Tuesday, November 29, 2022

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B. On Explicit Race Consciousness in International Human Rights

In order to name, and ultimately to define, human rights racism in international law, the people of international law and of human rights movements must have a reckoning about our own relationship to race and racism. A powerful way to proceed along this path is through the adoption of explicit race consciousness. This means recognizing harms unique to racism, alongside other harms of discrimination on the basis of other features of identity including national origin, religion, sexual orientation, gender, and more. All of these forms of discrimination threaten international human rights. But this does not provide a meaningful rationalization for subsuming the problems arising from racism into a broader set of problems and, in doing so, negating the harms specific to racism.

Derrick Bell described the unique pain that racism inflicts. He writes that “[b]lack people are the magical faces at the bottom of the society's well. Even the poorest whites, those who must live their lives only a few levels above, gain their self-esteem by gazing down on us.” His words reconstruct a narrative of social hierarchy that is centered on a social construct of race. In America, this hierarchy places black people at the bottom. The hierarchy exists in alternate forms in Algeria, Brazil, Korea, The Netherlands, and beyond. A common bond among these racial hierarchies, however, is that whiteness, however defined, is at the top. As Professor Kimberelé Crenshaw argues, whiteness becomes a form of property that has legal, social, and economic value in society. Explicit race consciousness in international human rights means recognizing how such racial ideologies pervade the world politically, economically, and culturally. Here, I offer a few ideas about how to begin that work of recognition.

First, outlawing racism means acknowledging that many people are racist. This leads us to Bell's second bold insight. He puzzles over how we can acknowledge the truth about racism and not fall into “disabling despair.” Here, the work of human rights must reach individuals, not just institutions. This Article has helped advance this cause by showing how people make choices and exhibit behaviors that are not racially neutral. My argument has exposed some of the neurological and cognitive bases for connecting the prevalence of racism in human rights spaces (and elsewhere) to the beliefs and choices individuals make. We can start with ourselves, becoming more aware of our explicit biases against certain people and reflecting upon where those biases come from. We must also accept that we have implicit biases of which we are unaware. Deepening our understandings of how individual choice shapes legal outcomes in human rights through neuroscience permits a new conversation about racism and bias as a reality of human behavior. New knowledge assists in redirecting the conversation from one that merely shames to one that supports meaningful discourse and, ultimately, change.

Second, combating racism means taking up the need to shift and to share power. Those with power--from nations, to multinational corporations, to security and police powers--rarely share it voluntarily. As nationalism and xenophobia surge, nations are under renewed pressures to reconsider previously settled human rights. And even as governments and societies affirm their commitment to human rights laws that protect civil rights, enforce political and religious freedom, and promote basic economic welfare, the fights on the ground reflect a different reality. We are currently experiencing a world where human rights abuses arise most frequently from people with power acting upon people without power. It is only when the ills of racism harm the interests of the powerful that sharing power becomes possible. Therefore, the links between the harms of racism and threats to international peace and security must be made more specific.

Third, outlawing racism in international law means being honest about law's assumptions and presumptions. As a first step, this requires a more meaningful acknowledgement that international law was built on a racist world order and those historical roots still permeate every level of international law today. Here, TWAIL and critical race theorists rightly call for recognizing that the law is not racially neutral. We should therefore abandon race-neutral notions of meritocracy in law. Alternatives might include adopting a race-power intersectionality view. The task ahead is to bring the practices of human rights organizations into alignment with human rights principles.

Fourth, given the severity of human rights harms that arise from racism, the paucity of treatment of racism in mainstream international legal scholarship is confounding and must be addressed. The international human rights curriculum in many places is devoid of meaningful engagement with racism and many of the leading human rights law casebooks do not include it in their coverage. Race also remains a neglected topic within international legal scholarship as “issues of race have not been significantly addressed in international law discourse.” Sadly, the paucity of such scholarship is taken by some as a sign of its unimportance, even as race and the law, in the words of Professor Kimberelé Crenshaw, is an “endlessly renewable narrative in American history.”

For international law scholarship, TWAIL has proven to be the foundation for critically engaging racism, by engaging how “international law [i]s a medium for the creation and perpetuation of racialized hierarchies.” Professor Henry Richardson, who began writing in the 1970s about how black traditions in America and Africa have shaped and advanced international law, has, for example, exposed the racialized politics of the UN Security Council and has identified the “International Black Tradition.” Professor Antony Anghie's work calls into question the very real and powerful role that international law's colonial origins have embedded structural inequality into the core of the international legal order. In 2000, Professor Adrien Wing's edited volume on Global Critical Race Feminism established a new foundation for considering the intersectionality between race and gender to account for the oppression of women of color around the world and pioneered women and women-forward perspectives at the center of international legal theory, structure, and practice. Professor Makau Mutua's work has stimulated robust discussion on how Western domination is present in the very structures of the international legal system and called for new theoretical ways to conceptualize human rights based on different values. Thus, TWAIL, as described by Professor James Gathii, is a “historically aware methodology” for international legal scholarship.

The TWAIL scholarly tradition advances ideas put forth in Derrick Bell's expositions of the ubiquity of how racism is perpetuated by law as well as the critical race scholarship that has followed. As Professor Angela Harris explains,

[a]t the social level, race and racism are ‘essentially contested’ concepts, to the point that there is widespread disagreement even as to the definition of these terms. Yet evidence suggests that race and racism continue to pervade societies around the world. The law reflects the contradiction as well. Because race and racism have played, and continue to play, such a pivotal role in law, political economy, and social stratification, law's commitment to racial equality is conflicted and ambiguous. As a result, laws prohibiting racial discrimination or mandating racial equality often have the unexpected effect of preserving racial hierarchy.

In her groundbreaking work Whiteness as Property, Cheryl Harris adds that “[t]he legacy of slavery and of the seizure of land from Native American Peoples in not merely a regime of property law that is (mis)informed by racist and ethnocentric themes. Rather, the law has established and protected an actual property interest in whiteness itself.” Together with critical race theory, TWAIL includes a variety of scholarly voices that critique the purported interests behind widely-accepted international legal norms such as economic development, security, or peace. Such perspectives should form the foundations of our human rights discourses.