United Nations Human Rights Council
UFRGSMUN | UFRGS Model United Nations Journal
ISSN: 2318-3195 | v1, 2013| p.264-285
Xenophobic and Racist Legislations
Gabriela Jahn Verri
André França
1. Historical background
Xenophobia and racism are widespread phenomena, both geographically and
historically developed. It is a hard task to set a milestone of their beginning in
human history. They can be observed through history in the many processes
of identity creation of political unities: from the exclusion of citizenship for
foreigners in Athens and other Greek city-states (Bosniak 2006, 41) to the role of
rivalry between nations on the forging of the nation state and its sovereignty in the
modern international system (Schnapper 1998, 165).
Only recently the idea of equality has emerged as a principle of social
organization. The most significant events that contributed to this change were the
Glorious Revolution (1689), the United States Declaration of Independence (1776)
and the French Revolution (1779). The Glorious Revolution is considered the birth
of the rule of law, which set political institutions to restrain the absolute power
of the king. From the American independence process emerged the American
Constitution and the Bill of Rights, whose first amendment states the freedom to
exercise religion and speech (United States 1791). The French Revolution resulted
in the Declaration of Rights of the Man and of the Citizen (Déclaration des droits
de l’homme et du citoyen, 1789), the cornerstone of the universality of rights and
of human rights as a whole.
Although these were important legal documents promoting the idea of equality,
racism and the aversion to foreigners long remained in these societies. The English
always set differences between them and the locals from their colonies, such as
Indians and Aborigines, (Evans et al 2003, 17-39); Americans often saw their
expansion to the West, including the annexation of Mexican and Native American
territories (1803-53) and their establishment in the Pacific Ocean (1898),as a
duty of the civilized white protestant men (KIPLING 1899); the Déclaration said
nothing about the end of slavery (Blackburn 1988: 174)and the core values of the
French Revolution were defeated by the return of Absolutism with the Congress
of Vienna in 1815.
Racism and other kinds of discrimination against ethnical groups are, in this
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way, a common characteristic of many societies historically. In some of them, in
which hierarchy was the social-organizing principle, discrimination pervaded all
institutions and, thus, law. Following an old religious tradition, in Hindu India
people were divided in birth-ascribed castes and, accordingly, had different social
roles, which were accompanied by different rights (Berreman 1972, 389). Only after
its independence, discrimination on the ground of the castes system was legally
abolished in India, by the Constitution of 1950 in its article 15. Nonetheless, still—
63 years later—this division remains in its society. India is an example that law
reflects social phenomenon; and that changing the first doesn’t have simultaneous
and direct reflection in the second.
Racism and anti-Semitism, the latter often associated with xenophobia, were also
basic traces of Nazism, during the first half of the 20th century. Similar prejudices
were also adopted officially by the State in countries such as Japan (Martel
2004, 245-47). However, the institutionalization of racism was not restricted to
authoritarian regimes: in some parts of the United States, racial segregation was
an official public policy until the Civil Rights movements of the 1960s. In this
same country, the Fourteenth Amendment (1868) ensured a broad definition of
citizen, after the United States Supreme Court denied recognition of citizenship to
African descendants (1856).
The first initiative of the international community towards granting equality
of rights to all, independently from their nations was the Universal Declaration
of Human Rights, adopted by the General Assembly in 1948 and which states
the universality of human rights in its Article 2. Although largely adopted—no
member voted against it—, up until today cases of xenophobia and racism are
recurrent in societies and legal systems.
Xenophobia and racism encompass not only the explicit demonstration of
hatred against foreigners or ethnically different groups, but also limitations to civil
and political, economic, social and cultural rights of specific communities (UN
2001). Constitutions and laws strictly based on religious writings and precepts,
anti-immigrants legislations backed up by social stigma and the formulation of
public policies that do not respect diversity are examples of these. These are not
only contrary to the basic notion of human rights, but also incompatible with the
formation of a more connected and integrated international community.
2.Statement of the issue
2.1. Conception of the issue of legislations with controversial ethnically and
culturally segregative content
The modern State is essentially integrated with the famous concept of “rule
of law”. All members of the United Nations, illustratively, have their own higher
systems to which they are bound and that comprise the “conception of formal
justice and the regular and impartial administration of public rules” (Rawls 1971,
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206). Respect and observance to such rules by the governing power and people
confer effectiveness and legitimacy upon these norms (MacCormick 1995, 21).
A nation’s body of law is the formally structured reflection of its population
and the relations established among it in several manners—socially, politically,
culturally, etc. (Rosenfeld 2001). Simultaneously, a legal and juridical system sets a
confluence of both rights and guarantees that protect its people and legal interests
as a whole. In this context, freedom and equality are two fundamental rights that
have been widely incorporated into most internal legislations and, thus, have been
virtually universalized as human rights by the international community through
treaties, customary law, jus cogens norms, among others (Cassese 2005).
Through these two basic principles of human rights, the protection of a range of
other more specific rights is secured, such as those of non-discrimination, cultural
and religious freedom of expression, as well as indiscriminate access to basic civil
and political rights, ensured in most constitutions and legislative bodies around
the world. These are not only necessary as a way of protecting legal interests, but
are indispensable due to an unpleasantly recurrent, however declining, social
context of racial, ethnical, religious and cultural intolerance. The Preamble to the
Framework Convention for the Protection of National Minorities stresses that
“a pluralist and genuinely democratic society should not only respect the ethnic,
cultural, linguistic and religious identity of each person belonging to a national
minority, but also create appropriate conditions enabling them to express,
preserve and develop this identity” (COE 1995).
