International Law and Racism

Introduction

The international protection of human rights developed as a distinct and fundamental branch of International Law. Although a limited set of legal norms designed to protect individuals against mistreatment has been in existence since the beginnings of the Law of Nations. The human rights revolution did not appear suddenly, like Minerva springing from Jupiter’s head. Its main substantive rules and its procedural safeguards can be traced back many centuries, to the origin of International law itself.[1]

Racism, in all of its forms, is a widely acknowledged human rights problem of our day. Variously defined, racism threatens the lives and rights of millions of people around the world. Despite outlawing racial discrimination through multilateral treaties, governments continue to perpetuate and permit racism with impunity, and individual acts of racism are commonplace. Its elimination remains an unrealised promise of universal human rights. Today, the ills from centuries of harms from slavery, genocide, colonialism, apartheid, and racism are coming to light as new voices replace old histories. Critical race theory, Third World Approaches to International Law (“TWAIL”), and other schools of thought have shown how race, racism, and racial ideology have played critical jurisgenerative roles in the development of human rights and of international law more broadly.

Sources of International Law prohibiting racism

After World War II ended, treaties, international courts and tribunals, and diplomatic exchanges between nations proliferated marks a new era of international cooperation. Individuals gained rights under International Law. This development entailed four different law-building stages: an assertion of global concern about human rights in U.N. Charter; listing of those rights in the Universal Declaration of Human Rights; elaboration of the rights in the International Covenant on Civil and Political Rights and the adoption of fifty additional declarations and conventions regarding racial discrimination, etc. None of the treaties use or define the term racism. But, two declarations somewhat come close to identify it indirectly.

-UNITED NATIONS CHARTER (1945)

The UN Charter, the foundational source of treaty-based international law, does not include the term racism in its text. Nor does it discuss slavery, colonialization, or apartheid, all of which were politically salient topics at the time of the Charter's creation. Here is what the Charter does clarify concerning the subject. In Article 1.3, the Charter encourages "respect for human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Article 13.1.b authorises the General Assembly to study and to make recommendations on international cooperation, again, without distinction to race and other factors. Similar language is found in Article 55.c discussing international economic and social collaboration and in Article 76.c in addressing the human rights objectives of the trusteeship system.

-UNIVERSAL DECLARATION OF HUMAN RIGHTS (1948)

Adopted in 1948 by the UN General Assembly, the Declaration specifies for the first time a set of human rights intended to be universal in scope. Article 4 prohibits slavery and sets forth the right to be free from bondage. Article 7 sets forth the right to equal protection under the law against discrimination. The Declaration is not a treaty and, although some have argued it is now a form of customary international law, it is generally not viewed as creating binding legal obligations.

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION (1965)

This treaty entered into force in 1969 and has 88 signatories and 177 parties. Pursuant to Article 2, the treaty condemns and defines racial discrimination and obligates state parties to “pursue by all appropriate means” to eliminate racial discrimination. Moreover, it requires state parties not to “sponsor, defend or support” racial discrimination. This includes prohibiting racial segregation and apartheid (Article 3) and criminalizing hate groups (Article 4). Notably, Article 1 defines racial discrimination 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.”

The effectiveness of an International Legal Regime- Combating Racial Discrimination

The Convention has been credited with a number of positive impacts: amendments to national constitutions and laws to include provisions prohibiting racial discrimination; systematic reviews of existing laws and regulations to amend those which tend to perpetuate racial discrimination and the passing of new laws to satisfy the requirements of the Convention; making racial discrimination a punishable offence; legal guarantees against discrimination in justice, security, political rights or access to places intended for use by the general public; educational programs; and the creation of new agencies to deal with problems of racial discrimination and to protect the interests of indigenous groups.

These achievements result in large part of the enforcement machinery built into the Convention, which establishes a committee on the Elimination of Racial Discrimination (CERD) to oversee its implementation by the state parties. It was the first body created by the United Nations to monitor and review actions by member states to fulfill their obligations under a specific human rights treaty. By late 1999, declarations had been made by a total of twenty-nine state parties. In addition to developed countries such as Finland, Luxembourg, Spain, and Italy, developing countries like Algeria, Chile, Costa Rica, Ecuador, Republic of Korea, Senegal, South Africa, and Uruguay have made declarations. Complaints have been filed against the following countries: Sweden, Denmark, Australia, Slovakia, Norway, the Netherlands and France. A total of seventeen communications have been received by the CERD. Ten complaints were concluded. In four of these complaints, state parties were found to be violating the Convention.

Case Analysis to gauge the effectiveness of the Convention

The case involved a Danish citizen of Pakistani origin who claimed to be a victim of violations by Denmark of article 2(l)(d) and Article 6 of the Convention (CERD/C/56/D/16/1999, Communication No. 16/1999). In 1998, the petitioner and his brother were waiting with a video camera outside a room where a friend of theirs was taking an examination. They were told to leave by a teacher. Later, the headmaster called the police and publicly referred to the petitioner and his brother as 'a bunch of monkeys'. They complained to the police. The police and the State Attorney refused to prosecute the headmaster for the racist remark. In fact, the police investigation was summarily concluded after interviewing the headmaster and one teacher involved in the incident. After reviewing the case, the Committee commented that on several occasions, people were convicted by the Danish Courts for breaches under the Criminal Code for insulting or degrading remarks similar to the one uttered in the present case. It held that Article 6 of the Convention was breached as the petitioner was denied an opportunity to establish whether his rights under the Convention had been violated. Furthermore, he was denied adequate protection against racial discrimination and remedies set up by the state party. The Committee's recommendation was that the state party should 'ensure that the police and the public prosecutors properly investigate accusations and complaints related to acts of racial discrimination which should be punishable by law according to Article 4 of the Convention'.

Conclusion

The international human rights movement has helped create a world in which slavery, genocide, apartheid, and segregation are repudiated, and, with the adoption of ICERD, racial discrimination is prohibited. Together, these milestones move the dream of universal human rights closer to reality. However, racism remains a barbaric and pervasive truth for too many people and is the under-acknowledged human rights violation of our day. In response, nations must recommit themselves to upholding international legal obligations to prevent racial discrimination and to undertaking meaningful measures to promote equality and dignity.

References

1). Louis B. Sohn, The New International Law: Protection of the Rights of Individuals Rather than States, 32 Am.U.L. Rev. 1-10 (1982)

[Kunwar Bir Singh, 3rd year B.A.LL.B.(Hons.) student from University Institute of

Legal Studies, Panjab University, Chandigarh.]