Tuesday, January 31, 2023

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A. State-Based Racism

Nations are not supposed to engage in racial discrimination. Nations have committed to uphold the rights of equality, dignity, and self-determination embedded in the UDHR and the UN Charter. The UN Charter and subsequent sources of international law detailed in Part I.B evidence the widespread state obligation to apply law equally without distinction on the basis of race. Furthermore, 179 nations have undertaken the more specific obligations required by ICERD of eliminating racial discrimination. Normatively speaking, permitting racism is antithetical to core jus cogens in international law, namely the prohibition of slavery, apartheid, and genocide, which all share racism as a root cause. Understanding racism as a component of existing preemptory norms means that states have already committed to not violating those norms. Thus, whether a state has consented to undertake specific obligations with regard to eliminating racial discrimination or not, all states have an obligation not to engage in state-based racism, as it would violate both core human rights recognized as customary international law and preemptory norms. As Hersch Lauterpacht advised about the fundamental nature of human rights, there is no room for “reservations of any kind or description.”

The reality, however, is that for centuries nations around the world have engaged and continue to engage in acts of racism against their own people and against foreigners. Slavery, segregation, apartheid, Jim Crow laws, anti-miscegenation laws, and more are evidence of this. Indigenous peoples in the United States, for example, have long faced government-imposed racial criteria in order to be recognized by the federal government as a tribe (in addition to being the victims of genocide). When a government targets a group of people on the basis of race or fails to provide that group with equal protection under the law, this constitutes state-based racism.

How might international law address racism that occurs at the hands of a state? International law provides that states are responsible for internationally wrongful acts or omissions that “constitute a breach of an international obligation... attributable to the state under international law.” Where a state, through its body, organs, or agents, engages in acts or creates harms amounting to racism, such acts may invoke state responsibility under international law if they meet the internationally wrongful criteria. The International Law Commission's (“ILC”) 2001 Draft Articles on the Responsibility of States for Intentionally Wrongful Acts, provide that:

Every State, by virtue of its membership in the international community, has a legal interest in the protection of certain basic rights and the fulfilment of certain essential obligations. Among these the Court instanced “the outlawing of acts of aggression, and of genocide, as also... the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination.”

But it is not always clear when racism is directly caused by the state. For example, in 2017 UN Special Rapporteur on Extreme Poverty and Human Rights, Professor Philip Alston, led an investigation of human rights abuses in the United States Referring to his visit to an area of rural Alabama predominantly home to African Americans, Alston reported on the lack of plumbing and related health risks caused by raw sewage. “I think it's very uncommon in the First World, ” he said of the abject conditions. “This is not a sight that one normally sees. I have to say that I haven't seen this.” Here, poverty and the violation of economic rights are causing a distinct racial group harm. There is a case to be made that this is state-based racism on the grounds that the state is distinguishing where it provides key public services (water, sewage, etc.) on the basis of race. Ought, then, international human rights law mandate the state to pay compensation in a case like this, and would that provide adequate remedy?

A second inquiry concerns when a state has responsibility for failing to take measures to prevent or to punish racism by other actors. The Inter-American Commission for Human Rights' 2011 Report on the Situation of People of African Descent in the Americas provides one example. The report first acknowledges and documents the racial discrimination that results in inequality, limited access to justice, racial profiling by police, abuse in criminal justice systems, and sub-standard living conditions. It then recommends actions states should take to remedy “the narrow link between racism and discrimination, and how... ongoing stereotypes and prejudices, contributes to perpetuate historical situations of segregation and exclusion.” This is a recommendation, however, not a legally-enforceable obligation.

Similarly, the UN General Assembly's Third Committee reported in 2004 on ‘Afrophobia’ and the pervasiveness of racism and recommended actions states should take. Mireille Fanon-Mendès-France, Chair of the Working Group on People of African Descent, stated that “[p]eople of African descent have been historically and continue to be victims of ‘Afrophobia’.” The representative of Belize, speaking on behalf of the Caribbean Community (“CARICOM”), described the historic and extreme suffering endured by people of African descent, including extreme human rights violations and their forced and uncompensated labor. The Committee discussed remedies, including regional approaches to reconciliation, reparations, and an acknowledgement by former slave-holding countries of the remaining work needed to eradicate such racism.

For violations that arise under ICERD, there are recourses individuals can take through the Committee on the Elimination of Racial Discrimination, which consists of ten independent experts. Here, individuals can complain about violations of human rights protected by the treaty. The Committee makes findings and issues recommendations and reprisals to a state. In the searchable database on the Committee's website, there are over 67 pages of individual claims. The Committee also issues general guidance that aims to develop Convention requirements to assist states with meeting their obligations. In its report on combating hate speech, for example, the Committee recommends “that the criminalization of forms of racist expression should be reserved for serious cases, to be proven beyond reasonable doubt, while less serious cases should be addressed by means other than criminal law.” Yet, given the Committee's limited authority and resources, it is ill-suited for addressing imminent and egregious threats caused by racism, such as Myanmar's discriminatory practices against the Rohingya people.

