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BEYOND
WCAR
by
Avvy Go
A long time ago in a small village in China, there lived two men,
Old Fool and Wise Man. Right at the beginning of the road leading
to the village there was a mountain, which separated the village
from the world beyond. The villagers had to either climb the mountain
or go around it every time they needed to leave the village in
order to do their errands elsewhere. One day, Wise Man was passing
by the mountain when he saw Old Fool and his sons at the bottom
of the mountain, shovelling and digging away. Wise Man asked Old
Fool, "What are you doing, Old Fool?" Old Fool replied,
"I am moving the mountain. I want to tear it down so that
the people in this village do not have to climb over or walk around
it every time we go somewhere." Hearing this, Wise Man broke
out laughing. He laughed so hard as he had never heard of a more
ridiculous thing in his whole life. Wise Man said, "Look,
Old Fool, this mountain is SO huge. You will never be able to
move it. Take my advice. Just pack up your shovel and go home."
Wise Man said, "You are probably right. This is a big mountain.
But if I cannot finish my job in moving it, my children can carry
on the work for me. And if my children cannot move this mountain,
my children's children can continue. One day, this mountain will
be moved." Wise Man shook his head and walked away, as there
was no point rationalizing with someone as foolish as Old Fool.
WCAR - ADVOCATES' WORSE NIGHTMARE OR OUR BEST HOPE?
The United Nations World Conference Against Racism, Racial Discrimination,
Xenophobia and Related Intolerance (WCAR) was mired in controversy
right from day one.
From the very earliest of days, the United States Government
threatened to pull out of the United Nations (UN) conference because
the issue of reparations was included as one of the five themes
of the WCAR. Fearing the WCAR's potential implications with respect
to the reparation movement in the U.S. for slavery and Trans-Atlantic
slave trade, the U.S. Government was desperately searching for
a way out. It is no secret that if the analysis of the reparations
advocates holds sway, the U.S. Government would be on the hook
for an astronomically huge redress obligation, owed to its African
American citizens, and potentially to many African nations. Then
came the Israeli-Palestinian conflict and the question of whether
zionism is racism. The latter issue was quickly grabbed on by
the U.S. as an excuse for it to withdraw from the WCAR altogether.
The U.S. Government was not alone in this political game of finger-pointing
and laying the blame elsewhere. In fact, members of the Western
European and Other Group (WEOG) were so adamant about blocking
the inclusion of reparations that the term had to be bracketed
in the preparatory committee documents leading up to WCAR.
At one point in the process, the Canadian government also considered
quitting the conference. It too claimed that it was inappropriate
for the WCAR to deal with the issue of zionism and that Canada
did not want to have any part of the conference for that reason.
What our Government conveniently neglected to mention, was the
fact that Canada had just as much guilt to carry around for what
it has done historically to this country's aboriginal peoples,
as well as to Canadians of African and Asian descents. A number
of law suits have been filed by groups who have suffered from
historical wrongs committed by the Canadian Government and its
provincial counterparts, examples include suits by aboriginal
people who suffered abuse in residential schools, and by Chinese
Canadians who are seeking redress for the Chinese Head Tax and
Exclusion Act.
Under pressure from the Non-Governmental Organizations ("NGOs")
and in light of the somewhat inconvenient fact that Canada was
among the first to support the call for the WCAR, the Canadian
government eventually backed down from its threat of withdrawal.
But the decision to remain in Durban did not stop the Canadian
official delegates to the WCAR from engaging in backroom dealings
in order to water down any language it considered unwelcome, just
as the U.S. withdrawal did not prevent that country's lobbying
from interfering with behind-the-scenes negotiations.
Adding injury to insult, the Canadian media either chose not
to report on the WCAR at all, or when it did, it focused almost
singularly on the controversies surrounding the conflict in the
eastern Mediterranean. While it is typical of the media to fuel
the flame in its reporting, the real damage that the media did
by focusing solely on the issues of zionism and Palestine was
that it worked to undermine the entire WCAR process. It did so
by ignoring the many legitimate and real concerns brought forward
by victims of racism and their advocates from across the world
about the lack of progress in the global struggle for racial equality.
Worse still, the Canadian media did more than undermine WCAR.
