CLASIFICACIÓN GENERAL DE LOS USOS DEL SUELO ACTIVIDADES Y USOS DEL SUELO

Keane argues that descent is ultimately ‘a term of convenience’ which ‘allows international bodies to examine legitimate claims of continuing caste-based discrimination’, but ‘CERD should not pretend that descent originally meant caste

188

Shri Raj Bahadur, CAD Vol. VII, n 93 above.

189 _{Yogender Pal Singh & Ors. vs. Union of India & Ors., 1987 AIR 1015.}

190 _{V. Sivamurthy v State of Andhra Pradesh & Ors.; Supreme Court of India, Civil Appeal No.4210} (2003); Auditor General of India v G. Ananta Rajeswara Rao, 1994 AIR 1521; Rashmi Dwivedi v State of U.P. and Ors. (2002) 94 AWC 3065.

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when it did not’; it ‘should recognize that it has re-interpreted the term’.191 This, argues Keane, would involve ending the description of discriminatory practices in certain African states as caste, while at the same time informing India ‘that it does not believe that its caste structure is based on differences of skin colour’, nor that caste is synonymous with race, ‘but that this does not mean that caste is excluded from the purview of the ICERD’.192 I agree with Keane that the cross-cultural application of the term caste is problematic; I suggest that the term ‘analogous systems of inherited status’, used by CERD in GR No. 29, is preferable outside the context of South Asia and its diaspora. However, I disagree that CERD has re- interpreted or re-crafted descent to cover caste; if this were the case, it would drastically weaken CERD’s authority to examine caste-based discrimination under the rubric of descent. The living instrument doctrine does not extend to the introduction into the treaty of new or additional rights or obligations that the treaty drafters did not intend to include; rather, it enables the recognition of hitherto unidentified, latent rights or obligations implicit in the terms of the text. From the moment it first directed its attention to discrimination based on caste, CERD has maintained that, for the purposes of ICERD, caste discrimination is captured by the concept of discrimination based on descent. In February 2007, during CERD’s examination of India’s fifteenth to nineteenth reports, CERD member Thornberry explained,

[i]n international law, an evolutionary interpretation of terms was common practice; [CERD] had, over time, developed a broad interpretation of the term ‘descent’ and was of the view that the language contained in the Convention was adequate to capture the notion of caste-

based discrimination. It was important to bear in mind the main purpose of investigating

racial discrimination as practiced by institutions, individuals or organisations – namely, to

191 _{Keane (2007), n 55 above, 237.} 192

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engage in public reflection and dialogue and thereby address deep-rooted social patterns of

discrimination.193

According to Thornberry, the ‘overwhelming evidence of oppression’ suffered by the Dalits as subjects of the caste system ‘could hardly escape the attention of CERD in the light of its duty to be faithful to the norms of the Convention’.194 Descent, he argues, is the ‘closest descriptor’ for caste and analogous forms of social stratification; it has the ‘most open character, since all human beings have a descent’, and is

an appropriate term to act as a normative safety net for clear cases of group-based

discrimination based on inherited characteristics which are not easily caught by other,

narrower descriptors.195

Keane argues that, even though CERD has re-interpreted descent, ‘this does not mean that caste is excluded from the purview of the ICERD’. This argument can only be correct if caste is covered by one or more of the other limbs of racial discrimination. A treaty body has no authority to re-interpret a treaty. If a characteristic is not included, either expressly, impliedly or latently, within the terms contained in the treaty, then it is excluded. The point is a fine one, but the logical outcome of the argument that caste was not originally included, expressly or impliedly, in the treaty, and that in order to address caste discrimination CERD has re-interpreted the treaty, is that caste is not covered by, and therefore cannot be addressed under, ICERD. This is the position taken by India.

193 _{UN Doc. CERD/C/ SR.1796 (Thornberry), 2 March 2007, para. 36 (emphasis added).} 194 _{Thornberry (2004), n 87 above 119-137, 129.}

195

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In contrast, CERD has affirmed the place of caste discrimination within the framework of ICERD through the use of descent – an illustration, says Thornberry, of ‘the possibilities inherent in elaborating existing instruments on human rights to benefit particular communities, even in the absence of direct reference to the community in question’.196 Both CERD and India have called up the ICERD travaux preparatoires in support of their interpretation of descent. Treaty interpretation, argues Klabbers, is ‘a highly political exercise, continuing the politics of negotiation after the treaty’s entry into force’.197Travaux preparatoires constitute a political and historical, as well as a legal, record,198 yet they remain ‘an elusive concept’.199 As Klabbers points out, the intentions of the drafters may not always be cognisable; indeed, there ‘may not be much of a common intention among treaty drafters’ and states may ‘enter into negotiations with various, possibly widely diverging goals in mind’.200

Invoking the travaux preparatoires may ‘introduc[e] a static element into a treaty’, generally considered undesirable in the context of human rights treaties, but which, for particular actors – usually states – may be a desirable outcome. Conversely, notes Klabbers, the travaux preparatoires may be invoked to show that the drafting history does not preclude a particular (often more teleological) interpretation of the text.201 Either way, he argues, recourse to the travaux preparatoires is an acknowledgment of the political nature of treaties.

Faced with India and Japan’s recourse to the ICERD travaux preparatoires in support of their interpretations of descent, CERD has sought to emphasise the text of

196 _{Ibid., 120.}

197 _{J. Klabbers, ‘International Legal Histories: The Declining Importance of Travaux Preparatoires in} Treaty Interpretation?’, 50 Netherlands International Law Review (2003) 267-288, 271.

198

However, the notion of historical records ‘as somehow representing something truthful and undisputable is highly deceptive’; Klabbers, ibid., 286.

199 _{Klabbers, ibid., 276.} 200 _{Ibid., 284.}

201

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ICERD and subsequent practice instead of the travaux. During CERD’s examination of Japan’s combined third to sixth reports in February 2010, CERD member Thornberry, referring to the debates in the travaux préparatoires on the substitution of descent for national origin,202 stressed that the travaux ‘were supplementary; the text of the Convention and subsequent practice should be used as the primary means

of interpretation’.203