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Framework for Communications - V 3

CROSS-CUTTING ISSUES

Legislative issues

ICCPR

Art. 2 (2) : "Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such laws or other measures as may be necessary to give effect to the rights recognized in the present Covenant."

ICESCR

Art. 2 (1) : "Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

CEDAW

Art. 3 : "States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men."

1981 Declaration of the General Assembly

Art. 4 (2) : "All States shall make all efforts to enact or rescind legislation where necessary to prohibit any such discrimination."

Art. 7 : "The rights and freedoms set forth in the present Declaration shall be accorded in national legislation in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice."

Commission on Human Rights r esolution 2005/40

4 (a) : The Commission on Human Rights urges States, "To ensure that their constitutional and legislative systems provide adequate and effective guarantees of freedom of thought, conscience, religion and belief to all without distinction, inter alia by the provision of effective remedies in cases where the right to freedom of thought, conscience, religion or belief, the right to practise freely one's religion, including the right to change one's religion or belief, is violated;".

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Excerpts of relevant paragraphs of 20 years mandate reporting practice (1986-2006)

A/CONF.189/PC.1/7, paras . 119-120 and 140-143:

"119. Moreover, aggravated discrimination tends to intensify or become more likely to occur when the State itself officially adopts the religion of the majority or of the ethnically dominant minority, or subscribes to a particular ideology. The State religion or the religion of the State is not, of course, a characteristic of the religion, but of the State. However, if in its Constitution the State professes its adherence to a particular faith, some will see the mere profession of that faith - whatever the good intentions of the State - as a form of discrimination against the ethnic or religious minority or minorities. In the area of legislation, moreover, some such States adopt clearly discriminatory provisions, as we have seen, in order to impose the constitutionally established religion or ideology, and therefore a particular vision of society and of the universe, on members of ethnic or religious minorities. [Thus, in national systems, de jure acts of discrimination are not racial, but religious, in nature. However, to the extent that they affect ethnic groups, they are also racial in nature (in the broad sense).] This is no doubt one of the most unacceptable violations of an individual's right to have and practice his religion and that of his ancestors. It is true, as the Special Rapporteur has noted, that "States which are or claim to be based on religion may be either exclusive - for the benefit of the predominant religion alone - or open and respectful vis-à-vis other religions" (E/CN.4/1998/6, para . 42). However, to the extent that everything ultimately depends on the goodwill of the State, the personality of those in office at any given moment, and other unpredictable or subjective factors, there is no serious guarantee in law that the State will at all times respect minority ethnic and religious rights.

120. In States with a range of religious and ethnic identities, the constitutional profession of an official religion, a State religion or a religion of the State, may be politically or historically justified, but by its very nature it carries the seed of aggravated discrimination. [In the Waldman v. Canada case of 21 October 1999, the Human Rights Committee rejected the State party's argument that the privileged treatment of a religion (a Catholic school) was not discriminatory because it was a Constitutional obligation. The Committee noted that the fact that a distinction is enshrined in the Constitution does not render it reasonable and objective ( para . 10.4).] As Gordon Allport [1954] puts it, a possible root cause of religious intolerance stems from the fact that religion usually encompasses more than faith. Often it is the focus of the cultural tradition of a group [ The Nature of Prejudice, Cambridge , Mass. , Addison-Wesley, 1954, cited by Odio Benito, op. cit., para . 184]. He notes that this applies to the majority of religions. Therefore, when the State itself announces its religion in its Constitution, the law ceases to reflect the ethnic and religious variety of the society, and the way is opened to arbitrary action and intolerance. [.]

2. Internal protection

(a) Improvement of legal protection, in particular under criminal legislation

140. With regard to States' attitude to legislation in this area, a number of the general recommendations formulated at the United Nations Seminar on the encouragement of understanding, tolerance and respect in matters relating to freedom of religion or belief (Geneva, 3-14 December 1984) (ST/HR/SER.A/16, para . 102) are still of relevance today. They need, however, to be adapted very specifically to the potential discrimination situations with which this study is concerned. For example, high priority should be given to action to implement international standards on the protection of freedom of religion or belief and against racial discrimination. Each State should provide, if necessary and in accordance with its constitutional system, constitutional and judicial guarantees to ensure that freedom of religion or belief and membership of a minority or an ethnic and religious group are protected in a concrete manner by explicit provisions. It would be highly desirable for some States to enact general legislation based on international standards (see, for example, E/CN.4/1999/58/Add.1, para . 72).

141. States must make efforts to enact legislation or to modify existing legislation, as appropriate, in order to prohibit all discrimination based on identification of individuals with multiple groups. Most importantly, positive criminal legislation should be enacted, not only imposing severe penalties on single forms of discrimination, but above all defining a new offence of concomitant racial and religious discrimination, which should carry a specific penalty, and naturally one that is heavier than that imposed for single forms of discrimination, whether religious or racial. [See, for example, article 20, paragraph 2 of the Covenant, which provides that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law". Note that this refers to measures that should be adopted by States in their domestic legislation. See likewise article 7 of the 1965 Convention on the Elimination of All Forms of Racial Discrimination.] United Nations bodies (General Assembly, Commission on Human Rights, etc.) could prepare model legislation for the guidance of States in enacting domestic legislation, as has already been done in the area of racial discrimination. [Model legislation was prepared in response to the call by the General Assembly in its resolution 40/22 of 29 November 1985.] A similar initiative in the area of aggravated discrimination is strongly recommended.]

142. These guarantees must be followed by the establishment of effective remedies for the victims of acts of aggravated discrimination. The effectiveness of remedies depends on a number of criteria that are very well known. [The independence of the body to which the victim appeals, the accessibility of the authority and the flexibility of the procedure, the extent to which the authority enjoys the confidence of the public and of the complainant, the competence and power of the body to restore the right, the appeal to a higher body if the complainant is not satisfied, the rapidity of the procedure and the results of the complaint. See Expert Seminar on remedies available to the victims of acts of racism, racial discrimination, xenophobia and related intolerance and on good national practices in this field ( Geneva , 16-18 February 2000) (background paper prepared by the secretariat, HR/GVA/WCR/SEM.1/2000/2).]

(b) Establishment of an independent authority to ensure equal opportunity and to monitor racial and religious discrimination

143. States should consider establishing, as several countries have already done ( Australia , Belgium , India , Norway , United States ), an independent authority to monitor racial and religious discrimination and, more particularly, aggravated discrimination, and to make proposals for legislative, economic and social reforms. This authority should have genuine autonomy, i.e. its members should be independent of Government, and it must be given guarantees of security and inviolability. Its task would be, inter alia, to receive and consider complaints relevant to its work. It may also initiate and pursue inquiries on its own motion, entrusting them to one of its members or independent specialists. Lastly, it would be responsible for conciliation or mediation, in cooperation with domestic judicial bodies, among the parties belonging to different ethnic and/or religious groups, and for dealing with disputes arising from acts of religious and racial intolerance. [See also A/50/440, para . 22; and Jenö Kaltenback , HR/GVA/WCR/SEM.1/2000/BP.6 (document presented at the seminar referred to in note 143 above).]"

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