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International Law

Inter-American and African Human Rights Systems

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Regional Human Rights Systems (RSs) play an essential role in the promotion and protection of human rights in the region. They include regional instruments, such as treaties, conventions and declarations, and mechanisms, such as commissions, special rapporteurs, and courts. The RSs assist national governments in enforcing international human rights obligations and provide mechanisms for the victims to plead remedies for human rights violations once the national remedies have been exhausted. RSs also assist in raising awareness of human rights to the people in a localized context. They additionally provide regional inputs to the development of standards of international human rights and aid national governments to achieve them by providing assistance and technical help. Although there is a number of specific RSs around the world, the three main RSs in human rights are in Africa, Europe and America. This essay compares and contrasts the Inter American and African Human Rights System in implementing, as well as the challenges encountered. It does so by addressing each of their efficiency and capacity by comparing, weighting the advantage of each and by identifying the weakness.

The Inter American System, by a constitutive act, proclaims the fundamental rights of the individuals without discrimination. The American states are bound to abide by these rights and the principle of universal ethics. The Organization of American States created the Inter American System by the American Convention on Human Rights. On the other hand, the African Charter on Human and Peoples’ Right is the fundamental instrument created the African Unity Organisation, currently known as the African Union. African Union was created by affirming the adherence to the treaties and convention of the United Nations. The objective of the Union is to protect human rights, the abolishment of colonialism and for the cooperation for the political, economic social development in the African continent.

Unlike the Inter American system, which refers the civil and political rights only, the African Charter contains provisions for economic, social and cultural rights, rights to solidarity and the rights of refugees. African Charter also addresses the right of existence, self-determination, right to use natural resources and elimination of any form of economic exploitation. Charter, in implementing these rights requires the state party to assure to observe human rights through education by guaranteeing the independence of the judiciary and creating national institutions. However, both systems have their own supra-national mechanism of human rights protection. The American system has the American Commission, and the African system has the Court and the African Commission of the Human Rights and Peoples’ and African Court.

This essay takes the comparison between both systems in having the advisory and contentious competence, and on the conciliatory jurisdiction. The contentious competence includes the right to resolve individual complains, and interstate complains. Comparing both African and American systems, in the American system, the cases that have been filed by the individual complains are much higher than the inter-state complains. Contrastingly, in the African system, only few complaints were made against in total for the first ten years of the Commission. Further, the advisory competence of the American Court is significant, which means the court can formulate an advisory opinion on the request of the Committee of Ministers on legal issues regarding the interpretation of the conventions and other protocols. However, the conciliatory jurisdiction of the African Court is limited in a way to act only to settle any dispute that is pending. 

Both the African and American conventions provided jurisdictions for individuals to bring cases at the regional courts. According to the American Convention, “any person or group of persons or any nongovernmental entity legally recognized in one or more member states of the Organization may lodge petitions … of violation of the Convention.” Hence, to plead for a remedy, the plaintiff must prove in prima facie of the contentious jurisdiction either on the grounds of recognition or declaration. Contrastingly, no such rule is set out in the African Commission. According to the convention, any person in his or her interest or others, individually or collectively, through a state party or on their own entitled to notice to the African Commission. The commission then notifies to the African Court.

The admissibility criteria also differ between American and African systems. In general, the conditions for the admissibility system are the following. One, the national remedies must have been exhausted. Two, the petition must have been introduced within six months period since the date of the last internal decision. Three, the case must not have been addressed to any other international courts or tribunals.

Along with these general conditions, the American court can declare inadmissibility when the petition does not refer to any of the violations of the rights provided in the American convention. African court enjoys the same conditions. However, it differs in the period for lodging the complaint. According to the African charter, the charges must be lodged within a reasonable time, which is in substantial flexibility in assessment, compared to the American Courts.

Further, the article 58 (1) of the African Charter requires the Assembly of Heads of State and the governments to put a request regarding any series of severe and massive violence for the Commission to investigate. Although in prima facie, it seems ordinary, the fact that the governments have the power to put forward the request allows the judicial process politicized. The African Charter Protocol reaffirms the same admissibility criteria for any cases to be lodged in the African Court. However, the protocol provides for the exception only when a person or an NGO file a claim with observatory status to the Commission, then the court may ask for the Commission’s opinion.

