On February 27, the Obama Administration indicated it would most
likely not participate in the upcoming Durban Review Conference on
racism due to the extremely biased content of the draft "outcome
document." In an effort to prevent further boycotts of
the conference and entice the U.S. to participate, countries
supporting the more objectionable parts of the Durban II draft
outcome document agreed to accept a shorter draft that eliminated
many-but not all-of the provisions identified by the U.S. as
problematic. The U.N. and human rights groups responded by
demanding that the U.S. return to Durban II.
On April 18, the U.S officially announced that it would not
attend Durban II. A State Department spokesman explained that the
outcome document remained unacceptable due to its reaffirmation of
the flawed 2001 Durban Declaration and other troubling
provisions. The U.S. was right to ignore outside
pressure and refuse to grant Durban II the legitimacy that U.S.
participation would provide.
The Durban II Debacle
The 2009 Durban Review Conference (commonly referred to as
Durban II) is the follow-up to the 2001 United Nations World
Conference Against Racism, Racial Discrimination, Xenophobia and
Related Intolerance. The 2001 conference, held in Durban, South
Africa, was hijacked by nations and non-governmental organizations
that used it as a platform to criticize Israel and the United
States. After trying unsuccessfully to counter those efforts, the
U.S. delegation walked out of the 2001 conference.
To the disappointment of many, Durban II followed in the
footsteps of the 2001 conference. The U.N. Human Rights Council was
appointed the Preparatory Committee for Durban II-a puzzling
decision considering the council's decidedly biased record against
Israel. The council elected Libya as chair of the
Bureau of the Preparatory Committee that sets the agenda and
objectives for the review conference and elected Iran as one of the
19 vice-chairs. Both countries are members and strong supporters of
the 57-nation Organization of the Islamic Conference (OIC), which
has historically been hostile to Israel. Libya is also a member of
the League of Arab States, whose Arab Charter on Human Rights calls
for the elimination of "Zionism," and Iranian President Mahmoud
Ahmadinejad has infamously stated that Israel "must be wiped off
the map" and that "Zionists are the true manifestation of Satan."
Unsurprisingly, the early drafts of the outcome document for
Durban II contained objectionable references to Israel. For
example, an early draft text:
Expresse[d] deep concern at the plight of Palestinian refugees
and other inhabitants of the Arab occupied territories as well as
displaced persons who were forced to leave their homes because of
war and racial policies of the occupying power and who are
prevented from returning to their homes and properties because of a
racially-based law of return.
In addition to such biased treatment of Israel, the early drafts
contained numerous troubling statements supporting efforts to
constrain freedom of speech and expression in order to prevent the
so-called "defamation of religions." For example, the draft text
that a most disturbing phenomenon is the intellectual and
ideological validation of Islamophobia. ... [W]hen it is expressed
in the form of defamation of religions, it takes cover behind the
freedom of expression. ... [A]ssociation of terrorism and violence
with Islam or any other religion, including through publication of
offensive caricatures and making of hate documentaries, would
purposely complicate our common endeavours to address several
contemporary issues, including the fight against terrorism and the
occupation of foreign territories and peoples.
The proponents of "defamation of religions" laws desire to
restrict such speech in the U.S. and the rest of the world.
Controversial cartoons and films, however repugnant to adherents of
a particular religion, are protected speech under the First
Amendment to the U.S. Constitution. The authors of the draft
outcome document, however, seemingly found a solution for such
constitutional barriers, since the document "[c]alls on States to
develop, and where appropriate to incorporate, permissible
limitations on the exercise of the right to freedom of expression
into national legislation."
The U.S. Walks Away
Faced with the question of whether to participate in Durban II,
the Obama Administration sent a delegation to February's
negotiations on the outcome document. The Administration announced
that, pending progress on addressing problems with the text, the
U.S. would consider attending Durban II in April 2009. After
participating in the February meetings, however, the Obama
Administration concluded that
the document being negotiated has gone from bad to worse, and
the current text of the draft outcome document is not salvageable.
As a result, the United States will not engage in further
negotiations on this text, nor will we participate in a conference
based on this text. A conference based on this text would be a
missed opportunity to speak clearly about the persistent problem of
The Administration, however, left open the possibility of
participating in the April conference if the outcome document was
"shortened and [did] not reaffirm in toto the flawed 2001
Durban Declaration and Program of Action [DDPA]," that it not
"single out any one country or conflict, nor embrace the troubling
concept of 'defamation of religion,'" and "not go further than the
DDPA on the issue of reparations for slavery."
