Tuesday, November 29, 2022

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A. A Brief Critical Race History of International Human Rights Law

Racial discrimination is antithetical to the central tenants of international human rights law, which aim to advance the cause of human dignity. The prohibition against racial discrimination is a recognized preemptory norm in international law, expressed in the United Nations Charter, in ICERD, and in customary international law. It affirms the principles of non-discrimination and equality in the application of international law. It stands as a guarantor that universal human rights protections should be applied by nations to their people equally and that states must take affirmative measures to address racial discrimination.

However, these core norms and rights were not always widely accepted or enforced by nations around the world. For centuries, wars raged and atrocities were normal. The idea of human rights, that people are entitled to certain basic rights inherent to being human, aimed to change these horrid circumstances, albeit slowly. The origins of human rights through law can be traced back to ancient Egyptian laws that restricted the use of force and to Roman laws that introduced the concept of “humanitas.” However, most histories of international law discuss seventeenth century Europe as the birthplace of international law and human rights, noting the importance of Hugo Grotius' 1625 treatise On the Laws of War and Peace. The resulting “Grotian Moment, ” alongside the Peace of Westphalia in 1648, marked the paradigm shift among European nations that launched the foundations of international law.

Less discussed, however, are the racial ideologies present in this shaping. One example arises from Grotius' early role as an attorney before the Dutch courts. He argued that his client and cousin Captain Van Heemskerck was legally right in waging war against Portuguese ships in order to protect his own ship and crew. He justified this argument of a right of private war, in part, by characterizing the Portuguese traders as brutish and uncivilized in their murderous treatment of the indigenous peoples of Indonesia. Thus, according to Grotius, not only was his cousin's seizure of a Portuguese trading vessel legally permissible but it was also morally defensible in its alleged protection of the indigenous people from horrid Portuguese atrocities. Grotius glossed over details about Van Heemskerck's own engagement in holding captives aboard his ships, purportedly for purposes of slave trading. This example illustrates how racial ideologies shaped international law's foundations.

Almost a century later, the rise of Rights of Man movements took place amid the lucrative and atrocious Trans-Atlantic slave trade. Both the American Declaration of Independence of 1776 and the French Declaration of the Rights of Man and Citizen of 1789 are praised for their role in marking the beginning of a new era in which law was intended to secure basic rights and protections. The noble ideas of life, liberty, and justice for all remain with us today. Yet, these documents and the new governments that sprung from them did little for the rights of the millions of enslaved women, men, and children or oppressed indigenous peoples deemed racially inferior and unworthy of such inherent rights.

We also hear little of the all-important Haitian Revolution of 1791-1804 that resulted in the end of slavery and French colonial rule in Haiti. Instead of being lauded as the hallmark for human rights that it is, the Haitian Revolution is often omitted from histories of international law. Moreover, Haiti was punished egregiously for seeking its independence and it took 122 years for it to pay off debts levied by France and enforced by the United States.

The juxtaposition of these three early human rights movements evidences the racialized oppression present within human rights movements themselves. Such new rights were for some, but not for all, especially not for people deemed racially inferior. An accurate framing of the history of international human rights requires acknowledging this reality.

The next historical moment that played a critical jurisgenerative role in the shaping of international law and human rights concerns efforts to abolish the Trans-Atlantic slave trade and slavery. For centuries, international law or its predecessors protected the legal rights of private citizens to import and export human beings as property, and the economies of participating nations benefitted greatly from this international trade regime. In 1807, this state practice changed, as both the United States and the United Kingdom passed legislation prohibiting the importation of slaves, although slavery itself remained legal. Because enforcement of the banned slave trade was so poor, international tribunals were set up in Sierra Leone, Brazil, and elsewhere, establishing an early example of the peaceful resolution of international disputes through law. The abolition of the slave trade helped establish slavery as one of the first jus cogens norms under international law, paving the way for the idea of preemptory norms.

Despite these gains, challenges remained. The United States was reluctant to let go of the slave trade and, later, slavery. In 1820, Congress passed an amendment to the 1819 Act to Protect the Commerce of the United States and Punish the Crime of Piracy. Section 5 provides the seminal language linking slavery to the crime of piracy, stating that

“if any citizen of the United States, being of the crew or ship's company of any foreign ship or vessel engaged in the slave trade, or any person whatever, being of the crew or ship's company of any ship or vessel, owned wholly or in part, or navigated for, or in behalf of, any citizen or citizens of the United States, shall forcibly confine or detain, or aid and abet in forcibly confining or detaining, on board such ship or vessel, any negro or mulatto not held to service by the laws of either of the states or territories of the United States with intent to make such negro or mulatto a slave or shall on board any such ship or vessel, offer or attempt to sell, as a slave, any negro or mulatto not held to service as aforesaid, or shall, on the high seas, or any where on tide water, transfer or deliver over, to any other ship or vessel, any negro or mulatto not held to service as aforesaid, with intent to make such negro or mulatto a slave, or shall land, or deliver on shore, from on board any such ship or vessel, any such negro or mulatto, with intent to make sale of, or having previously sold, such negro or mulatto, as a slave, such citizen or person shall be adjudged a pirate; and, on conviction thereof before the circuit court of the United States for the district wherein he shall be brought or found, shall suffer death.”