The procedures of regional mechanisms in investigating human rights violations are common, usually. It includes the admissibility verification, the contradictory examination, and early settlements. However, there are slight differences between both African and American mechanisms. In the American system, the American Commission has the authority to create laws retrospectively of the violence and present it to the Court. Nevertheless, the African Commission has no such power. However, it can reduce or limit the intervention of the Assembly of Head of States and governments on notified facts. This aspect makes the jurisdiction of the African Court optional and subject to the ratification of the protocols.

On comparing the court decisions of both systems, the African system has the legal authority to deliver final verdicts that would bind state authorities under the African Charter of Human Rights. The African Charter Protocol further gives the power to the court to respond appropriately to grant remedies to the violations, including compensation or reparation. In severe circumstances, the court could adopt provisional measures.

Upon the decision is reached, the court shall notify all parties of the decision, and send copies to the member states. Enforcement would follow through the publicity of procedure, where the Council of Ministers of the African Union will supervise the compliance of the decisions. In the American system, the court has jurisdiction to rule against the perpetrator by granting relief to the victim through compensation and other provisional measures. However, the American system does not create any specific mechanism to supervise compliance with the judgment.

Although both systems have different mechanisms regarding it deals with the human rights violations, they are unique in their way to protect, implement and safeguard the human rights of individuals against the state. As stated in the introduction, the regional mechanisms not only provide input to the development of the human rights standards and mechanisms, but also help the national governments to effectively address regional human rights concerns that cross national borders. Irrespective of their differences, it is also worthy to note the common factors of these systems, that they are no way lower than the international standards, have a plurality of membership, and serve in an individual capacity.

Janakan Muthukumar is a young academic, currently undertakes a research project at the University of Toronto on G7 commitments on International Security. He holds an LLM in International Law from the University of London, UK and a Master in Human Rights and Democratisation at the University of Sydney, Australia. His research focuses on armed conflicts, counterterrorism and counterproliferation.

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International Law

Basic knowledge about Peace Education and how it is beneficial in resolving conflicts

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“Peace education is a pedagogical to create a world at peace by pace we mean more than the absence of violence”-Johan Galtung

Peace education emerged during post World War II, with a variety of definitions and explanations. Generally it is defined as “The education that comprises of planning, pedagogy, skills and teachings that lead towards peace.”

The multifaceted approaches of peace embrace human right education, developmental education, environmental education, conflict resolution education and disarmament education. Peace education is a task of gaining the values, knowledge. The greatest source of building peace are people itself. Peace education brings transformation by erecting cognizance and perception. Peace education should first bid youth and adults to be cognizant of aftermath of a peculiar conflict. Then, they should be asked to use their observing abilities, perceptions and visualize themselves in place of others to recognize their suffering and foster empathy for the ones going through violence.

Peace education encourages young minds to transform conflict in a peaceful manner and conflict resolution through tranquil paths. Peace education involves movement against system. To do so we must keep in mind the phases or levels of peace.

PHASES OF PEACE

There are three (3) phases of peace education:

Cognitive phase,Effective phase and Active phase.

Cognitive phase

NECESSITY OF PEACE EDUCATION

During past two decades the World has suffered many conflicts and highest ratio of violence which affected many countries and regions of world mainly third-world countries. Conflict like war leads to discriminatory disperse of assets.

Peace education is necessary for transformation of conflict in a tranquil method. Peace educations at developing universal values, it prepares to cope up with uncertain circumstances. It is dispensable to develop personal autonomy and influence, nourishes harmony. It has an important social intention. It seems to metamorphose the contemporary social state. It focuses on termination of war.

Social injustice, war and violence imposes long term consequences and affects the routine of common man. With peace education, it is thought that it will wipe out all the sufferings of mankind and makes path towards the transformation of world that is marked by violence. There are many campaigns going on for resolution of conflict, but none can succeed without peace education. It is tier to stave off military conflicts.  It is pivotal for the minds that have knowledge of peace education to use it in nifty fashion to perorate and command conflicts.

VALUES FUNDAMENTAL TO PEACE EDUCATION:

Self respect means having sense of one’s own worth. A person’s background’ defines him. And one leans toward positive change.

Others respect stands for having perception of allure of other people despite of their religion, caste and creed.

