ROLE OF CERD IN THE HUMAN RIGHTS VIOLATIONS IN TIBET Authored by - Nived K M
ROLE OF CERD IN THE HUMAN RIGHTS VIOLATIONS IN TIBET
Authored by
- Nived K M, Student,
Tamil Nadu
National Law University
Ninth Semester, B.A L.L.B (Hons.)
Mobile Number - 9961185293
Table of Contents
Abstract
For decades the International
Convention on the Elimination of all forms of Racial Discrimination led by the
Committee on the Elimination of Racial Discrimination has taken up the mantle
in protecting the rights of racial and ethnic minorities in tandem with the
other treaty body mechanism. Unfortunately, the treaty body has failed in
achieving the same degree of protections being extended to the Tibetan people
despite the guarantees in the ICERD. This research work will analyse the brief
history of the Sino-Tibetan relations, the obligations under the ICERD,
mechanisms under CERD and how the entire system is failing to alleviate the
situation in Tibet. Following this, the research work will provide
recommendations to the existing CERD system and measures to improve the current
treaty body mechanism.
Introduction
The International Convention on the
Elimination of all forms of Racial Discrimination is one of the foremost
international treaties that seek to ensure the implementation of basic and
fundamental human rights among the members who had ratified it. The CERD
committee attempts its utmost to ensure that it is implemented by states who
have ratified it.
The People's Republic of China has
been one of the most critical players in the international arena for the past
few decades. The role in the global world order took an upswing during the
Presidency of Richard Nixon and in the aftermath of the Sino-Soviet Split.
Criticised as one of the harshest and most oppressive authoritarian states in
the modern era there had always been regular allegations of human rights violations
being done in China. Tibet is one such region where the oppressive nature of
the Chinese state is enforced in full force.
In the aftermath of the unprecedented
third term Xi Jinping has secured and with the position of the CCP intensifying
when it comes to Tibet, the matter becomes altogether more important. We once
again look at the terrible tragedy that has befallen these innocent people. The
ICERD outlined the plethora of rights and protections all human beings are
entitled to regardless of their race. However, the Chinese state has not
undertaken any concrete measures for the same. In this research project, we
will be analysing the ICERD, its existing protections on human rights granted
towards minority groups, the treaty body structure of the ICERD and how the
ICERD could ensure better rights being achieved for the people in Tibet.
Statement of Problem
The statement of the problem is as
follows
The CERD has been instituted to
ensure that the nations that ratify the ICERD fulfil their obligations. However
this project will showcase the failure of the CERD in its actions pertaining
towards the human rights violations done in Tibet by the People’s Republic of
China. The work will also throw light regarding the reaction and conduct of the
CERD towards these violations and would prescribe possible measures to improve
the CERD.
Research
Questions
The research questions of this work
are as follows
? What was the relationship between the
Tibetan state and the various Chinese dynasties throughout history?
? What are the protection measures set
by the ICERD and CERD when it comes to the protection of human rights and the
fulfilment of human rights obligations?
? What are the various human rights
violations committed by China in Tibet under ICERD?
? What are the various measures taken
by the CERD to ensure the protection of human rights in Tibet?
? What are the inadequacies of the
Current Treaty Body Regime when it comes to the protection of human rights in
Tibet?
A Brief History of China and Tibet
Human habitation in the Tibetan
Plateau began approximately 5000 years ago with the existence of ruins near the
Chamdo region. The references from the Tang dynasty place that the reign of
modern Tibet was occupied by nomadic herdsmen and the pastoral Qiang tribes.[1] For
centuries these groups and tribes inter-married and lived in relative harmony
becoming the ancestors to modern Tibetans, a distinct and separate racial grouping
from the Chinese Han ethnicity. These tribal units and pastoral herdsmen soon
unified under minor principalities and kingdoms, culturally unified but
politically divided.
During the waning centuries of the
BCE and early centuries of the CE, countless kingdoms rose into prominence over
the region with the most famous being the Bod and Shangshung.[2] True
Tibetan statehood would be achieved when Namri Songsten united these kingdoms
and became the first king of Tibet in 602 CE ushering in the Imperial age which
would be continued until the year 842 CE.[3]
in the imperial era of Tibetan history, they were one of the foremost powers in
central asia. It was said that they were so powerful militarily and politically
that in 762 CE, they defeated China, seized the capital Chang'an and installed
a new puppet Emperor.[4] Their
several military victories led to the first China-Tibet Peace Treaty of
821 CE wherein China recognised Tibet as
an independent nation with its own inviolable sovereignty and territory.[5]
The Mongol era saw the fall of Tibet
from a sovereign state to a client starting a vassal. The difference was unlike
the Chinese whose empire was made into provinces of the Mongol Empire, Tibet
remained a vassal where a mongol official would be appointed to oversee
relations in a form of a feudalistic relationship.[6]
This was also the time that Kublai Khan gave full sovereignty over the three
provinces of Tibet which we can see as the next phase in Tibetan statehood.[7]
Furthermore, between the 1600 and the 1700s, Tibet was constantly involved in
the internal power struggles of the Chinese state as well as the Mongols tribes
in the vicinity.[8]
Both the Ming and Manchu eras saw a
revival of Tibetan Statehood. During the Yuan collapse and the rise of the
Mong, for about a hundred years, the Tibeteasn existed as an independent
sovereign state in central asia.[9] Even
during the Manchu period, while Chna repeatedly tried to annex the nation,
Tibeteasn recognized only their central administration in Lhasa as the legitimate
governor in the region.[10] At best
what one can gather is that in times of a weakening in Tibetan power and a
corresponding rise in Chinese authority, the Tibetan state will devolve into a
vassal of China but never a directly administered province or territory. This
can be highlighted by the Fifth Dalai
Lame establishing Tibet as an
independent state, the invasion of 1725 which made Tibet a tributary state and
the weakening of Chinese influence in the 1750s onwards with the Manchus
declining.
