Race, Women and Children: Three More Conventions

In one line

Three conventions take the general equality guarantee and apply it to race, to sex and to childhood, and each of them defines discrimination by what a measure does rather than by what it was meant to do.

In the wording a student can write in an exam: the International Convention on the Elimination of All Forms of Racial Discrimination 1965 defines racial discrimination in article 1 and obliges parties in article 2 to pursue WITHOUT DELAY a policy of elimination, requires them in article 4 to act against propaganda and organisations based on racial superiority, lists the rights to be guaranteed in article 5, and provides an OPTIONAL individual communication procedure in article 14. The Convention on the Elimination of All Forms of Discrimination against Women 1979 defines discrimination against women in article 1, imposes the policy obligation in article 2, permits TEMPORARY SPECIAL MEASURES in article 4, requires States in article 5 to MODIFY SOCIAL AND CULTURAL PATTERNS OF CONDUCT resting on stereotype, and deals with marriage and family relations in article 16. The Convention on the Rights of the Child 1989 defines a child in article 1, requires non-discrimination in article 2, makes THE BEST INTERESTS OF THE CHILD A PRIMARY CONSIDERATION in article 3, gives the child a right to be heard in article 12, and repeats the minorities formula for children in article 30.

The Convention on Racial Discrimination, 1965

Article 1(1), the definition. "Racial discrimination" means any DISTINCTION, EXCLUSION, RESTRICTION OR PREFERENCE based on RACE, COLOUR, DESCENT, OR NATIONAL OR ETHNIC ORIGIN which has the PURPOSE OR EFFECT of nullifying or impairing the recognition, enjoyment or exercise, ON AN EQUAL FOOTING, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of PUBLIC LIFE.

Four things about that definition. The grounds include DESCENT, which article 15 of the Indian Constitution does not name and which has been the subject of long argument about whether caste falls within it. The measure may be a PREFERENCE as well as an exclusion. The test is PURPOSE OR EFFECT, so a facially neutral measure with a discriminatory effect is caught. And the field is PUBLIC LIFE.

Article 2(1). States Parties CONDEMN racial discrimination and undertake to pursue BY ALL APPROPRIATE MEANS AND WITHOUT DELAY a policy of eliminating it in all its forms and of promoting understanding among all races; and in particular each undertakes to ENGAGE IN NO ACT OR PRACTICE of racial discrimination against persons, groups or institutions, and to ensure that ALL PUBLIC AUTHORITIES AND PUBLIC INSTITUTIONS, NATIONAL AND LOCAL, act in conformity.

Article 4. States Parties CONDEMN ALL PROPAGANDA AND ALL ORGANIZATIONS which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt IMMEDIATE AND POSITIVE MEASURES designed to eradicate all incitement to, or acts of, such discrimination, WITH DUE REGARD TO THE PRINCIPLES EMBODIED IN THE UNIVERSAL DECLARATION and the rights expressly set forth in article 5. That closing qualification is the balance with freedom of expression, and it is why article 4 is the most reserved-against provision in the Convention.