It went out of its way to demonize individual human rights advocates
in an attempt to mute any criticism that was directed against
Canada. When Chief Matthew Coon Come, the National Grand Chief
of the Assembly of First Nations, spoke in Durban about Canadian
apartheid practised against its indigenous peoples, he was immediately
and roundly condemned by the mainstream media at home. It matters
not that Chief Coon Come was merely citing findings in official
documents such as the Report of the Royal Commission on Aboriginal
Peoples, the fact that he dared smear the name of Canada on the
international stage was enough to get him case in the role of
the villain. But the story did not end there. Chief Coon Come
was then told by the Canadian officials to apologize for what
he had said about Canada, and when he refused, the response was
a 50% funding cut to the Assembly of First Nations by the Canadian
Government announced in the weeks that followed the end of the
WCAR.
Day by day, in Durban, the state-to-state negotiations proved
frustratingly circular. All that the NGOs could do was to lobby
sympathetic delegates in the hallways during session breaks. Everyone
was simply left hoping that his or her issues would be highlighted
in the final WCAR Documents. In the end, after a gruelling week
and a special one day extension of the negotiations, a consensus
was reached. The WCAR Declaration and Programme of Action were
officially born following a long and protracted labour.
But a labour born of what? Certainly not love, as none was lost
between the NGOs who were looking in from the outside wanting
strong language to combat racism, and the official delegates who
were more concerned about minimizing their government's liabilities
than finding solutions to the problems at hand.
Nor were the WCAR Documents a labour of true commitment. Not
everyone got something positive from the final text. The Dalits,
for instance, did not even get mentioned in the final documents
after an extensive and remarkable campaign. Asians and people
of Asian Descent managed to insert a few specific paragraphs of
their crafting into the Declaration, but none in the Programme
of Action, which is what informs the working agenda to follow.
By far, however, the Indigenous peoples were the biggest losers,
in the author's view. While it is true that both the WCAR Declaration
and Programme of Action contain numerous provisions which speak
to the issues affecting indigenous peoples and urge governments
to take steps to alleviate their problems, all of these provisions
amount to little more than hollow promises because of one critical
provision in the Declaration.
Section 24 of the WCAR Declaration states:
s.24 We declare that, the use of the term "indigenous peoples"
in the Declaration and Programme of Action of the World Conference
against Racism, Racial Discrimination, Xenophobia and Related
Intolerance is in the context of, and without prejudice to the
outcome of, ongoing international negotiations on texts that specifically
deal with this issue, and cannot be construed as having any implications
as to rights under international law; (emphasis added)
Barely concealed behind such legalese is the assertion that indigenous
rights are negotiable and can be trampled upon by states. No other
community or group has been made subject to a similar qualifying
clause. Indeed, as Chief Coon Come recently said at a press conference
held in Toronto, "the WCAR Declaration as it stands contains
language that was stated by leading experts at the UN Conference
to be racist and discriminatory. In particular, paragraph 24 of
the Declaration attempts to separate indigenous peoples from their
fundamental international human rights, and makes our access to
these rights subject to racist qualifications".
For aboriginal peoples as well as other communities who have
been left out of the WCAR Documents, the WCAR instruments may
well in fact represent a step backward in their struggle for equality.
It is a caution that must be acknowledged as advocates continue
to push for the implementation by our Government of the UN documents.
In this spirit of solidarity, Chief Coon Come also noted at the
press conference:
First Nations support the concerns of African Canadians and other
victims of the scourge of colonialism and other forms of racism
in their quest for redress and justice. We stand with them. As
the original inhabitants of this continent, we know what it is
to be marginalized and dispossessed.
First Nations appreciate that the WCAR Declaration will in many
respects bring positive benefits to those who still suffer the
impacts of racism in Canada and elsewhere....
We call upon all groups opposed to racism in Canadian society
to work together. We must ensure that the rights of individual
groups or people - be they indigenous peoples, or people of Asian
or African or American descent, or Jews, or Muslims - are not
sacrificed on the altar of indifference, or on an altar of progress
of some while there are setbacks for others.