Nonetheless, issues related to racism and xenophobia are unfortunately
perceivable among communities and its members due to various complex historical
processes and long-term social structuring. The faces of ethnic-based intolerance
within societies are many, but states commonly take upon themselves to neutralize
such tensions through legislation and public policies that prevent segregative
cultural consciousness (Brown 1994). Institutional respect and promotion of
equal treatment and liberty of expression, particularly in ethnic as well as cultural
and religious spheres, has been consolidated as basic governmental practice.
With the growing diversification of faith and religion, their manifestations
become more varied and more difficult to regulate. For instance, in some
countries, ritual slaughter or animal sacrifice for religious purposes are legally
prohibited, while in others there are regulatory norms that allow them under
certain circumstances (Valenta 2012). However, the possibilities of regulating each
religious or cultural practice in contemporary plural societies are very limited.
These situations often impact minorities and, particularly, ethnic groups, allowing
a segregation that was only structural to become institutionalized, thus reinforcing
already stigmatized discrimination.
Nonetheless, legislative actions have also been perceived in the opposite
direction. In the pursuit of public stability, majority welfare, socially-reflective
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legislation or balance between possible conflicts between fundamental rights,
such as liberty and equality, authorities are sometimes responsible for the
institutionalization of racism, xenophobia and religious and cultural intolerance,
violating universal human rights.
2.2. Spheres of institutionalized ethnic and cultural repression and
intolerance
The issue of legislations and policies that are established or executed in ways
that limit cultural or religious expression, as well as broad social integration of
ethnic minorities, is far from concurrence. There are two basic areas in which
this problem is observed: obstacles in the implementation of freedom of thought,
conscience and religion and the right to manifest it (which comprises cultural
expression), and immigration laws and immigrant settlement policies.
2.2.1. Freedom of cultural and religious expression
Many provisions of international and regional instruments concern the freedom
of belief and the right to manifest it1. One of the most notorious is Article 9 of the
Universal Declaration on Human Rights (UDHR), which states:
“Everyone has the right to freedom of thought, conscience and religion; this right
includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief
in teaching, practice, worship and observance” (UN 1948).
In such terms, freedom of thought, conscience and religion has an internal
and an external dimension (Harris, O’Boyle & Warbrick 2009, 428). The first
comprises the protection of freedom of thought, conscience and religion, which
is absolute and cannot be limited or restricted, lying beyond the jurisdiction of
the state. This forum internum guarantee is the sole right to believe, in one’s heart
and mind (Gomien 2005, 95), while the second dimension, forum externum is the
right to externalize such beliefs, manifesting faith or opinion (Murdoch 2012, 9).
There are limits, however, to the application of the external element of this right.
Article 18 of the International Covenant on Civil and Political Rights (ICCPR,
1966), for example, specifies what might be employed in the justification of such
constraint, in accordance with human rights law standards. According to this
article, as well as to other instruments and customary international law (Schutter
2006, 562), the restriction of religious expression is considered legitimate when
there is a concurring necessity to protect public safety, order, health, or morals or
even the fundamental rights and freedoms of others (ICCPR, 1966, Article 18).
1
International Covenant on Civil and Political Rights 1966 (ICCPR), art. 18; Helsinki Final Act 1975, principle
VII; United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief 1981, art. 1; African Charter on Human and People’s Rights 1981 (ACHPR), art. 8; European
Convention on Human Rights 1950 (ECHR), art. 9; American Convention on Human Rights 1969 (Pact of San
José) art. 12, et al.
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These hypotheses of restriction of the right to freedom of belief, regarded as the
“necessity clauses”, are very controversial, because States often apply them too
broadly in order to restrict rights. Accordingly, the debate concerning the external
character of freedom of belief revolves around how the state can guarantee such
right and to which degree are restrictions to it legitimate (Parker 2006, 17).
Moreover, although freedom of religion is the basic principle of state laicism,
nations constitutionally associated to a certain religion or church are not
necessarily in violation of said right (Murdoch 2012, 26). Religion, today, plays
different roles in nations’ bodies of law. Other than secularism, states may adopt
an official religion, which may either play no significant part in the restriction
of right to expression of faith or have great impact in civil society and its legal
mechanisms, which is the case, for example, of Sharia-adopting countries.
2.2.1.1. Religious expression in overall “secular” states
As the three basic pillars of the laïque2 state, religious neutrality, freedom
of thought and pluralism are normally perceivable in such state’s bodies of
law (Nammour 2011, 21).As considered above, the state plays a critical part in
arbitrating between rights to religious manifestation and questions of public
welfare, as well as protection of other individuals’ fundamental rights. The role of
the religiously neutral state in such outlining must be carefully performed, with
limitations being proportionate to its necessity and unaffected by discrimination
purposes or manner (Parker 2006, 5). The application of the necessity clauses in
secular states, used as means to justify restrictions to the right to express one’s
faith, is a delicate matter, since such clauses found in international conventions—
such as the ICCPR, the UDHR, and the European Convention of Human Rights
(ECHR)—are rather abstract, allowing debate on their legitimacy, purpose or
inevitability.
