THE CONVENTION ON THE ELIMINATION OF RACIAL DISCRIMINATION, INDIGENOUS PEOPLES AND CASTE/DESCENT-BASED DISCRIMINATION

Raoul Wallenberg Institute Human Rights Library

Volumn 20, Issue , 2005, Pages 17-52

  Thornberry, Patrick ^a  

^a NONE

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EID: 85179981300     PISSN: 13883208     EISSN: None     Source Type: Book Series    
DOI: 10.1163/9789047407324_006     Document Type: Chapter

References (135)

1. 1 J.-F. Lyotard, ‘The Other’s Rights’, in S. Shute and S. Hurley (eds.), On Human Rights: The Oxford Amnesty Lectures 1993 (Basic Books, New York, 1993) p. 135, p. 136.
2. 2 P. Thornberry, Indigenous Peoples and Human Rights (Manchester University Press, Manchester, 2002).
3. 3 Buraku in particular may object to the use of the term ‘caste’ to describe their situation. The reader should bear in mind that the generalized use of ‘caste’ in the present chapter is only a shorthand term used for purposes of exposition, and is without prejudice to the self-descriptions of those who belong to particular communities.
4. 4 M.C. Raj, From Periphery to Centre: Analysis of the Paradigm of Globalization, Casteism, Dalitism (Ambedkar Resource Centre, Rural Education for Development, Tumkur, 1998).
5. 5 There is an analogous tension in contemporary Roma (Gypsy) activism: whether to pursue a non-discrimination strategy, or move towards self-determination or the recognition of a Roma ‘nation’; see, e.g., Roma and the Question of Self-determination: Fiction and Reality (Project on Ethnic Relations, Princeton, 2002).
6. 6 See further A. Tanaka and Y. Nagamine, The International Convention on the Elimination of All Forms of Racial Discrimination: A Guide for NGOs (IMADR and Minority Rights Group International, Tokyo and London, 2001). The present author has drafted a general paper on the Convention and CERD for the second edition of ‘The United Nations and Human Rights’ under the editorship of Philip Alston.
7. 7 Ibid., Article 1.1.
8. 8 Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance, A/CONF.189/12, pp. 104–105. For a synopsis of the work of UNESCO in deconstructing ‘race’, see K. Boyle and A. Baldaccini, ‘A Critical Evaluation of International Human Rights Approaches to Racism’, in S. Fredman (ed.), Discrimination and Human Rights (Oxford University Press, Oxford, 2001) pp. 135–191, p. 152, n. 77. For an extended account of the problematique of ‘race’ see M. Banton, Racial Theories (Cambridge University Press, Cambridge, 2d ed., 1998); and ‘The Historical Context of Racial Classification’, 1984 UNESCO Yearbook of Peace and Conflict Studies (Greenwood Press, Westport, Conn., 1986) pp. 79–127. The UNESCO Declaration on Race and Racial Prejudice 1978 is discussed in P. Thornberry, International Law and the Rights of Minorities (Clarendon Press, Oxford, 1991), ch. 33.
9. 9 The elision of the category of ‘race’ is strongly opposed by CERD member J. Lindgren Alves. Commenting on the rejection of ‘race’ by European delegations, he writes that ‘if extended to the limits, such rejection might ad absurdum void the very rationale of the [Durban] Conference. For out of sheer logic, the non-existence of races might signify that racism does not exist, thereby nullifying the need to combat it – a position that no one advocated’. J. Lindgren Alves, ‘The Durban Conference against Racism and Everyone’s Responsibilities’ (on file with author).
10. 10 Discussed at length in P. Thornberry, Indigenous Peoples and Human Rights, ch. 8. In only the 2001 and 2002 sessions, as well as in March 2003, CERD adopted concluding observations on indigenous peoples on the reports of Argentina, Botswana, Costa Rica, Denmark, Ecuador, Fiji, Japan, New Zealand, the Russian Federation, Uganda, the United States of America, and Vietnam. Other cases dealt with, such as the Amazigh populations referred to in the observations on Morocco and Tunisia but not specifically as indigenous peoples, have defined themselves as indigenous before UN bodies. CERD does not operate according to a specific definition of ‘indigenous’, but is guided to particular cases by a sometimes circumspect appreciation of ‘standard usage’ for the term.
