Article by Shantanu Lakhotia
Introduction:
Racism is not a newly coined termed, it has existed for centuries, as stated by Patrick Thornberry in Confronting Racial discrimination a CERD Perspective, he clearly outlines that racism can be discovered in any form of activities ranging from simple debates for example the one currently taking place in the United Kingdom about Brexit which has suddenly sparked racist hate or in the United States where the now elected head of the state President Donald Trump has equated all Mexicans with criminals or even for that matter it permeates simple everyday aspect of life like education, housing etc. In light of all these global issues the term has remained the same but the concept as to what constitutes racial discrimination has evolved and hence there arose a need to bring forth an international body to ensure that all races across the globe are treated equally in all ‘ratified’ nation states. However, like most of the enacted laws or signed treaties, there exists a lack of proper implementation and a substantive amount of ‘squeaks’ in the international enforcement mechanism. The aim of this paper is to try to bring into light the fact that the individual complaint mechanism as prescribed in article 14 of the Convention on the Elimination of Racial Discrimination been not been able to fulfill the goal for which it was bought into existence.
The International Convention on the Elimination of Racial Discrimination(CERD):
One of the profound principles of Human Right was of freedom and equality of all, however for a colony ruling state, the word ‘Human’ was only associated and restricted to the citizens of their country and not to the indigenous population of the states annexed by them. This is the reason for the drafting of ICERD in 1963 and its eventual adoption in 1965 by the general assembly. It was the first ever international human right treaty to have the power to supervise as well as to provide the power to the Committee on Racial Discrimination listen to individual grievances (dependent on the fact that the state recognizes the competence of the international court). Thus, given the time period i.e. of decolonization, the foremost goal of ICERD was to make ‘party’ nation state realize that discrimination cannot be done either at home nor in occupied territories. As pointed out by Patrick Thornberry, racism was considered to be “hydra headed and resilient phenomena capable of adaption and survival” this put a duty on the Committee, to constantly recognize and evolve the definition of racial discrimination based on every new type of violation that happened.
Recognizing mechanism:
For any treaty to be successful or for that matter for any problem to be solved, the first step is to recognize and realize the fact that there exists a problem. There are two main ways that CERD can recognize human violations are taking place in a country, the first is by the reports that are submitted by the government in pursuance of Article 9 which talks about the submission of periodic report biannually and second is by individuals approaching the courts established by this treaty and stating their violation. However, both of these mechanisms suffer with some form of deficiency.
Reporting mechanism:
The foremost way that a problem is bought into light in front of the CERD is by the reports framed by the government of a state and hence it is important to state that it is the federal and local government which makes the success of this treaty possible. However, their exists an underlying hierarchy where it is expected by the committee that it is more of the federal governments responsibilities to ensure that all the provisions of the treaty are being complied with in their country. If we consider a report provided by the Columbia Law School Human Rights Institute & International Association of International Human Rights Agencies about the proper implementation of the treaty in USA, it clearly states that lack of education and knowledge at the local level makes it harder for the treaty to be carried out properly in the country “What does currently exist at the federal level is an ad hoc approach to human rights reporting and implementation without meaningful avenues for state and local government participation. Thus, U.S. compliance with CERD will continue to fall short.” It is important to understand that CERD does not possess any form of enforcement mechanism and even though they can identify the shortcoming in the implementation of the treaty, they can only recommend certain actions to be taken by the respective government which is eventually depended on the whims and fancy of the government to consider and apply. Recently, a Nigerian National was assaulted in a mall in India which was easily brushed aside by the government of India without much consequence, thus showing the careless attitude of the government to even report such crime.
Adjudicating mechanism:
CERD entered into force on 4th January 1969, however the complaint mechanism as enshrined in article 14 could only come into effect in 1982 i.e. 13 years later which shows the imperceptibly of nations states to even accept the competence of an international court to look into their domestic matters. It is important to note that even though it can be seen that since 1969, 177 countries have become a party to this treaty, as of 2010 only 58 states, which is less that even half the party states have actually subscribed to send their domestic cases of violation to these international courts. As stated by Professor Theo Van Boven, former member of CERD, “the pace of acceptance of the article 14 procedure is slow and disappointing”
For the purpose of this paper it is important to understand the importance of an individual complaint mechanism. Harrington is of the opinion that the main purpose of having an international court is to determine the biases a judge ‘might’ have towards the domestic government. In addition to this it ensures that there is a higher authority (in theory) that can grant a person remedies when their right is being violated by the state. Moreover, it has also been stated by Harrington specifically that “the international community could not be aware of those violations if that individual complaint mechanism did not espouse personal communication instead of state- to- state approach communication.” Based on the above statistics it can be concluded that 119 state parties to the treaty are free to decide what amounts to racial discrimination. Another fact to be kept in mind is that In the rare case where it has been seen that there is a violation by the state, those 58 countries which have affirmed the competence of the international court to try the matter of violation, are nowhere bound to follow the recommendations or the judgments given by the international court and neither does the committee does not have the power to make it enforceable in the particular states territory or court for that matter, even after the CERD court has made a public notice of the same, as stated by Hamamoto, “the Committee decisions can enforced by the State Parties as long as the States Parties intend to comply with the Committee decisions, as some states are more reluctant to enforce the decisions of treaty committees within the domestic area.” This can be seen from the last paragraph of the judgment passed in the CERD case Mahali Dawas & Yousef Shava v Denmark where it is stated that, “it is recommended…..” Hence, it cannot be considered to be anything more to than a suggestion and as pointed out by Proff. Dr. Marc BOSSUYT, member of CERD he has said that, “The Governments concerned are generally forthcoming in disseminating the opinion of the Committee. In some cases, they also took measures to amend the applicable legal provisions. In a few cases, they accepted to award compensation to the authors for the expenses they had made for legal assistance in submitting the communications. Up to now, no State party accepted to award any compensation for pecuniary or non-pecuniary damage.”
The only possible benefit could be that individual complaint mechanisms brings forth a global problem i.e. the world gets to know about the possible violations going on in a particular country. However, based on the country’s power the political pressure becomes inversely proportional i.e. more the power less the international pressure for example in comparison to the United States if Congo commits a similar violation, Congo will face much more scrutiny than United States. This brings forth the point that a balance between justice and injustice cannot be maintained by a non-enforceable international court and hence, there is a need for a body to hold a state accountable for its wrong instead of just being publicly shamed for it.
Conclusion:
Based on the above discussion an important quote Louis Henkin can apply to this situation i.e. “almost all nationals observe almost all principles of international law and almost all of their obligations almost all of the time”. The reason for this quote to be appropriate in this case is for the simple fact that firstly, 119 states out 177 party states are free to decide what is racial discrimination, thus are free to enforce accordingly in their local courts and secondly, none of the states are bound by the decision of the committee.
The possibly wickedest part of the treaty is the non-enforceable power of the committee which at the domestic level is nothing more than a recommendation on a piece of paper which actually holds no power. It gives a false sense of hope to the effected people that their problem might be solved by their government and hence, it is important to bring forth a Committee or give them the power to enforce its decision and make it mandatory for party states to be bound by Article 14 of the convention in order for justice to be delivered.
About the Author:
Shantanu Lakhotia is currently in his final year of a 5-year integrated B.A. LL. B course at Jindal Global Law School, India. He has previously interned at Shardul Amarchand Mangaldas, Delhi; Khaitan and Co., Mumbai and with advocates practicing at the Delhi High Court and Supreme Court of India. He is interested in pursuing a career in the field of Arbitration.