Tuesday, January 31, 2023

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Courts struggle with the meaning of racial discrimination under ICERD and how to interpret it. Take, for example, the International Court of Justice's (“I.C.J.”) responses to the three cases alleging violations under that treaty that have been brought before it. In the first case, Georgia v. Russia, the Court was asked to make decisions about racial discrimination on the basis of ethnicity and, although the case did not proceed to the merits stage, the Court's order on provisional measures was vague in its discussion of the relationship between ethnicity and race. Similar interpretational challenges have arisen in a pending case by Qatar against the United Arab Emirates (“UAE”) where, in its order on provisional measures, the Court has struggled with the meaning of racial discrimination on the basis of nationality (which is not named in the treaty) as compared to national origin (which is). In the Court's order and dissenting opinions, the judges disagreed on how to interpret the definition provided in Article 1.1 of ICERD as to the meaning of racial discrimination on the basis of national origin.

Governments struggle with addressing racial discrimination, too. At the recent meeting of the 9th Ad Hoc Committee on the Elaboration of Complementary Standards, Professor Achiume articulated the tension between ICERD's Article 1 designation of an obligation that nations regulate “policies whose effect is to nullify or impair the equal exercise of human rights on account of differentiation on account of race, colour, descent or national or ethnic origin” with national criminal laws that often require a showing of intent. The representative from Bulgaria, Mr. Kanev, remarked that criminalization of racial discrimination has not worked in Bulgaria “except in cases when private individuals are involved in severe forms of racial discrimination when there may be criminal prosecution.” The representative from the United Kingdom acknowledged that hate crimes have no place in British society and discussed the problem of bias against black defendants in the criminal justice system. The South African representative stated that “racism was not defined in the ICERD... and yet [she believed] its meaning was understood” amid additional questions about how best to conceptualize racism and its relationship to xenophobia. Many members of the Committee affirmed the importance of better understanding the meaning and causes of racism in order to combat it.

It is to this very call for a deeper understanding of racism and its relationship to international human rights law that this Article responds. My examination of racism in human rights aims to prompt explicit inquiry into and examination of the relationship between international human rights law and racism (not just race or racial discrimination).

First, I analyze the development of international law through a critical race theory lens and survey relevant sources of international law to reveal historical preference for framing legal protections around the concept of racial discrimination. I demonstrate that international law neither explicitly defines nor prohibits racism in a treaty.

Second, I critique as overly narrow international human rights law's conceptualization of the harm as one of racial discrimination. It does not reach the root causes of racism nor recognize the extent of its harms.

Third, I argue that the international community should explicitly name, define, and recognize racism, alongside racial discrimination, as a violation of human rights, worthy of protection under international law.

Fourth, I investigate racism's various meanings, its conceptualization through insights from neuroscience, and its framing in relation to international human rights. I argue that we need to move beyond the framing of racial discrimination to also account for racism, race as a form of human identification, and racial ideologies in our analysis. Although these concepts share important intersectional dimensions with xenophobia, class, color, ethnicity, national origin, and more, engaging those literatures is beyond the scope of this Article. By naming racism as a violation of human rights, this Article advances an explicit race-consciousness approach in human rights law that calls upon the human rights community to recognize its own relationship to racism's continued and extensive harm and to take more seriously racism's eradication.

Finally, I offer the following author's note. Legal scholars tend to avoid exposing personal views in our work, though our feelings and convictions nonetheless shape our scholarship. Here, I take a necessary departure from this norm. This Article arises from my research and thought as a scholar of human rights and international law. It also arises from my lifetime of experiences with racism as an African American woman whose family endured slavery and Jim Crow segregation. Writing about racism as a scholar and as a person who has suffered racism's effects is therefore inherently personal. Here, I explicitly acknowledge that.

Based on these experiences and because of them, I say this: If you are not outraged by the prevalence of racism in today's world, consider the depth of its harms. There's something particularly inhumane, morally reprehensible, and egregious about racism. Racism is a tool of oppression that has global reach. It works by dehumanizing individuals and communities not only by denying their inherent equality and dignity but doing so on the basis of a constructed category of race designed for the very purpose of separating humans into a hierarchy meant to permanently elevate some and suppress many. Racism's very nature is insidious. It is often rendered invisible by those who benefit from the social capital, economic power, and political currency that comes from exercising it, even as they use it to maintain their place of power within societal hierarchies. Given all of this and more, racism should be named, alongside racial discrimination, as a violation of human rights under international law.

This Article is organized into four Parts.

Part I provides a critical race theory analysis of the origins and doctrinal development of international law and human rights, reviews the relevant treaty-based sources of international law, and recalls the drafting history of ICERD (and the difficulty nations had in naming and agreeing upon specific forms of racial discrimination). This analysis documents international law's historical preference for framing legal protections around the concept of racial discrimination and reveals that international law has neither explicitly defined nor prohibited racism.

Part II argues that it should. The Article's signal claim is that racism should be explicitly named as a violation of international human rights. This section deepens definitional, conceptual, and theoretical understandings of racism and how its presence constitutes a violation of human rights.

Part III analyzes how international law might reach the problem of racism in the 21st century and identifies the challenges and limitations therein.

Part IV analyzes some advantages and anxieties that arise by recognizing racism as a violation of human rights worthy of protection under international law.