In the early 1900s, the Manchu state
had been in terminal decline and soon to be overthrown. They attempted one last
annexation plan of the Tibetan state but failed spectacularly only heralding
decades of Tibetan enmity and the resurgence of Tibetan independence until the
1950s.[11] between
1911 and the rise of the Chinese Communsit Party, Tibet had no foreign
influence plaguing its government, functioned as a sovereign state and was by
all accounts, a fully independent state.[12]
We can clearly see that throughout its history, Tibet had never become a
territory of the Chinese dynasties in any time throughout its history and was
always on the scale between either a tributary state or an independent nation.[13]
The situation escalated dramatically
when in 1949, the People’s Liberation Army of the new People’s Republic of
China, without provocation, invaded Eastern Tibet and occupied Chamdu.[14] Following
the invasion, the Chinese state issued what is called as the "17-Point
Agreement for the Peaceful Liberation of Tibet" to the Tibetan government
in May 1951. The delusion calls for the forcible annexation of Tibet with
China, total compliance by the Tibetan authorities, reorganisation of the
Tibetan military, creation of a social and cultural policy in line with the
diktats from the CCP.[15]
Under duress the Tibetan
administration was forced to sign an assent to this imposition. Its aftermath
saw the repression of the resistance movement in eastern Tibet with destruction of religious buildings and the imprisonment
of monks and other community leaders.[16]
This war is not the end of the Chinese atrocities. On the 9th of September 1951
thousands of Chinese troops marched into Lhasa. The forcible occupation of
Tibet was marked by systematic destruction of monasteries, the suppression of
religion, denial of political freedom, widespread arrest and imprisonment and
massacre of innocent men, women and children. By 1951 the state of Tibet, a
nation that had existed for centirueis and the homeland of millions ceased to
exist and its people were forced under a despitc regime begning an era of
terror that has never abated. Despite the existence of treaty body mechanisms
such as those provided by the ICERD and the existence of the CERD, the
situation of the indegenous people in Tibet continues to deteriorate.
ICERD
Article 1 of the convention defines
racial discrimination as
“any distinction, exclusion, restriction or preference based on race,
colour, descent, or national or ethnic origin which has the purpose or effect
of nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political, economic,
social, cultural or any other field of public life.”[17]
The International Convention on the
Elimination of Racial Discrimination (ICERD) in an international treaty that
strives to eliminate all forms of racial discrimination between individuals and
to promite a degree of understanding among people. ICERD was adopted in 1965
and came into force in the year 1969. China ratified the International
Convention on the Elimination of Racial Discrimination on the 29th of December,
1981.
Under the ICERD Regime, all states
who are states and thus considered as State Parties are under an obligation to
create, produce and submit reports to the CERD which clearly demarcate and
outline the legislative, judicial and policy measures taken by the party in
question with the intention to fulfil its obligations under the treaty. Every
state party is under the obligation to submit a report one year after
consenting to the ICERD and its ratification following which they should submit
similar reports every two years.[18]
Obligations and duties of the state
parties are usually enforced through the following few methods
?
State Reporting
All state parties are required and
obligated to submit a report within one year of ratifying ICERD. We have also
discussed that they should submit similar reports every two years as well.[19] Following
this report being submitted, the CERD will assess the situation, conduct
dialogue with the party regarding the situation of human rights and issue
recommendations through its Concluding Observations. After this, the CERD does
not leave the after alone but would
rather further check to request updates from the state party and may even
appoint a coordinator to work in cooperation with the nation’s rapporteurs in
order to provide CERD with proper up-to-date reports.[20]
?
Individual
Reporting
In addition to the system of state
reporting, the CERD will also accept individual reports or complaints from
citizens of a nation about a developing and possible CERD violation in that
nation. This is set under article 14 of ICERD. However the drawback is that the
state party must itself recognise the competence of the individual who is appearing
before CERD.[21] If no
such declaration of competency is made by the state party in question, then
CERD will not consider the complaint so made.
?
Inter-State
Complaints
Article 11 of the ICERD calls for the
power of Inter-State Complaints. Suppose a nation X is concerned with the
developing human right situation in nation Y, especially with regard to racial
discrimination or the violation of any of the other obligations under ICERD,
then the nation X has the power to call into question the situation in nation Y
before CERD. This can initiate a response from nation Y and if that response
does not satisfy nation X, then the cycle can repeat itself until the
negotiations provide a proper result. If arbitration does not prove successful,
one of the parties can reach out to the International Court of Justice and
request a ruling from them.[22]
?
