A/HRC/56/67
against antisemitism adopted by Austria, Romania, the United States of America and the
European Union, the establishment of a nationwide network of antisemitism commissioners
in public prosecutors’ offices in Germany and steps to ban the use of the Nazi salute and
symbols in various countries, including Australia and Switzerland.
IV. Applicable international legal framework
65.
The Special Rapporteur recalls that the prohibition on racial discrimination is a
peremptory norm of public international law. The most comprehensive prohibition of racial
discrimination can be found in the International Convention on the Elimination of All Forms
of Racial Discrimination. Other international human rights treaties, including the
International Covenant on Civil and Political Rights, the International Covenant on
Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of
Discrimination against Women, the Convention on the Rights of the Child and the
Convention on the Rights of Persons with Disabilities, also broadly enshrine the principle
that all persons, by virtue of their humanity, should enjoy all human rights without
discrimination on any grounds. By ratifying international human rights treaties, States
undertake to respect, protect and fulfil the rights provided therein.
66.
The obligation to respect requires that States refrain from discrimination in law, policy
or practice. Under article 2 (1) of the International Convention on the Elimination of All
Forms of Racial Discrimination, States parties undertake to engage in no act or practice of
racial discrimination against persons, groups of persons or institutions and to ensure that all
public authorities and public institutions, national and local, act in conformity with this
obligation. That article also stipulates that States parties undertake not to sponsor, defend or
support racial discrimination by any persons or organizations, including those espousing
racial superiority and intolerance.
67.
The State’s obligation to protect persons under their jurisdiction against
discrimination by all other entities necessitates that States adopt comprehensive legislation
that prohibits any discrimination and guarantees to all persons equal and effective protection
against discrimination or adopt other measures as may be necessary to give effect to the rights
established under international human rights mechanisms. The Office of the United Nations
High Commissioner for Human Rights has developed a guide for States on developing
comprehensive anti-discrimination legislation. The guide contains the recommendation that,
to be comprehensive, anti-discriminatory legislation should define and prohibit all forms of
discrimination arising on the basis of all grounds recognized under international law and in
all areas of life regulated by law. The guide also contains the recommendation that
anti-discrimination legislation prohibit discrimination on the basis of an extensive and
open-ended list of characteristics. According to the guide, legislation should prohibit both
direct and indirect discrimination, segregation, victimization and retaliation.
68.
The International Convention on the Elimination of All Forms of Racial
Discrimination and the International Covenant on Civil and Political Rights both impose
prohibitions on the propagation of racist and xenophobic ideas and outlaw the advocacy of
national, racial or religious prejudices that amount to incitement to discrimination, hostility
or violence. Article 4 of the Convention requires States parties to adopt immediate and
positive measures designed to eradicate all incitement to or acts of discrimination and to
declare punishable by law all dissemination of ideas based on racial superiority or hatred,
incitement to racial discrimination and all acts of violence or incitement to such acts against
any race or group of persons of another colour or ethnic origin. The Committee on the
Elimination of Racial Discrimination has provided specific guidance for States parties on the
adoption of legislation combating racist speech. For determining what racist expression
should be punishable by law, the Committee stresses the importance of context, which
includes: (a) the content and form of the speech; (b) the economic, social and political
climate; (c) the position or status of the speaker; (d) the reach of the speech; and (e) the
objectives of the speech.2 In line with the approach of the Committee on the Elimination of
2
GE.24-08848
Committee on the Elimination of Racial Discrimination, general recommendation No. 35 (2013) on
combating racist hate speech, para. 15.
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