11. 11 A/52/18, pp. 122–123, p.122.
12. 12 See the multiple references to the intersection of ‘race’ and ‘caste’ in S. Bayly, Caste, Society and Politics in India (Cambridge University Press, 1999).
13. 13 K. Booth, ‘Three Tyrannies’, in T. Dunne and N.J. Wheeler (eds.), Human Rights in Global Politics (Cambridge University Press, 1999) p. 31.
14. 14 The author is indebted for this point to a note from former Chairman of CERD, Michael Banton, on ‘The Meanings of Race’ (April 2003, on file with author).
15. 15 R. Williams, Keywords (Fontana Press, London, 1998) p. 250.
16. 16 Adopted on 17 March 1993.
17. 17 Text in Manual on Human Rights Reporting (Geneva, United Nations, 1977) pp. 272–273.
18. 18 See comment in M. O'Flaherty, ‘substantive provisions of the International Convention on the Elimination of All Forms of Racial Discrimination’, in S. Pritchard (ed.), Indigenous Peoples, the United Nations and Human Rights (London, Zed Books, 1998) pp. 162–183.
19. 19 For example, M. Banton, International Action against Racial Discrimination (Clarendon Press, Oxford, 1996) pp. 192–193.
20. 20 For a critique of basic concepts, see K. Frostell, ‘Gender difference and the nondiscrimination principle in the CCPR and the CEDAW’, in L. Hanikainen and E. Nykanen (eds.), New Trends in Discrimination Law – International Perspectives (Turku Law School, Turku, 1999) pp. 29-57.
21. 21 O'Flaherty, supra note 19, p. 166.
22. 22 Compare the approach of the Committee of Experts under the Council of Europe’s Charter for Regional or Minority Languages: in their report on Hungary, the Committee observed that the term ‘“public life” is fairly wide and could include the use of the language in education, justice, administration, economic and social life and cultural life as well as in trans-frontier exchanges’. ECRML (2001) 4. The categories of public life referred to by the Committee of Experts are the categories dealt with by the Charter; a similar interpretative manoeuvre may be applied to ICERD. Ibid., paragraph 24.
23. 23 See the reservation of the United States stating that under the Convention, the USA does not propose to regulate private conduct to any greater extent than under its Constitution and laws. ST/LEG/SER.E/14, p. 102.
24. 24 Article 2(d). See also Article 4(a). In General Recommendation XX, the Committee states: ‘To the extent that private institutions influence the exercise of rights or the availability of opportunities, the State Party must ensure that the result has neither the purpose nor the effect of creating or perpetuating racial discrimination.’ A/51/18, Annex VIII, paragraph 4.
25. 25 Boyle and Baldaccini, supra note 9, p. 159.
26. 26 B.M.S. v. Australia, A/54/18, pp. 78–86 (Although the complaint alleging bias in examinations for a license to practice medicine for overseas-trained doctors did not disclose a violation of the Convention, the Committee assumed that a distinction targeted at or which had an adverse impact on a particular group of non-citizens would be condemned.); see also K.R.C. v. Denmark, A/57/18, pp. 134–140.
27. 27 General Recommendation XXV, A/55/18, Annex V; see also the section on this aspect of discrimination in General Recommendation XXIX, included in the annex to the present paper.
28. 28 Advisory Opinion, P.C.I.J. Series A/B, No. 64 (1935).
29. 29 Appl. No. 34369/97, Judgment of 6 April 2000.
30. 30 Ibid., paragraph 44; emphasis added.
31. 31 For a detailed treatment, see A.H.E. Morawa, ‘The Evolving Human Right to Equality’ 1 European Yearbook of Minority Issues (2001/2)157.