The first necessity clause contained in the ICCPR—as well as in other
instruments—is that of “public order”, which is understood as “the absence of
widespread criminal and political violence” (Cole 2009, 73). Cases in which stability
is disturbed by religious or cultural manifestations are common and, therefore,
these may be restricted by law. However, it is indispensable to thoroughly analyse
the depth of the disruption caused by it in public and social interaction.
Russia’s federal law of Counteracting Extremist Activity (Russian Federation
2002) is a substantial source of this analysis and consequential debate. The bill
forbids “the founding and activity of public organization whose goals or actions
are aimed at carrying out extremist” activities, which comprises various types of
public display of discrimination (Russian Federation 2002). The arguable content
of the law regarding public order, however, is that it is not restricted to public acts,
allowing religious groups to be included in its scope for conduct during private
meetings. The main consequentialist argument for this law considers the public
2
French expression for “secular”, disconnected with any religion or religious views.
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and social distress potentially caused by unlimited freedom of religious expression,
especially due to violent animosity between different groups. On the other hand,
it is questionable whether strictly private association would actually represent a
menace to public order in such a way as to legitimate its prohibition.
This example is not only justified by the clause referring to public order, but
to moral and safety as well (Parker 2006, 18). The protection of public morals is
observed by international legal instruments as acceptable basis for qualification of
the right to externalize religion or belief3. In this context, restrictive laws act to
protect a morally-oriented society from violent ethical disruption and, indirectly,
from social disarray (ICHRP 2002).
Supporters of the ban of Islamic full face and body-covering veils present, for
example, a moralistic argument for such restriction (Chelser 2010, 43). Muslim
women who wear the burqa and the niqab, long black gowns that cover women’s
body and identity, are said to provoke, particularly in Western population,
demoralizing sensations related to subordination of women, physical discomfort
and social isolation (Chelser 2010, 44). Nevertheless, this is a secondary argument
presented by authorities of countries that have outlawed wearing the burqa or the
niqab in public places, such as France and Belgium (Thomas 2010). The major
argument in support of such prohibitions is that of security. The burqa gives,
paradoxically, the freedom for anyone under it to come and go without being
recognized or identified, hence the institutional worry with such concealment.
In numerous countries, including Muslim ones, the use of the face and bodycovering veil is forbidden in specific situations4 on the grounds that it may
“facilitate various acts of violence and lawlessness from petty crime and cheating
to terrorism” (Chelser 2010, 43).
The issue of public health is also an important one, as many cultures perform
rituals dangerous to their own or to other individuals’ well-being. Not all societies
give such overwhelming significance to the human life and its barely indiscriminate
preservation as most Western ones do, thus there are communities that, even
understanding the risks in certain cultural and religious practices, are not willing
to give them up.
Such is the case of the Xhosa males, members of a South African tribe, as
many others across the continent, perform circumcision at around the age of 18
in precarious conditions. The ritual is done in isolation, over a mountain, by a
religious mentor. The cutting of the foreskin is not mandatory, but most Xhosa
boys want to have it done in the traditional circumstances, for it is the only way in
which they can feel they have left childhood behind and have finally become men.
Nelson Mandela, a member to the Xhosa community, wrote: “An uncircumcised
Xhosa man is a contradiction in terms, for he is not considered a man at all, but a
3
4
Instruments such as the ICCPR, the ECHR, the Pact of San José, among others.
In a hospital in Bangladesh, the use of full-face and body-covering veils was forbidden due to mobile phone
thefts; in some Egyptian universities it is prohibited during midterm exams and female dormitories; in Abu
Dhabi the ban was directed to public offices due to “unrestricted absenteeism” (Colombo).
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boy.” (Mandela 1994). Over forty thousand Xhosa males participate in this ritual
every year. In the last five years, however, at least four hundred have died and
hundreds more have lost their penises (Baza 2013).
There are three major questions to be pondered regarding the public health
clause. The first is whether performing rites that endanger a person’s own health
and life is considered harmful to public health in general, in a way that it can be
subjected to limitation. The second is the well-known cultural relativist issue: up
to what point do authorities have legitimacy to prohibit spiritually and morally
meaningful rituals that each individual is relatively free to undertake or refuse?
Finally, a more delicate issue is how to evaluate such practices when there are
children involved, once conventional human rights—article 18 of the ICCPR, for
instance—allow the moral and religious teaching of children to be in accordance
with their guardian’s beliefs.
Other than these broader necessity clauses, there is the one which refers to
the fundamental rights and freedoms of others. Fundamental rights often conflict
with each other, thus few of them can be absolutely guaranteed and enforceable.
The right to express conscience or creed may, in various cases, threat the
implementation of another fundamental right, which, depending on the context,
can be more urgent. A current example of this clash of fundamental rights is the
practice of female circumcision5, observed mainly in African cultures (Platt 2002,
6). Cultural relativists claim that such customs are disregarded by Western human
rights law as culturally legitimate, while universalist views, setting universal
human rights as moral paradigm, state they are inadmissible due to their violation
of the right to physical integrity of children (Donnelly 1984).
