CERD General Recommendation 32 on Special Measures

At its 75th session in August 2009, the Committee on the Elimination of Racial Discrimination adopted General Recommendation 32 on the meaning and scope of special measures in the International Convention on the Elimination of All Forms of Racial Discrimination. Many of the issues raised in an article I submitted to the Committee in March were addressed. (The article will be published in English and Spanish by the ILSA Journal of International and Comparative Law in 2010.) The most important points of the General Recommendation include:

• Paragraph 6 notes that the principle of equality “combines both formal equality before the law with equal protection of the law, with substantive or de facto equality in the enjoyment and exercise of human rights...”
• Paragraph 7 refers to “intersectionality” which addresses double or multiple types of discrimination. It also notes that it is important to distinguish ‘special measures’ from unjustifiable preference.
• Paragraph 8 provides that differential treatment will constitute discrimination unless it is for a legitimate aim and is not disproportional in the achievement of the aim. On the other hand, equal treatment can constitute discrimination if it is applied to persons or groups whose situations are different, as will “unequal treatment of persons whose situations are objectively the same.” “[N]on-discrimination requires that the characteristics of groups be taken into consideration.”
• Paragraph 9 affirms that the Convention protects a broad scope of rights and non-discrimination not only by public agencies but “ by any person, group or organization.”
• Paragraph 11 notes that special measures are but one component of the means for eliminating discrimination.
• Paragraph 12 lists various terms that are used in the context of special measures, such as ‘affirmative measures’, ‘affirmative action’, or ‘positive action’, but it urges the avoidance of terms such as ‘positive discrimination’ as a contradiction in terms.
• Paragraph 13 notes that measures include a variety of legislative, executive, administrative, budgetary, and regulatory measures at all levels of national, regional, and local government.
• Paragraph 14 emphasizes that the obligation to take special measures is distinct from the obligation to secure human rights and fundamental freedoms in a non-discriminatory manner.
• Paragraph 17 mandates that special measures should be enacted on the basis of accurate data, disaggregated by race, color, descent and ethnic or national origin and incorporate a gender perspective.
• Paragraph 18 notes that States parties should consult with the affected communities prior to enacting special measures.
• Paragraphs 19, 20 and 21 reaffirm that special measures do not constitute race discrimination when taken for the sole purpose of ensuring equal enjoyment of human rights and fundamental freedoms.
• Paragraph 22 notes that programs should have the “objective of alleviating and remedying disparities in the enjoyment of human rights and fundamental freedoms affecting particular groups and individuals, protecting them from discrimination.” They should address structural and de facto inequality, which can include those resulting from historical circumstances, but it is not necessary to prove historical discrimination to validate a program. The emphasis should be on “correcting present disparities and on preventing further imbalances from arising.”
• Paragraph 23 notes that protection against discrimination is from any source including private persons. Special measures can be preventative as well as corrective.
• Paragraph 26 emphasizes the limitations of Article 1, paragraph 4 that includes the prohibition against the maintenance of separate rights for different racial groups and specifically disapproves of apartheid which was imposed by the State. It cautions of the need to distinguish those measures from those that secure the existence and identity of certain groups that are recognized within the framework of human rights, such as minorities and indigenous peoples.
• Paragraph 27 notes that the second limitation is that special measures should not be continued after their objectives have been achieved. The length of time will vary in light of the objectives, the means used to achieve them, and the results of their application. It notes that for this reason they should be “carefully tailored to meet the particular needs of the groups or individuals concerned.”
• Paragraph 30 emphasizes the mandatory nature of the obligation that governments have to undertake special measures.
• Paragraph 31 re-emphasizes the application to all levels of government, whether unitary or federal or decentralized states. In federal states, the federal government is “responsible for designing a framework for the consistent application of special measures in all parts of the State where such measures are necessary.”
• Paragraph 32 again emphasizes the “obligation of States parties to adopt measures tailored to fit the situations to be remedied and capable of achieving their objectives.”
• Paragraph 34 also emphasizes that the beneficiaries of special measures may be groups or individuals belonging to such groups. It also provides for the self-identification of the individual concerned unless there is a justification to the contrary.
• Paragraph 35 addresses the similarity in limitations in articles 1, paragraph 4, and 2, paragraph 2. It mentions that the time limitations necessarily involves monitoring of their application and results by using both quantitative and qualitative methods of appraisal. It also notes that States parties should assess what the human rights consequences might be upon an abrupt withdrawal of special measures, especially those that have been established for a lengthy period of time.
  

UN Experts Weigh in on Detention of Migrants

Academics and activists in the United States (including yours truly) have become increasingly outspoken on the detention of immigrants and asylum seekers. The lack of procedural due process in detention decision-making is breathtaking, and has led to expressions of concern by not one, not two, but three United Nations expert bodies of late.
First, the United Nations Special Rapporteur on the Rights of Migrants, Jorge Bustamante, has released his report on his mission to the United States earlier this year (posted on here and here). Among other concerns, the Special Rapporteur found that excessive discretion is placed in the hands of the Department of Homeland Security (DHS)'s bureau of Immigration and Customs Enforcement (ICE) in the detention decision-making process. His report notes the following specific concerns with the United States' treatment of migrants in detention:
• Failing to promptly inform detainees of the charges against them
• Failing to promptly bring detainees before a judicial authority
• Denying broad categories of detainees release on bond without individualized assessments
• Subjecting detainees to investigative detention without judicial oversight
• Denying detainees access to legal counsel
Similarly, the United Nations Working Group on Arbitrary Detention, chaired by Leila Zerrougui, reported in January an increasing trend towards administrative detention of immigrants and asylum seekers without access to administrative or judicial review, and with the purpose of deterring immigration. In addition to concerns similar to those laid out above, the Working Group emphasized the following rights of migrants:
• The necessity of founding the decision on custody on criteria of legality established by the law by a duly empowered authority;
• The desirability to set a maximum period of detention by law which must in no case be unlimited or of excessive length;
• The requirement of notification of the custodial measure in a language understood by the immigrant or asylum-seeker, including the conditions for applying for a remedy to a judicial authority, which shall decide promptly on the lawfulness of the measure and be competent to order the release of the person concerned, if appropriate.
The Working Group is planning a trip to the United States this year.
And finally, last week the United Nations Committee on the Elimination of Racial Discrimination released its concluding observations on the United States' recent periodic reports. The Committee requested that in its next report, the United States provide detailed information . . . on the alleged mandatory and prolonged detention of a large number of non-citizens, including undocumented migrant workers, victims of trafficking, asylum seekers and refugees, as well as members of their families. Here's hoping that this international pressure from several fronts will bring attention to this important issue and prompt reform of US policies on detention of immigrants.