Gender equality vouches for bestowing equal rights to all human beings. Not only women but transgender as well, for they are the part of our society.

Justice stands for perception of equal rights. It upholds for the principle of equality and rejection of all kind of exploitation.

Social responsibility visualize enthusiasm to reshape the society in the best possible way

Positive vision has connotation tovisualize the future world full of peace’ a hope of tranquil tomorrow.

SKILLS FUNDAMENTAL TO PEACE EDUCATION:

These skills need to be developed.

Reflection is the use of perceptive thinking, through which people enhance their knowledge and understandings.

Critical thinking and Analysis, having an idea to do a research critical analysis meansability to approach issues with an open mind.

Decision making is the ability to analyze problems and search for their alternative solutions.

Imagination means creating new prototypes and alternative ways of living.

Group building means working in co-operation as a team to achieve goals. The postulate is that everyone has something to contribute, everyone is part of the solution.

Empathy is the ability to see the perception of an individual or a whole group, to see that what they are going through and developing same feeling as them.

SPHERE OF PEACE EDUCATION:

If we talk about the scope and sphere of peace education. Peace education constitutes of many conformation. Peace education accords in building a peaceful society. Main educations among peace education are:

Disarmament Education:

Disarmament protests rose after the atomic bombings of Hiroshima and Nagasaki followed by cold war. From here the beginning of peace education evolved as a rejoinder to menaces of nuclear weapons. In recent times, excessive use of arms have become a major concern of peace education. UN Office of Disarmament Affairs) reported that 70 % of the expenditures in the annual global trade on conventional arms, estimated at $ 30 billion, are made by poor countries in the developing world (UNDDA, 2002).

Human Rights Education:

Following the universal declaration of Human Rights in 1948, the movement towards educating people started. This movement was called Human Rights Education. It adds to the enjoyment of pivotal Human Rights. It rose as an important concern to HRE, to teach all the people. Because every individual cannot be taught in a single classroom. HRE comprises of notion of chumminess of rights and responsibilities.

Global Education

It is defined as the programs and education that can help an individual learn more about human rights and care more about world and worldly affairs. It creates a sense to care more about the planet Earth.

Conflict Resolution Education

From the past two decades conflict resolution education have gained thrust. It has been added to the curriculum of many educational institutions. CRE has many important goals one of them is to create a constructive and peaceful society. Teaching students to make them peacemakers and to create n environment that to reach acceptable solutions.CRE principles are now increasingly used in many schools, workplaces, offices in Philippines as well as many parts of the world.

Multi-cultural Education

Multicultural education has developed first in the countries which consist of diversity of multi cultural population. Mainly in the countries having history of receiving immigrants. It helps students to appreciate cultural differences and similarities to create bonds with them. Young children can easily absorb negative stereotypes of the society so multi-cultural education from the beginning level creates a sense of brotherhood among them. Multi-cultural education looks forward to eliminate all these negative stereotypes.

Interfaith Education

The interfaith movement began in 1893 at the World’s Parliament of Religions gathering in Chicago, which gave rise to Interfaith education. It gave rise to many interfaith organizations. It is considered as the most important form of education to promote peace. It creates a sense of co-operation among religions.  

Development Education

Development education emerged in 1960’s. It condemns biased economic order which leaned towards the consequences of hunger, homelessness and marginalization. NGO’s and institutions concerned with it are integrating many issue like inequality in society. It leads to the development of peaceful societies. It seeks to pursue consciousness summons undemocratic structures.

Non-Sexist Education

During the hike of feminism in1960’s there have been endeavour to oppose sexist education. Gender fair education seeks to promote principles that lead towards non-sexist society. A society where everyone practices equal rights despite of their gender. It advocates break down of gender based stereotypes.

CONCLUSION

Peace education is something that promotes tranquility in society. It aids in creating harmony among human beings and their environment. There are many happenings in the world that have no other solution than peace education. It leads towards a calm society. It emerged after WW II to promote quietude in the world. Since then many organizations and NGO’s are operational to promote peace education among individuals and groups of individuals. In a nutshell, one would mention that peace education is the only key to lead world towards positivity and calmness in most aspects. Peace education is a concrete pathway to deal with war and its aftermath. Teaching learners tranquil paths to resolve conflict plays constructive role in society.

