The Neglected Potential of the International Convention on the Elimination of All Forms of Racial Discrimination
Why do anti-racism laws fail to combat racism effectively? That is the leading question raised in this symposium. The editors offer two possible answers: Do we have “unrealistic expectations regarding the potential of law in general”? Or are there “inherent flaws in legal design”? While I think this is a sound framing of the issue in general, I see the challenge slightly differently with regard to international law: The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the most important international legal instrument concerning racial discrimination, constitutes a rather sophisticated as well as far-reaching legal framework for combatting racial discrimination. It has been interpreted and progressively developed by the Committee on the Elimination of Racial Discrimination (CERD) in order to effectively implement the Convention’s promise, enshrined in its preamble, “of the dignity and equality inherent in all human beings” as well as the State Parties’ conviction “that the existence of racial barriers is repugnant to the ideals of any human society”.
In this short contribution, I will outline the Convention’s potential in addressing the structural dimension of discrimination. I will further point to the conditions responsible for the fact that this potential has yet to be fully realized. I will argue that the Convention’s design makes it a very promising legal instrument to combat racial discrimination in particular regarding its structural manifestations. Expecting this legal framework to be of use in combatting racism is not unrealistic, but the realization of this expectation is severely hindered by a lack of visibility of the Convention as well as a lack of resources for the Convention system, and, above all, the lack of political will of States to effectively implement their obligations under the Convention.
Addressing Structural Racial Discrimination Through (International) Law
Law and lawyers struggle with the concept of structural discrimination. Law prohibits, requires, or allows certain measures or behavior. Prohibitions of discrimination are therefore usually understood as prohibiting specific measures, by institutions or persons: discriminatory laws, a discriminatory act by the administration, a racist insult, or a racially motivated act of violence. Such a focus on specific measures, however, does not capture the full scope of racism and racial discrimination. It neglects the social, political, and historical context in which such laws are enacted, and discriminatory acts occur. In short: It fails to incorporate the structural dimension of discrimination.
Structural racial discrimination – or structural racism – is not a legal notion, but rather a sociological concept. Notwithstanding different conceptual and terminological understandings, it basically refers to a wider range of policies, practices, and attitudes that, through their interaction, enable and facilitate racial discrimination and sustain and perpetuate racial inequality. In this sense, Shreya Atrey, for example, describes structural racism as “embedded not in the minds of individuals but in the social, economic, cultural and political forces which define the relationships between people“. To effectively combat racial discrimination, the law does not only need to prohibit and counter specific and insular acts of discrimination but must also address the structural dimension of racism.
When international human rights institutions point out the prevalence of racism in a State, the answer of State representatives is oftentimes quite foreseeable: The laws of the State prohibit all forms of racial discrimination, it is usually said. The State is deemed to treat everyone equal, regardless of race or color. When instances of racial discrimination occur, the perpetrators are being prosecuted and punished, it is pointed out. What else can there be expected from the law?
The ICERD, in its interpretation by the CERD, answers this question in a number of ways. Let me just point out (as I have done more comprehensively elsewhere in German) some of the most significant ways in which the Convention translates the recognition that racism is a structural phenomenon into concrete legal obligations:
Indirect Discrimination
The prohibition of racial discrimination does not only encompass direct but also indirect forms of discrimination. Article 1(1) ICERD defines racial discrimination as differentiating measures which have “the purpose or effect” of impairing the human rights of the person. The Convention thereby recognizes that discriminatory acts are not only the result of malevolent human decisions but can also be produced by seemingly neutral and harmless rules and practices which due to the social reality in which they operate have disparate impacts on members of certain racialized groups and individuals.
Duty to Protect
The Convention emphasizes, in numerous provisions, that the State Parties are not only prohibited from engaging in acts of racial discrimination, but that they must also ensure that people are protected from racial discrimination. This duty to protect plays an important role in the practice of the CERD. In this context, the Committee’s focus, in particular when scrutinizing State Party reports, is on structural forms of discrimination in society: widespread and entrenched forms of racist hate speech and propaganda, the prevalence of negative stereotypes, or patterns of hostilities or violence directed at a specific racialized group. Structural racism triggers the obligation of States to protect from discrimination.
Economic, Social, and Cultural Rights
Art. 5 lit. e ICERD prohibits racial discrimination in relation to economic, social, and cultural rights. Discrimination in this context is usually of a structural nature. It can take the form of disparate levels of education, disproportionate rates of unemployment, as well as problems of racialized minorities to find adequate housing or patterns of segregation in housing. The Convention obliges State Parties to identify such structures of inequality and to take measures to address them.
Special Measures
Special measures (i.e. positive measures or affirmative action) are not only allowed under Article 1(4) ICERD but can also be required under Article 2(2) ICERD. Special measures address existing inequalities which are not the result of individual preferences but rather of structural discrimination.
The Contribution of CERD
The CERD regularly addresses manifestations of structural discrimination in specific States Parties. Discriminatory structures are regularly at the heart of discussions with States Parties during the State Reporting Procedure. The most recent Concluding Observations of the CERD concerning Germany, for example, explicitly highlight concerns and encompass recommendations with regard to structural discrimination. Submissions of individuals under the – optional – Individual Communications Procedure can also point to systemic issues which the Committee will then address. The Committee’s Early Warning and Urgent Action Procedure is focused specifically on systematic instances of racial discrimination.
What then are the reasons, why the far-reaching obligations under the ICERD regarding combating structural discrimination have not yet led to substantial changes in the States Parties?
