Beyond India and beyond caste: CERD and descent-based discrimination

Nepal and Pakistan, as caste-affected countries within South Asia, have, unlike India, accepted (or at least not objected to) CERD’s interpretation of descent as including caste – and hence CERD’s authority to enquire about and to scrutinise measures

http://idsn.org/fileadmin/user_folder/pdf/New_files/UN/Printer_Friendly_Declaration_Decade_Dalit_ Rights.pdf

(visited 2 January 2013). 207

India, Introductory Statement, CERD, 70th session, 23 February 2007, para. 8. 208 _{India, Concluding Statement, n 176 above, para. 2.}

209 _{India, Concluding Statement, ibid., para. 3, emphasis added.} 210 _Ibid.

211

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taken in their countries to prevent, prohibit and eliminate caste-based discrimination.212 Yet, despite the existence of constitutional provisions in both countries prohibiting discrimination on grounds of caste,213 and a constitutional provision in Nepal prohibiting and criminalising Untouchability,214 CERD in its concluding observations to both countries has expressed concern about continuing de facto discrimination against Dalits on grounds of caste, including de facto residential and occupational segregation and social exclusion215 and, in the case of Pakistan, the absence of legislation aimed at the prohibition of caste-based discrimination.216 Bangladesh has not objected to CERD’s position that caste falls within the scope of ICERD via descent, claiming in its seventh to eleventh reports in 2000217 to take a ‘broad view of its obligations under the Convention’, including pursuing positive discrimination policies in favour of the disadvantaged.218 Nevertheless, CERD recommended that Bangladesh include in its next report information about the enjoyment of the rights in Article 5 of ICERD by all groups, including castes.219 Discrimination based on caste is prohibited under the Sri Lankan Constitution.220 During CERD’s examination of its second report221

in 1986,Sri Lanka acknowledged the existence of a caste system in the country, asserting that it was ‘a racial phenomenon not based on any religious factor and was to be found among Tamils

212

See Concluding Observations – Nepal; CERD/C/64/CO/5, 26 April 2004, paras. 4, 5, 11, 12; Concluding Observations – Pakistan (2009), n 155 above, paras. 11, 12, 19, 21.

213 _{Constitution of Pakistan 1973, Articles 26(1), 27(1); at}

http://www.mofa.gov.pk/Publications/constitution.pdf; Constitution of Nepal 1990, Articles 11(2), 11(3), at

http://www.supremecourt.gov.np/main.php?d=lawmaterial&f=constitution (both visited 30 December 2012).

214

Constitution of Nepal 1990, ibid.; Article 11(4).

215 _{CERD, Concluding Observations – Nepal (2004), n 212 above, para. 12; CERD, Concluding} Observations – Pakistan (2009), n 155 above, paras. 11, 12.

216 _{CERD, Concluding Observations – Pakistan (2009), ibid., para. 12.} 217 _{UN Doc. CERD/C/379/Add.1, 30 May 2000.}

218

Ibid., para. 5.

219 _{Concluding Observations – Bangladesh; CERD, Report (2001), n 145 above, para. 73.} 220 _{Constitution of Sri Lanka 1978, Article 12; at}

http://www.priu.gov.lk/Cons/1978Constitution/Introduction.htm (visited 28 December 2012). 221

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and Sinhalese’, but also that ‘no racial distinction could be made between the Sinhalese and Tamil communities’.222 Nonetheless, Sri Lanka made no reference to caste in its subsequent reports in 1994 and 2000,223 and the issue was not raised by CERD in its examinations or concluding observations.

Outside South Asia, the existence of descent-based discrimination in its wider sense has been raised by CERD in concluding observations to Japan,224 Yemen,225 Nigeria,226 Madagascar,227 Mauritania,228 Senegal,229 Chad,230 Mali,231 Ethiopia232 and Ghana.233 Japan rejects the application of discrimination based on descent under ICERD to discrimination against ‘persons belonging to or descending from the Buraku community’.234

Japan’s argument is that CERD has misunderstood the meaning of descent in the application of ICERD. According to Japan in 2001, when descent (together with place of origin) was proposed as a replacement for national origin during the drafting of ICERD, it was not intended to cover social class or

222

CERD, Report; UN Doc. A/42/18 (1987), para. 293. 223

Sri Lanka, third to sixth reports; CERD/C/234/Add.1, 13 September 1994; Sri Lanka, seventh to ninth reports; UN Doc. CERD/C/357/Add.3, 20 November 2000.

224 _{UN Doc. CERD/C/304/ADD.114, 27 April 2001, para. 8; CERD/C/JPN/CO/3-6, 6 April 2010,} para. 8.

225

UN Doc. CERD/C/YEM/CO/16, 19 October 2006, paras. 8, 9, 15, 16; CERD/C/YEM/CO/17-18, 4 April 2011, para. 15.

226 _{UN Doc. CERD/C/NGA/CO/18, 27 March 2007, paras. 15, 18, 25.} 227 _{UN Doc. CERD/C/65/CO/4, 10 December 2004, paras. 12, 17.} 228

UN Doc. CERD/C/65/CO/5, 10 December 2004, para. 15.

