Race and the UN System

When the United Nations was established in 1945, much of the world remained under European colonial domination buttressed by transnational legal and political regimes that enshrined racial domination. Whereas our focus in this essay is the architecture that the United Nations has explicitly developed to address racism, racial discrimination, and racial injustice,Footnote ¹ this architecture must be situated within the broader context of a system that was birthed under the leadership of colonial and former enslaving powers that even at the time of its inception remained invested in global racial hierarchy.

The other essays in this symposium also provide important context for our analysis, alongside critical international literature that highlights the myriad ways that international law remains a means through which racial injustice is sustained in the present. Our analysis centers the sites of the UN system's most concerted efforts to address racism, racial discrimination, and related intolerance, which are within the international human rights framework. But, as others have noted, concentration of race concerns within this framework is a move that “fragments” race—narrowing focus to violations of states within their borders, while at the same time rendering transnational and interstate racial injustice largely illegible.Footnote ² This approach curtails the potential legal and policy interventions available for undoing the racial constraints on the self-determination of formerly colonized or enslaved peoples and nations. Compounding the internationalist emphasis of traditional international human rights law is the fact that the United Nations' flagship initiatives for addressing transnational inequality and crisis, such as the 2030 Agenda for Sustainable Development or its climate and environment architecture, systematically marginalize racial justice and equality.Footnote ³

Although we highlight this challenging terrain, anti-racism efforts at the United Nations cannot and should not be reduced to the conduct of states and the UN Secretariat. Since its inception, the United Nations has been a vibrant and urgent site of advocacy by civil society and social movements who have leveraged this global platform to fight racial justice battles that could not be won through purely local, national, or regional strategies. In a tradition that stretches as far back as W.E.B. Du Bois and the National Association for the Advancement of Colored People's 1947 “An Appeal to the World,” racially subordinated peoples continue to rely upon, and even strengthen levers within the United Nations that contribute to tangible and meaningful shifts in struggles on the ground. Conceptualization of the UN system is incomplete if it fails to account for the many frontline communities and advocates who expend precious resources to engage with the system.

The Race and Human Rights Architecture

At the normative center of the United Nations' race and human rights architecture is the International Convention on the Elimination of Racial Discrimination (ICERD). ICERD defines prohibited racial discrimination, provides a framework for its ostensible elimination, and establishes the Committee on the Elimination of Racial Discrimination (CERD)—its monitoring body. Human rights obligations prohibiting discrimination on the basis of race also exists across the broader UN human rights treaty regime. The DDPA, which we discuss in more detail below, also deserves mention as a core anti-racism instrument. Among the so-called “Durban mechanisms” is the Inter-Governmental Working Group on the Effective Implementation of the DDPA, as well as the Group of Independent Eminent Experts on the Implementation of the DDPA.

Part of the race and human rights architecture is located under the umbrella of the UN Human Rights Council's (HRC) Special Procedures, and includes the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, and the Working Group of Experts on People of African Descent, which is also a Durban mechanism. Beyond its race-focused Special Procedures, the HRC in 2021 established the International Independent Expert Mechanism to Advance Racial Justice and Equality in the Context of Law Enforcement (EMLAR). Alongside EMLAR, and similarly catalyzed by the 2020 racial justice uprisings, is the Four Point Agenda for Transformative Change of the UN High Commissioner for Human Rights (HC Four Point Agenda). There are other mechanisms focused specifically on Indigenous Peoples, the rights of Palestinians, and of Ethnic, Religious or Linguistic Minorities, that are a critical part of the anti-racism terrain.

From Durban to 2022: Systemic Racism and Historical and Contemporary Racial Injustice

The DDPA, which is the outcome document of the 2001 World Conference Against Racism, marked a historic effort to reorient the UN system and its member states’ approach to combatting racism, racial discrimination, xenophobia, and related intolerance.Footnote ⁴ The DDPA fuses decolonial, anti-racist, and anti-xenophobic commitments, situating contemporary racism and xenophobia within necessary historical and structural context. It is a vital counter to traditional human rights approaches that more or less exclusively focus on individual acts of discrimination and ignore the necessity of confronting legacies of slavery and colonialism for reckoning with contemporary racism and intolerance.

The DDPA further links racism, racial discrimination, xenophobia, and related intolerance to economic and political inequality, and provides an actionable agenda for combatting discrimination and intolerance embedded in societal institutions. In addition to highlighting the many racial, ethnic, and national and non-national groups subject to racism and xenophobia, the DDPA is also among the first international human rights instruments to use explicitly the concept of “intersectional discrimination” to highlight the interlocking effects of gender, class, and related structures on the lived experience of racism.

International legal scholarship has failed to give the DDPA the prominence and attention it warrants. The DDPA is highly contested within the UN system itself, too, in the sense that former and contemporary colonial powers remain firmly opposed to its vision, which anchors urgent, ongoing demands for transformative reparations for colonialism and slavery. Furthermore, the DDPA, which affirms the human rights of Israelis and Palestinians, is now pretextually condemned by Israel, the United States, and other allies as anti-Semitic, notwithstanding the fact that its content can in no way be characterized as such.Footnote ⁵ Our assessment, even in our official UN capacities, is that the opposition to the DDPA by members of the WEOG is unprincipled from a human rights perspective, and has been used for over twenty years since the Durban conference to block progressive efforts to dismantle contemporary and historic racial imperial projects.