WCAR clearly presents an opportunity for us to advance issues
such as reparations and migrants' rights. As such, those concerned
with these fundamental human rights issues should attempt to take
full advantage of what the WCAR Documents have to offer for the
communities they represent. At the same time, as Chief Coon Come
has so aptly pointed out, we must not leave anyone behind in our
collective struggle for justice. In the end, it is through the
solidarity work and shared analysis that advocates can truly build
upon the WCAR process and turn our society into a more inclusive
and equitable one.
OH WCAR - WHERE ART THOU?
At the time of the writing of this article, approximately two
and a half months after the WCAR, those who stand to make some
small gains are still waiting anxiously for the final release
of the Declaration and Programme of Action. Yet the UN Secretariat
responsible has been dragging its heels in the release. The UN
General Assembly is scheduled to hold a meeting on Dec 6, 2001
in New York to discuss, among other things, the release of the
WCAR Documents. By the time of this workshop for which this paper
has been prepared, we may have received the final word on the
issue. But the question we need to ask is what, or more accurately,
who has been holding up the WCAR process?
The delay of the final release has apparently been effected by
none other than the WEOG - the same group of states which have
been resisting the WCAR process throughout. The reason, again,
has to do with the inclusion of reparations in the WCAR documents.
According to Roger Wareham, the International Secretary-General
of the International Association Against Torture, the WEOG has
continued to object to the inclusion of paragraphs relating to
condemnation of, and apologies for, slavery and the Trans-Atlantic
slave trade, apartheid, colonialism and genocide together with
the call for the implicated states to redress such historical
oppression. This is so despite the fact that the final Declaration
and Programme of Action was agreed to by consensus by the member
states who attended WCAR, and it amounts to bargaining in bad
faith for the members of WEOG to now attempt to derail an agreement
which they were party to.
Along with the WEOG, there are also some NGOs who are calling
on the UN not to proceed with the development of a five-year plan
as the follow up to Durban (Durban + five), an assumed process
associated with other major UN conferences such as the Women's
Conference in Beijing (1995). The Durban + Five process is critical
as it provides the UN as well as NGOs with the opportunity to
monitor the progress of implementation by member states of the
promises they had made through the Declaration and Programme of
Action.
And so the battle over WCAR continues. But as "Old Fool"
had long ago realized, the road to equality was never to be a
smooth and easy one. The real question is how the human rights
can advocates overcome the seemingly insurmountable obstacles
that are placed before them.
But even assuming that we will soon have the final WCAR Declaration
and Programme of Action, the even more challenging question remains
what do these UN documents mean for the people of Canada? Not
surprisingly, there are just as many potentially different answers
to that question as there were incidents and controversies surrounding
the World Conference.
Speaking as a human rights activist who happens to work in the
legal profession, and as someone who sees the potential for something
good to come out of the WCAR process, I will answer this question
by posing three more:
a. In what ways do the WCAR Declaration and Programme of Action
enhance human rights development in Canada?
b. Why should lawyers care about the WCAR Documents?
c. What should the legal profession do to make the best use of
these documents?
In the following sections, I will attempt to answer each of these
three questions.
Human Rights - Linking the Global with the Local
Long before the WCAR, human rights advocates in Canada have looked
toward the UN, its relevant bodies and various of its instruments
for assistance as additional tools for addressing domestic human
rights issues. Feminist organizations in this country regularly
submit shadow reports to the UN when Canada comes up for reporting
on its compliance with the Convention on the Elimination of All
Forms of Discrimination against Women (CEDAW). Through such shadow
reports, women's groups have been quite effective in exposing
the problem of gender inequality in Canada at the international
level.
Increasingly, other community-based organizations (NGOs and otherwise)
are also employing the mechanisms available to them through the
UN and other international bodies to air their grievances and
to highlight the plight of their communities. Anti-poverty groups
and groups representing Canada's Aboriginal peoples, for instance,
have submitted powerful and persuasive documentation to the Committee
on Economic, Social and Cultural Rights, to counter reports filed
by Canada on its record vis-a-vis the Aboriginal peoples and the
poor in this country. Increasingly, these various UN Committees
are beginning to look at Canada more critically, and not simply
to buy into the myth of "Canada the good".