Urgent
Interventions
We had briefly noted earlier that
CERD has in its arsenal the power to start
early-warning procedures. These are done to prevent any further
escalation of an existing situation of human rights violations under ICERD.
However this cannot be used for every single matter in an arbitrary manner.
Some situations which necessitate this measure are
1. the lack of an adequate basis for
defining and prohibiting racial discrimination in domestic legislation
2. inadequate enforcement mechanisms
3. an emerging pattern of racial
propaganda or appeals to racial intolerance made by other individuals.[23]
Once the CERD decides to undertake an
early-warning procedure or an urgent procedure, the Committee may make requests
to the state party involved to provide information, request the Secretariat to
collect information from the field offices of relevant organisations, and adopt
a decision that addresses specific concerns and recommends action.
State Parties and their obligations under CERD
Under the ICERD Regime, all states
who are states and thus considered as State Parties are under an obligation to
create, produce and submit reports to the CERD which clearly demarcate and
outline the legislative, judicial and policy measures taken by the party in
question with the intention to fulfil its obligations under the treaty. When a
state becomes a party to the treaty, they must undertake a declaration that
racial discrimination should be outlawed and that they pledge to abide within
the boundaries set by the Convention.[24]
The CERD comes into focus here. The
CERD is set up as an international Committee of experts appointed and chosen to
oversee the compliance of member states
who had ratified ICERD. As per article 8, CERD shall consist of eighteen
experts of high moral standing and acknowledged impartiality elected by States
Parties from among their nationals.[25]
Members are elected for about 4 years and half will retire every 2 years. This
is done so that there is a balance between the CERD composition and its
continuity.[26]
As per article 9, all state parties
must submit written reports to the CERD which would entail all necessary
information pertaining towards their progress in the implementation of ICERD.[27] CERD also
receives reports provided by United Nations agencies, national institutes of
human rights, and international and domestic NGOs which provides additional
perspectives regarding the situation of human rights in a nation.[28] basedon a
compilation of all these reports, the CERD cn get a basic idea of how human
rights us protected and whether racial discrimination is curtailed by the
government in question. Following this, the CERD will set out a list of
possible solutions and recommendations to the nation to implement so that the
ideal situation could be reached. Each state party who has assented and
ratified the ICERD must present this report.[29]
Furthermore, under its Early Warning and Urgent Action Procedure, CERD is also
authorised to address governments concerning matters brought to its attention
that are of an urgent nature.[30]
The articles 11, 12 and 13 provide
the viable jurisdiction to the CERD and allows this treaty body to consider
Communications given by one state party against another state party and allows
the CERD to take up appropriate action.[31]
As per General Comment 25, CERD has approved the recommendation that their
definition of protections towards individuals and groups would be interpreted
in a broad manner linking even those who are not explicitly named.[32] As per
General Comment 23, this would extend to blanket protection towards ‘indigenous
communities’ in every state party who has ratified.[33]
Their protections are further
elucidated under article 5 of the ICERD which expands the same towards right to
equality and equal treatment, protection against bodily harm or violence, civil
rights, freedom of movement, thought, opinion, assembly, social and cultural
rights, employment, equal participation in cultural activities, equal access to
services and so on.[34] The onus
to ensure that these rights and protections are guaranteed is placed on the
state party in question which has to ensure these are upheld in their
jurisdictions through prompt investigation, fair trials and tribunals, equal
access to justice and proper prosecution.[35]
Further, article 2 (1) (c) requires States to nullify any law or practice which
perpetuates racial discrimination.[36]
CERD has enunciated in General Recommendation 14 that when it comes to the
determinants of whether an action or law by a state is violative of ICERD, the
law or action in question must have an unjustifiable and disproportionate
adverse effect on a group of people who are so facing this situation due to
their race, descent, colour, national or ethnic origin.[37]
States who have ratified the ICERD
are obligated to follow through on their treaty body obligations. The
ratification ensures that the treaty is now binding to the state. As such,
since China ratified the treaty in 1981, the obligations that so arise from
article 5 and 6 are now binding on the Chinese state. This would extend to the
right to equality and equal treatment, protection against bodily harm or
violence, civil rights, freedom of movement, thought, opinion, assembly, social
and cultural rights, employment, equal participation in cultural activities,
equal access to services and so on.[38]
Under article 6, the onus to ensure that these rights and protections are
guaranteed is placed on China who must ensure that these rights are upheld in
their jurisdictions through prompt investigation, fair trials and tribunals,
equal access to justice and proper prosecution.[39]
No state is supposed to sponsor,
protect or even support any action of racial discrimination in any way and
states msut act in such a manenr that any and all alws in their jurisdicitons
that eorpetuate racial discrination either dierclty or indierclty are
repudiated. Adding to this, states are required to take up concrete measures
for achieving the goals of the CERD and its recommendations and not merely
providing assurances.[40]
As per article 2 (2) of the ICERD,
all state parties are mandated under the treaty body to take up special
measures to eliminate any de jure, de facto and substantial discrimination.
