Durban Conference 25 years on: racism and xenophobia persist — act now

Human rights are a promise and a commitment. The promise of equality, freedom of speech, privacy and access to, among others, health and education as well as the commitment to make these rights a reality. Too often, however, these promises remain words on paper. In this context, my work seeks to use strategic and precedent-setting litigation to challenge systemic injustice, shape progressive jurisprudence and advance human rights standards across diverse legal systems.

Moments of hope

When I think about how far we have come, and all the work that has been done to not only reject but confront racial discrimination, the legacies of colonialism, slavery and apartheid, I also think of systems that once, in some places, still define people as superior or inferior based on the colour of their skin, their race, ethnicity, descent or national origin, denying their humanity and their rights. But alongside that history, I also think of the moments of hope, solidarity and unity that show us what is possible when we come together in unity to challenge injustice and human rights violations.

Despite those efforts, unfortunately those in power have not done enough to dismantle the structures and systems that enable racism, discrimination and xenophobia. Committing to a world that is substantively equal and fair for everyone does not, by itself, undo historic injustices and transform our societies. The adoption of the promise of equality was not enough to undo the systemic underfunding and underresourcing that resulted from decades of state-sanctioned discrimination.

We can see this, for example, in schools in many countries that predominantly serve racialised communities. Many continue to be underfunded and underresourced, reflecting inequalities that were not erased simply because discriminatory policies were formally abandoned or condemned. The promise of substantive equality and fairness, therefore, has not yet translated into true substantive equality or the enjoyment of human rights for all.

Dehumanisation

Even further, we are witnessing the promise of substantive equality being intentionally challenged and undermined, including through people feeling increasingly emboldened to speak openly about others as inferior simply based on their race, their nationality or their background. Dehumanising language and ideas have gained momentum and with them, the willingness to openly question whether everyone is truly entitled to the same human rights.

We have witnessed people adopting a zero-sum approach to human rights as though one person’s rights or one group’s progress must come at the expense of another’s. Progress towards racial equality is framed not as expanding rights for everyone, but as chipping away the rights of others. It’s a dangerous way of thinking that intentionally pits people against one another. Instead of recognising equality as a principle that strengthens the human rights and dignity of everyone, it turns human rights into a competition. 

And that is when you begin to see how difficult it is going to be to really leave racism, discrimination and xenophobia in the past. We are not only struggling to dismantle the systems and inequalities that these ideologies created, we are also confronting efforts to revive and legitimise the very ideas that underpin them.

The Durban Declaration 

The Durban Declaration came about in response to a conversation about the need for more protections and more concrete and transformative action. In that moment in 2001 there was almost a global recognition of the need to do away with racism, discrimination and xenophobia because of their impact on access and enjoyment of human rights.

For me, one of the most important things about both the Declaration and the Programme of Action is that they go beyond condemnation. They provide a plan for action, a commitment to confront the structures, systems and inequalities that allow racism and discrimination to persist.

What we need now is for states to use this plan of action to take clear, concrete actions and turn the promises into reality, to remember why they were made, to defend the progress we have achieved, and to build a world that is fundamentally different from the one we had before.

Strategic litigation 

Strategic litigation can be a powerful tool to drive change, and the Durban Declaration and Programme of Action provides an important framework for strategic litigation because it gives us a clear set of principles for challenging racism, racial discrimination, xenophobia and related forms of intolerance.  It helps translate international commitments into arguments for accountability, equality and access to rights at the national level.

We saw this in a case whereby Amnesty International intervened in Canada earlier this year where an asylum seeker was excluded from access to free childcare, and without childcare she was unable to work. We supported the case when it went before the Supreme Court of Canada, which ruled that excluding asylum seekers was discriminatory and unconstitutional. It’s a powerful example of how the Durban Declaration and Programme of Action can inform concrete legal change.

But a ruling is only the beginning because strategic litigation does not end when a court issues its decision. Its real impact depends on implementation. Progress takes time, and one decision on its own may not transform a system. But when combined with others and with advocacy, organising and other strategies for change, each victory can build on the last and contribute to lasting systemic change. Accordingly, if fully implemented, this decision has the potential to dismantle the compounded effects of the intersection of racism, discrimination and xenophobia.

My message to young people

Never forget that we are not equal until we are all equal. Importantly, equality does not happen by chance, nor through passive hope, it requires deliberate action. It calls on each of us to challenge, confront, and dismantle systems within which inequality and discrimination thrive. So, onwards and forwards: together, with purpose and courage, turning our commitment to substantive equality into meaningful action and creating the world we want to live in; a world where everyone is valued, respected and substantively equal. DM