229 _{Concluding Observations – Senegal; CERD, Report; UN Doc. A/57/18 (2002), para. 445.} 230 _{UN Doc. CERD/C/TCD/CO/15, 21 September 2009, para. 15.}

231 _{Concluding Observations – Mali; CERD, Report (2002), n 229 above, para. 406.} 232

UN Doc. CERD/C/ETH/CO/7-16, 7 September 2009, para. 15.

233 _{UN Doc. CERD/C/62/CO/4, 2 June 2003, para. 22. A caste-like, hereditary system of social} stratification has recently been identified in North Korea; R. Collins, Marked for Life: Songbun – North Korea’s Social Classification System (Washington DC: Committee for Human Rights in North Korea, 2012); ‘North Korea Caste System “underpins human rights abuses”’, The Telegraph, 6 June 2012.

234 _{Japan, third to sixth reports, Replies to List of Questions; UN Doc. CERD/C/JPN/Q/3-} 6/Add.1/Rev.1, 8 February 2010, para. 10. Historically, Japan’s Buraku people ‘were subjected to intense prejudice and discrimination, forbidden to marry or have physical contact with common people as such contact was seen as “polluting” the higher classes. They were an outcast population confined to living in hamlets, now officially classified as Dowa districts’; although their living standard has improved, ‘discrimination in marriage and employment continues’; see Goonesekere (2001), n 177 above.

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social origin235 _{– it was proposed because of concern that ‘national origin’ could lead}

to a misunderstanding that the term includes the concept of ‘nationality’ (a concept based on legal status). In 2010, Japan reiterated its view, arguing that descent in ICERD was intended to ‘indicate a concept focusing on the race or skin color of a past generation, or the national or ethnic origins of a past generation’.236 _{In response,}

Thornberry reaffirmed CERD’s position that descent as a ground for discrimination ‘carried its own meaning, which was distinct from the other grounds set forth in the Convention’.237

In its concluding observations CERD reiterated that descent has a meaning and application ‘which complement the other prohibited grounds of discrimination’ and ‘that discrimination based on “descent” includes discrimination against members of communities based on forms of social stratification… and analogous systems of inherited status which nullify or impair their equal enjoyment of human rights’.238

CERD has also raised descent-based discrimination with the UK. In 2003, CERD – recalling that descent-based discrimination, including discrimination on the basis of caste and analogous systems of inherited status, is a violation of the Convention – recommended that the UK introduce a prohibition of descent-based discrimination in domestic legislation and invited information on the issue in the next periodic report.239 Unlike Japan and India, the UK has not objected to the inclusion of caste in the concept of descent, but nevertheless has resisted CERD’s call for legislative action. In its 2010 report, the UK noted CERD’s request for information but stated that it had ‘seen no firm evidence on whether caste-based discrimination in the fields

235

UN Doc. CERD/C/SR.1444, 11 June 2001, para. 28.

236 _{Japan, Replies to List of Questions, n 234 above, paras. 9, 10 (emphasis added).} 237 _{UN Doc. CERD/C/SR.1987,4 March 2010, para. 10.}

238 _{CERD, Concluding Observations – Japan (2010), n 224 above, para. 8.} 239

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covered by [ICERD] exists to any significant extent in the UK’ and had therefore ‘made a commitment to commission research into caste discrimination’.240

In its 2011 concluding observations, CERD noted the UK’s assertion about lack of evidence of caste discrimination in regulated fields but pointed out that CERD had received contrary information that such discrimination did exist; it therefore recommended the government to invoke section 9(5)(a) of the EQA in order to ‘provide remedies to victims of this form of discrimination’.241

4.6 Conclusion

Caste discrimination has been targeted by CERD since 1996 as a subset of descent- based discrimination, and CERD has consistently taken a robust attitude towards states which have failed to fulfil their Convention obligations with regard to descent- based racial discrimination, including discrimination on the basis of caste and analogous systems of inherited status. CERD has repeatedly emphasised that descent is a wider category than merely caste, and that descent-based discrimination of different types affects a wide range of countries.242 Yet, the capture of caste under ICERD via its characterisation as a subset of descent has affronted and been rejected by India, the world’s largest caste-affected country and one of the early leaders of the international anti-racial discrimination movement. Japan has also challenged the use of descent to capture discrimination on the basis of inherited status. Turning to the UK, with its growing South Asian diaspora, and with evidence of the existence of

240 _{UN Doc. CERD/C/GBR/18-20, 13 August 2010, para. 42.}

241 _{CERD, Concluding Observations – UK (2011); n 157 above, para. 30. The UK’s stance as at 1} April 2013 on the introduction of a statutory prohibition of caste discrimination is discussed in Chapter 9 of this thesis.

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caste discrimination as a domestic issue, the absence of explicit caste discrimination legislation, drafted, implemented and enforced in accordance with ICERD obligations, risks leading to a greater international focus on the UK and its reluctance to deal with such discrimination. The UK’s legal response to caste discrimination ‘at home’ forms the third part of this thesis. First, however, Chapter 5 examines the application of other international human rights law standards to caste discrimination.

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