Adding on to this, in the process of eliminating possible discrimination, the
state must assess the historical context of suffering these people have faced
and develop programs to alleviate their situation. ‘CERD through its General
Recommendation 32 even called for the state parties to desegregate their data
collection in such a manner that the data should measure the socio-economic and
cultural status of various groups and their participation in the political and
economic development of the country in question.[41]
Critical
analysis of the success of ICERD
and CERD in China
We have briefly discussed the
protections instituted by the ICERD and the role both the state party as well
as the CERD must play in its enforcement. In this section we will briefly look
into the current situation in Tibet and hold it against what the CERD has done
and its impact. First and foremost, before we move to the violations done by
the chinese state, we must realise that the People’s Republic of China had
ratified the ICERD and are thus bound by the obligations of the treaty body.
Additionally, As per General Comment 25, CERD has approved the recommendation
that their definition of protections towards individuals and groups would be
interpreted in a broad manner linking even those who are not explicitly named.[42] As per
General Comment 23, this would extend to blanket protection towards ‘indigenous
communities’ in every state party who has ratified.[43]
This will thus mean that Tibetans being an indigenous minority in China who are
from the Tibetan Plateau are protected under ICERD. Merely because they are not
explicitly mentioned does not repudiate any protection that they are entitled.
Currently we will briefly discuss the
CERD violations happening in Tibet.
?
ICERD
Violations in Tibet
Starting from 1959 itself, most
Tibetan have found their right to freedom of expression be curtailed the moment
the chinese regime overthrow the Dalai Lama and his peaceful cabinet. A popular
uprising inn1959 saw around 87000 Tibetan executed and widespread persecution
of Tibetans on their culture and religion with their religious structures were
all torn down.[44]
1. Economic and Political Situation
China boasts of huge investment in
Tibet but its economic development is primarily intended to cement its hold on
Tibet and enhance its ability to exploit Tibet’s natural resources. While some
argue that economic development has improved conditions for some Tibetans, the
reality is that the system and infrastructure built in the region
overwhelmingly favours Chinese migrants, continuing to disadvantage Tibetans
economically.[45] This
exclusion is not slowly spreading to political institutions as well which is a
direct violation of article 5 (c) of the ICERD.[46]
Thousands of Tibetan people are arrested on a yearly basis for each and every
protest with 4000 being estimated as a major indicator as per Amnesty
International.[47] Adding to
this, as per Human Rights Watch, many of the community leaders of the Tibetan
people are being detained without charges for an exorbitant long period of time
simply because they were Tibetan.[48]
Attitude towards Tibet further
intensified in the aftermath of the Tiananmen Square incident and the brutal
methods China employed to suppress dissent.[49]
As per the recent Freedom House Report of 2021, there are also many instances
where Tibetan people are terminated from their employment due to their ethnicity.[50] The Chinese state has forcibly caused
disruption towards the employment of the Tibetan people purely on the basis of
their race and religion. All these are evidence of direct violations of article
5 (e)(1) of the ICERD. The forced moment or the restriction of their movement
beyond Tibet had also been recorded by CERD in their Concluding observations on
the combined fourteenth to seventeenth periodic reports of China (including
Hong Kong, China and Macau, China).[51]
This is because they have forced millions
of Tibetan nomads to leave pastures, sell their livestock and forcibly be
deported to the cities without consent, proper remuneration or without any
prospect of future employment.[52] The lack
of proper civilian infrastructure and the brutal Chinese restrictions have
created a situation where the indigenous people are totally dependent on China.
Some reports showase the horrors in Tibet where decades of government
discrimination have led to widespread poverty and oppression with scarcity of
food compelled Tibetans to feed on grass and other inedible meterial to get
sustenance. Only about 5% of the Tibetan population survived around 1958.[53] This is
not only problematic towards the employment opportunities of the Tibetans but
is also a violation of article 5 (d) (i), the right to reside within the border
of the state.[54]
2. Education and Schooling
When it comes to matters of education
and schooling, here also there is discrimination. Education is primarily taught
in the Chinese language. This is a major cause of disadvantage for the Tibetans
who can only learn their mother tongue as a second language in their own land.[55] This had
even been attested by CERD in their report in 2018.[56]
Language is a part of the culture of a nation. The restriction of language or
vernacular education is a restriction on the people from properly accessing
their culture. This restriction however as we can see is imposed on the Tibetan
people purely because they are of the Tibetan ethnicity and race. This is a
violation of article 5 (e) (vi) of the ICERD.
