C. Recognizing Racism as a Violation of International Human Rights
Racism ought to be recognized as a violation of human rights on the same grounds that racial discrimination is. The basis for outlawing racial discrimination in international law rests upon the idea that it negates the core human rights of dignity, self-determination, and equality. This frame imposes a duty on states not to discriminate on the basis of race because doing so will inhibit certain individual positive rights, including equality and dignity. The Commission on Human Rights, which prepared the original draft of the Declaration on the Elimination of Racial Discrimination for the UN General Assembly, justified the Declaration's purpose on the basis of the rights affirmed by the earlier UN Charter and UDHR. Doing so extended the same legitimacy enjoyed by the Charter to the Declaration and to ICERD.
But framing the problem as one of racial discrimination does not recognize the entirety of the problem. The focus is on the discriminatory act that robs a person of her dignity or equality. However, a loss of dignity can also occur due to the racist hatred to which one person subjects another person. Reframing the problem as one of racism focuses not only on the discriminatory act but also on the harm as experienced by the victim. The concept of racism captures the experience of a victim, not just the act of the perpetrator. It encompasses ideology, thought, and feeling, in addition to outward, observable acts of racial discrimination.
Naming racism as a violation of international human rights is critical to the project of universal human rights that depends on dignity and equality for all. The problem with laws that only prohibit racial discrimination was pointed out by Derrick Bell in his seminal work, Faces at the Bottom of the Well:
A preference for whites makes it harder to prove the discrimination outlawed by civil rights laws. This difficulty, when combined with lackluster enforcement, explains why discrimination in employment and in the housing market continues to prevail more than two decades after enactment of the Equal Employment Opportunity Act of 1965 and the Fair Housing Act of 1968.
The same challenge plagues human rights protections in international law. The international legal and political processes designed to create and enforce human rights were not designed by or for those who are the targets of racism. Because of this gap between those who shape international law and those for whom it acts upon, it is necessary for the law to better clarify the protections it provides.
Finally, acknowledging racism as a violation of human rights presents an opportunity for international law to reaffirm the problematic nature of race as a concept. First, race is a sociological construct that has no basis in science. Second, as a construct, it is not merely a neutral, benign tool for classifying people within the human species. Instead, race has been and continues to be used as a tool for oppression and subjugation. As such, race exists for the very purpose of discrimination and upholding inequality.
In conclusion, the universal prevalence of racism challenges the universal ambitions of international human rights law, whose foundational purpose is to affirm that all humans are entitled to basic rights inherent to their very existence. These rights, variously defined, are absolute in nature. The notion that a person can be denied rights or have her rights violated because another person deems herself racially superior is antithetical to these first principles.