A/HRC/41/54
V. Women and racial, ethnic and indigenous communities on the
front lines
44.
The following section contains a localized racial equality analysis that highlights the
racially discriminatory human rights violations experienced by communities living on or
close to territories of extraction, including regions of extraction located in both the global
North and the global South.
Applicable equality framework
45.
In the Declaration on the Right to Development, the General Assembly makes clear
that, in fulfilling their national development obligations and duties, States should ensure
equality of opportunity for all in their access to basic resources, education, health services,
food, housing, employment and the fair distribution of income, and that women should
have an active role in the development process. At a more fundamental level, the Special
Rapporteur recalls that international human rights law is based on the premise that all
persons, by virtue of their humanity, should enjoy all human rights without discrimination
on any grounds. The principles of equality and non-discrimination are therefore codified in
all core human rights treaties. 67 Differences in treatment or human rights outcomes on
grounds of race or ethnicity are not permitted as the prohibition of racial discrimination has
been recognized as part of customary international law, imposing immediate and absolute
obligations from which no derogation is permitted, even in a state of emergency (see, for
example, A/HRC/7/23, para. 35).
46.
The most comprehensive prohibition of racial discrimination can be found in the
International Convention on the Elimination of All Forms of Racial Discrimination. In
article 1 (1) racial discrimination is defined as any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin that has the purpose
or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic, social,
cultural or any other field of public life. While the provision does not mention
discrimination on the basis of religion, the Committee on the Elimination of Racial
Discrimination has found that the Convention may apply in cases in which discrimination
on religious grounds intersects with other forms of discrimination specifically prohibited
under article 1 (1).68
47.
The prohibition on racial discrimination in international human rights law aims at
much more than a formal vision of equality. Equality in the international human rights
framework is substantive, and requires States to take action to combat intentional or
purposeful racial discrimination, as well as to combat de facto or unintentional racial
discrimination. Indeed, in its general recommendation No. 32 (2009) on the meaning and
scope of special measures in the Convention, the Committee clarifies that the prohibition of
racial discrimination under the Convention cannot be interpreted restrictively. It not only
aims to achieve formal equality before the law, but also substantive (de facto) equality in
the enjoyment and exercise of human rights. The Committee emphasizes the fact that the
Convention applies to purposive or intentional discrimination, as well as discrimination in
effect 69 and structural discrimination. 70 This substantive, non-formalistic approach to
equality applies even to the extractivism economy.
67
68
69
70
For an overview of international human rights instruments that specifically prohibit discrimination
against certain groups, see A/HRC/32/50, paras. 10–14. The report also contains an overview of the
prohibition of racial discrimination at the regional level (paras. 15–25).
See, e.g., its general recommendation No. 32 (2009) on the meaning and scope of special measures in
the Convention, para. 7; and P.S.N. v. Denmark (CERD/C/71/D/36/2006), para. 6.3.
General recommendation No. 32, paras. 6–7.
See, e.g., the Committee’s general recommendation No. 34 (2011) on racial discrimination against
people of African descent, paras. 5–7.
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