Durban-Gone But Not Forgotten: Global Anti-Discrimination Efforts In a Difficult Year

In the new world order, where concerns about national security seem to trump many other aspects of social interaction, questions about discrimination assume an ever-increasing importance. The United Nations World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, which took place in Durban, South Africa only days before last September‘s terrorist attacks, anticipated this state of affairs.

The Durban Conference catalyzed a global conversation about the differential treatment of people based on their race, gender, caste or nationality. It produced two documents, a Declaration and a Programme of Action, which, while lacking the legally binding status of treaties, are widely supported moral visions akin to the Universal Declaration of Human Rights. While dismissed in the United States because of numerous controversies (including an almost single-minded focus on the Middle East conflict), and all but forgotten after September 11, the Durban Conference lives on around the world.

Despite the challenges of the past year, numerous countries are actively confronting problems of systemic discrimination highlighted in the two Durban documents. A recent UN meeting in Mexico City, which gathered delegates from throughout the Americas concerned about these issues, provided an opportunity to take the pulse of international anti-discrimination measures after a uniquely challenging and complicated year. Mexico City, one of the largest urban areas in the world, as well as the oldest city in the hemisphere, was an appropriate venue in which to ponder whether people from different background can live together equitably. The Mexico City meeting also provided a helpful glimpse into the machinery of the international human rights system, in general, and the anti-discrimination mechanisms, in particular.

Critics frequently belittle human rights law as being too idealistic, too altruistic, too Pollyanna-ish. To counter this perspective, a few human rights advocates have recently begun to promote a more neo-realist argument, claiming that it is “in our own best interest” to promote human rights, including anti-discriminatory policies, around the world.”[1] Eerily, one such book was published only a few months before last year‘s terrorist attacks.

Does being nicer to everyone help us be safer? It may be the case that international anti-discrimination law is simply a more aspirational name for national security law. As many of our long-standing ideas about social ordering are rapidly changing in the face of a war on terrorism, so may our long-standing views about social equality and racial justice. The strange year in which to contemplate issues of discrimination may change the language of human rights in ways that activists could never have imagined.

What is International Anti-Discrimination Law?

The Durban Conference and the Mexico City follow-up session highlight one of the main problems in creating a transnational legal order based on the idea that all people share certain inalienable rights.

On one hand, human rights is at its core an anti-discrimination perspective. The ability to live free from invidious discrimination is a fundamental principle in international human rights law. Discrimination is thus an attack on the very notion of human rights—a denial that every person on the earth is equal in dignity and worth. On the other hand, the tragic and violent events of this past year, both in the US and around the world, have exacerbated numerous discriminatory practices. Most often this differential treatment is based upon a person‘s perceived race or ethnicity, but can also be based on one‘s gender, religion, national status or caste.

Treaties are the most powerful expression of international legal agreement on these topics. Numerous human rights treaties exist that address anti-discrimination principles, including the International Convention on the Elimination of All Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention on the Prevention and Punishment of the Crime of Genocide.

Treaties have several functions. One is to commit signatory states to creating domestic laws and structures to carry out the terms of the agreements. Another is to establish international or regional bodies to oversee state compliance with the terms of the particular agreement. These bodies have diverse functions such as reviewing state reports on the terms of the treaty, permitting petitions from individuals or groups affected by the terms in the treaty, providing early warning reports, organizing meetings and instigating investigations on various problems. Thus, although it was more visible than most of these efforts, the Durban Conference was but one component in a large array of machinery through which human rights claims are addressed.

Many non-treaty instruments also exist, which have less binding authority but still function as statements of broadly shared moral aspirations. These documents are compilations of international standards or guidelines for states‘ practice in the specified areas, and include documents such as the Universal Declaration of Human Rights, the UN Declaration on the Elimination of All Forms of Racial Discrimination and even the UN Charter itself. This category also includes statements from UN meetings and conference.

In addition to these international agreements, there are numerous regional legal mechanisms and treaty bodies that address discrimination. In the Americas, among the most prominent are the American Declaration on the Rights and Duties of Man and the American Convention on Human Rights. Taken together, these mechanisms document the view that there is in international law today a legal principle of non-discrimination that applies in matters of race.[2]

The United Nations and NGOs

The UN serves as the coordinating entity for many treaty bodies. The UN establishes and coordinates committees, commissions and conferences to monitor compliance with the different anti-discrimination treaties, such as the Committee on the Elimination of Racial Discrimination[3] and the Committee on Economic Social and Cultural Rights.

In addition, the UN supports the Commission on Human Rights, which sponsored the Durban Conference. It empowers special rapporteurs on topics such as “contemporary forms of racism and racial discrimination.” It also created the Sub-Commission on the Promotion and Protection of Human Rights, and developed an office of the High Commissioner for Human Rights, currently the outgoing Mary Robinson, who oversees many of these efforts. Importantly, because the UN is an organization comprised of member nations, official governmental interests are primarily represented in these documents and bodies.