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International Law

Is Antarctica the new Eldorado? The sixth continent between claims and international law

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December 1, 2019 marked the 60th anniversary of the signing in Washington of the Antarctic Treaty, the main legal instrument for managing practical activities and regulating interstate relations in the territory 60°parallel South.

On May 2, 1958, the U.S. State Department sent invitations to the governments of Australia, Argentina, Belgium, Chile, France, Japan, Great Britain, New Zealand, Norway, the then South African Union and the USSR for the International Antarctic Conference. It was proposed to convene it in Washington in 1959. The group of participants at the Conference was limited to the countries that had carried out Antarctic projects as part of the International Geophysical Year (IGY) (July 1957-December 1958).

The Soviet Union supported the idea of convening a Conference. In a letter of reply, the Kremlin stressed that the outcome of the Conference should be the International Treaty on Antarctica with the following basic principles: peaceful use of Antarctica with a total ban on military activities in the region and freedom of scientific research and exchange of information between the Parties to the Treaty.

The Soviet government also proposed expanding the group of participants at the Conference to include all parties interested in the issue.

In those years, the international legal resolution of the Antarctic problem had become an urgent task. In the first half of the 20th century, territorial claims to Antarctica had been expressed by Australia, Argentina, Chile, France, Great Britain, New Zealand and Norway.

In response to the Soviet proposal, the United States kept all the territorial claims of various countries on the agenda, but it undertook to freeze them. Russia, however, believed that third parties’ territorial claims had to be denied. At the same time, the position of both States coincided almost entirely insofar as the right to make territorial claims for the ownership of the entire continent could be retained only as pioneers.

The USSR relied on the findings of the expedition by Russian Admiral F.G.Th. von Bellingshausen and his compatriot Captain M.P. Lazarev on the sloops-of-war Vostok and Mirnyj in 1819-1821, while the United States relied on the explorations of N.B. Palmer’s expedition on the sloop Hero in 1820.

The Conference opened on October 15, 1959 in Washington DC. It was attended by delegations from twelve countries that had carried out studies as part of IGY’s programmes in Antarctica.

The Conference ended on December 1, 1959 with the signing of the Antarctic Treaty. This is the main international law instrument governing the planet’s Southern polar region.

The basic principles of the Treaty are the following: peaceful use of the region, as well as broad support for international cooperation and freedom of scientific research. Antarctica has been declared a nuclear-free zone. Previously announced territorial claims in Antarctica have been maintained but frozen and no new territorial claims are to be accepted. The principle of freedom to exchange information and the possibility to inspect the activities of the Parties to the Antarctic Treaty have been proclaimed. The agreement is open to accession by any UN Member State and has no period of validity.

Over time, it has been proposed that the political and legal principles of the Treaty be further developed in the framework of regularly convened consultative meetings. Decisions at these meetings can only be taken by the Parties to the Treaty that have a permanent expedition station in Antarctica.

All decisions are taken exclusively by consensus, in the absence of reasoned objections. The first Antarctic Treaty Consultative Meeting was held in the Australian capital, Canberra, from 10 to 24 July 1961.

Until 1994 (when the 18th Consultative Meeting was held in Kyoto), meetings were held every one or two years, but since the 19th Meeting held in Seoul in 1995 they have begun to be convened on a yearly basis. The most recent Meeting, the 42nd one, was held in Prague from 11 to 19 July 2019. The 43rdConsultative Meeting will be hosted in Paris on 14-24 June, 2021: the suspension of the Meeting that was to be held in Helsinki from 24 May to 5 June 2020 was due to the Covid-19 pandemic. The 17th Meeting was held in Venice, Italy, on November 11-20, 1992.

The main decisions of the Meetings until 1995 were called recommendations and since 1996 ATCM measures. They come into force following the ratification procedure by the Consultative Parties. A total of 198 recommendations and 194 measures have been adopted.

Over sixty years, the number of Parties to the Antarctic Treaty has increased from twelve founders in 1959 to 54 in 2019. These include 29 countries in Europe, nine in Asia, eight in South America, four in North and Central America, three in Oceania and one in Africa.