Shortly after the U.S. announcement, Italy similarly decided not
to attend, and other European counties were rumored to be
considering skipping the conference. To avoid a broad boycott by
Western countries, the OIC and other nations pressing for the more
objectionable parts of the declaration relented and agreed to
remove overt references to defamation of religions, Israel, and
reparations. They did not, however, remove the endorsement of the
2001 Durban Declaration that contains positions and provisions with
which the U.S. strongly disagrees, including negative references to
Israel. Based on the criteria announced by the Administration, this
is a redline clearly not met and sufficient to preclude U.S.
participation in Durban II.
In contrast, these changes mollified most European countries,
and a boycott by European Union nations was seemingly avoided. The
U.S. was more circumspect, and conflicting rumors continued to
swirl in the press over whether the U.S. would attend and, if so,
in what capacity. Sensing an opening, the U.N. High Commissioner
for Human Rights urged the U.S. to attend, as did numerous human
The Right Decision
The Administration's decision not to attend was the right
decision. The U.S. announcement recognized that the current draft
outcome document, while improved, "still contains language that
reaffirms in toto the Durban Declaration and Programme of
Action ... which the United States has long said it is unable to
support [and] singles out one particular conflict and prejudges key
issues that can only be resolved in negotiations between the
Israelis and Palestinians." The U.S. also stated that it "has
serious concerns with relatively new additions to the text
regarding 'incitement,' that run counter to the U.S. commitment to
unfettered free speech."
The U.S. clearly recognizes that while the Durban II draft
document no longer contains the worst elements of earlier drafts,
the OIC and other countries hostile to Israel and freedom of
expression will have ample opportunity to reinsert such
unacceptable provisions during the conference itself. Attending the
conference would simply place the U.S. and other countries opposed
to these policies on the defensive-a scenario that would likely
result in these nations being presented with an objectionable
outcome that they will either be forced to reject or walk out
Durban II has been off the rails since the beginning, and it is
unlikely that, by attending the conference, the U.S. and other
countries could guide it to a positive outcome. Ironically, only
the decision of the U.S. to announce its likely boycott of the
conference succeeded in positively changing the draft outcome
document. Returning to Durban II would only legitimize what has
been a flawed process and send a signal that the U.S. will settle
for less than it says it will in future forums.
A Valuable Lesson
The experience of Durban II should serve as a valuable lesson
that criticism of the previous Administration's alleged lack of
commitment to multilateral negotiations was often off target.
Multilateralism is but a means to an end, and participation in
multilateral negotiations is no guarantee of beneficent outcomes.
On the contrary, sometimes U.S. participation only lends
credibility to a process that deserves none. While immediately
applicable to Durban II, this lesson should also prompt the Obama
Administration to reconsider its decision to run for a seat on the
U.N. Human Rights Council, which oversaw the Durban II debacle.
Brett D. Schaefer is Jay Kingham
Fellow in International Regulatory Affairs, and Steven Groves is
Bernard and Barbara Lomas Fellow, in the Margaret Thatcher Center
for Freedom, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, at The Heritage
Mahmoud Ahmadinejad, "The World Without
Zionism" speech to the Islamic Student Associations conference,
Tehran, Iran, October 26, 2005, at www.nytimes.com/2005/10/30/weekinreview/30iran.html
(March 4, 2009); "Ahmadinejad in Sudan: 'Zionists Are the True
Manifestation of Satan,'" Haaretz, March 1, 2007, at www.haaretz.com/hasen/spages/832229.html
(March 4, 2009).
Preparatory Committee for Durban II, "Revised
Version of the Technically Reviewed Text (A/CONF.211/PC/WG.2/CRP.2)
Submitted by the Chairperson-Rapporteur of the Intersessional
Open-Ended Working Group to Continue and Finalize the Process of
Negotiations on and Drafting of the Outcome Document," January 23,
2009, p. 9, at http://www.eyeontheun.org/assets/attachments/
documents/7376_Durban_doc_1-28-09.pdf (March 4, 2009).
This document reflects the status of negotiations in the working
group as of January 23, 2009.
Preparatory Committee for Durban II, "Revised
Version of the Technically Reviewed Text," p. 33.
U.S. Department of State, "U.S. Posture
Toward the Durban Review Conference."
See, for instance, Human Rights Watch, "US: Attend Conference on
Racism," April 18, 2009, at http://www.hrw.org/en/news/2009/04/17/us-attend-conference-
racism; and "UN Rights Chief Urges All States to Take Part
in Anti-Racism Conference," UN News Centre, March 2, 2009, at http://www.un.org/apps/ne
States&Kw3=pillay (April 19, 2009); and "UN Rights
Chief Urges Member States to Overcome Differences in Fight Against
Racism," February 23, 2009, at http://www.un.org/apps/news/story.asp?NewsID=29995&Cr=durban+review&Cr1