Durban was unprecedented for the broad, transnational civil society presence that shaped the human rights vision it ultimately articulated. Almost twenty years after Durban, transnational racial justice uprisings and protests precipitated demands within the UN system that many had hoped the DDPA would help realize. The extrajudicial killing of George Floyd in the United States, in May 2020, during a peak of the COVID-19 pandemic—itself manifesting along racial and ethnic lines, nationally and internationally—catalyzed protests against systemic racism against Black people around the world, and in some places expanded to include Indigenous, Palestinian, and other racially subordinated groups. Demands for international action from anti-racism experts within the UN system, a massive transnational civil society advocacy campaign, and action by the Africa Group culminated in an “urgent debate” of the Human Rights Council. When it began, the debate held the possibility of an HRC resolution that would establish an international commission of inquiry focused on systemic, anti-Black racism in U.S. law enforcement, and a thematic commission to explore this issue globally. Ultimately, these possibilities were thwarted by WEOG—including through economic and political threats against weaker states. Instead, the HRC tasked the High Commissioner for Human Rights with producing a report on systemic racism in law enforcement, and ultimately established EMLAR.Footnote ⁶

The urgent debate was the “first and only [Special Session of the Human Rights Council] explicitly framed as concerning systemic racial injustice and anti-Black racism in a First World nation-state.”Footnote ⁷ It was also the first time that civil society had such a direct role in pressuring the Council to create an anti-racism mechanism and in demanding a direct voice be given to victims and survivors of racial injustice in the debate, and in EMLAR's operation. In the short term, elevating the role and voice of civil society and directly impacted groups has given enormous new momentum to the global anti-racism movement. The institutionalization of their participation may also result in further normative change and political action in the future.

The HC Four Point Agenda is noteworthy for its insistence on a historically informed, systemic account of racism in law enforcement, and for actively calling out “cultures of denialism” that remain a barrier to repairing this injustice.Footnote ⁸ The Agenda builds on demands for transformative reparations for racial discrimination rooted in slavery and colonialism that have recently been elaborated by one of us in the role of Special Rapporteur on racism and by the Working Group of Experts on People of African Descent.Footnote ⁹

Another effect of the debate and broader uprising was formal acknowledgement that racism exists within the United Nations in ways that negatively impact its potential as “fit for purpose” to fulfill its mission to guarantee rights based on non-discrimination and equality. The UN secretary-general made this acknowledgement in an unprecedented speech at a UN meeting,Footnote ¹⁰ following a joint open letter by African UN Under-Secretary-Generals.Footnote ¹¹ Outcomes have included the creation of a Strategic Action Plan on Addressing Racism and Promoting Dignity for All at the UN Secretariat,Footnote ¹² a series of candid conversations about racism across the United Nations, and within the Office of the High Commissioner for Human Rights the establishment of a new diversity and inclusion goal and mechanism to fast-track the hiring, promotion, and retention of staff of African Descent.

Finally, the 2020 uprisings gave necessary momentum to the General Assembly finally to establish the Permanent Forum on People of African Descent, which had languished in limbo, vulnerable to WEOG attempts to eliminate or diminish it unless it could be decoupled from the DDPA. The creation of the Permanent Forum also gives momentum for the adoption of a UN Declaration on the Rights of African Descendants—the first international instrument to focus specifically on the human rights of people of African descent.Footnote ¹³

We should note that recent international legal innovation within the anti-racism architecture predates 2020. For example, in deciding on its jurisdiction to hear the first ever interstate complaint in the international human rights system, CERD made far-reaching conclusions about the scope of the obligations codified in ICERD. In particular, the Committee affirmed the jus cogens and erga omnes nature of obligations that all states have to combat racial discrimination.Footnote ¹⁴ This understanding in part motivates broader efforts by CERD under its Early Warning and Urgent Action procedure to go beyond an anemic, formalist non-discrimination approach. In the past, it has limited its reach to holding state parties responsible for outcomes solely within their borders, but now CERD is interpreting its mandate to call for state accountability for racist outcomes broadly within a state party's control, which may be beyond its territorial borders.Footnote ¹⁵

Backlash

Momentum advancing substantive racial justice and equality has confronted formidable opposition. In the two years following 2020, the mandate for the Special Rapporteur on racism received reports of state repression of racial justice advocates, especially in jurisdictions that remain resistant to confronting historically embedded systemic racism. Backlash is also manifest in attacks against Critical Race Theory in the United States and beyond. This backlash propagates distorted caricatures of Critical Race Theory's tenets in order to mobilize law, policy, and a broader climate hostile to racial justice. In the past decade, racist, ethnonationalist populist politics have regained currency, especially in the vaunted liberal democracies of the West, but also in places such as India and Brazil. Ethnonationalism has fueled xenophobia, islamophobia, and anti-Semitism, and where anti-Semitism is concerned, instrumentalization of the tools for fighting it is itself driving racially discriminatory suppression of human rights, especially of Palestinians.Footnote ¹⁶

Within the United Nations, backlash has also been intense. The harsh approaches taken to oppose robust action during the urgent debate described above offers evidence. Other examples include the WEOG-led boycott of the twentieth anniversary of the DDPA. The ongoing geopolitical mobilization to undercut the momentum for transformative racial justice was most recently manifest in the Human Rights Council vote count for the From Rhetoric to Reality: A Global Call for Concrete Action Against Racism resolution, adopted over opposition from most of the WEOG members, in October 2022.Footnote ¹⁷ In a statement explaining its vote, the United Kingdom reiterated its position that states are not required “to make reparations for the slave trade and colonialism,” and instead “the most effective way for us all today to respond to the cruelty of the past is to ensure that current and future generations do not forget what happened.”Footnote ¹⁸ In the face of growing demands within and outside the UN system for reparative accountability for the contemporary legacies of historic structures of racial injustice, one of the foremost authors and beneficiaries of colonialism and slavery insists remembrance is all that is called for.