Tuesday, January 31, 2023

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A. On the Normative Power of Naming

I have argued in this Article that racism should take its place as one of the recognized ills to be prohibited by international law. I have further elaborated as to why doing so would create the space for law to conceptualize and understand the problem as one that includes both discriminatory acts and also the racial ideologies that motivate people's behavior. Herein, there are limitations and need for further research that I have acknowledged. Putting these caveats aside, here I highlight the importance of naming the harm.

Naming is a powerful tool that international law has employed to raise awareness of prior harms and increase international political motivation to address them. Take, for example, the 2007 creation of the UN Declaration on the Rights of Indigenous Peoples. Although it is not a legally binding treaty, it sets forth the core rights owed to indigenous peoples by states around the world and applicable standards. Moreover, it has normative significance in its symbolic manifestation that indigenous people are a vital and vibrant part of our global society, entitled to the full protections afforded under international law. The Declaration's promise is its power. So, too, was the symbolism of the Civil Rights Movement in America. A 2016 study of over 400 African Americans, black Brazilians, Arab Palestinians, and Ethiopian and Mizrahim peoples living in Israel explored these communities' diverse responses to discrimination, finding important variations across groups and countries. The study's most striking finding is that, of all the groups, African Americans were most comfortable in standing up for their rights because there was general societal recognition that they were entitled to such rights by virtue of the Civil Rights Movement--both what the movement achieved and what it represented. Thus, naming and establishing racism as a human rights violation under international law promises powerful impacts beyond those expected of binding forms of international law. It lifts up the capacity of people in all nations to identify and to assert their right to be free from racism as afforded to them under international human rights law.

From the abolition of slavery, to decolonization, to naming genocide and crimes against humanity, to human rights movements like the Civil Rights Movement and the Arab Spring, international law is full of naming moments. It is time to add human rights racism to the list. To do so, law must sufficiently define that prohibited act or the right to be protected. At present, the concept of racism in international law is ill-defined and variously understood. It derives its meaning both from a literal interpretation of understandings about race and racial discrimination found in existing international legal doctrine and from its broader socio-cultural meanings that draw upon moral and political ideologies.

The challenge with this vagueness is that it mitigates against a positivist reading of racism in international law. It cannot be said, for example, that states have specifically manifested a collective will to outlaw racism. In our modern era, there is a need to establish positive law, where the legal rule is objective, valid, and directly linked to state consent. As a formal matter, translating racism from concept to human right enforceable under international law requires the consent of many nations and the enumeration of specific rights and corresponding obligations. At the state level, nations could adopt a new treaty or modify an existing one, such as ICERD. Arguments can be made that this right already exists as a general principle of international law expressed in international customary law. Either way, cementing racism as a human rights violation under international law requires robust and significant state participation. Establishing the illegality of racism in international law so it may be meaningfully enforced requires a positivist approach rooted in strong state consent and recognition. However, such participation seems politically unrealistic at present.

Thus, we need to look to international law's normative force to change minds and shape human behavior. Although the onus to establish racism as antithetical to the fundamental purposes of international law should not rest upon international law's normative power alone, this venue offers the most viable way forward. The project is to imagine how international law can promote a norm shift with regard to racism. Outlawing racism calls for international law to reach individuals in addition to states.

In Australia, for example, the Racial Discrimination Act protects citizens from being refused employment or fired from a job on the basis of race. To better advance these rights, the government has recently named a Race Discrimination Commissioner as a part of its Australian Human Rights Commission. The law requires that employers take “all reasonable steps” to prevent racial discrimination. In theory, this means that a person should be able to report a colleague who refuses to work with her or calls her a racial slur and have the employer take effective action to prevent those behaviors from continuing. But the law also aims to protect freedom of speech, so it does not prohibit a comment that is deemed to be fair and to express a genuine belief. Here, decision makers, such as managers, must necessarily interpret the difference between speech that is fair and that which is racist. They will do so through their own cognitive lens. Here, we run into the limits of law. As this example illustrates, legal reform can only do so much in combating racism. People must also change, and that requires cultural, social, and structural shifts in a society. But, here, law can play an essential role in prompting broader human change within societies by creating and naming new human rights.