Although its jurisdiction is limited to disputes between nations that can be settled on the basis of international law, the International Court of Justice has recently been called upon to decide an alleged violation of state-based racism against another state under ICERD as previously discussed. In August of 2008, Georgia brought an application against the Russian Federation to the I.C.J. on the grounds that the defendant violated its obligations under ICERD during its military interventions in South Ossetia and Abkhazia between 1990-2008. Specifically, Georgia claimed that the Russian Federation violated Article 2.1.a of ICERD by “engaging in acts and practices of ‘racial discrimination against persons, groups of persons or institutions' and failing ‘to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.”’ In response, the I.C.J. ruled on provisional measures calling upon both parties to “refrain from any act of racial discrimination against persons, groups of persons or institutions; abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations.” The I.C.J. never decided this case on the merits because it ruled that it lacked jurisdiction on the grounds asserted by Russia's preliminary objection that Article 22 of ICERD had not been met. Practically speaking, the Court determined that Georgia had not met its requirement of genuinely attempting negotiation with the Russian Federation, as required by ICERD, and therefore determined Georgia did not meet the precondition of fulfilling negotiations prior to seeking remedy at the Court.

This raises important questions about what constitutes negotiations about allegations of racial discrimination under international law. Based on prior jurisprudence, “an obligation to negotiate does not imply an obligation to reach an agreement.” Whether or not the parties meet such a precondition rests upon the idea that their negotiations were meaningful, wherein the I.C.J. has previously considered the “attitude and views of the Parties on the substantive issues of the question involved.” In interpreting what level and kind of negotiation Article 22 of ICERD required Georgia and Russia to do, the I.C.J. adopted an ordinary meaning of the treaty language, putting aside the travaux préparatoires, and found Article 22 to “establish preconditions to be fulfilled before the seisin of the Court.” Therein, citing numerous I.C.J. cases, the Court determined that “the precondition of negotiation is met only when there has been a failure of negotiations, or when negotiations have become futile or deadlocked” and that determining whether negotiations have occurred according to this standard was a question of fact.

This, in turn, requires analyzing what a substantive negotiation about racial discrimination would actually entail. In this case, Georgia argued that it tried to negotiate with Russia about racial discrimination when it raised its concerns about Russian forces killing and forcibly displacing over 300, 000 people of ethnic Georgian background in what it called ethnic cleansing. Russia argued the opposite, that “[a]t no occasion in their bilateral relations did Georgia articulate any claim of racial discrimination by Russia, and Georgia and Russia did not engage in negotiations in respect of any such claim.” The Court determined that “although the claims and counter-claims concerning ethnic cleansing may evidence the existence of a dispute as to the interpretation and application of CERD, they do not constitute attempts at negotiation by either party.” The Court summarized its finding that Georgia failed to meet negotiation preconditions on the grounds that both parties' communications about issues of ethnic cleansing and extermination “attest to the existence of a dispute between them on a subject-matter capable of falling under CERD. However, they fail to demonstrate an attempt at negotiating these matters.”

In their Joint Dissenting Opinion, Judges Owada, Simma, Abraham, Donoghue, and Judge ad hoc Gaja argued that the Court should have “found that it had jurisdiction to entertain the Application.” They persuasively argued that the Court's finding that Article 22 of ICERD requires a precondition to negotiate prior to seizing the I.C.J. on the matter is erroneous and inconsistent with the Court's recent jurisprudence. They found that “the Court has never conditioned its jurisdiction on the existence of prior negotiations between parties, except on the basis of an express provision to that effect.” The judges further noted that “[n]o reason can be found for such a surprisingly narrow approach, one at odds with the thrust of the Court's most recent jurisprudence in respect of its consideration of the conditions for jurisdiction and, specifically, at odds with a Judgment as recent--and as clear on this point in its reasoning--as that which the Court handed down on the preliminary objections in the Croatia v. Serbia case.” The Joint Dissenting Opinion helpfully addressed what the Judgement on Provisional Measures does not, namely linking a meaningful attempt to negotiate to Georgia's claims that it raised the issue of ethnic cleansing and that the Russian Federation was at liberty to respond to them. The Joint Dissenting Opinion found that “it is surprising to see the Court dismiss the numerous statements in which the Georgian authorities, well before 9 August 2008, accused Russia of encouraging ethnic cleansing or attempting to ‘legalize’ the results of ethnic cleansing, on the grounds that those statement are unrelated to CERD, or that they do not contain any allegations of racial discrimination aimed at Russia.”

One cannot presume to know what the Court's motivation was behind this reasoning, but it does raise the question about whether the Court was uncomfortable with analyzing inter-state claims of racial discrimination on the merits. ICERD defines racial discrimination, in part, as a distinction, exclusion, restriction, or preference on the basis of race or ethnicity. Ethnic cleansing has been defined by a UN Commission of Experts as “a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.” Even this general definition constitutes a form of racial discrimination envisioned by ICERD in that it is a form of exclusion on the basis of ethnicity that would violate several of the protected rights enumerated in Article 5. Given this, the I.C.J.'s decision in this case is confounding.

Certainly, in the twenty-first century, it should not be permissible for nations to use the tools of statehood to violate peoples' human rights on the basis of their race. This is a minimum standard. In outlawing racial discrimination, international human rights law has worked to obligate states to stop acts that directly cause racial discrimination. However, despite the creation of ICERD, which has been adopted nearly universally by nations, and other forms of positive international law addressing racial discrimination, state-based racism against other states and against people within a state remains a significant problem. The central challenge, again, is that racial discrimination remains ill-defined as a legal concept and disconnected from the people responsible for the harm and racism has not been established as an internationally wrongful act in treaty law. Furthermore, meaningful efforts to eliminate state-based racism require effective enforcement of the existing positive law. On both accounts, there is much work to be done.