As a result of these many overlapping bodies, treaties and functions, the UN is far from a streamlined system. [4] Thus, in addition to these “official” state-sponsored bodies, there has been an increasingly significant place for non-governmental organizations. Because of the complexity of the systems, local agencies and coalitions have developed to lobby the treaty bodies, train local citizens to access the machinery and serve as conduit for those with genuine cases who might not know about or be able to access the UN or regional structures. As a result, NGOs are creating avenues to intervene in the various processes and evolving into an ever-more sophisticated and complex network. [5]

For example, in Durban, many of the participants in the NGO meetings were victims of racial and ethnic mistreatment and violence, who seek recognition and voice for themselves: Dalits, Roma, Travelers, Falun Gong and indigenous peoples, to name just a few. Perhaps one success of the NGO meeting was that it promoted a higher profile for victimized groups that had not gained much recognition on the international stage.

Durban—A Beginning

During the several years preceding the World Conference, numerous regional preparatory meetings took place to draft documents and solicit input from leaders of political and civil society. During these sessions, it became clear that the most contentious issues in Durban would be reparations for slavery and colonialism, as well as strong opposition to the Israeli government‘s treatment of the Palestinians. The increasing unilateralism of the US was also shaping up to be a major topic for criticism.

“Durban” consisted of two distinct, yet related events. The first was a five-day meeting of NGOs, where representatives of global civil society drafted a platform that they used to lobby their national representatives during the governmental sessions. The second event was the official UN Conference, which lasted for seven days and took place at the International Conference Center and adjoining Hilton Hotel, which became United Nations territory for the duration of the Conference.

As expected, the United States was under continuous assault throughout the session, being blamed for nearly every imaginable injury suffered by any of the thousands of delegates and their affiliated constituencies. [6] Moreover, the eventual US walkout was seen as evidence of a lack of interest in the rest of the world‘s most pressing social problems. Moreover, the absence of Secretary of State Colin Powell as an African-American who has personally experienced significant racial discrimination was particularly criticized, when, many argued, he could have used his position and prestige to reshape a disappointing meeting into one of considerable substance. [7]

Because the United Nations lacks strong enforcement powers, it relies on the agreement of states to be bound by their obligations.This reality leads the UN in general, and these conferences in particular, to rely on a group-process model. Countries that hold divergent viewpoints on a topic share information and lobby one another using moral, political and intellectual suasion. The national delegates meet in plenary sessions and try to find consensus on the given issue or the language.

What resulted from all this effort? First was a Declaration that addressed issues of racism and other forms of discrimination in general. Second was a Programme of Action, which the UN argues, represents a “practical and workable” version of the objectives set forth in the Declaration. On the international level, the Programme of Action contains a number of suggestions and requests pertaining to the rights and status of: (1) Africans and people of African descent (2) indigenous peoples (3) migrants (4) refugees and (5) “other victims.” On the national level, the Programme of Action urges States to undertake legislative, judicial, regulatory and administrative measures to prevent and protect against racism, racial discrimination, xenophobia and related intolerance, as well as to ratify and implement relevant international and regional legal instruments on human rights and non-discrimination.

For its supporters, the Durban Declaration and Programme of Action provide a new and innovative anti-discrimination agenda and, as such, constitute a vital element of an emerging global dialogue on how to eliminate racial discrimination from our world. They provide a framework for the international community to address racism, racial discrimination, xenophobia and related intolerance effectively.

Others are more cynical. One observer sullenly noted, “If there is any consolation to the failure to reach a break through agreement at the United Nations World Conference…it is that any new standard would have joined a stack of well-intentioned human rights conventions and resolutions that remain basically unenforceable.” [8]

[9]In terms of its effect on the emerging role of non-state actors in international relations and politics, some observers have postulated that the Durban Conference resulted in NGOs establishing "a foundation for global coalition and an emancipatory framework to dismantle structural racism worldwide." For instance, there is now hope that the coalition of NGOs that met in Durban will be a powerful international lobby for discussing the issue of reparations for slavery and other remedies for continued race discrimination. Yet others felt that the overly loud voices of the NGOs doomed the entire Conference by highlighting a few issues that should have been of secondary importance.

Then…

Less than a week after the end of the Durban Conference, the world experienced what may soon be seen as a paradigm shift in how we deal with the Other. One immediately apparent result of the worldwide war on terrorism is that security procedures have introduced widespread discrimination and discriminatory practices based on factors such as race, religion and nationality. To take but one of dozens of ready examples from the United States, people who look Arab are routinely stopped for inspections, including Sikhs who are not Arab at all but who simply wear a head covering. In addition, there have been military detentions and considerable criminal measures, as well as detainment of people from predominantly Muslim countries.[10] Racial profile gained respectability, and people began looking over their shoulder at unfamiliar faces, and listening to unfamiliar accents.

Mexico City

Almost one year after Durban and September 11, the UN invited a group of several hundred state representatives, members of international agencies and NGOs to Mexico City to assess anti-discrimination efforts. The Latin America - Caribbean Regional Expert Seminar, entitled “Implementation Of The Durban Programme of Action: An Exchange of Ideas on How to Move Forward,” was organized by the UN Office of the High Commissioner for Human Rights with the support of the Economic Commission for Latin America and the Caribbean. As the first high-level opportunity to revisit the Durban Conference, the meeting provided insight into global trends of which we in the US remain ignorant.