This debate revolves, generically, around questions of proportionality. In
other words, the essentiality of a determined right of an individual should be
proportional to the offense it can legitimately cause to another’s (Letsas 2012). In
the case of religious and cultural expression, the analysis that must be done is how
paramount is the protection of externalization of belief in face of the restriction of
another person’s fundamental rights.
2.2.1.2. Religious expression in religiously-based national legal systems
Secular states commonly recognize the universality of human rights, not only
formally (through ratification of international agreements), but also materially
(through implementation of norms and policies that promote such rights), thus
the breach of these standards is clearly controversial (Nammour 2011). In religious
states, the situation is entirely different. Their legal systems and political practice
are closely intertwined with religious belief, which may occasionally put internal
5
It is important to stress that not all types of so-called circumcision consist in genital mutilation or permanent
physical impairment. There are four main forms of female circumcision performed as religious or cultural
practice in Africa. Two of these involve clitoridectomy, a third relates to the Muslims’ sunna (tradition) and
means cutting off the clitoral outer skin, finally the mildest kind implies a small prick on the clitoris, drawing a
few drops of blood.
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legislation and respect for human rights in a contentious position that is harder
to evaluate and judge. Even when human rights treaties are ratified, nations may
make reservations on them, blurring the line between internationally lawful and
unlawful practice (Etzioni 2006).
Although numerous religious states do guarantee freedom of belief, the right
to express it may be restricted, either negatively or positively. The first case refers
to laws that prohibit a certain behaviour, normally contradictory to the country’s
official religion. As for positive restrictions, legal systems may impose a certain civil
practice based solely on religious grounds, making manifestation or compliance
to a determined religious principle mandatory (An-Na’im 2008).
In most Islamic countries, having a religion is mandatory, while changing
it or marrying someone of another is prohibited. In these societies, not having
a spiritual belief is morally unacceptable and socially reproached. This kind of
repressive legislation is a product of long-term social construction, thus, from
a relativist perspective, it has a certain degree of legitimacy (Ahmed 2002).
Discriminating laws clearly exist in religious countries and minorities may be put
in a fragile position in relation to authorities. However, the discussion regarding
such laws is how to protect minorities as well as basic rights and freedoms while
safeguarding its whole cultural structure.
2.2.2. Immigration laws and the establishment of non-nationals
Immigration is a natural phenomenon that presents substantial difficulties.
Along with the notion of “mother land” and nationalism, a recognition of
belonging may originate a sense of land possession in a nation’s people. However, a
population is often composed not only of various ethnical groups, but of individuals
from different geographical origins or ascendency. These two situations may be
conflicting and generate animosity between members of the same community
(Cornelius 1994).
Xenophobia and ethnical intolerance are problems that have been referred to by
the United Nations, as well as other international organizations, countless times.
National authorities are responsible for creating, through legislative and political
action, as well as long-term guidance, a safe environment for ethnical and cultural
diversity. Such pluralism is seen, by the international community, “as a matter of
enrichment rather than division” (Murdoch 2012, 11).
Notwithstanding, a social fear of the “alien” is not utterly unjustifiable. A
geographical concentration of migration, together with a trail of economic
instability, may make locals hostile to foreigners and apprehensive of the
unfamiliar. This scenario of apparent social unrest alarms not only civil society, but
also governments, which, as a result, end up altering from their role of conciliation
of diversity to one of apprehensive internal protection. This phenomenon, even if
comprehensible, is troublesome (Cornelius 1994). The two most common ways in
which this condition of institutional unease towards immigration presents itself
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are, firstly, through questionably strict immigration laws and, secondly, through
laws and policies that inappropriately discriminate people by nationality, descent
or even race.
2.2.2.1. Controversial immigration laws
In some countries, immigration has become clearly unwelcome. Even in
nations where a great deal of indispensable, yet lower paying, jobs (those which
the locals refuse to apply for) are majorly performed by non-natives, a remarkable
anti-immigration position has been adopted. Along with a fear of socio-economic
problems, states have been taking a more defensive posture towards this issue for
safety reasons. With intensified political tensions, terrorist attacks have become
a recurring fright among governments and societies, leading to the fortification
of border security. There is, however, a blurry line between reasonable security
measures and violent, discriminatory treatment of human beings (Collett 2011).
Australia’s immigration policy, for example, has been recurrently questioned
and criticized for its Migration Act of 1958 (Australia 1958), which still regulates
migratory activity in the country. Among many questionable practices, the act
establishes that any individual found to be in Australian territory irregularly
(without citizenship or visa) is supposed to be arrested and detained until their
deportation. Moreover, the Australian government states that immigration
detention “is not used to punish people [but] is an administrative function”. In
other words, the imprisonment of unlawful non-citizens is not performed for
criminal, but for bureaucratic reasons (Australian Government 2013).
Australia is not the only country on the Pacific Ocean with controversial
immigration laws. From the 1980s, the Japanese industrial sector was going
through difficulties. With its population quickly growing old, the country found
itself in need of labour force, so it started a campaign to bring in workers from
Japanese descent, living in other nations, especially Brazilians (Vogt 2007, 8).
However, mainly after the 2008 crisis, unemployment in Japan grew and presently,
the Japanese authorities are offering these unemployed citizens money to go back
to their country or their parents’ countries of origin and promise never to return.
The Japanese government is promising three thousand dollars for each “foreigner”
and two thousand per dependent to leave the country (Coco 2009).