32. 32 The following extract illustrates the current line of CERD on these issues: The Committee appreciates the approach adopted by the State party to respect customs and traditions of various ethnic groups on its territory, while at the same time enhancing the enjoyment of human rights for all. It further notes that . . . whereas cultural rights are protected, customary practices which dehumanize or are injurious to the physical or mental well-being of a person are prohibited. Concluding Observations on the sixteenth and seventeenth periodic reports of Ghana, CERD/C/62/CO/6, 21 March 2003.
33. 33 In Concluding Observations on Nepal, caste was referred to by the Committee as an aspect of ‘traditional customs’. A/55/18, paras. 289–306, para. 294.
34. 34 See Article 27 of the ICCPR, A/49/40, pp. 107–110.
35. 35 In practice, as Banton notes, linking the prohibition of discrimination to ‘origin’ has proved simpler than attempting to relate it to an ethnic group – with attendant problems of assessing group membership. International Action, pp. 194–195.
36. 36 UN Doc. A/45/18.
37. 37 See the reminder (Concluding Observations) to Greece on the principle of self-identification in respect of its eighth, ninth, tenth and eleventh periodic reports at the forty-first session of the Committee. A/47/18, paragraph 91.
38. 38 On Indigenous and Tribal Peoples 1989.
39. 39 In discussions on CERD’s draft General Recommendation on Demographic Information of 1999, the Chairman (Aboul-Nasr) ‘questioned the novel idea of self-identification with a particular group or minority’. CERD/C/SR.1363/Add.1 (1 September 1999), paragraph 9. CERD member Diaconu, on the other hand, ‘stressed the recognized importance of personal choice in determining membership of a group or community’. Ibid., paragraph 10. Cf. paragraph 94, where Diaconu argued that the principle of individual decision on membership of a group was consistent with the UN Declaration on Minorities.
40. 40 O’Flaherty, supra note 19, p. 166 (‘From the debate in CERD it is clear that the bare denial by a State that an individual is a member of a group would not constitute a ‘justification to the contrary.’).
41. 41 ICERD, supra note 7, Article 1.4.
42. 42 Ibid., Article 2.1. There is also a Convention requirement to promote interracial understanding. CERD has observed that, towards the ends of eliminating discrimination and promoting understanding ‘states must be prepared to use both coercion and persuasion – utilizing the power of the law to prohibit and punish, as well as the power of education and information to enlighten and persuade’. General Recommendation XIV (42).
43. 43 Emphasis added.
44. 44 Chile, E/CN.4/Sub.2/SR.416, paragraph 13.
45. 45 Ivory Coast, A/C.3/SR.1306, paragraph 23.
46. 46 See also Article 2.1(e) in integrationist multi-racial organizations and movements.
47. 47 See, e.g., General Recommendation XXI on self-determination, and XXVII on the Roma.
48. 48 K. Myntti, ‘The prevention of Discrimination v. Protection of Minorities – With Particular Reference to “Special Measures”’, in 2 Baltic Yearbook of International Law (2002) pp. 199–226.
49. 49 See, e.g., Concluding Observations on Bangladesh on Special Measures, A/56/18, paragraph 66. For a more wide-ranging set of recommendations, including many not confined to a ‘special measures’ or ‘affirmative action’ framework, see Concluding Observations on Canada, A/57/18, paragraphs 315–343.
50. 50 See Concluding Observations on Ecuador, CERD/C/62/CO/4, 21 March 2003.
51. 51 See, e.g., Concluding Observations on India, A/51/18, paragraphs 339–373; Concluding Observations on Nepal, A/55/18, paragraphs 289-306.
52. 52 ‘In many cities residential patterns are influenced by group differences in income, which are sometimes combined with differences of race . . . [etc.] . . . so that inhabitants can be stigmatized and individuals suffer a form of discrimination in which racial grounds are mixed with other grounds’: General Recommendation XIX, paragraph 3.
53. 53 In the case of Bangladesh, the Committee had information that ‘there were cluster camps in areas inhabited by indigenous peoples, and that people in those camps were subject to various restrictions, being unable to travel without permission’. A/47/18, paragraph 120.