These examples of how UN treaties and instruments are being used
by Canadian community-based organizations to advance their domestic
human rights causes have proven effective because of the fact
that our governments do care about how they are being viewed by
the UN and the world in general. This is well illustrated by governments
of all levels in Canada often counting on our international reputation
as a "humanitarian" and "multicultural" country
to promote their agendas, be it in the context of bidding for
the Olympic Games, or in justifying certain regressive immigration
and refugee policies. The Canadian Government made a big fuss
out of the fact that Canada got voted six times in a row as the
"winner" of the United Nations Development Program annual
assessment as to which country sets the standard for human development.
Such credit as bestowed by the UN is in turn used to bolster the
cliche that Canada is the best and the most diverse country in
the world.
By the same token, Canada wants to avoid its being embarrassed
in front of the UN. It is perhaps for this reason that Canada
has been delinquent in submitting its reports under the Convention
on the Elimination of All Forms of Racial Discrimination (CERD).
After an eight years lapse, Canada has only recently filed its
13th and 14th reports under CERD, which covered the period June
1993 to May 1997. Canada has yet to file its 15th and 16th reports.
With the regression of governments at all levels from their commitments
to promoting anti-racism, Canada will certainly have a lot of
explaining to do when it comes time to do the reporting.
NGOs are in fact not the only ones who have recognized the importance
of linking the global with the local. More and more lawyers are
promoting the use of international law either as an interpretive
tool, or as a source of legal principles in support of their challenge
to certain domestic laws. Increasingly, the Canadian courts are
willing to adopt the values as expressed in international instruments
to help inform their interpretation of domestic statutes. The
general rule that the courts will interpret domestic legislation
in conformity with international conventions to which Canada is
signatory, insofar as the domestic legislation permits, has long
been recognized by the Supreme Court of Canada.
Human rights advocates want to make the link between the international
and the local for the simple reason that there are international
human rights legal principles which, if adopted, will help advance
domestic human rights causes in Canada. While the Canadian Charter
of Rights and Freedoms (the "Charter") has, since its
enactment, contributed to some extent in raising the level of
human rights compliance by our governments, the effect of the
Charter has been quite limited to date. This is true particularly
for race-based Charter challenges as well as those challenges
launched on behalf of immigrants and refugees.
And while there is no shortage of UN instruments that we could
turn to as measuring rods - as Canada has signed on to just about
every UN human rights convention there is - the problem has been
that our Government somehow never quite gets around to implementing
the specifics of what it has agreed to do.
On a strategic level, therefore, the WCAR creates one more linkage
between Canada and the UN. It provides yet another opportunity
for Canada to be examined and scrutinized by the outside world.
Insisting in this way that Canada actualize its WCAR promises
will help reinforce the importance of such UN instruments in the
domestic context.
On a practical level as well, WCAR contains valuable principles
which, while they are gradually being recognized internationally,
they have yet to gain legitimacy and currency domestically. The
principle of reparations is one of the most obvious examples.
Canadian courts are only just beginning to see law suits seeking
redress for past historical wrongs, and the results of these suits
have been far from favourable from the victims' point of view.
One of the most recent challenges was launched by three individuals
who are among those who have suffered from the effects of Chinese
Head Tax and Exclusion Act, and they are seeking both financial
compensation for their years of suffering and an apology for the
63 years of legislated racism directed at the Chinese Canadian
community.
While granting the motion by the Attorney General of Canada to
dismiss the law suit, Judge Cumming of the Ontario Superior Court
did acknowledge that "there may now be an embryonic international
norm" in support of the argument that governments owe a positive
legal duty to provide redress for wrongs involving violations
of international norms respecting human rights. The WCAR Documents
further accentuate this norm by putting squarely on the international
stage the need, and indeed, the obligation, on the part of governments
to "honour the memory of the victims of past tragedies",
and to "take appropriate and effective measures to halt and
reverse the lasting consequences" of such past tragedies.
The WCAR Declaration also affirms "as a pressing requirement
of justice" that victims of human rights violations be assured
of having access to justice, "including the right to seek
just and adequate reparation or satisfaction for any damage suffered".
Although the language around reparations in the WCAR Documents
is not as strong as what the NGOs might have wanted, these provisions
nonetheless signify an important step in the right direction.
