Bracketing History: the Third WCAR PrepCom

By Ana Elena Obando

At the conclusion of the Third PrepCom, many crucial and contentious issues
remain unresolved. The negotiations over these issues are a reflection of
the political realities outside UN conference rooms. Our best hope of
achieving any meaningful results in Durban will be to assess priorities and
strategies in light of the global context, remembering that the WCAR is not
taking place in a vacuum.

As expected, the most contentious issues at the Third Prepcom were
reparations and the debate on Palestine and Zionism.  These were discussed
in informal consultations.  Language that might be connected to the
question of reparations, and therefore to resource allocation in any form,
was mainly discussed at the plenary.

The list of victims to be identified throughout the Draft Declaration
and Programme of Action is still undecided. Two blocs formed on this issue:
The US and Canada, which wanted to use only the language of CERD and UDHR;
and GRULAC, EU, Asia and Africa, which wanted to make an exhaustive list
(which might exclude present or future groups). Recent  information from
the last day of the Prepcom reports that three new positions are formed:
Mexico with a non exhaustive list, the EU, US, Australia and Brazil and
Canada that included "sexual orientation" and "disabilities" to make an
exhaustive list and the Asian and African countries that prefers CERD and
UDHR language.

The EU bracketed references to the "sources, causes, forms and
contemporary manifestations of racism, racial discrimination, xenophobia
and related intolerance, such as slavery, slave trade, colonialism and
other forms of servitude especially committed against Africans, people of
African descent and Indigenous Peoples." The EU showed its "willingness" to
acknowledge history by proposing alternative language that refers to
"certain aspects of  colonialism". The informal negotiations over this
language (in paragraphs 11-21 of the Draft Declaration) were led by Brazil.

The EU has also blocked any language that would open a dialogue about
reparations, including compensatory measures, to repair the damage done to
Africa, Africans, and African descendants.

On the other hand, African governments have demanded that the Draft
Declaration include an explicit apology, a commitment to compensation from
the countries who have benefited from slavery and explict recognition that
slavery, slave trade, colonialism and apartheid constitute crimes against
humanity. But the EU and US are afraid that the word "apology" could be
used as a legal basis for future claims.

Both the EU and the US are opposed even to compensation in the form of debt
forgiveness or remedial development policies, programs
and other concrete measures.  They are only willing to promote the
principle of "cooperation" and to "express their deep regret and profound
remorse for the terrible suffering caused".  It is evident that the EU,
whose economy has slowed considerably this year, does not want to pay or to
confront the reality of unequal distribution of the wealth around the world
and the contemporary forms of racism in their own countries.

The US used its ongoing threat to pull out of the WCAR to push its
positions on reparations for the trans-Atlantic slave trade, and the
characterization of Zionism as racism.   The US willingness to walk away
from multilateral negotiations and the use of walkout threats to gain
political leverage is nothing new. In the past the US has abandoned
agreements that were embraced by the EU and its other allies, such as the
International Criminal Court and more recently the Kyoto Protocol.

In the WCAR process, the US, France and the UK, are able to exercise
economic pressure on countries in the Global South.  As permanent members
of the Security Council, they can also exercise political pressure on the
countries that are under the spotlight for violations of human rights and
humanitarian law, in order to "negotiate" the issue of reparations at the
WCAR.

In other contexts, the US and the EU have been more than willing to insist
on the principle of international justice.  As the prosecution of former
Yugoslav President Slobodan Milosevic on charges of "crimes against
humanity" moves forward, a political momentum is building in Asia to try
despots linked to similar crimes.  The Bush administration, taking
advantage of this political juncture, is giving careful consideration to
endorsing special tribunals to prosecute atrocities in Sierra Leone, Congo,
Sudan and other countries involved in civil conflicts. Indeed preparations
are underway for setting up an international tribunal under the auspices of
the United Nations to try leaders of the now defunct Khmer Rouge for its
role in the murder of over one million Cambodian citizens between 1975 and
1979.

