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ELIMINATING RACIAL DISCRIMINATION: THE PREVENTIVE AND ENFORCEMENT CHALLENGES



According to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, “States Parties undertake to prohibit and eliminate racial discrimination in all its manifestations and to guarantee the right of everyone, without regard for race, color, national or ethnic origin, to equality before the law,” particularly in the enjoyment of political, civil, economic, and social rights. Additionally, State Parties shall ensure effective protection and redress for victims of racial discrimination.

Both the United Nations Charter’s preamble and the 1948 Universal Declaration of Human Rights affirm that everyone has the right to enjoy all human rights and fundamental freedoms, regardless of race, color, or national origin. The UN system and its specialized agencies have prohibited discrimination and disseminated information addressing the issue and proposing solutions through various conventions and declarations. Despite these efforts, many minority individuals and groups continue to face various forms of discrimination, particularly in countries with a majority population or a history of colonialism and occupation. As we prepare to commemorate the Universal Declaration of Human Rights and the General Assembly’s adoption of the International Convention on the Elimination of Racial Discrimination, preventing and enforcing United Nations guidelines on racial discrimination remain a significant challenge. As a result, in states where racial discrimination persists, human rights for all continue to be violated.

Racism manifests itself differently in different contexts. For instance, in countries such as the United States that have enacted prevention legislation, changing social norms have prompted some commentators to coin terms such as “colorblind racism”1 and “laissez-faire racism”2 to describe the difficulties inherent in preventing racial discrimination and enforcing existing laws. Racial discrimination also manifests itself in practices widely considered to be relics of the past, such as race-based slavery, as in the case of the ongoing enslavement of dark skinned people in contemporary Mauritania3, as well as crimes against humanity or, as some argue, the genocide committed in the Sudan’s Darfur region.

The OHCHR’s participation in the 2001 World Conference against Racism, Racial Discrimination, Xenophobia, and Related Intolerance in Durban, South Africa, is an example of how the event’s discourses and the participation of thousands of non-governmental organizations, youth groups, and networks impacted millions of people. UNESCO’s role in formulating declarations and conventions – such as the Declaration on Fundamental Principles Concerning the Contribution of the Mass Media to Strengthening Peace and International Understanding, Promoting Human Rights, and Combating Racism, Apartheid, and Incitement to War, adopted on 22 November 1978 – demonstrates the United Nations’ role in fostering discord.

While genocide is not always directly related to racial discrimination, they are frequently linked, as demonstrated by the 2005 Report of the International Commission of Inquiry on Darfur to the Secretary-General. 4 The Commission noted that genocide is frequently facilitated and aided by discriminatory laws and practices, or by a failure to effectively enforce the principle of human equality regardless of race, color, descent, or national or ethnic origin. Given that the Convention requires States to prohibit racial discrimination and enact legislation to protect citizens, it is obvious that genocidal activities can be linked to a government’s human rights violations.

Thus, the Sudanese government can be held accountable for the estimated 1.65 million internally displaced persons in Darfur and the more than 200,000 Darfur refugees in neighboring Chad, all the more so given the Commission of Inquiry’s finding that “the Sudanese government and the Janjaweed are responsible for grave violations of international human rights and humanitarian law.” Additionally, it stated: “Throughout Darfur, government forces and militias carried out indiscriminate attacks, including the killing of civilians, torture, enforced disappearances, village destruction, rape and other forms of sexual violence, pillaging, and forced displacement. These acts were committed on a large scale and in a systematic manner, and thus may constitute crimes against humanity. Numerous women, men, and children have lost their livelihoods and means of survival as a result of the widespread destruction and displacement. Along with the large-scale attacks, numerous people have been arrested and detained, with many being held incommunicado for extended periods of time and subjected to torture. All of these violations have disproportionately affected members of the Fur, Zaghawa, Massalit, Jebel, Aranga, and other so-called ‘African’ tribes.”

This demonstrates the UN’s role in establishing the nature and scope of the Darfur problem, as well as its ability to demonstrate that it is the result of racial discrimination, demonstrating that it is an ongoing issue that requires the global community’s and civil society groups’ attention.

Examining the critical nature of preventing and enforcing the prohibition of racial discrimination, as mandated by various UN instruments, can illuminate the difficulties associated with addressing persistent racial discrimination four decades after the Convention was adopted. I will illustrate the social construction of race here through the work of two authors in order to stimulate discussion about racial discrimination and expose racism as facile thinking. Consider the “essentialist” definition of race, which views it as “a matter of innate characteristics, of which skin color and other physical characteristics are only the most obvious and, in some ways, most superficial indicators”5 and serves as the basis for enslavement in Mauritania today, at least in part. The other extreme is to trivialize race, arguing that because it is a social construction, it will vanish if we simply ignore it; this ignores the ways in which race has profoundly shaped Western civilization over the last 500 years. It is critical to consider the social construction of race in light of B. K. Obach’s study of student responses to a racism course. 6 In the United States, he observed, “students frequently regard race as a given biological fact based on established scientific distinctions, ideas that are strongly reified throughout society by the media, government policy, and individuals who frequently embrace a racial identity.” Challenging students to “think outside the box” by considering race’s social origins is undoubtedly a mammoth task, but one that can be accomplished with tenacity and effective pedagogy. Obach proposes a strategy in which he acknowledges that the “socially constructed nature of racial categories can be demonstrated in part by examining the historical developments that resulted in the establishment of commonly used racial categories, as well as the ways in which those categories and their meanings have evolved over time.” To demonstrate this, he cited Omi & Winnant5 as well as Haney Lopez7. He cited Asian Indians as an example, noting that they “were declared non-white by the courts in 1909, white in 1910 and 1913, non-white in 1917, white again in 1919 and 1920, but non-white after 1923.” Such conceptions can go a long way toward demonstrating that it is social relations, not inherent characteristics, that generate hierarchical ideas about race.

One could argue that the UN’s efforts to improve response strategies to racial discrimination have significantly improved as a result of the paradigm shift toward a more inclusive and proactive approach, “considering that systematic discrimination, disregard, or exclusion are frequently among the root causes of conflict.” CERD emphasized the importance of decision-making in strengthening the Committee’s capacity “to detect and prevent at the earliest possible stage developments in racial discrimination that may result in violent conflict and genocide” in the Convention on the Prevention and Punishment of Genocide. Thus, the Convention seeks to position prevention as a critical component of efforts to combat racism and genocide.

While there may be national initiatives to combat racial discrimination and exclusion, there is frequently an insufficient capacity to prevent discrimination within the jurisdiction of the States with the worst track records. However, education and human rights as the primary strategies used by civil society organizations to mobilize action and raise awareness about discrimination can have a positive effect on both prevention and response.