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Human Rights Racism

Anna Spain Bradley*

ABSTRACT

International human rights law seeks to eliminate racial discrimination in theworld through treaties that bind and norms that transform. Yet law"s impact oneradicating racism has not matched its intent. Racism, in all of its forms, remains amassive cause of discrimination, indignity,

and lack of equality for millions of people in the world today. This

Article

investigates why.

Applying

a critical race theory analysis of the legal history and doctrinal development of race and racism in interna- tional law,

Professor

Spain

Bradley

identifies law"s historical preference for framing legal protections around the concept of racial discrimination. She further exposes that international law has neither explicitly defined nor prohibited racism. In response,

Professor

Spain

Bradley

advances a long-overdue claim: racism should be affirma- tively and explicitly recognized as a human rights violation under international law. She argues that addressing racism in the world today requires uderstanding how human rights are violated by racial ideologies in addition to discriminatory acts.

Insights

from neuroscience about racial bias deepen these understandings. By naming "human rights racism" as the central challenge, this

Article

calls upon the international community to affirmatively recognize racism"s extensive harm and to take more seriously it"s eradication."tO]ur complaint is mainly against a discrimination based mainly on color of skin, and it is that that we denounce as not only indefensible but barbaric." -W.E.B. Du Bois, (1947)1 * Professor of Law & Assistant Vice Provost for Faculty Development and Diversity, University of

Colorado-Boulder. For their

helpful comments and conversations

on earlier versions of this project, Ithank E. Tendayi Achiume, Adam Bradley, Laurel Fletcher, Sarah Krakoff, Saira Mohamed, CatherinePowell, Natsu Taylor Saito, Scott Skinner-Thompson, Chantal Thomas, Ahmed White, and AdrienWing, along with the participants of colloquium at the University

of

California-Berkeley Law

School,

the

University

of

Houston

Law

Center,

and the Race in

International

Law

Conference

at the

University

of Colorado Law School. I am grateful to Jane Thompson and Matt Zafiratos for their invaluable re- search support.

1. The National Association for the Advancement of Colored People, An

Appeal

to the

World!:

A

Statement

on the

Denial

of Human

Rights

to Minorities in the Case of Citizens of Negro Descent in the UnitedStates of America and an Appeal to the United Nations for Redress 12 (W.E. Burghardt Du Bois ed., 1947).

Harvard Human Rights journal / Vol. 32

INTRODUCTION

Racism, in all of its forms, is the underacknowledged human rights problem of our day. Variously defined, racism threatens the lives and rights of millions of people around the world.2 Despite outlawing racial discrimi- nation through a multilateral treaty in 1965, governments continue to per- petuate and permit racism with impunity and individual acts of racism are commonplace." Its elimination remains an unrealized promise of universal human rights. This Article critically examines why. The United States offers a sad example where, despite anti-discrimina- tion laws and equal protection rights, the government has failed to protect its people from racism.4 Police continue to racially profile and murder Afri- can Americans at alarming rates, prompting public outcry but little rem- edy." Law enforcement efforts to curb rape and sexual assault have failed to protect Alaskan Native women, who experience disproportionately high rates of sexual crimes and murder.6 Latinxs report encountering discrimina- tion by landlords and employers in their efforts to rent homes or interview for jobs, and a recent poll reports that 37 percent have been the target of racial slurs.7 Islamophobia against Muslims persists across racial groups., In June 2018, the National Association for the Advancement of Colored Peo-

2. Though the precise origin of the word racism is unknown, the Oxford English Dictionary traces

its use to 1902 at the 12th Annual Meeting of the Lake Mohonk Conference of Friends of the Indian in New York. Racism, OXFORD ENGLisH DICTIONARY (2019), http://wvw.oed.com/view/Entry/

157097?redirectedFrom=racism&print [https://perma.cc/E36A-7S92). The term was used and defined

in UNESCO, THE RACE QUESTION 3 (1950); WEBSTER"S COLLEGIATE DICTIONARY (1947) contains a

definition of "racialism" as "racial prejudice, race hatred," but not racism. By 1974, racism was defined in

Webster"s Collegiate Dictionary. This Article addresses race, racial discrimination, and racism, which

are not universally defined by or within nations. In Part ILA, I discuss various definitions and introduce

my own conceptualization of racism for purposes of this Article.

3. International Convention on the Elimination of All Forms of Racial Discrimination, Dec. 21,

1965, T.I.A.S.94-1120 (hereafter ICERD), art. 1 ("1. In this Convention, the term "racial discrimina-

tion" shall mean 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.").

4. Act of Sept. 14, 2017, Pub. L. No. 115-58, 131 Star. 1150 (joint resolution of Congress ac-

knowledging the "growing prevalence" of "hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy").

5. Between 2014 and 2016, for example, Eric Garner, Michael Brown, Tamir Rice, Alton Sterling,

Laquan McDonald, Freddie Gray, Sandra Bland, and Philando Castile were among the disproportionate

number of African Americans killed by police or who died in police custody. See, e.g., Jasmine C. Lee

and Haeyoun Park, 15 Black Lives Ended with Confrontations with Police. 3 Officers Convicted, N.Y. TIMES

(Oct. 5, 2018), htrps://www.nytimes.com/interactive/

2017/05/17/cis/black-deaths-police.html [https://

perma.cc/6494-ZEFJ]; Alvin Chang, There are huge racial disparities in how US police use force, Vox (Nov.

14, 2018), https://www.vox.com/cards/police-bnitality-shotings-us/us-police-racism [https://perma.cc/

NXR6-ZY4B] (reporting that black people make up 62.7 percent of all the unarmed people killed byquotesdbs_dbs46.pdfusesText_46

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