54. 54 Examples include France, where such concern is related to ‘social trends which result in segregation in areas of residence and in the school system’. A/49/18, paragraph 149. CERD drew the attention of the Netherlands to General Recommendation XIX (47) in the light of evidence of ‘increasing racial segregation in society, mainly in the big towns, with so-called “white” schools and neighbourhoods’. A/53/18, paragraph 103. In Concluding Observations on Sweden, the Committee expressed concern about ‘increasing residential de facto segregation’, recommending that the state party ‘ensure compliance with the law against discrimination in the allocation of housing’ and supply information on de facto segregation in its next report. A/55/18, paragraph 338.
55. 55 In Concluding Observations on Slovakia, the Committee noted that ‘a disproportionately large number of Roma children . . . are segregated or placed in schools for mentally disabled children’, recommending that the Government ‘expand strategies to facilitate the integration of children of minority pupils into mainstream education’. A/55/18, paragraph 262.
56. 56 See Banton International Action, on self-segregation and related phenomena, discussed in relation to the FRG, Sweden, France and the Netherlands. Supra note 20, p. 200–202. The segregation issue has been raised in connection with Germany. CERD/C/SR.1449, paragraph 49.
57. 57 Cf. the segregation created by the parallel existence of public and private schools. Concluding Observations on the Second, Third and Fourth Periodic Reports of Zimbabwe, A/55/18, paragraph 196.
58. 58 Adopted at the fifty-seventh session, 31 July-25 August 2000.
59. 59 Paragraph 30.
60. 60 Paragraph 31.
61. 61 For further reflections on informal segregation, see M. Banton, ‘The causes of, and remedies for, racial discrimination’, background paper for the World Conference Against Racism, etc., E/CN.4/1999/WG.1/BP.6, 26 February 1999, paragraphs 25–30.
62. 62 See General Recommendation XV(42), HRI/GEN/1/Rev.3, 108–109; LK v. Netherlands, Communication No. 4/1991, A/48/18 (1993).
63. 63 CERD members have debated the relationship between freedom of speech and the implementation of the Convention. Boyle and Baldaccini evidence the Committee’s approach to the prosecution and conviction of the television journalist Jersild in Denmark. Supra note 9. The Committee adopted General Recommendation XV on Article 4 in 1993. See Concluding Observations of the Committee in 2001 on the Report of the USA, A/56/18, paragraphs 391–392.
64. 64 M. L. Fernandez Esteban, ‘The Internet: A New Horizon for Hatred?’, in Fredman, supra, note 9, pp. 77–109. The Durban Declaration of the World Conference against Racism also addresses Internet issues. Paragraphs 90, 91 and 92 of the Declaration, and paragraphs 140–147 of the Programme of Action. The Programme of Action opts for a mix of voluntary self-regulation and legal sanctions to address hate speech, etc., on the internet, urging states to apply the provisions of ICERD. Paragraph 145.
65. 65 See Concluding Observations on Botswana (hate speech against the Basarwa/San people), A57/18, paragraph 302. For a rare case of a self-defined indigenous population as the reported source of hate speech, see Concluding Observations on Fiji, CERD/C/62/CO5, 21 March 2003, paragraph 21.
66. 66 See W.F. Felice, ‘The UN Committee on the Elimination of Racial Discrimination: Race, and Economic and Social Rights’ 24 Human Rights Quarterly (2002) 205.
67. 67 General Recommendation XX(48), HRI/GEN/1/Rev.3, 112–113, paragraph 1.
68. 68 M. O’Flaherty, supra note 19, p. 179.
69. 69 General Recommendation XX states that Article 5 does not of itself create rights ‘but assumes the existence and recognition of . . . rights’. Supra note 68, paragraph 1.
70. 70 Article 2 is relevant in view of the very broad ambition to eliminate all forms of racial discrimination. The O'Flaherty interpretation is supported by General Recommendation XX.