Chinese lessons also showcase a lie
that Tibet was a barbarian land before China and the CCP stepped in to civilise
the nation.[57] This
dissemination of false history is done to ensure that the Tibetan never realise
their true culture nor will they ever feel as if not practising is a violation
of their rights under ICERD. Adding on to this, Freedom House reports in 2021
that in many cases, Tibetan children are not given adequate education
facilities. In many cases, the Chinese school authorities are utilising
harassment and coercion methods to pressure Tibetan parents into allowing the
indoctrination of their children and this is combined with the expulsion of
those who do not comply.[58]
3. Government Intervention on Health
Adding to the situation of government
restrictions on movement, expression, education and employment, this is also
forced government intervention in the health of the individual which is also
leaving it possible bodily harm. This is the forced sterilisation policies of
the government on the Tibetan people simply due to their race.[59] This also leads to a chance of bodily harm
towards the individual. Worst of all, this instance or situation of possible
bodily harm is due to the government discrimination of the Tobeteans based on
their race.
4. Religious Freedom
Under Article 18 of the ICCPR, all
states are to provide a minimum standard of religious freedom for all persons.
While China did assent to ICCPR, they did not ratify it. The ICCPR states that
the right to freedom of religion includes the right to adopt any faith and to
practise it without government intervention.[60]
As pe the UNGA Resolution 36/35 This further steps up to the right to
congregate, establish places of worship, write and speak religious messaging,
publish relevant theological documents, set up religious institutions and train
and allow the continuation of one's faith along with the observance of religious
holidays or days of worship.[61] ICERD
further stipulates that there must be protection under article 5 (d) (vii) that
there is a right to faith and religion which must not be refused to people on
the basis of their race.
However the US State Department had
reported that China is currently trying to interfere in the training of
religious leaders and the monks, interfering on what is theology and religious
in the eyes of the Tibetan and is also setting up restrictions on how the
religion can be practised.[62] During
the cultural revolution, the Tibetan monastic population was eliminated by 93
percent over a long period of indiscriminate killing. The religious
institutions of the Tibetan people were destroyed with 6000 monasteries being
demolished which constitutes around 90 percent of all the monasteries in Tibet.[63] Draconian
rules still exist today about how the laws in China do not allow the Tibetan to
venerate their faith freely simply on account of their ethnicity as Tibetans.
In the Concluding observations on the combined fourteenth to seventeenth
periodic reports of China (including Hong Kong, China and Macau, China), CERD
found that there is a great amount of criminalization of peaceful religious
expression in Tibet.[64] The
racism and rampant discrimination is so bad that since March 2011, more than
150 people have set themselves on fire inside Tibet in protest against China’s
repression with 2 confirmed this year.[65]
?
CERD
measures to alleviate Tibetan Situation
In the aftermath of such blatant
violations, some going back decades, it is imperative that CERD take adequate
action on the matter and thoroughly investigate the same. In the Report of the
Committee on Elimination of Racial Discrimination, in its Concluding
Obersations in 1991, the CERD held that there is a degree of
discrimination in the region with how
Tobeteans are treated when compared to chinese in the region. The report
specifically pointed out the matters of employment, education, restriction on
freedom of movement and opinion and so on.[66]
The CERD has asked the state to look into the matter, formulate police that
prevent discrimination on any grounds
that have been stated earlier and strive to remove the discrimination.
Follwing this, in 1996, in the
Concluding Observations of the Committee on the Elimination of Racial
Discrimination, CERD stated that there is a great deal of consent owards how
minroties espacially ethnic minsotties are treated in China such as the
Tibetans. The concern was mostly expressed towards matters such as culture and
religious freedom.[67] This
report also expressed its concerns that the history, culture and language of
the minority groups such as the Tibetans are not being taught adequately enough
and that they are being sidelined.[68]
In a subsequent follow up report, CERD
expressed concern regarding the ‘re education’ camp where all instances of
torture and violence have been perpetuated. The CERD recommended that
“application of administrative detention and “reeducation through labour”
is used restrictively and subject to full judicial control in line with
international human rights standards”[69]
However despite these reports the
Chinese state is completely adverse towards any form of change. Despite the
recommendations by the CERD, the Chinese state refuses to make any changes.
These are ranging in concluding observation from the 1990s till these recent
follow ups. What is unfortunate is that throughout its long history, CERD has
not done much for the Tibetan people. In fact, ever since China ratified ICERD,
over the past 40 years, only 3 Concluding Observations and 2 follow ups have
ever been issued in which Tibet was mentioned. In almost all instances and
cases, the recommendation by any and all treaty bodies were rejected by the
Chinese state whose assets that's human rights are respected in the contested
regions.[70]
There has not even been any emergency
interventions done by the CERD despite the Chinese state fulfilling 2 of the
situations under the measure, ie, inadequate enforcement mechanisms of the
ICERD and an emerging pattern of racial propaganda. In fact the situation is so
deplorable that it is no longer an emerging situation but rather an established
situation of racial propaganda. This is pertaining to the fale history of Tibet
and the schools teaching that Tibetans are barbarians before the Chinese
invasion.
Recommendations
To improve the current CERD system,
what we need to do is to revamp the entire treaty body system present today.
The issue is that ICERD on paper provides a stable framework for protection of
rights of all racial minorities. The problem emerges due to the lack of
implementation from the side of the nations. Comparing that with the lack of
enforcement mechanism, this is not particularly theoretical. Philosophical
issue or any problem with the principles but rather a structural issue. There
are inherent structural issues in the CERD that prevent the total
implementation of the rights it enshrines. Thus if changes are to be made,
there must be recommendations for the overhaul of the CERD structure. The
following are the possible recommendations done for the same.
