A/HRC/31/74
whether those States inputs were reflected in the final General Recommendations, noting
that the General Recommendations were neither binding on States nor a legal commitment
as they were not the outcome of an intergovernmental process. She added that States
parties’ views were sought but normally not reflected. She stated that issues such as
xenophobia, hate speech, and the intersectionality of racial and religious discrimination as
highlighted by the Special Rapporteur on Minorities and the Special Rapporteur on
Contemporary Forms of Racial Discrimination were emerging issues and were resonant in
the ICERD. She also asked whether the Convention is able to address these new dynamics,
context and contemporary challenges including those highlighted in the Durban Declaration
and Programme of Action and the Review Conference which reflected realities
considerably changed since its adoption in 1965, and whether another legally binding
instrument was required. Similarly, the representative of South Africa asked about the
impact of the engagement between Ad Hoc Committee and ICERD in addressing the gaps
which need to be filled.
70.
The representative of the United Kingdom of Great Britain and Northern Ireland
asked about the criteria and considerations used in deciding whether or not to proceed with
a general recommendation following a thematic discussion by the CERD.
71.
Ms. Crickley in response stated that the CERD Committee adopted flexibility in
terms of taking on board the different views and that there have been times when the
decision has been made not to proceed with any general recommendation after a thematic
discussion, if many Member States would not find it helpful or if the timing did not appear
conducive. She informed the participants that CERD would be bringing its comments
procedure in line with the other treaty bodies in that Member States will be invited to
comment prior to finalization, adding that indeed Committee does take notice of States
comments although it was duty bound as a body to make independent expert decisions
about the ICERD. In response to the issue of substantive gaps in ICERD, Ms. Crickley
stated that the issue of gaps was dependent upon the political will and/or capacity of States
Parties being able to fulfil their obligations under ICERD and address other challenges
posed by contemporary forms of racism. While admitting that the context in which the
ICERD was drafted had changed, she stated that definition of article 1 of the Convention
can be interpreted in a way as fully cognizant in the current environment and indicated that
CERD had produced three general recommendations on the subjects of non-citizens, hate
speech and with regard to People of African descent to elaborate and shift language on
issues which could be implied in the ICERD.
72.
The Chair-Rapporteur asked Ms. Crickley whether all general recommendations are
adopted by consensus and whether this had any bearing on the very long time it took to
adopt the general recommendations on hate speech. Ms. Crickley replied that general
recommendations are normally adopted by consensus; in the case of the hate speech general
recommendation it was adopted related to the timeliness of the subject and was developed
in a sensitive and informed manner. The Chair-Rapporteur asked about the issue of political
will and what happened to victims in the meantime, and whether the Committee considered
the impact on victims. Ms. Crickley stated that the Committee is very cognizant of victims
and that general recommendations are always aimed at reflecting the ongoing and timely
issues affecting the rights of people. The Chair-Rapporteur also mentioned the voluntary
nature of general recommendations and asked how adequate remedies could be ensured
given legal costs and access, to which Ms. Crickley stated that while legally-binding States’
Parties are influenced by them and they are used as a guide to implementation and for
future responses to the Committee.
73.
The Chair-Rapporteur inquired as to whether CERD could conduct a quantitative
analysis of the status of implementation of its general recommendations identifying
satisfaction and weaknesses in order for the Ad Hoc Committee to provide a response as at
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