‘Caste’ and ‘Descent’: A Curious Case of an International Legal Interpretation

Author(s):  
Bhimraj M

Abstract The reconceptualisation of caste discrimination as racial discrimination through the term ‘descent’ in Article 1 of icerd enabled the international community to take cognisance of caste discrimination, which it had ignored for a long time. However, the government of India, opposing such reconceptualisation, maintains that ‘descent’ in icerd refers only to race and not caste, contrary to the position of UN human rights bodies. Hence, whether ‘descent’ includes ‘caste’ is an important hermeneutical question addressed in this article. Based on the distinction between interpretation and application of a treaty, this article argues that India has accepted the application of icerd to caste discrimination through its conduct and it cannot deny it now according to the principle of estoppel. This article then demonstrates the dynamic interpretation of ‘descent’, justifying it through the consensus analysis methodology of the ECtHR. Moreover, it is found that ‘descent’ was associated with ‘caste’ in British India.

2021 ◽  
Vol 7 (1) ◽  
pp. 48-66
Author(s):  
Farnaz Raees Kazemi ◽  
Moosa Akefi Ghaziani

George Floyd’s murder by the police in Minneapolis provoked widespread political agitation across the country. It once again highlighted the problematic racial dimension of policing and eggregious violation of human rights commitments on the part of the government. In this article we explore how the human rights law and racism in the United States interact with each other? We employ qualitative research based on descriptive-analytical method and divide the article in four parts: a brief introduction, a historical background of racism, a conceptual comprehension of racial discrimination and a brief survey of the international human rights instruments against racism, and the onground situation of racial discrimination in the country. We conclude that the process of negotiation between human rights law and racism in the United States is far from settled yet.


2005 ◽  
Vol 23 (2) ◽  
pp. 243-272
Author(s):  
Maria O'Sullivan

This article examines the debate relating to reparations for ‘past’ human rights violations, with particular focus on the case of the indigenous ‘Stolen Generation’ in Australia. The ‘Stolen Generation’ is a term used to describe the government-sanctioned practice of forced removals of part-Aboriginal children from their indigenous parents and placement into non-indigenous institutions and homes, which occurred in Australia from approximately 1910–1970. The ‘Stolen Generation’ violations present a unique and difficult legal question for international human rights law because they straddle the divide between ‘historic’ violations and contemporary acts, that is, they were committed by Australia after Australia signed key agreements such as the UN Charter, the Universal Declaration on Human Rights, the Declaration on the Rights of the Child and the Declaration on the Elimination of All Forms of Racial Discrimination, but prior to its ratification of international human rights treaties such as the International Covenant on Civil and Political Rights and the International Convention on the Elimination of All Forms of Racial Discrimination. This means that bringing a claim under international human rights law in relation to the violations raises a number of problems. The object of this article will be to explore whether Australia can be held responsible under international human rights law for the ‘Stolen Generation’ violations and possible avenues of redress. In this regard, the focus of the article will be on the possible claims victims could make to relevant treaty monitoring bodies and the types of obstacles they would face in doing so. These legal questions are also relevant to the wider debate that is taking place in relation to reparations, namely the extent to which a State can be held legally responsible to provide reparations for past violations.


2021 ◽  
Vol 3 (S-1) ◽  
pp. 290-295
Author(s):  
Angayarkanni C ◽  
Kiruthiga K

The message of history is that society and its dynamics have been subject to change over time. One of them is caste-based activities. The word "Satyam" is indelible all over India. There has been no change in the view of “caste discrimination” in civilization, education, and even in the developing world. In the early days, people were segregated on the basis of land and occupation. Then they became racist due to the arrival of Vanderis (disguised Brahmins). Racial discrimination sought to keep a large number of people in a state of disgrace. This situation continued for a long time. However, with the advent of British colonial rule in India, "caste discrimination" may have taken a turn for the worse. The missionaries' aim was to seize wealth and spread their religion. Only when we are all united can we restore our self. They said they could be released. Who pioneered the second stage. C. Iyothee Thass Pandit. He has publicly recorded the progress of his people based on Buddhism. This can be seen in the dominance of his views on literature.