To avoid detection under the new law, American slave traders used foreign vessels and imported slaves to Cuba to smuggle them into the United States. U.S. courts and juries were reluctant to criminalize violations against their white brethren for the benefit of slaves they viewed as property. The end of the Civil War and the legal abolition of slavery through the 13th Amendment to the U.S. Constitution formally marked the end of slavery in America. It also ushered in a new era of racism.

Abolishing slavery under domestic and international laws was only the beginning of the legal battles to come. In the United States, the Thirteenth Amendment cases sought redress for continued discrimination against African Americans in the law, economy, and society. In Plessy v. Ferguson, the Supreme Court determined that racial segregation and the use of racial categories was legally permissible. The Court reasoned that “[a] statute which implies merely a legal distinction between the white and colored races--a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color--has no tendency to destroy the legal equality of the two races, or reestablish a state of involuntary servitude.” This historic case is remembered as a cardinal example of law upholding racial discrimination by means of racial segregation.

By the early twentieth century, the Trans-Atlantic Slave Trade and slavery were banned under international law. But racist practices used by governments against people, such as the British Empire's atrocities in its colonies in India and Africa, remained commonplace. Such practices were rooted in and justified by ideologies of racial superiority that also shaped the making of the modern international legal order and the United Nations itself. The San Francisco round of negotiations would serve as home for such discussions. At question was how the UN Charter would frame equal rights and self-determination. This discussion of self-determination influenced the subsequent negotiations on how to address the principle of trusteeship of non-self-governing territories and colonial rule. Tasked with drafting this part of the Charter, the Coordination Committee stated that it “understands that the principle of equal rights of the peoples and that of self-determination are two complementary parts of one standard of conduct.” China, Iraq, and the Soviet Union wanted the Charter to reference independence, whereas the British argued for liberty instead; if the Charter asserted a right to independence, that would be disastrous for their colonial rule. Herein, the issue of racial superiority was directly raised by the delegate from The Netherlands who discussed the “humiliation caused by the assertion of racial superiority.” Dr. W. E. B. Du Bois, who led the National Association for the Advancement of Colored People's (“NAACP”) delegation to the San Francisco conference, urged the United Nations to expressly address the problem of racism against African Americans. The fight to apply newly established international human rights to African Americans' struggle against racism during the founding of the United Nations was not met with great support. In the end, the UN Charter and the Universal Declaration of Human Rights (“UDHR”) solidified what would become the new, post-war world order. But these foundational documents also solidified a renewed commitment among nations to maintaining the status quo of racial superiority. Those who hoped that the United Nations would do more to protect people from racism were greatly disappointed.

The end of the war and the birth of the United Nations marked a new era of human rights movements across the world. In the United States, after the war, and because of the war, African American soldiers returning home faced renewed racism even as they had risked their lives for their county abroad. This, along with other complex factors, helped to spur the series of political protests, economic boycotts, and organized cultural resistance that would become the Civil Rights Movement in the United States. The NAACP and other groups called for human rights in addition to civil rights. Dr. Martin Luther King Jr.'s policy of non-violent resistance was deeply rooted in the early works of Mahatma Gandhi and other human rights leaders. Just before his assassination, Dr. King spoke out about the link between international human rights and the African American struggle for civil rights. Adam Clayton Powell, who led the Harlem civil rights marches in the 1940s, also drew inspiration from and gave inspiration to the decolonization movement in Africa.

The end of World War II also brought about the beginning of the end of colonial rule in many countries as colonizing nations' economies and their hold over their colonies weakened. With seventeen countries gaining independence, 1960 was deemed the “year of independence” for Africa. This would raise controversies about the foundations of international law. Why should sovereignty protect a government that was violating the foundational right to self-determination and perpetuating numerous human rights abuses that international law had begun to prohibit?

Decades later, in the mid-1990s, apartheid finally came to an end. Since its creation in 1948, the Union of South Africa had legalized a system of institutional racial segregation and discrimination called apartheid. This practice was known and tolerated by the international community and under international law for years. As early as 1949, the UN General Assembly requested that the I.C.J. issue an advisory opinion on the international legal status of the territory of South-West Africa and any arising international obligations of the Union of South Africa. The I.C.J. found unanimously that “South-West Africa is a territory under the international Mandate assumed by the Union of South Africa on December 17th, 1920” and its opinion failed to discuss the problem of apartheid. The issue came up again in 1966, but the Court determined that Ethiopia and Liberia lacked standing to bring the matter before the Court. In 1971, the UN Security Council asked the I.C.J. to issue an advisory opinion on the legality of South Africa's presence in Namibia, once again raising the ongoing tensions surrounding South Africa's continuation of apartheid. The I.C.J. held that South Africa's involvement in Namibia was illegal and it upheld that racial discrimination constitutes a violation of the UN Charter.

When peaceful democratic elections were successfully held there in 1994, South Africa's human rights victory was celebrated around the world. Apartheid came to an end, marking the triumph of decades-long efforts by Nelson Mandela and other African National Congress (“ANC”) leaders and countless other South Africans. In 2002, apartheid was defined as a crime under the Rome Statute. This definition built upon the earlier one provided in the 1973 Convention on the Suppression and Punishment of the Crime of Apartheid, which had declared it a crime against humanity.

These stories stand as a necessary reminder that an accurate historiography of human rights and international law must be inclusive of many histories. In celebrating human rights' remarkable achievements, we must also acknowledge its failures. Adopting a critical race theory analysis of the history of human rights is all the more necessary given that it has largely been constructed by nations, leaders, and scholars who are overwhelmingly from Western Europe and North America and who overwhelmingly identify racially as white.