71. 71 Diaconu, ‘The definitions of racial discrimination’, E/CN.4/1999/WG.1/BR.10, paragraph 24.
72. 73 For recent examples, see Concluding Observations on Botswana, supra note 66, paragraphs 303, 304; Canada, supra note 50, paragraph 331; Concluding Observations on the USA, supra note 64, paragraph 400; Vietnam, A/56/18, paragraph 421.
73. 74 Concluding Observations on Argentina, A/56/18, paragraph 51; Concluding Observations on the USA, ibid., (concerning Western Shoshone ancestral land); Concluding Observations on Costa Rica, A/57/18, paragraph 74.
74. 75 Concluding Observations on India, A/51/18, paragraphs 339–373, paragraphs 361, 363, 365, 366, and 370.
75. 76 Consult G. Tenekides, Study on the Implementation of Article 7 of the International Convention on the Elimination of All Forms of Racial Discrimination, A/CONF.119/11 (1983). See also the comments of Boyle and Baldaccini, supra note 19, pp. 165–166.
76. 77 Boyle and Baldaccini, supra note 19, p. 165.
77. 78 Concluding Observations on Ecuador, CERD/C/62/CO4, 21 March 2003, paragraph 14.
78. 79 Concluding Observations on Poland, CERD/C/62/CO/10, 21 March 2003, paragraph 13; Concluding Observations on Slovenia, CERD/C/62/CO/13, paragraph 11.
79. 80 Concluding Observations on Botswana, supra note 66, paragraph 305.
80. 81 Concluding Observations on India, supra note 52, paragraph 369.
81. 82 Among many contributions to the debate on self-determination and indigenous peoples, see P. Aikio and M. Scheinin (eds.), Operationalizing the Right of Indigenous Peoples to Self-Determination (Institute for Human Rights, Abo Akademi University, Turku/Abo, 2000).
82. 83 CERD/C.SR.1235, paragraph 93.
83. 84 CERD/C/SR.1235, paragraphs 60–96.
84. 85 CERD member Diaconu, CERD/C/SR.1235, paragraph 69.
85. 86 ‘In the recommendation there needed to be a distinction between two situations: one concerning all the citizens of a country and another concerning indigenous persons directly. In the latter case, they should have the right of veto and the text, as drafted, dealt adequately with the issue’. CERD member Aboul-Nasr, CERD/C/SR.1235, paragraph 72. CERD member Diaconu stated that he ‘could foresee complaints from states parties if the Committee appeared to be advocating a right of veto for indigenous peoples over the central government’s decisions’. Ibid., paragraph 78. The Recommendation thus appears to go beyond ILO Convention 169, Article 7 of which is interpreted by the authors of the Guide to the ILO Convention in response to ‘the veto question’ as requiring ‘that there be actual consultation in which these peoples have a right to express their point of view and a right to influence the decision. This means that governments have to supply the enabling environment and conditions to permit indigenous and tribal peoples to make a meaningful contribution’. M. Tomei and L. Swepston, Indigenous and Tribal Peoples: A Guide to ILO Convention No. 169 (International Labour Office, Geneva, 1996) pp. 8–9, p. 9. This is not the logical equivalent of a right of veto, but it suggests important practical constraints on action over the heads of the indigenous groups. One reason for the stronger pro-indigenous language in the CERD recommendation is that, as its Chairman (Banton) explained, ‘the whole of paragraph 4 was phrased as a recommendation to States parties’.
86. 87 UN Doc. A/48/18, Annex III, Section A. See, generally, T. Van Boven, ‘Prevention, early-warning and urgent procedures: a new approach by the Committee on the Elimination of Racial Discrimination’, in E. Denters and N. Schrijver (eds.), Reflections on International Law from the Low Countries (Kluwer, The Hague, 1998) p. 165.
87. th meetings.
