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Caste-Based Discrimination in International Human Rights Law CASTE-BASED DISCRIMINATION IN INTERNATIONAL HUMAN RIGHTS LAW Keane.indb 1 29/5/07 10:00:41 To Dr Bhimrao Ramji Ambedkar (1893–1956) Keane.indb 2 29/5/07 10:00:41 Caste-based Discrimination in International Human Rights Law DAVID KEANE Keane.indb 3 29/5/07 10:00:41 © David Keane 2007 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior permission of the publisher. David Keane has asserted his right under the Copyright, Designs and Patents Act, 1988, to be identi!ed as the author of this work. Published by Ashgate Publishing Limited Ashgate Publishing Company Gower House Suite 420 Croft Road 101 Cherry Street Aldershot Burlington, VT 05401-4405 Hampshire GU11 3HR USA England Ashgate website: http://www.ashgate.com British Library Cataloguing in Publication Data Library of Congress Cataloging-in-Publication Data ISBN Keane.indb 4 29/5/07 10:00:41 Contents List of Abbreviations vii List of Treaties and Instruments ix Table of Cases and Decisions xv Acknowledgments xvii About the Author xix Introduction 1 PART 1 1 The Origin of Caste 23 2 The Origin of Race 71 PART 2 3 The Indian Constitution and the Elimination of Caste-based Discrimination 117 4 The United Nations and the Elimination of Racial Discrimination 159 PART 3 5 A Legal History of Descent-based Discrimination 213 6 Enhancing Protection against Caste-based Discrimination 239 Conclusion 267 Bibliography 285 Index 297 Keane.indb 5 29/5/07 10:00:41 Keane.indb 6 29/5/07 10:00:41 List of Abbreviations CERD Committee on the Elimination of Racial Discrimination ICERD International Convention on the Elimination of All Forms of Racial Discrimination INC Indian National Congress OBC Other Backward Classes SC Scheduled Castes ST Scheduled Tribes UNESCO United Nations Educational, Scienti!c and Cultural Organization Keane.indb 7 29/5/07 10:00:41 Keane.indb 8 29/5/07 10:00:41 List of Treaties and Instruments Treaties and Declarations Charter of the United Nations 59 Stat. 1031, T.S. 993, 3 Bevans 1153, 24 October 1945 Universal Declaration of Human Rights Adopted and proclaimed by General Assembly resolution 217 A (III), 10 December 1948 Discrimination (Employment and Occupation) Convention (No. 111) concerning Discrimination in respect of Employment and Occupation (1958), adopted by the General Conference of the International Labour Organization (42nd session) Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity 754 U.N.T.S. 74 (1970) International Convention on the Suppression and Punishment of the Crime of Apartheid 13 I.L.M. 50, UN Doc. A/9030 (1973) Covenant on Economic, Social and Cultural Rights UN Doc. A/6316 (1966), General Assembly Resolution 2200A (XXI) (1976) Draft Covenant on Civil and Political Rights, Commission on Human Rights, 1950 UN Doc. E/CN.4/SR.175 (1950) Covenant on Civil and Political Rights UN Doc. A/6316 (1966), General Assembly Resolution 2200A (XXI) Protocol Additional to the Geneva Conventions of 12 August 1949, Relating to the Protection of Victims of International Armed Con"icts 1125 U.N.T.S. 3, 42 (1977) World Conference to Combat Racism and Racial Discrimination, Geneva UN Doc. A/33/18 (1978) Keane.indb 9 29/5/07 10:00:41 x Caste-based Discrimination in International Human Rights Law Vienna Convention on the Law of Treaties 115 U.N.T.S. 331, 8 I.L.M. 679 (1980) Convention on the Elimination of All Forms of Discrimination against Women UN Doc. A/34/46, 34 UN GAOR Supp. (No.46) (1981) Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief UN Doc. A/36/51, General Assembly Resolution 36/55 (1981) Convention on the Rights of the Child UN Doc. A/44/49, 44 U.N. GAOR Supp. (No. 49) at 167 (1990) Report of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance A/CONF.189/12 (2002) International Declaration on the Elimination of All Forms of Racial Discrimination 1963 ‘Preparation of a draft declaration and a draft convention on the elimination of all forms of religious intolerance’ UN Doc. A/5217, General Assembly resolution 1781 (XVII) (1962) The United Nations Declaration on the Elimination of All Forms of Racial Discrimination 1963 Y. U.N. 1964, 346, General Assembly Resolution 1904 (XVIII) International Convention on the Elimination of Racial Discrimination (ICERD) 1965 and Travuax Préparatroires Report of the 16th session of the Sub-Commission on the Prevention of Discrimination and Protection of Minorities (13–31 January 1964), UN Doc. E/CN.4/873 Report of the 20th Session of the Commission on Human Rights (17 February–18 March 1964), Economic and Social Council Of!cial Records, UN Doc. E/3873 Keane.indb 10 29/5/07 10:00:41 List