Prof Thio Li-ann Engages with the Ad Hoc Committee on the Elaboration of the Complementary Standards to the Convention on the Elimination of All Forms of Racial Discrimination

From left to right: Prof Joanna Botha (S Africa),  Prof Mark Drumbl (USA),  Ambassador Kadra Ahmed Hassan (Djibouti), Prof Thio Li-ann (Singapore),  Justice Rhonda Bain (Bahamas)

On 22 and 23 May 2023, Provost’s Chair Professor Thio Li-ann (CALS Cluster Coordinator for Comparative Public Law), together with other leading human rights experts, engaged with the Ad Hoc Committee on the Elaboration of Complementary Standards on the document they had jointly prepared, entitled “Preliminary Inputs and Advice by the Experts on the Four Questions in Paragraph 79(a)–(d) of Report A/HRC/51/57”.

Prof Thio, along with the other experts, were engaged as expert consultants to the Ad Hoc Committee. The Ad Hoc Committee was formed to explore the structure, scope, elements and terms of a draft additional protocol to the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) criminalising acts of a racist and xenophobic nature.

The other legal experts who had jointly prepared the document are as follows: Rhonda Bain, former Supreme Court Justice and Associate Tutor at Eugene Dupuch Law School, Bahamas; Beatrice Bonafe, Professor of International Law, Sapienza University of Rome, Italy; Joanna Botha, Hed of the Department of Public Law, Faculty of Law, Nelson Mandela University, South Africa; and Mark Drumbl, Class of 1975 Alumni Professor of Law and Director of the Transnational Law Institute, Washington and Lee University, United States of America.

In her presentation before the Ad Hoc Committee on 23 May 2023, Prof Thio questioned as to whether there was latitude for the inclusion of provisions prohibiting xenophobia and religious discrimination. She revisited the historical development of the ICERD and reminded the Ad Hoc Committee that the original intention in the 1960s had been to split the development of legal instruments addressing racial discrimination and religious intolerance. In this regard, she noted that the ICERD represented the former instrument. However, the latter was never completed, and only resulted in the passage of the 1981 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief which, unlike the ICERD, was only a soft law instrument.

Prof Thio argued against reading religion or belief – as freestanding rules against discrimination – into the ICERD, given its historical development as an instrument dealing with racial discrimination. That being said, Prof Thio observed that the ICERD could nevertheless treat religious intolerance as an aggravating factor in tandem with racial discrimination – that is, any consideration of religious discrimination in the context of the ICERD should be parasitic upon there first being racial discrimination. The proposed additional protocol, as Prof Thio observed, thus provides an opportunity to clarify intersectional approaches, where the issue of racial discrimination interacts with related issues of xenophobia and religious intolerance.

Taking a step back and adopting a pre-emptive view, Prof Thio explored the possibility of non-criminal methods to address the issues of racial discrimination and religious intolerance. She noted how the Singaporean government created a harmony fund for youth with initiatives to promote inter-faith and inter-religious harmony. Additionally, she pointed out that when acts of racial discrimination and religious intolerance are carried out by individuals, governments may – instead of resorting to criminal law – use such instances to educate the public and bring about conciliation using non-criminal law remedies and approaches.

Presenting her views on xenophobia, Prof Thio notes that existing instruments such as the ICERD, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights gave states the ability to treat nationals and non-nationals differently in relation to certain rights and benefits. Additionally, she noted that the term “xenophobia” could apply within the same citizen class – for example, she stated, new citizens who recently took up citizenship could be discriminated by the original citizens notwithstanding, for example, that both groups of citizens share the same ethnicity. Thus, she opined that any provisions criminalising xenophobia can only logically follow after parties can agree to a common definition of the term that had to be consistent across “all other pre-existing legal instruments including those address migrants, refugees, and asylum seekers as well as human rights instruments”, which “would not be an easy task”.

Finally, on the topic of hate speech, Prof Thio noted that “the answer to hate speech was more good speech rather than restricted speech”. She recounted that, in the context of religion, it was a “challenge to find the proper balance because some people were more sensitive than others to this topic”. She then opined that speech should be regulated through a balancing test between the right to freedom of expression and the gravity and likelihood of harm that would flow if a person exercised that right to the detriment of society. This was welcomed by the Chair-Rapporteur, who expressed the view that “balancing … was how she hoped to anchor the work of the Ad Hoc Committee”.

Prof Thio will be participating in her capacity as an expert consultant in the upcoming 14^th Session of the Ad Hoc Committee which will be taking place in July/August 2024. She is currently working on the following issues: first, whether the ICERD should address religious discrimination; second, how to address online hate speech from an international perspective; and finally, what non-punitive measures might be taken to address problems associated with hate speech.

We at CALS are extremely excited to see the fruits and results of Prof Thio’s work and wish her all the best in her participation at the 14^th Session!