Some delegations informally told me that the issue of reparations was
already settled and that the countries were only going to agree to an
apology.  Optimistically, it may still be possible to get acknowledgement
of the need for reparations if civil society exercises intense pressure in
the few weeks remaining before Durban and in Durban itself.

Thinking about that, I wonder if the resolution E/CN.4/Sub.2/2001/L.11
issued by the Sub-Commission on the Promotion and Protection of Human
Rights, that recognizes responsibility and reparation for massive and
flagrant violations of human rights which constitute crimes against
humanity and which took place during the period of slavery, of colonialism
and wars of conquest can be used as a tool by civil society?

The WCAR also presented an opportunity to repeat debates about Israel and
Palestine that are familar in UN settings.  The recent increase in violence
in Isreal and Palestine added to the intensity of the debates.  The terms
"anti-semitism" and "islamophobia" are now in brackets and will be with no
doubt discuss in Durban. The High Comissioner stated publicly that Zionism
was not a form of racism and that it was inappropiate to reopen the issue
because that would put the WCAR at risk.

Other contentious issues relates to the right to self determination,
sovereignty, territorial integrity, land and resources of the indigenous
peoples. The delegates argued which terms should be used in the document:
"indigenous peoples" (Iraq, Guatemala, Australia, Chile, and Mexico),
"indigenous population" or "population sector"(Iran). There was also a
footnote stating that the word "people" should have no legal implication
under international law.

The paragraphs that mention "indigenous peoples", "land and resources" or
"territorial integrity" were adopted with brackets or, in the case of
rights to land and resources, deleted.  Some delegations tried to avoid the
core issues by arguing that the document should address cultural "issues"
rather than rights.

A reference to the UN Permanent Forum for Indigenous People was accepted,
but a broader reference to "forums" was deleted. The
reference to resources for the Special Rapporteur on Indigenous Peoples was
removed, leaving only a committment by states to cooperate with the
Special Rapporteur.

Indigenous Peoples have been brutally exploited, exterminated and robbed of
their homelands. In Guatemala, 4 millions of indigenous live with less than
$ 2 a day and only 40% can read. Laws that have declared them "relatively
incapable" for looking after their own affairs have been enacted in the
past, as in Brazil.  But in the eyes of an increasingly watchful world,
Mexico and Colombia are moving toward granting them rights. We should watch
closely the situation with Chiapas in Mexico. In 1999 for example,
Venezuela recognized the claims of 300,000 indigenous peoples to
traditional lands. The Conference of the World`s Indigenous Peoples to be
held this week in New York, will either help to move forward some of the
issues that were being hindered at the WCAR Prepcom or recreate the same
obstacles.

The lastest good news report that brackets were lifted from the term
"indigenous peoples" and that paragraphs with those brackets were adopted
by consensus. However, they kept the footnote on legal implications under
international law.

One of the main priorities for the GRULAC was migrants.  This is especially
critical for Mexico, due to its bilateral agreements with the US and all
the Mexicans living and working in the US.   Discussions about whether to
include any reference to the irregular situation of migrants, an option
favored by  Norway, Egypt, Holy Sea, New Zealand, Senegal, Turkey, Canada
and Mexico, were not settled because the EU wanted to substitute the term
"regular or documented migrants".  The US also wanted to limit the scope by
mentioning only "documented migrants".

Currently, only "migrant workers and their families" are in brackets and
references to persons of migrant origin, resident foreign workers, labour
laws and protection of migrants and their families were deleted. The
paragraph that links migration with globalization was bracketed as well.

The U.S. also proposed the term "legal permanent residents" before the
word "non-nationals."   Mexico emphasized that language in the Programme of
Action have already been adopted to revise migration policies so that they
do not become tools to perpetuate racism, racial discrimination, xenophobia
and related intolerance.

