composition of the Algerian population. Its members asked for clarification regarding the assertion in Algeria’s report that a census of the Algerian population on ethnic or racial grounds would be contrary to Islam. 39 UN GAOR Supp. (No. 18), para. 91, UN Doc. A/39/18 (1984).

129 38 UN GAOR Supp. (No. 18), paras. 513-14, UN Doc. A/38/18 (1983).

130 For the Italian Government, the problem was not the assimilation of the members of minorities, “since they were completely integrated into the Italian society and had the same economic and political rights as the rest of the population, but the preservation of their cultural identity and languages.” 39 UN GAOR Supp. (No. 18), para. 307, UN Doc. A/39/18 (1984).

131 Id., para. 78.

133 29 UN GAOR Supp. (No. 18), para. 121, UN Doc. A/9618 (1974) (Norwegian Lapps and Gypsies). In response to comments from members of the Committee, the representative of Norway indicated that employment opportunities offered to the Lapps allowed them to retain their traditional way of life and that the Government did not try to impose an alien way of life on Gypsies. 31 UN GAOR Supp. (No. 18), paras. 207, 212, UN Doc. A/31/18 (1976).

134 38 UN GAOR Supp. (No. 18), para. 210, UN Doc. A/38/18 (1983) (measures taken by the Government of Venezuela to promote the use of Spanish). The Committee requested information on whether the Government of the Central African Republic recognized and protected the rights of minorities to have their own language and develop their own culture (39 GAOR Supp. (No. 18), para. 117, UN Doc. A/39/18 (1984)) and on what was being done in Colombia to preserve the indigenous languages. Id., para. 131.

135 31 UN GAOR Supp. (No. 18), para. 70, UN Doc. A/31/18 (1976) (Iraqi Kurds).

136 37 UN GAOR Supp. (No. 18), para. 197, UN Doc. A/37/18 (1982) (ethnic groups in Ethiopia).

137 The Committee inquired how the policy of Botswana of “discouraging ethnocentrism among the different ethnic groups could be reconciled with the establishment of a separate house of chiefs in addition to the National Assembly” (39 GAOR Supp. (No. 18), para. 105, UN Doc. A/39/18 (1984)) and “how the efforts being made to preserve racial harmony affected the traditions of various ethnic groups in the country, what provision was made to preserve their culture, and what were the consequences of fostering the process of nation-building while guaranteeing the identity of ethnic groups.” Id., para. 106.

138 37 UN GAOR Supp. (No. 18), para. 162, UN Doc. A/37/18 (1982) (an apparent inconsistency between Panamanian policies of integrating indigenous groups and of maintaining geographically distinct zones for them).

139 In the case of Colombia, the Committee requested information

regarding the indigenous population living in the reservation lands . . . the Government’s land policy, the legal status of reservations, whether the indigenous population had the right to acquire real property elsewhere in Colombia and dispose of it at will, . . . development of reservation lands, . . . how the rights of the indigenous population were protected if a reservation was used for a national development project, whether the indigenous population was permitted to migrate from its reservation land, and, if so, whether it lost its rights to the land from which it had emigrated.

39 UN GAOR Supp. (No. 18), para. 131, UN Doc. A/39/18 (1984).

140 31 UN GAOR Supp. (No. 18), para. 226, UN Doc. A/31/18 (1976) (with regard to the percentage of Ecuadoran Indians who had benefited from Ecuadoran agrarian reform); 37 UN GAOR Supp. (No. 18), para. 102, UN Doc. A/37/18 (1982) (has Fiji reserved for specific racial groups land leased by the Government, and what was the traditional or tribal basis for such leases?).

141 The different policies followed by some Latin American governments on these questions—an amalgam of the various races vs. integration of ethnic groups into the body politic while preserving their respective ethnic characteristics—were noted in 31 UN GAOR Supp. (No. 18), para. 234, UN Doc. A/31/18 (1976).

142 33 UN GAOR Supp. (No. 18), para. 300, UN Doc. A/33/18 (1978) (Brazilian policy of gathering the indigenous Amazon groups into certain areas of the country where they could live in conformity with their traditions or, if they so desired, strengthen their contacts with the outside culture).

143 See, e.g., 28 UN GAOR Supp. (No. 18), para. 63, UN Doc. A/9018 (1973).

144 Id., para. 61. For studies of Article 5, see Partsch, supra note 17; Buergenthal, supra note 17, at 208-11.

145 Art. 21, Universal Declaration, supra note 36 (political rights and equal access to public service reserved to citizens); Art. 2(3), Economic Covenant, supra note 36 (developing countries permitted to make distinctions with regard to economic rights of non-nationals).

