What is ICERD?
1. The International Convention on the Elimination of All Forms of Racial Discrimination (commonly known as ICERD or CERD) is an international human rights agreement that outlines specific standards and steps countries should take to prevent, eliminate, and redress racism and racial discrimination. ICERD was adopted by the United Nations in 1965.
ICERD was adopted by the UN General Assembly in 1965. This was in light of the formalization of apartheid policy and practices in South Africa which drew an almost unanimous condemnation from countries all over the world.
2. ICERD is an advanced tool for addressing all forms (direct and indirect) of racial discrimination. It applies to all racial/ethnic groups, including Indigenous Peoples, women, and immigrants/non-citizens.
Its main aim is to eliminate all forms racial discrimination and to prevent and combat racist practices for the purposes of promoting understanding between races, as well as to build an international community free from all forms of racial discrimination.
3. When a country signs the ICERD, it condemns racial discrimination and pledges to do everything necessary to eliminate racial discrimination in its’ country.
4. 179 countries have made a global stand against racism.
This is very significant. There are only 14 countries which have not ratified the ICERD. At the Asean level, there are only three countries which have not ratified ICERD: Myanmar, Brunei and Malaysia. A majority of the 14 are small island nations and not any major world power other than North Korea.
5. 57 Organisation of Islamic Cooperation (OIC) countries, 55 have ratified the ICERD, including Palestine.
Only two OIC members have not, namely Brunei and Malaysia. How can the ICERD be against Islam and Muslims if all the major Islamic countries of the world have ratified it? This includes Saudi Arabia, Turkey, Egypt, Iran, Iraq, Pakistan and Indonesia. Their reservations and ICERD reports are posted on the UN website. None of them is perfect, but they are seeking to comply with global standards against racial discrimination.
It will be sad to see Malaysia stand alongside Myanmar and North Korea on this matter of the ICERD if we don’t ratify it soon.
6. There are two ways for a country to be party to an international convention: ratification and accession.
Ratification defines the international act whereby a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act.
“Accession” is the act whereby a state accepts the offer or the opportunity to become a party to a treaty already negotiated and signed by other states.
Malaysia does not need to be bound by ALL the terms in the Convention. Countries can make what is called ‘reservations’ upon acceding to an international convention.
In simpler terms, a reservation is an act of placing exceptions to the terms stated within an international convention. As a result, Malaysia will not be legally bound by the ‘reserved’ articles in the convention.
7. What is Malaysia required to do under ICERD?
It’s kinda like a contract.
A country party to the Convention (or as they call it, State Party) is required to comply with all of its’ terms. EXCEPT for reserved provisions.
Firstly, Malaysia must take steps to wipe out all forms of racial discrimination.
It includes adopting laws and policies to eliminate racial discrimination and promote racial tolerance, criminalizing hate crimes as well as creating legal avenues for individuals affected by racial discrimination to seek redress.
Secondly, Malaysia will be answerable to the Committee on the Elimination of All Forms of Racial Discrimination (CERD) for it’s progress under ICERD.
State Parties report to the Committee every two years (new State Parties will have to submit a report in its’ first year). The Committee will then report to the UN General Assembly. The Committee as well as other State Parties can recommend or suggest to Malaysia on how it may better comply with ICERD.
8. Will ICERD remove Article 153?
“Signing the ICERD would result in the removal of Article 153 of the Federal Constitution which provides for the special position of Malays and natives of Sabah and Sarawak.”
This is a legitimate concern but it is incorrect to suggest that signing ICERD results in an automatic repeal of Article 153.
Malaysia adopts what is known as a ‘dualist’ approach when it comes to international conventions: international law and national law are separate. In Malaysia, the Federal Constitution is the supreme law of the land, not international law. International law does not have legal effect in Malaysia until the Parliament passes a law to implement it in Malaysia. Before any of that happens, the law must of course be debated in Parliament.
According to some lawyers, the ICERD is compatible with the Federal Constitution so no repeal of Article 153 is necessary. Articles 1(4) and 2(2) of the ICERD allow ‘special measures’ ensuring ‘equal enjoyment of rights and freedoms’ to be implemented.
There is also a second document from the UN titled “General Recommendation No 32” on the meaning and scope of special measures in ICERD (2009) which clarifies the matter. In the ICERD, affirmative action is not regarded as discrimination because special measures are needed to address historical socio-economic injustices and inequalities.
9. How Does the ICERD Review Process Work?
As part of its obligations under ICERD, the U.S. Government must submit periodic government reports (formally called State reports) every two years on how it is enforcing the requirements of the treaty. A UN committee of independent experts on racial justice called the Committee on the Elimination of Racial Discrimination (or UN CERD committee) oversees this review process on how governments are complying with the treaty. In response to these government reports, social justice groups and other non-governmental organizations (NGOs) are invited to submit alternative reports that give an on-the-ground assessment of how the government is complying with ICERD.
10. ICERD goes beyond calling for repeal of laws that have a discriminatory impact to requiring governments to take proactive steps to address racial disparities. It also recognizes and accounts for the intersecting impact of other factors, such as gender, ability, class, sexuality, among others, with race.