1986 ◽  
Vol 42 (3) ◽  
pp. 225-237
Author(s):  
Shanti Sadiq Ali

The principle of the elimination of racism and racial discrimination, of which apartheid is an institutionalised form, has become one of the cornerstones of the international community's concerns. As the community's watchdog, the United Nations has accorded, a high priority to this principle. Article 56 of the United Nations Charter stipulates thatbn ‘all members pledge themselves to take joint action in cooperation with the Organisation for the achievement of the purposes set forth in Article 55’, which includes ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.’ Equally, the concern of the international community has been evident in the progressive evolution of the General Assembly's recommendations, resolutions and decisions, of the relevant international instruments, of its policy of sanctions, albeit by no means satisfactory, and the prominence this principle receives in various UN organs and activities, in particular the programmes undertaken under the Decade for Action to Combat Racism and Racial Discrimination. However, the supportive role of the United Nations in the struggle being waged against apartheid within South Africa and Namibia, highly commendable though it is, has unfortunately been considerably weakened by the lack of consensus in dealing with systematic violations of international norms by the Pretoria regime for the maintenance of apartheid, as well as over the strategies to be adopted to resist this unjust and oppressive system. In the specific context of the present structure of the United Nations, particularly the powers given to the Security Council, these divergencies are found to be major constraints as they have the inevitable impact of impeding enforcement measures. As a consequence today, the continuing gulf between international law and reality threatens the very credibility of the world organisation especially as far as its human rights policies with regard to South Africa are concerned. The struggle within the United Nations system against apartheid, inevitably slow moving, nonetheless continues as can be seen from the evolution of measures taken. It will also be seen that the world body, undeterred by persistent disagreements over principle, its interpretation and enforcement, continues to explore possible options in shaping policies to be able to deal more effectively with the scourge of apartheid and thereby strengthen the ethical foundations of the international community and a civilised system of peaceful coexistence. The situation, therefore, though highly complicated, is not entirely hopeless. On the contrary there is room for optimism that meaningful consequences will emerge from these efforts of the United Nations to eliminate apartheid as well as to bring about a qualitative change in and protection of a whole range of human rights.


2020 ◽  
Vol 1 (1) ◽  
pp. 69-87
Author(s):  
Safdar Alia ◽  
Fatima Ali ◽  
Muhammad Atif

The Rohingya Muslims are living as the minority in Myanmar from a long time. Yet, they always faced discriminatory behaviour of Buddhist majority community and the government. The violation activities against minorities at sectarian basis continued from a long time but currently increased a lot. As a result, thousands of Rohingya refugees migrated towards other areas to protect their lives especially in Bangladesh. The proposed research is an attempt to investigate the real causes and consequences about Rohingya crises in Myanmar. The Rohingya ethnic cleansing mission started after the attack of the Arakan Rohingya Salvation Army (ARSA) on the military of Myanmar. For the analysis of Human rights violation has been used deductive and qualitative research method through which find out the role of internal power of Myanmar and the international leaders and institutions to stop violence against Rohingya Muslims and the their ethnic cleansing


2019 ◽  
Vol 23 (2) ◽  
pp. 158-178 ◽  
Author(s):  
Md. Shariful Islam

How can one understand the genealogy of the Rohingyas? How did the Myanmar state frame the Rohingyas? What factors led to the failure of the human rights norm in the case of the Rohingya crisis in Myanmar? How can this crisis be addressed? This article investigates these questions and argues that Rohingyas were living in the Rakhine state of Myanmar throughout centuries. They were dehumanized and systematically excluded by the government of Myanmar over a long time. The article also argues that Myanmar state was not interested in complying with the international norms of human rights in case of Rohingya crisis due to the prevailing domestic structure of the country, lack of political opportunities at the national, regional, and global levels, and the narrowly defined national interests of the major powers. In this context, possibilities need to be created to address the Rohingya crisis. Thus, the role of the international community, including China, India, Russia, the United Nations, and the European Union, becomes critical.


