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Ad Hoc Committee on the elaboration of complementary standards

The Durban Declaration and Programme of Action, in its paragraph 199, “recommends that the Commission on Human Rights prepare complementary international standards to strengthen and update international instruments against racism, racial discrimination, xenophobia and related intolerance in all their aspects”. This task was entrusted to the Intergovernmental Working Group to follow up on the Durban Declaration and Programme of Action.

The Commission on Human Rights, in its resolution 2002/68, created the Intergovernmental Working Group to follow up on the implementation of the Durban Declaration and Programme of Action adopted by the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in South Africa in 2001. The mandate of the Intergovernmental Working Group, as set out in the above resolution, is: “(a) to make recommendations with a view to the effective implementation of the Durban Declaration and Programme of Action”; and “(b) to prepare complementary international standards to strengthen and update international instruments against racism, racial discrimination, xenophobia and related intolerance in all their aspects”.

The Intergovernmental Working Group devoted an important part of its agenda to discussions on the questions as to whether: (a) there are gaps in the legal framework for countering racism and xenophobia (b) if so, how they are to be filled. Answers to these questions should contribute to strengthening, updating and, if needed, supplementing relevant international instruments.

The fourth session of the Intergovernmental Working Group took place from 16 to 27 January 2006 and included the high-level seminar on inter alia complementary international standards. The Working Group in its report (E/CN.4/2006/18, para. 108) recommended, inter alia, the following:

(a) For the procedural gaps: the Working Group requested Committee on the Elimination of Racial Discrimination (CERD) to conduct a further study on possible measures to strengthen the implementation through additional recommendations or the update of its monitoring procedures;

(b) For the substantive gaps: it recommended that OHCHR select, in close consultation with regional groups, five highly qualified experts to study the content and scope of the substantive gaps in the existing international instruments to combat racism, racial discrimination, xenophobia and related intolerance.

In its resolution 1/5 of 30 June 2006, the Human Rights Council requested the group of experts “…to produce a base document that contains concrete recommendations on the means or avenues to bridge these gaps, including but not limited to, the drafting of a new optional protocol to the International Convention on the Elimination of All Forms of Racial Discrimination or the adoption of new instruments such as conventions or declarations”.

Pursuant to the above resolution: (i) the five experts submitted their study, entitled “Report on the study by the five experts on the content and scope of substantive gaps in the existing international instruments to combat racism, racial discrimination, xenophobia and related intolerance” (A/HRC/4/WG.3/6); and (ii) the CERD submitted the “Study by the Committee on the Elimination of Racial Discrimination on possible measures to strengthen implementation through optional recommendations or the update of its monitoring procedures” (A/HRC/4/WG.3/7). Both studies were submitted to the Human Rights Council at its 6th session.

The fifth session of the Intergovernmental Working Group marked the conclusion and closure of the Working Group’s debates and deliberations on the question of complementary standards, as the Human Rights Council in its decision 3/103 entrusted this task to the Ad Hoc Committee on the Elaboration of Complementary Standards. In the same decision, the Council also decided “to request that the Ad Hoc Committee … use all the documents presented to it as background material for commencing its process of elaborating complementary standards, and that one of its main priorities be to ensure that the draft instrument(s) is/are produced for negotiations”. In resolution 6/21 of 28 September 2007, the Human Rights Council recalled its decision 3/103, which established the Ad Hoc Committee.

Human Rights Council resolution 6/21 of 28 September 2007 provides further clarity to the mandate of the Ad Hoc Committee, by recalling “its decision 3/103 of 8 December 2006, by which, heeding the decision and instruction of the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, it decided to establish the Ad Hoc Committee of the Human Rights Council on the Elaboration of Complementary Standards, with the mandate to elaborate, as a matter of priority and necessity, complementary standards in the form of either a convention or additional protocol(s) to the International Convention on the Elimination of All Forms of Racial Discrimination, filling the existing gaps in the Convention, and also providing new normative standards aimed at combating all forms of contemporary racism, including incitement to racial and religious hatred”.