Tuesday, November 29, 2022

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A. Defining Racism

Acknowledging that there is no single, universally-accepted meaning of racism, this section examines existing definitions in order to sketch racism's current definitional architecture. As revealed in Part I, there was certainly a paucity of legal engagement with racism in international law and human rights spaces in earlier eras, in part, because for some of the time the word did not even exist or was not in common usage. However, the origins of the word in English date back to at least 1902 and, by 1950, it was defined in a UNESCO publication, The Race Question. Therein, the report provides that: “[r]acism is a particularly vicious and mean expression of the caste spirit. It involves belief in the innate and absolute superiority of an arbitrarily defined human group over other equally arbitrarily defined groups” and “[a]s an ideology and feeling, racism is by its nature aggressive.”

Today, English language dictionaries define racism as “a distinctive doctrine, cause or theory, ” or “an oppressive and especially discriminatory attitude or belief, ” or a “prejudice, discrimination or antagonism directed against someone of a different race based on the belief that one's own race is superior.” The concept contains an aspect of animus or “motive or intent to interfere with the exercise of a right.” This can result in an action or behavior such as hate speech, physical violence, or violating someone's rights that may take the form of racial discrimination. Racism also connotes “[t]he belief that all members of each race possess characteristics, abilities or qualities specific to that race, especially so as to distinguish it as inferior or superior to another race or races.” Thus, the definition of racism varies.

There are a few instances where nations have adopted or permitted legal definitions of racism in certain regional agreements and bodies that provide important guidance. For example, the European Commission against Racism and Intolerance (“ECRI”) distinguishes racism as “the belief that a ground such as race, colour, language, religion, nationality or national or ethnic origin justifies contempt for a person or a group of persons, or the notion of superiority of a person or a group of persons, ” the emphasis here being on belief. The Inter-American Convention against Racism, Racial Discrimination and Related Forms of Intolerance defines racism as “any theory, doctrine, ideology, or set of ideas that assert a causal link between the phenotypic or genotypic characteristics of individuals or groups and their... traits, including the false concept of racial superiority” and acknowledges that racism leads to “racial inequalities, and to the idea that discriminatory relations between groups are morally and scientifically justified.” These sources provide important examples of how to define racism as a legal concept.

A central challenge that arises in defining racism is that its meaning is conceptually connected to one's understanding of race. Race has no basis in human genetics or biology. Instead, it is a sociological construct that has context-dependent meaning. Race is not a universal concept and has different meanings in Zambia than it does in Japan or the Dominican Republic. In the United States, race has been defined via the U.S. Census Form since 1790. On the 2010 census form, the available racial categories were: White; Black, African American or Negro; American Indian or Alaska Native; Asian Indian; Chinese; Filipino; Japanese; Korean; Vietnamese; Native Hawaiian; Guamanian or Chamorro; Samoan; Other Asian; Other Pacific Islander; or some other race, and such races are distinct from a separate category where people can identify as Hispanic, Latino or Spanish origin.

Racism is both conceptually dependent upon the meaning of race and independent as a manifestation of racial ideology that operates through thought, behavior, action, and inaction. UNESCO captured this in their 1950s construction of racism as “[a]s an ideology and feeling.” By contrast, racial discrimination, as conceptualized by ICERD, requires an action taken with “purpose or effect” of “nullifying or impairing” one's human rights. But defined in this way, the concept of racial discrimination misses the deeper root causes of racism, namely the racial ideologies and the biases some hold that influence their actions and behaviors.

Combating racism, therefore, requires understanding it as a manifestation of racial ideology. The common feature that connects racism across countries and spaces is its role in advancing a social hierarchy that places some people at the bottom and others at the top based on constructed racial categories. This hierarchy of racial ideology perpetuates a power structure that becomes embedded in law, politics, economic activity, and culture. In turn, racism's harm stems not only from an offensive action taken but also from the indignity suffered when a person or group acts with the belief that they are superior to another group on the basis of racial identity.