UN Committee examines NZ government's performance
UN Committee examines NZ government's performance
On 15 and 16 August 2017, the government's performance in implementing the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) was considered by the UN Committee on the Elimination of Racial Discrimination (CERD) during its 93rd session in Geneva.
The Committee's Concluding Observations (CERD/C/NZL/CO/21-22) are available here. Peace Movement Aotearoa's summary of the Concluding Observations is available on Facebook, on Scoop, and formatted for printing.
There are eight sections below, with information on: the Convention, the Committee, the NZ government and the Convention, the government's report to CERD, the List of Themes sent to the government by the Committee, NGO parallel reports to CERD, what CERD has said about the NZ government before, and useful links to other relevant information. Please scroll down the page if these internal page links do not work in your browser.
For details of when and where you can watch the session, media releases, statements and who said what in Geneva, please go to this page.
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD, the Convention) was adopted by the UN General Assembly in December 1965, and entered into force in January 1969. The Convention defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of impairing the recognition, enjoyment or exercise, of human rights and fundamental freedoms in the political, economic, social, cultural or other areas of public life. It is the oldest, and the third most widely ratified UN human rights convention, with 178 state parties (as at July 2017) - the text of the Convention is available here.
The Committee on the Elimination of Racial Discrimination (CERD, the Committee) was the first treaty monitoring body created by the UN to monitor and review actions by states to fulfill their obligations under a specific human rights agreement. It comprises 18 independent experts, appointed by state parties, and monitors how states are putting the Convention into practice. CERD usually holds three sessions per year, each consisting of three-four weeks. The Committee reports on its activities to the UN General Assembly via the UN Secretary-General.
Every state party to the Convention is required to submit regular periodic reports to CERD on what legal, judicial, administrative and other steps they have taken to fulfill their obligations to eliminate racial discrimination. The periodic reports are examined by the Committee, in conjunction with information supplied in parallel reports from NGOs. As well as the Convention, the Committee takes into account General Recommendations, which it has developed through time to provide more detailed information on specific topics, to assess whether or not a state party is complying with its obligations under the Convention - CERD'S General Recommendations are available here.
Prior to the session when a periodic report will be considered by CERD, a List of Themes is sent to the state party. The List of Themes covers topics the Committee are particularly interested in discussing during the interactive dialogue with state party representatives, and it is put together by the Country Rapporteur, a Committee member appointed to cover that particular state party during examination of its periodic report. As well as drafting the List of Themes, the Country Rapporteur usually takes the lead in questioning the government delegation during the interactive dialogue, and in drafting Concluding Observations to be discussed and adopted by the Committee.
During the session when the state party's report is being considered, government representatives appear before CERD for an interactive dialogue - to provide a verbal summary of their report, and to answer questions about the report and information provided by others, including NGOs. NGO representatives also have the opportunity to speak separately to Committee members and to answer their questions.
At the conclusion of the session, the Committee releases Concluding Observations for each state party whose report it has considered. CERD's Concluding Observations generally have a brief introductory section, some comment on any positive aspects the Committee has noted, and a list of concerns and recommendations for the state party to implement.
Periodic reports are one of the ways in which CERD monitors whether or not states are meeting their obligations to eliminate racial discrimination, and whether or not they are acting in a racially discriminatory way. In addition, Article 14 of the Convention provides for the Committee to consider communications from individuals or groups of individuals who have been subjected to racial discrimination by a state party. However, this can only happen when a state party has made the declaration required in Article 14 that they recognise the competence of the Committee to consider such communications, and some governments have not.
CERD also has an early-warning and urgent action procedure to respond to actions by a state party which require immediate attention to prevent or limit the scale or number of serious violations of the Convention. This procedure takes the form of direct communications to the Committee from those affected by the actions, or intended actions, of a state party, whether or not that government has made an Article 14 declaration.
More information about the Committee and its working methods is available here .
