ICERD: A treaty that’s less than air tight

Malaysia is among a handful of countries (shown in red) that have neither signed nor recognised the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

PETALING JAYA: With loud protests coming from Malay and Muslim groups against Malaysia’s possible ratification of a convention against racial discrimination, it is perhaps easy to forget that many non-Muslim-majority countries also have reservations against sections of the treaty although they have signed it.

Switzerland and Monaco, for example, have reserved the right to apply their own legal principles on the entry of foreigners into their labour markets, and Britain does not regard its immigration laws as constituting any form of racial discrimination.

Israel, China, India, Vietnam, Thailand and Cuba are among the countries that don’t consider themselves bound by a provision that allows disputes over the interpretation of the convention to be referred to the International Court of Justice.

Antigua and Barbuda, the Bahamas, Barbados, Fiji, Nepal, Papua New Guinea, Thailand and Britain interpret the pact as creating an obligation to enact measures against hate speech only when the need arises.

Indeed, reservations to parts of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) are allowed as long as they are not “incompatible with the object and purpose” of the treaty.

ICERD was adopted at the United Nations General Assembly in 1965. Malaysia is one of the few countries that have yet to sign the treaty. This is mainly due to concerns that doing so will contravene the Federal Constitution’s Article 153, which forms the basis for affirmative action policies benefiting Malays and other Bumiputeras.

Parties to ICERD are in fact allowed – “when the circumstances so warrant” – to use “positive discrimination policies” for specific racial groups to guarantee “the full and equal enjoyment of human rights and fundamental freedoms”.

However, the treaty obliges signatories to “pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms”.

Several countries share Malaysia’s concerns over indigenous rights, but have nevertheless become members of ICERD. Examples are Tonga and Fiji, which reserve the right to alienate land held by indigenous citizens.

Malaysia also sticks out like a sore thumb among the Organisation of Islamic Cooperation countries, most of which have ratified the convention with reservations.

Prime Minister Mahathir Mohamad has told the Malaysian public that his government hopes to ratify ICERD after consultation with “all communities”. The statement was not very different from one he made last September at the UN General Assembly. He said then that Malaysia would ratify all remaining UN conventions, but only after thorough deliberations.

Other UN rights treaties that Malaysia has yet to sign are the covenants on Civil and Political Rights; on Economic, Social and Cultural Rights; on the Protection of the Rights of All Migrant Workers and Members of Their Families; on the Protection of All Persons from Enforced Disappearance; on the Status of Refugees; and on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

ICERD was brought under the spotlight in the Dewan Rakyat last month when Umno’s Khairy Jamaluddin mentioned its incompatibility with the Federal Constitution.

Some members of the Mahathir administration, such as Syed Saddiq Abdul Rahman, have called for the rejection of ICERD if it is found to undermine the monarchy, the position of Islam and other constitutional provisions.

P Waythamoorthy, a minister in the prime minister’s department who supports ICERD ratification, has said he believes the treaty does not contravene the constitution. He told FMT recently that he didn’t consider affirmative action to be wholly a form of racial discrimination.

Last Thursday in Geneva, the Malaysian delegation at the third Universal Periodic Review by the United Nations, reaffirmed the government’s decision to consider ratifying ICERD and all other UN rights treaties. - FMT