Descent-based discrimination in international law: A legal history

International Journal on Minority and Group Rights

Volumn 12, Issue 1, 2005, Pages 93-116

  Keane, David ^a  

^a NATIONAL UNIVERSITY OF IRELAND   (Ireland)

Author keywords

[No Author keywords available]

Indexed keywords

CASTE SYSTEM; HUMAN RIGHTS; INTERNATIONAL LAW; RACISM;

ASIA; EASTERN HEMISPHERE; EURASIA; INDIA; SOUTH ASIA; WORLD;

EID: 18844374153     PISSN: 13854879     EISSN: None     Source Type: Journal    
DOI: 10.1163/1571811053890371     Document Type: Review

References (105)

1. From the short story 'Philology', by Leonardo Sciascia, in The Wine-Dark Sea (1973), Granta Books, London, translation by Avril Bardoni.
2. In the 100th meeting of the Third Committee of the General Assembly, India proposed inserting the word 'caste' into the text of Article 2 of the Universal Declaration of Human Rights because it "objected to the word 'birth'". The words 'other status' and 'social origin' were found by the delegation to be sufficiently broad, and it did not therefore insist upon its proposal; P. Thornberry, 'The Convention on the Elimination of Racial Discrimination, Indigenous Peoples, and Caste/ Descent-based Discrimination', in J. Castellino and N. Walsh (eds.), Martinus Nijhoff International Law and Indigenous Peoples (Raoul Wallenberg Institute, publication forthcoming), p. 37, n. 107.
3. Article 1(1) of the ICERD defines racial discrimination as "any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin...".
4. CERD/C/SR.1531 The thematic discussion took place on the 9 August 2002; there are no summary records for the session, which involved twenty-three separate interventions from members of the UN Sub-Commission on the Protection and Promotion of Human Right, NGO's (one of which was a joint statement from thirty-two NGO's), and two governments - India and Nepal; see Thornberry, supra note 2, p. 40, n. 124.
5. UN Doc. E/CN.4/SUB.2/RES/2000/4, 11 August 2000.
6. UN Doc. E/CN.4/Sub.2/2004/31.
7. UN Doc. E/CN.4/Sub.2/2004/31, para. 73.
8. While 'descent' does not appear as a ground in any other international non-discrimination clause, it is not entirely unique in the corpus of human rights law - Article 1.1(b) of ILO Convention 169 on Indigenous and Tribal Peoples covers indigenous status on the grounds, inter alia, of "descent from the populations which inhabited the country..."; Thornberry, supra note 2, p. 37, n. 107.
9. CERD member Mr. Rodriguez, Thematic Discussion on Discrimination based on Descent, 16 August 2002, CERD/C/SR.1531, para. 18.
10. CERD/C/299/Add.3, Periodic Report - India, April 1996, para. 6.
11. Ibid., para. 7.
12. CERD/C/149/Add.11, India's eighth and ninth periodic reports were submitted together.
13. Mr. Van Boven, CERD/C/SR.1162, para. 15. India subsequently opposed the inclusion of the term in the Durban Declaration and Programme of Action, and 'caste' was thus excluded from the final text at the World Conference against Racism in 2002, although India was the only State vocally opposed to its inclusion; see South Asian Human Rights Documentation Centre (SAHRDC), Submission to the 61st session of the Committee on the Elimination of Racial Discrimination on the Thematic Discussion on Discrimination on the ground of Descent, 8-9 August 2002, and Thornberry, supra note 2, p. 39, n. 119.
14. Mr. Chigovera, CERD/C/SR.1162, para. 22; In reply, Mr. Singh of India stated: "Constitutionally, the concept of race was distinct from caste. Engaged as it was in the task of eliminating all vestiges of caste discrimination, India could not accept another distinction. To confer a racial character on the caste system would create considerable political problems..." (para. 35).
15. CERD/C/304/Add.13, Concluding Observations - India, September 1996, para. 14.
16. CERD/C/58/Misc.17/Rev.3, Concluding Observations - Japan, 20 March 2001, para. 8.
17. Comments of States Parties on the Concluding Observations of the Committee, A/56/18, para. 2.
18. CERD/C/58/Misc.26/Rev.3, Concluding Observations - Bangladesh, 22 March 2001, para. 11.
19. A/57/18, Concluding Observations - Senegal, August 2002, para. 445.
20. A/57/18, Concluding Observations - Mali, August 2002, para. 391.
21. CERD/C/62/CO/4, Concluding Observations - Ghana, March 2003, para. 22.