Another famous debate is over the American-Mexican wall, the message
it portrays and human rights violations occurring along it (FIDH 2008).
Furthermore, American immigration policy has always generated controversy in
regard not only to its policy with the treatment of immigrants, but also to laws
that violate principles of non-discrimination and dignity of the human person
(Jiménez 2011). The Arizona Bill 1070, for example, is one of the latest legislative
acts which have gone into action with those exact characteristics. The bill allows
state law enforcement officers to randomly halt individuals, ask for the required
documents and, in case they cannot be provided instantly, arrest them (State of
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Arizona 2010).
2.2.2.2. Obstacles to the establishment of immigrants
It is not only during migration processes that individuals may be subjected to
measures contrary to basic rights of non-discrimination. Once inside a nation’s
territory, legally or not, an immigrant can have fundamental rights lawfully
violated. The aforementioned fear of social instability is the most substantial reason
for legislative systems to impose restrictions and hardships to the subsistence
of individuals in alien territory. Although understandable, these measures are
hardly defensible. Laws that set apart, in any way, nationals from non-nationals or
contain any other form of ethnic, racial or cultural discrimination are a violation
of articles 7, 23, but especially of article 2 of the Universal Declaration of Human
Rights, which states:
“Everyone is entitled to all the rights and freedoms set forth in this Declaration,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a person
belongs, whether it be independent, trust, non-self-governing or under any other
limitation of sovereignty” (UN 1948).
However clear the cited provisions might be, there has been difficulties
in guaranteeing, for example, homogenous labour law, health care, political
rights, education policies, among others. Immigrants already have documented
structural disadvantage in relation to work, due to the well-known problem of
socially-based xenophobia and racism. In employment law, where the observance
of fundamental rights is a key element, the situation is, unfortunately, not entirely
different. Non-nationals do find legal difficulties in the professional market,
a problem which burdens mostly European legislative systems. In France, Italy
and Estonia, to mention a few, aliens, even when legalized, cannot lawfully access
public sector jobs (FRA 2007). In France, for example, such jobs, together with
the approximately one million private sector jobs that are closed to foreigners,
comprehend one third of all jobs in the country (FRA 2007, 63).
Besides the employment sector, foreigners may find institutional obstruction
in the area of public health. In countries where there is a public health care system,
aliens often encounter barriers in obtaining the required documents to ensure that
they are able to thoroughly use public hospitals and accessible medicine (Adjami
2008). These are broad discussions composed of specific situations that must be
individually analysed for the proper establishment of the most desirable forms
of equality and freedom. It is necessary to take into consideration human rights
in association with notions of cultural diversity and protection of minorities,
respecting both in a harmonious manner, to only then be able to establish
guidelines on how to secure a pacific pluralist coexistence.
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3. Previous international action
The International Bill of Rights, which consists of the 1948 Universal Declaration
of Human Rights (UDHR), the 1966 International Covenant on Civil and Political
Rights (ICCPR) and the 1966 International Covenant on Economic, Social and
Cultural Rights (ICESCR), is the basis for all international legal documents
on human rights. Thus, it is the background for any discussion on racism and
xenophobia. Articles 2 and 7 of the UDHR stand out as guarantors of equality in
any matter (UNGA, 1948); as well as Articles 2 (1), 20 (2) and 28 of the ICCPR
(UNGA, 1966a). While the latter focuses on individual rights, the ICESCR, as its
name says, covers important economic and social rights; but it leaves important
exceptions to economic rights for non-nationals in developing countries (UNGA,
1966b, Article 2, para. 3).
Since the foundation of the United Nations, important treaties and covenants
have been signed by the international community on the specific matter of
discrimination. The Convention of the Prevention and Punishment of the Crime
of Genocide (1948) rules on the most violent act of discrimination: the destruction
of a national, ethnical, racial or religious group (UN, Art. 2). The 1951 Convention
Relating to the Status of Refugees and the 1954 Convention Relating to the Status
of Stateless Persons both include non-discrimination provisions (UN, Art. 3). The
International Convention on the Elimination of All Forms of Racial Discrimination
(1965), nonetheless, is the main document regarding discrimination of all kinds.
It binds all parties of the convention to eliminate racial discrimination by public
and private institutions and individuals (UNGA, Art. 2). In November 1973, the
General Assembly adopted the International Convention on the Suppression and
Punishment of the Crime of Apartheid (ICSPA), also an advance in the global fight
against racial discrimination. Notwithstanding, many countries are not parties
to the ICSPCA: the United States of America, the Federal Republic of Brazil, the
Republic of India, the Republic of South Africa, the entire Oceania and Western
Europe, for instance (UN 2008).
The Special Rapporteur on contemporary forms of racism, racial discrimination,
xenophobia and related intolerance, appointed in 1993 by the former Commission
on Human Rights, is an active member of UN is this matter. His annual reports
to the General Assembly and the UNHRC are valuable contributions to the
discussions.
