PART I – WHAT IS ICERD? • • • Administration of justice; Expulsion and deportation of non-citizens; Economic, social and cultural rights. Illustration 6: De facto discrimination against students of foreign origin25 In the individual communication No. 40/2007 (Murat Er v. Denmark), the petitioner, a student at the Copenhagen Technical School, claimed a violation of Articles 2 (1) (d), 5 (e) (v) and 6 of the Convention, on the basis of the school’s alleged discriminatory practice towards non-ethnic Danes. The practice consisted of accepting requests from employers not to send students of Pakistani or Turkish origin to train in their companies, and the State party’s failure to investigate the situation. The Committee considered that the mere existence of cases where such requests had been accepted was in itself enough to ascertain the existence of de facto discrimination towards non-ethnic Danish students, regardless of whether they were qualified for an internship. CERD further asserted that the State party had an obligation to investigate whether such a racially discriminatory school practice existed and not rely solely on the fact that the petitioner did not qualify for an internship on other grounds, such as his academic record. The Committee concluded that the State party had violated the petitioner’s right to the equal enjoyment of his right to education and training under Article 5 (e) (v) and that it had failed to carry out an effective investigation to determine whether or not an act of racial discrimination had taken place, in violation of Articles 2 (1) (d) and 6 of the Convention. Illustration 7: A case of non-discrimination26 In the individual communication case No. 32/2003 (Sefic v. Denmark), the petitioner, a Bosnian citizen residing in Denmark, sought to buy third-party liability insurance from a local insurance company. He was advised that he was not eligible for an insurance contract, as he did not speak Danish, so he complained to the authorities, arguing that the language requirement was not objectively motivated but discriminatory within the meaning of section 1 (1) of the Danish Anti-Discrimination Act. In its opinion, the Committee noted that the author’s claim and the evidence produced by him concerning the reasons behind the insurance company’s policy had been fully considered by the competent authorities, including the public prosecutor, who had concluded that the language requirement was not based on the complainant’s race or ethnic origin, but designed to facilitate communication with customers. The Committee concluded that the reasons for the language requirement adduced by the insurance company, in particular the fact that it was a relatively small company and primarily operating through telephone contacts with customers, was a reasonable and objective ground for the requirement. Consequently, the facts did not disclose a violation of the Convention. 1.5 Special Measures – Affirmative Action In order to achieve not only formal equality before the law but also substantive equality in practice (e.g. in the enjoyment and exercise of human rights), Article 1 (4) of the Convention allows for special measures (also named as affirmative action, affirmative measures or positive action) for the benefit of racially or ethnically disadvantaged groups or individuals. These measures are considered legitimate on the condition that: “such measures do not lead to the maintenance of separate rights for different groups and that they shall cease after the objectives for which they were taken have been achieved” (ICERD Article 1 (4)). 25 26 CERD annual report 2007, A/62/18, paras. 518-524 and Annex V CERD annual report 2005, A/60/18, para. 440 5 ICERD & CERD: A GUIDE FOR CIVIL SOCIETY ACTORS