ANALYSIS Thoko Kaime and Isabelle Zundel 06 May 2022
The africanlegalstudies.blog has sent the focus month “Longing for an Anti-Racist World” into a second round. Rightly so, since (un)surprisingly racism is still “one of the globe’s most severe catastrophes”[1] to cite Prof. Arndt in her contribution on this forum last year. The cruel manifestations of the past few years are but examples of a centuries-old system of “oppression and subjugation”[2]. And yet, they have triggered a hitherto unseen global debate on racism that espoused rare media and scholarly attention around the Black Lives Matter Movement and thereby nourished an all-important process of awareness-building. Besides the usual denials, obfuscation and soft-pedalling racism, serious engagement with individual and structural racism took place and counter-measurements were sought. This necessary process of learning and un-learning should and must not be interrupted now which is why we are here again – contributing to this focus month.
So, what can the role of law be in longing for an anti-racist world? A possible mechanism to “get a grip” on racism could be the international human rights framework. Consequently, in this short contribution, we would like to touch upon racism and racist discrimination in the context of international human rights law and closely relate to Prof. Bradley’s claim racism would be the “underacknowledged human rights problem of our day”[3] in this short contribution.
The (un)neutral law and its historical baggage
The law has an age-old reputation for objectivity, which many black letter lawyers are working hard to be maintained. Most likely Ngũgĩ had this very type of lawyer in mind when she sarcastically warned scholars to “not bring the disease of political activism in [their] scholarship”.[4] However, despite these efforts, the law has been debunked multiple times as not being racially neutral, inter alia by the Third World Approaches to International Law (TWAIL).[5] Ultimately, white supremacy has left its mark in all spaces of life, including the law.[6] Bradley has argued that “international law was built on a racist world order and those historical roots still permeate every level of international law today”[7].Thereby, the law has a dual function: it is shaped by the racist power-structures of the world and perpetuates them at the same time. The appearances of racist and (neo) colonial structures in the legal context (including its institutions) are closely entwined. This is evident and manifests itself until today at the structural, conceptual and practical level. Therefore, approaches of entanglement can by their very nature not be seen without their counterpart. Despite this deeply problematic point of departure, international law and international human rights law aims to eliminate all forms of racial discrimination. This raises the question on how a “white-dyed” law can serve as facilitator of elimination at all and to what extent the current frameworks in place do justice to this target.
The international human rights system
The international human rights system has over time created a framework with different legal documents and institutions that aims for the elimination of all forms of racial discrimination. The United Nations Charter (1945) has expressed the purpose of the United Nations in Art. 1 Abstract 3 “to achieve international co-operation in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race [and others]”. Shortly after, the Universal Declaration of Human Rights (1948) was adopted which urges in Art. 7 the protection of the law without any discrimination. Due to the persistence of racial discrimination has the UN General Assembly adopted the International Convention on the Elimination of All Forms of Racial Discrimination in 1965 to tackle the problem with a particular treaty and its treaty body. Today, 182 states have ratified the Convention.[8] The Committee on the Elimination of Racial Discrimination has, in its mandate to monitor the implementation of the treaty and review the fulfilment of obligations by the states which have adopted the treaty, repeatedly drawn attention to specific appearances of racial discrimination and urged states to eliminate this existing status.[9]
Where is the racism in the international human rights framework?
Despite the creation of this legal framework, racism remains the “underacknowledged human rights problem of our day”[10]. In this regard, Bradley has identified a number of shortcomings of the current framework and expressed specific claims to amplify the engagement of international human rights law: She claims the necessity to explicitly recognise racism as a human rights violation and criticises the current “lack of definitional clarity”[11] by highlighting the distinction between racism and racial discrimination. So far, the international human rights system speaks in its documents only of race and racial discrimination, but not racism. Bradley differentiates the two by saying: “Racism signifies a connection to the person doing the racist act whereas racial discrimination can depersonalize the experience”[12]. According to Bradley, it is essential to recognise racial discrimination beyond the perception of a mere institutional or anonymous racist act and instead shed light on the person doing the racist act.[13] She urges the need to acknowledge and govern the racism of individuals within the framework, too. Consequently, she envisions the process of identifying racism as violation of human rights to provide further protection on a legal and symbolic level. Finally, she emphasises the importance and force of “naming moments”[14] in the sphere of individuals who have the possibility to shape the determinants of international human rights law and vice versa.
What is radical enough?
The question if and how the present framework of international human rights law despite its historical baggage can serve as a mechanism for achieving an anti-racist world persists. Bradley acknowledges and shares the concerns of TWAIL and critical race theory towards the persistent racist nature of the law. Thus, it remains to be seen how massive and radical the adaptations/changes towards the existent frameworks have to be to serve as liberation mechanism. Key to any successful framework is the ability of international law to identify and punish racism; the ability to spawn supporting normative frameworks and institutions that root out racism and racists. Without such a radical step, we must expect the same results that we have achieved from these feeble attempts at outlawing racial discrimination – a depressing perspective.
[1] Susan Arndt, ‘Pleading for White Responsibility in the Struggle Against Racism’ (African Legal Studies, 28 May 2021) <https://africanlegalstudies.blog/2021/05/28/pleading-for-white-responsibility-in-the-struggle-against-racism/> accessed 21 April 2022.
[2] Anna S Bradley, ‘Human Rights Racism’ (2019) 32 Harv Hum Rts J 1, 33.
[3] ibid, 2.
[4] Mukoma wa Ngũgĩ, ‘White Privilege in African Studies: When You Are Done, Please Call Us’ <https://brittlepaper.com/2021/01/white-privilege-in-african-studies-when-you-are-done-please-call-us/?fbclid=IwAR2RRB46faPQleMNQC__EH-BSO9kWWuV4Zj27R_YsspiTAd9Juyz0AU8JLw> accessed on 27 January 2022.
[5] Kimberlé Crenshaw, ‘Race liberalism and the deradicalization of racial reform’ [2016] Harv L Rev 2298.
[6] Bradley (n 2), 56.
[7] ibid, 52.
[8] United Nations Human Rights Office of the High Commissioner, ‘Status of Ratification Interactive Dashboard’ <https://indicators.ohchr.org/> accessed on 27 April 2022.
[9] Read more about the mandate and achievements of CERD <https://www.ohchr.org/en/publications/fact-sheets/fact-sheet-no-12-committee-elimination-racial-discrimination-archive> accessed on 27 April 2022.
[10] ibid, 2.
[11] ibid, 23.
[12] ibid, 25.
[13] ibid, 48.
[14] ibid, 49.