The “World Conference on Racism” consists of international events organized
by United Nations Educational, Scientific and Cultural Organization (UNESCO)
aimed at discussing and proposing policies against racial discrimination. Since its
first edition in 1978, three more conferences were held (1983, 2001 and 2009). The
latest, named Durban Review Conference, was intended to evaluate the progress
made worldwide based on the 2001 Durban Declaration and Programme of Action
(UNGA 2007). The 2009 edition had expressive cases of no-show by western
countries due to divergences on the focus of discussion. The 2001 Declaration was
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considered by many of the boycotters as anti-Semitist and strictly turned against
the West (CNN 2009). Yet, the document produced in the 2001 meetings has shed
light over considerable effects of colonization in producing social, economic,
cultural legal structures based or favored by racism and xenophobia. Having been
held in Africa, the Declaration repeatedly mentions the continent (UN 2001, Art.
34 and 35). Many articles (e.g. Art. 22, 25 and 27) approach the institutionalization
of racism, xenophobia and other forms of discrimination through legal structures
provisions (UN 2001).
Moreover, regional organizations also play a fundamental role in fighting
racism and xenophobia worldwide. The Organization of American States (OAS),
The Organization of the African Union (OAU), the European Union (EU) and
the Association of Southeast Asian Nations (ASEAN) have human rights regimes;
and, except for the ASEAN, they all have specialized courts on the matter. The
EU Agency for Fundamental Rights has a special agenda for “Racism & Related
intolerances” (FRA 2013), while the OAS, through the Committee on Juridical
and Political Affairs of the Permanent Council, established a “Working Group to
Prepare Draft Legally Binding Inter-American Instruments against Racism and
Racial Discrimination and against All Forms of Discrimination and Intolerance”
(OAS, 2011 (d)). The OAS also maintains a “Rapporteurship on the Rights of
Persons of African Descent and against Racial Discrimination” (OAS 2011 (c)).
These are important initiatives, which allow the creation of regional bodies
for combating racism and xenophobia in accordance with specific regional
understandings of human rights.
International and regional courts have judged a handful of cases regarding the
full respect of the above-mentioned documents. For instance, the International
Court of Justice judged the case Georgia v. Russian Federation, in which the
Republic of Georgia accused the Russian Federation of repeatedly violating many
articles of the CERD during its intervention in South Ossetia and Abkhazia, from
1990 to 2008 (ICJ 2008). The European Court of Human Rights is the most active
court dealing with discrimination: thousands of cases have been decided dealing
with accusations of violations of Article 14 of the European Charter on Human
Rights, which prescribes the right to non-discrimination. Likewise, a variety of
petitions to the Human Rights Council (OAS 2011 (a)) and judgments in the
Human Rights Court (OAS 2011 (b)) of the Organization of American States deal
with racial discrimination by State members, motivated by many reasons, from
extrajudicial killings to unequal access to fair trial.
4. Bloc positions
The European Union, whose Member States are all parties to the European
Convention of Human Rights, takes an universalist approach to human rights,
meaning that the subjugation of consolidated fundamental rights to religious
and cultural practices is generally intolerable. Such condition is reflected in most
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internal bodies of law among European countries. One of the most prominent
examples is that of France regarding its legal ban of religious symbols and
expression in public service and buildings. Moreover, in 2010 the country also
generated much controversy with what is popularly known as the “Burqa Ban”,
outlawing the use of full-face veils in public space. The French administration
states that the grounds for these measures are the protection of equality, respect to
women and national security.
The United Kingdom of Great Britain and Northern Ireland is not an
entirely secular state. The Protestant Reformed Religion is established by law
as the kingdom’s official faith and is professed by both the Heads of State and
Government. However, like France, the United Kingdom adopts an universalist
position, protecting freedom of conscience, but giving priority to the protection of
fundamental rights as conceived by Western countries. Conflicting with this view,
situations of racial discrimination in public services have been recurrently noted
in several human rights reports, particularly in health care and police. As far as
immigrants’ rights are concerned, in early 2013, Prime Minister David Cameron,
made a statement about future changes in the justice system that should “restrict
access to new immigrants” (Chauvin et al 2010, 28).
Other European countries have expressed the same universalist viewpoint
and the issue concerning immigrants’ rights has been a growing concern in this
context. In Spain, for example, former Prime Minister Aznar has expressed that
“[m]ulticulturalism splits society” (Fekete 2010, 19), while in the Netherlands
the use of the face-covering veil has been restricted since 2010 (Ismail 2010, 4755). Germany’s Constitution protects freedom of belief and its criminal code
prohibits the insulting of faiths. However, the Holy See has some kinds of control
over public services, such as universities in some regions, (IHEU 2010, 26) and
the country presents some questionable policies concerning immigrants and their
establishment (Peucker 2009).
Both the United States of America and Australia have implemented
controversial immigration laws. These laws are not only related to immigrants’
civil life, but also allow for the detention and arrest of any individual for suspicion
of being inside national territory illegally on feeble grounds6 (Oberman 2012).
The Russian Federation has frequently conveyed its commitment to the
protection of freedom of belief, positioning itself as multiculturalist (Blackburn
2012). The country has, nevertheless, expressed minimum tolerance with
discrimination and “extremism”, having legal instruments that limit topics of
discussion even in small and private congregation of religious and cultural
character (Parker 2006, 18). Much like Russia, Serbia, Romania and Bulgaria,
give article 9 of the European Convention on Human Rights a more restricted
approach, assertively employing the so-called “necessity clauses” as justification
for limitation of the right to express religious belief. Such position is mostly due to
6
e.g. [Australian] Migration Act and [American] SB1070.
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the ethnical and religious diversity in the region, which is commonly the source of
hostilities among these groups (FRA 2007).
