CERD General Recommendation No 29 (2002) on Article 1, paragraph

outside South Asia (e.g. Japan and certain African states) based on analogous systems of inherited status, often related to inherited occupation.158

4.4.2.6 CERD General Recommendation No. 29 (2002) on Article 1, paragraph 1 (descent)

In August 2002, CERD issued GR No. 29 on Article 1, paragraph 1 (descent),159 in which it reiterated its interpretation of descent. The Preamble confirms ‘CERD’s consistent view… that the term “descent” in Article 1 paragraph 1 of the Convention does not refer solely to “race” and has a meaning and application which complements the other prohibited grounds of discrimination’;160

‘strongly reaffirms 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 which nullify or impair their equal enjoyment of human rights’161

and ‘strongly condemn[s] descent-based discrimination, such as discrimination on the basis of caste and analogous systems of inherited status, as a violation of the Convention’. State parties are recommended to take steps to identify ‘descent-based communities under their jurisdiction… suffer[ing] from discrimination, especially on the basis of caste and analogous systems of inherited

156 _{Concluding Observations – Bangladesh; UN Doc. CERD, Report (2001), n 145 above, para. 73.} 157 _{Concluding Observations – UK; UN Doc. CERD/C/63/CO/11, 10 December 2003, para. 25;} Concluding Observations – UK; CERD/C/GBR/CO/18-20, 14 September 2011, para. 30.

158 _{See section 4.5.5, below.} 159 _{CERD GR No. 29, n 140 above.} 160 _{CERD GR No. 29, ibid., Preamble.} 161

141 status’,162

inter alia to ‘review and enact or amend legislation in order to outlaw all forms of discrimination based on descent in accordance with the Convention’163 and to ‘resolutely implement legislation and other measures already in force’.164

GR No 29 was partly a reaction to the 2001 UN World Conference against Racism, Racial Discrimination, Xenophobia and Other Related Forms of Intolerance (WCAR) in Durban,165 where Dalit activists sought, ultimately unsuccessfully, to secure official recognition of caste as a form of racism, but in the process succeeded in internationalising caste discrimination as a ‘new’, global, human rights issue. It was preceded by a thematic discussion in CERD on discrimination based on descent.166 It uses the wider terms ‘descent-based discrimination’, ‘members of descent-based communities’ and ‘analogous systems of inherited status’ to avoid focussing solely on caste discrimination or on specific states. As a basis of discrimination, the term ‘descent’ signified forms of inherited status, said CERD member Thornberry.167Caste systems, he argued, represented hierarchy, not equality; segregation, not integration; bondage, not freedom; and value determined at birth without regard for morality, achievement, intelligence or character.168 The issue of descent was wider than the notion of caste – rather than trying to find a definition for

162 _{Ibid., para. 1.} 163 _{Ibid., para. 3.} 164

Ibid., para. 4.

165 _{UN World Conference against Racism, Racial Discrimination, Xenophobia and Related} Intolerance – Declaration, at http://www.un.org/WCAR/durban.pdf (visited 28 December 2012). The aim of the WCAR was to ‘create a new world vision for the fight against racism in the twenty-first century’. Two previous UN world conferences against racism, in 1978 and 1983, had focussed primarily on apartheid in South Africa; see UNGAR 32/129, 16 December 1977; UNGAR 335/33, 14 November 1980. See also Chapter 5 of this thesis.

166 _{UN Doc. CERD/C/SR.1531, 16 August 2002.} 167 _{Ibid., para. 11.}

168

142

the concept, the GR sought to identify a set of indicators which would also be of assistance to governments.169

General Comments and General Recommendations are not formally binding on States parties, but the status of the treaty-monitoring committees gives them ‘a special claim for attention’.170 All treaty bodies with competence to adopt general comments or recommendations have used them to interpret the provisions of the treaties which they monitor, despite the absence of explicit authority to do so.171 Yet, ‘their reception in the world of practice’ is mixed.172

Governments, says Alston, have challenged them as ‘representing an unwarranted and unacceptable attempt to attribute to treaty provisions a meaning which they do not have’.173

However, such challenges serve to draw attention to the relevant interpretation and ‘help to establish it as a benchmark against which alternative interpretations will be forced to compete at something of a disadvantage’.174

Mechlem contends that states generally concur with treaty bodies on questions of interpretation and ‘rarely put forward their own interpretations of specific rights’.175 Clearly this is not always the case. India claims that CERD’s interpretation of descent as covering caste amounts to ‘a redefinition of

169 _{Ibid., para. 53.}

170 _{H. Steiner, ‘Individual claims in a world of massive violations: what role for the Human Rights} Committee?’ in P. Aslton and J. Crawford (eds.), The Future of UN Human Rights Treaty Monitoring

(Cambridge: Cambridge University Press, 2000) 15-54, 52. See also P. Alston, ‘The Historical Origins of the Concept of “General Comments” in Human Rights Law’ in L. Boisson de Chazournes and V. Gowlland-Debbas (eds.), The International Legal System in Quest of Equity and Universality

(The Hague: Martinus Nijhoff, 2001) 763-776, 764.

171 _{See Steiner (2000), ibid. See also I. Boerefijn, The Reporting Procedure under the Covenant on}

Civil and Political Rights: Practice and Procedures of the Human Rights Committee (Antwerp: Intersentia, 1999) 295, citing CCPR/C/133, Report on the informal meeting on procedures, para. 57. 172 _{Alston (2001), n 170 above.}

173

Alston (2001), ibid., 764. HRC GC No. 24 (1994) on reservations provoked objections from the USA and the UK; see Mullally, n 131 above, 92.

174 _{Alston (2001), ibid., 765; Boerefijn, n 171 above, 300.}

175 _{K. Mechlem, ‘Treaty Bodies and the Interpretation of Human Rights’, 42(3) Vanderbilt Journal of}

143 its mandate’.176

By refusing to accept CERD’s interpretation, India has refused to afford CERD exclusive competence to interpret ICERD and has asserted a right to an equal interpretive role. Japan has also rejected CERD’s interpretation of descent and its application to Japan’s Buraku people, a group which CERD has repeatedly identified as falling within the ambit of ICERD.177

4.5 Descent