The Equal Rights Trust (ERT), an independent international organisation whose purpose is to combat discrimination and promote equality as a fundamental human right and a basic principle of social justice, welcomes the Durban Review Conference (DRC) as an important opportunity to examine the progress made towards fulfilling the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance Declaration and Programme of Action and to develop the commitments set out in this document.

ERT would like to call to the attention of States and other stakeholders the Declaration of Principles on Equality (the Declaration), an instrument of international best practice which formulates comprehensive progressive standards on equality and non-discrimination, from a unified perspective which views racial discrimination in its relatedness to all other forms of discrimination and to the overarching right to equality.

The Declaration of Principles on Equality was adopted and signed in October 2008 by 128 prominent human rights and equality advocates and experts from all regions of the world, and subsequently endorsed by further hundreds of experts and advocates, as well as organisations from all over the world. The Declaration contains 27 principles which, while building on existing human rights and equality law, establish a new paradigm on equality. The most important features of this paradigm include:

(i) defining equality as a basic human right, and construing it as autonomous rather than subsidiary to any other right set forth by law, fusing approaches from human rights law and equality law;

(ii) redefining positive action - departing from the concept of formal equality and interpreting positive action (affirmative action) as inherent in substantive equality rather than as an exception or a temporary special measure;

(iii) ensuring consistency in dealing with different types of discrimination, across grounds and areas of activity - facilitating stakeholders in all nations to enshrine the right to equality in a way that eliminates the gaps, inconsistencies and hierarchies of current equality regulations;

(iv) creating a basis, at the level of legal principle, for integrating the two historically segregated notions of equality: identity-based equality (non-discrimination on grounds of sex, race, religion, disability, sexual orientation, etc.) and equality in terms of social class, economic status, or income.

In all world regions the struggle for equality persists. Racism, racial discrimination, xenophobia and related intolerance represent a fundamental challenge to ensuring full and effective equality. A growing number of human rights advocates believe that international and national initiatives to achieve equality must move beyond formal notions of equality. The Declaration proposes a unified framework of substantive equality for all, based on the equal worth and dignity of all human beings. ERT believes that this is the starting point for effectively combating racism, racial discrimination, xenophobia and related intolerance. Principle 1 of the Declaration states:

The right to equality is the right of all human beings to be equal in dignity, to be treated with respect and consideration and to participate on an equal basis with others in any area of economic, social, political, cultural or civil life. All human beings are equal before the law and have the right to equal protection and benefit of the law.

The Durban Review Conference process reaffirms the demand for strong substantive guarantees to equality in national, regional and international law. Despite the positive strides made by the Preparatory Committee, ERT believes that there are a number of limitations to the ‘revised version of the draft outcome document’ as amended by the Chair of the DRC Preparatory Committee on 15 April 2009. With the aim of addressing some of these shortcomings and achieving an outcome which is consistent with the highest standards contained in the Declaration of Principles on Equality, ERT urges the adoption of the following recommendations:

To the Drafting Committee of the ‘Outcome Document’

Within the framework of achieving the most progressive outcome from the review conference and securing the highest protections from racism, racial discrimination, xenophobia and related intolerance the drafting committee should adopt the following amendments to the ‘outcome document’:

• Paragraph 14: Reaffirms that the rights to equality and non-discrimination are fundamental human rights under international human rights law and fundamental principles in international humanitarian law that are essential in the fight against racism, racial discrimination, xenophobia and related intolerance;
• Paragraph 71: Urges States to recognize that positive action is a necessary element of equality and to  direct their special measures, including affirmative or positive measures, and strategies or actions, which includes a range of legislative, administrative and policy measures to overcome past disadvantage and accelerate progress towards equality of particular groups, as well as new investments in health care, public health, education, employment, electricity, drinking water and environmental control, to communities of African descent and indigenous peoples; 

• Paragraph 84: Notes with concern the increased instances of discrimination on multiple or aggravated forms of discrimination and reiterates that such discrimination, as laid down in the Durban Declaration and Programme of Action, affects the enjoyment of human rights and can lead to particular targeting or vulnerability and urges States to adopt laws or policies that provide effective protection against multiple or aggravated forms of discrimination;

• Paragraph 102: Recommends that States that have not yet done so establish mechanisms to collect, compile, analyze, disseminate and publish reliable and disaggregated statistical data, and undertake all other related measures necessary to regularly assess the effectiveness of measures to promote equality and the situation of all victims of racism, racial discrimination, xenophobia and related intolerance, in accordance with the Durban Declaration and Programme of Action;

• Paragraph 115: Calls on States that have not yet done so to establish and equip  independent specialized bodies and mechanisms for the implementation of public policies to eradicate racism, racial discrimination, xenophobia and related intolerance, and to promote racial equality with suitable financial resources, capability and capacity to survey, investigate, educate and undertake public awareness-raising activities; 

In addition to this, ERT urges the drafting committee and States to take account of the unified perspective on equality which the Declaration adopts and incorporate Principle 6 within the outcome document. Principle 6 states:

Legislation must provide for equal protection from discrimination regardless of the ground or combination of grounds concerned.

To the UN High Commissioner for Human Rights

• In accordance with paragraph 191 (d) of the Durban Programme of Action and paragraph 49 of the ‘revised version of the draft outcome document’ presented by the Chair of the DRC Preparatory Committee on 15 April 2009 the Office of the High Commissioner for Human Rights should support the Declaration of Principles on Equality as an instrument of best practice through publicising and disseminating the Declaration on the OHCHR website.

• The High Commissioner for Human Rights should encourage, in her work, the application and implementation of the Declaration of Principles on Equality, through her reporting and policy mandate.   

To State Delegates

• All States, in particular those under Universal Periodic Review or reporting to treaty body mechanisms, should acknowledge the Declaration of Principles on Equality as a benchmark for equality and accordingly should self-evaluate their laws, policies, procedures and human rights safeguards against the principles contained in the Declaration when reporting to UN mechanisms.

• In order to promote the right to equality and combat racism, racial discrimination, xenophobia and related intolerance nationally, States should implement the principles contained in the Declaration in national legislation and policy and promote the use of these principles within national court systems.

To International and National NGO’s 

• ERT appeals to all international and national NGO’s as well as civil society activists to formally endorse the Declaration of Principles on Equality.

• With the aim of promoting the right to equality nationally, regionally and internationally NGO’s, in particular those in States under Universal Periodic Review or reporting to treaty body mechanisms, should use the Declaration of Principles on Equality as a reference mechanism to evaluate whether State performance is in accordance with the most progressive equality standards.

• In order to promote the right to equality and combat racism, racial discrimination, xenophobia and related intolerance nationally, NGO’s should advocate for the principles contained in the Declaration to be recognised in national courts and legal policy development.

In addition to these recommendations ERT believes that the DRC would benefit from a more inclusive approach which recognises the egregious human rights violations which other disadvantaged groups suffer. Any non-recognition within the ‘outcome document’ of the inequality and discrimination suffered on other grounds, which are analogous to the experience of those who suffer from racism, racial discrimination, xenophobia and related intolerance, would constitute a serious setback to the development of the right to equality and a dilution of the protections the DRC seeks to secure.