The number of Consultative Parties to the Treaty that have national expeditions in Antarctica keeps on growing: Australia, Argentina, Belgium, Brazil, Bulgaria, the Czech Republic, Chile, the People’s Republic of China, (South) Korea, Ecuador, Finland, France, Germany, Japan, Great Britain, India, Italy, Norway, New Zealand, the Netherlands, Peru, Poland, Russia, Spain, South Africa, Sweden, Ukraine, Uruguay and the United States of America.

The remaining 25 Antarctic Treaty countries with Non-Consultative Party status are invited to attend relevant meetings, but are not included in the decision-making process.

In the 1970s and 1980s, the desire to join the Treaty was reinforced by the desire of many countries to develop Antarctica’s biological and mineral resources. Growing practical interest in Antarctica and its resources led to the need to adopt additional environmental documents.

During that period, recommendations for the protection of Antarctica’s nature were adopted almost every year at the Consultative Meetings. They served as starting material for the creation of three Conventions, which protect the natural environment: 1) the Convention for the Conservation of Antarctic Seals; 2) the Convention for the Conservation of Antarctic Marine Living Resources; and 3) the Convention for the Regulation of Antarctic Mineral Resources.

Later, based on the recommendations and Conventions adopted, the Protocol on Environmental Protection to the Antarctic Treaty was drafted. It became an environmental part of the Treaty and was signed on October 4, 1991 for a period of 50 years at the Madrid Consultative Meeting – hence it is also called the Madrid Protocol.

According to the Protocol, Antarctica is declared a “natural reserve for peace and science” and should be preserved for future generations. After 1991, the new countries that adhered to the Treaty started to show interest in participating in large-scale international research projects on global climate change and environmental protection.

Considering the above, Antarctica can be described as a global scientific laboratory: there are about 77 stations on the continent, which have supplied their scientists from 29 countries. They explore the continent itself, the patterns of climate change on Earth and the space itself.

However, how did it happen that the territories of the sixth continent became the target of scientists from all over the world?

In 1908, Great Britain announced that Graham Land (the Antarctic peninsula south of Ushuaia) and several islands around Antarctica were under the authority of the Governor of the Falkland/Malvinas Islands (claimed by Argentina). The reason for this was that they were/are close to the archipelago.

Furthermore, Great Britain and the United States preferred not to acknowledge that Antarctica had been discovered by the Russian explorers Bellingshausen and Lazarev. According to their version, the discoverer of the continent was James Cook, who saw the impenetrable sea ice of Antarctica, but at the same time confidently insisted that there was no continent south of the Earth.

A dozen years later, the appetites of the British Empire grew and in 1917 it decided to seize a large sector of Antarctica between 20° and 80°meridian West as far as the South Pole. Six years later, Great Britain added to its ‘possessions’ the territory between 150°meridian East and 160°meridian West, discovered in 1841 by the explorer Capt. J.C. Ross, and assigned it to the administration of its New Zealand’s colony.

The British Dominion of Australia received a “plot of land” between 44° and 160° meridian East in 1933. In turn, France claimed its rights to the area between 136° and 142° meridian East in 1924: that area was discovered in 1840 and named Adélie Land by Capt. J. Dumont d’Urville. Great Britain did not mind, and the Australian sector was not disputed by France.

In 1939, Norway decided to have a piece of the Antarctic pie, declaring that the territory between 20° meridian West and 44° meridian East, namely Queen Maud Land, was its own. In 1940 and 1942, Chile and Argentina entered the dispute and the lands they chose not only partially overlapped, but also invaded Britain’s “Antarctic territories”.

Chile submitted a request for an area between 53° and 90° meridian West; Argentina, for an area between 25° and 74°meridian West. The situation began to heat up.

Furthermore, in 1939, Germany announced the creation of the German Antarctic Sector, namely New Swabia, while Japan also formalised its claims to a substantial area of Antarctic ice.

Again in 1939, for the first time the USSR expressed – as a premise and postulate – that Antarctica belonged to all mankind. After the end of World War II, all legal acts of the Third Reich were abandoned and Japan renounced all its overseas territorial claims under the San Francisco Peace Treaty. According to unofficial Japanese statements, however, the country claims its own technical equipment: according to its own version, the deposits lie so deep that no one except Japan possesses the technology to recover and develop them.

