C. ICERD--A Missed Opportunity?
In April 1963, Dr. Martin Luther King Jr. issued his Letter from Birmingham Jail. In August of that same year, he delivered his famed I Have a Dream speech during the March on Washington. It was the height of the Civil Rights Movement in the United States and the same spirit of freedom and anti-racism was exerting itself around the world. That year, Kenya gained independence from British colonial rule and there was a growing international consensus against the use of apartheid in South Africa. Against this historical backdrop, the UNGA adopted the Declaration on the Elimination of All Forms of Racial Discrimination. The world was beginning to acknowledge that racism, whether manifested through colonialism or apartheid or xenophobia, was a harm that international law must address. Drafted two years later, on December 21, 1965, ICERD became the first universal human rights treaty to directly address racial discrimination. It entered into force on January 4, 1969. During the drafting period, Representative Morozov of the U.S.S.R., stated that “[r]acism and racial discrimination are such shameful and odious products of imperialism and colonialism that all peoples and all decent human beings are resolutely demanding that they be ended.” Motivated by racist events of the day, namely swastika paintings, anti-Semitism, and racial hatred against nonwhite peoples prevalent in the late 1950s, the Convention today has 179 states parties.
The Convention's objective, further explained in its Preamble, was nothing less than the “elimination of all forms of racial discrimination.” Its legitimacy and authority were directly linked to the legally binding obligations all nations undertook to uphold regarding human rights as expressed in the UN Charter. The representative from Poland in the Commission on Human Rights viewed the preamble as a “sort of ratio legis of the instrument which it preceded, the preamble was an important factor in interpretation.” The Canadian representative remarked that the draft preamble rested on “its strength and not its length.” Representative Willis from the U.S. characterized ICERD as a “lofty statement of ideals.”
Consisting of twenty-five articles, the treaty defines racial discrimination in Article 1.1 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.” Here, racial discrimination is linked to an act (distinction, exclusion, restriction or preference) that is connected to either a purpose or an effect. The treaty's vague language does not define race and, instead, expands its contextual reference to include color, descent, national origin, or ethnic origin. Thus, the violation prohibited by international law is linked to discrimination on the basis of race without clarity about what that means.
This wording of the treaty is a product of disagreement that begat its creation, as revealed by the travaux préparatoires. In writing a treaty that would outlaw racial discrimination, the drafters struggled to define the harm and conceptualize what that meant. There was disapproval that the preamble only referenced racial discrimination “in some parts of the world, ” which gives plausible deniability to governments. The discussion turned to various forms of racial discrimination. Jordan proposed a list: “fascist, colonial, tribal, Zionist.” Western states stressed the racial discrimination that emanated from Nazi ideology and anti-Semitism. African nations and the U.S.S.R. discussed racial discrimination as a component of colonialism and apartheid. Some sought to name racial discrimination more specifically, whether as anti-Semitism, Nazism, or fascism. The representative from Saudi Arabia argued that “there were countless ‘isms' which would have to be enumerated if any one was.” He inquired if anti-Semitism was best understood as religious intolerance not racial, raising the question of whether the animus against Jewish people aims at religion or at Semitic origin. The representative from Israel responded that “[t]he Jewish people knew exactly what anti-Semitism was, for it had too long been its victim, whether for racial, religious or other reasons; to those who had suffered from racial discrimination, qualifiers were not important.” Representatives from many countries asserted that racial discrimination was either not present in their country or did not apply to their minorities or indigenous peoples. Ultimately, the proposal by Greece and Hungary during the 1311th meeting, that the Convention should not reference specific forms of racial discrimination in the treaty, almost prevailed. As specifically cited in Article 3 of ICERD, apartheid proved to be an exception on the basis, as argued by Nigeria, that it was an official policy of a UN member state, and that the Union of South Africa had denied that apartheid was racially discriminatory. Racial segregation was another. As is often the case, an effort to reach agreement among divergent views came at the cost of adopting specific commitments and definitions.
In the end, the final text of the 1965 treaty, for all of its groundbreaking ideas, failed to name or to define forms of racial discrimination beyond apartheid and segregation. Its uncertainty about how rigorously it intended to constrain state behavior is apparent in its framing. For example, the final language of the Convention says “any doctrine of superiority based on racial differentiation” not “any doctrine of racial differentiation or superiority” as appears in the Declaration. As Keane argues, this construction of the language in the Convention suggests that there may be separate races instead of repudiating the entire concept of race, as science has now done. He says this “departure from the position expressed by the signatories to the Declaration is similar to the difference between the first and second UNESCO statements on race, the second of which refused to deny the existence of... race in line with its predecessor, ... condemning only the notion of racial superiority.” This, in many ways, repeats the drafting of the UN Charter, which does not reference racism or racial discrimination. Instead, in four instances, it refers to state commitment that shall be undertaken “without distinction as to race.” ICERD, as interpreted through the context of its preamble, links the meaning of racial discrimination as understood by the drafters to the contexts of colonialism and apartheid in South Africa. The Convention did not go as far as to name racism, only “racist doctrines and practices” in the Preamble and “racist activities” in Article 4. It does not discuss ethnic minority rights, which were also omitted from the UN Charter and the UDHR. As Thornberry remarks, “[i]t is not abundantly clear from the travaux how the experts and delegates involved in the drafting, who perceived racial discrimination as necessitating an enduring instrument to combat it, reflected on the fit between the title and the elusiveness of the target.”