CERD will hold its 93rd session in Geneva from 31 July to 25 August 2017. As well as considering the NZ government's periodic report, the Committee will consider reports from Canada, Djibouti, Ecuador, Kuwait, Russian Federation, Tajikistan and the United Arab Emirates; and communications from individuals who have been subjected to racial discrimination. The interactive dialogue with NZ government representatives will take place on 15 and 16 August 2017.
The NZ government and the Convention
NZ signed the Convention in 1966 and ratified it in 1972. It was initially given effect in domestic legislation, to some degree at least, by the 1971 Race Relations Act which established the Office of the Race Relations Conciliator. In 1977, the Race Relations Act was modified by the Human Rights Commission Act which established the Human Rights Commission; both Acts were replaced by the Human Rights Act in 1993.
The Convention is not able to be fully implemented here because the constitutional arrangements arising from the notion of parliamentary supremacy mean that there is no way to prevent parliament from passing legislation that is racially discriminatory, or that breaches any of the other international human rights instruments, or to overturn such legislation when it is enacted - even though all of those instruments require effective protection and remedies for those whose rights have been violated.
The NZ government is among the states that has not made an Article 14 declaration which would permit those subjected to racial discrimination to make communications to CERD. This is a curious anomaly because where it is a state party to other international human rights instruments, it generally does accept the competence of those Committees to consider complaints about human rights breaches in relation to their respective Covenants and Conventions, where such provisions exist. There has never been a satisfactory answer from any NZ government as to why this course of action is not allowed in relation to racial discrimination.
However, as mentioned above, the early warning and urgent action procedure allows those who have been (or are about to be) subjected to racial discrimination by a state party to have their situation judged, and in 2005 the Committee considered a communication about the Foreshore and Seabed Act under this procedure. Their decision, that the legislation breached the Convention, as well as commentary on the decision, is available here.
Successive NZ governments have met their requirement to send periodic reports to the Committee, beginning with their first report in 1973 to CERD's 9th session. Since 1986, government reports have been consolidated periodic reports (one document covering more than one periodic reporting round), for example, the eighth and ninth reports were submitted as one document in 1990, and the periodic report submitted in 1994 covered the tenth and eleventh reporting rounds. A list of all of the NZ government's periodic reports to CERD is available here.
The government's report to CERD
In August 2015, a copy of the draft consolidated 21st and 22nd periodic report was released by the Ministry of Justice for public consultation. There was no specific attempt made to consult with hapu and iwi about the contents of the report.
Public meetings for feedback on the draft report were held only in Auckland, on 14 September 2015, and Wellington, on 17 September 2015.
Having examined the consolidated periodic report and the information provided by the government in April 2014 on their implementation of the 2013 Concluding Observations, CERD put together a List of Themes during its 92nd session - topics the Committee is particularly interested in discussing with government representatives during the interactive dialogue on 15 and 16 August 2017. The List of Themes (CERD/C/NZL/Q/21-22) was released in May 2017 and is available here.
NGO parallel reports to CERD
Five NGOs provided information to the Committee, and there was one combined report:
In addition, there was an individual report submitted in April 2017.
If you would like to be added to the human rights NGO information mailing list to receive updates about the UN human rights bodies and New Zealand, or assistance with writing reports, please contact Peace Movement Aotearoa.
What CERD has said about the NZ government before
The Committee's most recent Concluding Observations (CERD/C/NZL/CO/18-20), 17 April 2013 - on the government's consolidated 18th to 20th periodic report - are available here.
Prior to 2013, the Committee commented on the government's compliance with the Convention in their 2007 Concluding Observations (CERD/C/NZL/CO/17) on the consolidated 15th to 17th periodic report; and in 2005, as mentioned above, in their decision on the Foreshore and Seabed Act (CERD/C/DEC/NZL/1, 11 March 2005).
The Committee's Concluding Observations (A/57/18, paras.412-434) in 2002 on NZ's consolidated twelfth, thirteenth and fourteenth periodic reports are available here; and the Concluding Observations (A/50/18, paras.399-459) in 1995 on NZ's consolidated tenth and eleventh periodic reports are available here.
Useful links and other relevant information