2020 ◽  
Vol 27 (4) ◽  
pp. 796-825
Author(s):  
Bhimraj M

The difficulty in categorising caste discrimination into standard categories of human rights violations has forced Dalit activists into comparing caste discrimination with racial discrimination – a highly condemned practice in international law. This strategy materialised through the word ‘descent’ in Article 1 of the icerd. Currently, caste discrimination has become important on the human rights agenda under the guise of ‘discrimination based on work and descent’ (dwd), and by extension, ‘racial discrimination’. The main theme of this article is to address the capability of the dwd mechanism to comprehensively capture the intricacies of caste discrimination. Upon analysis, it was found that dwd dilutes the religious aspect of the caste system. Hence, this article advocates a caste-specific Convention, which focuses on both religious and secular aspects of the caste system. This won’t happen soon; therefore, caste should be maintained as a unique form of dwd in the meantime.


2016 ◽  
Vol 28 (3) ◽  
pp. 91-98
Author(s):  
Oleksandra Sehin ◽  
Joellen Coryell ◽  
Trae Stewart

Afghan women’s human rights are a crucial concern for the international community and the government in Afghanistan. Framed by hope theory, this study captured Afghan women’s understandings of recent realities, particularly those focused on expanding women’s roles in Afghan life and community. Based on focus groups with 107 women conducted in 10 different locations, findings reveal that many Afghan females are conditioned into self-perceptions that may undermine their capacity to believe they are worthy of human rights, education, and freedom from oppression. A discussion on agency, pathways, sociocultural influences, and education for hope in Afghan women’s future is presented.


2018 ◽  
Vol 3 (2) ◽  
pp. 43-52
Author(s):  
Nur Inna Alfiyah

Abstract This article aims to describe role of the international community against the Rohingya, in this case the role of countries such as Indonesia in addressing violence against the Rohingya. Violence and discrimination committed by the government of Myanmar against the Rohingya resulted in a massive wave of migration in various countries. So, we need the efforts of the international community to intervene and stop the conflict in Myanmar.   Keywords: Migration, Human Rights, Roles of  Indonesia   Abstrak Artikel ini bertujuan untuk mengetahui bagaimana peran komunitas internasional terhadap kasus Rohingya, dalam hal ini peran negara seperti Indonesia dalam menyikapi kekerasan yang terjadi terhadap etnis Rohingya. Tindak kekerasan serta sikap diskriminatif yang dilakukan oleh pemerintah Myanmar terhadap etnis Rohingya mengakibatkan terjadinya gelombang migrasi besar-besaran yang mengakibatkan terkatung-katungnya nasib para pengungsi Rohingya di berbagai negara. Sehingga diperlukan adanya upaya dari komunitas internasional untuk menengahi dan menghentikan konflik yang terjadi di Myanmar. Kata kunci : Migrasi, Hak Asasi Manusia, Peran Indonesia


Author(s):  
Bielefeldt Heiner, Prof ◽  
Ghanea Nazila, Dr ◽  
Wiener Michael, Dr

This chapter addresses three aspects of torture in relation to the right to freedom of religion or belief. First, torture and other cruel, inhuman, or degrading treatment or punishment on the grounds of religion or belief. The prohibition of torture is recognized as forming part of jus cogens and entailing an erga omnes obligation of States towards the international community as a whole. Second, torture and other inhuman treatment may also arise from understandings of what particular religious scriptures or traditions allegedly require. They may be carried out by individuals animated by religious hatred, may enjoy the complicity of the Government, or may even be carried out by the authorities themselves. As discussed, human rights can never consider such actions a legitimate exercise of freedom of religion or belief. Finally, the religious sensitivities of detainees or prisoners of war (irrespective of the reasons for their incarceration) may be exploited in order to subject them to torture and other inhuman treatment, in other words utilizing the religion of detainees in order to subject them to tailored torture or inhuman treatment.


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