By the middle of the 20th century, disputes over Antarctica became particularly acute: three out of seven countries claiming the lands were unable to divide up the areas by mutual agreement. The situation caused considerable discontent among other States, and hampered scientific research. Hence it came time to implement that idea, the results of which have been outlined above.

In 1998, the Protocol on Environmental Protection was added to the Antarctic Treaty. In 1988, the Convention on the Management of Antarctic Mineral Resources had also be opened for signature, but it did not enter into force due to the refusal of the democratic Australian and French governments to sign it. That Convention, however, enshrined great respect for the environment, which laid the foundations for the Protocol on Environmental Protection. Article 7 of that Protocol prohibits any activity relating to mineral resources in Antarctica other than scientific activity. The duration of the Protocol is set at 50 years, i.e. until 2048.

Most likely, its period of validity will be extended, but we have to be prepared for any development of events. Earth’s resources are inevitably running out and it is much cheaper to extract oil and coal in Antarctica than in space. So an oxymoronically near distant dystopian future awaits us.

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International Law

The Hathras Case, Caste Discrimination in India and International Law

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ILO/A. Khemka

Over six months ago in September 2020, a 19-year-old Dalit woman was brutally gang-raped by the “upper-caste” men in Hathras district of Uttar Pradesh, and a month later succumbed to her injuries in a hospital in Delhi. Despite insidious efforts of impunity by the state, the accused were arrested. However, the family including other Dalits in the village continue to experience the endemic of caste discrimination. The village remains divided along the caste lines with “lower-castes” living on the periphery struggling to fight against the pernicious system.

Caste discrimination and violence emanate from the orthodoxy of the Indian caste system that is held as sacrosanct. It refers to the classification of people into four groups or Varnas: the Brahmins on the top, which consists of priests and teachers, followed by the Kshtriyas or the warriors, the Vaishiyas or the merchants and the last group the Shudras considered as outcastes. Shudras traditionally referred to as ‘untouchables’, now collectively known as Dalitsare singularly positioned at the bottom of the caste hierarchy. They are marginalised on the pretext of maintaining status quo in the society and are forced to live under deplorable conditions with little or no access to health, education and sanitation. Their socio-economic vulnerability and lack of political voice increase their exposure to potentially violent situations while simultaneously reducing their ability to escape.

In the similar vein, the question that writ large is, how long would the scourge of the caste system traumatise the Dalit community that makeup16.2% of India’s total population. Being relegated to the bottom of the class, caste and gender hierarchies, they form a majority of the landless labours and manual scavengers and their vulnerability is appropriated by those in power. The reason why the Hathras Case allured a lot of controversies was that the state agencies played an essential role in shielding perpetrators and launching fake propaganda of victimisation. This reaffirmation of the upper-caste hegemony by the state violates the domestic law as well as India’s obligation under International law. Hence, it becomes imperative to understand the relationship between caste and racial discrimination against the backdrop of international law.

Hathras Case and Violation of International Law

Violence against Dalits especially women  is used as a tool to inflict political lessons and crush dissents and labour movements for transgressing the caste hierarchies. The Hathras Case of Uttar Pradesh is one of such adversities that reveal a perilous side of the Indian social apparatus and the subsequent pattern of impunity. Despite the constitutional guarantee against any form of discrimination specified under the domestic law and the ratification of international covenants on racial discrimination, gender equality and human rights. Such incidents underscore India’s louche stand against discrimination both nationally as well as internationally.

The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) 1965 as substantiated by India, under its Article -1 states that discrimination based on descent falls under the ambit of ‘racial discrimination’. Hence, applies to matters of caste discrimination also. In the Case of Hathras, there was a serious breach of the convention on various grounds by the police and the government. For instance, the Police did not take cognisance of the rape for eight days after the incident despite the request of the family and was reluctant to help when the victim was taken to the police-station .The family was also exhorted by the district magistrate to change their statement. This misconduct goes against Article 5(a) and Article 5(b)of the Convention on the Elimination of All Forms of Racial Discrimination (CERD) which reads that victim should receive equal treatment before the organs administrating justice and must receive protection against violence respectively. Also, the lack of effective remedies provided by the state breaches Article 6 of the convention.