The WCAR Documents also represent a significant breakthrough
for another group that is often left out of the domestic human
rights scene, namely, migrants and migrant workers. In all, there
are five paragraphs in the Declaration and ten paragraphs in the
Programme of Action dedicated solely to the rights of migrants
and migrant workers.
As of the present, Canada has yet to sign on to the International
Convention on the Protection of the Rights of All Migrant Workers
and Members of Their Families, 1990. Canada's excuse is that we
do not have migrants in this country. Anyone who has worked with
migrants would know how patently false is such a statement. Our
Government might be technically correct in stating that our immigration
law does not provide for a category known as "migrants",
and as such, legally they do not exist. But in reality, they are
called such things as "seasonal workers" as in the case
of the Caribbean and Mexican farm workers. Alternatively, they
are labelled "bogus refugees" by the media and the RCMP,
as in the case of Chinese boat people, or "sex slaves"
as in the case of sex trade workers from Thailand and other Asian
countries.
If Canada continues to steadfastly refuse to address the plight
of the migrants, then the WCAR Declaration and Programme of Action
might just be the only UN document that Canada has signed on to
that might be used to force the Government to both acknowledge
and deal with their existence.
The WCAR Documents also come at a critical moment as the world
has been thrown into considerable chaos in the aftermath of the
September 11 events. While some would argue that WCAR is now irrelevant
in light of these tragic events, Laurie Weisberg, NGO Liaison
for WCAR has recently pointed out:
Far from being overtaken by these events, 11 September has made
the anti-discrimination agenda even more important. While welcoming
the unanimous adoption of Security Council Resolution 1373, requiring
all countries to take specific measures to combat terrorism, it
is also important to safeguard against any erosion of human rights
standards which might flow as an unintended consequence of such
measures. In this context it has become even more important to
promote the international anti-discrimination agenda and to ensure
that this agenda is pursued in parallel with international action
to combat terrorism."
Unfortunately, under the guise of protecting national security,
our Government has been rushing through the passage of Bill C-36,
the Anti-Terrorism Act, in a push to equip the state and its law
enforcement agencies with more power to detain, interrogate and
arrest individuals on suspicious or speculative bases. Many civil
libertarians and constitutional experts have spoken out against
the Bill for its draconian measures and the almost unchecked power
granted to the state and to the police. Community organizations
representing many ethnic minorities are particularly concerned
about the implications of the Bill for members of their communities.
They fear that the Bill will in effect sanction the use of racial
profiling by the police and that persons of Arab descent or those
of the Muslim faith will be among the first to be targeted.
These communities would find an ally in the WCAR Documents calling
on states to examine racist practices of law enforcement agencies
and to promote police force free from racism. Moreover, paragraph
72 of the Programme of Action specifically urges states to eliminate
"racial profiling" and other policing practices which
rely to any degree on "race, colour, descent, or national
or ethnic origin as the basis for subjecting persons to investigatory
activities or for determining whether an individual is engaged
in criminal activity".
Racial profiling was wrong before September 11, and it is no
less wrong after that date. If anything, there is a need for us
to be more vigilant about racism and its potential effects on
our society as our governments move to implement laws which have
the potential of oppressing civil rights and silencing political
opposition. The WCAR Documents will be one more standard against
which we will be able to measure our governments' actions as they
launch their so-called "war on terrorism".
Lawyers as Agents for Social Change
As can be seen above, there are many reasons why NGOs might have
an interest in seeing the successful implementation of the WCAR
Documents. Are there similar rationale for members of the legal
profession paying an equal amount of attention to these UN documents?
It would be quite easy for a member of the legal profession to
dismiss the WCAR Documents since they are not legally binding
on Canada, or on any state for that matter. For all we know, the
Canadian Government could choose to simply brush the whole thing
aside and there would be nothing that the UN could do to force
Canada to comply with any of the terms agreed upon, notwithstanding
the fact that Canada participated throughout the WCAR and had
in fact put its signature on the documents.