The case of Turkey is a complex one, as the country currently goes through
a transition that has been addressed as “second revolution” (Steinbach 2011,
49). At the time of the country’s foundation, around 1923, the first Turkish
president Mustafa Kemal “Atatürk”7 began a series of reforms to separate the new
republic from its Islamic past. Accordingly, the secular Republic of Turkey has
adopted extremely universalistic views on human rights and concomitantly with
dissociation between public service and space and religion. For instance, the use
of headscarves has been banned in public buildings. Simultaneously, however, the
country not only maintains religious—mostly Sunni-oriented—elements in its
constitution and public policies, but has been seeing, since the rise of the Justice
and Development Party8, reforms that reestablish the relationship between the
Islam and the state (Steinbach 2011).
In non-secular states where religion guides legislative principles, the restriction
of religious and cultural expression, as well as the opposition to “Western standards
of human rights”, is much more transparent. In Afghanistan and Iran the only
tolerable expression of faith is that in accordance with Sharia law. Punishment is
directed not only at cases of blasphemy or insulting of the Islam, but perpetrators are
actually discriminated in criminal codes—as well as in other legal instruments—,
being more intensely sanctioned in case they are not Muslims. Similarly, Pakistan
and Syria find that fundamental rights may fluctuate according to cultural
predominance (United States Department of State 2009; IHEU 2012). Pakistan
restricts freedom of religion through its Constitution and other laws (IHEU 2012,
49), while Syria protects the right to choose and express one’s faith freely (United
States Department of State 2009). However, both have clearly outlined legal
differentiation in treatment between Muslim and non-Muslim citizens.
The Kingdom of Saudi Arabia allows no freedom to choose or express one’s
faith and it also restricts Muslim activity to the government’s Sunni interpretation
of the Sharia through legal instruments and public policy. On the other end, Iraq
is an Islamic state that respects religious freedom and, as stated in its Constitution,
must have no law contradicting “the established provisions of Islam” as well as
the principles of democracy (United States Department of State 2012; Al-Zubaidi
2011).
Israel has no formal Constitution but through “Basic Law” it protects freedom
of belief. It declares itself a Jewish state, but, through its “Declaration of the
Establishment of the State of Israel”, it also establishes full social and political
equality. These, however, are not entirely met by the local Orthodox authorities that
arbitrate civil life as a kind of judiciary. Moreover, there is still legal discrimination
7
8
Honorific surname meaning “Father of the Turks”
Both the head of state and government are representatives of the Ak-Parti (“white party”): the president, Abdullah
Gül and the Prime Minister, Recep Tayyip Erdogan.
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of non-Jewish and often of non-Orthodox individuals. For instance, for a marriage
between non-Orthodox Jews to be recognized by the Israeli government it must
be performed outside of the country, since “civil marriage” is not allowed.
Indonesia expresses a pluralist view of culture and faith and endorses the
universal validity of human rights (Gunawan et al. 2010, 3). Concurrently, it
requires all citizens to associate with one of the six religions recognized by the
government (IHEU 2012, 22). Home to the largest Muslim population in the
world, the country still has restrictive laws such as the “Blasphemy Law”, which
is said to be “adverse to human rights principles and irrelevant to a democratic
Indonesia” (Gunawan et al. 2010, 5).
Up north, the number of officially recognized faiths lessens to five in
China—Buddhism, Daoism, Islam, Catholicism, and Protestantism—where all
religious practice must be regulated by “patriotic religious associations”, which
are government-run organizations (Berkley Center for Religion, Peace & World
Affairs 2013). Moreover, the People’s Republic of China declares that it “respect[s]
the principle of the universality of human rights and the principle of indivisibility
of human rights” (Blackburn 2011, 15). Nonetheless, the Chinese government still
stresses that “it is natural for countries to have different views on the question of
human rights” (Blackburn 2011, 15).
The Philippines and India are both secular states that constitutionally
acknowledge all faiths (United States Department of State 2010). The latter
promotes the universality of human rights while observing its cultural diversity.
However, the legal situation differs from the country’s social reality, which is one
of somewhat regular religious hostility and perceivable social ranking.
Japan has been repeatedly addressed for issues relating to racism and xenophobia
in its society (Gurowitz 1999). The Japanese constitution guarantees equality and
condemns discrimination of any kind. However, the lack of civil legislation that
protects minorities allows the Japanese historical ethnic segregation to shape its
society. Job descriptions that publicly rule out non-Japanese applicants or signs
at commercial establishments that read “Japanese Only” are quite common as
a result of this lack of regulation (Sakuraba 2008). Furthermore, Japan has very
questionable immigration policies (Vogt 2007).
Neighboring Democratic People’s Republic of Korea provides for legal
equality in its Constitution, but, as any decree by leader Kim Jong Un has superior
authority to any legislative instruments, the existence or not of laws that protect
or discriminate and segregate minorities are not particularly significant (Socialist
Constitution of the DPRK 1972; Yoon 2003). For instance, even if the constitution
does promise freedom of belief, due to restrictive “necessity clauses” present in
it, religious activity has to be recognized and regulated by the state (Yoon 2003).
Regardless, many people involved with both authorized and unauthorized
religious practices are known to have suffered severe punishment (United States
Department of State 2013), for officially the one true faith of North Korea is that
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of “Juche”, the “immortal ideology” founded by Kim Il Sung, “father of socialist
Korea” (Democratic People’s Republic of Korea 1972, Preamble).