88. th session of the Committee, the situation of Cote D’Ivoire was removed from the review procedure and placed under the early warning procedure. However, consideration of the situation was postponed at the request of the state party and its undertaking to submit overdue reports – A/56/18, p.15. Decision 1 (60) of March 2002 on Papua New Guinea was also made under the early warning procedure, though it is not entirely clear where ‘urgency’ or ‘timeliness’ resides in such a long-running dispute; the Decision stated the Committee’s intention to examine the situation of Papua New Guinea in March 2003 – A/57/18, p.104.
89. 90 List in A/56/18, paragraph 21; and see ibid., for the situation of Cote d’Ivoire. For a view that in the matter of early warning, etc., CERD stretches its mandate ‘in a creative manner’, see T. Van Boven, ‘United Nations strategies to combat racism and racial discrimination: past experiences and present perspectives’, background paper for the World Conference on Racism, etc., E/CN.4/1999/WG.1/BP.7, paragraph 5(a).
90. 91 T. Van Boven observes that the initial action of CERD is usually a request for early information in accordance with Article 9.1. of the Convention; he also advances a tentative typology of typical situations under the procedure and typical actions.
91. 92 In 1995 this action was undertaken for the situations on the Russian Federation, Rwanda, Bosnia and Herzegovina and Papua New Guinea.
92. 93 In 1995 the cases of Burundi and Bosnia Herzegovina were thus referred.
93. 94 Mabo v Queensland (No.2), 175 CLR 1 (1992).
94. 95 CERD Report, A/49/18, paragraph 540.
95. 97 Ibid., paragraph 544.
96. 98 Ibid., paragraph 547.
97. 99 G. Triggs, ‘Australia’s indigenous peoples and international law: validity of the Native Title Amendment Act 1998’ 23/2 Melbourne University Law Review (1999) pp. 372–415.
98. 100 Decision 1(53), A/53/18, paragraph 22.
99. 101 Discussed with the state party at the 1323rd and 1324th meetings of CERD.
100. 102 UN Doc. CERD/C/347.
101. 103 Decision 2(54), CERD/C/54/Misc.40/Rev.2. In Decision 2(55) of August 1999, the Committee reaffirmed its position and decided to continue consideration of the matter together with the state party’s twelfth report.
102. 104 Ibid., paragraph 6.
103. 105 Ibid., paragraph 11.
104. 106 Ibid., paragraph 12.
105. th meeting, where India proposed to insert the word ‘caste’ (Mr. Habib) into the text of Article 2 – but only because (Mr. Appadorai) ‘it objected to the word “birth”. The words “other status” and “social origin” were sufficiently broad to cover the whole field; the delegation of India would not, therefore, insist on its proposal’. According to Article 2 of the Universal Declaration, human rights and freedoms are to be accorded ‘without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’ Other instruments with ‘generous’ lists of grounds of non-discrimination include ILO Convention 111 on Discrimination in Employment and occupation (‘race, colour, sex, religion, political opinion, national extraction or social origin’), and the UNESCO Convention against Discrimination in Education (including ‘national or social origin, economic condition or birth’). All three instruments are referred to in the preamble to the Convention, lending weight to wider readings of the ambit of the prohibition of discrimination. ‘Descent’ is not unique in the canon of human rights; 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, or a geographical region to which the country belongs, at the time of conquest or colonization’ (emphasis added).
106. 108 Thornberry, International Law and the Rights of Minorities, supra note 9, pp. 261–262. The key interventions of India were made in meetings 1299 and 1306 of the Third Committee of the General Assembly. A/C.3/SR.1299; A/C.3/SR.1306.
107. 109 A/C.3/SR.1299, paragraph 29. The basic document containing the drafting suggestion of India is A/C.3/L.1216. In A/C.3/SR.1306, the representative of Ghana commented on the draft Article 1 that ‘notions of ancestry and previous nationality . . . seemed to him adequately represented by “descent” and “place of origin” in the Indian proposal’. Paragraph 12.
