RACIAL DISCRIMINATION AND ETHNIC MINORITIES

The ICERD was adopted on 21 December 1965, one year before the ICCPR. At this point, UN standards on racial discrimination and minority rights had evolved in parallel, so that ICERD was not viewed as a minority rights instrument.³³⁶ The word “minority” or “minorities” does not appear at all in its text. A further obstacle to linking ICERD and minority rights was that the Convention’s initial focus was oppressed majorities, through practices of colonialism and apartheid. That viewpoint would be quickly challenged by CERD, which began its work in 1970. In this early period, many States Parties reporting for the first time to CERD put forward the view that they had no racial discrimination. Hence, CERD’s initial work in relation to minorities took two pathways - first, combatting the view that there was no racial discrimination in the territories of States Parties reporting to the Committee; and second, as part of this, expressly referring to State obligations to protect minorities or minority groups on their territories. For example, as early as 1972, CERD members found in relation to Romania that ‘information on the composition of minorities and other social and demographic data was…lacking in the report’. In 1973, the Committee raised in relation to Brazil ‘the policy of the Brazilian Government with regard to minority groups’. The Committee would evolve the understanding of its scope as inclusive also of religious or linguistic minorities in States Parties, where these have a link with ethnicity – what it would come to term “ethno-religious” and “ethno-linguistic” groups. By the 1990s, CERD would view itself as one of the bodies implementing the UNDM, writing in its annual report that it is ‘acting on the invitation of the General Assembly to give due regard to the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities.’³³⁷

Today, ICERD should be understood as a treaty that clearly engages the protection of minorities. Indeed, given CERD’s extensive practice in relation to minorities, it is, following the ICCPR, the most relevant UN human rights instrument in relation to minority rights protection. However, CERD has never articulated the minority rights aspect of its mandate in the form of a general recommendation. It has provided detail on the rights of Indigenous peoples under the Convention in its GR 23 on Indigenous Peoples (1997).³³⁸ GR 23 opens: ‘In the practice of [CERD], in particular in the examination of reports of States parties under article 9 [ICERD], the situation of Indigenous peoples has always been a matter of close attention and concern.’³³⁹ We may apply the same to minority groups, but the Committee has not offered a similar detailed consideration of minority rights obligations under the Convention. Nevertheless, CERD sessions regularly invoke minority rights in relation to all States Parties to the treaty.

Although CERD has not issued a particular general recommendation on minorities, several of its other general recommendations refer directly to minority groups and rights. For example, its GR 27 on ‘Discrimination against Roma’ refers to the Roma as a minority group and calls on States Parties to ‘endeavour to raise the quality of education in all schools and the level of achievement in schools by the minority community’; and ‘[t]o take the necessary steps, including special measures, to secure equal opportunities for the participation of Roma minorities or groups in all central and local governmental bodies’.³⁴⁰ Its GR 36 on Racial Profiling by Law Enforcement Officials (2020) states with regard to its scope: ‘The Committee has often expressed its concern about the use of racial profiling by law enforcement officials targeting various minority groups based on specific characteristics, such as a person’s presumed race, skin colour, descent or national or ethnic origin.’³⁴¹ GR 36 recognizes that specific groups, including ethnic minorities, ‘are the most vulnerable to racial profiling’.³⁴² Recommendations include special measures to effectively address the under-representation of national or ethnic minority groups in law enforcement.³⁴³ These documents regularly inform concluding observations on minorities.

CERD has a remarkably small volume of caselaw, certainly by comparison with the HRC, comprising 60 decisions on the merits in total. Many of these communications relate to some extent to the protection of minorities or Indigenous peoples, in particular when we consider minorities in the broader sense as inclusive of “non-citizens”.³⁴⁴ Given the absence of the term “minority” from the Convention, the Committee does not usually articulate violations of ICERD expressly in terms of minority rights, even where minority groups are clearly involved. Nevertheless, the language of minority rights can emerge in CERD individual communications. In E.I.F. v the Netherlands (2001),³⁴⁵ the practices of the Netherlands Police Academy were alleged to discriminate against ‘ethnic minority students’, including the petitioner who was a Dutch national of Surinamese origin. The Committee did not consider the facts to disclose a violation on the merits.³⁴⁶ In Anna Koptova v Slovakia (2000),³⁴⁷ the author of the communication, a Slovak citizen of Roma ethnicity, requested the annulment of two resolutions purporting to ban the author and other Roma from entering two municipalities. The petitioner sought redress for ‘the promulgation and maintenance in force of resolutions banning an entire ethnic minority from residing or entering an entire municipality’.³⁴⁸ CERD jurisprudence can therefore operate to protect minorities whether or not it expressly deploys the language of minority rights. In the Koptova case above, CERD agreed that provisions of ICERD had been violated, finding a breach of Article 5(d)(i) which prohibits racial discrimination in the right to freedom of movement and residence.³⁴⁹

