NOVEMBER 16 — This article is not going to be the answer to the question of whether Malaysia should ratify the heatedly debated International Convention on the Elimination of All Forms of Racial Discrimination, also known as ICERD.
But this is definitely a response towards those who suggest a “ratify now, think about the consequences later” approach. It is also a definitive reminder to those who contend the idea of joining ICERD, but putting in reservations so as to avoid Malaysia from having to comply with certain “inconvenient” or “undesirable” provisions in the treaty.
When a state ratifies any international human rights treaties, it assumes a legal obligation to implement the rights recognised in that treaty. In international human rights law, state responsibility is strict in that states are responsible for violations of their treaty obligations even where they were not intentional.
The ratifying state must conform to all the obligations laid down in the human rights treaty, and cannot generally avoid them without a strong and valid justification. Article 26 of the Vienna Convention on Law of Treaties 1969 states that, “Every treaty in force is binding upon the (state) parties to it and must be performed by them in good faith.”
This sacrosanct doctrine otherwise known as pacta sunt servanda underpins the entire system of treaty-based relations between sovereign states. In simple words, it refers to the rule that a state party to any treaty MUST keep its promise, and cannot invoke provisions of its domestic law as a justification for a failure to perform its treaty obligations.
The cardinal value of pacta sunt servanda as a principle of international law has been universally recognised by all states throughout centuries. Originally based on customary practice among states, it was later even incorporated into the previous Covenant of the League of Nations and the present Charter of the United Nations, although neither document referred to the principle by name.
According to Professor JF O’Connor, the principle of good faith in international law is a fundamental principle from which other legal rules related to honesty, fairness and reasonableness are derived. Good faith implementation is essential in the world of human rights. Without this principle, no serious enactment of human rights treaties is ever possible.
The reality about international human rights law is that there is no central police or compulsory judicial authority that can control all the sovereign states in the world. Given the lack of effective international enforcement mechanisms in the human rights world, the pacta sunt servanda obligation in substantive reality is vital.
To enter into a treaty, with no serious intention to perform the obligations attached is dishonourable. To enter into it with the intention to enter any reservations that directly contradicts the object and purpose of the treaty is abominable.
In the past, there have been numerous instances when human rights instruments remain a dead letter, even when solemnly ratified in the eyes of the international community. India, Sri Lanka and Cambodia have all ratified many international instruments, but have so far still failed to protect human rights in practice, sacrificing them to internal security needs or allowing the system of law and justice to be corrupted by impunity.
This is the reason why when a state chooses to become a member to any humanrights treaty, it must do so with good faith. By ratifying a treaty, a state is actually, voluntarily undertakes to put in place, domestic measures and legislation compatible with its treaty obligations.
In the context of ICERD, the International Movement Against All Forms of Discrimination and Racism (IMADR) has clarified that the Convention requires all of its member states to have legislation that clearly and specifically prohibits racial discrimination and related acts.
It also demands further concrete action in the judiciary and administration, as well as in the fields of culture, education and information. A state party is deemed NOT to be fulfilling its obligations under the Convention merely by condemning racial discrimination.
An example of this is in relation to Argentina where the ICERD committee in its Concluding Observations in 2010, pointed out that racial discrimination has not yet been defined as an offence in Argentinian domestic law in accordance with the Convention. Hence, the Committee recommended for Argentina to make every possible effort to have racial discrimination defined as an offence under its law.
In its Concluding Observations on Indonesia in 2007 [CERD/C/IDN/CO/3] (Para 356), the Committee instructed the State party to adopt a comprehensive law that takes into consideration ALL elements of the definition of racial discrimination provided in article 1 of the Convention, and that guarantees the enjoyment of all rights enumerated in article 5 of the Convention.
The Committee also called for a more detailed information on measures adopted to ensure all domestic laws complies with the Convention.
The after effect of ratifying also include many other significant changes such as numerous modifications to government policies, excessive training of government officials, not to mention the need to establish effective systems of data collection for the purpose of complying with the periodical reporting obligations to the treaty committee.
In General Recommendation No. 5 (Preamble: 3rd para), the ICERD committee stressed on the binding nature of all the obligations listed under article 7 of the Convention, and that all States parties are required to include information on their implementation of the provisions of that article in the reports they submit in accordance with article 9, paragraph 1, of the Convention.
An example could be found in the committee’s Concluding Observation on Finland [CERD/C/FIN/CO/20-22], where it highlighted and disapproved of Finland’s legislation that deflected the collection of statistical data based on race or ethnicity, and the absence in Finland’s report of recent reliable and comprehensive statistical data on the composition of its population disaggregated by ethnicity, indigenous peoples, other minority groups and immigrants living in the territory of the State party.
Signature and ratification of conventions are not the same thing as fidelity to them. The absence of any real prospect of enforcement makes it feasible for some governments to ratify agreements they cannot keep. These by the end of the day run counter to the actual purpose of the human rights treaty monitoring system.
Ratifying a treaty without an earnest intention to abide by it simply violates the principle of good faith. As rightly pointed out by Amnesty International, ratification is a solemn indication of a government's commitment to safeguard and uphold human rights.
It gives assurance that it will be subjected to a continuing international obligation to guarantee specific and fundamental human rights, no matter who is in power.
Ratification of international human rights instruments marks the beginning of a process, not the end. It will be a long, tedious and costly process.
With our new government constantly raising the issue of financial constraints left by the previous administration, can we afford to do this now? Entering for the sake of entering will just not do.
* Shahrul Mizan Ismail is associate professor of human rights law, Faculty of Law, Universiti Kebangsaan Malaysia
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
