The ICERD Divide: Does Ratification Deliver, or Does Non-Ratification Discriminate?

This article critically examines the efficacy of ratifying International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) within the complex relationship between a State’s sovereignty and its pre-existing, non-derogable obligations under international law. Many States may use reservations, understandings, and declarations (RUDs) to ratify treaties like ICERD while managing substantive obligations. This article analyze ICERD’s the challenges of domestic enforcement, scrutinizing how ratification by States, could be diluted by extensive RUDs, thereby analysing whether formal ratification translates to meaningful compliance. This analysis further interprets enforcement lacunae, including the jurisdictional barriers facing the International Court of Justice (ICJ) in adjudicating human rights violations. By contrast, this article uses Malaysia as a critical case study to examine the legal implications of the persistent non-ratification of ICERD, a dimension of the international human rights scholarship that remains insufficiently examined. This article critically examine and analyse the domestic legal context to demonstrate that the State remains legally bound by the international principle of equality and non-discrimination through multiple legal nexus, the UN Charter membership, the Universal Declaration of Human Rights (UDHR) as Customary International Law, and the ASEAN Human Rights Framework, which cumulatively reinforce the jus cogens character of racial equality. This analysis advances a novel legal argument by applying the framework of jus cogens norms and constitutional equality principles under Malaysian law, suggesting that non-ratification of ICERD may have implications beyond a neutral exercise of sovereignty. The non-ratification of ICERD constrains the efficacy of the international human rights machinery, avoiding the full scope of external monitoring and legal accountability, and raising questions regarding the alignment of its domestic constitutional integrity. It is submitted that the States that ratify ICERD even with RUDs, demonstrate a foundational commitment to human rights norms despite enforcement complexities. Non-ratification perpetuates structural inequality and directly challenges international mechanisms designed to uphold universal human rights.