of Treaties and Instruments xi Report of the 20th session of the Third Committee of the General Assembly of the United Nations (11 October–15 December 1965), Agenda Item 58, UN Doc. A/6181 General Assembly Plenary Meeting, 21 December 1965, UN Doc. A/PV.1406 The International Convention on the Elimination of All Forms of Racial Discrimination 1965 660 U.N.T.S. 195, General Assembly Resolution 2106 A (XX) Committee on the Elimination of Racial Discrimination General Recommendations: General Recommendation I: ‘States Parties’ Obligations’ (1972) General Recommendation IV: ‘On the Demographic Composition of the Population’, UN Doc. A/9018 General Recommendation VII: ‘Legislation to Eradicate Racial Discrimination’ (1985) UN Doc. A/40/18 General Recommendation VIII: ‘Identi!cation with a Particular Racial or Ethnic Group’ (1990), UN Doc. A/45/18 General Recommendation XI: ‘Non-Citizens’ (1993), UN Doc. A/46/18 General Recommendation XIV: ‘De!nition of Discrimination’ (1993), UN Doc. A/48/18 General Recommendation XV, ‘Organized Violence based on Ethnic Origin’ (1995), UN Doc. A/48/18 General Recommendation IXX: ‘Racial Segregation and Apartheid’, UN Doc. A/50/18 General Recommendation XXIV: ‘Reporting of Persons belonging to Different Races, National/Ethnic Groups, or Indigenous Peoples’ (1999), UN Doc. A/54/18 General Recommendation XXIX: ‘Descent-based Discrimination’ (2002), UN Doc. A/57/18 General Recommendation XXX: ‘Discrimination against Non-Citizens’ (2005), CERD/C/64/Misc.11/rev.3 (2004) Select State Reports CERD/C/IND/19 (2006), Periodic Report – India CERD/C/299/Add.3 (1996), Periodic Report – India CERD/C/304/Add.13 (1996), Concluding Observations – India CERD/C/298/Add.1 (1997), Periodic Report – Nepal CERD/C/304/Add.61 (1998), Concluding Observations – Nepal Keane.indb 11 29/5/07 10:00:41 xii Caste-based Discrimination in International Human Rights Law CERD/C/337/Add.4 (1999), Periodic Report – Nepal CERD/C/304/Add.108 (2001), Concluding Observations – Nepal CERD/C/58/Misc.17/Rev.3 (2001), Concluding Observations – Japan CERD/C/58/Misc.26/Rev.3 (2001), Concluding Observations – Bangladesh UN Doc. A/57/18 (2002), Concluding Observations – Senegal UN Doc. A/57/18 (2002), Concluding Observations – Mali CERD/C/62/CO/4 (2003), Concluding Observations – Ghana CERD/C/SR.1531 (2002), Thematic Discussion on Discrimination based on Descent Other Treaty-monitoring Body Documents CCPR/C/79/Add.81 (1997), Concluding Observations of the Human Rights Committee – India CCPR/C/79/Add.72 (1994), Concluding Observations of the Human Rights Committee – Nepal CRC/C/15/Add.115 (2000), Concluding Observations of the Committee on the Rights of the Child – India CRC/C/15/Add.28 (2004), Concluding Observations of the Committee on the Rights of the Child – India CRC/C/15/Add.260 (2005), Concluding Observations of the Committee on the Rights of the Child – Nepal UN Doc. A/55/38 (2000), Concluding Observations of the Committee on the Elimination of Discrimination against Women – India UN Doc. A/54/38 (1999), Concluding Observations of the Committee on the Elimination of Discrimination against Women – Nepal E/C.12/1/Add.66 (2001), Concluding Observations of the Committee on Economic, Social and Cultural Rights – Nepal Human Rights Committee (2000), General Comment No. 18: ‘Non-discrimination’, HRI/GEN/1/Rev.4 United Nations Secretariat De!nition of the Expressions, ‘Prevention of Discrimination and Protection of Minorities’ (1947) UN Doc. E/CN.4/Sub.2/8 The Main Types and Causes of Discrimination (1949) UN Doc. E/CN.4/Sub.2/40/Rev.1 Keane.indb 12 29/5/07 10:00:41 List of Treaties and Instruments xiii Study of the Legal Validity of the Undertakings Concerning Minorities (1950) UN Doc E/CN.4/367 UN Sub-Commission on Prevention of Discrimination and Protection of Minorities/ UN Sub-Commission on the Promotion and Protection of Human Rights Study of Discrimination in Education (1957) UN Doc. E/CN.4/Sub.2/181/Rev.1 Study of Discrimination in the Matter of Religious Rights and Practices (1960) UN Doc. E/CN.4/Sub.2/200/Rev.1 Study in the Matter of Political Rights (1962) UN Doc. E/CN.4/Sub.2/213/Rev.1 Special Study of Racial Discrimination in the Political, Economic, Social and Cultural Spheres (1966) UN Doc. E/CN.4/Sub.2/267 Study on the Rights of Persons belonging to Ethnic, Religious and Linguistic Minorities (1977) UN Doc. E/CN.4/Sub.2/384Add.1-7. Proposal concerning a De!nition of the term ‘Minority’ (1985) UN Doc. E/CN.4/Sub.2/1985/31 Minority Rights and the Prevention of Ethnic Con"icts (2000) UN Doc. E/CN.4/Sub.2/AC.5/2000/CRP.3 The Concept and Practice of Af!rmative Action (2002) UN Doc.
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