All of these historical and legal observations point to a central challenge: that the lack of definitional clarity plagues nations' attempts to eliminate racial discrimination to this day. Here, state interests and the power of certain states to protect their interests above others frustrated attempts to move forward a treaty that directly named racism. If countries could maintain the view that racism was only a problem in certain places because of certain state-sponsored practices, there would be no need for a universal treaty against racism. In short, it remained the case in 1965 that while most countries readily acknowledged the most disturbing examples of international legal wrongs arising from slavery, colonialism, apartheid, and segregation, many were unwilling to accept that racism was a matter of common concern to be governed by international law.
The ICERD treaty established the Committee on the Elimination of Racial Discrimination (“the Committee”), which carries out the treaty's charge. States that are party to ICERD must submit regular reports to the Committee on how they are fulfilling their treaty commitments. In 2011, the Committee published selected decisions from 1988-2011. Covering claims by individuals submitted directly to the Committee pursuant to Article 14 of ICERD, the report documents allegations of racial discrimination in employment, inability to apply to a legal bar association, bias by jurors during trial, and reluctance to enforce laws preventing racial discrimination against renting or buying a home. Each of these cases rests upon a state's obligation to create and enforce laws preventing racial discrimination. In many of the cases, the alleged violation of human rights is also caused by private individuals who were allegedly thinking and behaving in racist ways. The Committee's response ranged from inviting a state to provide an update to the Committee in the future to suggesting how the state should improve the application of its laws and policies. There are eight mentions of the word “racism” in the report and, other than referring to an organization with the term in its name, the term is exclusively used by those individuals who submitted the facts as they recall their experiences. Herein, we see how a person experiences Islamophobia “as a form of racism.” This kind of example once again begs the question as to the definition of racism and its relationship to anti-Semitism, Islamophobia, and xenophobia. However, the Committee, as author of the report, does not itself use the term racism or signal that its decisions addressed the complaints of racism.
By comparison, another United Nations human rights body has taken up discussion about racism more directly. The Ad Hoc Committee on the Elaboration of Complementary Standards, established by the UN Human Rights Council in 2007, has a mandate to elaborate, as a matter of priority and necessity, complementary standards in the form of either a convention or additional protocol( s) to the International Convention on the Elimination of All Forms of Racial Discrimination, filling the existing gaps in the Convention, and also providing new normative standards aimed at combating all forms of contemporary racism, including incitement to racial and religious hatred.
At its ninth session, which focused on xenophobia, the Ad Hoc Committee experts expressed meaningful concerns about the rise of racism, citing the term several times in their discussion of xenophobia. They noted the need to better define xenophobia and had some disagreement about the inclusion of Islamophobia.
This demonstrates, once again, the continued challenges surrounding the definition of racism and its relationship to other forms of harm based on racial ideology. In terms of solutions, ideas abound about strengthening national measures, such as laws on discrimination, or the criminalization of hate speech via an Additional Protocol. There were also calls for public education to raise awareness. The representative from Tunisia, speaking on behalf of the African Group, recalled that “[t]he contemporary manifestations of racism included xenophobia, Islamophobia, anti-Semitism, propagation of racism and xenophobic attacks through cyberspace, racial profiling and incitement to racial, ethnic and religious hatred. She said that victims of profiling required better protection from these manifestations. Maximum remedies should be applied and impunity for perpetrators of acts of racism should be eliminated.” The statement of support by the EU centered around its commitment to two core human rights principles: equality and non-discrimination and there was discussion about legislation adopted by the EU to prohibit racial discrimination. In its final report, the Ad Hoc Committee explicitly names racism, concluding:
The fight against racism, racial discrimination, xenophobia and related intolerance was a collective imperative that required the support and contributions of all Member States, if peaceful global coexistence was to be achieved. The way forward was for all to work together at all levels to combat the growing trend of xenophobia and racial profiling. Efforts must be redoubled to limit the contemporary forms of racism that were on the increase, particularly those forms targeting, among others, persons of African descent, immigrants and refugees. Those countries currently plagued by growing racism must take the Durban Declaration and Programme of Action seriously and ensure that it guided domestic policies.
Overall, the inner workings of these human rights bodies reveal important and enlightening truths. Among them is the reality that victims of racism often use the word racism, and not just racial discrimination, to describe their experiences. One reason for this may be because racism signifies a connection to the person doing the racist act whereas racial discrimination can depersonalize the experience. When a person has been dehumanized by another who is racist, there is a corresponding need to name not just the harmful act but also the person(s) responsible for that act.