?
Ad
hoc committee
Some of the main concerns with the
entire Treaty Body system is that in most cases, there is a structural defect.
In this current system of the nine important treaty bodies, there is a great
backlog of reports.[71] As the
years go by, the number of complaints that come in the backlog increases. This
leads to a situation of total inefficiency and delay in the entire structure.
For instance, in this Tibetan case, concluding remarks in the 1990s only had a
follow up in the 2010s. This is a definition of total backlog and delay in the
treaty body system. This must change. The system must be revamped in such a
manner that the issues are dealt with faster. The best way would be to delegate
the duties to lesse ad hoc committee chosen for this specific purpose. The
members of these ad hoc committees can be up to 5 members with 2 being
appointed by the CERD itself and the other 2 by each of the contesting parties.
The head of the committee of 5 would be a member of the CERD. Since the CERD
has around eighteen members, half could sit as heads of ad hoc committees which
will look into matters off petitions presented before them. The ad hoc
committees are set to ensure the rapid dealing of the reports and the matters
of grave interest. They will handle all the cases that come before them
pertaining to petitions.
?
Lack
of support from UN Bodies
While the treaty body system that we
follow today owes a great deal of its legitimacy towards the UN and the consent
of the nations ratifying it, the fact is that there is a total lack of support
from the UN regarding the implementation of the recommendations of these
bodies.[72] Take CERD
for instance and its recommendations towards China about Tibet. The UN did
nothing when it came to the implementation of these recommendations. With the
CERD primarily a consent based model with more power to the state party and the
entire obligation of their being implemented only at the magnanimity of the
state, China refused and everything was for naught. If the treaty body
system needs a long term sustenance, it
requires more support from the other UN bodies, especially the General Assembly
and the Security Council in passing resolutions backing the CERD.
?
Lack
of an Enforcement Mechanism
The fundamental problem of treaty
bodies is that they are based primarily upon dialogue, cooperation and the
willingness of the state party in the implementation of its obligations. This
is something that jeopardises the long term sustainability of the treaty body. States are far less willing to engage with
protection activities because they impact upon the immediate situation within a
country. And a key weakness of UN human rights bodies is that, while they are
set up for dialogue and engagement, they lack the teeth to effectively protect
rights where a state is not willing to cooperate.[73]
if a state party refuses to cooperate, there is nothing any of these treaty
bodies can do to effectively ensure its implementation. Thus the core
requirement would be the institution of an enforcement mechanism.
This is where the ad hoc committee
can also come into focus. The ad hoc committees are set to ensure the rapid
dealing of the reports and the matters of grave interest. They will handle all
the cases that come before them pertaining to petitions. Of the remaining 9
experts, a few can be instituted in what would become an internal judicial
system akin to the ICJ. This system would have two layers of court system in
it.
The lower rung will be filled with 6
courts which will handle arbitration matters and state party violations. These
violations will come to the judicial system only if the ad hoc committee is
unable to solve the matter. The lower rung of judges will be chosen by the CERD
itself. No national interest or partisan attitude is permitted and as such no
nation is allowed to play any role in the appointment of these judges. Once a
verdict is rendered, there is a possibility of appeal to the next level. This
would be the final court of appeal. This would be a court of 3 members of the
CERD chosen from the 9 who are not appointed to head ad hoc committees. These 3
will decide on the case and render a binding judgement.
The nation will have to follow the
verdict else there will be consequences. The consequences for the violation of the
verdict of the court or the non implementation of the CERD recommendation would
be the declaration of theperpetrators as human rights violators who are bound
to be arrested under law the moment they enter into a state party of the treaty
body. In the ICTY judgments, especially those of Krsti?, Muci? et al and
Kunarac et al, those held responsible were the leaders who were in charge of
the camps, leaders of the military and the highest officer present.[74] thus, the
main perpetrators will be those commanders
and camp heads who undertook or authorised the human rights violations. The
perpetrators will be given a chance to present their case before the full 18
member body of CERD once following which a decision will be made on their
culpability.
The goal of the current global
community is to reach such a situation that the rights of man cannot be
silenced by any individual or state. The global community should strive to
reach the level of understanding where every perpetrator no matter his rank may
be held responsible for the crime they oversee. That is the future one must
work for.
Conclusion
In conclusion, we must realise that
the treaty body system of the modern era is a very fragile state of global
order. They are heavily dependent on the individual nations and their role in
its implementations. The moment the state party pulls out, the entire process
comes crashing. This is what happened with China. What one can do is ensure
that the system in place is effective and that the system is ready to handle
violations expediently. Until then, this would remain a toothless tiger and
only further destroy the reputation of our democratic world order.
[1] Victor C. Falkenheim, "Tibet", Encyclopedia Britannica, available at https://www.britannica.com/place/Tibet (last visited on November 29, 2022).
[2] “Glimpses on History of Tibet”, Central Tibetan Administration , available at https://tibet.net/about-tibet/glimpses-on-history-of-tibet/ (last visited on November 29, 2022).
