‘Caste’ and ‘Descent’: A Curious Case of an International Legal Interpretation

What is it about?

The reconceptualisation of caste discrimination as racial discrimination through the term ‘descent’ in Article 1 of ICERD enabled the international community to take cognisance of caste discrimination, which it had ignored for a long time. However, the government of India, opposing such reconceptualisation, maintains that ‘descent’ in ICERD refers only to race and not caste, contrary to the position of UN human rights bodies. Hence, whether ‘descent’ includes ‘caste’ is an important hermeneutical question addressed in this article. Based on the distinction between interpretation and application of a treaty, this article argues that India has accepted the application of ICERD to caste discrimination through its conduct and it cannot deny it now according to the principle of estoppel. This article then demonstrates the dynamic interpretation of ‘descent’, justifying it through the consensus analysis methodology of the ECtHR. Moreover, it is found that ‘descent’ was associated with ‘caste’ in British India

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Photo by Tingey Injury Law Firm on Unsplash

Photo by Tingey Injury Law Firm on Unsplash

Why is it important?

Utilizing international legal mechanisms and creating solidarity with similarly oppressed groups worldwide is essential to effectively fight against caste discrimination in this globalized world. This is one of the few works dealing with caste and international law. The articles provide some suggestions to the Dalit activists and human rights bodies to overcome the legal interpretative problem, which will help address caste discrimination within the context of racial discrimination. This is a sequel to the article "The 'Caste' as 'Discrimination Based on Work and Descent' in International Law: Convincing or Compromising?."

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