PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation A. Racial discrimination: jus cogens, particularly invidious harm, and the problem of denial In addition to its prohibition under various international human rights treaties, the prohibition of racial discrimination constitutes an erga omnes obligation under international law, as made clear by the International Court of Justice as early as 1970.922 Indeed, the prohibition of racial discrimination is deemed potentially to be jus cogens or a peremptory norm of international law.923 In the Barcelona Traction case, the International Court of Justice stated that erga omnes obligations “derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination”.924 Moreover, racism and racial discrimination are recognized not only as issues of human rights concern, but as potential root causes of inter- and intra-State conflict.925 In regional jurisprudence, the African Commission on Human Rights and Peoples’ Rights has recognized that racial discrimination is a violation of “the very spirit of the African Charter and of the letter of its article 2”.926 The Commission affirmed that the “general tone of the Charter abhors racial discrimination”.927 Furthermore, the Commission highlights that Africa’s long history of being subjected to racial discrimination would strongly suggest that States parties to the Charter will work for elimination of all forms of racial discrimination.928 The European Court of Human Rights regularly sets out that that “racial discrimination is a particularly invidious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of enrichment.”929 The Court has also ruled on a number of occasions that racial discrimination is a sufficiently severe form of harm that it can rise to the level of degrading treatment.930 The European Committee of Social Rights has imported the concept of an “aggravated responsibility” from the Inter-American system into the jurisprudence of the European Social Charter, as concerns racial discrimination, in situations in which this involves the active, invigorated involvement of the authorities: “The Committee considers that statements by public actors such as those reported in the complaint create a discriminatory atmosphere which is the expression of a policy-making based on ethnic disparity instead of on ethnic stability. Thus, it holds that the racist misleading propaganda against migrant Roma and Sinti indirectly allowed or directly emanating from the Italian authorities constitutes an aggravated violation of the Revised Charter.”931 The Inter-American Court of Human Rights has recognized that racial discrimination “infringes the equality and dignity inherent in all human beings, and has been unanimously condemned by the international community 134 922 International Court of Justice, Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, at p. 32, paras. 33–34. 923 A/CN.4/727, paras. 91–101. 924 International Court of Justice, Barcelona Traction, Light and Power Company, Limited, Judgment, I.C.J. Reports 1970, p. 3, at p. 32, para. 34. 925 Durban Declaration, para. 20. 926 African Commission on Human and Peoples’ Rights, Malawi African Association and others v. Mauritania, communication No. 54/91 and others, Decision, 11 May 2000, para. 131. 927 African Commission on Human and Peoples’ Rights, “Guidelines for national periodic reports” (1989), part V. 928 Ibid. 929 European Court of Human Rights, Timishev v. Russia, Applications Nos. 55762/00 and 55974/00, Judgment, 13 December 2005, para. 56. 930 See, for example, European Court of Human Rights, Cyprus v. Turkey, Application No. 25781/94, Judgment, 10 May 2001, with reference in particular to the approach taken by the previously existing European Commission on Human Rights, namely that “differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when different treatment on some other ground would raise no such question” (European Commission on Human Rights, East African Asians v. the United Kingdom, Applications Nos. 4403/70–4419/70 and others, Decision, 14 December 1973, para. 207). 931 European Committee of Social Rights, Centre on Housing Rights and Evictions (COHRE) v. Italy, Complaint No. 58/2009, Decision on the Merits, 25 June 2010, para. 139.