Lack of Visibility
A first reason is the lack of visibility of the Convention and the practice of the CERD. Apart from its official forms of publications, the Convention is published on the website of the Office of the High Commissioner for Human Rights. It is translated into German and available, for example, on the website of the Federal Ministry of Justice or the German Institute for Human Rights.
The decisions and recommendations of the CERD are also easily available on its website. During the State Reporting Procedure, the Committee scrutinizes the level of implementation of the Convention by States Parties. It points out concerns and issues recommendations. Video recordings of the dialogue with States are available on UN Web TV. Important decisions and activities are communicated in the form of press releases. This applies also to decisions under the individual communications procedure as well as to statements and decisions made under the Early Warning and Urgent Action Procedure.
While at times some of these activities receive the attention of the media, more often than not, they go largely unnoticed. This lack of attention weakens the effectiveness of the ICERD quite significantly. While the ICERD contains legally binding obligations of States and the CERD is the authoritative body to interpret those obligations and supervise States Parties’ compliance with them, the CERD does not have the competence to issues legally binding decisions, let alone the capacity to enforce them. Public attention and public pressure therefore become important factors when it comes to ensuring compliance (“naming and shaming”).
A lack of attention also exists for parts of civil society. The CERD, like all UN human rights treaty bodies, depends on the input of civil society actors such as NGOs. They submit information to the Committee and scrutinize the reports of States Parties in a way that the Committee itself cannot do. Civil society actors furthermore can apply pressure on public authorities to comply with their obligations under the ICERD and the recommendations of the CERD. UN system and civil society thereby work hand in hand. Unfortunately, there is oftentimes a lack of attention or knowledge on the part of civil society organizations when it comes to making use of the resources provided by the UN system. While some NGOs regularly participate in the activities of the CERD and play an important role in holding States accountable, the full potential of the ICERD and the CERD for the advancement of racial equality has yet to be discovered by civil society.
Lack of Resources
Another obstacle for the full realization of the potential of the ICERD is the notorious lack of resources attributed to the UN human rights system in general and the UN treaty bodies and therefore the CERD in particular. While the members of the CERD do not receive a salary, their work requires support by the UN system. Members of the OHCHR not only fulfil administrative tasks such as organizing the regular meetings in Geneva and coordinating with States Parties, NGOs, and other stakeholders, but also prepare the dialogue with States Parties as well as the decisions and statements. Interpretation and translation into the three working languages (English, French, and Spanish) and sometimes beyond is not only time-consuming but also costly.
The UN human rights system is concerningly under-budgeted. While the budget of the OHCHR also depends on voluntary contributions, the regular budget is in the hands of the UN General Assembly – and therefore the UN Member States – which decides, on an annual basis, on the assessed contributions as well as the allocation of funds to the different functions and activities of the UN. It is no secret that many UN Member States are rather reluctant to provide the system which is meant to supervise their compliance with human rights obligations with the means to do so effectively.
The consequences of the systemic under-funding of the UN treaty body system are severe. At times, the CERD cannot conduct all sessions as planned due to the lack of funding. The number of States Parties the Committee can review within a year is limited, as is the number of individual complaints the Committee can decide. A significant backlog of State Party Reports as well as Individual Communications has accumulated over time, aggravated by the Covid-19 pandemic during which the work of the CERD, as well as other UN human rights institutions, was significantly constricted. The capacity of the CERD to react to allegations of racial discrimination thereby is severely confined. At times, even the quality of the work suffers under the more than suboptimal working conditions.
Whether the ongoing reform discussions, rather euphemistically named Treaty Body Strengthening, will improve the situation substantively as well as sustainably, remains to be seen (for a current analysis see here).
Lack of Political Will
At the end of the day, however, the main reason why the full potential of the ICERD for addressing and combating all forms of racial discrimination, including structural forms of racial discrimination, has yet to be realized, is the lack of political will on the side of States and public authorities within States. Concluded in 1965, the ICERD was the first UN human rights treaty. States quite willingly signed and ratified the treaty, many of them assuming that racial discrimination was a problem that concerned only other States, but not themselves. It has taken up much time and energy of the Committee to convince States that racial discrimination and racial inequality are issues within every society and that every State must take action in order to combat racism within its jurisdiction. Reading the reports submitted by States under the State Reporting Procedure, it becomes clear that States regularly find it difficult to acknowledge that racism and racial inequality are an issue in their country. The relevance of “race” is oftentimes denied. Failing to see the intersectionality of race and class, States often maintain the view that inequality is a socio-economic issue. Legacies of slavery and colonialism are not recognized as historical realities the effects of which are perceptible until today. The recognition of the Human Rights Council in 2021 that the legacies of colonialism have a negative impact on the enjoyment of human rights in today’s world – a recognition that has been taken up by the CERD without hesitation (see, e.g., here at para. 50) – has yet to be translated into actual policies.
A lot remains to be done for States and other stakeholders in combatting racism and in addressing structural forms of racial discrimination as well as racial inequality. The first step in this direction must be the recognition of the structural dimension of racism – a step which unfortunately not many States are willing to take wholeheartedly. The ICERD and the practice of the CERD constitute a rich repository of legal guidelines and policy recommendations which are meant to enable States to address racial discrimination in a comprehensive and effective manner and to enable civil society as well as individuals to hold States accountable for fulfilling the promise States have given when ratifying the Convention: to eliminate all forms of racial discrimination.
The contributions to this blog debate are published simultaneously on the africanlegalstudies.blog and Verfassungsblog.