22. UN Doc. A/57/18, pp. 111-117.
23. CERD/C/SR.1531.
24. Thornberry, supra note 2, p. 42.
25. Thornberry notes that "it may now be said that, if not defined, descent-based discrimination has at least been conceptualised in General Recommendation XXIX"; ibid., p. 44.
26. "Strongly reaffirming that discrimination based on 'descent' includes discrimination against members of communities based on forms of social stratification such as caste and analogous systems of inherited status (...)".
27. Thornberry, supra note 2, p. 41.
28. CERD, General Recommendation XXIX, 61st session 2002, para. 1.
29. Thornberry, supra note 2, p. 42.
30. CERD, General Recommendation XXIX, 61st session 2002, preamble.
31. UN Doc. E/CN.4/SUB.2/RES/2000/4, 11 August 2000.
32. Ibid., para. 1.
33. Ibid., para. 2.
34. UN Doc. E/CN.4/Sub.2/2001/16, 14 June 2001; the paper's focus was limited to Asian countries due to time restraints and lack of access to relevant materials, however, the author insisted in paragraph 49 that the problem is not limited to Asia alone, and that it exists in some parts of Africa and South America.
35. Human Rights Watch, 'Caste Discrimination: A Global Concern, A Report for the United Nations Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance', 2001.
36. CERD was not intended to be an organ of the United Nations. During the drafting of the ICERD, a proposal that the Committee be renamed the 'United Nations Committee on the Elimination of Racial Discrimination' was defeated (UN Doc. A/C.3/SR.1352); see E. Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination', 15 ICLQ 996 (1966), p. 1035.
37. UN Doc. E/CN.4/Sub.2/2001/16, 14 June 2001, para. 3.
38. Ibid. The paper also found that it manifests itself notably through tribal-based distinctions.
39. Ibid., para. 50.
40. UN Doc. E/CN.4/Sub.2/2003/24, submitted pursuant to Sub-Commission decision 2002/108, 26 June 2003, para. 5.
41. Ibid., paras. 57 and 58.
42. Ibid., para. 45.
43. Ibid., para. 46.
44. Ibid., para. 47.
45. Ibid., para. 48.
46. The fourfold division described in the Vedas, the sacred Hindu texts, represents the varna theory of caste; according to this theory, therefore, society is divided into Brahmans, Kshattriyas, Vaisyas, and Sudras. However, a caste in India also implies the concept of jati , which has been defined as "an endogamous group bearing a common name and claiming a common origin, membership in which is hereditary, linked to one or more traditional occupations, imposing on its members certain obligations and restrictions in matters of social intercourse, and having more or less a determinate position in a hierarchical scale of ranks"; M. Galanter, 'Competing Equalities; Law and the Backward Classes in India', Berkeley 1984, p. 7.
47. Ibid., para. 49.
48. Ibid., para. 50.
49. Ibid., para. 51.
50. Ibid., para. 7.
51. Ibid., para. 13.
52. D. Todd, 'Caste in Africa' 47 Africa (4), pp. 389-412, cited in E/CN.4/ Sub.2/2003/24, para. 16.
53. UN Doc. E/CN.4/Sub.2/2003/24, 26 June 2003, para. 16.
54. The term akhdam means 'servants'.
55. M.H. Hashem, Goals for Social Integration and Realities of Social Exclusions in the Republic of Yemen (Geneva, International Institute for Labour Studies, 1996), cited in E/CN.4/Sub.2/2003/24, 26 June 2003, para. 34.
56. UN Doc. E/CN.4/Sub.2/2004/31, para. 35.
57. Ibid., paras. 37 and 38.
58. Ibid., para. 39.
59. Ibid., para. 40.
60. E/CN.4/Sub.2/2004/31, para. 68.
61. Ibid., para. 77.
62. Ibid., para. 86(a).
63. Ibid., para. 79.
64. UN Doc. E/CN.4/873 Report of the 16th session of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities, Economic and Social Council - 37th session, Res. 1015B (XXXVII) as recognised by Social Committee E/3952, 30 July 1964;
65. UN Yearbook (Y.U.N.) 1964, p. 346.
66. UN Declaration on the Elimination of All Forms of Racial Discrimination, Y.U.N. 1964, p. 346.
67. UN Doc. A/C.3/L.1216 Y.U.N. 1965, archives 1966.I.1, Office of Public Information, United Nations: New York.
68. UN Doc. A/C.3/SR.1299, 11 October 1965, para. 29.
69. Ibid., para. 28.
70. UN Doc. A/C.3/SR.1301, 12 October 1965, para. 19.
71. UN Doc. A/C.3/L.1216 and L.1238; A/6181, paras. 33, 37 and 41(a).
72. UN Doc. E/CN.4/873, UN Yearbook (Y.U.N.) 1964, p. 346.
