As of Nov 2018, 179 countries have ratified ICERD.
Malaysia is one of only 18 countries in the world that have not ratified ICERD.
Not ratifying ICERD, Malaysia joins the ranks of North Korea, Myanmar, Angola, Bhutan, Brunei and a new state - South Sudan.
The remaining countries are all small islands namely Cook Islands, Dominica, Kiribati, Marshall Islands, Micronesia, Niue, Samoa, Tuvalu, Vanuatu, Nauru and Palau.
In the Muslim world, all Muslim-majority countries have ratified ICERD, except two.
Saudi Arabia, Iran, Indonesia, Palestine, Egypt, Pakistan, Iraq and Turkey are among the 55 Organisation of Islamic Cooperation (OIC) countries that have ratified Icerd.
The only two Muslim-majority countries that have not ratified ICERD are Malaysia and Brunei.
On 28 Sept 2018, Prime Minister Dr Mahathir Mohamad addressed the UN General Assembly, where he said:
"...The new government of Malaysia has pledged to ratify all remaining core UN instruments related to the protection of human rights.
"It will not be easy for us because Malaysia is multi-ethnic, multireligious, multicultural and multilingual. We will accord space and time for all to deliberate and to decide freely based on democracy."
Rembau MP Khairy Jamaluddin, when debating Mahathir's UN address in the Dewan Rakyat on 15 Oct 2018, raised concerns about ICERD's impact on bumiputera privileges.
"Will an expiry be imposed on Article 153 of the Federal Constitution which clearly grants different rights or special status to one group of people?"
Khairy's comments was picked up by Utusan Malaysia, which reported that ICERD would threaten the special position of Malays and Islam in the country.
What followed was a series of protests that brought conservative forces together and culminated with Umno and PAS announcing a mega rally against ICERD.
Khairy based his concerns on Article 1(4) of ICERD, which allows race-based affirmative action but said it should not continue once the objective is achieved.
While several ministers stressed that "reservations" can be made to preserve Article 153, the idea that ICERD would overwrite Article 153 had become public perception.
ICERD Article 1(4): Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups... shall not be deemed racial discrimination, provided... they shall not be continued after the objectives for which they were taken have been achieved.
Countries are allowed to ratify ICERD with reservations, which works like a caveat. Some countries have made reservations so that the convention would not supersede their constitution.
Some of these countries include the US, Thailand, Papua New Guinea, Nepal and Jamaica. Here are some examples:
"The Kingdom of Thailand does not interpret and apply the provisions of this Convention as imposing…any obligation beyond the confines of the Constitution and the laws of the Kingdom of Thailand."
"... nothing in the Convention shall be deemed to require or to authorise legislation or other action by Nepal incompatible with the provisions of the Constitution of Nepal".
Given the examples, Malaysia can ratify ICERD with similar reservations to put to rest concerns that it would affect the Federal Constitution.
A reservation can be rejected if two-thirds of countries that have ratified ICERD disagree with it, but this has never happened before and it is highly unlikely to get objections from two-thirds of 179 countries.
Saudi Arabia, Yemen, Qatar, Iraq, Iran, Afghanistan and Sudan are countries that practise syariah law but have ratified ICERD.
Some countries have also made a reservation so that ICERD cannot supersede its syariah law.
Here's an example:
"The Government of Saudi Arabia declares that it will implement the above convention, providing these do not conflict with the precepts of the Islamic syariah". [Source: UN Treaty Collection]
Finland, Austria and Germany objected to Saudi Arabia's reservation but it was far from the two-thirds of total ICERD countries needed for a rejection.
According to Article 22 of ICERD, countries that disagree over the convention’s interpretation can be referred to the International Court of Justice (ICJ).
However, several countries have also made a reservation that they would not accept the ICJ's jurisdiction unless there is a mutual agreement between disputing parties.
On paper, ICERD is intended to be binding but the UN has not been able to properly enforce the convention as there is no enforcement body.
For example, the Romani people lodged complaints against Slovakia for discrimination and the Committee on the Elimination of Racial Discrimination found the country had violated ICERD.
The committee provided recommendations but Slovakia claimed they were non-binding and ignored them.
The committee also produces an annual report, in which it had previously criticised certain aspects of syariah in Qatar, Saudi Arabia and Iran and provided recommendations but it was up to the countries to decide on further action.
Nevertheless, ICERD has served as a guiding principle for countries drafting anti-discrimination laws.
This is not the first time Malaysia is dealing with something like ICERD.
Malaysia had made reservations when it ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) in 1995 to protect the constitution and the syariah law.
Here's the CEDAW reservation:
"The Government of Malaysia declares that Malaysia’s accession is subject to the understanding that the provisions of the Convention do not conflict with the provisions of the Islamic syariah law and the Federal Constitution of Malaysia". [Source: UN Treaty Collection]
There are nine core human rights UN conventions. Malaysia has, to date, ratified three.
They are CEDAW, Convention on the Rights of the Child (CRC) and Convention on the Rights of Persons with Disabilities (CRPD).
Apart from ICERD, going forward, Malaysia will be confronted by five other unratified conventions.
They are the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW) and International Convention for the Protection of All Persons from Enforced Disappearance (CPED).
Apart from ICERD, some political leaders have also suggested that the remaining five UN human rights conventions which Malaysia have not ratified are threats to the country.
Do you agree? Before you decide, remember to read what they are all about.