World news on July 1, the first day of the Mexico City meeting, provided a hint of these developments. In Mexico, President Vicente Fox released highly classified documents that demonstrated the involvement of former high-level government agents, possibly including a former president, in torturing and killing leftist activists in the 1970s. These activists were generally members of Mexico‘s ethnic minority groups. In Russia, President Vladimir Putin‘s government unveiled a restructured criminal justice code, modeled on Western precedent, that will increase protections for defendants. The most dramatic story of the day was the birth of the International Criminal Court. Ratified by more than 70 countries, the Court leapt into existence years before its supporters‘ most optimistic predictions.

Also on July 1, the United States government, perennially opposed to the Court and fearing indiscriminate prosecution of its soldiers, threatened to withdraw its support for all future UN peacekeeping operations. Moreover, the US Supreme Court ruled in support of secret immigration hearings for suspected terrorists.

The Mexico City session stood in stark contrast to the Durban Conference. Instead of massive rallies endlessly denouncing Israel‘s “apartheid-like” treatment of Palestinians, participants calmly analyzed some of the ways that discrimination and racism in the Americas impact health care, labor rights, affirmative action, migration, drug trafficking and child prostitution. The United States did not send a delegation, unlike Israel, the European Union, Ghana and India.

Delegates demonstrated a spirit of camaraderie and constructive engagement with these issues. National security preoccupied everyone, but so did the protection of human rights. One surprising fact was that large number of countries have begun developing national plans of action and human rights commissions based on the priorities of the Durban Declaration and Programme. This activity is proceeding with an explicit recognition that promoting human rights via anti-discrimination measures is an effective national security policy, as a step toward reducing internal dissent and strife. Although Peru and Guatemala may not have to fear Al-Queda attacks, these countries continue to experience internal sabotage and guerilla activity, often by members of ethnic and racial minorities.

Despite all of these regional developments, the United States continues to send confusing messages about the importance of the rule of law in promoting democracy and security. On one hand, the US supports the creation of legal structures and political transparency around the world, such as in Mexico and Russia. On the other hand, it resists any initiative that might impact Americans, such as the ICC. Moreover, its domestic practices are far from exemplary when it comes to detaining terrorist suspects without presenting adequate evidence, or from the countless stories of racial profiling and harassment of citizens and non-citizens alike of Arab and South Asian descent.

The Mexico City meeting demonstrated that despite the new concerns about terrorism, governments and NGOs around the world are busy creating an international legal framework based upon principles of human rights discussed in Durban. These activities are unfolding without the potentially helpful influence of the United States. Indeed, dozens of countries are beginning to think of human rights as an ally of national security, rather than as its enemy, often basing this work in anti-discrimination laws. There is a long-term vision of a world characterized by both greater security and greater justice—the very principles upon which the UN was built.

Noah Leavitt served as a delegate to the Durban and Mexico City meetings for an American NGO. He has worked with several additional UN agencies and tribunals including the International Law Commission, the International Court of Justice and the High Commissioner for Refugees. In 2001, he was a visiting scholar at the Legal Aid Clinic of the University of Cape Town (South Africa). He graduated from Michigan Law School in May.

1. Noah Leavitt attended the Durban Racism Conference and the follow-up meeting in Mexico City as a delegate of a U.S. NGO called the National Coalition to Abolish the Death Penalty. He graduated from Michigan Law School in May.

2. Brownlie, Ian. 1998.Principles of Public International Law. Oxford University Press. p. 602.

3. See Banton, Michael. 2000. “Decision-Taking in the Committee on the Elimination of Racial Discrimination” in The Future of UN Human Rights Treaty Monitoring, edited by Philip Alston and James Crawford. Cambridge: Cambridge University Press.

4. For example, see Andrew Clapham, “UN Human Rights Reporting Procedures: An NGO Perspective” in Alston and Crawford.

5. Keck, Margaret and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca: Cornell University Press.

6. Rep. Tom Lantos, one of the US delegates who walked out of the Conference, called it an “anti-American, anti-Israeli circus.” Lantos, Tom. 2002. “The New World Disorder: The Durban Debacle: An Insider's View of the UN World Conference Against Racism.”The Fletcher Forum of World Affairs Journal 26: 31

7. Koh, Harold Hongju. 2002. “The 2002 Childress Lecture: A United States Human Rights Policy For The 21st Century.”St. Louis Law Journal 46:293.

8. Collingsworth, Terry. 2002. “Boundaries In The Field Of Human Rights: The Key Human Rights Challenge: Developing Enforcement Mechanisms.” Harvard Human Rights Journal 15:183

9. Myers, Samuel L. 2002. “The Economic Implications of WCAR.” Poverty & Race, at 3, 4.

10. This is not necessarily new, however. For a general analysis of problems of racial discrimination in the U.S. criminal justice system see Cole, David. 1999. No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press.