146 McKean observes that it is unfortunate that restrictions on aliens were not made more selective and that there is no redress under the Convention for restrictions based upon lack of citizenship. W. McKean, supra note 17, at 158. But see 34 UN GAOR Supp. (No. 18), para. 136, UN Doc. A/34/18 (1979).

147 See 28 UN GAOR Supp. (No. 18), paras. 61-62, UN Doc. A/9018 (1973).

148 See id., para. 59.

149 Id., paras. 61-62.

150 34 UN GAOR Supp. (No. 18), para. 386, UN Doc. A/34/18 (1979).

151 Id., para. 348.

152 28 UN GAOR Supp. (No. 18), para. 64, UN Doc. A/9018 (1973). Regarding the relationship between the Convention and other human rights instruments, see id., para. 62. Buergenthal argues that

if a state is under an international obligation, by virtue of its ratifications of the Covenants, to ensure the enjoyment of a right that is also listed in article 5 of the Convention, and if the state’s failure to do so has more adverse consequences for individuals belonging to a racial minority than for the rest of its population, a violation of the Convention might be made out.

Buergenthal, supra note 17, at 211.

153 Partsch, supra note 17, at 228.

154 Article 14(8) of the Convention is thus different from Article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights, GA Res. 2200, 21 UN GAOR Supp. (No. 16) at 59, UN Doc. A/6316 (1966).

155 38 UN GAOR Supp. (No. 18), para. 23, UN Doc. A/38/18 (1983). The Committee has already commenced considering communications under Article 14. 39 UN GAOR Supp. (No. 18), para. 573, UN Doc. A/39/18 (1984).

156 38 UN GAOR Supp. (No. 18) at 7-13, 138-44, UN Doc. A/38/18 (1983).

157 It was thus argued that “while it was true that the word ‘may’ was used in that paragraph, it was the ‘establishment’ or ‘indication’ of that body that was optional, and not its existence.” 32 UN GAOR Supp. (No. 18), para. 124, UN Doc. A/32/18 (1977).

158 This interpretation ignores the clear meaning of the text. The word “may” was used to indicate the optional nature of the procedure. N. Lerner, supra note 4, at 84. Obviously, the “body” cannot exist unless it is “established” as a new entity, or it preexisted and is identified or indicated by the state party. The procedures outlined in paragraphs 4 and 5 are intended to ensure that local remedies have been exhausted, but the existence of such remedies need not depend upon the existence of the “body”; other judicial or administrative forums providing such remedies may exist.

159 Procedure for Considering Communications from Individuals under Article 14 of the Convention, 38 UN GAOR Supp. (No. 18) at 138, 141-42, UN Doc. A/38/18 (1983). For the current Rules of Procedure, see UN Doc. CERD/C/35/Rev.2 (1984).

160 Meron, , Human Rights—Effective Remedies (Remarks), 77 ASIL Proc. (1983, forthcoming)Google Scholar; see also UN Doc. A/39/484, paras. 16, 21-22 (1984).

161 Inglés, supra note 17, para. 224. The UN Secretariat has advised the Committee, correctly, that even a unanimous decision by the Committee that a reservation is unacceptable would have no legal effect and that the Committee has no authority but to take into account the reservations made by state parties. Id., para. 206.

162 See Greenberg, supra note 17, at 307, 318, 330; Lillich, supra note 37, at 115, 121.

163 Statement by Jerome J. Shestack in the Third Committee of the General Assembly, summarized in UN Doc. A/C.3/35/SR.56, at 12-14 (1980).

164 A detailed critique of this process is outside the scope of this essay. See generally Meron, , Norm Making and Supervision in International Human Rights: Reflections on Institutional Order 76 AJIL 754 (1982)CrossRefGoogle Scholar; Alston, , Conjuring up New Human Rights: A Proposal for Quality Control 78 AJIL 607 (1984)CrossRefGoogle Scholar.

165 On the mandate and legislative techniques of the ILC, see 2 Review of the Multilateral Treaty-Making Process, UN Doc. ST/LEG/SER.B/21, at 183-223 (prov. ed. 1982).

166 On the mandate and legislative techniques of UNCITRAL, see id. at 224-36.

167 On the mandate and legislative techniques of the ILO, see id. at 237-58.

168 Schwelb, supra note 4, at 1057.

169 Pollock, F., Jurisprudence and Legal Essays at xlii (Goodhart, A. ed. 1978)Google Scholar.

170 Id. at 26.

171 Schachter, , The Nature and Process of Legal Development in International Society in The Structure And Process of International Law 745, 777 (Macdonald, R. & Johnston, D. eds. 1983)Google Scholar.

172 See generally Schachter, , Human Dignity as a Normative Concept 77 AJIL 848 (1983)CrossRefGoogle Scholar.