WCAR Think Papers
A joint project of Human Rights Documentation Center (HRDC),
International Service for Human Rights (ISHR) and South Asia Human Rights
Documentation Centre (SAHRDC)
WCAR Think Paper VII
The
WCAR may be marked by a collision of forces: (1) those who consider caste-based
discrimination a significant part of the WCAR’s mandate and an issue that
should be explicitly included in the Declaration and Programme of
Action; and (2) those who argue that caste discrimination is not a form of
racial discrimination and the issue should therefore be excluded from the WCAR
and its final text. At this point, India is the only State to publicly advocate
the second position, but, notably, no other State has publicly opposed India
either.
I.
What is at stake?
If
the Government of India attempts to scuttle international efforts to address
caste-based discrimination, the stakes of the debate could not be much higher.
According to both United Nations and NGO sources, the treatment of Dalits (the
preferred term for “untouchables”) in South Asia ranks among the worst
conditions for humans in the world. The Special Rapporteur on Racism, for
example, recently stated: “According to several sources, the Dalits are most
often the victims of forced relocation, arbitrary detention and summary
executions in India.”[1]
In India alone, the Dalit population totals approximately 250 million people
– a number greater than the national population of almost every country in the
world. Other States in South Asia also have Dalit populations – e.g.,
Bangladesh, Nepal and Pakistan – where the lot of Dalits is also among the
worst.[2]
It is important to add that caste-based discrimination is not confined to South
Asia. In many areas of the world, Dalit labourers were brought over with Indian
communities, and their descendants still suffer from the continuing effects and
persistence of caste discrimination.
The
condition of Dalits is part of an even larger problem of caste-based
discrimination. The recent massacres involving Hutus and Tutsis in Northern
Africa may best be described as caste-based violence as well. That is, Tutsis
and Hutus, as a technical matter, cannot be classified as ethnic groups,
according to a consensus of experts and, notably, according to the U.N. War
Crimes Tribunal for Rwanda as well.[3]
Instead, the classificatory distinction between Hutus and Tutsis is best
described as a caste- or class-based difference, in the view of various sources
such as: international legal scholars,[4]
the United States Department of State[5]
and U.N. Special Rapporteur Mr. Bacre Waly Ndiaye.[6]
Thus, insofar as the Government of India’s position gains support -- that caste
should not be considered a form of racial discrimination or a part of the WCAR
-- not only the conference’s consideration of discrimination against Dalits,
but also its consideration of the massacres in the Great Lakes region may be
jeopardised.
II.
Terms of the debate
The “Indian position” in the definitional debate about caste has been elaborated in other UN fora. In separate communications to CERD and to the Special Rapporteur on Contemporary Forms of Racism,[7] India has maintained that the caste system is “unique to Indian society and its historical processes” and should be considered a “social”- or “class”-based category rather than a racial one (See Box below).[8]
“Article 1 of the Convention includes in the definition of racial discrimination the term ‘descent’. Both castes and tribes are systems based on ‘descent’ since people are normally born into a particular caste or a particular tribe. It is obvious, however, that the use of the term ‘descent’ in the Convention clearly refers to ‘race’. Communities which fall under the definition of Scheduled Castes and Scheduled Tribes are unique to Indian society and its historical process. . . . it is, therefore, submitted that 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.”
- Government of India 1996, CERD/C/299/Add.3, para. 7 (State Party Report).
Although caste-based systems exist in other countries, India is the only State to suggest that caste should be excluded from consideration in the efforts to combat racial discrimination. The Government of Nepal, for example, reports to CERD on its country’s problems with caste-based discrimination as a component of racial discrimination and it has never questioned the Committee’s competence or jurisdiction over the subject.[9] The African Group has also indicated its unwillingness to embrace the Indian position. At the First PrepCom for the WCAR, the Group’s official Position Paper on the WCAR listed the “caste system” as a sub-issue alongside “ethnic conflicts” and xenophobia, to be considered under the first theme of the agenda. However, there has been little opportunity, so far, for States to directly address the subject and, as the examples above illustrate, only a few indications are currently available for assessing the political will States are willing to exert to oppose the Indian position.
Notably, in terms of the UN human rights mechanisms in which decisions are made by independent experts, the Indian position has been rejected. The Sub-Commission on the Promotion and Protection of Human Rights,[10] the Committee on the Elimination of Racial Discrimination[11] and the Special Rapporteur on Racism,[12] have all concluded that caste is contained within their respective mandates to address all forms of racial discrimination and related intolerance. In so doing, CERD and the Special Rapporteur both explicitly rejected the Indian position. The Sub-Commission took a similar view, but its rejection of the Indian position was implicit (See Box below).[13]
Statements
from U.N. Human Rights Mechanisms
Regarding
the “Indian Position” on Caste
“[T]he Committee states that the term "descent" mentioned in article 1 of the Convention does not solely refer to race. The Committee affirms that the situation of the scheduled castes and scheduled tribes falls within the scope of the Convention.”