The African Union Charter on Human and People’s Rights has nondiscrimination and the universality of human rights among its pillars, which—in
the subject of ethnically, religiously or culturally restrictive policies—means that
its members do not tolerate human rights abuses even in the possible grounds
that they might be necessary to cultural manifestation. Although this position is
officially adopted by most African states, some legislations and public policies that
may be discriminatory have been identified in some nations. Illustratively, under
a primary analysis, Egypt—a secular state—seems to have no segregationist laws
in its national legislation (IHEU 2012). However, a closer look at the country’s
juridical system shows that Islam-based principles are sometimes used as a
secondary source of law in civil litigation, even in cases not involving Muslim
citizens (Agrama 2010).
Due to the wide number of cultural and religious differences among the peoples
of the continent, many African countries struggle to regulate traditional practices
that border human rights violations. Male and female circumcision is a clear
demonstration of that conflict. Ethiopia, Mali, Somalia, Nigeria, Liberia and
Côte d’Ivoire are constitutionally established as secular nations in which freedom
to practice religion is guaranteed and where these traditions are especially common
and fairly unrestricted. The main issue concerning such cases is finding where the
human rights violation lies: in the restriction of such practices or precisely in their
endorsement, considering their status as cultural expressions.
In August 2011, Libya introduced a Constitutional Declaration, which is the
country’s provisional major source of law (Democracy Reporting International
2011). The document establishes the Islam as the nation’s religion, but also
protects freedom of belief among non-Muslims. The Sharia is Libya’s mains source
of legislation, but it differs significantly from the commonly exercised Islamic law
(Libya 2011). Since the overthrow of the Gaddafi government, cases of targeted
sub-Saharan immigrant workers have been registered, especially in September
2011 (HRF 2012, 20).
Even though legal codes from the Democratic Republic of Congo (DRC)
and Rwanda are apparently discrimination-free when it comes to race and
culture, in practice, the situation is not so impeccable. In Rwanda, for example,
illegitimate and unlawful punishment has recurrently been ordered by the
government, in deviation from national law principles (HRW 2008). Moreover,
as far as segregationist laws go, both the DRC and Rwanda have been addressed
by the Human Rights Watch as well as other human rights organizations about
their legally sanctioned unequal treatment of women and members of the LGBT
community (Mbambi et al. 2010).
South Africa’s history of racial segregation and discrimination is not present
in its legal system any longer. In recent times, however, the discussion has shifted
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to a cultural one, surrounding the aforementioned topic of genital mutilation
both in men and women. The South African Government, along with the World
Health Organization, does not recognize the persistent exercise of FGM (“Female
Genital Mutilation) in the country. Paradoxically, it has instituted several social
initiatives to restrain such practice (Kitui 2012). These measures are, nonetheless,
in accordance with several reports made by international organizations in the
country that do observe significant existence of FGM in South African society
(Ali 2010).
Argentina, Brazil and Chile separate state and religion in their Constitutions
and guarantee cultural and religious freedom and equality for all. Brazil has some
procedural laws that differentiate indigenous populations for the purpose of their
effective access to the due process of law. All three nations respect and promote
the principle of universality of human rights (IHEU 2012).
The Latin American culturally relativist wing is represented mainly by Cuba,
Bolivia, Venezuela and Colombia. This is a position sustained by “a plurality which
is constitutive of the State and that is in accordance with human rights standards
given the principles of self-determination” (Blackburn 2011, 28). Neither country
shows any evidence of discriminative laws or segregationist public policy.
5. Questions to ponder
1. Are human rights really universal or should they be adaptable to culture,
religion and personal beliefs?
2. What are the limits to the promotion of universal human rights facing
freedom of religious expression?
3. To what point can the necessity clauses be used by governments to limit
cultural and religious manifestation?
4. Are states in a legitimate position to establish which religious practices and
personal beliefs are authorized and further sanction dissident nationals? How is
that situation different for non-secular states?
5. How can states deal with the dilemma of immigration versus national
security while attending to basic principles of human rights?
6. What responsibilities do states have in protecting immigrants from social
discrimination?
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Abstract
Issues relating to cultural, ethnical, religious and racial discrimination have recurrently been
topics of discussion within United Nations organs. There is a major interest in building successful
coexistence among ethnically diverse members of the same community. Even though it is
expected to encounter natural social hindrance in the construction of harmonious coexistence,
the implementation of governmental policies that are clearly counterproductive to that purpose
is gravely worrying. Today, laws and public policies reflecting racism and xenophobia are in
force mostly in Europe, North America and Muslim-majority countries. On the other hand,
these laws are rarely unjustified or illegitimate, since they reflect a certain social and cultural
reality that must not be ignored. At the same time that they may affront basic principles of
human rights, such as equality and freedom, they echo the concrete social situation of a country,
having, therefore, legitimacy within its own judicial system. In addition to questions regarding
justification and legitimacy, there is the issue of sovereignty. Although international treaties must
be respected by signatory states, these must find a way to manage, along with their socio-political
context, international agreements with their legislative body. Accordingly, the main challenge in
this respect is maintaining nations’ legal, juridical and political independence while honoring
signed conventions.
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