Tuesday, November 29, 2022

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Article Index


B. Sources of International Law Prohibiting Racial Discrimination

After World War II ended, treaties, international courts and tribunals, and diplomatic exchanges between nations proliferated, marking a new era of international cooperation. As a result, international law now governs hundreds of aspects of our lives, including establishing universal time and allowing us to watch television from around the world. This section lists the modern international legal framework governing racial discrimination by identifying, in chronological order, the central declarations and treaties that form the basis for the prohibition of racial discrimination. None of the treaties use or define the term racism. Two declarations do.

United Nations Charter (1945)

The UN Charter, the foundational source of treaty-based international law, does not include the term racism in its text. Nor does it discuss slavery, colonialization, or apartheid, all of which were politically salient topics at the time of the Charter's creation. Here is what the Charter does clarify with regard to the subject. In Article 1.3, the Charter encourages “respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.” Article 13.1.b authorizes the General Assembly to study and to make recommendations on international cooperation, again, without distinction to race and other factors. Similar language is found in Article 55.c discussing international economic and social cooperation and in Article 76.c in discussing the human rights objectives of the trusteeship system.

Universal Declaration of Human Rights (1948)

Adopted in 1948 by the UN General Assembly, the Declaration specifies for the first time a set of human rights intended to be universal in scope. Article 4 prohibits slavery and sets forth the right to be free from slavery. Article 7 sets forth the right to equal protection under the law against discrimination. The Declaration is not a treaty and, although some have argued it is now a form of customary international law, it is generally not viewed as creating binding legal obligations.

Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (1956)

The United Nations Economic and Social Council convened a conference of Plenipotentiaries that adopted this Convention, as a supplement to the 1926 Convention to Suppress the Slave Trade and Slavery, on September 1, 1956 and it entered into force on April 30, 1957. Article 7 refers to the 1926 Convention on the Abolition of Slavery and defines it as such: “(a) “Slavery” means, as defined in the Slavery Convention of 1926, the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised, and “slave” means a person in such condition or status.” The Convention further defines the slave trade and practices similar to slavery, covering debt bondage, serfdom, and slavery through marriage. Article 9 prohibits reservations to this Convention.

Declaration on the Granting of Independence to Colonial Countries and Peoples (1960)

Adopted by the UN General Assembly in Resolution 1512, it declares that “[t]he subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and co-operation.” Article 5 calls for the immediate transfer of power to the peoples to end colonization without distinction to race, creed, or colour.

Declaration on the Elimination of All Forms of Racial Discrimination (1963)

Adopted by the UN General Assembly in Resolution 1904, in its preamble, this resolution states that “any doctrine of racial differentiation or superiority is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination either in theory or in practice.”

International Convention on the Elimination of All Forms of Racial Discrimination (1965)

This treaty entered into force in 1969 and has 88 signatories and 177 parties. Pursuant to Article 2, the treaty condemns and defines racial discrimination and obligates state parties to “pursue by all appropriate means” measures to eliminate racial discrimination and requires state parties not to “sponsor, defend or support” racial discrimination. This includes prohibiting racial segregation and apartheid (Article 3) and criminalizing hate groups (Article 4). Notably, Article 1 defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.”

International Covenant on Civil and Political Rights (1966)

Articles 2, 4, 24, and 26 reference provisions that shall be undertaken without discrimination on the basis of race (and other factors). Article 2 provides: “Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” Article 26 provides: “All person are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” The treaty does not reference racism.

Declaration on Race and Racial Prejudice (1978)

Adopted by the General Conference of the UN Educational, Scientific and Cultural Organization (“UNESCO”) on November 27, 1978, it provides detailed and nuanced reference to race and racism. It unequivocally states in Article 1 that “all human beings belong to a single species and are descended from a common stock.” Article 1.2 names a “right to be different.” Article 2.2 defines racism as including “racist ideologies, prejudiced attitudes, discriminatory behavior, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable....”

Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities (1992)

Adopted by the UN General Assembly on December 18, 1992, this declaration protects “national or ethnic, cultural, religious and linguistic identity of minorities” pursuant to Article 1.1. It further advances specific protections for minorities and calls upon states to achieve those ends.

Durban Declaration and Program of Action (2001)

A declaration drafted and adopted by governments attending the World Conference Against Racism (Durban I) in 2001 that was the result of the UN General Assembly's Resolution 52/111. The text of the declaration contains numerous uses of the term racism and links it with racial discrimination, xenophobia, and related intolerance. It addresses compensation for colonialism and for slavery. A draft text of the declaration named Zionism in connection to racism causing the delegations from Israel and the U.S. to withdraw.

Declaration on the Rights of Indigenous Peoples (2007)

Adopted by the UN General Assembly on September 13, 2007, this declaration affirms that indigenous peoples are equal to all other peoples pursuant to Article 2 and advances their civil, political, social, economic, and cultural human rights.