International Law’s Racism Problem

Opinio Juris

[Anna Spain Bradley is a Professor of Law at the University of Colorado School of Law.]

International law has a racism problem. Since 1950, when UNESCO published its seminal report, The Race Question, the international community has been on record that race has no basis in biology or science and that racism “directly affects millions of human lives and causes countless conflicts.” Yet the international legal community’s response to racism has been inadequate, at best. Even when nations agreed to the International Convention on the Elimination of Racial Discrimination in 1965, seeking nothing less than the “elimination of all forms of racial discrimination,” many states pointed the finger elsewhere rather than at themselves. They simply denied or deemphasized that racial discrimination against ethnic or racial minorities and indigenous people was a problem in their own nation. 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 racial segregation. The Convention condemns “any doctrine of superiority based on racial differentiation” but not “any doctrine of racial differentiation or superiority” as appears in the Declaration. The difference between the two constructions, as David Keane argues, is that the Convention only attacks the idea of racial superiority not the entire concept of race, which marked a departure from the earlier view taken by UNESCO.

Despite this treaty, governments today continue to perpetuate and permit racism and individual acts of racism are commonplace. In June 2018, the National Association for the Advancement of Colored People (NAACP) documented the rise in racially-motivated hate crimes in America. Police continue to racially profile and murder African Americans at alarming rates, prompting public outcry but little remedy. Law enforcement efforts to curb rape and sexual assault have failed to protect Alaska Native women, who experience disproportionately high rates of sexual crimes and murder. Latinxs report encountering discrimination by landlords and employers in their efforts to rent homes or interview for jobs, and a recent poll reports that 37% have been the target of racial slurs. Islamophobia against Muslims persists across racial groups. In New York City, hate crimes against Jewish people were up by approximately 6% in 2018. Of course, racism is not isolated to America. It harms people around the world.

Moreover, recent tragedies have called attention to the desperate need for nations to take stronger measures to prevent racism. Attacks like those committed by Anders Breivik at a summer camp in Norway; Brenton Tarrant at a mosque in Christchurch, New Zealand; and Patrick Crusius at Wal-Mart in El Paso, Texas, have a new name – white supremacist terrorism – and are sparking conversations about the nature of this threat. These men all espoused an ideology of white supremacy, variously defined, as motivating their violent, murderous attacks. If this is understood as terrorism, a word poorly defined under international law, it becomes a matter of state responsibility.

Here it is vital to understand that racism manifests as more than acts of discrimination. It is rooted in an aggressive ideology that motivates behavior and, unchecked, it poses a core threat to the purposes and principles of international law, namely peace, security, equality, and human dignity. Racism works by dehumanizing individuals and communities not only by denying their inherent equality and dignity, but by doing so on the basis of a constructed category of race designed for the very purpose of separating humans into a hierarchy meant to elevate some and suppress many. In his bestselling book Faces at the Bottom of the Well: The Permanence of Racism, Derrick Bell describes the unique pain that racism inflicts, writing that “[b]lack people are the magical faces at the bottom of the society’s well. Even the poorest whites, those who must live their lives only a few levels above, gain their self-esteem by gazing down on us.” His words tell a narrative of social hierarchy centered on a social construct of race. This hierarchy manifests itself in alternate forms depending on the nation. The common feature is that whiteness, however defined, is at the top. As such, racism is a tool of oppression with global reach.

This is why one treaty eliminating racial discrimination isn’t enough. States need to do more, starting with naming and working to eradicate racism. For example, under ICERD, the Committee on the Elimination of Racial Discrimination makes recommendations to nations on how they can better comply with the treaty’s prohibition of racial discrimination. Many individuals, however, use the word racism to describe the nature of the harms they have experienced. Without a common understanding of the distinction between the two words, the Committee’s capacity to address present day challenges and hold states to their treaty obligations is encumbered. A second example comes from the International Court of Justice’s handling of  Georgia’s 2008 application that the Russian Federation violated Article 2.1.a of ICERD by “engaging in acts and practices of ‘racial discrimination against person, groups of persons or institutions’ and failing ‘to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation.” The Court found it did not have jurisdiction over this case in its ruling and reiterated the obligations states owe under the ICERD treaty to “refrain from any act of racial discrimination against persons, groups of persons or institutions; abstain from sponsoring, defending or supporting racial discrimination by any persons or organizations.” In doing so, the Court affirmed what the treaty states, that the problem is one of racial discrimination alone, understood as acts. However, the harms of racism arise not only from acts but also from ideology. In Human Rights Racism, recently published in the Harvard Human Rights Journal, I examine these and other challenges and argue for recognizing racism as a violation of human rights alongside racial discrimination. The bottom line is this, international law needs to do more to fight racism.

And so do the people who practice, study, and lead the field. It is a sad fact, for example, that in 2019 most leading casebooks in international law don’t even include the word racism in their index. Many students of international law are introduced to the importance of the “Grotian Tradition” but not that of the abolition of slavery or the Haitian Revolution. Leading international journals, such as the American Journal of International Law, rarely publish articles addressing racism despite the fact that great scholarship in this area exists and has for some time. I applaud international legal scholars who have pioneered such thinking, including Henry J. Richardson, Antony Anghie, Adrien Wing, and Makau Mutua.

We must ask ourselves why does the study and treatment of racism remain at the periphery of international law? Is it because, to paraphrase Kanye West’s dig at former President George W. Bush, international law doesn’t care about black and brown people? Some would answer with a resounding yes! As Antony Anghie has aptly explained international law has long been a tool for upholding racialized hierarchies.

So let me ask the same question a different way. Do we, the people who populate the spaces and places of international law—the judges, the diplomats, the attorneys, the scholars, the professors—care about racism and the people racism targets? Do we care about people of color? About the problem of white supremacy? Maybe many who serve at the helm of international law are uncomfortable addressing racism. Maybe it is not a priority for people if they believe it doesn’t affect them personally. Or worse, maybe not getting rid of racism is what some people, explicitly or implicitly, really desire.

We may never know. What we do know is this. Peace, security, and prosperity will remain out of reach if the ideology of white supremacy and the racism that emanates from it remains unchecked. Thus, it is time for a reckoning in the field of international law and among all who inhabit it with regard to racism. International law has long been a part of the problem. Now it is time for international law to be part of the solution.

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