Tuesday, November 29, 2022

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C. On Human Identity, Demographic Shifts, and the World to Come

Given recent advancements in human genetics that use DNA analysis to chart the diversity of the human species, it might seem a strange time to call for the international legal community to address a concept like racism. We must, therefore, acknowledge a fundamental tension. On the one hand, we are conditioned to see one another through the lens of race, however false and problematic a typology; and dismantling racism requires working through such inherited and learned views of race and hierarchy. On the other hand, race is a problematic way for human beings to identify ourselves and one another. Relying on race as a category for social and legal identity has severe limitations. First among them is the fact that, scientifically speaking, race does not exist. Instead, our DNA is the best evidence of our shared complex and global ancestry. As we learn more about our genetic history through tests such as 23andMe, we find that there are more credible ways to trace where we come from through our DNA and that our genetic identities are more interconnected and more complex that racial categories allow. Second, racial categories are not uniform across countries. Third, racial categorization creates and perpetuates a social hierarchy that often puts whiteness at the top. White supremacy impacts legal, political, economic, civil, social, and cultural spaces and is a tool for perpetuating racism, slavery, apartheid, and a host of other harms.

It is heartening to know that the drafters of ICERD recognized this very tension between eradicating racial discrimination and eliminating race as a category for human identification. For example, Mr. Verret, the representative from Haiti, said during the drafting of ICERD that “we have produced a document of which the least that can be said is that it is reasonably reassuring. We applaud it, and... to intone in all solemnity the hymn of reconciliation among the races which fantastic theories tend to divide, vaunting the supremacy of some peoples over others regarded as inferior and hence despised and held in servitude, if not indeed destined for utter annihilation.” His observations raised the contradiction that in outlawing racial discrimination, the UN was verifying the very concept of race, which includes its purpose as a tool to separate and discriminate.

Since then, others have continued to recognize that the troublesome nature of categorization on the basis of race has spread. A report by the Inter-American Commission on Human Rights states that it “uses the term ‘racial’ not because it adheres to theories claiming the existence of different races in the human species, but rather in line with the nomenclature of Article 1 of the American Convention on Human Rights.” That treaty, adopted on November 22, 1969, required state parties to “respect the rights and freedoms herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political, or other opinion, national or social origin, economic status, birth, or any other social condition. The UN Office of the High Commissioner for Human Rights' Developing National Action Plans against Racial Discrimination also cautions that “[t]he use of the term ‘race’ in this publication does not imply the acceptance of theories which attempt to determine the existence of separate human races.” But even as skepticism about using race in human rights law spreads, harms caused by supremacy and dominion on the basis of race remain.

Looking to the future, how should humanity organize itself in the world to come? The future world is one of great diversity amid great numbers. According to the World Bank, the present human population of 7.53 billion is expected to reach 11.2 billion by 2100. People in Asia and Africa are contributing to this population explosion at higher rates than other regions, and by 2100, it is projected that 80 percent of the total world population will live in those regions. Referring to groups of people as “African” or “Asian, ” as members of a single race or even several races, will fail to capture important political alliances, language distinctions, cultural affiliations, and other means of human identification. If the use of race is under scrutiny today, the predicted demographic shifts of the future will make this matter all the more pressing.

In 1999, Thomas Franck argued that “nationalism is in retreat” and that, in its place, “individualism” had emerged. His book raises the vital question, then and now, about self-determination and the right to individuality in a global world. Today, young people around the world are raising their voices to be heard--not as citizens of a particular nation or as a racial category placed upon them, but as people who get to define their own identities. I expect this rising preference for self-definition to continue to grow. But will it clash with governments programmed to label and politicians bent on dividing? Thomas Franck thought that the modern world was “not simply a world of sovereign states” and that such “Vattelian... assumptions ha[d] become untenable.” One manifestation of this is that states cannot be the sole guarantors of rights nor the repository of duties. To eliminate racism and a host of other ills, people must be directly involved in the business of rights and duties. States must accept new visions of social unity that are inclusive of the complex realities of human identity. Doing so helps translate human rights law into human rights behavior.