Further, the police allegedly cremated the victim without the involvement of her family members. It breached Article 2, para 2 of the CERD, which obligate state parties to take measures for prevention and enjoyment of human rights. The Government and police wrought an abhorrent pattern of impunity and State-sponsored Propaganda as they adamantly declined to accept if rape was actually committed simply based on the fact that the forensic report revealed the absence of semen in the body of the deceased. This was approbated despite the fact that forensic evidence can only be found up to 96 hours after the incident and that sample for the case was collected after eleven days. Thus, such impunity to the ‘upper caste’ men by the state organs seriously violates Article-2 and 4 of CERD that state shall not discriminate against the victim and condemn any sort of propaganda based on superiority of the caste respectively.

Such deleterious conduct by the state is not only in dissonance with the Convention on the Elimination of All Forms of Racial Discrimination but also tramples upon various instruments of International Human Rights Law especially the United Nations Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR). It also grossly violates the Convention on the Elimination of All Forms of Discrimination against Women. Dalit Women stand at a point of intersectionality in the society, their subordination and violence unleashed upon them result from both sexual and caste discrimination. Hence, this ‘double jeopardy’ thesis exacerbates their plight.

These actions of the transgression of international law invite state responsibility as codified by the International Law Commission. The Commission elucidates that any such act is attributable to the state if it is committed by State organs, whether central or federal. The International Convention on All the Forms of Racial Discrimination also reflects on the application of domestic law. As Supreme Court of India has held in the case of Karmaa Dojree v. Union of India that the provisions of the Convention are of significance to protect fundamental human rights and must be read into constitutional guarantee against racial discrimination. Thus, what makes the Hathras Case, one of the most controversial cases is the grave violations of international responsibilities and demonstration of ‘upper-class hegemony’ by the state and its agencies.

Caste Discrimination as Racial Discrimination

A major point of contention while ruminating on caste discrimination as racial discrimination is, albeit in the language of international law caste discrimination is seen as the violation of the civil, political, social, economic and cultural rights, there is an absence of its legal recognition.

In 1996, India for the first time highlighted that the term ‘descent’ mentioned under Article 1(1) of the convention does not cover the domain of caste, thus, schedule castes and schedule tribes in India does not come under its purview. However, CERD in its Concluding Observations(2007) stated that the term ‘descent’ not only refers to ‘race’ but also include discrimination against members of community based on various forms of social stratification. The Human Rights Council in its report conducted by the Sub-Commission on the Promotion and Protection of Human Rights (2009) considered caste discrimination as‘ discrimination based on work and descent’. Likewise, the report of the Special Rapporteur on Minority Issues (2016) attempted to explicate caste discrimination and emphasised that ‘while many caste-affected groups may belong to the same larger ethnic, religious or linguistic community, they often share minority like characteristics, particularly their non-dominant and marginalised position and the historic use of the minority like framework to claim their rights.’ This informs us that international law categorically view caste discrimination as a segment of racial discrimination. However, India continues to deny the applicability of the term ‘descent’ as inclusive of caste. The lacuna in the recognition of ‘caste’ as a separate identity and India’s denial despite negation is often considered to have a detrimental impact on a significant population of the country.

Caste- based violence similar to the case of Hathras lead to gross breach of international law and yet less often attract state responsibility. This is due to the fragmented legal response and absence of explicit reference to caste discrimination in international law. It is asserted that a comprehensive legal response could help overcome these challenges, not to say that the application of international law would ensure complete protection against caste-based discrimination and violence. But, at least could provide for international solidarity and subsequently better solutions.

Conclusion

The Hathras case of Uttar Pradesh like other similar cases of violence against Dalit women unveils the perennial notion of caste discrimination and the abhorrent pattern of state impunity to the perpetrators. These acts of caste discrimination are strongly condemned under international law, to which India has often reflected on quite evasively. Notably, various international conventions enunciating international law refers to such discrimination as a violation of human rights, albeit have not specifically mentioned it and has continued to reaffirm that discrimination based on descent includes discrimination based on caste. Hence, Dalits face huge challenges at the international level to draw adequate attention to caste discrimination and consequently bear perpetual atrocities at the national level. Therefore, Dalits aspire for international solidarity to consider varying factors of discrimination and a comprehensive legal response to bring caste-based discrimination into international focus.

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