[3] “Timelines of Tibet's History”, Free Tibet, available at https://freetibet.org/freedom-for-tibet/history-of-tibet/tibets-history-timelines/ (last visited on November 29, 2022).
[4] Id.
[5] Id.
[6]
“Tibet: Disunity, 9th to 14th Century”, Encyclopedia Britannica, available at https://www.britannica.com/place/Tibet/Disunity-9th-to-14th-century (last visited on November 29, 2022).
[7] Supra note
2.
[8] “Tibet profile - Timeline”, BBC, November 13, 2014, available
at https://www.bbc.com/news/world-asia-pacific-17046222 (last visited on November 29, 2022).
[9] Supra note
6.
[10] Supra note
2.
[11] “Tibet since 1900”, Britannica, available at https://www.britannica.com/place/Tibet/Tibet-since-1900 (last visited on November 29, 2022).
[12] “Learn a Little About Tibet”, Britannica, available at https://www.umass.edu/rso/fretibet/education.html (last visited on November 29, 2022).
[13] “The 17-point Agreement – What China promised, what
it really delivered and the future?”, Central
Tibetan Administration, May 23, 2019, available
at https://tibet.net/the-17-point-agreement-what-china-promised-what-it-really-delivered-and-the-future-2/ (last visited
on November 29, 2022).
[14] Supra note
2.
[15] The Agreement on Measures for the Peaceful Liberation
of Tibet, 1951, art. 2, 7, 8, 15.
[16] “Learn a Little About Tibet”, Official Students for a Free Tibet Website, available at https://www.umass.edu/rso/fretibet/education.html (last visited on November 29, 2022).
[17] International Convention on the Elimination of Racial
Discrimination, 1969, art. 1.
[18] Id.
[19] Id.
[20] “Committee on the Elimination of Racial
Discrimination”, International Justice
Resource Center, available at https://ijrcenter.org/un-treaty-bodies/committee-on-the-elimination-of-racial-discrimination/ (last visited
on November 29, 2022).
[21] International Convention on the Elimination of Racial
Discrimination, 1969, art. 14.
[22] Id.
[23] Id.
[24] Gay McDougall, "International Convention on the
Elimination of All Forms of Racial Discrimination", Audiovisual Library of International Law, December 21, 1965, available at https://legal.un.org/avl/ha/cerd/cerd.html (last visited on November 29, 2022).
[25]International Convention on the Elimination of Racial
Discrimination, 1969, art. 8
[26]Committee on the Elimination of Racial Discrimination,
available at https://ijrcenter.org/un-treaty-bodies/committee-on-the-elimination-of-racial-discrimination/ (last visited
on November 29, 2022).
[27]International Convention on the Elimination of Racial
Discrimination, 1969, art. 9
[28] Id.
[29] “The International Convention on the Elimination of
All Forms of Racial Discrimination (ICERD)”, Australian Human Rights Commission, available at https://humanrights.gov.au/our-work/race-discrimination/international-convention-elimination-all-forms-racial-discrimination (last visited on November 29, 2022).
[30] Id.
[31] International Convention on the Elimination of Racial
Discrimination, 1969, art. 11, 12, 13.
[32]UN Committee on the Elimination of Racial
Discrimination, General Recomendation
XXV. On Article 4, paragraph 1, of the Convention on the Elimination of All
Forms of Discrimination against Women, on temporary special measures, CERD/C/GC/25,
UN Doc A/52/18 (September 26, 1997).
[33]UN Committee on the Elimination of Racial
Discrimination, General Recomendation
XXIII, Rights of Indegenous People, UN Doc A/52/18 (March 20, 2000)
[34] Id., art.
5.
[35] Id., art.
6.
[36] Id., art.
2(1)(c).
[37] UN Committee on the Elimination of Racial
Discrimination, General recommendation
XIV on article 1, paragraph 1, of the Convention, UN Doc A/48/18 (
September 15,1993).
[38] International Convention on the Elimination of Racial
Discrimination, 1969, art. 6.
[39] Id.
[40] Supra note
24.
[41]UN Committee on the Elimination of Racial
Discrimination, General Recomendation
XXXII. The meaning and scope of special measures in the International
Convention on the Elimination of All Forms Racial Discrimination,
CERD/C/GC/32 (September 24, 2009).
[42]UN Committee on the Elimination of Racial
Discrimination, General Recomendation
XXV. On Article 4, paragraph 1, of the Convention on the Elimination of All
Forms of Discrimination against Women, on temporary special measures, CERD/C/GC/25,
UN Doc A/52/18 (September 26, 1997).
[43]UN Committee on the Elimination of Racial
Discrimination, General Recomendation
XXIII, Rights of Indegenous People, UN Doc A/52/18 (March 20, 2000)
[44] “Learn a Little About Tibet”, Official Students for a Free Tibet Website, available at https://www.umass.edu/rso/fretibet/education.html (last visited on November 29, 2022).
[45] Supra note
3.
[46] International Convention on the Elimination of Racial
Discrimination, 1969, art. 5(c).
[47] Amnesty International, People’s Republic of China -Tibet Autonomous Region: A year of
escalating human rights violations 1-5 (2009).