73. UN Doc. A/C.3/L.1225; Article 1 paragraph 2, second line: After the words "of certain" replace the word "under-developed" by the word "under-privileged".
74. UN Doc. A/C.3/SR.1301, 12 October 1965, para. 20.
75. UN Doc. A/C.3/SR.1306, 15 October 1965, para. 25.
76. UN Doc. A/C.3/SR.1308, 18 October 1965, para. 7.
77. UN Doc. A/C.3/SR.1374, 15 December 1965, para. 23.
78. Ibid., para. 22.
79. UN Doc. A/C.3/SR.1299, 11 October 1965, para. 28.
80. On this point, see W. McKean, 'The Meaning of Discrimination in International and Municipal Law', 44 Brit. Y.B. Int'l L. 177 (1970), p. 186. The point was made in a discussion in the UN Commission for Human Rights, whereby the Ukranian delegate successfully argued for the removal of the word 'arbitrary' from the phrase 'arbitrary discrimination' in the draft that became Article 7 of the Universal Declaration of Human Rights (UN Doc. E/CN.4/SR.52, pp. 8-13), on the basis that although the word 'discrimination' can also have a neutral or positive meaning, whereby 'discrimination' is synonymous with differentiation, discernment, or distinction, in the international legal context, it is always used only in the restricted sense of an unjustified or arbitrary distinction.
81. CERD/C/299/Add.3, Periodic Report - India, April 1996, para. 6.
82. UN Doc. A/C.3/SR.1309, paras. 3-5;
83. Thornberry, supra note 2, p. 38, n. 111.
84. K.J. Partsch, 'Elimination of Racial Discrimination in the Enjoyment of Civil and Political Rights: A Study of Article 5, subparagraphs (a) to (d), of the International Convention on the Elimination of All Forms of Racial Discrimination', 14 Texas International Law Journal 191 (1979), p. 198.
85. E. Schwelb, 'The International Convention on the Elimination of All Forms of Racial Discrimination', 15 ICLQ 996 (1966), p. 1003.
86. Ibid., p. 1003, n. 43.
87. I b i d.
88. Constituent Assembly Debates, Vol. III, Official Reports, (Lok Sabha Secretariat, New Delhi reprinted 1999), Book I p. 445, 30 April 1947.
89. Ibid., Book I p. 426, 29 April 1947; clause 4(1).
90. Ibid., Book I p. 447, 30 April 1947.
91. Constituent Assembly Debates, Vol. VII, Official Reports, (Lok Sabha Secretariat, New Delhi reprinted 1999), Book II p. 664, 29 November 1948.
92. Ibid., Book II p. 674, 30 November 1948.
93. Ibid., Book II p. 676, 30 November 1948.
94. Ibid., Book II p. 650, 29 November 1948.
95. Ibid., Book II pp. 650-651, 29 November 1948.
96. Ibid., Book II p. 656, 29 November 1948.
97. I b i d.
98. I b i d.
99. Ibid., Book II pp. 656-657, 29 November 1948.
100. Ibid., Book II p. 660, 29 November 1948.
101. For a translation of the Hindu Vedic laws, see, J. Muir, 'Original Sanskrit Texts on the Origin and Progress of the Religious Institutions of India', Vol. I London (William & Norgate) 1858. The oldest passage in the Vedas which alludes to the fourfold origin of the caste system is the celebrated hymn known as the Purusha Sukta, which is found in three of the Vedic Sanhitas; the Rig Veda, the Vajasaneyi Sanhita of the Yajur Vida, and the Atharva Veda; "When they formed Purusha, into how many parts did they divide him? What was his mouth? What were his arms? What were called his thighs and feet? The Brahman was his mouth; the Rajanya was made his arms; that which was the Vaisya was his thighs; the Sudra sprang from his feet." (Rig Veda, Book X, Verse 90).
102. See Section I above, supra notes 19 and 20, where CERD indicated the presence of caste systems in Mali and Senegal in its Concluding Observations.
103. Thus, for example General Recommendation XXIX and the three working papers strongly emphasize the notions of purity and pollution that may indicate the presence of descent-based groups. Louis Dumont's Homo Hierarchicus: The Caste System and Its Implications, considered the most influential contemporary work on the Hindu caste system and its organizing principles, identifies the binary opposition between the pure and the impure as the governing conception underlying caste hierarchy in India ("The single true principle is the opposition of the pure and the impure."; L. Dumont, 'Homo Hierarchicus: The Caste System and Its Implications', Weidenfeld and Nicholson, (London 1970), p. 81).
104. Dr. B.R. Ambedkar, 'The Annihilation of Caste', New Delhi 1936.
105. Ibid., p. 63.