THE International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is almost 50 years old. It was opened for signature in 1965 and came into force after its 27th ratification.
Today, 179 countries are parties to the convention; fewer than 20 are not. Malaysia never signed, nor ratified it. At this point, we can only accede to it.
The provisions of the convention, in particular Article 5, require state parties to prohibit and eliminate discrimination based on race, colour, descent, and national or ethnic origin in the enjoyment by all persons of civil, political, economic, social and cultural rights and freedoms.
Article 4 of the convention condemns propaganda and organisations that attempt to justify discrimination. Specifically, it obliges state parties to criminalise hate speech, hate crimes and the financing of racist activities.
Today, this half-century-old convention is but a framework instrument. Through agreements made at several of its Review Conferences, its obligation has extended to include discrimination against not only race, but non-citizens, refugees, displaced persons, caste and indigenous people. The 2009 General Recommendation of the Committee (GR 30) of ICERD, for example, calls for the non-discrimination of groups of non-citizens with regard to access to citizenship or naturalisation, and to pay due attention to possible barriers to naturalisation that may exist for long-term or permanent residents.
There is a whole process that goes on before a treaty becomes a treaty, most notably a negotiation process in which people argue, cajole, and ultimately threaten each other in pursuit of their own national interests.
Clever countries always participate in such negotiations in order to shape the treaty itself; being a party to it is secondary. The United States, for example, never leaves its seat empty at negotiations even when it does not intend to sign on to a treaty. Just look at the negotiations on the Rome Statute and the UN Convention on the Law of the Sea where the US argued every paragraph and then only decided that the end result was not to its liking.
The new Malaysia wants to accede to ICERD. But Malaysia never took part in the debates that led to its creation and its subsequent extended role. Because Malaysia was never a part of the process, we were not in control of what it has become.
Acceding to an international convention means accepting certain responsibilities. While signing a convention merely shows a statement of intent, ratifying requires a state to do more. At home, Malaysia would have to put in place a related law that mirrors the ICERD.
In some instances, such as the Convention on the Prevention of Chemical Weapons, it has to set up a National Secretariat to monitor the implementation of the obligations required of the international convention and facilitate regular inspections by foreign inspectors of our chemical production facilities.
In most cases, an international convention requires a state to provide periodical reviews to show that it has taken steps to give effect to the convention.
The ICERD is monitored by an expert group of 18 people who listen to individual complaints and those from other state parties.
A new method of work now allows the committee to appoint NGOs, special rapporteurs and observers to inspect and report against a state party that has failed to provide the required periodic review.
Clearly, a state party surrenders part of its sovereignty when it ratifies or accedes to an international convention. This is a sacrifice that a state party has to make for the greater good as most of these international conventions have noble intentions that encompass fairness, equality, peace and prosperity for everyone.
Because of the peculiarities of certain states, the convention allows state parties to make reservations when they ratify or accede to the convention. Article 2 of ICERD allows — when the circumstances so warrant — to use positive discrimination policies for specific racial groups in order to guarantee the full and equal enjoyment of human rights and fundamental freedoms. However, these measures must be finite, and not at the expense of the other different racial groups in the country.
When a state submits it reservation, it is published and scrutinised by other state parties who may object to it, as the convention text forbids reservations incompatible with the object and purpose of this convention.
Submitting to an international convention is a serious matter and requires serious thinking and preparation. It would require a series of debates through workshops and seminars and should allow public participation in order to receive wider support.
We have to think of what benefits it brings to us as citizens, and as a member of the international community.
The writer is a former Malaysian Permanent Representative to the Organisation on the Prohibition of Chemical Weapons (OPCW), and former ambassador to the Netherlands, and the Fiji Islands.