[48] “Relentless Detention and Prosecution of Tibetans
under China’s “Stability Maintenance” Campaign”, Human Rights Watch, available
at https://www.hrw.org/report/2016/05/22/relentless/detention-and-prosecution-Tibetans-under-chinas-stability-maintenance (last visited on November 29, 2022).
[49]Philip Baker, “Human Rights, Europe and the People's
Republic of China” 169 The China
Quarterly 45-63 (2002)
[50] “China: Freedom in the World 2021 Country Report”, Freedom House, available at https://freedomhouse.org/country/china/freedom-world/2021 (last visited on November 26, 2022).
[51] Committee on the Elimination of Racial
Discrimination, Concluding observations
on the combined fourteenth to seventeenth periodic reports of China (including
Hong Kong, China and Macao, China), CERD/C/CHN/CO/14-17 8 (August 30,
2018).
[52] “Land and Environment”, Free Tibet, available at https://freetibet.org/freedom-for-tibet/land-and-environment/ (last visited
on November 29, 2022).
[53] Neha Pande, "Documentaries on Tibet and Human
Rights Violations: A Study" 6 Journal
of Content, Community & Communication 85-91 (2017).
[54] Enze Han and Christopher Paik, "Dynamics of
Political Resistance in Tibet: Religious Repression and Controversies of
Demographic Change" 217 The China
Quarterly 69-98 (2014).
[55] “China’s Lies”, Free
Tibet, available at https://freetibet.org/freedom-for-tibet/occupation-of-tibet/chinas-lies/ (last visited
on November 29, 2022).
[56] Committee on the Elimination of Racial
Discrimination, Concluding observations
on the combined fourteenth to seventeenth periodic reports of China (including
Hong Kong, China and Macao, China), CERD/C/CHN/CO/14-17 8 (August 30,
2018).
[57] Sudeep Basu, "Interrogating Tibetan Exilic
Culture Issues and Concerns" 61 Sociological
Bulletin, 232-254 (2012).
[58] “China: Freedom in the World 2021 Country Report”, Freedom House, available at https://freedomhouse.org/country/china/freedom-world/2021 (last visited on November 26, 2022).
[59] Id.
[60] International Convention on the Elimination of Racial
Discrimination, 1966, art. 18.
[61] United Nations Declaration on the Elimination of All
Forms of Intolerance and of Descrimination Based on Religion or Belief G.A.
res. 36/55, 36 U.N. GAOR Supp (No. 51) at 171, U.N. Doc A/36/684 (1981).
[62] China's disregard for Human Rights, US Department of State, available at https://2017-2021.state.gov/chinas-disregard-for-human-rights/index.html#SevereRestrictionsonFreedomsinTibet (last visited on November 26, 2022).
[63] Peter Dziedzic,” Religion Under Fire: A Report and
Policy Paper on Religious Freedom in Tibet" 38 The Tibet Journal 87-113
(2013).
[64] Committee on the Elimination of Racial
Discrimination, Concluding observations
on the combined fourteenth to seventeenth periodic reports of China (including
Hong Kong, China and Macao, China), CERD/C/CHN/CO/14-17 7 (August 30,
2018).
[65] “Self-Immolation Protests - Tibetan Resistance”, Free Tibet, available at https://freetibet.org/freedom-for-tibet/Tibetan-resistance/self-immolation-protests/ (last visited on November 26, 2022).
[66] Committee on the Elimination of Racial
Discrimination, Concluding observations
of the Committee on the Elimination of Racial Discrimination on State Parties,
33, A/45/18 (January 30, 1991)
[67] Committee on the Elimination of Racial
Discrimination, Concluding observations
of the Committee on the Elimination of Racial Discrimination People's Republic
of China, 3 CERD/C/304/Add.15 (September 27 1996)
[68] Id.
[69] Committee on the Elimination of Racial
Discrimination, Information received from
the Government of the People’s Republic of China, including the Hong Kong
Special Administrative Region, on the implementation of the concluding
observations of the Committee on the Elimination of Racial Discrimination,
CERD/C/CHN/CO/10-13/Add.1 3 (January 24, 2011)
[70] Björn Ahl, "The Rise of China and International
Human Rights Law" 37 Human Rights
Quarterly 637-661 (2015)
[71] Geneva Academy of International Humanitarian Law and
Human Rights, Fundamental challenges of
the UN human rights treaty body system, available
at https://www.geneva-academy.ch/joomlatools-files/docman-files/Research%20documents/Background%20Paper%20English.pdf (last visited
on November 26, 2022).
[72] Id.
[73] Rosa Freedman, "Failing To Protect: Systemic
weaknesses within the UN human rights machinery", Universal Rights Group Geneva, July 7, 2014, available at https://www.universal-rights.org/blog/failing-to-protect-systemic-weaknesses-within-the-un-human-rights-machinery/ (last visited on November 26, 2022).
[74] “Landmark Cases”, International
Criminal Tribunal for Yugoslavia, available
at, https://www.icty.org/en/features/crimes-sexual-violence/landmark-cases (last visited on November 26, 2022).