The issue of refugees was not dealt with extensively during the Regional
Conferences since Asian and African countries, which have not ratified the
Convention on Refugees, have a difficult economic and political situation
refugees. Iran, for example, has around 3 millions of Afghan refugees and
Pakistan around one million and a half of them. There is also a increasing
interest by these coutries in expelling refugees.  The Arab world also has
Palestinian refugees in Jordan, Egypt and Syria.  The main reason given for
deleting paragraphs about refugees was that the expulsion of refugees had
no relation to racism.  Sudan proposed deletion of those paragraphs,
ignoring the established international law principle of non-refoulement.

To our surprise, Latin American countries, traditionally Roman
Catholic and with governments totally loyal to Vatican policy, supported a
paragraph on sexual orientation proposed by Brazil.  Although the paragraph
was not open for discussion in the plenary, it received wide support by
Canada, the EU, Chile, Brasil, Argentina and Mexico. As was expected
Pakistan, Iran, Malasya, Jordan, India and China opposed even the
discussion of the issue at that moment. This will be a critical issue in
Durban that will put Canada, the EU and the US together with the GRULAC.

Discrimination on the basis of Caste is being practiced against the Dalits
in South Asia, Burakumin in Japan, Osu in Nigeria and other similarly
discriminated castes in Senegal and Southern Mauritania.  Although the
India Government campaigned very hard to keep the issue of caste
discrimination off the agenda due to its structural, social and economic
implications, in the closing minutes of the PrepCom, the Chair of the
Working Group on Programme of Action ruled that paragraph 109 on Caste
discrimination was unbracketed for the WCAR.  This is a historic gain for
Dalit activists because is the first time that Caste is mentioned in a UN
world conference document.  Activists will have to work hard to protect
this gain because it can be easily deleted due to the economic alliances
and interests of the countries who oppose it.

The historical paragraph ask states to ensure that all necessary
constitutional, legislative and administrative measures, including
appropriate form of affirmative action, are in place to prohibit and
redress discrimination on the basis of work and descent, and that such
measures are respected and implemented by all state authorities at all
levels.

Regarding women, gender perspective and multiple forms of discrimination,
no specific paragraph was adopted in the Draft Declaration but the
following ones were adopted in the Program of Action.

Paragraph 16 of the POA urges states to ensure education and access to
technologies for Africans and people of African descent, in particular
women and children, as well as to incorporate the history and contribution
of Africans and people of African descent into the education curriculum was
adopted.

Paragraph 23 on public policies and programmes for the promotion of
indigenous women and girls rights was adopted without brackets. It refers
to violence against women, including domestic violence and aggravated
discrimination suffered by indigenous women and girls on multiple grounds
of racism and gender discrimination.

Paragraph 37h, on the adoption and implementation of immigration
policies and programmes to enable women and children who are victims of
domestic violence to free themselves from abusive relationships, was
approved.

Paragraph 38 urges states to place focus on gender issues,
including gender discrimination, when the multiple barriers faced by
migrant women intersect was adopted with an specific mandate to research
the human rights violations perpetrated against women as well as the
contributions they do to the economies of their countries of origen and
destination.

Paragragh 59 urges states to incorporate women victims of
racism, racial discrimination, xenophobia and relateds intolerance, in
decision.making at all levels and develop measures to incorporate
race/gender analysis in the implementation of the POA and national plans,
particularly in the fields of employment, services, and resource
allocation.

Paragraph 61, on gender analysis on poverty erradication measures
desgined to benefit ethnically disadvantaged groups, was adopted. However,
in the debate South Africa stated that it did not understand the link
between poverty and the economic, political and social status of women.

Paragraph 62, that refers to empowering women and girls of targeted
groups to ensure their participation in decision-making at all levels, was
adopted with brackets because Egypt, Turkey and Iran wanted to refer to
"women who were subjected to discrimination" and not "women" as a group, as
proposed by the US, Canada, Mexico, Norway and Namibia.

Finally, paragraph 72 urges states to take measures to address
and eliminate all forms of racially motivated discrimination and violence
against women and girls.

