Race and Caste

In Asia, one of the most pernicious forms of racial discrimination is discrimination based on descent, including caste discrimination in South Asia and discrimination against Burakumin in Japan. In much of South Asia, race has become coterminous with caste in the definition and exclusion of distinct population groups distinguished by their descent. Despite formal protections in law, discriminatory treatment remains endemic and discriminatory societal norms continue to be reinforced by government structures ranging from the police and the lower courts to state and municipal authorities.

In India alone, close to 160 million so-called "untouchables" or Dalits (known in legal parlance as scheduled castes) are routinely discriminated against, denied access to land, forced to work in degrading conditions, and routinely abused, even killed, at the hands of the police and of higher-caste groups that enjoy the state's protection. Dalit women are frequent victims of sexual abuse. In what has been called India's "hidden apartheid," entire villages in many Indian states remain completely segregated by caste. Though national legislation and constitutional provisions suggest that the Indian government has successfully tackled caste-related violations, much of the legislation remains unimplemented. For those at the bottom of its hierarchy, caste remains a determinative factor for the attainment of social, political, civil, and economic rights.

Because caste-based abuse is not regularly on the agenda of the Commission on Human Rights, it is important to recognize attempts by some U.N. treaty bodies to bring caste into the purview of their mandates, and equally important to place the issue prominently on the agenda of the race conference. In the concluding observations of its forty-ninth session held in August 1996 (as it reviewed India's tenth to fourteenth periodic reports under the convention), the Committee on the Elimination of Racial Discrimination affirmed that "the situation of Scheduled Castes and Scheduled Tribes falls within the scope of" the International Convention on the Elimination of All Forms of Racial Discrimination, 1965.⁽¹⁾ The Committee has clearly stated that the term "descent" contained in Article 1 of the Convention does not refer solely to race. Similar conclusions were drawn by the U.N. Special Rapporteur on racism, racial discrimination, xenophobia and related intolerance in his January 1999 report. Serious concerns over the treatment of Dalit children and Dalit women in India were also expressed by the Committee on the Rights of the Child and the Committee on the Elimination of Discrimination against Women in their recent reviews of India's periodic reports under the children's rights and women's rights conventions, respectively.

The World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance can and should provide an opportunity for redressing the relative lack of attention given to this subject in international human rights discourse to date.

The question of intent

Racist intent remains a real and present factor in the policies and actions of states, even when not immediately apparent in law or at the highest levels of government. A commitment to racial discrimination at any level of government can serve to destroy the rights of distinct populations unless confronted by action at the highest level. At the same time, racist discourse and policy in government and in the private sphere have not notably diminished. Indeed the General Assembly's resolution of December 17, 1999, warned that racist intolerance and acts of violence "persist and even grow in magnitude...including tendencies to establish policies based on racial, religious, ethnic, cultural and national superiority or exclusivity...."⁽²⁾

Racist practices and policies may be most clearly present in precisely those areas of government most critical to the regulation of political and civil rights--the police, military, and the administration of justice. They may comprehensively block the enjoyment of social, economic, and cultural rights, through the denial of education, social services, and protection from economic exploitation. The policies, laws, and administrative regulations by which states are governed may have a profoundly racist impact even where this effect is not matched by a racist intent.

State action as well as state inaction may be at fault in providing the victims of racism equal protection under the law and equal opportunity in the exercise of those rights. The inadequacy of state policies and action to confront and eliminate racism may be sufficient to perpetuate institutional racism. Even explicit legislation to confront racism and intolerance may be rendered useless by passivity in its implementation.

Patterns and practices of racism endure even when these are not constructs of openly perverse, explicitly racist laws of the apartheid or other segregationist models. Where racist intent is present, this is often concealed, with no express declaration of racist intent formulated in law or stated policy. Rather, where racist intent is present, policies and practices will be couched in terms that explain their discriminatory effects in the ostensibly neutral terms of economics, of resource constraints, or geographical isolation--or by attributing the negative effects of state acts or inaction upon a particular group to that group's own failings.

The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) is a valuable tool in combating racism in part because it stipulates with crystal clarity that a state is still accountable for racism even where there is no proven intent. CERD requires remedial action whenever there is racism in effect: even where there may be no intent whatsoever to discriminate against a certain group. Similarly, CERD requires states to take responsibility and to take action to combat racism by public agencies and in the private sphere.

1. Consideration of Report by India to the Committee on the Elimination of Racial Discrimination, CERD/C/304/Add.13, September 17, 1996.