In Murat Er v. Denmark (2007),³⁵⁰ a policy by a carpentry college in Copenhagen to accept requests from businesses to only send individuals from a certain ethnic background amounted to racial discrimination in regard to the right to education and training in violation of Article 5(e)(v). The Committee rejected the State Party’s claim that the author was not a victim since his exclusion from traineeships was due to other factors. It noted that ‘the existence of an alleged discriminatory school practice consisting in fulfilling employers’ requests to exclude non-ethnic Danish students from traineeships would be in itself sufficient to justify that all non-ethnic Danish students at the school be considered as potential victims of this practice, irrespective of whether they qualify as trainees according to the school’s rules’.³⁵¹

In Ziad Ben Ahmed Habassi v Denmark (1999),³⁵² the author was refused a loan by a Danish bank on the sole ground of his non-Danish nationality. The author had a permanent residence permit in Denmark and was married to a Danish citizen, and satisfied all the conditions for being granted a loan. The Committee commented that ‘Financial means are often needed to facilitate integration in society. To have access to the credit market and be allowed to apply for a financial loan on the same conditions as those which are valid for the majority in the society is, therefore, an important issue.’³⁵³ It determined that ‘nationality is not the most appropriate requisite when investigating a person’s will or capacity to reimburse a loan. The applicant’s permanent residence or the place where his employment, property or family ties are to be found may be more relevant in this context.’³⁵⁴ It considered it appropriate to initiate a proper investigation into the real reasons behind the bank’s loan policy vis à vis foreign residents, in order to ascertain whether or not criteria involving racial discrimination were being applied. It recommended that the State Party ‘take measures to counteract racial discrimination in the loan market.’³⁵⁵

In Grigore Zapescu v Moldova (2021),³⁵⁶ the petitioner of Roma origin was rejected for a position as a waiter at a restaurant while his friend was accepted on the same day in an identical recruitment process. The decision of CERD focussed on Article 6 which relates to the right to a remedy.³⁵⁷ In past jurisprudence, arguments had been made to the Committee that Article 6 should be considered an “accessory right” which can only be violated once a separate violation of a substantive right has been established. The Committee rejected this understanding.³⁵⁸ As a stand-alone right, Article 6 provides standards on the proceedings by which arguable claims are heard, as well as on the outcome of such proceedings and the remedies that are afforded. Under this first procedural aspect, the Committee requires the reversal of the burden of proof where a prima facie case of racial discrimination has been made out by the applicant.³⁵⁹ This is justified by the fact that the main pieces of evidence are usually in the possession of the alleged discriminator, and the burden in civil proceedings, if not shifted, would unduly weigh against the alleged victim.³⁶⁰ It was held in Zapescu that the petitioner presented an arguable claim, but was left with a disproportionate burden to prove the respondent company’s discriminatory intent. This amounted to a failure to ensure effective protection and remedies in violation of Article 6.³⁶¹ The decision emphasises the important procedural standards in the Convention that operate to protect minority victims of discrimination.

³³⁶ See further David Keane, ‘The Emergence and Evolution of the Protection of Minorities under ICERD’, in Anna-Maria Biro, Carole Fink, Jennifer Jackson-Preece and Corinne Lennox (eds.), The Routledge History of the International Protection of Minorities, 1919-2001 (Routledge 2025, forthcoming).
³³⁷ Ibid.
³³⁸ CERD General Recommendation 23, ‘Indigenous Peoples’ UN Doc. A/52/18, Annex V at 122 (1997).
³³⁹ Ibid para 1.
³⁴⁰ UN Doc. A/55/18, annex V at 154 (2000), paras 18 and 41.
³⁴¹ CERD General Recommendation 36, ‘Preventing and Combating Racial Profiling by Law Enforcement Officials’ UN Doc. CERD/C/GC/36 (2020) para 10.
³⁴² Ibid para 11.
³⁴³ Ibid paras 46-47.
³⁴⁴ On the scope of ICERD as inclusive of these groups, see further CERD General Recommendation 30, ‘Discrimination against Non-citizens’ UN Doc. CERD/C/64/Misc.11/rev.3 (2004). GR 30 refers inter alia to migrants, refugees and asylum-seekers, as well as stateless persons.
³⁴⁵ UN Doc. CERD/C/58/D/15/1999 (2001).
³⁴⁶ Ibid para 7.
³⁴⁷ UN Doc. CERD/C/57/D/13/1998 (2000).
³⁴⁸ Ibid para 5.4.
³⁴⁹ Ibid para 10.1, specifically Article 5(d)(i) ICERD which provides for no racial discrimination in the right to freedom of movement and residence.
³⁵⁰ UN Doc. CERD/C/71/D/40/2007 (2007).
³⁵¹ Ibid.
³⁵² UN Doc. CERD/C/54/D/10/1997 (1999).
³⁵³ Ibid para 9.2.
³⁵⁴ Ibid para 9.3.
³⁵⁵ Ibid para 11.1.
³⁵⁶ UN Doc. CERD/C/103/D/60/2016 (2021).
³⁵⁷ Article 6 ICERD reads: ‘States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination’.
³⁵⁸ Kenneth Moylan v Australia UN Doc. CERD/C/83/D/47/2010 (2013) para 6.2.
³⁵⁹ V.S. v Slovakia UN Doc. CERD/C/88/D/56/2014 (2015) para. 7.4; Gabaroum v France UN Doc. CERD/C/89/D/52/2012 (2016) para 7.2.
³⁶⁰ Ibid.
³⁶¹ Ibid para. 8.10.