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Ad Hoc Committee on Complementary Standards holding its 4th meeting in Geneva
Monday, 16 April 2012 14:35

 

The Ad Hoc Committee on Complementary Standards (the Committee) began its 4th session on 11 April 2012 in Geneva and will continue meeting until 20 April. The Committee is mandated by the Human Rights Council (decision 3/103) to elaborate complementary standards in the form of either a convention or additional protocols, to the International Convention on the Elimination of All Forms of Racial Discrimination. In contrast to previous sessions, a programme narrowly focused on xenophobia was adopted swiftly and without objection. However, the threshold issue of defining xenophobia, alongside the more fundamental question of whether complementary standards are necessary at all, may impede fruitful discussion of the content of any complementary standards based on xenophobia. Basic divergences surrounding the Committee’s mandate emerged almost immediately, with Cuba accusing the European Union (EU) and the US of attempting to sabotage the work of the Committee, and strengthened throughout discussions. At this stage, firmly entrenched theoretical views have left representatives talking at cross purposes: while Senegal and Egypt approach xenophobia from a legal standpoint, stressing the importance of concrete definitions for criminal proceedings, the EU characterises it as a cultural and social phenomenon to be addressed primarily through education. Underpinning the debate about definition was the question of whether there are gaps in the existing international legal framework - whether complementary standards are even necessary.

 

Are there gaps in the existing legal framework?

 

The question of whether complementary standards are necessary at all has resurfaced from previous sessions, leading Ms Patricia Nozipho January-Bardill (member of the Committee on the Elimination of Racial Discrimination (CERD)) to urge all participants to ensure that whatever their views on the question, they approach it with an open mind. The debate has two components: first, should xenophobia be addressed through national or international legislative mechanisms, and second, whether existing standards are sufficient. The issue reached an uneasy peak when expert Mr Duncan Breen (Human Rights First) presented his paper on practical domestic measures that governments can adopt to tackle xenophobia. His remarks touched on the assertions by the EU and Ms January-Bardill that bias-motivated violence can be effectively addressed through prevention and education campaigns. Debate was hampered by the fact that no complete discussion has been had about how national measures and international standards should interact. While there was agreement on the fact that a general interplay is necessary, it was complicated by divisions on whether the existing international standards are sufficient to deal with xenophobia. Egypt suggested that the mere occurrence of xenophobic violence, in spite of existing national legislation, is proof of a gap in international law, pointing to the need for complementary standards. Mr Breen, however, emphasised the importance of implementing existing standards, suggesting that countries should develop and share good practices rather than adopting new complementary standards.

 

Is a definition of xenophobia necessary?

 

Various definitions of xenophobia were floated by experts who addressed the Committee, but all insisted that xenophobia is a fluid concept and that any concrete definition would need to be debated and agreed upon by the members of the Committee. Senegal’s appeal for a firm legal definition to enable courts to identify xenophobic motivations behind criminal acts was acknowledged by some members of the Committee. However, the discussion was ultimately limited to tangential debates on whether xenophobia can be cured, whether identity and culture should factor in the concept, and the degree to which complementary standards should focus on victims. Thus far, States have demonstrated reluctance to tackle the underlying question, as posed by the expert Mr Patrick Thornberry (CERD): ‘Are we, in practice, handicapped by the lack of a definition?’. Mr Thornberry suggested that a definition could limit the scope of any complementary standards by excluding some victims of xenophobia based on technical definitions. Overwhelmingly, however, there seemed to be a consensus that problems surrounding a legal definition should not restrict the Committee from protecting victims of xenophobia, particularly in light of the precedent that CERD deals with issues surrounding indigenous rights without defining a class of indigenous people. Yet with some States still insisting on the need for a concrete definition, it remains uncertain how far the Committee can progress in developing complementary standards on xenophobia while avoiding the concerns surrounding its definition.

 

Conclusion

 

While discussions have been circular thus far and failed to address fundamental questions, the issues being raised are crucial to the eventual discussion of the content of any complementary standards on xenophobia. Debate could progress based on a flexible definition of xenophobia, but is likely to reach a stalemate given that ultimately, participants have failed to address the question of whether complementary standards are needed at all.  

Last Updated on Monday, 16 April 2012 14:46
 
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