It is perhaps equally insignificant that the WCAR urges states
to take all necessary "constitutional, legislative and administrative
measures to foster equality" and to amend or repeal legislation
that may give rise to discrimination. Similarly, it could matter
little if states are asked to review their criminal laws or examine
their human rights institutions for various reasons relate to
the themes of WCAR. None of these would matter to lawyers if we
do not see it as our role to help promote equality and to advance
access to justice.
But as the Canadian Bar Association has pointed out in its submission
to the House of Commons on Bill C-36,
Lawyers are on the front lines of the justice system. We understand
the fundamental importance of the rule of law and the value of
rights and freedoms in our society, and not just in a theoretical
sense.
Citing then CBA President Sir James Aikins in 1918, the submission
went on to state:
In the common judgment of the people, the profession of the law
and its members are held responsible for what is weak, uncertain
and wrong in the law or defective in its administration and justly
so in our democracy, for on whom else can they depend to advise
and pilot them to better things.
While it is arguable whether or not lawyers are the last bastions
for the protection of democracy and human rights, there is no
denying that they do play an important role in shaping and maintaining
the rule of law. The law is an instrument for social change, and
as lawyers, we are agents of change. The choice we face is therefore
quite simple: either we promote the law as a catalyst for bringing
about progressive social change that will benefit the powerless
and marginalized, or we could let the law and its institutions
be used as tools for oppression and discrimination.
WCAR - Potentials and Pitfalls
For those who side with the former the above choices, we should
begin to look at ways in which the WCAR Documents might be used
in furthering those purposes.
As mentioned previously, the World Conference on Women (1995)
was supported by a Beijing + Five process, whereby states were
required to report back, five years hence, on their progress in
achieving gender equality within their jurisdictions. The Canadian
Government responded by developing its own Plan of Action shortly
after the Beijing conference. Among other things, the Plan of
Action led to the adoption of a requirement that almost all policies
and laws developed by federal departments must be vetted through
a "gender analysis" to ensure that such policies and
laws will not lead to an adverse impact on women. While the real
impact of this new approach is questionable, it certainly positions
gender equality as an integral part of the policy making framework
at the federal level. Since Beijing, many federal departments
have established their own gender analysis unit, mandated specifically
to undertake gender analysis for that department.
Anti-racist advocates should consider using the WCAR to push
for a similar vetting procedure through the prism of an "anti-racist
analysis", requiring all federal departments as well as provincial
and municipal governments to comply. Building on the Beijing model,
there should be at least an equal commitment of resources by each
department to the issue of race, as there has been to the issue
of gender.
Community activists should also be lobbying the Canadian Government
to begin developing a comprehensive Plan of Action in order to
implement the recommendations coming out of the WCAR process.
Without a specific plan, the WCAR Documents will forever remain
nothing but a wish list for the many victims of racism and related
intolerance.
Advocates from both the legal profession and the community at
large should also begin to dialogue around the WCAR Documents,
with a view to developing a common analysis and shared understanding
of all their implications, both positive and negative. Here, the
expertise and skills of lawyers, particularly those with human
rights law backgrounds, would be much needed. While there are
many NGOs who are well versed on international law principles,
they remain the minority among all the anti-racist community-based
organizations in this country. In fact, many of the mainstream
international human rights groups are not usually known for having
a strong anti-racist analysis. By and large, the anti-racist community
groups are not well-resourced and as such, they are not regular
players at UN fora. For these organizations, lawyers could provide
the much needed legal support and knowhow to strengthen community
resolve for achieving their goals of equality.
Conclusion
In moving forward with the WCAR agenda, advocates must work collaboratively
with all groups and sectors who are potentially affected by the
agreements as reached by the world in Durban. It is crucial for
all those concerned about human rights to take heed of the warning
from Chief Coon Comb - that no one will be sacrificed at the altar
of progress for some and setbacks for others. But just as the
Assembly of First Nations has pledged to work in support of African
Canadians and other racialized communities in their quest for
justice, those who do not stand to gain from WCAR should not,
in the same fashion, be engaging in wholesale condemnation of
the WCAR process and the resulting documents.
Lawyers potentially play a unique role both as individuals who
work within the established legal institutions but also as agents
for change with the law as their tool. They will be well placed
to support community-based organizations and other NGOs in their
ongoing struggle for racial equality beyond the WCAR.
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