However, there are still many paragraphs about particular forms of
discrimination that are undecided, including references to HIV/AIDS, all
forms of trafficking of women and children as a widespread slavery-like
practice deeply rooted in racial and multiple discrimination,
gender-related crimes, such as rape and other forms of sexual and domestic
violence, forced prostitution and trafficking for the purpose of sexual
explotaition, and gender based violence to women in situations of armed
conflict, among others.

>From the language that was adopted and the discussions about those
paragraphs, it was clear that for governments "women" and "gender" are
synonymous.  In their understanding, a gender/race analysis is to be
applied to women belonging to one of the disadvantaged groups, but not to
all women or to men.  Their understanding of intersectional analysis or
what they conceive of as "multiple discrimination" is still limited to the
idea of additional grounds for discrimination, rather than the simultaneous
interaction of  discrimination based on multiple identities.

In addition to these issues, which have been under discussion in the
Women's Caucus, we may need to consider paragraph 70 of the Draft
Declaration.  That paragraph deplores the attempts in certain Western
countries to pressure women from Muslim minority groups to forego their
cultural and religious identity or restrict its legitimate expression that
should be examined by the Women Caucus carefully. It was bracketed after
the Russian Federation and the U.S. proposed more general language so that
the text would also address the discrimination suffered by women from other
groups.  Pakistan stressed the
need to retain the paragraph and remove the brackets because Muslim women
are subjected to this kind of pressure and that it should not be
generalised because the situation is very distinct. This proposal was
supported by the delegates from the United Arab Emirates, Iran
and Lesotho.

The work for the Women's Caucus in the little time remaining before Durban
includes assessing our priorities regarding language in the revised Draft
Declaration and POA, and the more basic task of clarifying the concept of
intersectional analysis. It seems necessary for us to find a formulation
that will make very clear what intersectional analysis is and what it is
not, with examples that we can present in a brief document.

In addition, the Caucus will need to consider the question of access in
Durban. NGOs will have only 50-60 seats in the Drafting Committee, another
50-60 seats in the Main Committee and about 800 seats in the Plenary.
Therefore, it will be crucial to design a democratic system that provides
access to all the representatives of the NGO caucuses.

The International Convention Centre (ICC), where the main Conference will
take place, is a building that can hold 5,000 people. Since it
is expected that there will be up to 4,000 persons among government
delegations, UN staff, and other inter-governmental agencies, only
some 1000 NGO representatives will be able to enter the ICC at any
given time. This access will be controlled by a pass system (one or two
passes per NGO that will have to be shared by that NGO delegation).
Therefore to enter the ICC building one will need two badges: the personal
one and the badge for entering the ICC building.

The issue of access raises important questions for us, including:

· What arrangements will be made for the people who cannot be in the ICC
building ?
· How are we going to organize ourselves in order to lobby all our issues
and do work that can impact the Conference while we are not in the ICC
building ?
· Can we access delegations in advance to give them our language on crucial
issues, through email or in meetings ?
· How can we impact the informal negotiations ?
· How are we going to use the thematic Commissions to produce input
that can impact directly the outcome of the Conference ?
· What will be the use of NGOs documents, given that they are a mere
compilation of language from all the caucuses and not consensus documents?
· Is it possible to use these documents for the follow up ?
· What is the goal of NGOs lobbying other NGOs instead of lobbying the
governments ?
· Are people lobbying their governments so that they send high level
officials instead of people who cannot make decisions ?
. What role would the interlinkage caucus play for advancing the Conference ?

As you probably know by now, a grassroots activist movements was formed in
South Africa on July 29 to organise mass protests at the WCAR. A
spokesperson for the alliance said 15,000 people may join the
main protest set for September 1. It will probably be a good idea for the
Interlinkage Caucus to get in contact as soon as possible with the
alliance, in order to be part of the protest and give visibility to our
issues. We have talked about a political demonstration in our meetings
anyway.

These and many other questions are to be discussed before and during the
WCAR. The Conference will not be, by any means, the ending but the
beginning of a new process. My hope is that what we build and learn as
civil society during every process do not dissapear as the Conference
finishes. Let us all contribute every day to unbracket history.