- Committee on the Elimination of Racial
Discrimination 1996, CERD/C/304/Add.13, para. 14 (Concluding
Observations/Comment)
“Given, on the one
hand [“d’une part”], the above-mentioned information, particularly as it
relates to the constitutional provision cited by the Indian Government in its
communication of 30 September 1997 - "Under article 366, the Scheduled
Castes are defined as 'castes, races or tribes or parts of or groups within
such castes, races or tribes as are deemed under article 341 to be Scheduled
Castes for the purposes of the Constitution'" - and given, on the other
hand [“d’autre part”], the fact that the Committee on the Elimination of Racial
Discrimination, in its concluding observations on India's periodic reports,
stated, "the situation of the scheduled castes and scheduled tribes falls
within the scope of the Convention on the Elimination of Racial
Discrimination" (CERD/C/304/Add.13, para. 14), the Special Rapporteur
believes that specific attention should be given to the situation of the
untouchables in India.”
- Special Rapporteur on Contemporary Forms of Racism,
Racial Discrimination, Xenophobia and Related Intolerance 1999,
E/CN/.4/1999/15, para. 100.
“The World Conference [Against Racism] must state with precision
and insistence that the rights of persons of African descent, indigenous
peoples, lower castes and national minorities are human rights. . . . the
recognition of Afro/Latins, indigenous peoples, lower castes, such as the
Dalits, and the Roma, with hegemonic peoples must be accompanied by specific
protections and compensatory policies.”
- Contribution of the Sub-Commission on the Promotion and Protection
of Human Rights 6 March 2000, A/CONF.189/PC.1/13/Add.1, para. 24 (Working Paper
submitted by Mr. Paulo Sérgio Pinheiro, Member of the Sub-Commission, in
accordance with Sub-Commission resolutions 1998/6 and 1999/6).
India’s argument has primarily been based on the technical wording of the Convention on the Elimination of Racial Discrimination and, specifically, the scope of the term “descent.” The World Conference, however, is concerned broadly with racism, racial discrimination, xenophobia and related intolerance. A widespread sentiment is that if caste is not technically included within the definition of “racial” discrimination, it is covered by the mandate to address “related intolerance.”[14] As indicated above, failure to accept this reasoning may also unsettle the WCAR’s inclusion of other issues such as the conflicts in the Great Lakes region. Those particular consequences, however, are not yet widely realized.
[1] E/CN/.4/1999/15, para. 98.
[2] For example, in its year-2000 concluding observations on Nepal’s periodic report, CERD stated that it “remains concerned at the existence of caste-based discrimination, and the denial which this system imposes to some segments of the population on the enjoyment of the rights enshrined in the Convention”; and called for more information “on the implementation of practical and substantive measures to eradicate the practice of the caste system, including measures for the prevention of caste-motivated abuse, and prosecution of State and private actors who are responsible for such abuses”. CERD/C/57/CRP.3/Add.8, para. 11 (Concluding Observations/Comments) (21 Aug. 2000).
[3] Prosecutor v. Akayesu, No. ICTR-96-4-T (ICTR 2 Sept. 1998).
[4] See, e.g., Dr. Makau wa Mutua, Putting Humpty Dumpty Back Together Again: The Dilemmas of the Post-Colonial African State, 21 Brook. J. Int'l L. 505, 521 n.72 (1995) (“The distinctions between the three groups are not ethnic, but scholars disagree as to whether they are sub-groups, classes, or castes.”).
[5] U.S. Department of State Background Notes: Republic of Rwanda, March 1998, Office of Central African Affairs, Bureau of African Affairs (“The Tutsis (14%) are a pastoral people who arrived in the area in the 15th century. Until 1959, they formed the dominant caste under a feudal system based on cattleholding.”).
[6] Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, on his mission to Burundi, E/CN.4/1996/4/Add.1, para. 13 (“Social stratification in Burundi is based primarily upon a class or caste system, rather than rigid ethnic differentiation. Thus ‘Tutsi’ signifies a social superior, whilst ‘Hutu’ signifies a social subordinate . . . .”).
[7] E/CN/.4/1999/15, paras. 90-94 (Spec. Rapp. reprint of Gov’t of India’s communication 30 Sept. 1997).
[8] CERD/C/299/Add.3, para. 7 (State Party Report).
[9] See, e.g., CERD/C/337/Add.4 (State Party Report 1999), paras. 20-22.
[10] See, e.g., Contribution of the Sub-Commission on the Promotion and Protection of Human Rights, A/CONF.189/PC.1/13/Add.1, para. 24 (Paulo Sérgio Pinheiro, member of the Sub-Commission).
[11] See, e.g., CERD/C/304/Add.61, paras. 10 & 13 (Concluding Observations/Comments - Nepal) CERD/C/304/Add.13, para. 23 (Concluding Observations/Comments - India).
[12] See, e.g., E/CN/.4/1999/15, para. 88-100; E/CN.4/2000/16, para. 148.
[13] Notably, in its 2000 session, the Sub-Commission, decided to prepare studies in advance of the WCAR, including one specifically on “discrimination based on work and descent”. E/CN.4/Sub.2/2000/L.11 (14 Aug. 2000). The word “caste” appears nowhere in Resolution 2000/4 establishing the study, which indicates the sensitive nature of the issue and perhaps a lack of political will. At the very least, it means this study, to be prepared by Mr. Goonesekere, should be watched closely.
[14] India may also be vying to keep the concepts of race and caste separate because: if caste is considered “related intolerance” rather than a subset of racial discrimination, it may undercut the application of provisions of other international resolutions and instruments that only discuss race and not related matters.