108. 110 A/C.3/SR.1306, paragraph 25; see also A/C.3/SR.1303, paragraph 20. According to Bayly, the term ‘caste’ derives from the Latin castus (chaste), mutated to casta in Spanish and Portuguese with a usage applied to zoology and botany, later used to describe Amerindian clans and lineages – that is, by ‘bloodline-conscious Iberian settlers to people of mixed white and non-white descent’. Portuguese usage in India applied it also to religion; subsequently ‘Dutch and English writing on India . . . adopted these usages from the Portuguese, employing them with equal ambiguity and in conjunction with other imprecise terms, including, race, class, nation, sect, and tribe.’ Caste, Society and Politics in India, pp. 105–106.
109. 111 UN Doc. A/C.3/SR.1309, paragraph 3 (Czech proposal); ibid., paragraph 4 (Austrian suggestion); ibid., paragraph 5 (Czech agreement to withdraw the proposal). End of story!
110. 112 UN Doc. A/51/18, paragraph 352. The position was forcefully expressed by many individual members of the Committee. Wolfrum, CERD/C/SR.1161, paragraph 20 (‘If “descent” were the equivalent of “race”, it would not have been necessary to include both concepts in the Convention.’); Van Boven, CERD/C/SR.1162, paragraph 14 (‘The Committee’s conceptions of “race” and “descent” clearly differed from those of the Government of India.’); Chigovera, ibid., paragraph 22 (‘The fact that castes and tribes were based on descent brought them strictly within the Convention.’); see also remarks of Mr Aboul-Nasr, SR. 1162, paragraph 27; de Gouttes, SR. 1161, paragraph 32; Rechetov, SR. 1161, paragraph 11; and Yutzis, SR. 1163, paragraph 9, who suggested that tribal and caste distinctions were ‘not only of a social, but also of a socio-ethnic nature’.
111. 113 UN Doc. A/51/18, paragraph 352.
112. 114 Consolidated tenth to fourteenth periodic reports of India, CERD/C/299/Add.3, paragraph 7. (‘[B]oth castes and tribes are systems based on “descent”. . . It is obvious, however, that the use of the term “descent” in the Convention clearly refers to “race”. . . the policies of the Indian Government relating to Scheduled Castes and Scheduled Tribes do not come under the purview of Article 1 of the Convention.’). See also UN Doc. CERD/C/SR.1161, paragraph 4; UN Doc. CERD/C/SR.1162, paragraph 36.
113. 115 One CERD member (Van Boven), recalling the contribution of India to the drafting of the Convention, observed that there ‘seemed to be some discrepancy between that historical contribution and the attitude that was being taken in the report’. UN Doc. CERD/C/SR.1162, paragraph 15.
114. 116 Preliminary comments of the Government of India on the concluding observations adopted by [CERD] on the tenth to fourteenth periodic reports of India presented during the forty-ninth session of the Committee, A/51/18, p. 128, paragraph 3(a). One of the representatives of India offered a nuanced view in stating that the ‘notion of “race” was not entirely foreign to that of “caste”; but . . . racial differences were secondary to cultural ones . . . race had never really been determinant for caste’. UN Doc. CERD/C/SR.1163, paragraph 3; see also ibid., paragraph 4; S. Ghose, ‘Untouchability and the law’, (2001) 13 Interights Bulletin, No. 3, pp. 98–100; and P. Thornberry, ‘CERD and indigenous peoples, with remarks on caste-based discrimination’, ibid., pp. 96–98.
115. 117 Concluding observations of the Committee, A/56/18, paragraph 73.
116. 118 The report of Japan made no reference to the issue of the Buraku. CERD/C/350/Add.2, 26 September 2000.
117. 119 Concluding Observations of the Committee, A/55/18, paragraph 299 (‘The Committee remains concerned at the existence of caste-based discrimination and the denial which this system imposes on some segments of the population of the enjoyment of the rights contained in the Convention.’) There is no reference to ‘caste-based’ discrimination in the final documents of the World Conference against Racism; strenuous lobbying by the Government of India prevailed over determined efforts by Dalit groups in particular to insert a specific provision. The report of the Asian Preparatory Meeting for the World Conference also omits specific reference. A/CONF.189/PC.2/9.
118. 120 Conflicts in Somalia were regarded by the Committee as based on descent, thus bringing them within the purview of the Convention. UN Doc. A/47/18, paragraphs 225–226; see also CERD Concluding Observations on Burkina Faso, A/52/18, paragraph 624; Concluding Observations on Mauritius, A/51/18, paragraph 548; Concluding Observations on Mali, A/57/18, paragraph 406; Concluding Observations on Senegal, A/57/18, paragraph 445.
119. 121 Concluding Observations of the Committee, A/56/18, paragraph 166. Extensive submissions were made to the Committee by NGOs before and during consideration of the report of Japan, including a report by the Japan Federation of Bar Associations. A number of submissions highlighted the plight of Burakumin – a community historically identified with work in certain ‘unclean’ trades. Appraisals of an effective methodology for NGOs anticipating a state report are made in Tanaka and Nagamine, supra note 6, which also includes the text of the Convention and all general recommendations up to General Recommendation XXVII. The Buraku Liberation and Human Rights Research Institute (Osaka) and the Buraku Liberation League have contributed to CERD understanding of the Buraku issue, through the Bulletin of Buraku Liberation and other writings. See also E. A. Sulan Reber, ‘Buraku Mondai in Japan: historical and modern perspectives and directions for the future’ 12 Harvard Human Rights Journal (1999) p. 299.
120. 122 Comments of States Parties on the Concluding Observations adopted by the Committee, A/56/18, p. 158, paragraph 2 (‘With regard to the meaning of “descent”. . . the Government does not share the Committee’s interpretation of “descent”.’) The comment goes on to outline measures taken ‘with the aim of resolving the problem of discrimination against the Burakumin’, adding: ‘We also believe that education and enlightenment for relieving the sense of discrimination have been promoted based on various plans, and the sense of discrimination among the people has certainly been lessened.’ Ibid., paragraph 3.
121. 123 UN Doc. CERD/C/SR.1493, paragraphs 38–44.
122. 124 The thematic discussion took place on 9 August. UN Doc. CERD/C/SR.1531. There are no summary records for the proceedings on the previous day, on which twenty-three separate interventions (including five from African groups) were made by NGOs, one of which was a joint statement of thirty-two international NGOs, as well as interventions from four members of the Sub-Commission, and two governments – India and Nepal. See also UN Doc. CERD/C/SR.1545, and UN Doc. CERD/C/SR.1547 for discussion of the draft General Recommendation.
123. 125 UN Doc. A/57/18, p. 111–117.
124. 126 CERD member Valencia Rodriguez, UN Doc. supra note 125, paragraph 18 (‘The term “descent” implied one generation inheriting from another specific characteristics that were positively or negatively evaluated by society. The resulting stratification of some societies had led to the emergence of groups of people who were excluded from the rest of society and regarded as “untouchable”.’).
125. 127 The full text of the Recommendation is set out as an appendix to this chapter.
126. 128 Remarks of CERD member de Gouttes, UN Doc. supra note 125, paragraph 40.
127. 129 See remarks of CERD member Pillai, ibid., paragraphs 4–10; see also Aboul-Nasr, ibid., paragraphs 2–3; Thornberry, ibid., paragraph 13; Lindgren Alves, ibid., paragraph 29; Yutzis, ibid., paragraph 36; Diaconu, ibid., paragraph 45.
128. 130 See remarks of CERD members Amir and Lindgren Alves, ibid., paragraphs 34 and 29.
129. 131 Remarks of the author as a member of CERD, UN Doc. CERD/C/SR.1545, paragraph 43.
130. 132 UN Doc. supra note 125, paragraph 46.
131. 133 Ibid., paragraph 12.
132. 134 Remarks of CERD member Lindgren Alves, ibid., paragraphs 30–31.
133. 135 ‘snow’, Louis MacNeice.
134. 136 UN Doc. CERD/C/62/CO/5, paragraph 15.
135. 137 The format – numbered paragraphs – in this version of the General Recommendation differs from the version set out in A/57/18, pp. 111–117, and reproduces the original format adopted by the Committee.